Court of Appeals of Iowa.

BEST WAY SERVICES, L.L.C., Plaintiff/Counterclaim Defendant–Appellant,

v.

LAKEVILLE MOTOR EXPRESS, INC., Defendant/Counterclaim Plaintiff–Appellee.

No. 14–1824. | Aug. 5, 2015.

Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.

Best Way Services, L.L.C. appeals from judgment entered in favor of Lakeville Motor Express, Inc. on its breach-of-contract counterclaim. AFFIRMED.

Attorneys and Law Firms

David J. Hellstern of Sullivan & Ward, P.C., West Des Moines, for appellant.

Scott M. Flaherty and Michael W. Kaphing of Briggs and Morgan, P.A., Minneapolis, Minnesota, for appellee.

Considered by DANILSON, C.J., and VAITHESWARAN and DOYLE, JJ.

Opinion

DANILSON, C.J.

 

*1 This is a breach-of-contract claim between trucking services. The issue between the parties is whether a modification of their agreement was applicable to only “one way trips” as Lakeville Motor Express (LME) urged or for all trips as argued by Best Way Services, L.L.C. (Best Way). Best Way ran loads on behalf of LME from 2007 to 2013. Prior to January 2012, Best Way ran all loads for LME pursuant to a Motor Carrier Contract Agreement with an agreed upon rate of $1.10 for all miles—all trips Best Way ran for LME were round-trip.

 

In December 2011, LME offered Best Way the option of one-way jobs on two routes: (1) from Des Moines, Iowa, to Chino, California, and (2) from Des Moines, Iowa, to Dallas, Texas. On January 3, 2012, the parties entered into written modifications.

 

The modifications provided that Best Way would receive compensation of “$1.39 Per Mile for all loaded an [sic1] empty dispatched miles with proper trip authorization. 1740 miles DSM–CNO.”2 And Best Way would receive compensation at a rate of “$1.77 Per Mile for all loaded an[d] empty dispatched miles with proper trip authorization. DSM–DAL 754 miles.”3

 

In March 2012, LME’s Chino freight was moved to a different destinationLas Vegas, Nevada. LME agreed to compensate Best Way $1.80 per mile for Des Moines to Las Vegas. LME’s Steve Gazich wrote an e-mail to LME’s accounts payable department on March 7, 2012, that “Best Way will have a new 1 Way rate from DSM to Las Vegas, NV. The new rate is $1.80 per mile 1 way DSM to VGS.”

 

From January to March 2012, Best Way invoiced LME at a rate of $1 .10 per mile on Des Moines to Chino round trips, but at $1.39 per mile on Des Moines to Chino one-way trips. Through January 2012, Best Way invoiced LME at a rate of $1.10 on Des Moines to Dallas round trips.

 

In March 2012, Best Way began to invoice LME for all trips to Dallas at $1.77 per mile and to Las Vegas at $1.80 per mile—one way and round trip. LME paid ninety-five invoices between March and November at these higher rates. However, in December 2012, LME conducted a review of its invoices and concluded it had overpaid Best Way $186,561.78 on round trips between Des Moines and Dallas and Des Moines and Las Vegas.

 

In January 2013, LME withheld payment of twenty-eight invoices submitted by Best Way totaling $105,445.44. LME thereafter stopped using Best Way as a carrier, and Best Way filed suit for payment of the withheld January payments. LME admits it owes Best Way $97,532.64 for 2013 invoices. LME counterclaimed for recovery of $89,029.14 in overcharges by Best Way.

 

The case was tried to the court. Best Way’s owner, Besim Smajlovic, acknowledged that in January 2012 Best Way invoiced LME at a rate of $1.10 for Des Moines/Chino round-trip jobs and $1.39 for Des Moines to Chino one-way jobs. He also acknowledged that at least through January 2012 Best Way invoiced LME at a rate of $1.10 for Des Moines/Dallas round-trip jobs and $1.79 for Des Moines to Dallas one-way jobs. When asked why Best Way charged $1.10 between January and March 2012, he responded, “It shouldn’t be. I didn’t do the invoice; my payroll. You know, the guy, the employee does. So I don’t know. It could be a mistake.”

 

*2 LME’s Sanford testified it is an industry standard to pay a higher rate for one-way transportation to compensate the risk of the transportation provider (here, Best Way) of not finding return-trip work. Sanford testified he handwrote “1740 miles DSM–CNO” for the $1.39 rate to Chino because,

through conversations prior to doing the written agreement, I wanted to make sure that we clearly knew what the differentiation was and that’s why I spelled it out. And only from the origin to the destination with the specified miles in there and for one-way trips. That’s why I only put origin and destination and not the return.

Sanford testified he asked Best Way to dedicate an additional ten trailers between Des Moines and Chino.

Q. Why did they add those trailers? A. I asked them to add trailers because in order to be compensated at the higher rate for one ways and the fact that they would be going to-solicit business at the other end, I needed them to put capital in because I couldn’t justify changing from a previous carrier to them without them putting some capital into the lanes, because they are going to get other business once they get done in Chino or done in Dallas with the route we gave them. So the return business is other customers.

Q. When they did return business for other customers, did they ever use LME trailers for that business? A. Yes.

Q. Do you know about how often they used LME trailers? A. I did the best I could to identify, and I had 74 times.

Q. And those are trips not for LME but using LME’s trailers; is that right? A. Yes.

Q. And was that a problem for LME? A. No.

Q. Why not? A. Because we utilized their equipment coming back in the lane when—similar to what I described earlier. We would move trailers for other carriers in those one ways should they be out of position, or not be loaded correctly and they had to take our trailers, so then we in turn would take their trailer in the same lane.

Sanford testified he also specifically handwrote on the Dallas contract appendix “DSM–DAL 754 miles.”

 

Best Way argued the submitted evidence showing LME received and paid ninety-five 2012 invoices without challenge at the higher rates, indicating the written agreement modified the compensable rate on all miles driven by Best Way for LME. LME argued the increased rates applied only to one-way trips.

 

The district court observed it was Best Way’s burden to establish by a preponderance of the evidence that the increased rates ($1.77 to Dallas and $1.80 to Las Vegas) applied to all miles and not one-way routes only. See Moody v. Bogue, 310 N.W.2d 655, 660 (Iowa Ct.App.1981). The court concluded Best Way had failed to meet that burden.

 

Best Way appeals.

 

Our review of a case tried to the district court is for corrections of errors at law. Hall v. Jennie Edmundson Mem’l Hosp ., 812 N.W.2d 681, 684 (Iowa 2012). The district court’s findings of fact have the effect of a special verdict and are binding on us if supported by substantial evidence. Id. We view the evidence in the light most favorable to the trial court’s judgment. Miller v. Rohling, 720 N.W.2d 562, 567 (Iowa 2006). Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 490 (Iowa 2000). Evidence is not insubstantial merely because it would have supported contrary inferences. Id.

 

*3 The district court’s findings in favor of LME’s interpretation are supported by substantial evidence. In particular, the district court found credible that the industry and LME’s standard was to pay a higher rate for “one ways,” and after the modification, Best Way was temporarily invoicing consistent with LME’s interpretation of the rate increase. Further opinion would not augment or clarify existing case law. We therefore affirm without further opinion. See Iowa Ct. R. 21.26(1)(a)-(e).

 

AFFIRMED.

 

All Citations

Slip Copy, 2015 WL 4642552 (Table)

 

 

Footnotes

 

1

 

At trial, the phrase was read as “all loaded and empty dispatched miles with proper trip operation.”

 

2

 

The “1740 miles DSM–CNO” was hand-written by LME’s vice president of operations, Michael Sanford.

 

3

 

Sanford also hand-wrote “DSM–DAL 754 miles.”

 

 

United States District Court,

S.D. Georgia,

Brunswick Division.

Katrina CUMMINGS, Plaintiff,

v.

James Richard DOUBERLY, Defendant.

No. CV 214–152. | Signed July 21, 2015.

 

 

ORDER

LISA GODBEY WOOD, Chief Judge.

*1 Plaintiff Katrina Cummings seeks to renew her dismissed complaint, which alleges violations of her constitutional rights under 42 U.S.C. § 1983, against Defendant James Richard Douberly. See Dkt. no. 1 (“Renewed Complaint”). This Court dismissed Plaintiff’s original complaint without prejudice in a prior action because Plaintiff failed to show proof that she had effectuated timely service on Defendant. She now comes before the Court with proof of untimely service on Defendant, and Defendant has moved to dismiss the Renewed Complaint as timebarred. Dkt. no. 5. This Court converted the Motion to Dismiss into a Motion for Summary Judgment. Dkt. no. 12. Because the prior complaint was dismissed by a judicial determination that dismissal was authorized, the prior action was void and thus isnot renewable under Georgia’s renewal statute. Therefore, Defendant’s Motion for Summary Judgment (Dkt. no. 5) is GRANTED.

 

 

FACTUAL AND PROCEDURAL HISTORY

Plaintiff alleges that on April 27, 2011, she returned from the store to find several police officers around her home. Dkt. no. 1, ¶¶ 5–9. A man had fled police and entered her home, and the police wanted to search inside for him. Id. Plaintiff says that when she asked the police why they wanted her consent to search her home, the “officers became upset.” Id. ¶ 10. Plaintiff ultimately consented to the search on the condition that the police first allow her to remove her children from the home. Id. ¶ 11. Plaintiff says that after police searched her home and arrested the fugitive, Defendant Douberly had her arrested, without probable cause and for malicious purposes, for obstructing or hindering law enforcement officers. Id. ¶ 12. Plaintiff claims the arrest violated her constitutional rights, “including but not limited to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.” Id. ¶ 13.

 

Plaintiff, who is represented by counsel, filed her first complaint against Defendant on April 22, 2013, just a few days before Georgia’s two-year statute of limitations for personal injury claims would expire. See Complaint (Dkt. no. 1), Cummings v. Douberly et al., 2:13–CV–59 (S.D.Ga. Apr. 22, 2013)1; Ga.Code Ann. § 9–3–33. On October 11, 2013, Defendant moved to dismiss the complaint for failure to make timely service. See Def.’s Mot. to Dismiss (Dkt. no. 7), Cummings v. Douberly et al., 2:13–CV–59 (S.D.Ga. Oct. 11, 2013). This Court granted Defendant’s motion to dismiss the first complaint on April 7, 2014, because Plaintiff failed to show proof that she had effectuated service on Defendant even after being given extra time to do so. See Order Granting Def.’s Mot. to Dismiss (Dkt. no. 14), Cummings v. Douberly et al., 2:13–CV–59 (S.D.Ga. Apr. 7, 2014) (“Cummings I Order”).

 

Plaintiff filed her Renewed Complaint against Defendant in the present action on October 6, 2014, one day within Georgia’s six-month window for recommencing discontinued or dismissed cases, but more than three years after the right of action accrued. See Dkt. no. 1; Ga.Code Ann. § 9–2–61(a); § 9–3–33. Plaintiff has provided a copy of the Summons on Defendant, which indicates service on December 5, 2013–some two years, seven months, and eight days after the alleged constitutional violations were committed and 106 days after Plaintiff was afforded a 30–day extension by the Magistrate Judge to effectuate service on Defendant. See Dkt. no. 8–1. Thus, the copy of the Summons shows that Plaintiff served Defendant in the prior action after Defendant filed his motion to dismiss for untimely service in October 2013, but before the Court granted that motion in April 2014. For some unexplained reason, Plaintiff never presented this Court the summons in the prior action, even when faced with a motion to dismiss due to lack of service.

 

*2 Defendant has filed a Motion to Dismiss the Renewed Complaint, arguing that this suit is barred by the statute of limitations and cannot be saved by Georgia’s tolling provision for renewal actions. Dkt. no. 5. Because Plaintiff, as the nonmovant, filed an extraneous document in her opposition to Defendant’s Motion to Dismiss purporting to show that Defendant was eventually served, the Court converted Defendant’s Motion to Dismiss into a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 12(d). See Dkt. no. 12. The Court allowed the parties ten days to supplement the record. Id. Defendant promptly responded with additional argument. Dkt. no. 13. Plaintiff filed a late response, but did not otherwise attempt to introduce new evidence for the Court’s consideration. Dkt. no. 14. Defendant’s Motion to Dismiss is thus ripe for adjudication as a Motion for Summary Judgment.

 

 

LEGAL STANDARD

When considering a motion for summary judgment the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The dispute in this case turns solely on the interpretation of Georgia’s renewal statute and its resultant case law.

 

 

DISCUSSION

Under Georgia’s renewal statute,

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later …

Ga.Code Ann. § 9–2–61(a). “The privilege of dismissal and renewal does not apply to cases decided on their merits or to void cases.” Tate v. Coastal Utils., Inc., 545 S.E.2d 124, 126 (Ga.Ct.App.2001). An action is “void” under one of two circumstances: (1) if service is never perfected, and (2) if there has been a judicial determination that dismissal is authorized and such an order has been entered. See id. “However, unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.” Id. (quoting Hobbs v. Arthur, 444 S.E.2d 322, 323 (Ga.1994)).

 

The central issue in this case is whether Plaintiff’s prior action against Defendant was void. Plaintiff argues that even though her prior action was dismissed for failure to perfect service, Defendant was nevertheless served. According to Plaintiff, “[a]ny delay in service in the prior action is essentially irrelevant in this action.” Dkt. no. 8, p. 2 (citing Hobbs v. Arthur, 444 S.E.2d 322 (Ga.1994)).

 

The circumstances in this case are distinguishable from Hobbs. In Hobbs, the Georgia Supreme Court held that an action was voidable, but not void, where (1) the plaintiff had served the defendant after the service period in the original action; (2) the plaintiff then voluntarily dismissed his complaint; and (3) the dismissal came before the trial court ruled on the defendant’s motion for summary judgment. Hobbs, 444 S.E.2d at 323–24. But here, Plaintiff did not voluntarily dismiss her prior action before the Court granted Defendant’s motion to dismiss. See Cummings I Order. Because the Court entered an Order dismissing the otherwise valid action, Plaintiff’s initial suit was void and cannot be renewed under Georgia’s renewal statute. See Hobbs, 444 S.E.2d at 323 (“A suit is also void and incapable of renewal under OCGA § 9–2–61(a) if there has been a judicial determination that dismissal is authorized. However, unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.”).

 

*3 In fact, as opposed to Hobbs, this case is on all fours with Tate. In Tate, the plaintiffs brought suit against the defendant trucking company and its driver in federal district court just days within the statute of limitations for their personal injury claims arising from a multi-vehicle accident. Tate, 545 S.E.2d at 125. The district court ordered plaintiffs to provide proof that the defendants had been served within the time limits of Federal Rule of Civil Procedure 4(m). Id. Later, the district court dismissed the defendants from the litigation, having found that plaintiffs “failed to provide the required proof of service.” Id. However, plaintiffs had actually effectuated service three days before the court issued its order. Id. In light of this fact, the district court issued another order reaffirming that the plaintiffs had “failed to show good cause for their failure to serve defendants within the 120 day service period,” and also finding that the plaintiffs “failed to diligently serve defendants [ … ] after the expiration of the statute of limitations as required under Georgia law,” and were thus “guilty of laches because they have indulged in unreasonable delays without excuse.” Id. In concluding that the claims against the defendants should remain dismissed, the district court nevertheless granted the plaintiffs’ alternative motion to dismiss the action without prejudice for the express purpose of renewing the action pursuant to Georgia’s renewal statute. Id. at 125–26.

 

Upon renewal, the Georgia Superior Court determined, and the Court of Appeals affirmed, that the initial suit was void because the prior action was not commenced within the applicable statute of limitation “since service had not been timely perfected.” Id. at 126–27. Nor was it “dismissed voluntarily at the plaintiff’s behest.” Id. There had also been a judicial determination that dismissal was authorized. Id. at 126–127. Thus, even upon a dismissal without prejudice for the stated purpose of allowing plaintiffs to renew their action under Georgia’s renewal statute, a case cannot be renewed, under any circumstances, if it is void.

 

The prior action in this case was void. Plaintiff failed to show that she ever served Defendant in the prior action, and her case was dismissed accordingly. It does not matter that Plaintiff actually served Defendant before the Court dismissed the case for two reasons. First, just as in Tate, that service was still 76 days too late, and was thus untimely.2 Second, also echoing Tate, Plaintiff failed to show good cause for her delay in effectuating service or that she had exercised due diligence in doing so.

 

It is also of no consequence that the prior action was dismissed without prejudice. The district court in Tate dismissed the plaintiffs’ case without prejudice expressly so they could take advantage of Georgia’s renewal statute-but the Georgia Superior and Appellate Courts still refused the plaintiffs their mulligan. Plaintiff in this case lacks even the prior Court’s blessing for renewal. As the Court noted in its prior Order, “given the timing of Plaintiff’s actions, or, more precisely, inactions, a dismissal without prejudice may be tantamount to a dismissal with prejudice.” Cummings I Order, p. 4 n. 2. Indeed it was.

 

*4 Thus, Plaintiff’s prior action against Defendant was void and cannot be renewed under the renewal statute. Her instant complaint was filed beyond the two-year statute of limitations period governing 42 U.S.C. § 1983 claims. Therefore, Defendant’s Motion for Summary Judgment (Dkt. no. 5) must be GRANTED. The Clerk of Court is directed to enter the appropriate judgment.

 

SO ORDERED.

 

All Citations

Slip Copy, 2015 WL 4477940

 

 

Footnotes

 

1

 

This Court takes judicial notice of the public records-such as Plaintiff’s complaint and this Court’s own Orders-pertaining to Plaintiff’s prior action, Cummings v. Douberly et al., 2:13–CV–59 (S.D.Ga. Feb. 11, 2015).

 

2

 

Per Rule 4(m), Plaintiff had 120 days after the complaint in the original action was filed on April 22, 2013, to serve Defendant. The Magistrate Judge granted her request for an extension, affording her an additional 30 days to perfect service. See Cummings I Order, p. 1. The summons was not served until December 5, 2015, 226 days after the complaint was filed, or 76 days after service would have been timely.