Beck v. Fleener
| Citation | 376 N.W.2d 594 |
| Decision Date | 13 November 1985 |
| Docket Number | No. 84-863,84-863 |
| Parties | 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. |
| Court | United States State Supreme Court of Iowa |
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.
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 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 Auctions, Inc. v. Criswell, 284 N.W.2d 224, 226 (Iowa 1979). The court did not reach this issue in Sykes v. Iowa Power & Light Co., 263 N.W.2d 551, 553 (Iowa 1978).
Although plaintiffs' motion for new trial raised only a legal issue, defendants resisted in part on the ground that plaintiffs failed to preserve error. A factual dispute then arose concerning whether plaintiffs were given an opportunity to object to a revised instruction before jury arguments. The trial court resolved this dispute against plaintiffs, although the court also overruled the motion on the merits. Issues of fact in new trial hearings are triable as in ordinary actions at law. See Scott v. Hawk, 105 Iowa 467, 471, 75 N.W. 368, 369 (1898). Not every new trial hearing will involve fact issues, but we need not decide in this case whether a rule 179(b) motion is available when the hearing involves only legal issues. Because plaintiffs' motion to reconsider was in substance a timely rule 179(b) motion, the period for appeal was extended to thirty days from the date of the order overruling that motion. Their appeal was therefore timely.
We add this warning. Motions to reconsider that are not in substance motions for new trial or rule 179(b) motions will not extend the time for appeal. This court has long held that attempted appeals from orders denying motions to reconsider previous rulings raise no legal question. See Stover v. Central Broadcasting Co., 247 Iowa 1325, 1332, 78 N.W.2d 1, 5 (1956) (). This is because an appeal ordinarily must be taken from the ruling in which the error is said to lie. Id.
II. Error preservation. The alleged instructional error relates to one sentence added by the trial court to an instruction defining direct and circumstantial evidence. Following the definition of circumstantial evidence the court added a statement informing the jury that, "Circumstantial evidence, however, may not be used when an opinion of experts is required under Instruction No. 13." In their motion for new trial plaintiffs alleged the instruction was erroneous "in that Iowa law does not prohibit the use of circumstantial evidence when an opinion of experts is required in a medical malpractice claim." Defendants responded that plaintiffs had not objected to the instruction when objections were taken at trial and that, in any event, the instruction was correct.
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