                     IN THE COURT OF APPEALS OF IOWA

                                    No. 16-1413
                                 Filed April 5, 2017


ESTATE OF LAYNE SCHNEIDER,
     Plaintiff-Appellant,

vs.

WADE A. LENTH,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Fayette County, Joel A. Dalrymple,

Judge.



       The administrators of an estate appeal the district court’s grant of

summary judgment in this wrongful death action. AFFIRMED.



       Jesse M. Marzen of Marzen Law Office, P.L.L.C., Waverly, for appellant.

       Devin C. Kelly of Allen, Vernon & Hoskins, PLC, Marion, and Charles R.

Kelly, Jr. of Charles Kelly Law Office, P.C., Postville, for appellee.



       Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VOGEL, Judge.

       On January 22, 2013, Layne Schneider’s body was found in a burnt pick-

up truck, which had left the roadway in Fayette County.           Two years later,

Schneider’s parents, as administrators of his estate (the Administrators), filed a

wrongful death lawsuit against Wade Lenth, claiming Lenth had killed Schneider

and then set the vehicle on fire. Trial was set for November 2016, but on April

14, 2016, Lenth filed a motion for summary judgment, asserting there was no

evidence he took any action that caused Schneider’s tragic death.                The

Administrators did not file a response to the motion for summary judgment, and

after a hearing, the district court granted the motion, dismissing the

Administrators’ petition. The Administrators filed a motion to reconsider, and

Lenth filed a resistance to the motion. However, before the district court could

rule on the motion to reconsider, the Administrators filed a notice of appeal.

       On appeal the Administrators claim Lenth’s own motion for summary

judgment and accompanying documents demonstrate there is a genuine issue of

material fact, summary judgment was inappropriate when there was a pending

discovery dispute, and Lenth did not satisfy his burden to show there was no

material fact in dispute.   These are the same claims that were made in the

Administrators’ motion to reconsider that the district court had not yet ruled on

when the notice of appeal was filed by the Administrators. Because we have no

ruling from the district court on these issues, Lenth claims the Administrators did

not preserve error.

       The Administrators did not file any resistance to Lenth’s motion for

summary judgment.
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      When a motion for summary judgment is made and supported as
      provided in this rule, an adverse party may not rest upon the mere
      allegations or denials in the pleadings, but the response, by
      affidavits or as otherwise provided in this rule, must set forth
      specific facts showing that there is a genuine issue for trial. If the
      adverse party does not so respond, summary judgment, if
      appropriate, shall be entered.

Iowa R. Civ. P. 1.981(5). “A party may not rely on the hope of the subsequent

appearance of evidence generating a fact question.” Thornton v. Hubill, Inc., 571

N.W.2d 30, 32 (Iowa Ct. App. 1997). After the court ruled in favor of Lenth, the

Administrators filed a motion to reconsider in an attempt to demonstrate a

disputed material fact existed in the record. However, before the court could rule

on the motion to reconsider, the Administrators filed their notice of appeal.

“When the party who has filed a posttrial motion appeals, no jurisdictional

problem arises. . . . However, in these circumstances, the appellant is deemed

to have waived and abandoned the posttrial motion.” IBP, Inc. v. Al-Gharib, 604

N.W.2d 621, 628 (Iowa 2000).      We therefore find the Administrators did not

preserve error on the claims they make on appeal because we have no district

court ruling addressing these claims. See Meier v. Senecaut, 641 N.W.2d 532,

537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues

must ordinarily be both raised and decided by the district court before we will

decide them on appeal.”).

      Even if we determine the issues raised by the Administrators on appeal

were properly preserved for our review, we would reject them on their merits.

The Administrators point to evidence in the record that indicates the

circumstances surrounding Schneider’s death are unusual and even suspicious.

But no facts in the record demonstrate Lenth had any connection to Schneider’s
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death.    The Administrators point out the autopsy report, attached to Lenth’s

motion for summary judgment, states that Schneider had received threatening

text messages in the days before his death, but the report does not indicate who

sent those messages or what the messages said. In addition, the report states

the person who “reportedly sent the threatening messages was accounted for” at

the time of the motor vehicle crash. The Administrators’ interrogatory responses

indicate a man by the name of Nick Hamm made statements at a bar the day

after the accident indicating he killed Schneider and the Adminstrators assert

Nick Hamm was Lenth’s roommate. But beyond the allegation that they were

roommates, there is nothing to connect Lenth to Nick Hamm’s statements or

Schneider’s death.    The Administrators failed to put forth any evidence as

required by rule 1.981(5), by affidavit or otherwise, to show Lenth was connected

to Schneider’s death, such that would create a material fact in dispute to defeat

Lenth’s motion for summary judgment.

         The Administrators also claim summary judgment was not proper when

there was a pending discovery dispute between the parties. See Miller v. Cont’l

Ins. Co., 392 N.W.2d 500, 503 (Iowa 1986) (“[A] party against whom a summary

judgment motion is made should first be allowed to discover the facts if he

desires.” (citation omitted)). However, we note the discovery dispute that was

pending at the time of the summary judgment ruling was Lenth’s motion to

compel the Administrators to adequately respond to his discovery requests. This

is not a case where the Administrators could not adequately respond to Lenth’s

motion for summary judgment because Lenth refused to answer the

Administrators’ discovery requests. Lenth was the party bringing the motion for
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summary judgment and the party who was prevented from discovering facts in

the possession of the opposing party.

      Because we conclude the Administrators did not preserve error on the

claims they made on appeal and, even if error was preserved, summary

judgment was properly entered in favor of Lenth, we affirm the district court’s

decision.

      AFFIRMED.
