Kent Welsh v. Lithia Vaudm, Inc. d/b/a Lithia Volkswagen of Des Moines and Anthony M. Gladney

• Court: Court of Appeals of Iowa
• Decided: March 6, 2019
• Docket: 18-0653
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-0653 Filed March 6, 2019

KENT WELSH, Plaintiff-Appellant,

vs.

LITHIA VAUDM, INC. d/b/a LITHIA VOLKSWAGEN OF DES MOINES and ANTHONY M. GLADNEY, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, David May, Judge.

Kent Welsh appeals from an adverse jury verdict in his civil suit against the

defendants. AFFIRMED.

Michael S. Jones and Jordan R. Hutchinson of Patterson Law Firm, L.L.P.,

Des Moines, for appellant.

Jeffrey D. Ewoldt and Eric M. Updegraff of Hopkins & Huebner, P.C., Des

Moines, for appellees.

Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2

VAITHESWARAN, Judge.

Kent Welsh sued Lithia Vaudm Inc. (Lithia) for fraud, breach of express

warranty, conversion, and violation of the Motor Vehicle Services Trade Practices

Act in connection with the repair of his 2008 Volkswagen Touareg. Welsh also

sued Lithia’s general manager, Anthony M. Gladney, for conversion. A jury found

for the defendants.

On appeal, Welsh argues the district court abused its discretion in

(1) disallowing a telephone deposition; (2) excluding evidence of Lithia’s rating with

the Better Business Bureau; and (3) excluding evidence of reviews and complaints

filed with the Better Business Bureau.

I. Deposition

Welsh sought to depose a former Iowa resident who posted a complaint

about Lithia on the internet before moving to Texas. Welsh scheduled a telephone

deposition of the complainant, which was to take place less than a month before

trial. Under a trial-scheduling and discovery plan executed by the parties and filed

with the district court, “[a]ll depositions” were to be “completed no later than 60

days before trial.”

Lithia moved for a protective order on several grounds, including expiration

of the scheduling deadline. Following a hearing, the district court granted the

motion. The court reasoned that the deponent was “known about for some time

by the Plaintiff” and, although Welsh characterized the proposed testimony as an

evidentiary deposition, it sounded like “a discovery deposition, in part, even if the

plan” was “to use it for trial.” 3

We discern no abuse of discretion in the court’s ruling. See Lawson v.

Kurtzhals, 792 N.W.2d 251, 258 (Iowa 2010) (setting forth standard of review).

The parties agreed to the deposition deadline. See Fry v. Blauvelt, 818 N.W.2d

123, 129–30 (Iowa 2012) (“Time limits thus promote efficiency and reduce the

amount of resources required to be invested in the litigation. . . . The cooperation

of parties during pretrial stages of litigation is essential.”). By his own admission,

Welsh was able to “promptly” track down the individual but delayed doing so until

after he learned Lithia did not preserve information about complaints. Welsh did

not explain why he waited until after the self-imposed discovery deadline to take

this critical step. See Lawson, 792 N.W.2d at 259 (noting that excuse for failing to

complete discovery within a deadline set forth in a trial setting conference

memorandum was “unavailing”); cf. Iowa R. Civ. P. 1.602(5) (“If a party or party’s

attorney fails to obey a scheduling or pretrial order, . . . the court, upon motion or

the court’s own initiative, may make such orders with regard thereto as are

just. . . .”). We affirm the disallowance of the telephone deposition in light of

Welsh’s noncompliance with the pretrial deadline.

II. Better Business Bureau Rating

Welsh contends the district court abused its discretion in excluding evidence

of Lithia’s rating with the Better Business Bureau. The rating was premised on

customer complaints to the bureau.

At a hearing on a defense motion in limine, the district court found the rating

evidence, to the extent it was based on customer complaints, was “hearsay within

hearsay.” Following the hearing, the district court filed an order adopting the

reasoning used in declining to admit evidence of internet complaints about Lithia. 4

The court found “little probative value” to the complaints of other customers and “a

substantial danger of unfair prejudice, confusion of the issues, misleading the jury,

and wasting time with ‘trials within the trial.’” See Iowa R. Evid. 5.403 (“The court

may exclude relevant evidence if its probative value is substantially outweighed by

a danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”). Our review of a district court’s ruling under these

provisions is for an abuse of discretion. See Pexa v. Auto Owners Ins. Co., 686

N.W.2d 150, 158 (Iowa 2004) (“The trial court has discretion to exclude relevant

evidence when ‘its probative value is substantially outweighed by the danger of

unfair prejudice.’” (emphasis in original) (quoting Iowa R. Evid. 5.403)).

Again, we discern no abuse of discretion in the court’s ruling. Because the

rating was premised on customer complaints, admission of the rating easily could

have caused the trial to devolve into mini-trials on each underlying complaint. See

Mercer v. Pittway Corp., 616 N.W.2d 602, 616–17 (Iowa 2000) (finding reversible

error in the admission of 116 consumer complaints where “it would be necessary

for the court to examine each prior incident to determine if it truly is substantially

similar to the incident in the subject case”). The court had discretion to exclude

the evidence on this ground. Id. at 617.

III. Customer Reviews Collected by the Better Business Bureau

Welsh takes issue with the district court’s exclusion of customer reviews

underlying the Better Business Bureau rating. For the reasons discussed above,

we conclude the district court did not abuse its discretion in excluding the evidence

under rule 5.403. 5

We affirm the jury verdict and the judgment in favor of the defendants.

AFFIRMED.