Iowa Civ Pro Blog

The Court Does Not Have to Set a Date for Hearing or Nonoral Submission of a Summary Judgment Motion

Iowa Rule of Civil Procedure 1.981(3), part of the summary judgment rules, states in part: “[T]he time fixed for hearing or nonoral submission shall be not less than 20 days after the filing of the motion, unless a shorter time is ordered by the court.”

Does this sentence mean that the court has to fix a time for hearing or nonoral submission?

Iowa appellate courts had not answered that question until the Iowa Court of Appeals did so on January 22, 2009, in Rector v. Sheldon Comm. Sch.

The Court of Appeals’ answer was no, “a plain reading of the rule does not require a tribunal to provide the parties with notice of a date for nonoral submission. A tribunal need not inform the parties of the date it fixes for nonoral submission ‘unless a shorter time [than twenty days] is ordered.’”

The consequence of this is that parties cannot count on more time to submit additional evidence or briefing in support of, or in opposition to, a summary judgment motion just because the court has not set a hearing or nonoral submission date.

Follow the Appellate Rules on Form of Briefs or Have Your Appeal Issues Ignored

In Schmidt v. Seaba, decided January 22, 2009, the Iowa Court of Appeals in essence ignored the appeal issues presented by the appellant because “he failed to follow the Iowa Rules of Appellate Procedure that govern the form and manner of briefs and appendices.” His brief violated Rules 6.14(1)(c), (d), (e), (f), and (g). Most fatal, he failed to provide a trial transcript. The fact that the appellant was acting pro se had no effect on the decision. Schmidt provides further evidence that procedure can dictate substance.

Clients Must Approve Trial Continuances in Writing

Scheduled civil trials are routinely continued in Iowa, often with the consent of everyone involved. Procedurally, though, a client must consent in writing to the continuance, unless the court waives the written approval.

Iowa Rule of Civil Procedure 1.910(2) states: “All motions for continuance in a case set for trial shall be signed by counsel, if any, and approved in writing by the party represented, unless such approval is waived by court order.”

The best way to file a motion for continuance is to include a statement at the end of the motion, signed by the client, in substantially the following form: “I, [insert name of client], hereby approve the request in the above motion for a continuance of the scheduled trial in this matter.”

The Rule, however, is actually less demanding. “Approved in writing” does not necessarily mean a signed statement. It could be an email from the client saying, “Go ahead.”

Sometimes it is necessary to file the motion for continuance before the client can provide written approval of the continuance. In such cases, the motion should contain a statement such as: “The undersigned requests that the Court waive written approval of the parties represented, pursuant to Iowa Rule of Civil Procedure 1.910(2).” Alternatively, I have merely included a sentence in the proposed order attached to the motion that states: “Pursuant to Iowa Rule of Civil Procedure 1.910(2), the written approval of the parties represented is hereby waived.” Attorneys should still obtain oral approval from their clients.

I have never actually had a judge raise the issue of a client’s written approval of a motion for continuance. Most judges are likely to be more concerned with whether the client has been consulted and does approve of the continuance than with whether the attorney has a written consent from the client.

Not surprisingly, no Iowa appellate court has had the opportunity to address Rule 1.910(2).

Proper Third-Party Practice Under Rule 1.246

Parties sued in Iowa cannot file a third-party petition against a third-party merely because they blame that third-party. In order to file a third-party petition, the defendant must be able to legitimately state that the plaintiff could blame the third-party, but has not.

Iowa Rule of Civil Procedure 1.246(1) states: “At any time after commencement of the action a defending party, as a third-party plaintiff, may file a cross-petition and cause an original notice to be served upon a person not a party to the action who is or may be liable for all or part of the plaintiff’s claim. (Emphasis added.) The emphasized portion creates a condition for a third-party petition: the third-party defendant must be able to--and must actually--state that the third-party defendant is liable to the original plaintiff, not to the defendant.

As a result, a third-party petition that merely seeks relief against the third-party for the defendant’s damages is improper third-party practice.

It is true that Rule 1.246 does not limit the scope of remedies that may be sought in a third-party petition, but it does “limit[] the type of party who may be the subject of a [third-party] petition by requiring that the party be one subject to potential liability to the plaintiff in the underlying action.” Atlas, Ltd. v. Kingman Warehouse Co., 357 N.W.2d 584, 586 (Iowa 1984). Thus, a defendant could seek its own damages against a third-party, if it also claims the third-party is liable on the plaintiff’s claim.

Rule 1.246(1) contemplates that “[a]ny party may move to strike the third-party claim or for its severance or for separate trial.” Since a third-party claim that fails to allege liability on the plaintiff’s claim may not be brought as a third-party action at all, the proper remedy is to strike it from the proceedings.

Amended Certiorari Rules Now Effective

Amendments to Rules 1.1401-.1412 relating to certiorari actions take effect today. Many of the changes are stylistic.

Welcome to the Iowa Civ Pro Blog

Iowa Civ Pro Blog is a blog about the Iowa rules of civil procedure, and federal rules as they relate to Iowa litigation, by Cedar Rapids attorney Jason Steffens. Read more about the blog here and more about Jason here. Also, feel free to contribute to the discussion in the comments section of each post.