                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1633
                              Filed April 29, 2020



GREGORY POLLOW and CINDEE POLLOW,
    Plaintiffs-Appellants,

vs.

ESTATE OF ZELDA STUDEBAKER,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Buchanan County, Richard D.

Stochl, Judge.



      Gregory Pollow appeals the district court’s denial of his motion for a new

trial. AFFIRMED.




      Dustin M. Mueller and Richard R. Schmidt of Mueller, Berg & Schmidt,

PLLC, Des Moines, for appellants.

      David L. Riley of Swisher & Cohrt, P.L.C., Waterloo, for appellee.




      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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MULLINS, Judge.

       Gregory Pollow appeals the district court’s denial of his motion for a new

trial. Pollow argues he should have been granted a new trial based on allegedly

inappropriate comments from opposing counsel during closing arguments.

I.     Background Facts and Proceedings

       On July 13, 2015, Pollow was an employee for a delivery company and was

injured while on his delivery route. Pollow was delivering a package to the home

of Zelda Studebaker and approached the front door of the home. Pollow alleged

the steps up to the door were covered with overgrown greenery and a morning

glory plant, and he was unsure where it would be safest to mount the steps. Pollow

used his foot to locate the center step and left the package at the door. On his

return, Pollow stepped at the same place on the middle step and slipped on the

plant, falling all the way to the ground. Pollow called for an ambulance to retrieve

him from the scene. He underwent treatment for the injuries suffered during the

fall and ultimately filed a negligence suit against the homeowner.

       Following his injury, Pollow received employment benefits including medical

treatment and wages. Prior to trial on his negligence claim, Pollow filed a motion

in limine to exclude testimony regarding the payments and value of the services

he received. The motion was granted. However, at trial he entered stipulations

into the record revealing the value of those benefits to the jury. The following was

read to the jury.

       The parties stipulate that an entity has paid Mr. Pollow’s medical
       expenses. The paid expenses total $54,278.00. If awarded, the paid
       medical totaling $54,278.00 will need to be repaid to an entity.
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              Stipulation number two, the parties stipulate that an entity has
       paid Mr. Pollow’s past wages totaling $36,058.95. If awarded, the
       past lost wages totaling $36,058.95 will need to be repaid.
              Third stipulation, the parties stipulate that an entity has paid
       additional damages totaling $109,815.57.           If awarded, these
       damages will need to be repaid.

During closing arguments, Studebaker’s counsel discussed the assistance already

provided to Pollow and appeared to argue he had already been made whole.

       So, folks, what that tells you is that [Pollow] has already received as
       a result of this $199,873.00. . . . If you find [Studebaker] not to be at
       fault or if you find him to be more than fifty percent at fault, he doesn’t
       have to pay a nickel of that back. Not a nickel. So he didn’t get the
       $54,000.00. He got the service, he got the treatment, he got the
       medical treatment, but that doesn’t have to be paid back. He doesn’t
       have to pay back the lost wages, $36,000.00. He doesn’t have to
       pay back the other $109,815.00 that he received. . . . He’s already
       received $199,000.00. All right. So bear that in mind as you’re
       deciding some of these liability issues and whether or not to award.

       During an off-the-record discussion, Pollow argued Studebaker’s comments

conflated the issue of liability with employment benefits already paid. The district

court found the comments were not errant and provided no remedy. Pollow

requested a jury instruction to cure the alleged error, instructing jurors that benefits

received could not be a factor to consider when determining liability. The court

rejected the requested instruction. The jury ultimately found Pollow was the cause

of fifty-one percent of his damages and was thus awarded no relief. Pollow filed a

motion for a new trial raising, among other things, the prior argument related to

Studebaker’s allegedly inappropriate comments during closing. The district court

denied the motion, expressing its surprise the stipulations were presented to the

jury at all following Pollow’s successful pretrial motion in limine. The district court

closed its discussion with the statement that “any harm caused by the introduction

of [the stipulations] was the plaintiff’s own doing.” Pollow appeals.
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II.    Standard of Review

       Appeals following denials of motions for a new trial on discretionary grounds

are reviewed for abuse of discretion. See Ladeburg v. Ray, 508 N.W.2d 694, 696

(Iowa 1993).

       An abuse of discretion occurs when “the court exercise[s] [its]
       discretion on grounds or for reasons clearly untenable or to an extent
       clearly unreasonable.” A ground or reason is untenable when it is
       not supported by substantial evidence or when it is based on an
       erroneous application of the law.

Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000) (quoting Waits v.

United Fire & Cal. Co., 572 N.W.2d 565, 569 (Iowa 1997)).

III.   Discussion

       Pollow argues Studebaker’s comments conflating the jury’s consideration

of liability with the value of employment benefits already provided were

inappropriate. Pollow further argues the district court erred in refusing to grant a

curative instruction to the jury. Studebaker argues the statements were merely

commentary on the stipulation evidence presented to the jury by Pollow.

Studebaker also alleges error was not preserved on the issue. We choose to

bypass the error-preservation concern and proceed to the merits. See State v.

Taylor, 596 N.W.2d 55, 56 (Iowa 1999).

       We use a two-part test to determine whether attorney misconduct should

result in a new trial. We first examine whether misconduct occurred. See Mays v.

C. Mac Chambers Co., Inc., 490 N.W.2d 800, 802–03 (Iowa 1992). Second, a

new trial must be granted if the alleged misconduct resulted in prejudice or if “a

different result could have been probable but for such misconduct.” Rasmussen

v. Thilges, 174 N.W.2d 384, 391 (Iowa 1970).
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       We must first examine whether any misconduct occurred.             Mays, 490

N.W.2d at 802–03. In order to succeed on a negligence claim, a claimant must

prove “existence of a duty to conform to a standard of conduct to protect others,

failure to conform to that standard, proximate cause, and damages.” Hartig v.

Francois, 562 N.W.2d 427, 429 (Iowa 1997). The elements make clear that

damages and breach of a standard of conduct are separate elements. See id.

Pollow alleges Studebaker’s comment, “He’s already received $199,000.00. All

right. So bear that in mind as you’re deciding some of these liability issues and

whether or not to award,” instructed the jury to consider the value of compensation

he had already received in determining liability. The comment certainly asks jurors

to remember that some compensation has already been provided and to keep that

in mind during deliberation. But does that rise to the level of misconduct? As the

district court explained in denying the motion for new trial, Pollow introduced the

stipulations to the jury after securing a motion in limine to keep evidence of

compensation out of the trial. We cannot say Studebaker’s comments asking the

jury to remember that compensation during its consideration of the case is proof

of misconduct. Furthermore, we cannot say exclusion of the comments would

have led to a different result because the stipulation evidence was already

admitted. Moreover, no curative jury instruction was necessary.

       Considering that no misconduct occurred during closing arguments, we

need not move to the prejudice prong. See Rasmussen, 174 N.W.2d at 391. The

district court did not erroneously apply the law, and its denial of the motion for new

trial was made on grounds that were not clearly untenable and not to an extent
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that was clearly unreasonable. The district court did not abuse its discretion in

denying the motion for new trial.

IV.   Conclusion

      Because we determine the district court did not abuse its discretion in

concluding no misconduct occurred and denying the motion for new trial, we affirm.

      AFFIRMED.
