BRENDA N. PAPILLON, Plaintiff-Appellee,
BRYON L. JONES, Defendant-Appellant.
from the Iowa District Court for Polk County, Arthur E.
appellant challenges the district court's award of
punitive damages and attorney fees.
L. Jones, Omaha, Nebraska, pro se appellant.
Schroeder and Laura J. Lockwood of Hartung Schroeder, LLP,
Des Moines, for appellee.
Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.
S.J., takes no part.
POTTERFIELD, Presiding Judge.
Papillon originally brought suit against Bryon Jones for
recording her conversations, which he did not have consent to
record and during which he was not present, pursuant to Iowa
Code section 808B.8 (2015). Papillon was successful in her
suit, and the district court awarded her actual damages,
punitive damages, and attorney fees.
appealed. A panel of our court affirmed the district
court's award of actual damages but reversed the award of
punitive damages, concluding the district court's
findings did not meet the standard to justify an award of
punitive damages. We remanded for the district court to
recalculate the award of attorney fees and to award appellate
attorney fees. See Papillon v. Jones, No. 15-1813,
2016 WL 6270263, at *2-4 (Iowa Ct. App. Oct. 26, 2016).
filed an application for further review, which our supreme
court granted. The supreme court affirmed the award of actual
damages and the decision to remand to the district court
"to recalculate attorney fees and award reasonable
appellate attorney fees to Papillon, including for her
application for further review." Papillon v.
Jones, 892 N.W.2d 763, 773-74 (Iowa 2017). Regarding
punitive damages, the court determined "there was
sufficient evidence to support an award of punitive
damages" but recognized that the district court failed
to make the specific findings necessary to make the award.
The supreme court "agree[d] with the court of appeals
that the lack of such a finding requires reversal of the
award of punitive damages" but "disagree[d] the
door must remain closed to such an award." Id.
at 774. The case was remanded "for the district court to
determine on the existing trial record whether Papillon is
entitled to punitive damages under the standard reiterated in
this opinion, and if so, the amount thereof."
remand, the district court made additional findings regarding
how Jones continued to use and share the recordings of
Papillon's conversations even after he was aware that
doing so was illegal. The court entered judgment in favor of
Papillon, awarding her $2076.55 in actual damages; $18, 000
in punitive damages; $15.350.80 in attorney fees; and $17,
690 in appellate attorney fees.
appeals, arguing the district court (1) violated his right to
due process when it adopted the proposed findings of Papillon
on remand and (2) erred when it ordered him to pay trial
attorney and appellate attorney fees without having evidence
of either party's finances.
the initial hearing on remand, Papillon filed a proposed
order-which included findings of fact of conclusions-and the
district court adopted that order three days later, on August
28, 2017. We recognize the order was adopted in its entirety,
without Jones filing his own proposed order or providing
comments on Papillon's proposed order. See Kroblin v.
RDR Motels, Inc., 347 N.W.2d 430, 436 (Iowa 1984)
(outlining the "better practice" as asking both
parties to assist prior to making a decision in the case and
"emphasiz[ing] that in fairness all parties should be
given the same opportunity to submit proposed findings and to
comment on findings proposed"). However, the August 27
order is not the final order that is before us now. Following
the court's adoption of the order, Jones filed a motion
to reconsider, which the district court granted. In its final
November 15, 2017 ruling, the district court agreed with
Jones that the adoption of Papillon's proposed order was
in error and struck the prior ruling. The court's
November 15 ruling relied very little on the proposed order
filed by Papillon, using some portions of the proposed order
in conjunction with the court's own findings and
conclusions, as is proper. See In re Marriage of
Siglin, 555 N.W.2d 846, 849 (Iowa 1996) (requiring
"the practice of requesting counsel to prepare proposed
findings and conclusions" to "be employed"
"as a cooperative means of assisting the court in
preparing a fair and prompt decision. Trial judges can show
their responsible use of this practice by refraining from
wholesale, or near wholesale, adoption of a proposed
decision. Instead, the proposed decision should be a guide,
with selected portions incorporated into the independent
thoughts of the trial judge"); Kroblin, 347
N.W.2d at 436 (considering, as part of the "better
practice," that courts will "pick and choose and
temper and select those portions which better fits its own
concept of the case"). For this reason, Jones's due
process claims fails.
Jones maintains the district court erred when it ordered him
to pay trial attorney and appellate attorney fees without
evidence of his financial ability to pay or of Papillon's
need for fees. In doing so, Jones cites our familiar language
providing factors for the court to consider in determining
whether to award attorney fees in dissolution and custody
cases. See, e.g., In re Marriage of
Sullins, 715 N.W.2d 242, 255 (Iowa 2006) ("Factors
to be considered in determining whether to award attorney
fees include: 'the needs of the party seeking the award,
the ability of the other party to pay, and the relative
merits of the appeal.'" (citation omitted)). But
Papillon's right to fees comes from section
808B.8(1)(b)(3)-not chapter 598, which controls dissolution
of marriages of domestic relations-and provides that a person
whose oral communication is "intercepted, disclosed, or
used in violation of this chapter" is entitled to
recover "reasonable attorney fee[s] and other litigation
costs reasonably incurred." The section does not require
the court to consider or make a determination as to either
party's need or ability to pay before ordering the
payment of fees, and Jones does not cite an applicable
authority to support his claim the court must do so. This
considered Jones's cognizable claims, we find no
reversible error ...