Uchtorff v. Dahlin

• Decision Date: 13 February 1985
• Docket Number: No. 83-1435,83-1435
• Citation: 363 N.W.2d 264
• Parties: Richard E. UCHTORFF, Appellant, v. David H. DAHLIN, Clerk of the District Court of Iowa for Scott County, Appellee.
• Court: Iowa Supreme Court

Page 264

363 N.W.2d 264

Richard E. UCHTORFF, Appellant, v. David H. DAHLIN, Clerk of the District Court of Iowa for Scott County, Appellee.

No. 83-1435.

Supreme Court of Iowa.

Feb. 13, 1985.

John J. Carlin of John J. Carlin, P.C., Davenport, for appellant.

William E. Davis, County Atty., and Thomas C. Fritzsche, Asst. County Atty., for appellee.

Considered en banc.

REYNOLDSON, Chief Justice.

The fighting issue presented by this appeal is whether the district court erred in granting defendant's motion for summary judgment on grounds plaintiff failed to commence his tort action within six months of his injury as required by Iowa Code section 613A.5. ¹

We first set out the facts of the underlying dissolution action that spawned this case. In the summer of 1982, plaintiff Richard E. Uchtorff was a respondent in a dissolution of marriage action brought by his wife in the district court for Scott County. July 7, 1982, the district court entered the dissolution decree. July 9, Uchtorff filed an Iowa Rule of Civil Procedure 179(b) motion to enlarge. October 8, 1982, the district court ruled on Uchtorff's motion and filed the order. Uchtorff did not receive notice of the order until January 19, 1983, because the clerk of court neglected to mail copies to the parties as he was required to do by Iowa Rule of Civil Procedure 82(f). ²

February 15, 1983, Uchtorff filed his notice of appeal from the July 7 decree. Since Uchtorff's January 19 receipt of the order was outside the thirty-day appeal time, see Iowa Rule of Appellate Procedure 5(a), he apparently proceeded on the belief that a valid appeal could be made within thirty days of the time he had notice of the court's ruling on the rule 179(b) motion. March 18, 1983, this court dismissed Uchtorff's appeal for lack of jurisdiction.

March 28, 1983, Uchtorff served notice of claim upon defendant David H. Dahlin, clerk of the Scott County district court, pursuant to Iowa Code chapter 613A, alleging damage in the amount of $57,800. June 27, 1983, Uchtorff filed his petition seeking "fair and equitable" relief. He alleged his injury occurred on March 18, 1983, the date this court dismissed his appeal.

August 18, Dahlin moved for summary judgment on alternative grounds. First, he argued Uchtorff's claim was barred because it was not commenced within six months of November 8, 1982, the date Uchtorff was injured, as required by Iowa Code section 613A.5. Second, Dahlin argued the sole proximate cause for the loss of Uchtorff's appeal was the latter's failure to file a petition for modification under Iowa Rules of Civil Procedure 252 and 253 following his January 19, 1983, knowledge of the filing of the October order. Uchtorff resisted, arguing that since his injury did not occur until March 18, 1983, his June 27 filing complied with Iowa Code section 613A.5.

September 15, the district court sustained Dahlin's motion. The court reasoned that, in attempting to set the date of his injury at March 18 rather than November 8, Uchtorff was attempting to invoke the discovery rule. Relying on Montgomery v. Polk County, 278 N.W.2d 911 (Iowa 1979), the trial court held the discovery rule does not apply to chapter 613A actions.

October 13, 1983, Uchtorff filed a notice of appeal. We transferred the case to the court of appeals, which reversed and remanded. Upon Dahlin's application for further review, we vacate the court of appeals opinion and affirm the district court.

This appeal turns on two questions: (1) Did the trial court err in holding the discovery rule does not apply to chapter 613A actions? (2) Was Uchtorff injured within the meaning of section 613A.5 on November 8? We discuss these issues in the divisions that follow.

I. Our decisions hold the discovery rule does not apply to actions brought under chapter 613A of the Code. The argument that the rule should apply has been presented twice to this court and rejected twice by the majority. See Farnum v. G.D. Searle & Co., 339 N.W.2d 392, 396 (Iowa 1983); Montgomery, 278 N.W.2d at 914-15. Though Uchtorff urges us to overrule Farnum and Montgomery, the majority of this court is not persuaded to do so.

Uchtorff attempts to avoid the Montgomery rule by pointing out his petition alleges he was not injured until March 18. This bare statement, Uchtorff argues, distinguishes his case from Montgomery, where on the face of the petition plaintiff alleged a date of injury more than six months prior to commencement of suit. ³ The rule of Montgomery cannot be so easily avoided. The majority opinion was grounded on the distinction between common law and statutory causes of action, not the manner of plaintiff's pleading. Montgomery would be eviscerated if its holding could be avoided by clever pleading.

II. Uchtorff argues he met the six-month limitation requirement of Iowa Code section 613A.5 because he was injured on March 18 and commenced his action on June 27. Dahlin argues that Uchtorff did not meet the requirement because he was injured on November 8 and did not commence his suit until June 27. Thus, the controlling question in this appeal is the date of Uchtorff's injury.

There must be damage to a plaintiff as a result of defendant's wrongful act for there to be an accrued cause of action. Wolfswinkel v. Gesink, 180 N.W.2d 452, 456 (Iowa 1970). A negligent act in itself gives no right of action. "The injury is traceable to the original wrongful or negligent act, but until this act produces injury to claimant's interest by way of loss or damage, no cause of action accrues." Id. Uchtorff relies on Wolfswinkel to buttress his argument that Dahlin's October 8 negligent act did not, of itself, give rise to a cause of action.

The facts of Wolfswinkel distinguish it from the case before us. There the plaintiff insured sued the defendant insurance agent less than two years after plaintiff's hoghouse was destroyed, but more than two years after defendant, according to the petition, negligently informed him that the structure was insured. Id. at 455-56. This court held the limitations statute did not bar the action because defendant's negligence did not cause damage until the hoghouse burned. Id. at 456. The court reasoned that, until the hoghouse burned, defendant's failure to procure insurance caused plaintiff no harm. Therefore, plaintiff had no right to maintain suit at that time. For further "negligent act-time of damage" dichotomy, see Slater v. Farmland Mutual Insurance Co., 334 N.W.2d 728, 730 (Iowa 1983); and Stoller Fisheries, Inc. v. American Title Insurance Co., 258 N.W.2d 336, 341 (Iowa 1977).

In the instant case, it is more difficult to determine when the damage caused by Dahlin's negligent act occurred. Although Uchtorff insists he was not damaged until March 18, our rules of civil procedure and case law do not support him. The final sentence of Iowa Rule of Civil Procedure 82(f) states:

Lack of notice of the entry by the clerk does not affect the time to appeal....

Estate of Young, 273 N.W.2d 388, 390-91 (Iowa 1978), held that where, through negligence of the clerk, parties are notified of the entry of an order beyond the appeal time, a petition under rules 252 and 253 will renew the time for appeal. See also Robco Transp. v. Ritter, 356 N.W.2d 497, 498-99 (Iowa 1984). A direct appeal, taken at the time notice of the order is received but outside the thirty-day period, is doomed to failure by Iowa Rule of Civil Procedure 82(f). Young, 273 N.W.2d at 391. Despite Young, Uchtorff took a direct appeal when he received untimely notice of the October 8 order. The direct appeal was futile because it was taken outside the thirty-day period. ⁴ Because an appeal cannot be taken beyond the thirty-day period without special leave of this court, we hold Uchtorff was injured on November 8.

The court of appeals, resolving this issue in Uchtorff's favor, relied on our rule of appellate procedure 20(b). ⁵ That approach has two obstacles. First, rule 20(b) was not in effect at the time of the events in question. Second, rule 20(b) permits this court to extend the time for appeal only upon motion of a party within sixty days after expiration of the time for appeal. Uchtorff made no such motion.

Though our reading of rule 20(b) may be viewed as causing a harsh result in this case, it is in conformity with our case law and rules. Untimely appeals present questions of subject matter jurisdiction. Robco, 356 N.W.2d at 498. The fact that lack of subject matter jurisdiction may be raised at any time in a proceeding reflects the seriousness with which courts view jurisdictional matters. See Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978). We raise matters of jurisdiction on our own motion. Id. Our rules of civil and appellate procedure reflect that concern. District court may not relieve a party who fails to make a timely appeal, even when the failure is wholly due to the fault of another. See Iowa R.Civ.P. 82(f). Though we may enlarge or shorten the time prescribed by the rules of appellate procedure for the doing of any act, we are prohibited from enlarging the time for appeal except for the limited power provided by Iowa Rule of Appellate Procedure 20(b).

We hold that, within the meaning of section 613A.5, Uchtorff was injured on November 8. Because he did not file notice of claim within sixty days, or commence suit within six months of that date, as required by section 613A.5, his action is barred. We vacate the court of appeals opinion and affirm the district court ruling that granted Dahlin's motion for summary judgment.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

All Justices concur except LARSON, HARRIS, and McCORMICK, JJ., who dissent.

LARSON, Justice (dissenting).

I dissent from the majority's refusal to apply the discovery rule for the reasons set out in division II of my dissent in Montgomery v. Polk County, 278 N.W.2d 911, 918-27, and for those following.

To require...