Brooks v. Holtz

• Decision Date: 02 April 2003
• Docket Number: No. 00-2012.,00-2012.
• Citation: 661 N.W.2d 526
• Parties: Randy W. BROOKS and Lori L. Brooks, Appellants, v. Bob HOLTZ d/b/a Holtz Construction, and Lester Building Products, Appellees.
• Court: Iowa Supreme Court

661 N.W.2d 526

Randy W. BROOKS and Lori L. Brooks, Appellants, v. Bob HOLTZ d/b/a Holtz Construction, and Lester Building Products, Appellees.

No. 00-2012.

Supreme Court of Iowa.

April 2, 2003.

Rehearing Denied May 27, 2003.

Joseph J. Bitter of Bitter Law Offices, Dubuque, for appellants.

David L. Riley of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellee Bob Holtz d/b/a Holtz Construction.

Guy R. Cook and Donna R. Miller of Grefe & Sidney, PLC, Des Moines, for appellee Lester Building Products.

TERNUS, Justice.

The appellants, Randy Brooks and Lori Brooks, appeal an adverse jury verdict on their personal injury claim, asserting error in the trial court's ruling on the admissibility of an exhibit and an abuse of discretion in the court's refusal to allow the jury to take a videotape exhibit to the jury room during its deliberations. The court of appeals affirmed the judgment in favor of the appellees, Bob Holtz d/b/a Holtz Construction and Lester Building Products, concluding the plaintiffs had not preserved error on their evidentiary objection and finding no abuse of discretion in the court's decision to withhold the videotape from the jury.

This court granted further review. Because we think error was preserved on the plaintiffs' challenge to the trial court's evidentiary ruling, we vacate the court of appeals decision. Upon our examination of the record, however, we find no reversible error in the trial court's rulings and so affirm the judgment of the district court in favor of the defendants.

I. Background Facts and Proceedings.

Randy Brooks was injured when he fell from the rafters of his detached garage while installing insulation. At the time of his fall he was sitting on a plank he had placed across two two-by-four rafters. Brooks claimed that one of the two-by-fours had saw cuts in it that caused it to break under the weight of the plank and his body.

A few days after the accident, Brooks' brother and son videotaped the scene of Brooks' fall. This videotape shows a broken two-by-four hanging from the rafters and the other section of the two-by-four on the floor underneath a plank. It also shows a saw cut partially through the broken two-by-four at the site of the break.

Brooks and his wife brought suit against Lester Building Products, who had designed the garage and supplied the materials, and Bob Holtz, the contractor who built the structure. The case proceeded to a jury trial on claims of negligence and strict liability. The jury returned a verdict in favor of the defendants, and the trial court overruled the plaintiffs' posttrial motions.

The plaintiffs' subsequent appeal was transferred to the court of appeals. That court affirmed the district court judgment, and this court then granted the plaintiffs' petition for further review.

II. Issues.

Although the plaintiffs appealed on several grounds, they address only three issues in their request for further review. First, they claim the district court erred in excluding from evidence a letter signed by Terry Brady, a witness called by the plaintiffs. In a related argument, the plaintiffs claim error in the trial court's refusal to allow their attorney to refer to the letter in his cross-examination of this witness. The final complaint made to this court concerns the trial court's order that the videotape exhibit would not be made available to the jurors during their deliberations.

III. Error Regarding Signed Letter.

A. Trial court proceedings. The plaintiffs called as a witness Terry Brady, who was a member of the first responders team that answered Brooks' emergency call for help. Brady testified that, before he left the site, he tried to determine how far Brooks had fallen so this information could be included in his report. Brady stated he saw a plank lying on the floor and then looked up to see how high the rafters were. He testified he did not see any two-by-fours on the floor or a broken stub of a two-by-four hanging in the air. He did, however, see a small crack and a very small indentation (although he said this may have been an "optical illusion") in a two-by-four rafter located above the fallen plank. Brady denied seeing any cuts on the underside of this two-by-four.

The plaintiffs' attorney attempted to question Brady about statements attributed to him in a letter prepared by plaintiffs' counsel. Apparently, a year prior to trial Brady visited with Brooks and his attorney at the garage where Brooks fell. Later, Brooks' attorney wrote a letter to opposing counsel in which he summarized the support for his clients' case. Brooks' attorney stated that Brady said "the place he [Brady] looked at shortly after he first responded was closer to the back of the garage, not at the front of the garage where [Brooks] fell," and that Brady would "confirm that when he looked up after entering the garage shortly after [Brooks'] injury that he was looking at a different place in the garage than the place where [Brooks] was situated when he fell." A copy of this letter was sent to Brady, who signed an acknowledgement at the end of the letter that he had "received a copy of the enclosed letter and agree[d] with the facts set forth therein." At trial, Brady admitted he had returned to the garage in the company of Brooks and his attorney and that, subsequent to this visit, he had received a letter from the plaintiffs' attorney. Brady also acknowledged that he had signed the letter.

The plaintiff's then sought to have the letter admitted into evidence for the limited purpose of impeachment. The defendants objected on several grounds: (1) the letter was hearsay; (2) the letter was not a "statement" of the witness; (3) nothing in the letter contradicted the witness's testimony; and (4) portions of the letter relating to settlement negotiations were inadmissible. In response, the plaintiffs agreed to redact any statements relating to settlement, including their counsel's commentary and argument in support of his clients' case.

Without specifying the basis for its decision, the court refused to admit the letter into evidence. The plaintiffs then made an offer of proof, after which the court renewed its ruling and denied the plaintiffs' additional request that they be allowed to refer to the letter for impeachment purposes during their questioning of Brady.

B. Court of appeals ruling. The plaintiffs assigned the trial court's ruling with respect to admission and use of the letter as a basis for reversal on appeal. The court of appeals did not reach the merits of this issue, however, because it held error was not preserved. This conclusion was based on the plaintiffs' failure to submit a redacted copy of the letter as part of their offer of proof. We disagree with the court of appeals' resolution of this issue and so discuss the question of error preservation before turning to the merits of the plaintiffs' alleged error.

C. Error preservation. Our rules of evidence provide that error may not be predicated on a ruling excluding evidence unless "the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked." Iowa R. Evid. 5.103(a)(2). We have said that an offer of proof is necessary for two reasons: (1) "to give the trial court a more adequate basis for its evidentiary ruling"; and (2) "to make a meaningful record for appellate review." State v. Ritchison, 223 N.W.2d 207, 212-13 (Iowa 1974); accord State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999)

. "[A] meaningful record for appellate review" exists when the court does not have to speculate on the evidence sought to be introduced. Ritchison, 223 N.W.2d at 212-13.

The letter at issue here presents a more complex evidentiary question than the typical exhibit because the portions of the letter addressing settlement were clearly inadmissible. See Iowa R. Evid. 5.408 (stating offers of compromise, as well as conduct and statements made during compromise negotiations, are generally inadmissible). In such a situation, where part of the evidence is admissible and part is not, "it is incumbent on the offeror, not the judge, to single out the admissible part." 1 John W. Strong, McCormick on Evidence § 51, at 219 (5th ed.1999) [hereinafter McCormick on Evidence]. "When counsel offers both good and bad together and the judge rejects the entire offer, the offeror may not complain on appeal." Id.

In evaluating the sufficiency of the offer of proof in this case, we examine whether the offer of proof made apparent what plaintiffs sought to have admitted. See Greene, 592 N.W.2d at 28

. Although most situations involving a writing that is only partly admissible will call for counsel to submit a redacted version of the challenged exhibit in order to fully inform the trial judge, and the appellate court, of the portions counsel seeks to introduce, we do not think that step was required here. That is because there was no disagreement between the parties that the portions of the letter discussing settlement would be omitted before the exhibit's admission into evidence. Furthermore, based on our review of the letter and the statements made by plaintiffs' counsel at trial, we think the trial court would have had no problem in identifying the portions of the letter plaintiffs' counsel sought to use as impeachment, as distinguished from the portions that would be redacted. Defendant Holtz concedes as much in his brief, wherein he states that "[i]t is clear" from the plaintiffs' offer of proof what the plaintiffs wanted to question Brady about in reference to the letter.

Under these circumstances, we do not think the failure of the plaintiffs to submit a redacted copy of the letter in its offer of proof caused any confusion or speculation by the trial court as to the offered evidence, nor would this omission require the reviewing court to speculate as to the evidence at issue. Accordingly, the offer of proof made in this case accomplished...