Jennifer Miller v. National Property Management Corporation and Schooler Enterprises, L.P., D/B/A Scotchview Manor Apartments

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0972
                              Filed August 16, 2017


JENNIFER MILLER,
     Plaintiff-Appellant,

vs.

NATIONAL PROPERTY MANAGEMENT CORPORATION and SCHOOLER
ENTERPRISES, L.P., d/b/a SCOTCHVIEW MANOR APARTMENTS,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Randy V. Hefner,

Judge.



      Jennifer Miller appeals the district court’s denial of relief from a violation of

a motion in limine. AFFIRMED.




      S.P. DeVolder of The DeVolder Law Firm, Norwalk, for appellant.

      J. Campbell Helton of Helton Law Firm P.L.L.C., Des Moines, for

appellees.




      Heard by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

          Appellant Jennifer Miller appeals the district court’s denial of relief from a

violation of a motion in limine regarding Miller’s prior drug use. We find error was

not preserved and affirm the district court.

          I. Background Facts and Proceedings.

          Jennifer Miller was a tenant at Scotchview Manor Apartments, owned by

Schooler Enterprises, L.P. (Schooler), and managed by National Property

Management Corporation (National).              Miller sued Schooler and National for

breach of duty to maintain habitable premises and other negligence based

claims. On March 7, 2016, the district court granted a motion in limine regarding

“evidence of prior criminal history.”1 When granting the motion the court said, “I

think, as a preliminary matter, until I hear what these experts have to say, I’m

going to grant the motion to not refer to marijuana use during opening or voir

dire.” The court further explained, “Before we taint this jury panel, I want to know

what these experts are going to say about the unique hazard associated with

marijuana use to your lungs.”

          The trial was held May 3-6, 2016. During the trial, Schooler and National

cross-examined Miller’s physician on the effect drugs can have on the body:

          Q: Smoking meth would introduce toxins into the body, wouldn’t it?
          A: That’s right.
          Q: Smoking marijuana would cause toxins into the body, wouldn’t
          it? A: Yes.
          Q: Smoking pot would contribute to upper respiratory problems,
          wouldn’t it? A. I don’t know for sure . . . .
          Q: And if someone purchased marijuana on the street, that
          wouldn’t be a regulated drug [like cigarettes], right? A: That’s true.


1
    Miller had a drug charge relating to the possession of prescription drugs.
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       Q: And do you know that some unscrupulous drug dealers might
       put something into their drugs to make them more addictive, right?
       A: In the same way food companies do too.

Miller did not object to the testimony at the time of trial.        The district court

excused the jury near the end of the physician’s testimony, stating the defense

had not violated the motion in limine, but the rest of the testimony would first be

heard without the jury.

       The district court told the parties, “I’m bothered by suggesting to this jury

through cross-examination or otherwise that Ms. Miller is a meth user or uses

marijuana, contrary to my previous ruling.” The district court agreed defense

counsel had not violated the original motion in limine but expanded the motion in

limine to include “any reference to illegal drugs unless there’s a foundation

established sooner, before that reference.” It reasoned the defendants could

make the same points by using Miller’s history of smoking cigarettes to prove the

same negative health effects without raising the issue of illegal drugs. However,

the district court stated it would hear any testimony that showed a causal effect

between the use of marijuana and health effects and rule on it after it heard the

evidence. At this time, Miller moved to strike the previous questions.

              MR. SPRINGER: And, in light of your ruling, I would like to
       make a motion either to strike some of the questions that were
       asked, or—because of the innuendos—or an instruction to the jury,
       something regarding the fact that there was really no purpose. I let
       it go because he didn’t cross that line, but there is definitely an
       innuendo here that there was marijuana brought up, there was
       meth brought up.
              THE COURT: Well, in it—during that there was no
       objections, so I’m not going to strike anything that's been said, any
       testimony that’s been given up to this point. In terms of an
       instruction, I’ll deal with that at the end of the trial when I know what
       all the evidence, including what Mr. Belton’s experts are going to
       say.
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       The jury returned a verdict in favor of Miller.      The verdict form stated

Schooler and National were at fault and caused Miller’s damages. However, the

jury also found Miller was at fault for her failure to move out of the apartment, and

the jury assigned Miller eighty percent fault and awarded her no damages. Miller

now appeals.

       II. Standard of Review.

       Evidentiary rulings by a trial court are reviewed for an abuse of discretion.

State v. Tyler, 867 N.W.2d 136, 152 (Iowa 2015); State v. Elliott, 806 N.W.2d

660, 667 (Iowa 2011). “An abuse of discretion occurs ‘when the district court

exercises its discretion on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.’” State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014)

(quoting Rowedder v. Anderson, 814 N.W.2d 585, 589 (Iowa 2012)).

       III. Error Preservation.

       Miller claims error was preserved by the original motion in limine.

Schooler and National claim Miller did not raise the issue “with sufficient

specificity to alert the court to the claimed error.”     See Thomas A. Mayes &

Anuradha    Vaitheswaran,    Error Preservation      in   Civil   Appeals   in     Iowa:

Perspectives on Present Practice, 55 Drake L. Rev. 39, 52 (2006).                “It is a

fundamental doctrine of appellate review that issues must ordinarily be both

raised and decided by the district court before we will decide them on appeal.”

Bank of Am., N.A. v. Schulte, 843 N.W.2d 876, 883 (Iowa 2014) (citation

omitted).

       Ordinarily, error claimed in a court’s ruling on a motion in limine is
       waived unless a timely objection is made when the evidence is
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      offered at trial. However, “where a motion in limine is resolved in
      such a way it is beyond question whether or not the challenged
      evidence will be admitted during trial, there is no reason to voice
      objection at such time during trial. In such a situation, the decision
      on the motion has the effect of a ruling.”

State v. Alberts, 722 N.W.2d 402, 406 (Iowa 2006) (quoting State v. Miller, 229

N.W.2d 762, 768 (Iowa 1975)).

      Miller argues the motion in limine was resolved “beyond question” and the

court had ruled the challenged evidence would not be admitted at trial. See

Miller, 229 N.W.2d at 768. But, when granting the original motion in limine, the

court stated, “[A]s a preliminary matter, until I hear what these experts are going

to say, I’m going to grant the motion to not refer to marijuana during opening or

voir dire. . . .” (emphasis added). Our supreme court has held if the motion in

limine does not close an avenue of inquiry but only requires further permission

from the court to present the evidence, a party must object to preserve the error

for appellate review.   Johnson v. Interstate Power Co, 481 N.W.2d 310, 317

(Iowa 1992). The district court did not outright bar the discussion of drugs, but

rather required the defense to show what they would offer in evidence before the

jury could hear the testimony. The district court did not resolve the issue of drug

related evidence “beyond question” and so Miller was required to object to

preserve error. See Miller, 229 N.W.2d at 768. Miller did not object, therefore,

error was not preserved. See Alberts, 722 N.W.2d at 406.

      AFFIRMED.