Brenda N. Papillon v. Bryon L. Jones

• Court: Court of Appeals of Iowa
• Decided: April 3, 2019
• Docket: 17-2020
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-2020 Filed April 3, 2019

BRENDA N. PAPILLON, Plaintiff-Appellee,

vs.

BRYON L. JONES, Defendant-Appellant. ________________________________________________________________

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

Judge.

The appellant challenges the district court’s award of punitive damages

and attorney fees. AFFIRMED.

Bryon L. Jones, Omaha, Nebraska, pro se appellant.

Brad Schroeder and Laura J. Lockwood of Hartung Schroeder, LLP, Des

Moines, for appellee.

Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.* Gamble, S.J.,

takes no part.

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2

POTTERFIELD, Presiding Judge.

Brenda Papillon originally brought suit against Bryon Jones for recording

her conversations, which he did not have consent to record and during which he

was not present, pursuant to Iowa Code section 808B.8 (2015). Papillon was

successful in her suit, and the district court awarded her actual damages,

punitive damages, and attorney fees.

Jones appealed. A panel of our court affirmed the district court’s award of

actual damages but reversed the award of punitive damages, concluding the

district court’s findings did not meet the standard to justify an award of punitive

damages. We remanded for the district court to recalculate the award of attorney

fees and to award appellate attorney fees. See Papillon v. Jones, No. 15-1813,

2016 WL 6270263, at *2–4 (Iowa Ct. App. Oct. 26, 2016).

Jones filed an application for further review, which our supreme court

granted. The supreme court affirmed the award of actual damages and the

decision to remand to the district court “to recalculate attorney fees and award

reasonable appellate attorney fees to Papillon, including for her application for

further review.” Papillon v. Jones, 892 N.W.2d 763, 773–74 (Iowa 2017).

Regarding punitive damages, the court determined “there was sufficient evidence

to support an award of punitive damages” but recognized that the district court

failed to make the specific findings necessary to make the award. The supreme

court “agree[d] with the court of appeals that the lack of such a finding requires

reversal of the award of punitive damages” but “disagree[d] the door must remain

closed to such an award.” Id. at 774. The case was remanded “for the district

court to determine on the existing trial record whether Papillon is entitled to 3

punitive damages under the standard reiterated in this opinion, and if so, the

amount thereof.” Id.

On remand, the district court made additional findings regarding how

Jones continued to use and share the recordings of Papillon’s conversations

even after he was aware that doing so was illegal. The court entered judgment in

favor of Papillon, awarding her $2076.55 in actual damages; $18,000 in punitive

damages; $15.350.80 in attorney fees; and $17,690 in appellate attorney fees.

Jones appeals, arguing the district court (1) violated his right to due

process when it adopted the proposed findings of Papillon on remand and

(2) erred when it ordered him to pay trial attorney and appellate attorney fees

without having evidence of either party’s finances.1

After the initial hearing on remand, Papillon filed a proposed order—which

included findings of fact of conclusions—and the district court adopted that order

three days later, on August 28, 2017. We recognize the order was adopted in its

entirety, without Jones filing his own proposed order or providing comments on

Papillon’s proposed order. See Kroblin v. RDR Motels, Inc., 347 N.W.2d 430,

436 (Iowa 1984) (outlining the “better practice” as asking both parties to assist

prior to making a decision in the case and “emphasiz[ing] that in fairness all

parties should be given the same opportunity to submit proposed findings and to

1 In his appellate brief, Jones list five argument headings. His third, fourth, and fifth argument sections contain no cites to authority and appear to be continuations of his first argument—that his right to due process was violated. Insofar as Jones intended to make other, different arguments, we find they have been waived. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed waiver of that issue.”); see also In re Estate of DeTar, 572 N.W.2d 178, 181 (Iowa Ct. App. 1997) (“The law does not judge by two standards, one of lawyers and another for non- lawyers. All are expected to act with equal competence. If a non-lawyer chooses to represent h[im]self, []he does so at h[is] own risk.” (citations omitted)). 4

comment on findings proposed”). However, the August 27 order is not the final

order that is before us now. Following the court’s adoption of the order, Jones

filed a motion to reconsider, which the district court granted. In its final

November 15, 2017 ruling, the district court agreed with Jones that the adoption

of Papillon’s proposed order was in error and struck the prior ruling. The court’s

November 15 ruling relied very little on the proposed order filed by Papillon,

using some portions of the proposed order in conjunction with the court’s own

findings and conclusions, as is proper. See In re Marriage of Siglin, 555 N.W.2d

846, 849 (Iowa 1996) (requiring “the practice of requesting counsel to prepare

proposed findings and conclusions” to “be employed” “as a cooperative means of

assisting the court in preparing a fair and prompt decision. Trial judges can show

their responsible use of this practice by refraining from wholesale, or near

wholesale, adoption of a proposed decision. Instead, the proposed decision

should be a guide, with selected portions incorporated into the independent

thoughts of the trial judge”); Kroblin, 347 N.W.2d at 436 (considering, as part of

the “better practice,” that courts will “pick and choose and temper and select

those portions which better fits its own concept of the case”). For this reason,

Jones’s due process claims fails.

Next, Jones maintains the district court erred when it ordered him to pay

trial attorney and appellate attorney fees without evidence of his financial ability

to pay or of Papillon’s need for fees. In doing so, Jones cites our familiar

language providing factors for the court to consider in determining whether to

award attorney fees in dissolution and custody cases. See, e.g., In re Marriage

of Sullins, 715 N.W.2d 242, 255 (Iowa 2006) (“Factors to be considered in 5

determining whether to award attorney fees include: ‘the needs of the party

seeking the award, the ability of the other party to pay, and the relative merits of

the appeal.’” (citation omitted)). But Papillon’s right to fees comes from section

808B.8(1)(b)(3)—not chapter 598, which controls dissolution of marriages of

domestic relations—and provides that a person whose oral communication is

“intercepted, disclosed, or used in violation of this chapter” is entitled to recover

“reasonable attorney fee[s] and other litigation costs reasonably incurred.” The

section does not require the court to consider or make a determination as to

either party’s need or ability to pay before ordering the payment of fees, and

Jones does not cite an applicable authority to support his claim the court must do

so. This claim fails.

Having considered Jones’s cognizable claims, we find no reversible error

and affirm the district court.2

AFFIRMED.

2 Papillon asks that we award her additional appellate attorney fees as part of the litigation costs she has incurred in this action. However, she has not—as she said she would—filed an affidavit of fees in this matter. Without such information, we cannot determine the amount necessary to compensate her for the “reasonable attorney fee[s] and other litigation costs reasonably incurred.” Iowa Code § 808B.8(1)(b)(3).