Leanne Loehr and Ed Loehr v. Craig W. Mettille, Bromo, Inc., d/b/a First General Servicemaster 380

IN THE SUPREME COURT OF IOWA
No. 10–0483
Filed October 28, 2011
LEANNE LOEHR and
ED LOEHR,
Appellees,
vs.
CRAIG W. METTILLE, BROMO,
INC., d/b/a FIRST GENERAL
SERVICES OF EAST CENTRAL
IOWA, and MOBRO, INC., d/b/a
380 SERVICE MASTER and
SERVICEMASTER 380,
Appellants.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, Thomas L.
Koehler, Judge.
Defendants appeal the district court’s grant of a new trial on
plaintiffs’ claims of defamation and wrongful debt collection. COURT OF
APPEALS DECISION AFFIRMED; DISTRICT COURT JUDGMENT
REVERSED AND REMANDED.
Joe H. Harris, Cedar Rapids, for appellants.
Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for
appellees.
2
MANSFIELD, Justice.
This dispute between a homeowner and a contractor presents the
not uncommon scenario where a trial exhibit offered by a party turns out
to be something other than the party claimed it to be. Here, the opposing
party recognized the flaws in the exhibit before the case was submitted to
the jury, but instead of alerting the court, decided to argue those flaws to
the jury during the rebuttal stage of closing argument. After the jury
returned verdicts, the opposing party moved for a new trial on some
claims, alleging misconduct with respect to the exhibit. The district
court granted the motion, and this appeal followed.
On our review, we conclude the district court did not lack
authority to grant a new trial simply because the objection to the exhibit
could have been raised earlier and was not. However, considering all the
circumstances, including the absence of real misconduct or prejudice
and the opposing party’s decision to wait until rebuttal argument to
bring forward its concerns, we find the district court abused its
discretion in granting a new trial.
I. Background Facts and Proceedings.
Plaintiffs Leanne and Ed Loehr have a large family with ten
children, including several foster children. On May 31, 2007, a second-
floor toilet in their home flooded, causing water to pour down through
their house. The Loehrs contacted their insurance agent, who put them
in touch with Joe Elert, an independent insurance adjuster working on
behalf of the Loehrs’ insurance carrier EMC. Elert came to the house
immediately and referred the Loehrs to two companies run by defendant
Craig Mettille. The initial drying and cleanup was performed by
defendant ServiceMaster, and defendant First General did the home
repairs. The Loehrs signed a work authorization form with ServiceMaster
3
on June 1, 2007, and a separate work authorization with First General
on June 3, 2007.
Within a few days, ServiceMaster was able to get all the water out
of the house. At trial, Ms. Loehr testified ServiceMaster did “a good job”
and she had no issue with its services. Once ServiceMaster had finished
its cleanup, it became First General’s responsibility to remove and
replace the damaged flooring, carpet, drywall, trim, and other fixtures, as
well as to repaint the house.
At the time of the flood, the Loehrs were scheduled to have their
home inspected by the Department of Human Services in connection
with their foster care license and were anxious to have the repairs
completed. Due to the reconstruction process, the Loehrs needed to
move out of the house at times. Although EMC reimbursed the Loehrs’
hotel and meal expenses and was willing to pay for alternative housing
for the entire duration of the repair work, the Loehrs stayed in their
home most of the time. The Loehrs were nonetheless concerned about
hazards in the home, such as exposed tacks and uncovered electrical
outlets, and expressed those concerns to First General.
The reconstruction work was expected to take six weeks, and the
Loehrs pushed hard to have First General meet that estimate. The
specific scope of work to be performed was negotiated between Elert and
First General and itemized in detail. The final supplemented estimate
agreed to by the insurance company was $22,741.44.
Some of the initial work performed by First General did not meet
quality standards, and First General had to correct it. In other
instances, First General redid its work without necessarily agreeing it
was unsatisfactory. First General also performed some tasks that were
outside the agreed-upon scope of work. All of this led to project delays,
4
which frustrated the Loehrs. After several weeks, the tensions between
the Loehrs and First General were mounting.
Payment for the work was also delayed. Initially, this delay was
caused by the need for the first EMC insurance check to be endorsed by
two different mortgage holders named as loss payees. Solon State Bank
had originated the first mortgage but sold it to PHH Mortgage, a large
New Jersey lender. Solon Bank also held a second mortgage on the
home. The PHH sign-off took longer than usual which frustrated all
parties, but especially Mettille who was waiting to be paid.
A ServiceMaster invoice for $6,503.89 was sent on June 19, 2007. 1
The first EMC insurance check in the amount of $21,938.89 to cover
both cleanup and repair work was received by the Loehrs on June 20,
2007, but had to be endorsed by both mortgage companies as loss
payees. This process ended up taking approximately a month.
When Ms. Loehr expressed her dissatisfaction with the quality and
pace of First General’s work, Mettille considered pulling out of the job.
According to his testimony, his conditions for staying on the job were
that a $15,000 progress payment would be made to First General and
that the Loehrs would sign off on each stage of the project as it was
completed. He also agreed to assign a new project manager to the Loehrs
at their request.
At trial, Mettille claimed that he communicated these terms on
June 29, 2007, to Elert, who then relayed them to the Loehrs, got their
approval, and then reported that approval back to Mettille the same day.
Mettille claimed this sequence of events was supported by an exhibit
showing three cell phone calls he had with Elert around that timeframe—
1This invoice was later reduced to $5,856.21.
5
an exhibit that became the basis for the Loehrs’ new trial motion and
that we will discuss in more detail below.
The Loehrs denied ever receiving or approving Mettille’s terms.
Elert, though, confirmed that Mettille had insisted on a progress
payment and sign-offs by the Loehrs as each step was completed in order
to remain on the job. Elert recalled this conversation with Mettille
occurred some time on or after July 3. However, Elert did not remember
calling Ms. Loehr and relaying Mettille’s terms to her.
Regardless, it is undisputed that from early July forward the
Loehrs were asked to and did sign off on each stage of the project as it
was completed. 2 Also, on July 20, as soon as both mortgage companies
approved release of funds, the Loehrs arranged for First General to be
paid exactly $15,000 out of the $21,938.89 EMC check. The Loehrs
directed most of the balance of that check, approximately $7000, to go to
themselves. For his part, Mettille did not withdraw from the job and had
the project manager replaced.
The Loehrs never directly paid ServiceMaster. Ms. Loehr testified
at trial that she did not understand the difference between the two
companies, and she believed part of the $15,000 was covering the
ServiceMaster invoice.
Throughout July and August 2007, work and rework continued
with Ms. Loehr signing off on each phase of the project as it was
completed. However, on August 31, Ms. Loehr refused to sign a
completion approval for the entire project and instead sent a lengthy list
of items to Elert which she said had not been delivered. First General
considered most of the items listed by Loehr either to have been
2Mettille testified his company had never demanded interim sign-offs from any
customer before.
6
satisfactorily completed or else to be outside the scope of the work it had
agreed to. It then credited the Loehrs’ account for the remaining items
and issued a final invoice in the amount of $6,380.24 on September 6,
2007. The Loehrs were still not satisfied, so they refused to allow Solon
Bank to release funds from a second EMC insurance check in the
amount of $6,912.34. 3
The Loehrs asked Stephanie Mai, their mortgage loan officer at
Solon Bank, to visit their home to inspect the work that had been done.
She did so, and on October 2, 2007, sent a letter to First General
itemizing a long list of problems she had seen during her inspection. Her
letter concluded, “Solon State Bank will not endorse any further
insurance checks to cover the construction job until we have verified that
the complaints listed above have been remedied.” Mai’s observations
were made without knowledge of what was actually covered by the scope
of work agreed to by First General. Mai also was unaware that Ms. Loehr
had signed off on specific phases of the work as it was performed. Mai
did not know whether the problems she saw were outside the scope of
the project or represented subsequent damage from postclaim water
leaks.
Upon receiving Mai’s letter, Mettille called her to plead his case.
Mettille urged that Ms. Loehr had approved the specific work items as
they were completed and that the other items listed in Mai’s letter were
outside the agreed project scope. Mettille was upset and later admitted
3The
$6,912.34 check was in addition to the earlier $21,938.89 check. The
Loehrs, as noted, retained approximately $7000 from the $21,938.89 check and the
$6,912.34 check was subsequently deposited in the Loehrs’ attorney’s trust account.
Thus, at the time of trial, the Loehrs or their attorney was holding approximately
$14,000 of funds from EMC that had not been paid to either First General or
ServiceMaster. The jury ultimately found that the Loehrs did not owe First General
anything but owed ServiceMaster $5,856.21.
7
that during the conversation he called the Loehrs “liars.” According to
Mai, Mettille characterized the Loehrs as both “liars” and “dummies,” but
did so only once. Mettille then faxed Mai the documentation supporting
his claims and followed up with additional calls. Mai recalled that
Mettille phoned her no more than four to six times in total. Mai testified
that when Mettille became “a little bit more aggressive” in his calls, she
asked the Loehrs’ attorney to send Mettille a letter requesting he stop
calling her about receiving payment on the Loehrs’ account. Mettille still
called her “a couple of times” after that.
On November 6, 2007, Mettille drove by the Loehr home. At that
time, a friend of the Loehrs was visiting. The friend noticed Mettille’s car
proceed along the street very slowly, turn around, and then proceed back
very slowly while Mettille looked toward the house. The friend felt
uncomfortable. When Ms. Loehr saw Mettille from her front door, she
became very upset. Mettille admitted he drove by the Loehr home very
slowly and scanned it, but maintained he was doing so because one of
his new employees had told him about a payment dispute his former
company had with the Loehrs over a retaining wall it had installed.
Mettille said he wanted to view the condition of the wall. The employee’s
testimony confirmed this claim.
On November 6, 2007, (the same day as the aforementioned
incident at the home), the Loehrs filed suit against Mettille and his
companies asserting claims for defamation and illegal collection
practices 4 and seeking actual and punitive damages. They also sought a
declaratory judgment to determine their contractual rights including any
amounts that might be owed to ServiceMaster or First General. Their
4The wrongful debt collection practices claim was based on Iowa Code section
537.7013 (2007), part of the Iowa Consumer Credit Code.
8
petition alleged that Mettille “ha[d] engaged in a campaign of defamation
and harassment against [the] Loehrs” by calling them “liars” and had
“contacted other friends and acquaintances of [the] Loehrs and engaged
in harassing and defamatory actions” that “constitute illegal collection
practices, defamation and other tortious conduct.” First General and
ServiceMaster answered, denied the Loehrs’ allegations of wrongful
conduct, and counterclaimed for amounts due.
A four-day trial was held from May 4 through May 7, 2009, with
twenty-one witnesses and nearly 70 exhibits. The jury ultimately
rejected the plaintiffs’ claims of defamation and unfair collection
practices. The jury awarded ServiceMaster $5,856.21 for its breach of
contract counterclaim, while finding that First General had not proven its
separate breach of contract counterclaim.
The plaintiffs filed a motion for new trial on May 21, 2009, arguing
that Mettille committed misconduct by giving false testimony and
fabricating an exhibit in order to support that testimony. The claimed
misconduct related to the defendants’ Exhibit RR, which purported to
show cell phone calls Mettille had with Elert during the June 27–29,
2007 time period, and to Mettille’s related testimony. On the last day of
trial, Mettille testified as follows:
A. . . . I believe I called Joe Elert—I believe he called
me, left me a message, and his number would have come up
on my cell phone.
And then I returned Joe Elert’s call and informed him
that we were not going to finish the Loehrs’.
....
Q. Now, you described a conversation that you had
with Joe Elert. Do you remember the date of that
conversation? A. The first phone call—and I looked at my
9
cell phone records because I was unclear—was on the 27th
of June.
Q. And you—you said you spoke to him several days
later. What was that conversation? A. The two days after
that I spoke with Mr. Elert on the 29th, it was around noon,
and he asked me to reconsider, he would like for me to finish
the project.
....
A. . . . And at that point I told Joe Elert, I said, okay,
Joe, we’ll finish the Loehrs’ house, but these are my
conditions. My conditions were I need $15,000 up front or
as soon as possible. . . .
So I said, what we’ll do then, Joe, is we’ll have her sign
off on the stage of construction before that she’s satisfied
before we move on to the next stage. I don’t want to get to
the end and have her not happy with the drywall, have her
not be happy with the paint, and have a complete mess on
our hands at the end of the project.
Q. What did Mr. Elert say when you said I want to use
this sign-off stage by stage? A. He said let me contact the
Loehrs and I’ll call you back.
Q. And did he call you back? A. He called—He called
me back, got his number—I talk a lot on my cell phone, and
his number was up on my cell phone, and I called Joe Elert
back immediately and he said Leanne Loehr’s okay with that
and you’re good to finish the job.
Q. Mr. Mettille, I’m handing you what’s been marked
as Defendant’s Exhibit RR. Would you examine that?
....
Q. Do you recognize that document? A. Yes. These
are my cell phone records.
Q. Do the calls that you just related, do those phone
calls appear on this statement? A. Yes, they do.
The Exhibit RR cell phone records were admitted following this
testimony without objection. Mettille claimed that Exhibit RR reflected
the three calls he had with Elert. The Loehrs’ counsel had an
10
opportunity to cross-examine Mettille regarding the exhibit, but did not
challenge its authenticity or Mettille’s testimony with respect to it.
However, a close examination of the exhibit later showed it was
comprised of pages 37, 13, and 59, in that order, culled from an eighty-
one page phone bill. Only one of the three pages actually represented
calls to or from Mettille himself. Although all three pages said “Account
Name: CRAIG METTILLE” at the top in clear type, in a less visible shaded
area one could see a different employee mentioned on each page—
“Scott,” “Lonnie,” and “Craig” respectively—thus indicating that only the
last page of the exhibit actually represented calls from Mettille’s personal
cell phone.
The defendants’ counsel did not provide this exhibit to the
plaintiffs until the day before it was offered, and it was not offered until
the last morning of trial. The Loehrs’ counsel maintained he did not
notice the exhibit was not what Mettille claimed it to be until after the
close of evidence, during a lunch break before final arguments. At that
point, counsel decided to make an issue of Exhibit RR during closing
argument, although he did not do so until his rebuttal. Arguments were
not transcribed, but the parties later stipulated as follows:
THE COURT: Any further record, Mr. Harris?
MR. HARRIS: . . . I would ask Mr. Riley to stipulate for
the record that, in fact, during Plaintiffs’ rebuttal to the jury,
the only issue that he argued to the jury was the alleged
falsity of Exhibit RR and that it had been fabricated by the
Defendants.
MR. RILEY: I don’t believe that was the only issue. I
know that the rebuttal argument was brief. But I would
stipulate that I did point out and discuss and show the
reason why Exhibit RR was not what it purported to be and
it was obviously a fabrication, but I don’t know that that’s
the only thing I said.
....
11
MR. RILEY: I would stipulate as I indicated, that I did
discuss in my rebuttal argument the fact that Exhibit RR
was not what Mr. Mettille claimed it to be, and I showed to
the jury why it was not, based on the specifics in the detail
showing it was three different person’s phones, that it was
an outgoing call, took less than a minute. I discussed all of
that in my rebuttal argument.
MR. HARRIS: I’ll accept that.
THE COURT: Is that a fair summation? That’s as I
remember it, anyway.
MR. HARRIS: Accept that, your Honor.
A hearing on plaintiffs’ motion for new trial was held on January 6,
2010. At that time, affidavits were received from Mettille and his office
manager Jill Tyler, and a professional statement from Mettille’s attorney
Joe Harris, with each claiming that the misleading exhibit was an
innocent mistake and not a deliberate fabrication. Tyler and Mettille also
testified in person, with Mettille ultimately admitting that the cell phone
records showed only a single call of less than one minute made by him to
Elert on June 29, 2007. This conflicted with his trial testimony that
there were three calls between himself and Elert during the June 27–
June 29 time period.
On February 22, 2010, the district court granted the Loehrs’
request for a new trial under Iowa Rule of Civil Procedure 1.1004. The
Loehrs did not request, and were not granted, a new trial on the breach
of contract counterclaims. As their counsel stated:
I don’t believe it’s necessary to retry the Defendants’ claims
against my clients because the jury had full opportunity to
consider them, made decisions as to them, and it’s not like
we were—our claims—We were not able to make our full case
because we didn’t realize what they had done or this exhibit
or that he had contrived the testimony, but I don’t think it
would adversely affect them, because it’s us that were
deprived the opportunity to present evidence going to his
credibility, so I don’t think it’s necessary to retry the
Defendants’ counterclaims.
12
In granting a new trial, the district court reasoned as follows:
Contrary to the assertions of Mr. Mettille, the Court is
convinced that he did deliberately attempt to mislead the
jury, and his testimony with regard to other issues weighs
heavily on his credibility. The Court agrees with the
Plaintiffs that, rather than a “mistake,” Mr. Mettille’s
“evidence” was clearly contrived and he certainly was not
acting in good faith. This misconduct was prejudicial to
Plaintiffs. The Plaintiffs should be granted a new trial on
their original causes of action.
On March 23, 2010, the defendants filed a timely notice of appeal.
We transferred the case to the court of appeals. That court reversed the
grant of new trial on the ground that the Loehrs had failed to preserve
error by not objecting to Exhibit RR before the case was submitted to the
jury. As the court of appeals explained, the Loehrs’ counsel “had more
than one opportunity to raise the possible problems with the exhibit
before the case was submitted to the jury, but did not do so.” The court
cited Iowa Rule of Civil Procedure 1.920 as one mechanism he might
have used. 5 The court also cited Schmitt v. Jenkins Truck Lines, Inc. for
the proposition that counsel cannot “after an unfavorable verdict, take
advantage of an error which he could and should but did not call to the
court’s attention.” 170 N.W.2d 632, 660 (Iowa 1969). We granted
further review.
II. Standard of Review.
“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.” Channon v.
United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001). If the motion
is based on a discretionary ground such as misconduct it is reviewed for
an abuse of discretion. See Roling v. Daily, 596 N.W.2d 72, 76 (Iowa
5This rule provides, “At any time before final submission, the court may allow
any party to offer further testimony to correct an evident oversight or mistake, imposing
such terms as it deems just.”
13
1999). “An abuse of discretion consists of a ruling which rests upon
clearly untenable or unreasonable grounds.” Lawson v. Kurtzhals, 792
N.W.2d 251, 258 (Iowa 2010). An “unreasonable” decision is one that is
not based on substantial evidence. Channon, 629 N.W.2d at 859. “In
ruling upon motions for new trial, the district court has a broad but not
unlimited discretion in determining whether the verdict effectuates
substantial justice between the parties.” Iowa R. App. P. 6.904(3)(c).
Also, we are “slower to interfere with the grant of a new trial than with its
denial.” Id. r. 6.904(3)(d). However, unless a different result would have
been probable in the absence of misconduct, a new trial is not
warranted. Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa
1992).
III. Preservation of Error.
The court of appeals reversed the district court’s grant of a new
trial because the Loehrs had failed to preserve error, citing Schmitt as
authority and focusing on the following passage:
[I]t is axiomatic that counsel for a party cannot sit idly by
and not attempt to direct the attention of the trial court to a
possible limitation or restriction on the use of evidence and
then, after an unfavorable verdict, take advantage of an error
which he could and should but did not call to the court’s
attention.
170 N.W.2d at 660 (internal quotation marks omitted).
The court of appeals interpreted this statement as an absolute
prohibition on the granting of a retrial based on the admission of
improper evidence when the moving party was aware of the problem and
failed to object to the evidence before the case was submitted to the jury.
Applying this standard to the Loehrs’ misconduct claim against Mettille,
that court found that because the Loehrs had discovered the error before
jury submission, they were forbidden from raising the matter after
14
receiving an unfavorable verdict. See Iowa R. Civ. P. 1.920 (allowing
further testimony to be offered at any time before final submission to
correct an evident oversight or mistake).
Our decision in Schmitt should not be read so absolutely. Schmitt
does not prohibit a judge from granting a new trial in every case where
the ground for new trial was not raised at the first available opportunity
during trial. Although a party loses its right to a new trial if it neglects
timely error preservation, this does not necessarily bar a district court
from exercising its discretion to grant a new trial if a ground set forth in
rule 1.1004 has been met. In Schmitt we also recognized:
[N]otwithstanding counsel’s failure to make a record which
would authorize this court to reverse the judgment on
appeal, the trial court in its consideration of a motion for
new trial is not limited by the status of the record in this
respect when it feels the verdict fails to administer
substantial justice . . . . [T]he trial court has the inherent
right to grant another trial where substantial justice has not
been effectuated.
Schmitt, 170 N.W.2d at 660.
The trial court is not bound by the record in the same way that the
appellate courts are. Id. Therefore, it 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. In Schmitt, we
declared that “inaction on counsel’s part weighs heavily in evaluating the
right to a new trial.” Id. (internal quotation marks omitted). Although it
weighs heavily, it is not dispositive. It is a weighty factor to be
considered, but it potentially can be outweighed by other considerations.
If we were considering an appeal from a denial of the Loehrs’
motion for new trial, then error would not have been preserved.
However, the issue here is the jurisdiction of a trial judge to exercise his
or her discretion under rule 1.1004 despite the lack of a prior objection.
15
We hold that under Schmitt the district court could consider the Loehrs’
new trial request.
Historically, this has been the rule in Iowa. In Farr v. Fuller, 8
Iowa 347 (Iowa 1859), we declined to reverse a trial court’s decision to
order a new trial because of an error in jury instructions,
notwithstanding the plaintiff’s failure to make a timely objection to those
instructions. We said:
It was perfectly competent for the district court, upon its
attention being called to the motion, to order a new trial,
when satisfied that an error had been committed to the
prejudice of the plaintiff, whether exceptions were taken to
the action of the court at the time, or not.
Farr, 8 Iowa at 348.
Iowa Rule of Civil Procedure 1.924 now makes clear that, with
respect to jury instructions, untimely objections may not be considered.
See Olson v. Sumpter, 728 N.W.2d 844, 849–50 (Iowa 2007) (finding
district court could not order new trial based on asserted instructional
error that was not timely raised before closing arguments). Specifically,
rule 1.924 provides that “all objections” must be made during the
instruction conference, and “[n]o other grounds or objections shall be
asserted thereafter.” The 1943 Official Comment on rule 196 (rule
1.924’s predecessor) indicates that this was a “great change in the rule.”
Yet in other contexts, we think Farr remains good law, as Schmitt
illustrates.
In fact, we have said repeatedly that district courts have inherent
authority to grant new trials. See, e.g., Estate of Hagedorn ex rel.
Hagedorn v. Peterson, 690 N.W.2d 84, 87 (Iowa 2004); Wilson v. IBP, Inc.,
558 N.W.2d 132, 144 (Iowa 1996). In Lehigh Clay Products, Ltd. v. Iowa
Department of Transportation, we noted that “Iowa has long recognized
16
the trial court’s inherent power to grant a new trial where the verdict fails
to administer substantial justice” and that “[t]he trial court is not limited
to the grounds for granting a new trial specified in Iowa Rule of Civil
Procedure 244 [now rule 1.1004].” 512 N.W.2d 541, 543–44 (Iowa 1994)
(citations omitted). In Lehigh Clay Products, the district court cited four
reasons why it believed the verdict had not achieved substantial justice.
Id. at 543. Although we ultimately reversed the grant of new trial as an
abuse of discretion, we did not suggest that the district court lacked the
authority to grant a new trial unless the grounds had been raised during
trial. For example, one ground cited by the district court was that “the
DOT’s numerous objections likely prejudiced the jury [against the DOT]”
and another was that “the propensity of the DOT’s expert witness to
anxiety attacks and his lack of testimonial experience diminished his
persuasiveness.” Id. Presumably, DOT did not object at trial to its own
objections or to the lack of testimonial experience of its own expert. Yet
we rejected these grounds for new trial on their merits (or lack thereof),
not because DOT failed to raise them during trial. Id. at 546.
It needs to be emphasized, of course, that failure to make a
contemporaneous objection will preclude a party from raising the matter
on appeal if the motion for new trial is denied. See, e.g., Rudolph v. Iowa
Methodist Med. Ctr., 293 N.W.2d 550, 555 (Iowa 1980) (noting “the
general rule that parties are not permitted to delay objections until it is
too late for the problem to be corrected”).
IV. Substantive Merits.
We now turn to the substantive merits of the trial court’s decision
to grant a new trial, to determine whether it abused its discretion.
A. Rule 1.1004(2). Iowa Rule of Civil Procedure 1.1004(2)
authorizes the district court to grant a new trial when there has been
17
“[m]isconduct of the . . . prevailing party” that “materially affected
movant’s substantial rights.” Thus, while the trial court has broad
discretion, there must have been misconduct, and it must have been
prejudicial. See Berg v. Des Moines Gen. Hosp. Co., 456 N.W.2d 173, 178
(Iowa 1990); McConnell v. Aluminum Co. of Am., 367 N.W.2d 245, 248
(Iowa 1985). If the district court granted a new trial on “clearly
untenable” grounds, we should reverse. Lehigh Clay Prods., 512 N.W.2d
at 544 (internal quotation marks omitted).
B. Misconduct. The district judge found that Mettille “did
deliberately attempt to mislead the jury, and his testimony with regard to
other issues weighs heavily on his credibility.” We conclude this finding
of a deliberate attempt to mislead is not supported by the record. The
record indicates that Exhibit RR was the product of careless reading and
wishful thinking rather than intentional fraud.
Jill Tyler, the office manager for ServiceMaster and First General,
testified at the posttrial hearing that she was asked by Mettille to obtain
the records from the companies’ cell phone provider for all calls Mettille
had made on his personal cell phone to Elert’s phone number during
June and July 2007. Tyler received a detailed statement with multiple
sheets from the cell phone provider. From those records, Tyler retrieved
three pages of calls to Elert. She provided those three pages to Mettille
and they became Exhibit RR.
Tyler explained that after closing arguments, Mettille called her
and was “quite angry.” He questioned whether she had given him what
he had asked for. Tyler said this was the first time she noticed the
shaded areas on each page where it identified the specific employee of
Mettille’s companies whose cell phone usage was reflected on that page
of the bill.
18
Tyler’s oversight was not hers alone. Mettille’s counsel likewise
submitted a professional statement that he had previously believed
Exhibit RR contained only cell phone calls between Mettille and Elert.
He did not realize otherwise until the Loehrs’ counsel made his rebuttal
argument.
Mettille also testified at the posttrial hearing that he previously
believed the three pages of Exhibit RR were records of only his personal
calls. Mettille, like his counsel and Tyler, said he did not realize
otherwise until he heard the rebuttal argument of the Loehrs’ counsel.
Mettille confirmed Tyler’s testimony regarding his original instructions to
her, as well as the heated conversation between them that occurred after
closing arguments. The Loehrs’ counsel cross-examined Mettille at some
length at the posttrial hearing, but did not try to challenge Mettille’s
contention that there had been an innocent misunderstanding regarding
the exhibit. And the Loehrs’ counsel himself conceded he did not notice
the problem with Exhibit RR until the lunch break before closing
arguments.
In short, we do not share the district court’s view that Mettille
“contrived” Exhibit RR to mislead the jury. This would require disbelief
not only of Mettille’s but also Tyler’s testimony. The error that occurred
was understandable. Mettille’s name appeared prominently at the top of
the each page of the cell phone records. It is significant that no one else
noticed the different names in the shaded areas of the three pages until
the Loehrs’ counsel made this discovery during the recess before the case
was submitted to the jury. Furthermore, if one were going to fabricate an
exhibit purporting to show Mettille’s personal calls, it seems implausible
that the names of the other callers would be left on the exhibit, albeit in
shaded areas.
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C. Prejudice. Even if there had been misconduct, we cannot
agree it prejudiced the Loehrs. Although Mettille’s testimony linking
Exhibit RR to specific alleged conversations with Elert was clearly
incorrect, the circumstantial evidence indicates that the Loehrs and
Mettille did make some kind of a deal. Elert confirmed that Mettille
threatened to pull off the job and demanded a progress payment and
sign-offs as a condition of staying. Elert did not recall whether the
Loehrs assented to this proposal, and the Loehrs denied assenting to it,
but the facts are that Ms. Loehr did make a $15,000 payment; she did
thereafter sign off on phases of the project as they were completed; and
the project manager was replaced. What bolstered Mettille’s side of the
story was not the phone records, since no one disputed that Elert and
Mettille had conversations, but instead how the parties behaved.
Potentially, the cell phone records, even if they had been what
Mettille asserted them to be, could have detracted from Mettille’s
credibility. Based on Elert’s logs, Mettille had threatened to leave the job
in early July, not in late June. In his deposition testimony, before
Mettille became aware of the contents of the cell phone records, Mettille
had testified that he could only “guess” he spoke with Elert some time
before July 9. When Mettille later used Exhibit RR to fill in this gap in
his recollection, he created a conflict between his testimony and Elert’s
records. And, in any event, what mattered most for breach of contract
purposes was not whether the parties reached some kind of modus
vivendi in late June or early July, but whether Mettille’s companies had
performed suitable work that the Loehrs failed to pay for as promised.
Even more importantly, though, the Loehrs did not move for a new
trial on the breach of contract counterclaims. They only sought a new
trial on their defamation and wrongful debt collection claims, where the
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jury had found for Mettille. Exhibit RR had no direct bearing on those
claims and was potentially relevant only to the extent (noted by the
district court) that it might affect Mettille’s overall credibility.
Yet even if one discounted Mettille’s testimony entirely and
accepted in full the testimony offered by the Loehrs and their other
witnesses, the evidence in support of their two claims was fairly thin.
The defamation evidence consisted of Mai’s (the loan officer’s) testimony
that Mettille had once told her the Loehrs were “dummies and liars” in
response to the Loehrs’ complaints to Mai about First General’s work and
in an effort to get Mai to release the funds. The wrongful debt collection
practices claim arose primarily from the single incident where Mettille
drove slowly down the street in front of the Loehrs’ home. 6 We have
difficulty seeing how Exhibit RR could have affected the jury’s verdicts on
these claims.
But most significant of all is the fact that the Loehrs’ counsel made
an apparently tactical decision to use Exhibit RR as the centerpiece of
his rebuttal closing argument. Although (as the court of appeals noted)
counsel could have asked the court to reopen evidence under Rule 1.920,
he instead waited until rebuttal argument to expose the problems with
the exhibit, thereby assuring the flaws in the exhibit would be the last
thing called to the jury’s attention and the other side would have no
opportunity to respond. This is a strong indication that the Loehrs’
counsel did not believe the defective exhibit would be prejudicial, but
instead beneficial, to his clients’ case. As we held in Schmitt, although
previous “inaction on counsel’s part” does not deprive the district court
of jurisdiction to grant a motion for new trial, it “weighs heavily in
6Mettille moved for a directed verdict at the close of evidence on the ground that
section 537.7103 did not apply because the transactions with the Loehrs were not
“consumer credit transactions” as defined in Iowa Code sections 537.1301(12)–(13). We
do not reach this issue.
21
evaluating the right to a new trial.” 170 N.W.2d at 660 (internal
quotation marks omitted).
The Loehrs’ approach, from all we can tell, was effective. First
General recovered nothing on its claim for nonpayment; ServiceMaster
was awarded $5,856.21, but neither this amount nor the quality of its
work was disputed. As a result of the jury verdict, the Loehrs apparently
were able to retain approximately $8000 in insurance proceeds that were
intended to have gone to First General. Notably, the Loehrs did not seek
a new trial on the breach of contract counterclaims, expressing
satisfaction with this part of the trial outcome, instead seeking a new
trial only on the defamation and debt collection practices claims as to
which Exhibit RR was seemingly of little relevance.
For the foregoing reasons, even taking into account the district
court’s broad discretion, we cannot affirm its decision to order a second
trial on the Loehrs’ defamation and wrongful debt collection claims
against Mettille. Neither misconduct nor prejudice was shown, and if
anything, it appears that the Loehrs’ counsel was able to exploit the
defects in Mettille’s exhibit successfully. Therefore, the rule 1.1004(2)
ground for new trial was “clearly untenable.” See Lehigh Clay Prods.,
512 N.W.2d at 544 (internal quotation marks omitted). The verdicts here
effectuated substantial justice. Iowa R. App. P. 6.904(3)(c).
V. Conclusion.
Although our reasoning differs somewhat from that of the court of
appeals, we conclude the district court abused its discretion in ordering
a new trial. Therefore, we affirm the court of appeals and reverse the
district court’s order granting a new trial, directing it instead on remand
to enter judgment on the jury verdicts.
COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT
JUDGMENT REVERSED AND REMANDED.