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IN THE COURT OF APPEALS OF IOWA No. 0-961 / 10-1062 Filed March 30, 2011 U.S. BANK, N.A., Plaintiff-Appellee, vs. LIGHTHOUSE BUILDERS, L.C., and AARON D. TOOMAN, Defendants-Appellants, and TRAK, INC., DOUGLAS F. DOLAN, and BRADLEY D. JOHNSON, Defendants. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.

Lighthouse Builders, L.C. and Aaron Tooman appeal from the district court's grant of summary judgment in favor of U.S. Bank in its action to foreclose mortgages on five undeveloped real estate lots in Ankeny, Iowa, and to collect against the guarantors. AFFIRMED.

Robert C. Gainer and Jerrold A. Wanek of Garten & Wanek, Des Moines, for appellants. Alex M. Johnson and Marc T. Beltrame of Brown, Winick, Graves, Gross, Baskerville & Schoenebaum, P.L.C., Des Moines, for appellee.

Heard by Vogel, P.J., and Doyle and Tabor, JJ.

2 TABOR, J. Lighthouse Builders, L.C. (Lighthouse) and Aaron Tooman appeal from the district court's grant of summary judgment in favor of U.S. Bank (the Bank) in the Bank's action to foreclose mortgages on five undeveloped real estate lots in Ankeny, Iowa, and to collect against the guarantors. Lighthouse and Tooman contend two issues of material fact exist which preclude summary judgment: (1) their total amount of indebtedness; and (2) the estoppel effect of a settlement agreement allegedly entered into by the Bank, Lighthouse, and several others who are not named parties in the present case. Because Lighthouse and

Tooman filed their notice of appeal sixty-two days after the court issued its initial summary judgment ruling, their appeal is untimely and we decline to reach the merits. I. Background Facts and Proceedings On May 2, 2005, Lighthouse executed and delivered to U.S. Bank five single-payment notes. Each note was subject to a modification agreement

entered into on July 11, 2007. In conjunction with each note, the Bank and Lighthouse entered into a construction loan agreement. And, as security for each note, Lighthouse executed and delivered to the Bank a security agreement and assignment of rents, as well a mortgage collateralizing a separate lot of undeveloped real estate property in Ankeny for each note.1 On May 10, 2005,
1

The mortgage securing Note 1 collateralized the following: Lot Three (3) in the Otter Ridge Plat 6, an Official Plat, now included in and forming a part of the City of Ankeny, Polk County, Iowa. The mortgage securing Note 2 collateralized the following: Lot Four (4) in the Otter Ridge Plat 6, an Official Plat, now included in and forming a part of the City of Ankeny, Polk County, Iowa. The mortgage securing Note 3 collateralized the following: Lot Five (5) in the Otter Ridge Plat 6, an Official Plat, now included in and forming a part of the City of Ankeny, Polk County, Iowa. The mortgage

3 the Bank filed each mortgage with the Polk County Recorder's Office. The Bank is the owner and holder of each of the notes, loan agreements, mortgages, and modification agreements. Lighthouse is in default on its obligations and the Bank has declared the entire indebtedness immediately due and payable. On May 2, 2005, guarantors--Aaron D. Tooman, Trak, Inc., Douglas F. Dolan, and Bradley D. Johnson--executed and delivered to the Bank continuing guaranties to secure the notes. Pursuant to the guaranties, the guarantors

unconditionally assured the full and complete performance of Lighthouse's obligations on the notes. On February 9, 2009, U.S. Bank filed a petition to foreclose the mortgages on the five undeveloped real estate lots and to collect against the guarantors. The Bank then filed an amended petition requesting foreclosure without redemption on February 24, 2009. On December 23, 2009, the Bank filed a motion for summary judgment. Lighthouse initially resisted on January 7, 2010; and filed a further resistance on February 19, 2010. The court held a summary judgment hearing on March 11, 2010. On April 22, 2010, the court ruled against Lighthouse and Tooman. It found the principal amount due and owing to the Bank totaled $274,990.63, the stated interest due pursuant to the notes totaled $48,760.81, the default interest due pursuant to the notes totaled $30,592.71, late fees totaled $539.92, expenses incurred by the Bank totaled $750.00, and the per diem interest rate due was $78.30. The court
securing Note 4 collateralized the following: Lot Six (6) in the Otter Ridge Plat 6, an Official Plat, now included in and forming a part of the City of Ankeny, Polk County, Iowa. And, the mortgage securing Note 5 collateralized the following: Lot Seven (7) in the Otter Ridge Plat 6, an Official Plat, now included in and forming a part of the City of Ankeny, Polk County, Iowa.

4 further found that Lighthouse had agreed to pay the Bank's reasonable attorney fees incurred in collecting the amounts owing under the notes. The court

concluded a judgment foreclosing the mortgages should be entered with respect to lots three, four, five, six, and seven against Defendants, as follows: $274,990.63 principal with accrued interest of $79,353.52 and $539.92 in late fees with costs and expenses totaling $750.00 and for reasonable attorney fees and the costs of this action. On May 4, 2010, U.S. Bank applied for attorney fees in the amount of $23,065.09, and on June 9, 2010, the court awarded that amount. On June 23, 2010, Lighthouse and Tooman filed an appeal contesting the district court's grant of summary judgment. The notice was filed sixty-two days after the court filed its initial summary judgment ruling. II. Scope and Standard of Review We review the grant of summary judgment for the correction of errors at law. Iowa R. App. P. 6.907; Eggiman v. Self-Insured Servs. Co., 718 N.W.2d 754, 758 (Iowa 2006). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Christy v. Miulli, 692 N.W.2d 694, 699 (Iowa 2005). A genuine issue of material fact exists if reasonable minds could differ with respect to how the issue should be resolved. Id. In determining whether the moving party has satisfied its burden, we view the record in the light most favorable to the nonmoving party. Eggiman, 718 N.W.2d at 758.

5 III. Analysis Lighthouse and Tooman contend two genuine issues of material fact exist, which require us to reverse the grant of summary judgment. They assert the interest rate and per-diem calculations are in dispute, creating an issue of material fact as to their total amount of indebtedness. They also contend a

genuine issue of material fact exists regarding the estoppel effect of a Global Settlement Agreement and Release allegedly entered into by U.S. Bank, Lighthouse, and several others who are not named parties in the present case. The Bank counters that no issue of material fact exists on either claim and that the appeal should be dismissed as untimely. With respect to the threshold issue of timeliness, the Bank argues we should dismiss this appeal because Lighthouse and Tooman filed their notice of appeal too late--more than thirty days after the district court's initial April 22 ruling that granted the Bank's motion for summary judgment. Lighthouse and Tooman counter that the thirty-day time frame began running on June 9, when the court entered its later order granting the Bank attorney fees. They point out the initial summary judgment disposition was accomplished through a ruling rather than a final order or decree. They contend the June 9 order granting attorney's fees is the only final order and because they filed this appeal within thirty days from that order, it is timely. Iowa Rule of Appellate Procedure 6.101(1)(b) provides that [a] notice of appeal must be filed within 30 days after the filing of the final order or judgment. This rule is mandatory and jurisdictional. Eaton v. Meester, 464 N.W.2d 691, 692 (Iowa Ct. App. 1990). A party's failure to file a timely notice of appeal leaves

6 our court without subject matter jurisdiction to hear the appeal. Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764, 771 (Iowa 2009). Generally, a ruling on a motion for summary judgment is a final judgment subject to appeal. Id. In most situations, the thirty-day period for filing an appeal begins to run from the date of the court's original ruling granting summary judgment. See id. (citing Flynn v. Lucas County Mem'l Hosp., 203 N.W.2d 613, 614

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