JOEL A. HARPER and KATHY L. HARPER vs. PELLA CORPORATION
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IN THE SUPREME COURT OF IOWA
No. 19 / 06–1198
Filed October 10, 2008
JOEL A. HARPER and KATHY L. HARPER,
Appellants,
vs.
PELLA CORPORATION,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Marion County, Gary G.
Kimes and John D. Lloyd, Judges.
Plaintiffs appeal district court’s grant of summary judgment in
favor of defendant on their premises-liability claim, and defendant crossappeals district court’s denial of summary judgment on statute-oflimitations grounds.
DECISION OF COURT OF APPEALS AND
DISTRICT COURT JUDGMENT AFFIRMED.
Robert A. Wright, Jr. of Wright and Wright, Des Moines, for
appellants.
Ross W. Johnson and Carolyn A. Gunkel of Faegre & Benson LLP,
Des Moines, for appellee.
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PER CURIAM.
Iowa resident Joel Harper and his wife, appellant Kathy Harper,
brought this premises-liability lawsuit against Pella Corporation for
injuries sustained by Joel Harper when he fell in a house owned by Pella
and located in Kentucky.
Pella moved for summary judgment,
contending Kentucky’s one-year statute of limitations should apply to
bar this action, which was filed more than one year after the incident
occurred.
See Ky. Rev. Stat. Ann. § 413.140(1)(a) (West 2003).
The
plaintiffs argued Iowa’s two-year limitations period governed. See Iowa
Code § 614.1(2) (2003).
The district court (Judge Kimes) determined
Iowa’s statute applied and denied summary judgment. Pella moved for
summary judgment again, this time contending the plaintiffs failed to
generate a genuine issue of material fact on the liability issue.
The
district court (Judge Lloyd) granted Pella’s motion, concluding there was
no evidence from which a jury could find that a dangerous condition
existed at the time Harper fell, and therefore, Pella was entitled to
judgment as a matter of law.
The plaintiffs appealed the district court’s dismissal of their
lawsuit, and Pella cross-appealed the court’s denial of summary
judgment on the basis the Harpers’ lawsuit was untimely. The case was
transferred to the court of appeals.
That court affirmed the district
court’s dismissal of the case on liability grounds and did not reach the
statute-of-limitations issue raised in Pella’s cross-appeal.
This court
granted further review.
The members of the court taking part in the decision being equally
divided on the plaintiffs’ appeal, the court declares the decision of the
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district court is affirmed by operation of law.1 See Iowa Code § 602.4107
(2007). This decision makes it unnecessary to consider the defendant’s
cross-appeal.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Baker, J., who takes no part.
This is not a published opinion.
1Ternus,
C.J., and Cady and Appel, JJ., would affirm; Streit, Wiggins, and
Hecht, JJ., would reverse.
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