No. 1-072 / 00-0073.Court of Appeals of Iowa.
Filed June 13, 2001.
Appeal from the Iowa District court for Jackson County, MARK J. SMITH, Judge.
Defendant-Appellee appeals the amount of the district court judgment awarded Marlene Yarolem on her personal injury claim.AFFIRMED.
James D. Hoffman of James D. Hoffman, P.C., Davenport, for appellant.
Davin C. Curtiss of O’Connor Thomas, P.C., Dubuque, for appellees.
Considered by HABHAB, S.J., C. PETERSON. S.J. and HONSELL, S.J.[*]
HONSELL, S.J.
The district court entered judgment, following a trial to the court, for Marlene Yarolem and against defendant in the amount of $63,390.09. Defendant appeals asserting that: the award was excessive while conceding the amounts of $12,500.00 for past pain and suffering and most of the $4,487.61 awarded for past medical expenses, both of which were included in the above total were not excessive.
I. Background Facts and Proceedings.
On December 24, 1996, Marlene was injured when she fell in the parking area of defendant’s premises. During the early morning hours of the 24th snow and freezing rain had fallen in Maquoketa where defendant’s store is located. Her fall took place as she exited from the passenger’s side of the pick-up truck her husband was driving to pay for the gasoline they just purchased.
At the hospital emergency room she was treated for injuries to her back and ribs. She experienced pain and also difficulty breathing and moving her left arm. She was hospitalized for five days. She experienced pain and suffering while in the hospital and after discharge. She was clinically diagnosed as having suffered rib fractures. Evidence was introduced at trial leading the trial court to conclude, “the Court has no difficulty in finding that the injury which Marlene currently complains that being to shoulder and upper-left back area was caused by the slip and fall incident. This pain continues and is permanent in nature.”
Plaintiffs’ petition claiming defendant was negligent was filed July 1, 1998. The case was tried on November 29, 1999. The court’s decision was filed December 10, 1999. A 179(b) motion was filed December 20, 1999. The motion asserted that the court erred in its determination of liability. It did not claim that the court erred in any of its decisions concerning damages. On January 3, 2000, the court denied the motion indicating that the facts and circumstances in the present case are not like those in the cited case. No other motions were filed prior to the notice of appeal, which was filed on January 10, 2000.
The issues raised on appeal concern damages, specifically: plaintiff seeks a new trial on damages or a requirement that remittitur in some amount ordered by the appellate court be accepted in order to avoid the new trial on damages.
II. Standard of Review.
A party on appeal may challenge the sufficiency of the evidence to sustain any finding without having objected to it by such motion or otherwise. Iowa R. Civ. P. 179(b). Findings of fact in jury-waived cases shall have the effect of a special verdict and sufficiency of the evidence is reviewed for correction of error at law. Iowa R. App. P. 4.
Questions not presented to and not passed on by the trial court cannot be raised or reviewed on appeal. Shill v. Careage Corp., 353 N.W.2d 416, 420 (Iowa 1984). An appellate court will not address an argument that the district court did not have an opportunity to consider. Vincent v. Four M. Paper Corp., 589 N.W.2d 55, 64 (Iowa 1999). Likewise the appellate court will not review an issue which was not presented to the trial court In re Marriage of Gulsvig, 498 N.W.2d 725, 727 (Iowa 1993).
III. The merits.
This case is very similar to Gorden v. Carey, 603 N.W.2d 588, (Iowa 1999) which provides as follows:
This appeal follows a jury verdict on Jeanie Gorden’s negligence action based on injuries suffered in an automobile accident in which her automobile was struck by a car driven by defendant Mitchell Carey and owned by his mother, defendant Joann Kamber. The jury awarded Gorden $1350 for past physical and mental pain and suffering and $1350 for past loss of the function of the body. The jury assessed Gorden thirty-five percent comparative fault and the court reduced the damages accordingly. Gorden appeals contending generally the damages awarded were inadequate. She argues that a new trial on the issue of damages should have been granted.
Gorden makes this contention for the first time on appeal. She made no motion for new trial based on the alleged inadequacy of damages following the trial and did not seek additur. Nor did she in any other manner alert the trial court to her concern about the amount of damages awarded. We find Gorden has failed to preserve this issue for our review. See4 C.J.S. Appeal and Error § 224 (1993) (a motion for new trial is generally required to preserve a claim that the damages awarded were excessive or inadequate) Christiansen v. Roddy, 186 Cal.App.3d 780, 789, 231 Cal.Rptr. 72, 78 (Dist. Ct. App. 1986).
Iowa Rule of Civil Procedure 244 provides that the proper method for challenging the adequacy of damages is through a motion for new trial. In ruling on motions for new trial, the trial court has broad, but not unlimited, discretion in determining whether the verdict effectuates substantial justice between the parties Jackson v. Roger, 507 N.W.2d 585, 589 (Iowa Ct. App. 1993). We then review the trial court’s ruling on an abuse of discretion standard. Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 891 (Iowa 1996). Without having the benefit of a motion for new trial and a ruling thereon, there is nothing from which we can review the trial court’s use of discretion. Requiring such a motion to be made gives the trial court, which had the “benefit of seeing and hearing witnesses, observing the jury and having before it all incidents of the trial,” the initial decision of whether it should interfere with the jury’s verdict. See id.; see also Stewart v. Equitable Mut. Life Ass’n, 110 Iowa 528, 530, 81 N.W. 782, 782 (1900) (“The purpose of a motion for a new trial is to bring before the court errors which, without it, would not be called to its attention.”).
Even if error had been preserved, there is substantial evidence in the record to support the jury’s damage awards and we will not disturb them by granting the plaintiff a new trial. See Kaiser v. Stathas, 263 N.W.2d 522, 525-26 (Iowa 1978). The amount of damages awarded is peculiarly a jury, not a court, function. See Yoch v. City of Cedar Rapids, 353 N.W.2d 95, 98 (Iowa Ct. App. 1984). The jury’s verdict should not be set aside or altered unless the plaintiff proves the verdict: (1) is flagrantly excessive or inadequate; or (2) is so out of reason as to shock the conscience or sense of justice; or (3) raises a presumption it is the result of passion, prejudice or other ulterior motive; or (4) is lacking in evidential support. Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 659 (Iowa 1969). Gorden has not implicated any of these concerns.
Gorden, 603 N.W.2d at 589-90 (footnote omitted.)
The record submitted to us reflects that there is substantial evidence to support the trial court’s findings of fact concerning damages and defendant did not set forth in any motion provided for under Division X, PROCEEDINGS AFTER JUDGMENT, of the Iowa Rules of Civil Procedure a request for a new trial on damages or remittitur. Since these questions were not presented to the trial court, we cannot consider them on appeal.
AFFIRMED.