                       IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1342
                             Filed January 13, 2016


RODRIGO LOPEZ CORTES and
SERGIO LOPEZ CORTES,
     Plaintiffs-Appellees,

vs.

FRANKLIN A. ROSALES,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Sioux County, Steven J.

Andreasen, Judge.



       Franklin Rosales appeals from the jury’s verdicts in favor of Rodrigo Lopez

Cortes and Sergio Lopez Cortes. MODIFIED AND AFFIRMED ON CONDITION,

AND REMANDED.



       Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux

City, for appellant.

       Amanda J. Bahena of Woods, Fuller, Shultz & Smith, P.C., Sioux Center,

for appellees.




       Considered by Danilson, C.J., and Mullins and McDonald, JJ.
                                        2


DANILSON, Chief Judge.

      Franklin Rosales appeals from the jury’s verdict in favor of Rodrigo Lopez

Cortes and Sergio Lopez Cortes. Rosales’s claims concerning the sufficiency of

the evidence to support the conversion claims were not presented to the district

court and, thus, are not preserved for our review. We find no abuse of discretion

in the trial court’s challenged evidentiary ruling. We order the remittitur of the

punitive damages awarded by the jury to Rodrigo but find no basis to set aside

the punitive damages to Sergio. Finally, we find no abuse of discretion in the

court’s denial of a new trial based upon Rosales’s claim that the verdict “appears

to be influenced by passion or prejudice.” We modify and affirm on condition,

and remand.

I. Background Facts and Proceedings.

      Rodrigo and Sergio are brothers who work together and also raise, trade,

and train Friesian horses. The brothers brought this action for conversion, fraud,

damage to personal property, breach of contract, and unpaid expenses against

Rosales claiming that in February 2010, Rosales took four horses belonging to

Sergio, transported them to Guatemala, and sold them without their consent or

having paid for them. They also asserted that in June 2012 Rosales took a pony

belonging to the plaintiffs and transported the pony to Guatemala without their

authorization. The brothers claimed too that Rosales owed them for stud fees

and for the costs they incurred maintaining two mares held as collateral. The

plaintiffs were allowed to amend their petition to assert a claim of punitive

damages with respect to their conversion claims.
                                           3


       Rosales answered, admitting he did owe Rodrigo and Sergio money.

However, although admitting he still owed some money for the four horses he

took to Guatemala, he claimed the parties had agreed to a sale price of $24,000

and he had paid $18,700. He also claimed the pony was a “nuisance” pony the

brothers gave to him. Rosales admitted he owed money for stud services, but

disputed the amount owed for those services. He also disputed that he owed for

the stabling of the mares because he had asked that they be returned and the

brothers wrongly refused.      Rosales counterclaimed for intentional infliction of

emotional distress.

       The case was tried to a jury in April 2014. The jury was presented with

opposing versions of the disputes. As to the four horses—one of which was a

registered Friesian stallion, Oepke, valued at $48,000—the plaintiffs testified that

Rosales had never actually purchased these four horses and had no right to take

them to Guatemala. They testified that they believed Rosales would not decide

whether or not to purchase these horses until after the horses had been checked

by the vet. Rosales, in contrast, contends he had entered into an agreement with

the brothers to purchase the four horses for $24,000.

       With respect to the pony that belonged to Rodrigo, which Rosales

ultimately took to Guatemala to sell, the plaintiffs claim the pony was a family pet

and Rosales was permitted to use the pony for stud services but it was then

supposed to be returned to Rodrigo. Rosales claims Rodrigo asked Rosales to

get rid of the pony because the pony was a danger to Rodrigo’s stallions.

       Concerning the claim that Rosales obtained stud services from the

plaintiffs’ stallion Piet, the plaintiffs stated Rosales obtained stud services at least
                                        4


ten times, at a rate of $1000 per time, but never paid for those services. Rosales

claimed he paid all the stud fees he owed.

      Finally, with regard to the claim that Rosales owed the plaintiffs for their

costs in having maintained his two mares, Rosales’s wife brought these mares to

the plaintiffs in August 2012 in order to obtain stud services. Rosales did not pay

the stud fees or mare maintenance for those mares. The Lopez Cortes brothers

asserted they retained possession of the mares in order to ensure that Rosales

paid the stud fees, boarding costs, and other amounts he owed them. They

testified this is standard practice in the horse breeding world. They asked for

payment for boarding and care for Rosales’s mares from August 2012 through

the April 2014 trial. Rosales testified he demanded the return of the mares in

September 2012 and the brothers wrongly refused.

      The jury awarded damages to Sergio on his conversion claim in the

amount of $55,000 (the four horses), to Sergio on his breach of contract claim in

the amount of $10,000 (stud fees), to Rodrigo on his conversion claim in the

amount of $500 (pony), and to Sergio and Rodrigo on their breach-of-contract

claim in the amount of $17,940 (caring for the mares), for a total of $83,440 in

compensatory damages. The jury also awarded punitive damages to Sergio in

the amount of $40,000 and to Rodrigo in the amount of $20,000. Rosales filed a

motion for judgment notwithstanding the verdict, for new trial, and for remittitur.

The district court granted the motion for remittitur as to the punitive damages

awarded to Rodrigo, holding that those punitive damages should be reduced

from $20,000 to $5000. Rodrigo consented to the remittitur.

      Rosales appeals.
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II. Standard of Review.

      This case was tried at law; therefore our review is for corrections of errors

at law. Iowa R. App. P. 6.907; see also Blackford v. Prairie Meadows Racetrack

& Casino, Inc., 778 N.W.2d 184, 187 (Iowa 2010). “In a law action, findings of

fact are binding on us if supported by substantial evidence.” Blackford, 778

N.W.2d at 187.        We view the evidence in the light most favorable to the

judgment. Miller v. Rohling, 720 N.W.2d 562, 567 (Iowa 2006).

      We review the district court’s ruling on evidentiary issues for abuse of

discretion. Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 158 (Iowa 2004).

      We review the denial of a motion for judgment notwithstanding the verdict

for correction of errors at law. Channon v. United Parcel Serv. Inc., 629 N.W.2d

835, 859 (Iowa 2001).

      “We review an award of punitive damages for correction of errors at law.”

Wolf v. Wolf, 690 N.W.2d 887, 893 (Iowa 2005). We review de novo a claim that

a punitive damage award is excessive, in violation of the due process

clause. Id. at 894.

III. Discussion.

      A. Sufficiency of the evidence of conversion and breach of contract. In

Rosales’s first three issues and the subparts, he asserts the jury’s findings of

conversion and breach of contract for mare maintenance are not supported by

substantial evidence.      He contends the plaintiffs cannot recover on their

conversion claim for an alleged breach of contract, Sergio “ratified any alleged

conversion,” and there was no evidence the parties entered into a contract for the

boarding of Rosales’s two mares. He claims he preserved error by moving for
                                          6


directed verdict and filing post-trial motions for judgment notwithstanding the

verdict.

       “We review the denial of a motion for new trial based on the grounds

asserted in the motion.” Fry v. Blauvelt, 818 N.W.2d 123, 128 (Iowa 2012). The

pages to which Rosales cites in his brief show the entirety of his motion for

directed verdict consisted of this statement, “Move for a directed verdict, Your

Honor.” A review of his post-trial motion and brief shows a cursory statement

that “there was insufficient evidence of each element of plaintiff’s claims,

including punitive damages.” He then argued only that there was insufficient

evidence to submit claims for punitive damages.

       A motion for judgment notwithstanding the verdict “must stand on grounds

raised in the movant’s motion for directed verdict” and review on appeal is

“limited to grounds raised in the directed verdict motion.” Lamb v. Manitowac

Co., 570 N.W.2d 65, 67 (Iowa 1997). The claims now made on appeal were not

raised below, and we do not address them. See Mercer v. Pittway Corp., 616

N.W.2d 602, 629 (Iowa 2000) (noting appellant “did not raise this specific

contention in its motion for directed verdict” and “therefore conclude that

[appellant] failed to preserve error”).

       In any event, the plaintiffs’ testimony is sufficient to support the claim for

conversion of Sergio’s horses and the pony. Rosales contends there was a

contract to sell the horses; whereas the plaintiffs acknowledge some discussion

of a sale, but no agreement was ever reached.          While there was conflicting

evidence on the issue, the determination of credibility of the witnesses is the

province of the jury as fact finder. Smidt v. Porter, 695 N.W.2d 9, 22 (Iowa 2005)
                                           7


(“‘[T]he credibility of witnesses is peculiarly the responsibility of the fact finder to

assess.’” (citation omitted)).

       Furthermore, the post-conversion acceptance of two horses from Rosales

was approached as a mitigation of damage for conversion.                The jury was

instructed as to these points, and there were no objections to those instructions.

There was also sufficient evidence of an implied contract that Rosales would pay

the reasonable value of services and materials provided by the plaintiffs.

       B. Evidentiary ruling.      Rosales next contends the court abused its

discretion in excluding evidence of the plaintiffs’ “abusive horse-training

practices.” Defense counsel sought to present evidence that “Oepke [the stallion

taken and sold by Rosales in Guatemala] was trained in an abusive manner.”

The court considered the issue carefully and provided cogent reasons for

excluding the evidence, ruling:

               I would agree that based on Joan Dixon’s testimony, the
       training methods may still be relevant to value because her opinion
       is that end product with the trainer who is using the, quote, abusive
       training methods may not be the same for somebody who
       purchases the horse and that can affect the value.
               However, I’m not sure that there is anything else to show
       that that opinion of Ms. Dixon relates to Oepke or any of the horses
       that were sold in the sense that her value didn’t take into account
       any training methods, and from the testimony of Mr. Rosales so far
       as to what he offered and what his agreement was as to the value, I
       don’t see a connection yet.
               I understand that it’s arguably relevant, but it also can be
       prejudicial, so the Court is trying to get a sense and from a [rule of
       civil procedure 1.403] standpoint, if you think that there is some
       relevance beyond just I observed this.
               ....
               . . . The Court, again, [believes] abusive training methods
       would be potentially prejudicial to plaintiffs as a character and
       specific circumstances of that character in regard to the probative
       value of that testimony in regard to the value.
                                         8


              The Court just doesn’t see any connection anyway in regard
       to whatever training methods were used on Oepke and the value of
       Oepke, other than just a general, training methods can affect the
       value if they are not able to perform for the person to whom the
       horse is sold, but there is nothing establishing that type of
       circumstance with Oepke or any of the other horses involved. That
       would be the basis of the Court’s ruling.

We find no abuse of discretion.

       C. Punitive damages.       Rosales also contends the claims for punitive

damages are not supported by substantial evidence and should not have been

submitted to the jury. We disagree.

       To merit punitive damages, the plaintiff must prove “‘by a preponderance

of clear, convincing, and satisfactory evidence’” that the defendant acted in willful

and wanton disregard for the rights or safety of another. Wolf, 690 N.W.2d at

893 (quoting Iowa Code § 668A.1).        Further, “[t]o receive punitive damages,

plaintiff must offer evidence of defendant’s persistent course of conduct to show

that the defendant acted with no care and with disregard to the consequences of

those acts.” Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co., 510

N.W.2d 152, 156 (Iowa 1993).

       The trial court noted the jury awarded the plaintiffs punitive damages for

their claims of conversion. Conversion is the wrongful taking of property. See

Lewis v. Jaeger, 818 N.W.2d 165, 188 (Iowa 2012). It is a civil claim of theft. Id.

The plaintiffs showed that Rosales took their horses and pony to Guatemala

without permission, knowing the animals belonged to the plaintiffs, and benefitted

financially when he sold the horses in Guatemala. There was sufficient evidence

in regard to the conversion claim for a reasonable jury to conclude that Rosales’s

wrongful taking and selling of Sergio’s four horses and Rodrigo’s pony was in
                                         9


reckless disregard for the rights of the plaintiffs. The jury specifically found the

conduct of Rosales constituted willful and wanton conduct.

      Rosales also argues the punitive damages awarded were excessive. In

his brief, Rosales states, “The punitive damages award of $20,000 to Rodrigo

was excessive and should be set aside.”

      Because the plaintiff accepted a remittitur of its damages, the trial
      court overruled the defendants’ motion for new trial and entered a
      judgment awarding damages in the reduced sums. Under our
      rules, this judgment is “deemed of no force and effect” when an
      appeal is taken, and the original judgment entered by the clerk on
      the jury’s verdict pursuant to Iowa Rule of Civil Procedure 1.955 is
      “deemed reinstated.” Iowa R. Civ. P. 1.1010(3). Therefore, we are
      not reviewing the trial court’s decision to grant a conditional new
      trial; we are reviewing the trial court’s denial of the defendants’
      motion for new trial.

WSH Props. LLC v. Daniels, 761 N.W.2d 45, 48 (Iowa 2008); see also Bossuyt v.

Ossage Nat’l Bank, 360 N.W.2d 769, 776 (Iowa 1985). We review the district

court’s denial of a motion for a new trial based on the claim of an award of

excessive damages for an abuse of discretion. WSH Props., 761 N.W.2d at 49.

      In Wolf, our supreme court summarized the considerations in determining

the excessiveness of punitive damages:

      The [United States] Supreme Court has stated that an appellate
      court reviewing a punitive-damage award for excessiveness should
      consider three “guideposts.” These guideposts are:
             (1) the degree of reprehensibility of the defendant’s
             misconduct; (2) the disparity between the actual or
             potential harm suffered by the plaintiff and
             the punitive damages award; and (3) the difference
             between the punitive damages awarded by the [trier
             of fact] and the civil penalties authorized or imposed
             in comparable cases.
             ....
             . . . The Court also said that “[t]he existence of any one of
      these factors weighing in favor of a plaintiff may not be sufficient to
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      sustain a punitive damages award; and the absence of all of them
      renders any award suspect.”

690 N.W.2d at 894 (internal citations omitted).

      Punitive damages are considered excessive if they are not “reasonably

related to actual damages.” Wilson v. IBP, Inc., 558 N.W.2d 132, 147 (Iowa

1996) (internal citations omitted).   However, “our primary focus in review of

a punitive damage award is the relationship between the punitive damage award

and the wrongful conduct of the offending party.” Id.

      With respect to the reprehensibility of the defendant’s misconduct, we are

presented with the 2012 civil theft of a pony, which the trial court observed was a

family pet having significance and importance beyond monetary value. However,

the jury also determined Rosales had—two years earlier—taken four horses from

Rodrigo’s brother and sold them. Thus, Rosales’s conduct was not a unique

occurrence. Punitive damages “exist to punish the defendant and to deter the

offending party and like-minded individuals from committing similar acts.” Ryan

v. Arneson, 422 N.W.2d 491, 496 (Iowa 1988).

      With respect to the punitive damage award to Rodrigo, the jury awarded

$500 in compensatory damages and punitive damages of $20,000. Although the

punitive damage award was reduced to $5000 by the district court, the award of

$20,000 was reinstated by the district court after Rosales appealed. The ratio of

actual damages to the punitive damage award of $20,000 was forty to one, a

ratio is similar to one found to be within “a constitutionally acceptable range

based on the act of converting money belong to an employer, as well as other

relevant factors.” Condon Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 595
                                         11

(Iowa 1999) (finding ratio of “nearly 43 to 1” was acceptable); see also Wolf, 690

N.W.2d at 895 (affirming a compensatory damage award of one dollar—plaintiff

had waived all amounts over one dollar—and a punitive damage award of

$25,000 in a case of tortious interference with custody rights); Ryan, 422 N.W.2d

at 496 (comparing an actual award of $120 in a quiet title action to

a punitive damage award of $18,600 and finding it was not excessive). But see

Wilson, 558 N.W.2d at 148 (comparing, in a defamation action, actual harm of

$4000 and $15 million in punitive damages and ordering remitter to $2 million in

punitive damages based on the financial position of the defendant and deterring

factor).   Considering the difference between the punitive damages awarded by

the jury ($20,000) and the civil penalties authorized, we note that theft of property

exceeding $200 but not exceeding $500 is theft in the fourth degree, which is a

serious misdemeanor. See Iowa Code §§ 714.2, 903.1(1)(b) (2011).

       Taking the three guideposts into consideration, we conclude the punitive

damages awarded to Rodrigo were excessive, but like the district court, we

conclude Rosales’s conduct supported a substantial award of punitive damages

in the amount of $5000. We therefore hold that the trial court did not abuse its

discretion in denying the motion for new trial on the condition that Rodrigo accept

a remittitur.

       Comparing Rosales’s theft from Sergio of four horses with a value in

excess of $50,000, in relation to the punitive damage award of $40,000 is less

than a one-to-one ratio, however, which we do not find to be excessive.

       Accordingly, we exercise our inherent right to order a remittitur. See Miller

v. Young, 168 N.W.2d 45, 53 (Iowa 1969). If Rodrigo shall again file in this
                                             12


proceeding in district court a consent to remit punitive damages in excess of

$5000 within thirty days from the filing of this opinion, the judgment as modified

shall stand and shall draw interest at the statutory rates from date of entry. See

id.; Larsen v. United Fed. Sav. & Loan Ass’n of Des Moines, 300 N.W.2d 281,

289 (Iowa 1981).        If the consent to remit is not so filed, a new trial as to

damages and as to Rodrigo only is hereby ordered. See Iowa R. Civ. P. 1.1010.

       D. Passion and prejudice. Finally, Rosales argues he should be awarded

a new trial contending the verdicts were the result of passion or prejudice. In

support of this argument, Rosales asserts there is “the presumption of prejudice”

from the excessiveness of the punitive damages award,1 which he claims is

supported by the jury’s decision to reject testimony2 and “the inflammatory

evidence the Plaintiff presented to the jury.”           We have already determined

punitive damages could properly be submitted to the jury and were supported in

the full amount to Sergio and in a lesser amount to Rodrigo. And, as previously

noted, the jury was free to accept the plaintiffs’ testimony and reject Rosales’s

testimony. See Blume v. Auer, 576 N.W.2d 122, 125-26 (Iowa Ct. App. 1997)

(“The jury, as the finder of fact, is free to accept or reject evidence on . . . any . . .

issue.”). As for the remainder of his claims concerning “inflammatory” evidence,




1
  He states, “[T]he verdict here was, at least in part, flagrantly excessive. As explained
above, the jury awarded Rodrigo punitive damages of $20,000.”
2
  Rosales contends the plaintiffs’ own evidence was that they later accepted two mares
in full payment of two of four of Sergio’s horses. Even if the jury accepted this as true, it
changes nothing of the original theft of Sergio’s horses except to mitigate damages. And
the jury awarded damages for less than the full amount of the plaintiffs’ valuation of the
four horses.
                                             13


either the claims were not preserved for review or we conclude the district court

did not abuse its discretion in its evidentiary rulings.3

         We therefore modify and affirm on condition Rodrigo again consent to

remittitur of the punitive damages award, and remand.

         MODIFIED AND AFFIRMED ON CONDITION, AND REMANDED.




3
    The district court’s ruling on the motion for new trial includes the following:
                  The Court agrees that questioning concerning an FBI report,
         Defendant’s sale of the horses to a “narco” in Guatemala, the protection
         orders sought by Defendant from his spouse, Defendant’s guilty plea to
         trespassing, a possible warrant, and civil judgments were not favorable
         for Defendant. That questioning and evidence, however, had some
         relevance to the claims asserted by the parties (the sale of the horses to
         a drug dealer in Guatemala relevant to question of whether the horses
         could be returned to Plaintiffs for the conversion claim; other
         circumstances occurring in Defendant’s life relevant to his claim of
         damages for intentional infliction of emotional distress). Additionally, no
         objection was made at trial to the questions and testimony regarding the
         “narco” in Guatemala.
