from the Iowa District Court for Marshall County, James C.
applicant appeals the denial of his motion to reinstate his
application for postconviction relief.
Christopher A. Clausen of Clausen Law Office, Ames, for
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
Villa Magana appeals the denial of his motion to reinstate
his application for postconviction relief (PCR).
Magana originally filed his application for PCR in October
2012, and trial was set for August 2013. The trial was
continued from August 2013 to February 2014, April 2014, July
2014, and then December 2014.
Magana received his first dismissal notice, warning his case
would be dismissed for want of prosecution pursuant to Iowa
Rule of Civil Procedure 1.944, in July 2014. At the pre-trial
conference in December 2014, Villa Magana informed the court
he wanted to pursue a motion for new trial and asked the
court to put his PCR action on hold. The court obliged,
continuing the PCR action until December 2015.
action was then taken in the PCR case, and a second dismissal
notice was generated on July 15, 2015, advising that Villa
Magana's PCR case would be dismissed on January 1, 2016,
if no action was taken. The case continued to sit dormant,
and on January 8, 2016, the clerk of court dismissed Villa
Magana's application for PCR and sent a notice of
six months later, Villa Magana filed a motion to reinstate
the PCR action. After a number of continuances filed by Villa
Magana and granted by the court, the matter came on for
hearing in September 2016. The court denied Villa
Magana's motion for reinstatement. Villa Magana appealed.
to allow or deny reinstatement under a timely application
under [Iowa Rule of Civil Procedure 1.944] are
discretionary." Greene v. Tri-Cty. Cmty. Sch.
Dist., 315 N.W.2d 779, 781 (Iowa 1982). Villa Magana has
the burden to establish adequate reasons for reinstating the
action. See Sanchez v. Kilts, 459 N.W.2d 646, 650
(Iowa Ct. App. 1990). Here, in reviewing the district
court's decision, we have only Villa Magana's motion
to reinstate and the State's resistance to consider; to
the extent the district court heard evidence or received
further arguments at the hearing, it appears the hearing was
prerequisite to either a mandatory or discretionary
reinstatement 'is a showing by [the applicant] of
reasonable diligence in preparing and pursuing the case for
trial.'" Id. (citation omitted). While
Villa Magana maintains the dismissal was a "result of
oversight"-as provided for in the rule for
reinstatement-the record belies his assertion. See
Iowa R. Civ. P. 1.944(6). "Ignoring notice while showing
nothing more than excuse, plea, apology, or explanation is
not sufficient to allow a party to escape default."
Holland Bros. Const. v. Iowa Dep't of Transp.,
434 N.W.2d 902, 904 (Iowa 1988). In his motion to reinstate,
Villa Magana's counsel states he "was on military
duty at the time the case was dismissed." He does not
offer an explanation for why he did not get the case
continued during the six months leading up to the dismissal
after the notice was sent. The attorney's statement that
"the dismissal came at a time immediately prior to
counsel being called to military duty" does not
constitute "proof of accident or excusable neglect where
there was a good faith intent to defend or continue the
action." In re Estate of Bearbower, 376 N.W.2d
922, 924 (Iowa Ct. App. 1985). Counsel also does not explain
why he waited almost the entire six months provided for by
the rule before filing a motion to reinstate when, according
to him, Villa Magana "believe[d]" the motion for
new trial was "resolved in January or February of
2016." See Holland Bros. Const., 434 N.W.2d at
904 (listing "whether plaintiff promptly applied to
reinstate the case" as a factor in deciding whether to
reinstate). As the district court noted, the PCR action had
been continued a number of times-though not always at the
request of Villa Magana-and had been pending for almost four
years at the time of the hearing on the motion to reinstate.
Nothing was filed in the case in between December 2014 and
Villa Magana's June 2016 motion to reinstate, other than
the dismissal warning and the dismissal itself. See
id. (advising to consider "whether the plaintiff
made a good faith effort to prosecute or continue the
Magana maintains his case is like that of Butner v.
Beyer, 593 N.W.2d 133, 135 (Iowa 1999). In
Butner, the plaintiff filed a motion for a
continuance after receiving a notice the case would be
dismissed for want of prosecution, and the district court
granted it. 593 N.W.2d at 133-34. A different judge later
ordered the case dismissed for want of prosecution anyway.
Id. at 134. Our supreme court reversed, finding the
original granting of the plaintiff's motion to continue
was controlling. Id. at 135-36. But here, Villa
Magana never received-or even moved for-a continuance of the
trial on his petition or the dismissal after receiving the
July 2015 dismissal warning. And the district court's
December 2014 order very specifically stated, "The ...