IN THE COURT OF APPEALS OF IOWA

No. 15-1786

Filed October 26, 2016

STARK CONSTRUCTION and CHARLES STARK,

Petitioners-Appellees,

vs.

JOHN LAUTERWASSER,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, 

Judge.

An employee appeals following the district court’s order remanding this 

workers’ compensation case to the agency. REVERSED AND REMANDED.

Thomas M. Wertz and Daniel J. Anderson of Wertz, Drake & Anderson, 

Cedar Rapids, for appellant.

Matthew G. Novak and Bradley J. Kaspar of Pickens, Barnes & 

Abernathy, Cedar Rapids, for appellees.

Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

John Lauterwasser injured his hand on a saw while working in September 

2009. After receiving treatment, he filed a claim for workers’ compensation 

benefits against Stark Construction in 2010. After hearing testimony in 2011, the 

deputy workers’ compensation commissioner denied benefits, finding 

Lauterwasser was not an employee of Stark Construction but was instead a 

subcontractor. On intra-agency appeal, the deputy’s decision was reversed, and 

Lauterwasser was awarded benefits. 

Stark Construction sought judicial review with the district court, and the 

court concluded the agency erred in finding Lauterwasser was an employee. 

The district court reversed the agency’s decision, finding the agency’s conclusion 

that Lauterwasser was an employee was “illogical.” The case was appealed to 

this court, and we reversed the district court’s judicial review decision, concluding 

substantial evidence supported the agency’s factual findings and its application 

of law to the facts was not irrational, illogical, or wholly unjustifiable. See Stark 

Constr. v. Lauterwasser, No. 13-0609, 2014 WL 1495479, at *1 (Iowa Ct. App. 

Apr. 16, 2014). However, because Lauterwasser’s employment status was not 

the only issue raised on judicial review, we remanded the case to the district 

court “for consideration of the remaining challenges to the commissioner’s 

award.” See id. at *9. 

On remand the district court noted the only remaining issue was Stark 

Construction’s claim Lauterwasser failed to give timely notice of his injury, which 

would have precluded him from recovering benefits under Iowa Code section 

85.23 (2009). The district court stated there was no agency ruling on the lack-of-
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notice issue but that the issue of the timeliness of notice was a factual 

determination. It then remanded the matter to the agency “for issuance of a 

decision on [Stark Construction’s] argument that [Lauterwasser] failed to give 

notice of his work injury under Iowa Code §§ 85.23 and 85.24.” 

Lauterwasser appeals, claiming the district court’s remand to the agency 

was improper because the lack of agency ruling on this issue is indicative of 

Stark Construction’s failure to preserve error on the issue of its notice defense for 

judicial review. Lauterwasser claims that the district court should have concluded 

the lack of error preservation precluded Stark Construction from raising the 

notice issue on judicial review and simply issued a ruling affirm the agency’s final 

decision awarding him benefits. In response, Stark Construction asserts this 

court does not have jurisdiction to hear this appeal because Lauterwasser filed 

an improper 1.904(2) motion that failed to toll the time for filing the notice of 

appeal. Stark Construction therefore claims this appeal is untimely, depriving 

this court of jurisdiction. In the alternative, Stark Construction asserts the 

remand to the agency was proper as the district court did not have “jurisdiction” 

to address the notice defense or error preservation claim without first having a 

ruling from the agency. 

I. The Validity of the Rule 1.904(2) Motion.

Before we can address the merits of Lauterwasser’s appeal, we first must 

determine whether this matter was timely appealed. A notice of appeal must be 

filed within thirty days after the final order or judgment. Iowa R. App. P. 

6.101(1)(b). “A failure to file a timely notice of appeal leaves us without subject 

matter jurisdiction to hear the appeal.” Hills Bank & Trust Co. v. Converse, 772 
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N.W.2d 764, 771 (Iowa 2009). The notice of appeal in this case was filed well 

beyond the thirty-day deadline; however, it was filed within thirty days of the 

district court’s ruling on Lauterwasser’s motion under Iowa Rule of Civil 

Procedure 1.904(2). A proper motion under rule 1.904(2) will toll the time for 

filing a notice of appeal. See Iowa R. App. P. 6.101(1)(b); In re Marriage of 

Okland, 699 N.W.2d 260, 265–66 (Iowa 2005) (“[A]n untimely or improper rule 

1.904(2) motion cannot extend the time for appeal.”). So we must determine 

whether the 1.904(2) motion was proper. 

When a rule 1.904(2) motion amounts to nothing more than a 

rehash of legal issues previously raised, we will conclude the 

motion does not toll the time for appeal. Explore Info. Servs. v. Ct. 

Info. Sys., 636 N.W.2d 50, 57 (Iowa 2001). By contrast, when used 

to obtain a ruling on an issue that the court may have overlooked, 

or to request the district court enlarge or amend its findings when it 

fails to comply with rule 1.904(1), the motion is proper and will toll 

the time for appeal. 

Baur v. Baur Farms, Inc., 832 N.W.2d 663, 668–69 (Iowa 2013). 

In this case, the district court, in its ruling, articulated Lauterwasser’s claim 

was that Stark Construction failed to preserve error on its lack-of-notice defense 

because the agency failed to rule on the defense and Stark Construction’s failed 

to file a motion for a rehearing in the agency before it filed its petition for judicial 

review. The district court, however, did not rule on Lauterwasser’s errorpreservation issue; instead it remanded the matter to the agency to issue a 

decision on the lack-of-notice defense. Because the district court did not decide 

Lauterwasser’s error-preservation claim, the rule 1.904(2) motion was proper as 

it was used “to obtain a ruling on an issue that the court may have overlooked.” 
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Id. at 669. We thus conclude the notice of appeal was timely filed, giving this 

court jurisdiction to hear Lauterwasser’s appeal.

II. The District Court’s Remand to the Agency.

Lauterwasser claims the district court erred in remanding the matter to the 

agency for the agency to issue a decision on Stark Construction’s lack-of-notice 

defense. Lauterwasser claims Stark Construction failed to get a ruling from the 

agency on its affirmative defense before filing its petition for judicial review, and 

as a result, Stark Construction has waived the issue. 

Stark Construction asserts, and we agree, that it raised the affirmative 

defense of the lack of notice before both the deputy commissioner at the 

arbitration hearing and before the commissioner on intra-agency appeal. 

However, when the agency issued its appeal decision awarding Lauterwasser 

benefits, there is no mention of Stark Construction’s lack-of-notice defense. 

When an agency fails to address an issue in its ruling and a party 

fails to point out the issue in a motion for rehearing, we find that 

error on these issues has not been preserved. Our respect for 

agency processes in administrative proceedings is comparable to 

that afforded to district courts in ordinary civil proceedings. Just as 

we do not entertain issues that were not ruled upon by the district 

court and that were not brought to the district court’s attention 

through a proper posttrial motion, Meier v. Senecaut, 641 N.W.2d 

532, 540 (Iowa 2002), we decline to entertain issues not ruled upon 

by an agency when the aggrieved party failed to follow available 

procedures to alert the agency of the issue.

KFC Corp. v. Iowa Dep’t of Revenue, 792 N.W.2d 308, 329 (Iowa 2010). A 

court’s consideration of issues on judicial review “is limited to questions 

considered by the agency.” Office of Consumer Advocate v. Iowa State 

Commerce Comm’n, 465 N.W.2d 280, 283 (Iowa 1991). Issues not raised 

before, or decided by, the agency are deemed waived on judicial review. Id. 
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The district court remanded the case to the agency pursuant to its 

authority under Iowa Code section 17A.19(7). Iowa Code section 17A19(7) 

provides: 

In proceedings for judicial review of agency action a court 

may hear and consider such evidence as it deems appropriate. In 

proceedings for judicial review of agency action in a contested 

case, however, a court shall not itself hear any further evidence 

with respect to those issues of fact whose determination was 

entrusted by Constitution or statute to the agency in that contested 

case proceeding. Before the date set for hearing a petition for 

judicial review of agency action in a contested case, application 

may be made to the court for leave to present evidence in addition 

to that found in the record of the case. If it is shown to the 

satisfaction of the court that the additional evidence is material and 

that there were good reasons for failure to present it in the 

contested case proceeding before the agency, the court may order 

that the additional evidence be taken before the agency upon 

conditions determined by the court. The agency may modify its 

findings and decision in the case by reason of the additional 

evidence and shall file that evidence and any modifications, new 

findings, or decisions with the reviewing court and mail copies of 

the new findings or decisions to all parties.

This provision provides a district court with the discretion to remand a matter to 

the agency in a contested case proceeding when a party articulates a reason 

additional evidence is material and good reasons exist for failing to present that 

evidence to the agency in the initial contested case proceeding. Iowa Code 

§ 17A.19(7). The remand ordered in this case does not involve a party needing 

to present additional evidence to the agency in a contested case proceeding. 

Instead, the district court is requesting the agency to simply rule on an issue 

previously presented to the agency based on the existing factual record. Thus, 

section 17A.19(7) does not provide the court with the ability to remand the matter 

to the agency for a ruling on Stark Construction’s lack-of-notice defense. 
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We agree with Lauterwasser the district court erred in remanding the case 

to the agency for a ruling on an issue previously presented to the agency. In light 

of Stark Construction’s failure to preserve error by neglecting to file a motion for 

rehearing when the agency did not rule on its lack-of-notice defense prior to filing 

the petition for judicial review, the district court should have denied Stark

Construction’s petition for judicial review and affirmed the agency’s final decision 

awarding benefits to Lauterwasser. We reverse the district court’s decision 

remanding this matter to the agency and remand for the entry of an order 

consistent with this opinion.

REVERSED AND REMANDED.