Milks v. Iowa Oto-Head & Neck Specialists, P.C., OTO-HEAD

• Decision Date: 27 July 1994
• Docket Number: No. 93-581,OTO-HEAD,93-581
• Parties: Gloria J. MILKS, Appellant, v. IOWA& NECK SPECIALISTS, P.C., and Felix Edward Gonzales, M.D., Appellees.
• Court: Iowa Supreme Court

Page 801

519 N.W.2d 801

Gloria J. MILKS, Appellant, v. IOWA OTO-HEAD & NECK SPECIALISTS, P.C., and Felix Edward Gonzales, M.D., Appellees.

No. 93-581.

Supreme Court of Iowa.

July 27, 1994.

Bernard L. Spaeth, Jr. and Megan M. Antenucci of Whitfield & Eddy, P.L.C., Des Moines, for appellant.

Francis Fitzgibbons and Harold W. White of Fitzgibbons Brothers, Estherville, for appellees.

Considered by McGIVERIN, C.J., and CARTER, LAVORATO, NEUMAN, and ANDREASEN, JJ.

McGIVERIN, Chief Justice.

This case presents questions concerning our appellate jurisdiction and the trial court's discretion in rulings involving an expert witness's trial testimony. We conclude we have jurisdiction over this appeal and affirm the trial court's judgment.

I. Background facts and proceedings. Plaintiff Gloria Milks brought this medical malpractice action against defendants Dr. Felix Gonzales and his professional corporation, Iowa Oto-Head & Neck Specialists, P.C. ("Gonzales"). Gonzales had performed micro-surgery on her throat in the area of her larynx on September 19, 1989. He had recommended the surgery following his diagnosis of a pedunculated granuloma, or pocket of infection, in the back of Milks's throat. Milks alleged that Gonzales's negligence in performing the surgery caused permanent damage to her vocal cords.

A factual issue at trial was whether Dr. Gonzales injured and removed tissue from plaintiff's true vocal cords, which are found in the front part of the throat, while doing surgery that was supposed to remove tissue located in the back of her throat.

During pretrial discovery, Gonzales informed Milks that he intended to call Dr. R.B. Wyatt, a pathologist at the hospital where the operation occurred, as an expert witness. At a discovery deposition taken by plaintiff, Dr. Wyatt testified that the tissue removed by Gonzales was consistent with tissue originating from the area containing the vocal cord.

At trial, however, Dr. Wyatt testified that the tissue was "not consistent" with tissue originating from the true vocal cord. Milks objected on grounds that the opinion testimony was not within the fair scope of Dr. Wyatt's prior deposition testimony. She asked that the objection precede the new opinion testimony and that the testimony be stricken.

The district court sustained Milks's objection. But it denied the motion to strike as untimely. The court observed that in view of a rather complicated record it would be "of little value to try to resurrect what's been presented to the jury and then try to ask them to disregard it."

After the objection was sustained, Gonzales later adopted a hypothetical approach to his direct examination of Dr. Wyatt. He twice asked Dr. Wyatt what he would expect if the muscle tissue came from the true vocal cord area. The district court overruled Milks's objections to the questions. At the next recess, Milks moved to strike Dr. Wyatt's opinion testimony that responded to the questions. The district court noted that the answers given could be construed as different from the deposition testimony, but the questions were not improper and the objections were properly overruled. The motion to strike also impliedly was overruled.

At 8:30 p.m. on January 26, 1993, the jury returned a verdict in Gonzales's favor. On January 27, the verdict forms were filed with the clerk of court and the district court entered judgment in favor of defendants. The district court incorrectly noted that the jury returned its verdict on January 27. On February 8, Milks moved for a new trial. The court overruled the motion on March 5.

Milks filed a notice of appeal on April 7. Gonzales filed a motion to dismiss the appeal, contending for the first time that plaintiff's motion for new trial had been untimely and thus did not extend the time for filing a notice of appeal. Attached to the motion was the district court's certification under Iowa rule of appellate procedure 10(d) that the jury returned its verdict on January 26. We ordered that the motion to dismiss would be submitted with the appeal.

II. Timeliness of plaintiff's motion for new trial. We first address defendant Gonzales's motion to dismiss the appeal. Gonzales contends that the time for plaintiff Milks to file a motion for new trial began to run on January 26, 1993, the day the jury returned its verdict. Therefore, because Milks did not file her motion for new trial until February 8, Gonzales argues that she failed to file within the ten-day limit of Iowa rule of civil procedure 247. ¹

The timeliness of Milks's motion for new trial bears on our jurisdiction to hear this appeal. If the motion was timely, we have jurisdiction because she filed her notice of appeal within 30 days after entry of the ruling on her motion for new trial as required by Iowa rule of appellate procedure 5.

If, however, Milks's motion for new trial was untimely, the thirty-day period to file a notice of appeal began to run immediately upon entry of the judgment on January 27, 1993. In that event, we would have no jurisdiction to hear her appeal because her notice of appeal (filed April 7) was filed later than thirty days after entry of judgment. Want of subject matter jurisdiction may be taken advantage of at any stage of the proceedings and cannot be conferred by waiver, estoppel, or consent. Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978). The timeliness of a notice of appeal is mandatory and jurisdictional and cannot be extended by the filing of an improper motion for new trial. Id. at 471.

The question we must answer is whether the period for filing a motion for a new trial begins to run when the jury returns a verdict or when the verdict is file-stamped in the district court clerk's office. Iowa rule of civil procedure 247 provides:

Motions under R.C.P. 243 [judgment notwithstanding the verdict] and 244 [new trial] ... 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.

(Emphasis added.)

As applied to the facts in this case, rule 247 seems ambiguous. The jury returned its verdict, and thereby was presumably discharged, on the evening of January 26. However, the verdict was not stamped as filed with the clerk of district court until the next day, January 27. The court also entered judgment on the verdict on January 27. The phrase "as the case may be" seems to be intended to clarify the rule, but we are unable to discern any significance to it.

The determining date for the timeliness of a motion for new trial ordinarily is the date on which the jury returned its verdict, not when the final judgment was entered. Qualley, 261 N.W.2d at 470; Schmatt v. Arenz, 176 N.W.2d 771, 774 (Iowa 1970); Selby v. McDonald, 219 Iowa 823, 829, 259 N.W. 485, 488 (1935); accord Peek v. Meadors, 255 Ark. 347, 500 S.W.2d 333, 334 (1973); Mosher v. Levering Invs., Inc., 806 S.W.2d 675, 676 (Mo.1991) (en banc) ("The entry of a judgment on a jury verdict is a ministerial act and failure to formally enter the judgment does not affect the time requirements imposed by Rule 78.04 [analogous to Iowa R.Civ.P. 247]."); Ames v. Parrott, 61 Neb. 847, 86 N.W. 503, 506-07 (1901) (Pound, J.) ("There is a clear and well-established distinction between rendition [of a verdict] and entry of a judgment.... The date of the entry upon the journal would be presumed to be the date of rendition, but, where the record shows these dates to be different, the latter alone is to be considered."); 58 Am.Jur.2d New Trial § 481, at 444 (1989) ("Under many statutes or rules of practice, the time within which a motion for new trial must be filed is calculated from the date of the rendition of the verdict or decision, and not from the date of the entry of judgment.").

The rationale of this rule is that once the jury returns its verdict, the parties are usually on notice of the result for purposes of determining whether to file a motion for a new trial. In Qualley, for instance, the court concluded that "when the court [in a nonjury case] issued its findings and conclusions it was obvious to plaintiff on which facts and law the court's impending judgment entry would be based." 261 N.W.2d at 470.

When the action of the judge or the jury has failed to put the parties on notice of the basis of the verdict, report, or decision, we have refused to hold that the time for a motion for new trial has commenced. For example, in Egy v. Winterset Motor Co., 231 Iowa 680, 686, 2 N.W.2d 93, 96 (1942), the trial court issued an informal decision that failed to provide the losing party with notice of what facts and conclusions the court's later judgment would be based upon. Because the final entry of judgment was necessary for determining whether to file a motion for new trial, we concluded that the time began to run only upon such entry. Id. at 687, 2 N.W.2d at 97.

Similarly, the time for filing a motion for new trial does not begin to run if the jury has filed a sealed verdict. Trainer v. Kossuth County, 199 Iowa 55, 60, 201 N.W. 66, 68 (1924). Such a requirement would be "absurd ..., for no one could ascertain what was in the verdict until it was opened." Selby, 219 Iowa at 832, 259 N.W. at 490 (discussing Trainer ).

Here, although the verdict was not sealed and the parties and counsel apparently were not present when the verdict was returned, it also appears that counsel for both parties had notice of the verdict on the evening of January 26. It therefore may seem appropriate to conclude that the time for plaintiff to file a motion for a new trial commenced at that point. However, we decline to so conclude. Rule 247 states that the time begins to run when the verdict is filed, not merely rendered. When the verdict is filed, it is dated. This notation is more reliable than the parol evidence that the jury physically rendered the...