Emsud Pajazetovic v. Patrick Horst and Physiotherapy Associates, Inc. d/b/a Select Physical Therapy

IN THE COURT OF APPEALS OF IOWA

No. 22-1668
Filed June 21, 2023

EMSUD PAJAZETOVIC,
Plaintiff-Appellant,

vs.

PATRICK HORST and PHYSIOTHERAPY ASSOCIATES, INC. d/b/a SELECT
PHYSICAL THERAPY,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County,

Kellyann M. Lekar, Judge.

A plaintiff appeals damages awarded by a jury in a negligence action.

AFFIRMED.

Steve Hamilton and Molly M. Hamilton of Hamilton Law Firm, P.C., Clive,

for appellant.

Martha L. Shaff and Amanda M. Richards of Betty, Neuman & McMahon,

P.L.C., Davenport, for appellees.

Considered by Schumacher, P.J., and Chicchelly and Buller, JJ.
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SCHUMACHER, Presiding Judge.

Emsud Pajazetovic appeals the sum of damages a jury awarded in a

negligence action he brought against Patrick Horst and Physiotherapy Associates

Inc., doing business as Select Physical Therapy (together referred to as Horst),

following a jury trial on a negligence claim. Pajazetovic claims the award of

damages, which did not include reimbursement for lost wages, was inadequate

because of a question posed by Horst’s attorney who he claims injected bias based

on Pajazetovic’s ethnicity into the trial.1 But Pajazetovic did not challenge the

adequacy of the damages to the district court by filing a post-trial motion.

Therefore, error is not preserved. See Iowa R. Civ. P. 1.004(4) (noting that

following a jury trial, the proper avenue for challenging “excessive or inadequate

damages appearing to have been influenced by passion or prejudice” is a motion

for new trial); Gorden v. Carey, 603 N.W.2d 588, 589-90 (Iowa 1999) (same);

Smith Tr. of Neal E. Smith Revocable Tr. v. City of Pleasant Hill, No. 16-1442,

2018 WL 346243, at *1-2 (Iowa Ct. App. Jan. 10, 2018) (same).

Pajazetovic concedes that he did not comply with the error-preservation

rules. But he asserts the rule “is not always adhered to.” He cites Gorden for the

1 In Pajazetovic’s appellate brief, he frames the issue on appeal primarily as the
inadequacy of damages, asserting the improper questioning of his wife served as
the reason for those inadequate damages. In his reply brief, he claims the primary
issue on appeal is the improper questioning of his wife. To the extent he only
raises this as a free-standing claim in his reply brief, the matter is waived. See
Sun Valley Iowa Lake Ass’n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996)
(“Parties cannot assert an issue for the first time in a reply brief.”). Even if we were
to consider the claim, error is not preserved. After his objection to the question
was sustained, Pajazetovic did not move for a mistrial. Such a motion was
necessary to preserve error—without it, the district court had no reason to suspect
Pajazetovic wanted further relief. See, e.g., State v. Krogman, 804 N.W.2d 518,
526 (Iowa 2011).
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proposition that courts sometimes reach the merits of a claim despite a failure to

preserve error. 603 N.W.2d at 590. We reject this argument for two reasons.

First, to the extent the court in Gorden discussed the merits of the case, that

section of the opinion was dicta. Id.; see also Thomas A. Mayes & Anuradha

Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on Present

Practice, 55 Drake L. Rev. 39, 72 (2006) (describing how, despite being legally

unnecessary, courts sometimes “reason in the alternative” by reaching the merits

of a claim when error is not preserved).

Second, and more importantly, ignoring our error-preservation rules would

require us to create a novel standard of review for claims challenging a jury’s

decision on damages. As the court in Gorden described,

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.

603 N.W.2d at 590 (emphasis added). Given the lack of a motion for new trial and

ruling on such a motion, we have nothing to review. We decline to overlook the

rules of error preservation.

AFFIRMED.