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JERVIK v. DPD Ltd.

Court of Appeals of Iowa

November 22, 2017

KIRK JERVIK, Third-Party Plaintiff/Appellant,
v.
DPD, LTD., an Iowa Limited Liability Company, and C&L TILING, INC., d/b/a TIMEWELL DRAINAGE PRODUCTS & SERVICES, Third-Party Defendants/Appellees,

         Appeal from the Iowa District Court for Osceola County, Patrick M. Carr, Judge.

         A plaintiff appeals the district court's decision that granted summary judgment to the defendants.

          Curtis J. Krull of Krull Law Firm, LLC and Randy L. Waagmeester of Waagmeester Law Office, P.C., Rock Rapids, for appellant.

          Daniel B. Shuck of Shuck Law Firm, Sioux City, for appellee DPD, Ltd.

          J. Scott Bardole of Anderson & Associates, West Des Moines, for appellee C&L Tiling, Inc., d/b/a Timewell Drainage Products & Services.

          Heard by Vogel, P.J., and Tabor and Bower, JJ. Carr, S.J. takes no part.

          VOGEL, PRESIDING JUDGE

         Kirk 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.

         I. Background Facts and Proceedings.

         In 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.

         Once 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 properly.

         Jervik 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.

         Those 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.

         Jervik 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 ...


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