University of Vermont AAHS

Jovanovic v. Iowa State University Veterinary Teaching Hospital

Iowa Court of Appeals
UNPUBLISHED,
2003 WL 22807529
November 26, 2003

Summary of Opinion

Plaintiff Jovanovic sued the defendant veterinary hospital for damages when his horse died under the hospital’s care.  The trial court dismissed the lawsuit on the grounds that as an agency of the State of Iowa the hospital had sovereign immunity from being sued.  In this opinion, the Court of Appeals does not reach the merits of that decision because it concludes the plaintiff waited too long to file his notice of appeal.  Accordingly, it dismissed the appeal.

Text of Opinion

I. Background Facts and Proceedings

 Tommy Jovanovic appeals from the trial court's ruling dismissing his lawsuit against Iowa State University Veterinary Teaching Hospital College of Veterinary Medicine:  Equine Section (hereinafter "Veterinary Hospital").  We dismiss Jovanovic's appeal.

 Jovanovic sued the Veterinary Hospital for damages after his quarter horse died while being treated there.  The Veterinary Hospital moved to dismiss, citing its statutory immunity for liability claims.  See Iowa Code § 669.16 (2001) (state agency cannot be sued in its own name).  Jovanovic resisted, citing an allegation of his petition referring to the negligence of the Veterinary Hospital's employees.  Jovanovic alternatively requested leave to amend his petition to name the Veterinary Hospital employees as defendants.

 The trial court's ruling granting the Veterinary Hospital's motion to dismiss filed September 17, 2002, provides:  "This action is governed by the Iowa Tort Claims Act. The Act does not authorize actions against state agencies. Accordingly, the Petition must be dismissed."  Jovanovic filed a motion to reconsider in which he repeated the allegations made in his resistance to the Veterinary Hospital's motion to dismiss.  The trial court overruled Jovanovic's motion to reconsider on October 16, 2002, citing multiple references to the Veterinary Hospital as a state agency.

 Jovanovic served his notice of appeal on November 15, 2002.  On appeal, Jovanovic challenges the merits of the trial court's ruling on the Veterinary Hospital's motion to dismiss.  He argues that the allegations made in his petition are sufficient to identify the Veterinary Hospital's employees and the State of Iowa as the defendants.  He also argues that the trial court should have granted his request to amend his petition to name the correct defendants. The State argues Jovanovic's appeal was not timely filed and should accordingly be dismissed.  The State also argues the trial court correctly construed Jovanovic's petition and the ruling dismissing Jovanovic's lawsuit should be affirmed. 

 II. Standard of Review

 Our standard of review is for correction of errors at law.  Iowa R.App. P. 6.4.

 III. Timeliness of Jovanovic's Appeal

 The district court dismissed Jovanovic's action on September 17, 2002.  Nine days later, on September 26, 2002, Jovanovic filed a motion to reconsider.  The court denied the motion on October 16, 2002.  As noted earlier, Jovanovic served his notice of appeal on November 15, 2002.  The notice of appeal was within thirty days of the court's ruling on the motion to reconsider, but fifty‑nine days after the ruling dismissing Jovanovic's action against the Veterinary Hospital.

 The Veterinary Hospital contends the motion to reconsider failed to toll the time for appeal, and therefore, we do not have jurisdiction to consider Jovanovic's appeal because it was not timely filed.  Jovanovic argues the Veterinary Hospital waived its jurisdictional claims because it failed to move to dismiss, or alternatively, the motion to reconsider tolled the time for appeal pending ruling on his motion to reconsider.

 Iowa Rule of Appellate Procedure 6.5(1) provides:

[A]ppeals to the supreme court must be taken within, and not after, 30 days from the entry of the order, judgment, or decree, unless a motion for new trial or judgment notwithstanding the verdict as provided in Iowa R. Civ. P. 1.1007, or a motion as provided in Iowa R. Civ. P. 1.904(2), is filed, and then within 30 days after the entry of the ruling on such motion....

 Iowa Rule of Civil Procedure 1.904(2) provides in relevant part:

On motion joined with or filed within the time allowed for a motion for new trial, the findings and conclusions may be enlarged or amended and the judgment or decree modified accordingly or a different judgment or decree substituted.

 A timely appeal under Iowa Rule of Appellate Procedure 6.5(1) "is mandatory and jurisdictional, requiring us to dismiss a case not meeting these deadlines even if the parties do not raise the issue."  Explore Info. Servs. v. Iowa Court Info. Sys., 636 N.W.2d 50, 54 (Iowa 2001).  A motion to reconsider will toll the time for appeal "when addressed to a ruling made upon trial of an issue of fact without a jury."  Fed. Am. Int'l, Inc. v. Om Namah Shiva, Inc., 657 N.W.2d 481, 483 (Iowa 2003) (citation omitted).  Not every motion to reconsider extends the time for appeal.  Bellach v. IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa 1998).  In Beck v. Fleener, 376 N.W.2d 594, 596 (Iowa 1985), the supreme court held:

Motions to reconsider that are not in substance motions for new trial or rule [1.904(2) ] motions will not extend the time for appeal.  This court has long held that attempted appeals from orders denying motions to reconsider previous rulings raise no legal question.

 Jovanovic's motion to reconsider was substantially similar to his earlier resistance to the hospital's motion to dismiss.  In his resistance, Jovanovic argued that Iowa's notice pleadings should be liberally construed to allow his action to proceed, the court had subject matter jurisdiction to hear the case, and that in the alternative, the court should allow him to amend his pleading. In his motion to reconsider, Jovanovic again argued the court had subject matter jurisdiction, and asked the court to allow him to amend his petition in conformity with its ruling.  Jovanovic did not request the trial judge to amend his findings or address unresolved issues.  Jovanovic's motion to reconsider "amounted to no more than a rehash of legal issues raised‑‑and decided adversely to [him]...."  Bellach, 573 N.W.2d at 905.  Because Jovanovic's motion to reconsider merely rehashed issues previously decided, it failed to toll the time for appeal, and we are without jurisdiction to address the merits of Jovanovic's appeal.

 APPEAL DISMISSED.


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