from the Iowa District Court for Polk County, Eliza J. Ovrom,
Atzen's current wife appeals jury verdicts in favor of
his former wife in the former wife's lawsuit alleging
abuse of process, intentional infliction of emotional
distress, and defamation.
A. O'Brien of O'Brien Law, P.L.C., Windsor Heights,
M. Flanagan, Flanagan Law Group, P.L.L.C., Des Moines, for
by Doyle, P.J., and Tabor and McDonald, JJ.
have the cops on speed dial, " Angelia Atzen allegedly
warned her husband's former wife, Kari Atzen, after a
contentious encounter between the two women at a high school
gym in November 2011. For the next fifteen months, Angelia
waged an insidious campaign against Kari that a jury
recognized as abuse of process, intentional infliction of
emotional distress, and defamation. On appeal, Angelia argues
the jury's verdicts were not supported by substantial
evidence. She also contends the damage awards were excessive.
Finally, Angelia asserts the district court gave two faulty
jury instructions. Viewing the evidence in the light most
favorable to the verdicts, we affirm the jury's findings
and damage awards. We also conclude Angelia failed to show
prejudice from any instructional error.
Facts and Prior Proceedings
and Steven Atzen divorced in April 2009. The decree granted
Kari physical care of their two children and ordered Steven
to pay the mortgage on the home Kari shared with the
children. Steven made mortgage payments until the fall of
2010, when he became engaged to Angelia. Steven and Angelia
married in December 2010. In February 2011, Kari received a
letter from the lender indicating the house would be placed
in foreclosure. Kari and Steven continued to have
disagreements about his financial responsibilities. In
September 2011, Steven and Kari had a verbal argument in her
driveway as he dropped off some items for their children.
Steven and Angelia claim Angelia's then eight-year-old
son was in the backseat of Steven's car and overheard
Kari swearing at Steven. Kari contends she was trying to
discuss their children and her financial situation with
Steven and was unaware if Angelia's son was in the car.
Shortly after this incident, in early October, Steven filed a
petition for custody modification.
instant case was spurred by a confrontation between Kari and
Angelia on November 5, 2011. Kari, Steven, and Angelia
attended a youth basketball game at Southeast Polk High
School. Kari approached Steven to discuss their children.
Angelia was standing next to him and rolled her eyes as
Steven and Kari began to argue. Kari and Angelia exchanged
insults. Angelia claims Kari used profanity. Kari claims
Angelia accused her of being a "disgrace for a mother,
" and she replied by telling Steven "that's
exactly why she doesn't have any friends." Kari then
left the gym and joined two other parents in the hallway.
Angelia walked up behind Kari and said, "You're a
joke for a mother." Kari told Angelia she was afraid of
her, and she should stay away. It was at this juncture
Angelia warned Kari that she had the police "on speed
dial." Angelia then left the high school with her son.
Kari found the interaction with Angelia to be unsettling and
decided to file a police report.
also reported the encounter to police, though her story of
what happened was at odds with Kari's version. Angelia
claimed Kari chased her down the hallway yelling profanity
and tried to position herself between Angelia and her son as
they moved toward the exit. Angelia also emailed friends and
family asking for information regarding Kari's past
conduct. In addition, she emailed Steven's family-law
attorney to relay her version of events and expressed her
opinion Kari was not capable of "healthy
parenting." Angelia emailed Polk County Attorney John
Sarcone requesting assistance. When Angelia received a copy
of the police report, she was dissatisfied with the level of
detail and submitted an additional statement. The police
recommended Angelia and Kari stay away from each other.
Angelia emailed more friends a few days later requesting help
and sharing her account of the Southeast Polk incident.
next incident relevant to this lawsuit allegedly occurred on
December 11, 2011 at the Four Mile Creek Recreation Center,
where Kari attended a basketball game played by one of her
children. Kari did not believe Angelia attended the game
because she did not recall seeing her in the small gym. But
Angelia claims she was at the game when Kari walked
up and sat directly behind her in an "intimidating"
December 23, Kari filed her own custody modification
petition. Kari alleges, as a form of retaliation, Angelia
filed a fabricated police report relaying claims about the
December 11 incident and requesting criminal charges be
filed. As a result of Angelia's report, police issued an
arrest warrant for Kari. Kari was arrested, strip searched,
and held overnight in jail. When released, Kari was subject
to a no-contact order (NCO) preventing interactions with
Angelia. Eventually the NCO was modified so both women could
attend official school and sporting events for Kari's
children, so long as they did not have contact with each
February 2012, Kari's son participated in a basketball
tournament in Knoxville, Iowa. Kari took her son to a lunch
attended by the parent-coaches and other team families
between games. After arriving at the restaurant, Kari sat at
the parents' table, as far as possible from Angelia.
Angelia claims she and Steven scheduled the informal luncheon
and were surprised when Kari showed up because it was not an
official team event. Afterward, Angelia contacted the local
police department to report Kari violated the NCO and
provided names of people in attendance. As a result, the
Marion County prosecutor agreed to file a criminal complaint.
Angelia alleges she stopped pursuing the Marion County
complaint once she realized her stepson could be called as a
witness. The Polk County Attorney dismissed Kari's
harassment charge after the parties participated in the
Victim Offender Reconciliation Program.
various points during her fifteen-month crusade to discredit
Kari, Angelia contacted friends and family, Angelia's
co-workers, other parents, and elementary school officials,
to inform them of Kari's arrest, share Kari's mug
shot, and to assert Kari harassed and threatened Angelia and
eventually initiated an action against Pleasant Hill Police
Chief Timothy Sittig and Sergeant Matthew Covey, alleging
false arrest and a violation of her civil rights. The
district court dismissed those claims on summary judgment.
Kari unsuccessfully appealed the summary judgment ruling.
See Atzen v. Covey, No. 14-1958, 2016 WL 146343
(Iowa Ct. App. Jan. 13, 2016). Kari also filed this suit
against Angelia, alleging abuse of process, defamation,
malicious prosecution, intentional infliction of severe
emotional distress, harassment, and fraudulent concealment.
Angelia filed a motion for summary judgment on all claims,
and Kari withdrew her claims for fraudulent concealment and
malicious prosecution. The district court granted summary
judgment on the harassment claim but denied summary judgment
on the remaining claims.
suit went to trial in 2014. Angelia unsuccessfully moved for
a directed verdict; the jury found in Kari's favor on all
three claims and awarded punitive damages. Angelia filed
post-trial motions for judgment notwithstanding the verdict
(JNOV) and a new trial. The district court denied the motions
for JNOV and new trial, but remitted damages for past injury
to reputation from $200, 000 to $50, 000 and future injury to
reputation from $100, 000 to $25, 000.
filed a notice of appeal in February 2015, but the matter was
automatically stayed when she filed a Chapter 7 Bankruptcy
Petition in March 2015. In March 2016, the federal district
court approved a stipulation for relief from the automatic
stay which permitted this appeal to proceed.
Scope and Standards of Review
review the district court's denial of Angelia's
summary judgment, directed verdict, and JNOV motions for
correction of errors at law. See Podraza v. City of
Carter Lake, 524 N.W.2d 198, 202 (Iowa 1994). On appeal,
we view the evidence in the light most favorable to Kari as
the non-moving party. See id. We review a challenge
to the denial of a new trial based on jury awards for an
abuse of discretion. Ladenburg v. Ray, 508 N.W.2d
694, 696-97 (Iowa 1993). When the motion for a new trial
alleges the district court erred as a matter of law, then we
review for correction of legal error. Id. Challenges
to jury instructions are also reviewed for correction of
legal error. State v. Piper, 663 N.W.2d 894, 914
Abuse of Process
Angelia argues the district court erred as a matter of law by
permitting Kari to recover for abuse of process. Abuse of
process is "the use of the legal process, whether
criminal or civil, against another primarily to accomplish a
purpose for which it was not designed." Gibson v.
ITT Hartford Ins. Co., 621 N.W.2d 388, 398 (Iowa 2001).
Put another way, abuse of process amounts to using the legal
process to extort some advantage from another not available
through the legal process itself. See Royce v.
Hoening, 423 N.W.2d 198, 202 (Iowa 1988). The claim has
three elements: 1) use of the legal process, 2) in an
improper or unauthorized manner, 3) that causes plaintiff to
suffer damages as a result of the abuse. Fuller v. Local
Union No. 106 of United Bhd. of Carpenters &
Joiners, 567 N.W.2d 419, 421-22 (Iowa 1997).
of process is a commonly confused and rarely used tort.
See Philip L. Gordon, Defeating Abusive Claims
and Counterclaims for Abuse of Process, 30 Colo. Law.
47, 47 (2001) (describing it as a "once-obscure tort
absent from practically every law school curriculum").
It developed as a means to provide remedies beyond the scope
of malicious-prosecution claims. Id. Malicious
prosecution claims must be based upon a civil or criminal
proceeding wrongfully initiated and without probable cause.
See Ahrens v. Ahrens, 386 N.W.2d 536, 538 (Iowa
1986) (describing basis for malicious prosecution claim). But
abuse-of-process claims permit potential recovery for misuse
of a civil or criminal legal proceeding brought with probable
cause and a proper purpose. Restatement (Second) of Torts
§ 682 cmt. a (Am. Law Inst. 1977). Within the context of
an abuse-of-process claim, the wrongful conduct occurs after
the initiation of a legal proceeding. See Ahrens,
386 N.W.2d at 538 (stating abuse of process occurs when
"a lawfully used process is perverted to an unlawful
appeal, Angelia contests only the first two elements: (1) use
of the legal process (2) for an improper or unauthorized
Did Angelia Use the Criminal Legal Process?
argues that as a matter of law Kari is unable to prove the
first element-use of the legal process. See id.
Angelia incorrectly focuses on her conduct before initiation
of the criminal charges and NCO on December 30. Angelia cites
Fuller to argue her conduct cannot amount to use of
the legal process. 567 N.W.2d at 422 (holding "the mere
report to police of possible criminal activity does not
constitute legal process"). She claims her actions
beyond filing a report with police, including her follow-up
contacts with police, conversations with the county
attorney's office, and consultations with various
attorneys, illustrate her diligent attempts to address her
genuine concerns and, even if considered in aggregate, do not
amount to "use of process." At first blush,
Angelia's argument seems compelling.
an Arizona appellate court endorsed Fuller and its
conclusion that reports to police are not use of the legal
process. Fappani v. Bratton, 407 P.3d 78, 82-83
(Ariz.Ct.App. 2017). Expanding on Fuller's
reasoning, the Arizona court rejected an argument that a
defendant's repeated demands for a prosecutor to pursue
reported offenses amounted to use of the legal process.
Id. at 83. It reasoned: "A prosecutor has
discretion to prosecute such cases as he or she deems
appropriate, thus, whether a case is prosecuted is not
controlled by the victim or anyone else." Id.
The court concluded, "[d]emanding that the county
attorney prosecute a criminal violation of law, without more,
does not implicate judicial process." Id.
Following this reasoning, Angelia's reports to police,
entreaties for police to institute criminal charges,
consultations with attorneys, and communication with the Polk
County Attorney's Office before Kari was criminally
charged do not amount to use of the legal process. If our
inquiry ended here, we could not conclude Angelia used the
Angelia's focus is too narrow; we must consider her later
conduct.Abuse of process "is concerned with
the improper use of process after it has been
issued." Herring v. Citizens Bank & Trust
Co., 321 A.2d 182, 190 (Md. Ct. Spec. App. 1974). We
must assess Angelia's actions after initiation of the
criminal case to determine if she used the legal
process. Here process was issued when the district court
found probable cause supporting a preliminary complaint and
issued an arrest warrant and NCO. We must examine
Angelia's subsequent conduct to determine if she used
this legal process.
had the burden to prove Angelia took some action after the
State commenced the criminal charges "using legal
process empowered by that [prosecution] to accomplish an end
not within the purview of the [prosecution]." See
Batten v. Abrams, 626 P.2d 984, 990 (Wash.Ct.App. 1981).
Use of the legal process may also be described as some
"definite act or threat not authorized by the process or
aimed at an objective not legitimate in the use of the
process." See W. Prosser, Law of Torts
§ 121 (4th ed. 1971).
satisfied that burden by showing that after the NCO issued,
Angelia contacted the assistant county attorney assigned to
Kari's prosecution and inquired about using the NCO to
prevent Kari from contacting Steven regarding their custody
modification proceedings, worked with Steven to barter their
cooperation in the criminal proceeding for favorable custody
modification terms, attempted to use the NCO to prevent Kari
from attending the Atzen children's sporting events, and
claimed Kari violated the NCO in February. This course of
conduct represents the kind of perversion of the criminal
process after it is commenced that fulfills the first element
of abuse of process.
inquire into the motivation behind Angelia's use of
Did Angelia Use the Legal Process in an Improper or
claims, even if she did use the legal process, as a matter of
law, she did not use it in an improper or unauthorized
manner. See Fuller, 567 N.W.2d at 421-22. The
improper or unauthorized purpose must be the primary
motivation for the tortfeasor to use the process. See
Pundzak, Inc. v. Cook, 500 N.W.2d 424, 429 (Iowa 1993).
Specifically, the jury instructions required Kari to prove
Angelia used the criminal legal process "primarily for
the purpose of assisting Steven Atzen in the custody and
support action between Steven and Kari Atzen and/or to
intentionally inflict severe emotional distress on Kari
contends if she used the criminal process, she did so for its
intended purpose. In support of her contention, Angelia
repeats her version of events to show she had valid reasons
for pursuing criminal charges against Kari and notes the Polk
and Marion County Attorneys shared her interest in going
forward with the criminal cases. But "an abuse of
process can occur even though there is probable cause to
bring the action." Palmer v. Tandem Mgmt. Serv.,
Inc., 505 N.W.2d 813, 817 (Iowa 1993). And a cause of
action for abuse of process was developed specifically for
instances arising from misuse of a legal proceeding brought
with probable cause and a proper purpose. See
Restatement (Second) of Torts § 682 cmt. a (Am. Law
recognize abuse-of-process claims "often fail on the
merits because of the high burden imposed by the Iowa Supreme
Court for this second element." Jensen v.
Barlas, 438 F.Supp.2d 988, 1002 (N.D. Iowa 2006). As
Angelia notes, "proof of an improper motive by the
person filing the lawsuit for even a malicious purpose does
not satisfy this element." Palmer, 505 N.W.2d
at 817. A person cannot be held liable if she "has done
no more than carry the process to its authorized conclusion,
even with bad intentions." Jensen, 438
F.Supp.2d at 1003 (quoting Schmidt v. Wilkinson, 340
N.W.2d 282, 267 (Iowa 1983)). Abuse of process does not occur
even when the motivation for using the legal process was to
intimidate or embarrass the plaintiff. Id.
cannot prove abuse of process simply by showing Angelia
relished Kari's difficulties resulting from the
initiation of the legal process. See Pundzak,
Inc., 500 N.W.2d at 430. But if Angelia's
immediate purpose was some sort of extortion, then an abuse
of process occurred. See id.
the improper or unauthorized purposes identified in the jury
instruction were to influence Steven and Kari's
dissolution modification proceedings and to intentionally
inflict severe emotional distress. The allegation that
Angelia tried to influence the modification proceedings
qualifies as an improper purpose because she sought
"some collateral advantage" or influence over the
modification proceedings. See Palmer, 505 N.W.2d at
817. Kari's family-law attorney testified the parties
considered the criminal charges during mediation and agreed
to work toward dismissal, indicating the criminal charges
were used as a "bargaining chip." Angelia concedes
she communicated with Steven and his attorney during the
mediation. Likewise, Steven testified he and Angelia worked
together to achieve their objectives related to Kari. Angelia
regularly communicated with Steven's attorney about the
modification proceedings and their interplay with the
criminal charges. For instance, within the same email thread,
Angelia discussed the amount of new child support payments
between Kari and Steven and the impact of the criminal
proceedings on the modification proceedings. And Angelia
tried to use the NCO to prevent Kari and Steven from
communicating about the modification proceedings.
jury could infer Angelia's desire to influence the
modification proceedings from the timing of her course of
conduct. She emailed Steven's attorney roughly two and a
half weeks after Steven filed his modification petition,
suggesting specific conditions be included in the amended
decree. She reported the alleged December 11 incident on
December 27, four days after Steven was served notice of
Kari's counter-petition to modify their custody
arraignment. Angelia filed her Marion County complaint
shortly before the mediation; she reported the claimed NCO
violation on February 25 and the mediation addressing
modification occurred on March 1, less than a week later.
jury could also consider Angelia's use of the criminal
proceedings to inflict severe emotional distress upon Kari as
an improper motive. The infliction of emotional distress on
Kari was not simply, in Angelia's view, a happy byproduct
of the criminal proceedings; it was a primary purpose for
Angelia's conduct. See Pundzak, 500 N.W.2d at
430. The record is replete with evidence indicating Angelia
used the NCO as a sword against Kari. For instance, Angelia
intended the NCO to prevent Kari from attending her own