review from the Iowa Court of Appeals.
from the Iowa District Court for Polk County, Arthur E.
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.
L. Jones, Waukee, appellant, pro se.
Bradley P. Schroeder and Laura J. Lockwood of Hartung &
Schroeder, Des Moines, for appellee.
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."
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.
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
Background Facts and Proceedings.
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.
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."
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.
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.
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?"
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,
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.
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.
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.
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."
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
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."
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.
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 ...