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IN THE COURT OF APPEALS OF IOWA No. 0-704 / 09-1738 Filed November 24, 2010

TIM MCCANDLESS, INC., and SWIETER AIRCRAFT SERVICES, INC., Plaintiffs-Appellees, vs. GENE YAGLA, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.

An attorney appeals from a jury verdict in favor of the plaintiffs in a legal malpractice action. REVERSED AND REMANDED.

Robert M. Hogg and Patrick M. Roby of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellant. William W. Graham of Graham, Ervanian & Cacciatore, L.L.P., Des Moines, for appellees.

Heard by Vogel, P.J., and Vaitheswaran, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).

2 VAITHESWARAN, J. We must decide whether the district court abused its discretion in admitting evidence in a legal malpractice action that an attorney smelled of alcohol during trial. I. Background Facts and Proceedings Attorney Gene Yagla represented Tim McCandless, Inc. and Swieter Aircraft Services, Inc. in a civil lawsuit filed against them. A money judgment was entered against McCandless and Swieter in that lawsuit. Shortly after the trial ended, Yagla entered a substance abuse treatment facility. Yaglas law partner advised McCandless and Swieter that Yagla was in treatment for alcoholism and asked them whether "he had been drinking during your recent trial." Both told him they smelled alcohol on Yaglas breath. McCandless and Swieter sued Yagla1 for legal malpractice arising from his representation in the first trial. The petition alleged Yagla was negligent in failing to use "reasonable professional care, skill and knowledge" in his representation of them. Prior to trial, Yagla filed a motion in limine, seeking to exclude evidence of his alcohol use during the first trial. The district court denied the motion. The court also did not allow witnesses to opine on whether Yagla was intoxicated during trial and specifically excluded evidence of Yaglas post -trial treatment for alcoholism.

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The plaintiffs also sued Yaglas former law firm but withdrew the claim against the firm at the beginning of trial.

3 In opening statements, and again on cross-examination of Yagla, plaintiffs counsel asserted Yagla was an alcoholic who relapsed during the underlying trial. Both times defense counsel moved for a mistrial. The motions were

denied. Following the denial of the second motion for mistrial, Yagla admitted he consumed alcohol at least once and probably twice during the trial but said it did not affect his handling of the case. Several witnesses testified to the smell of alcohol on Yaglas breath during the underlying trial. No witness testified that Yagla was intoxicated during the underlying trial or that his alcohol consumption impaired his pre-trial or trial performance. At the conclusion of the legal malpractice trial, a jury awarded damages in favor of McCandless and Swieter and against Yagla for $72,695.77 and $15,041.44 respectively. Yagla moved for a judgment notwithstanding the verdict and for new trial. In his motion for new trial, he argued that the district court erred in submitting four of five specifications of negligence. The district court denied the motions and Yagla appealed. II. Evidentiary Ruling--Alcohol Smell Evidence Yagla argues the evidence relating to the smell of alcohol on his breath was not relevant and, even if relevant, was unfairly prejudicial. See Iowa Rs. Evid. 5.401, .403. A. Relevance

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or

4 less probable than it would be without the evidence." Iowa R. Evid. 5.401.

"Irrelevant evidence is not admissible." Graber v. City of Ankeny, 616 N.W.2d 633, 637 (Iowa 2000); see also Iowa R. Evid. 5.402. "The test is ,,whether a reasonable [person] might believe the probability of the truth of the consequential fact to be different if [the person] knew of the proffered evidenc e." McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000) (quoting State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988)). Our review of an evidentiary ruling is for an abuse of discretion.2 Crookham v. Riley, 584 N.W.2d 258, 268 (Iowa 1998).

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At least one state court has concluded the proper standard for reviewing relevancy rulings is for errors of law. See State v. Titus, 982 P.2d 1133, 1137 (Or. 1999). The court reasoned, Relevance determinations under OEC 401 . . . can yield only one correct answer; evidence either is relevant or it is not. Under OEC 401, if evidence logically is relevant, a trial court has no discretion to label it as irrelevant. See generally Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, 420 (2d ed. 1994) (because determinations of relevance are based upon logic and experience, there is little reason to defer to the trial court). Accordingly, we conclude that we must review determinations of relevance for errors of law. Our state has not made this distinction. See Iowa R. Evid. 5.401 cmt. ("The determination of relevance is for the trial court's discretion"); see also Shawhan v. Polk County, 420 N.W.2d 808, 809 (Iowa 1988) ("Issues of relevancy and prejudice are matters normally left to the discretion of the trial court; we reverse the trial court only when we find a clear abuse of that discretion"). Some opinions, however, imply that an "error" rather than "abuse of discretion" standard might apply to the review of relevancy rulings. See, e.g., Graber, 616 N.W.2d at 638 ("We review the courts decision to admit relevant evidence for an abuse of discretion." (emphasis added)); McClure, 613 N.W.2d at 235 (referring to "erroneous" rulings); State v. Brewer, 247 N.W.2d 205, 214 (Iowa 1976) (beginning by making determination that evidence was "relevant," then noting the trial court was "obliged to exercise its discretion and determine whether its probative value was outweighed by its prejudicial effect"). As Mueller and Kirkpatrick point out in their analysis of the comparable federal rule, The bare question whether evidence satisfies the relevancy standard . . . is much more a matter of logic and experience, and on this point there is less reason to be deferential to the trial judge. In short, the process of appellate review of the bare question of relevancy does not call for the degree of deference usually captured by a reference to the discretion of the trial judge . . . . Christopher B. Mueller & Laird C. Kirkpatrick, 1 Federal Evidence

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