Hays v. Hays, 612 N.W.2d 817 (Iowa Ct. App. 2000). · Go Syfert
Hays v. Hays, 612 N.W.2d 817 (Iowa Ct. App. 2000). Cases Citing This Book View Copy Cite
“an untimely motion under rule 1.904(2) will not toll the running of the thirty-day period within which an appeal must be taken.”
19 citation events (19 in the last 25 years) across 2 distinct courts.
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Estate of Tena Steensma v. Buysman, Inc., Jesse D. Braaksma, Dale W. Braaksma, and Danna S. Braaksma (2×) also: Cited "see"
Iowa Ct. App. · 2018 · quote attribution · 1 verbatim quote · confidence high
an untimely motion under rule 1.904(2) will not toll the running of the thirty-day period within which an appeal must be taken.
discussed Cited as authority (verbatim quote) In Re the Interest of K.N., Minor Child, S.t, Mother
Iowa Ct. App. · 2017 · signal: see · quote attribution · 1 verbatim quote · confidence high
we do not have jurisdiction to consider untimely appeals.
cited Cited as authority (rule) Michael Alexander Lajeunesse v. The Iowa Board of Medicine
Iowa Ct. App. · 2021 · confidence medium
Likewise, our ruling does not require we address the Board’s mootness argument. 5 Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct. App. 2000).
discussed Cited as authority (rule) N.H., on behalf of R.W. and A.W., Minor Children
Iowa Ct. App. · 2021 · confidence medium
Central to L.W.’s argument is the failure of N.H. to admit the CSP summaries as exhibits in the record of the hearing or to testify about any of the 2016 allegations of sexual abuse. “[W]e do not utilize a deferential standard when persons choose to represent themselves.” Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct. App. 2000).
discussed Cited as authority (rule) Jessica McHugh v. Adam B. Smith, M.D., and Tri-State Specialists, LLP (2×) also: Cited "see"
Iowa Ct. App. · 2021 · confidence medium
Iowa Code § 147.140 (6); see, e.g., Rucker v. Taylor, 828 N.W.2d 595, 604 (Iowa 2013); Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct. App. 2000).
cited Cited as authority (rule) In Re the Marriage of Melinda S. Rath and Keith A. Rath Upon the Petition of Melinda S. Rath, and Concerning Keith A. Rath
Iowa Ct. App. · 2017 · confidence medium
Pro se parties receive no preferential treatment.” State v. Martin, No. 11-1621, 2012 WL 45138921 , at *5 (Iowa Ct. App. Oct. 3, 2012) (citing Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct. App. 2000)).
cited Cited as authority (rule) In Re the Marriage of Deann M. Simon and Leo F. Simon Upon the Petition of Deann M. Simon, and Concerning Leo F. Simon
Iowa Ct. App. · 2014 · confidence medium
Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct. App. 2000).
discussed Cited "see" State of Iowa v. William Paul Roland
Iowa Ct. App. · 2021 · signal: see · confidence high
See Hays v. Hays, 612 N.W.2d 817, 818-19 (Iowa Ct. App. 2000) (noting that the rule that appellate court is without jurisdiction to consider appeal filed after thirty-day period “holds true even where, through the negligence of the clerk, the parties are notified of the entry of an order beyond the time for appeal” and that “[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 [1.442(6)]”).
cited Cited "see" Daniel Lee Jensen v. Karla Ruth Baccam
Iowa Ct. App. · 2020 · signal: see · confidence high
See Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct. App. 2000).
cited Cited "see" Neuman v. State
Iowa Ct. App. · 2019 · signal: see · confidence high
See Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct. App. 2000).
cited Cited "see" State of Iowa v. Lloyd R. Haywood
Iowa Ct. App. · 2017 · signal: see · confidence high
See Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct. App. 2000).
cited Cited "see" Emily M. Pederson v. Scott H. Meyer
Iowa Ct. App. · 2014 · signal: see · confidence high
See Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct. App. 2000).
cited Cited "see" In the Matter of the Estate of Gloria Braner, Nathan Braner and Brandon Braner, Interested Party-Appellants.
Iowa Ct. App. · 2014 · signal: see · confidence high
See Hays v. Hays, 612 N.W.2d 817, 818 (Iowa Ct. App. 2000).
discussed Cited "see" Iowa Supreme Court Attorney Disciplinary Board v. Curt N. Daniels
Iowa · 2013 · signal: see · confidence high
See Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct.App.2000) (noting that “[a] litigant may avoid the harsh consequences of [the predecessor to rule 6.101(5) ] by filing a motion to vacate or modify under [the predecessors of rules 1.1012 and 1.1013].”).
Retrieving the full opinion text from the archive…
Mary HAYS, Plaintiff-Appellee,
v.
Carl HAYS, Defendant-Appellant
99-0083.
Court of Appeals of Iowa.
Apr 12, 2000.
612 N.W.2d 817
Carl Hays, Adel, pro se., Ralph R. Brown and Douglas A. Flanders of McDonald, Brown & Fagen, Dallas Center, for appellee.
Huitink, Streit, Miller.
Cited by 15 opinions  |  Published
HUITINK, P.J.

Carl Hays appeals the district court decision denying his Iowa Rule of Civil Procedure 179(b) motion on an order finding him in contempt of a judicial decree. Carl claims the failure of the clerk of the district court to mail him a copy of the contempt order should extend the time for filing notice of appeal. We find Carl’s appeal was untimely and dismiss the appeal.

Plaintiff Mary Hays and defendant Carl Hays are siblings. They own adjacent parcels of land in Dallas County. On January 27, 1992, the district court entered a decree granting Mary an easement over a portion of Carl’s property and granting Carl an easement over a portion of Mary’s property.

On July 3, 1997, Mary filed an application to have Carl found in contempt for violating the terms of the 1992 decree. Carl filed a counterclaim seeking to have Mary found in contempt and asking for damages. The district court entered an order on August 12, 1998, finding Carl was in contempt for interfering with Mary’s use of her easement and for using more of Mary’s property than permitted by his easement. The court found Mary was not in contempt.

In November 1998 Carl inquired with the clerk’s office regarding the status of the case. A computer entry showed an order in the case had been filed on August 12, 1998, but the order was not in the district court file. Carl, who is pro se, claims he did not receive a copy of the order. The clerk’s office obtained a copy of the order from Mary’s attorney and on November 12, 1998, provided a copy to Carl.

On November 20, 1998, Carl filed a motion to enlarge or amend, pursuant to rule 179(b). In December 1998 the clerk’s office found the contempt order, which had been placed in the wrong file. The order was file stamped August 12, 1998. A certificate of service shows the order was mailed to the attorneys of record. On December 30, 1998, the district court overruled Carl’s posttrial motion. Carl appealed on January 26,1999.

The supreme court has ordered the question of the timeliness of the appeal to be submitted with the appeal in this case. Under Iowa Rule of Appellate Procedure 5(a), appeals must be taken within thirty days from the entry of an order. [1] We have no jurisdiction to consider an appeal filed more than thirty days following a court’s final judgment. Robco Transp., Inc. v. Ritter, 356 N.W.2d 497, 499 (Iowa 1984).

This rule holds true even where, through the negligence of the clerk, the parties are notified of the entry of an[*819] order beyond the time for appeal. Hyde v. Anania, 578 N.W.2d 647, 649 (Iowa 1998). 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 106(f). [2] Uchtorff v. Dahlin, 363 N.W.2d 264, 267 (Iowa 1985). Rule 106(f) provides the clerk must serve notice of the entry of an order by mail to each party, but:

[l]ack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the district court to relieve a party for failure to appeal within the time allowed.

Iowa R.Civ.P. 106(f).

A litigant may avoid the harsh consequences of rule 106(f) by filing a motion to vacate or modify under rules 252 and 253. In re Estate of Young, 273 N.W.2d 388, 391 (Iowa 1978). Rule 252(a) allows a court to correct, vacate or modify an order on the grounds of mistake, neglect or omission by the clerk. Hyde, 578 N.W.2d at 650.

Here, Carl did not file a motion to vacate or modify under rules 252 and 253, but instead filed a motion which specifically states it is brought pursuant to rule 179(b). We note that although Carl is proceeding pro se, we do not utilize a deferential standard when persons choose to represent themselves. Kubik v. Burk, 540 N.W.2d 60, 63 (Iowa App.1995); see also Polk County v. Davis, 525 N.W.2d 434, 436 (Iowa App.1994) (court would not consider untimely motion for new trial made pursuant to rule 244, not rule 252(a), brought by pro se defendant who did not receive copy of trial court’s order).

Under rule 247, a motion pursuant to rule 179(b) must be brought within ten days after an order is filed. An untimely motion under rule 179(b) will not toll the running of the thirty-day period within which an appeal must be taken. Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 471 (Iowa 1978). Where, as here, the rule 179(b) motion is untimely, the appeal time is computed from the date of the judgment that was the subject of the posttrial motion. See Estate of Morgan v. North Star Steel Co., 484 N.W.2d 199, 200 (Iowa 1992).

The appeal is this case was filed more than thirty days after the entry of the district court’s order on August 12, 1998. We determine Carl’s appeal was untimely. We do not have jurisdiction to consider untimely appeals. Uchtorff, 363 N.W.2d at 267. We dismiss the appeal.

APPEAL DISMISSED.

1

. An exception is found in Iowa Rule of Appellate Procedure 20(b), which permits the supreme court to extend the time for filing a notice of appeal if the court determines that failure to file a timely notice of appeal was due to the failure of the clerk of the trial court to notify die prospective appellant of the entry of the appealable final judgment. Any motion for such an extension of time must be filed within sixty days after the expiration of the time prescribed in rule 5(a). Uchtorff v. Dahlin, 363 N.W.2d 264, 267 (Iowa 1985). No motion for an extension of time under rule 20(b) .was filed in the present case.

2

. Prior to January 24, 1998, the provisions of Iowa Rule of Civil Procedure 106(f) were found in rule 82(f).