from the Iowa District Court for Fayette County, Joel A.
administrators of an estate appeal the district court's
grant of summary judgment in this wrongful death action.
M. Marzen of Marzen Law Office, P.L.L.C., Waverly, for
C. Kelly of Allen, Vernon & Hoskins, PLC, Marion, and
Charles R. Kelly, Jr. of Charles Kelly Law Office, P.C.,
Postville, for appellee.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
January 22, 2013, Layne Schneider's body was found in a
burnt pickup truck, which had left the roadway in Fayette
County. Two years later, Schneider's parents, as
administrators of his estate (the Administrators), filed a
wrongful death lawsuit against Wade Lenth, claiming Lenth had
killed Schneider and then set the vehicle on fire. Trial was
set for November 2016, but on April 14, 2016, Lenth filed a
motion for summary judgment, asserting there was no evidence
he took any action that caused Schneider's tragic death.
The Administrators did not file a response to the motion for
summary judgment, and after a hearing, the district court
granted the motion, dismissing the Administrators'
petition. The Administrators filed a motion to reconsider,
and Lenth filed a resistance to the motion. However, before
the district court could rule on the motion to reconsider,
the Administrators filed a notice of appeal.
appeal the Administrators claim Lenth's own motion for
summary judgment and accompanying documents demonstrate there
is a genuine issue of material fact, summary judgment was
inappropriate when there was a pending discovery dispute, and
Lenth did not satisfy his burden to show there was no
material fact in dispute. These are the same claims that were
made in the Administrators' motion to reconsider that the
district court had not yet ruled on when the notice of appeal
was filed by the Administrators. Because we have no ruling
from the district court on these issues, Lenth claims the
Administrators did not preserve error.
Administrators did not file any resistance to Lenth's
motion for summary judgment.
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the
mere allegations or denials in the pleadings, but the
response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a
genuine issue for trial. If the adverse party does not so
respond, summary judgment, if appropriate, shall be entered.
Iowa R. Civ. P. 1.981(5). "A party may not rely on the
hope of the subsequent appearance of evidence generating a
fact question." Thornton v. Hubill, Inc., 571
N.W.2d 30, 32 (Iowa Ct. App. 1997). After the court ruled in
favor of Lenth, the Administrators filed a motion to
reconsider in an attempt to demonstrate a disputed material
fact existed in the record. However, before the court could
rule on the motion to reconsider, the Administrators filed
their notice of appeal. "When the party who has filed a
posttrial motion appeals, no jurisdictional problem arises. .
. . However, in these circumstances, the appellant is deemed
to have waived and abandoned the posttrial motion."
IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 628 (Iowa
2000). We therefore find the Administrators did not preserve
error on the claims they make on appeal because we have no
district court ruling addressing these claims. See Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It
is a fundamental doctrine of appellate review that issues
must ordinarily be both raised and decided by the district
court before we will decide them on appeal.").
we determine the issues raised by the Administrators on
appeal were properly preserved for our review, we would
reject them on their merits. The Administrators point to
evidence in the record that indicates the circumstances
surrounding Schneider's death are unusual and even
suspicious. But no facts in the record demonstrate Lenth had
any connection to Schneider's death. The Administrators
point out the autopsy report, attached to Lenth's motion
for summary judgment, states that Schneider had received
threatening text messages in the days before his death, but
the report does not indicate who sent those messages or what
the messages said. In addition, the report states the person
who "reportedly sent the threatening messages was
accounted for" at the time of the motor vehicle crash.
The Administrators' interrogatory responses indicate a
man by the name of Nick Hamm made statements at a bar the day
after the accident indicating he killed Schneider and the
Adminstrators assert Nick Hamm was Lenth's roommate. But
beyond the allegation that they were roommates, there is
nothing to connect Lenth to Nick Hamm's statements or
Schneider's death. The Administrators failed to put forth
any evidence as required by rule 1.981(5), by affidavit or
otherwise, to show Lenth was connected to Schneider's
death, such that would create a material fact in dispute to
defeat Lenth's motion for summary judgment.
Administrators also claim summary judgment was not proper
when there was a pending discovery dispute between the
parties. See Miller v. Cont'l Ins. Co., 392
N.W.2d 500, 503 (Iowa 1986) ("[A] party against whom a
summary judgment motion is made should first be allowed to
discover the facts if he desires." (citation omitted)).
However, we note the discovery dispute that was pending at
the time of the summary judgment ruling was Lenth's
motion to compel the Administrators to adequately respond to
his discovery requests. This is not a case where the
Administrators could not adequately respond to Lenth's
motion for summary judgment because Lenth refused to answer
the Administrators' discovery requests. Lenth was the
party bringing the motion for summary judgment and the party
who was prevented from discovering facts in the possession of
the opposing party.
we conclude the Administrators did not preserve error on the
claims they made on appeal and, even if error was preserved,
summary judgment was properly entered in favor ...