Opinion
No. 3-141 / 02-0907.
Filed April 30, 2003.
Appeal from the Iowa District Court for Black Hawk County, BRUCE ZAGER, Judge.
Plaintiff appeals from a district court ruling denying his motion for new trial. AFFIRMED.
Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellant.
Gene Yagla and Karla Shea of Yagla, McCoy Riley, P.L.C., Waterloo, for appellee.
Considered by HUITINK, P.J., and MAHAN and HECHT, JJ.
Plaintiff appeals from a district court ruling denying his motion for new trial. We affirm.
I. Background Facts and Proceedings. On September 4, 1998, as Sulejman Dizdarevic and his girlfriend walked to their car in the Hy-Vee parking lot, a vehicle driven by Margaret Rickert collided with Dizdarevic. Dizdarevic testified that as he was walking in a straight line along a line of parked cars, Rickert's car approached him from behind, knocked him to the ground and ran over his ankle with one of the passenger-side tires. Rickert testified she had come to a near stop waiting for another car to pull out of a parking space and had just begun to accelerate again when she heard a thud from the right rear side of her car. She claimed to have not seen Dizdarevic or his girlfriend until after she got out of her car to investigate the noise.
Dizdarevic filed suit against Rickert on December 21, 1999. At the conclusion of the trial, on April 17, 2002, the jury found Rickert not at fault for the accident. Dizdarevic filed a motion for a new trial, and hearing on the motion was held on May 29, 2002. In the hearing, Dizdarevic attempted to create an "oral bill of exceptions" on the record regarding the jury selection because voir dire had not been recorded. The district court issued its ruling on May 31, 2002, denying Dizdarevic's motion for a new trial. Dizdarevic appeals, alleging the district court erred by not granting a new trial because (1) four jurors were not excused for cause despite admitting prejudice against the plaintiff, and (2) the verdict failed to administer substantial justice and was contrary to law.
II. Standard of Review. Our review of a district court's denial of a motion for a new trial is for abuse of discretion. Matthess v. State Farm Mut. Auto Ins. Co., 521 N.W.2d 699, 702 (Iowa 1994). The district court has broad but not unlimited discretion in determining whether the verdict effectuates substantial justice between the parties. Iowa R.App.P.6.14(6)( c). To establish an abuse of discretion, the appellant must show the district court exercised its discretion on grounds that were clearly untenable or unreasonable. Pratt v. Piper, 500 N.W.2d 716, 716 (Iowa Ct.App. 1993).
III. Discussion. Dizdarevic argues his motion for a new trial should have been granted because the district court did not strike for cause four jurors who expressed prejudice toward Dizdarevic based on his ethnicity and the fact that he was a plaintiff. Rickert contends Dizdarevic failed to preserve error on this issue. Rickert complains that Dizdarevic's "oral application for bill of exceptions" did not conform to the requirements of Iowa Rule of Civil Procedure 1.1001 and was not timely. While these allegations may have merit, Rickert raised neither of these issues before the district court. Because we will not affirm nor reverse decisions of the district court on grounds not argued below, DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002), we will assume error was preserved and address the merits of Dizdarevic's claim.
Voir dire was not reported. The hearing on Dizdarevic's motion for a new trial was held forty-two days after the conclusion of the trial. At the hearing, both Rickert's attorney and the court had difficulty recalling the details of voir dire. Dizdarevic's own attorney, while alleging four jurors admitted prejudice against his client, was not able to identify any of those jurors by name. The court did eventually identify one potential juror who had initially acknowledged prejudice against Dizdarevic. Dizdarevic argues that the four jurors merely promised to try to set aside their prejudice, and that promise is not sufficient to guarantee a fair trial. He argues they should have been removed for cause by the district court. However, even if these jurors did express an inability to render a fair verdict, which is far from clear, Dizdarevic has failed to show he was substantially prejudiced. The one identified juror did not sit on the jury, and we simply do not know if the other three unidentified jurors were on the jury or if they were removed by preemptory challenge. Because he has not shown that the other three allegedly biased jurors were on the final panel, Dizdarevic has not demonstrated he suffered substantial prejudice warranting a new trial. State v. Neuendorf, 509 N.W.2d 743, 746 (Iowa 1993).
Dizdarevic also argues the district court erred by failing to grant his motion for a new trial because the verdict rendered by the jury failed to effectuate substantial justice between the parties and was contrary to law. Dizdarevic contends Rickert's own testimony that she did not see Dizdarevic before her car collided with him establishes her negligence. Thus, he argues, the jury's verdict for Rickert is clearly contrary to law. The evidence as to how the accident occurred and which part of Rickert's car collided with Dizdarevic's body does not establish any particular set of facts with certainty. Questions of negligence, when evidence is in conflict, are properly left for the jury. Iowa R.App.P. 6.14(6)( j). In this case, the issue of Rickert's negligence was clearly for the jury. We find no abuse of discretion in the district court's denial of Dizdarevic's motion for a new trial and therefore affirm.