Cook v. City of Council Bluffs

• Decision Date: 19 April 1978
• Docket Number: No. 60558,60558
• Citation: 264 N.W.2d 784
• Parties: Sylvia COOK, Appellant, v. CITY OF COUNCIL BLUFFS, Iowa and Michael Woodbury, Appellees.
• Court: Iowa Supreme Court

Page 784

264 N.W.2d 784

Sylvia COOK, Appellant, v. CITY OF COUNCIL BLUFFS, Iowa and Michael Woodbury, Appellees.

No. 60558.

Supreme Court of Iowa.

April 19, 1978.

Spellman, Spellman, Spellman & Spellman, by Martin E. Spellman and G. Michael Kealhofer, Perry, and Riedman & Welsh, Omaha, Neb., for appellant.

Gordon C. Abel, Council Bluffs, for appellees.

En banc.

UHLENHOPP, Justice.

This appeal involves the sufficiency of a letter as notice under § 613A.5 of the Code of 1975, which provides:

Every person who claims damages from any municipality or any officer, employee, or agent of a municipality for or on account of any wrongful death, loss or injury within the scope of section 613A.2 or section 613A.8 or under common law shall commence an action therefor within six months, unless said person shall cause to be presented to the governing body of the municipality within sixty days after the alleged wrongful death, loss or injury a written notice stating the time, place, and circumstances thereof and the amount of compensation or other relief demanded. Failure to state time or place or circumstances or the amount of compensation or other relief demanded shall not invalidate the notice; providing, the claimant shall furnish full information within fifteen days after demand by the municipality. No action therefor shall be maintained unless such notice has been given and unless the action is commenced within two years after such notice. The time for giving such notice shall include a reasonable length of time, not to exceed ninety days, during which the person injured is incapacitated by his injury from giving such notice.

Plaintiff Sylvia Cook claims that policemen of defendant City of Council Bluffs, including defendant Michael Woodbury, subjected her to mistreatment in the home of her mother and herself on October 17, 1974. She commenced the present damage action more than six months but less than two years thereafter. Hence the viability of her action depends on whether she caused written notice to be given within 60 days. The question is whether a letter written to a Council Bluffs' councilman qualifies as a notice under § 613A.5.

Defendants filed a motion for summary judgment attacking the alleged notice, and the trial court held a hearing, considered the testimony and the material filed by the parties, and sustained the motion. Plaintiff appealed.

I. At the threshold we have a question of our jurisdiction of the appeal. Plaintiff failed to file her notice of appeal with the district court clerk within 30 days. Rules 335, 336, Rules of Civil Procedure (the applicable rules are those which appear in the Code of 1977). Rule 335(a) states in relevant part:

Appeals to the supreme court must be taken within, and not after, thirty days from the entry of the order, judgment or decree . . . .

Rule 336(a) states:

Appeal other than those allowed by order under rule 332 or rule 335 (not involved here) is taken and perfected by filing a notice with the clerk of the court where the order, judgment or decree was entered, signed by the 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 rule 82(b ). The notice presented to the clerk of the trial court for filing shall be accompanied by a proof of service in the form prescribed in rule 82(g ). Promptly after filing the notice of appeal with the clerk of the trial court the appellant shall mail or deliver to the clerk of the supreme court an informational copy of such notice.

The trial court's order sustaining defendants' motion for summary judgment was made and recorded on March 11, 1977. On April 8, 1977, plaintiff's attorney prepared, dated, and signed a notice of appeal which was directed:

TO: Gordon C. Abel, City of Council Bluffs and Michael Woodbury

Donald J. Diwoky, Clerk of the District Court of Pottawattamie County.

Plaintiff's attorney directed Beth Irene Dowd, a secretary, to mail the original to Donald J. Diwoky, clerk of the district court of Pottawattamie County, with copies to Mr. Gordon C. Abel and the clerk of the supreme court. On the same day, April 8, 1977, the secretary so mailed the notices.

Mr. Abel and the clerk of the supreme court received the notices but the clerk of district court did not.

On April 27, 1977, plaintiff's attorney was advised that the clerk of district court was unable to locate the notice of appeal. On May 2, 1977, he therefore sent the district court clerk a copy of the notice, which the clerk received and placed on file on May 4, 1977.

We ordered that the question of our jurisdiction, which these facts present, be submitted with the appeal.

Involved here is rule 82, R.C.P. That rule states in relevant part:

(a) When service required. Everything required by these rules to be filed . . . and every written notice . . . shall be served on each of the parties. . . .

(b) Same: How made. Service upon a party represented by an attorney shall be made upon the attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of court. . . . Service by mail is complete upon mailing. . . .

(d) Filing. All papers after the petition required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter. Whenever these rules require filing within a certain time said filing shall be deemed timely if service is made within said time and filing is completed within a reasonable time thereafter.

At the time of these events, rules 335 and 336 were part of the rules of civil procedure. Hence rule 82(a) covered notices of appeal and required that such notices be served. Rule 82(b) required service to be upon the opposing attorney. Timely service was made upon the opposing attorney here and by the approved method, mail.

But rule 336(b) required that the notice also actually be filed with the district court clerk, and rule 82 did not dispense with that requirement. The last sentence of rule 82(d) states however that the filing is timely if (a) the service is timely (as it was here) and (b) the filing is completed within a "reasonable time thereafter." Here a notice was mailed to the clerk on April 8, 1977, but did not reach him. A second notice was thereafter mailed to him, which reached him on May 4, 1977. This latter date was the time that filing was accomplished. Was that filing within a reasonable time after service by mail on opposing counsel?

This court approved the following definition of a "reasonable time" which was offered by counsel in Williamson Heater Co. v. Whitmer, 191 Iowa 1115, 1119, 183 N.W. 404, 405: "A 'reasonable time' is defined by counsel for appellee as being 'such time as is necessary, under the circumstances, for a reasonably prudent and diligent man to do conveniently what the contract or duty requires should be done, having regard for the rights, and possibly the loss if any to the other party affected' . . . ."

The district court clerk recorded the summary judgment order on March 11, 1977; hence the regular 30-day period for appeal expired April 10, 1977. Plaintiff's attorney served the notice by mail on April 8, 1977, but he did not until May 2, 1977, mail a notice to the district court clerk which actually got to that clerk. That notice arrived on May 4, 1977, some 26 days after the attorney served the notice by mail on opposing counsel. If this were all of the facts we would not hesitate to say the filing was not accomplished within a reasonable time after serving. The requirements of rules 335 and 336 are jurisdictional and compliance is essential. Lundberg v. Lundberg, 169 N.W.2d 815 (Iowa); Zick v. Haugh, 165 N.W.2d 836 (Iowa); Brooks v. Engel, 159 N.W.2d 438 (Iowa).

But we must consider two additional factors. One is that plaintiff's attorney did not wait until May 2, 1977, to mail the notice to the district court clerk; his secretary mailed it at the same time she served defendants' attorney by mail on April 8, 1977. We have no hesitation in saying that had this mailing to the district court clerk been delivered in usual course of the mail the filing would have been done within a reasonable time after the serving, even if the notice had not been received by the clerk precisely by April 10, 1977.

But the notice mailed to the clerk went awry. On April 27, 1977, plaintiff's attorney learned of the situation, on May 2, 1977, he mailed another notice to the clerk, and on May 4, 1977, the clerk received it.

Then the second factor comes into play, the word "reasonable." In promulgating rule 82(d) this court did not state that the filing had to be done within a specified number of days after serving. Such requirements cause cases to go out on the procedural point if a misstep occurs by as little as a day. Zick v. Haugh, supra. Instead, this court provided some flexibility: filing must be completed within "a reasonable time" after serving. "Reasonable" allows consideration of all the existing circumstances. Williamson Heater Co. v. Whitmer, supra.

Although the question is close and the case is near the line, under the circumstances here the mailing of the notice to the district court clerk at the same time as the service, the further mailing to the district court clerk after plaintiff's attorney learned that the first notice could not be found, and the receiving of the notice by the clerk 26 days after the serving we hold that plaintiff accomplished the filing of the notice within a "reasonable" time after serving. In so holding we believe we are ameliorating some of the rigors of the inflexible 30-day requirement at which rule 82(d) was aimed.

We note that...