David Buboltz and Donna Reece v. Patricia Birusingh, individually and in Her Capacity as Co-Executor of the Estate of Cletis C. Ireland, and Kumari Durick ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 19–1724
Submitted March 23, 2021—Filed June 11, 2021
Amended October 12, 2021
DAVID BUBOLTZ and DONNA REECE,
Appellants,
vs.
PATRICIA BIRUSINGH, ESTATE OF CLETIS C. IRELAND, and
KUMARI DURICK,
Appellees.
Appeal from the Iowa District Court for Pottawattamie County,
Craig Dreismeier, Judge.
The plaintiffs appeal the district court’s grant of summary judgment
on their tortious-interference-with-inheritance claim, and the defendants
cross-appeal for a new trial, asserting admission of improper hearsay
testimony and improper statements by opposing counsel during closing
argument. AFFIRMED.
McDermott, J., delivered the opinion of the court, in which all
participating justices joined. Christensen, C.J., took no part in the
consideration or the decision of the case.
Alexander E. Wonio (argued) of Hansen, McClintock & Riley, Des
Moines, and Tyler M. Smith of Smith Law Firm, PLC, Altoona, for
appellants.
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Charles Wittmack (argued) of Hartung Schroeder Law Firm, Des
Moines, and Jamie L. Cox, Paul S. Wilson, and Lonny L. Kolln II of Willson
& Pechacek, P.L.C., Council Bluffs, (until withdrawal) for appellees.
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McDERMOTT, Justice.
In this case, we must answer whether a cause of action for tortious
interference with inheritance requires the plaintiff to prove that the
defendant had knowledge of the plaintiff’s expectation to receive an
inheritance from the decedent. The inheritance in dispute comes from a
woman named Cletis Ireland, who died in March 2016 at age 92. She was
an only child, never married, and had no children. Her estate included
her family’s century farm where she had lived most of her adult life.
In 2001, Ireland executed a will that would have given her farm in
equal shares to David Buboltz, a cash rent farmer who had been leasing
about eighty acres on the farm since 1991, and Edith Mae Maertens, her
cousin. But in 2015, Ireland executed a new will. The new will removed
both Maertens, who had died in 2008, and Buboltz as the beneficiaries of
her farm and purported to give the farm instead to Kumari Durick, the
daughter of a family friend. Ireland named Durick’s mother, Patricia
Birusingh, as the executor of her estate in the new will.
Birusingh was married to Ireland’s doctor. Ireland, sometime after
she executed the 2001 will, grew close to the Birusingh family. When
Ireland due to her advancing age could no longer drive a car, Birusingh
and Durick began bringing her groceries, driving her to appointments, and
running other errands for her. Birusingh and Durick characterized
themselves as good neighbors, taking care of an elderly friend in need who,
of her own volition, chose to include them in her will.
Buboltz and Reece, on the other hand, characterized Birusingh and
Durick as conspirators in a Machiavellian plot, preying on the
vulnerabilities of an isolated elderly woman to convince her to bequeath
her farm to them in exchange for their help. Shortly after Ireland died,
one of Maertens’s daughters (and thus Ireland’s first cousin once removed)
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named Donna Reece, along with Buboltz, filed a lawsuit to set aside
Ireland’s 2015 will. Their petition alleged several causes of action against
Birusingh and Durick, including undue influence and tortious interference
with inheritance.
Prior to trial, Birusingh and Durick sought summary judgment on
the tortious-interference-with-inheritance claim. They argued that this
cause of action requires proof, among other things, that a defendant knew
of the plaintiff’s expected inheritance from the decedent. Birusingh and
Durick claimed that no evidence existed to show that they had knowledge
of any expected inheritance by Buboltz or Reece related to Ireland’s 2001
will or, for that matter, that they had any knowledge of Ireland’s 2001 will
whatsoever. Buboltz and Reece countered that, despite no direct evidence
proving knowledge, circumstantial evidence created disputes of material
fact concerning what Birusingh and Durick knew, and that these factual
disputes required the court to deny summary judgment. The district court
found none of the plaintiff’s circumstantial evidence sufficient to create a
dispute of material fact and thus granted the motion and dismissed the
plaintiffs’ tortious-interference-with-inheritance claim. Buboltz and Reece
voluntarily dismissed other claims but maintained the undue influence
cause of action.
During the trial, Buboltz and Reece requested that the district court
instruct the jury on the dismissed tortious-interference-with-inheritance
claim. The district court refused. The jury returned a verdict in favor of
Buboltz and Reece on the undue influence claim.
Both sides appeal. Buboltz and Reece appeal the dismissal of the
tortious-interference-with-inheritance claim, arguing that the district
court erroneously determined that the tort required proof that a defendant
possess knowledge of a plaintiff’s expected inheritance. They further argue
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that, even if we find the tort includes such a requirement, the district court
erred in concluding that no dispute of material fact existed on the issue.
Birusingh and Durick cross-appeal, arguing a new trial is necessary based
on the admission of improper hearsay testimony and improper statements
by opposing counsel during his closing argument.
I.
We begin with the question of whether knowledge of a plaintiff’s
expectancy of an inheritance from the decedent is an element of tortious
interference with inheritance. We review the district court’s summary
judgment ruling for correction of legal error. Lewis v. Howard L. Allen
Invs., Inc., 956 N.W.2d 489, 490 (Iowa 2021).
We first recognized the existence of an “independent cause of action
for the wrongful interference with a bequest” in Frohwein v. Haesemeyer
in 1978. 264 N.W.2d 792, 795 (Iowa 1978). We’ve addressed this tort
again in our opinions in the intervening decades only three times. In the
first, in 1991, we held that the plaintiffs were procedurally barred from
pursuing a tortious-interference-with-inheritance claim when two valid,
uncontested codicils reaffirmed an earlier codicil (which eliminated the
plaintiffs’ bequest) because the claim in that situation constituted a
“collateral attack on testamentary dispositions.” Abel v. Bittner, 470
N.W.2d 348, 351 (Iowa 1991). In the second, a year later, we held that a
plaintiff may pursue a tortious interference claim separate from a will
contest even when the plaintiff alleges that the defendant used wrongful
means to induce the decedent to execute a new will. Huffey v. Lea, 491
N.W.2d 518, 519–20 (Iowa 1992) (en banc). And in the third, decided last
term, we overruled Frohwein and Huffey v. Lea and held that a plaintiff
alleging a tortious-interference claim involving a will executed through
wrongful means must join the action with a timely will contest. Youngblut
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v. Youngblut, 945 N.W.2d 25, 37 (Iowa 2020). None of our prior cases
analyzed or set forth the elements of a tortious-interference-with-
inheritance claim.
Buboltz and Reece contend that courts outside Iowa have not
included knowledge of a plaintiff’s expectancy of an inheritance as an
element of the tort. And while they concede that a knowledge requirement
has appeared repeatedly as an element in unpublished tortious-
interference-with-inheritance opinions from the Iowa Court of Appeals,
they question the ancestral basis for its inclusion. Buboltz and Reece’s
review of the cases reciting the knowledge element begins with an Iowa
Court of Appeals case called Bronner v. Randall, No. 14–0154, 2015 WL
2089360 (Iowa Ct. App. May 6, 2015). In that case, our court of appeals
recited five elements of the tort, including one that required the plaintiff to
show that the defendants knew of the plaintiff’s expectation that he would
receive a bequest when the decedent died. Id. at *9.
But Buboltz and Reece contend that the court of appeals was merely
reciting the elements from the district court’s jury instruction and that the
jury instructions were neither contested nor examined for error on appeal.
Nonetheless, Buboltz and Reece continue, the court of appeals, in a string
of tortious-interference-with-inheritance cases that came later, simply
parroted the elements in the jury instruction from Bronner (including the
knowledge element) without ever analyzing whether proving knowledge of
a plaintiff’s expectancy is an element of the tort. See, e.g., Est. of Kline v.
Culp, No. 18–1658, 2019 WL 6358421, at *8 (Iowa Ct. App. Nov. 27, 2019);
Est. of Arnold v. Arnold, No. 18–1460, 2019 WL 3317381, at *4 (Iowa Ct.
App. July 24, 2019); Cich v. McLeish, No. 18–0069, 2019 WL 1056804, at
*3–4 (Iowa Ct. App. Mar. 6, 2019); In re Est. of Boman, No. 16–0110, 2017
WL 512493, at *10 (Iowa Ct. App. Feb. 8, 2017). With the legal framework
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for the knowledge element built on such tenuous footing, Buboltz and
Reece assert, the district court’s reliance on the court of appeals’
recitations of the knowledge element offers no sound basis for its ruling.
When we first recognized intentional interference with inheritance
in Frohwein in 1978, volume 4 of the Restatement (Second) of Torts, which
added a new section on “intentional interference with inheritance or gift”
had not yet been released. See Restatement (Second) of Torts § 774B, at
58 (Am. Law Inst. 1979) [hereinafter Restatement (Second)]. But when we
decided Huffey about fourteen years later, we looked to the Restatement
(Second) for guidance on remedies for this relatively new and developing
tort. Huffey, 491 N.W.2d at 520–21. Buboltz and Reece ask us to return
to the Restatement (Second) in analyzing whether the elements of the tort
include knowledge of the plaintiff’s expectancy. They recite the same
description of intentional interference with inheritance from the
Restatement (Second) that we quoted in Huffey:
One who by fraud or other tortious means intentionally
prevents another from receiving from a third person an
inheritance or gift that he would otherwise have received is
subject to liability to others for the loss of the inheritance or
gift.
Huffey, 491 N.W.2d at 520 (quoting Restatement (Second) § 774B, at 58).
Buboltz and Reece contend that this description conveys that
plaintiffs must prove intent but suggests no requirement that plaintiffs
prove defendants’ knowledge of another’s expectation of a bequest.
Buboltz and Reece cite comments in the nearby Restatement (Second)
section on intentional interference with prospective contracts to suggest
that the “intent” requirement merely demands that defendants intend to
cause the consequences of their actions (or believe that the consequences
are substantially certain to result) without any requirement that
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defendants act “knowingly.” Compare Restatement (Second) § 8A, with id.
§ 766B.
Yet as we stated in Youngblut, when new iterations of the
Restatement of Torts appear, we have often looked to them for guidance in
our decisions. 945 N.W.2d at 32–33. The Restatement (Third) of Torts,
which we cited in Youngblut, provides a fuller rendering of the tort than
the one Buboltz and Reece recite from the Restatement (Second). See id.
The Restatement (Third) defines the tort this way:
(1) A defendant is subject to liability for interference
with an inheritance or gift if:
(a) the plaintiff had a reasonable expectation of
receiving an inheritance or gift;
(b) the defendant committed an intentional and
independent legal wrong;
(c) the defendant’s purpose was to interfere with
the plaintiff’s expectancy;
(d) the defendant’s conduct caused the
expectancy to fail; and
(e) the plaintiff suffered economic loss as a result.
Restatement (Third) of Torts: Liab. for Econ. Harm § 19, at 160–61 (Am. L.
Inst. 2020); see also Barclay v. Castruccio, 230 A.3d 80, 85 (Md. 2020)
(reciting these elements).
The evidence required to establish subsection (c) necessarily
includes a requirement that a defendant know of the plaintiff’s expected
inheritance since a defendant ignorant of a plaintiff’s expectancy could
never have as her purpose an intention to interfere with it. Stated
differently, without knowing of the plaintiff’s expectancy, a defendant
could not act with the purpose to interfere with that expectancy. To steal a
phrase from the old song, you can’t have one without the other.
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Buboltz and Reece argue that the tort requires no knowledge of any
particular expectancy of inheritance because all Iowans, whether through
a testamentary instrument (such as a will or trust) or the intestacy
provisions of the Iowa Code (which apply in the absence of a testamentary
instrument), have beneficiaries that will inherit their property. But this
tort seeks to remedy a more specific type of intentional wrongdoing. A
cause of action for intentional interference with inheritance focuses not on
interference with any expectancy. The tort is targeted instead to remedy
intentional interference with a particular person’s expectancy: the
plaintiff’s. Intentional interference requires that a defendant acts with the
purpose to deprive the plaintiff of her expectancy to that same inheritance.
Without such a requirement as to purpose, the tort risks ensnaring
citizens who provide assistance to the elderly—conduct that society
generally seeks to promote—who then become beneficiaries in wills or
trusts without intending to interfere with someone else’s known
expectancy of that same inheritance. We believe the district court correctly
held that the plaintiffs needed to prove the defendants’ knowledge of the
plaintiffs’ expectancy of an inheritance from the decedent.
As discussed, the Restatement (Third) doesn’t include an element
devoted solely to proof of knowledge. In its recitation of elements of this
tort, the district court set out as a separate element of proof that Birusingh
and Durick “knew of Plaintiffs’ expected inheritance from Cletis.” Neither
party cites any case that focused specifically on the defendant’s knowledge
of the plaintiff’s expectancy, although a California appellate court similarly
recited the defendant’s knowledge of the plaintiff’s expectancy as its own
element. See Beckwith v. Dahl, 141 Cal. Rptr. 3d 142, 157 (Ct. App. 2012)
(“Third, the plaintiff must plead intent, i.e., that the defendant had
knowledge of the plaintiff’s expectancy of inheritance and took deliberate
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action to interfere with it.”); see also Gomez v. Smith, 268 Cal. Rptr. 3d
812, 822 (Ct. App. 2020) (reciting the same element). Although we prefer
the formulation of elements for this tort set forth in the Restatement (Third)
quoted above, which necessarily includes a requirement that defendants
possess knowledge of a plaintiff’s expectancy, the district court committed
no error in considering proof of the defendants’ knowledge as its own
element.
II.
Birusingh and Durick argue that no claim for intentional
interference with inheritance may stand where the underlying conduct
does not include “independently tortious conduct.” They contend that
undue influence—the conduct alleged to undergird the tortious-
interference-with-inheritance claim pleaded in this case—is not
“independently tortious in character” and that thus the plaintiffs cannot
establish intentional interference with inheritance as a matter of law.
But the defendants never presented this argument in the district
court, and the district court never ruled on it. A party ordinarily needs to
raise and the district court needs to decide an issue before we address its
merits on appeal. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
Because we find this issue unpreserved for appellate review, we will not
consider it.
III.
Having found that the district court properly required the plaintiffs
to demonstrate that the defendants knew of the plaintiffs’ expectancy to
an inheritance, we turn to whether the district court nonetheless erred in
finding no issue of material fact prevented summary judgment.
Summary judgment is appropriate when the party seeking it
demonstrates that there are no disputed issues of material fact and that
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application of the law to the undisputed facts compels judgment in that
party’s favor. Kostoglanis v. Yates, 956 N.W.2d 157, 158–59 (Iowa 2021).
A disputed issue of fact exists if “reasonable minds can differ on how an
issue should be resolved.” Est. of Gottschalk v. Pomeroy Dev., Inc., 893
N.W.2d 579, 584 (Iowa 2017) (quoting Walker v. State, 801 N.W.2d 548,
554 (Iowa 2011)). We view the facts in the light most favorable to the party
resisting the summary judgment motion. Kostoglanis, 956 N.W.2d at 159.
That said, the resisting party may not rest on mere allegations in its
pleadings but rather must set forth specific material facts showing that a
genuine disputed issue exists for resolution at trial. Banwart v. 50th St.
Sports, L.L.C., 910 N.W.2d 540, 545 (Iowa 2018). On appeal, we consider
the evidence before the court at the summary judgment stage, not other
or additional evidence that might have been introduced later in the case.
Summary judgment “is not a dress rehearsal or practice run” for trial but
rather “the put up or shut up moment in a lawsuit, when a [nonmoving]
party must show what evidence it has that would convince a trier of fact
to accept its version of the events.” Slaughter v. Des Moines Univ. Coll. of
Osteopathic Med., 925 N.W.2d 793, 808 (Iowa 2019) (alteration in original)
(quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.
2005)).
Birusingh and Durick testified in their depositions that they had no
knowledge of any expectancy of an inheritance by Buboltz and Reece
founded on Ireland’s 2001 will (and, for that matter, that they had no
knowledge of the 2001 will’s existence at all). Buboltz and Reece
acknowledged that they had no direct evidence of the defendants’
knowledge of their expectancy, and instead sought to show the defendants’
knowledge through circumstantial evidence. Direct and circumstantial
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evidence are equally probative. State v. Ernst, 954 N.W.2d 50, 57 (Iowa
2021); see also Iowa R. App. P. 6.904(3)(p).
The district court distilled the alleged circumstantial evidence of
knowledge that Buboltz and Reece offered into three parts: (1) that Buboltz
had been Ireland’s farm tenant since 1991, long before Ireland had met
Birusingh or Durick; (2) that Birusingh or Durick admitted to having
conversations with Ireland about her estate planning and drove Ireland to
Ireland’s lawyer’s office when she executed the 2015 will; and (3) that
Buboltz made an offer to Ireland to buy her farm land.
As to the first, a long-term tenancy might well provide evidence of a
healthy relationship between landlord and tenant, but it doesn’t provide
evidence from which to infer knowledge of an inheritance running from
landlord to tenant. Similarly, the defendants’ knowledge of a close
personal relationship (even if a distant familial one) between Reece and
Ireland does not, without more, support an inference that the defendants
had knowledge of Reece’s expected inheritance. Reece, during the entire
duration of the defendants’ relationship with Ireland, lived in Colorado.
We find no basis to conclude that the defendants knew of the plaintiffs’
expectancy of an inheritance based merely on the nature of their
relationships with Ireland.
As to the second, the district court noted that evidence of the
conversations between Birusingh and Ireland about estate planning
pertained to Ireland’s future intentions only, particularly about the
disposition of the family farm, surrounding the 2015 will. These
discussions provide no indication of communications concerning the 2001
will, let alone any beneficiaries named in it. Evidence that Birusingh drove
Ireland to Ireland’s attorney’s office to create the 2015 will likewise doesn’t
establish that the defendants knew of the plaintiffs’ expectancy.
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The district court addressed a related argument by Buboltz and
Reece that a jury could conclude, based on the confidential relationship
that Birusingh had developed with Ireland, that Birusingh likely had
discussions with Ireland about her estate planning. The plaintiffs cited
evidence that Birusingh served as Ireland’s attorney-in-fact for financial
and health decisions under a power of attorney document Ireland signed
as evidence of the confidential relationship. But evidence of a confidential
relationship, without more, doesn’t permit the court to speculate about the
content of discussions within that relationship. We will draw reasonable
inferences from facts, but we cannot assume facts through conjecture.
Susie v. Fam. Health Care of Siouxland, P.L.C., 942 N.W.2d 333, 337 (Iowa
2020) (“[S]peculation is not sufficient to generate a genuine issue of fact.”
(quoting Hlubek v. Pelecky, 701 N.W.2d 93, 96 (Iowa 2005))).
And as to the third argument, Buboltz’s offer to buy Ireland’s land
creates no basis for the defendants to conclude that Buboltz had a
reasonable expectation that he would receive the land as an inheritance.
If anything, the inference cuts the other direction, since if Buboltz believed
he might soon (Ireland would have been about ninety years old when he
made the offer) inherit Ireland’s land for free by bequest under her will,
then paying her for the farm seemingly makes little sense. Buboltz’s offer
to purchase offers nothing to prove the defendants’ knowledge of his
expectancy.
The summary judgment record contains no evidence, circumstantial
or otherwise, that Ireland’s 2001 will, or any other aspects of Ireland’s
prior estate planning, had ever been shared or discussed with Birusingh
or Durick. We find no basis to conclude that the defendants knew of
Buboltz’s expectancy of an inheritance from Ireland and thus affirm the
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district court’s grant of summary judgment in the defendants’ favor on this
issue.
IV.
Birusingh and Durick in their cross appeal argue that we should
grant a new trial because the district court admitted improper hearsay
evidence and because the plaintiffs’ lawyer made improper and highly
prejudicial statements during closing argument.
A.
The defendants’ argument alleging improper hearsay involved
questioning of the lawyer who drafted both the 2001 and 2015 wills, James
Sulhoff. Buboltz testified that after Ireland died, he went to Sulhoff’s office,
asked to review Ireland’s will, and spoke with Sulhoff about the will. At
trial, Buboltz’s lawyer asked about these events, and the following
exchange took place:
Q. When you asked about Patti’s daughter, what did
Jim Sulhoff say? A. He said that --
[DEFENDANTS’ LAWYER]: Objection, Your Honor.
Hearsay.
THE COURT: I’m inclined to sustain this.
[PLAINTIFFS’ LAWYER]: He asked the exact same
questions of Mr. Sulhoff.
[DEFENDANTS’ LAWYER]: He opened the door on this,
Your Honor. We can approach and discuss it.
(Off-the-record sidebar.)
THE COURT: Court will overrule the objection. Sir, you
can answer the question if you can.
Q. I’ll reask my question. What did Jim Sulhoff say to
you after you asked, “Who’s Kumari?” A. I asked who Kumari
was, and he said that that was her daughter. And I had asked,
“Why was she there?” And he said that Cletis had said that
Patti said, “Give it to my daughter. I have all the money. I
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have plenty of money. And give it to my daughter.” And then
he said -- Well, do you want me to continue?
Q. Yeah. What else did he say? A. Then he said, “I
know. It’s dirty and it stinks.” After that I left.
Q. What did you make of that comment? A. I didn’t
know what to think at the time.
Q. You’re not a lawyer? A. No.
Q. You’re a farmer, right? A. Yep.
Q. Something sounded wrong to you based off of that?
A. I thought it was kind of funny.
Q. Did you think it stunk? A. Yes.
Q. Have you been a Plaintiff to 30some lawsuits?
A. No.
Q. Why are you bringing this lawsuit? A. I think what
happened here was wrong. When you look back at it,
everything over the years, and put it together, and I think that
basically it’s dirty and it stinks and that they should not be
rewarded for what happened here.
Hearsay is a statement that a declarant makes outside the current
hearing or trial that is offered into evidence to prove the truth of the matter
asserted in the statement. Iowa R. Evid. 5.801. Hearsay is normally
inadmissible. Id. r. 5.802. Birusingh and Durick argue that Buboltz’s
testimony includes two hearsay statements. They contend that the first
hearsay statement was actually “triple hearsay”—a judicial rarity—
because it included testimony from three layers of declarants. In the
statement at issue, Buboltz testified that Sulhoff (the first declarant) told
Buboltz that Ireland (the second declarant) told Sulhoff that Birusingh (the
third declarant) had plenty of money and that Ireland should give her farm
to Birusingh’s daughter, Durick. (In the quoted portion above, here’s how
Buboltz phrased it: “And he said that Cletis had said that Patti said . . . .”)
The second hearsay statement is considerably more direct: Buboltz
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testified that Sulhoff (the declarant) said that Ireland’s bequest of the farm
to Durick is “dirty and it stinks.”
Both the first and second statements (including those within the
triple-hearsay statement) were made outside the trial. Birusingh and
Durick argue that the plaintiffs introduced the statements at trial to prove
the truth of the matters asserted, specifically (1) that Birusingh already
had “plenty of money” and asked Ireland to give her farm instead to Durick
and (2) that Ireland’s own attorney thought that Ireland’s bequest to them
was “dirty” and “stinks.”
Although we review most evidentiary rulings for abuse of discretion,
we review hearsay claims for correction of errors at law. Hawkins v.
Grinnell Reg’l Med. Ctr., 929 N.W.2d 261, 265 (Iowa 2019). But before we
consider the merits of the admissibility of the statements, we must first
address the threshold question of error preservation. To preserve error on
an objection to the admission of evidence at trial, counsel must make
known a specific objection to give the trial court an opportunity to rule on
the objection and correct any error. State v. Dessinger, 958 N.W.2d 590,
598 (Iowa 2021). Where a party makes an objection and the court
overrules the objection, we generally do not require a party to make a
repeated objection on the same ground to testimony of the same kind. Id.Reviewing the portion of the record quoted above, the plaintiffs’
lawyer asked Buboltz: “When you asked about Patti’s daughter, what did
Jim Sulhoff say?” and the defendants’ lawyer objected. After some on-the-
record comments by counsel and an off-the-record sidebar, the district
court overruled the objection. The plaintiffs’ lawyer then stated: “I’ll reask
my question. What did Jim Sulhoff say to you after you asked, ‘Who’s
Kumari?’ ” This question pertained to the same testimony sought with the
prior objected-to-and-overruled question (indeed, it’s phrased as a “reask”
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of the prior question), thus we find counsel didn’t need to repeat the
objection. But the defendants didn’t lodge any objection to, and thus
didn’t flag for the district court to consider, any hearsay-within-hearsay
problem during Buboltz’s testimony. That a hearsay-within-hearsay issue
might be lurking isn’t evident from a question asking what Sulhoff told
Buboltz about Kumari Durick. The next question followed on the witness’s
statement at the end of his answer, asking whether he should continue,
with the response, “Yeah. What else did he say?” Because this question
asked the witness to continue with his answer to the prior question, it
likewise didn’t require a repeated objection. But all the questions
thereafter (starting with “What did you make of that comment?”) called for
different information, and did not relate to testimony of the same kind,
and thus the failure to object to these questions renders them unpreserved
for appeal. The ensuing questions also didn’t call for hearsay, so the
hearsay objection wouldn’t fit in any event.
In examining the defendants’ claim of error in admitting Buboltz’s
testimony concerning Sulhoff’s hearsay statements, the plaintiffs point to
inconsistent testimony from Sulhoff on the first day of the trial. That’s
when the defendants’ lawyer engaged in this exchange with Sulhoff:
Q. Mr. Sulhoff, as part of this case there’s been
testimony in deposition that you told someone that you think
the circumstances surrounding Cletis’s Will were dirty or they
stunk. Do you ever recall telling anyone that Cletis’s Will was
dirty or that it stunk? A. Not that I remember, no.
A party may attack a witness’s credibility by offering evidence that
the witness made an out-of-court statement inconsistent with the
witness’s in-court testimony on a material issue. State v. Belken, 633
N.W.2d 786, 794 (Iowa 2001). Under Iowa Rule of Evidence 5.613(b), the
party’s out-of-court statement is admissible to impeach the witness about
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the inconsistent in-court testimony so long as the witness is given an
opportunity to explain or deny the out-of-court statement and an adverse
party has an opportunity to question the witness about it. Using the
statement as impeachment doesn’t depend on the truth of the inconsistent
statement, which means the out-of-court statement is not hearsay when
offered solely to impeach in this manner. Brooks v. Holtz, 661 N.W.2d 526,
530–31 (Iowa 2003). The defendants in this case not only had an
opportunity to question Sulhoff about the out-of-court statements, the
defendants preemptively questioned Sulhoff about the statements even
before the plaintiffs raised the issue.
For an out-of-court statement to be admissible as impeachment
evidence, there must be a contradictory in-court statement by the witness.
State v. Swift, 955 N.W.2d 876, 882 (Iowa 2021). Sulhoff’s in-court
statement that he recalled making no statement about the 2015 will being
“dirty” or that it “stinks” contradicted his out-of-court statement. An
adverse party is permitted to impeach a witness’s claimed lack of
recollection. Id.; State v. Russell, 893 N.W.2d 307, 317 (Iowa 2017). The
district court properly admitted Buboltz’s testimony as evidence
impeaching Sulhoff’s memory or ability to recollect his prior statements
about the circumstances surrounding the will. Regarding the defendants’
argument that that plaintiffs later in the trial improperly characterized or
used this evidence not for its admitted impeachment purpose but as
substantive evidence for the truth of the matters asserted, the defendants
failed to make any further objection and thus failed to preserve error to
enable our review.
What’s more, the defendants themselves repeated during the trial
the challenged hearsay testimony that Birusingh didn’t want the farm and
that she told Ireland as much. One might presume Birusingh’s alleged
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lack of need for Ireland’s inheritance as tending to support Birusingh’s
defense. Jury Instruction No. 11 required the plaintiffs to prove that the
defendants were “inclined to influence Cletis Ireland unduly for the
purpose of getting an improper favor.” Lack of wealth, as the defendants
themselves seemed to suggest, might tend to position a defendant as more
inclined to intentionally interfere with an inheritance. In any event, the
testimony was properly admitted for its impeachment purpose, and we
decline the defendants’ request to order a new trial on this basis.
B.
The defendants also seek a new trial based on alleged improper
statements by the plaintiffs’ lawyer during closing argument. The
defendants first complain that the plaintiffs’ lawyer improperly spoke to
the justness of his clients’ cause by discussing his own personal concerns
about fear of not giving his clients “the argument that they deserve or that
I didn’t present the case that they entrusted me to present for them and
for Cletis.” The defendants further argue that the plaintiffs’ lawyer then
fabricated statements by Ireland that weren’t in the record.
But the defendants neither lodged an objection to these statements
nor moved for a mistrial based on them. Ordinarily, when a party makes
no objection to improper statements in closing argument or motion for
mistrial, “such conduct indicates a willingness of counsel to take his
chances on a favorable verdict and constitutes a waiver of the
misconduct.” State v. Phillips, 226 N.W.2d 16, 18–19 (Iowa 1975).
Although we have recognized that a statement during closing argument
can be “so flagrantly improper and evidently prejudicial” as to warrant a
new trial even in the absence of an objection, see Shover v. Iowa Lutheran
Hospital, 252 Iowa 706, 717, 107 N.W.2d 85, 91 (1961), these statements
20
fall far short of that mark. The defendants failed to preserve error for our
review on this issue.
The defendants further object to what they label self-aggrandizing
statements intended to bolster counsel’s own credibility before the jury
while also vouching for the credibility of his clients. The relevant passage
from the closing argument transcript states:
And I’m in a real fortunate situation with my law firm. I don’t
have to take every case that comes in the door. I get to pick
and choose alluding to how difficult what Mr. Cox does and,
by extension, pat myself on the back a little bit. It’s very
difficult trying cases. It’s a subspecialty that 99 percent of
your lawyers would not do any more than I would never –
you’d never come to me, “Help me with this bankruptcy.” I
wouldn’t know where to start, frankly. In trial work I get to
pick my clients. That means I get to take the first measure of
them. I feel like I’ve built up this good ability to read if
somebody is snowballing me. David never struck me as
anything but an earnest --
[DEFENDANT’S LAWYER]: Your Honor, I’m going to object to
this. May we approach the bench?
(Off-the-record sidebar.)
THE COURT: Counsel, please continue.
Counsel are permitted some latitude in making their closing
arguments. State v. Carey, 709 N.W.2d 547, 554 (Iowa 2006). Yet counsel
may not during closing argument vouch for a witness’s credibility based
on personal belief, counsel’s experience in similar cases, or any other
ground outside the evidence at trial. State v. Williams, 334 N.W.2d 742,
744 (Iowa 1983). The plaintiffs’ lawyer veered into improper argument
when he discussed taking of the measure of his own client and his own
ability to read when a client is “snowballing” him to convey his client’s
earnestness to the jury. See State v. Graves, 668 N.W.2d 860, 874 (Iowa
2003); see also Iowa R. Prof’l Conduct 32:3.4(e) (a lawyer during trial shall
not “assert personal knowledge of facts in issue except when testifying as
21
a witness, or state a personal opinion as to the justness of a cause, the
credibility of a witness, [or] the culpability of a civil litigant”).
The portion quoted above shows that the defendants’ lawyer
properly objected. But following the sidebar, the record doesn’t indicate
any ruling. The plaintiffs’ counsel thereafter continued with his closing
argument, simply moving on to a different subject. Any prejudice to the
defendants from these objectionable statements would have been minimal
and thus well below the threshold for granting a new trial. See Mays v. C.
Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992). Moreover, the
defendants never moved for a mistrial, sought a remedial instruction, or
filed a motion for new trial based on these comments. On this record, we
decline to grant the defendants a new trial on this issue.
V.
For these reasons, we affirm the judgment of the district court.
AFFIRMED.
All justices concur except Christensen, C.J., who takes no part.