Blessum v. Howard County Bd. of Sup'rs

• Citation: 295 N.W.2d 836
• Decision Date: 27 August 1980
• Docket Number: No. 63188,63188
• Parties: R. J. BLESSUM, Appellee, v. HOWARD COUNTY BOARD OF SUPERVISORS, Howard County, Iowa; Melvin D. Cannon, Individually; and Leo Caffrey, Individually, Appellants.
• Court: Iowa Supreme Court

Page 836

295 N.W.2d 836

R. J. BLESSUM, Appellee, v. HOWARD COUNTY BOARD OF SUPERVISORS, Howard County, Iowa; Melvin D. Cannon, Individually; and Leo Caffrey, Individually, Appellants.

No. 63188.

Supreme Court of Iowa.

Aug. 27, 1980.

Gerald M. Stambaugh and Don W. Burington of Laird, Burington, Bovard, Heiny & McManigal, Mason City, for appellants.

James Burns and Donald H. Gloe of Miller, Pearson, Gloe & Burns, Decorah, for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, ALLBEE, McGIVERIN and LARSON, JJ.

McGIVERIN, Justice.

The trial court entered judgment against defendants Howard County Board of Supervisors, and Melvin Cannon and Leo Caffrey, individually, in favor of plaintiff R. J. Blessum based on jury verdicts responding to counts of plaintiff's petition alleging breach of contract, defamation, and deprivation of civil rights. Defendants appeal. Plaintiff cross-appeals from the refusal of the court to enter judgment on a verdict for punitive damages in his behalf as to another count in his petition, which alleged a constitutional tort. We affirm as to both the appeal and cross-appeal.

As a background to this involved case, two of the Howard county supervisors, Cannon and Caffrey, questioned the action of Blessum, as county engineer, in causing a bulldozer to be repaired at county expense when it was no longer owned by the county. The bulldozer had been traded off, but there was some evidence it had been used by the county after the sale. The discharge of Blessum by the county and a remark made by Caffrey in regard to Blessum gave rise to this litigation and the several issues presented here.

R. J. Blessum, a registered professional engineer, was employed by the Howard County Board of Supervisors as county engineer from January 1, 1966, through April 5, 1976. His last written contract with the Board was for three years beginning on January 1, 1976, and ending on December 31, 1978, at a salary of $24,000 per year. The contract provided for termination on three months' notice for the purpose of renegotiation or for cause.

On January 19, 1976, Blessum received from the Board a notice of termination of employment. Blessum responded by letter on January 20 and demanded a hearing in accordance with the Soldiers Preference Act (chapter 70, The Code). Plaintiff never received a hearing in regard to his termination.

Four reasons for termination were set out in the notice. Of these four, only one was submitted to the jury as a specification of cause for termination and the jury found against defendants thereon. Defendants do not appeal from that finding made by the jury.

Plaintiff's petition was cast in five counts. Count I against the Board was based on an alleged breach of the written contract between Blessum and the Board. Count II, also against the Board, was based on the alleged noncompliance with the Soldiers Preference Act in failing to grant plaintiff a hearing before discharge. Count III was based on defamation by defendant Caffrey. Count IV against defendants Melvin Cannon and Leo Caffrey, individually, was based on an alleged denial of Blessum's constitutional rights, privileges, and immunities in violation of 42 U.S.C. § 1983. Count V against the Board was based on an alleged deprivation of property and rights without due process of law in violation of the fourteenth amendment of the United States Constitution and in violation of article I, section I, of the Constitution of Iowa.

On October 18, 1978, the jury returned a verdict under count I for $40,000 against the Board; under count II for $40,000 compensatory, and $5000 exemplary damages against the Board; under count III for $2500 compensatory and $2500 exemplary against defendant Caffrey; under count IV for $10,000 compensatory and $5000 exemplary against defendants Cannon and Caffrey; and under count V for $10,000 compensatory and $5000 exemplary against the Board.

On October 23, 1978, the court, in making rulings previously reserved, directed verdicts in favor of defendants as to counts II and V, awarded $8000 as attorney fees to Blessum's attorneys under count IV, and entered judgment on the rest of the jury verdict.

At trial the evidence showed that Blessum had authorized repairs to be made at county expense on a crawler tractor when the county was under no legal obligation to do so because Howard County had previously traded the tractor to a private party.

On March 18, 1976, at a meeting in the Howard County Courthouse, Caffrey made a statement, in substance, calling Blessum a "crook." At trial, Caffrey testified that he had knowledge at the time the statements were made of the tractor being repaired and characterized that knowledge as not knowing whether it was "crooked" but it was something that shouldn't have been done. However, Caffrey, in his pretrial deposition, and in answers to written interrogatories, admitted that on March 18, 1976, he had no knowledge of any facts which would lead him to believe Blessum had done something "crooked."

All actions against plaintiff in behalf of the Board were taken by supervisors Cannon and Caffrey. Supervisor George Wood did not join in the notice of termination or firing of Blessum.

After plaintiff's termination, the Board contracted with an engineering firm from Mason City for consulting engineering work starting on April 27, 1976. In September of 1977 Richard Brown was employed as permanent engineer. The Board paid $52,175 for engineering services performed from the date of plaintiff's termination until October 6, 1978, two days before trial.

Other facts will be stated later as necessary for a discussion of the issues presented for our review.

The following issues are presented for our consideration:

1. Plaintiff's motion to dismiss the appeal;

2. Refusal to apply the "no double pay" rule and deny plaintiff recovery for breach of his employment contract as a public officer;

3. Submitting the slander issue to the jury;

4. Sufficiency of the actual damage evidence to support plaintiff's verdict in the 42 U.S.C. § 1983 claim;

5. Refusal to set aside the 42 U.S.C. § 1983 punitive damage award;

6. The amount of plaintiff's attorney fees awarded in connection with the 42 U.S.C. § 1983 trial court judgment;

7. Plaintiff's application for attorney fees on appeal under 42 U.S.C. § 1988;

8. Errors in jury instructions;

9. Refusal to allow section 309.17, The Code, into evidence for jury consideration;

10. The setting aside of a punitive damage award as duplicative of an allowed award.

I. Jurisdiction of the appeal. Blessum filed a motion to dismiss this appeal, stating that defendants failed to comply with Iowa R.Civ.P. 247 and, therefore, have not tolled the thirty-day period for filing on appeal under Iowa R.App.P. 5. The motion was ordered submitted with the appeal.

On October 19, the day after the verdict, defendants orally requested a sixty-day extension of time to file post-trial motions citing the complexity of the case and the press of other work.

On October 30, 1978, twelve days after the verdict, the court entered an order extending the time for the parties to file post-trial motions until December 22, 1978 (sixty-five days after the verdict). No determination of good cause was made on the record.

On November 17, 1978, thirty days after the verdict, defendants filed motions for judgment n. o. v., new trial, and to reduce the award of fees to plaintiff's attorneys.

On December 7, 1978, fifty-one days after the verdict, plaintiff filed a motion for judgment n. o. v. or to reinstate verdict, which raised the issue set forth in the cross-appeal.

On February 17, 1979, the court denied all post-trial motions. Defendants' notice of appeal was filed on February 28, 1979, and plaintiff's notice of cross-appeal was filed March 5, 1979.

On September 24, 1979, we received from the clerk of the district court an order correcting record to conform to the truth filed by the district court on September 19. Therein, the court found that good cause was shown by defendants in their motion for an extension of time to file post-trial motions and that the order extending such time was based upon such a showing have been properly and adequately made. The court went on to find that it had no intention of attempting to give the parties a greater length of time to file post-trial motions than permitted by law.

Iowa R.Civ.P. 247 provides:

Motions under rules 243 (judgment n. o. v.) and 244 (new trial) and bills of exception under rule 241 must be filed within ten days after the verdict, report or decision is filed, or the jury is discharged, as the case may be, unless the court, for good cause shown and not ex parte, grants an additional time not to exceed thirty days.

In the recent case of Rudolph v. Iowa Methodist Medical Center, 293 N.W.2d 550, 554 (Iowa 1980), we stated the rule applicable to this case as follows:

The validity of the order extending the time for filing post-trial motions is crucial because if it was invalid the notice of appeal was untimely, having been filed more than thirty days after judgment although within thirty days of the ruling on the post-trial motions. See Iowa R.App.P. 5; Hogan v. Chesterman, 279 N.W.2d 12 (Iowa 1979). If the notice of appeal was too late, we lack subject matter jurisdiction of the appeal.

"(T)he maximum period of time which a trial court may allow for post-trial motions is 40 days; the initial 10-day period provided for by the rule, plus an additional period of up to 30 days upon the required showing of good cause." Schmitt v. Clayton County, 284 N.W.2d 186, 187 (Iowa 1979).

The district court under Iowa R.App.P. 10(d) is authorized to make the record conform to the truth, and we accept the court's finding of good cause for the extension of time to file post-trial motions. We need not determine the propriety of that portion of the trial court's order which stated it did not intend to extend the time to file post-trial...