                     IN THE COURT OF APPEALS OF IOWA

                                     No. 18-1077
                                 Filed July 24, 2019


SARA JANE GUSTAFSON,
     Plaintiff-Appellant,

vs.

TRACEY BELL and SHELLY TOWNE,
     Defendants-Appellees.
________________________________________________________________


       Appeal from the Iowa District Court for Cass County, James M.

Richardson, Judge.



       The plaintiff appeals from the district court’s summary dismissal of her

claims for defamation, abuse of process, malicious prosecution, intentional

infliction of emotional distress. AFFIRMED.



       Sara Gustafson, Villisca, pro se.

       Martin L. Fisher of Fisher, Fisher & Groetken, PC, Adair, (until withdrawal)

and Kyle J. McGinn of McGinn, Springer & Noethe, PLC, Council Bluffs,

(withdrawn as of filing), for appellant.

       Zachary M. Winter, Robert M. Livingston, and Kristopher K. Madsen of

Stuart Tinley Law Firm LLP, Council Bluffs, for appellees.



       Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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POTTERFIELD, Presiding Judge.

       Sara Gustafson appeals from the district court’s summary dismissal of her

claims against Tracey Bell and Shelly Towne for defamation, abuse of process,

malicious prosecution, and intentional infliction of emotional distress. Gustafson

maintains the district court erred because there are genuine issues of material

fact in dispute that preclude the summary dismissal of each of her claims.

I. Background Facts and Proceedings.

       Bell and Gustafson are former neighbors.       Gustafson has a history of

harassing Bell and Bell’s family; this has resulted in criminal prosecutions for

harassment and no-contact orders against Gustafson.

       Eventually, Bell went to the county attorney’s office to discuss Gustafson’s

behavior.   The county attorney advised Bell she should consider filing an

application for the mental-health commitment of Gustafson.

       On September 1, 2016, Bell filled out an application alleging Gustafson

was “suffering from serious mental impairment” and that she was “a danger

to . . . herself or others or may be causing serious emotional injury to persons

who are unable to remove themselves from [her] presence.” Bell checked “no”

next to the question “Do you request [Gustafson] be taken into immediate

custody?” Bell attached an affidavit detailing both Gustafson’s past and more

recent behavior. It stated, in part:

       [Gustafson] was calling the police department with false complaints
       (most of which I was at work when she was calling), she made
       statements about me killing her dog, assaulting her, stalking her,
       etc. She was calling my employment stating that my boss was
       going to be getting calls from the [Department of Criminal
       Investigations] as she had called and turned us in for stuff.
       [Gustafson] was stalking and harassing my family especially my
                                        3


       youngest child. [Gustafson] was following her all over town, making
       at least 20 trips by my home daily, my child lived in fear of
       [Gustafson].      [Gustafson] called [the Department of Human
       Services] on our family last June stating my husband was
       showering with my daughters, which was completely unfounded.
       We were investigated by DHS and very humiliated by all of it[;] she
       was going to the church and telling them the same thing. The no-
       contact order was then dismissed (we protested). . . . [Gustafson]
       has begun chasing my daughter again (she now drives a moped).
       [Gustafson] has been following her all over town, with our fear
       being our child may not be able to stop fast enough with how close
       she is chasing her and she will get hurt. [Gustafson] has been
       driving by our home repeatedly again, making more false phone
       calls to the police department. . . .
               . . . Last week before the no-contact order was in place,
       [Gustafson] chased my daughter through the cemetery as she was
       visiting her grandfather’s gravesite along with being in front of my
       house taking pictures of my child and the neighbor’s children. We
       have that captured on video of her doing this.

The affidavit was dated August 24, 2016.

       The county attorney contacted Shelly Towne, who is employed as a

dispatcher for the local police department, and asked her to prepare an affidavit

and statement relating to the dispatch calls she had received from Gustafson.

On September 1, Towne filled out an affidavit in support of an application alleging

Gustafson was seriously mentally impaired.      In the attached affidavit, Towne

stated, in part:

       I am employed as a dispatcher for the Atlantic Police Department.
       In the last two year[s] I have become very familiar with . . .
       Gustafson through numerous calls that she has made to our
       department. There have been days where she called 3–4 times
       within an hour. She has made several calls concerning Trac[e]y
       and Clint Bell, and Trac[e]y’s daughter . . . . [Gustafson] always
       believes that they are following her and getting people to keep an
       eye on her for them.

Towne listed some of the calls Gustafson had made to dispatch and their stated

purpose before concluding:
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       On 8-23-16, we had 3 calls within 45 min. I got a call from [the
       sheriff] on the same day saying that [Gustafson] was also
       calling . . . the Sheriff’s office and his cell phone. [Gustafson] is
       always saying she is investigating people and will call us with more
       information. [Gustafson] has told me before that she works with
       investigators out of Des Moines.

Towne noted the dispatch center had received seventeen calls from Gustafson in

approximately the previous three weeks, which did not include the calls

Gustafson made to the sheriff’s office or to the sheriff’s cell phone.

       The application and affidavits were filed September 2.            Although the

application did not ask for Gustafson to be taken into immediate custody, the

district court considering the application entered an order finding there was

“probable cause to believe” Gustafson was seriously mentally impaired and that it

was necessary to detain her.           The order provided for the immediate

hospitalization of Gustafson in order to complete a psychiatric evaluation and

noted she could be released once the evaluation was completed.

       Gustafson was taken into immediate custody and a medical professional

completed an evaluation.      In the physician’s report filed with the court, the

evaluator opined Gustafson was mentally ill and listed her diagnoses as major

depressive disorder, recurrent, mild. Additionally, he reported Gustafson was

capable of making responsible decisions with respect to treatment and noted she

was an established patient with the local mental-health center and did not miss

appointments.

       A hearing was held on September 6. Following the hearing, the court

found “that the contention that [Gustafson] is seriously mentally impaired has

been sustained by clear and convincing evidence.” It concluded Gustafson was
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able to make appropriate decisions so long as she continued treatment and

found she could be treated on an outpatient basis. Gustafson was committed on

an outpatient basis and ordered to cooperate with the treatment provider and

comply with the course of treatment.

       On September 13, Gustafson’s long-term psychologist wrote a letter to the

court, stating:

       This provider has treated Ms. Gustafson since 1999 and so is very
       familiar with her case. She has been treated with major depressive
       disorder with antidepressant medication and therapy. Consistent
       with [the ordered evaluation], in yesterday’s session with this
       provider, Ms. Gustafson was coherent and logical. She was able to
       describe recent happenings in detail. She did not express or
       evidence that she was a danger to herself or others. . . . It is my
       professional opinion that requiring Ms. Gustafson to participate in
       treatment is unnecessary because she has been engaged in
       treatment for a long time. She has scheduled future appointments
       and plans to continue in outpatient mental health treatment on a
       voluntary basis.

       After receiving the psychologist’s letter, the court decided “an involuntary

commitment is unnecessary” because Gustafson was “continuing her voluntary

treatment program currently in place.”       The court dismissed the case on

September 14.

       In December 2017, Gustafson filed a lawsuit against both Bell and Towne,

alleging abuse of process, defamation, malicious prosecution, and intentional

infliction of emotional distress against both for their roles in having her

involuntarily committed.

       Towne moved for summary judgment, which Bell joined.
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       Following a hearing on the motions,1 the court dismissed all of Gustafson’s

claims against each defendant. Gustafson appeals.

II. Standard of Review.

       We review the district court’s grant of summary judgment for correction of

errors at law.     Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa 2003).

“Summary judgment is appropriate only when the moving party shows there are

no genuine issues of material fact, and in deciding that issue, we review the

record in the light most favorable to the party opposing the motion.” Id. “A party

resisting a motion for summary judgment cannot rely on the mere assertions in

[their] pleadings but must come forward with evidence to demonstrate that a

genuine issue of material fact is presented.” Stevens v. Iowa Newspapers, Inc.,

728 N.W.2d 823, 827 (Iowa 2007).

III. Discussion.

       The district court summarily dismissed each of Gustafson’s claims against

both defendants. On appeal, Gustafson argues each of the dismissals was in

error as there are genuine issues of material fact in dispute that preclude the

summary dismissal of each of her claims.

       A. Defamation.

       The district court dismissed Gustafson’s claims of defamation, finding

there was qualified privilege for the statements of both Bell and Towne.

Gustafson argues this was in error. Bell and Towne respond Gustafson cannot

prove defamation because (1) she cannot establish the elements for defamation,


1
 It appears from the record before us that the hearing was reported; however, we have
no transcript from the hearing.
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(2) the statements complained of are opinions and protected speech, or (3)

qualified privilege exists for the statements.

       “Defamation includes the twin torts of libel and slander. Libel involves

written statements, while slander involves oral statements.” Bierman v. Weier,

826 N.W.2d 436, 444 (Iowa 2013) (citation omitted). In order to establish her

claims of defamation, Gustafson would have to prove

      (1) defendant wrote the statements; (2) the statements are false; (3)
      defendant made the statements with malice; (4) defendant
      communicated the statements to someone other than plaintiff; (5)
      the statements injured the reputation of plaintiff or exposed her to
      public hatred, contempt, or ridicule; and (6) plaintiff was damaged as
      a result.

Suntken v. Den Ouden, 548 N.W.2d 164, 167 (Iowa Ct. App. 1996). In cases of

defamation per quod—as Gustafson alleged—“a plaintiff must ordinarily prove all

the above six elements, including ‘some sort of cognizable injury, such as injury

to reputation.’” Bierman, 826 N.W.2d at 444 (quoting Johnson v. Nickerson, 542

N.W.2d 506, 513 (Iowa 1996)).

       Here, we agree with the district court that Gustafson’s claims of

defamation can be dismissed as a matter of law.         Although she purports to

challenge the statements filed by Towne and Bell in support of having her

involuntarily committed as false, Gustafson does not dispute the substance of

their statements—that Gustafson was following and chasing Bell’s daughter and

making repeated calls to the local police.

       Rather, Gustafson contends Towne’s affidavit was false because, as part

of the affidavit she signed, Towne swore she was “acquainted with” Gustafson

even though Towne had no personal or face-to-face contact with Gustafson. But
                                         8


nothing in the affidavit requires that Towne be personally—rather than

professionally—acquainted with Gustafson. We also do not believe the term

“acquainted with” necessarily requires face-to-face interactions. The dictionary

defines “acquainted” as “known by or familiar with another.” Acquainted, The

American Heritiage Dictionary of the English Language (1969); see also State v.

Kidd, 562 N.W.2d 764, 765 (Iowa 1997) (noting that absent a legal definition, we

use a dictionary as a “ready source for ascertaining the common and ordinary

meaning of a word”). Gustafson does not dispute that she was the person who

made numerous calls to the dispatch center and spoke with Towne. Under these

facts, this is enough to say Towne was acquainted or familiar with Gustafson.

       As to Bell, Gustafson maintains Bell’s affidavit swearing she believed

Gustafson to be seriously mentally ill was false because Bell had not had contact

with Gustafson, at the time she filed the application, in eight months.        This

appears to be a riff on the argument Gustafson made regarding Towne’s contact,

as Gustafson does not dispute Bell’s assertion in her affidavit that Gustafson was

following Bell’s child, parking outside of Bell’s home, and video recording Bell’s

family in the weeks leading up to the application being filed. We are similarly

unpersuaded by Gustafson’s argument as it pertains to Bell.

       Lastly, Gustafson asserts both Towne’s and Bell’s statements were false

because while each swore she believed Gustafson to be seriously mentally ill,

the supporting affidavit did not contain allegations that support those conclusions.

Again, Gustafson does not assert the actions attributed to her in the affidavits

were fabricated. And the district court, in a separate proceeding that Gustafson
                                          9


did not challenge, found that those actions established probable cause

Gustafson was seriously mentally impaired.

         We agree with the district court that Gustafson’s claims of defamation fail

as a matter of law.

         B. Abuse of Process.

         The district court dismissed Gustafson’s claims of abuse of process

against both Towne and Bell, concluding Towne did not use a legal process and

Bell did not do so in an improper or unauthorized manner. Gustafson disputes

these conclusions.

         To establish a claim for abuse of process, Gustafson would have to be

able to establish “(1) use of the legal process, (2) in an improper or unauthorized

manner, and (3) that damages were sustained as a result of the abuse.” Iowa

Supreme Ct. Attorney Disciplinary Bd. v. Barnhill, 885 N.W.2d 408, 419–20 (Iowa

2016).

         Here, Gustafson’s claims fail as a matter of law because even if we

assume both Towne and Bell “used” a legal process, see Fuller v. Local Union

No. 106, 567 N.W.2d 419, 422 (Iowa 1997) (“We have not precisely identified

what action constitutes a ‘legal process’ sufficient to satisfy the first element.”),

she cannot establish that either woman did so in an improper or unauthorized

manner.

         “The tort of abuse of process is ‘the use of legal process, whether criminal

or civil, against another primarily to accomplish a purpose for which it was not

designed.’” Fuller, 567 N.W.2d at 421 (citation omitted). “Normally the improper

purpose sought is an attempt to secure from another some collateral advantage
                                        10

not properly includable in the process itself.”    Id. (emphasis added).     “This

amounts to ‘a form of extortion in which a lawfully used process is perverted to

an unlawful use.’” Id. (citation omitted). Even if Towne and Bell submitted the

application and affidavits with mal-intent in hopes that Gustafson would be

committed, Gustafson cannot recover under the theory of abuse of process.

“Some act or threat directed to an immediate objective not legitimate in the use of

the process is required, and the defendant is not liable if [she] has done no more

than carry the process to its authorized conclusion, even with bad intentions.”

See Grell v. Poulsen, 389 N.W.2d 661, 663 (Iowa 1986) (citation omitted). “Proof

of an improper motive . . . even a malicious purpose, does not satisfy that

element.” Id. at 664. And, as we noted before, Gustafson does not challenge

the veracity of the actions attributed to her by either Bell or Towne in their

affidavits to the court.

       C. Malicious Prosecution.

       The district court dismissed Gustafson’s claims against Towne and Bell for

malicious prosecution, concluding Gustafson could not establish a number of the

elements.

       To prove malicious prosecution, Gustafson must be able to establish:

“(1) a previous prosecution, (2) instigation of that prosecution by the defendant,

(3) termination of that prosecution by acquittal or discharge of the plaintiff,

(4) want of probable cause, (5) malice on the part of the defendant for bringing

the prosecution, and (6) damage to plaintiff.” Royce v. Hoening, 423 N.W.2d

198, 200 (Iowa 1988).
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       We agree with the district court that Gustafson is unable to establish either

element three or element four against Towne and Bell. While the district court

ultimately dismissed the involuntary commitment, it did so after first finding there

was probable cause to support the claim Gustafson was seriously mentally

impaired.     The court only dismissed the case after Gustafson’s regular

psychologist opined the ongoing outpatient commitment was unnecessary as

Gustafson was a long-term patient who was compliant and regular with voluntary

treatment.

       This claim fails as a matter of law.

       D. Intentional Infliction of Emotional Distress.

       Gustafson also claimed intentional infliction of emotional distress (IIED)

against both Towne and Bell, which the district court summarily dismissed. To

prove a claim of IIED, Gustafson would have to establish:

              (1) Outrageous conduct by the defendant;
              (2) The defendant’s intentional causing, or reckless
       disregard of the probability of causing emotional distress;
              (3) Plaintiff suffering severe or extreme emotional distress;
       and
              (4) Actual and proximate causation of the emotional distress
       by the defendant’s outrageous conduct.

Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108, 118 (Iowa 1984).

       Here, the district court determined Gustafson’s claims failed a matter of

law because she could not establish outrageous conduct by either Towne or Bell.

We agree.      In order for a plaintiff to recover under the theory of IIED, the

defendant’s “conduct must be ‘so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized society.’” Id. (citation omitted).
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       It has not been enough that the defendant has acted with an intent
       which is tortious or even criminal, or that he has intended to inflict
       emotional distress, or even that his conduct has been characterized
       by “malice,” or a degree of aggravation that would entitle the
       plaintiff to punitive damages for another tort.

Id. (citation omitted). As a matter of law, Gustafson cannot establish that Bell’s

action of filing an application alleging serious mental impairment and a

supporting affidavit, which the district court ultimately determined was supported

by probable cause, falls within the definition of “outrageous conduct”—even if

Bell’s motive for filing the application is a disputed fact. Similarly, Gustafson

cannot establish that Towne’s action of filing a supportive affidavit, at the request

of the county attorney, with information that Gustafson does not challenge the

veracity of is so outrageous as to meet the first element of IIED.

       This claim also fails.

IV. Conclusion.

       We agree with the district court that each of Gustafson’s claims fail as a

matter of law. We affirm the summary dismissal of each of her claims. We have

considered the motion to withdraw filed by Gustafson’s counsel and Gustafson’s

response and grant the motion effective the date of filing this opinion.

       AFFIRMED.
