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Papillon v. Jones

Supreme Court of Iowa

March 31, 2017

BRYON JONES, Appellant.

         On review from the Iowa Court of Appeals.

         Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

         Plaintiff seeks further review of court of appeals decision vacating award of punitive damages for illegal eavesdropping. DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED WITH INSTRUCTIONS.

          Bryon L. Jones, Waukee, appellant, pro se.

          Bradley P. Schroeder and Laura J. Lockwood of Hartung & Schroeder, Des Moines, for appellee.

          WATERMAN, Justice.

         When is ignorance of the law an excuse? In this appeal, we review whether the district court properly awarded punitive damages under the Interception of Communications Act, Iowa Code chapter 808B (2013), without specifically finding the defendant knew his conduct violated that statute. In Iowa Beta Chapter of Phi Delta Theta Fraternity v. State, we interpreted chapter 808B to require such actual knowledge to award punitive damages. 763 N.W.2d 250, 267 (Iowa 2009). The defendant in today's case secretly recorded his ex-girlfriend's conversations with other persons outside his presence to use the recordings against her in their child-custody litigation. He claims that when he made the recordings, he was unaware his conduct violated chapter 808B. The ex-girlfriend sued him under that chapter, and yet he persisted in his efforts to use the illegal recordings. The district court, over his objection, allowed her to use the recordings to prove he violated chapter 808B and awarded compensatory damages, punitive damages, and attorney fees. The court found that "regardless of whether he was consciously aware that his conduct was illegal, " the defendant acted "willfully, maliciously and in reckless violation of the law."

         The defendant appealed, and we transferred the appeal to the court of appeals. The court of appeals affirmed the district court's evidentiary rulings and the award of compensatory damages. It directed the district court to recalculate the attorney fees award and award appellate fees. But the court of appeals reversed the award of punitive damages because the district court "did not find [defendant] was aware of the requirements of chapter 808B." We granted the plaintiff's application for further review on the issue of punitive damages.

         For the reasons explained below, we apply Iowa Beta Chapter and reiterate that to recover punitive damages, the plaintiff must prove the defendant knew he was violating chapter 808B. However, the evidence supports a finding this defendant knew he was violating the statute when he continued to use his illegal recordings in the custody litigation after his ex-girlfriend's lawsuit put him on notice of the Act's prohibitions. Accordingly, on remand the district court shall apply the correct standard to determine whether punitive damages are warranted under the existing trial record and, if so, the amount. We affirm the court of appeals decision on the remaining issues raised in the defendant's appeal.

         I. Background Facts and Proceedings.

         The following facts were established in the evidentiary record made at the bench trial. Brenda Papillon and Bryon Jones had a tumultuous relationship. They lived together in Waukee, Iowa, with their twin infants. Papillon owned the home. Jones stayed home caring for the twins while Papillon worked outside the home as an actuary. During January 2014, the couple ended the relationship. They attended two counseling sessions with Lindsey Olsen, a therapy specialist, but those efforts failed to resolve their problems. Jones frequently traveled to see his thirteen-year-old child from a prior relationship who lived in Omaha. On Friday, January 24, Papillon returned home from work to an empty house. Jones, without telling Papillon, had taken their twins to Omaha for the weekend. Papillon was surprised and distressed, as she felt the infants were too young to travel. Jones also failed to mention he left behind a hidden, sound-activated recording device (an Olympus VN-7200) in the study of their home.

         Papillon called a close friend, Kristie Sargent, to discuss her frustrations. Jones's device secretly recorded the conversation. Papillon revealed she had been to see a lawyer and was planning to seek custody of their children. She told Sargent her lawyer advised it was unlikely Jones would receive full custody. Papillon noted Jones had threatened to file a temporary custody order and told her, "[W]ell I'll call my lawyer and take those kids from you 'cause I'm their primary care provider."

         The next day, Papillon called her mother, expressing some of the same sentiments. Jones's hidden device recorded the conversation. Papillon told her mom about her plan to file for custody. On Sunday, Papillon called another friend, Bonnie Marshall. She talked about Jones taking the children to Omaha. She also divulged, "I went to my attorney on Friday. And I'm gonna file tomorrow." She continued, "I told him I want to go for [c]ustody." She discussed perhaps filing a temporary order against Jones. Papillon and her mother and friends were unaware Jones was recording these conversations.

         On Monday, Papillon filed a custody action in the Iowa District Court for Polk County. The couple initially continued to live in Papillon's house. Papillon let Jones stay because she wanted "to be nice" and thought it may "look bad" in the custody action if she kicked him out. The court held a temporary custody hearing in March and entered a temporary support order for Papillon to pay Jones.

         The weekend before that temporary hearing, Sargent visited Papillon at her home. Jones was in Omaha, yet he later sent Sargent a message by social media disputing the veracity of what Papillon had told Sargent privately. Sargent alerted Papillon, warning that she believed Jones may have been recording them given his detailed account of their private conversation. Sargent later testified, "I mean, [Papillon] reacted that [she thought] that was the case and was very upset, she was crying. She didn't understand. She kept saying why, you know, why would this happen? Why would somebody do this?"

         Jones began playing back the recordings at night in their home at high volume, preventing Papillon from sleeping. Fearing he would continue to record her, in early April Papillon moved to a motel room with the children. She emailed Jones, stating,

I can no longer live under the same roof as you due to your behavior since mediation. I won't stay somewhere where I am harassed. I have rented a temporary place in Ankeny until you move out. The babies will stay with me on my days and I'll bring them and pick them up from daycare according to the calendar I previously sent.

         She said her lawyer advised her to move "to a safer environment." Jones responded by offering to move out of the home if Papillon would pay for his hotel. She declined.

         Jones frequently sent Papillon emails and text messages threatening to publicly disclose the contents of the recordings. One such text stated, "[W]hether it be in court or online-the truth will be revealed to all." He called Papillon a liar and warned he would show people the recordings to expose her. Jones said he possessed a video of Papillon allegedly "driving drunk" with the children in the car, although no such video was ever produced. Jones later admitted the video never existed, and he had only been trying to upset Papillon by telling her about it.

         The parties exchanged discovery in the custody action. Papillon served an interrogatory asking Jones to identify "[f]or each report of surveillance . . . [t]he name, address, and telephone of each person who requested or authorized it." Jones responded that he had "requested/authorized" the recordings "for the purpose of litigation."

         Jones transcribed the recordings. He gave the transcripts and six hours of audio files to his attorney for use in the custody proceedings. He also gave the recordings to Dr. Sheila Pottebaum, the child custody evaluator. Her report stated she reviewed the "[a]udio recordings of Brenda from conversations Bryon said he taped without Brenda's knowledge, along with his typed transcription of parts of the recordings." Dr. Pottebaum recommended Papillon receive full physical custody of the children. Jones listed the recordings and corresponding transcripts as exhibits in the custody proceedings until the morning before the custody trial began in November, when he finally withdrew them. The district court awarded Papillon sole physical custody of the twins.

         Meanwhile, in August-three months before the custody trial- Papillon filed a civil action in district court against Jones, alleging a violation of Iowa Code section 808B.2, which prohibits "willfully intercept[ing] . . . a[n] oral communication" without permission of one of the parties. Iowa Code § 808B.2(1)(a). Jones was served with the original notice and petition that month and filed an answer and motion to dismiss. He warned Papillon he would call thirteen to fifteen witnesses, prolonging the litigation into a five-day trial. Because Papillon wanted to avoid attorney fees, she dismissed that lawsuit without prejudice and filed this expedited civil action on January 15, 2015, several months after the custody ruling. See Iowa R. Civ. P. 1.281 (governing expedited civil actions). Papillon sued Jones for actual damages, punitive damages, and attorney fees. Jones's answer alleged the recordings were made "as a component to their on-going therapy sessions with Lindsey Olsen." He claimed during a therapy session he said he was "going to record their conversation to bring back to the sessions, " and Papillon responded, "Go ahead, I don't care."

         The district court conducted a bench trial. Papillon offered the recordings and transcripts into evidence. Jones objected based on section 808B.7, which prohibits admission of "the contents or any part of the contents of an intercepted . . . oral . . . communication . . . in evidence in a trial . . . if the disclosure of that information would be in violation of this chapter." Iowa Code § 808B.7. The district court ruled,

THE COURT: Well, the Court has reviewed Iowa Code Section 808B.7. The Court believes that that statute is intended as a shield to protect a person whose conversations have been surreptitiously recorded against the introduction of those recordings in litigation, such as the child custody litigation at issue in this case.
The Court does not believe that that code section is intended to prohibit a person whose recordings-excuse me-whose conversations have been surreptitiously recorded from introducing those recordings into evidence in a lawsuit for damages resulting from the recordings.

         The district court determined admission of the recordings and transcripts into evidence was necessary for Papillon to "prove up her case" because the contents would be relevant to punitive ...

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