                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0821
                             Filed October 25, 2017


JEFFREY BURDICK SR., WANDA BURDICK, and JEFFREY BURDICK JR.,
     Plaintiffs-Appellants,

vs.

INTERSTATE POWER AND LIGHT COMPANY,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Kossuth County, Nancy L.

Whittenburg, Judge.



      The plaintiffs appeal the district court’s orders granting the defendant’s

posttrial motion for judgment notwithstanding the verdict, or alternatively, a new

trial. REVERSED AND REMANDED.



      David J. Siegrist of Siegrist & Jones, P.C., Britt, and Thomas W. Lipps of

Peterson & Lipps, Algona, for appellants.

      Mark A. Roberts and Dawn M. Gibson of Simmons Perrine Moyer

Bergman PLC, Cedar Rapids, for appellee.



      Heard by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

       Jeffrey Burdick Sr., Wanda Burdick, and Jeffrey Burdick Jr. appeal the

district court’s posttrial order that vacated the jury’s verdict in favor of the

Burdicks. The district court granted Interstate Power & Light Company’s motion

for judgment notwithstanding the verdict or, alternatively, granted its motion for

new trial. The Burdicks assert the district court should not have granted the

motions because there was sufficient evidence introduced at trial to support the

jury’s award of damages. Because we agree there was sufficient evidence of

damages from which the jury could have approximated the Burdicks’ lost profits,

we reverse the district court’s ruling on Interstate’s posttrial motions.

I. Background Facts and Proceedings.

       In October 2013, the Burdicks filed suit against Interstate alleging

Interstate’s electrical system caused damage to the Burdicks’ dairy operation.

The Burdicks alleged Interstate was negligent in its maintenance of the system,

which allowed stray voltage to come into contact with their dairy herd causing

decreased milk production and a reduction in breeding.            The Burdicks also

asserted a nuisance claim. The case proceeded to an eight-day jury trial in

December 2015. The jury returned a verdict in favor of the Burdicks, concluding

Interstate was 80% negligent and assigning 20% fault to the Burdicks.1 The jury

awarded damages in the amount of $500,000.             The court entered judgment

against Interstate for $400,000 ($500,000 x 80%) on the negligence claim.




1
  The jury also found Interstate created a nuisance but concluded the Burdicks did not
prove they sustained damages as a result of the nuisance.
                                          3


       Thereafter, Interstate filed a posttrial motion for judgment notwithstanding

the verdict, or in the alternative, for a new trial. Interstate alleged the Burdicks

failed to offer evidence at trial from which the jury could calculate damages for

lost profits. Alternatively, Interstate asserted it was entitled to a new trial based

on its belief the verdict was the result of a jury compromise in light of the fact it

bore no relationship to the evidence presented at trial. The Burdicks resisted the

motion asserting the jury could have reasonably concluded they had no

expenses related to the lost milk production because the jury could have believed

the Burdicks had already absorbed all expenses.          The district court granted

Interstate’s motion concluding:

              Plaintiffs did not present significant evidence of their
       anticipated revenues. Instead, they only presented an estimate of
       lost milk and a published figure for the average price of milk per
       year. There was no record introduced at trial to support the
       estimated lost milk production. Plaintiffs provided no testimony or
       exhibits which explained the calculation of the estimated lost milk or
       average price of milk. Additionally, Jeffrey Burdick Sr., in testifying
       on the loss in milk production, used a published average milk price,
       but no actual lost production and no actual price that Plaintiffs were
       being paid. There was no explanation as to how the estimated
       average price of milk related to Plaintiffs’ actual price during the
       years in question. Plaintiffs only alleged that they were supposed
       to produce a certain quantity of milk, which quantity was not
       achieved, that milk at the time of their injury was, in general, sold at
       an average price. Such a presentation fails to provide the jury with
       the resources necessary to determine, with a reasonable degree of
       certainty, what Plaintiffs’ gross revenues were for the relevant time
       period.
              Perhaps a greater omission was Plaintiffs’ lack of foundation
       or argument for the jury to determine what the variable expenses
       were from the deprivation of milk production. No testimony or
       exhibits were provided about the actual costs Plaintiffs incurred or
       avoided due to the alleged change in production. In Plaintiffs’ Brief
       in Resistance, Plaintiffs argue that it was possible they had no
       avoided costs. However, such a contention goes against the
       testimony by their own witness—Jeffrey Burdick Sr.—and the
       typical operations of a business. If there is less production, costs
                                          4


       associated with the profit from the sale of the produced goods are
       typically affected in some way.          But Plaintiffs presented no
       evidence that would indicate these added or avoided costs existed.
       Plaintiffs entirely failed to address how their alleged loss of milk
       production affected milking costs, feeding costs, transportation
       costs, or the costs of veterinary services. While Plaintiffs now
       contend the evidence presented at trial could be implied toward a
       finding that all of these costs were already paid and therefore
       unavoided, Plaintiffs testified they paid for the transportation of their
       milk 100 miles to a dairy processing plant, bought some feed, and
       used veterinary services but never testified to the specific dollar
       costs of those expenses or how lack of milk production affected
       those costs. The fact that Plaintiffs produced the majority of their
       own feed and supplied their own land and labor does not provide a
       basis for a jury to determine Plaintiffs already absorbed all costs
       which would typically exist—and which they may have partially
       avoided—in the production of milk on a dairy farm.
               Plaintiffs seem to argue in their Resistance that they
       provided a sufficient basis for a jury determination of damages
       based on Jeffrey Burdick Sr.’s testimony of lost milk. However, as
       discussed above, the determination of lost profits consists of the
       subtraction of variable expenses from revenues. While lost milk
       production does inform the determination of lost revenue, it does
       not account for the entirety of the calculation of lost profits.
       Plaintiffs failed to provide a sufficient evidentiary basis for the jury
       to calculate with any degree of reasonable certainty the actual
       amount of Plaintiffs’ lost profits resulting from Defendant’s alleged
       negligence. In making the determination that Plaintiffs’ were
       entitled to $500,000 in lost profits, the jury most likely confused lost
       production with lost profits. Such a determination was contrary to
       the jury instructions on damages under negligence; therefore,
       Defendant’s Motion for JNOV should be sustained.

The district court also went on to conclude, alternatively, Interstate was entitled to

a new trial based on the fact the jury’s award lacked evidentiary support and

indicated “an unaided and uneducated guess at how much profit the dairy was

likely to realize out of their lost milk production revenue.” The court vacated the

judgment entered in favor of the Burdicks and instead entered a judgment in

favor of Interstate. The Burdicks appeal.
                                         5


II. Scope and Standard of Review.

       We review the district court’s ruling on a motion for judgment

notwithstanding the verdict for correction of errors at law.       Thornton v. Am.

Interstate Ins. Co., 897 N.W.2d 445, 460 (Iowa 2017).

       “Our role is to decide whether there was sufficient evidence to
       justify submitting the case to the jury when viewing the evidence in
       the light most favorable to the nonmoving party.” To justify
       submitting the case to the jury, substantial evidence must support
       each element of the plaintiff’s claim. We will find evidence is
       substantial if “reasonable minds would accept the evidence as
       adequate to reach the same findings.”

Smith v. Iowa State Univ. of Sci. & Tech., 851 N.W.2d 1, 18 (Iowa 2014)

(citations omitted).

       “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, “we review it for an abuse of discretion,” “[b]ut if the motion

is based on a legal question, our review is on error.” Id. (citation omitted). We

review the court’s ruling on a motion for a new trial based on the sufficiency of

the evidence supporting the jury verdict for abuse of discretion.         Shepherd

Components, Inc. v. Brice Petrides-Donohue & Assocs., Inc., 473 N.W.2d 612,

618 (Iowa 1991).

III. Judgment Notwithstanding the Verdict.

       The Burdicks assert the district court incorrectly concluded there was a

lack of evidence to support the jury’s verdict. The Burdicks claim the jury could

have determined the expenses based on the evidence submitted, particularly the

testimony provided by Interstate’s expert, Terry Smith. Smith submitted graphs
                                              6


showing the monthly gross revenue and testified as to the net income of the

Burdicks’ dairy operation, which the Burdicks assert the jury could have used to

calculate a profit/expense margin and then the jury could have used that margin

to arrive at an expense figure to deduct from the lost revenue number provided.

The Burdicks claim the district court erred in granting Interstate’s posttrial motion

because it failed to consider the evidence from Interstate’s expert.2

       In defense of the district court’s posttrial ruling, Interstate notes the

calculations the Burdicks perform on appeal to arrive at the jury’s damages figure

were never proposed to the jury at trial as a way to reach a damages figure. The

only damage calculation provided to the jury was in the form of a jury instruction,

which told the jury to calculate the lost profits “by subtracting variable expenses

from revenues.” Interstate contends that while the Burdicks supplied the revenue

number ($860,000), they wholly failed to provide the jury with any variable

expense number.        Interstate notes the only expense argument the Burdicks

made to the jury was during rebuttal closing argument when the Burdicks’

counsel implied there would have been no additional expenses to achieve this

additional revenue because all of the expenses had already been incurred and

paid by the Burdicks. Interstate maintains because the Burdicks did not provide

a variable expense number, submit evidence that the expense number was zero,

or provide the jury direction on how to arrive at the variable expense number, the
2
  The Burdicks also assert the district court, in ruling on the posttrial motions, considered
deposition testimony of Jeffrey Burdick Sr. that was not admitted during the course of
trial. Upon our review of the district court’s decision, we note the district court quoted the
unadmitted deposition testimony but only in the portion of the ruling where the district
court was outlining the claims being made by the parties in their posttrial briefs. The
deposition testimony was not included in the analysis portion of the district court’s ruling.
We thus conclude the district court did not improperly consider the unadmitted evidence
in ruling on the motions.
                                          7


district court correctly granted the judgment notwithstanding the verdict due to

the lack of evidence to support the jury’s damages number.

       The Burdicks correctly note that we must consider all the evidence, not

just the evidence offered by the plaintiffs, when determining whether substantial

evidence supports the jury’s verdict. Lathrop v. Knight, 297 N.W. 291, 292 (Iowa

1941) (“In passing upon [defendant’s] motion for a directed verdict, it was the

duty of the trial court to consider the evidence in the light most favorable to the

[Plaintiff], and to consider all of the evidence, not merely that of the [defendant].”

(emphasis added)). In addition, “damages need not be shown with mathematical

certainty.” Data Documents, Inc. v. Pottawattamie Cty., 604 N.W.2d 611, 616–17

(Iowa 2000) (citations omitted). However, the “plaintiff must at least present

sufficient evidence to allow the factfinder to make an approximate estimate of the

loss.” Id. Lost profits are recoverable as damages “so long as the profits are not

based on conjecture and speculation.” Yost v. City of Council Bluffs, 471 N.W.2d

836, 840 (Iowa 1991).

              There is a distinction between proof of the fact that damages
       have been sustained and proof of the amount of those damages.
       Damages are denied where the evidence is speculative and
       uncertain whether damages have been sustained. But “[if] the
       uncertainty lies only in the amount of damages, recovery may be
       had if there is proof of a reasonable basis from which the amount
       can be inferred or approximated.”

Olson v. Nieman’s, Ltd., 579 N.W.2d 299, 309 (Iowa 1998) (alteration in original)

(emphasis added) (citation omitted).

       The instruction submitted by the court to the jury directed them how to

calculate the Burdicks’ damages. The Burdicks did not object to this instruction,

nor do they contend on appeal that it was an incorrect statement of the law. In
                                         8


order to calculate the loss sustained by the Burdicks, the jury had to subtract the

“variable expenses from revenues.” Jeffrey Burdick Sr. supplied a single number

for lost revenue over a five-year period: $860,000. But he also testified his lost

revenue number “did not have anything to do with my cost.”

       The Burdicks’ counsel implied to the jury during rebuttal closing argument

that there were no variable expenses for the Burdicks to achieve this additional

revenue, but counsel’s argument is not evidence, and the evidence that was

offered at trial did not support the argument. Jeffrey Burdick Sr. admitted to

having to purchase additional feed for his cows because the land he farmed did

not produce sufficient crops during the relevant years. If the cows were going to

produce an additional $860,000 in revenue from milk sales during the relevant

years in the absence of stray voltage, it is logical to conclude from his testimony

the cows would have required additional food to produce that milk, food that

would have been purchased on the open market due to the lack of crops on the

Burdicks’ farm. In addition, Jeffrey Burdick Sr. testified there were costs involved

in shipping milk from his farm to the dairy. Specifically, he testified it “[c]osts a

little over a dollar a hundred [pounds] to ship milk” from his farm to the dairy 100

miles away. However, he did not testify how much milk, in terms of pounds, the

$860,000 lost revenue represented.

       While the Burdicks did not submit evidence of an expense figure, the jury

could have arrived at an expense figure by using the graphs submitted by

Interstate’s expert, Smith.   Royal Indem. Co. v. Factory Mut. Ins. Co., 786

N.W.2d 839, 845 (Iowa 2010) (“Even the weakest cases may gain strength

during the defendant’s presentation of the case.”). Smith explained his chart,
                                           9


exhibit 505, to the jury, describing the Y axis as “dollars of monthly milk revenue”

for the Burdicks from April 2009 until early 2014. He explained he calculated “the

amount of milk sold, times the prevailing milk price by month.” Smith went on to

tell the jury about the Burdicks’ costs for feed—as indicated on their tax returns—

and his calculation of their net income for 2010-2013, which was $55,000 each

year.

        In support of their claim, the Burdicks assert one of the calculations the

jury could have done included adding up the monthly gross milk sales illustrated

on Smith’s bar graph by approximating the value represented by each monthly

column. Then the jury could have divided the net income figure supplied by

Smith by the annual gross sales from the bar graph. The Burdicks claim this

calculation would have represented the profit/expense ratio for the operation,

which the jury could have then multiplied by the $860,000 lost milk production

figure to arrive at a lost profits number. In addition, the Burdicks assert there was

also evidence in the record to support costs he incurred as a result of the stray

voltage including acquiring an additional 138 cows, priced at $2500 apiece,3

based on the Burdicks’ assertion the stray voltage affected breeding, in addition

to milk production.

        No matter how the jury arrived at the verdict award here, the evidence is

clearly sufficient in the record that the Burdicks sustained damages. “While it

may be hard to ascertain such a loss with preciseness and certainty, the

wronged parties should not be penalized because of that difficulty. Difficulty in


3
 Interstate’s expert testified dairy cows could range in price from $2000 to $2500 each,
while Jeffrey Burdick Sr. testified they cost approximately $1750.
                                         10


ascertaining the amount of damages does not alone constitute a reason for

denying recovery . . . .” Bangert v. Osceola Cty., 456 N.W.2d 183, 190 (Iowa

1990). In addition, the data supplied by Smith provided a basis from which the

jury could have approximated Burdick’s lost profits. See Olson, 579 N.W.2d at

309 (“[If] the uncertainty lies only in the amount of damages, recovery may be

had if there is proof of a reasonable basis from which the amount can be inferred

or approximated.” (emphasis added)).          We find this evidence “sufficient to

remove the issue of damages from the realm of speculation.”              Bushman v.

Cuckler Bldg. Sys., a Div. of Lear Siegler, Inc., 421 N.W.2d 145, 148 (Iowa Ct.

App. 1988) (noting when “factual data [is] presented which furnish[es] a basis for

compilation of probable loss of profits, evidence of future profits should be

admitted and its weight, if any, should be left to the jury”), vacated on other

grounds by Chiafos v. Mun. Fire & Police Ret. Sys. of Iowa, 591 N.W.2d 199, 203

(Iowa 1999); see also Lund v. McEnerney, 495 N.W.2d 730, 733 (Iowa 1993)

(“The proceedings in the jury room and the manner in which the jury reaches its

verdict, in the absence of misconduct or fraud, inhere in the verdict.” (citation

omitted)).

       We disagree with the district court there was not substantial evidence to

support the damages awarded by the jury, and we reverse the district court’s

grant of Interstate’s motion for judgment notwithstanding the verdict.

IV. Motion for New Trial.

       The district court, alternatively, granted Interstate a new trial based on its

determination that the damages evidence was insufficient. In granting the new

trial, the district court stated:
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              Here, for the reasons stated above, the jury did not have an
       adequate basis with which to perform a reasonably certain
       calculation of damages. Plaintiffs only provided the jury with an
       estimated amount of lost milk production revenue totaling
       $860,000. The jury, however, awarded Plaintiffs $500,000. No
       other applicable evidence was provided to the jury to warrant
       lowering the amount of lost production revenue by $360,000. . . .
       The jury’s award of $500,000, therefore, lacks evidentiary support
       and indicates an unaided and uneducated guess at how much profit
       the dairy was likely to realize out of their lost milk production
       revenue. Because of such an unsupported verdict award, the court
       SUSTAINS defendant’s alternative motion for a new trial.

       The Burdicks assert all of the reasons the district court was wrong to grant

Interstate’s judgment notwithstanding the verdict also apply to their claim the

district court should not have granted Interstate a new trial.            They note

Interstate’s expert, Smith, provided the necessary data from which the jury could

have calculated the variable expenses associated with their estimated lost

revenue. The Burdicks claim the question of how the jury arrived at the $500,000

damage award improperly delves into the jury’s deliberative process.             See

Weatherwax v. Koontz, 545 N.W.2d 522, 524 (Iowa 1996) (ruling juror affidavits

and testimony regarding how the jury reached the damages figure cannot be

admitted into evidence “to show the jury’s thinking processes were incorrect”

because such “deliberative matters” “inhere in the verdict”).

       As noted above, we review the district court’s grant of a new trial in this

case for an abuse of discretion. Shepherd Components, 473 N.W.2d at 618.

“[T]he granting of a new trial will not be interfered with on appeal except in a clear

case of abuse of discretion.” Burke v. Reiter, 42 N.W.2d 907, 913 (Iowa 1950).

“[W]e are slower to interfere with the grant of a new trial than with its denial.”

Winchester v. Strottman, 535 N.W.2d 480, 481 (Iowa Ct. App. 1995). But “when
                                         12


the evidence amply supports the verdict, a trial court abuses its discretion by

granting a new trial on the ground that it would have reached a different result.

Id. As we noted above, there was sufficient evidence the Burdicks sustained

damages in this case, and there was evidence from which the jury could have

approximated the Burdicks’ lost profits.      We thus conclude the district court

abused its discretion in granting Interstate’s alternate motion for a new trial. We

reverse the district court’s decision and remand for the entry of judgment in favor

of the Burdicks consistent with the jury’s verdict.

       REVERSED AND REMANDED.
