              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 cross-

appeals district court’s denial of summary judgment on statute-of-

limitations 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.
