Michael Wayne Klein v. Des Moines Police Department, Eric Moorman and City of Des Moines ( 2024 )

IN THE COURT OF APPEALS OF IOWA
No. 23-0892
Filed October 16, 2024
MICHAEL WAYNE KLEIN,
Plaintiff-Appellant,
vs.
DES MOINES POLICE DEPARTMENT, ERIC MOORMAN, and CITY OF DES
MOINES,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert
(summary judgment) and Scott D. Rosenberg (trial and motion for partial new trial),
Judges.
Michael Klein appeals the district court’s grants of summary judgment to
defendants that dismissed three of his claims and also appeals the district court’s
denial of his motion for partial new trial. AFFIRMED.
John Q. Stoltze and Bruce H. Stoltze Jr. of Stoltze Law Group, PLC, Des
Moines, for appellant.
John O. Haraldson, Assistant City Attorney, Des Moines, for appellees.
Considered by Schumacher, P.J., and Buller and Langholz, JJ.
2
SCHUMACHER, Presiding Judge.
Michael Klein appeals the district court’s summary judgment ruling in part
and the district court’s denial of his motion for partial new trial. As to the summary
judgment ruling, Klein appeals such to the extent that it granted defendants’ motion
for summary judgment on Klein’s constitutional tort claim; false arrest and
malicious prosecution claim; battery claim; and negligent hiring, supervision, and
retention claim. Klein also seeks review of the district court’s denial of his motion
for partial new trial, which Klein submitted after the jury trial was held to determine
the amount of damages owed to Klein on his three remaining claims, for which the
court had found defendants liable as a matter of law.
We determine Klein’s constitutional tort claim has been invalidated by
Burnett v. Smith, 990 N.W.2d 289, 307 (Iowa 2023). Therefore, we affirm the
summary judgment on the constitutional tort claim. Similarly, because the
constitutional tort claim was the basis for Klein’s negligence claim and is no longer
viable, we affirm the district court’s summary judgment on Klein’s negligent hiring,
supervision, and retention claim. We affirm the district court’s summary judgment
ruling on the claims of false arrest, malicious prosecution, and battery. We also
affirm the district court’s denial of a partial new trial after finding two of Klein’s
grounds for appeal, those claiming error in the district court’s evidentiary rulings,
fail on the merits. And as Klein failed to preserve error on the final basis for his
appeal on the denial of motion for partial new trial, we do not reach the merits of
the attorney-misconduct argument.
3
I. Background Facts and Proceedings
This appeal arises from a civil suit brought by Klein after he was arrested
on criminal charges that were later dismissed by the county attorney. As this suit
against the Des Moines Police Department, Officer Eric Moorman, and the City of
Des Moines was pending, Klein also pursued a case on these same facts against
Officer Warren Steinkamp, the arresting officer, in his individual capacity. See
Klein v. Steinkamp, 44 F.4th 1111 (8th Cir. 2022). While the case before us is
independent of Klein’s suit against the individual officer, the Eighth Circuit opinion
presents a concise factual background describing the events relevant here, which
we now adopt:
On June 19, 2017, Steinkamp and another police officer in
Des Moines were dispatched to an apartment building because the
manager suspected two people of trespassing and making
unauthorized use of a key fob. When the officers arrived, staff
believed that the two suspects were in Klein’s apartment at the
building. A staff member knocked on the door, and Klein eventually
opened it. Police saw two people inside with Klein, asked for their
identification, and entered the apartment through the opened door.
The officers learned from the apartment manager that the
owner of the missing key fob was also missing an expensive purse.
Officers asked Klein and the two others to produce their key chains
so that police could look for the missing key fob. Officers also began
to look for a purse.
Steinkamp picked up and opened a Crown Royal bag.
According to his testimony, Steinkamp felt that he had consent to
open the bag, and he believed that “people could put drugs” in such
a bag. Steinkamp found two empty plastic baggies inside. He
thought the baggies indicated that there “could be drug usage going
on” in the apartment.
Steinkamp then noticed a lock box and opened it using a key
on one of the key chains that he had collected. He looked through
the contents of the box and found Klein’s identification card, a digital
scale, and several bags of a white crystalline substance that he
suspected was methamphetamine. The officers then arrested Klein
on drug charges. A laboratory report later showed that the lock box
contained more than nine grams of methamphetamine.
4
Klein was charged in Iowa state court with two offenses:
(1) possession of more than five grams of methamphetamine with
intent to deliver, see Iowa Code § 124.401(1)(b)(7), and (2) failure to
possess a tax stamp as a dealer of a controlled substance, an
offense that requires possession of seven grams or more of
methamphetamine. See id. §§ 453B.1(3), 453B.3, 453B.12.
Klein was arraigned on June 20, 2017, and he was detained
pending trial. After Klein moved to suppress evidence seized from
the apartment, the county attorney elected not to proceed with the
case. The prosecution moved to dismiss the charges, and the court
granted a dismissal on November 7, 2017. Klein was released from
jail several days later.
Id. at 1113–14.
On June 19, 2019, Klein initiated this action alleging unlawful search and
seizure; wrongful imprisonment and false arrest; malicious prosecution; trespass
to land and chattel; battery; and negligent hiring, supervision, and retention.1
Competing motions for summary judgment were filed in late 2020.
Defendants sought dismissal with judgment in their favor on all issues. Klein
sought partial summary judgment on the liability issue for all claims.
The district court did not grant either party’s motions in whole. The court
granted the defendants summary judgment on the claims of false imprisonment
and arrest, malicious prosecution, negligent hiring and supervision, and battery.
The court divided its summary judgment ruling on the unlawful-search-and-seizure
claims, granting in part to defendants for the claims for all events up to the search
of the lockbox and surrounding area, including the Crown Royal bag. For the
lockbox-and-surrounding-area search, the district court granted Klein summary
judgment on the liability issue. The district court also ruled for Klein on the
1 After the criminal charges were dismissed against Klein, he filed a claim against
Polk County related to his period of confinement in the jail. Those claims were
resolved through a settlement.
5
corresponding trespass claims. Thus, the remaining issues for trial were the
amount of Klein’s recoverable damages on the unlawful search and seizure of the
lockbox and surrounding area and the trespass-to-land-and-chattels claims.
Jury trial began on January 30, 2023, for Klein’s remaining claims. After
four days of testimony, the jury awarded Klein one dollar per claim, for a total
verdict of three dollars.
Klein moved for a partial new trial, alleging the district court’s evidentiary
rulings denied him a fair trial, the defense attorney committed misconduct and
prejudiced the jury, and inadequate damages resulted. The district court denied
the motion.
Klein now appeals the district court’s grants of summary judgment to
defendants and the district court’s denial of his motion for partial new trial.
II. Summary Judgment
Klein provides three independent grounds for his appeal of the district
court’s rulings on the summary judgment motions: (A) the district court improperly
found defendants’ entry into Klein’s apartment did not violate Klein’s right to be
free from unlawful search and seizure under article 1, section 8 of the Iowa
Constitution; (B) the district court erred in finding probable cause to arrest existed
and thus erred in disposing of his false arrest, malicious prosecution, and battery
claims on summary judgment; and (C) the district court misapplied the burden of
production for Klein’s negligent hiring, supervision, and retention claim.
“We review motions for summary judgment for correction of errors at law.”
Burnett, 990 N.W.2d at 293. Summary judgment is appropriate where the moving
6
party shows “there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3).
A. Law Enforcement’s Entry into the Apartment
Claims for money damages made solely under article 1, section 8 of the
Iowa Constitution no longer present a viable cause of action. In May 2023, the
Iowa Supreme Court ruled that Iowa courts will “no longer recognize a standalone
cause of action for money damages under the Iowa Constitution unless authorized
by the common law, an Iowa statute, or the express terms of a provision of the
Iowa Constitution.” Burnett, 990 N.W.2d at 307. Since Burnett, it has been
reinforced repeatedly by our supreme court “that there is no express, independent
cause of action for claims for monetary damages under article I, section 8 . . . of
the Iowa Constitution.” Christiansen v. Eral, No. 22-1971, 2024 WL 108848, at *3
(Iowa Ct. App. Jan. 10, 2024) (collecting cases), as amended (Jan. 25, 2024).
And even if such a suit arose before Burnett was decided, the Burnett ruling
applies to all actions pending at the time the decision was filed. See, e.g., Venckus
v. City of Iowa City, 990 N.W.2d 800, 812 (Iowa 2023) (applying Burnett to
conclude the plaintiff’s direct claims for damages under the Iowa Constitution are
no longer available); see also Christiansen, 2024 WL 108848, at *3 (“[O]ur
supreme court has repeatedly applied Burnett to cases in which the appeals were
still pending at the time of the May 5, 2023 ruling in Burnett and concluded those
claims were barred.”).
Klein’s constitutional-tort claim related to the officers’ entry into his
apartment falls under Burnett. Thus, we affirm the district court’s partial grant of
summary judgment.
7
B. False Arrest, Malicious Prosecution, and Battery
Klein also disputes the district court’s finding that led to summary judgment
in defendants’ favor on Klein’s false arrest, malicious prosecution, and battery
claims. In its order on the competing summary judgment motions, the district court
recognized that the absence of probable cause was necessary for Klein’s false
arrest, malicious prosecution, or battery claim to survive defendants’ motion. 2
Klein only contends the district court erred in finding officers had probable cause
to arrest Klein. It is on this claim of error that Klein appeals the district court’s grant
of summary judgment on those claims.
Klein’s main challenge to the district court’s probable-cause determination
focuses on the legality of the search that produced the drug evidence. He asserts
Iowa constitutional law prohibits evidence obtained in an illegal search from
serving as the basis of probable cause to arrest. Klein cites two Iowa Supreme
Court cases to support this statement, State v. Cooley, 229 N.W.2d 755 (Iowa
1975) and State v. Smith, 178 N.W.2d 329 (Iowa 1970). On our review, we believe
2 Specifically regarding battery, the district court found the evidence indisputably
showed the officers did not cause harmful contact with Klein in a manner that could
support a battery claim. Klein does not dispute this finding. The district court
looked to our sister states and explained in its order, “in the absence of any
excessive or inappropriate force that might result in harmful contact, the plaintiff’s
arrest does not standing along create offensive contact that results in a battery.”
In the time since this district court order was issued, this court has expounded:
Even if a defendant can establish the required elements of a battery claim, “[p]olice
officers are privileged to commit a battery pursuant to a lawful arrest subject to the
limitation on excessive force.” See Richards v. City of West Des Moines, No. 22-
0895, 2023 WL 4759456, at *5 (Iowa Ct. App. July 26, 2023) (quoting Lawyer v.
City of Council Bluffs, 240 F. Supp. 2d 941, 955 (S.D. Iowa 2002)). The district
court was correct to conclude Klein’s battery claim, which impliedly accedes that
no excessive or inappropriate force was used, must fail if the arrest was supported
by probable cause.
8
these cases merely reiterate the principle that unconstitutionally obtained evidence
is inadmissible in a criminal trial as evidence of a defendant’s guilt. See Cooley,
229 N.W.2d at 761 (finding unlawfully obtained evidence was wrongfully admitted
by the trial court); Smith, 178 N.W.2d at 332–33 (reversing the trial court’s denial
of the criminal defendant’s motion to suppress unconstitutionally obtained
evidence). These cases neither support Klein’s assertion nor cause conflict for the
district court’s ruling below.
The Iowa Supreme Court has established that in actions for civil damages
that require the court to assess the existence of probable cause, “courts apply a
probable cause standard less demanding than the constitutional probable cause
standard in criminal cases.” Children v. Burton, 331 N.W.2d 673, 680 (Iowa 1983).
Even when evidence would not be admissible to determine criminal liability,
evidence collected in an unlawful manner may still support a probable cause
determination in tort claims against a state actor. See, e.g., Klein, 44 F.4th at 1116
(applying both Iowa and federal law); see also Venckus, 990 N.W.2d at 810 (“The
police need not have firm evidence which might lead to a conviction, or even to an
indictment, but merely sufficient information to cause a reasonable man to believe
that the defendant was involved in a crime.” (quoting State v. Horton, 625 N.W.2d
362, 365 (Iowa 2001) (en banc)) (cleaned up)); Children, 331 N.W.2d at 680 (“In
determining probable cause, all the information in the officer’s possession, fair
inferences therefrom, and observations made by him, are generally pertinent; and
facts may be taken into consideration that would not be admissible on the issue of
guilt.” (quoting 5 Am. Jur. 2d Arrest § 48, at 740–41 (1962))). Such a probable-
cause determination is viewed through an objective lens and turns on the evidence
9
known to the officer at the time of the arrest. See Venckus, 990 N.W.2d at 810
(analyzing malicious prosecution); Veatch v. City of Waverly, 858 N.W.2d 1, 8
(Iowa 2015) (addressing false arrest). “If the officer acts in good faith and with
reasonable belief that a crime has been committed and the person arrested
committed it, his actions are justified and liability does not attach.” Children, 331
N.W.2d at 680. Thus, it was not error for the district court below to conclude that,
even if the drugs within Klein’s personal effects were the product of an
unconstitutional search, that unconstitutionality has no bearing on whether the
officers had probable cause.
Klein also argues the dismissal of the criminal charges against him
established prima facie evidence of a lack of probable cause. Klein references an
earlier case, Berkey v. City of Mingo, No. 12-1782, 2013 WL 5743646, at *5 (Iowa
Ct. App. Oct. 23, 2013), in which this court stated, the plaintiff “established a prima
facie showing of a want of probable cause” because “the prosecutor dismissed the
charges against [the plaintiff] without proceeding to trial.” But this statement must
be taken in full context. We further stated that overcoming the prima facie showing
of a want of probable cause merely requires evidence in the record that shows
probable cause existed when the disputed event occurred. Id. This further
explanation acknowledges the reality that a prosecutor’s decision to dismiss
criminal charges “may be based on a post-probable-cause determination that the
evidence is insufficient to establish guilt beyond a reasonable doubt.” Id. at *5 n.8.
The Berkey court then held, despite the later dismissal of Berkey’s criminal
charges, probable cause existed at the time of charging and affirmed the grant of
10
judgment as a matter of law to the defendants on Berkey’s malicious prosecution
and false arrest claims. Id. at *5, *7.
Klein’s argument is no more persuasive even assuming Berkey sets forth a
principle that applies here. The district court considered uncontested evidence
that officers discovered illegal drugs in Klein’s lockbox. This evidence included
officer body camera footage showing officers finding a crystalline substance
consistent with methamphetamine inside an envelope addressed to Klein. This
envelope was located inside a lockbox, the key for which was on a keychain given
to the officers by Klein. Despite the earlier dismissal by the county attorney of the
criminal charges against Klein, any prima facie showing of want of probable cause
that may have arisen would have been easily overcome by this undisputed
evidence. Viewing the evidence in the light most favorable to Klein, we agree with
the district court’s finding that officers had probable cause to arrest Klein.3
We conclude that the district court did not err in granting defendants’ motion
for summary judgment on Klein’s false arrest, malicious prosecution, and battery
claims.
C. Negligent Hiring, Supervision, and Retention Claim
Klein also argues the district court erred in granting summary judgment to
defendants on his negligent hiring, supervision, and retention claim. Recovery
under that theory requires the claimant to prove not only causation by the
employer’s negligent hiring, supervision, or retention, but also that “the employee’s
3 Our holding is consistent with the Eighth Circuit’s ruling in Klein’s other lawsuit
against Officer Steinkamp individually, concluding Klein’s arrest was supported by
probable cause regardless of the unconstitutionality of the search. See Klein, 44
F.4th at 1116.
11
underlying tort or wrongful act caused a compensable injury.” Kiesau v. Bantz,
686 N.W.2d 164, 172 (Iowa 2004) (citation omitted), overruled in part on other
grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016). “[A]n
employer cannot be held liable for negligent supervision or training where the
conduct that proper supervision and training would have avoided is not actionable
against the employee.” Schoff v. Combined Ins. Co. of Am., 604 N.W.2d 43, 53
(Iowa 1999).
On appeal, Klein appears to only claim the underlying wrongful act that
would have been avoided by proper supervision and training was the violation of
his constitutional right against unlawful search. As discussed above, this alleged
violation is no longer a compensable injury after Burnett. Without a compensable
injury underlying the action, Klein’s negligent supervision and training claim cannot
survive. See Christiansen, 2024 WL 108848, at *7. We therefore affirm the district
court’s grant of summary judgment to defendants on this issue.
III. Motion for Partial New Trial
A. Evidence Admissibility
Klein also appeals the district court’s denial of his motion for partial new
trial. “The scope of our review of a district court’s ruling on a motion for new trial
depends on the grounds raised in the motion.” Clinton Physical Therapy Servs. v.
John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006) (quoting Richards
v. Anderson Erickson Dairy Co., 699 N.W.2d 676, 678 (Iowa 2005)). Klein claims
the district court’s denial of his motion for partial new trial was an error. He traces
this error in part to two of the district court’s evidentiary rulings: the exclusion of
post-arrest evidence and the admission of evidence of methamphetamine.
12
A trial court has great discretion in determining the admissibility of evidence.
Horak v. Argosy Gaming Co., 648 N.W.2d 137, 149 (Iowa 2002). We apply an
abuse-of-discretion standard to a trial court’s evidentiary rulings. Clinton, 714
N.W.2d at 609–10. “An abuse of discretion will be found when the court exercises
its discretion on grounds clearly untenable or to an extent clearly unreasonable.”
Smith v. State, 522 N.W.2d 591, 593 (Iowa 1994).
1. Post-Arrest Events
Klein first challenges the district court’s decision to exclude evidence of
events that occurred after Klein’s arrest.4 Klein argues the district court’s decision
to exclude evidence of post-arrest events prevented him from presenting the full
scope of his damages proximately caused by the unlawful search of his property.
Relying on State v. Dennison, Klein urges that Iowa law entitles a plaintiff to
compensation for “inevitable . . . adverse consequences” proximately caused
when that plaintiff was arrested and charged with a crime only to have that charge
later dismissed. 571 N.W.2d 492, 497 (Iowa 1997), overruled by State v. Williams,
895 N.W.2d 856 (Iowa 2017). The commentary Klein references in Dennison
addressed cases of arrests unsupported by probable cause. See id. (describing
the consequences of improper arrests based on insufficient evidence). As we have
already discussed, the officers here had probable cause to arrest Klein.
The scope of compensable damages for Klein’s remaining claims was
considered by the district court after advisement by the parties in the pleadings on
4 Although Klein appears to provide four theories challenging this decision to
exclude evidence, we address only those for which Klein provided legal authority.
See Iowa R. App. P. 6.903(2)(a)(8)(3) (2024) (“Failure to cite authority in support
of an issue may be deemed waiver of that issue.”).
13
the parties’ motions in limine. In its initial order on Klein’s motion to suppress the
drug evidence, the district court noted that the authorities provided by the parties
“clearly show[ed] that there is not controlling authority under Iowa law on the proper
scope of compensatory damages for [Klein’s] claims that remain.” The district
court concluded the scope of liability stopped the moment probable cause arose.5
Applying this conclusion of law to the facts, the district court reasoned post-arrest
events were not relevant for the jury’s consideration on damages.
This rationale is far from untenable or clearly unreasonable. Indeed, we
struggle to see the relevance of post-arrest events to the amount of damages owed
for liability that is limited to only events occurring before a lawful arrest. Nor does
Dennison conflict with the district court’s conclusion. Because probable cause to
arrest existed, Klein’s proximate cause argument—that the district court’s limitation
on evidence was an abuse of discretion—is unpersuasive.
Under a different theory challenging the exclusion of post-arrest evidence,
Klein claims the district court’s ruling violated Iowa Rule of Evidence 5.106
because he was prevented from admitting evidence of the circumstances
surrounding the dismissal of criminal charges. Rule 5.106 is the codification of the
common law rule of completeness. State v. Tucker, 982 N.W.2d 645, 658 (Iowa
2022). The rule “allows a second litigant to introduce alongside supposedly partial
or incomplete evidence some additional evidence ‘that in fairness ought to be
considered at the same time.’” Id. at 659 (quoting Iowa R. Evid. 5.106). A trial
court has “significant discretion in deciding whether rule 5.106 applies in a
5 Klein does not allege an issue about the district court’s application of law.
14
particular circumstance.” Id. However, “[n]either rule 5.106 nor the common law
doctrine of completeness can trump the fundamental rule that irrelevant evidence
is not admissible.” Id. Because the district court reasonably held the evidence of
post-arrest events was irrelevant to assessing the remaining damages claims, we
see no abuse of discretion in the district court’s rejection of Klein’s rule 5.106
argument.
2. Drug-Related Evidence
In a second evidentiary challenge, Klein disputes the district court’s
admission of evidence of drug activity. In this appeal, Klein asserts the probative
value of the evidence was far outweighed by the danger of unfair prejudice and
thus violated Iowa Rule of Evidence 5.403. The great discretion afforded to trial
courts making evidence admissibility determinations “extends, of course, to the
balancing of probative value versus prejudice under Iowa Rule of Evidence 5.403.”
Horak, 648 N.W.2d at 149. “[W]e reverse the trial court only when we find a clear
abuse of that discretion.” Shawhan v. Polk Cnty., 420 N.W.2d 808, 809 (Iowa
1988).
During a pretrial proceeding, the district court heard arguments from both
Klein and defendants concerning the relevance and admissibility of the drug-
related evidence. The district court agreed that because the jury would be
permitted to consider Klein’s emotional and reputational damages, evidence that
officers produced from within Klein’s possessions a baggie of methamphetamine
in a room occupied by multiple other people would be relevant to the jury’s
consideration.
15
Klein’s argument on the imbalance between the prejudicial and probative
value misapplies the ruling of an earlier case before this court in which we affirmed
a trial court’s decision to exclude evidence under rule 5.403. See Gardner ex rel.
Iowa State Bank v. Broadlawns Med. Ctr., No. 08-0285, 2009 WL 1491807, at *2–
3 (Iowa Ct. App. May 29, 2009). In Gardner, we did not rule that evidence of
methamphetamine use is particularly or inherently prejudicial such that its
prejudicial effect somehow per se outweighs its probative value, as Klein seems
to suggest. Instead, we merely applied an abuse of discretion standard to the
district court’s decision to exclude and found no such abuse existed. Id. at *3.
We are unmoved by Klein’s claim. The jury was tasked with assessing
Klein’s damages on three issues for which liability was predetermined by the court.
The district court allowed the jury to consider more than just physical damages,
and thus declined to exclude evidence that it reasoned may be relevant to loss of
reputation or emotional damages. As in Gardner, “[a]fter considering the leeway
we afford trial judges in the balancing process and the ‘clear abuse’ standard of
review, we do not find an abuse of discretion in the trial court’s [admission] of the
evidence.” Id.
Finding no reversible error on the district court’s disputed evidentiary
rulings, we determine the motion for new trial was properly denied on these
grounds.
B. Defendant’s Closing Argument
Klein’s final argument is that the district court erred in denying his motion
for new trial based on defense counsel’s allegedly improper closing arguments.
Defendants dispute this issue was preserved for appeal.
16
Ordinarily, a party must object to opposing counsel’s improper remarks at
the time they are made to a jury. Olson v. BNSF Ry. Co., 999 N.W.2d 289, 299
(Iowa 2023); accord Andrews v. Struble, 178 N.W.2d 391, 401 (Iowa 1970) (“When
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.”). But at least in civil cases,
Iowa has recognized the need for an alternative way to preserve errors on such
claims of attorney misconduct because of the potential jury prejudice an objection
during closing arguments may cause the objecting party. Olson, 999 N.W.2d at
299. To preserve these misconduct allegations for appellate review, a party must
either object at the time the remarks are made or raise the objection in a motion
for mistrial before the matter is submitted to the jury. Id. Either action “gives ‘the
trial court an opportunity to admonish counsel or instruct the jury as it may see fit.’”
Id. (quoting Andrews, 178 N.W.2d at 401). The requirement of a timely objection
“discourage[s] 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.”
Kinseth v. Weil-McLain, 913 N.W.2d 55, 67 (Iowa 2018).
Klein’s misconduct objection was not raised in a timely manner. Klein’s
attorney did not object to defense counsel’s closing arguments other than to make
one relevance objection.6 The district court overruled the objection, and Klein
proceeded with rebuttal. Klein made no objection to any of the alleged instances
of misconduct during closing arguments, and he failed to make a motion for mistrial
6 Any claim of error that would be preserved by this objection would be limited to
the district court’s ruling on relevance. See Olson, 999 N.W.2d at 299 (limiting the
preservation of error based on the grounds raised in the appellant’s timely
objection). Klein does not raise that issue.
17
before the matter was submitted to the jury. Only after the jury returned the verdict
awarding damages at one dollar per count did Klein assert an objection based on
attorney misconduct. This appears consistent with a “wait-and-see approach” that
the requirement of timely objection seeks to discourage. See id.
In the preservation of error statement, Klein supplements this misconduct
argument by citing to Hein v. Waterloo, C. F. & N. Ry. Co., 162 N.W. 772 (Iowa
1917), and asserting “[i]ndeed, this prejudice is so substantial that in some cases,
depending on the nature of the argument, even an ‘indefinite objection’ or none at
all may be sufficient to warrant a new trial.” However, he presents no statement
instructing this court how that impacts the preservation of error.7 We therefore
decline to address this insertion.
We conclude this issue has not been properly preserved for our
consideration.
IV. Conclusion
We affirm the district court ruling on the constitutional tort claim and the
negligent hiring and supervision claim as Burnett prevents either from proceeding.
We affirm the district court’s grants of summary judgment on the issues of false
arrest, malicious prosecution, and battery. We affirm the district court’s denial of
Klein’s motion for partial new trial. And because the issue of attorney misconduct
is unpreserved for our review, we do not reach the merits of this claim.
AFFIRMED.
7 Appellate courts are not obligated to “speculate on the arguments [a party] might
have made and then search for legal authority and comb the record for facts to
support such arguments.” Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996).