                     IN THE COURT OF APPEALS OF IOWA

                                       No. 18-1067
                                    Filed May 1, 2019


IN THE MATTER OF THE ESTATE OF GEORGE MRLA,
Deceased.

ROBERT MARION RICHARD MRLA,
    Plaintiff-Appellee.

vs.

ESTATE OF GEORGE MRLA, MARY GEORGIANNA HINER AND GEORGIE
ANN QUINLAIN, AS EXECUTORS OF THE ESTATE OF GEORGE MRLA,
deceased, AS TRUSTEES OF THE ANKA MRLA AND GEORGE MRLA FAMILY
TRUST DATED AUGUST 14, 2015, AND INDIVIDUALLY,
     Defendants-Appellants,

________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary,

Judge.



       Defendants appeal the district court decision finding there was good cause

for plaintiff’s failure to timely serve notice. REVERSED AND REMANDED.




       Glenn A. Metcalf of Metcalf & Beardshear, Moville, for appellants.

       Michael W. Ellwanger of Rawlings, Ellwanger, Mohrhauser, Nelson & Roe,

L.L.P., Sioux City, for appellee.



       Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                            2


BOWER, Judge.

       Defendants appeal the district court decision finding there was good cause

for the failure of Robert Mrla to timely serve notice of his petition to set aside a will

and petition for breach of contract to make a will. We find Robert was required to

serve notice to the defendants. The defendants’ petition for declaratory judgment

did not waive their claims regarding untimely service of process. The district court

erred in finding Robert showed good cause for the delay in service. We reverse

the decision of the district court denying the motion to dismiss and remand.

       I.      Background Facts & Proceedings

       George Mrla (George) died on April 26, 2017. Under his will, all of George’s

property went to The Anka Mrla and George Mrla Family Trust. Mary Hiner and

Georgie Quinlain were named as the trustees. The trust provided on George’s

death specific parcels of land would be distributed to his children—George S. Mrla

(George S.), John Mrla, David Mrla, Robert, Georgie, Mary, Joseph Mrla,

Rosemary Chicoine, Jennifer Newman, and George G. Mrla (George G.).1 On

May 3, 2017, Mary filed a petition for probate of the will without present

administration, and the district court granted the petition. The attorney for Mary

and Georgie as trustees was Glenn Metcalf.

       On September 18, 2017, Robert filed a petition to set aside the will, claiming

George was mentally incompetent to make a will and the will was the result of

undue influence. In addition, Robert filed a petition for breach of contract to make

a will, asserting he had provided farm services to George without pay based on


1
   According to the trust document, George’s child, Louis Mrla, would not receive a parcel
of land.
                                           3


statements he would receive an eighty-acre farm in George’s will. The trust, the

estate, and Robert’s siblings were named as defendants. Robert’s attorney for the

claims was Michael Ellwanger.2

       On September 21, 2017, Ellwanger sent a letter to Metcalf, asking if he

represented all of the fiduciaries and other parties in the litigation. On October 5,

Ellwanger sent Metcalf an email, again asking if he was representing the

defendants. Ellwanger stated, “Inasmuch as the claims were filed in the probate,

I don’t think that I need to personally serve anyone, but would like to visit with you

about this.” Metcalf responded he was only representing Mary and Georgie as

trustees but would try to see what the other family members wanted to do.

       On October 25, in a separate proceeding, Mary and Georgie, as trustees,

filed a petition for declaratory judgment, stating they had not been served notice.

They sought a ruling Robert’s filings were barred by the statute of limitations

regarding trusts. On inquiry from Metcalf, Ellwanger stated he could accept service

for Robert on the petition for declaratory judgment. In fact, however, Robert was

personally served with notice of the petition for declaratory judgment.

       Under Iowa Rule of Civil Procedure 1.302(5), service of notice should be

made within ninety days after filing a petition. On December 18, the last day for

timely service for Robert’s petitions,3 Ellwanger’s firm emailed Metcalf stating, “We

assume acceptance of service is reciprocal. Will you accept service on behalf of

the Estate, Trust, and other defendants?” Metcalf replied, “[N]o I have not been


2
   Melissa Knight was also an attorney for Robert when he filed his claims, but she later
withdrew from representing him due to a change in employment.
3
   By our calculation, the ninetieth day was Sunday, December 17, so service would be
timely on Monday, December 18. See Iowa Code § 4.1(34) (2018); Iowa R. Civ. P. 1.1801.
                                          4


authorized to accept service.” Ellwanger sent the original notices and petitions to

be served on the defendants to the sheriff’s office late on December 18.

       After the ninety days were past, on December 19, Ellwanger emailed

Metcalf, “[W]e are preparing to serve all these people. Are you going to represent

them? If so it seem[s] a waste of time and money to run around the countryside

serving people.” Metcalf responded he was only representing Mary and Georgie

in their roles as trustees and was not authorized to accept service. Service of

notice began on December 20.4

       An amended petition for declaratory relief was filed on December 22 by

Mary and Georgie as trustees. It stated Robert had not taken action for more than

ninety days “to serve the trustees or any Defendant with copies of the Claim or

either Petition.” Mary and Georgie asked the court to dismiss Robert’s petitions.

On December 27, Mary and Georgie were appointed executors in the probate

proceedings. Metcalf was designated as the attorney for the estate.

       On January 3, 2018, Mary and Georgie, as executors and trustees, filed a

motion to dismiss Robert’s claims based on his failure to serve notice within ninety

days, as required by rule 1.302(5). Motions to dismiss were also filed by John,

David, Joseph, Rosemary, Jennifer, George G., and Mary in her individual

capacity.5




4
   George G. and Joseph were served on December 20, 2017. John was served on
December 21. Georgie was served on December 26. Louis was served on December 27.
Rosemary was served on December 28. David was served on December 31. Mary was
served January 20, 2018. Jennifer was served on January 23. George S. was served on
January 29.
5
   These defendants, as well as Mary individually, were not represented by Metcalf but
were represented by other counsel.
                                         5


       On January 16, Robert filed a motion to transfer Mary and Georgie’s petition

for declaratory judgment to the probate proceedings. Mary and Georgie did not

resist the motion, and it was granted by the district court on January 24.

       Robert resisted the motions to dismiss, claiming there was good cause for

the court to extend the time for service of process. He stated Ellwanger had a

good faith belief there was an agreement for reciprocal service, so Metcalf would

accept service for the defendants. Robert claimed service of his petitions was not

necessary because the parties had already been given notice of the probate

proceedings. He also claimed the trustees’ petition for declaratory judgment was

a pre-answer motion and waived Mary and Georgie’s right to object to the timing

of service.

       The district court determined “the defendants in these proceedings were

named in their individual capacity and as such original notice was required to be

served to each named defendant individually,” and the defendants were not served

within ninety days. The court determined the petition for declaratory judgment

“could not constitute as a waiver or pre-answer motion in the present proceedings.”

The court concluded Robert did not show good cause in the delay in service to

George S., John, David, Joseph, Rosemary, Jennifer, George G., or Louis and

Robert’s petitions should be dismissed as to them.

       As to Mary and Georgie, as trustees, executors, and individually, the court

found there was good cause for the delay in service. The court stated:

       Given that counsel was in constant communication throughout these
       proceedings making them aware of the pending suit; all filings were
       electronic; the good faith belief that acceptance of service was
       reciprocal; a Petition for Declaratory Relief was filed in [the other
       case]; and the fact that no executors were appointed within the ninety
                                          6


       day timeframe, [Robert] was justified in failing to serve Defendants
       Mary and Georgie in their official capacity within ninety days.
       Additionally, given that Mr. Metcalf was representing Mary and
       Georgie in their capacity as Trustees and Executors, leading to the
       reasonable conclusion he would be representing them in their
       individual capacity as well, their knowledge of the suit, along with Mr.
       Ellwanger’s good faith belief that service upon each individual
       defendant was unnecessary; [Robert] was also justified in failing to
       serve Mary and Georgie in their individual capacity as well.

The court denied Mary and Georgie’s motion to dismiss and determined Robert’s

petitions could proceed against the trust, the estate, and Mary and Georgie

individually.

       The trust, the estate, and Mary and Georgie individually filed a motion

pursuant to Iowa Rule of Civil Procedure 1.904(2). The district court denied the

motion. Mary and Georgie, as trustees, executors, and individually, appealed the

decision of the court.

       II.      Standard of Review

       “We review decisions by the district court to grant a motion to dismiss for

correction of errors at law.” Rucker v. Taylor, 828 N.W.2d 595, 598 (Iowa 2013).

On a motion to dismiss for delay of service, the court may consider facts outside

the pleadings. Carroll v. Martir, 610 N.W.2d 850, 856 (Iowa 2000). The district

court’s factual findings are binding on appeal if they are supported by substantial

evidence. Rucker, 828 N.W.2d at 599. “We are not bound, however, by either the

legal conclusions or application of legal principles reached by the district court.”

Id.

       III.     Service of Notice

       A.       Robert claims it was not necessary for him to serve Mary and

Georgie because they had submitted to the jurisdiction of the probate court by filing
                                             7


the petition to admit George’s will to probate. He states his petition to set aside

the will and petition for breach of contract to make a will were in the nature of

counterclaims, which would not need to be personally served on the plaintiffs in

the probate case, who were Mary and Georgie. Robert does not cite any legal

authority in support of this issue, and we conclude the issue has been waived on

appeal.6 See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support

of an issue may be deemed waiver of that issue.”).

       B.      Robert also claims the estate, the trust, Mary, and Georgie waived

their objections to the untimely service of process because they did not raise the

issue in the petition for declaratory judgment, which he asserts constitutes a pre-

answer motion to dismiss. For the limited purposes of Robert’s argument, we will

accept the premise the petition for declaratory judgment was the equivalent of a

pre-answer motion to dismiss.7

       Under Iowa Rule of Civil Procedure 1.421(1)(c), “[i]nsufficiency of the

original notice or its service” may be raised in a pre-answer motion. Rule 1.421(4)

provides, “If a pre-answer motion does not contain any matter specified in rule

1.421(1) or 1.421(2) that matter shall be deemed waived, except lack of jurisdiction

of the subject matter or failure to state a claim upon which relief may be granted.”

The rule means “if one challenge is raised in a pre-answer motion, all challenges



6
    If we were to address the issue, we note where there is a petition to set aside a will
after the will had been admitted to probate, the rules of civil procedure apply. Iowa Code
§ 633.311; In re Estate of Steinberg, 443 N.W.2d 711, 712 (Iowa 1989). This includes the
rules concerning service of original notice. Steinberg, 443 N.W.2d at 713–14. We
additionally note actual notice is not a substitute for service of notice. See State v.
Kaufman, 201 N.W.2d 722, 724 (Iowa 1972).
7
   The district court found the petition for declaratory judgment “could not constitute as a
wavier or pre-answer motion in the present proceedings.”
                                            8


enumerated in subsections 1.421(1)(b)-(f), for which grounds exist at the time the

petition is filed, must be raised in that motion or be deemed waived, thus prohibiting

a party from filing multiple pre-answer motions.” Antolik v. McMahon, 744 N.W.2d

82, 84 (Iowa 2007). A pre-answer motion, however, is not the “sole avenue” to

challenge insufficiency of the service of notice. Id.

       The petition for declaratory judgment, filed by Mary and Georgie as trustees

on October 25, 2017, notes Robert had filed his petitions in the probate action and

states, “To the best knowledge of the trustees no other action has been taken to

serve the trustees or either of them with copies of the Claim or either Petition.

Neither trustee has received certified mail as required by [section] 663A.3110(2)(d)

for claims filed in a Trust.” The amended petition, filed on December 22, 2017,

further states, “No action was taken for more than 90 days to serve the trustees or

any Defendant with copies of the Claim or either Petition.” The amended petition

requests dismissal of Robert’s petitions based on untimely service of notice. We

conclude the petition for declaratory judgment and the subsequent amended

petition adequately raised the issue of insufficiency of the service of notice and

Mary and Georgie, as trustees, did not waive this issue.8 See Iowa R. Civ. P.

1.421(4).

       IV.     Untimely Service

       Iowa Rule of Civil Procedure 1.302(5) provides:

                If service of the original notice is not made upon the
       defendant, respondent, or other party to be served within 90 days
       after filing the petition, the court, upon motion or its own initiative after

8
   We further note the petition for declaratory judgment was filed by Mary and Georgie in
their capacity as trustees. The petition would not have waived their rights as executors or
individually.
                                            9


         notice to the party filing the petition, shall dismiss the action without
         prejudice as to that defendant, respondent, or other party to be
         served or direct an alternate time or manner of service. If the party
         filing the papers shows good cause for the failure of service, the court
         shall extend the time for service for an appropriate period.

         The evidence shows Robert did not serve notice to Mary or Georgie within

ninety days after he filed his petitions on September 18, 2017. He served Georgie

on December 28, 2017, and Mary on January 20, 2018. “When there is no service

within ninety days and no order extending the time for service, the delay is

presumptively abusive.” Palmer v. Hofman, 745 N.W.2d 745, 747 (Iowa Ct. App.

2008).

         Mary and Georgie claim Robert did not show good cause for the delay in

service. On appeal, we consider whether there is substantial evidence to support

the district court’s finding of good cause. See Crall v. Davis, 714 N.W.2d 616, 621

(Iowa 2006); Palmer, 745 N.W.2d at 747. Robert is required to justify the delay in

service. See Wilson v. Ribbens, 678 N.W.2d 417, 422 (Iowa 2004) (noting “we

have long required plaintiffs to justify certain delays in service”).

         The concept of good cause requires

         “[t]he plaintiff must have taken some affirmative action to effectuate
         service of process upon the defendant or have been prohibited,
         through no fault of his [or her] own, from taking such an affirmative
         action. Inadvertence, neglect, misunderstanding, ignorance of the
         rule or its burden, or half-hearted attempts at service have generally
         been waived as insufficient to show good cause. Moreover,
         intentional nonservice in order to delay the development of a civil
         action or to allow time for additional information to be gathered prior
         to ‘activating’ the lawsuit has been held to fall short of . . . good
         cause . . . .”

Meier v. Senecaut, 641 N.W.2d 532, 542 (Iowa 2002) (citation omitted).

         Additionally, the Iowa Supreme Court has stated:
                                           10


               [G]ood cause is likely (but not always) to be found when the
       plaintiff’s failure to complete service in timely fashion is a result of the
       conduct of a third person, typically the process server, the defendant
       has evaded service of the process or engaged in misleading conduct,
       the plaintiff has acted diligently in trying to effect service or there are
       understandable mitigating circumstances . . . .

Rucker, 828 N.W.2d at 600 (citation omitted). We consider “all the surrounding

circumstances” in determining whether a party has shown good cause for a delay

in service. Id. at 601.

       Within the ninety-day period, Robert’s attorney asked Metcalf if he could

accept service on behalf of the defendants, but Metcalf consistently stated he was

not authorized to accept service and only represented Mary and Georgie as

trustees. The email exchanges do not show an agreement for reciprocal service,

only an inquiry by Robert which was rejected by Metcalf, who stated, “[N]o I have

not been authorized to accept service.” We find there is not substantial evidence

in the record to support the district court’s finding Robert had a “good faith belief

that acceptance of service was reciprocal.” Also, the communications between

Ellwanger and Metcalf showed Metcalf informed Ellwanger he would not accept

service, so the court’s finding of “constant communication throughout these

proceedings” does not support a finding of good cause for a delay in service.

       The court’s finding, “all filings were electronic,” does not support a delay in

service. We have already discussed the petition for declaratory relief, filed on

October 25, 2017, which pointed out Robert had not yet served Mary and Georgie.

Additionally, we note because Metcalf was representing Mary and Georgie as

trustees, this would not lead to the “reasonable conclusion” he would represent

them as individuals, as Mary had an individual attorney for the motion to dismiss.
                                          11


       We agree Robert could not serve Mary and Georgie as executors within the

ninety days after he filed his petition because they were not appointed as executors

until December 27. Robert, however, could have sought an extension of time to

serve them within the ninety days, rather than letting the time period pass without

serving them. See Brubaker v. Estate of DeLong, 700 N.W.2d 323, 327 (Iowa

2005) (noting the court had granted extensions for service of notice).

       Considering all of the relevant circumstances, we conclude the district court

erred by finding there was good cause for the delay of service in this case. Robert

waited until late on the ninetieth day after he filed his petitions to send the original

notices and petitions to the sheriff, meaning they would not be served within the

ninety days. Thus, Robert waited until the service deadline to begin to take

affirmative steps to effectuate service of process.           “Inadvertence, neglect,

misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at

service have generally been waived as insufficient to show good cause.” Meier,

641 N.W.2d at 542.

       We reverse the court’s decision denying the motion to dismiss and remand

to the district court.

       REVERSED AND REMANDED.
