GARY L. RIEDESEL, Plaintiff-Appellant,
THE ESTATE OF LLOYD W. FURLONG, II, LLOYD W. FURLONG, II, BECKY FURLONG, Defendants-Appellees.
from the Iowa District Court for Muscatine County, John D.
appeals the district court's grant of the motion to
dismiss the decedent and decedent's estate from the
litigation for failure to timely serve the petition pursuant
to Iowa Rule of Civil Procedure 1.302(5).
Cynthia Z. Taylor of Zamora, Taylor, Woods & Frederick
and Carrie E. Coyle of Carrie E. Coyle, P.C., Davenport, for
T. Fairfield of Brooks Law Firm, P.C., Rock Island, Illinois,
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
October 30, 2013, Lloyd Furlong, a resident of Ohio, was
driving a pickup truck when he rear-ended the vehicle of Iowa
resident Gary Riedesel. Thereafter, Riedesel's attorney
negotiated with Lloyd's insurer concerning the personal
injury damages Riedesel sustained in the collision, and in
November 2014, the insurer sent a proposed settlement
agreement offering to compensate Riedesel in exchange for a
full release of all claims against "Lloyd and Becky
Furlong and the Estate of Lloyd Furlong." It was evident at
this time to Riedesel that Lloyd had since passed away.
October 22, 2015, Riedesel filed suit against Lloyd, Becky,
and Lloyd's estate (collectively "Defendants").
At no time did Riedesel verify that the estate was open-it
was not; in fact, the estate was released from administration
with the Ohio probate court's approval in August 2014.
Nevertheless, Riedesel attempted to serve the suit papers
upon Becky, in both her individual capacity and as the
executor of Lloyd's estate. After several unsuccessful
attempts to serve Becky, Riedesel filed a timely motion
seeking an extension of time for service upon Defendants. The
court then granted Riedesel "until February 28, 2016, to
attempt personal service of the court documents upon
Defendants." Becky was served on February 4, 2016.
in her individual capacity, subsequently filed an answer.
Later, Lloyd and Lloyd's estate filed a motion to dismiss
the petition for failure to timely serve the estate. In the
motion, it was admitted that Becky had been served within the
extended time granted by the court. However, the motion noted
that the estate had not been served and that Riedesel had not
taken any affirmative steps to do so, since there had been no
filing seeking to reopen Lloyd's estate for the purpose
of pursuing the suit and serving the estate. Since Riedesel
failed to serve the estate within the time granted by the
court, the motion sought dismissal of dismissal of Lloyd and
Lloyd's estate from the suit.
response, Riedesel essentially argued that, based upon the
language in Lloyd's insurer's settlement offer,
Riedesel had a good-faith belief an estate had been opened
for Lloyd and "was still in process" at the time of
the offer. Riedesel complained he had received no notice of
the estate being opened or closed. He argued he had good
cause for another extension of time for service based upon
his belief an estate was open when he filed the suit, and
Becky's alleged evasion of service delayed service, and
because Becky was the only person who would receive notice on
behalf of the estate-as administrator-and she had already
been served anyway. At the hearing, Riedesel requested an
extension of time to allow him to reopen Lloyd's estate
and have its personal representative served.
a hearing on the motion, the district court, in a
well-reasoned ruling, granted the motion to dismiss and
dismissed the suit against Lloyd and Lloyd's estate
without prejudice. The court noted Riedesel's counsel
"appeared to have made no efforts to determine if there
was still an existing entity, the Estate of Lloyd W. Furlong,
before filing suit." The court found Riedesel had not
been diligent in serving the estate as required under the
rules. The court explained that attempting service upon
Becky, even identified as the executor of the estate, could
not effectuate service upon the nonexistent estate. The court
noted Becky had no obligation to notify Riedesel of the
estate's closure and that there had been sufficient time
for Riedesel to discover the estate was closed and have it
reopened pursuant to Iowa Code section 633.227(3) (2015),
which allows creditors to open an administration of probate.
Because Riedesel had made no attempt to reopen the estate,
the court denied his request for an extension of time under
rule 1.302(5) dismissed Lloyd and Lloyd's estate from the
now appeals, arguing the district court erred in denying his
request for additional time and in dismissing Lloyd's
estate from the suit. He advances the same arguments raised
before the district court-that he, in good faith, believed
the estate remained opened because of the language used by
Lloyd's insurer and because Becky never informed him
otherwise, and that he diligently attempted to timely serve
Becky, who has been and would be, when reopened, the executor
of Lloyd's estate, so there is no question she was aware
of Riedesel's intention to bring a suit against
Lloyd's estate. Our review of the court's ruling is
for correction of errors at law. See Brubaker v. Estate
of DeLong, 700 N.W.2d 323, 326 (Iowa 2005).
Rule of Civil Procedure 1.302(5) requires service of the
notice be made upon the defendant within ninety days after
the petition is filed, but the time can be extended if the
filing party "shows good cause for the failure of
service." "Inadvertence, neglect, misunderstanding,
ignorance of the rule or its burden, or half-hearted attempts
at service" are generally not sufficient to show good
cause. Brubaker, 700 N.W.2d at 327. Rather, the
filing party must show he or she affirmatively tried or was
prohibited from trying, through no fault of his or her own,
to serve the defendant. See id.
points to his affirmative attempts to timely serve Becky as
justification for his failure to timely serve the estate. The
problem with his argument is that, even accepting for the
sake of argument that Becky evaded service of process, there
is nothing in the record that shows this would have made any
difference concerning service upon the non-existent estate.
That Becky knew Riedesel wanted to sue the estate did not
matter; there was no estate to sue. See id. at
326-27; see also Brown v. Roberts, 205 N.W.2d 746,
748 (Iowa 1973) ("For another reason the notice given