Archie's Steak House, Inc. v. Joe Rosenthal & Sons, Inc.

• Decision Date: 18 October 1978
• Docket Number: No. 60231,60231
• Parties: ARCHIE'S STEAK HOUSE, INC. and Chris Hansen Construction Company, Cross-Appellees, v. JOE ROSENTHAL & SONS, INC., Defendant, and A. Braunger Produce Company, Consolidated Foods Corporation, and Charles Cunningham, Cross-Appellants.
• Court: Iowa Supreme Court

Page 591

270 N.W.2d 591

ARCHIE'S STEAK HOUSE, INC. and Chris Hansen Construction Company, Cross-Appellees, v. JOE ROSENTHAL & SONS, INC., Defendant and A. Braunger Produce Company, Consolidated Foods Corporation, and Charles Cunningham, Cross-Appellants.

No. 60231.

Supreme Court of Iowa.

Oct. 18, 1978.

Rehearing Denied Nov. 17, 1978.

Patrick C. McCormick, Sioux City, for cross-appellant Braunger.

Jacobs, Gaul, Nymann & Green, Sioux City, for cross-appellant Consolidated Foods.

Margolin, Goldblatt, Stienstra, Ryan & Gildemeister, Sioux City, for cross-appellant Cunningham.

George T. Qualley Law Offices, Sioux City, Moyer, Moyer & Egley, Madison, Neb., and Malcolm Young Law Offices, Omaha, Neb., for cross-appellees.

Crary, Huff, Yates & Clem by Daryl L. Hecht, Sioux City, for Joe Rosenthal & Sons, Inc.

Considered by UHLENHOPP, P. J., and McCORMICK, McGIVERIN, ALLBEE and LARSON, JJ.

UHLENHOPP, Justice.

Plaintiffs Archie's Steak House and Hansen Construction sued defendants Joe Rosenthal & Sons, Braunger Produce, Consolidated Foods, and Cunningham on theories of wrongful use of civil proceedings, abuse of process, and interference with prospective business advantage. The jury found for plaintiffs by general verdict in the sum of $60,000. Defendants moved for judgment notwithstanding verdict and, in the event of adverse ruling, for new trial. The trial court overruled the motion for judgment notwithstanding and sustained the motion for new trial.

Plaintiffs appealed and all defendants except Rosenthal cross appealed. (We will refer to the three defendants who cross appealed as defendants.) Subsequently defendants moved to dismiss plaintiffs' appeal for noncompliance with an appellate rule, but this court denied the motion. Still later defendants moved to dismiss plaintiffs' appeal for noncompliance with several other rules of this court including rules relating to the appendix. This court sustained that motion on August 24, 1977, and dismissed plaintiffs' appeal. Thereafter plaintiffs moved for reconsideration of the dismissal and tendered an amended appendix and a brief, but this court denied the motion to reconsider on October 11, 1977.

Defendants then proceeded with their cross appeal by designating parts of the record for their appendix as well as plaintiffs' amended appendix. With plaintiffs' consent, this court permitted defendants so to use plaintiffs' amended appendix. On February 6, 1978, plaintiffs moved again for reconsideration of this court's order dismissing their appeal (by motion designated motion for leave to cross appeal). This court ordered that motion to be passed upon with the appeal, and subject thereto permitted plaintiffs to assert their issues as appellants in their answering brief.

Defendants then filed their cross-appellants' brief, plaintiffs filed their answering brief, and defendants filed their reply brief.

I. Plaintiffs' Appeal. Upon re-examination of the record and our original dismissal of plaintiffs' appeal, we see no sufficient reason for changing our order of dismissal. We therefore let that order stand and deny plaintiffs' motion for leave to cross appeal. We thus give no consideration to plaintiffs' issues as appellants in their answering brief.

II. Defendants' Cross Appeal. Plaintiffs assert at the outset in their answering brief, in connection with defendants' cross appeal, that defendants have no judgment or appealable order from which to appeal. See rule 1, Rules of Appellate Procedure. Defendants never sought permission to appeal from an interlocutory order.

When plaintiffs' appeal was originally dismissed, the only part of the case which remained in this court was defendants' cross appeal from the trial court's order denying defendants' motion for judgment notwithstanding. Plaintiffs contend that order is not appealable because the court did not sustain the motion for judgment and enter judgment but rather granted a new trial. Hence no final judgment exists in the district court from which defendants could appeal.

Some jurisdictions regulate this subject by specific statute or court rule. See Anno. 57 A.L.R.2d 1198. In the absence of regulation the rule is that where a new trial is granted, a contemporaneous order overruling a motion for judgment notwithstanding is not appealable by the movant since a final judgment terminating the case in the trial court does not exist. Wagner v. Burlington Industries, Inc., 423 F.2d 1319 (6 Cir.); Balicki v. Central Greyhound Lines Inc., 150 F.2d 402 (3 Cir.); Atlantic Coast Line R. R. v. Boone, 85 So.2d 834 (Fla.); Hartman v. Caddington, 255 Md. 651, 258 A.2d 740; Simon v. Larson, 207 Minn. 605, 292 N.W. 270; Luethans v. Lahey, 237 S.W.2d 209 (Mo.App.); Crooks v. Rust, 125 Wash. 563, 216 P. 869. For our definition of a "final judgment," see Wilson v. Corbin, 241 Iowa 226, 40 N.W.2d 472. But if the opposing party appeals under a statute or rule from the order granting a new trial, then the movant may cross-appeal from the overruling of his motion for judgment notwithstanding he endeavors to show that the trial court should have gone beyond the new-trial grant. Bonnevier v. Dairy Coop. Ass'n, 227 Or. 123, 361 P.2d 262. Illustrative cases of this kind are Pappas v. Evans, 242 Iowa 804, 48 N.W.2d 298, and Thompson v. Miller, 251 Iowa 324, 100 N.W.2d 410.

Iowa has no special regulation on appeals in the situation of the overruled motion for judgment notwithstanding. Appeals may be taken as of right from final judgments, failure to plead over under rule 86 of the rules of civil procedure, grants or denials of new trials, and orders setting aside dissolution decrees. Rule 1, Rules of Appellate Procedure. None of these situations exists here with respect to the present defendants the grant of new trial provision does not apply to defendants because they were the winners. Naturally they do not complain about the grant of that motion.

When the trial court denied defendants' motion for judgment notwithstanding, within 30 days defendants could have applied for permission to take an interlocutory appeal....