from the Iowa District Court for Polk County, David May,
Welsh appeals from an adverse jury verdict in his civil suit
against the defendants.
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.
by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J. J
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.
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.
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."
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."
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.
Better Business Bureau Rating
contends the district court abused its discretion in
excluding evidence of Lithia's rating with the Better
Business Bureau. The rating was ...