IN THE SUPREME COURT OF IOWA

No. 10–0483

Filed October 28, 2011

LEANNE LOEHR and

ED LOEHR,

Appellees,

vs.

CRAIG W. METTILLE, BROMO,

INC., d/b/a FIRST GENERAL

SERVICES OF EAST CENTRAL

IOWA, and MOBRO, INC., d/b/a

380 SERVICE MASTER and

SERVICEMASTER 380,

Appellants.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Linn County, Thomas L. 

Koehler, Judge.

Defendants appeal the district court’s grant of a new trial on

plaintiffs’ claims of defamation and wrongful debt collection. COURT OF 

APPEALS DECISION AFFIRMED; DISTRICT COURT JUDGMENT 

REVERSED AND REMANDED.

Joe H. Harris, Cedar Rapids, for appellants.

Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for 

appellees.
2

MANSFIELD, Justice.

This dispute between a homeowner and a contractor presents the 

not uncommon scenario where a trial exhibit offered by a party turns out 

to be something other than the party claimed it to be. Here, the opposing 

party recognized the flaws in the exhibit before the case was submitted to 

the jury, but instead of alerting the court, decided to argue those flaws to 

the jury during the rebuttal stage of closing argument. After the jury 

returned verdicts, the opposing party moved for a new trial on some 

claims, alleging misconduct with respect to the exhibit. The district 

court granted the motion, and this appeal followed.

On our review, we conclude the district court did not lack 

authority to grant a new trial simply because the objection to the exhibit

could have been raised earlier and was not. However, considering all the 

circumstances, including the absence of real misconduct or prejudice 

and the opposing party’s decision to wait until rebuttal argument to 

bring forward its concerns, we find the district court abused its 

discretion in granting a new trial.

I. Background Facts and Proceedings.

Plaintiffs Leanne and Ed Loehr have a large family with ten 

children, including several foster children. On May 31, 2007, a secondfloor toilet in their home flooded, causing water to pour down through 

their house. The Loehrs contacted their insurance agent, who put them 

in touch with Joe Elert, an independent insurance adjuster working on 

behalf of the Loehrs’ insurance carrier EMC. Elert came to the house 

immediately and referred the Loehrs to two companies run by defendant 

Craig Mettille. The initial drying and cleanup was performed by 

defendant ServiceMaster, and defendant First General did the home 

repairs. The Loehrs signed a work authorization form with ServiceMaster 
3

on June 1, 2007, and a separate work authorization with First General 

on June 3, 2007.

Within a few days, ServiceMaster was able to get all the water out 

of the house. At trial, Ms. Loehr testified ServiceMaster did “a good job” 

and she had no issue with its services. Once ServiceMaster had finished 

its cleanup, it became First General’s responsibility to remove and 

replace the damaged flooring, carpet, drywall, trim, and other fixtures, as 

well as to repaint the house.

At the time of the flood, the Loehrs were scheduled to have their 

home inspected by the Department of Human Services in connection 

with their foster care license and were anxious to have the repairs 

completed. Due to the reconstruction process, the Loehrs needed to 

move out of the house at times. Although EMC reimbursed the Loehrs’ 

hotel and meal expenses and was willing to pay for alternative housing 

for the entire duration of the repair work, the Loehrs stayed in their

home most of the time. The Loehrs were nonetheless concerned about 

hazards in the home, such as exposed tacks and uncovered electrical 

outlets, and expressed those concerns to First General.

The reconstruction work was expected to take six weeks, and the 

Loehrs pushed hard to have First General meet that estimate. The 

specific scope of work to be performed was negotiated between Elert and 

First General and itemized in detail. The final supplemented estimate 

agreed to by the insurance company was $22,741.44.

Some of the initial work performed by First General did not meet

quality standards, and First General had to correct it. In other 

instances, First General redid its work without necessarily agreeing it 

was unsatisfactory. First General also performed some tasks that were

outside the agreed-upon scope of work. All of this led to project delays,
4

which frustrated the Loehrs. After several weeks, the tensions between 

the Loehrs and First General were mounting.

Payment for the work was also delayed. Initially, this delay was 

caused by the need for the first EMC insurance check to be endorsed by 

two different mortgage holders named as loss payees. Solon State Bank 

had originated the first mortgage but sold it to PHH Mortgage, a large 

New Jersey lender. Solon Bank also held a second mortgage on the 

home. The PHH sign-off took longer than usual which frustrated all 

parties, but especially Mettille who was waiting to be paid.

A ServiceMaster invoice for $6,503.89 was sent on June 19, 2007.1 

The first EMC insurance check in the amount of $21,938.89 to cover 

both cleanup and repair work was received by the Loehrs on June 20, 

2007, but had to be endorsed by both mortgage companies as loss 

payees. This process ended up taking approximately a month.

When Ms. Loehr expressed her dissatisfaction with the quality and 

pace of First General’s work, Mettille considered pulling out of the job. 

According to his testimony, his conditions for staying on the job were 

that a $15,000 progress payment would be made to First General and 

that the Loehrs would sign off on each stage of the project as it was 

completed. He also agreed to assign a new project manager to the Loehrs 

at their request.

At trial, Mettille claimed that he communicated these terms on 

June 29, 2007, to Elert, who then relayed them to the Loehrs, got their 

approval, and then reported that approval back to Mettille the same day. 

Mettille claimed this sequence of events was supported by an exhibit 

showing three cell phone calls he had with Elert around that timeframe—

 1This invoice was later reduced to $5,856.21.
5

an exhibit that became the basis for the Loehrs’ new trial motion and 

that we will discuss in more detail below.

The Loehrs denied ever receiving or approving Mettille’s terms. 

Elert, though, confirmed that Mettille had insisted on a progress 

payment and sign-offs by the Loehrs as each step was completed in order 

to remain on the job. Elert recalled this conversation with Mettille 

occurred some time on or after July 3. However, Elert did not remember 

calling Ms. Loehr and relaying Mettille’s terms to her.

Regardless, it is undisputed that from early July forward the 

Loehrs were asked to and did sign off on each stage of the project as it 

was completed.2 Also, on July 20, as soon as both mortgage companies 

approved release of funds, the Loehrs arranged for First General to be 

paid exactly $15,000 out of the $21,938.89 EMC check. The Loehrs 

directed most of the balance of that check, approximately $7000, to go to 

themselves. For his part, Mettille did not withdraw from the job and had 

the project manager replaced.

The Loehrs never directly paid ServiceMaster. Ms. Loehr testified 

at trial that she did not understand the difference between the two 

companies, and she believed part of the $15,000 was covering the 

ServiceMaster invoice.

Throughout July and August 2007, work and rework continued 

with Ms. Loehr signing off on each phase of the project as it was 

completed. However, on August 31, Ms. Loehr refused to sign a 

completion approval for the entire project and instead sent a lengthy list 

of items to Elert which she said had not been delivered. First General 

considered most of the items listed by Loehr either to have been 

 2Mettille testified his company had never demanded interim sign-offs from any 

customer before.
6

satisfactorily completed or else to be outside the scope of the work it had 

agreed to. It then credited the Loehrs’ account for the remaining items 

and issued a final invoice in the amount of $6,380.24 on September 6, 

2007. The Loehrs were still not satisfied, so they refused to allow Solon 

Bank to release funds from a second EMC insurance check in the 

amount of $6,912.34.3

The Loehrs asked Stephanie Mai, their mortgage loan officer at 

Solon Bank, to visit their home to inspect the work that had been done. 

She did so, and on October 2, 2007, sent a letter to First General 

itemizing a long list of problems she had seen during her inspection. Her 

letter concluded, “Solon State Bank will not endorse any further 

insurance checks to cover the construction job until we have verified that 

the complaints listed above have been remedied.” Mai’s observations 

were made without knowledge of what was actually covered by the scope 

of work agreed to by First General. Mai also was unaware that Ms. Loehr 

had signed off on specific phases of the work as it was performed. Mai 

did not know whether the problems she saw were outside the scope of 

the project or represented subsequent damage from postclaim water 

leaks.

Upon receiving Mai’s letter, Mettille called her to plead his case. 

Mettille urged that Ms. Loehr had approved the specific work items as 

they were completed and that the other items listed in Mai’s letter were 

outside the agreed project scope. Mettille was upset and later admitted

 3The $6,912.34 check was in addition to the earlier $21,938.89 check. The 

Loehrs, as noted, retained approximately $7000 from the $21,938.89 check and the 

$6,912.34 check was subsequently deposited in the Loehrs’ attorney’s trust account. 

Thus, at the time of trial, the Loehrs or their attorney was holding approximately 

$14,000 of funds from EMC that had not been paid to either First General or 

ServiceMaster. The jury ultimately found that the Loehrs did not owe First General 

anything but owed ServiceMaster $5,856.21.
7

that during the conversation he called the Loehrs “liars.” According to 

Mai, Mettille characterized the Loehrs as both “liars” and “dummies,” but 

did so only once. Mettille then faxed Mai the documentation supporting 

his claims and followed up with additional calls. Mai recalled that 

Mettille phoned her no more than four to six times in total. Mai testified 

that when Mettille became “a little bit more aggressive” in his calls, she 

asked the Loehrs’ attorney to send Mettille a letter requesting he stop 

calling her about receiving payment on the Loehrs’ account. Mettille still 

called her “a couple of times” after that.

On November 6, 2007, Mettille drove by the Loehr home. At that 

time, a friend of the Loehrs was visiting. The friend noticed Mettille’s car 

proceed along the street very slowly, turn around, and then proceed back 

very slowly while Mettille looked toward the house. The friend felt 

uncomfortable. When Ms. Loehr saw Mettille from her front door, she 

became very upset. Mettille admitted he drove by the Loehr home very 

slowly and scanned it, but maintained he was doing so because one of 

his new employees had told him about a payment dispute his former 

company had with the Loehrs over a retaining wall it had installed. 

Mettille said he wanted to view the condition of the wall. The employee’s 

testimony confirmed this claim.

On November 6, 2007, (the same day as the aforementioned 

incident at the home), the Loehrs filed suit against Mettille and his 

companies asserting claims for defamation and illegal collection 

practices4 and seeking actual and punitive damages. They also sought a 

declaratory judgment to determine their contractual rights including any 

amounts that might be owed to ServiceMaster or First General. Their 

 4The wrongful debt collection practices claim was based on Iowa Code section 

537.7013 (2007), part of the Iowa Consumer Credit Code.
8

petition alleged that Mettille “ha[d] engaged in a campaign of defamation 

and harassment against [the] Loehrs” by calling them “liars” and had 

“contacted other friends and acquaintances of [the] Loehrs and engaged 

in harassing and defamatory actions” that “constitute illegal collection 

practices, defamation and other tortious conduct.” First General and 

ServiceMaster answered, denied the Loehrs’ allegations of wrongful 

conduct, and counterclaimed for amounts due.

A four-day trial was held from May 4 through May 7, 2009, with 

twenty-one witnesses and nearly 70 exhibits. The jury ultimately 

rejected the plaintiffs’ claims of defamation and unfair collection 

practices. The jury awarded ServiceMaster $5,856.21 for its breach of 

contract counterclaim, while finding that First General had not proven its 

separate breach of contract counterclaim.

The plaintiffs filed a motion for new trial on May 21, 2009, arguing 

that Mettille committed misconduct by giving false testimony and 

fabricating an exhibit in order to support that testimony. The claimed 

misconduct related to the defendants’ Exhibit RR, which purported to 

show cell phone calls Mettille had with Elert during the June 27–29, 

2007 time period, and to Mettille’s related testimony. On the last day of 

trial, Mettille testified as follows:

A. . . . I believe I called Joe Elert—I believe he called 

me, left me a message, and his number would have come up 

on my cell phone. 

And then I returned Joe Elert’s call and informed him 

that we were not going to finish the Loehrs’.

. . . .

Q. Now, you described a conversation that you had 

with Joe Elert. Do you remember the date of that 

conversation? A. The first phone call—and I looked at my 
9

cell phone records because I was unclear—was on the 27th

of June.

Q. And you—you said you spoke to him several days 

later. What was that conversation? A. The two days after 

that I spoke with Mr. Elert on the 29th, it was around noon, 

and he asked me to reconsider, he would like for me to finish 

the project.

. . . .

A. . . . And at that point I told Joe Elert, I said, okay, 

Joe, we’ll finish the Loehrs’ house, but these are my 

conditions. My conditions were I need $15,000 up front or 

as soon as possible. . . . 

So I said, what we’ll do then, Joe, is we’ll have her sign 

off on the stage of construction before that she’s satisfied 

before we move on to the next stage. I don’t want to get to 

the end and have her not happy with the drywall, have her 

not be happy with the paint, and have a complete mess on 

our hands at the end of the project.

Q. What did Mr. Elert say when you said I want to use 

this sign-off stage by stage? A. He said let me contact the 

Loehrs and I’ll call you back.

Q. And did he call you back? A. He called—He called 

me back, got his number—I talk a lot on my cell phone, and 

his number was up on my cell phone, and I called Joe Elert 

back immediately and he said Leanne Loehr’s okay with that 

and you’re good to finish the job.

Q. Mr. Mettille, I’m handing you what’s been marked 

as Defendant’s Exhibit RR. Would you examine that?

. . . .

Q. Do you recognize that document? A. Yes. These 

are my cell phone records.

Q. Do the calls that you just related, do those phone 

calls appear on this statement? A. Yes, they do.

The Exhibit RR cell phone records were admitted following this 

testimony without objection. Mettille claimed that Exhibit RR reflected

the three calls he had with Elert. The Loehrs’ counsel had an 
10

opportunity to cross-examine Mettille regarding the exhibit, but did not 

challenge its authenticity or Mettille’s testimony with respect to it.

However, a close examination of the exhibit later showed it was 

comprised of pages 37, 13, and 59, in that order, culled from an eightyone page phone bill. Only one of the three pages actually represented 

calls to or from Mettille himself. Although all three pages said “Account 

Name: CRAIG METTILLE” at the top in clear type, in a less visible shaded 

area one could see a different employee mentioned on each page—

“Scott,” “Lonnie,” and “Craig” respectively—thus indicating that only the 

last page of the exhibit actually represented calls from Mettille’s personal 

cell phone.

The defendants’ counsel did not provide this exhibit to the 

plaintiffs until the day before it was offered, and it was not offered until 

the last morning of trial. The Loehrs’ counsel maintained he did not 

notice the exhibit was not what Mettille claimed it to be until after the 

close of evidence, during a lunch break before final arguments. At that 

point, counsel decided to make an issue of Exhibit RR during closing 

argument, although he did not do so until his rebuttal. Arguments were 

not transcribed, but the parties later stipulated as follows:

THE COURT: Any further record, Mr. Harris?

MR. HARRIS: . . . I would ask Mr. Riley to stipulate for 

the record that, in fact, during Plaintiffs’ rebuttal to the jury, 

the only issue that he argued to the jury was the alleged 

falsity of Exhibit RR and that it had been fabricated by the 

Defendants.

MR. RILEY: I don’t believe that was the only issue. I 

know that the rebuttal argument was brief. But I would 

stipulate that I did point out and discuss and show the 

reason why Exhibit RR was not what it purported to be and 

it was obviously a fabrication, but I don’t know that that’s 

the only thing I said.

. . . .
11

MR. RILEY: I would stipulate as I indicated, that I did 

discuss in my rebuttal argument the fact that Exhibit RR 

was not what Mr. Mettille claimed it to be, and I showed to 

the jury why it was not, based on the specifics in the detail 

showing it was three different person’s phones, that it was 

an outgoing call, took less than a minute. I discussed all of 

that in my rebuttal argument.

MR. HARRIS: I’ll accept that.

THE COURT: Is that a fair summation? That’s as I 

remember it, anyway.

MR. HARRIS: Accept that, your Honor.

A hearing on plaintiffs’ motion for new trial was held on January 6, 

2010. At that time, affidavits were received from Mettille and his office 

manager Jill Tyler, and a professional statement from Mettille’s attorney 

Joe Harris, with each claiming that the misleading exhibit was an 

innocent mistake and not a deliberate fabrication. Tyler and Mettille also 

testified in person, with Mettille ultimately admitting that the cell phone 

records showed only a single call of less than one minute made by him to 

Elert on June 29, 2007. This conflicted with his trial testimony that 

there were three calls between himself and Elert during the June 27–

June 29 time period.

On February 22, 2010, the district court granted the Loehrs’ 

request for a new trial under Iowa Rule of Civil Procedure 1.1004. The 

Loehrs did not request, and were not granted, a new trial on the breach 

of contract counterclaims. As their counsel stated:

I don’t believe it’s necessary to retry the Defendants’ claims 

against my clients because the jury had full opportunity to 

consider them, made decisions as to them, and it’s not like 

we were—our claims—We were not able to make our full case 

because we didn’t realize what they had done or this exhibit 

or that he had contrived the testimony, but I don’t think it 

would adversely affect them, because it’s us that were 

deprived the opportunity to present evidence going to his 

credibility, so I don’t think it’s necessary to retry the 

Defendants’ counterclaims.
12

In granting a new trial, the district court reasoned as follows:

Contrary to the assertions of Mr. Mettille, the Court is 

convinced that he did deliberately attempt to mislead the 

jury, and his testimony with regard to other issues weighs 

heavily on his credibility. The Court agrees with the 

Plaintiffs that, rather than a “mistake,” Mr. Mettille’s 

“evidence” was clearly contrived and he certainly was not 

acting in good faith. This misconduct was prejudicial to 

Plaintiffs. The Plaintiffs should be granted a new trial on 

their original causes of action.

On March 23, 2010, the defendants filed a timely notice of appeal. 

We transferred the case to the court of appeals. That court reversed the 

grant of new trial on the ground that the Loehrs had failed to preserve 

error by not objecting to Exhibit RR before the case was submitted to the 

jury. As the court of appeals explained, the Loehrs’ counsel “had more 

than one opportunity to raise the possible problems with the exhibit 

before the case was submitted to the jury, but did not do so.” The court 

cited Iowa Rule of Civil Procedure 1.920 as one mechanism he might 

have used.5 The court also cited Schmitt v. Jenkins Truck Lines, Inc. for 

the proposition that counsel cannot “after an unfavorable verdict, take 

advantage of an error which he could and should but did not call to the 

court’s attention.” 170 N.W.2d 632, 660 (Iowa 1969). We granted 

further review.

II. Standard of Review.

“The scope of our review of a district court’s ruling on a motion for 

new trial depends on the grounds raised in the motion.” Channon v. 

United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001). If the motion 

is based on a discretionary ground such as misconduct it is reviewed for 

an abuse of discretion. See Roling v. Daily, 596 N.W.2d 72, 76 (Iowa 

 5This rule provides, “At any time before final submission, the court may allow 

any party to offer further testimony to correct an evident oversight or mistake, imposing 

such terms as it deems just.”
13

1999). “An abuse of discretion consists of a ruling which rests upon 

clearly untenable or unreasonable grounds.” Lawson v. Kurtzhals, 792 

N.W.2d 251, 258 (Iowa 2010). An “unreasonable” decision is one that is 

not based on substantial evidence. Channon, 629 N.W.2d at 859. “In 

ruling upon motions for new trial, the district court has a broad but not 

unlimited discretion in determining whether the verdict effectuates 

substantial justice between the parties.” Iowa R. App. P. 6.904(3)(c). 

Also, we are “slower to interfere with the grant of a new trial than with its 

denial.” Id. r. 6.904(3)(d). However, unless a different result would have 

been probable in the absence of misconduct, a new trial is not 

warranted. Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa

1992).

III. Preservation of Error.

The court of appeals reversed the district court’s grant of a new 

trial because the Loehrs had failed to preserve error, citing Schmitt as 

authority and focusing on the following passage:

[I]t is axiomatic that counsel for a party cannot sit idly by 

and not attempt to direct the attention of the trial court to a 

possible limitation or restriction on the use of evidence and 

then, after an unfavorable verdict, take advantage of an error 

which he could and should but did not call to the court’s 

attention.

170 N.W.2d at 660 (internal quotation marks omitted).

The court of appeals interpreted this statement as an absolute 

prohibition on the granting of a retrial based on the admission of 

improper evidence when the moving party was aware of the problem and 

failed to object to the evidence before the case was submitted to the jury. 

Applying this standard to the Loehrs’ misconduct claim against Mettille, 

that court found that because the Loehrs had discovered the error before 

jury submission, they were forbidden from raising the matter after 
14

receiving an unfavorable verdict. See Iowa R. Civ. P. 1.920 (allowing 

further testimony to be offered at any time before final submission to 

correct an evident oversight or mistake).

Our decision in Schmitt should not be read so absolutely. Schmitt

does not prohibit a judge from granting a new trial in every case where 

the ground for new trial was not raised at the first available opportunity 

during trial. Although a party loses its right to a new trial if it neglects 

timely error preservation, this does not necessarily bar a district court 

from exercising its discretion to grant a new trial if a ground set forth in 

rule 1.1004 has been met. In Schmitt we also recognized:

[N]otwithstanding counsel’s failure to make a record which 

would authorize this court to reverse the judgment on 

appeal, the trial court in its consideration of a motion for 

new trial is not limited by the status of the record in this 

respect when it feels the verdict fails to administer 

substantial justice . . . . [T]he trial court has the inherent 

right to grant another trial where substantial justice has not 

been effectuated.

Schmitt, 170 N.W.2d at 660.

The trial court is not bound by the record in the same way that the 

appellate courts are. Id. Therefore, it is not invariably an abuse of 

discretion for a trial judge to grant a motion for new trial based on a 

matter that could have been raised earlier, but was not. In Schmitt, we 

declared that “inaction on counsel’s part weighs heavily in evaluating the 

right to a new trial.” Id. (internal quotation marks omitted). Although it 

weighs heavily, it is not dispositive. It is a weighty factor to be 

considered, but it potentially can be outweighed by other considerations.

If we were considering an appeal from a denial of the Loehrs’

motion for new trial, then error would not have been preserved. 

However, the issue here is the jurisdiction of a trial judge to exercise his 

or her discretion under rule 1.1004 despite the lack of a prior objection. 
15

We hold that under Schmitt the district court could consider the Loehrs’ 

new trial request.

Historically, this has been the rule in Iowa. In Farr v. Fuller, 8 

Iowa 347 (Iowa 1859), we declined to reverse a trial court’s decision to 

order a new trial because of an error in jury instructions, 

notwithstanding the plaintiff’s failure to make a timely objection to those 

instructions. We said:

It was perfectly competent for the district court, upon its 

attention being called to the motion, to order a new trial, 

when satisfied that an error had been committed to the 

prejudice of the plaintiff, whether exceptions were taken to 

the action of the court at the time, or not.

Farr, 8 Iowa at 348.

Iowa Rule of Civil Procedure 1.924 now makes clear that, with 

respect to jury instructions, untimely objections may not be considered. 

See Olson v. Sumpter, 728 N.W.2d 844, 849–50 (Iowa 2007) (finding 

district court could not order new trial based on asserted instructional 

error that was not timely raised before closing arguments). Specifically, 

rule 1.924 provides that “all objections” must be made during the 

instruction conference, and “[n]o other grounds or objections shall be 

asserted thereafter.” The 1943 Official Comment on rule 196 (rule 

1.924’s predecessor) indicates that this was a “great change in the rule.” 

Yet in other contexts, we think Farr remains good law, as Schmitt

illustrates.

In fact, we have said repeatedly that district courts have inherent 

authority to grant new trials. See, e.g., Estate of Hagedorn ex rel. 

Hagedorn v. Peterson, 690 N.W.2d 84, 87 (Iowa 2004); Wilson v. IBP, Inc., 

558 N.W.2d 132, 144 (Iowa 1996). In Lehigh Clay Products, Ltd. v. Iowa 

Department of Transportation, we noted that “Iowa has long recognized 
16

the trial court’s inherent power to grant a new trial where the verdict fails 

to administer substantial justice” and that “[t]he trial court is not limited 

to the grounds for granting a new trial specified in Iowa Rule of Civil 

Procedure 244 [now rule 1.1004].” 512 N.W.2d 541, 543–44 (Iowa 1994)

(citations omitted). In Lehigh Clay Products, the district court cited four 

reasons why it believed the verdict had not achieved substantial justice. 

Id. at 543. Although we ultimately reversed the grant of new trial as an 

abuse of discretion, we did not suggest that the district court lacked the 

authority to grant a new trial unless the grounds had been raised during 

trial. For example, one ground cited by the district court was that “the 

DOT’s numerous objections likely prejudiced the jury [against the DOT]” 

and another was that “the propensity of the DOT’s expert witness to 

anxiety attacks and his lack of testimonial experience diminished his 

persuasiveness.” Id. Presumably, DOT did not object at trial to its own 

objections or to the lack of testimonial experience of its own expert. Yet 

we rejected these grounds for new trial on their merits (or lack thereof), 

not because DOT failed to raise them during trial. Id. at 546.

It needs to be emphasized, of course, that failure to make a 

contemporaneous objection will preclude a party from raising the matter 

on appeal if the motion for new trial is denied. See, e.g., Rudolph v. Iowa 

Methodist Med. Ctr., 293 N.W.2d 550, 555 (Iowa 1980) (noting “the 

general rule that parties are not permitted to delay objections until it is 

too late for the problem to be corrected”).

IV. Substantive Merits.

We now turn to the substantive merits of the trial court’s decision 

to grant a new trial, to determine whether it abused its discretion.

A. Rule 1.1004(2). Iowa Rule of Civil Procedure 1.1004(2) 

authorizes the district court to grant a new trial when there has been 
17

“[m]isconduct of the . . . prevailing party” that “materially affected 

movant’s substantial rights.” Thus, while the trial court has broad 

discretion, there must have been misconduct, and it must have been 

prejudicial. See Berg v. Des Moines Gen. Hosp. Co., 456 N.W.2d 173, 178 

(Iowa 1990); McConnell v. Aluminum Co. of Am., 367 N.W.2d 245, 248

(Iowa 1985). If the district court granted a new trial on “clearly 

untenable” grounds, we should reverse. Lehigh Clay Prods., 512 N.W.2d 

at 544 (internal quotation marks omitted).

B. Misconduct. The district judge found that Mettille “did 

deliberately attempt to mislead the jury, and his testimony with regard to 

other issues weighs heavily on his credibility.” We conclude this finding 

of a deliberate attempt to mislead is not supported by the record. The 

record indicates that Exhibit RR was the product of careless reading and 

wishful thinking rather than intentional fraud.

Jill Tyler, the office manager for ServiceMaster and First General, 

testified at the posttrial hearing that she was asked by Mettille to obtain

the records from the companies’ cell phone provider for all calls Mettille

had made on his personal cell phone to Elert’s phone number during 

June and July 2007. Tyler received a detailed statement with multiple 

sheets from the cell phone provider. From those records, Tyler retrieved 

three pages of calls to Elert. She provided those three pages to Mettille

and they became Exhibit RR.

Tyler explained that after closing arguments, Mettille called her 

and was “quite angry.” He questioned whether she had given him what

he had asked for. Tyler said this was the first time she noticed the 

shaded areas on each page where it identified the specific employee of 

Mettille’s companies whose cell phone usage was reflected on that page 

of the bill.
18

Tyler’s oversight was not hers alone. Mettille’s counsel likewise

submitted a professional statement that he had previously believed 

Exhibit RR contained only cell phone calls between Mettille and Elert. 

He did not realize otherwise until the Loehrs’ counsel made his rebuttal 

argument.

Mettille also testified at the posttrial hearing that he previously 

believed the three pages of Exhibit RR were records of only his personal 

calls. Mettille, like his counsel and Tyler, said he did not realize 

otherwise until he heard the rebuttal argument of the Loehrs’ counsel. 

Mettille confirmed Tyler’s testimony regarding his original instructions to 

her, as well as the heated conversation between them that occurred after 

closing arguments. The Loehrs’ counsel cross-examined Mettille at some 

length at the posttrial hearing, but did not try to challenge Mettille’s 

contention that there had been an innocent misunderstanding regarding

the exhibit. And the Loehrs’ counsel himself conceded he did not notice 

the problem with Exhibit RR until the lunch break before closing 

arguments.

In short, we do not share the district court’s view that Mettille 

“contrived” Exhibit RR to mislead the jury. This would require disbelief 

not only of Mettille’s but also Tyler’s testimony. The error that occurred

was understandable. Mettille’s name appeared prominently at the top of 

the each page of the cell phone records. It is significant that no one else 

noticed the different names in the shaded areas of the three pages until 

the Loehrs’ counsel made this discovery during the recess before the case 

was submitted to the jury. Furthermore, if one were going to fabricate an 

exhibit purporting to show Mettille’s personal calls, it seems implausible 

that the names of the other callers would be left on the exhibit, albeit in 

shaded areas.
19

C. Prejudice. Even if there had been misconduct, we cannot 

agree it prejudiced the Loehrs. Although Mettille’s testimony linking 

Exhibit RR to specific alleged conversations with Elert was clearly 

incorrect, the circumstantial evidence indicates that the Loehrs and 

Mettille did make some kind of a deal. Elert confirmed that Mettille 

threatened to pull off the job and demanded a progress payment and 

sign-offs as a condition of staying. Elert did not recall whether the 

Loehrs assented to this proposal, and the Loehrs denied assenting to it, 

but the facts are that Ms. Loehr did make a $15,000 payment; she did 

thereafter sign off on phases of the project as they were completed; and 

the project manager was replaced. What bolstered Mettille’s side of the 

story was not the phone records, since no one disputed that Elert and 

Mettille had conversations, but instead how the parties behaved.

Potentially, the cell phone records, even if they had been what 

Mettille asserted them to be, could have detracted from Mettille’s 

credibility. Based on Elert’s logs, Mettille had threatened to leave the job 

in early July, not in late June. In his deposition testimony, before 

Mettille became aware of the contents of the cell phone records, Mettille 

had testified that he could only “guess” he spoke with Elert some time 

before July 9. When Mettille later used Exhibit RR to fill in this gap in 

his recollection, he created a conflict between his testimony and Elert’s 

records. And, in any event, what mattered most for breach of contract

purposes was not whether the parties reached some kind of modus 

vivendi in late June or early July, but whether Mettille’s companies had 

performed suitable work that the Loehrs failed to pay for as promised.

Even more importantly, though, the Loehrs did not move for a new 

trial on the breach of contract counterclaims. They only sought a new 

trial on their defamation and wrongful debt collection claims, where the 
20

jury had found for Mettille. Exhibit RR had no direct bearing on those 

claims and was potentially relevant only to the extent (noted by the 

district court) that it might affect Mettille’s overall credibility.

Yet even if one discounted Mettille’s testimony entirely and 

accepted in full the testimony offered by the Loehrs and their other 

witnesses, the evidence in support of their two claims was fairly thin. 

The defamation evidence consisted of Mai’s (the loan officer’s) testimony 

that Mettille had once told her the Loehrs were “dummies and liars” in 

response to the Loehrs’ complaints to Mai about First General’s work and 

in an effort to get Mai to release the funds. The wrongful debt collection 

practices claim arose primarily from the single incident where Mettille 

drove slowly down the street in front of the Loehrs’ home.6 We have 

difficulty seeing how Exhibit RR could have affected the jury’s verdicts on 

these claims.

But most significant of all is the fact that the Loehrs’ counsel made 

an apparently tactical decision to use Exhibit RR as the centerpiece of 

his rebuttal closing argument. Although (as the court of appeals noted) 

counsel could have asked the court to reopen evidence under Rule 1.920, 

he instead waited until rebuttal argument to expose the problems with 

the exhibit, thereby assuring the flaws in the exhibit would be the last 

thing called to the jury’s attention and the other side would have no 

opportunity to respond. This is a strong indication that the Loehrs’ 

counsel did not believe the defective exhibit would be prejudicial, but 

instead beneficial, to his clients’ case. As we held in Schmitt, although 

previous “inaction on counsel’s part” does not deprive the district court 

of jurisdiction to grant a motion for new trial, it “weighs heavily in 

 6Mettille moved for a directed verdict at the close of evidence on the ground that 

section 537.7103 did not apply because the transactions with the Loehrs were not 

“consumer credit transactions” as defined in Iowa Code sections 537.1301(12)–(13). We 

do not reach this issue.
21

evaluating the right to a new trial.” 170 N.W.2d at 660 (internal 

quotation marks omitted).

The Loehrs’ approach, from all we can tell, was effective. First 

General recovered nothing on its claim for nonpayment; ServiceMaster 

was awarded $5,856.21, but neither this amount nor the quality of its 

work was disputed. As a result of the jury verdict, the Loehrs apparently 

were able to retain approximately $8000 in insurance proceeds that were 

intended to have gone to First General. Notably, the Loehrs did not seek 

a new trial on the breach of contract counterclaims, expressing 

satisfaction with this part of the trial outcome, instead seeking a new 

trial only on the defamation and debt collection practices claims as to 

which Exhibit RR was seemingly of little relevance.

For the foregoing reasons, even taking into account the district 

court’s broad discretion, we cannot affirm its decision to order a second 

trial on the Loehrs’ defamation and wrongful debt collection claims

against Mettille. Neither misconduct nor prejudice was shown, and if 

anything, it appears that the Loehrs’ counsel was able to exploit the 

defects in Mettille’s exhibit successfully. Therefore, the rule 1.1004(2) 

ground for new trial was “clearly untenable.” See Lehigh Clay Prods., 

512 N.W.2d at 544 (internal quotation marks omitted). The verdicts here 

effectuated substantial justice. Iowa R. App. P. 6.904(3)(c).

V. Conclusion.

Although our reasoning differs somewhat from that of the court of 

appeals, we conclude the district court abused its discretion in ordering 

a new trial. Therefore, we affirm the court of appeals and reverse the 

district court’s order granting a new trial, directing it instead on remand 

to enter judgment on the jury verdicts.

COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT 

JUDGMENT REVERSED AND REMANDED.