DANA WAYNE KONO, d/b/a DANA KONO SALON and also d/b/a DANA KONO, Plaintiff-Appellee, vs. LAWRENCE R. MEEKER and CAROLE J. MEEKER, d/b/a ANTIQUES OF A MECHANICAL NATURE and also d/b/a PATENTED ANTIQUES.COM, Defendants-Appellants.
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IN THE COURT OF APPEALS OF IOWA
No. 7-596 / 06-1554
Filed December 12, 2007
DANA WAYNE KONO, d/b/a DANA
KONO SALON and also d/b/a DANA KONO,
Plaintiff-Appellee,
vs.
LAWRENCE R. MEEKER and
CAROLE J. MEEKER, d/b/a
ANTIQUES OF A MECHANICAL
NATURE and also d/b/a PATENTED
ANTIQUES.COM,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Richard G. Blane II,
Judge.
The defendants appeal from the judgment entered against them on the
plaintiff’s action for defamation, invasion of privacy, and intentional infliction of
emotional distress. AFFIRMED.
Margaret Callahan of Belin Lamson McCormick Zumbach Flynn, Des
Moines, for appellant.
David Phipps of Whitfield & Eddy, Des Moines, for appellee.
Heard by Vogel, P.J., and Mahan and Zimmer, JJ.
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VOGEL, J.
The defendants appeal from the judgment entered against them on the
plaintiff’s action for defamation, invasion of privacy, and intentional infliction of
emotional distress. We affirm.
Background Facts.
Larry and Carole Meeker are California residents who are in the business
of buying and selling antiques. They do so under the name of “Antiques of a
Mechanical Nature.”
Dana Kono is an Iowa resident and hair stylist, whose
hobbies include the collection of antique woodworking tools and scientific
instruments. Through telephone conversations in March 2003, Kono and Larry
reached an oral agreement whereby Kono would send the Meekers a surveying
transit in exchange for seven crank handle chisels from the Meekers.
The Meekers and Kono shipped the chisels and transit, respectively, in
early March of 2003. A short time after the Meekers received the transit, Kono
phoned to inquire whether it was satisfactory. Kono claimed Meeker told him
“the deal would work out fine.” For his part, Meeker claimed that he asked Kono
why he hadn’t mentioned that the transit was Japanese and, in particular, why he
hadn’t informed Meeker that the name “Sokkisha” appeared on the transit. He
claims to not have immediately accepted the trade but, wanting more time to
investigate the value of the transit, made a comment to the effect that “something
could be worked out.”
With no further communication, Meeker returned the transit to Kono on
March 10, in the same packaging in which Kono had sent it. Kono received the
package on March 14, but declined delivery, claiming concern about the status of
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the box’s contents based on its poor shipping condition. On March 17, Kono sent
the Meekers an email advising them of his refusal to accept return of the transit.
Telling the Meekers he considered their actions of returning the transit without
any further discussion “arrogant and inconsiderate,” Kono also warned the
Meekers against trying to bill his credit card account. 1
Later that evening,
Meeker responded by email. He stated that “it was not a done deal until I saw
[the transit].” Meeker claimed that because he was not informed the transit was
“an obsolete Japanese transit,” that it was not the type of transit for which he had
contracted. He thus requested that Kono return his chisels. Over the course of
the next several days, Meeker sent Kono a series of profane and threatening
emails, and made several hostile telephone calls.
In one email, Meeker warned Kono that he was going to put up a “special
page” on his website “fully describing the incident, and your problems.” In an
email sent March 24, Meeker advised that the “watch page” had been posted on
the web. He also wrote “I would imagine your name will begin appearing with
regularity in searches on Google.” An April 11 email from Meeker indicated the
page had “made the top of the Google search list” and stated that he was “so
PROUD!!!” That watch page remained posted on the Internet for approximately
eight months, until November 2003.
In particular, that web page, entitled the “Dana Kono Watch Page,”
explained that it was intended “as a service” to all “who may have occasion to do
business with” Dana Kono. Among other things, it called Kono an “admitted liar”
and a “thief who stole $700.00 worth of merchandise from me using deception
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The Meekers had Kono’s credit card number from an earlier transaction.
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and lies.” It then recounted, from the Meekers’ point of view, the facts of the
transaction involving the transit and the chisels. A number of selections from the
parties’ email conversations were then excerpted and posted on the watch page.
A separate paragraph points out a word in Kono’s email address, “belial,”
asserting the dictionary definition was “the personification of evil or the fallen
one” and a “telling choice of names.” Meeker also recommended that people not
use Kono as a hair stylist. He claimed Kono “has a problem with the truth, with
facts, and it seems with alcohol. Simply stated, he is a flat-out liar, thief and
cheat.” The watch page also labeled Kono as a “drunk” who is “in the denial
stages of his problem, so beware if you are about to do business with this
individual . . . .” Finally, the watch page stated
[t]his sort of slimy little weasel usually only ventures out under the
cover of darkness or through the anonymity or over great distances
like over the internet to do business. One can see/sense and
oftentimes smell the deceit and air of dishonesty that these types
give off when you meet them in person. Beware!!
Proceedings.
On May 15, 2003, Kono filed the present lawsuit alleging defamation, false
light invasion of privacy, and intentional infliction of emotional distress.
The
defamation and false light claims were based exclusively on the content of the
Meekers’ watch page, while the emotional distress claim was based on a
combination of the emails, telephone calls, and the web page. The Meekers
counterclaimed for fraudulent misrepresentation. 2
2
Following a trial, the jury
On April 12, 2005, on the Meekers’ motion for summary judgment, the district court
ruled the verbal contract between the parties was a nullity and ordered Kono to return
the chisels and accept return of the transit from the Meekers. In all other respects, the
motion was denied.
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returned a verdict in favor of Kono, awarding compensatory damages of
$150,000 for defamation, $50,000 for invasion of privacy, and $50,000 for
intentional infliction of emotional distress. It also awarded Kono $125,000 in
punitive damages against each of the Meekers. The jury rejected the Meekers’
fraudulent misrepresentation counterclaim.
The Meekers appeal from this verdict, seeking a new trial. They first claim
the “verdicts are contrary to the weight of the evidence and reflect impermissible
considerations.”
They also assail the damage awards, contending they are
“flagrantly excessive and reflect prejudice, rather than the relevant evidence.”
They next assert the “trial process was fatally flawed as a result of improper jury
argument and erroneous admission of prejudicial evidence.”
Finally, in the
alternative, they argue that the punitive damages are excessive and should be
reduced.
Motion for New Trial.
Issues Not Preserved for Appellate Review.
The Meekers advance a
number of very specific reasons as to why the court erred in refusing to grant a
new trial. However, we conclude a number of them have not been preserved for
our review. Fairness and considerations of judicial economy dictate that we do
not consider a claim for the first time on appeal. State v. Sanborn, 564 N.W.2d
813, 815 (Iowa 1997). Issues must be presented to and passed upon by the
district court before they can be raised and decided on appeal. State v. Eames,
565 N.W.2d 323, 326 (Iowa 1997).
A motion for new trial is generally not
sufficient to preserve error when no objections were made at trial.
Hobbiebrunken v. G & S Enterprises, Inc., 470 N.W.2d 19, 23 (Iowa 1991).
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The following specific claims, which are now asserted on appeal, were not
raised in the Meekers’ motion for new trial or addressed by the trial court in its
ruling on the motion: (1) that certain references on the watch page constituted
“protected speech” in that they were mere “rhetorical hyperbole”; (2) that Kono’s
counsel’s urging to the jury to “disregard the facts related to the trade of
antiques” was improper; (3) that Kono’s counsel’s characterization of the
Meekers’ actions as a “jihad” was inflammatory; (4) that Kono’s invocation of the
“Golden Rule” regarding his reputation damages was improper; (5) that Kono’s
counsel’s “personal guarantee” and invocation of his own credibility was
improper.
Furthermore, the Meekers did not contemporaneously object to
grounds (1), (2), (4), and (5). Accordingly, we do not address them on appeal.
Scope of Review. On the issues preserved, the parties agree that our
review is for an abuse of discretion. In ruling on motions for new trial, the trial
court has broad, but not unlimited, discretion in determining whether the verdict
effectuates substantial justice between the parties.
Gorden v. Carey, 603
N.W.2d 588, 590 (Iowa 1999).
Weight of the Evidence. The Meekers assert generally the verdicts are
“contrary to the weight of the evidence” and that a new trial is “required to
prevent a miscarriage of law and promote justice.” We view the evidence in a
light most favorable to the verdict, and consider only the evidence favorable to
the plaintiff, whether it is contradicted or not. Estate of Pearson v. Interstate
Power & Light Co., 700 N.W.2d 333, 345 (Iowa 2005). Upon our review of the
record, we conclude the court did not abuse its discretion in denying the
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Meekers’ motion for new trial on this ground as there is sufficient evidence to
sustain the verdict.
The Meekers’ lengthy watch page quite explicitly accused Kono of being a
disreputable person who makes business dealings while under the influence of
alcohol. The watch page lead off with this warning:
I am posting this page on my site as a service to all fellow tool
collectors, tool dealers or other unsuspecting people who may have
occasion to do business with this individual Dana Kono, an
admitted liar and now thief who literally stole $700.00 worth of
merchandise from me using deception and lies. In addition it
seems he has no honor and I believe is the type of person that
should be avoided in all manner of business dealings.
This watch page clearly was, in large part, intended to dissuade third parties from
doing business with Kono both with regard to antiques and with regard to his hair
styling business. While Meeker claims the assertions were “tongue in cheek,”
the jury was well within its fact-finding role to conclude otherwise.
The
accusations made on the web page constitute more than mere “name calling” or
venting personal frustrations, and reflect the Meekers’ determined attempt to
tarnish Kono’s reputation and his business.
These accusations go to the heart of a defamation claim, which is
described as the “malicious publication . . . in writing . . . tending to injure the
reputation of another person or to . . . injure [the person] in the maintenance of
[the person’s] business.” Vinson v. Linn-Marr Cmty. Sch. Dist., 360 N.W.2d 108,
115 (Iowa 1984). The Meekers’ claims can accurately be described as “attacking
a person’s moral character or integrity . . . .” Id. (defining libel per se). We affirm
the district court’s denial of a new trial as there is sufficient evidence to support
the jury’s verdict.
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Damages. The Meekers next aver that a new trial was warranted because
the damage awards were excessive and reflect prejudice. They ask this court to
review both the punitive and compensatory damage awards. As a preliminary
matter, the amount of damages awarded is peculiarly a jury, not a court, function.
See Yoch v. City of Cedar Rapids, 353 N.W.2d 95, 98 (Iowa Ct. App. 1984). A
jury’s assessment of damages should be disturbed “only for the most compelling
reasons.”
Rees v. O’Malley, 461 N.W.2d 833, 839 (Iowa 1990).
The jury’s
verdict should not be set aside or altered unless the plaintiff proves the verdict:
(1) is flagrantly excessive or inadequate; or (2) is so out of reason as to shock
the conscience or sense of justice; or (3) raises a presumption it is the result of
passion, prejudice or other ulterior motive; or (4) is lacking in evidential support.
Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 659 (Iowa 1969).
Compensatory Damages. We conclude the district court did not abuse its
discretion in failing to grant a new trial, as it properly found the compensatory
damage awards were not excessive. Kono produced evidence that the Meekers’
watch page, as partially set forth above, had the apparent and intended effect of
hurting his hair styling business. Because this watch page was posted on the
World Wide Web, it was open to anyone, including by people merely searching
for information about his hair styling business. Susan Raibikis, a long-time client,
entered a “Google” search of “Dana Kono” simply to retrieve Kono’s salon’s
telephone number.
She testified the Meekers’ watch page came up on the
search, and “it was very unsettling.” After reading the watch page, she was so
concerned about the Meekers’ claims of Kono’s lying, cheating, drinking and
potential “devil worship,” that she decided to stop using Kono as her family’s hair
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stylist. In addition to this anecdotal incident, Kono produced other evidence of
his lowered reputation in the community and decrease in income from his salon
business. Kono also perceived that tool collectors were “cooler” toward him in
subsequent transactions following the publication of the watch page.
Emails
were introduced which Kono had received from various individuals who had read
Meekers’ warnings, and suggested Kono change his ways.
The record also
included testimony regarding Kono’s personality change, increased stress and
fear for the safety of his family. We affirm the district court’s conclusion that the
evidence supports the jury verdicts on compensatory awards.
Punitive Damage Awards. We further affirm the district court conclusion
the punitive damage awards against both Larry and Carole Meeker were not
excessive, and thus not grounds for a new trial. When analyzing a claim of
excessive punitive damages, we look to the relationship between the punitive
damages award and the wrongful conduct of the offending party.
Economy
Roofing & Insulating v. Zumaris, 538 N.W.2d 641, 652 (Iowa 1995). We allow
punitive damages to punish the defendant and to deter the defendant and likeminded persons from committing similar acts.
Id. at 654.
The watch page
created by the Meekers was posted on the Internet for over eight months and the
record supports that it achieved its intended effect of discouraging others from
doing business with Kono. The award reflects the offensive conduct and level of
damage caused by the Meekers. Under these circumstances, a punitive damage
award of $125,000 against each defendant is not flagrantly excessive.
Carole asserts there is insufficient evidence for the punitive damage
verdict against her; however, she testified that she was a partner with Larry in
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their antique business. In addition, she was aware of the dispute, and that the
content of the phone calls her husband placed to Kono had her “full authority,” as
representing her thoughts on the situation. Carole reviewed the profane and
threatening emails prior to Larry sending them to Kono and participated in
constructing the web page. In her testimony she accepted the content of the
Dana Kono Watch Page as part of her own making. The district court did not
abuse its discretion in failing to set aside the jury’s verdict as to Carole Meeker.
Improper Argument and Prejudicial Evidence. Finally, the Meekers claim
a new trial should have been granted due to improper arguments made by
Kono’s trial counsel and because of the erroneous admission of prejudicial
evidence. We have already determined they have failed to preserve for appellate
review some claims under this heading. Upon our review, we affirm the district
court’s assessment that there was no prejudicial error such that a new trial would
have been warranted.
Request to Modify Damage Awards.
The Meekers next request that, in the event we reject their claim the court
erred in denying them a new trial, this court should modify the damages awards
in order to “eliminate excessiveness and duplication.”
They assert that the
punitive damage award is “unconstitutionally excessive and bears no relation to
their conduct and to the need to punish.” In addition, they claim a portion of the
compensatory damage award is duplicative.
Punitive Damages. Appellate review for unconstitutional excessiveness is
de novo. Wolf v. Wolf, 690 N.W.2d 887, 894 (Iowa 2005). An appellate court
reviewing a punitive damage award for excessiveness should consider three
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“guideposts.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75, 116 S. Ct.
1589, 1598, 134 L. Ed. 2d 809, 826 (1996). These guideposts are:
(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 jury and the civil
penalties authorized or imposed in comparable cases.
State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S. Ct. 1513,
1520, 155 L. Ed. 2d 585, 601 (2003).
The district court characterized the Meekers’ conduct as “offensive,” and
the record supports that it was willful and wanton, and not accidental or
inadvertent. The jury awarded Kono $250,000 in compensatory damages. This
is the same amount of punitive damages awarded by the jury. This ratio of 1/2:1
as to each defendant is not so excessive that it should require remittitur of the
punitive damage award.
Compensatory Damages. We conclude the compensatory damage award
is supported by substantial evidence, and is neither excessive nor duplicative.
The jury was instructed that a “party cannot recover duplicate damages” and that
it should not “allow amounts awarded under one item of damage to be included
in any amount awarded under another item of damage.” We presume the jury
followed the court’s instructions. State v. Piper, 663 N.W.2d 894, 915 (Iowa
2003).
While Kono’s defamation and false light claims were based exclusively on
the content of and statements made on the watch page, the invasion of privacy
claim was broader, encompassing the watch page, the emails, and the phone
conversations. The jury permissibly could have found separate damages on that
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ground. Moreover, the jury could have found certain false-light damages flowed
from the non-defamatory portions of the watch page. Accordingly, we refuse to
interfere with the compensatory damage awards. As the district court found, “the
jury verdict of May 26, 2006, does effectuate substantial justice between the
parties.”
AFFIRMED.
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