                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0566
                               Filed May 1, 2019


MARSHA WHITLOW,
    Plaintiff-Appellant,

vs.

RON McCONNAHA, JODI McCONNAHA, and TIMOTHY NEWTON,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling,

Judge.



      The plaintiff in a negligence action appeals the denial of her motion for

mistrial and the partial denial of her motion for new trial.   REVERSED AND

REMANDED.



         Benjamin P. Long and Pressley Henningsen of RSH Legal, P.C., Cedar

Rapids, for appellant.

      Patrick L. Woodward and Ryan F. Gerdes of McDonald, Woodward &

Carlson, P.C., Davenport, for appellee.



      Heard by Mullins, P.J., and Potterfield and Tabor, JJ.
                                               2


TABOR, Judge.

          After suffering serious injuries in a collision between the motorcycle on

which she was a passenger and a farm tractor, Marsha Whitlow sued both drivers.

Following trial, the jury returned an incomplete verdict form—finding the tractor

driver, Ron McConnaha, was not at fault but failing to address the fault of the

motorcycle driver, Timothy Newton. The district court discharged the jury before

noticing the omission.

          Whitlow moved for a mistrial or, alternatively, a new trial. The district court

granted a new trial only as to defendant Newton. The court concluded the verdict

form was “not incomplete” as to defendant McConnaha.                  Whitlow appeals,

contending the nature of comparative fault requires simultaneous consideration

and determination of the liability of all potential tortfeasors. McConnaha defends

the district court’s ruling, first alleging Whitlow failed to preserve her claim by not

objecting to the verdict forms and then arguing the jury “fully and completely

considered the evidence” as to his liability.1

          Because Whitlow is challenging the incomplete jury verdict rather than the

directions on the form, we reject McConnaha’s error-preservation argument. And

because Whitlow is entitled to a complete retrial where the jury compares the fault

of both drivers, we reverse the district court’s ruling in part, and remand for a new

trial allowing Whitlow to litigate her cause against both McConnaha and Newton.




1
    Newton waived his right to participate in this appeal.
                                            3


I.     Facts and Prior Proceedings

       In June 2015, McConnaha was pulling a hay rake behind his tractor while

traveling southbound on Muscatine Road.              Newton—Whitlow’s fiancé—was

driving his motorcycle in the same direction on the two-lane highway.                   As

McConnaha turned left into a farm lane, Newton tried to pass on the left.2 The

motorcycle struck the tractor, and Whitlow—who was riding behind Newton—was

seriously injured.3

       Whitlow filed a negligence action against McConnaha.4 McConnaha filed a

third-party action against Newton, alleging his negligence as the motorcycle driver.

Whitlow then amended her petition alleging negligence against Newton as well.

       The court held a six-day jury trial in late February and early March 2018.

Following the presentation of evidence, counsel for the parties addressed the final

jury instructions with the district court and submitted the case, along with a four-

page special-verdict form, to the jury.5




2
  The speed limit was fifty-five miles per hour and the highway was zoned for passing at
the location of the crash. McConnaha’s tractor was traveling about ten to fifteen miles per
hour before making the turn. McConnaha testified his hazard lights were flashing on the
roof of his cab and he activated his turn signal before steering left into the driveway.
3
  Emergency personnel airlifted Whitlow to University of Iowa Hospitals and Clinics. She
experienced leg fractures, rib fractures, a broken neck, and multiple contusions.
According to court filings, she suffered ongoing “cognitive and physical deficits”
attributable to the collision.
4
  Whitlow named both Ron McConnaha and his wife, Jodi, in the pleadings. Jodi was the
co-owner of the 1976 John Deere tractor her husband was driving at the time of the
collision. For ease of reference in this opinion, we will refer to defendant Ron McConnaha
in the singular.
5
  Courts treat special interrogatories under Iowa Code chapter 668 (2015) as special
verdicts for purposes of the rules of civil procedure. See Iowa R. Civ. P. 1.933.
                                           4


In relevant part, the verdict form read:

              We, the Jury, find the following verdict on the questions
       submitted to us:
              QUESTION NO. 1: Was Ronald McConnaha at fault?
              Answer “yes” or “no.”
              ANSWER: _____
              [If your answer is no, do not answer any further questions and
       sign the verdict form. If your answer is yes, answer Question No. 2.]

              QUESTION NO. 2: Was the fault of Ronald McConnaha a
       cause of any item of damage to the plaintiff?
              Answer “yes” or “no.”
              ANSWER: _____
              [If your answer is no, answer do not answer any further
       questions and sign the verdict form. If your answer is yes, answer
       Question No. 3.]

            QUESTION NO. 3: Was Timothy Newton at fault?
            Answer “yes” or “no.”
            ANSWER: _____
            [If your answer is no, do not answer Questions 4 or 5. If you
       answer is yes, answer Question No. 4.]

              QUESTION NO. 4: Was Timothy Newton’s fault a cause of
       any item of damage to the plaintiff?
              Answer “yes” or “no.”
              ANSWER: _____
              [If your answer is no, do not answer Questions No. 5. If your
       answer is yes, answer Question No. 5.]

               QUESTION NO. 5: Using 100% as the total combined fault of
       Ronald McConnaha and Timothy Newton which was a cause of
       plaintiff’s damage, what percentage of such combined fault do you
       assign to Ronald McConnaha and what percentage of such
       combined fault do you assign to Timothy Newton?
               ANSWER: Ronald McConnaha              ________%
                            Timothy Newton           ________%
                            TOTAL                         100%

                QUESTION NO. 6: State the amount of damages sustained
       by plaintiff caused by Ronald McConnaha and/or Timothy Newton’s
       fault . . . .

(Emphasis added.)
                                         5


       In response to Question No. 1 on McConnaha’s fault, the jury wrote, “NO.”

Then, following the bracketed directions on the form, the jury did not answer any

further questions, including those concerning Newton’s liability.           The jury

foreperson signed the verdict form at the bottom of the fourth page and returned it

to the court on March 7. The court entered an order on March 8, noting the jury

returned a verdict finding McConnaha was not negligent. The court discharged

the jury, but it is not clear from the record when that happened.

       On March 12, Whitlow filed a motion seeking a mistrial or, alternatively, a

new trial. In the motion, Whitlow pointed out the flawed directions on the verdict

form. Whitlow’s motion asserted

       the Court relied on a proposed verdict form submitted by [d]efendant
       Ron McConnaha. McConnaha’s proposed form included bracketed
       guidance which was incorrect—it guided the jury to stop deliberating
       if the jury answered “no” on the first special interrogatory. This, of
       course, was incorrect guidance given the comparative fault of
       multiple defendants. Plaintiff submitted a competing proposed
       verdict form with the correct bracketed guidance below special
       interrogatory number one.

       Whitlow acknowledged during discussions on the proposed jury instructions

none of the four lawyers for the parties or the court caught the error before the

matter was submitted to the jury. As to her motion for mistrial, Whitlow argued the

jury’s failure to answer interrogatories concerning defendant Newton was

tantamount to a hung jury. Whitlow alternatively requested a new trial under Iowa

Rule of Civil Procedure 1.1004 as to all issues of liability and damages.

       The court denied the motion for mistrial and granted the motion for new trial

as to Newton alone. The district court found Whitlow was “entitled to a new trial

as to all issues not fully litigated and determined by the jury” but concluded the
                                          6


verdict was “complete and consistent” as to McConnaha because he was

“exonerated of all fault.” Whitlow appeals.

II.    Scope and Standards of Review

       “We review a district court’s denial of a mistrial for an abuse of discretion.”

Kinseth v. Weil-McLain, 913 N.W.2d 55, 66 (Iowa 2018). “A court abuses its

discretion when its ruling is based on grounds that are unreasonable or untenable.”

Giza v. BNSF Ry. Co., 843 N.W.2d 713, 718 (Iowa 2014) (quoting In re Tr. No. T–

1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013)). Grounds “are unreasonable or

untenable when they are based on an erroneous application of law.” Id. (quoting

Trimble, 826 N.W.2d at 482).

       Our standard of review for a new-trial ruling “depends on the grounds raised

in the motion.” Olson v. Sumpter, 728 N.W.2d 844, 848 (Iowa 2007) (citation

omitted). If the motion hinged on a discretionary ground, we review for an abuse

of discretion; if the motion raised a legal question, review is for errors at law. Id.

Motions for new trial are governed by Rule 1.1004, which sets out nine possible

grounds to justify granting a new trial when error “materially affected movant’s

substantial rights.” Whitlow does not identify a specific ground but asserts the

court abused its discretion in the face of an inconsistent verdict.

       With regard to inconsistent verdicts, our case law indicates, “[T]he trial court

has some discretion when faced with inconsistent answers in a verdict.” Clinton

Physical Therapy Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603,

609 (Iowa 2006). “[W]hether a verdict is inconsistent so as to give rise to the

exercise of that discretion is a question of law.” Id. “Therefore, we review the
                                         7


district court’s conclusions as to whether answers are inconsistent for correction

of errors at law.” Id.

III.   Analysis

       Error preservation. As a threshold matter, McConnaha argues by not

lodging a timely objection, Whitlow failed to preserve “any argument that the verdict

form was misleading, was otherwise improper, or that the jury’s verdict was

inconsistent based on the verdict form.” See Iowa R. Civ. P. 1.924 (“Before jury

arguments, the court shall give to each counsel a copy of its instructions in their

final form, . . . . Within such time, all objections to giving or failing to give any

instruction must be made . . . . No other grounds or objections shall be asserted

thereafter, or considered on appeal.”); Olson, 728 N.W.2d at 848 (finding

objections to jury instructions on the mitigation of damages or the corresponding

verdict form had to be made before closing arguments or the challenge is not

preserved). But in his appellate argument, McConnaha does not deny the jury

was, in fact, misled by the directions on the verdict form, or that neither side’s

attorneys nor the judge noticed the error before submitting the case to the jury.

       The record is unclear how the faulty directions made their way into the

verdict forms. Whitlow’s proposed verdict forms included the correct directions for

multi-defendant cases.    In her mistrial motion, Whitlow alleged McConnaha’s

proposed verdict forms contained the incorrect bracketed guidance—a charge

McConnaha did not deny in his resistance. But the jury-instruction portion of the

transcript provided for this appeal does not include any discussion of the verdict
                                          8


forms. On top of that, we have no record of how the district court conveyed the

news of the verdict to the parties or exactly when the court discharged the jury.

       Setting that lack of clarity aside, Whitlow’s objection on appeal is not to the

faulty directions on the verdict form, but rather to the incomplete or inconsistent

nature of the verdict. Her post-verdict motion for mistrial or new trial preserved

those claims. See Clinton Physical Therapy, 714 N.W.2d at 610 (finding consent

to a sealed verdict did not foreclose ability to request a new trial alleging an

inconsistent verdict). Accordingly, we find McConnaha’s preservation argument is

misplaced.

       Merits. Whitlow first argues the district court should have granted her

motion for a mistrial because the jury’s verdict was incomplete and, therefore,

tantamount to a hung jury. McConnaha claims the jury’s failure to complete the

special verdict form is not the same as a hung jury. Furthermore, in McConnaha’s

view, because the jury found him not at fault, the verdict was complete as to him,

and the district court properly granted a new trial only as to Newton. Whitlow

responds the negligence issues are so intertwined that retrial is required for both

defendants. In her estimation, “a hung jury to one is a hung jury to all.”

       We approach Whitlow’s argument from the “general rule” that “when a new

trial is granted, all issues must be retried.” Bryant v. Parr, 872 N.W.2d 366, 380

(Iowa 2015) (quoting McElroy v. State, 703 N.W.2d 385, 389 (Iowa 2005) (opining

that practice of granting partial retrials is “not to be commended”)).        But we

recognize courts may “narrow the scope of the retrial” if the “issue to be tried is
                                            9


distinct and separable from the other issues, and that the new trial can be had

without danger of complications with other matters.”6 Id.

       Citing Wederath v. Brant, Whitlow asserts, “[O]mission of answers is a hung

jury, at least as to unanswered questions.” 319 N.W.2d 306, 308–10 (Iowa 1982).

In Wederath, the jury answered two of four special verdicts in a case involving a

holdover tenant. Id. at 308. On questions one and two, the jury found rental values

for the two years in question. Id. at 307. But it “hung” on the third and fourth

verdicts: whether the tenants acted “willfully.” Id. The supreme court held the

jury’s failure to reach a verdict on those two questions was not to be taken as

findings against the party with the burden of persuasion but rather amounted to a

mistrial and required retrial “at least as to the unanswered findings.” Id. at 310.

Therefore, according to Whitlow, a hung jury constitutes a mistrial and all the

issues “necessary to judgment” must be retried. See id.

       McConnaha believes Wederath— “when actually examined”—supports his

position. He notes Wederath did not order a new trial on verdicts one and two. He

asserts just as with those special verdicts in Wederath, the jury here “already

decided the question” of his fault and retrial need only address Newton’s fault. See

id. at 310.

       Whitlow is correct that under Wederath a jury’s failure to answer a special

verdict question—even if the record does not disclose the exact reason for the



6
  For example, in Bryant, the supreme court approved retrial on the damages portion of a
negligence claim when the jury properly apportioned fault between parties (finding the
plaintiff five percent at fault, one defendant ninety-five percent at fault, and the second
defendant faultless) but awarded inconsistent damage amounts. Id. at 380–81. The court
found the issues of fault and amount of damages were separable, directing the damages-
only retrial award to be reduced by the plaintiff’s five-percent fault. Id. at 381.
                                                10

failure—results in a mistrial and requires retrial. See id. at 308 (discussing Iacurci

v. Lummus Co., 387 U.S. 86, 87–88 (1967), where United States Supreme Court

found retrial necessary when jury, without explanation, answered only one of five

special findings). And McConnaha is correct that the scope of retrial may, in

certain circumstances, be limited to the questions left unanswered by the jury’s

verdicts. See id. at 309–10. So Wederath offers some ammunition for each side.

But, because it does not involve the comparative fault of multiple defendants, it

falls short of a silver-bullet solution for this appeal.

        For guidance on multiple defendants, we turn to Jack v. Booth, 858 N.W.2d

711, 719–20 (Iowa 2015). Booth addressed the standard for deciding if the grant

of a new trial should apply to all or only some defendants. Id. at 719 (citing

Sheridan v. St. Luke’s Reg’l Med. Ctr., 25 P.3d 88, 97 (Idaho 2001) (allowing

exclusion of a second defendant from new-trial order only if “the issues are so

distinct and separable that a party may be excluded without prejudice”)). Booth

reiterated, “[A] new trial may be granted in favor of any of the parties where that

can be done without affecting the rights of the other parties.”                      Id. (quoting

Houvenagle v. Wright, 340 N.W.2d 783, 786 (Iowa Ct. App. 1983)).7 After an




7
  In Houvenagle, the district court granted a new trial against the driver of a car that hit a
bystander. 340 N.W.2d at 785. The driver claimed a brake defect caused the accident.
Id. The jury returned verdicts in favor of the driver and car dealership. Id. The district
court granted a new trial as to the driver, concluding the verdict was “against the manifest
weight of the evidence” but denied the plaintiff’s motion for retrial against the car
dealership because no evidence was presented of a defect in the car. Id. We approved
the district court’s actions stating, “If it appears, as a matter of law, that there is no liability
on the part of one defendant, a new trial as to him should not be granted.” Id. We cannot
say in the case before us that, as a matter of law, McConnaha bears no fault in spite of
the jury verdict.
                                             11

irregularity arose during trial,8 Booth upheld the grant of a new trial to just one of

two doctors being sued because the negligence issues were not “so intertwined as

to necessitate a new trial” for both defendants. Id. at 720 (noting jury was not

asked to weigh comparative fault of obstetrician and anesthesiologist on trial).

       Whitlow contends here, unlike Booth, the comparative nature of the fault at

issue mandates a retrial involving both defendants. She identifies the collision as

a single, discrete event caused by the combined conduct of both Newton and

McConnaha. And, because the jury would be asked to apportion fault, Whitlow

contends she would be prejudiced by anything less than a full retrial of her claims

against both defendants. We agree the negligence questions are not divisible here

like they were in Booth. A partial new trial excluding defendant McConnaha would

prejudice Whitlow’s right to have one complete trial where the jury assesses the

comparative fault of both drivers. See Hutson ex rel. Estate of Hutson v. Sureddi,

41 P.3d 993, 998 (Okla. Ct. App. 2001) (“In some circumstances, the rights of the

parties involved may be so intertwined that justice requires a new trial as to all

parties and all issues.”).

       We understand McConnaha’s complaint that a retrial will offer Whitlow the

proverbial “second bite at the apple” on the issue of his fault. But we find symmetry

in the fact that had the district court caught the mistake before discharging the



8
  A juror fainted, and the anesthesiologist administered first aid. Booth, 858 N.W.2d at
714–15. The court dismissed the juror but—because the incident happened in view of the
remaining jurors—the plaintiff moved for a mistrial. Id. at 715. The supreme court ordered
a new trial against the anesthesiologist, citing the “warm feelings” his actions would have
engendered with the jury. Id. at 714, 720–21. The plaintiff’s claims against the obstetrician
involved her obstetrical injuries, while her claims against the anesthesiologist stemmed
from an injury to her arm from a negligently administered IV in a separate and distinct
medical event. Id.
                                              12


jurors, the proper remedy would have been to inform the jurors of their omission,

order them to resume deliberations, and inform them that they could change any

portion of the verdict form. See Iowa Code § 668.3(6). Under that statute, the

jury’s initial answer on McConnaha’s fault would remain an incomplete, partial

verdict until the jury simultaneously addressed Newton’s fault and determined their

combined fault, if any. The remedy of a complete new trial, therefore, delivers

justice for all the parties.

       The district court erred in concluding the special verdict form was complete

as to McConnaha and denying Whitlow’s motion for a mistrial.9 Because the

district court’s order of a partial new trial was also based on that erroneous

application of the law, we find an abuse of discretion. See Giza, 843 N.W.2d at




9
  A California appellate court addressed a similar “partial verdict” in Falls v. Superior Court,
239 Cal. Rptr. 862, 865 (Ct. App. 1987). In that slip-and-fall action, the jury returned
special verdict forms finding the defendant-store negligent and the proximate cause of
injury, but did not reach questions of comparative negligence by the plaintiff-customer or
any fault by the settling defendant-shopping mall. Id. The plaintiff-customer declared
victory and argued only damages remained to be decided. Id. The California court
disagreed, explaining:
         Although we appreciate plaintiff’s frustration at losing an advantage fairly
         won, such a loss is an inherent risk of the special verdict. To award plaintiff
         a “partial verdict” based upon a special verdict form which is fatally deficient
         would be contrary to the requirement that the jury must resolve all the
         ultimate facts presented.
Id. The Falls court decided a mistrial was appropriate because “[t]he liability issue as it
now stands is like a puzzle with pieces missing; the picture is not complete.” Id. The
same puzzle exists in Whitlow’s case. On retrial, it would prejudice Whitlock to instruct
the jury that McConnaha’s lack of fault was “a fait accompli.” See id. Rather, the jury
should compare the fault of the two defendants.
                                            13


718. We reverse the partial denial of Whitlow’s mistrial motion and remand for a

new trial as to both McConnaha and Newton.10

       REVERSED AND REMANDED.




10
   Whitlow argued, in the alternative, the court should have granted a new trial on the
ground the jury returned inconsistent verdicts. Because we grant a new trial on the mistrial
claim, we do not address her inconsistent-verdicts argument. Whitlow also challenges the
district court’s rulings on two jury instructions—an allowed instruction on the “mere fact”
of injury and an excluded instruction on motorcycle helmets. Because the propriety of
giving such instructions will depend on the parties’ presentation of evidence in the second
trial, we decline to address those claims in this appeal.
