Baltzley v. Sullins

641 N.W.2d 791, 2002 Iowa Sup. LEXIS 52, 2002 WL 536297
CourtSupreme Court of Iowa
DecidedApril 3, 2002
Docket99-1032
StatusPublished
Cited by1 cases

This text of 641 N.W.2d 791 (Baltzley v. Sullins) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baltzley v. Sullins, 641 N.W.2d 791, 2002 Iowa Sup. LEXIS 52, 2002 WL 536297 (iowa 2002).

Opinion

LARSON, Justice.

Attorney Ray Sullins, who was the defendant in a legal malpractice suit, has appealed from a district court judgment entered after he failed to appear following service of original notice on him. He contends the court failed to properly apply Iowa Rules of Civil Procedure 107(b) and 231(b). 1 We reject his arguments.

I. Facts and Prior Proceedings.

Beverly Baltzley and C.P.A.L.S. Corporation (plaintiffs) filed their petition against Sullins on December 11, 1998. Sullins was personally served with the petition and original notice on December 16. He did not appear, and on January 12, 1999, the plaintiffs served a “notice of intent to file written application for default,” in compliance with Iowa Rule of Civil Procedure 231(b). Thirteen days later, on January 25, 1999, the plaintiffs’ request for entry of default was granted, and an evi-dentiary hearing was scheduled to determine damages. Sullins filed an answer later that same day.

On March 4, 1999, Sullins filed a motion to set aside the default. The plaintiffs resisted, and the court scheduled a hearing for May 18, 1999. Sullins failed to appear for the hearing, and his motion to set aside the default was overruled. The court heard evidence on the plaintiffs’ damages at this hearing and, on June 7, entered a $750,000 judgment against Sullins.

Sullins raises six issues, but we find potential merit in only two: (1) whether rule 107(b) extends the ten-day grace period accorded to defaulting parties under rule 231(b); and (2) whether the judge, as opposed to the clerk, had the authority to enter the default.

*792 II. Application of Rules 107(b) and 231(b).

Rule 231 provides in relevant part:

b. Application. Requests for entry of default under rule 231(a) shall be by written application to the clerk of the court in which the matter is pending. No default shall be entered unless the application contains a certification that written notice of intention to file the written application for default was given after the default occurred and at least ten days prior to the filing of the written application for default. A copy of the notice shall be attached to the written application for default. If the certification is filed, the clerk on request of the adverse party, must enter the default of record without any order of court.
c. Notice.
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(3) Computation of time. The ten-day period specified in R.C.P. 231(b) shall begin from the date of mailing notice, not the receipt thereof.

The plaintiffs mailed this ten-day notice to Sullins on January 12, 1999, but he did not respond within the ten days. On the thirteenth day after the notice was sent, the plaintiffs filed a motion for default judgment, the court entered default against Sullins, and the court scheduled a hearing to assess damages. Sullins, however, argues that the ten-day period had not expired because rule 107(b), called the “mailbox rule,” entitled him to an additional three days to respond to the notice of intention to file for default.

Rule 107(b) is a general rule extending time to respond to mailed notice. The issue is whether it applies under the circumstances of this case. The rule provides:

b. Additional time after service by mail. When by these rules a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, three days shall be added to the prescribed period. Such additional time shall not be applicable where a court has prescribed the method of service of notice and the number of days to be given or where the deadline runs from entry or filing of a judgment, order or decree.

The effect of rule 107(b) on the ten-day period between mailing of a “notice of intention to file the written application for default” and filing the application under rule 231(b) is not clear in the wording of the rules. Sullins argues he has the right under rule 231(b) to file an answer or motion within ten days of plaintiffs giving notice and that rule 107(b) gave him three additional days, which would extend the time to January 25. He filed his answer on that day, so he was within the allowable time, according to him.

The plaintiffs counter that rule 107(b) is a general statute, while rule 231 is specific and therefore controls. Rule 231 has its own provision regarding mailed notice, which begins the ten-day period with mailing, not receipt of the notice. See Iowa R. Civ. P. 231(c)(3). The plaintiffs argue that ten days from mailing would expire on January 22, and Sullins’ answer on January 25 was not timely to prevent the entry of a default judgment.

The plaintiffs argue that the specific mailing provision in rule 231(c)(3) is a self-contained method of computing time. That rule prescribes a specific starting point, i.e., mailing, for computing the ten-day period. However, virtually all service of papers is effective when mailed. “Service [of pleadings and other papers] shall be made by ... mailing ... a copy to the attorney or to the party ... [and] [sjervice *793 by mail is complete upon mailing.” Iowa R. Civ. P. 106(b) (emphasis added). 2 The problem is whether rule 231(c)(3) provides a conclusive ending point. Does the grace period end ten days after mailing, as the plaintiffs argue, or ten days after mailing plus three days, as Sullins argues? Reading rule 107(b) and rule 231(c)(3) together, we conclude the ten-day period is not extended by rule 107(b) because rule 231(c)(3) does more than establish a starting point for the running of the ten-day period. It establishes a total period for responding to the notice, and that is ten days. This is the only interpretation of rule 231(c)(3) that will give that rule any independent significance because, if all it does is establish a beginning point, it is redundant to rule 106. The gist of rule 231(b) and (c) is to “cut some slack” to a defaulting party, but ten days in addition to the original twenty days is sufficient. Three more days need not be added. Under an analogous federal rule, a defaulting party is entitled to only three days, not ten, and even that extension is conditioned on the party’s having filed an appearance, which Sullins had not done. See Fed.R.Civ.P. 55(b)(2).

The court properly entered the order for default after ten days following mailing of the notice and did not err in refusing to extend it under rule 107(b).

III. Was the Judge Authorized to Enter the Default Judgment?

Under rule 231(a)

[i]f a party ... is in default under R.C.P. 230(a) [for failing to serve and file a motion or answer] ...

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641 N.W.2d 791, 2002 Iowa Sup. LEXIS 52, 2002 WL 536297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baltzley-v-sullins-iowa-2002.