Gregory Scott Ingram v. Iowa Interstate Railroad, LTD.

IN THE COURT OF APPEALS OF IOWA

No. 21-0940
Filed December 7, 2022

GREGORY SCOTT INGRAM,
Plaintiff-Appellee,

vs.

IOWA INTERSTATE RAILROAD, LTD.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Jason D. Besler, Judge.

An employer appeals the denial of its motions for a new trial and judgment

notwithstanding the verdict. AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.

Meredith A. Moore of Cutler Law Firm, LLP, Sioux Falls, South Dakota, and

Onna B. Houck, Cedar Rapids, for appellant.

Matthew L. Preston, Brad Brady, and Cara L. Roberts of Brady Preston and

Gronlund PC, Cedar Rapids, for appellee.

Heard by Vaitheswaran, P.J., and Greer and Badding, JJ.
2

GREER, Judge.

Despite his termination from Iowa Interstate Railroad, Ltd. (the Railroad) in

November 2018, Gregory Ingram argues he was still entitled to a retention bonus

set to pay out at the end of the year. When the payment did not arrive, he sued

the Railroad for breach of contract and pursued his rights under the Iowa Wage

Payment Collection Law (IWPCL). To block these claims, the Railroad moved for

summary judgment, but it lost that round. Then at trial, the Railroad moved for

directed verdict at the end of Ingram’s case and at the end of trial. Those motions

centered on an argument that Ingram only estimated the amount of bonus due and

did not reliably establish an amount for his damage claim.1 The district court

denied the motions. After a trial on the merits and the submission of the case, the

jury found in Ingram’s favor and awarded all of the damages Ingram requested.

After the verdict, the Railroad moved for a new trial and for judgment

notwithstanding the verdict (JNOV); both were denied. It now appeals, renewing

its concerns the district court should have granted summary judgment and its

motions for a new trial and JNOV. Finally, after the jury awarded damages, Ingram

requested his attorney fees and expenses for trial be paid under the authority of

IWPCL. The district court granted Ingram’s request, and the Railroad also appeals

from that attorney-fee and expense ruling.

As a matter of law, we cannot review the district court’s denial of issues

contested at the summary judgment stage that were not raised at trial. And we

1 At the end of the trial on the merits of Ingram’s claims, the Railroad added to its
motion-for-directed-verdict argument a request for dismissal based on a theory of
the objective reasonableness standard.
3

find no error or abuse of discretion in what has been properly preserved for our

review involving the denial of the Railroad’s motion for JNOV and new trial.

However, we find the district court abused its discretion in awarding attorney fees

as to the award of copying costs. As such, we reverse the award to remove the

copying costs but otherwise affirm. Because Ingram was largely successful in

defending his claims on appeal, we remand to the district court to determine an

appropriate award of appellate attorney fees.

I. Facts and Procedural History.

Ingram was hired by the Railroad as an Assistant Chief Engineer-Track

Maintenance in April 2012. The Railroad’s president and chief executive officer

identified Ingram to be a part of their “key manager retention plan.” The plan’s

purpose was to “retain those selected management individuals who, in the view of

the President and CEO with concurrence of the Board of Directors, play key roles

in the ongoing success and progress of [the Railroad] and have demonstrated

success in carrying out their job duties in this regard.” The plan listed the active

participants, including Ingram, and explained they would “cease being [a]ctive

[p]articipants” if certain conditions were met; the condition relevant to this case was

“[r]esignation from [the Railroad] or termination for cause, upon which all amounts

otherwise due from [r]etention [a]wards previously made shall be forfeited.” The

term “for cause” was not defined.

Each active participant had a retention account, over which the Railroad

maintained records. In exchange for remaining an active plan participant and

“continuously remain[ing] a full-time employee of [the Railroad],” the active
4

participant was eligible to receive a retention award each year.2 Each year’s award

amount was equal to “(1) 30% of the [a]ctive [p]lan [p]articipant’s annual salary

earned in each [p]lan year times (2) [e]ach [p]lan [y]ear’s [r]etention [a]ward

[f]actor.” The retention award factor was determined based on the company’s

audited yearly earnings, which would be determined the following spring; then, the

award was credited to the retention account. The retention account would become

payable in shifts, specifically:

The first 50% of the accrued payment will be paid following
the audit of the fifth year’s December 31 financial statements and the
Board’s certification that the [p]articipant has become entitled to
payment. The employee must be an active employee of [the
Railroad] as of December 31 of the fifth [p]lan year.
The remaining 50% will be paid to the [p]articipant in January
following the sixth calendar year, if the employee remains an active
or retired employee of [the Railroad].

Ingram’s five years began on January 1, 2013, meaning he would be eligible

for the first half of the accrued payment after December 31, 2018, and the second

half as of January 2019. Each year, the Railroad provided a statement to the plan’s

members. Ingram’s 2017 statement showed an accrual of $31,500, putting his

year-end total at $127,663.

The Railroad terminated Ingram’s employment on November 16, 2018.

Along with his termination letter, Ingram received a separation agreement, in which

the Railroad offered to pay what portion of the plan payment would have been due

had he remained employed through December 31, 2018—a payment the Railroad

2 The plan’s terms defined the year as a calendar year, which began “the first
January 1 following approval of the individual as an [a]ctive [p]lan [p]articipant.”
5

said was otherwise not due to Ingram. Ingram ultimately did not accept the

separation proposal. He never received a 2018 retention-account statement.

Ingram sued the Railroad, arguing both that the Railroad (1) breached its

contract by failing to pay him the bonus and (2) failed to pay earned wages,

violating the IWPCL. He calculated that, at the end of year five, his retention

account totaled $165,385.

Ahead of trial, Ingram provided a list of witnesses he wished to depose,

including the Railroad’s in-house counsel, Onna Houck; Chief Administrative

Officer, Bobbi Allen; and Chief Operating Officer, Alan Satunas. The Railroad

moved for a protective order to prevent the deposition of Houck, arguing she had

no direct involvement in Ingram’s termination. The district court held that Ingram

would have to complete all other scheduled depositions first then he could apply

to the court to depose Houck. But the district court also held Houck could not

testify in any capacity unless she was made available for Ingram to depose.

Ingram took depositions of both Allen and Satunas, who the Railroad also offered

as corporate representatives.

Eventually, the Railroad moved for summary judgment on both claims,

which the district court denied. The Railroad did not ask for interlocutory appeal

from this ruling, so the case proceeded to trial.

To prove his claims at trial, Ingram presented evidence of his understanding

of the plan and his experience with the Railroad. He testified that Jerome Lipka

approached him about joining the retention plan—Lipka was, at the time, the

Railroad’s president and also the plan’s drafter. Ingram explained that Lipka

conveyed to him that, to get the retention plan benefits, an employee had to
6

Keep your nose clean. No drugs and alcohol. Don’t get accused of
theft and don’t be insubordinate. As long as you don’t have the
heavy hitters and, obviously, there’s, you know, you’ve got to do your
daily job and keep performing at the level that [Lipka had] been
impressed with, you will have no problem.

But even with this advice, Ingram found other barriers to success at the Railroad

because of his interactions with his supervisor, Chad Lambi. At trial, Ingram

testified about his contentious relationship with Lambi around the time of his

termination. As an example of the two butting heads, Ingram discussed a

washout—or when “water rushes up against the track from a flood or heavy rain

and it takes the rock out of the track and it can move the track around”—that

occurred in July 2018. Ingram was at the site with the roadmaster,3 Collins Smith,

working on the issue. In particular, there was a bridge that seemed to be “kinked

or twisted.” Ingram testified that he was concerned a crew and train was being

sent out that would cross the compromised bridge, so he called Lambi. Ingram

asserted Lambi told him to “[s]end the fucking train.” When Ingram protested,

Lambi said that if he arrived on the scene and disagreed with Ingram’s

assessment, Ingram would be terminated. Eventually, Lambi arrived at the scene

and the bridge sagged down into the water, which showed Ingram’s concerns were

valid. In an additional example of animus, Ingram described a company social

event where Houck cursed and yelled at him in front of other management. He

also testified he was never told why he was terminated.

After Ingram finished presenting his case and rested, the Railroad moved

for directed verdict. In so moving, the Railroad argued Ingram failed to establish

3At trial, a roadmaster was described as “the manager of a territory for the track,”
who was “given a section of track . . . to maintain.”
7

what the damages would be because his retention award had not been calculated

for year five and because Ingram’s termination would have changed the company’s

“bottom line” and, thus, the retention factor it ended up using. So, the Railroad

argued, without an expert witness to contextualize and adjust the numbers

accordingly, there was no showing of what the exact damages should be for either

the breach-of-contract or IWPCL claims. Ingram argued he supplied sufficient

evidence to support his $164,385 figure and for a jury to determine if that was the

appropriate amount. The district court, evaluating the evidence in the light most

favorable to Ingram, determined Ingram produced sufficient evidence for the jury

to reasonably ascertain damages; so, it denied the motion.

To show it had cause for Ingram’s termination, the Railroad provided

evidence about three different incidents it believed were terminable offenses—an

interaction with a disgruntled employee in September 2018, an employee-injury

investigation in October 2018, and a derailment investigation in October 2018. The

Railroad also discussed its interpretation of the plan and its requirements. As part

of its case-in-chief, it attempted to offer the separation agreement into evidence.

Ingram objected, arguing the agreement was inadmissible under Iowa Rule of

Evidence 5.408(a), which disallows the admission of settlement offers “to prove

the validity or amount of a disputed claim.” The Railroad argued this evidence was

being offered not to challenge liability but to show the Railroad did not think the

wages were due and did not act with animus in withholding them from Ingram.

And, because Ingram had referenced the separation agreement, the Railroad

believed the door had been opened. The district court sustained the objection and

excluded the agreement, but it did allow the Railroad to discuss the separation
8

agreement in generalities—barring any conversation of the specific amounts

offered.

The Railroad also attempted to offer testimony from Houck, Smith, and

Lipka. But consistent with its pretrial order, the district court prevented Houck from

testifying because the Railroad blocked Ingram from deposing her. The Railroad

then asked for Smith to take the stand, arguing he could directly refute some of

Ingram’s testimony about the July 2018 washout. After Ingram objected, the

Railroad conducted an offer of proof, but the court ultimately found that Ingram’s

testimony about the washout was not so surprising to justify Smith testifying when

he was not previously disclosed as a witness. And, because Smith was not privy

to the conversations between Lambi and Ingram, the district court did not see

impeachment value that would outweigh the prejudice to Ingram.4 But the district

court did not foreclose the Railroad from offering Smith as a surrebuttal witness if

appropriate. Finally, the Railroad sought to have Lipka take the stand to offer direct

impeachment evidence. Again Ingram objected, noting that Lipka was not included

on the Railroad’s witness list. The district court did not allow the testimony, once

again concluding that Ingram’s testimony about Lipka was “very foreseeable.” And

the district court noted that, while impeachment evidence is not to be taken for the

truth of the matter asserted, the court

[did] not believe there would be a curative instruction . . . powerful
enough to make it clear to the jury that they’re not supposed to take
anything that he says for its truth. He’s the guy that wrote the plan.
The jury’s gonna take that evidence and they’re gonna use . . . it for
its truth.

4 Lambi testified and refuted Ingram’s telling of events.
9

Ultimately finding the probative value outweighed by the prejudice to Ingram, the

district court prevented Ingram from testifying in the Railroad’s case-in-chief, but

provided that the Railroad could offer Lipka in surrebuttal if appropriate.

At the close of evidence, the Railroad renewed its motion for directed

verdict, arguing again that the damages Ingram asked for were only an estimate

and also arguing, for the first time, that the court should have used the “objective

reasonableness test.” The motion was again denied.

The jury found that the Railroad had breached its contract with Ingram and

violated the IWPCL. It found Ingram was entitled to $165,385 in unpaid wages.

The jury also specifically found the Railroad intentionally failed to pay the due

wage, thereby granting Ingram $165,385 in liquidated damages, and bringing the

total verdict to $330,770. Ingram was also awarded attorney fees and expenses.

In response, the Railroad filed a combined post-trial motion for a new trial

and JNOV. In the motion’s introduction and conclusion, the Railroad asserted the

jury’s finding was in violation of law on both the IWPCL and breach claims. But

the body of its argument addressed only the IWPCL claim; yet the Railroad

addressed both claims in its reply brief. The district court noted that, because a

reply brief can only raise “newly decided authority” or “respond to new and

unanticipated matters,” the breach claim was not at issue in the motions, but still

analyzed both claims in its order.

As to the motion for new trial, the Railroad pointed to the evidentiary

concerns about the separation agreement and testimony from Smith, Lipka, and

Houck. The district court denied the Railroad’s motion in its entirety.
10

Ingram submitted his request for attorney fees, which the Railroad resisted;

but before the district court decided the issue, the Railroad appealed. It

subsequently appealed a second time after attorney fees were awarded in their

entirety—$227,259.71. Our supreme court consolidated the two actions into this

appeal.

II. Analysis.

The Railroad argues (1) the district court erred by submitting the IWPCL

claim to the jury and by denying the Railroad’s motion for a new trial because the

district court excluded admissible evidence and (2) the court should have used the

objective reasonableness test in its weighing of evidentiary value and included it

in jury instructions. Further, the Railroad argues the district court abused its

discretion in awarding Ingram’s attorney fees. We handle each challenge in turn.

A. The IWPCL Claim.

The IWPCL, or Iowa Code chapter 91A, sets out a framework requiring an

“employer [to] pay all wages due its employees.” Iowa Code § 91A.3(1) (2019).

Iowa Code section 91A.8 states:

When it has been shown that an employer has intentionally
failed to pay an employee wages or reimburse expenses pursuant to
section 91A.3, whether as the result of a wage dispute or otherwise,
the employer shall be liable to the employee for any wages or
expenses that are so intentionally failed to be paid or reimbursed,
plus liquidated damages, court costs and any attorney’s fees
incurred in recovering the unpaid wages and determined to have
been usual and necessary.

With that framework in mind, the Railroad argues Ingram’s IWPCL claim should

never have gone to the jury because Ingram (1) did not prove he was owed a wage

and (2) even if the retention account was a wage, it was not due. The Railroad
11

also argues the district court should have granted its motion for a new trial because

of evidentiary issues.

Ingram, for his part, argues a number of the Railroad’s claims have not been

preserved for appeal, so we begin by determining what was properly preserved for

our review.

i. Error Preservation.

“It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Error-preservation

rules are not meant to be hypertechnical, but they do “require that the nature of

any alleged error be timely brought to the attention of the district court.” Mitchell

v. Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 695 (Iowa 2013).

In its brief, the Railroad argues the district court erred by denying its motion

for summary judgment on the IWPCL claim. Not only is “[t]he denial of a motion

for summary judgment . . . no longer appealable once the matter proceeds to a

trial on the merits,” Lindsay v. Cottingham & Butler Ins. Servs., Inc., 763 N.W.2d

568, 572 (Iowa 2009), but it also does not preserve error. See Figley v. W.S.

Indus., 801 N.W.2d 602, 608 (Iowa Ct. App. 2011); Neuroth v. Preferred Cartage

Serv., Inc., No. 05-0320, 2006 WL 2871997, at *3 (Iowa Ct. App. Oct. 11, 2006)

(“Arguments denied in a motion for summary judgment, however, are not

preserved after a full trial on the merits, unless the issue is somehow preserved
12

through action at trial.”). Our review is limited, then, to the arguments the Railroad

advanced in specific objections and motions at trial.5

In this case, the Railroad made two motions for directed verdict. In both, it

asserted Ingram’s claims must fail because he could not produce more than an

estimate of what his damages were. In its second motion, at the close of its

evidence, it also urged the court to apply the test of objective reasonableness.

In its appellate brief, however, the Railroad argues the IWPCL claim should

not have been submitted to the jury because, as a matter of law, Ingram failed to

prove the retention payment was a wage or that such a wage was due—as

necessary to succeed on a claim under the IWPCL. Aside from arguments about

the certainty of the wage, though, these arguments were not raised in the

Railroad’s motions for directed verdict. And while the argument was addressed in

the Railroad’s JNOV motion, this alone cannot preserve error for our review. See

Royal Indem. Co. v. Factory Mut. Ins. Co., 786 N.W.2d 839, 845 (Iowa 2010) (“A

motion for [JNOV] must stand on grounds raised in the directed verdict motion.”).

Still, the Railroad has preserved its arguments about the exactitude of the

damages, so we address that concern and review the district court’s denial of the

JNOV motion for correction of errors at law. See id. at 846.

5 We note that no objections were made to the jury instruction outlining the
elements of the IWCPL claim, making that instruction the “law of the case.” See
In re Estate of Workman, 903 N.W.2d 170, 175 (Iowa 2017).
13

ii. Certainty of Damages.

The jury was instructed Ingram had to prove “[t]he amounts owed under the

[k]ey [m]anager [r]etention [p]lan constitute[d] ‘wages,’” which were defined under

the plan as:

Any payments to the employee or to a fund for the benefit of
the employee, including but not limited to payments for medical,
health, hospital, welfare, pension, or profit-sharing, which are due an
employee under an agreement with the employer or under a policy
of the employer. The assets of an employee in a fund for the benefit
of the employee, whether such assets were originally paid into the
fund by an employer or employee, are not wages.

The Railroad argues Ingram could not succeed on the merits of his IWPCL claim

because he failed to establish the exact amount of damages owed. As evidence

supporting his requested damages, Ingram submitted his 2017 accrual total. The

Railroad admitted, in answers to interrogatories, that its retention factor for 2018

was calculated at 1.10. Ingram used this information and his past bonus awards

to reach his total requested damages. But the Railroad maintains his numbers

were only estimates because the retention factor did not reflect what the

company’s financials would have looked like had he remained employed for the

whole of 2018.6

Under Iowa law, however, damages “need not be proven to a mathematical

certainty.” PRO Com. LLC v. Mallory Fire Prot. Servs., Inc., No. 15-1420, 2016

WL 7395728, at *3 (Iowa Ct. App. Dec. 21, 2016). This is because “[t]here is a

recognized distinction between proof of the fact that damages have been sustained

6 At trial, Ingram agreed on cross-examination that “the fact that the company
would no longer have had [his] salary on the payroll, could have been expenses
associated with [his] work as well; that would change the financial information that
the company had for 2018.”
14

and proof of the amount of those damages.” Natkin & Co. v. R.F. Ball Constr. Co.,

123 N.W.2d 415, 422 (Iowa 1963). It is true that “[o]ne cannot recover if it is

speculative and uncertain as to whether the damages claimed have actually been

sustained, but if the uncertainty lies only in the amount of damages, recovery may

be had if there is proof of reasonable basis from which the amount may be

inferred.” Id. And while it is true the retention factor calculation did not account for

Ingram’s salary after November 16, 2018, Ingram provided a reasonable basis for

the jury “to make an approximate estimate of the loss.” See Data Documents, Inc.

v. Pottawattamie Cnty., 604 N.W.2d 611, 617 (Iowa 2000); Natkin & Co., 123

N.W.2d at 423 (“[A] defendant who has voluntarily breached a contract cannot

demand proof of plaintiff’s damages therefrom with great particularity or

exactness.” (citation omitted)). Even in cases where our supreme court has

considered the calculation of wages specifically, it has allowed an approximation

rather than precision. See Runyon v. Kubota Tractor Corp., 653 N.W.2d 582, 586

(Iowa 2002) (acknowledging a bonus cannot be due “until it can be accurately

estimated in accordance with the parties’ agreement”). We, like the district court,

find no merit in the Railroad’s complaint about the certainty of the amount of

Ingram’s requested damages; therefore, the matter was correctly submitted to the

jury.

iii. Motion for New Trial: IWPCL.

The Railroad also argues the district court should have granted its motion

for a new trial after making evidentiary missteps. Specifically, the Railroad asserts

that the separation agreement withheld from the jury would have shown it did not

intentionally fail to pay Ingram the wage, which would change his entitlement to
15

liquidated damages under the IWPCL. Even relevant evidence may be excluded

by the court “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.” Iowa

R. Evid. 5.403. “We review the denial of a motion for new trial based on the

grounds asserted in the motion.” Fry v. Blauvelt, 818 N.W.2d 123, 128 (Iowa

2012). And “[w]e generally review challenges to district court decisions to exclude

or admit evidence for an abuse of discretion.” Hawkins v. Grinnell Reg’l Med. Ctr.,

929 N.W.2d 261, 265 (Iowa 2019). A court abuses its discretion when “such

discretion was exercised on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.” Bremicker v. MCI Telecomm. Corp., 420 N.W.2d

427, 428 (Iowa 1988).

At trial, the Railroad attempted to admit the separation agreement into

evidence; Ingram objected under Iowa Rule of Evidence 5.408. Rule 5.408(a)

prohibits the use of evidence, by any party, of (1) “Furnishing, promising, or

offering—or accepting, promising to accept, or offering to accept—a valuable

consideration in compromising or attempting to compromise the claim that was

disputed on either validity or amount,” or (2) “Conduct or a statement made during

compromise negotiations about the claim” “to prove the validity or amount of a

disputed claim.” But it can be admitted for purposes other than proving validity or

amount of a disputed claim “such as proving a witness’s bias or prejudice, negating

a contention of undue delay, or proving an effort to obstruct a criminal investigation

or prosecution.” Iowa R. Evid. 5.408(b). And, “[t]he offer of settlement or

compromise exclusionary rule is designed to exclude this evidence only when it is
16

tendered as an admission of weakness of the other party’s claim or defense, not

when it is tendered to prove a fact other than liability.” Pogge v. Fullerton Lumber

Co., 277 N.W.2d 916, 921 (Iowa 1979). “It is generally held that offers to

compromise disputed claims are inadmissible because they are irrelevant and

because policy considerations[7] require their exclusion.” Lewis v. Kennison, 278

N.W.2d 12, 14 (Iowa 1979). And, “such evidence has low probative value because

the motivation to settle may be ‘a desire for peace rather than . . . any concession

of weakness of position.” State v. Thoren, 970 N.W.2d 611, 638–40 (Iowa 2022)

(Waterman, J., concurring specially) (alteration in original) (citation omitted).

In their appellate brief, the Railroad argues again that the separation

agreement was offered to show it did not intentionally withhold wages from Ingram

and that the Railroad had no animus towards Ingram. We agree that this fits under

the exception to 5.408 because the separation agreement was not being offered

by the Railroad to show “an admission of weakness of [Ingram’s] claim or defense.”

Id. Rather, it was offered to show the Railroad did not believe the payment was

due, which is an independent justification our supreme court has approved of in

the past for allowing this kind of evidence. See Miller v. Component Homes, Inc.,

356 N.W.2d 213, 216 (Iowa 1984) (“Furthermore, these letters had probative value

quite aside from any consideration of admissions. In attempting to prove a

violation of chapter 91A, Miller was required to show his employer’s failure to pay

was intentional. The letters demanding the $13,000 in commissions tended to

7The commonly cited policy concern is that allowing this kind of evidence would
put a “chill on settlement or settlement attempts.” See Graber v. City of Ankeny,
616 N.W.2d 633, 639–40 (Iowa 2000).
17

show that Component Homes had not inadvertently failed to pay him.” (internal

citation omitted)). We tend to agree with the Railroad that this offering did not run

afoul of the purpose underlying rule 5.408. But we recognize the prejudice to

Ingram because the separation agreement was signed by him and then withdrawn.

Regardless, to prove a new trial is necessary due to wrongly admitted or

excluded evidence, the moving party must show they were prejudiced by the

decision. Hawkins, 929 N.W.2d at 266; see also Iowa R. Evid. 5.103 (“A party may

claim error in a ruling to admit or exclude evidence only if the error affects a

substantial right of the party . . . .”). And in this case, the district court ruled that “if

the [Railroad] wishes to explain why generally an offer would have been made,

you’ll be free to do that and talk about the process that that went about, but I think

bringing in the actual document just goes too far.” The Railroad asserts it should

have been allowed to use the agreement to rebut Ingram’s testimony that he did

not know why he was not paid under the plan. But Allen, who was in the meeting

when Ingram was terminated, testified about how Ingram asked after his

termination why he was not being paid his retention benefits; she responded that

she did not believe the amounts were due. And while the Railroad argues that the

fact it was willing to offer an agreement to Ingram shows a lack of animus,8 the

district court allowed testimony about the existence of the document—it simply

excluded the document itself. So, exclusion of the document itself did not

constitute more than harmless error. See Kengorco, Inc. v. Jorgenson, 176

8 Allen also testified at trial that the Railroad offered the separation agreement and
portion of the retention bonus “to recognize [Ingram] for, you know, the part of the
time that he had given the company . . . in regards to . . . his work.”
18

N.W.2d 186, 189 (Iowa 1970) (“In any event, as we have indicated, any error in

the exclusion of evidence is harmless error where the same evidence is

subsequently admitted and considered by the finder of fact or the court.”); Hamilton

v. O’Donnell, 367 N.W.2d 293, 295 (Iowa Ct. App. 1985) (noting that, where other

testimony was offered that filled in the gaps of the excluded evidence, “the

exclusion [of evidence] constitute[s] harmless error”).

B. The Breach-of-Contract Claim.

We turn next to the Railroad’s concerns under Ingram’s breach of contract

claim.

i. Summary Judgment.

Next, the Railroad argues that, as a matter of law, the breach claim should

not have been submitted to the jury. Again, the Railroad argues the district court

should have granted its motion for summary judgment; however, this is no longer

appealable at this stage in the proceedings and that motion does not preserve

error. See Lindsay, 763 N.W.2d at 572; see also Figley, 801 N.W.2d at 608. As

such, we do not address this challenge further.

ii. Motion for New Trial: Breach of Contract.

Next, the Railroad argues the district court incorrectly denied its motion for

a new trial because the court failed to use the objective reasonableness test.

Specifically, it argues the district court should have instructed the jury on the

standard and should have used it to tailor its evidentiary rulings. “We review the

denial of a motion for new trial based on the grounds asserted in the motion.” Fry,

818 N.W.2d at 128. “[W]e review refusals to give a requested jury instruction for
19

correction of errors at law.” Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa

2016).

The objective reasonableness standard gives “employers great deference

in making ‘cause’ termination decisions.” Kern v. Palmer Coll. of Chiropractic, 757

N.W.2d 651, 659 (Iowa 2008). Under this framework,

the judicial fact-finder’s role is not to determine whether the facts
underlying the employer’s “cause” determination were actually true,
or to conduct de novo review of whether the facts found by the
employer amounted to “cause” for termination under the terms of the
contract. Instead, the judicial fact-finder determines only whether the
cause claimed by the employer for termination was “a fair and honest
cause or reason, regulated by good faith on the part of the party
exercising the power,” based on facts “supported by substantial
evidence and reasonably believed by the employer to be true,” and
“not for any arbitrary, capricious, or illegal reason.”

Id. (citation omitted).

To begin, it is important to note this standard has not been adopted in Iowa;

in Kern, our supreme court explicitly rejected the objective reasonableness

standard in cases where “for cause” is defined by the contract at issue and “[left]

for another day the decision of whether the [objective reasonableness] rule

granting greater deference to the employer’s determination of ‘good cause’ should

apply where the employment contract fails to define the standard to be applied by

the fact-finder.” Id. at 660, 660 n.6. The Railroad argues that this case presents

the opportunity for the test’s adoption. But in Iowa, “the task of interpreting the

contractual terms that give rise to the event claimed to justify the termination [of

an] employment contract” has been left to the jury. See Hunter v. Bd. of Trs. of

Broadlawns Med. Ctr., 481 N.w.2d 510, 516 (Iowa 1992); see also Kern, 757

N.W.2d at 669 (Appel, J., concurring specially) (noting “a jury [is] always entitled
20

to determine the true reason for a discharge”). Importantly, our court is “not at

liberty to overturn Iowa Supreme Court precedent.” State v. Hastings, 466 N.W.2d

697, 700 (Iowa Ct. App. 1990).

a. Jury Instruction.

We look first to the Railroad’s contention that the jury should have been

instructed to follow the objective reasonableness standard. While it is right that

“Iowa law requires a court to give a requested jury instruction if it correctly states

the applicable law and is not embodied in other instructions,” Alcala, 880 N.W.2d

at 707, the objective reasonableness standard does not fit this mold. Because it

has not been adopted as Iowa law, the district court did not err by not instructing

the jury under this standard.

b. Excluded Witnesses: Smith and Lipka.

We turn next to two witnesses the Railroad argues should have been

allowed to testify: Smith and Lipka.9 As to any argument the Railroad has that the

district court should have considered the objective reasonableness test when

determining the evidence’s probative value, we echo our earlier statement that this

is not consistent with Iowa law. Insofar as it is arguing the evidence should have

been admitted regardless, “[w]e generally review challenges to district court

decisions to exclude or admit evidence for an abuse of discretion,” Hawkins, 929

N.W.2d at 265, which requires a showing that “such discretion was exercised on

9 The Railroad also mentions, in a footnote in its brief, that the district court erred
in not allowing Houck to testify. The Railroad provides no legal authority that the
district court was required to allow Houck to testify in contravention of its own order
dictating she could not testify unless Ingram was allowed to depose her. See Iowa
R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be
deemed waiver of that issue.”).
21

grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

Bremicker, 420 N.W.2d at 428.

Under Iowa Rule of Civil Procedure 1.500, parties are required to provide

one another “[t]he name . . . of each individual likely to have discoverable

information, along with the subjects of that information, that the disclosing party

may use to support its claims or defenses, unless the use would be solely for

impeachment.” Impeachment evidence is that “used to undermine a witness’s

credibility.” Impeachment Evidence, Black’s Law Dictionary (9th ed. 2009). This

requirement, that parties must disclose witnesses unless they are solely for

impeachment, was echoed in the district court’s trial scheduling and discovery

plan.

The testimony of Smith was offered by the Railroad in response to Ingram’s

assertions that he stopped the train from going over the bridge in the July 2018

washout against Lambi’s wishes. To attack Ingram’s credibility, the Railroad

wished to call Smith to challenge the truth of Ingram’s testimony that Lambi

demanded the train proceed despite the bridge’s condition. In an offer of proof,

Smith relayed that Ingram never told him to “run the fucking train” even though he

was the roadmaster in charge of the territory encapsulating the bridge and had

authority to check the bridge during the washout. But Smith did not have personal

knowledge of the actual conversation between Ingram and Lambi or the timing of

the conversation. Likewise, the Railroad’s assertion that it needed Smith’s

testimony to show that he stopped the trains and it was his authority that prevented

them from running also did not contradict Ingram’s discussion of the

determinations that were made on the ground—that the state of the bridge
22

prohibited train travel. Because Smith’s testimony does not impeach Ingram, the

probative value of his testimony does not outweigh the prejudice faced by Ingram

due to the Railroad’s failure to disclose Smith as a witness. See Iowa R. Evid.

5.403; Berry v. Maple Valley Cmty. Sch. Dist., No. 02-0168, 2003 WL 118508, at

*1–2 (Iowa Ct. App. Jan. 15, 2003) (holding a district court did not abuse its

discretion in excluding an unlisted witness’s testimony that did not “clearly rebut a

new matter offered in [the opposing party’s] case”). Therefore, we find no abuse

of discretion warranting the grant of a new trial.

The Railroad also wished to call Lipka to contradict Ingram’s understanding

of the contract terms. But here, we need to again address error preservation. As

to this claimed error, Ingram contests whether the Railroad preserved error on this

issue. Under Iowa law, “when the trial court refuse[s] to allow [testimony], [the

offering party has] the burden to demonstrate the substance of her proposed

testimony by an offer of proof.” Strong v. Rothamel, 523 N.W.2d 597, 599 (Iowa

Ct. App. 1994); see also Iowa R. Evid. 5.103(a)(2). The Railroad argues error is

preserved because there is an exception to this rule when “the substance [of the

offer of proof] was apparent from the context.” Iowa R. Evid. 5.103(a)(2). On this

record, however, we do not find that necessary level of clarity. See Brooks v. Holtz,

661 N.W.2d 526, 529 (Iowa 2003) (“‘[A] meaningful record for appellate review’

exists when the court does not have to speculate on the evidence sought to be

introduced.” (alteration in original) (citation omitted)). While it is clear that the

Railroad wished to show Lipka’s interpretation of the terms, we cannot know what

his testimony would have consisted of without an offer of proof. Because error
23

was not preserved, the Railroad’s argument surrounding Lipka’s exclusion must

fail.

C. Attorney Fees.

Finally, the Railroad argues that the court wrongly awarded Ingram the

entirety of his requested attorney fees. “We review the district court’s award of

attorney fees for an abuse of discretion.” GreatAmerica Leasing Corp. v. Cool

Comfort Air Conditioning and Refrigeration, Inc., 691 N.W.2d 730, 732 (Iowa

2005). “The district court is considered an expert in what constitutes a reasonable

attorney fee, and we afford it wide discretion in making its decision.” Id. at 733.

“The discretionary decisions of the trial court are presumed to be correct until the

contrary is shown by the complaining party.” Bremicker, 420 N.W.2d 427, 428

(Iowa 1988). “Reversal is warranted only when the court rests its discretionary

ruling on grounds that are clearly unreasonable or untenable.” Gabelmann v. NFO,

Inc., 606 N.W.2d 339, 342 (Iowa 2000).

“When an employee prevails on a wage claim under [the IWPCL], the district

court is required to assess attorney fees and costs against the employer.” Id. This

assessment is based on Iowa Code section 91A.8, which allows recovery of “court

costs and any attorney’s fees incurred in recovering the unpaid wages and

determined to have been usual and necessary.” Courts consider the following

factors:

the time necessarily spent, the nature and extent of the service, the
amount involved, the difficulty of handling and importance of the
issues, the responsibility assumed and results obtained, the standing
and experience of the attorney in the profession, and the customary
charges for similar services.
24

Gabelmann, 606 N.W.2d at 343 (citations omitted). “The purpose of the statute is

to reimburse the employee for the expenses incurred in suing for back wages.” Id.

In determining an appropriate award of attorney fees, the district court is not

required to “sort out precisely hour by hour what legal work was performed to

support what allegation,” Vaughan v. Must, Inc., 542 N.W.2d 533, 541 (Iowa 1996),

and “there is no ‘rigid formula’ that must be followed.” Smith v. Iowa State Univ. of

Sci. & Tech., 885 N.W.2d 620, 627 (Iowa 2016).

The Railroad raised three concerns with the district court’s award,

challenging: (1) fees for the breach of contract claim, (2) fees for claims not

successfully pursued, and (3) research, transcript, and copying costs. Ingram also

asks for appellate attorney fees.

i. Breach of Contract.

As to the breach-of-contract claim, the Railroad points us to Smith v. Iowa

State University of Science and Technology, which concerns a different statute

that, like the IWPCL, allows for the recovery of attorney fees. See 885 N.W.2d at

624. In that case, our supreme court dealt with separating fees incurred for the

claim allowing attorney fees and those which typically do not. Id. It explained “[t]he

ultimate question is whether the work for which recovery is sought can be ‘deemed

to have been “expended in pursuit of”’ a claim for which attorney fees are

recoverable.” Id. (citations omitted). While the claims in Smith were based in

common facts, the claims were not interrelated. Id. This is distinct from Ingram’s

claims—in the case at hand, success on the breach claim was a necessary first

step to proving a violation of the IWPCL. See Lee v. State, 874 N.W.2d 631, 649

(Iowa 2016) (“The court may properly award any fees incurred in the litigation
25

involving ‘a common core of facts’ or ‘based on related legal theories.’” (citation

omitted)). Because the work done to prove the breach claim was also necessary

for the pursuit of the IWPCL claim, we find no abuse of discretion by the district

court in not reducing the award for this purpose.

ii. Alternative Claims and Discovery.

The Railroad next argues the district court was wrong not to reduce the

award based on time spent on claims ultimately not brought and discovery battles

not won. It points specifically to Ingram’s exploration of claims against third parties,

for breach of fiduciary duty, ERISA violations, against Railroad employees, and for

breach of good faith and fair dealing. It also protests the award of fees accrued in

Ingram’s unsuccessful attempt to depose Houck.

The district court here found that the various theories explored and

discovery sought were necessary costs to pursue the IWPCL claim.10 And our

supreme court has found no abuse of discretion when, viewing the case as a

whole, a district court granted attorney fees without weeding out “time expended

on unsuccessful claims involving alternate and related claims,” particularly when

the “unsuccessful claims involve a common body of facts related to [the] successful

claims.” Lynch v. City of Des Moines, 646 N.W.2d 236, 239 (Iowa 1990); see also

10 The court stated:
The [c]ourt finds the time spent was necessary to pursue
[Ingram’s] [IWPCL] claim, the nature and extent of the services were
reasonable, the amount involved was reasonable, the difficulty
handling the issues in this matter, the results obtained for the
Plaintiff, the standing and experience of the attorneys in the
profession, and the fact these fees are customary charges in Linn
County, Iowa leads to the conclusion these fees are ordinary,
necessary, and reasonable in pursuing [Ingram’s] claim under [the
IWPCL].
26

Smith, 885 N.W.2d at 626 (“Rarely is litigation an unbroken string of successes.

Just about every legal proceeding involves setbacks.”).11 The Railroad has not

pointed us to any authority that contradicts the district court’s finding that these

explorations were not usual or unnecessary for IWPCL litigation, especially in light

of our finding that Ingram’s contract claims were sufficiently interrelated to the

IWPCL claim to allow for awarding attorney fees. The Railroad, then, has not met

its burden to show the district court abused its discretion.

iii. Research, Transcript, and Copying Costs.

Finally, the Railroad takes umbrage with the district court’s award of costs

for research, transcripts, and copying. The district court found these costs were

those “ordinarily included in attorney fees” and “typical for litigation, particularly

litigation as contentious as this case, and are at a reasonable cost as well.”

As to research, the Railroad contends Ingram’s presented evidence was not

sufficient to prove the research “reasonably relate[d] to the issue at hand.”12 Lee

v. State, 906 N.W.2d 186, 195 (Iowa 2018). We disagree. Ingram provided an

itemized break down of the time his attorneys spent on his case, including the

research they conducted. See id. at 196 (“While a party does not need to ‘record

in great detail how each minute of his time was expended,’ he must provide at a

minimum sufficient documentation to ‘identify the general subject matter of his time

11 While both parties send us to cases about unsuccessful claims, most of the
claims the Railroad complains about were really unpursued claims. Ingram was
successful on both claims ultimately brought before the jury.
12 The Railroad also makes passing reference that Ingram failed to show these

were “costs normally billed to a paying client in the relevant market.” Because this
was not developed into a cognizable legal argument, we do not address it. See
Iowa R. App. P. 6.903(2)(g)(3).
27

expenditures.’” (citation omitted)). The Railroad points us to Lee, where the

attorneys simply labeled their time as “research” or something similarly vague—

this is a far cry from the descriptions provided in this case.

In terms of the transcript costs, the Railroad objects specifically to the costs

of procuring transcripts of Satunas’s and Allen’s depositions because they were

not introduced into evidence. See Iowa R. Civ. P. 1.716. A reading of the record

shows this is not accurate—pages of trial transcript from this case are taken up by

Ingram reading portions of each of these depositions into evidence. Without more

than factual inaccuracies to rest this claim on, we consider it no further.

Finally, as to copying costs, Iowa Code section 625.6 states, “The

necessary fees paid by the successful party in procuring copies of deeds, bonds,

wills, or other records filed as a part of the testimony shall be taxed in the bill of

costs.” The Railroad argues that Ingram did not adequately explain how the

copying costs requested were incurred. We agree. Parties can be reimbursed for

the costs of procuring copies, not their printing costs. See Schewe v. Beck, No. 22-

0332, 2022 WL 5063833, at *5 (Iowa Ct. App. Oct. 5, 2022) (“As for the copy

expense for photographic exhibits, we find that cost is not a fee paid to procure

copies of ‘deeds, bonds, wills, or other records.’” (citation omitted)). With no

expenses for the procurement of these types of records clearly listed on their

itemization of costs, we agree the award of this cost was an abuse of discretion

and reverse the district court as to just this cost.

iv. Appellate Attorney Fees.

Ingram also requests the award of appellate attorney fees. Without a record

to determine an appropriate award of fees, we remand the issue to the district court
28

for the limited purpose of determining the usual and necessary fees of this appeal.

See Runyon, 653 N.W.2d at 588 (“Under Iowa Code section 91A.8, [plaintiff] is

entitled to a further award of ‘usual and necessary’ attorney fees and costs

expended in defending this appeal. We therefore remand to the district court for a

hearing on that matter.” (internal citations omitted)); see also Olver v. Tandem

HCM, Inc., No. 10-0225, 2010 WL 4885252, at *4 (Iowa Ct. App. Nov. 24, 2010)

(“Under the statute, the award of attorney fees to a successful litigant is mandatory.

This includes appellate attorney fees where appropriate.” (internal citations

omitted)).

III. Conclusion.

As we cannot review the district court’s denial of summary judgment and

we find no error or abuse of discretion in what has been properly preserved for our

review of the denial of the Railroad’s motion for JNOV and a new trial, we affirm

the jury’s verdict for Ingram. We find an abuse of discretion in the district court’s

award of copying costs as part of attorney fees, so we reverse the award as to the

copying costs only but otherwise affirm the court’s award of attorney fees. Further,

because Ingram was largely successful in defending his claims on appeal, we

remand to the district court to determine an appropriate award of appellate attorney

fees. See Iowa Code § 91A.8.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.