IN THE SUPREME COURT OF IOWA
No. 15–1813
Filed March 31, 2017
Amended June 6, 2017
BRENDA PAPILLON,
Appellee,
vs.
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.
2
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.
3
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.
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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
5
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.”
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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.”
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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 damages. The
court overruled Jones’s objection.
Papillon testified about how Jones used the recordings in the
custody proceeding to uncover her litigation strategy:
Q. And how do you think it affected the proceedings,
given that Bryon basically was sitting at the table, in
essence, when you and your attorney were having
conversations that you’re then sharing with these other
folks? A. Well, I think that’s why at the temporary hearing
he knew exactly what I was going to do. He knew what I
would give and take on. And so in those negotiations, I
agreed to let him stay. I agreed to pay him . . . . When I’m
talking with my lawyer about what’s the worst that can
happen, what is the best that can happen, deciding how to
proceed with that, he used that against me.
Papillon testified she never gave Jones permission to record her, stating,
“Who would ever give someone permission to let them record them in
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their own house, talking to their friends and family, after a very horrible
breakup, right before a custody trial? Absolutely not. I would never
agree to that.” Similarly, Sargent and Marshall testified they were
unaware they were being recorded and never gave Jones permission to
record them. Dr. Pottebaum testified, “Bryon said he taped [the
recordings] without Brenda’s knowledge.”
Jones testified he never told Papillon specifically that he was going
to record conversations “that didn’t involve [him]”; rather, “I just said I’m
going to make a recording.” Jones stated he did not know the recordings
were illegal when he made them:
Q. Did you know it was against the law to intercept
another’s communication when you aren’t part of it? A. No.
Q. Did you ask anyone prior to beginning the
recordings whether it was against the law? A. No.
However, he acknowledged that several months before the custody trial,
Papillon sued him for violating chapter 808B, thereby notifying him his
recordings were potentially illegal. At his deposition that month, Jones
asserted his Fifth Amendment right against self-incrimination:
Q. Do you recall at that time pleading the Fifth
Amendment with respect to any of the questions I asked you
on that topic? A. Yes.
....
Q. That deposition, again, was taken August 19 of
2014; is that correct? A. Yeah.
Q. So you knew at least by that time, certainly, that
what you had done was illegal or potentially illegal; correct?
A. That was based on my counsel’s advice.
Despite his knowledge, Jones still planned to use the recordings against
Papillon in the custody proceeding:
Q. Well, the morning of [the custody] trial you were
still going to offer those as evidence against Brenda.
A. Yeah.
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Q. But you knew they were illegal; correct?
A. Correct.
The district court found Jones liable for illegally intercepting
Papillon’s oral communications on January 24, 25, and 26, and March 1
and 2 of 2014. The court made a specific finding discrediting Jones’s
explanation that he obtained permission to record her in their “heated
exchange” during the counseling session with Olsen. The court, after
hearing Jones’s testimony, found his explanation “defies common sense
and is not credible.” This was underscored by the “nature of the
conversations themselves,” which included Papillon’s “personal thoughts
regarding Defendant, . . . the advice given to her by her attorney, as well
as her litigation plans and strategies.” The district court awarded actual
damages of $2076 for Papillon’s motel charges.
The court awarded $18,000 in punitive damages, finding Jones’s
“motivations seem simply to hurt and harass the Plaintiff.” Jones had
repeatedly referred to Papillon as a “child killer” and a “liar” due to
painful events related to a drunk-driving incident causing the death of
her sister twenty years ago. Jones had threatened to reveal the
recordings, which he stated uncovered incriminating information about
the incident. He claimed Papillon was an alcoholic and frequently “drove
drunk,” but could produce no evidence to substantiate those claims.
Nonetheless, he still consistently threatened to reveal Papillon’s private
conversations in court or online, insisting they would support the truth
of his claims. The district court found,
Defendant claims he did not know it was illegal to
surreptitiously record Plaintiff’s private oral communications
without her knowledge, permission, or consent. Regardless
of whether Defendant was consciously aware that his conduct
was illegal, he intentionally recorded Plaintiff’s private
conversations and disclosed them or endeavored to disclose
them to third parties in order to use them against her in
child custody litigation. Defendant clearly knew what he
10
was doing when he did it and he did so willfully, maliciously,
and in reckless violation of the law.
(Emphasis added.) Finally, the district court awarded Papillon attorney
fees of $16,008. See Iowa Code § 808B.8(1)(b)(3) (allowing award of
attorney fees for violations of chapter 808B). Jones appealed, and we
transferred the case to the court of appeals.
On appeal, Jones argued the audio recordings were inadmissible in
the civil proceeding. He also contended the district court’s awards of
actual damages, punitive damages, and attorney fees were not supported
by the evidence. The court of appeals determined the district court
properly admitted the recordings into evidence because Papillon, a party
to the conversations, consented to their admission. The court of appeals
affirmed the district court’s award of actual damages and concluded
Papillon was entitled to an award of attorney fees. But it found she was
not entitled to all of her fees incurred in the first civil action she
voluntarily dismissed and held fees from the first action could be
awarded only to the extent the work benefited the second action. The
court of appeals directed the district court to recalculate the fees
accordingly and award appellate fees. It reversed the award of punitive
damages because proof of violating a “known duty” is required under
Iowa Beta Chapter and “[t]he evidence does not show Bryon knew his use
of the recordings violated the act.” We granted Papillon’s application for
further review.
II. Scope of Review.
“On further review, we can review any or all of the issues raised on
appeal or limit our review to just those issues brought to our attention by
the application for further review.” Woods v. Young, 732 N.W.2d 39, 40
(Iowa 2007) (quoting Anderson v. State, 692 N.W.2d 360, 363 (Iowa
11
2005)). Papillon sought further review of the reversal of her punitive
damages award, and we elect to confine our review to that issue. The
court of appeals decision shall stand as the final decision on the
remaining issues raised by Jones. See State v. Pearson, 804 N.W.2d 260,
265 (Iowa 2011) (electing to review only one issue and letting the court of
appeals decision stand on the remaining two).
A civil action for damages under section 808B is tried at law, and
“our review is for correction of errors at law.” Iowa Beta Chapter, 763
N.W.2d at 257. On questions of statutory interpretation of chapter
808B, our review is for correction of errors at law. State v. Spencer, 737
N.W.2d 124, 128 (Iowa 2007). “We review an award of punitive damages
for correction of errors at law.” Wolf v. Wolf, 690 N.W.2d 887, 893 (Iowa
2005).
“The district court’s findings of fact are binding on us if supported
by substantial evidence.” Iowa Beta Chapter, 763 N.W.2d at 257.
When a party challenges a district court’s ruling
claiming substantial evidence does not support the decision,
we must view the evidence in the light most favorable to
support the judgment and liberally construe the court’s
finding to uphold, rather than defeat, the result reached.
Id.
III. Analysis.
We must decide whether the district court properly awarded
punitive damages. We begin with an overview of the governing statute.
Iowa Code chapter 808B, enacted in 1989, is intended to protect
reasonable expectations of privacy in oral communications. See id. at
261; see also 1989 Iowa Acts ch. 225, §§ 22–29 (codified at Iowa Code
ch. 808B). To that end, section 808B.8 authorizes the victims of
intercepted communications to bring “a civil cause of action against any
12
person who intercepts, discloses, or uses” an unlawfully intercepted oral
communication “in violation of this chapter.” Iowa Code § 808B.8. A
violation of chapter 808B occurs when a person “[w]illfully intercepts,
endeavors to intercept, or procures any other person to intercept or
endeavor to intercept” an oral communication. Id. § 808B.2(1)(a). A
violation also occurs when a person “[w]illfully uses, or endeavors to use,
the contents of” an oral communication “knowing or having reason to
know that the information was obtained” through illegal interception. Id.
§ 808B.2(1)(d). To “intercept” means to acquire the contents of an oral
communication by use of “an electronic, mechanical, or other device.” Id.
§ 808B.1(6). An oral communication is a communication “uttered by a
person exhibiting an expectation that the communication is not subject
to interception, under circumstances justifying that expectation.” Id.
§ 808B.1(8). “When construing a statute, we are required to assess a
statute in its entirety, not just isolated words or phrases.” Iowa Beta
Chapter, 763 N.W.2d at 260.
In Iowa Beta Chapter, we reviewed a judgment against the
University of Iowa and Phillip Jones, its dean of students, in a civil action
brought under chapter 808B by a fraternity. Id. at 254. The University
had brought disciplinary proceedings against the fraternity alleging
alcohol and hazing violations based on a student’s complaint and secret
audio recording taken in the fraternity’s subbasement. Id. at 255–56.
The student rented an upstairs room in the fraternity house but was not
a member. Id. at 255. He planted a secret audio-recording device in the
subbasement room where the fraternity held its private meetings. Id.
The device digitally recorded audio of alleged hazing activities described
as “a military-style lineup in which active members were addressed as
‘hell masters’ and pledges were being trained.” Id. The University
13
submitted the audio recording as evidence at an administrative hearing,
and the hearing officer relied on the audio recording in affirming the
University’s penalties against the fraternity, including its derecognition.
Id. at 256. The fraternity’s lawyer faxed a copy of section 808B.7 to the
hearing officer and counsel for the University, who then dropped the
hazing charges. Id. The fraternity filed a civil action alleging violations of
chapter 808B. Id. at 256–57. Following a bench trial, the district court
entered judgment for the fraternity and against the State, the University,
and Dean Jones, awarding actual and punitive damages and attorney
fees. Id. at 257. We affirmed the district court’s findings that the
defendants’ use of the clandestinely recorded audio in the disciplinary
proceedings violated chapter 808B. Id. at 265. However, we reversed the
punitive damage judgment against Dean Jones because the “evidence
[did] not establish Jones knew his use of the tape violated the act.” Id. at
268.
Here, the district court found Jones violated the statute.
Substantial evidence supports its findings. Jones left a secret device in
Papillon’s home to record her private conversations with her friends and
mother. Papillon reasonably believed her conversations were private.
See id. at 261 (determining private fraternity meeting is place where
expectation of privacy was reasonable). Jones was not present for those
conversations. See Spencer, 737 N.W.2d at 128 (noting party to a
conversation may consent to recording without knowledge of other party
and use recording). Jones used or attempted to use the audiotapes and
transcripts of his secret recordings in the custody litigation by providing
those materials to the custody evaluator, threatening Papillon with their
use, and listing them as exhibits until the morning of the custody trial.
His conduct violated chapter 808B and supports the award of actual
14
damages. See Iowa Beta Chapter, 763 N.W.2d at 264–65; cf. Epstein v.
Epstein, 843 F.3d 1147, 1151–52 (7th Cir. 2016) (reviewing applicability
of Federal Wiretap Act to interception of emails in marital dissolution
action and reinstating claims against wife).
The award of punitive damages against Jones presents a closer
question. Punitive damages exist to punish a defendant who has
“intentionally violated another’s rights.” Ackelson v. Manley Toy Direct,
L.L.C., 832 N.W.2d 678, 686 (Iowa 2013). They also serve to “deter the
defendant, and others, from repeating such conduct in the future.”
Hamilton v. Mercantile Bank of Cedar Rapids, 621 N.W.2d 401, 407 (Iowa
2001). Section 808B.8 provides:
1. A person whose wire, oral, or electronic
communication is intercepted, disclosed, or used in violation
of this chapter shall:
....
b. Be entitled to recover from any such person all of
the following:
(1) Actual damages, but not less than liquidated
damages computed at the rate of one hundred dollars a day
for each day of violation, or one thousand dollars, whichever
is higher.
(2) Punitive damages upon a finding of willful,
malicious, or reckless violation of this chapter.
Iowa Code § 808B.8(1)(b) (emphasis added). The court of appeals
concluded to recover punitive damages under that section, the plaintiff
must prove the defendant was “aware of the requirements of chapter
808B and willfully, maliciously, or recklessly violate[d] those statutory
requirements.” We agree.
In Iowa Beta Chapter, we construed chapter 808B and concluded
that a “mere violation of the statute will not entitle an aggrieved person
to receive punitive damages.” 763 N.W.2d at 263. We noted the term
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“willfully” is used in both the liability and punitive damages sections of
chapter 808B. Id. at 263–64, 267. Section 808B.2 imposes liability for
“willfully” intercepting or using the recording, 1 while section 808B.8
allows punitive damages for “willfully, maliciously, or reckless[ly]”
violating the act. Id. at 263–64. We observed that “[i]f we define[d]
‘willfully’ in section 808B.2 as requiring a bad motive or knowing,
unlawful component, every violation would entitle a person to punitive
damages.” Id. at 264. Additionally, it would render the words
“malicious” and “reckless” in the punitive damages section surplusage.
Id. We concluded “the legislature intended more than a purposeful
violation of the statute before a court could award punitive damages.” Id.
at 267.
So ignorance of the law will avoid punitive damages, but not actual
damages under chapter 808B. “Willfully” in section 808B.2 “only
requires purposeful conduct without a bad motive or knowing, unlawful
component,” which is “consistent with our law that persons ordinarily
should not escape the legal consequences of failing to observe statutory
requirements by asserting ignorance of the law.” Id. at 264; see also
Diehl v. Diehl, 421 N.W.2d 884, 888 (Iowa 1988) (concluding jury
instruction erroneously required “actual knowledge by [the] plaintiff of
the statutory requirements” to supervise minor son while driving and
noting ignorance of the law does not excuse statutory violation of motor
vehicle code). But an award of punitive damages under section 808B.8
requires something more: a finding of “at least a voluntary, intentional
1See Iowa Code § 808B.2 (imposing liability when person “a. Willfully intercepts
. . . a[n] oral communication[,] b. Willfully uses . . . [a] device to intercept any oral
communication . . . [, or] c. Willfully discloses . . . to any other person the contents of
a[n] . . . oral . . . communication” (emphasis added)).
16
violation of, and perhaps also a reckless disregard of, a known legal
duty.” Iowa Beta Chapter, 763 N.W.2d at 263, 267 (emphasis added)
(quoting Citron v. Citron, 722 F.2d 14, 16 (2d Cir. 1983)).
We relied in part on cases construing the Federal Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2522. Id. at
262–63. Although Congress amended the damages section of the
Omnibus Crime Control and Safe Streets Act in 1986 by enacting the
Electronic Communications Privacy Act, the Iowa statute was based on
the language of the 1968 Act. Id. at 260–61. Thus, we found
interpretations of the 1968 Act instructive. Id. at 261. Before the 1986
amendment, federal courts
required the word “willfully” in a civil action under the
Omnibus Crime Control and Safe Streets Act of 1968 “to
denote at least a voluntary, intentional violation of, and
perhaps also a reckless disregard of, a known legal duty,”
rather than an act which is intentional, or knowing, or
voluntary, as distinguished from accidental.
Id. at 263 (quoting Citron, 722 F.2d at 16). We adopted this knowing
violation requirement for punitive damages under chapter 808B. Id. at
267.
“[E]vidence that defendants believed they were acting lawfully is
pertinent to a determination of whether they acted with malice or
wantonness so as to render punitive damages appropriate.” Campiti v.
Walonis, 467 F. Supp. 464, 466 (D. Mass. 1979). Thus, courts have
denied punitive damages under the Federal Act when the defendant was
unaware his conduct was illegal. Shaver v. Shaver, 799 F. Supp. 576,
580 (E.D.N.C. 1992). For example, in Shaver, a wife secretly recorded
her husband’s conversations because she thought he was having an
affair. Id. at 577. The court found a violation of the Federal Act, but
declined to award punitive damages because the wife did not know her
17
recordings violated the law. Id. at 580–81. But see Quigley v. Rosenthal,
327 F.3d 1044, 1070 (10th Cir. 2003) (recognizing knowledge of illegality
was “pertinent to a determination” of punitive damages, but allowing
punitive damages against an attorney who could have discovered the
illegality by investigating before using the intercepted private
communications).
Papillon argues Iowa Beta Chapter was wrongly decided eight years
ago because it relied on nonbinding federal cases interpreting a different
statute. The Iowa legislature, however, has not amended section 808B.8
to abrogate Iowa Beta Chapter, and we decline to overrule our precedent
given the tacit legislative acceptance of our interpretation. See Ackelson,
832 N.W.2d at 688 (declining to overrule precedent interpreting statute
to disallow punitive damages, in light of “the venerable principles of stare
decisis and legislative acquiescence”). We defer to the legislature
whether to relax the proof required for punitive damages under chapter
808B.
Papillon argues her award of punitive damages should be upheld
under Iowa Code chapter 668A, which governs recovery of common law
punitive damages and requires proof by “a preponderance of clear,
convincing, and satisfactory evidence, the conduct of the defendant from
which the claim arose constituted willful and wanton disregard for the
rights or safety of another.” § 668A.1(1)(a). But cases seeking punitive
damages for violations of chapter 808B are governed by that statute, not
chapter 668A. “We read related statutes together and attempt to
harmonize them.” In re A.M., 856 N.W.2d 365, 372 (Iowa 2014). If
statutes cannot be harmonized, the specific provision will “prevail[] as an
exception to [a] general provision.” Iowa Code § 4.7. Section 668A.1 is a
general provision applying to any “claim involving the request for
18
punitive or exemplary damages.” Id. § 668A.1(1). By contrast, section
808B.8 applies only to civil claims under that statute alleging the
unlawful interception of communications. Id. § 808B.8(1)(b)(2).
Accordingly, to the extent section 808B.8 cannot be harmonized with
section 668A.1, section 808B.8, as the more specific provision, controls.
To recover punitive damages under section 808B.8, the plaintiff must
prove the defendant knew he was violating the statute. Iowa Beta
Chapter, 763 N.W.2d at 267.
The district court concluded Jones “recorded Brenda’s private
conversations and endeavored to disclose them to third parties in order
to use them against her in child custody litigation” and did so “willfully,
maliciously, and in reckless violation of the law.” But the district court
made no finding that Jones was consciously aware that his conduct was
illegal. Thus, the court of appeals correctly concluded the district court
did not use the correct legal standard in awarding punitive damages.
“If we find an incorrect legal standard was applied, we remand for
new findings and application of the correct standard.” State v. Robinson,
506 N.W.2d 769, 770–71 (Iowa 1993). “Although an omitted ruling on an
issue of law may sometimes be cured by this court’s ruling on that issue,
. . . this is not possible with respect to an omitted finding of fact in a law-
tried case.” Power Equip., Inc. v. Tschiggfrie, 460 N.W.2d 861, 864 (Iowa
1990) (citation omitted). Unless we determine there is insufficient
evidence to sustain an award of punitive damages as a matter of law, we
must remand to the district court for appropriate findings of fact. See
Wolf, 690 N.W.2d at 893 (“We review an award of punitive damages for
correction of errors at law.”); see also McClure v. Walgreen Co., 613
N.W.2d 225, 230–31 (Iowa 2000) (determining district court properly
submitted punitive damages to jury when substantial evidence supported
19
a finding of willful and wanton conduct); cf. Caruso v. Apts. Downtown,
Inc., 880 N.W.2d 465, 475 (Iowa 2016) (concluding “a remand is not
necessary” when “we conclude as a matter of law that the evidence is
insufficient to support a penalty”).
We conclude there was sufficient evidence to support an award of
punitive damages. Papillon’s first lawsuit under chapter 808B was
served on Jones in August 2014 and put him on notice that his
subsequent efforts to use the illegal recordings violated that statute. He
asserted the Fifth Amendment to refuse to answer questions about his
recordings when deposed that month in the custody case. See Craig
Foster Ford, Inc. v. Iowa Dep’t of Transp., 562 N.W.2d 618, 623–24 (Iowa
1997) (“[A] trial court may infer in a civil case from a party’s refusal to
answer based on a claim of privilege against self-incrimination that the
answer would be adverse to the party.” (quoting Eldridge v. Herman, 291
N.W.2d 319, 322 (Iowa 1980)). Yet he persisted in using his illegal
recordings. 2 Specifically, Jones allowed Dr. Pottebaum to use the
recordings in her child custody evaluation in September. He kept the
illegal recordings on his exhibit list until the morning of the November
custody trial. This evidence is sufficient to support a finding that Jones
knew by August that he was using the secret recordings in violation of
chapter 808B. The district court, however, failed to make that specific
finding required to award punitive damages. We agree with the court of
appeals that the lack of such a finding requires reversal of the award of
2In Iowa Beta Chapter, we reversed the $5000 punitive damage award against
Dean Phillip Jones because the evidence failed to show he knew his use of the secretly
recorded audio of hazing was illegal before the fraternity’s lawyer faxed a copy of
chapter 808B, which prompted Jones and the University to immediately cease using the
audio recording and dismiss the hazing charges. 763 N.W.2d at 267–68.
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punitive damages. But we disagree the door must remain closed to such
an award here.
We remand the case to the district court for a determination of
whether punitive damages are appropriate, applying the correct standard
set forth in Iowa Beta Chapter to the existing trial record. See, e.g.,
Nathan Lane Assocs., L.L.P. v. Merchs. Wholesale of Iowa, Inc., 698
N.W.2d 136, 140 (Iowa 2005) (remanding for entry of a new judgment
based on existing record when court erred in calculating damages).
IV. Disposition.
For those reasons, we affirm in part and vacate in part the decision
of the court of appeals. We affirm the decision of the court of appeals
and the district court judgment awarding Papillon actual damages. We
affirm the decision of the court of appeals remanding the case to district
court to recalculate attorney fees and award reasonable appellate
attorney fees to Papillon, including for her application for further review.
We vacate the decision of the court of appeals that precluded an award of
punitive damages. We reverse the district court’s judgment for punitive
damages and remand the case 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. All costs of this appeal are assessed against Jones.
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.