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IN THE COURT OF APPEALS OF IOWA No. 9-026 / 08-0756 Filed April 22, 2009 TED LEWISON, ALICE LEWISON, LISA SCHENCK, GEORGE BARTLESON, JOANN BARTLESON, SANDY HEIMER, TOM HEIMER, SUZANNE J. JONES, CHARLES L. JONES, KURT KNAPP and KAREN KNAPP, Plaintiffs-Appellants, vs. HOWARD R. GREEN COMPANY and CITY OF FOREST CITY, IOWA, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Linn County, Douglas S. Russell, Judge.

Plaintiffs appeal the district court order striking their surreply brief and granting summary judgment to defendants. REVERSED AND REMANDED.

Edward M. Blando and Christopher L. Bruns of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellants. Ivan T. Webber and James R. Wainwright of Ahlers & Cooney, P.C., Des Moines, for appellee-City of Forest City. Roger W. Stone, Webb L. Wassmer, and Jeffrey A. Stone of Simmons Perrine P.L.C., Cedar Rapids, for appellee-Howard R. Green Company. Heard by Vaitheswaran, P.J., and Eisenhauer and Doyle, JJ.

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EISENHAUER, J. Plaintiffs appeal the district court order striking their surreply brief and accompanying affidavit. Plaintiffs also appeal the court's grant of summary

judgment to the defendants. Because we conclude the district court abused its discretion in granting the motions to strike, we reverse and remand for the trial court to reconsider the summary judgment motions based on the full record. In July 2005, plaintiffs/homeowners filed suit alleging negligence and gross negligence against Howard R. Green Company and Forest City. The

homeowners alleged Forest City reconfigured its sanitary sewer system in 1995 and then forced them to connect to the system. Green Company designed the sewer additions, which backed up numerous times causing damage. After answering the petition, in January and February 2007, the defendants each filed two motions for summary judgment. These motions were denied in June 2007. Approximately one month later, on July 25, 2007, Forest City filed its third motion for summary judgment. In support, Forest City cited the deposition of Ervin Mussman, plaintiffs' engineering expert. On July 31, 2007, plaintiffs filed a motion seeking additional time to resist. Plaintiffs noted discovery was ongoing and Forest City was expected to reply to Green Company's July 25 interrogatories by August 24, 2007. Green Company's third motion for summary judgment was filed on August 2, 2007, and also cited to Mussman's deposition. Plaintiff's motion seeking

additional time to resist again alleged Forest City's interrogatory answers could

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be relevant to the summary judgment issues.

Therefore, both defendants

acquiesced in plaintiffs incorporating ongoing discovery in their summary judgment resistance. The court granted additional time for plaintiffs to resist. Plaintiffs filed their resistance to Forest City's summary judgment motion on September 25, 2007, and included a September 24, 2007 affidavit by Mussman. Plaintiffs filed their resistance to Green Company's summary

judgment motion on October 1, 2007, and included Mussman's September 24 affidavit as well as Mussman's second affidavit of October 1, 2007. Green Company next sought and received court permission for two extensions of time to file a reply brief. Green Company stated it wanted to

depose Mussman again, which occurred on January 21, 2008. Although Green Company's motions and the court's subsequent orders refer only to a reply brief, on January 31, 2008, Green Company filed an extensive supplemental statement of facts in support of summary judgment and attached: (1) Mussman's new January 21, 2008 deposition; (2) excerpts from Michael Miller's March 7, 2007 deposition; (3) the Iowa DNR Wastewater Construction Permit Application; (4) the Iowa DNR construction permit; (5) David Moermond's certification of a Green Company document; (6) a letter from Green Company to the Iowa DNR; (7) the Iowa DNR wastewater construction staff directory; (8) Jack Fink's resume; and (9) excerpts from Fink's November 6, 2007 deposition. Green Company also filed a reply brief. In February, Green Company filed a supplement to this supplemental statement of facts and included excerpts from the second deposition of Elynn

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Charlson, taken on January 17, 2008.

Green Company stated Charlson's

deposition "was not available at the time of its prior filing of its supplemental statement of facts." On February 4, 2008, Forest City adopted Green Company's filings and filed its own supplemental brief supporting summary judgment. Ten days later, Forest City filed a supplemental statement of undisputed facts and attached portions of the second Mussman deposition (January 21, 2008). On February 20, 2008, plaintiffs filed the document central to this appeal

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