David Lowell Evenson v. Winnebago Industries, Inc. and Sentry Insurance Company

• Court: Supreme Court of Iowa
• Decided: January 18, 2019
• Docket: 17-1419
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 17–1419

Filed January 18, 2019

DAVID LOWELL EVENSON,

Appellant,

vs.

WINNEBAGO INDUSTRIES, INC. and SENTRY INSURANCE COMPANY,

Appellees.

Appeal from the Iowa District Court for Polk County, Jeffrey Farrell,

Judge.

A workers’ compensation claimant appeals a decision of the district

court over a dispute concerning workers’ compensation penalty benefits.

APPEAL DISMISSED.

Mark S. Soldat of Soldat & Parrish-Sams, PLC, West Des Moines, for

appellant.

Steven T. Durick, Joseph M. Barron, and Kathryn Johnson of

Peddicord, Wharton, Spencer, Hook, Barron & Wegman, LLP, West

Des Moines (until withdrawal), and Jason P. Wiltfang, Corridorlaw Group

Iowa, P.C., Cedar Rapids, for appellees. 2

WIGGINS, Justice.

David Lowell Evenson’s counsel filed a notice of appeal from a

district court ruling in a dispute over workers’ compensation penalty

benefits. Winnebago Industries, Inc. and Sentry Insurance Company filed

a motion to dismiss the appeal, alleging Evenson failed to timely file his

notice of appeal with the district court. We ordered that the motion to

dismiss be considered with the appeal. Upon doing so, we are compelled

to dismiss the appeal.

The record presents the following facts. The district court filed its

ruling on judicial review on August 25, 2017. On September 5, Evenson’s

counsel served a notice of appeal on opposing counsel and filed the notice

with the Clerk of the Supreme Court on September 6. Counsel captioned

the notice of appeal for Winnebago County but never filed the notice with

the Winnebago County Clerk of Court. On September 7, Evenson served

a second notice of appeal on opposing counsel and filed the appeal with

the supreme court clerk on the same day. He captioned the second notice

for Polk County but never filed the second notice with the Polk County

Clerk of Court. On January 29, 2018, Evenson filed a corrected notice of

appeal with the Polk County Clerk of Court. On the same day, he also filed

the corrected notice with the Clerk of the Supreme Court and served it on

opposing counsel. On February 20, Winnebago Industries, Inc. and Sentry

Insurance Company’s counsel filed their motion to dismiss the appeal.

The Iowa Rules of Appellate Procedure provide in relevant part that

“[a] notice of appeal must be filed within 30 days after the filing of the final

order or judgement.” Iowa R. App. P. 6.101(1)(b). The rules provide that

the filing deadline for a notice of appeal is tolled by timely service. Id. r.

6.101(4). The rules states, “The time for filing a notice of appeal is tolled 3

when the notice is served, provided the notice is filed with the district court

clerk within a reasonable time.” Id.

Rule 6.101(4) references Iowa Rule of Civil Procedure 1.442(4). The

pertinent part of rule 1.442(4) provides,

Whenever these rules or the rules of appellate procedure require a filing with the district court or its clerk within a certain time, the time requirement shall be tolled when service is made, provided the actual filing is done within a reasonable time thereafter.

Iowa R. Civ. P. 1.442(4). We have defined a “reasonable time” as “such time as is necessary, under the circumstances, for a reasonably prudent

and diligent man to do conveniently what the contract or duty requires . . .

for the rights, and possibly the loss if any to the other party affected.”

Thayer v. State, 653 N.W.2d 595, 599 (Iowa 2002) (quoting Cook v. City of

Council Bluffs, 264 N.W.2d 784, 787 (Iowa 1978) (en banc)).

Our Iowa Rules of Electronic Procedure do not affect our deadlines

contained in our rules. These rules provide in relevant part, “The

availability of electronic filing, however, does not affect deadlines or the

provisions for extension of deadlines in the Iowa Code or Iowa Court

Rules.” Iowa R. Elec. P. 16.309(1)(a).

Thus, the relevant question we must answer to decide this motion

to dismiss is whether Evenson’s counsel’s filing of the corrected notice of

appeal with the Polk County Clerk of Court was done in a reasonable time

after the first notice of appeal was served on Winnebago Industries, Inc.

and Sentry Insurance Company’s counsel. Evenson’s counsel served the

first notice of appeal on September 5, 2017. He served the second notice

of appeal on September 7. Evenson’s counsel served both of these notices

within thirty days of the district court’s filing of its ruling on judicial

review. The first time Evenson’s counsel filed a notice of appeal with the 4

Polk County Clerk of Court was January 29, 2018. The time between

service on September 7, 2017, and filing on January 29, 2018, is 144 days.

In Gordon v. Wright County Board of Supervisors, we discussed what

constitutes a “reasonable time” under our rules. 320 N.W.2d 565, 567

(Iowa 1982). There, we noted a twenty-six-day delay was “near the line.”

Id. (quoting Cook, 264 N.W.2d at 787). Accordingly, we held “a sixty-three

day delay from service on the parties to actual filing . . . [o]bviously . . .

does not meet the above ‘reasonable time’ test.” Id. We also held the fact

that the appellees suffered no loss from the delay did not extend what

constituted a reasonable time. Id.

A 144-day delay is far beyond the sixty-three-day delay we found

unreasonable in Gordon. See id. Thus, we find Evenson’s counsel did not

file the notice of appeal within a reasonable time. Cf. Thayer, 653 N.W.2d

at 599 (holding thirty-two days was a reasonable time to file the notice of

appeal after service on the opposing parties); Cook, 264 N.W.2d at 787

(holding twenty-six days was a reasonable time to file the notice of appeal

after service on the opposing parties).

Evenson makes one final argument: that his appeal was timely

because the Clerk of the Supreme Court set appellate deadlines in its

notice of the briefing deadlines. See Iowa R. App. P. 6.803(6) (“The clerk

of the supreme court shall give notice, in a notice of the briefing deadline,

to all parties or their attorneys of the date on which the last transcript

ordered for the appeal was filed.”); id. r. 6.901(1)(a) (“The appellant shall

file a proof copy of the appellant’s brief within 50 days after the date the

clerk gives the notice of the briefing deadline required under rule 6.803(6)

that the last transcript ordered for the appeal has been filed. If no

transcript is ordered or if the transcript is unavailable, the appellant shall

file a proof copy of the appellant’s brief within 50 days after the clerk gives 5

notice of the briefing deadline.”). However, the setting of appellate

deadlines by the clerk cannot vest our court with jurisdiction. Failure to

file a timely notice of appeal leaves us without subject matter jurisdiction

to hear the appeal. Hills Bank & Tr. Co. v. Converse, 772 N.W.2d 764, 771

(Iowa 2009).

We are therefore without jurisdiction to entertain this appeal.