                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0946
                               Filed July 30, 2014


CHARLES BOYLES,
    Plaintiff-Appellant,

vs.

DIEOMATIC, INCORPORATED,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Iowa County, Douglas S. Russell,

Judge.



      Charles Boyles appeals the denial of his application to reinstate his

petition. AFFIRMED.




      Eric D. Tindal of Nidey Erdahl Tindal & Fisher, PLC, Williamsburg, for

appellant.

      Gary R. Fischer and Michael S. Eganhouse of Simpson, Jensen, Abels,

Fischer & Bouslog, P.C., Des Moines, for appellee.



      Considered by Vaitheswaran, P.J., Bower, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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EISENHAUER, S.J.

       Charles Boyles appeals the denial of his application to reinstate his

petition after it was dismissed by operation of Iowa Rule of Civil Procedure 1.944

for failure to prosecute. He also seeks to overturn the ruling granting summary

judgment in favor of the defendant, Dieomatic, Incorporated. Our review is for

correction of errors at law. See Tiffany v. Brenton State Bank, 508 N.W.2d 87,

90 (Iowa Ct. App. 1993).

       On December 21, 2010, Boyles filed his breach-of-contract action against

Dieomatic, claiming Dieomatic had miscalculated the amount of his pension. The

matter was set for trial on September 25, 2012, but was continued at Dieomatic’s

request on September 17, 2012.          The same day, the court entered a ruling

granting summary judgment in favor of Dieomatic on the one contested issue in

the case.1 Accordingly, no new trial date was set, and the petition was dismissed

on January 1, 2013, pursuant to rule 1.944.2

       Boyles filed an application to reinstate the action on April 29, 2013, within

the six-month period the court may reinstate an action. See Iowa R. Civ. P.

1.944(6). Although Boyles’s counsel characterized his failure to comply with rule

1.944 or obtain an exception to the rule as “oversight” at the reinstatement

hearing, his application for reinstatement failed to state whether he was entitled

1
  The court ruled “the Corporation” set out in the contract refers to Victor Manufacturing
and not to Dieomatic, Incorporated.
2
  The rule provides:
                 All cases at law or in equity where the petition has been filed more
        than one year prior to July 15 of any year shall be tried prior to January 1
        of the next succeeding year . . . or dismissed without prejudice at
        plaintiff’s costs unless satisfactory reasons for want of prosecution or
        grounds for continuance be shown by application and ruling thereon after
        notice and not ex parte.
Iowa R. Civ. P. 1.944(2).
                                         3

to mandatory reinstatement.        See Iowa R. Civ. P. 1.944(6) (providing

reinstatement is mandatory if dismissal was the result of oversight, mistake, or

other reasonable cause, and is otherwise discretionary). Regardless of whether

Boyles is seeking mandatory or discretionary reinstatement, he must prove his

counsel exercised reasonable diligence in preparing and pursuing the case for

trial. See Tiffany, 508 N.W.2d at 90-91. He fails to meet this burden.

       Boyles’s argument for reinstatement is contained in one paragraph of his

appellate brief and can be summarized as follows: Boyles was prepared to go to

trial in September 2012, and it was Dieomatic who delayed trial by requesting a

continuance. While both are true, his argument ignores the facts that led to the

continuance and his failure to act after it was granted.      Dieomatic sought a

continuance eleven days before trial in part because the trial court had not yet

ruled on its motion for summary judgment, which Dieomatic believed would be

dispositive of the issue to be tried. Although the order granting the continuance

was entered the same day as the summary judgment ruling, a trial-scheduling

conference was set for October 16, 2012. No new trial date was selected at that

conference, however, because Dieomatic’s attorney informed the court

administrator he believed the summary judgment ruling disposed of the only

issue in the case and Boyles’s representative at the hearing stated she did not

have enough information to respond. If Boyles believed a trial was necessary,

his attorney was to contact the court administrator to set a trial date, but Boyles

took no further action to pursue the case. He did not attempt to set a trial date or

obtain a continuance, even after a notice of dismissal was sent. He did not

otherwise seek court action, even though he admits in his application to reinstate
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“the order concerning summary judgment eliminates the issues contested

between the parties.” On this record, we conclude Boyles’s counsel failed to

exercise reasonable diligence and affirm the denial of Boyles’s application to

reinstate.

       The bulk of Boyles’s argument on appeal is directed at overturning the

court’s summary judgment ruling, which disposed of the only issue in the

underlying breach-of-contract action.    Boyles failed to appeal the summary

judgment ruling within thirty days of its entry as is required under Iowa Rule of

Appellate Procedure 6.101(2)(b).     Instead, he claims he preserved error by

appealing the denial of his application to reinstate, which also requested a ruling

on whether the summary judgment ruling was a final order. Boyles fails to outline

an argument regarding error preservation, though implicit in his preservation

statement is his belief the summary judgment ruling was an interlocutory order,

which became reviewable upon an appeal from the final judgment. See Johnson

v. Iowa State Highway Comm’n, 134 N.W.2d 916, 918 (Iowa 1965).               Even

assuming this is true, this court would then have to find the dismissal without

prejudice pursuant to rule 1.944 was a final order, and by filing an application to

reinstate four months later and appealing its denial, Boyle preserved error to

allow review of the merits of the summary judgment ruling. Boyles does not

make this argument, and we will not assume a partisan role in undertaking his

research and advocacy. See Hanson v. Harveys Casino Hotel, 652 N.W.2d 841,
                                           5


843 (Iowa Ct. App. 2002).          Regardless, affirming the denial of Boyles’s

application to reinstate has rendered the issue moot.3

       AFFIRMED.




3
 Dieomatic moved to dismiss or summarily affirm Boyles’s appeal, arguing this court is
without jurisdiction because he failed to timely appeal the summary judgment ruling. Our
supreme court denied the motion without prejudice, allowing Dieomatic to assert these
arguments in its brief. For the reasons stated, we decline to reach the timeliness
question.
