Louis Caselli v. Dennis Edward Borchers

IN THE COURT OF APPEALS OF IOWA

No. 22-1207
Filed October 11, 2023

LOUIS CASELLI,
Plaintiff-Appellee,

vs.

DENNIS EDWARD BORCHERS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.

The defendant appeals from an adverse jury verdict finding him liable for

intentional infliction of emotional distress and $701,000 in damages. REVERSED

AND REMANDED.

Jack E. Dusthimer, Davenport, for appellant.

Paul L. Macek of Hopkins & Huebner, P.C., Davenport, for appellee.

Heard by Tabor, P.J., Buller, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
2

POTTERFIELD, Senior Judge.

Louis Caselli brought suit against Dennis Borchers, claiming Dennis

intentionally inflicted emotional distress (IIED) on him when Dennis engaged in

multiple sex acts with Louis’s wife1 who is also Dennis’s biological daughter. A

jury found Dennis liable and awarded Louis $701,000 in damages.

On appeal, Dennis argues (1) Louis failed to state a claim that entitled him

to relief; (2) as a matter of law, his alleged conduct was not “outrageous,” and there

was not substantial evidence he intentionally caused, or recklessly disregarded the

likelihood of causing, severe or extreme emotional distress to Louis; (3) the district

court should have sustained his objections regarding marital privilege and the

testimony of his wife, Teresa; and (4) the court erred when overruling several

hearsay objections.

I. Background Facts and Proceedings.

Louis brought suit alleging that in 2018, Dennis engaged in multiple sex acts

with Erica—who was Louis’s wife and is Dennis’s biological daughter. Louis

asserted that Dennis intentionally caused him emotional distress or acted with

reckless disregard of the probability of causing emotion distress and asked for

money damages.

Dennis moved to dismiss, arguing Louis failed to state a claim that entitled

him to relief. See Iowa R. Civ. P. 1.421(1)(f). As Dennis characterized it, Louis’s

claim “ar[o]se out of [Dennis’s] interference with [the] marital relationship [of Louis

and Erica],” which is akin to claiming alienation of affection—a cause of action no

1 After Louis brought suit but before trial, Louis and Erica Caselli dissolved their

marriage.
3

longer recognized in Iowa. Louis resisted, and following a hearing,2 the district

court denied the motion. Relying on case law from the Iowa Supreme Court, the

district court concluded that Louis’s reliance on his failed marital relationship for

the IIED claim did not convert it into a now-abolished alienation-of-affection claim

so the claim could proceed.

Before trial, Dennis filed a motion in limine asking the court to exclude any

testimony of his wife Teresa that violated his marital privilege. See Iowa Code

§ 622.9 (2020). The district court concluded there was an exception to marital

privilege when one spouse testifies against the other about incest, and it ruled that

Teresa would be allowed to testify about conversations between her and Dennis

that were about his performing a sex act with Erica.

At trial, Dennis testified he was married to Erica’s mother while he was in

the service. Dennis and the mother divorced when Erica was young, and Dennis

later voluntarily gave up his parental rights so Erica could be adopted by the

mother’s new husband. Dennis and Erica did not have contact again until 2018—

when Erica was in her late forties and Dennis in his seventies. After Erica

contacted him by letter, they agreed she would travel to Iowa from her home in

New Jersey to get to know him. Erica stayed with him for a number of weeks and,

later in 2018, they also took a trip together to Wyoming. Dennis also visited Erica’s

family home in New Jersey, during which Louis and their three children were

present. When Dennis was asked at trial whether he had vaginal sex or oral sex

2 We do not have the transcript of this hearing.
4

with Erica, he invoked the Fifth Amendment. He also invoked the Fifth Amendment

when asked about other possible sex acts with Erica.

With Dennis on the stand, Louis introduced pictures of text messages

between Dennis’s and Erica’s phone numbers. The messages included Dennis

responding to a selfie from Erica with “Huba huba [heart emoji]” and a series of

messages Dennis sent stating, “Big hugs and kisses. Kissing your lips. Kissing

you. Kissing your neck. Kissing you all over. Kissing kissing with your lips.”3

There was also a series of messages from Erica stating, “Holding your face and

kissing you long and tenderly. Just me and you. . . . . Holding you and caressing

you, taking you all in. You smell wonderful.” Dennis responded, “Yes. Just for

you,” to which Erica replied, “Yes love two peas, two rings, two hearts, two souls,

two mind. Two bodies, no . . . one body [fox emoji, fox emoji].” (Ellipsis in original.)

A cousin of Dennis’s wife testified that she remembered a conversation from

October 2018 where Dennis called and told her about Louis hiring a private

investigator; during that phone call, Dennis “volunteered” the comment that in

some countries, fathers can marry their daughters.

Chuck Hauman, a private investigator hired by Louis, also testified.

Hauman testified that he interviewed Dennis at Dennis’s home on the morning of

October 12, 2018. According to Hauman, Dennis responded, “Not really,” when

asked if he had sex with Erica but admitted to “fondl[ing] or stimulat[ing] Erica” “[a]

few times.” Dennis also admitted to digital sex and mutual masturbation.

3 We have added the punctuation to show breaks in messages.
5

Over Dennis’s objection, Teresa was allowed to testify that Dennis admitted

to having sex with Erica when Teresa asked him in November 2018. Teresa also

testified that Dennis was capable of performing sexual activities.

Howard Hammer has a doctorate in psychiatry and was engaged in

psychotherapy sessions with Louis beginning in January 2020. Hammer testified

by way of video deposition recorded in July 2021. He opined that Louis was

suffering from an adjustment disorder with anxious and depressed mood and that

his disorder was caused by the knowledge that his wife was sleeping with her

biological father. Hammer testified that he was continuing to treat Louis—about

eighteen months after his first session—and thought it was likely Louis would need

treatment for at least another year. Louis was billed $6000 for the treatment he

received up to the date of the deposition. According to Hammers, Louis would

probably never totally resolve his condition.

Louis testified that Erica began sleeping in a guest bedroom in their home

when she returned from her first trip to Iowa to meet Dennis (in March 2018). Louis

was confused about the change until later, when he overheard sexual

conversations Erica and Dennis were having over the phone. Over Dennis’s

objection, Louis was allowed to testify as to the content of two calls. Because of

what he heard, Louis hired multiple private investigators to keep tabs on Erica and

Dennis as they traveled to Wyoming together in September 2018. Louis testified

this was a “significant expense” that he found “very stressful.” After attempting to

reconcile, Louis and Erica ended their marriage in 2021. Louis testified he lost his

ambition for business and his ability to focus was negatively impacted as a result

of Erica and Dennis’s sexual relationship. When asked “what this has cost [him],”
6

Louis asked if the attorney meant “everything that was caused by him?” After the

attorney said yes, Dennis responded, “1.5, 1.7 million.”

When testifying in his own defense, Dennis testified that in 2018, he had

diabetes and was having “dysfunction with his male anatomy.”

With the parties’ agreement and the court’s approval, Dennis filed a written

motion for judgment that the court treated as a motion for directed verdict made at

the proper time. See Iowa R. Civ. P. 1.945. He argued the court should determine

as a matter of law that his conduct was not outrageous and that the evidence did

not establish Dennis had either intentionally caused or recklessly disregarded the

likelihood of causing severe or extreme emotional distress to Louis. Relying on

the biological relationship between Erica and Dennis, Louis resisted; he argued:

As the Court knows, we need to prove outrageous conduct by
[Dennis]. [Dennis] having sex with his daughter is outrageous. In
fact, it’s a felony.[4] That satisfies, I think, that requirement.
We have to show that the Defendant intentionally—or acted
with reckless disregard of the probability of causing emotional
distress. The evidence clearly showed that he acted, that he knew
exactly what he was doing, that he knew who he was doing it with,
he was concerned about it being criminal, but despite all of those
things, he proceeded ahead in total disregard of the effects on
anyone other than himself.

The district court announced it was “a close call” before denying the motion for

directed verdict. In its oral ruling, the court cautioned Louis “in any arguments

before the jury, [you are] not seeking judgment against [Dennis] for alienation of

affection, it’s only for the personal stress and emotion that [you have] endured,

nothing else.”

4 Incest is a class “D” felony in Iowa. See Iowa Code § 726.2.
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The jury returned a verdict finding Dennis liable for intentional infliction of

emotional distress. It awarded Louis $701,000 in damages.5

Dennis filed a joint motion notwithstanding verdict and for new trial. Dennis

renewed his argument that Louis failed to state a claim that warranted relief

because, while relying on the tort of intentional infliction of emotional distress, at

its heart he brought an alienation-of-affection claim. He also urged the court to

conclude his conduct was not outrageous as a matter of law and the evidence did

not establish he intentionally caused Louis emotional distress or acted with

reckless disregard of the probability of causing Louis emotion distress, noting he

did not take any actions in front of Louis and, in fact, Louis’s knowledge of any

sexual actions stemmed from his eavesdropping on Erica’s private phone calls and

reports he obtained by hiring a number of private investigators to follow, record,

and eventually confront and interrogate Dennis. Louis resisted and, after an

unreported hearing, the district court denied Dennis’s motions.

Dennis appeals.

II. Discussion.

A. Failure to State a Claim.

Dennis argues the district court should have granted his motion to dismiss

the lawsuit because Louis failed to state a claim that entitled him to relief. See

Iowa R. Civ. P. 1.421(1)(f). Our review is for correction of errors at law. White v.

Harkrider, 990 N.W.2d 647, 650 (Iowa 2023). “In order to sustain a motion to

5 Specifically, the jury awarded Louis $6000 for past medical expenses; $45,000

for future medical expenses; $200,000 for past pain and suffering, $300,000 future
pain and suffering, and $150,000 for punitive damages.
8

dismiss for failure to state a claim for relief, . . . we must conclude that no state of

facts is conceivable under which the plaintiff might prove [his or] her right of

recovery.” Van Meter v. Van Meter, 328 N.W.2d 497, 497 (Iowa 1983).

As we understand it, Dennis claims Louis’s IIED claim must fail because his

reliance on his failed marital relationship as the basis for the claim converts it into

an alienation-of-affection claim, which has been abolished in Iowa. See

Fundermann v. Mickelson, 304 N.W.2d 790, 791 (Iowa 1981) (recognizing the

“inherent and fatal contradiction in the term ‘alienation of affections’” and abolishing

the legal cause of action in Iowa). But our supreme court expressly rejected this

argument in Van Meter, when it affirmed the district court’s refusal to dismiss an

IIED claim that was premised on the defendant’s “seduction” of the plaintiff’s former

spouse. 328 N.W.2d at 497. Our supreme court held:

The elements of the tort of intentional infliction of emotional
distress, and some of its policy considerations, are different from
those in an alienation claim. We cannot conclude as a matter of law
that no facts are conceivable under which a claim for intentional
infliction of emotional distress could be maintained merely because
it, like alienation claims, arises out of a failed marital relationship.

Id. at 498. The district court was correct to deny Dennis’s motion to dismiss for

failure to state a claim.

B. Directed Verdict.

Next, Dennis challenges the district court’s denial of his motion for directed

verdict and motion for judgment notwithstanding verdict (JNOV). “A motion for

[JNOV] is intended to allow the district court to correct any error in denying a motion

for directed verdict.” Van Sickle Constr. Co. v. Wachovia Com. Mortg., Inc., 783

N.W.2d 684, 687 (Iowa 2010). “Accordingly, the motion for [JNOV] must rely on
9

the matters raised in a previous motion.” Id. We review the denial of a motion for

JNOV and the denial of a motion for directed verdict for correction of errors at law.

Id.; Crow v. Simpson, 871 N.W.2d 98, 105 (Iowa 2015). “Our review is limited to

those grounds raised in the moving party’s motion for a directed verdict.” Pavone

v. Kirke, 801 N.W.2d 477, 487 (Iowa 2011).

On appellate review, “[o]ur role is to decide whether there was sufficient

evidence to justify submitting the case to the jury when viewing the evidence in the

light most favorable to the nonmoving party.” Van Sickle Constr. Co., 783 N.W.2d

at 687. “Each element of the plaintiff’s claim must be supported by substantial

evidence to warrant submission to the jury.” Id. Evidence is substantial if a

reasonable mind would find it adequate to support a finding. Id. “A party moving

for a directed verdict is considered to have admitted the truth of all evidence offered

by the other party as well as every favorable inference that may fairly and

reasonably be deduced from it.” McClure v. Walgreen Co., 613 N.W.2d 225, 230

(Iowa 2000).

“In determining whether the district court should have granted a directed

verdict, we judge the evidence against the jury instructions when the parties do not

object to the instructions.” Rumsey v. Woodgrain Millwork, Inc., 962 N.W.2d 9, 21

(Iowa 2021); see also Easton v. Howard, 751 N.W.2d 1, 5 (Iowa 2008) (“If

substantial evidence in the record supports each element of a claim, the motion

for directed verdict must be overruled.”). So here, to establish his IIED claim, Louis

had to prove all of the following:

1. Outrageous conduct by [Dennis].
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2. [Dennis] intentionally caused emotional distress or acted
with reckless disregard of the probability of causing emotional
distress.
3. [Louis] suffered severe or extreme emotional distress.
4. [Dennis’s] outrageous conduct was a cause of the
emotional distress.
5. The nature and extent of [Louis’s] damage.

Dennis challenges both the first and second element. He argues (1) as a matter

of law, his conduct was not outrageous, as the evidence at trial was that two

consenting adults engaged in private sexual acts, and our case law establishes

that is not “outrageous” conduct and (2) there was not substantial evidence he

either intentionally caused Louis emotional distress or acted with reckless

disregard of the probability of causing Louis emotional distress.

We consider Dennis’s second argument first—whether there was

substantial evidence he “intentionally caused, or recklessly disregarded the

likelihood of causing, severe or extreme emotional distress to [Louis].” White, 990

N.W.2d at 652. As Dennis points out, any sexual acts between him and Erica

occurred when they were in a different state than Louis. And Dennis had no reason

to know Louis—or anyone else—was listening in on private phone calls between

them. Dennis and Erica did not openly or flagrantly conduct their affair; in fact,

Louis hired multiple private investigators who followed Dennis and Erica across

the country with the goal of obtaining proof of a sexual relationship between Dennis

and Erica. Moreover, Dennis’s action of engaging in the affair was not directed at

Louis—there was no evidence at trial that Dennis engaged in sex acts with Erica

with the intent to cause Louis emotional distress or that Dennis had any

expectation Louis would ever learn about the secret sexual relationship. While

Louis was ultimately emotionally distressed after learning of Erica and Dennis’s
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actions, there is not substantial evidence, considering the evidence in the light

most favorable to Louis, that Dennis intended to cause Louis, or recklessly

disregarded the probability of causing him, emotional distress. For these reasons,

the district court should have granted Dennis’s motion for directed verdict.

Because we conclude the district court should have granted Dennis’s

motion for a directed verdict, we reverse the judgment and remand for entry of

judgment in Dennis’s favor. See Iowa R. App. P. 6.1206. We do not reach

Dennis’s claims about marital privilege and hearsay testimony.

REVERSED AND REMANDED.