Leonard JACK, Appellant, v. P AND A FARMS, LTD., d/b/a Crooked Creek Shooting Preserve, Appellee.
No. 11-0877.
Supreme Court of Iowa.
Nov. 2, 2012.
822 N.W.2d 511
Heather L. Carlson of McDonald, Woodward & Carlson, P.C., Davenport, for appellee.
ZAGER, Justice.
In this case we are called on to decide whether a trial court‘s entry of a default judgment under
I. Factual and Procedural Background.
The relevant facts in this case are undisputed. In December 2005, Leonard Jack was an employee of P and A Farms, Ltd., doing business as Crooked Creek Shooting Preserve (Crooked Creek). Crooked Creek is a game preserve located in Washington County, Iowa, and its business activities include raising mallard ducks used for training hunting dogs and for human consumption. As an employee of Crooked Creek, Jack‘s responsibilities included caring for the ducks, feeding the ducks, maintaining the duck pens, and cleaning ducks for customers.
Crooked Creek housed approximately 3400 ducks in a 100 foot by 200 foot pen which was exposed to the elements but covered by a net. On December 20, 2005, the pen was covered in snow and ice. Jack slipped on the ice and fell while carrying two five-gallon buckets of grain. As a result, he sustained a shoulder injury. Jack received extensive treatment for the
Trial was originally set for April 1, 2008. On January 25, 2008, Jack‘s counsel served requests for admissions on Crooked Creek, which did not timely respond.2 However, on February 8, 2008, counsel for Crooked Creek filed a motion to withdraw from representation and a motion to continue. These resisted motions were granted by the court, which set a new trial date for December 16, 2008. New counsel for Crooked Creek did not file an appearance until October 24, 2008—over seven months later. Various motions were subsequently ruled on by the court. On November 7, 2008, the court entered an order denying Crooked Creek‘s motion to continue the trial and ordering Jack to make himself available for deposition. The court granted Crooked Creek‘s motion to file untimely responses to the January 25 request for admissions and ordered the responses be filed by November 18. On November 20, Jack filed a motion to reconsider the district court‘s order requiring him to make himself available for deposition in Washington County, Iowa, by December 1. Therein Jack asserted that he had recently started a new job in Idaho and traveling to Iowa for both the December 1 deposition and the December 16 trial would result in him losing his job.
On November 25, 2008, Jack filed a motion to remove the case from the operation of
On June 1, 2009, Crooked Creek filed an application to serve responses to requests for admissions. Attached to that motion were responses denying six of the requests in whole or in part. The court granted Crooked Creek‘s application upon finding that Jack would not be unfairly prejudiced. Trial did not take place as scheduled on June 9, 2009, and the trial was continued and rescheduled no fewer than four times at the request of each of the parties. By order entered June 24, 2010, jury trial was scheduled to begin on May 3, 2011.
Jack‘s counsel requested a continuance, and Crooked Creek moved to dismiss. After the court denied the motion to continue, Jack‘s counsel resisted the dismissal and argued in the alternative that based on the statutory presumptions contained in
The district court granted Crooked Creek‘s motion to dismiss and entered a ruling stating:
This case was scheduled for a jury trial commencing at 9:00 a.m. on May 3, 2011. Counsel for the Plaintiff and the Defendant appeared; however, the Plaintiff failed to personally appear. Plaintiff‘s counsel made an oral motion to continue the trial to a later date. Defendant‘s counsel resisted the motion to continue and moved that the case be dismissed. The Court notes that this case has been on file since 2007, that this trial date has been set for almost a year, and that the Plaintiff received notice of the trial date. After considering the arguments of counsel, the Court finds that the Plaintiff‘s motion to continue the trial should be and is here by denied and that the Defendant[‘]s motion for dismissal should be and is hereby granted.
On May 12, Jack filed a resisted motion to enlarge or amend, requesting that the district court enter a ruling addressing his counsel‘s proposition to proceed to trial in Jack‘s absence. He also requested that the district court reconsider its denial of his motion for continuance. The court granted the motion to enlarge or amend and added the following language to its previous ruling:
This lawsuit was commenced May 24th, 2007. Both parties were notified on June 24th, 2010 that the jury trial was scheduled to start at 9:30 a.m. on May 3rd, 2011.
Plaintiff Leonard Jack failed to appear for his jury trial on May 3rd. Attorney for Jack orally asked the Court to continue the trial minutes before it was to start. Defendants resisted any continuance and were ready to proceed. The court finds that the attorney for Plaintiff failed to state any good cause for continuing the trial.
Additionally, acting pursuant to
Iowa Rule of Civil Pro[cedure] 1.971(3) , the Court finds Leonard Jack to be in default when he failed to be present for trial.
On June 3, 2011, Jack filed a notice of appeal, and we transferred the case to the court of appeals. A majority of the three-judge panel of the court of appeals affirmed the holding that dismissal was appropriate under
II. Standard of Review.
“A decision to grant or deny a motion for default judgment rests in the sound discretion of the trial court.” See Wilson v. Liberty Mut. Grp., 666 N.W.2d 163, 165 (Iowa 2003). Reversal is only warranted upon a finding that the court‘s discretion has been abused. Id. Similarly, we review a district court‘s decision to grant or deny a motion for continuance for abuse of discretion. Hawkeye Bank & Trust, Nat‘l Ass‘n v. Baugh, 463 N.W.2d 22, 26 (Iowa 1990). However, this case turns on the interpretation of
III. Discussion.
A. Default Judgment Under Rule 1.971(3).
A default judgment is a judgment against the party who has failed to take the next step required in the progress of a lawsuit. Kirby v. Holman, 238 Iowa 355, 374, 25 N.W.2d 664, 674 (1947).
“Our ultimate goal in construing statutes is to find the true intention of the legislature.”5 Iowa Dep‘t of Transp. v. Soward, 650 N.W.2d 569, 571 (Iowa 2002). “We look to both the language and the purpose behind the statute.” Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359, 363 (Iowa 2000). We also consider relevant statutes together and try to harmonize them.6 Soward, 650 N.W.2d
Crooked Creek relies on an unreported court of appeals decision in which that court affirmed a default judgment against a plaintiff who was absent at the time designated for trial and after the jury had been impaneled. Manguno v. Bowden, No. 00-1646, 2002 WL 1840867, at *1 (Iowa Ct.App. Aug. 14, 2002). Manguno is distinguishable because the plaintiff was pro se, and accordingly, nobody was present to proceed in the plaintiff‘s absence. Id.; see also Krugman v. Palmer Coll. of Chiropractic, 422 N.W.2d 470, 473, 475 (Iowa 1988) (affirming entry of default judgment when the party, her experts, and her attorney failed to appear for depositions and trial); Langner v. Mull, 453 N.W.2d 644, 647-49 (Iowa Ct.App.1990) (affirming entry of default judgment against pro se party who failed to appear for trial).
In its brief, Crooked Creek also cites Hebert v. C.F. Bean Corp., a Louisiana court of appeals decision upholding the trial court‘s dismissal of the plaintiff‘s action where, as here, the plaintiff‘s counsel, but not the plaintiff, appeared for trial. 785 So.2d 1029, 1031 (La.Ct.App.2001). We are not persuaded that Hebert supports Crooked Creek‘s interpretation of
Crooked Creek contends, essentially, that our rules of civil procedure always require a party to be personally present for trial and do not permit a party to proceed to trial through counsel. However, numerous cases demonstrate that the rules were intended to contemplate a variety of situations in which a party who is not personally present may, through counsel, proceed to a trial where substantial rights are adjudicated.
In Vaux v. Hensal, we held that the trial court properly entered a default judgment against a defendant who timely filed an answer but failed to appear for trial. 224 Iowa 1055, 1059, 277 N.W. 718, 720-21 (Iowa 1938). However, in that case “neither the defendant ... nor his attorney appeared in court” on the day the case was assigned for trial. Id. at 1056, 277 N.W. at 719. Under instruction of the court, the clerk of court telephoned the defendant‘s attorney and advised him that the case had been rescheduled for the following day. Id. Despite receipt of this message, the next day when trial was scheduled to begin, and after the jury had been impan-
After the introduction of a portion of the plaintiff‘s evidence, the defendant‘s counsel appeared and requested “the default be set aside and that he be permitted to make his defense to the plaintiff‘s claim.” Id. The court agreed, but the defendant‘s attorney declined to proceed when the court refused to acquiesce in his insistence upon a jury trial. Id. at 1056-57, 277 N.W. at 719. Thereafter, the plaintiff proceeded to introduce its evidence to the court, and the court entered a judgment against the defendant. Id. at 1057, 277 N.W. at 719. The defendant appealed alleging the court erred in entering the default for nonappearance. Id. at 1057, 277 N.W. at 719-20. On appeal we affirmed. Id. at 1059, 277 N.W. at 721. Vaux is instructive in that it demonstrates a district court‘s authority to sanction a party for failure to appear for trial. Id. at 1057, 277 N.W. at 720. Notably, however, even though the defendant was not personally present, the court gave the defendant‘s counsel the option to defend the case in the defendant‘s absence. Id. at 1056-57, 277 N.W. at 719.
In Myers v. Emke, an inmate filed a civil rights action against the state. 476 N.W.2d 84, 84 (Iowa 1991). Through counsel, the inmate filed a motion requesting the court enter an order allowing the plaintiff to be transported from prison for the trial. Id. The district court denied the plaintiff‘s motion. Id. On appeal, we affirmed the holding that “[a]n inmate has no constitutional right to be produced as a witness in his own civil rights action.” Id. at 85. We noted that the “plaintiff‘s civil action d[id] not present any problems that would prevent the trial court from adequately functioning and dispensing justice in plaintiff‘s absence.” Id. Because the plaintiff‘s presence was not “reasonably necessary” the court “lack[ed] inherent power to order his presence.” Id.
The holding in Myers rests largely upon the doctrine of separation of powers, and we discussed our reluctance to invade the province of the executive branch. Id. at 86. Nonetheless, the Myers case provides a discrete example of a situation in which a party has been not only permitted, but required, to advance his claim through counsel. Id.
In Heck v. Anderson, we said “[t]he necessity of the presence of a party at the trial of a civil action for damages against him is admittedly not absolute.” 234 Iowa 379, 384, 12 N.W.2d 849, 851 (1944) (quoting Hellberg v. Warner, 319 Ill.App. 117, 117, 48 N.E.2d 972, 975 (1943) (applying Soldiers’ and Sailors’ Civil Relief Act of October of 1940)); see also Jamison v. Knosby, 423 N.W.2d 2, 4 (1988) (noting defendant did not appear personally at trial but his counsel appeared on his behalf); Semler v. Oertwig, 234 Iowa 233, 242, 12 N.W.2d 265, 270 (Iowa 1943) (noting that in some circumstances presence of a military serviceman at trial may be “unnecessary to an adequate protection of his rights“). This statement would be at odds with a default judgment rule that always required a party to appear personally at trial. Crooked Creek‘s interpretation of
For instance, both postconviction relief proceedings and termination of parental rights proceedings are generally governed by the rules of civil procedure. See
Similarly, in In re Interest of J.S., our court of appeals held that a parent‘s physical presence is not required at a termination of parental rights hearing when counsel is present on the parent‘s behalf. 470 N.W.2d 48, 52 (Iowa Ct.App.1991); cf. In re Interest of T.C., 492 N.W.2d 425, 428-29 (Iowa 1992) (finding father was not denied his due process rights at child-in-need-of-assistance (CINA) adjudicatory hearing due to fact that father was in county jail at time of service of notice and CINA proceedings and that it was unlikely that court would have entered order different from what it did had the father been present). In both of these situations, one of the parties is often incarcerated, and it is commonly understood that a party who appears through counsel will not be held to be in default.
Also, a rule that required a party to appear personally for trial would be inscrutable in its application to a party who is not a person but rather an entity. In Hawkeye Bank & Trust, we held that corporations in this state are generally required to appear only by lawyer. 463 N.W.2d at 25. If the corporation itself is required to be present for trial, it is wholly unclear which person or persons would be required to appear on the corporation‘s behalf. Clearly, a corporation represented by counsel would not be considered to be in default where no employees, officers, or shareholders showed up for trial. Cf. Kirk v. Madsen, 240 Iowa 532, 534, 36 N.W.2d 757, 758 (1949) (“All testimony is undisputed as [the defendant who owned the company ... ] was represented by counsel at the trial, failed to appear in person[,] and could not be found to be served with subpoena.“).
Numerous state appellate courts that have considered the issue now before us have interpreted their respective rules of civil procedure to allow a party to proceed to trial through counsel without actually being personally present. See, e.g., In re Interest of M.M., 708 So.2d 990, 992 (Fla. Dist.Ct.App.1998) (holding the entry of default judgment against parents in termination proceeding for failing to appear was improper because the parents appeared through their counsel); Owen v. Healy, 896 A.2d 965, 967-68 (Me.2006) (“Evidence of a party‘s unexplained failure to appear in person ... does not justify a default that avoids trial where, as here, the missing party is represented by counsel at the trial.“); Rocky Produce, Inc. v. Frontera, 181 Mich.App. 516, 516, 449 N.W.2d 916, 917 (1989) (reversing default judgment based on civil defendant‘s failure to appear personally at trial because, “absent a subpoena or order from the court to appear, a defendant in a civil case is not required to appear in person for a scheduled trial“); Croes v. Handlos, 225 Minn. 247, 247, 30 N.W.2d 471, 472 (1948) (“Of course, a defendant may appear and answer personally, but he must do so either personally or by counsel.“); Ogawa v. Ogawa, 125 Nev. 660, 660, 221 P.3d 699, 707 (2009) (where a party “appeared at the divorce hearing through counsel ... the district court erred in entering the default against him“); N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J.Super. 501, 501, 983 A.2d 598, 600 (N.J.Super.Ct.App.Div.2009) (holding that it was improper for trial court to enter default against stepmother based on failure to appear personally at child abuse fact-finding hearing where her attorney
The preceding precedents demonstrate that when a party and the party‘s representative fail to appear for trial, the decision to grant or deny a motion for default judgment under
Through counsel, Jack could have advanced his claim based entirely on admissions by Crooked Creek which were already in the record. See White v. Walstrom, 254 Iowa 646, 650, 118 N.W.2d 578, 581 (1962) (“[P]laintiff can make his whole case on defendant‘s deposition if he so desires. He could always prove his case by statements of defendant made out of court....“). In this case, Jack would also have been entitled to rely on the presumptions contained in
It was well within the discretion of the district court to decline to grant a seventh continuance in a case that had been on file for over four years. Hawkeye Bank & Trust, 463 N.W.2d at 26 (“Given the broad discretion vested in district courts to grant or deny continuances, we will reverse only when that discretion is abused.“). However, we find that the court‘s entry of a default judgment dismissing Jack‘s case was based on an erroneous interpretation of
B. Crooked Creek‘s Right to Cross-Examine Jack.
Crooked Creek concedes that Jack had made a prima facie case on his negligence claim but contends that it was entitled to rebut the presumption of negligence established under section 87.21 by cross-examining Jack at trial. The court of appeals “agree[d] with Crooked Creek that despite Jack‘s ability to establish a prima facie case under section 87.21, his absence precluded [Crooked Creek] from cross-examining him, which is essential to a fair trial.” For this proposition, the court cited our decision in Avery v. Harms Implement Co., which states, “While the scope of cross-examination is discretionary, the right to do so is absolute. It is a right essential to a fair trial.” 270 N.W.2d 646, 650 (Iowa 1978).
However, in the second subsequent sentence in the Avery decision, we also stated, “Under our rules, cross-examination is limited to matters testified to in chief.” Id. Because the proposition below was to proceed in Jack‘s absence, Jack would not have testified in his case-in-chief and would not have been subject to cross-examination. See Heinz v. Heinz, 653 N.W.2d 334, 342 (Iowa 2002) (“The purpose of cross-examination is to test the veracity of statements a witness made....“). A party is not denied a fair trial by the denial of the opportunity to cross-examine a witness who does not give any testimony. The very definition of cross-examination requires that the witness first be examined on direct.
Crooked Creek cannot complain that it would have been deprived a fair trial because of the failure of one of the opposing parties’ designated witnesses to appear for trial. Crooked Creek may have been entitled to examine Jack had they subpoenaed him in accordance with
IV. Conclusion.
The district court did not abuse its discretion when it denied Jack‘s motion to continue the trial. However, the district court‘s decision to enter a default judgment against Jack rested on an erroneous interpretation of
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
ZAGER
JUSTICE
Notes
The court shall have no power to treat an appearance as sufficient to delay or prevent a default or any other order which would be made in absence thereof, or of timely pleading. Notice and opportunity to respond to any motion for judgment underThus, at first blush,rule 1.973(2) shall be given to any party who has appeared.
No subpoena is necessary to require the appearance of a party for a deposition. Service on the party or the party‘s attorney of record of notice of the taking of the deposition of the party or of an officer, partner or managing agent of any party who is not a natural person, as provided inThe first sentence ofrule 1.707(1) , is sufficient to require the appearance of a deponent for the deposition.