from the Iowa District Court for Polk County, Jeffrey
workers' compensation claimant appeals a decision of the
district court over a dispute concerning workers'
compensation penalty benefits.
S. Soldat of Soldat & Parrish-Sams, PLC, West Des Moines,
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.
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.
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
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 when
the notice is served, provided the notice is filed with the
district court clerk within a reasonable time."
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)).
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).
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 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.
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 ...