                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
      ___________

      No. 06-3326
      ___________

Wayne Schooley; Laurie Schooley,       *
                                       *
            Plaintiffs - Appellants,   *
                                       *
      v.                               *
                                       *
Orkin Extermination, Co., Inc., a      *
wholly-owned subsidiary of Rollins,    *
Inc.; Rollins, Inc., a foreign         *
corporation,                           *
                                       *
            Defendants - Appellees.    *

                                           Appeals from the United States
                                           District Court for the Southern
                                           District of Iowa.
      ___________

      No. 06-3486
      ___________

Wayne Schooley; Laurie Schooley,       *
                                       *
            Plaintiffs - Appellees,    *
                                       *
      v.                               *
                                       *
Orkin Extermination, Co., Inc., a      *
wholly-owned subsidiary of Rollins,    *
Inc.; Rollins, Inc., a foreign         *
corporation,                           *
                                       *
             Defendants - Appellants. *
                                  ___________

                                 Submitted: May 14, 2007
                                    Filed: September 19, 2007
                                     ___________

Before BYE and SMITH, Circuit Judges, and NANGLE,1 District Judge.
                               ___________

BYE, Circuit Judge.

      Wayne and Laurie Schooley (Schooleys) hired Orkin Exterminating Co., Inc.,
(Orkin) to protect their home against termites. After the home sustained extensive
termite damage, the Schooleys sued Orkin claiming fraudulent and negligent
misrepresentation. The Schooleys sought compensatory damages for repair costs, loss
of use, and reduction in value, and punitive damages. A jury found in favor of the
Schooleys on the fraud and negligent misrepresentation claims, and awarded $138,000
in compensatory damages and $276,000 in punitive damages. The district court
granted Orkin's post-trial motion for judgment as a matter of law (JAML) on the claim
for punitive damages and granted Orkin's new trial motion on the award of
compensatory damages. The court denied Orkin's JAML motion on the fraudulent
misrepresentation claim.2 A second jury returned a compensatory damages award of
$96,030.



      1
        The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
      2
       The negligent misrepresentation verdict has not been appealed.

                                           -2-
        On appeal, the Schooleys argue the district court erred by granting JAML on
the claim for punitive damages and by granting a new trial on compensatory damages.
In its cross-appeal, Orkin argues the district court erred by denying its JAML motion
on the fraudulent misrepresentation claim. It also appeals the second award of
compensatory damages, arguing the district court's instruction on compensatory
damages was erroneous and it asks us to reduce the compensatory damages to
$25,030. We reverse the district court's order granting JAML on punitive damages
and the order granting a new trial on compensatory damages, and reinstate the original
damage awards.

                                           I

      The facts viewed in the light most favorable to the fraudulent misrepresentation
claim and punitive damages award are as follows. In Re Knickerbocker, 827 F.2d
281, 284 (8th Cir. 1987).

       The Schooleys purchased their home in 1978 and observed no signs of termite
activity until 1992. After discovering evidence of termites in 1992, they contacted
Orkin. An Orkin representative inspected the home and told the Schooleys the
company's treatment process would create a complete chemical barrier against
termites and protect the home. The Schooleys purchased Orkin's treatment package,
including an annual renewable option for a limited lifetime retreatment guarantee
which stated: "Orkin guarantees that it will, at no extra cost, apply any necessary
additional treatment to the premises if an infestation of the aforesaid wood infesting
organism is found in the treated premises during the period this Guarantee is in force."

        The house was first treated in 1992 to establish the complete chemical barrier
against termites. In 1993, Orkin conducted an annual inspection and found no termite
activity. Satisfied the problem was under control, the Schooleys began a remodeling

                                          -3-
project which initially consisted of a multilevel deck attached to the back of the home.
In 1994, Laurie discovered evidence of termite activity and contacted Orkin. Orkin
sprayed the infested area and assured the Schooleys the problem was under control.
At trial, however, Kent Heinzman, a branch manager for Orkin, testified the
appearance of termite activity within two years of an initial application indicated the
application had been inadequately applied or the chemical barrier had broken down.
He testified the complete chemical barrier from the initial application would generally
be expected to last between six to fourteen years. The Schooleys testified Orkin never
provided this information to them.

       In 1995, the Schooleys expected Orkin to conduct an annual inspection in
March or April – it did not. In October, Laurie again discovered evidence of termite
activity in the same location of the house and called Orkin. An inspector inspected
the home and recommended a complete retreatment to his superiors instead of a spot
retreatment. The recommended complete retreatment was not approved by the branch
manager and a second spot retreatment was performed.

       At trial, an Orkin technician testified spot retreatments generally do not provide
complete termite control. Indeed, they can force termites from the treated area to
untreated points of entry. Conversely, an unbreached chemical barrier completely
prevents termites from entering the home. The Schooleys testified they were not told
the inspector had recommended complete retreatment or that spot treatments could be
ineffective in treating termite infestations.

       Prior to 1996, the Schooleys had observed evidence of termite activity only on
the walls of the basement. In July 1996, Laurie noticed for the first time the termite
activity had moved from the basement to the inside wall of the front porch, the east
interior wall of the dining room, the main floor, and an internal stairway in the center


                                          -4-
of the home. Orkin told the Schooleys this was probably old damage, performed
another spot retreatment, and in October pronounced the home termite free.



      In 1997, the Schooleys embarked on an extensive remodeling project. Before
doing so, Laurie called Orkin for assurances the termite problem was under control.
Laurie described their remodeling plans and, after inspecting and applying additional
chemical prophylactically, Orkin advised the Schooleys there was no termite activity.
The Schooleys spent approximately $120,000 on the remodeling project which
included, among other improvements, finishing the previously unfinished basement.

      Upon completion of the project in 1997, Laurie again noticed termite damage
around the front porch. Orkin sprayed the area and told Laurie it was old damage. In
1998, she observed pin holes in newly hung wallpaper and indentations in newly
decorated walls. Nonetheless, in September 1998 and February 1999, Orkin
conducted annual inspections and reported no termite activity.

       Soon after the February 1999 inspection, Laurie noticed termite damage to the
basement floor which had been installed as part of the 1997 remodeling project.
Faced with proof of an obvious reinfestation, Orkin's inspector reported termite
activity. She complained as to the spot retreatments obviously not working and
expressed concern because they had extensively remodeled the home. The possibility
of a complete retreatment, as suggested by Orkin's inspector in 1995, was never
discussed with the Schooleys. Instead, the company installed a bait monitoring
system and advised the Schooleys it would resolve the problem in no time. The
Schooleys testified they relied on the company's representations of expertise in the
field of termite control, believed the inspectors who said the various treatments would
control the termite problem, and accepted its invitation to "trust" it to solve the termite
problem.

                                           -5-
        Despite Orkin's promise to monitor the bait stations monthly, there were several
months when no one came to the home. In October 1999, after waiting four months
for an inspector, Laurie discovered evidence of termites in the basement stairway. She
called Orkin and two days later the branch manager, Heinzman, came to the home and
left a written message stating one bait trap containing 80,000 dead termites had been
consumed and there was no further evidence of termite activity. At trial, Heinzman
admitted there are upwards of one million termites in any given colony, capable of
infesting several homes at the same time. In other words, the presence of 80,000 dead
termites was no indication the infestation was under control.

       In 2000, Orkin only inspected the home and bait stations when Laurie called
requesting an inspection. During 2000, she observed no further evidence of termites
and concluded the bait stations were working. In January 2001, however, she noticed
termite damage to the main floor in the center of the home and to the floor in the
main-floor bathroom. She also discovered damage to the stairway wall leading from
the main floor to the second floor. Further examination revealed the wood flooring
in the bathroom had been eaten by termites. Once again, Orkin assured her this was
old damage but agreed to install a bait station in the bathroom. Days later, Wayne
discovered evidence of active termites in the basement directly under the main-floor
bathroom. Orkin was contacted and representatives assured the Schooleys the bait
stations would solve the problem.

       In March 2001, after being called by the Schooleys, and in April 2001, Orkin
inspected the Schooleys' home and reported no activity. Two days after the April
inspection, Laurie discovered obvious evidence of termites in three different locations
in the basement. She called the inspector and asked why only two days earlier he had
reported no activity. She was told: "I'm sorry, Ma'am. That's what they told me to
put. You're what's known as a problem house."


                                          -6-
      In June 2001, the Schooleys discovered additional and extensive termite
damage to the main floor of the home. They undertook repairs of the damage and in
the process observed active termites in the walls of the home. A videotape
documenting the damage, repairs, and live termites was presented to the jury.

      At this juncture, Orkin chose to apply a different chemical to reestablish a
complete chemical barrier. A month later it removed all the bait stations. Laurie
asked how they would be able to monitor termite activity without the stations and was
told by the branch manager he was running a business and could not afford to send
someone out every month to check for termites. In the fall of 2002, the Schooleys
discontinued their relationship with Orkin and hired a different termite control
business.

                                         II

                                         A

      Orkin argues the district court erred by denying its JAML motion on the
Schooleys' claim for fraudulent misrepresentation. Orkin contends its representatives
only predicted the treatments would be successful and there was no evidence Orkin
suspected otherwise or intended to deceive the Schooleys. Additionally, Orkin argues
there was no evidence the Schooleys relied on any alleged misrepresentations. For
example, when Orkin's inspector reported no termite activity in April 2001, Laurie
conducted her own inspection and discovered termites. According to Orkin, this
proves the Schooleys were not relying on its representations. It also denies the
Schooleys consulted with Orkin prior to undertaking the 1997 remodeling project and
therefore did not undertake the project based on assurances from Orkin.




                                         -7-
       We review de novo the district court's denial of judgment as a matter of law.
Arabian Ag. Servs. Co. v. Chief Indus., Inc., 309 F.3d 479, 482 (8th Cir. 2002).
Judgment as a matter of law is only appropriate where the evidence adduced at trial
is entirely insufficient to support the verdict. Id. In making this determination, we
consider all evidence in the record without weighing credibility, and resolve conflicts
and make all reasonable inferences in favor of the non-moving party. Id. An
inference is reasonable when it "may be drawn from the evidence without resort to
speculation." Id. (quoting Fought v. Hayes Wheels Int'l, Inc., 101 F.3d 1275, 1277
(8th Cir. 1996) (internal quotation marks omitted)).

        In Iowa, fraud must be established by clear, satisfactory, and convincing
evidence. Beeck v. Aquaslide 'N' Dive Corp., 350 N.W.2d 149, 155 (Iowa 1984);
Lockard v. Carson, 287 N.W.2d 871, 873-74 (Iowa 1980). The elements of fraud are
1) representation, 2) falsity, 3) materiality, 4) scienter, 5) intent to deceive, 6)
justifiable reliance, and 7) resulting injury and damage. Garren v. First Realty Ltd.,
481 N.W.2d 335, 338 (Iowa 1992); Cornell v. Wunschel, 408 N.W.2d 369, 374 (Iowa
1987). Orkin argues there was no evidence it knowingly made a false representation
or of justifiable reliance.

      A plaintiff can establish scienter, or knowledge of the falsity of a material
representation, by showing the defendant had actual knowledge of the falsity,
possessed reckless disregard for the truth, or falsely stated or implied the
representations were based on personal knowledge or investigation. McGough v.
Gabus, 526 N.W.2d 328, 331 (Iowa 1995) (citing Cornell, 408 N.W.2d at 375-76;
Beeck, 350 N.W.2d at 155). A plaintiff cannot recover if he "blindly relies on a
misrepresentation the falsity of which would be patent to him if he had utilized his
opportunity to make a cursory examination or investigation." Id. at 332 (quoting
Lockard, 287 N.W.2d at 878). Nevertheless, the Iowa Supreme Court has refused to
impose an objective standard of ordinary care on plaintiffs in fraud actions. Id. (citing

                                          -8-
Lockard, 287 N.W.2d at 878). Instead, the standard is "whether the complaining
party, in view of his own information and intelligence, had a right to rely on the
representations." Id. (quoting Lockard, 287 N.W.2d at 878).

       The evidence presented at trial shows Orkin had reason to believe as early as
1994 the initial treatment had been ineffective because the complete chemical barrier,
which would normally be effective for six to fourteen years, failed to prevent
reinfestation. In 1995, Orkin's inspector recommended a complete retreatment instead
of further spot retreatments but the request was denied.3 The evidence further reveals
Orkin did not advise the Schooleys of these facts. Nor were the Schooleys advised
spot retreatments could be ineffective. In 1996, the Schooleys discovered termite
damage in parts of the home previously unaffected but were advised it was old
damage. In 1997, after consulting with Orkin about a major remodeling project, Orkin
pronounced the home free of termites. Within months of completing the project, and
again in 1998 and 1999, after Orkin reported no termite activity, additional new
evidence of an ongoing infestation was uncovered. It was not until 1999, when
damage was discovered in the newly remodeled basement, that Orkin admitted to an
ongoing problem. Notably, the admission came on the heels of an inspector's report
finding no termite activity only two days earlier.

      Even after the discovery of termite activity in 1999, Orkin continued to
downplay the seriousness of the problem and exaggerate the effectiveness of its
treatments. It installed a bait monitoring system and assured the Schooleys the
problem would be solved quickly. Instead of monitoring the system on a monthly


      3
       Orkin contends it was prohibited by federal law from performing a complete
retreatment because the label on the chemical recommended against such treatments.
A fair reading of the label indicates it did not absolutely prohibit complete
retreatments. Rather, it recommended against them on an annual basis.

                                         -9-
basis as promised, Orkin ignored the Schooley home and generally conducted
inspections only if asked. When it was discovered one of the bait traps had been
completely consumed by termites, the Schooleys were led to believe all the insects had
been killed. Finally, in 2001, after repeated inspections, repeated treatments, and
repeated discoveries of new termite damage, an Orkin inspector told Laurie he had
been instructed to ignore obvious evidence of active termites. Later, the branch
manager told her he was running a business and could not afford to send inspectors
to perform promised inspections.



         Orkin attacks the credibility of this evidence but does not argue that, if believed,
it is insufficient to sustain a finding of fraudulent misrepresentation. Because we must
view the evidence in the light most favorable to the verdict, Orkin's attempts to
discredit the evidence must be disregarded. A fair reading of the evidence shows
Orkin, over a period of ten years, intentionally minimized the termite infestation and
overstated its ability to control the problem. Moreover, despite evidence early on
indicating the initial treatment had not worked, Orkin refused to approve a complete
retreatment in lieu of less effective, less expensive alternatives. Finally, Orkin
instructed its inspector to disregard evidence of an ongoing infestation and to falsify
his inspection report. Accordingly, we affirm the district court's denial of Orkin's
JAML motion of the fraudulent misrepresentation claim.

                                             B

      The Schooleys argue the district court erred by granting Orkin's JAML motion
on the issue of punitive damages. We agree.

      Under Iowa law, a jury may award punitive damages if the plaintiff proves "by
a preponderance of clear, convincing, and satisfactory evidence that the defendant's

                                            -10-
conduct amounted to a willful and wanton disregard for the rights of another." Iowa
Code § 668A.1 (1991). Punitive damages are appropriate in fraud cases when, in
addition to fraud, there is some aggravating factor such as legal malice. State Savings
Bank v. Allis-Chalmers Corp., 431 N.W.2d 383, 387 (Iowa Ct. App. 1988). "To
establish legal malice it need only be shown that wrongful or illegal conduct was
committed or continued with a reckless disregard at another's rights." Id. (quoting
Kimmel v. Iowa Realty Co., Inc., 339 N.W.2d 374, 384 (Iowa 1983)). Willful and
wanton means the defendant intentionally committed an unreasonable act in disregard
of a known or obvious risk so as to make it highly probable harm would follow, and
which is usually accompanied by a conscious indifference to the consequences. Fell
v. Kewanee Farm Equip. Co., 457 N.W.2d 911, 919 (Iowa 1990) (quoting W. Page
Keeton et al., Prosser & Keeton on Torts § 34, at 213 (1984)).

        At the end of the Schooleys's case and again before the case was submitted to
the jury, the district court denied Orkin's JAML motion on punitive damages. Once
the jury awarded punitive damages, Orkin renewed its motion and the court
reconsidered and reversed the award. In so holding, the court reviewed evidence
offered by the Schooleys in support of their claim for punitive damages and concluded
it did not constitute clear, convincing, and satisfactory evidence of willful or wanton
conduct.

       For example, the Schooleys offered an estimate prepared by an Orkin employee
regarding the amount of chemical necessary to adequately perform the initial
treatment. The estimate called for sixty gallons more of the chemical than was
actually applied, and the Schooleys argued the estimate showed Orkin intentionally
applied less chemical than necessary in an effort to save money. They further argued
Orkin knew the failure to apply the required amount of chemical caused the complete
chemical barrier to fail after only two years. The district court, instead of viewing this
evidence in the light most favorable to the verdict, weighed it against conflicting

                                          -11-
evidence tending to show the estimate overstated the amount of chemical needed, and
concluded Orkin applied adequate chemical.

       Similarly, the court rejected evidence suggesting Orkin knew there was a
serious problem in 1995 and intentionally failed to act appropriately. The Schooleys
argued Orkin knew, but failed to disclose, that the complete chemical barrier should
have protected the house for at least several years. They argued when new termite
activity was found in 1995, Orkin knew it should have reestablished the complete
chemical barrier instead of trying less expensive remedial measures. The court
concluded this evidence was not indicative of any wrongful intent because
reinfestation was a possibility and the discovery of termites sooner than expected did
not suggest wrongful intent. The issue, however, was not whether the parties could
have anticipated the possibility of reinfestation, but rather whether, after only two
years, Orkin knew the termite problem was more serious than it led the Schooleys to
believe.

       The Schooleys also argued there was an incentive for branch managers to
authorize spot retreatments instead of more effective complete retreatments. The
evidence showed each branch receives a $750 internal credit for every spot
retreatment irrespective of how much each actually costs. Conversely, no internal
credit is given if a complete retreatment is required. Thus, branch managers
concerned about profits naturally favor spot retreatments over complete retreatments
– even if the latter are less effective. The district court rejected this argument, finding
there was no testimony stating the credit was expressly intended to encourage spot
retreatments over complete retreatments. Further, the court concluded it was equally
likely the policy was intended to protect customers by encouraging necessary spot
retreatments.




                                           -12-
       The district court improperly weighed this evidence. Perhaps the policy was
instituted to protect customers and not to maximize profitability at the expense of
customers. That decision, however, was for the jury. If, as the district court stated,
there were equally plausible explanations for the policy, it was improper for the
district court to substitute its judgment for the jury's.

       The district court's order granting JAML discusses and rejects additional
evidence offered in support of the punitive damages claim, but fails to mention other
evidence of willful or wanton conduct offered by the Schooleys. For example, the
district court failed to mention 1) the rejected 1995 recommendation that a complete
retreatment be performed, 2) evidence indicating Orkin knew a complete chemical
barrier should last at least six to fourteen years, 3) Orkin's repeated claims that new
evidence of termites was undiscovered old damage, and 4) Orkin's assurances,
notwithstanding evidence of a serious ongoing infestation, that the termite problem
was under control. The district court also ignored Laurie's testimony indicating she
was told by an inspector he was instructed to file a false report and disregard obvious
evidence of a serious ongoing infestation.4 Finally, there is no mention of the branch
manager's refusal to authorize monthly inspections as promised.

       Viewing this evidence in the light most favorable to the jury's verdict, we
conclude there was sufficient evidence to show Orkin intentionally misled the
Schooleys and consciously disregarded the harm almost certain to occur from the
unabated infestation. Accordingly, we reverse the district court's grant of JAML and
reinstate the award of punitive damages.


      4
         In its discussion of the fraud claim – but not the punitive damages claim – the
district court compares Laurie's testimony with the inspector's trial testimony denying
the admission. In doing so, the court improperly weighed the credibility of the
evidence.

                                         -13-
                                           C

     The Schooleys appeal the district court's order granting Orkin's motion for a
new trial on compensatory damages. Orkin cross-appeals the jury's award of
compensatory damages from the second trial, arguing the district court's compensatory
damages instruction misstated the law.

      At the first trial, the Schooleys offered evidence of Orkin's net worth ($138
million) in support of their claim for punitive damages. After holding the issue of
punitive damages should not have been presented to the jury, the district court
concluded the compensatory damages award ($138,000) was suspect because of its
similarity to the evidence regarding Orkin's net worth. The court further concluded
the damages evidence presented by the Schooleys did not support the award and
granted a new trial.

       The district court may order a new trial if convinced the verdict goes against the
clear weight of the evidence or where a miscarriage of justice will result. Benjamin
v. Aluminum Co. of Am., 921 F.2d 170, 173 (8th Cir. 1990). While the district court's
discretion is not boundless, it can rely on its own reading of the evidence in
determining whether the verdict goes against the clear weight of the evidence. White
v. Pence, 961 F.2d 776, 780 (8th Cir. 1992). We review a grant of new trial for abuse
of discretion. Mears v. Nationwide Mut. Ins. Co., 91 F.3d 1118, 1123 (8th Cir. 1996).

       The amount of damages awarded is a function of the jury, not the court, Gorden
v. Carey, 603 N.W.2d 588, 590 (Iowa 1999), and a court should not set aside a verdict
simply because it might have reached a different conclusion, Ort v. Klinger, 496
N.W.2d 265, 269 (Iowa Ct. App. 1992). The jury's verdict should not be set aside or
altered unless it 1) is flagrantly excessive or inadequate, 2) is so out of reason as to
shock the conscience or sense of justice, 3) raises a presumption it is the result of

                                          -14-
passion, prejudice, or other ulterior motive, or 4) is lacking in evidentiary support.
Gorden, 603 N.W.2d at 590.

      The most important of the above enumerated tests is support in the
      evidence. If the verdict has support in the evidence the others will hardly
      arise, if it lacks support they may all arise. The real question in most
      cases, and here, is the amount and sufficiency of evidence to support the
      award made. Where the verdict is within a reasonable range as
      indicated by the evidence we will not interfere with what is primarily a
      jury question.

Yoch v. Cedar Rapids, 353 N.W.2d 95, 98 (Iowa Ct. App. 1984) (emphasis added).

      The district court is not required to grant a new trial on compensatory damages
because evidence of a defendant's net worth was allowed and an award of punitive
damages is later reversed. Lala v. Peoples Bank & Trust Co. of Cedar Rapids, 420
N.W.2d 804, 807 (Iowa 1988). A new trial may be required if it appears the jury
improperly considered evidence of net worth in calculating an award for
compensatory damages. Id.

        At trial, the Schooleys presented evidence through Alan Janssen, a certified
appraiser, showing their home was appraised in 1998 at $157,000. He testified the
house would be worth only 20-30% of its appraised value due to a history of termite
infestation. According to Janssen, the Schooleys suffered a loss in value of between
$109,900 to $125,000. The Schooleys also presented evidence showing they had
incurred approximately $8,000 in repair costs. Further, despite the district court's
claim that the loss of use damages were unsubstantiated, the record shows Laurie
testified the Schooleys were unable to use much of their home while repairs were
undertaken during January, February, June, July, August and September of 2001. The
district court's post-trial order accepted the evidence relating to cost of repairs,
rejected any loss of use damages, and questioned the loss in value evidence because

                                         -15-
no current appraisal showing the value of the home at the time of trial was offered.
In the end, the district court's decision to grant a new trial was primarily based on the
correlation between the evidence of net worth and the award of compensatory
damages.

       The award of compensatory damages is well within the range of potential
awards supported by the evidence presented at trial. Assuming a loss in value of
$125,000, coupled with $8000 in repair costs, the jury could reasonably have found
damages of $133,000 before ever considering any loss of use damages. We note the
district court expressed concern about the reliability of the 1998 appraisal, but it did
not reject it as without evidentiary value. Indeed, the jury could have reasonably
inferred a more recent appraisal would have shown the loss in value was higher.
Further, it was an abuse of discretion to reject the Schooleys's loss of use damages
when there was evidence offered to support the claim. We find nothing about the
jury's compensatory damages award of $138,000 excessive or shocking to the
conscience or to our sense of justice. We conclude the Schooleys presented adequate
evidence of loss in value, loss of use, and cost of repairs to support the award of
$138,000. Because the award was "within a reasonable range as indicated by the
evidence," the district court abused its discretion by "interfer[ing] with what is
primarily a jury question." Yoch, 353 N.W.2d at 98. Accordingly, we reverse the
grant of a new trial and reinstate the original award of compensatory damages.

                                          III

       We affirm the district court's order denying Orkin's JAML motion on the issue
of fraudulent misrepresentation. We reverse the district court's order granting JAML
on the punitive damages award and its order granting a new trial on compensatory
damages, and reinstate the original awards of compensatory and punitive damages.
Because our decision renders it moot, we do not reach Orkin's cross-appeal.
                       ______________________________

                                          -16-
