Beck v. Fleener, 84-863

CourtUnited States State Supreme Court of Iowa
Writing for the CourtConsidered by REYNOLDSON; McCORMICK
Citation376 N.W.2d 594
PartiesBarry BECK and Anna Beck, and John Joseph Beck and Lisa Marie Beck, Minors, by their Mother and Next Friend Anna Beck, Appellants, v. Michael J. FLEENER and Spring Park Oral and Maxillofacial Surgery Associates, P.C., Appellees.
Docket NumberNo. 84-863,84-863
Decision Date13 November 1985

Page 594

376 N.W.2d 594
Barry BECK and Anna Beck, and John Joseph Beck and Lisa Marie Beck, Minors, by their Mother and Next Friend Anna Beck, Appellants,
v.
Michael J. FLEENER and Spring Park Oral and Maxillofacial Surgery Associates, P.C., Appellees.
No. 84-863.
Supreme Court of Iowa.
Nov. 13, 1985.

Page 595

Arthur L. Buzzell and Richard I. Vesole of Newport & Buzzell, Davenport, for appellants.

Thomas J. Shields and Robert V.P. Waterman, Jr., of Lane & Waterman, Davenport, for appellees.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McCORMICK, SCHULTZ and WOLLE, JJ.

McCORMICK, Justice.

This appeal involves questions of jurisdiction, error preservation and the correctness of one of the court's instructions. We conclude we have jurisdiction, pass the question of error preservation, and find no reversible error in the challenged instruction. Therefore we affirm the trial court.

Anna Beck, her husband Barry, and their children John and Lisa, brought the action against defendants Michael J. Fleener, an oral surgeon, and the professional corporation by which Dr. Fleener was employed, seeking damages based on injuries to Anna caused by the alleged malpractice of Dr. Fleener. The case was tried to a jury which returned a verdict for defendants. Plaintiffs filed posttrial motions which were overruled. This appeal followed.

I. Jurisdiction. The jurisdictional question arises from the fact plaintiffs did not take their appeal within thirty days of the trial court's order overruling their motion for new trial. The motion for new trial, alleging error in an instruction, was

Page 596

overruled on February 27, 1984. Nine days later, on March 8, 1984, plaintiffs filed a motion to reconsider. The trial court overruled that motion on April 2, 1984. Plaintiffs filed their notice of appeal on May 1, 1984, within thirty days of the order overruling their motion to reconsider but sixty-two days after the order overruling their motion for new trial.

The time for appeal is prescribed by Iowa Rule of Appellate Procedure 5(a). In relevant part the rule provides that "appeals to the supreme court must be taken within, and not after, thirty days from the entry of the order, judgment, or decree, unless a motion for new trial or judgment notwithstanding the verdict, or a motion as provided in R.C.P. 179(b), is filed, and then within thirty days after the entry of the ruling on such motion...." If the appeal was untimely, we must dismiss it even though defendants did not raise the issue. See Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978).

Because plaintiffs' appeal was not taken within thirty days of the order overruling their motion for new trial, we have jurisdiction of the appeal only if their motion to reconsider was a motion provided for in Iowa Rule of Civil Procedure 179(b). Rule 179 provides:

(a) The court trying an issue of fact without a jury, whether by equitable or ordinary proceedings, shall find the facts in writing, separately stating its conclusions of law; and direct an appropriate judgment. No request for findings is necessary for purposes of review. Findings of a master shall be deemed those of the court to the extent it adopts them.

(b) On motion joined with or filed within the time allowed for a motion for new trial, the findings and conclusions may be enlarged or amended and the judgment or decree modified accordingly or a different judgment or decree substituted. But a party, on appeal, may challenge the sufficiency of the evidence to sustain any finding without having objected to it by such motion or otherwise.

Except as provided in rules 237(c) and 333(c), not applicable here, a rule 179(b) motion lies only when addressed to a ruling made upon trial of an issue of fact without a jury. Kunau v. Miller, 328 N.W.2d 529, 530 (Iowa 1983). The question thus is whether the hearing on plaintiffs' motion for new trial constituted a trial of an issue of fact without a jury within the meaning of rule 179. See Kagin's Numismatic...

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24 cases
  • Hedlund v. State, 18-0567
    • United States
    • United States State Supreme Court of Iowa
    • 28 June 2019
    ...North Printing Co. , 618 N.W.2d 282, 285 (Iowa 2000) (en banc); Schermer v. Muller , 380 N.W.2d 684, 687 (Iowa 1986) ; Beck v. Fleener , 376 N.W.2d 594, 597 (Iowa 1985) (en banc); State v. O'Connell , 275 N.W.2d 197, 205 (Iowa 1979) (en banc). Thus, we long ago crossed the Desert Palace bri......
  • Baur v. Baur Farms, Inc., 11–0601.
    • United States
    • United States State Supreme Court of Iowa
    • 15 July 2013
    ...if Jack's motion requesting findings on elements of his cause of action constituted a proper rule 1.904(2) motion. See Beck v. Fleener, 376 N.W.2d 594, 596 (Iowa 1985). Rule 1.904(2) provides that the “findings and conclusions” of the district court may be enlarged or amended and the judgme......
  • Zeigler v. Fisher-Price, Inc., No. C01-3089-PAZ (N.D. Iowa 7/1/2003), C01-3089-PAZ.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • 1 July 2003
    ...evidence. The Iowa courts have considered the weight to be given to circumstantial evidence on numerous occasions. In Beck v. Fleener, 376 N.W.2d 594 (Iowa 1985), the Iowa Supreme Court [W]e no longer distinguish between the probative value of direct and circumstantial evidence. . . . The p......
  • Baur v. Baur Farms, Inc., 11-0601
    • United States
    • United States State Supreme Court of Iowa
    • 14 June 2013
    ...if Jack's motion requesting findings on elements of his cause of action constituted a proper rule 1.904(2) motion. See Beck v. Fleener, 376 N.W.2d 594, 596 (Iowa 1985). Rule 1.904(2) provides that the "findings and conclusions" of the district court may be enlarged or amended and the judgme......
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