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Prier v. Billhymer

Court of Appeals of Iowa

August 1, 2018

TRACIE PRIER, Plaintiff-Appellant,
v.
MARY BILLHYMER, Defendant-Appellee.

          Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.

         Plaintiff appeals the district court decision dismissing her action for failure to timely serve notice on defendant.

          Siobhan Briley of Pugh Hagan Prahm, P.L.C., Coralville, for appellant.

          Allison R. Abbott of Elverson, Vasey & Abbott, L.L.P., Des Moines, for appellee.

          Considered by Potterfield, P.J., Tabor, J., and Scott, S.J. [*]

          SCOTT, SENIOR JUDGE.

         Tracie Prier appeals the district court decision dismissing her action for failure to timely serve notice on Mary Billhymer. Prier did not serve Billhymer with notice of the lawsuit within ninety days after the petition was filed and did not file a motion for an extension of time to serve notice. We conclude Prier has not shown good cause for the delay in serving Billhymer. We affirm the district court's decision dismissing the action.

         I. Background Facts & Proceedings

         Prier and Billhymer were involved in a motor vehicle accident on May 20, 2015, in Iowa City. Prier filed a tort action against Billhymer on May 19, 2017. Prier did not serve Billhymer with notice of the lawsuit within ninety days, which was August 17, 2017, and did not file a motion requesting additional time to serve notice.

         On August 21, 2017, at 12:57 p.m., Billhymer filed a motion to dismiss, claiming she was not served notice within ninety days, as required by Iowa Rule of Civil Procedure 1.302(5). Prier resisted the motion, claiming there was good cause for the delay. She stated she had been informed Jon Vasey was Billhymer's attorney and attempted to serve him on August 14, 2017, but he stated "I have no authority to accept service on behalf of Mary Billhymer."[1] On August 15, Prier arranged for the Davis County Sheriff's Department to serve Billhymer but it was unable to locate her. Prier contacted a private process server on August 21, who completed service that day at 8:10 p.m.

         After a hearing, the district court granted the motion to dismiss. The court stated:

Service was not made on Defendant until ninety-four days after the Petition was filed. As Plaintiff's counsel acknowledged at the time of hearing, when she became aware that timely service was potentially going to be a problem, she should have filed a request for additional time to serve Defendant. Plaintiff never took the affirmative action of filing a request for additional time to serve Defendant. Additionally, Plaintiff simply has failed to establish any good cause for her failure to effect service on Defendant within ninety days of the filing of the Petition.

         The court also stated, "the failure in timely service was due to Plaintiff's counsel inadvertence, neglect, and/or misunderstanding and ignorance of Rule 1.302(5) and its burden." Prier appeals the district court's decision.

         II. ...


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