Bridal Publications, Inc. v. Richardson

• Decision Date: 21 May 1975
• Docket Number: No. 56090,56090
• Citation: 229 N.W.2d 771
• Parties: BRIDAL PUBLICATIONS, INC., Appellant, v. Norman E. RICHARDSON and Thirteen Other Defendants, the Case Numbers of Which Are Set Out Herein, Appellees.
• Court: Iowa Supreme Court

Page 771

229 N.W.2d 771

BRIDAL PUBLICATIONS, INC., Appellant, v. Norman E. RICHARDSON and Thirteen Other Defendants, the Case Numbers of Which Are Set Out Herein, Appellees.

No. 56090.

Supreme Court of Iowa.

May 21, 1975.

Coppola & Trout, Des Moines, for appellant.

George E. Flagg, Ralph L. Powers, Des Moines, for appellees.

Heard before MOORE, C.J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.

MASON, Justice.

This is a law action tried to the court in which plaintiff attempts to appeal from an adverse judgment denying it recovery of amounts claimed to be due from defendants under advertising contracts. Defendants seek to cross-appeal from dismissal of their counterclaims.

Plaintiff, Bridal Publications, Inc., a Nebraska corporation, publishes an advertising booklet entitled 'Wedding Bells' which contains various advertisements for businesses selling wedding products. In addition to benefiting merchants who advertise in the book, it was also a guide for the 'prospective bride' in helping her to plan her wedding and early marriage years.

In the latter part of January 1971 defendants whose businesses in some way cater to the wedding market each entered into contracts with plaintiff. The idea was to get 'Wedding Bells' into the hands of as many brides-to-be as possible. For this purpose it was provided each subscriber would receive a display unit which contained a copy of the book as well as application cards which prospective brides would fill out and mail to plaintiff. Additional units were placed on the campuses at Drake and Iowa State Universities and Grandview College.

Each month defendants were to receive lists of all persons who filled out these cards. The cards had a code number which signified the Des Moines area, and the contract provided the lists were of 'prospective brides within the market area of the publication.' It was apparently suggested the businesses contact the listed women in order to sell their products.

It was additionally agreed there would be 'evening' advertising over local radio mentioning the businesses involved in the 'Wedding Bells' plan. Plaintiff promised to sell advertising to only one business in each field, i.e. florists, bakeries.

In return for these services, each business subscriber agreed to pay $125 per month, or $1500 yearly. Unless a defendant went out of business, the contract could be terminated only by notice at least sixty days before the end of each year.

Unfortunately, the 'Wedding Bells' strategy caused no cash registers to ring in any of defendants' businesses. Consequently, defendants rescinded their contracts in late May 1971.

Plaintiff filed separate actions against fourteen defendants asking money judgments for nonpayment of varying amounts due under contracts entered into between bridal Publications, Inc. and each of the separate defendants for advertising services. The contract of the case of each separate defendant was identical except as to the category of advertising into which the separate defendant's type of business was categorized.

Thirteen of the fourteen defendants came to be represented by the same counsel and filed identical answers alleging an affirmative defense of fraud in obtaining the signature of each defendant to each contract and a separate alternative affirmative defense alleging failure of consideration in each contract in that Bridal Publications, Inc. failed to contract for certain radio advertising and to submit lists of prospective brides as required; there was an implied warranty the advertising was suited to the defendant's business and would produce substantial amounts of new business. Certain defendants who had made payments as required by their contract also filed counterclaims for the return of moneys paid and asked for rescission of the contracts. The fourteenth defendant, Martin J. Pidgeon, Inc., d/b/a Marty's Furniture & Applicance Co., filed a separate answer alleging an affirmative defense of fraud in obtaining its signature to the contract, but since trial has entered a settlement agreement and is no longer a party to this appeal.

Plaintiff filed a reply in each case, denying all material allegations of the counterclaim including damages based on payments made.

The amount claimed by plaintiff, including interest, in each individual case involves less than $1000. This is also true of the amounts claimed by each individual defendant by way of counterclaim. The record before us discloses in eight cases the aggregation of claim and counterclaim totals $1000 exactly or exceeds this amount by a few dollars.

Upon defendants' motion the court ordered that the cases be consolidated for trial. Under this order a judgment in each case was to be entered separately and the costs taxed separately against the parties.

The court dismissed each of the petitions and each of the counterclaims filed on behalf of some defendants.

I. The first question for determination is whether this appeal is reviewable in view of rule 333, Rules of Civil Procedure, which requires a minimum jurisdictional amount of $1000.

This rule provides:

'Amount in controversy. Except where the action involves an interest in real estate, no appeal shall be taken in any case where the amount in controversy, as shown by the pleadings, is less than one thousand dollars, unless the trial judge, within thirty days after the judgment or order is entered, certifies that the cause is one in which appeal should be allowed. The right of appeal is not affected by any remission of any part of the verdict or judgment.'

No certificate allowing appeal appears of record. Counsel for both sides in argument conceded this certificate had not been obtained although neither filed a motion to dismiss the other's appeal.

'The rule and its predecessor statute are of long standing, although the amount has been increased from time to time. Since July 1, 1969, it has been.$1000.00. Compliance with the rule is jurisdictional and, if the amount in controversy is less than it prescribes, the appeal must be dismissed. * * * (citing authority).

'* * *

'The real test, as we have said several times, is this: could the trial court enter judgment against any party for more than the jurisdictional minimum? If not, the appeal must fail. * * * (citing authorities).' Benttine v. Jenkins Truck Lines, Inc., 182 N.W.2d 374, 376 (Iowa 1970).

As concerns this court's jurisdiction to entertain an appeal 'the amount in controversy' as shown by the pleadings is determinative. Geagley v. City of Bedford, 235 Iowa 555, 563--564, 16 N.W.2d 252, 257; Wilson v. Kelso, 250 Iowa 67, 68--69, 92 N.W.2d 392, 393; Liberty Loan Corporation of Dubuque v. Fassbinder, 176 N.W.2d 158, 159 (Iowa 1970). Costs are not to be considered since they are merely incidental to the action, are not shown by the pleadings, and cannot be considered as any part of the amount in controversy for the purpose of determining jurisdictional amount. Ardery v. Chicago, Burlington & Quincy R'y Co., 65 Iowa 723, 726, 23 N.W. 141, 142; Liberty Loan Corporation of Dubuque v. Fassginder, 176 N.W.2d at 159.

The matter before us does not involve the usual situation of multiple plaintiffs suing a single defendant. It concerns a single plaintiff, Bridal Publications, Inc., and multiple defendants. It is obvious the trial court could not have entered judgment against any individual defendant for the requisite jurisdictional amount in view of the amounts claimed in the pleadings and the principles recognized in the foregoing authorities. Of the thirteen individual claims asserted by plaintiff there is not one, standing alone, where the amount in controversy as shown by the pleadings is sufficient to satisfy the requisite jurisdictional amount necessary to confer appellate jurisdiction.

We hold the amount of plaintiff's claim and the counterclaim, even though compulsory under rule 29, R.C.P., cannot be aggregated if neither alone is sufficient to confer jurisdiction.

It is to be noted this is not a situation where a plaintiff is seeking to aggregate multiple claims which are his own and held against a single defendant for the purpose of furnishing the jurisdictional amount in controversy. See Brush v. Incorporated Town of Liscomb, 202 Iowa 1155, 1156, 211 N.W. 856, 857 and Georgia Ass'n of Ind. Ins. Ag., Inc. v. Travelers Indem. Co., 313 F.Supp. 841, 843 (N.D.Ga.1970).

It follows plaintiff's appeal must be and is hereby dismissed in each of the 13 actions consolidated for trial in the district court.

II. There remains to be determined whether defendants' appeal from dismissal of their individual counterclaims is reviewable.

The factual circumstances do not present the problem where the amount of the counterclaim is being relied on to confer appellate jurisdiction since, as noted, no single defendant can alone supply the requisite jurisdictional amount in controversy for an appeal under rule 333, R.C.P. In view of our pronouncement in division I, supra, the problem where the amount of the...