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Baale v. Sunset Homes3/15/2000
Van Baale intended to rely on OSHA regulations. Midland had no reason to designate an OSHA expert before the March 20 deadline set forth in the scheduling order because nothing in the original petition put Midland on notice that Van Baale might rely on OSHA regulations. Indeed, Van Baale himself did not designate an OSHA expert. Therefore, Midland reasonably could have believed in March 1998 that OSHA was not an issue in the case. Under the particular circumstances of this case, we are not convinced the district court abused its discretion in permitting Midland's designation of an expert after the deadline contained in the scheduling order.
B. Admission of Expert Testimony
Van Baale contends the district court should not have admitted expert testimony pertaining to the OSHA standards the court judicially noticed. He maintains admission of this evidence violates the parol evidence rule. We reject this contention.
The parol evidence rule "forbids the use of extrinsic evidence to vary, add to, or subtract from a written agreement." Montgomery Properties Corp. v. Economy Forms Corp., 305 N.W.2d 470, 475-76 (Iowa 1981). The rule applies to written contract actions. Fed. Land Bank of Omaha v. Emberton, 460 N.W.2d 488, 491 (Iowa App. 1990). For reasons that are not clear in the record, Van Baale did not pursue his breach of contract claim. Therefore, we conclude the parol evidence rule is inapplicable.
Within the context of its parol evidence argument, Van Baale also appears to contend Midland's evidence of OSHA and industry standards is irrelevant. Van Baale, however, opened the door to this testimony by requesting that the court judicially notice certain OSHA regulations. Having done so, Midland was entitled to present a defense that the regulations and industry standards did not create a duty of care. Therefore, we conclude Midland's evidence of legal and industry standards was relevant. See Iowa R. Evid. 401 (defining "relevant evidence").
Van Baale does not argue the testimony of Midland's expert is inadmissible under Iowa Rule of Evidence 702. Cf. Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 535 (Iowa 1999) (concluding district court did not abuse discretion in finding expert qualified to testify about design defects and in allowing testimony). Therefore, we need not address this issue.
III. Affirmative Defense
Van Baale next contends the district court should have precluded Midland from presenting all its witnesses because the content of their testimony implicated affirmative defenses which Midland did not plead. Van Baale first raised this issue in his motion for new trial.
A motion for new trial is ordinarily not sufficient to preserve error in the absence of objections made during trial. Hobbiebrunken v. G & S Enters., Inc., 470 N.W.2d 19, 23 (Iowa 1991). We are not convinced he preserved error. Id. However, we elect to pass on this error preservation issue and address the merits of Van Baale's contention. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
Van Baale specifically contends Midland's witnesses impermissibly testified to the affirmative defenses of avoidance, justification or excuse. We disagree. Iowa Rule of Civil Procedure 101 states:
Any defense that a contract or writing sued on is void or voidable, or was delivered in escrow, or which alleges any matter in justification, excuse, release or discharge, or which admits the facts of the adverse pleading but seeks to avoid their legal effect, must be specially pleaded.
An affirmative defense is "one resting on facts not necessary to support plaintiff's case." Bond v. Cedar Rapids Televi
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