Kindig v. Spencer Newman, Colby Newman, Josh Burns, Jacob Schroeder, & the Press Box Grille & Bar, Inc.

966 N.W.2d 310

Dustin KINDIG, Plaintiff-Appellant,

v.Spencer NEWMAN, Colby Newman, Josh Burns, Jacob Schroeder, and The Press Box Grille & Bar, Inc. d/b/a The Press Box Grille & Bar, Defendants-Appellees.

No. 20-0028

Court of Appeals of Iowa.

Filed May 12, 2021

Matthew M. Boles, Adam C. Witosky, and Christopher Stewart of Gribble Boles Stewart & Witosky Law, Des Moines, for appellant.

Karla J. Shea of Swisher & Cohrt, P.L.C., Waterloo, for appellees Spencer Newman and Josh Burns.

Kelly W. Otto, Madison, Wisconsin, for appellee Jacob Schroeder.

Teresa K. Baumann and Jace T. Bisgard of Shuttleworth & Ingersoll, Cedar Rapids, for appellee The Press Box Grille & Bar, Inc.

William H. Roemerman of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellee Colby Newman.

Heard by Tabor, P.J., and Mullins and May, JJ.

MAY, Judge.

A bachelor party devolved into discord and violence. In the wake, Dustin Kindig brought suit for injuries he sustained during the party. The district court granted summary judgment to some defendants. A jury found in favor of the remaining defendants. Dustin appeals.

I. Facts and Prior Proceedings

In 2017, Colby Newman planned a bachelor party for his brother, Spencer Newman. Colby asked his cousin, who worked as a manager at The Press Box Bar and Grille (Press Box), if he could borrow a small bus owned by Press Box for the party.¹ Press Box owner, Jeff Larkin, agreed Colby could borrow the bus as long as the group had a designated driver, filled the bus with gasoline before returning it, and cleaned it up before returning it. Colby did not pay to use the bus, and Colby and Press Box did not enter into a written agreement.

Then, on October 21, the bachelor party set out for the evening. Jacob Schroeder served as the group's designated driver, and the rest of the partygoers drank alcohol as they travelled from location to location to eat and drink. All of the partygoers, excluding Jacob, became intoxicated. Later in the evening, the group disagreed where they should go next. Most agreed they should head home. Dustin wanted to go to a strip club. But Spencer, the bachelor, went to the front of the bus and told Dustin and Jacob that he just wanted to head home.

From this point, the men's retelling of the evening differs. Spencer and other partygoers recall Dustin pushing him and then hitting him on the eyebrow with a glass bottle. The two men then fought on the floor of the bus. Jacob then pulled the bus over. Dustin got off the bus. Another partygoer, Joshua (Josh) Burns, also got off the bus. Josh claims he went to ask why Dustin hit Spencer and then they "locked up" but "[n]othing ever happened." The two "wrestl[ed] around standing up" until Colby separated them. Josh looked away, and then Dustin attacked him. Colby followed Dustin and tried to persuade him to get back on the bus. Those on the bus drove around looking for Dustin and Colby before eventually giving up and returning home.

Dustin recalls matters differently. Dustin recalls Spencer shoving him first and then hitting him in the face with a bottle. Then, after Dustin exited the bus and was bent over, Josh punched him in the face several times. And then, Dustin claims, Jacob drove away—abandoning Dustin—when Jacob heard police sirens.

So Dustin initiated these proceedings. He alleged battery by Spencer; battery by Josh; battery and aiding and abetting battery by Colby; negligence by Jacob; and common carrier liability, negligence per se, negligence, and premises liability by Press Box.

The district court granted summary judgment to Jacob and Press Box. Dustin moved to voluntarily dismiss his claims against Colby, which the court granted. The remaining claims of battery by Spencer and Josh were tried before a jury. The jury returned a defense verdict.

Dustin now appeals. He claims (1) the court erred in permitting Spencer and Josh to argue self-defense, (2) the court improperly admitted prior bad acts testimony, (3) the court should have granted a mistrial because defense counsel referred to firearms during jury selection, (4) Press Box was not entitled to summary judgment, and (5) Jacob was not entitled to summary judgment. We address each claim in turn and will discuss additional facts as necessary.

II. Discussion

A. Self-defense

For his first claim, Dustin argues the district court erred in permitting Spencer and Josh to rely on self-defense at trial. Dustin claims Spencer and Josh failed to affirmatively plead self-defense in accordance with Iowa Rule of Civil Procedure 1.421(1), which requires "[e]very defense to a claim for relief in any pleading must be asserted in the pleading responsive thereto, or in an amendment to the answer made within 20 days after service of the answer." Spencer and Josh respond by arguing their answer² put Dustin on notice of the self-defense issue by stating that Dustin initiated the physical confrontations and that their conduct toward him was merely responsive to his violence. They also note that, even if their formal pleading was insufficient, they did offer to amend their pleading to conform to the proof. And so, because self-defense "had been litigated throughout" the case, the court had discretion to permit an amendment.

To be clear, the district court did not formally grant a motion to amend. Rather, when Spencer and Josh offered to amend, the court simply concluded the issue was already part of the case.

Still, the parties agree that—from a functional perspective—the district court permitted Spencer and Josh to add a previously unpled (or at least allegedly unpled) affirmative defense. In describing our standard of review, Dustin notes "[a]llowing presentation of an unpled affirmative defense is reviewed for abuse of discretion." Along similar lines, Spencer and Josh note, "The scope of review for submitting an allegedly unpled affirmative defense is for abuse of discretion." And both sides rely on the same case, Rife v. D.T. Corner, Inc. , in which the issue was whether the district court abused its discretion in permitting amendments to the pleadings. 641 N.W.2d 761, 766 (Iowa 2002).

So, for our review, we assume (without deciding) that Spencer and Josh's answer did not adequately plead self-defense. We further assume that, by submitting the self-defense issue, the district court effectively³ allowed Spencer and Josh to amend to conform to the proof. And so we focus our review on whether the district court abused its discretion by permitting that amendment.

Familiar principles govern our review:

We afford district courts considerable discretion in ruling on motions for leave to amend pleadings. Consequently, we will reverse only if the record indicates the court clearly abused its discretion. We will find an abuse of discretion when the court bases its decision on clearly untenable grounds or to an extent clearly unreasonable.

....

Iowa Rule of Civil Procedure [1.402] governs the amendment of pleadings. This rule instructs district courts to freely grant leave to amend when required by the interests of justice. Generally, a party may amend a pleading at any time before a decision is rendered, even after the close of the presentation of the evidence. As long as the amendment does not substantially change the issues or defense of the case, the court should permit the amendment. Even an amendment that substantially changes the issues may still be allowed if the opposing party is not prejudiced or unfairly surprised.

Id. at 766–67 (citations omitted).

Applying these principles here, we see no abuse of discretion. Even assuming Spencer and Josh's answer did not adequately plead an affirmative defense, it did far more than merely deny Dustin's allegations. It stated Dustin "got very angry and assaulted Spencer," "Dustin was verbally as well as physically abusive to Spencer," "after Dustin assaulted Spencer ... the men engaged in a physical altercation," and "Dustin ... repeatedly assaulted Joshua ... outside of the bus." These statements announced Spencer and Josh's position that their conduct was responsive to Dustin's assaults against them.

Moreover, as the case proceeded, the parties were aware Spencer and Josh were asserting self-defense. Dustin's counsel conceded, "I think throughout the discovery process they've alleged [self-defense] ...." Plus the proposed jury instructions—which were filed August 15, 2019, several months prior to trial—included an instruction on self-defense as an affirmative defense. The same day, Spencer and Josh filed a trial brief that discussed self-defense as an affirmative defense. Yet, as Spencer and Josh point out, Dustin did not respond by requesting "additional discovery as he would if he had been surprised and needed additional information."

All things considered, we do not believe permitting Spencer and Josh to assert self-defense created a "substantial[ ] change" in the issues before the court. Id. at 767. Nor was Dustin "prejudiced or unfairly surprised." Id. So we conclude the district court did not abuse its discretion.

B. Prior bad acts

Next, Dustin argues the district court abused its discretion in admitting evidence of his prior bad acts. He points to testimony from Jacob, Spencer, Josh, and Colby discussing specific instances of violence involving Dustin, as well as their general knowledge of Dustin's history of violence.⁴

"We review evidentiary rulings by the district court for abuse of discretion.... We reverse the district court's admission as an abuse of discretion when the grounds for admission were ‘clearly untenable or clearly unreasonable.’ " State v. Donahue , 957 N.W.2d 1, 6 (Iowa 2021) (citations omitted).

The district court relied on Iowa Rules of Evidence 5.404 and 5.405 to admit evidence of Dustin's violence. Rule 5.404(a)(2)(b)(i) provides that in civil cases, "Evidence of an alleged victim's character for violence may be offered on the issue of self-defense by a party accused of assaultive conduct against the victim." So because Spencer and Josh claimed they acted...