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IN THE COURT OF APPEALS OF IOWA No. 6-215 / 05-0041 Filed August 23, 2006 WALTER M. CALINGER, Plaintiff-Appellee, vs. KAY KONZ, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Montgomery County, J.C. Irvin, Judge.

The defendant appeals from a district court order that set aside a default judgment she had obtained against the plaintiff in a legal malpractice action. AFFIRMED.

John W. Kocourek of John W. Kocourek, P.C., Council Bluffs, for appellant. John J. Reefe, Jr., Omaha, Nebraska, and Michael O'Bradovich, Omaha, Nebraska, for appellee.

Considered by Zimmer, P.J., and Miller and Hecht, JJ.

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MILLER, J. Kay Konz appeals from a district court order that set aside the 1993 default judgment she obtained in her legal malpractice action against Walter Calinger. We affirm the district court. I. Background Facts and Proceedings. Calinger, an Omaha, Nebraska attorney, represented Konz in an Iowa workers' compensation proceeding. Konz's claim was dismissed by the deputy workers' compensation commission in 1988 after Calinger, who had since been appointed the mayor of Omaha, failed to respond to an order to show cause. The workers' compensation commissioner affirmed the dismissal, and the agency's decision was upheld by our supreme court. See Konz v. University of Iowa, No. 89-1648 (Iowa July 17, 1991). In May 1992 Konz filed a legal malpractice action against Calinger. Konz attempted to personally serve Calinger at the Red Oak, Iowa law office of LaVon Billings, which Calinger had used as his professional Iowa address. The return came back as an unsuccessful diligent search, with a notation that "last they knew at the" Red Oak office, Calinger "is in South America." Calinger had in fact been residing in Santiago, Chile since the summer of 1991, and working at Santiago College. Konz attempted to obtain Calinger's current address from numerous sources. Konz's attorney instructed a paralegal to obtain a current address for Calinger from the county courthouse. The paralegal obtained the following

purported address from an unspecified source at Omaha's city hall: Los Leones

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385, Dept. 102, Providencia, Santiago, Chile. This was the only address Konz was able to obtain for Calinger. Konz accordingly attempted to serve Calinger under Iowa Code section 617.3 (1991), the long-arm statute. In August 1992 she mailed an original notice to Calinger, restricted mail, at the Los Leones 385 address. The notice was returned with a stamp indicating it had been received in Chile, but without any indication delivery had been attempted or why it was being returned. Konz also hired a search firm to attempt personal service on Calinger in Chile. In June 1993, after several months passed without any indication the search firm had been successful, Konz sought and obtained an order of default. In an August 1993 hearing Konz's damages were established to be $1.5 million, and judgment was entered against Calinger in that amount. Sometime after

entry of default but prior to the judgment entry, Calinger returned to the United States and established his residence in Colorado. Following judgment entry, the search firm informed Konz that Calinger was "never available for service despite numerous attempts in Chile." Konz also filed an ethics complaint against Calinger with the Nebraska Bar Association. Communications between the bar association and Calinger were accomplished through another Omaha attorney, Jerry Pettit. Konz's attorney

provided Pettit a copy of the default judgment and asked for Calinger's address and information regarding Calinger's malpractice insurer. At Calinger's request, Pettit refused to disclose Calinger's current address. Calinger denied Pettit

informed him of the default judgment, and there is no evidence Calinger was in

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fact informed of the judgment before being contacted directly by Konz's attorney sometime in 1995. Calinger eventually moved to Ohio, and Konz subsequently registered her judgment in Ohio. Calinger then filed a claim, in June 2001, under a malpractice insurance policy he had held in 1989 and 1990. The insurer filed an action in Nebraska requesting a declaratory judgment that it was not required to provide coverage for Calinger on Konz's judgment. The district court granted the insurer summary judgment, which was affirmed on appeal to the Nebraska Supreme Court. Continental Cas. Co. v. Calinger, 657 N.W.2d 925, 927 (Neb. 2003). In October 2001 Calinger filed the present action, seeking to set aside Konz's default judgment and for an injunction to prevent execution and enforcement of the judgment. Calinger asserted the judgment was void for lack of personal jurisdiction. The matter came for trial before the district court in January 2004. Calinger denied receiving a copy of the original notice and

presented evidence, in the form of tax returns and personal testimony, that he had never lived at the address to which the original notice was mailed. The district court determined Konz had failed to comply with section 617.3 because the address she used was not Calinger's, there was no adequate showing of the source of the address, Calinger could not be charged with failure to respond, and the address used was not reasonably calculated to give Calinger notice. The court accordingly granted Calinger's petition and set aside the

default judgment. Konz filed a motion for additional findings, requesting the court rule on her affirmative defenses, "the gravemen" of which "is laches." The court

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denied the motion, determining Calinger had no obligation "to take any action" against the void judgment until Konz sought to enforce it. Konz appeals. She asserts the court erred in finding Calinger's testimony credible, and in not finding Calinger had intentionally prevented his address from being known and had willfully evaded service. She asserts the court further erred in determining she had not complied with the long-arm statute. Finally, she contends that even if she failed to comply with the long-arm statute, under the unique circumstances of this case her judgment should not be set aside. 1 II. Scope and Standard of Review. The petition in this matter was docketed in equity, the parties agree this case was tried in equity, and although it ruled on some objections the district court stated this was an equity matter. Accordingly, our review is de novo. Iowa R. App. P. 6.4; Molo Oil Co. v. City of Dubuque, 692 N.W.2d 686, 690 (Iowa 2005) (providing review is governed by how case was tried below). Although not bound by the district court's factual findings, we give them weight, especially when assessing the credibility of witnesses. Iowa R. App. P. 6.14(6)(g). III. Discussion. We turn first to Konz's claims regarding Calinger's credibility and the district court's factual findings. Konz takes great pains to point out

inconsistencies in various statements and assertions by Calinger, and a pattern of behavior by Calinger that could support a conclusion he was attempting to

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Konz also asserts the district court failed to consider her affirmative defense of equitable estoppel. Even if we assume Konz's answer was sufficient to raise such a defense, it was neither ruled on by the district court, nor raised as an omission in Konz's post-ruling motion. Therefore error, if any, was not preserved. See Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995).

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evade service. However the district court, which had the ability to observe the witnesses as well as consider the content of their testimony, gave credence to many if not all of Calinger's assertions. While portions of the record do tend to impugn the veracity of some of Calinger's statements, his testimony is not so self-contradictory or unbelievable as to warrant setting aside the district court's credibility assessments and factual findings. With that determination in mind, we turn to the question of whether Konz complied with section 617.3, Iowa's long-arm statute. At issue is whether Konz mailed the original notice to Calinger "at an address in the state of residence." Iowa Code

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