                IN THE SUPREME COURT OF IOWA
                              No. 08–1258

                          Filed June 25, 2010


MARTIN L. WATERS and LESLIE WATERS,

      Appellees,

vs.

STATE OF IOWA,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Madison County, Martha L.

Mertz, Judge.



      The State appeals from an order by the district court directing the

case to be scheduled for trial.   DECISION OF COURT OF APPEALS

VACATED AND DISTRICT COURT ORDER AFFIRMED.



      Thomas J. Miller, Attorney General, and Richard E. Mull and

Robin G. Formaker, Assistant Attorneys General, for appellant.



      Dean T. Jennings of Jennings Law Firm, Council Bluffs, and

Jerry W. Katskee of Katskee, Henatsch & Suing, Omaha, Nebraska, for

appellees.
                                      2

CADY, Justice.

      In this appeal involving an action brought by two plaintiffs against

the State of Iowa and other defendants to recover personal injuries

resulting from a motor vehicle accident, we must decide whether any

claims against the State remained for trial after the district court granted

summary judgment for the State so as to support a subsequent order by

the district court directing the State to proceed to trial. We transferred

the case to the court of appeals, who affirmed the order of the district

court. Upon our review, we vacate the decision of the court of appeals

and affirm the order of the district court.

      I. Background Facts and Proceedings.

      A severe winter storm swept across western and central Iowa on

February 8, 2004, including the area where Interstate 80 traverses

Madison County.      The storm continued to batter the area into the

evening and early morning hours of the following day, producing surface

ice and substantial amounts of snow and blowing snow.               Driving

conditions on Interstate 80 deteriorated to the point where the Iowa State

Patrol issued a ban on towing operations for portions of the interstate,

including the area between mile markers 97 and 100 in Madison County.

      Donald Deeds was driving his Jeep Cherokee west on Interstate 80

between mile markers 97 and 100 around 2:30 a.m. on February 9,

when he lost control and slid off the traveled portion of the roadway. The

vehicle landed on its side in the median between the west and eastbound

lanes. Deeds was not hurt. He abandoned his vehicle when a passing

motorist provided him a ride to a nearby motel. Deeds called 911 and

informed the operator of the accident.

      Between 3 a.m. and 4 a.m. on February 9, Trooper Jody Elliott of

the Iowa State Patrol came upon Deeds’ vehicle while on patrol.          He
                                           3

stopped to investigate. He determined the Jeep was within the median,

no persons were at the scene, and the vehicle did not present a hazard to

traffic. He left and resumed his patrol.

       Around 5:15 a.m., Lance Madsen was driving his Ford Expedition

on Interstate 80. A passenger, Martin Waters, was sleeping in the front

passenger seat.       As Madsen approached the area where Deeds had

abandoned his vehicle, he lost control of his vehicle, and it collided with

the Jeep. Waters was injured as a result of the accident.

       Waters filed a lawsuit against Deeds, Madsen, and the State of

Iowa for the injuries he sustained in the accident.                    He separately

included the department of transportation and the department of public

safety as defendants. 1 His wife joined him in the lawsuit, claiming loss of

spousal consortium.        Liability against the State was predicated on the

claims that the State failed to remove the Deeds’ vehicle, failed to remove

the snow from the roadway, and failed to warn or otherwise protect

Waters from the hazard created by the snow and the Deeds vehicle. In

their petition, the Waters alleged the following particulars of negligence

against the State and the two departments: (1) failure to timely remove

an obstruction (Deeds’ vehicle) from the highway; (2) failure to timely
remove snow and ice from the highway; (3) failure to protect the traveling

public; (4) failure to warn of an obstruction; (5) failure to warn of a

slippery condition of the roadway; and (6) failure to follow snow, ice, and

obstruction removal policies.          The Waters claimed the department of

        1Under the Iowa Tort Claims Act, lawsuits are not authorized against a state

agency. Iowa Code § 669.16 (2003). In this case, the State eventually sought to remove
the departments as named defendants, and the district court subsequently ordered the
claims to proceed against the State of Iowa. Notwithstanding, the State’s application for
permission to appeal in advance of final judgment in this case separately named “State
of Iowa, Department of Transportation, and Department of Public Safety” in its caption
as defendants. We nevertheless name only the State of Iowa as the defendant-appellant
in this appeal.
                                     4

transportation and the department of public safety had statutory duties

to remove vehicles that obstructed highway travel.

       The State moved for summary judgment. It claimed the material

facts of the case were not in dispute, and it was entitled to judgment as a

matter of law.   The State asserted multiple grounds in support of its

motion. It first claimed the department of public safety had no duty to

remove the Deeds vehicle, warn of the presence of the Deeds vehicle, or

otherwise protect the Waters from the Deeds vehicle. It next claimed the

State was immune from claims of negligence relating to the failure to

remove the Deeds vehicle and the failure to properly maintain the

highway and warn of dangers presented by disabled vehicles.             In

particular, the State asserted the department of public safety was

immune from liability under the discretionary function doctrine for the

claim of failing to remove the Deeds vehicle.      It further asserted the

discretionary function doctrine also immunized the department of

transportation from liability derived from its responsibilities to keep the

highway free of snow and ice. It further claimed the State did not breach

its duty of care because it had no reasonable notice and opportunity to

remove the Deeds vehicle prior to the accident as a matter of law. The

State also claimed the Waters failed to exhaust all administrative

remedies before filing their tort claim against the State, as required by

law.   The Waters contested the claims and provided evidence from an

expert witness that the Deeds vehicle was actually located on the

traveled portion of the roadway at the time of the accident.

       The district court entered a ruling on the motion for summary

judgment by addressing each ground for summary judgment raised by

the State.   It first held the Waters failed to provide notice to the

department of transportation of their negligence claims based on their
                                     5

allegations of failure to remove the snow and properly maintain the

highway. It next held the State had no duty to remove the Deeds vehicle

and prevent the accident. The court further held the negligence claims

involving failure to remove the Deeds vehicle, failure to protect the public

by closing the highway, and failing to remove the snow and ice from the

highway involved discretionary acts that did not give rise to liability

against the State under the Iowa Tort Claims Act. Additionally, the court

found the claims involving the failure to warn and failure to remove the

ice and snow did not give rise to liability under the statutory exemptions

to the assignment of fault to the state for failing to perform such acts.

See Iowa Code § 668.10(1)–(2) (2003) (providing governmental immunity

for snow removal and traffic control device placement). Finally, the court

concluded a jury question was presented on the State’s claim that it had

no reasonable notice and opportunity to remove the Deeds vehicle prior

to the accident. The district court entered an order granting summary

judgment on all claims raised by the State, but denied summary

judgment on the issue of reasonable notice and opportunity. This order

was entered on January 15, 2008.

      Following the order, the Waters sought to mediate a resolution of

the lawsuit with all parties.      The State declined to participate in

mediation, asserting no claims were pending against the State following

the order granting summary judgment. The remaining parties proceeded

to mediation.

      On July 17, 2008, the Waters filed a motion asking the district

court to clarify the summary judgment order and reschedule the case for

trial. On July 28, the district court entered a calendar order declining to

“change its ruling” and directing a new date be set for trial.
                                          6

       The State made application for an appeal from the order directing

the case to proceed to trial.          We granted permission to appeal and

transferred the case to the court of appeals.

       On appeal, the State claims the district court erred in ordering the

State to proceed to trial after granting summary judgment. The Waters

assert the district court only granted partial summary judgment. They

argue its claim of negligence involving a failure to remove the Deeds

vehicle survived summary judgment because it was separated into two

claims, and the summary judgment ruling by the district court only

dismissed one of the two claims. The court of appeals affirmed the order

of the district court and remanded for trial. The State sought, and we

granted, further review.

       II. Standard of Review.

       This appeal requires us to decide if the district court erred in

ordering the State to trial after granting summary judgment. We do not

review the merits of the underlying summary judgment ruling, but are

tasked with interpreting the judgment to determine whether the order

issued in response to the motion for clarification of the judgment

improperly directed the State to proceed to trial.              Consequently, our

review is for correction of errors at law. Iowa R. App. P. 6.907.

       III. Resolution of Appeal.

       The district court has power to change a judgment it has rendered

by correcting perceived legal or factual errors, or to construe or interpret

the judgment so that the record accurately expresses what was

previously done. 2 See Carroll v. Martir, 610 N.W.2d 850, 857 (Iowa 2000)


       2The  power to change a judgment can only be exercised while the district court
has jurisdiction over the case and the parties. Carroll v. Martir, 610 N.W.2d 850, 857
(Iowa 2000). Additionally, the power should only be exercised with proper notice to the
parties. McVay v. Kenneth E. Montz Implement Co., 287 N.W.2d 149, 150 (Iowa 1980).
                                          7

(reiterating district court’s power to correct perceived errors in its own

judgments); see also Weissenburger v. Iowa Dist. Ct., 740 N.W.2d 431,

434 (Iowa 2007) (explaining purpose of nunc pro tunc order is to correct

a clerical error so that the judgment reflects what was actually done). In

this case, the district court declined to exercise its power to change or

construe the summary judgment in response to the motion for

clarification.   Instead, the district court merely directed the parties to

proceed to trial. The State claims this directive constituted legal error

because the prior summary judgment rendered by the district court

disposed of all claims brought by the Waters against the State. Thus,

our task on appeal is to construe the summary judgment ruling entered

by the district court to determine if any claims against the State survived

the summary judgment. The State’s application for interlocutory appeal

did not challenge the merits of this summary judgment ruling. To the

contrary, the State’s application expressed its belief that the legal effect

of the summary judgment ruling terminated the action brought against it

by the Waters as it requested.

       A court decree is construed like any other written instrument.

Local Bd. of Health v. Wood, 243 N.W.2d 862, 865 (Iowa 1976).                    The

determinative factor in construing a court decree is the intent of the

court, which is derived from all parts of the judgment. Id. We strive to

construe a judgment consistent with the language used in the judgment.

Hemmer v. Bonson, 139 Iowa 210, 217, 117 N.W. 257, 259 (1908). If the

meaning of the decree is ambiguous, we resort to the pleadings and other

proceedings to clarify the ambiguity. Sutton v. Schnack, 224 Iowa 251,
________________________
Importantly, a district court cannot use its power to correct a perceived error in a
judgment by exercising its power to construe the judgment. Weissenburger v. Iowa Dist.
Ct., 740 N.W.2d 431, 434 (Iowa 2007) (noting a court may not use a nunc pro tunc
order to change the decision by correcting a judicial error).
                                       8

257, 275 N.W. 870, 873 (1937).      In the end, we seek to give effect to

those matters that are implied as well as express. Rinehart v. State, 234

N.W.2d 649, 656 (Iowa 1975).

      The parties agree that most of the legal claims asserted by the

Waters to support liability against the State did not survive summary

judgment. The Waters, however, maintain their allegation of negligence

involving the failure of the department of transportation to remove the

Deeds vehicle was not addressed in the summary judgment. The State

asserts this particular claim was addressed and disposed of in two

separate divisions of the summary judgment ruling. First, it asserts the

district court disposed of the claim when it ruled that the State had no

actionable duty to the Waters to remove the Deeds vehicle under the

public duty doctrine.   See Kolbe v. State, 625 N.W.2d 721, 729 (Iowa

2001) (“We have routinely held that a breach of duty owed to the public

at large is not actionable unless the plaintiff can establish, based on the

unique or particular facts of the case, a special relationship between the

State and the injured plaintiff . . . .” (Emphasis omitted.)). Second, the

State asserts the district court disposed of the claim when it ruled that

the State was immune from any liability based on its failure to remove

the Deeds vehicle under the discretionary function doctrine. See Iowa

Code § 669.14(1) (2003) (providing statutory immunity for State actors

when performing discretionary functions).      We resolve both claims by

first considering whether the district court intended to rule that the State

and all its governmental subdivisions and actors had no actionable duty

to the Waters to remove the vehicle.

      In determining the intended scope of the district court’s summary

judgment ruling, we begin by looking to the allegations of negligence

contained in the petition filed by the Waters together with the grounds
                                         9

asserted by the State to support summary judgment. Importantly, the

grounds for negligence alleged by the Waters in the petition included the

failure of the “department of transportation and department of public

safety” to timely remove the Deeds vehicle from the highway. Clearly, the

State’s motion for summary judgment sought judgment on the claim for

negligence pertaining to the failure to remove the Deeds vehicle, but the

motion did so only on two grounds.              The State argued no “special

relationship” existed “between the department of public safety” and the

Waters to support the imposition of an actionable duty for the State to

remove the Deeds vehicle. It further argued “the State did not have a

reasonable opportunity” to remove the vehicle prior to the accident.

      The motion for summary judgment reveals the State’s argument,

that it had no duty to the Waters, was based entirely on the department

of public safety’s responsibility, at the direction of the state trooper, to

remove the Deeds vehicle. The State did not additionally argue in the

motion for summary judgment that the department of transportation, a

separate governmental subdivision, also had no duty to the motoring

public to remove disabled vehicles.          See Koehler v. State, 263 N.W.2d

760, 765 (Iowa 1978) (recognizing duty of department of transportation

to remove obstructions on highways); see also Iowa Code § 313.36

(“Primary    roads    shall    be   maintained      by    the    department      [of

transportation] . . . .”); id. § 319.1 (“The department [of transportation]

. . . shall cause all obstructions in highways . . . to be removed.”). 3 In

resisting the motion for summary judgment, the Waters asserted “the

      3The  legislature repealed chapter 319 in 2006. 2006 Iowa Acts ch. 1097, § 19.
The chapter was rewritten and reorganized in chapter 318 of the 2007 Code, and it
remains there currently. See Iowa Code ch. 318 (2009). The amended version grants
immunity to the county board of supervisors and department of transportation for
claims related to removal of highway obstructions. Id. § 4 (codified at Iowa Code
§§ 318.4, 318.5(4) (2009)).
                                        10

State” had an actionable duty to remove vehicles from highways because

a special relationship was created with the motoring public pursuant to

section 321.356. See id. § 321.356 (authorizing peace officers to move or

cause to be moved a vehicle standing upon a highway). Consequently,

while the Waters’ claim for negligence for failure to remove the vehicle

targeted both the actions of the department of transportation and the

department of public safety, the summary judgment proceedings

pertaining to this ground of negligence was only directed at the actions of

the department of public safety.

      The pleadings and summary judgment proceedings are important

in our search for intent because they put the language of the summary

judgment ruling in context.      This context, in turn, reveals the district

court only intended to address the existence of a duty imposed on the

State through the department of public safety when it concluded the law

did not impose a duty on the State to remove the Deeds vehicle.

Moreover,    the   summary      judgment     ruling   contained      no   directive

expressing an intent to expand its judgment beyond the context of the

pleadings.

      Similarly, we reject the State’s argument that the Waters’ claim for

negligence predicated on failing to remove the Deeds vehicle did not

survive summary judgment under the district court’s alternative finding

that the State was immune from any liability derived from its decision to

refrain from towing or removing the Deeds vehicle.               In its motion for

summary judgment, the State argued it was immune from liability based

on claims involving the exercise of discretionary immunity on the part of

the department of public safety and its employees, as well as the

department of transportation and its employees. However, the claim of

immunity     urged   by   the   State   pertaining    to   the     department    of
                                           11

transportation’s exercise of discretionary functions was argued solely in

the context of the department of transportation’s decision to refrain from

removing snow and ice from the highway and refraining from closing the

highway to motorists.            The State did not additionally argue it was

immune        from   liability    for   claims    involving     the   department       of

transportation’s decision not to tow or remove the Deeds vehicle.

Moreover, the district court did not use any language in its ruling to

extend the grant of summary judgment based on immunity to the

decision by the department of transportation to refrain from towing or

removing the Deeds vehicle.             Thus, both the context of the summary

judgment proceedings and the language of the district court ruling

revealed the district court did not intend to include the Waters’

negligence claim based on the department of transportation’s failure to

remove the Deeds vehicle.

       All the language in the district court ruling concerning the absence

of an actionable duty of care on the State to support negligence and the

existence of immunity for the State, while sounding as a grant of

complete summary judgment, did not apply to the Waters’ specific claim

for negligence based on the failure of the department of transportation to

remove     the   Deeds      vehicle     when     placed   in   its    proper    context.

Additionally, the district court did not otherwise expressly or impliedly

declare the claim was included in the judgment. 4                         Under such


       4The  Waters assert the district court’s intent to exclude the claim for negligence
involving the department of transportation’s failure to remove the Deeds vehicle from
the summary judgment was further revealed when the district court rejected the State’s
argument that it had no reasonable opportunity to remove the Deeds vehicle. The
Waters argue the district court would not have addressed the issue without impliedly
recognizing an underlying duty of the department of transportation to remove the
vehicle. While such a deduction could be made, it is equally likely that the district
court could have simply ruled on each alternative ground to make a full and complete
ruling for the purposes of appeal.
                                      12

circumstances, we cannot find any intent for the district court to have

granted complete summary judgment.

         Nevertheless, the State asserts the Waters failed to argue and

identify the presence of a separate claim for liability based on the

department of transportation’s failure to remove the Deeds vehicle during

the proceedings before the district court, which now precludes them from

asserting the presence of such a claim on appeal to affirm the decision of

the district court.     We recognize our preservation-of-error rule that

appellate courts will not consider a matter raised for the first time on

appeal, even if it is the only basis to uphold the ruling of the district

court.    DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).       Yet, we are

construing a court decree in this case, not deciding the merits of the

ruling. Moreover, there was no reason for the Waters to identify their

separate claim of liability based on the department of transportation’s

failure to remove the Deeds vehicle in resisting the motion for summary

judgment when the State never attacked this claim as grounds for

summary judgment.

         Finally, the State argues the law does not recognize a duty for the

department of transportation to remove disabled vehicles from a highway

during a snowstorm of the magnitude experienced at the time of the

accident that gave rise to the proceedings in this case. It asserts that

any thoughtful analysis of the law and the undisputed facts about the

paralyzing weather conditions at the time of the accident would lead to

the conclusion that no State agency responsible for the maintenance of

highways was negligent for failing to remove the Deeds vehicle prior to

the accident. The State’s argument addresses a judgment on the merits

that has not yet been rendered by the district court. Our role in this
                                    13

appeal is not to rule on claims not presented to the district court, but to

construe the judgment entered by the district court.

      IV. Conclusion.

      We have considered all claims raised by the State. We vacate the

decision of the court of appeals and affirm the calendar entry order

entered by the district court.

      DECISION OF COURT OF APPEALS VACATED AND DISTRICT

COURT ORDER AFFIRMED.
