Matthew Holmes v. Miranda Pomeroy ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1162
Filed September 23, 2020
MATTHEW HOLMES,
Plaintiff-Appellant,
vs.
MIRANDA POMEROY,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Michael Jacobsen,
Judge.
Matthew Holmes appeals the district court’s refusal to grant a new trial in
this personal-injury case. AFFIRMED.
Matthew M. Sahag of Dickey, Campbell & Sahag Law Firm, PLC, Des
Moines, for appellant.
J. Scott Bardole of Andersen & Associates, West Des Moines, for appellee.
Considered by Tabor, P.J., and May and Greer, JJ.
2
MAY, Judge.
A bicycle collided with an automobile. The biker (Matthew Holmes) sued
the driver (Miranda Pomeroy) for personal-injury damages. A jury returned a
defense verdict. Holmes appeals. We affirm.
I. Background
On June 8, 2015, Pomeroy was driving westbound on Cumming Avenue in
Cumming. Holmes was riding his bicycle southbound on a bike trail that intersects
Cumming Avenue. Holmes turned left onto Cumming Avenue. Pomeroy’s vehicle
collided with Holmes and his bicycle. Holmes suffered injuries.
In June 2017, Holmes filed this negligence action against Pomeroy.
Following a three-day trial, a jury found Pomeroy was not at fault.
Holmes moved for a new trial. The district court denied Holmes’s motion.
On appeal, Holmes contends (1) the district court erred in limiting cross-
examination and argument before the jury concerning hearsay statements; (2) the
district court abused its discretion by admitting Holmes’s admissions at the scene
that the collision was his “fault”; (3) the district court abused its discretion by
refusing to admit habit evidence under Iowa Rule of Evidence 5.406 to show
Pomeroy was using her phone at the time of the collision; and (4) the district court
erred by denying Holmes’s motion for new trial on the basis of alleged misconduct
during closing arguments.
II. Standard of Review
We apply different standards of review to different issues. “Generally, we
review a district court’s evidentiary rulings for an abuse of discretion.” Wailes v.
3
Hy-Vee, Inc., 861 N.W.2d 262, 264 (Iowa Ct. App. 2014). But hearsay challenges
are reviewed for errors at law. State v. Musser, 721 N.W.2d 734, 751 (Iowa 2006).
“Our standard of review of a denial of a motion for new trial depends upon
the grounds for new trial asserted in the motion and ruled upon by the court.”
Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993). “If the motion and ruling are
based on a discretionary ground, the trial court’s decision is reviewed on appeal
for an abuse of discretion.” Id. And the district court has broad discretion in
determining whether alleged misconduct by a party or their attorney justifies a new
trial. Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992). But we
can only review the denial of a new trial if a timely objection was raised. Loehr v.
Mettille, 806 N.W.2d 270, 279 (Iowa 2011).
III. Analysis
A. Deputy Ohlinger’s testimony
We begin with Holmes’s contentions about Deputy Lisa Ohlinger, who
responded to the collision and wrote a report about it. Pomeroy called Ohlinger as
a witness. The following exchange occurred:
Q. Now, do you recall in your report whether you investigated
whether or not there was any—whether Ms. Pomeroy had been
acting in any way that might have contributed to the accident at the
time? A. I do recall when I was there that there was some mention
maybe, like, a—
Q. I’m sorry. Let me ask you this—
[Holmes’s counsel]: Judge, I think the witness can respond to
the question.
THE COURT: Let’s let her finish the answer before you ask
her another question.
A. Somebody there had mentioned that somebody else
maybe had thought she was texting. However, whoever told me that
was not the person who witnessed it, nor did they know who allegedly
witnessed that. That was complete hearsay, and I didn’t have
anybody to corroborate that, so that was left out.
4
After a few more questions, Pomeroy passed the witness. Holmes’s
attorney then asked Ohlinger whether someone told Ohlinger that someone
thought Pomeroy had been using her cell phone while driving. Pomeroy objected
on hearsay grounds. The court sustained the objection.
Fast forward to closing arguments. Holmes had prepared a PowerPoint
slide that said “[a] witness said [Pomeroy] was texting while driving.” Pomeroy
objected. The court precluded Holmes from using the slide in closing arguments.
On appeal, Holmes claims these exchanges reveal two errors by the district
court. Holmes first contends that, because Ohlinger testified without objection to
a rumor about possible (“maybe”) texting by Pomeroy, the court erred by
preventing Holmes from eliciting additional hearsay testimony about the same
subject. We disagree.
Holmes has cited no authority for the proposition that a district court must
overrule otherwise-proper hearsay objections simply because some hearsay has
been admitted without objection. See, e.g., Iowa Rs. Evid. 5.103(d) (stating the
district court “must” exclude “inadmissible evidence”), .802 (recognizing that
generally “[h]earsay is not admissible”). Nor does Holmes point to an offer of proof
or otherwise demonstrate what additional evidence Ohlinger would have provided
if the objections had been overruled. See Iowa R. Evid. 5.103(a)(2).
Indeed, given Deputy Ohlinger’s obvious distrust of the texting rumor—the
Deputy called it uncorroborated “complete hearsay”—we doubt additional
testimony would have added measurable strength to Holmes’s case. So even if
the district court erred, we do not find it is “probable a different result would have
5
been reached but for” the error. Mohammed v. Otoadese, 738 N.W.2d 628, 633
(Iowa 2007) (citation omitted). We decline to reverse on this ground.
Holmes also complains that, in light of the testimony Ohlinger was permitted
to give, the district court was wrong to limit Holmes’s closing argument. “[W]e
review a district court’s rulings on the scope of closing argument for the abuse of
discretion.” Waterman v. Lanferman, No. 04-2072, 2005 WL 2757238, at *3 (Iowa
Ct. App. Oct. 26, 2005) (citing Lane v. Coe Coll., 581 N.W.2d 214, 218 (Iowa Ct.
App. 1998)). Holmes wanted to argue that a “witness said [Pomeroy] was texting
while driving.” But this did not match the admitted testimony. Ohlinger only
recalled that “[s]omebody . . . had mentioned that somebody else maybe had
thought she was texting.” (Emphasis added.) The district court did not abuse its
discretion by preventing misstatements of the evidence during closing argument.
B. Holmes’s admissions at the scene
Pomeroy also called Andrea J. Silvers, M.D., to testify. Dr. Silvers had been
nearby when the collision occurred. When she saw someone was on the ground,
Dr. Silvers ran over and helped Holmes. Dr. Silvers explained the encounter this
way:
So it was obvious very quickly that the person was awake. He was
able to talk. Thankfully, he had his helmet on. That was a blessing.
Quickly we realized that was all intact. The next question you
always ask is: does your neck hurt, if you have been in any kind of
accident. Of course, there is the cervical spine and a fracture risk.
I recollect that there was some—Yes, my neck hurt some. So
then you don’t move the person at all. You just keep them
immobilized until the ambulance can come with a collar to protect the
neck until cleared.
We were there after a few other bystanders were there. I just
kind of knelt down on the concrete, talking to the person. The face
was very bloody; awake, alert, answering questions, very thankful;
did not have any signs of concussion; didn’t seem confused; was
6
able to answer questions; speech was normal. So kind of my job
was to keep him from moving his neck at that point while we waited
for the emergency services.
When asked whether Holmes said “anything about the accident,” Dr. Silvers
said “yes.” This exchange followed:
Q. What did he say? A. This is—he either said, “It was my
fault,” or “This was my fault.”
[Holmes’s counsel]: I am going to object. I ask my objection
precede the answer. The response is a legal conclusion.
THE COURT: Overruled.
Q. (By [Pomeroy’s counsel]) Do you recognize Mr. Holmes
here? A. Honesty, I don’t. He had his helmet on. His face was
covered in blood. The neighbor brought some towels. I did a little
bit of dabbing to see if there was a lot of facial trauma. There was a
lot of blood around. So no, because there was too much blood on
the face.
Q. But the person did say, “It was my fault,” or—what did he
say? A. Yes.
Q. What were the two phrases you used? A. It was either
“This was my fault,” or “It was my fault.”
Pomeroy then passed the witness. During cross-examination, this
exchange occurred between Holmes’s attorney and Dr. Silvers:
Q. And, as I understand your testimony, you can’t—you don’t
recall exactly what he said? A. It has been three years. But the
words “my fault” are one hundred percent. I just don’t know if he
said, “It is my fault,” or “this is my fault.” That I cannot say. It is one
of those two.
On appeal, Holmes claims the district court should not have permitted
Dr. Silvers to testify about Holmes’s admission that the accident was “my fault.”
Holmes claims it was “inadmissible as a legal conclusion.” As support, he cites
Beyer v. Todd, 601 N.W.2d 35 (Iowa 1999).
We disagree. Holmes’s admissions are presumptively admissible when
offered by Pomeroy, a party opponent. See, e.g., Iowa R. Evid. 5.801(d)(2). And,
like Pomeroy, we believe Beyer should be distinguished because it concerned the
7
admissibility of legal theories in pleadings, not oral admissions that an accident
was “my fault.” 601 N.W.2d at 41–42 (explaining “that only admissions of factual
matters made in pleadings, and not merely allegations or statements of legal
theories, are admissible as evidence”).
We also reject Holmes’s argument that his oral confessions of fault—which
Holmes made while receiving emergency care immediately after the accident—
should have been excluded as legal opinions. See 2 McCormick on Evidence
§ 256 (8th ed. Apr. 2020 update). In general, a speaker’s admission “that the
mishap was the speaker’s fault” is treated merely as a revelation of “the facts as
the declarant thinks them to be.” Id. “[T]he factual information conveyed” is not
inadmissible “merely because the statement may also indicate the party’s
assumptions about the law.” Id. (footnote omitted). And, indeed, Holmes admits
he “didn’t know the law” and “was not equipped to opine” about it at the time of the
accident. So we see his comments about “fault” as a factual appraisal, not a legal
opinion. The district court did not abuse its discretion by admitting Holmes’s
admissions.
C. Habit evidence
Holmes also argues the district court abused its discretion by limiting the
purposes for which the jury could use evidence that, on certain occasions after the
accident, Pomeroy used her cell phone while driving. While much of this
evidence—text messages and photos—was admitted for impeachment purposes,
Holmes contends the court should also have admitted it as proof that Pomeroy
8
was using her phone when the accident occurred.1 Holmes relies on Iowa Rule of
Evidence 5.406, our habit-evidence rule, which states:
Evidence of a person’s habit or an organization’s routine practice
may be admitted to prove that on a particular occasion the person or
organization acted in accordance with the habit or routine practice.
The court may admit this evidence regardless of whether it is
corroborated or whether there was an eyewitness.
Pomeroy argues the district court was right for two reasons. First, Pomeroy
suggests the district court was merely following the law’s clear edict that habit may
be proven only through incidents that occurred prior to the accident, not after the
accident. We are not as sure. Like its federal counterpart, rule 5.406 “is silent on
how habit . . . can be proved.” See Thomas A. Mauet & Warren D. Wolfson, Trial
Evidence § 5.3 (7th ed. 2020) [hereinafter Trial Evidence] (discussing the federal
counterpart to rule 5.406).
But we need not decide the issue. Even when we consider the post-
accident examples, Holmes’s evidence was not sufficient to show a habit for
purposes of rule 5.406.
As suggested, “[a] habit is a person’s regular practice of responding to a
particular kind of situation with a specific kind of conduct.” Gamerdinger v.
Schaefer, 603 N.W.2d 590, 594 (Iowa 1999). It is “how someone regularly, almost
1 The court instructed the jury as follows:
You have heard evidence and shown exhibits that Defendant
Miranda Pomeroy has taken photographs, used Snapchat, Twitter,
Facebook, Instagram and Text Messaging while driving a motor
vehicle or stopped on the traveled portion of a roadway. You may
only use such evidence to determine if Miranda Pomeroy made
inconsistent statements about such acts. You may not consider said
acts as proving that Defendant was distracted by such acts at the
time of the accident on June 8, 2015.
9
automatically, responds to a specific recurring situation.” Trial Evidence § 5.3. It
is “reflexive, situation-specific repetitive behavior.” Id. And so habit evidence can
be a powerful indicator of how a person likely behaved on a particular occasion,
such as when an accident occurred.
But habit evidence also carries risks. “[I]t necessarily engenders the very
real possibility that such evidence will be used to establish a party’s propensity to
act in conformity with its general character, thereby thwarting Rule [5.404’s]
prohibition against the use of character evidence except for narrowly prescribed
purposes.” Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d 1290, 1293 (7th
Cir. 1988) (discussing Federal Rule of Evidence 404). “Moreover, such collateral
inquiries threaten the orderly conduct of trial while potentially coloring the central
inquiry and unfairly prejudicing the party against whom they are directed.” Id.“Thus, before a court may admit evidence of habit, the offering party must establish
the degree of specificity and frequency of uniform response that ensures more
than a mere ‘tendency’ to act in a given manner, but rather, conduct that is ‘semi-
automatic’ in nature.” Id.And so we agree with Pomeroy that, “in order for evidence of [Pomeroy’s]
habit of driving while distracted to be admissible in this case,” Holmes was required
to present proof that Pomeroy “always or in most instances[] use[s] her phone”
while driving a moving vehicle. Holmes did not meet this standard. Holmes’s brief
points to “twenty (20) examples” in which Pomeroy used a phone in a car over an
almost-three-year period spanning from May 2015 to February 2018. And in
several of Holmes’s examples, it is not clear whether Pomeroy was driving or—if
so—whether the car was moving. Even assuming she was driving a moving
10
vehicle in all of Holmes’s examples, though, those examples still would not be
“numerous enough” to show Pomeroy has a habit of using her phone every time—
or even most times—she drives a moving car. See Barrick v. Smith, 80 N.W.2d
326, 329 (Iowa 1957) (noting the instances must be “numerous enough to base an
inference of systematic conduct,” not just “casual recurrences” (citation omitted)).
So rule 5.406 did not support admission of Holmes’s evidence to show Pomeroy
was using her phone when her moving vehicle collided with Holmes. The district
court did not abuse its discretion.
D. Motion for new trial
Finally, Holmes claims the district court erred in failing to grant a new trial
based on alleged misconduct by Pomeroy’s counsel during closing arguments. In
response, Pomeroy notes Holmes “failed to object to the statement at the time” it
“was made or at any other time before the case was submitted to the jury.”
According to Pomeroy, “[t]he first time” Holmes “raised his objection to the
statement was in his motion for new trial.” In Pomeroy’s view, this was too late to
preserve error.
Holmes does not contend he raised an objection prior to his motion for new
trial. Still, Holmes maintains, this was sufficient to preserve error.
Interestingly, both Holmes and Pomeroy rely on the same case, Loehr v.
Mettille. 806 N.W.2d 270, 271 (Iowa 2011). In Loehr, our supreme court clarified
the rules governing error preservation and motions for new trial. See id. at 277–
79. Four relevant points stand out.
First, Loehr reaffirmed the general rule that counsel “cannot sit idly by” and
watch the trial judge submit the case to the jury “and then, after an unfavorable
11
verdict, take advantage of an error which [counsel] could and should but did not
call to the court’s attention.” Id. at 277 (quoting Schmitt v. Jenkins Truck Lines,
Inc., 170 N.W.2d 632, 660 (Iowa 1969)). This follows the general principle “that
parties are not permitted to delay objections until it is too late for the problem to be
corrected.” Id. at 279 (quoting Rudolph v. Iowa Methodist Med. Ctr., 293 N.W.2d
550, 555 (Iowa 1980)).
Second, even if counsel fails to timely object, the district court still has power
to grant a new trial if a ground set forth in Iowa Rule of Civil Procedure 1.1004 has
been met. Id. at 278. Put another way, a party’s tardiness does not strip the district
court of its authority to grant a new trial when justice requires. Id. at 279.
Third, because the district court has authority to grant a new trial even
without a timely objection, appellate courts should not automatically reverse the
grant of a new trial solely because no timely objection was made. “[I]t is not
invariably an abuse of discretion for a trial judge to grant a motion for new trial
based on a matter that could have been raised earlier, but was not.” Id. at 278
(emphasis added).
Fourth, a different rule applies to appeals from the denial of a motion for a
new trial. Although the absence of a timely objection does not strip the district
court of its authority to order a new trial, a complaining party “loses its right to a
new trial if it neglects timely error preservation.” Id. Therefore, “failure to make a
contemporaneous objection will preclude a party from raising the matter on appeal
if the motion for new trial is denied.” Id. at 279.
In this case, Holmes appeals the denial of his request for a new trial. So
before we can reach the merits, we must conclude Holmes made a timely
12
objection. Id. Holmes contends he did so by filing a motion for new trial following
the verdict. We disagree. “[I]t is not timely to await the result of the trial and then
first complain” about misconduct in closing arguments through allegations in a
“motion for new trial.” Andrews v. Struble, 178 N.W.2d 391, 401 (Iowa 1970).
Instead, “[w]hen an improper remark is made by counsel in the course of jury
argument, it is the duty of the party aggrieved to timely voice objection.” Andreesen
v. Chi., Cent. & Pac. R.R. Co., No. 19-0057, 2020 WL 567328, at *5 (Iowa Ct. App.
Feb. 5, 2020) (citation omitted). “Alternatively, a complaining party can object in a
motion for mistrial made before submission of the matter to the jury.” Id. Because
“[n]either was done here,” we conclude “error was not preserved.” Id.; accord
Kinseth v. Weil-McLain, 913 N.W.2d 55, 67 (Iowa 2018) (“Timely objections give
‘the trial court an opportunity to admonish counsel or instruct the jury as it may see
fit.’ Indeed, we require prompt objection to discourage the wait-and-see approach,
in which aggrieved parties refrain from objecting to remarks in a jury argument until
after the verdict has been rendered.” (citation omitted)).
Holmes has shown no grounds for reversal. We affirm.
AFFIRMED.