from the Iowa District Court for Osceola County, Patrick M.
plaintiff appeals the district court's decision that
granted summary judgment to the defendants.
J. Krull of Krull Law Firm, LLC and Randy L. Waagmeester of
Waagmeester Law Office, P.C., Rock Rapids, for appellant.
B. Shuck of Shuck Law Firm, Sioux City, for appellee DPD,
Scott Bardole of Anderson & Associates, West Des Moines,
for appellee C&L Tiling, Inc., d/b/a Timewell Drainage
Products & Services.
by Vogel, P.J., and Tabor and Bower, JJ. Carr, S.J. takes no
Jervik appeals the district court's decision granting the
summary judgment motions of DPD, Ltd, L.L.C. (DPD) and C
& L Tilling, Inc., d/b/a Timewell Drainage Products and
Services (Timewell). Jervik asserts the district incorrectly
concluded that DPD and Timewell did not owe Jervik a duty of
care on the day he was injured on the property owned by DPD
and leased by Timewell. As an initial matter, both DPD and
Timewell filed motions to dismiss Jervik's appeal as
untimely. The supreme court ordered the timeliness issue to
be submitted with the appeal. Because we conclude the motion
Jervik filed following the district court's decision on
the summary judgment motions was not a proper motion under
Iowa Rule of Civil Procedure 1.904(2), the motion did not
toll the time for Jervik to file an appeal, and Jervik's
notice of appeal was untimely. We therefore dismiss this
appeal as we lack subject matter jurisdiction.
Background Facts and Proceedings.
2012, DPD and the City of Sibley were in discussions with
Timewell seeking to persuade Timewell to bring a
manufacturing plant to Sibley to be located in a warehouse
owned by DPD. As part of the negotiations, the City of Sibley
agreed to install a new, larger transformer at the property
to meet the electricity demands of Timewell's
manufacturing operations and DPD agreed to acquire and have
installed a new larger switchgear box. The lease between DPD
and Timewell was signed in February 2013, but the City of
Sibley had not yet been able to purchase a new larger
transformer, so it borrowed a transformer from another city.
DPD hired Current Electric, a sole proprietorship owned and
operated by Jervik, to install the new switchgear box and to
connect that switchgear box to the borrowed transformer. This
work was performed in April 2013, and Timewell then hired
Jervik's company to complete electrical work in the
leased building for Timewell's machinery.
the City of Sibley was able to obtain the new transformer,
Jervik and his employees came back to Timewell's facility
on July 20, 2013, to connect the new transformer to the new
switchgear box and the previously existing smaller switchgear
box. Two of Timewell's employees were present at the
facility to permit the workers access to the building but did
not otherwise direct the electrical work. After the new
transformer was installed by the City of Sibley, the
electricity was turned off by the city for Jervik and his
employees to connect the transformer to the switchgear boxes.
Jervik asked the city employees to energize the system once
the connections were made to ensure everything was connected
performed a test that determined the rotation of the system
was "reversed." Jervik asked the city employees to
de-energize the system, he performed the necessary adjustment
in the smaller switchgear box, and he asked the city
employees to energize the system to ensure it was functioning
properly. The panel doors to the smaller switchgear box were
not reinstalled before Jervik asked the city employees to
energize the system. Once Jervik determined the system was
functioning correctly, he attempted to reinstall the panel
doors without requesting the system be de-energized. At that
moment, an arc flash explosion occurred, which injured
Jervik, two of his employees, and two Timewell employees.
injured in the explosion sued everyone involved and there
were various cross-claims and third-party claims filed. All
claims asserted were resolved except for the claims Jervik
asserted against DPD and Timewell for his own injuries. DPD
and Timewell both filed motions for summary judgment
asserting neither owed Jervik a duty of care under the law.
Jervik resisted the motions and after a hearing, the district
court granted both motions for summary judgment, dismissing
Jervik's claims on November 18, 2015.
filed a motion to "reconsider, amend, or enlarge the
court's ruling" on December 3, 2015. Both DPD and
Timewell resisted the motion asserting the court's
summary judgment ruling was correct and that Jervik's
motion was not a proper motion under rule 1.904(2). On
February 1, 2016, the district court overruled the motion,
concluding "the issues raised in Jervik's motion to
reconsider had already been decided and rejected in its prior
ruling." The court stated that it had "already