IN THE COURT OF APPEALS OF IOWA

No. 16-0003

Filed December 21, 2016

RICHARD CARROLL,

Plaintiff-Appellant,

vs.

HOWARD F. SAMUELL and LAURA L. SAMUELL,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, 

Judge.

Richard Carroll appeals from the district court’s grant of summary 

judgment in favor of Howard and Laura Samuell. APPEAL DISMISSED.

Jacob Van Cleaf of Van Cleaf & McCormack Law Firm, LLP, Des Moines, 

for appellant.

Brian L. Yung of Klass Law Firm, L.L.P., Sioux City, for appellees.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

Alleging the presence of mold in the home he rented from Howard and 

Laura Samuell, Richard Carroll filed suit against the Samuells, seeking damages 

under theories of breach of contract and breach of implied warranty of 

habitability. After the Samuells filed a motion for summary judgment, Carroll 

requested that the district court refuse the motion “until such time as discovery 

has been completed.” Under the circumstances presented, we conclude Carroll 

failed to timely file his notice of appeal, and we therefore dismiss the appeal.

Carroll leased a single family home from the Samuells. After moving into 

the residence in September 2012, Carroll began experiencing respiratory 

problems. Carroll complained to the Samuells about a musky odor coming from 

the basement and about water leaks in the basement and the enclosed porch. 

The Samuells made some repairs to the home. In April 2013 Carroll informed

the Samuells he was vacating the home because of persistent and damaging 

mold. 

In August 2014, Carroll filed suit alleging he sustained personal injuries 

arising out of exposure to mold in the home. He pled legal theories of breach of 

contract and breach of implied warranty, seeking compensatory damages. He 

also sought damages for personal injuries. The Samuells filed an answer 

denying Carroll’s allegations and requesting the suit be dismissed. In September 

2014, the Samuells served Carroll with interrogatories and requests for 

production of documents. The Samuells filed a motion to compel, and after a 

hearing on the motion was set for January 27, 2015, Carroll responded to the 

discovery on January 23. The motion to compel was withdrawn. Carroll’s 
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deposition was taken on February 26. The case apparently then languished until 

October 2015 when Carroll filed a motion to set a trial scheduling conference.1 

The Samuells filed a motion for summary judgment supported with a 

memorandum of authorities and statement of undisputed facts. Hearing on both 

motions was set for November 5, 2015. Carroll filed a resistance to the motion 

for summary judgment. He did not respond to the merits of the motion. Instead 

he asserted:

2. No trial date has been set in the above listed action.

3. None of the following deadlines have been set, let alone 

expired, in the above listed action:

a. Close of Discovery;

b. Close of Depositions;

c. Deadline to Disclose Expert Witnesses;

d. Deadline to Add Additional Parties.

4. As such, [the Samuells’] Motion is premature, as [Carroll]

has not had an opportunity to exhaust the avenues by which he 

might secure testimony or other evidence to controvert the facts 

alleged to be uncontroverted by [the Samuells].

5. [Carroll] has neither completed discovery, nor taken 

deposition, nor determined whether he will retain experts [to] issue 

opinions in the above listed action.

6. [Carroll] request[s], pursuant Iowa Rule of Civil Procedure 

1.981(6), that the court refuse the application for judgment at this 

time to permit a trial date and regular deadlines to be set guiding

discovery, and permit affidavits to be obtained, depositions to be 

taken, and discovery to be had. (2015)

WHEREFORE, . . . Carrol, requests that the Court refuse 

[the Samuells’] Motion for Summary Judgment until such time as 

discovery has been completed; and any other remedy available at 

law.

The Samuells replied, and a hearing was held. The district court’s ruling was 

succinct, and we set it out in full as follows:

 

1 The district court noted, “For reasons unknown, no trial scheduling conference was 

ever held; [Carroll] made no request for a trial scheduling until October 2, 2015, some 14 

months [after he filed his lawsuit.]”
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On this date [the Samuells]’ motion for summary judgment 

came on for hearing. Both parties appeared by their respective 

attorneys. After hearing the statements and arguments of counsel, 

reviewing the court file and being fully advised in the premises, the 

court now enters the following ruling.

[Carroll] filed this action on August 5, 2014. For reasons 

unknown, no trial scheduling conference was ever held; [Carroll]

made no request for a trial scheduling conference until October 2, 

2015, some 14 months later. [The Samuells] filed their motion for 

summary judgment on October 9, 2015. [Carroll]’s resistance 

asserts only that since no deadlines for the naming of experts or 

discovery have ever been established, the motion for summary 

judgment is premature and [Carroll] is entitled to conduct discovery 

to respond to the motion for summary judgment.

[Carroll] has failed to respond to [the Samuells]’ motion for 

summary judgment as required by Iowa Rule of Civil Procedure 

1.981(6). He has provided no affidavit setting forth what discovery 

needs to be taken, or what facts would be disputed as a result of 

such discovery. [Carroll]’s counsel admitted during argument that 

[Carroll] has propounded no discovery since the inception of the 

case as of the date of hearing. It is not sufficient to respond to a 

motion for summary judgment simply to state that the non-moving 

party wishes to conduct discovery before responding. Furthermore, 

the court is not persuaded that discovery could in this case lead to 

admissible evidence that would challenge the facts set forth in 

defendants’ statement of undisputed facts. For all of these 

reasons, [the Samuells]’ motion for summary judgment is granted. 

The case is hereby dismissed. Costs are taxed to [Carroll].

 

Carroll then filed a motion to amend and enlarge pursuant to Iowa Rule of Civil 

Procedure 1.904(2). The Samuells resisted, and the motion was denied. Carroll 

now appeals.

On appeal, Carroll contends the district court “committed reversible error 

by failing to afford [Carroll] every legitimate inference the record would bare when 

ruling on [Carroll]’s actions for breach of contract and breach of implied warranty 

of habitability.” In response, the Samuells argue Carroll’s appeal is untimely, and 

the district court properly denied Carroll’s request for additional time to conduct 

discovery and properly granted summary judgment. 
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Before we can address the merits of Carroll’s appeal, we first must 

determine whether this matter was timely appealed. In this regard, our supreme 

court recently stated,

The timeliness of the filing of a notice of appeal is a 

jurisdictional question. State v. Olsen, 794 N.W.2d 285, 289 (Iowa 

2011). The filing of an improper or untimely posttrial motion does 

not toll the deadline for filing a notice of appeal. Id. Under Iowa 

Rule of Appellate Procedure 6.101(1), a party must ordinarily file a 

notice of appeal within thirty days of the filing of the final order or 

judgment. Iowa R. App. P. 6.101(1)(b); Sierra Club Iowa Chapter v. 

Iowa Dep’t of Transp., 832 N.W.2d 636, 640 (Iowa 2013). 

However, a timely and proper motion to enlarge or amend the 

findings of fact or conclusions of law tolls the time to file an appeal 

until such time the district court enters a ruling on the motion. Iowa 

R. App. P. 6.101(1)(b); In re Marriage of Okland, 699 N.W.2d 260, 

263 (Iowa 2005). After the court rules on the motion, the party has 

to file its notice of appeal within thirty days of the ruling. Okland, 

699 N.W.2d at 264. In other words, following the filing of a timely 

and proper posttrial motion under Iowa Rule of Appellate Procedure 

6.101(1), a notice of appeal is timely if a party files the notice within 

thirty days of the district court ruling on the motion. Sierra Club, 

832 N.W.2d at 640. If the party has not filed a timely and proper 

motion, we lack jurisdiction to decide the merits of an appeal. Id. 

Homan v. Branstad, ___ N.W.2d ___, ___, 2016 WL 6650114, at *2 (Iowa 

2016).2

Here, the district court’s order granting the Samuells’ motion for summary 

judgment was entered on November 5, 2015. On November 20, Carroll timely 

filed a rule 1.904(2) motion to amend and enlarge. The Samuells resisted, and 

the motion was denied on November 30. Carroll filed his notice of appeal on 

 

2 We note the Iowa Supreme Court recently adopted amendments to Iowa Rule of Civil 

Procedure 1.904, effective March 1, 2017, which eliminates the need to determine if the 

rule 1.904(2) motion was “proper.” See Iowa Supreme Ct. Order, Amendments to Iowa 

Rule of Civil Procedure 1.904 and Iowa Rule of Appellate Procedure 6.101 (Nov. 18, 

2016) (“[N]ew provisions in [rule 1.904] allow that a timely rule 1.904(2) motion will 

extend the appeal deadline, subject to an exception for successive motions.”).
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December 30, more than thirty days after the court’s summary judgment ruling. If

his rule 1.904(2) motion was not “proper,” his appeal is untimely.

A proper rule 1.904(2) motion is one that addresses rulings on factual 

issues tried without a jury; legal issues can only be raised in the context of an 

issue of fact tried by the court without a jury. See Baur v. Baur Farms, Inc., 832 

N.W.2d 663, 668 (Iowa 2013). Such a motion may also request a ruling on an 

issue the court overlooked or ask the court to enlarge or amend findings that fail 

to comply with rule 1.904(1). See id. at 669. However, the time for appeal is not 

tolled if the motion only rehashes legal issues previously raised. See id. at 668-

69. 

Carroll’s motion to enlarge challenged the district court’s findings that 

Carroll failed to respond the motion for summary judgment as required by Iowa 

Rule of Civil Procedure 1.981(6) and that the district court was not persuaded 

that discovery could in this case lead to admissible evidence that would 

challenge the facts set forth in the Samuells’ statement of undisputed facts. In

denying Carroll’s motion to enlarge, the district court stated,

The court in its original ruling considered each and every argument 

which [Carroll] raised in his resistance, which was only that he 

believed he could find some evidence to support his claim if the 

court permitted him more time. None of the other arguments 

[Carroll] now advances were raised initially. Furthermore, as [the 

Samuells] correctly point out, [Carroll] has still failed to state 

specifically what discovery he intended to take or what it would 

establish. [The Samuells] also correctly point out that [Carroll]’s 

motion is really one to reconsider its original ruling, not a motion to 

enlarge upon arguments previously raised by [Carroll] but not 

addressed by the court in its initial ruling.

After a thorough review of the court file, we agree with the district court in all 

respects. We therefore conclude Carroll’s motion to enlarge was not proper and 
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did not toll the time for him to file a notice of appeal. Since his notice of appeal 

was filed more than thirty days after the district court’s summary judgment ruling, 

Carroll’s appeal is untimely, and we therefore lack jurisdiction to decide the 

appeal. Homan, 2016 WL 6650114, at *2.

APPEAL DISMISSED.