                      IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1599
                             Filed November 23, 2016


PATRICIA J. McILRATH,
     Plaintiff-Appellee,

vs.

PRESTAGE FARMS OF IOWA, L.L.C.,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Poweshiek County, Annette J.

Scieszinski, Judge.



       Defendant appeals the award of damages to plaintiff in her nuisance

action based on odor from an animal confinement operation. AFFIRMED.




       Sean P. Moore and Michael R. Blaser of Brown, Winick, Graves, Gross,

Baskerville & Schoenebaum, P.L.C., Des Moines, and Robert Malloy and Lynn

Collins Seaba of Malloy Law Firm, L.L.P., Goldfield, for appellant.

       Thomas W. Lipps of Peterson & Lipps, Algona, and David J. Stein Jr. of

Stein Law Office, Milford, for appellee.




       Heard by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
                                                2


BOWER, Judge.

          Prestage Farms of Iowa, L.L.C. appeals the award of damages to Patricia

McIlrath in her nuisance action based on odor from an animal confinement

operation. We find Prestage Farms was not entitled to immunity based on Iowa

Code section 657.11(2) (2013). We also find the district court properly denied

Prestage Farms’s motions for judgment notwithstanding the verdict, new trial, or

remittitur of damages. We affirm the decision of the district court.

          I.      Background Facts & Proceedings

          In 1971, McIlrath and her husband, James, purchased a farm in rural

Poweshiek County.1 McIlrath made improvements to the property. McIlrath and

James gifted one acre of their land to their son, Harley, and he lives with his two

children in a home about 300 feet from his parents’ home. Prestage Farms

constructed an animal confinement facility in 2012 for 2496 hogs about 2200 feet

from McIlrath’s home.

          On July 1, 2013, McIlrath filed an action claiming odor from the hog

confinement facility constituted a nuisance and requested damages. Prestage

Farms stated it was entitled to immunity based on Iowa Code section 657.11(2).

The district court granted McIlrath’s motion for summary judgment and found

section 657.11(2) was unconstitutional as applied in this case, based on the Iowa

Supreme Court’s ruling in Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 179 (Iowa

2004), finding section 657.11(2) was unconstitutional under article I, section 1 of

the Iowa Constitution as applied to the plaintiffs in that case. The court found

McIlrath was similarly situated to the plaintiffs in Gacke.

1
    Due to his health, James is not a party to this action.
                                         3


       Prior to the trial, Prestage Farms requested the court reverse its ruling

finding section 657.11(2) was unconstitutional as applied in the case. The court

found, even if the statute was not unconstitutional based upon the facts of the

case, the statute would not provide immunity to Prestage Farms if (1) “[t]he

animal feeding operation unreasonably and for substantial periods of time

interfere[d] with the person’s comfortable use and enjoyment of the person’s life

or property”; and (2) “[t]he animal feeding operation failed to use existing prudent

generally accepted management practices reasonable for the operation.” See

Iowa Code § 657.11(2)(b). The court informed the parties it would submit the

exceptions to immunity to the jury in a special verdict form so if there was a

subsequent finding, based on the facts as presented during the trial, section

657.11(2) applied, there would be a determination by the jury as to whether

Prestage Farms would be entitled to immunity under the statute.

       During the trial, McIlrath testified there was an oppressive odor from the

hog confinement facility when the wind was blowing from the southwest. She

described the smell as “putrid,” and stated there would be an intense odor on

thirty to fifty percent of the days. Harley also testified about the odor from the

hog confinement facility, as did McIlrath’s neighbors, Robert Fuerst, Magolena

Fuerst, and Larry Loftin. Brian Ritland of the Pinnacle Group testified about the

manure management plan he designed for the facility. McIlrath presented the

deposition of Dr. Michael Brugger, an agricultural engineer, concerning additional

actions Prestage Farm could have taken to reduce the odor from the facility.

       Prestage Farms presented the testimony of a neighbor, Brad Gruhn, who

stated he never found the odor from the hog confinement facility to be
                                            4


unreasonable or offensive. Bill Gibbons, an employee of the Iowa Department of

Natural Resources (DNR), testified the facility was in compliance with all

applicable statutes and regulations.        Prestage Farms presented the expert

testimony of Dr. Dwaine Bundy and the deposition of Dr. Larry Jacobson, both

agricultural engineers, who testified there was very little gas emitted from the hog

confinement facility, and, therefore, there would be very little odor.2 Additionally,

Ryan Pudenz, the general manager of Prestage Farms, testified about

management practices.

       The jury returned a verdict finding the hog confinement facility was a

nuisance and this nuisance was a proximate cause of injuries sustained by

McIlrath.    McIlrath was awarded damages of $100,000 for loss of past

enjoyment, $300,000 for loss of future enjoyment, and $125,000 for diminution of

property value.      On the special verdict form, the jury found the facility

unreasonably and for substantial periods of time interfered with McIlrath’s

comfortable use and enjoyment of her life or property and Prestage Farms failed

to use existing prudent generally-accepted management practices that were

reasonable for the facility.

       Prestage     Farms      filed   post-trial   motions    requesting    judgment

notwithstanding the verdict, a new trial, a stay, or a conditional new trial. The

district court found McIlrath was a joint tenant in the home with her husband and

was entitled to one-half of the award for diminution of property value, thereby


2
  After the videotape of Dr. Jacobson’s deposition was played for the jury, the court
admitted an exhibit consisting of Dr. Jacobson’s Powerpoint slides, which contained
pictures of windbreak walls, chimneys for fans, a system to capture and treat emissions,
and biofilters.
                                           5


reducing that item of damages to $62,500. The court granted a fifteen-day stay

of execution. In all other respects, the post-trial motions were denied. Prestage

Farms now appeals.

         II.    Section 657.11(2)

         Prestage Farms claims the district court should have granted its motion for

judgment notwithstanding the verdict, pursuant to Iowa Rule of Civil Procedure

1.1003, or granted its motion for new trial, pursuant to rule 1.1004, because the

court erred in finding section 657.11(2) was unconstitutional.         “Constitutional

challenges are reviewed de novo.” Griffin v. Pate, 884 N.W.2d 182, 184 (Iowa

2016).

         Iowa Code section 657.11(2) provides:

                An animal feeding operation, as defined in section 459.102,
         shall not be found to be a public or private nuisance under this
         chapter or under principles of common law, and the animal feeding
         operation shall not be found to interfere with another person's
         comfortable use and enjoyment of the person's life or property
         under any other cause of action. However, this section shall not
         apply if the person bringing the action proves that an injury to the
         person or damage to the person's property is proximately caused
         by either of the following:
                a. The failure to comply with a federal statute or regulation or
         a state statute or rule which applies to the animal feeding operation.
                b. Both of the following:
                        (1) The animal feeding operation unreasonably and
         for substantial periods of time interferes with the person's
         comfortable use and enjoyment of the person's life or property.
                        (2) The animal feeding operation failed to use existing
         prudent generally accepted management practices reasonable for
         the operation.

         In Gacke, 684 N.W.2d at 179, the Iowa Supreme Court determined

section 657.11(2) was unconstitutional as applied in that case. The court stated:

         Property owners like the Gackes bear the brunt of the undesirable
         impact of this statute without any corresponding benefit. Moreover,
                                           6


       their right to use and enjoy their property is significantly impaired by
       a business operated as a nuisance, yet they have no remedy.
       Unlike a property owner who comes to a nuisance, these
       landowners lived on and invested in their property long before Pork
       Xtra constructed its confinement facilities.              Under these
       circumstances, the police power is not used for its traditional
       purpose of insuring that individual citizens use their property “with
       due regard to the personal and property rights and privileges of
       others.” Instead, one property owner—the producer—is given the
       right to use his property without due regard for the personal and
       property rights of his neighbor. We conclude that section 657.11(2)
       as applied to the Gackes is unduly oppressive and, therefore, not a
       reasonable exercise of the state's police power. Accordingly, the
       statutory immunity violates article I, section 1 of the Iowa
       Constitution and may not be relied upon as a defense in this case.
       We express no opinion as to whether the statute might be
       constitutionally applied under other circumstances.

Gacke, 684 N.W.2d at 179 (citation omitted).

       Prestage Farms claims section 657.11(2) should not be considered

unconstitutional in this case because McIlrath’s situation is not factually similar to

that of the Gackes. It points out McIlrath and her husband previously raised

Belgian horses. There is no evidence, however, McIlrath had an “animal feeding

operation” as defined in section 459.102(4).3         The evidence does not show

McIlrath benefited from the operation of the statute.          Furthermore, Prestage

Farms claims some of McIlrath’s neighbors had horses and cows. Again, there

was no evidence these came within the definition of an “animal feeding

operation.”    Prestage Farms also claims the set-back requirements have

increased since Gacke was decided. We note the set-back requirements were



3
  “‘Animal feeding operation’ means a lot, yard, corral, building, or other area in which
animals are confined and fed and maintained for forty-five days or more in any twelve-
month period, and all structures used for the storage of manure from the animals in the
operation.” Iowa Code § 459.102(4). There is no evidence to show whether the Belgian
horses were confined, or even if they were confined, whether they were confined for
forty-five days or more during a twelve-month period.
                                           7


not one of the factors cited by the Supreme Court in discussing the

constitutionality of section 657.11(2). Id.

       We agree with the district court’s conclusion the factual situation in this

case was substantially similar to that presented in Gacke, so that section

657.11(2) was unconstitutional as applied to the facts in this case. See id. As

noted above, there was no evidence McIlrath received any benefit from the

statute. See id. She lived on her property and made substantial improvements

to it long before Prestage Farms constructed the hog confinement facility. See

id. Based on these factors, section 657.11(2) is unconstitutional as applied to

McIlrath, just as it was unconstitutional as applied to the Gackes.4 See id.

       III.   Irregularity & Misconduct

       Prestage Farms claims the district court abused its discretion by denying

its motion for new trial. The company states it is entitled to a new trial due to

irregularity in the proceedings and misconduct of the opposing party. See Iowa

R. Civ. P. 1.1004(1), (2). When a motion for new trial is based on discretionary

grounds, we review the district court’s ruling for an abuse of discretion.

Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 823 (Iowa 2000).

       A. Prestage Farms states counsel for McIlrath made improper statements

during closing arguments to appeal to the passions or prejudices of the jurors.

No objections were made during closing arguments, nor did the company file a

motion for mistrial. We conclude Prestage Farms did not preserve error on this

issue. See State v. Nelson, 234 N.W.2d 368, 371 (Iowa 1975) (noting objections

4
 We alternatively note, even if section 657.11(2) was not unconstitutional as applied to
McIlrath, under the special verdicts reached by the jury, Prestage Farms would not be
entitled to immunity based on the statutory exception found in section 657.11(2)(b).
                                         8


to closing arguments are timely if made at the close of argument and in a motion

for mistrial before submission of the case to the jury); Rosenberger Enters., Inc.

v. Ins. Serv. Corp., 541 N.W.2d 904, 907 (Iowa Ct. App. 1995) (noting when a

party claims impropriety during closing arguments, “a motion for mistrial is

considered timely if made prior to the submission of the case to the jury”).

       B.     Before the hog confinement facility was built, Harley sent an email

to the Poweshiek County Board of Supervisors inquiring about plans for the site.

The email was forwarded to the County Auditor and the DNR. McIlrath indicated

she wanted to present the email during the trial. In ruling on Prestage Farms’s

motion in limine, the district court ruled the email was inadmissible because it

was hearsay. Before the testimony of Ritland, who had developed the manure

management plan, counsel for McIlrath showed Ritland a copy of the email.

       Plaintiff’s counsel asked Ritland on the stand whether he was now aware

there were some complaints about the site and then asked, “And as we visited

before the courtroom—before you came into the courtroom—?” Defense counsel

objected, and the matter was discussed outside the presence of the jury. The

district court again ruled the email was inadmissible because it was hearsay and

stated counsel for McIlrath could not question Ritland about it.       Counsel for

Prestage Farms stated, “I wouldn’t ask for any instruction to the jury. I would just

ask that there be no more references to those documents that were removed

pursuant to the Motion in Limine and that we just go forward from there without

those type of references.”5


5
  Based on the court's ruling, McIlrath made an offer of proof concerning Ritland's
testimony about the email.
                                        9


      On appeal, Prestage Farms claims the district court should have granted

its motion for a new trial due to the efforts of counsel for McIlrath to question

Ritland about the email despite the court’s ruling the email was inadmissible.

When the court asked Prestage Farms about relief, the company requested to

just go forward without further references to the inadmissible email.        We

conclude Prestage Farms is not entitled to a new trial on this ground.

      C.     Robert Fuerst, a neighbor of McIlrath, testified about odor from the

hog confinement facility, but also stated he had never complained to Prestage

Farms about the odor. Fuerst had also filed a suit against Prestage Farms and

then dismissed it. On redirect examination, counsel for McIlrath asked Fuerst if

he had a mediation meeting with Prestage Farms where the topic was odor.

Counsel for Prestage Farms objected to the mention of mediation. McIlrath’s

counsel stated he “misspoke.” The district court directed McIlrath’s counsel to

move on to another subject.

      Prestage Farms claims it is entitled to a new trial because counsel for

McIlrath improperly questioned Fuerst about settlement efforts. We determine

the district court properly denied the company’s motion for new trial on this

ground. There was only a brief mention of mediation, and plaintiff’s counsel

immediately moved on to a new subject as directed by the district court.

      D.     During the cross-examination of Pudenz, the general manager for

Prestage Farms, counsel for McIlrath stated, “You’re aware that the Iowa Code

defines what a nuisance is. Aren’t you aware of that just in general terms?” He

then pulled out a copy of the Iowa Code and appeared ready to read from it.

Prestage Farms objected, and the court addressed the matter outside the
                                          10


presence of the jury.      The district court ruled it was improper to pose legal

questions to a fact witness. The court stated, “I find what you’re doing improper,

borderline unethical, and I am going to sustain the objection.”         Counsel for

Prestage Farms then stated they wanted a moment to talk to their client to

discuss whether they should ask for a mistrial. After a break, Prestage Farms did

not request a mistrial.

         The court stated it would tell the jury they would be informed of the law to

be applied in the case by the court. When the jury returned, the court stated, “I

need to tell you that the Court has sustained the objection. And additionally, just

to echo what the Court has said before about the Court’s duties and about what

is evidence and what is not, the Court is responsible for instructing the jury about

what Iowa law provides.”

         Prestage Farms claims the district court should have granted the motion

for new trial because counsel for McIlrath improperly asked Pudenz about legal

matters. We determine the court did not abuse its discretion in denying the

motion for new trial on this ground. Prestage Farms had the opportunity to ask

for additional or different relief, such as a motion for mistrial, but decided to

continue with the trial. Furthermore, the court’s statement to the jury cured any

problems arising from the improper question about the Iowa Code. See Berg v.

Des Moines Gen. Hosp. Co., 456 N.W.2d 173, 178 (Iowa 1990) (“Generally,

improper testimony is not unduly prejudicial if the jury is admonished to disregard

it.”).

         E.    When counsel for McIlrath continued the cross-examination of

Pudenz, questions were asked about whether McIlrath had mitigated her
                                           11


damages, and then counsel asked, “And you’ve taken the position that she

should sell her home or attempt to sell her home; right?” Counsel for Prestage

Farms objected on the ground McIlrath’s counsel was reading from a motion for

summary judgment. Outside the presence of the jury, the court sustained the

objection, pointing out the issue of mitigation of damages had not been raised in

the case. Counsel for Prestage Farms requested that as a sanction the cross-

examination should be terminated.          The court directed McIlrath’s counsel to

move on to a new subject.         He agreed, however, to conclude the cross-

examination at that time.

       Prestage Farms claims the district court should have granted its motion for

a new trial because counsel for McIlrath elicited testimony about legal arguments

defense counsel had made in prior pleadings regarding McIlrath’s duty to

mitigate her damages. It states the improper questions were prejudicial. We

note the sanction counsel for Prestage Farms requested at the time, termination

of the cross-examination of Pudenz, was the result of the parties’ discussion on

the issue. We determine the district court did not abuse its discretion in denying

the motion for new trial on this ground.

       IV.    Sufficiency of the Evidence

       Prestage Farms claims it is entitled to a new trial because the jury’s

verdict is not supported by sufficient evidence or was contrary to law. See Iowa

R. Civ. P. 1.1004(6). “If a jury verdict is not supported by substantial evidence

and fails to effectuate substantial justice, a new trial may be ordered.” Olson v.

Sumpter, 728 N.W.2d 844, 850 (Iowa 2007). On this issue, our review is for the
                                       12

correction of errors at law. Estate of Hagedorn ex rel. Hagedorn v. Peterson, 690

N.W.2d 84, 87 (Iowa 2004).

      A.     Prestage Farms claims the district court should have granted its

motion in limine and prohibited McIlrath’s expert, Dr. Brugger, from testifying

about alternative odor control technology. The company claims this evidence

went to the issue of whether Prestage Farms “failed to use existing prudent

generally accepted management practices reasonable for the operation.” See

Iowa Code § 657.11(2)(b). We have already determined section 657.11(2) is

unconstitutional as applied to McIlrath.    Therefore, Prestage Farms was not

prejudiced by evidence regarding whether the company came within an

exception to the immunity provided by the statute.

      B.     During the trial, counsel for McIlrath had a map of Iowa and as

witnesses testified they would mark on the map where the witness lived or where

an event occurred. McIlrath’s counsel indicated it intended to submit the map as

an exhibit. Counsel for Prestage Farms objected on the ground of relevance.

The district court found the locations marked on the map had been mentioned by

the witnesses in testimony. The court concluded the exhibit was admissible as a

demonstrative exhibit.

      Prestage Farms claims the map was irrelevant and should not have been

admitted into evidence. “Evidence is relevant if it has ‘any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.’” Pexa v.

Auto Owners Ins. Co., 686 N.W.2d 150, 158 (Iowa 2004) (quoting Iowa R. Evid.

5.401). Even if evidence is relevant, it may be excluded if the probative value of
                                          13

the evidence is substantially outweighed by the danger of unfair prejudice. Giza

v. BNSF Ry. Co., 843 N.W.2d 713, 725 (Iowa 2014).

       While the map had limited relevance to the issue of whether odor from the

hog confinement facility constituted a nuisance to McIlrath, the same evidence

was already in the record through the testimony of the witnesses. We determine

admission of the map was not prejudicial because it was cumulative to properly

admitted evidence. See State v. Schaer, 757 N.W.2d 630, 638 (Iowa 2008). The

district court did not err in denying Prestage Farms’s request for a new trial on

this ground.

       C.      At the pretrial conference, Prestage Farms stated it did not intend

to raise the issue of how counsel was selected by McIlrath, and it requested no

evidence be presented on the issue of how Prestage Farms came to be

represented by its counsel. Counsel for McIlrath responded Prestage Farms’s

counsel, the Malloy Law Firm, had assisted in the permitting process when the

hog confinement facility was built and had previously represented Dr. Bundy, and

it wanted to show how these entities were related. The district court ruled it was

“going to permit all of it, and we’ll just make the fullest record we can.”

       Prestage Farms claims the district court should have granted its motion for

new trial because the court had improperly permitted McIlrath to present

irrelevant evidence concerning the Malloy Law Firm’s association with Prestage

Farms. Again, the evidence was of limited relevance to the issue of whether

odor from the hog confinement facility constituted a nuisance to McIlrath, but we

determine Prestage Farms has not shown the evidence was prejudicial. We do

not find any evidence to support Prestage Farms’s claim McIlrath insinuated it
                                             14


was improper for the Malloy Law Firm to perform legal services for Prestage

Farms and Dr. Bundy in unrelated matters.

       D.      Prestage Farms objected to language in the jury instructions

stating, “In the absence of evidence to the contrary, it is presumed that a plaintiff

has ordinary sensibilities.”     The company claimed the language went to the

burden of proof. The court overruled the objection. Prestage Farms claims it is

entitled to a new trial because the instruction relieved McIlrath of her burden to

prove a normal person would agree with her observations about the odor from

the hog confinement facility.

       The language in the instruction is a correct statement of law. See Kriener

v. Turkey Valley Cmty. Sch. Dist., 212 N.W.2d 526, 536 (Iowa 1973) (“And

absent evidence to the contrary it is presumed plaintiffs are of normal or ordinary

sensibilities.”); Kellerhals v. Kallenberger, 103 N.W.2d 691, 694 (Iowa 1960) (“In

this connection we have held it is presumed, in the absence of evidence to the

contrary, that a plaintiff has ordinary sensibilities.”); Amdor v. Cooney, 43 N.W.2d

136, 141 (Iowa 1950) (same). “A trial court must generally give a requested jury

instruction if it states a correct rule of law applicable to the facts and the concept

is not otherwise embodied in other instructions.” Hubbell Commercial Brokers,

L.C. v. Fountain Three, 652 N.W.2d 151, 158 (Iowa 2002). We conclude the

district court did not err in denying Prestage Farms’s motion for new trial based

on its objection to this jury instruction.

       V.      Damages

       A.      During the discussion about jury instructions, counsel for Prestage

Farms requested certain refinements to the instructions to specify damages
                                          15


should only be awarded for McIlrath’s loss of use and enjoyment of the property.

The company was concerned the award might include damages for the loss of

use and enjoyment of the property by James, Harley, and McIlrath’s

grandchildren.     The district court agreed to change the language of the

instructions, noting there was a risk of jury confusion over the award of damages.

       On appeal, Prestage Farms claims the district court should have included

an instruction to the jury specifying the damages awarded in the case should be

limited to McIlrath.    We determine the district court agreed to change the

instructions based on Prestage Farms’s objections. We conclude the district

court did not err in denying the company’s motion for new trial based on this

objection to the jury instructions.

       B.     Prestage Farms claims it was entitled to judgment notwithstanding

the verdict or a new trial because there was insufficient evidence in the record to

support the award of damages to McIlrath for past and future loss of use and

enjoyment of her property. “Generally speaking, if a jury’s award is within the

evidence we will not disturb it.” Tullis v. Merrill, 584 N.W.2d 236, 241 (Iowa

1998). A jury’s award of damages will be set aside only if (1) it is flagrantly

excessive or inadequate; (2) it is so out of reason as to shock the conscience or

sense of justice; (3) raises a presumption it is a result of passion, prejudice, or

other ulterior motive; or (4) is lacking in evidentiary support. Id.

       McIlrath testified about outdoor activities she enjoyed. She stated she

liked to garden, walk, maintain the appearance of her home, watch birds and

animals, and look at the night sky. She stated she liked to sit on the deck and

read or sew, or have her morning coffee. McIlrath testified she would like to have
                                          16


her son and grandchildren come over and engage in outdoor activities at her

home. McIlrath testified all of these activities were curtailed because of the odor

from the nearby hog confinement facility. Also, McIlrath was unable to open the

windows of her home due to the odor. We find there is sufficient evidence in the

record to support the jury’s award of damages for past and future loss of use and

enjoyment of her property. The district court did not err in denying Prestage

Farms’s motion for judgment notwithstanding the verdict.

       C.      Prestage Farms claims it is entitled to a new trial because the jury

awarded excessive damages, which were influenced by passion or prejudice. It

states the award of damages in this case is excessive when compared to the

awards of damages in other nuisance cases against hog confinement facilities.

McIlrath was awarded $100,000 for past loss of use and enjoyment of her

property and $300,000 for future loss of use and enjoyment of the property.

       “[A] flagrantly excessive verdict raises a presumption that it is the product

of passion or prejudice.” WSH Props., L.L.C. v. Daniels, 761 N.W.2d 45, 50

(Iowa 2008).        However, “not every excessive verdict results from passion or

prejudice.”   Id.     “Special damages in nuisance cases are not subject to any

precise rule for ascertaining damages because these damages are not

susceptible of exact measurement.” Weinhold v. Wolff, 555 N.W.2d 454, 465

(Iowa 1996). Therefore, if “there is any reasonable basis in the record to support

the award, we will not disturb it.” Id. In a claim of excessive damages, it is

helpful “to consider the rough parameters of a range from other like cases.”

Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 772 (Iowa 2009).
                                         17


       We have already determined the award of damages for past and future

use and enjoyment was supported by sufficient evidence.            The damages

represent “personal inconvenience, annoyance, discomfort, and loss of full

enjoyment of the property caused by the offensive odor.” See Weinhold, 555

N.W.2d at 465-66. Additionally, McIlrath testified to what she believed was the

value of her property without the odor from the hog confinement facility and what

she believed it was worth with the odor. We do not find the award is outside the

reasonable range of damages from other like cases. See Jasper, 764 N.W.2d at

772. We determine there is a reasonable basis in the record to support the

award of damages. We conclude the district court did not abuse its discretion by

denying the motion for new trial on this issue.

       D.     Prestage Farms raises an alternative argument claiming the district

court should have eliminated or significantly reduced the award of damages,

pursuant to rule 1.1010. “[R]ule 1.1010 permits the district court to conditionally

grant a new trial by giving a party a choice between consenting to a reduced or

modified judgment and proceeding to a new trial.”         Id. at 769 n.2.     After

considering each of the grounds raised by Prestage Farms to support its request

for a new trial, including its claim the damages were excessive, we have

determined the district court properly denied the motion for new trial. For the

same reasons, the district court also properly denied the request for remitter

under rule 1.1010.

       We affirm the decision of the district court.

       AFFIRMED.
