                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1813
                              Filed October 26, 2016


BRENDA PAPILLON,
    Plaintiff-Appellee,

vs.

BRYON JONES,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



       Defendant appeals the district court’s award of actual damages, punitive

damages, and attorney fees to plaintiff in her civil action for interception of oral

communications.       AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.




       Bryon L. Jones, Waukee, appellant pro se.

       Bradley P. Schroeder and Laura J. Lockwood of Hartung & Schroeder,

Des Moines, for appellee.



       Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       Bryon Jones appeals the district court’s award of actual damages, punitive

damages, and attorney fees to Brenda Papillon in her civil action brought

pursuant to Iowa Code section 808B.8 (2015) for interception of oral

communications. We affirm the district court on the issues of whether the audio

recordings were admissible as evidence and the award of actual damages. We

reverse the award of punitive damages. We remand to the district court on the

issues of trial and appellate attorney fees.

       I.       Background Facts & Proceedings

       Jones and Papillon previously lived together and had two children. On

January 27, 2014, Papillon filed a petition for a determination of physical care

and child support for the children. The parties continued to reside in the same

house.      Jones set up a recording system in the home so he could listen to

Papillon’s conversations. Papillon learned of the recordings on about March 10,

2015, when a friend, Kristie Sargent, told her Jones had asked about specific

conversations she had with Papillon that occurred when he was not present.

Papillon stated Jones began playing the recordings of her conversations very

loudly at night. On April 6, Papillon moved out of the home with the children and

stayed in a motel. After Jones moved out of the house on June 1, she moved

back in.

       Dr. Sheila Pottebaum was employed by the parties to conduct a child

custody evaluation.     Jones gave Dr. Pottebaum copies of audio tapes and

transcripts of Papillon’s conversations, and Dr. Pottebaum read the transcripts.

Jones told Dr. Pottebaum he began “recording everything in the house,
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whenever I left the house I just let it run.” Dr. Pottebaum mentioned the audio

tapes in her report,1 which was submitted in the custody case. Jones also gave

the recordings to his attorney. Jones initially indicated he intended to present the

audio tapes in the custody dispute, but later changed his mind, and neither the

audio tapes nor the transcripts were offered.

         While the custody case was pending, Jones sent Papillon a text message

stating he had audio recordings and the truth would be revealed, either in court

or online.      He stated a former girlfriend, Machela Ponec, had heard the

recordings and would testify against Papillon in the custody dispute, but Ponec

did not testify. In an email, Jones stated, “You heard the recordings. Who’s

lies?”    In one text, Jones alluded to possible video recordings, but no video

recordings were ever produced, and Jones testified there were no video

recordings.

         In August 2014, Papillon filed a petition against Jones requesting civil

damages under section 808B.8 on the ground Jones had willfully intercepted her

private communications.        She voluntarily dismissed that action and filed the

present case, on the same ground, on January 15, 2015. At the trial, Jones

testified he told Papillon during a counseling session he was going to make

recordings in the house, “or something to that effect, and she said, go ahead, I

don’t care what you do.” Papillon denied consenting to the recording. Jones

objected to the admission of the recordings, and the court overruled his

objection.



1
    Dr. Pottebaum’s report recommended Papillon receive physical care of the children.
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      The district court filed a decision on October 20, 2015, finding Jones had

violated section 808B.2 by willfully intercepting Papillon’s communications. The

court found Papillon had not consented to the recording of her conversations.

The court awarded Papillon actual damages of $2076.55, the amount she spent

staying in a hotel. The court also awarded Papillon punitive damages of $18,000

and attorney fees of $16,008.80. Jones appeals the decision of the district court.

      II.    Standard of Review

      An action for civil damages under section 808B.8 is at law, and our review

is for the correction of errors at law. Iowa Beta Chapter v. State, 763 N.W.2d

250, 257 (Iowa 2009). The district court’s factual findings are binding on appeal

if they are supported by substantial evidence. Id. “On the other hand, the district

court’s conclusions of law and its application of its legal conclusions are not

binding on appeal.” Id.

      III.   Admissibility of Recordings

      Jones claims the district court improperly overruled his objection to the

admissibility of the recordings. Jones’s objection was based on section 808B.7,

which provides:

             The contents or any part of the contents of an intercepted
      wire, oral, or electronic communication and any evidence derived
      from the wire, oral, or electronic communication shall not be
      received in evidence in a trial, hearing, or other proceeding in or
      before a court, grand jury, department, officer, agency, regulatory
      body, legislative committee, or other authority of the United States,
      a state, or political subdivision of a state if the disclosure of that
      information would be in violation of this chapter.

      “If an interception is in violation of chapter 808B, the evidence is barred

from any court proceeding.”     State v. Spencer, 737 N.W.2d 124, 128 (Iowa
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2007). Chapter 808B does not bar the interception of oral communications “if the

person is a party to the communication or one of the parties to the

communication has given prior consent to the interception.”          Iowa Code

§ 808B.2(2)(b).   Papillon was a party to the oral communications on the

recordings, so her disclosure of the information at trial was not in violation of

chapter 808B, and therefore, the admission of the audio recordings was not

barred by section 808B.7.

      IV.    Actual Damages

      Jones claims the district court’s award of $2076.55 to Papillon in actual

damages is not supported by the evidence. This amount represents Papillon’s

motel expenses from April 6 to June 1, when she and the children did not live in

the home. Jones points out Papillon testified she knew Jones was recording her

conversations by about March 10, 2015, but she did not move out of the home

until April 6. He states this shows she did not move out to avoid having her

conversations recorded. He claims the parties were not getting along while living

in the same home, so Papillon decided to move out.

      The Iowa Supreme Court has stated:

               A civil action exists when a person uses an oral
      communication in violation of chapter 808B.            Iowa Code
      § 808B.8(1)(a). A violation of chapter 808B occurs when a person
      willfully uses or endeavors to use, the contents of the oral
      communication, and the defendant knew or had reason to know the
      information was obtained through the unlawful interception of the
      oral communication. Id. § 808B.2(1)(d). An unlawful interception of
      the communication occurs when a person willfully intercepts an oral
      communication. Id. § 808B.2(1)(a).
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Iowa Beta Chapter, 763 N.W.2d at 262. In chapter 808B, the term “willfully” “only

requires purposeful conduct without a bad motive or knowing, unlawful

component.” Id. at 264 (citation omitted).

      Under section 808B.8(1)(b)(1), in a civil cause of action against a person

who intercepts, discloses, or uses a wire, oral, or electronic communication, the

plaintiff is entitled to “[a]ctual damages, but not less than liquidated damages

computed at the rate of one hundred dollars a day for each day of violation, or

one thousand dollars, whichever is higher.”

      At the trial, Papillon testified Jones started playing the recordings of her

conversations very loudly at night, preventing her from sleeping. She stated she

“started to panic” because she felt he was using the recordings aggressively and

she was concerned he would continue to record her, so she moved to a motel

with the children. We determine there is substantial evidence in the record to

support a finding Papillon incurred $2076.55 in actual damages as a result of

Jones’s interception and use of her oral communications.

      V.     Punitive Damages

      Jones claims the district court erred in ordering him to pay punitive

damages of $18,000. He states the award of punitive damages is excessive and

burdensome, particularly because he believed he had Papillon’s consent to

record her conversations. He also claims the punitive damages are too large

when compared to the actual damages.

      “Under the Iowa statute, a mere violation of the statute will not entitle an

aggrieved person to receive punitive damages.”      Id. at 263.   “In order for a

person to receive punitive damages under the statute, the finder of fact must
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make ‘a finding of a willful, malicious, or reckless violation of this chapter.’” Id. at

263-64 (citation omitted). “[F]or civil liability to attach, a person’s conduct only

needs to be purposeful conduct without a bad motive or knowingly unlawful

component.”     Id. at 267.    Therefore, “the legislature intended more than a

purposeful violation of the statute before a court could award punitive damages.”

Id. “Accordingly, to recover punitive damages under section 808B.8(1)(b)(2), a

person must prove ‘at least a voluntary, intentional violation of, and perhaps also

a reckless disregard of, a known legal duty.’” Id. (citation omitted). “Under this

standard, an award of punitive damages is only allowed if the person knew of the

requirements of the act and acted willfully, maliciously, or recklessly in violating

the act.” Id. at 268.

       On this issue, the district court stated:

              [Jones] claims he did not know it was illegal to surreptitiously
       record [Papillon’s] private oral communications without her
       knowledge, permission, or consent. Regardless of whether [Jones]
       was consciously aware that his conduct was illegal, he intentionally
       recorded [Papillon’s] private conversations and disclosed them or
       endeavored to disclose them to third parties in order to use them
       against her in child custody litigation. [Jones] clearly knew what he
       was doing when he did it and he did so willfully, maliciously, and in
       reckless violation of the law.

       The district court’s findings do not meet the standard to justify an award of

punitive damages. The court did not find Jones was aware of the requirements

of chapter 808B and willfully, maliciously, or recklessly violated those statutory

requirements. See id. The evidence does not show Jones knew his use of the

recordings violated the act.     We determine the award of $18,000 in punitive

damages should be reversed.
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       VI.    Attorney Fees

       A.     Jones claims the award of $16,008.80 for attorney fees was not

reasonable.    He states the court improperly ordered him to pay Papillon’s

attorney fees for the earlier case that was dismissed.      Jones states Papillon

should not be awarded attorney fees for a prior case in the present case.

Papillon responds the work her attorney performed in the earlier case benefitted

her in this case.

       Section 808B.8(b)(3) provides, “[a] reasonable attorney fee and other

litigation costs reasonably incurred” may be awarded in an action for civil

damages under chapter 808B.         Section 808B.8(b)(3) allows a party “to be

awarded its attorney fees and costs incurred in prosecuting its claim under

section 808B.8 for the defendants’ use of the intercepted communication.” Id. at

269.

       Papillon dismissed her original action against Jones. Attorney fees for

work by her attorney during the first action which were of benefit in the second

action, such as research of the claims, may be part of the reasonable fees in this

action. On the other hand, Jones should not be required to pay for drafting the

petition, reviewing the answer, and other administrative actions in the first case,

which were ultimately of no benefit in the second case. We determine the award

of attorney fees should be remanded to the district court for a determination of

Papillon’s reasonable attorney fees under these guidelines.

       B.     Papillon seeks attorney fees of $11,132.50 for this appeal. When a

statute permits an award of attorney fees, appellate attorney fees may be

awarded as well. Bankers Trust Co. v. Woltz, 326 N.W.2d 274, 278 (Iowa 1982).
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On remand, the district court should consider the time spent on appeal in

awarding attorney fees and costs. See Abernethy v. Schmitt, 879 N.W.2d 866,

869 (Iowa Ct. App. 2016).

      We affirm the district court on the issues of whether the audio recordings

were admissible as evidence and the award of actual damages. We reverse the

award of punitive damages. We remand to the district court on the issues of trial

and appellate attorney fees.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
