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Atzen v. Atzen

Court of Appeals of Iowa

March 21, 2018

KARI ANN ATZEN, Plaintiff-Appellee,
ANGELIA RENEE ATZEN, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.

         Steven 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.

          Marcy A. O'Brien of O'Brien Law, P.L.C., Windsor Heights, for appellant.

          Andrea M. Flanagan, Flanagan Law Group, P.L.L.C., Des Moines, for appellee.

          Heard by Doyle, P.J., and Tabor and McDonald, JJ.

          TABOR, JUDGE.

         "I 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.

         I. Facts and Prior Proceedings

         Kari 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.

         The 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.

         Angelia 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.

         The 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" fashion.

         On 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 other.

         In 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.

         At 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 her son.

         Kari 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.

         Kari's 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.

         Angelia 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.

         I. Scope and Standards of Review

         We 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 (Iowa 2003).

         II. Analysis

         A. Abuse of Process

         First 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).

         Abuse 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 use").

         On appeal, Angelia contests only the first two elements: (1) use of the legal process (2) for an improper or unauthorized purpose.

         1. Did Angelia Use the Criminal Legal Process?

         Angelia 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.

         Recently, 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 legal process.

         But Angelia's focus is too narrow; we must consider her later conduct.[1]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.

         Kari 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).

         Kari 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.

         We next inquire into the motivation behind Angelia's use of process.

         2. Did Angelia Use the Legal Process in an Improper or Unauthorized Manner?

         Angelia 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 Atzen."

         Angelia 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 Inst. 1977).

         We 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.

         Kari 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.[2] See id.

         Here, 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.

         The 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.

         The 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 children's ...

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