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Case No. 17-1960

Brett Weichers
v.
Monkey, Inc., d/b/a Tony's La Pizzeria

Appellee

Brett Weichers

Appellant

Monkey, Inc., d/b/a Tony's La Pizzeria

Attorneys for Appellee

Eashaan Vajpeyi

Attorneys for Appellant

Rene Charles Lapierre

Court of Appeals

Court of Appeals Opinion

Opinion Number:
17-1960
Date Published:
Feb 06, 2019
Summary

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  Dissent by Doyle, J.  (10 pages)

            In this interlocutory appeal, Monkey, Inc., d/b/a Tony’s La Pizzeria (“Tony’s”), challenges the district court’s denial of its motion for summary judgment, arguing there is no genuine issue of material fact that plaintiff Brett Weichers failed to notify the dram shop of his claim within six months as required by Iowa Code section 123.93 (2015) and Weichers failed to produce any evidence that he qualified for any of the exceptions to the notice requirement under that section.  OPINION HOLDS: Upon our review, we conclude Weichers did not comply with the statutory notice provision and the “reasonable diligence” basis for extending the statutory deadline was inapplicable.  We reverse and remand for entry of summary judgment in favor of Tony’s.  DISSENT ASSERTS: I respectfully dissent.  Under the facts presented, I agree with the district court’s conclusion that “a question of fact exists for the jury’s determination relative to the diligence exercised by the plaintiff in discovering the dram shop action against Defendant Tony’s.”  I would affirm the district court’s denial of the motion for summary judgment.

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