H & S Ltd. v. Andreola

• Decision Date: 26 December 1984
• Docket Number: No. 83-1118,83-1118
• Citation: 363 N.W.2d 592
• Parties: H & S LTD., An Iowa Corporation, Plaintiff-Appellee, v. Daniel M. ANDREOLA, Defendant-Appellant, and Lamand Mortgage Company, Inc., An Iowa Corporation, Defendant.
• Court: Iowa Court of Appeals

Page 592

363 N.W.2d 592

H & S LTD., An Iowa Corporation, Plaintiff-Appellee, v. Daniel M. ANDREOLA, Defendant-Appellant and Lamand Mortgage Company, Inc., An Iowa Corporation, Defendant.

No. 83-1118.

Court of Appeals of Iowa.

Dec. 26, 1984.

Paul J. Bieber, Davenport, for defendant-appellant.

Mark J. Smith of Wells, McNally & Bowman, Davenport, for plaintiff-appellee.

Heard by OXBERGER, C.J., and DONIELSON and SACKETT, JJ.

OXBERGER, Chief Judge.

Two issues are presented for review in this appeal by the defendant below. The first question, as yet apparently unresolved by our courts, is whether there is jurisdiction over an appeal to denial of a motion to vacate a judgment, when the judgment has previously been appealed and that appeal dismissed for lack of prosecution. The second question involves the merits of defendant's claim that the judgment should be dismissed because he was allegedly not served with either a subpoena for discovery or a motion for sanctions, and because no motion to compel was sought prior to a finding the defendant was in default. The trial court rejected defendant's claim these actions warranted dismissal of the default pursuant to Iowa Rule of Civil Procedure 252. We find that we have jurisdiction over this appeal and affirm the trial court's conclusion.

The plaintiffs commenced an action against the defendants seeking actual and punitive damages for breach of contract and misrepresentation in a loan transaction. The defendants filed an answer and counterclaim. A trial was set for April 7, 1982.

On March 19, 1982, defendant Daniel M. Andreola was served with a notice of deposition directing that he bring "any and all corporate books or records pertaining to operation of Lamand Mortgage Company along with nonprivileged correspondence and records pertaining to the agreement between H & S Ltd. and Lamand Mortgage Company. Also required to produce all records of stockholders of Lamand Mortgage Company and all records of any holding company for Lamand Mortgage Company." The defendant was directed to appear for a deposition on March 26, 1982. Apparently through an agreement of counsel for both sides, the deposition was reset for April 1, 1982. At the deposition on April 1, the defendant failed to produce the records requested although he agreed to produce at least some of them by April 5.

On April 5, 1982, defendant's counsel was allowed to withdraw. On April 7, the plaintiff filed a motion for sanctions based on the defendant's failure to comply with a subpoena duces tecum.

On April 14, the district court entered an order ruling the defendants in default for bad faith noncompliance with the subpoena duces tecum, and willful refusal to supply the documents demanded by April 5. The district court also dismissed defendant's counterclaim. After holding a hearing on damages, a judgment was entered against Andreola on May 11, 1982.

Andreola then filed a notice of appeal on June 10, 1982. The appeal was dismissed October 6, 1982, pursuant to Iowa Rule of Appellate Procedure 19 for failure to prosecute.

A petition to vacate the judgment was then filed by Andreola on March 16, pursuant to rule 252. He claimed the judgment was obtained through irregularity or fraud, and there was unavoidable casualty or misfortune which prevented him from defending. After the hearing, the court rejected his arguments, finding that he was not entitled to claim that his counsel's withdrawal constituted unavoidable casualty or misfortune, because the defendant caused the withdrawal. The court also rejected other claims, determining the facts upon which defendant based his claims were before the court prior to the entry of the May 11, 1982, judgment and were rejected at that time. All the claims, then, would have been included in his prior appeal which was dismissed.

I. Jurisdiction of this Court

The plaintiff urges on appeal that this court cannot have jurisdiction over the appeal, since the issues presented here were decided under the previous appeal. Our courts have recognized the doctrine of "law of the case" which indicates that when an issue is appealed and decided, it cannot again be appealed by the parties. Sauer v. Scott, 238 N.W.2d 339, 342 (Iowa 1976). However, when the appeal is disposed of without a decision on the merits, an entirely different question is presented. See id. Our court has apparently not specifically addressed the question of whether dismissal of an appeal for want of prosecution involves the type of action which allows a second appeal.

We are faced with two issues. One issue is whether a dismissal of the first appeal for want of prosecutions acts as an affirmance of the judgment. If it acts as an affirmance, we then must further ask whether affirming the judgment precludes a motion to vacate that judgment, or whether such a motion is a separate action which would be allowed even if the judgment was affirmed by the appeals court.

The Iowa Supreme Court has made references to preclusion of subsequent appeals in a one-paragraph decision of 1888. The court stated:

A motion to dismiss the appeal was submitted with this case. It is based on these facts: An appeal was taken in the case by plaintiff after the judgment and upon failure to perfect the appeal it was affirmed, on motion, at the last December term, and a judgment to that effect was entered in this court, which stands in full force and effect. It is very plain that we must regard this judgment as a final adjudication in this case.

Trulock v. The Friendship Lodge K. of P., 75 Iowa 381, 382, 39 N.W. 654, 655 (1888). Our court rules have changed, and instead of providing for affirmance of the judgment when the appeal is not properly perfected, it is dismissed for want of prosecution. Iowa R.App.P. 19. However, the language is indicative of the supreme court's attitude in this regard.

In other jurisdictions, this issue has infrequently been addressed in recent years, as reflected by the fact most of the decisions on point were made in the 19th century. Where a determination has been pronounced, a split of authority has developed. A collection of these cases shows one view that dismissal for want of prosecution is the same as affirmance of the judgment and bars a second appeal. Annot. 96 A.L.R.2d 312 (1964). Authorities on the opposite side of the fence contend that since such a dismissal does not determine the merits of the case, a second appeal would be allowed. Id. at 314. There is also some indication that a second appeal is allowed unless there is a statute which bars the subsequent appeal. 4 C.J.S. Appeal & Error § 34 (1957).

The United States Supreme Court has distinguished a dismissal for lack of prosecution from other dismissals, stating:

The motion to dismiss for want of prosecution, and the motion to dismiss for want of jurisdiction, to entertain the appeal, are different and distinct in their character; the one only dismisses the appeal and allows a second; the other bars it.

United States v. Fremont, 59 U.S. (18 How) 30, 37, 15 L.Ed. 302, 303 (1855). Unfortunately, it is not clear from the language of the Court which type of dismissal allows for a bar to subsequent appeals. However, two recent cases referring to the opinion interpret it to mean that when an appeal is dismissed for want of prosecution, a second appeal is barred. Bray v. Cox, 38 N.Y.2d 350, 354, 342 N.E.2d 575, 576, 379 N.Y.S.2d 803, 806 (1976); Dewey v. Dewey, 192 Neb. 676, 680, 223 N.W.2d 826, 828 (1974). We agree with this interpretation of the Supreme Court case; and the recent cases holding a subsequent appeal is barred, which indicate a growing majority trend towards this conclusion. Id. Anderson v. Richards, 173 Ohio St. 50, 53, 179 N.E.2d 918, 922 (1962). First American Natl'l Bank of Iuka v. Alcorn, Inc., 361 So.2d 481, 493 (Miss.1978).

As we stated, our inquiry does not end here. The first appeal bars only that which would be barred if the underlying judgment had been affirmed. In the widely published Anderson case, the Ohio Supreme Court specifically noted that in its jurisdiction all questions which could have been raised on appeal are barred from being raised later, even if not actually presented in the first appeal. Anderson v. Richards, 173 Ohio St. at 53, 179 N.E.2d at 920. The same situation was involved in other cases where the second appeal was dismissed. Dewey v. Dewey, 192 Neb. at 680, 223 N.W.2d at 828, Bray v. Cox, 38 N.Y.2d at 353-54, 342 N.E.2d at 577, 379 N.Y.S.2d at 805-06. While many other jurisdictions have held that all issues which could be presented on appeal are barred from subsequent appeal, our jurisdiction has limited the effect of an appeal to only those questions actually presented. The court has unequivocally stated, "a question not passed on is not included," in matters precluded. In re Lone Tree Community School Dist. of Johnson & Louisa v. County Board of Education of Louisa County, 159 N.W.2d 522, 526 (Iowa 1968).

We must then ask whether the questions presented by a motion to vacate a judgment are included in an...