A. NOTICE OF APPEAL 1. Where Filed I. CASE INITIATING PROCEDURES a. File original notice with the district court clerk where the judgment, order or decree is entered. See Appendix, Form Number 5. b. Send a courtesy copy to the Supreme Court Clerk. Iowa R. App. P. 6.6(1). 2. Time for Filing a. File notice within 30 days of entry of judgment, order or decree, unless filing notice of an appeal of a child in need of assistance order or a termination of parental rights order under Iowa Code section 232.117 (in which case, see section I(A)(2)(b)). Iowa R. App. P. 6.5(1). i. If a Rule 1.904(2) motion, motion for new trial, or motion for judgment notwithstanding verdict is filed, file notice of appeal within 30 days of a ruling on such motion. Id. Be sure post-trial motions are available and therefore toll the time for filing a notice of appeal. An untimely motion will not toll the time for filing a notice of appeal. Hogan v. Chesterman, 279 N.W.2d 12, 15 (Iowa 1979); Hays v. Hays, 612 N.W.2d 817, 819 (Iowa Ct. App. 2000). A motion to reconsider is in substance a Rule 1.904(2) motion. Beck v. Fleener, 376 N.W.2d 594, 596 (Iowa 1985). A Rule 1.904(2) motion will not toll the time to file a notice of appeal in every instance. Bellach v. IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa 1998). A proper Rule 1.904(2) motion seeks to challenge an issue of fact tried by the court without a jury or seeks to amend or enlarge a legal conclusion reached by the court in that context. Id. If, however, a Rule 1.904(2) motion is used to raise legal issues already raised and decided adversely to the moving party, the motion will not toll the time to file a notice of appeal. Id. ii. A timely appeal is jurisdictional. The time for appeal cannot be extended by agreement of the parties. Robco Transp., Inc. v. Ritter, 356 N.W.2d 497, 498 (Iowa 1984). 1
iii. An additional three days under Rule 6.31(5) cannot be added to the 30- day deadline because the additional time does not apply where the deadline runs from the filing of a judgment, order or decree. See Iowa R. Civ. P. 1.443(2); Iowa R. App. P. 6.31(5). iv. If the order being appealed was signed on one day but file-stamped on another, calculate the notice of appeal deadline from the date the order was entered. Iowa R. App. P. 6.5(1). b. File notice within 15 days of orders in chapter 232 child in need of assistance and termination cases, unless a motion for a new trial or a Rule 1.904(2) motion is filed, and then within 15 days after the entry of a ruling on such motion. Iowa R. App. P. 6.5(2). The notice must be signed by both the appellant and the appellant s attorney. Iowa R. App. P. 6.6(3). c. The notice does not actually have to be filed on the day it is due. Rather, it must be served by that date, with filing to be done within a reasonable time following service. Iowa R. Civ. P. 1.442(4); Iowa R. App. P. 6.31(5). d. The Supreme Court, or an individual justice thereof, may grant an extension of time to file a notice of appeal, if the failure to timely file notice is due to the failure of the district court clerk to notify the potential appellant of the entry of the district court s final judgment. Any request for such an extension must be filed and served within 60 days of the expiration of the time to file a notice of appeal. Iowa R. App. P. 6.20(2); see also infra section III(B)(4). i. The district court is not authorized to extend the time for appeal due to lack of notice from the clerk. Iowa R. Civ. P. 1.442(6). ii. The appropriate procedure to extend the time for appeal if the clerk does not notify the potential appellant within the 60-day window to move for an extension is a Petition under Iowa Rules of Civil Procedure 1.1012 and 1.1013. Uchtorff v. Dahlin, 363 N.W.2d 264, 267 (Iowa 1985); Estate of Young, 273 N.W.2d 388, 390-91 (Iowa 1978). 2
Practice Pointer It is unlikely an extension of time for filing a notice of appeal will be granted unless the clerk s delay in notifying a party of a district court ruling is substantial and truly prevents the party from filing a timely notice of appeal. 3. Transmittal to Supreme Court Within four days of the filing of the notice of appeal, the district court clerk forwards certified copies of notice of appeal and docket entries. A copy of the docket entries is also sent to counsel. Iowa R. App. P. 6.11(1). 4. Filing Fee None, until docketing. See infra section II (F)(1), (3). 5. Contents of Notice of Appeal The notice of appeal shall specify the parties taking the appeal and the decree, judgment or order appealed from. Iowa R. App. P. 6.6(1). Caption the notice in the district court. Make the notice a simple, one page notice. See Appendix, Form Number 5. 6. Supreme Court Action Upon Appeal Supreme Court Clerk assigns a docket number, enters the notice of appeal, and tickles for filing deadlines. 7. Trial Court Jurisdiction Pending Appeal a. As a general rule, the district court loses jurisdiction over the merits of a case when the appeal is perfected. Wolf v. City of Ely, 493 N.W.2d 846, 848 (Iowa 1992). The district court may address a pending post-trial motion if a limited remand is granted by the appellate court. b. A district court retains jurisdiction over collateral matters not involving the subject matter of the appeal. State of Iowa v. Jose, 636 N.W.2d 38, 46 (Iowa 2001); In re B.L., 470 N.W.2d 343, 347 (Iowa 1991). c. The district court retains jurisdiction to enforce its judgment. In re Marriage of Hoffman, 515 N.W.2d 549, 550 (Iowa Ct. App. 1995). 3
8. Waiver and Estoppel a. Party asserting waiver of appellate rights has the burden of proof. Yeager v. Durflinger, 280 N.W.2d 1, 4 (Iowa 1979). b. Actions constituting waiver of appellate rights: i. Voluntary payment of a judgment may operate as a waiver of a right to appeal. Ames Gen. Contractors, Inc. v. Iowa Employment Sec. Comm n, 200 N.W.2d 538, 541 (Iowa 1972); see also Yeager v. Durflinger, 280 N.W.2d 1, 4 (Iowa 1979) (defendant s payment ruled not voluntary, and thus there was no waiver). ii. Generally, consent to judgment constitutes a waiver of a right to appeal. Hense v. G.D. Searle & Co., 452 N.W.2d 440, 444 (Iowa 1990). There is an exception where the consent is not truly voluntary or where unique procedural rules and considerations of judicial economy justify allowance of an appeal. Id. iii. Acceptance of benefits under a judgment or ruling may constitute a waiver of a right to appeal. Neylan v. Moser, 400 N.W.2d 538, 541 (Iowa 1987). B. NOTICE OF CROSS-APPEAL 1. Where Filed a. File original notice with the district court clerk where the judgment, order or decree is entered. Iowa R. App. P. 6.6(1). b. Send a courtesy copy to the Supreme Court Clerk. Iowa R. App. P. 6.6(1). 2. Time for Filing a. File notice within 30 days for taking an appeal or within five days after appeal is taken, whichever is later. Iowa R. App. P. 6.5(1); In re Marriage of Linberg, 462 N.W.2d 698, 702 (Iowa Ct. App. 1990). i. For example, if the notice of appeal is filed on day one following the judgment, decree, or order, there will be 29 more days to file a crossappeal. If the notice of appeal is filed on days 26-30, there will then be an additional five days to file a cross-appeal. 4
b. For appeals in chapter 232 child in need of assistance and termination cases, file notice within 15 days for taking an appeal or within five days after appeal is taken, whichever is later. Iowa R. App. P. 6.5(2). 3. When Appropriate a. A cross-appeal must be taken whenever a party seeks to obtain a more favorable result in the appellate court than it secured at the trial court level. Randolph Foods, Inc. v. McLaughlin, 253 Iowa 1258, 1277, 115 N.W.2d 868, 879 Iowa (1962). b. A party cannot cross-appeal from a judgment in its favor. Wentland v. Stewart, 236 Iowa 258, 260-61, 18 N.W.2d 305, 306 (1945). A party may not appeal a finding not prejudicial, no matter how erroneous, unless the judgment is adverse. Wasson v. Sac County Fair Ass n, 313 N.W.2d 548, 550 (Iowa 1981); Fankell v. Schober, 350 N.W.2d 219, 221 (Iowa Ct. App. 1984). This rule applies to cross appeals. See Benson v. Choice Grain Storage Co., 246 Iowa 591, 600, 67 N.W.2d 433, 438 (1954). c. It is unclear from the rules and there is no case law concerning whether there is a right of cross appeal in the case of interlocutory orders. Accordingly, a party who wishes to challenge an interlocutory order should proceed under Iowa Rule of Appellate Procedure 6.2. See infra section I(C). C. APPLICATION FOR INTERLOCUTORY APPEAL 1. Where Filed File original and three copies with the Supreme Court Clerk. Iowa R. App. P. 6.16(2). 2. Time for Filing File within 30 days of filing of district court order being challenged. Iowa R. App. P. 6.5(1). 3. Filing Fee a. $30.00. Iowa R. App. P. 6.35(1). i. Applicant may seek to have the Court waive the filing fee by filing an affidavit stating the nature of the proceeding, the affiant s belief that there is an entitlement to redress, and proof of inability to pay. Iowa Code 610.1. 5
Exception: Inmate or prisoners filing a civil action or appeal must pay the full filing fee, with 20% of the filing fee required before the Court will take action. Iowa Code 610A.1(1). However, the Court may authorize an inmate or prisoner to commence an appeal without prepayment of any fees if it finds that the inmate does not have sufficient funds to make the required payments. Iowa Code 610A.1(2). 4. Contents of Application for Interlocutory Appeal a. Always include a copy of the district court order being challenged. b. Include a brief in support and relevant portions of district court record. Iowa R. App. P. 6.22(3). c. If a key deadline is approaching, such as a trial date, prominently indicate that fact in the application. Specifically indicate whether a stay of district court proceedings is being sought. A separate motion to stay is recommended if there is a key deadline approaching to ensure that it receives prompt attention. d. The application and brief can be filed as two separate documents or combined into one document. 5. Resistance to Application Any resistance to the application must be filed within the time prescribed in Rule 6.22(3) 14 days unless otherwise ordered by the Supreme Court. Iowa R. App. P. 6.202, 6.22(3). (A reply to the resistance may be served and filed within 3 days after the service of the resistance. Id.) The resisting party should not wait for an order granting the application to raise any cross-appeal issues. Issues other than those raised in the application should be raised by the resisting party in a separate application. 6. Sample Form No sample form is provided in this manual due to the fact-specific nature of the application. Practice Pointer Applications for interlocutory appeal and other discretionary applications and petitions must include the challenged district court rulings and other pertinent documents. Do not bury the court with paper. Appellate Rule 6.22(3)(d) limits attachments to 25 pages, unless otherwise ordered by the Court. If a ruling must be entered quickly due to an upcoming deadline or event, highlight the relevant dates in the application and 6
any cover letter and notify the Clerk or Deputy Clerk of the Supreme Court. Specifically indicate whether you are seeking a stay of that deadline. Be sure to argue why the district court may have erred in its ruling AND why an appeal should be allowed at this time. D. FINAL JUDGMENT OR INTERLOCUTORY APPEAL 1. Final Judgment Appeal is a matter of right only from final judgment. Iowa R. App. P. 6.1. 2. Determining Whether Interlocutory or Final a. An order is interlocutory for appeal purposes if it directs inquiry into a matter of fact preparatory to a final decision. Iowa R. App. P. 6.1; In re Marriage of Zahnd, 567 N.W.2d 684, 686 (Iowa Ct. App. 1997). b. Ordinarily, summary judgment that is not dispositive of the entire case is not a final judgment for purposes of appeal. Rather, it depends on whether the judgment is related to the issues remaining in the case. River Excursions, Inc. v. City of Davenport, 359 N.W.2d 475, 477 (Iowa 1984). In a case with multiple parties, summary judgment in favor of one defendant is final as to that defendant where the claims are separate and distinct from claims against others. Argenta v. City of Newton, 382 N.W.2d 457, 459 (Iowa 1986). c. Temporary orders involving financial assistance in marriage dissolution case are final judgments which are appealable as a matter of right; failure to take timely appeal from temporary orders results in waiver of right to review. Iowa Code 598.11; In re Marriage of Denly, 590 N.W.2d 48, 50 (Iowa 1999). Temporary orders on custody or visitation are not final judgments and any appeal from these orders is interlocutory. d. Under appellate rules, an order denying right to intervene in decedent s probate proceedings to defendants in wrongful death action was an interlocutory ruling. Iowa R. App. P. 6.1, 6.2; In Re Estate of Troester, 331 N.W.2d 123, 126 (Iowa 1983). e. Denial of motion to disqualify counsel is properly subject of an interlocutory appeal. Iowa R. App. P. 1(c), 2(a); Richers v. Marsh & McLennan Group Assocs., 459 N.W.2d 478, 480 (Iowa 1990). f. An order in a CINA action directing the Department of Human Services to file a petition to terminate parental rights is interlocutory. In re W.D., III, 562 N.W.2d 183, 186 (Iowa 1997), In re A.C., 443 N.W.2d 732, 733 (Iowa Ct. 7
App. 1989). CINA adjudication orders are interlocutory, but dispositional orders are final, appealable orders. g. Sometimes there may be more than one final judgment. Board of Waterworks Trustees v. City of Des Moines, 469 N.W.2d 700, 702 (Iowa 1991) (a motion for sanctions is a collateral matter that does not toll the time for appeal of the underlying judgment); Lynch v. City of Des Moines, 464 N.W.2d 236, 240 (Iowa 1990) (appeal from attorney fee award is separate and distinct from appeal of underlying judgment). h. A final order on an application for attorney fees in the underlying action is separately appealable. If this final order is also appealed, the appellant shall file a motion to consolidate. Iowa R. App. P. 6.1(2). Practice Pointer If you have mistakenly appealed from a ruling which is not final, either dismiss the appeal or file a motion asking that the notice of appeal be treated as an application for interlocutory appeal and provide reasons why the application should be granted. Attach pertinent papers. It is a tremendous waste of everyone s efforts if the defect is not discovered until screening or submission to the appropriate court. E. PETITION FOR WRIT OF CERTIORARI 1. Where Filed File original and three copies with the Supreme Court Clerk or a justice thereof. Iowa R. App. P. 6.301. 2. Time for Filing The petition must be filed within 30 days of the alleged illegal act. Iowa R. App. P. 6.301; Iowa R. Civ. P. 1.1402(3). 3. Filing Fee a. $30.00. Iowa R. App. P. 6.35(1), 6.301. b. Plaintiff may seek to waive filing fee if counsel is court appointed. Plaintiff must file motion to waive filing fee and attach a copy of district court order of appointment. c. If the plaintiff is an inmate who is filing a petition in a civil matter, plaintiff must pay a minimum of 20% of the required fee. Iowa Code 610A.1(1). However, the Court may authorize an inmate or prisoner to commence an 8
appeal without prepayment of any fees if it finds that the inmate does not have sufficient funds to make the required payments. Iowa Code 610A.1(2). 4. Contents of Petition for Writ of Certiorari a. Always include a copy of the district court order being challenged. Other relevant documents may be attached, but they are limited to 25 pages pursuant to Appellate Rule 6.22(3)(d), unless otherwise ordered by the Court. b. Include a brief in support and relevant portion of district court record. c. If a key deadline is approaching, prominently indicate that fact in the petition. Specifically indicate whether a stay of district court proceedings, such as the issuance of mittimus, is being sought. A separate motion to stay is recommended if a key deadline is approaching to ensure that it receives prompt attention. d. The petition and brief can be filed as two documents or combined into one document. 5. When Appropriate a. A writ of certiorari is appropriate to challenge an alleged illegal act of the district court or an act that exceeds the district court s jurisdiction. Polk County Sheriff v. Iowa Dist. Ct. for Polk County, 594 N.W.2d 421, 423 (Iowa 1999); French v. Iowa Dist. Ct. for Jones County, 546 N.W.2d 911, 913 (Iowa 1996). b. Review of court-appointed attorney fee award is properly raised by certiorari. Green v. Iowa Dist. Ct., 415 N.W.2d 606, 607 (Iowa 1987). c. Review of a contempt order is properly raised by certiorari. Iowa Code 665.11. d. Ruling on motion to suppress may be reviewed by certiorari. State v. District Ct., 218 N.W.2d 641, 643 (Iowa 1974). e. Review of failure of trial court to grant non-party s motion for protective order is by certiorari. Shannon by Shannon v. Hansen, 469 N.W.2d 412, 414 (Iowa 1991). f. Allegation that board or tribunal exercising judicial functions acted illegally is proper subject of certiorari. Polk County Sheriff v. Iowa Dist. Ct. for Polk County, 594 N.W.2d 421, 423 (Iowa 1999). 9
g. If a plaintiff brings a mandamus action where certiorari should have been used, the court shall permit the party to amend its petition to ask for certiorari. Iowa R. Civ. P. 1(c). See also Bellon v. Monroe County, 577 N.W.2d 877, 879 (Iowa Ct. App. 1998) (distinction between certiorari and mandamus). 6. Parties a. The parties are designated as Plaintiff and Defendant. The plaintiff is the party seeking relief. The defendants are the district court (not an individual judge) and any other parties in the district court proceeding, other than the certiorari plaintiff. Iowa R. App. P. 6.303(1). b. The non-petitioning party from the underlying action is required to make all appellate filings required by the rules. Mason v. Robinson, 340 N.W.2d 236, 238 (Iowa 1983) (although the district court is the nominal party the nonpetitioning party is the interested party and must assume the defense of the action). c. A party may be permitted to withdraw from the defense of the court by a justice of the Supreme Court. Iowa R. App. P. 6.303. A motion to withdraw must identify the interest of the applicant in the challenged decision and state the grounds that justify withdrawal. It must be served on all parties, the district court, and the attorney general. Iowa R. App. P. 6.303. 7. Docketing Plaintiff shall cause the proceeding to be docketed within 20 days after the writ is granted. Iowa R. App. P. 6.303(2), 6.12(2)(c). 8. Return of the Writ The district court clerk shall be requested to transmit the district court record to the Supreme Court Clerk. Iowa R. App. P. 6.301. 9. Sample Form No sample form is provided in the manual due to the fact-specific nature of the petition. Practice Pointer Be sure to get the terminology correct in original certiorari actions. The party filing the petition is the plaintiff and the Iowa District Court for County is the defendant. In many cases, especially those involving domestic relations, the opposing party from the district court proceeding will represent the district court in the certiorari 10
action. In other cases, the Attorney General will represent the district court. The petition is either granted or denied. If granted, a writ is issued. The writ is then sustained or annulled by the appellate court. Do not confuse an original certiorari action with an appeal from a certiorari action in the district court. In the latter, the parties are referred to as appellant and appellee on appeal. Additionally, if one is unsure as to whether to file a petition for writ of certiorari, appeal, or discretionary review, please be advised that Iowa Rule of Appellate Procedure 6.304 states that if any of these remedies is chosen, the appellate court shall proceed as though the proper form of review had been sought. The appellate court shall proceed, even if it is of the opinion that another one of the aforementioned remedies was the proper remedy. Iowa R. App. P. 6.304. F. AMOUNT IN CONTROVERSY/APPLICATION TO CERTIFY APPEAL 1. Amount in Controversy a. Unless the action involves an interest in real estate, no appeal is allowed in a case, not originally tried as a small claim, where the amount in controversy, as shown by the pleadings, is less than $6,000. Iowa R. App. P. 6.3. b. The test for determining amount in controversy is whether the trial court could have entered judgment against any party for that amount. Kirkpatrick Estate v. Hennings, 524 N.W.2d 440, 442 (Iowa Ct. App. 1994). The amount is determined in the pleadings, not the verdict or final judgment. Id. 2. Procedure Where Amount in Controversy is Insufficient a. A small claims action may be reviewed pursuant to the procedures contained in Iowa Code section 631.16 and Iowa Rules of Appellate Procedure 6.201-.203. b. An action not originally tried as a small claim, but less than the jurisdictional amount in controversy, is governed by Iowa Rule of Appellate Procedure 6.3. 3. Filing Fee $30.00. Iowa R. App. P. 6.35(1). Practice Pointer In determining amount in controversy, remember to focus on the pleadings rather than the outcome of the case in the district court. 11
G. APPLICATION FOR DISCRETIONARY REVIEW 1. Where Filed File original and three copies with the Supreme Court Clerk. Iowa R. App. P. 6.16(1), 6.201(1). 2. Time for Filing File within 30 days after entry of the district court order. Iowa R. App. P. 6.201(1). 3. Filing Fee a. $30.00. Iowa R. App. P. 6.35(1), 201(3). b. If a defendant in a criminal proceeding has been found to be indigent by the district court, the defendant may file a written request to file application for discretionary review without payment of the fee, along with a copy of the finding of indigency. Iowa R. App. P. 6.201(3). c. If the applicant is an inmate who is filing an application in a civil matter, applicant must pay a minimum of 20% of required fee. Iowa Code 610A.1(1). 4. Contents of Application for Discretionary Review a. Always include a copy of the district court order being challenged. b. Attach copies of relevant portions of the docket and court calendar entries, court papers, exhibits, and transcript. Iowa R. App. P. 6.201(2). Attachments are limited to 25 pages, unless otherwise ordered by the Court. Iowa R. App. P. 6.22(3)(d). c. Include a brief in support and relevant portions of district court record. Iowa R. App. P. 6.22(c). d. If a key deadline is approaching, such as a trial date, prominently indicate that fact in the application. Specifically indicate whether a stay of district court proceedings is being sought. e. The application and brief can be filed as two separate documents or combined into one document. 12
5. Sample Form No sample form has been provided in this manual due to the fact-specific nature of the application. H. APPLICATION FOR DELAYED APPEAL 1. When Appropriate An application for delayed appeal is a procedure used in criminal matters to allow an appeal to be taken where the time for taking an appeal has expired. Swanson v. State, 406 N.W.2d 792, 793 (Iowa 1987). 2. Procedure There is no procedure either by statute or by rule for a delayed appeal. It is judicially created. The procedure to be followed is that used for motions before the Supreme Court under Iowa Rule of Appellate Procedure 6.22. State v. Anderson, 308 N.W.2d 42, 46 (Iowa 1981). I. CERTIFICATION OF QUESTIONS OF LAW 1. Supreme Court Action upon Certification The Supreme Court may answer questions certified to it by the United States Supreme Court, a court of appeals of the United States, a United States district court or the highest appellate court or the intermediate appellate court of another state court if there are questions of law of this state which may be determinative of the cause pending in the certifying court. Iowa Code 684A.1. 2. Where Filed The clerk of the certifying court shall file the order with the Supreme Court Clerk. Iowa Code 684A.4. 3. Contents of Certification Order a. A certification order shall set forth the questions of law to be answered and a statement of facts. Iowa Code 684A.3. b. The order shall be prepared by the certifying court. The judge presiding at the hearing shall sign the order. Id. 13
c. The certifying court shall identify the party, if any, who moved for certification of the question as movant. If the court certifies the question on its own motion, the certification order shall specify which party is to file a brief first. Iowa R. App. P. 6.452. 4. Docketing a. The movant or party who is to file a brief first shall cause the appeal to be docketed within 10 days of the date of filing of the certification order. Iowa R. App. P. 6.453. b. The movant or party who is to file a brief first shall docket the appeal by paying to the Supreme Court Clerk a docket fee in the amount of $50.00. Iowa R. App. P. 6.453. 5. Briefing The filing deadlines for all briefs and appendix are reduced pursuant to Iowa Rule of Appellate Procedure 6.17. Iowa R. App. P. 6.454; see Iowa Code 684A.6. 6. Petition for Rehearing Upon the filing of an opinion on a certified question of law, no petition for rehearing shall be allowed. Iowa R. App. P. 6.458. 7. Scope of the Supreme Court s Review The Supreme Court has discretion with regard to the questions of law it will answer. It will decline to answer certified questions where the factual basis is not sufficiently set out; it will not answer hypothetical questions. Eley v. Pizza Hut, 500 N.W.2d 61, 63 (Iowa 1993). 14