                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1539
                            Filed November 8, 2017


ARRAHMEEN TAYLOR,
    Plaintiff-Appellant/Cross-Appellee,

vs.

CC RECYCLING, L.L.C.,
     Defendant-Appellee/Cross-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Paul D. Miller, Judge.



      Arrahmeen Taylor appeals and CC Recycling, L.L.C. cross-appeals a

district court ruling following a civil jury trial. AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED ON APPEAL; REVERSED AND REMANDED ON

CROSS APPEAL.




      Larry J. Thorson of Ackley, Kopecky & Kingery, L.L.P., Cedar Rapids, and

Richard A. Pundt of Pundt Law Office, Cedar Rapids, for appellant.

      Bradley J. Kaspar and Matthew G. Novak of Pickens, Barnes &

Abernathy, Cedar Rapids, for appellee.



      Heard by Danilson, C.J., Mullins, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                             2


MULLINS, Judge

       Arrahmeen Taylor appeals a district court ruling following a civil jury trial

denying his motion for a new trial and shifting the costs of the action to him under

Iowa Code chapter 677 (2016). Taylor argues (1) the district court abused its

discretion in denying his motion for a new trial because the jury’s overall award

on his claim was inadequate and defense counsel engaged in misconduct during

the proceedings1 and (2) his failure to accept the defendant’s offer to confess

judgment did not justify shifting the costs of trial to him because the defendant

did not give him proper notice of an offer to confess judgment.

       CC Recycling, L.L.C. (“CC”) cross-appeals the same ruling, which also

denied its motion for judgment notwithstanding the verdict with regard to the

jury’s award of past medical expenses. Specifically, CC argues Taylor failed to

meet his burden to prove the reasonable value of his past medical expenses.

I.     Background Facts and Proceedings

       CC is in the business of recycling scrap metal and salvaging automobile

parts. In November 2012, Taylor and Elmer Mims transported various pieces of

scrap metal to CC using a pickup truck. One of these items was a large, metal

pole weighing approximately five hundred pounds.              After arriving at CC and

1
  Specifically, Taylor argues the award was inadequate because no reasonable jury
could have allocated forty-five percent of the fault associated with the underlying incident
to him, the jury’s awards for past loss of bodily function and past pain and suffering were
insufficient in comparison to the injury suffered, and the testimony of his medical expert
that he suffered a serious and permanent injury was not contradicted. With regard to the
alleged misconduct, he asserts the defendant concealed a witness for trial advantage
and encouraged the same witness to perjure himself at trial. Taylor finally argues the
result of the case may have been the product of implicit bias based on race. Because
Taylor did not raise the implicit bias issue in his motion for a new trial, we do not
consider it on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised and
decided by the district court before we will decide them on appeal.”).
                                                   3


weighing the items contained in the truck, one of CC’s employee’s, Pierre Baugh,

attempted to manually unload the pipe from the bed of the truck, but Taylor and

Mims advised him it would be too heavy to move on his own. Mims backed away

from the truck as a safety precaution when he noticed Baugh start to tremble

while he was trying to lift the pole. Taylor laughed at Baugh and began to walk

away from the truck while Baugh continued his efforts, but as Taylor was walking

away, Baugh lost control of the pole, and the pole ultimately came into contact

with Taylor’s head.            Taylor was knocked unconscious, and his head was

bloodied. There was machinery nearby that Baugh could have used to remove

the pole from the truck.

          On the day of this occurrence, Taylor and Mims did not wear hard hats

while in the scrapyard, they were not offered hard hats by CC, and they were

unaware of any requirement that they wear one while in the scrapyard.

According to CC’s facility manager, however, CC employed a policy that the

wearing of hard hats was required by all persons in the scrapyard and, if Taylor

had come to the office on the day in question, which he did not, he would have

been offered a hard hat.            Baugh testified to his understanding that such policy

only applied to employees.

          Mims took Taylor home, after which Taylor’s fiancé took him to the

hospital. There, Taylor was advised he suffered a nonserious head injury and

was directed to not work the following day. Prior to this incident, Taylor suffered

from “cluster migraines” since he was nineteen years-of-age,2 which he would get

“every day, but [allegedly] not as bad as [he] got them” after being hit in the head

2
    Taylor was thirty-five at the time of trial.
                                          4


with the pole. Prior to the incident at CC, Taylor frequently visited the emergency

room for treatment in relation to his migraines. During three separate visits to the

emergency room in 2011, Taylor reported to medical staff that he suffered from

multiple migraines per day and the pain level of such migraines was “ten out of

ten.” On one visit, he advised medical staff he experienced five migraines per

day, and during a separate visit, he reported he experienced six per day. At a

visit to the hospital in February 2013, after the incident, he reported to medical

personnel that he experienced “a headache 4–5 times a day.”

       Taylor presented to a neurologist for an evaluation in December 2015.

Taylor reported to the neurologist that he “had prior headaches dating back to

age 19—but since the accident, the headaches . . . remarkably increased up to

five times a day.” Upon examination, this neurologist concluded Taylor suffered

from “cluster migraines” which he believed “were definitely aggravated by the

injury.” Ultimately, the neurologist opined Taylor’s migraines amounted to a five

percent impairment of the whole person before the injury and a twenty percent

impairment of the same after the injury. The neurologist did not review any of

Taylor’s medical records prior to his injury in November 2012 but instead relied

on what Taylor told him about his history with migraines.

       Taylor filed a negligence suit against CC in September 2014. Following a

trial, a jury returned a verdict in favor of Taylor. The jury unanimously awarded

Taylor $4904.52 in past medical expenses, $500.00 in past loss of body function,

and $500.00 in past pain and suffering, for a total award of $5904.52.3 However,


3
 The jury did not award Taylor any damages for future loss of body function or pain and
suffering.
                                             5


the jury assigned Taylor with forty-five percent of the fault, and his overall award

was accordingly reduced to $3247.49.

       CC filed a motion for judgment notwithstanding the verdict and motion to

tax costs. In relation to the motion for judgment notwithstanding the verdict, CC

requested the court to set aside the award for past medical expenses, generally

arguing Taylor had yet to pay any of the medical bills associated with the injury

and there was no testimony as to the reasonableness of such expenses. 4 See

Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 156 (Iowa 2004). With regard to

the motion to tax costs, CC requested the court assess the court costs against

Taylor because CC’s prior offer to confess judgment was in excess of Taylor’s

ultimate award. See Iowa Code §§ 677.7, .9, .10.

       Taylor moved for a new trial.             He argued (1) the jury’s verdict was

inadequate because the jury improperly found him to be forty-five percent at fault

and the jury’s awards for past loss of bodily function and past pain and suffering

were insufficient in comparison to the injury suffered, (2) his inability to present

evidence regarding subsequent remedial measures on the part of CC was

prejudicial, and (3) CC’s counsel “did not comply with discovery in either a good

faith or meaningful manner” by allegedly concealing the whereabouts of a

particular witness and encouraging perjury.




4
  CC raised this same argument in (1) a pretrial motion in limine aimed at rendering
inadmissible any “[m]edical bill evidence without proper foundation to prove the
reasonable value of the services rendered,” (2) an objection at trial to the admissibility of
a medical bill, and (3) oral motions for directed verdicts at the close of each of the
parties’ case-in-chief. The district court declined to rule on the motion in limine but
overruled the evidence objection at trial. The court also denied CC’s oral motions for a
directed verdict, concluding the issue was for the jury to decide.
                                          6


       The district court denied Taylor’s motion for a new trial and CC’s motion

for judgment notwithstanding the verdict but granted CC’s motion to tax costs

and ordered the clerk to tax all court costs against Taylor. As noted, both parties

appeal.

II.    Taylor’s Motion for a New Trial

       Taylor’s general contention on appeal is that the district court abused its

discretion in denying his motion for a new trial because the jury’s award of

damages was inadequate.        He also argues CC and its counsel engaged in

misconduct throughout the proceedings.

       “We review the denial of a motion for new trial based on the grounds

asserted in the motion.” Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 891

(Iowa 2015). Denials of such motions concerning the adequacy of damages and

misconduct of a party are reviewed for an abuse of discretion. Ort v. Klinger, 496

N.W.2d 265, 269 (Iowa 1992) (adequacy of damages); see Burke v. Brimmer,

No. 05-0593, 2009 WL 1676894, at *1 (Iowa Ct. App. June 17, 2009)

(misconduct). The adequacy of damages in any given case depends on the facts

of the case. Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 891 (Iowa

1996). The test is “whether the verdict fairly and reasonably compensates the

injury the party sustained.” Id. (quoting Matthess v. State Farm Mut. Auto Ins.

Co., 521 N.W.2d 699, 702 (Iowa 1994)).          Key in this test is whether, “after

examining the record, ‘giving the jury its right to accept or reject whatever

portions of the conflicting evidence it chose, the verdict effects substantial justice

between the parties.’” Id. (quoting Kautman v. Mar-Mac Cmty. Sch. Dist., 255

N.W.2d 146, 148 (Iowa 1977)). Also important is “the fact the trial court, with
                                           7


benefit of seeing and hearing witnesses, observing the jury and having before it

all incidents of the trial, did not see fit to interfere [with the jury’s verdict].” Id.

(alteration in original) (quoting Olsen v. Drahos, 229 N.W.2d 741, 743 (Iowa

1975)).

       First, Taylor argues the jury erred in finding him forty-five percent at fault

for his injury, contending “[t]here was no credible evidence that there was any

policy that invitees had to wear a hard hat while in the yard” nor was there any

reason for him “to suspect he was susceptible to being injured.” We recognize

that the existence of a hard hat policy at the time of the incident was disputed,

but “[t]he jury is free to believe or disbelieve any testimony as it chooses and to

give weight to the evidence as in its judgment such evidence should receive.”

State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). “In fact, the very function

of the jury is to sort out the evidence and ‘place credibility where it belongs.’” Id.

(quoting State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984)).

       Based on the evidence presented, the jury could have rationally concluded

that a hard hat policy was in effect at the time of the incident and Taylor failed to

report to the office and retrieve a hard hat when he arrived at the scrapyard. The

jury could have also rationally concluded that Taylor knew he was susceptible to

injury at the time he was injured, especially in light of Taylor’s advisement to

Baugh that he would be unable to properly lift the pole and Taylor’s continued

presence in the area.      We also reject Taylor’s argument that the attempted

admission of a photograph taken at the time of trial of a sign at CC’s facility

referencing a hard hat requirement was prejudicial. The district court ruled the

photograph inadmissible, and CC’s facility manager specifically testified he had
                                         8


no knowledge as to whether the sign was posted at the site at the time of

Taylor’s injury. We conclude the jury’s assignment of fault was supported by the

evidence and the district court did not abuse its discretion in declining to grant a

new trial on this ground.

       Next, Taylor argues the jury’s combined award of $1000.00 for past loss of

bodily function and past pain and suffering were insufficient in comparison to the

injury he suffered. The evidence reflects that when Taylor visited the emergency

room the day of his injury he was diagnosed with a nonserious head injury and

was advised to not work the following day.        Also, despite Taylor’s repeated

assertions that the severity of his migraines increased following his injury, his

medical records that predated his injury suggest otherwise. The only testimony

supporting a finding that Taylor’s migraines worsened was that of the neurologist,

which Taylor argues was not contradicted. The neurologist’s testimony was,

however, clearly contradicted by other evidence.        A comparison of Taylor’s

medical records from 2011, before the injury, with medical records from 2013,

after the injury, reveals his migraines did not increase in severity. What is more,

the neurologist’s opinion did not contemplate the 2011 medical records but was

instead wholly based on Taylor’s 2013 medical records and what Taylor told him

at an examination in 2015, after he had already filed suit. Based on this record,

the district court did not abuse its discretion in declining to grant a new trial on

the jury’s combined award of $1000.00 for past loss of bodily function and past

pain and suffering.

       Finally, Taylor forwards several allegations of misconduct on the part of

CC and its counsel throughout the proceedings.         He specifically argues CC
                                        9


concealed Baugh as a witness for trial advantage and encouraged him to perjure

himself at trial. Baugh appeared at trial and testified as a witness for Taylor,

largely to the detriment of CC’s theory of the case, but the jury obviously found

his credibility to be lacking. Because we believe Taylor was not prejudiced by

any alleged misconduct, we conclude the district court did not abuse its

discretion in denying Taylor’s motion for a new trial. See Rosenberger Enters.,

Inc. v. Ins. Serv. Corp. of Iowa, 541 N.W.2d 904, 907 (Iowa Ct. App. 1995) (“A

new trial is required for improper conduct by counsel if it appears that prejudice

resulted or a different result would have been probable but for any misconduct.”).

       Finding no abuse of discretion, we affirm the district court’s denial of

Taylor’s motion for a new trial.

III.   CC’s Motion for Judgment Notwithstanding the Verdict

       CC argues the jury’s award for past medical expenses should be set aside

because “evidence of payment or testimony from an expert as to the

reasonableness of [Taylor’s] medical charges” was not presented at trial. As

noted, CC raised this argument several times during the proceedings, but the

district court repeatedly rejected it. Taylor argues he did not have the means to

pay the bill and not allowing him to admit his past medical expenses into the

record on the ground that he did not pay for them would be a violation of Equal

Protection. Because the district court’s ruling makes clear it did not consider

Taylor’s Equal Protection claim and Taylor did not file a rule 1.904(2) motion

concerning the same, we do not consider the argument. See Meier, 641 N.W.2d

at 537.
                                         10


         “We review a district court’s ruling denying a motion for judgment

notwithstanding the verdict for correction of errors at law.”       Garr v. City of

Ottumwa, 846 N.W.2d 865, 869 (Iowa 2014). The question is “whether sufficient

evidence existed to justify submitting the case to the jury at the conclusion of the

trial.’” Id. (quoting Lee v. State, 815 N.W.2d 731, 736 (Iowa 2012)). Submitting

the case to the jury is only justified where each element of the plaintiff’s claim is

supported by substantial evidence. Id. The entry of judgment notwithstanding

the verdict is appropriate where “the movant was entitled to a directed verdict at

the close of all the evidence, and moved therefor.” Iowa R. Civ. P. 1.1003(2).

“The purpose of the rule is to allow the district court an opportunity to correct any

error in failing to direct a verdict.” Easton v. Howard, 751 N.W.2d 1, 4 (Iowa

2008).

         In this case, Taylor had the burden to prove the reasonable value of his

past medical expenses. See Pexa, 686 N.W.2d at 156. In order to meet this

burden, Taylor offered a medical bill for $4904.52. This evidence was admitted

over CC’s objection on the ground that there was no foundation to show the

medical costs were reasonable. Taylor conceded the bill had not been paid at

the time of trial, and no witnesses, expert or otherwise, testified that the costs

were reasonable. CC subsequently argued in two motions for a directed verdict,

both of which were ultimately denied, that Taylor did not meet his burden to

prove his past medical expenses were reasonable. The same argument was

raised in CC’s motion for judgment notwithstanding the verdict.

         The Iowa Supreme Court has stated:
                                        11


       An injured plaintiff may recover only the reasonable and necessary
       costs of medical care. Therefore, the plaintiff has the burden to
       prove the reasonable value of the services rendered.            The
       reasonable value of medical services can be shown by evidence of
       the amount paid for such services or through the testimony of a
       qualified expert witness. The amount charged, standing alone, is
       not evidence of the reasonable and fair value of the services
       rendered. The billed amount is relevant only if that figure was paid
       or an expert witness has testified to the reasonableness of the
       charges. . . . [E]vidence of the amount charged will not, in the
       absence of proof of the reasonableness of the billed sum, support
       recovery of medical expenses.

Id. (citations omitted). Based on this language, we conclude Taylor failed to

meet his burden to prove the reasonable value of his past medical expenses.

CC was therefore entitled to a directed verdict on the issue of past medical

expenses at the close of evidence and, after the jury returned an award,

judgment notwithstanding the verdict. See Iowa R. Civ. P. 1.1003(2).

       We reverse the district court’s denial of CC’s motion for judgment

notwithstanding the verdict and remand for the entry of an order for a directed

verdict on the issue of past medical expenses.

IV.    CC’s Motion to Tax Costs

       Taylor argues his failure to accept CC’s offer to confess judgment did not

justify shifting the costs of trial to him because CC did not give him proper notice

of an offer to confess judgment. Because our analysis of this issue primarily

turns on statutory interpretation, our review is for legal error. See DuTrac Cmty.

Credit Union v. Hefel, 893 N.W.2d 282, 289 (Iowa 2017); Harris v. Olson, 558

N.W.2d 408, 409 (Iowa 1997).

       On February 26, 2016, CC’s counsel sent a letter via electronic mail to

Taylor’s counsel which included the following: “Please let this letter serve as an
                                        12


offer to confess judgment pursuant to Iowa Code chapter 677 in the amount of

$4,800, which offer includes costs and interest, if any.”         Taylor’s counsel

responded three days later: “Your offer is rejected.”

       Iowa Code section 677.7 provides:

       The defendant in an action for the recovery of money only may, at
       any time after service of notice and before the trial, serve upon the
       plaintiff or the plaintiff’s attorney an offer in writing to allow
       judgment to be taken against the defendant for a specified sum with
       costs.

(Emphasis added.) If the offer is not accepted and “the plaintiff fails to obtain

judgment for more than was offered by the defendant, the plaintiff cannot recover

costs, but shall pay the defendant’s costs from the time of the offer.” Iowa Code

§ 677.10.

       Taylor generally argues because the letter was not “served” upon his

counsel, he was not given proper notice of the offer to confess judgment. CC

argues formal service was not required and, in any event, Taylor’s attorney’s

rejection of the offer reveals that the offer was received and considered.

       Iowa Code chapter 677 does not explicitly define what the term “serve”

means for purposes of section 677.7. Section 677.7 identifies the proper person

to be served as either “the plaintiff or the plaintiff’s attorney.”      Generally,

“[s]ervice upon a party represented by an attorney shall be made upon the

attorney.” Iowa R. Civ. P. 1.442(2). Rule 1.422(2) further provides for service by

electronic mail if the party consents in writing to be served in that manner.

Although our record does not reveal such a formal consent, our record is clear

Taylor’s counsel received the offer to confess in an email correspondence; and

Taylor’s counsel expressly responded by email to CC’s offer to confess judgment
                                         13


and rejected it within the time frame contemplated by Iowa Code section 677.8.

At the time of the offer and rejection, he made no objection to the procedure or

manner of service. Without deciding whether Iowa Code section 677.7 requires

other formalities, under the facts of this case we are convinced “[t]he essentials

of due process [were] satisfied” because the notice came to Taylor’s attention

and gave him an opportunity to respond, after which he actually did respond.

See Hron v. Ryan, 164 N.W.2d 815, 819 (Iowa 1969).

       Taylor challenges the district court’s assessment of all of the court costs to

him, rather than only those incurred from the time of the offer. See Iowa Code

§ 677.10. We agree with Taylor that the district court was limited to assessing

him with the court costs incurred from the time of the offer. See Weaver Const.

Co. v. Heitland, 348 N.W.2d 230, 232 (Iowa 1984) (affirming district court order

requiring defendant to pay costs incurred prior to offer to confess judgment and

concluding, where the plaintiff’s award does not exceed the offer to confess

judgment, he or she is only responsible for “those costs that are incurred after the

time of the offer”). As such, we reverse the portion of the order that assesses all

court costs to Taylor and remand this matter to the district court for the entry of

an order that assesses to CC all court costs incurred up to the date of the offer to

confess judgment and to Taylor all court costs incurred after the same.

V.     Conclusion

       We affirm the district court’s denial of Taylor’s motion for a new trial. We

reverse the portion of the order that assesses all costs to Taylor and remand this

matter to the district court for the entry of an order that assesses to CC all court

costs incurred up to the date of the offer to confess judgment and to Taylor all
                                        14


court costs incurred after the same. We reverse the district court’s denial of CC’s

motion for judgment notwithstanding the verdict and remand for the entry of an

order for a directed verdict on the issue of past medical expenses.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED ON

APPEAL; REVERSED AND REMANDED ON CROSS APPEAL.
