                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1001
                               Filed June 3, 2020


ANGELA MARIE CLARK,
    Plaintiff-Appellant,

vs.

DARRYL LEE DOWNS and JENNIFER D. DOWNS,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Randy V. Hefner,

Judge.



      Angela Clark appeals the jury verdict in a harassment and trespassing case.

AFFIRMED.



      Daniel P. Kresowik and Billy J. Mallory of Brick Gentry P.C., West Des

Moines, for appellant.

      William H. Larson of Klass Law Firm, L.L.P., Sioux City, for appellees.



      Considered by Bower, C.J., and Greer and Ahlers, JJ.
                                        2


GREER, Judge.

      Getting along is the quintessence of “neighborhood,” but that ideal escaped

these neighbors. Claims of trespass and harassment led to a lawsuit between

next-door neighbors. Now Angela Clark appeals the jury verdict, claiming that the

district court made several errors during the trial. Clark asserts the trespass

instruction should have required the jury to award damages because of the

admission of trespass, the court erred by not instructing on spoliation of

photographic evidence, the court abused its discretion by failing to grant a

permanent injunction prohibiting trespassing, and, finally, the court erred by

denying the motion for additur or new trial based on an inadequate verdict.

      I. Background Facts and Proceedings.

      Clark bought her Waukee, Iowa home in August 2006. In September 2013,

Darryl and Jennifer Downs (collectively, “the Downses”) joined the neighborhood,

purchasing the home north of Clark’s property. Soon relations soured.

      This dispute between next-door neighbors came to a head in 2015 when

Clark demanded that the Downses stay off her property. Clark authored an email

communication describing several instances where the Downses’ children used

the Clark backyard as a short-cut. Noting the Downses were a “wonderful addition

to the neighborhood,” Clark was adamant that her yard was off limits. Not to be

deterred, the Downses and their children continued to enter the property for

various purposes—including some without good intentions.1        Then when the


1 Darryl placed a “garage sale” sign on the boundary fence between the Downses’
and Clark’s properties. He hung paper plates with eye balls drawn on them in the
tree as if they were watching Clark. But Clark posted a “no trespassing” sign, and
part of her trespass complaints involved the Downses standing on the Clark
                                          3


Downses attempted to improve the bordering fence in June, Clark again emailed

directing the Downses to contact the city for guidance on the fencing project and

provided a second notice to the Downses to not use her property without her

permission.   Subtle digs continued.      The Downses addressed concerns that

maintenance of the fence would be impossible without access to the Clark

property. They suggested flipping the fence so the “good” side faced their property

and could be more easily maintained on the Downses’ side.

       But the irritations grew. In December, Clark sought legal counsel and a

letter was sent to the Downses referencing increasingly hostile behaviors, such as

yelling obscenities, growing grass between the yards, and placing snow poles on

and over the property line. The letter directed the Downses to seek permission to

enter if they were repairing the fence and threatened criminal charges if that

directive was not followed. The Downses followed that correspondence with a call

to the attorney who confirmed the call with a letter noting all communication should

be made through the attorney. Clark’s attorney advised that “you and everyone in

your household refrain from any communication with [Clark].” More letters followed

in 2016 and 2017 with directives and descriptions of violations relating to trespass.

In March 2017, Clark’s grill cover blew into the Downses’ yard and communications

about its return ended with “[i]f it is not returned, my client will have to pursue her

legal remedies.”




property to repair the border fence and stepping over the line to maneuver the lawn
mower. To further the tension, both sides took photographs of the actions of the
other.
                                            4


         Finally on December 15, 2017, Clark brought an action against the

Downses for relief under claims of trespass, invasion of privacy, conversion, and

punitive damages. She added a defamation claim in November 2018. 2 The

Downses admitted they trespassed on Clark’s property but denied all other claims.

After several days of trial, the jury found Darryl Downs liable for trespass,

conversion, and invasion of privacy. The jury found no liability on any claim against

Jennifer Downs, except for the trespass claim. Against Darryl Downs only, the jury

awarded Clark $100 on the conversion claim and $500 for the invasion-of-privacy

claim. On the verdict form requesting trespass damages against both of the

Downses, the jury indicated that the trespass of each defendant was not the cause

of any damage to Clark and awarded Clark nothing. But the judge filed a judgment

entry awarding Clark trespass damages of $1 against Jennifer and $1 against

Darryl. On the punitive damage claim, the jury answered “yes” to the question:

“Do you find by a preponderance of clear, convincing, and satisfactory evidence

that the conduct of [Darryl] constituted willful and wanton disregard for the rights

and safety of another?” But the jury awarded no punitive damages to Clark.

Including the district court’s award of nominal damages, the total jury verdict

against the Downses was $602.            Clark filed post-trial motions requesting a

permanent injunction prohibiting future trespass and asking for additur or new trial.

The district court denied all post-trial motions but did amend the judgment entry to

tax court costs jointly and severally against the Downses.




2   Clark dismissed the defamation theory before the start of the jury trial.
                                           5


       II. Scope of Review.

       We review challenges to jury instructions for correction of errors at law.

Schmitt v. Koehring Cranes, Inc., 798 N.W.2d 491, 495 (Iowa Ct. App. 2011). “The

court is required to give a jury instruction requested by a party if the proposed

instruction states a correct rule of law, applies to the facts of the case, and is not

embodied in other instructions.” Id. at 496. “Instructional errors do not merit

reversal unless prejudice results.” Rivera v. Woodward Res. Ctr., 865 N.W.2d 887,

892 (Iowa 2015). “Prejudice occurs and reversal is required if jury instructions

have misled the jury, or if the district court materially misstates the law.” Id.

       “A request for an injunction invokes the court’s equitable jurisdiction,” and

so our review is de novo. Matlock v. Weets, 531 N.W.2d 118, 121 (Iowa 1995)

(referencing previous rule citations, the district court allowed a permanent

injunction to prohibit obsessive behaviors that appeared dangerous to a

reasonable person).

       Lastly, all parties agree that when considering a district court’s denial of

motions for additur and a new trial, the standard is abuse of discretion. Fry v.

Blauvelt, 818 N.W.2d 123, 128 (Iowa 2012).

       III. Trespass Instruction Errors.

       Clark points to a conflict between two of the jury instructions on trespass.

More simply, Clark argues damages are presumed because of the admitted

trespass so the court should have mandated the jury to award some damage

amount for trespass. Instead, the district court required the jury to determine if any

damages were caused by the trespass.
                                          6


       Instruction eleven confirmed to the jury the Downses’ admission to

trespass3 and Clark’s entitlement to damages: “In this case, both [the Downses]

admit trespassing on Plaintiff’s land. Plaintiff is thus entitled to recover damages

for trespass in some amount.” (Emphasis added.) And the Downses concede that

the district court correctly instructed the jury that Clark was entitled to damages for

their admitted trespass. They assert Clark still had to prove which damages were

caused by the trespass.

       “Jury instructions ‘must convey the applicable law in such a way that the

jury has a clear understanding of the issues it must decide.’” Rivera, 865 N.W.2d

at 892 (quoting Thompson v. City of Des Moines, 564 N.W.2d 839, 846 (Iowa

1997)). The difficulty arose from the verdict form the district court crafted to

address Clark’s damage award on the trespass theory against the Downses.

Verdict form number one provided and the jury found as follows:




3  “A trespasser is one who is not rightfully upon the property of another, but enters
it without consent, either express or implied, of the owner or occupier.” Iowa State
Highway Comm’n v. Hipp, 147 N.W.2d 195, 199 (Iowa 1966).
                                          7




      Before submission of these instructions to the jury, Clark objected to the

language of verdict form number one and argued that the jury should be told that

“they must enter at least $1.” Clark’s argument was:

      As stated off the record it is our position that once trespass has been
      shown, no further, the plaintiff does not need to prove causation. . . .
      [A]nyone who intentionally and without consent entered land in
      possession of another is liable as a trespasser to the other
      irrespective of whether harm is caused to any legally-protected
      interest. . . . The prevailing plaintiff in an action for trespass to real
      property is entitled to at least nominal damages even in the absence
      of proof of injury and where the plaintiff is benefitted by the trespass.
                                          8


The district court did not want to “identify specific items of actual damages”

believing it would confuse the jury. In the end, the court decided the issue by

reasoning:

       Now one change I’ve made from the draft that counsel are looking
       at, Verdict Form Number 1: Was the defendants’ trespass the cause
       of any actual damage to the plaintiff as explained in Instruction
       Number 12? Yes or no. I’ve added: If your answer is no, do not
       answer question number two. Now I understand that plaintiffs object
       to that change, but after working with these verdict forms the purpose
       of the jury is to determine, with respect to trespass, the actual
       damages that were caused. I’m including that so as to not confuse
       the jury by asking the jury to enter an amount of damages even
       though, or even if they find there were no actual damages caused.
       As I stated, if the jury answers no to question one or question three,
       then I will enter judgment against defendants for an appropriate
       amount of nominal damages.

(Emphasis added.) Clark still objected.

       At first blush, Clark makes a strong argument. Did not telling the jury that

Clark was entitled to some amount of trespass damages conflict with requiring the

jury to determine if the trespass caused damages? Her point is bolstered by the

reasoning found in Nichols v. City of Evansdale, 687 N.W.2d 562 (Iowa 2004). In

Nichols, a city trespassed on a resident’s land by placing sewer lines across the

property without obtaining the necessary easement or permission. Nichols, 687

N.W.2d at 567–68. As in this case, Nichols established a claim of trespass and

the court confirmed they were entitled to damages.         Id. at 573 (“From every

unlawful entry, or every direct invasion of the person or property of another, the

law infers some damage.”) (quoting 75 Am. Jur. 2d Trespass § 117 (1991)). But

Nichols rejected some elements of damage that were not appropriate under the

facts of the case. Id. at 573 n.2 (finding that loss of use, discomfort, and annoyance
                                          9


were not appropriate measures of damage). And across different jurisdictions,

there are two approaches in trespass cases where damages are problematic:

              A jury verdict finding that there was a trespass but no
       damages, either nominal or compensatory, is invalid and incomplete
       so that the judgment based thereon must be considered a nullity.
              Another view is that it is possible for the jury to find that a
       trespass was committed but to award no damages for the trespass
       where it was nondeliberate and caused no actual damage. Thus
       nominal damages need not be awarded where no actual loss has
       occurred.

75 Am. Jur. 2d Trespass § 97. In an earlier trespass case, a panel of our court

determined that although trespass was established, a directed verdict was proper

where no damages were shown based upon the evidence presented. Krotz v.

Sattler, No. 03-0013, 2004 WL 2297151, at *3 (Iowa Ct. App. Oct. 14, 2004); but

see Hipp, 147 N.W.2d at 199 (concluding that injury is presumed by unauthorized

entry “even if no damage is done, or the injury is slight”); Wing v. Seske, 109 N.W.

717, 717 (Iowa 1906) (finding while failure to give nominal damages is not

reversible error, even without proof of specific damage, if trespass over time

becomes the basis for adverse possession “a verdict for nominal damages serves

to vindicate and establish the plaintiff’s title”); Long v. Lauffer, No. 09-1916, 2011

WL 222530, at *9 (Iowa Ct. App. Jan. 20, 2011) (noting that the trespasser is liable

to possessor of land “irrespective of whether harm is cause to any legally protected

interest”). Thus it is unclear here whether nominal damages were mandated or

whether Clark had to prove her specific trespass damages.

       But we do not have to answer that question today. Just as the jury was told,

the jury instructions are not considered separately but as a whole. Kiesau v. Bantz,

686 N.W.2d 164, 175 (Iowa 2004), overruled on other grounds by Alcala v. Marriott
                                          10

Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). When considering the instructions as a

whole, this jury was told that “it was presumed that injury resulted from a trespass”

and that “one is subject to liability to another for trespass, whether actual damage

was caused or not.” (Emphasis added). Then the jury was instructed that since

the Downses admitted trespassing, Clark “is thus entitled to recover damages for

trespass in some amount.” (Emphasis added). But there were other instructions

to consider that escaped objection.        And the jury considered that “no one

instruction includes all of the applicable law.”

        Those other instructions included an instruction on the elements of

damages for a trespass claim. We note that Clark provided no trespass damage

instruction in her proposed instructions.4 But in the court’s drafted instruction

number 12, the jury learned that “[y]ou may consider the . . . elements of damage

allegedly caused by [the Downses’] trespass.” (Emphasis added.) The instruction

in full states:




4Clark drafted this interrogatory in her trespass verdict form: “QUESTION NO. 2.
Please state the amount of damages, if any, that you award Ms. Clark against
Jennifer Downs for trespass:” (Emphasis added.)
                                         11




There were no objections to this damage instruction. When instructions are not

objected to, they become “the law of the case.” Hoskinson v. City of Iowa City,

621 N.W.2d 425, 430 (Iowa 2001). These three elements were the only damage

choices on the trespass verdict form.

       Then, without objection, the jury was also given a causation instruction that

did not restrict its application under the trespass theory:
                                           12

Again, the language of this instruction became the law of the case. Ludman v.

Davenport Assumption High Sch., 895 N.W.2d 902, 916 (Iowa 2017).

       Viewing the instructions as a whole, the jury could, but did not have to,

consider the three damage elements for trespass. But after reviewing all of the

instructions, the jury was offered only those three potential damage options. The

jury, finding none of those three specific options had been proved, did not award

Clark damages—in spite of the instruction Clark was entitled to damages for the

trespass. While the better course of action would be to have the jury award some

dollar amount, here, without objection, the instructions left no opportunity to award

any amount other than these three elements of trespass damages.5 Because

nominal damages are often unrelated to any actual injury and the three elements

submitted required a showing of some injury,6 the jury was hamstrung. 75 Am.

Jur. 2d Trespass § 106. Following all of the instructions, the jury rejected the

damages and found the trespass was not the cause of any of the three damage

elements provided in the instructions.

       Clark also complains that it was improper for the district court to exercise its

judgment in awarding a nominal trespass verdict. See Clinton Physical Therapy

Servs., P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 614 (Iowa 2006)

(“A judge cannot exercise the power to substitute its judgment for the judgment of


5 The causation instruction also mandated that a party “could not recover duplicate
damages.” The jury awarded Clark $500 for emotional distress related to the
invasion-of-privacy claim and nothing for emotional distress in the trespass claim,
but no objections to the instructions covered this potential conflict.
6 Some of the acts of trespass alleged against the Downses involve conduct

generally tolerated by neighbors, such as stepping over the boundary line to mow
and to repair a fence, so it is feasible a jury simply believed no actual injury to Clark
occurred.
                                         13


the jury.”). No request was made by Clark to send the verdict form back to the jury

panel, and no record was made about the failure of the jury to award any damages

for trespass. Even so, “[t]he trial court has three alternatives where the answers

are consistent with each other but inconsistent with the general verdict: (1) order

judgment appropriate to the answers notwithstanding the verdict; (2) order a new

trial; or (3) send the jury back for further deliberations.” Dutcher v. Lewis, 221

N.W.2d 755, 765 (Iowa 1974). “Ordinarily, it is discretionary with the court as to

which of these alternatives to choose.” Id. The jury found the trespass caused no

damages to Clark. Thus, we find the trial court could order a verdict of nominal

damages where the jury gave no damages. Jury “verdicts are to be liberally

construed to give effect to the intention of the jury and to harmonize the verdicts if

it is possible to do so.” Hoffman v. Nat’l Med. Enters., Inc., 442 N.W.2d 123, 126

(Iowa 1989). A verdict can be reformed when the change “clearly and definitely

expresses the jury’s intentions.” Clinton Physical Therapy, 714 N.W.2d at 614

(citation omitted). Under these facts, we find the district court gave effect to the

intentions of the jury and any error raised by Clark is harmless. Rivera, 865 N.W.2d

at 903 (noting an error in the instructions may be harmless “if the record

affirmatively establishes that a party has not been injuriously affected by the

alleged error or that there has not been a miscarriage of justice”).

       IV. Spoliation Instruction.

       Clark asserts the district court erred by failing to instruct the jury on

spoliation of evidence.     After Darryl testified he deleted 2014 cell phone

photographs he had taken of Clark, her daughter, and areas around Clark’s home,

Clark requested a spoliation instruction. The district court denied the request,
                                          14


noting that the pictures from the cell phone were downloaded from the phone to

Darryl’s computer and that the elements to support the instruction were not met.

“It is a well established legal principle that the intentional destruction of or the

failure to produce documents or physical evidence relevant to the proof of an issue

in a legal proceeding supports an inference that the evidence would have been

unfavorable to the party responsible for its destruction or nonproduction.” Phillips

v. Covenant Clinic, 625 N.W.2d 714, 718 (Iowa 2001). The inference is that a party

who intentionally destroys a document is likely to have been threatened by the

document. See id. (finding that intentional destruction of evidence is required to

show spoliation). The instruction is not warranted if the disappearance of evidence

is due to mere negligence. State v. Hulbert, 481 N.W.2d 329, 333–34 (Iowa 1992)

(finding the negligent erasure of interview tape could not support spoliation

instruction).

       Clark needed to establish four factors: (1) the evidence was “in existence”;

(2) the evidence was “in the possession of or under control of the party” charged

with its destruction; (3) the evidence “would have been admissible at trial”; and (4)

“the party responsible for its destruction did so intentionally.” State v. Langlet, 283

N.W.2d 330, 335 (Iowa 1979). In an investigation in 2014, Darryl took photographs

of Clark in her backyard with her dogs. He turned her in to the City of Waukee for

harboring too many dogs on her property. The photographs also showed the

surveillance camera installed by Clark, as the Downses were concerned about

their privacy. But the Downses’ cell phone was replaced in June 2017, and the

phone was cleaned, erased, and turned in to the cell carrier. Some photographs

were downloaded and saved. All photographs saved were produced in discovery
                                          15


according to Darryl. There were a number of photographs taken by the Downses

of Clark or her property produced in the case. A spoliation inference should be

utilized prudently and sparingly. See Crosser v. Iowa Dep’t of Pub. Safety, 240

N.W.2d 682, 685 (Iowa 1976). Finding no evidence that some of the photographs

were intentionally destroyed, the record does not support a spoliation instruction.

       V. Request for Permanent Injunction.

       The district court denied Clark’s request for a permanent injunction to

prohibit the Downses from entering her property.          Clark argues use of this

extraordinary remedy is the only way to stop the Downses from trespassing. To

establish entitlement to injunctive relief, Clark had to show “(1) an invasion or

threatened invasion of a right; (2) that substantial injury or damages will result

unless the request for an injunction is granted; and (3) that there is [not another]

adequate [means of protection] available.” Sear v. Clayton Cty. Zoning Bd. of

Adjustment, 590 N.W.2d 512, 515 (Iowa 1999). This relief can be fashioned to

prevent repetition of trespass or to stop improper interference with property rights.

Ney v. Ney, 891 N.W.2d 446, 451 (Iowa 2017) (finding that assault coupled with

repeated acts of trespass and harassment warranted injunctive relief).             But

injunctions are “an extraordinary remedy which should be granted with caution and

only when clearly required to avoid irreparable damage.” Planned Parenthood of

Mid-Iowa v. Maki, 478 N.W.2d 637, 639 (Iowa 1991). And the grant of an injunction

requires “that substantial injury will result to the party whose rights are so invaded,

or such injury is reasonably to be apprehended.” Hughes A. Bagley, Inc. v. Bagley,

463 N.W.2d 423, 425 (Iowa Ct. App.1990) (affirming the district court enjoining a

family member from contact with other members after a number of assaults and
                                        16


threats, when the family member’s capacity for violence was undeterred by other

sanctions). If granted, an injunction should be “drawn narrowly enough to address

the harm sought to be redressed.” Matlock, 531 N.W.2d at 123.

       The antics of these parties do not rise to the level of injury to require the

extraordinary remedy of injunctive action by the court. The district court observed

the parties and noted, “[The Downses] testified that they would not again trespass

onto [Clark’s] property, and this testimony was credible.” Having the benefit of

seeing and listening to witnesses, we generally give weight to credibility findings

of the district court, although we are not bound by them. See Bagley, 463 N.W.2d

at 425; see also 75B Am. Jur. 2d Trial § 1582 (providing the trial judge has had the

best opportunity to observe the verbal and nonverbal behavior of the witnesses, in

contrast with merely looking at the cold pages of an appellate record). We agree

with the district court finding that the deterrent effect of the civil litigation is

substantial to the Downses. Because Clark failed to demonstrate the elements

justifying issuance of a permanent injunction, the district court correctly denied

injunctive relief.

       VI. Denial of Motion for Additur or New Trial.

       With a jury verdict of $602 in hand, Clark argues the damage award was

not adequate based on the evidence. See Iowa R. Civ. P. 1.1004(4), (6). The

district court found that the “evidence did not support significantly greater

damages.” “The determination of damages is traditionally a jury function.” Estate

of Pearson ex rel. Latta v. Interstate Power & Light Co., 700 N.W.2d 333, 345 (Iowa

2005). “A jury’s assessment of damages should be disturbed ‘only for the most

compelling reasons.’” Id. (quoting Rees v. O’Malley, 461 N.W.2d 833, 839 (Iowa
                                          17

1990)). “[W]e view the evidence in the light most favorable to the verdict . . . .” Id.

(quoting Olsen v. Drahos, 229 N.W.2d 741, 742–43 (Iowa 1975)). And appellate

courts will not disturb the “award when it is within a reasonable range of evidence.”

See Stender v. Blessum, 897 N.W.2d 491, 517 (Iowa 2017) (citation omitted).

“Ultimately, ‘we are reluctant to interfere with a jury verdict’ or the district court’s

consideration of a motion for new trial made in response to the verdict.” Estate of

Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 88 (Iowa 2002)

(citation omitted), abrogated on other grounds by Thompson v. Kaczinski, 774

N.W.2d 829 (Iowa 2009). The test we must apply is “whether the verdict fairly and

reasonably compensates the injury the party sustained.” Baker v. City of Ottumwa,

560 N.W.2d 578, 583 (Iowa 1997) (citation omitted).

       Even with the low dollar verdict, the district court, with the benefit of

participating over the entire trial, denied Clark’s motion for additur and new trial.

See Olsen, 229 N.W.2d at 743 (finding it was appropriate to consider that after

seeing and hearing witnesses and observing the entire process, the trial court did

not see fit to interfere with the verdict). During closing argument, Clark argued for

$7500 for the invasion-of-privacy claim and $10,000 for emotional-distress

damages.7 But Clark presented no claim for damage to any real property, except

for her requested reimbursement for attorney fees to write letters asking for the

grill cover ($800) and for grass seed where the Downses mowed ($150). Clark

testified that not all of the bags of grass seed were used in the area she claimed



7  No expert supported the claim for emotional distress; Clark had not sought
medical or psychological support, and she described her feelings as being “tired,”
“frustrated,” and “confusing.”
                                           18


the Downses damaged. And Clark required the Downses to communicate through

her attorney even though they suggested she come and retrieve the grill cover.

Considering the evidence and the nature of the claims, we cannot find the denial

of the motion for additur and new trial was an abuse of discretion.

         VII. Conclusion.

         Under the specific facts of this case, we find any error in the instructions

was harmless, the instruction on spoliation was not warranted, the district court

did not abuse its discretion by failing to grant a permanent injunction prohibiting

trespassing, and, finally, the court properly denied the motion for additur or new

trial.

         AFFIRMED.
