Opinion
No. 03-1729.
March 16, 2005.
Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.
Patrick Corey appeals the denial of his request for a continuance, the denial of his motion in limine, the restriction of his expert witness's testimony, and the granting of D. Dowie Construction, Inc.'s request for a jury trial. AFFIRMED.
Thomas J. Reilly of Thomas J. Reilly Law Firm, P.C., Des Moines, for appellant.
Doug A. Haag and Janice M. Thomas of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker Ordway, L.L.P., Des Moines, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, and Hecht, JJ., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Patrick Corey appeals the district court's rulings denying his request for a continuance, denying his motion in limine, restricting his expert witness's testimony, and granting D. Dowie Construction, Inc.'s (Dowie) request for a jury trial. Because we find no error, we affirm.
I. Background Facts and Proceedings
On April 30, 2002, Patrick Corey filed a premise liability claim against Dowie for a personal injury suffered at a construction project site. He did not request a jury trial. On May 8, Dowie filed an answer but did not request a jury trial. A uniform scheduling order was entered on August 9, 2002, setting the trial for August 18, 2003. The "Jury" line on the scheduling order was checked. On March 11, 2003, Corey filed a motion to amend his petition and on March 27, the district court approved his amended petition. Dowie filed its answer to the amended petition on June 17. This answer contained a demand for a jury trial.
On June 24, Corey dismissed his amended petition without prejudice and filed a motion seeking to strike Dowie's answer to the amended petition and its jury demand. On July 29, the district court entered a ruling denying the motion to strike the jury demand.
On August 11, Corey filed a motion in limine seeking to prohibit the introduction of any testimony or other evidence regarding his possible marijuana use or impairment at the time of the accident. In denying this motion, the district court stated that it would consider any objections to this evidence made just prior to the testimony. At trial, all of Corey's objections regarding this marijuana testimony were sustained.
On the morning of August 18, the day the jury trial began, Corey filed a motion for continuance. The stated reason for the motion was that Corey would suffer prejudice because his counsel did not have sufficient advance notice that the case would be tried to a jury and did not have sufficient time to adjust his strategy and complete his trial preparation. This motion was denied.
II. Issues A. Jury Demand
Corey's motion to strike Dowie's jury demand was based solely on Iowa Rule of Civil Procedure 1.902. Thus, our review of the district court's ruling on this motion is for the correction of errors at law. See Iowa R. App. P. 6.4; State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001) (noting a district court's application of a procedural rule is reviewed for correction of errors at law).
Iowa Rule of Civil Procedure 1.902(2) provides in part:
A party desiring a jury trial of an issue must make written demand therefor not later than ten days after the last pleading directed to that issue. A jury demand may be made in the pleading of a party and shall be noted in the caption.
On June 17, 2003, Dowie filed its answer to Corey's amended petition. Included within this answer, as properly contained in the caption, was a jury demand. We note this answer was not made within ten days of the filing of the amended petition as required by Iowa Rule of Civil Procedure 1.441(4). However, Corey does not cite to this rule nor otherwise argue that the violation of this rule in anyway affects the validity of Dowie's jury demand. Consequently, we conclude the district court did not err in deciding that, "in accordance with Rule 1.902(2) [Dowie] properly made a jury demand in conjunction with its answer."
Corey's argument on appeal, however, is not that the jury demand was untimely, but that the district court abused its discretion in granting a jury trial because (1) Corey's dismissal of his amended petition extinguished the basis for Dowie's jury request and (2) the answer containing the jury demand was unreasonably late as it was made three months after the amended petition was filed and only two months prior to trial. What Corey fails to recognize is that because under Rule 1.902(2) Dowie timely demanded a jury trial, Dowie was entitled to such not in the exercise of the district court's discretion, but as a matter of right. See R.E. Morris Inv., Inc. v. Lind, 304 N.W.2d 189, 192 (noting that the right to a jury trial is a right secured by both the federal constitution and our state constitution and that, "once demanded, as required by [Iowa Rule Civil Procedure 1.902], trial by jury becomes a matter of right"); Cf. Egan v. Egan, 212 N.W.2d 461, 464 (Iowa 1973) (stating that a "[j]ury trial may not be had as a matter of right in a law action unless written demand therefor is made not later than ten days after the last pleading directed to an issue triable by jury"). Therefore, the district court did not err in concluding that the discretion provided under rule 1.902(4) to grant an untimely jury demand was not implicated by Dowie's timely jury demand. We accordingly affirm the district court's denial of Corey's motion to strike Dowie's jury demand.
Corey has not cited any authority that precludes Dowie's jury demand because Corey dismissed his amended petition.
As noted above, Corey failed to argue at the district court or cite on appeal the applicable rule of procedure regarding the timeliness of the answer, Iowa Rule of Civil Procedure 1.441(4). This rule requires a response to an amended pleading within the time remaining to respond to the original pleading, or ten days, whichever is longer. Corey instead incorrectly relies on Iowa Rule of Civil Procedure 1.303 for the proposition that Dowie's answer containing its jury demand was not filed within a reasonable time. This rule provides only that an answer shall be filed a reasonable time after it is served.
B. Continuance
"The granting or denial of a motion for continuance is in the discretion of the trial court and will be interfered with on appeal only where there has been a clear abuse of that discretion, and injustice has been done thereby to the party seeking a continuance." In re of Estate of Lovell, 344 N.W.2d 576, 578 (Iowa Ct.App. 1983). A district court's ruling on such matters is presumptively correct, and a party challenging the ruling has a heavy burden to overcome the presumption. Countryman v. McMains, 381 N.W.2d 638, 640 (Iowa 1986).
Iowa Rule of Civil Procedure 1.910(1) provides that "[m]otions for continuance shall be filed without delay after the grounds therefor become known to the party or the party's counsel." The ground for continuance stated in Corey's motion was that Corey would suffer prejudice if the trial was not continued because his counsel did not have sufficient notice to adequately prepare for a jury trial. The district court's ruling denying Corey's motion to strike Dowie's jury demand was filed on July 28. Thus, the grounds for a continuance were known to Corey twenty-one days before the August 18 trial date. While he could have filed a motion to continue earlier, Corey instead waited until August 18, the first day of trial, to file his motion. These facts justified the district court's discretionary denial of Corey's motion to continue.
C. Corey's Expert
Corey next asserts his liability expert's testimony "regarding Exhibit 8" was improperly restricted. When the trial court refuses to allow a witness to testify, the party wishing to elicit testimony from the witness has the burden to demonstrate the substance of the proposed testimony by an offer of proof. Strong v. Rothamel, 523 N.W.2d 597, 599 (Iowa Ct.App. 1994); see also Nizzi v. Laverty Sprayers, Inc., 259 Iowa 112, 119, 143 N.W.2d 312, 316 (1966) (noting "[t]he general rule is the failure to offer proof of excluded testimony leaves nothing for review."); Grosjean v. Spencer, 258 Iowa 285, 695, 140 N.W.2d 139, 145 (1966) (stating "[w]e have no idea what the [excluded testimony] might have shown. . . . We cannot predicate error upon speculation as to the answers"). However, there is an exception to the general rule that an offer of proof is required, "where, upon the whole record, what is sought to be proven is apparent." Nizzi, 259 Iowa at 119, 143 N.W.2d at 316.
Corey did not make an offer of proof regarding the testimony he sought to elicit from his expert regarding exhibit 8. Moreover, what testimony may have been offered regarding exhibit 8 is not apparent. Therefore, because no offer of proof was made, and the record is not otherwise sufficient for us to address Corey's claimed error, error was not preserved on this issue. See Rothamel, 523 N.W.2d at 599.
Exhibit 8 is a publication entitled "OSHA Directives Multi-Employer Citation Policy."
D. Dowie's Expert
Corey claims the district court erred in denying his motion in limine seeking to prohibit Dowie's expert witness from testifying as to Corey's possible marijuana-induced impairment at the time of the accident. In Tratchel v. Essex Group, Inc., the Iowa Supreme Court stated, "[t]o preserve error after a motion in limine has been denied, it is necessary to make a proper objection at the time the evidence is offered." Tratchel v. Essex Group, Inc., 452 N.W.2d 171, 178 (Iowa 1990) (citations omitted). However, the Iowa Supreme Court has recognized an exception to this rule; a party "need not renew his objections at trial if the prior ruling amounts to an unequivocal holding concerning the issue raised." State v. Harlow, 325 N.W.2d 90, 91 (Iowa 1982) (citations omitted).
Corey's citations in his brief to those parts of the record where Dowie's expert attempted to testify to marijuana use and impairment demonstrate that Corey did object to this testimony and that his objections were sustained. Corey cites no part of the record where he objected to expert testimony regarding marijuana use and impairment where the objection was overruled. Moreover, the district court, in denying Corey's motion in limine, stated that,
The only objection cited on appeal by Corey that was overruled was Corey's objection to Dowie's attorney's use of the word "marijuana" in asking a question. The use of this word in asking a question was not the testimony of Dowie's expert, and Corey does not appeal the attorney's use of this word.
if counsel still feels he wants to object to [the expert's testimony], I will take that up just prior to [the testimony]. But for the present time I'm going to overrule both motions . . . concerning the issue of whether the plaintiff was impaired by use of some substance at the time of the accident.
This was not an unequivocal holding regarding marijuana impairment testimony. Therefore, no proper objection was made to whatever testimony Corey now complains and the "unequivocal holding" exception to the general rule requiring a proper objection is not applicable. Error was not preserved.
III. Summary
The district court did not err by denying Corey's motion to strike Dowie's jury demand as the jury demand was timely. There was no error in the district court's denial of Corey's motion to continue as Corey knew of the stated grounds for the continuance three weeks before the motion was made. Furthermore, we find Corey failed to preserve error on his claim that his expert's testimony was improperly restricted and on the denial of his motion in limine seeking to restrict Dowie's expert from testifying about Corey's possible marijuana use or impairment. Because we find no error in these rulings, we do not reach Corey's final contention that the combination of these rulings deprived him of his right to a fair trial.