                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0368
                              Filed March 21, 2018


KARI ANN ATZEN,
     Plaintiff-Appellee,

vs.

ANGELIA RENEE ATZEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.



      Steven Atzen’s current wife appeals jury verdicts in favor of his former wife

in the former wife’s lawsuit alleging abuse of process, intentional infliction of

emotional distress, and defamation. AFFIRMED.




      Marcy A. O’Brien of O’Brien Law, P.L.C., Windsor Heights, for appellant.

      Andrea M. Flanagan, Flanagan Law Group, P.L.L.C., Des Moines, for

appellee.



      Heard by Doyle, P.J., and Tabor and McDonald, JJ.
                                         2


      TABOR, Judge.

      “I have the cops on speed dial,” Angelia Atzen allegedly warned her

husband’s former wife, Kari Atzen, after a contentious encounter between the two

women at a high school gym in November 2011. For the next fifteen months,

Angelia waged an insidious campaign against Kari that a jury recognized as abuse

of process, intentional infliction of emotional distress, and defamation. On appeal,

Angelia argues the jury’s verdicts were not supported by substantial evidence. She

also contends the damage awards were excessive. Finally, Angelia asserts the

district court gave two faulty jury instructions. Viewing the evidence in the light

most favorable to the verdicts, we affirm the jury’s findings and damage awards.

We also conclude Angelia failed to show prejudice from any instructional error.

      I.     Facts and Prior Proceedings

      Kari and Steven Atzen divorced in April 2009. The decree granted Kari

physical care of their two children and ordered Steven to pay the mortgage on the

home Kari shared with the children. Steven made mortgage payments until the

fall of 2010, when he became engaged to Angelia. Steven and Angelia married in

December 2010. In February 2011, Kari received a letter from the lender indicating

the house would be placed in foreclosure. Kari and Steven continued to have

disagreements about his financial responsibilities. In September 2011, Steven and

Kari had a verbal argument in her driveway as he dropped off some items for their

children. Steven and Angelia claim Angelia’s then eight-year-old son was in the

backseat of Steven’s car and overheard Kari swearing at Steven. Kari contends

she was trying to discuss their children and her financial situation with Steven and
                                         3


was unaware if Angelia’s son was in the car. Shortly after this incident, in early

October, Steven filed a petition for custody modification.

       The instant case was spurred by a confrontation between Kari and Angelia

on November 5, 2011. Kari, Steven, and Angelia attended a youth basketball

game at Southeast Polk High School. Kari approached Steven to discuss their

children. Angelia was standing next to him and rolled her eyes as Steven and Kari

began to argue. Kari and Angelia exchanged insults. Angelia claims Kari used

profanity. Kari claims Angelia accused her of being a “disgrace for a mother,” and

she replied by telling Steven “that’s exactly why she doesn’t have any friends.”

Kari then left the gym and joined two other parents in the hallway. Angelia walked

up behind Kari and said, “You’re a joke for a mother.” Kari told Angelia she was

afraid of her, and she should stay away. It was at this juncture Angelia warned

Kari that she had the police “on speed dial.” Angelia then left the high school with

her son. Kari found the interaction with Angelia to be unsettling and decided to file

a police report.

       Angelia also reported the encounter to police, though her story of what

happened was at odds with Kari’s version. Angelia claimed Kari chased her down

the hallway yelling profanity and tried to position herself between Angelia and her

son as they moved toward the exit. Angelia also emailed friends and family asking

for information regarding Kari’s past conduct. In addition, she emailed Steven’s

family-law attorney to relay her version of events and expressed her opinion Kari

was not capable of “healthy parenting.” Angelia emailed Polk County Attorney

John Sarcone requesting assistance. When Angelia received a copy of the police

report, she was dissatisfied with the level of detail and submitted an additional
                                           4


statement. The police recommended Angelia and Kari stay away from each other.

Angelia emailed more friends a few days later requesting help and sharing her

account of the Southeast Polk incident.

         The next incident relevant to this lawsuit allegedly occurred on

December 11, 2011 at the Four Mile Creek Recreation Center, where Kari

attended a basketball game played by one of her children. Kari did not believe

Angelia attended the game because she did not recall seeing her in the small gym.

But Angelia claims she was at the game when Kari walked up and sat directly

behind her in an “intimidating” fashion.

         On December 23, Kari filed her own custody modification petition. Kari

alleges, as a form of retaliation, Angelia filed a fabricated police report relaying

claims about the December 11 incident and requesting criminal charges be filed.

As a result of Angelia’s report, police issued an arrest warrant for Kari. Kari was

arrested, strip searched, and held overnight in jail. When released, Kari was

subject to a no-contact order (NCO) preventing interactions with Angelia.

Eventually the NCO was modified so both women could attend official school and

sporting events for Kari’s children, so long as they did not have contact with each

other.

         In February 2012, Kari’s son participated in a basketball tournament in

Knoxville, Iowa. Kari took her son to a lunch attended by the parent-coaches and

other team families between games. After arriving at the restaurant, Kari sat at the

parents’ table, as far as possible from Angelia. Angelia claims she and Steven

scheduled the informal luncheon and were surprised when Kari showed up

because it was not an official team event. Afterward, Angelia contacted the local
                                          5


police department to report Kari violated the NCO and provided names of people

in attendance. As a result, the Marion County prosecutor agreed to file a criminal

complaint. Angelia alleges she stopped pursuing the Marion County complaint

once she realized her stepson could be called as a witness. The Polk County

Attorney dismissed Kari’s harassment charge after the parties participated in the

Victim Offender Reconciliation Program.

       At various points during her fifteen-month crusade to discredit Kari, Angelia

contacted friends and family, Angelia’s co-workers, other parents, and elementary

school officials, to inform them of Kari’s arrest, share Kari’s mug shot, and to assert

Kari harassed and threatened Angelia and her son.

       Kari eventually initiated an action against Pleasant Hill Police Chief Timothy

Sittig and Sergeant Matthew Covey, alleging false arrest and a violation of her civil

rights. The district court dismissed those claims on summary judgment. Kari

unsuccessfully appealed the summary judgment ruling. See Atzen v. Covey, No.

14-1958, 2016 WL 146343 (Iowa Ct. App. Jan. 13, 2016). Kari also filed this suit

against Angelia, alleging abuse of process, defamation, malicious prosecution,

intentional infliction of severe emotional distress, harassment, and fraudulent

concealment. Angelia filed a motion for summary judgment on all claims, and Kari

withdrew her claims for fraudulent concealment and malicious prosecution. The

district court granted summary judgment on the harassment claim but denied

summary judgment on the remaining claims.

       Kari’s suit went to trial in 2014. Angelia unsuccessfully moved for a directed

verdict; the jury found in Kari’s favor on all three claims and awarded punitive

damages. Angelia filed post-trial motions for judgment notwithstanding the verdict
                                           6


(JNOV) and a new trial. The district court denied the motions for JNOV and new

trial, but remitted damages for past injury to reputation from $200,000 to $50,000

and future injury to reputation from $100,000 to $25,000.

         Angelia filed a notice of appeal in February 2015, but the matter was

automatically stayed when she filed a Chapter 7 Bankruptcy Petition in March

2015. In March 2016, the federal district court approved a stipulation for relief from

the automatic stay which permitted this appeal to proceed.

  I.     Scope and Standards of Review

         We review the district court’s denial of Angelia’s summary judgment,

directed verdict, and JNOV motions for correction of errors at law. See Podraza

v. City of Carter Lake, 524 N.W.2d 198, 202 (Iowa 1994). On appeal, we view the

evidence in the light most favorable to Kari as the non-moving party. See id. We

review a challenge to the denial of a new trial based on jury awards for an abuse

of discretion. Ladenburg v. Ray, 508 N.W.2d 694, 696–97 (Iowa 1993). When the

motion for a new trial alleges the district court erred as a matter of law, then we

review for correction of legal error. Id. Challenges to jury instructions are also

reviewed for correction of legal error. State v. Piper, 663 N.W.2d 894, 914 (Iowa

2003).

 II.     Analysis

                A. Abuse of Process

         First Angelia argues the district court erred as a matter of law by permitting

Kari to recover for abuse of process. Abuse of process is “the use of the legal

process, whether criminal or civil, against another primarily to accomplish a

purpose for which it was not designed.” Gibson v. ITT Hartford Ins. Co., 621
                                        7


N.W.2d 388, 398 (Iowa 2001). Put another way, abuse of process amounts to

using the legal process to extort some advantage from another not available

through the legal process itself. See Royce v. Hoening, 423 N.W.2d 198, 202

(Iowa 1988). The claim has three elements: 1) use of the legal process, 2) in an

improper or unauthorized manner, 3) that causes plaintiff to suffer damages as a

result of the abuse. Fuller v. Local Union No. 106 of United Bhd. of Carpenters &

Joiners, 567 N.W.2d 419, 421–22 (Iowa 1997).

      Abuse of process is a commonly confused and rarely used tort. See Philip

L. Gordon, Defeating Abusive Claims and Counterclaims for Abuse of Process, 30

Colo. Law. 47, 47 (2001) (describing it as a “once-obscure tort absent from

practically every law school curriculum”). It developed as a means to provide

remedies beyond the scope of malicious-prosecution claims.          Id.   Malicious

prosecution claims must be based upon a civil or criminal proceeding wrongfully

initiated and without probable cause. See Ahrens v. Ahrens, 386 N.W.2d 536, 538

(Iowa 1986) (describing basis for malicious prosecution claim). But abuse-of-

process claims permit potential recovery for misuse of a civil or criminal legal

proceeding brought with probable cause and a proper purpose. Restatement

(Second) of Torts § 682 cmt. a (Am. Law Inst. 1977). Within the context of an

abuse-of-process claim, the wrongful conduct occurs after the initiation of a legal

proceeding. See Ahrens, 386 N.W.2d at 538 (stating abuse of process occurs

when “a lawfully used process is perverted to an unlawful use”).

      On appeal, Angelia contests only the first two elements: (1) use of the legal

process (2) for an improper or unauthorized purpose.

          1. Did Angelia Use the Criminal Legal Process?
                                          8


       Angelia argues that as a matter of law Kari is unable to prove the first

element—use of the legal process. See id. Angelia incorrectly focuses on her

conduct before initiation of the criminal charges and NCO on December 30.

Angelia cites Fuller to argue her conduct cannot amount to use of the legal

process. 567 N.W.2d at 422 (holding “the mere report to police of possible criminal

activity does not constitute legal process”). She claims her actions beyond filing a

report with police, including her follow-up contacts with police, conversations with

the county attorney’s office, and consultations with various attorneys, illustrate her

diligent attempts to address her genuine concerns and, even if considered in

aggregate, do not amount to “use of process.” At first blush, Angelia’s argument

seems compelling.

       Recently, an Arizona appellate court endorsed Fuller and its conclusion that

reports to police are not use of the legal process. Fappani v. Bratton, 407 P.3d 78,

82–83 (Ariz. Ct. App. 2017). Expanding on Fuller’s reasoning, the Arizona court

rejected an argument that a defendant’s repeated demands for a prosecutor to

pursue reported offenses amounted to use of the legal process. Id. at 83. It

reasoned: “A prosecutor has discretion to prosecute such cases as he or she

deems appropriate, thus, whether a case is prosecuted is not controlled by the

victim or anyone else.” Id. The court concluded, “[d]emanding that the county

attorney prosecute a criminal violation of law, without more, does not implicate

judicial process.”   Id.   Following this reasoning, Angelia’s reports to police,

entreaties for police to institute criminal charges, consultations with attorneys, and

communication with the Polk County Attorney’s Office before Kari was criminally
                                             9


charged do not amount to use of the legal process. If our inquiry ended here, we

could not conclude Angelia used the legal process.

       But Angelia’s focus is too narrow; we must consider her later conduct.1

Abuse of process “is concerned with the improper use of process after it has been

issued.” Herring v. Citizens Bank & Trust Co., 321 A.2d 182, 190 (Md. Ct. Spec.

App. 1974). We must assess Angelia’s actions after initiation of the criminal case

to determine if she used the legal process. Here process was issued when the

district court found probable cause supporting a preliminary complaint and issued

an arrest warrant and NCO. We must examine Angelia’s subsequent conduct to

determine if she used this legal process.

       Kari had the burden to prove Angelia took some action after the State

commenced the criminal charges “using legal process empowered by that

[prosecution] to accomplish an end not within the purview of the [prosecution].”

See Batten v. Abrams, 626 P.2d 984, 990 (Wash. Ct. App. 1981). Use of the legal


1
    Kari’s petition alleged abuse of process based on Angelia’s reports of “false information
to law enforcement officers for the purpose of instigating a criminal prosecution.” The
petition also included statements alleging Angelia agreed to work toward the dismissal of
Kari’s criminal charges if Kari made certain custody concessions. It also alleged Angelia
tricked Kari into violating the NCO. Because Kari’s petition discussed Angelia’s conduct
after Kari was criminally charged, we conclude the petition meets notice-pleading
requirements and permits Angelia’s later conduct to serve as the factual basis for the
abuse-of-process claim. See Rees v. City of Shenandoah, 682 N.W.2d 77, 79 (Iowa
2004).
        In resistance to Angelia’s motion for summary judgment, Kari filed a statement of
disputed facts including statements about Angelia’s conduct after Kari was criminally
charged. The district court’s ruling on Angelia’s motion for summary judgment also cited
to Angelia’s later police report alleging Kari violated the NCO as conduct constituting use
of process. Although Angelia filed a motion to reconsider the summary judgment ruling
on the intentional infliction of emotional distress claim, she did not contest the district
court’s reliance on her conduct after the criminal charges and NCO were issued in relation
to the abuse-of-process claim. By not objecting to the district court and Kari’s reliance on
Angelia’s later conduct in any form, Angelia waived any argument that Kari’s petition did
not sufficiently identify the later conduct as the basis for the abuse-of-process claim. See
Linden v. Green, 46 N.W. 1108, 1109 (Iowa 1890).
                                         10


process may also be described as some “definite act or threat not authorized by

the process or aimed at an objective not legitimate in the use of the process.” See

W. Prosser, Law of Torts § 121 (4th ed. 1971).

       Kari satisfied that burden by showing that after the NCO issued, Angelia

contacted the assistant county attorney assigned to Kari’s prosecution and

inquired about using the NCO to prevent Kari from contacting Steven regarding

their custody modification proceedings, worked with Steven to barter their

cooperation in the criminal proceeding for favorable custody modification terms,

attempted to use the NCO to prevent Kari from attending the Atzen children’s

sporting events, and claimed Kari violated the NCO in February. This course of

conduct represents the kind of perversion of the criminal process after it is

commenced that fulfills the first element of abuse of process.

       We next inquire into the motivation behind Angelia’s use of process.

          2. Did Angelia Use the Legal Process in an Improper or
             Unauthorized Manner?

       Angelia claims, even if she did use the legal process, as a matter of law,

she did not use it in an improper or unauthorized manner. See Fuller, 567 N.W.2d

at 421–22. The improper or unauthorized purpose must be the primary motivation

for the tortfeasor to use the process. See Pundzak, Inc. v. Cook, 500 N.W.2d 424,

429 (Iowa 1993). Specifically, the jury instructions required Kari to prove Angelia

used the criminal legal process “primarily for the purpose of assisting Steven Atzen

in the custody and support action between Steven and Kari Atzen and/or to

intentionally inflict severe emotional distress on Kari Atzen.”
                                          11


       Angelia contends if she used the criminal process, she did so for its

intended purpose. In support of her contention, Angelia repeats her version of

events to show she had valid reasons for pursuing criminal charges against Kari

and notes the Polk and Marion County Attorneys shared her interest in going

forward with the criminal cases. But “an abuse of process can occur even though

there is probable cause to bring the action.” Palmer v. Tandem Mgmt. Serv., Inc.,

505 N.W.2d 813, 817 (Iowa 1993). And a cause of action for abuse of process

was developed specifically for instances arising from misuse of a legal proceeding

brought with probable cause and a proper purpose. See Restatement (Second)

of Torts § 682 cmt. a (Am. Law Inst. 1977).

       We recognize abuse-of-process claims “often fail on the merits because of

the high burden imposed by the Iowa Supreme Court for this second element.”

Jensen v. Barlas, 438 F. Supp. 2d 988, 1002 (N.D. Iowa 2006). As Angelia notes,

“proof of an improper motive by the person filing the lawsuit for even a malicious

purpose does not satisfy this element.” Palmer, 505 N.W.2d at 817. A person

cannot be held liable if she “has done no more than carry the process to its

authorized conclusion, even with bad intentions.” Jensen, 438 F. Supp. 2d at 1003

(quoting Schmidt v. Wilkinson, 340 N.W.2d 282, 267 (Iowa 1983)). Abuse of

process does not occur even when the motivation for using the legal process was

to intimidate or embarrass the plaintiff. Id.

       Kari cannot prove abuse of process simply by showing Angelia relished

Kari’s difficulties resulting from the initiation of the legal process. See Pundzak,
                                             12

Inc., 500 N.W.2d at 430. But if Angelia’s immediate purpose was some sort of

extortion, then an abuse of process occurred.2 See id.

       Here, the improper or unauthorized purposes identified in the jury instruction

were to influence Steven and Kari’s dissolution modification proceedings and to

intentionally inflict severe emotional distress. The allegation that Angelia tried to

influence the modification proceedings qualifies as an improper purpose because

she sought “some collateral advantage” or influence over the modification

proceedings. See Palmer, 505 N.W.2d at 817. Kari’s family-law attorney testified

the parties considered the criminal charges during mediation and agreed to work

toward dismissal, indicating the criminal charges were used as a “bargaining chip.”

Angelia concedes she communicated with Steven and his attorney during the

mediation. Likewise, Steven testified he and Angelia worked together to achieve

their objectives related to Kari. Angelia regularly communicated with Steven’s

attorney about the modification proceedings and their interplay with the criminal

charges.    For instance, within the same email thread, Angelia discussed the

amount of new child support payments between Kari and Steven and the impact

of the criminal proceedings on the modification proceedings. And Angelia tried to

use the NCO to prevent Kari and Steven from communicating about the

modification proceedings.

       The jury could infer Angelia’s desire to influence the modification

proceedings from the timing of her course of conduct. She emailed Steven’s




2
  For example, if a party sues another based on a legitimate cause of action but was
primarily motivated by a desire to financially ruin the other party through costly litigation,
then the ruined party may sue for abuse of process. See id.
                                        13


attorney roughly two and a half weeks after Steven filed his modification petition,

suggesting specific conditions be included in the amended decree. She reported

the alleged December 11 incident on December 27, four days after Steven was

served notice of Kari’s counter-petition to modify their custody arraignment.

Angelia filed her Marion County complaint shortly before the mediation; she

reported the claimed NCO violation on February 25 and the mediation addressing

modification occurred on March 1, less than a week later.

       The jury could also consider Angelia’s use of the criminal proceedings to

inflict severe emotional distress upon Kari as an improper motive. The infliction of

emotional distress on Kari was not simply, in Angelia’s view, a happy byproduct of

the criminal proceedings; it was a primary purpose for Angelia’s conduct. See

Pundzak, 500 N.W.2d at 430. The record is replete with evidence indicating

Angelia used the NCO as a sword against Kari. For instance, Angelia intended

the NCO to prevent Kari from attending her own children’s events. Angelia also

shared Kari’s arrest photo with others in the community and told other parents

about Kari’s arrest to turn them against Kari.

       Angelia asserted her use of the legal process was for the legitimate cause

of protecting herself and her child from harassment. But the jury rejected her

version of events. The jury was free to consider the timing of Angelia’s actions in

relation to the modification proceedings to infer her desire to influence Steven’s

family-law case through the criminal proceedings. Likewise, the jury was free to

conclude Angelia used the criminal proceedings to inflict severe emotional harm

on Kari. Because both interference with the custody modification mediation and

intentional infliction of severe emotional distress were improper purposes for use
                                          14


of the legal system, the court did not err as a matter of law by rejecting Angelia’s

summary judgment, directed verdict, JNOV, and new trial motions.

              B. Intentional Infliction of Severe Emotional Distress

       Angelia next argues the district court erred as a matter of law by permitting

Kari to recover for intentional infliction of severe emotional distress. Kari had the

burden to establish (1) outrageous conduct by Angelia; (2) Angelia intentionally

caused, or recklessly disregarded the probability of causing, the emotional

distress; (3) Kari suffered severe or extreme emotional distress; and (4) Angelia’s

outrageous conduct was the actual and proximate cause of the emotional distress.

See Fuller, 567 N.W.2d at 423. Angelia contends Kari failed to prove elements

one and three as a matter of law.

       1. Was Angelia’s Conduct Outrageous?

       An award for intentional infliction of emotional distress requires a plaintiff to

“establish a prima facie case for outrageous conduct.” Smith v. Iowa State Univ.

of Sci. and Tech., 851 N.W.2d 1, 26 (Iowa 2014). Then the district court must

determine if the alleged conduct is outrageous as a matter of law. Id. If reasonable

people could reach differing conclusions regarding outrageousness, the question

must be presented to the jury. See id. Conduct is outrageous if it goes “beyond

all possible bounds of decency . . . and [is] utterly intolerable in a civilized

community.” Id. (quoting Van Baale v. City of Des Moines, 550 N.W.2d 153, 156–

57 (Iowa 1996)). Typically, a cause of action exists if a factual recitation would

cause an average person to exclaim, “Outrageous!” Id.

       Angelia fails to acknowledge the sharp contrast between her own narrative

and Kari’s factual recitation. Instead, Angelia relies solely on her version of events
                                         15


to argue her conduct was not outrageous as a matter of law. But when determining

if Angelia’s conduct was outrageous, the district court necessarily reviewed the

claims assuming Kari’s version was true. See Bierman v. Weir, 826 N.W.2d 436,

467 (Iowa 2013) (assuming all factual disputes in favor of plaintiff when

determining if conduct was outrageous). On review we must do the same. See

id. Kari alleged Angelia filed exaggerated and false police reports, urged police

and prosecutors to criminally charge Kari without probable cause, contacted

people in the community about the allegations including false claims that Kari

threatened Angelia’s eight-year-old son, tried to intervene in Kari and Steven’s

custody proceedings, shared Kari’s mug shot in the community, abused the NCO

in an effort to block Kari from attending her children’s events, and induced Kari to

violate the NCO at a basketball team lunch.

       Kari offered witnesses to bolster her version of events. See Vaughn v. Ag

Processing, Inc., 459 N.W.2d 627, 636 (Iowa 1990) (requiring “substantial

evidence of such extreme conduct”). She provided testimony from Nicole Williams

contradicting Angelia’s version of the Southeast Polk incident. Williams testified

she did not hear Kari shout at Angelia in the gym, found Kari upset in the hallway

after the game, observed Angelia leave with her son, and did not see Kari follow

them down the hallway yelling threats or obscenities. Kari also provided testimony

from Joseph Boord corroborating her version and contradicting Angelia’s version

of the Southeast Polk incident. Boord testified he saw Kari and Angelia in the

hallway and stated Kari did not follow Angelia. When he approached Kari after

Angelia left, Kari was crying and told him Angelia called her a “terrible mother.”

Kari also offered numerous exhibits to illustrate Angelia’s outrageous conduct, e.g.,
                                         16


Angelia’s supplemental statement to police embellishing her original complaint

regarding the Southeast Polk incident and Angelia’s emails sent to mutual friends

sharing her allegations against Kari, to Steven’s family-law attorney meddling in

the custody case, to the Polk County Attorney claiming Kari threatened her and

her son, to her co-workers claiming Kari harassed her, and to elementary school

officials claiming Kari threatened and harassed her and her son and sharing Kari’s

arrest photo.

       While “[e]very unkind and inconsiderate act cannot be compensable,” the

conduct alleged by Kari goes beyond unkind and inconsiderate. See id. The jury

could have found from the evidence that Angelia executed a meticulous plan to

attack Kari in the courtroom of public opinion, as well as in an actual courtroom,

relying on fabricated events. A reasonable person could hear Kari’s saga and

justifiably exclaim, “Outrageous!” See Smith, 851 N.W.2d at 26.

       2. Did Angelia’s Conduct Cause Kari Severe Emotional Distress?

       Angelia claims Kari provided insufficient evidence showing she suffered

physical or emotional harm as a result of Angelia’s conduct. To recover for

emotional distress, Kari was required to exhibit physical symptoms or “a notably

distressful mental reaction caused by the outrageous conduct.” See id. at 30

(quoting Steckelberg v. Randolph, 448 N.W.2d 458, 463 (Iowa 1989)). Kari may

recover only if the effects of the outrageous conduct are so severe that no

reasonable person could be expected to endure them.           See id.    “Abdominal

cramps, weight loss, and crying” may be a sufficient manifestation of emotional

distress to submit the issue to a jury. See id. But “headaches, insomnia, and loss

of appetite” that were not been treated by a doctor and did not result in weight loss
                                            17


did not prove a sufficient manifestation of emotional distress to submit the issue to

a jury. See id. at 31.

       The jury could have decided Kari’s symptoms went beyond temporary

discomfort. Her former mental-health counselor, Jenny Rainy-Gibson, testified

Kari would visibly shake in fear when discussing her conflict with Angelia. Kari’s

current counselor, Crystal Hemeseth, noted Kari began showing signs of post-

traumatic-stress disorder (PTSD) shortly after treatment started in July 2013.

Hemeseth determined Kari was suffering from fear, panic attacks, sadness,

anxiety, intense worry, crying spells, loss of weight, lack of appetite, and inability

to sleep. These symptoms persisted throughout Kari’s treatment.

       On appeal,3 Angelia argues the jury could not rely on Hemeseth’s testimony

because the counselor’s conclusions are based on Kari’s own statements during

treatment. But Angelia does not suggest another, more reliable methodology could

have been used by Hemeseth to assess Kari’s mental health. Additionally, on

cross-examination, Angelia exposed Hemeseth’s limited knowledge of Kari’s

medical history. The jury was free to consider the basis of Hemeseth’s testimony

and knowledge of Kari’s medical history when concluding Kari suffered emotional

harm. See Twohey v. Brown, 66 N.W.2d 870, 872 (Iowa 1954) (noting the jury

must weigh all evidence presented).




3
  Angelia’s brief argues in passing that the counselor’s testimony should have been
excluded. The entirely of her argument is: “Plaintiff’s treating therapists should have been
excluded for reasons set forth in Defendant’s Motion in Limine.” This reference is
insufficiently developed for appellate review. See Midwest Auto. III, LLC v. Iowa Dep’t of
Transp., 646 N.W.2d 417, 431 n.2 (Iowa 2002) (holding random mention of an issue
without elaboration or supporting authority fails to preserve the claim).
                                          18


       Kari’s friends also noticed dramatic changes in Kari’s mental health as a

result of Angelia’s outrageous conduct. Mary Hermes testified Kari is now more

withdrawn at the children’s functions and seems embarrassed. Jenny Morgan

stated the stress “has taken a toll on [Kari]” and indicated Kari is always very

nervous, tearful, and embarrassed. Morgan also indicated Kari is afraid to walk in

front of anyone at the children’s events. The change in Kari was so significant she

“worried for [Kari’s] life and [Kari’s] safety.” The jury could have relied on testimony

from Rainey-Gibson, Hemesesth, Hermes, and Morgan to conclude Kari suffered

physical or mental manifestations of emotional distress.

       3. Should the District Court Have Ordered Kari to be Evaluated by
          Angelia’s Expert?

       Angelia also argues the district court erred in denying her request for Kari

to submit to a psychological evaluation with Angelia’s expert. When a person’s

mental or physical condition is at issue, a court may order the person be subjected

to an examination. See Iowa R. Civ. P. 1.515. But the requesting party must show

good cause for the examination. See id. Before requesting Kari be subjected to

a psychological evaluation, Angelia’s expert had the opportunity to examine Kari’s

medical and counseling records. He reported he could issue an opinion regarding

Kari’s emotional distress “within a reasonable degree of medical certainty.”

Because Angelia’s expert already reached an informed conclusion, Angelia failed

to show good cause to subject Kari to an examination.

              C. Defamation

       Angelia disputes the defamation award, arguing Kari’s proof was insufficient

as a matter of law. The jury instructions identified six separate categories of
                                         19


defamatory communication: 1) statements to law enforcement agencies regarding

November 5, 2011; 2) statements to law enforcement agencies regarding

December 11, 2011; 3) statements to lawyers not representing a party; 4)

statements to co-workers; 5) statements to friends or family; and 6) statements to

personnel of the Southeast Polk School District. The jury answered interrogatories

finding each category was defamatory per se, per quod, and by implication.

       “Defamation includes the twin torts of libel and slander.” Kiesau v. Bantz,

686 N.W.2d 164, 174 (Iowa 2004) (citation omitted) (overruled on other grounds

by Alcala v. Marriott Intern. Inc., 880 N.W.2d 699 (Iowa 2016)). Libel covers written

statements and slander covers oral statements. Bierman, 828 N.W.2d at 444. Per

se defamation has “a natural tendency to provoke the plaintiff to wrath or expose

[her] to public hatred, contempt, or ridicule, or to deprive [her] of the benefit of

public confidence or social intercourse.” Id. (quoting Johnson v. Nickerson, 542

N.W.2d 506, 510 (Iowa 1996)). In actions between a private plaintiff and a non-

media defendant, per se defamation does not require proof of malice, falsity, or

damage. See id. Per quod defamation requires a third party to “refer to facts or

circumstances beyond the words actually used to establish defamation.” Johnson,

542 N.W.2d at 510 (citation omitted). Per quod defamation also requires the

plaintiff to prove damages. Id. Finally, the plaintiff must establish the statement

was made with malice. See Suntken v. Den Ouden, 548 N.W.2d 164, 168 (Iowa

Ct. App. 1996).     Defamation by implication occurs when a “defendant (1)

juxtaposes a series of facts so as to imply a defamatory connection between them,

or (2) creates a defamatory implication by omitting facts, [such that] he may be

held responsible for the defamatory implication, unless it qualifies as an opinion,
                                        20

even though the particular facts are correct.” Stevens v. Iowa Newspapers, Inc.,

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

          1. Did Angelia Defame Kari?

                 a. Were Angelia’s Statements to Law Enforcement
                    Regarding the November 5, 2011 Incident Defamatory?

       Angelia filed a voluntary statement on November 17, 2011, regarding the

November 5 confrontation at Southeast Polk High School.          In the statement,

Angelia asserted she and her second-grade son were followed by Kari who was

screaming profanity and trying to get between Angelia and her son. Angelia also

recorded her conversation with Pleasant Hill Police Chief Timothy Sittig and

Sergeant Matthew Covey where she claimed Kari chased her and her son “from

the gym to the hallway [and] finished her verbal assault on [Angelia.]”

       The jury found Angelia’s statements to law enforcement regarding the

November 5 incident to be defamatory per se, per quod, and by implication. We

agree Angelia’s assertion that Kari chased her and her young child while shouting

profanity and behaved in a physically threatening manner by trying to position

herself between mother and son is defamatory per se. We reach this conclusion

because allegations of such conduct directed at a young child would likely expose

Kari to public hatred, contempt, or ridicule. See Bierman, 828 N.W.2d at 444; see

also Rossignol v. Silvernail, 586 N.Y.S.2d 343, 345 (1992) (upholding defamation

award when plaintiff was “labeled a child abuser—one of the most loathsome

labels in society”).   Because she established per se defamation, Kari is not

required to prove malice, falsity, or damage as to that category. See Bierman, 828

N.W.2d at 444.
                                          21


       Angelia argues her statements cannot be defamatory because “the gist of

[her] statements made are indisputably true—the parties engaged in a verbal

altercation.” So long as the “‘gist’ of the defamatory charge is substantially true”

the plaintiff may not recover for the statement. Wilson v. IBP, Inc., 558 N.W.2d

132, 140 (Iowa 1996) (quoting Behr v. Meredith Corp., 414 N.W.2d 339, 342 (Iowa

1987)). But Angelia forgets “[t]he gist or sting of the defamatory charge . . . is ‘the

heart of the matter in question—the hurtfulness of the utterance.’” Id. (quoting

Behr, 414 N.W.2d at 342). The confrontation between the women is not the sting

of Angelia’s claims. The sting rests in her allegation that Kari chased her and her

child while screaming profanity and tried to separate Angelia from her child.

Accepting Kari’s version of events as true, as the jury did, Kari never chased

Angelia or her child, never tried to separate them, and never yelled profanity.

Angelia is not absolved by the truth.

                 b. Were Angelia’s Statements to Law Enforcement
                    Regarding the December 11, 2011 Incident Defamatory?

       Angelia contacted Sergeant Covey; claimed Kari sat directly behind her at

the Four Mile Recreation Center on December 11, 2011; and requested Kari be

charged with harassment. The jury found Angelia’s statements to Covey regarding

the December 11 incident to be defamatory per se, per quod, and by implication.

We do not conclude this statement is defamatory per se because an allegation one

person sat behind another, without more, will not subject anyone to public hatred,

contempt, or ridicule. See Bierman, 828 N.W.2d at 444. But we believe the jury

was justified in finding the statement to be defamatory per quod.
                                          22


          Per quod defamation occurs when a third party may “refer to facts or

circumstances beyond the words actually used to establish defamation.” Johnson,

542 N.W.2d at 510 (citation omitted). Covey previously met with Angelia to discuss

her conflict with Kari. During that conversation, Angelia tried to persuade him and

Chief Sittig that Kari was harassing her. They told her additional contact by Kari

could constitute harassment. Given this background, Covey could understand

Angelia’s statements as accusations of criminal conduct perpetrated by Kari. Kari

could demonstrate resulting damage by her criminal charges stemming from this

report.     See Johnson, 542, N.W.2d at 510 (requiring plaintiff show resulting

damage in per quod claim). And Angelia’s malice was demonstrated by her

ongoing efforts to ruin Kari’s reputation and emotionally injure Kari. See Suntken,

548 N.W.2d at 167 (requiring proof of malice).

                  c. Did Angelia Defame Kari in her Communication with
                     Lawyers not Representing a Party?

          Angelia discussed Kari in an email to Steven’s family-law attorney. She

stated: “[A]fter she chased my 8 year old son and I from the [Southeast Polk] gym

las[t] night screaming, using severely repetitive foul language, forcibly placing her

body between me and my son, and verbally accosting both he and I, I no longer

believe in or support this individual’s ability to provide healthy parenting.” The jury

found defamation per se, per quod, and by implication based on this statement.

As with her similar statements to law enforcement discussed above, substantial

evidence supported the jury’s finding that Angelia’s allegations that Kari chased

her and her son while shouting profanity is defamatory per se.

                  d. Were Angelia’s Statements to Co-Workers Defamatory?
                                           23


       Angelia emailed her co-workers and identified Kari by name, stated she was

charged with third-degree harassment, jailed and released on bond, and a NCO

prevented Kari from approaching Angelia. The jury found Angelia defamed Kari

per se, per quod, and by implication through her emails to co-workers.               We

conclude Angelia’s communication with her co-workers was not defamation per se

or per quod because she shared substantially accurate information. See Wilson,

558 N.W.2d at 140 (recognizing substantial truth as a defense to defamation

claims).

       But Angelia’s email is defamatory by implication because it omits material

facts to form a technically accurate statement. See Stevens v. Iowa Newspapers,

Inc., 728 N.W.2d 823, 828 (Iowa 2007). The entire basis for Kari’s criminal

charges, arrest, and the NCO was Angelia’s fabricated accounting of events to

investigators. The false basis for the technically true statements is a material fact

that may not be omitted from the story without resulting in defamation by

implication. See Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex. 2000)

(noting isolated statements may be true but convey a defamatory and false

impression when material facts are omitted).

       “Just as the substantial truth doctrine precludes liability for a publication that

correctly conveys a story’s ‘gist’ or ‘sting’ although erring in the details,” defamation

by implication “permit[s] liability for the publication that gets the details right but

fails to put them in the proper context and thereby gets the story’s ‘gist’ wrong.” Id.

(citation omitted). The proper context for Angelia’s statements included disclosure

of her false and exaggerated statements to law enforcement. Her interactions with

law enforcement are critical to completing the story; they are the “gist” of the story.
                                        24


Without that context, Angelia’s statements to co-workers could reasonably be

considered defamatory by implication, and we uphold the jury’s verdict on that

basis.

                 e. Were Angelia’s Statements to Family and Friends
                    Defamatory?
         Angelia discussed Kari in several emails to family members and friends.

Some of these communications did no more than express Angelia’s opinion of Kari

and solicit others to share any negative information they might have about Kari.

But two emails included Angelia’s claims about the November 5 incident at

Southeast Polk High School. Again, she accused Kari of verbally attacking her

and chasing her and her son from the gym. The jury found Angelia’s statements

to her friends and family defamatory per se, per quod, and by implication. As

previously discussed in relation to her statements to law enforcement regarding

the November 5 incident, these statements are defamatory per se.                The

communications with other parents in particular had a tendency and indeed was

aimed at damaging Kari’s reputation among peers with whom she regularly

interacted, depriving her of the benefit of public confidence and social intercourse

with those parents.

                 f. Were Angelia’s Statements to Personnel with the
                    Southeast Polk School District Defamatory?
         Angelia exchanged several emails with employees of Southeast Polk

Schools regarding Kari. Most of the emails expressed Angelia’s view that Kari’s

attendance at a school music performance may make Angelia’s son feel

uncomfortable. The expression of her opinion is protected speech. See Bantz,

686 N.W.2d at 177. But two emails exchanged with the school principal identify
                                         25


Kari’s criminal case and NCO. As noted in the preceding section discussing

Angelia’s emails to co-workers, these statements are defamatory by implication

because they fail to disclose the “gist” of the story. The criminal proceeding and

NCO were based on Angelia’s false statements.

           2. Did Angelia Have a Valid Defamation Defense?

       To avoid liability for the defamation, Angelia asserts three defenses. First,

she argues her statements were substantially true and therefore cannot be

defamatory. Substantially true statements convey the “gist” of the situation and

are not subject to liability. See Wilson, 558 N.W.2d at 140. But included within

each identified category are statements which failed to convey the “gist” of the

story. See id. Angelia cannot avoid liability by relying on substantial truth.

       Second, Angelia contends she cannot be held liable for expressing her

opinion.   See Bantz, 686 N.W.2d at 177.         When considering if a statement

expresses an opinion we consider 1) the precision and specificity of the statement;

2) the verifiability of the statement; and 3) the context in which it was made. Id.

Each identified category of defamation included specific statements which could

be easily verified and were intended to implicate Kari in wrongdoing. These

statements were factual assertions, not opinions.

       Third, Angelia argues the district court failed to find she was protected under

qualified privilege as a matter of law. “[A] qualified privilege constitutes immunity

from liability for defamation.” Kiray v. Hy-Vee, Inc., 716 N.W.2d 193, 199 (Iowa Ct.

App. 2006). A qualified privilege exists when “1) the statement was made in good

faith; 2) the defendant had an interest to uphold; 3) the scope of the statement was

limited to the identified interest; and 4) the statement was published on a proper
                                        26

occasion, in a proper manner, and to proper partied only.” Id. at 199–200 (citation

omitted). Angelia’s statements do not meet the test for qualified privilege because

the jury was entitled to find she did not make them in good faith. Instead her

statements were made in furtherance of her campaign to destroy Kari’s reputation

within their community.

      3.     Angelia Defamed Kari

      Within each of the six identified categories of statements, substantial

evidence existed to support at least one of the jury’s findings of defamation. The

verdict forms allowed the jury to make specific findings regarding the type of

defamation for all six categories. Angelia does not raise an issue on appeal

concerning the verdict forms.     Accordingly, we find the defamation verdicts

supported by substantial evidence. See WJLA-TV v. Levin, 564 S.E.2d 383, 393

(Vir. 2002) (finding no reversible error where defamation count was “based

collectively on publications and statements by the same defendant”).

             D. Punitive Damages

      Angelia next argues the record contained no proof of malice supporting

punitive damages. Punitive damages may only be awarded when a plaintiff proves

by a preponderance of clear, convincing, and satisfactory evidence, that the

defendant’s conduct constituted a willful and wanton disregard for the rights of

another. See Iowa Code § 668A.1(1)(a) (2013). Conduct is willful and wanton

when done in disregard of an “obvious risk that was so great as to make it highly

probable that harm would follow, and which thus is usually accompanied by a

conscious indifference to the consequences.”        Cawthorn v. Catholic Health

Initiatives Iowa Corp., 743 N.W.2d 525, 529 (Iowa 2007) (quoting Bantz, 686
                                          27


N.W.2d at173). “Punitive damages are only recoverable when the defendant acted

with actual or legal malice.” Id.

       Angelia’s argument is once again based on the assumption her story was

true. But accepting Kari’s version of events, as the jury did, we conclude sufficient

evidence supports an award of punitive damages.            Angelia embellished the

Southeast Polk incident to create a baseline of alleged wrongdoing by Kari.

Angelia continued to engage law enforcement and prosecutors to place Kari in

criminal jeopardy. She did this without regard to the emotional harm Kari would

suffer from being arrested, strip searched, and detained as a result of Angelia’s

falsehoods.    And Angelia spread her false narrative throughout their shared

community—critically damaging Kari’s reputation with fellow parents with whom

she regularly interacted. The jury could reasonably conclude Angelia’s well-timed

and persistent conduct was willful and wanton.

              E. New Trial

       Angelia argues she is entitled to a new trial because the verdict was

“flagrantly excessive, not sustained by sufficient evidence, and failed to administer

substantial justice.” “[W]e must either grant a new trial or require a remittitur” if a

verdict is flagrantly excessive, so out of reason it shocks the conscience, lacks

evidentiary support, is the result of passion or prejudice, or fails to do substantial

justice. See Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854,869 (Iowa

1994). But we give considerable deference to the district court’s refusal to grant a

new trial and are reluctant to interfere with jury verdicts. Id. And “we only consider

the evidence favorable to the plaintiff whether contradicted or not.” Reese v.
                                         28

O’Malley, 461 N.W.2d 833, 839 (Iowa 1990) (quoting Olsen v. Drahos, 229 N.W.2d

741, 742 (Iowa 1975)). We find no cause to grant a new trial in this case.

       1. Past and Future Pain

       Angelia contends the jury’s award of $233,000 for past and future pain and

suffering is flagrantly excessive, not sustained by sufficient evidence, and fails to

administer substantial justice. She notes Kari was able to continue to work and

raise her children. Angelia ignores counselor Hemesath’s testimony that Kari

suffers from PTSD as a result of Angelia’s conduct and is unlikely to significantly

recover so long as she has continued interactions with Angelia, the stepmother to

her children. Angelia also overlooks the mental anguish Kari experienced after

being arrested and strip searched. Considering Hemesath’s opinion and Kari’s

own account of her distress, we cannot say the jury’s award was flagrantly

excessive, not sustained by evidence, or fails to administer substantial justice.

       2. Loss of Reputation

       Angelia also challenges the $75,000 award for past and future loss of

reputation. Damages may not be awarded based on the defamatory statements

alone. Id. For the jury to determine the extent of the injury, the plaintiff must

establish a baseline by offering evidence about her reputation before the

statements were made and the extent of the publication. See id.

       Witness Lisa Brown established a baseline for Kari’s reputation before

Angelia’s defamation. She describes Kari’s interaction with others, saying she was

“obviously very nice” and noted Kari “took a lot of pride in her children” as they

participated in school activities. In addition, Kari’s sister, Pam Fox, described Kari

as an “amazing mother” and explained that she made friends easily, liked to have
                                         29


fun, and was “very outgoing.” Angelia’s defamatory statements diminished Kari’s

reputation by spreading the false information within their parent peer group and

suggesting Kari became confrontational with a young child. Angelia admitted she

reached out to all of the parents at the February luncheon about Kari. Additionally,

Angelia’s communication with the elementary school sullied Kari’s reputation at the

school and directly impacted the way the school officials interacted with her.

       The district court already remitted the award for reputational damage from

$300,000 to $75,000 after reviewing the record. Evidence regarding Kari’s pre-

defamation reputation and the extent of publication support the remitted amounts.

See id.

       3. Special Damages

       Angelia challenges the jury’s award for special damages for past legal fees

associated with the criminal case, past and future medical expenses, and lost

income. She challenges the award for Kari’s criminal attorney fees because the

attorney did not testify. But Kari testified she reviewed her bill and understood the

highlighted entries to be associated with her criminal case.           Angelia also

challenges the $10,000 attorney fee award noting the itemized list only amounted

to $5614. But Kari also testified she paid another attorney between $4000 and

$5000 for work related to the criminal case. Combining these two values roughly

equals the jury’s award for attorney fees.

       Angelia next argues $20,000 for lost income is excessive because Kari

testified her proximate lost income was $7000. Angelia misstates the record. Kari

testified before her arrest she earned “around $15,000” per year from her Scentsy

business. Kari estimated that had sales continued on the same trajectory, she
                                          30


stood to earn between $25,000 and $30,000 annually. Given the uncertain nature

of the direct-sales candle business, an extrapolation of Kari’s past earnings is the

most reliable indicator of her lost income. She testified her lost income could have

been as high as $15,000 annually for three years. The lost income award was not

excessive.

       Angelia also challenges the past and future medical expenses award. She

asserts Hemesath’s testimony should have been excluded because Kari failed to

designate the therapist as an expert. We find Angelia’s random mention of this

issue, without supporting analysis, to be inadequate to raise the claim for our

consideration. See EnviroGas, L.P. v. Cedar Rapids/Linn Cty. Solid Waste Auth.,

641 N.W.2d 776, 785 (Iowa 2002). Angelia also complains, without legal authority,

that it was insufficient for Kari to testify her therapy cost eighty dollars per session

and she attended fifteen sessions without offering documentation. We conclude

the jury could rely on Kari’s testimony when awarding damages.

       4. Punitive Damages

       Finally, Angelia argues punitive damages of $450,000 were excessive, not

supported by the evidence, and failed to administer substantial justice.             To

evaluate her argument, we consider:

       (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.

Wolf v. Wolf, 690 N.W.2d 887, 894 (Iowa 2005) (quoting State Farm Mut. Auto Ins.

Co. v. Campbell, 538 U.S. 408, 418 (2003)). The degree of reprehensibility is

considered the most significant factor. See id.
                                           31


       Angelia again cites her version of events to claim her conduct was not

reprehensible and instead reasonable. As previously stated, we consider Kari’s

version of events when considering reprehensibility, as the jury did. See Reese,

461 N.W.2d at 839. Angelia filed false and misleading reports and advocated for

Kari’s arrest. She spread her false allegations within their shared community and

attempted to rally uninvolved parties to her cause. Her wrongful conduct occurred

over an extended period of time, yet she never wavered in her focus. She carried

out this campaign with complete disregard of its damaging impact on her

stepchildren. Her actions were sufficiently reprehensible. See Wolf, 690 N.W.2d

at 894 (considering type of harm caused, physical versus economic, indifference

for health of others, if conduct was repetitive or isolated, and if harm resulted from

intentional conduct or mere accident).

       When considering the difference between the punitive award and the

compensatory damages, we must ensure the amount awarded is proportionate to

the harm caused and the compensatory damages awarded. Id. at 895. In this

case, punitive damages exceed the total compensatory damages by roughly thirty

percent.4 But punitive damages are not necessarily excessive simply because

they exceed the compensatory award. See Wilson v. IBP, Inc., 558 N.W.2d 132,

148 (Iowa 1996) (approving two million dollar punitive award with four thousand

dollar compensatory award). Given the factual basis supporting punitive damages,

we cannot conclude the award is excessive.

              F. Jury Instructions


4
 After remitting the damages for past and future reputational harm, the court awarded Kari
$343,360 in compensatory damages and $450,000 in punitive damages.
                                         32


       Angelia first challenges the spoliation instruction. Upon Kari’s request and

over Angelia’s objection, the district court submitted a spoliation instruction

regarding a video of the December 11 interaction at the Four Mile Recreation

Center. Angelia claimed she recorded footage on her cell phone that would show

both her and Kari at the recreation center but later deleted the video. But she

argues the spoliation instruction was improper because, had she retained the

video, it could only vindicate her by showing both women at the recreation center

and refute Kari’s claim that Angelia didn’t attend the event.

       The submitted spoliation instruction stated:

               Plaintiff claims that defendant has intentionally destroyed
       evidence consisting of a smart phone video recording that placed
       defendant at the Four Mile Recreation Center on December 11,
       2011. You may, but are not required to, conclude that such evidence
       would be unfavorable to defendant.
                    Before you can reach this conclusion Plaintiff must prove
           all of the following:
                    1. The evidence exists or previously existed.
                    2. The evidence is or was within the possession or control
           of Defendant.
                    3. Defendant’s interest would call for production of the
           evidence if favorable to that party.
                    4. Defendant has intentionally destroyed the evidence
           without satisfactory explanation.
               For you to reach this conclusion, more than the mere
       destruction or non-production of the evidence must be shown. It is
       not sufficient to show that a third person destroyed the evidence
       without the authorization or consent of the defendant.

       To submit a spoliation instruction the proponent must offer substantial

evidence that: “(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. Hartsfield, 681 N.W.2d 626, 630 (Iowa
                                           33


2004). Angelia agrees the video existed, she had control of the phone containing

the video, and it would have been admissible at trial. While she does not concede

she intentionally destroyed the video, she admits she deleted it.

       We find Kari’s request for the spoliation instruction to be illogical, but see

no prejudice in its submission. The instruction permitted the jury to conclude a

video showing Angelia and Kari at the recreation center on December 11 existed.

Its existence would corroborate Angelia’s testimony that she was in attendance

and made such a recording. While the instruction also permitted the jury to

conclude the video would not have been favorable to Angelia, it seems any video

would have shown the women’s proximity to one another, bolstering Angelia’s

version of events. Even if the court erred by submitting the instruction due to its

confusing application, its submission only helped Angelia and reversal is not

required.   See Gore v. Smith, 464 N.W.2d 865, 868 (Iowa 1991) (noting

instructional error does not require reversal if the error is not prejudicial).

       Angelia next argues the abuse-of-process instruction incorrectly stated the

law. The jury was advised:

               To prove abuse of process, plaintiff Kari Atzen must prove all
       of the following propositions:
               1.      On or about December 27, 2011 and/or February 26,
       2012, the defendant, Angelia Atzen, intentionally used the criminal
       legal process.
               2.      The defendant Angelia Atzen used the legal process
       primarily for the purpose of assisting Steven Atzen in the custody and
       support action between Steven and Kari Atzen and/or to intentionally
       inflict severe emotional distress on Kari Atzen, and not for its
       intended use which is explained in Instruction seventeen.
               3.      The defendant’s use of the legal process for the
       improper purpose was a cause of the plaintiff’s damage.
               4.      The amount of damage. . . .
                                          34


       Angelia focuses on the second element, contending the court erred by

including the phrase “to intentionally inflict severe emotional distress on Kari Atzen”

because “it makes no difference if the defendant dislikes the plaintiff or if the

defendant has an ulterior motive or if the defendant has a malicious intent.”

       Angelia’s short-shrift argument misses the mark. Abuse-of-process claims

require a “use of process that was not proper in the regular prosecution of the

proceeding.” Grell v. Poulson, 389 N.W.2d 661, 664 (Iowa 1986). Angelia’s

wielding of the harassment charge and corresponding NCO for the primary

purpose of intentionally inflicting emotional distress upon Kari, presumably to

wound Angelia’s perceived competition for the affection of the Atzen children, is

not proper in the regular prosecution of a harassment charge or issuance of a

NCO. Angelia’s specified challenge does not compel any relief.

III.   Conclusion

       We affirm the jury’s conclusion that Angelia abused the legal process,

intentionally inflicted emotional distress upon Kari, and defamed Kari within their

community. We also share the jury’s view that Angelia’s outrageous conduct

warranted punitive damages.        The damage awards were supported by the

evidence. And the challenged jury instructions do not require reversal.

       AFFIRMED.
