Blink v. McNabb
| Decision Date | 23 January 1980 |
| Docket Number | No. 62625,62625 |
| Citation | 287 N.W.2d 596 |
| Parties | William BLINK, Jr., Appellant, v. James A. McNABB and Overhead Door Company of Des Moines, Inc., Appellees. |
| Court | Iowa Supreme Court |
Harold J. DeLange, II, of Wehr & DeLange, Davenport, for appellant.
Louis R. Hockenberg of Wasker, Sullivan & Ward, Des Moines, and Ralph D. Sauer of Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, for appellees.
Considered en banc.
Plaintiff William Blink, Jr., appeals from judgment for defendants James A. McNabb and Overhead Door Company of Des Moines, Inc., in his equitable action for an injunction to require defendants to maintain the natural flow of surface water across their property, thereby maintaining proper drainage of his neighboring land. We affirm.
Three issues are presented for our review:
1. Whether plaintiff's notice of appeal substantially complied with Iowa R.App.P. 6;
2. Whether trial court should have imposed a sanction for defendants' failure to supplement their answer to an interrogatory; and 3. Whether the trial court correctly denied relief on the merits of plaintiff's petition.
I. Did plaintiff's notice of appeal substantially comply with Iowa R.App.P. 6? We first must dispose of defendants' contention that the notice of appeal filed by Blink is defective and that this court has no jurisdiction of this case. Defendants say the notice of appeal requirements of Iowa R.App.P. 6(a) were not met because the notice, which is addressed to defendants, states in its body that defendants are appealing, when in fact it is plaintiff who is doing so. The notice also states that defendants appeal from all rulings adverse to defendants. Defendants filed a motion to dismiss the appeal, which we ordered submitted for ruling with the appeal.
The notice of appeal filed by plaintiff is as follows:
You and each of you are hereby and herein notified that the Defendants James A. McNabb and Overhead Door Company of Des Moines, Inc. named in the above entitled cause, have appealed and do hereby appeal from the Final Judgment of the court entered herein and spread upon the Books and Records of the Clerk of the said District Court of the State of Iowa in and for Scott County, On the 20 day of September, 1978; and have appealed and do hereby appeal from all portions of said Decree of Final Judgment or Judgments with respect to findings as to liability, damages, the right of Plaintiff to have an injunction issued, and all other awards of every kind and nature, And from all Rulings, and Orders inhering therein, and from all Orders, findings, Rulings and Opinions of the Court in the above entitled cause prior to, during, and subsequent to trial therein, Which were in any manner adverse to the Defendants, to the Supreme Court of Iowa. You are hereby notified that this Appeal will come on for Hearing and Trial in the Supreme Court at the Time and Place prescribed by and in accordance with the law of said Supreme Court.
/s/ Harold J. DeLange II
HAROLD J. DeLANGE II
WEHR & DeLANGE
Attorneys for Plaintiff
705 Kahl Building
Davenport, Iowa 52801
(Emphasis added.)
Iowa R.App.P. 6(a) provides in relevant part:
An appeal other than those allowed by order under rule 2 or rule 5, Rules of Appellate Procedure, is taken and perfected by filing a notice with the clerk of the court where the order, judgment or decree was entered, signed by appellant or his attorney. It shall specify the parties taking the appeal and the decree, judgment, order or part thereof appealed from. The appellant shall serve a copy of the notice on each other party or his counsel in the manner prescribed in R.C.P. 82"B " . . ..
Our latest case on this issue is Hawkeye Security Insurance Company v. Ford Motor Company, 199 N.W.2d 373, 378 (Iowa 1972), where we declined to adhere to previous cases requiring strict compliance with the rule on the content of a notice of appeal. We there said relative to then Iowa R.Civ.P. 336, which is substantially embodied in our present Iowa R.App.P. 6:
Substantial compliance with the provisions of rule 336 is sufficient; Cf. Vermeer v. Sneller (Iowa 1971), 190 N.W.2d 389, 392. In considering the sufficiency of the content of the notice we now hold that if the intent of the appellant to appeal from a judgment may be inferred from the text of the notice and if the appellee has not been misled by the defect the appeal will be entertained. Cf. Railway Express Agency, Inc. v. Epperson (8 Cir. 1957), 240 F.2d 189; Jones v. Chaney & James Const. Co. (C.A.Tex.1968), 399 F.2d 84. This more liberal rule of construction is consistent with our oft repeated preference for disposition of cases on the merits and not on mere technicalities. Phoenix v. Stevens, 256 Iowa 432, 433-434, 127 N.W.2d 640, 641 (); Associates Discount Corp. v. Held, 255 Iowa 680, 684, 123 N.W.2d 869, 871.
Defendants do not contend they were prejudiced by the claimed lack of compliance with rule 6(a). Defendants say they had no intention of appealing. Plaintiff, the only other party in the case, filed the notice of appeal. The notice did specify the September 20, 1978, judgment as the ruling appealed from. Defendants only say the notice of appeal, as filed by plaintiff, has the potential for prejudice and adds confusion to the record. We believe no prejudice resulted to defendants. Because plaintiff filed the notice of appeal, the intent of plaintiff to appeal may be inferred. Defendants were not misled by the defects in the notice. The substantial compliance test of Hawkeye Security is minimally satisfied here.
Although not a model of clarity, we hold the notice of appeal was sufficient and substantially complied with rule 6(a) under our test in Hawkeye Security. Defendants' motion to dismiss the appeal is overruled.
We now consider plaintiff's second issue.
II. Should two of defendants' witnesses have been prohibited from testifying? The next problem involves the failure by defendants to fully answer a written interrogatory filed by plaintiff.
On April 28, 1978, trial was set for August 21. On May 23 plaintiff submitted written interrogatories to be answered by both defendants under Iowa R.Civ.P. 126.
Defendants did not object to or answer the interrogatories within thirty days as required by rule 126. Therefore, on July 11 plaintiff filed a motion under rule 126(a) and Iowa R.Civ.P. 134(a) to compel answers and for attorney fees in connection with the motion. Defendants finally filed the answers to the interrogatories on August 17, four days before trial. Plaintiff's motion was never ruled on. However, the purpose of that motion was satisfied when defendants filed their answers. The problem we have involves the sufficiency of an answer.
We set out the interrogatory and answer in dispute here:
James A. McNabb, President of Overhead Door Company of Des Moines, Inc.
Des Moines, Iowa 50322
In response to another interrogatory, defendants also named an engineering firm employed by them as an expert witness.
In his petition, plaintiff alleged defendant McNabb owns land in Davenport adjacent to that of plaintiff. Defendant Overhead Door has a business on McNabb's land. Plaintiff claimed that construction work on McNabb's land had changed the natural flow of surface water, causing flooding and water damage of plaintiff's property. He asked the court to enjoin defendants from changing the natural water flow across their property and for an award of damages.
In addition to denying plaintiff's allegations, defendant McNabb in his answer to the petition alleged the grade of his property had not been changed, and that plaintiff knew of the drainage characteristics of McNabb's property when plaintiff purchased his own land.
At trial, defendants called two non-expert witnesses not listed in their answers to interrogatories. When Harry Bainer, the first witness was called, plaintiff stated MR. DeLANGE: Your Honor, before Mr. Bainer testifies, I would have to register an objection. In the answers to interrogatories, defendants did not list Mr. Bainer as a person having any information dealing with the matters in this lawsuit, and I have no supplemental answers to those. 1
Bainer was the prior owner of defendants' property and knew of past and present drainage of the land of plaintiff and McNabb.
The court at first offered a continuance to permit plaintiff to take Bainer's deposition. In response, plaintiff said:
MR. DeLANGE: I would like to do that; however, I do not want to hold the witness up if I don't have to.
However, after an unrecorded conference, the court stated:
The Court has just now been advised that the plaintiff wants to take the deposition of this witness, although the Court is also advised that the plaintiff has taken no depositions of anybody in this case. I'm going to withdraw my offer. I'm not going to permit the taking of the deposition. I am going to permit the testimony of the witness, which I believe is in my discretion. You may continue.
Bainer then proceeded to testify for defendants and was cross-examined by plaintiff.
When defendants called Erle Glaus as a witness to testify as to his familiarity with the two properties in question and their water problems, plaintiff stated:
MR. DeLANGE: Your Honor, before this witness testifies, I would again renew my objection that I stated yesterday as to this witness not being previously disclosed as per the...
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