author: STREIT, Justice.

text:
    STATE PUBLIC DEFENDER, Plaintiff, v. IOWA DISTRICT COURT FOR LINN COUNTY, Defendant.
    No. 04-2029.
    Supreme Court of Iowa.
    March 9, 2007.

      Thomas G. Becker, State Public Defender, and Julie Miller, Assistant State Public Defender, for plaintiff.
    No appearance for defendant.
   STREIT, Justice.

A court-appointed attorney wants to be paid for her work. The juvenile court appointed counsel for a grandparent in a parental termination action. Iowa law does not give grandparents a right to counsel. The State Public Defender refused to pay the attorney for her work and expenses. The State Public Defender filed a petition for writ of certiorari after the juvenile court ordered him to pay the attorney. Because the Iowa Code only permits the State Public Defender to pay an attorney if the appointment is authorized by statute, the juvenile court exceeded its authority by ordering the State Public Defender to pay the attorney. Writ sustained.

I. Facts and Prior Proceedings

Attorney Judith Amsler entered into a Legal Services Contract with the State Public Defender to provide legal services to indigents. In March 2002, the juvenile court appointed Amsler to represent Mary Snell, the maternal grandmother and custodian of children involved in a child in need of assistance action (“CIÑA”). The children were eventually placed with other relatives. In May 2003, the State moved to terminate the parental rights of Snell’s daughter and the children’s fathers. Snell intervened. The juvenile court appointed Amsler to represent Snell in the termination proceedings. The juvenile court entered a termination order and Amsler represented Snell in an unsuccessful appeal. See In re D.H., No. 03-2029, 2004 WL 240325 (Iowa Ct.App. Feb.11, 2004).

In July 2004, Amsler submitted a fee claim of $4,360.48 to the State Public Defender for attorney fees and expenses incurred in representing Snell. The State Public Defender paid Amsler $2,802.52. In his notice of action letter to Amsler, the State Public Defender explained he was denying the portions of Amsler’s claim which related to termination because only parents are entitled to a court-appointed attorney in a termination action. See Iowa Code § 232.113(1) (2003) (“[T]he parent identified in the petition shall have the right to counsel .... ”). The State Public Defender does not dispute Snell, as the children’s custodian, was entitled to a court-appointed attorney in the CINA action. See id. § 232.89(1) (“[T]he parent, guardian, or custodian identified in the [CINA] petition shall have the right to counsel .... ”).

Amsler filed an application for review with the juvenile court. Amsler asserted the State Public Defender “did not challenge the validity of the appointment order at the time of its issuance.” Moreover, Amsler argued she acted in “good faith” and that her fees and expenses were reasonable and necessary in the representation of Snell.

After a hearing on the matter, the juvenile court ruled in favor of Amsler and ordered the State Public Defender to pay Amsler’s claim “in its entirety.” In its ruling, the juvenile court noted it was perhaps without statutory authority to appoint an attorney to represent a party other than a parent in a termination action. Nonetheless, the juvenile court found the contract between Amsler and the State Public Defender required the State Public Defender to pay all “reasonable and necessary legal services” upon appointment by the court. The juvenile court held Amsler “was not obligated to review and ascertain the validity of her Order of appointment, nor was she authorized under contract to expend time to challenge the very Order that appointed her.”

The State Public Defender filed a petition for writ of certiorari which we granted. In its brief, the State Public Defender argues (1) grandparents are not entitled to court-appointed counsel in a termination of parental rights case; (2) the juvenile court should not have considered whether Am-sler’s contract with the State Public Defender entitles her to payment because she did not raise the contract in her motion for review; (3) Amsler is not entitled to payment under the contract; and (4) even if the contract requires payment, the State Public Defender is prohibited from paying costs incurred in an appointment not authorized by statute. Amsler did not file a brief with this court.

II. Standard of Review

Certiorari is an action at law “where an inferior tribunal ... is alleged to have exceeded proper jurisdiction or otherwise acted illegally.” Iowa R. Civ. P. 1.1401. Our review of the judgment entered by a juvenile court in a certiorari proceeding is “governed by the rules applicable to appeals in ordinary actions.” Id. r. 1.1412. Thus, the scope of review is for errors at law. Fisher v. Chickasaw County, 553 N.W.2d 331, 333 (Iowa 1996) (citing City of Des Moines v. Civil Serv. Comm’n, 540 N.W.2d 52, 55 (Iowa 1995)).

III. Merits

The State Public Defender coordinates the provision of legal representation for all indigents in Iowa. Iowa Code § 13B.4(1). He is permitted to contract with attorneys to provide legal services to indigent persons. Id. § 13B.4(3). A contract attorney must submit claims for payment to the State Public Defender. Id. § 815.10A(1). Upon review, the State Public Defender may approve, deny, or reduce the claim for reasons provided in section 13B.4(4)(c). An attorney disagreeing with the State Public Defender’s decision may file a motion for review with the court having jurisdiction over the original appointment. Id. § 13B.4(4)(d).

In the present case, the State Public Defender refused to pay Amsler for her work and expenses related to representing Snell in the termination action. According to the State Public Defender, Amsler’s fees “are not payable under the law and [her] appointment.” See id. § 13B.4(4)(c )(2)(6) (allowing the State Public Defender to deny a claim if it is not payable as an indigent defense claim under chapter 815); id. § 815.10(1) (requiring the court to appoint counsel in a juvenile action “in which the indigent person is entitled to legal assistance at public expense”); id. § 815.11 (limiting payments from the indigent defense fund to certain types of proceedings). The fighting issue before us is whether the State Public Defender must pay Amsler from the indigent defense fund.

A. Whether Grandparents are Entitled to Court-Appointed Attorneys in a Termination Action

Grandparents do not have a statutory right to an attorney in a termination action. Under section 232.113 of the Iowa Code, only the parent and child identified in the termination petition have a right to counsel. Snell was not identified as a parent of the children in the termination action at issue. Instead, she is the children’s grandparent who intervened. She plainly was not entitled to court-appointed counsel under section 232.113.

Moreover, we have never held grandparents have a constitutional right to an attorney under these circumstances. See State Pub. Defender v. Iowa Dist. Ct., 721 N.W.2d 570, 574 (Iowa 2006) (explaining “when an attorney is constitutionally required, the state is obligated to pay the court-appointed attorney reasonable compensation”). Nor are we asked here to determine whether such a right exists.

Nevertheless, in the past we have at least insinuated a court may have inherent power to appoint an attorney where there is neither a statutory right nor a constitutional right to such an appointment. See id. at 573 (stating “[although the legislature no longer permits guardians ad litem for parents to be paid from the indigent defense fund, this change does not prohibit the court from appointing guardians ad litem for parents”); Larson v. Bennett, 160 N.W.2d 303, 306 (Iowa 1968) (“vesting in the trial court the discretion of appointing counsel when the facts in a particular [habeas corpus] case make such appointment desirable”). However, even if that power exists, which we need not decide here, it does not carry with it “the power to order the state to compensate counsel thus appointed.” Maghee v. State, 639 N.W.2d 28, 31 (Iowa 2002). Therefore, the State Public Defender is not required to pay Amsler simply because the juvenile court appointed her.

B. Whether Amsler’s Contract with the State Public Defender Entitles her to be Paid for Representing a Grandparent in a Parental Termination Action

In its ruling, the juvenile court conceded it may have lacked statutory authority to appoint Amsler. Nonetheless, the court ruled in Amsler’s favor because it interpreted “the clear terms of the Legal Services Contract” entitled Amsler to compensation.

The State Public Defender argues the juvenile court should not have considered the terms of the contract in its ruling because Amsler did not rely on the contract as her basis for recovery. The Iowa Administrative Code provides the procedures for seeking review of the State Public Defender’s decision to deny or reduce a claim. In the motion for review, the attorney “must set forth each and every ground on which the attorney intends to rely in challenging the action of the state public defender,” Iowa Admin. Code r. 49312.9(1)(6), and “[t]he court shall consider only the issues raised in the attorney’s motion.” Id. r. 493 — 12.9(2)(d). Amsler did not expressly raise the contract in her motion. Instead, she appealed to the court’s sense of fairness by noting the State Public Defender “did not challenge the validity of the appointment order at the time of its issuance” and claiming she acted in “good faith.”

At the hearing, the juvenile court asked to see the contract between the State Public Defender and Amsler. The State Public Defender agreed to fax it to the court. He did not object to the contract being offered into evidence. Consequently, the State Public Defender did not preserve this alleged error for our review.

Turning now to the contract, we tend to agree with the juvenile court the contract allows recovery. The contract states:

2. Services to be Performed by Contractor: Contractor will provide legal services to indigent persons in criminal, juvenile, post-conviction, contempt/show cause proceedings, or proceedings under Iowa Code chapter 229A as assigned by the Court....
3. Compensation: Contractor will be paid for reasonable and necessary legal services performed by Contractor under this Contract, pursuant to administrative rule adopted by the State Public Defender. In addition to this compensation, expenses ... will be paid to the extent specified by administrative rule adopted by the State Public Defender.

The contract does not specifically address the consequences of a court appointing Amsler where there is no statutory authority for the appointment. A legitimate reading of the contract requires Amsler to be paid simply if she is appointed by the court. Although the contract requires Amsler to “comply with all applicable federal, state and local laws,” the State Public Defender fails to specify what law, if any, Amsler violated by accepting the appointment to represent Snell in the termination action.

C. Whether the State Public Defender is Permitted to Pay Costs Incurred in an Appointment not Authorized by Statute

Our inquiry does not end with the contract. Iowa Code section 815.11 expressly limits the types of court appointments for which costs incurred may be paid from the indigent defense fund.

Costs incurred under chapter 229A, 665, or 822, or section 232.141, subsection 3, paragraph “c”, or section 814.9, 814.10, 814.11, 815.4, 815.5, 815.7, 815.10, or 908.11 on behalf of an indigent shall be paid from [the indigent defense fund].

Iowa Code § 815.11. If the representation does not fall into one of these enumerated sections or chapters, the “costs incurred ... are not payable” from the fund. Id.

There are only two sections which could possibly apply to an attorney appointed to represent a non-parent in a termination case. Section 815.10(1) requires a court to appoint an attorney “to represent an indigent person ... [in a] juvenile action in which the indigent person is entitled to legal representation at public expense.” (Emphasis added.) Here, the termination was a juvenile action but Snell was not entitled to an attorney. At best, the juvenile court had discretion to appoint an attorney for Snell.

The more difficult question is whether section 232.141(3)(c) allows Am-sler to be paid out of the indigent defense fund. Section 232.141(3)(c) states “[c]osts incurred for compensation of an attorney appointed by the court to serve as counsel to any party [in a juvenile action] ... shall be paid in accordance with sections 13B.4 and 815.7.” (Emphasis added.) At first blush, this provision seems to apply to the present circumstances. Amsler was appointed to represent a party in a juvenile action, albeit an intervening party. However, we find it unlikely the legislature contemplated intervening parties in a termination action when it used the word “party” in this context. Mason v. Schweizer Aircraft Corp., 653 N.W.2d 543, 548 (Iowa 2002) (“In attempting to ascertain legislative intent, we look not only to the words used, ‘but also to the context within which they appear.’ ”). Section 232.113 entitles only the original parties to counsel — that is the parent and child identified in the termination petition. If we interpreted section 232.141 to include attorneys representing intervening parties, then the State Public Defender would be required to pay any attorney appointed at the inclination of the court. We do not believe the legislature envisioned unending and unknown liability at the public expense. Although we are hesitant to resort to rules of statutory construction where statutory words have ordinary and commonly understood meaning, we will if a literal reading of the statute “ ‘leads to injustice, absurdity, or contradiction.’ ” Woodbury County v. City of Sioux City, 475 N.W.2d 203, 205 (Iowa 1991) (quoting State v. Perry, 440 N.W.2d 389, 391 (Iowa 1989)). It is ridiculous to assume the legislature who specified only certain people are entitled to counsel in one provision intended other people not mentioned to also receive court-appointed counsel at public expense. Therefore, we interpret “party” in section 232.141(3)(c) to mean original party. Since section 232.141(3)(c) does not pertain to Amsler’s appointment, section 815.11 prohibits the State Public Defender from paying Amsler.

We do not, nor are we asked to, rule on the State’s obligation to pay an attorney appointed to represent a party where there is no statutory authorization or constitutional duty to make the appointment. We merely rule the State Public Defender is not permitted to pay Amsler out of the indigent defense fund. See State Pub. Defender, 721 N.W.2d at 574 (explaining the statutory mechanism to submit a claim to be paid from the general fund).

IV. Conclusion

The juvenile court appointed Amsler to represent an intervening grandparent in a termination action. Grandparents do not have a statutory right to court-appointed counsel under these circumstances. Although a fair interpretation of Amsler’s contract with the State Public Defender permits payment, he is nevertheless prohibited from paying for costs incurred in an appointment lacking statutory authority. Thus, the State Public Defender properly denied Amsler’s claim. We sympathize with Amsler and commend her for representing indigents in need of legal assistance. Nevertheless, the juvenile court exceeded its authority by ordering the State Public Defender to pay Amsler for her work and expenses.

WRIT SUSTAINED.

      . The State Public Defender’s failure to object at the time of appointment is irrelevant to any claim of waiver because he was not aware of the appointment until he received Amsler's claim for fees.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    Todd M. STEVENS, Appellant, v. IOWA NEWSPAPERS, INC., Susan Harman and Erik Brooks, Appellees.
    No. 04-0987.
    Supreme Court of Iowa.
    March 9, 2007.

      Theodore F. Sporer of Sporer & Ilic, P.C., Des Moines, for appellant.
    Michael C. Cox of Koley Jessen, P.C., Omaha, Nebraska, for appellees.
   LARSON, Justice.

Todd Stevens brought a libel suit against Iowa Newspapers, Inc., as owner, and Susan Harman and Erik Brooks, reporter and editor, respectively, of the Ames Tribune. The district court granted the defendants’ motion for summary judgment, and the plaintiff appealed. The court of appeals affirmed in part and reversed in part. We granted further review and now affirm the decision of the court of appeals, reverse the judgment of the district court, and remand.

I. Facts and Prior Proceedings.

The facts, as produced in the summary judgment record, are undisputed. In November 1998 Todd Stevens orally agreed with Iowa Newspapers to provide weekly sports columns to the Tribune to be paid on a per-column basis. He was not an employee of the newspaper, but was considered a freelance journalist subject to the Tribune’s editorial policies and decisions.

In June 2002 Susan Harman, the sports section editor, wrote and published a column about the resignation of Iowa State University’s associate athletic director, Elaine Hieber. Stevens disagreed with the tone of Harman’s article, believing it was too complimentary toward the resigning employee, and drafted his own column expressing his viewpoint. After reviewing Stevens’ proffered article, Harman and David Kraemer, the Tribune ⅛ managing editor, decided the column would not be published without further discussion with Stevens because of the column’s negative comments and implications concerning the quality of the newspaper’s investigation and reporting of the incident.

Stevens redrafted his column, toning down his attack on the newspaper’s investigation, but Harman and Kraemer still refused to publish it. In the meantime, Stevens read his column on the air on a local sports radio talk program.

Stevens advised Kraemer that he would no longer write for the Tribune and asked to write a “farewell” column. Kraemer consented, and the column was published in the Tribune on June 10, 2002, under the heading “Point Counterpoint — Columnist Opts Out of the Tribune.” Directly adjacent to Stevens’ column was a response authored by Harman. Three comments in Harman’s response became the basis of Stevens’ libel action: (1) That Stevens “in fact rarely attended events upon which he wrote columns”; (2) that Stevens’ original column on Hieber’s resignation “contained numerous factual errors and unsubstantiated claims”; and (3) that Stevens’ redraft of his Hieber resignation column “continued to include fatal factual errors and near libelous characterizations.”

Stevens sued on a theory of express libel, and the district court found that Stevens also had possibly pled a theory of defamation by implication. Even though the district court was not convinced that defamation by implication existed in Iowa law, it considered that possibility in its ruling.

We begin the discussion of the merits of this appeal by first determining the plaintiffs status — an important consideration in defamation cases. For defamation purposes, a person becomes a public figure in two ways.

In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3013, 41 L.Ed.2d 789, 812 (1974). Stevens apparently admits, for libel purposes, that he is a public figure.

Stevens, as a public figure, had the burden to show that a reasonable jury could find by clear and convincing evidence that (1) the challenged statements in Har-man’s column were false and (2) Harman made the statements with “actual malice.” See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964); Carr v. Bankers Trust Co., 546 N.W.2d 901, 904 (Iowa 1996). The district court ruled that Stevens failed to meet this test and granted the defendants’ motion for summary judgment.

The court of appeals affirmed the district court’s findings on statements 2 and 3 (quoted above), reversed on statement 1 (that Stevens rarely attended the events upon which he wrote columns), and remanded for trial. The court of appeals, noting a split of authorities on the issue, concluded Iowa would recognize a claim for defamation by implication.

II. Review of Summary Judgment.

The standard of review for summary judgment cases is well settled. We review summary judgment motions for correction of errors at law. Carr, 546 N.W.2d at 903. Summary judgment is appropriate only when the entire record demonstrates that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. We review the evidence in the light most favorable to the nonmoving party. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005).

A party resisting a motion for summary judgment cannot rely on the mere assertions in his pleadings but must come forward with evidence to demonstrate that a genuine issue of fact is presented. The record on summary judgment includes the pleadings, depositions, affidavits, and exhibits presented. Carr, 546 N.W.2d at 903. Unique rules apply in defamation cases because First Amendment rights are implicated. Id. at 904 (holding that the court “must examine the evidence to determine if a rational fact finder could conclude that malice had been established by clear-and-convincing evidence”).

III. Defamation by Implication.

The statements at issue, i.e., that Stevens rarely attended the events he covered; that his original column contained numerous factual errors and unsubstantiated claims; and that Stevens’ redraft continued to include factual errors and “near” libelous characterizations, were all basically true. It is only when the statements are given the spin that Stevens attributes to them that they may be considered libelous. This raises the initial question of whether we recognize defamation by implication.

Defamation by implication arises, not from what is stated, but from what is implied 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, even though the particular facts are correct.

Dan B. Dobbs, Prosser & Keeton on the Law of Torts § 116, at 117 (Supp.1988). Iowa case law has not expressly adopted the principle of defamation by implication; however, analogous cases suggest that such a cause of action would be recognized. See, e.g., Huegerich v. IBP, Inc., 547 N.W.2d 216, 221 (Iowa 1996) (“In determining what the third person understands, the defamatory statement must be viewed in the context of the surrounding circumstances and within the entire communication.”); Haas v. Evening Democrat Co., 252 Iowa 517, 528, 107 N.W.2d 444, 451 (1961) (“An innuendo, in the law of slander and libel, is only a word of explanation, an attempt to give a meaning to what was actually expressed.”); Salinger v. Des Moines Capital, 206 Iowa 592, 596-97, 217 N.W. 555, 557 (1928) (statement that the decisions of the Iowa Supreme Court were the judgment of one man was libelous as it was “fairly susceptible of the meaning and intendment, attributed to it in the innuendo, that plaintiff was violating his duty as a member of the court”); Kelly v. Iowa State Educ. Ass’n, 372 N.W.2d 288, 295-96 (Iowa Ct.App.1985) (statement in question implies that the state educational administrator was not competent; libel action was permitted based on this implication); see also Restatement (Second) of Torts § 563 cmt. c, at 163 (1965) (“The defamatory imputation may be made by innuendo, by figure of speech, by expressions of belief, by allusion or by irony or satire.”).

We now expressly adopt the principle of defamation by implication. Otherwise, by a careful choice of words in juxtaposition of statements in a publication, a potential defendant may make statements that are true yet just as damaging as if they were actually false. Whether we adopt the theory of implied defamation in suits against public officials or public figures such as Stevens, however, presents a closer question. As the Supreme Court has observed, “elected public officials] ... traditionally have been subject to special rules of libel law.” Curtis Publ’g Co. v. Butts, 388 U.S. 130, 144, 87 S.Ct. 1975, 1986, 18 L.Ed.2d 1094, 1105 (1967). In fact, some courts have been reluctant to permit an action for defamation by implication in public-figure or public-official cases. See, e.g., Price v. Viking Penguin, Inc., 881 F.2d 1426, 1432 (8th Cir.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 757, 107 L.Ed.2d 774, reh’g denied, 494 U.S. 1013, 110 S.Ct. 1312, 108 L.Ed.2d 488 (1990) (suit for implied defamation by FBI agent; court refused to recognize such suits); Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn.1990) (“[W]e hold an allegedly false implication arising out of true statements is generally not actionable in defamation by a public official .... ”); De Falco v. Anderson, 209 N.J.Super. 99, 506 A.2d 1280, 1284 (1986) (There can be no libel by innuendo by public figures when the facts in the challenged communication are true.); see also 16B C.J.S. Constitutional Law § 876, at 170 (2005) (“As a general rule, all truthful statements concerning public officials are constitutionally protected even if a false implication may be drawn by the public, the defense of truth as against a charge of defamation being constitutionally required.” (Footnotes omitted.)); Robert D. Sack, Libel, Slander, and Related Problems § 5.5.1, at 5064 (3d ed. 1999) (“[I]mplication perceived in a statement but not intended by the speaker cannot be actionable in public official or public figure cases.”).

Some jurisdictions, on the other hand, have not hesitated in holding that defamation by implication is a permissible claim for public figure plaintiffs. See, e.g., Toney v. WCCO Tel., 85 F.3d 383, 393 (8th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 272, 93 L.Ed.2d 249 (1986) (concluding that Minnesota would recognize defamation by implication); Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092-93 (4th Cir.1993) (plaintiff was a public figure, yet the court noted that defamatory meaning may be communicated by direct reference or by implication); Saenz v. Playboy Enter., Inc., 841 F.2d 1309, 1314 (7th Cir.1988) (concluding that nothing in Supreme Court cases justifies denying a public official a cause of action premised on defamatory innuendo); Thomas v. Los Angeles Times Commc’ns, LLC, 189 F.Supp.2d 1005, 1012 (C.D.Cal.2002), aff'd, 30 Media L. Rep. 2438 (9th Cir.2002), cert. denied, 537 U.S. 1172, 123 S.Ct. 1000, 154 L.Ed.2d 914 (2003) (court noted that neither California nor the ninth circuit had ever held that being a public figure is a bar to a defamation by implication claim).

As one writer has noted,

[disallowing defamation by implication ignores the reality of human discourse. Communication, rarely composed of transparent assertions, is a nexus of suggestions, cues, allusions, presumptions and intimations. What speech leaves unsaid is often more potent than what it makes explicit: “it is the thought conveyed, not the words, that does the harm.”

Nicole Alexandra LaBarbera, The Art of Insinuation: Defamation by Implication, 58 Fordham L.Rev. 677, 701 (1990) [hereafter LaBarbera] (quoting Turner v. Brien, 184 Iowa 320, 326, 167 N.W. 584, 586 (1918)). Further, as LaBarbera notes, denying a public figure the right of redress in the face of implied defamation is unfair.

Precluding a plaintiff from recovering for defamation that is cleverly couched in implication is inequitable. It rewards a defendant for having the foresight or literary facility to secrete a “classic and coolly-crafted libel” in the overtones of a facially neutral statement. It may provide a loophole through which media defendants can escape liability for “high-profile” defamatory stories by insinuating what they may not state.

Id. The seventh circuit has stated:

[W]e believe that an official should not be allowed to transform governmental criticism into personal defamation where none exists. We also do not believe, however, that a publisher may, without impediment of law, trammel a public official by “surreptitious and insidious implication” under the pretense of governmental critique. To deny a public official the opportunity to demonstrate the defamatory innuendo of a publication, even one critical of governmental conduct, is to open Pandora’s Box from which countless evils may spring. A legal fiction denying the existence of clearly discernable, though not explicit charges, exposes public officials to baseless accusations and public mistrust while promoting an undisciplined brand of journalism both unproductive to society and, as we see it, unprotected by constitutional considerations.

Saenz, 841 F.2d at 1317. Also,

[s]uch a draconian approach [denying cause of action for defamation by implication] would invite a publisher who deliberately seeks to harm the reputation of a public person to manipulate statements purposefully or to omit critical facts with the design of implying a false, defamatory meaning. A literal and accurate report of specific facts could be used to destroy reputation deliberately. In other words, a form of calculated falsehood would be placed beyond the reach of the law of defamation.

C. Thomas Dienes & Lee Levine, Implied Libel, Defamatory Meaning, and State of Mind: The Promise of New York Times Co. v. Sullivan, 78 Iowa L.Rev. 237, 308 (1993).

We conclude that, despite Stevens’ status as a public figure, he may maintain a suit based on alleged defamation by implication. Whether he has sustained his burden of showing a genuine issue of material fact, for summary judgment purposes, remains at issue.

IV. The Merits of the Plaintiff’s Claim.

We noted in Carr that New York Times Co. v. Sullivan “significantly restricted the power of courts to grant damage awards in defamation cases brought by public officials.” Carr, 546 N.W.2d at 903-04. As the Supreme Court said in New York Times:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

376 U.S. at 279-80, 84 S.Ct. at 726, 11 L.Ed.2d at 706. Malice must be shown with “convincing clarity” or clear and convincing evidence. Id. at 285-86, 84 S.Ct. at 728-29, 11 L.Ed.2d at 710. (While New York Times involved a public official, its holding has been extended to cover public-figure plaintiffs as well. Curtis Publ’g Co., 388 U.S. at 155, 87 S.Ct. at 1992, 18 L.Ed.2d at 1111).

Under New York Times a plaintiffs proof that the statement in question is false is insufficient to establish defamation. In addition to showing falsity, a plaintiff must show actual malice, i.e., the statement was made with knowledge that it was false or with reckless disregard as to whether it was true or false. Carr, 546 N.W.2d at 904. Reckless disregard means a “high degree of awareness of their probable falsity.” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, 134 (1964).

The New York Times analysis requires a plaintiff resisting a motion for summary judgment to do more than show a genuine issue of material fact; he must produce evidence from which a fact finder could reasonably find malice by clear and convincing evidence. As the Court stated in Anderson v. Liberty Lobby, Inc.,

where the New York Times “clear and convincing” evidence requirement applies, the trial judge’s summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.

477 U.S. 242, 255-56, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202, 216 (1986).

It is for the court to determine whether the defendants’ words were capable of a defamatory meaning and for the jury to determine whether they actually had that effect on the reader. According to the Restatement,

(1) The court determines
(a) whether a communication is capable of bearing a particular meaning, and
(b) whether that meaning is defamatory.
(2) The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient.

Restatement (Second) of Torts § 614, at 311 (1965).

The burden of showing that a communication is defamatory in character is substantial. The Supreme Court has stated:

A “reckless disregard” for the truth [under the New York Times] requires more than a departure from reasonably prudent conduct. “There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” The standard is a subjective one — there must be sufficient evidence to permit the conclusion that the defendant actually had a “high degree of awareness of ... probable falsity.” As a result, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard.

Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 2696, 105 L.Ed.2d 562, 589 (1989) (citations omitted). “Actual malice” under the New York Times’ analysis is not satisfied merely through a showing of ill will or “ ‘malice’ in the ordinary sense of the term.” Id. at 666, 109 S.Ct. at 2685, 105 L.Ed.2d at 576.

V. Application of Legal Principles.

Keeping in mind the principles just discussed, we review the plaintiffs allegations of libel as supported by his resistance to the summary judgment motion.

A. The defendant’s statements regarding Stevens’failure to attend events. Stevens claims that Harman defamed him by writing that Stevens “rarely attended events upon which he wrote columns.” This was literally true; Stevens admitted he attended only approximately eighteen percent of the events about which he expressed opinions. However, as defendant Harman admitted in her deposition, personal attendance at sporting events is not required by professional standards for a sports opinion, as opposed to a news story. Stevens contends that the statement about his lack of personal attendance implied that he fabricated the columns he wrote. Such a suggestion, he claims, is tantamount to stating that he was untruthful.

As we have noted, the initial decision as to whether a statement is capable of bearing a defamatory meaning is for the court to decide, and the jury determines whether a communication, if capable of a defamatory meaning, was so understood by the reader. In determining whether a genuine issue of fact is generated on the question of malice or reckless disregard for the truth under the New York Times standard,

the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.

Anderson, 477 U.S. at 255-56, 106 S.Ct. at 2514, 91 L.Ed.2d at 216.

The article stated that Stevens rarely attended events about which he wrote, without revealing to the reader what defendant Harman knew — that personal attendance was not required by professional standards. As the Supreme Court said in Harte-Hanks, “[although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category.” 491 U.S. at 692, 109 S.Ct. at 2698, 105 L.Ed.2d at 591 (citation omitted). When the evidence in the summary judgment record is viewed in the light most favorable to the resisting party, we conclude that a reasonable jury could find by clear and convincing evidence that this statement was false in its implication and was made with reckless disregard for the truth under the New York Times standard. We therefore affirm the court of appeals and reverse the district court on this issue.

B. Other statements by the defendants. The defendants’ column also stated that Stevens’ article contained “numerous factual errors” and contained “near libelous characterizations.” Har-man’s statement that Stevens’ article contained numerous factual errors was based in part on Stevens’ statement that the athletic director, Max Urick, had not hired Elaine Hieber. However, deposition testimony, including testimony from Urick himself, uniformly showed that Urick had, in fact, hired Hieber. This statement by Harman in her article (that Stevens’ account of the issue was factually incorrect) was true. Another “factual error” to which the Harman article referred was Stevens’ suggestion that key coaches at Iowa State had not been contacted regarding the Hieber matter. The undisputed evidence was that this was not true; Har-man had indeed sought comment, though unsuccessfully, from one of them. Again, the defendants’ observation that Stevens’ column contained factual errors was true.

Because there were, in fact, factual errors in the Stevens article, the Tribune statements to that effect were accurate. Further, there was no evidence that even impliedly suggested that facts were withheld in the Tribune article (as in the Tribune ’s statement about Stevens not attending events about which he wrote) that could make the “factual errors” statement libelous.

The Tribune article also characterized Stevens’ statements as “near libelous characterizations.” We agree with the district court and the court of appeals that the “near libelous” statement is so nebulous it is incapable, as a matter of law, of bearing a defamatory meaning. We therefore affirm on that issue. We affirm the court of appeals and reverse the district court as to its ruling on statement 1, and remand for trial on that issue.

COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED.

All justices concur except HECHT and APPEL, JJ., who take no part.

      . We reject the defendants’ argument that Stevens may not maintain a suit based on this theory because he failed to expressly plead it; it is clear under notice pleading that a specific theory of a claim need not be alleged. See, e.g., Soike v. Evan Matthews & Co., 302 N.W.2d 841, 842 (Iowa 1981).


author: WIGGINS, Justice.

text:
    Christopher ALES, Appellant, v. ANDERSON, GABELMANN, LOWER & WHITLOW, P.C., f/k/a Anderson, Gabelmann, Ales, P.C., Appellee.
    No. 04-2073.
    Supreme Court of Iowa.
    March 16, 2007.

      Michael R. Blaser and Rebecca A. Brommel of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, and Richard A. Davidson of Lane & Waterman, LLP, Davenport, for appellant.
    Louis R. Hockenberg and Lawrence P. McLellan of Sullivan & Ward, P.C., West Des Moines, for appellee.
   WIGGINS, Justice.

An unsuccessful party to an arbitration proceeding that involved a covenant not to compete appeals a district court decision confirming in part and vacating in part the arbitration award. The district court confirmed the award finding a breach of the covenant not to compete occurred. It also confirmed the damages the arbitrator assessed for the breach. The district court vacated the arbitrator’s attorney’s fees and costs determination and remanded the case back to the arbitrator to determine an attorney’s fees and costs award consistent with its decision. Because we agree substantial evidence supports the arbitrator’s determination that the covenant not to compete was breached and the damages he awarded for that breach, we affirm that part of the district court’s decision. However, because we find substantial evidence only supported part of the arbitrator’s award regarding the attorney’s fees and costs, we reverse the judgment of the district court, vacate the portion of the arbitration award regarding the fees and costs not supported by substantial evidence, and confirm the portion of the award regarding the fees and costs supported by substantial evidence. We also remand the matter to the district court to determine an appropriate award for the fees and costs incurred by the prevailing party in the district court and on this appeal.

I. Background Facts and Proceedings.

Christopher Ales is a certified public accountant. After working for over ten years in the tax department of two corporations, Ales opened his own accounting practice. In December 1998 Ales merged his solo-practice with Anderson, Gabel-mann, P.C. Anderson, Gabelmann, P.C., now known as Anderson, Gabelmann, Lower, Whitlow, P.C. (AGLW), is a public accounting firm located in Bettendorf, Iowa. AGLW agreed to purchase Ales’ customer list for a one-third interest in the firm and a $205,000 promissory note (the “Old Note”).

Before coming to AGLW, Ales began working on residential building projects for low-income residents, commonly referred to as section 42 projects. Ales continued to work on section 42 projects while employed by AGLW. By May 2000 friction had built between Ales and his partners. Ales described this as “the beginning of the end,” and discussions began regarding Ales leaving AGLW. By December 1 Ales and AGLW entered into an agreement that provided the terms of Ales’ separation from AGLW.

Under the agreement, AGLW purchased Ales’ 1000 shares of stock in the firm, his revalued client list, the Old Note, and Ales’ covenant not to compete. Ales received $345,000 in consideration for these assets in the form of a promissory note (the “New Note”). Ales also agreed “upon reasonable request” to “use commercially reasonable efforts to assist [AGLW] in retaining the clients on the Client List for the mutual benefit of all parties to this Agreement.”

The covenant not to compete stated for a five-year period Ales promises, within a fifty-mile radius from any office of AGLW established as of December 1, 2000, not to

(a) provide like or similar services to those provided by [AGLW] directly or indirectly, to any of [AGLWj’s clients (past or present) or (b) either alone or in association with others, directly or indirectly, organize, own, control, lend financial support to, manage, operate, join, or become associated with, represent, advise, render services to, or become employed by or participate in any entity providing like or similar services to those provided by [AGLW].

Exempt from the covenant not to compete were (1) any activities carried out by Ales, directly or indirectly, in association with his section 42 projects; (2) services provided by Ales to Watts Trucking Service, Inc. and its related entities and individuals; and (3) services provided by Ales to any company in which Ales held a fifty percent or more interest.

The agreement also gave AGLW the right to offset against the New Note “an amount equal to the last two year’s fees collected by [AGLW] from the client with whom Ales is alleged to have violated the covenant not to compete.” The agreement further provided if a dispute regarding the agreement arose, the parties would submit the dispute to binding arbitration under chapter 679A of the Iowa Code. Finally, the agreement provided the prevailing party in any arbitration proceeding would be entitled to reimbursement from the non-prevailing party of the actual attorney’s fees and costs involved in pursuing or defending the claim.

After the agreement was signed, Ales remained in the AGLW offices under a new leasing agreement. In February 2001 Ales moved his operations to his home. Eventually by April or May Ales moved his office to Renwick House, a historic home converted into office space. Renwick House is located within fifty miles of AGLW’s offices. Ales continued to work as a developer of section 42 projects through his various companies.

Diane Artioli, a certified public accountant, previously worked as a part-time accountant for AGLW from 1998 to 2001. After leaving AGLW, Artioli began working for another company, but by January 2002 Artioli had opened her own practice. She first rented office space in Davenport. After Artioli opened her office, a number of AGLW clients started requesting her services. At this time, Artioli also started doing work for Ales and his companies. In June 2002 Artioli closed her Davenport office and began to work at Renwick House.

On September 17 AGLW notified Ales that it had “determined that [Ales was] in violation of the Covenant Not To Compete ... by providing like or similar services as those provide by [AGLW], directly or indirectly, to certain of [AGLW] ’s clients.” AGLW indicated the basis for its finding was that: (1) as of March 8, 2002, clients Erickson Truck/Jack Erickson Companies, KCM Construction/Kyle Meier Companies, D & D Chevrolet/Kilberg Companies, Gary Clapp, Richard Yerington, Dr. Margaret Millar, Ed Mowen, Richard Henson, and Roy Harper notified AGLW that Artioli would be providing their professional accounting, tax, and consulting services; (2) Ales continued to hold himself out as a practicing certified public accountant and indirectly started accounting operations by hiring Artioli and another employee to provide accounting or similar services from Ales’ offices; and (3) Ales worked directly and/or indirectly and/or in association with Artioli by providing, directly or indirectly, organization, control, financial support, cost-sharing arrangements, management, operating assistance, association, representation, and advisement, as evidenced by Artioli working out of and utilizing staff within Ales’ office building; and this evidenced that Ales was participating with Artioli to provide like or similar services to those provided by AGLW. Due to these allegations, AGLW offset the New Note by $154,305, representing the last two years of fees collected by AGLW from the these clients.

AGLW sent an additional notice to Ales on July 1, 2003. In this notice, AGLW alleged Ales had violated the covenant not to compete by providing services to the Premier Properties group of corporations and Dr. Alan Kendall. Due to this allegation, AGLW offset the New Note by an additional $46,148, the amount representing the last two years of fees collected from the Premier Properties group. Ales contested both notices. Pursuant to the agreement an arbitration hearing was set.

Ales also filed a claim in district court requesting the acceleration of the New Note. Ales alleged AGLW had improperly effectuated an offset of $154,160 without notice at the time the offset was done. Ales also alleged AGLW untimely attempted to cure its default by revising Ales’ 1099 tax form for 2002 and reverting to the original amortization schedule. AGLW filed a motion to stay or in the alternative a motion to dismiss Ales’ claim. The district court found Ales’ claim was not sever-able from the matters subject to the arbitration and stayed the district court action pending the completion of the arbitration.

The case proceeded to arbitration. At arbitration, the parties stipulated AGLW held the burden of proof as to whether Ales violated the covenant not to compete. The arbitrator considered the evidence and issued a final decision and award on the merits and an interim decision on fees and expenses. In this decision, the arbitrator found: (1) Artioli was a certified public accountant offering accounting services from an office at Renwick House; (2) these accounting services provided by Artioli were like or similar to those provided by AGLW; (3) Artioli’s services were offered within fifty miles from the AGLW office and at a time within five years following the withdrawal of Ales from AGLW; (4) Ales controlled, financially supported, and was associated with Artioli’s accounting practice and this was a violation of the covenant not to compete; (5) AGLW’s interpretation of the damage award is more persuasive and consistent with the clear intent of the parties; therefore, AGLW’s interpretation is commercially reasonable and closer to the ordinary and customary construction of the words in question; (6) damages relating to AGLW’s claims in its September 17, 2002, letter amounted to $149,570 (less $3920 for the unpaid portion of the Erickson invoices) and that this amount should be subtracted from the New Note as of September 17, 2002; (7) damages relating to AGLW’s claims in its July 1, 2003, letter amounted to $49,480.10 and should be subtracted from the New Note as of July 1, 2003; and (8) the lawsuit filed by Ales (and stayed by the district court) is a violation of the arbitration clause in the agreement and AGLW’s actions in issuing a 1099 tax form and revised amortization schedule did not constitute a default. The arbitrator awarded AGLW an offset to the New Note of $145,650 as of September 17, 2002, and another $49,480.10 as of July 1, 2003.

The arbitrator also decided AGLW was entitled to reimbursement of its reasonable and necessary attorney’s fees and costs incurred in the arbitration and in defending against Ales’ district court action to accelerate payment of the New Note. However, at the time of this decision, the arbitrator did not have all of the attorney’s fees and costs claimed by AGLW before him. Instead, the arbitrator left AGLW’s attorney’s fees and costs award unsettled. The arbitrator instructed the parties to confer and attempt to negotiate and settle the amount of AGLW’s award for attorney’s fees and costs. However, the arbitrator stated he would conduct a further hearing on fees and costs if requested by either party.

At AGLW’s request, the arbitrator held a hearing to determine the final award on attorney’s fees and costs. The arbitrator adjusted AGLW’s claimed fees and costs of over $115,000 to $83,485.08 on the grounds that some of the claimed fees and costs were incurred prior to the arbitration, some were unrelated to the arbitration, some were excessive, and some were dupli-cative.

After making these adjustments to the attorney’s fees and costs claimed by AGLW, the arbitrator found there would be a fair allocation of responsibility if Ales paid his own legal fees and costs of $73,312.52 and fifty percent of AGLW’s adjusted claim, $41,742.54. The arbitrator reasoned under the circumstances of this case, having Ales pay $115,055.06 in fees and costs is commercially reasonable and consistent with the “reasonable and necessary” standard of his interim decision. The arbitrator allowed AGLW to offset the New Note by $41,742.54, fifty percent of AGLW’s attorney’s fees and costs, as of the date of the decision.

Ales applied to the district court for a vacation of the arbitration award arguing the arbitrator exceeded his power and authority and/or substantial evidence did not support the arbitrator’s findings. AGLW answered Ales’ application and requested an order confirming the arbitration award and entering judgment on the award in favor of AGLW. AGLW also requested an award of attorney’s fees and costs for defending Ales’ appeal. Further, AGLW applied for vacation of the final award of fees and costs claiming the arbitrator’s award of fifty percent of its attorney’s fees violated the agreement.

The district court considered both applications for vacation of the arbitration award. First, the district court found substantial evidence supported the arbitrator’s findings that Ales violated the covenant not to compete and the damages awarded for that breach. Next, the district court affirmed the authorization of the offsets to the New Note for the damages incurred by AGLW for Ales’ breach of the covenant not to compete. In doing so, the district court found the arbitrator did not exceed his authority by creating the offsets because “[t]he covenant not to compete specified the use of an offset if a violation of the covenant not to compete is determined and allow[ed] for reimbursement of attorney’s fees and expenses incurred in the resolution of a dispute.” Finally, the district court found, based on the specific terms used by the parties in the agreement, the arbitrator exceeded his authority when he reduced AGLW’s attorney’s fees and costs award by finding the arbitrator had no authority to adjust the attorney’s fees and costs. The district court confirmed the arbitrator’s findings relating to the breach and the damage award for that breach, vacated the arbitrator’s award on attorney’s fees and costs, and remanded the case back to the arbitrator as required by Iowa Code section 679A.12.

Ales appeals.

II. Issues.

A party may appeal a district court order regarding an arbitration award, when the order confirms or denies confirmation of an arbitration award or when the order modifies or corrects an award. Iowa Code § 679A.17(l)(c), (d) (2003). On appeal Ales argues: (1) the arbitrator’s decision that Ales violated the covenant not to compete is not supported by substantial evidence; (2) the entry of damages with respect to the Premier Properties group of corporations and Dr. Kendall is not supported by substantial evidence; and (3) the district court erred in granting AGLW’s application for partial vacation of the award for attorney’s fees and costs.

III. Scope of Review.

The Code provides that we review the appeal of an arbitration award “in the manner and to the same extent as from orders or judgments in a civil action.” Iowa Code § 679A.17(2). Accordingly, our review is for correction of errors at law because this is an appeal from a court order in a civil law suit. $99 Down Payment, Inc. v. Garard, 592 N.W.2d 691, 693 (Iowa 1999); see also Wesley Retirement Servs. v. Hansen Lind Meyer, Inc., 594 N.W.2d 22, 29 (Iowa 1999); Iowa R.App. P. 6.4. However, our review is limited. See Humphreys v. Joe Johnston Law Firm, P.C., 491 N.W.2d 513, 515 (Iowa 1992) (finding the judicial review of arbitration awards is very limited). Our function is not to determine whether the arbitrator has correctly resolved the grievance. Postville Cmty. Sch. Dist. v. Billmeyer, 548 N.W.2d 558, 562 (Iowa 1996). “To allow courts to ‘second guess’ an arbitrator by granting a broad scope of judicial review would nullify the very advantages of arbitration.” $99 Down Payment, Inc., 592 N.W.2d at 694. A court cannot vacate or refuse to confirm the award even if the court could not or would not grant the same relief. Iowa Code § 679A.12(2). As long as an arbitrator’s award does not violate one of the provisions of section 679A.12(1), we will not correct errors of fact or law. Humphreys, 491 N.W.2d at 515.

IV. Analysis.

A. Substantial Evidence. The first two issues argued by Ales on appeal concern whether substantial evidence supports the arbitrator’s decision. With exceptions not applicable here, chapter 679A allows the district court to vacate an arbitration award when substantial evidence on the record as a whole does not support the award. Iowa Code § 679A.12(1)(/). “Generally, evidence is substantial if a reasonable pei’son would accept the evidence as sufficient to reach a conclusion.” Humphreys, 491 N.W.2d at 516 (citation omitted). This court does not consider evidence to be insubstantial merely because different conclusions can be drawn from the evidence. State v. Dohlman, 725 N.W.2d 428, 430 (Iowa 2006). “[T]he ultimate question is whether the evidence supports the finding actually made, not whether the evidence would support a different finding.” Id. (citations omitted). Our review of the record reveals substantial evidence supports the arbitrator’s decision that Ales violated the covenant not to compete and that the arbitrator properly calculated AGLW’s damages attributable to the Premier Properties group of corporations and Dr. Kendall.

Although there was conflicting testimony as to the extent of control Ales had over Artioli’s accounting practice, there was ample evidence in the record to support the arbitrator’s decision that: (1) Ales controlled, financially supported, and associated with Artioli’s accounting practice; (2) Artioli was providing services prohibited by the covenant not to compete; and (3) this conduct was a violation of the covenant not to compete.

The evidence supports the arbitrator’s finding that Ales controlled and associated with Artioli. Artioli held herself out as vice president of Signature Construction Company, one of Ales’ companies, as Ales’ vice president of finance, and as Ales’ chief financial officer. Artioli was involved in the day-to-day management of some of Ales’ companies. She testified she “provide[d] assistance to the accounting staff,” and generally oversaw Ales’ staff. Artioli described her duties to Ales as an “expansive list” and that she “[did not] know that [she] could list everything that [she] do[es]” for Ales’ companies. Artioli assisted in the hiring of staff and participated in the interview process for Ales’ office managers and a compliance regional manager. When one of Ales’ companies contested paying unemployment compensation for a former employee, Artioli represented the company at the appellate hearing. She also handled banking matters and held signature authority for Ales and his companies. Her authority encompassed the ability to negotiate or discuss some contracts for Ales and his companies. When applying for funding from the Iowa finance authority, Ales included Artioli as one of his staff. Ales testified Artioli works at his behest and that he had the right to define the role she would play on his behalf. Importantly, sixty-four percent of Artioli’s gross revenues came from Ales and his companies.

Additionally, Ales and Artioli shared a filing system at Renwiek House. Both Artioli and Ales had access to each other’s files. There was no separation between Ales’ files and Artioli’s files, or between old files transferred from AGLW and new files created by Ales or Artioli at Renwiek House.

The record also shows that by February 2002 Artioli was doing public accounting work for almost all of AGLW’s former clients that AGLW claimed Ales was servicing and that Ales was servicing these clients through his control and association with Artioli. Artioli did not advertise her business. Her company was not listed in the yellow pages. Instead, Artioli testified she relied on networking and word-of-mouth to promote her business. Although Artioli claims she was not told how these former-AGLW clients happened to walk through her door when they became her clients, she stated she later became aware Ales referred these former-AGLW clients to her. Factually, Ales referred numerous AGLW clients to Artioli. Ales testified he believed because he had known these clients for years, his referral lent some weight to these clients’ decisions to leave AGLW and go to Artioli.

Finally, the evidence demonstrates Ales lent considerable financial support to Arti-oli. Artioli’s office was located in Renwiek House, which Ales owns. Ales and Artioli had an oral lease agreement and Artioli paid $1200 per month in rent. Included in the lease price was the use of Renwiek House’s telephone service, fax machine, copier, internet service, and general office supplies. Additionally, Artioli was able to utilize the services of Ales’ employees at a rate of $40 per hour. However, from the time Artioli opened her office at Renwiek House until the time of the arbitration hearing, a period of fifteen months, Artioli only paid Ales $4500 for these services. Ales also hired certain employees with Ar-tioli’s needs in mind.

As to the evidence supporting the damages the arbitrator awarded for the Premier Properties group of corporations and Dr. Kendall, the record shows Artioli provided accounting services for Eagle Properties, Cheyenne Properties, Breckenridge Properties, and Quality Properties. Golden Properties and LeAnn Equities also paid Artioli. Ales concedes Dr. Kendall owns all of these entities, including Premier Properties. Bill Gabelmann, a partner with AGLW, described Premier Properties as “a group of approximately eight corporations with different properties associated with each one.” These eight corporations include Breckenridge Properties, Quality Properties, Cheyenne Properties, Eagle Properties, Golden Properties, and LeAnn Equities. Breek-enridge Properties, Quality Properties, Cheyenne Properties, Eagle Properties, and Premier Properties all registered with the Iowa secretary of state and listed the home office as 1818 4th Avenue, Moline, Illinois. Further, when Artioli billed Breckenridge Properties, Quality Properties, Cheyenne Properties, and Eagle Properties she always billed the same person — Mark Nelson, who worked for Premier Properties. The record supports that Premier Properties was the umbrella name for a group of entities all run by Dr. Kendall, all in the business or related-business of property management.

The agreement provided damages for a breach of the covenant not to compete in “an amount equal to the last two (2) year’s fees collected by [AGLW] from the client with whom Ales is alleged to have violated the Covenant Not to Compete.” The arbitrator allowed damages to be calculated using fees generated by AGLW from 1997 to 1999, the last two years AGLW collected fees from the Premier Properties group of corporations and Dr. Kendall. Ales argues, “[t]his sentence clearly refers to the last two calendar years’ fees, not fees that were billed and collected four to six years before the violation allegedly occurred.”

On our limited review, “every reasonable presumption will be indulged in favor of the legality of an arbitration award.” Humphreys, 491 N.W.2d at 514; see also Iowa Code § 679A.12(2) (stating “[t]he fact that the relief awarded could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award”). Further, when an arbitrator interprets an agreement, the arbitrator is able to draw from the “essence of the agreement” and “ ‘as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority’ even a court’s conviction that the arbitrator committed error does not suffice to overturn the decision.” Domke on Commercial Arbitration, § 39:12, at 24 (3d ed. 2005) (quoting United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286, 299 (1987)).

Under this standard, the arbitrator’s interpretation of the language in the covenant not to compete allowed him to calculate the damages using fees generated by AGLW from 1997 to 1999, the last two years AGLW collected fees from the Premier Properties group of corporations and Dr. Kendall rather than from the last two calendar years of fees. Accordingly, we find substantial evidence supports the arbitrator’s decision that Ales violated the covenant not to compete and the entry of damages with respect to the Premier Properties group of corporations and Dr. Kendall.

B. Attorney’s Fees and Costs. The agreement between the parties stated, “the prevailing party shall be entitled to reimbursement from the non-prevailing party of the actual attorneys’ fees and costs incurred” in pursuing or defending a claim or dispute brought to arbitration or to a court of competent jurisdiction under the agreement.

The arbitrator reduced AGLW’s claim for attorney’s fees and costs twice. The arbitrator made the first reduction because some of the claimed fees and costs were incurred prior to the arbitration, some were unrelated to the arbitration, some were excessive, and some were duplicative. The arbitrator made the second reduction in order to balance the attorney’s fees and costs each party had to pay.

The district court found the arbitrator should not have made either reduction stating “[t]he arbitrator’s use of ‘reasonable and necessary1 legal fees and expenses and the application of a reasonableness standard are not supported by substantial evidence and do exceed the arbitrator’s power and authority based upon the specific terms” of the parties’ agreement. The district court then vacated the attorney’s fees and costs award and remanded the dispute back to the arbitrator to determine the attorney’s fees and costs in accordance with the court’s ruling.

A party’s disagreement with the arbitrator’s conclusion is not grounds for vacating the award. Iowa City Cmty. Sch. Dist. v. Iowa City Educ. Ass’n, 348 N.W.2d 139, 144 (Iowa 1983). In discussing the arbitrator’s authority, we have said:

“Unless the parties specifically limit the powers of the arbitrator in deciding various aspects of the issue submitted to him, it is often presumed that they intend to make him the final judge on any questions which arise in the disposition of the issue, including not only questions of fact but also questions of contract interpretation, rules of interpretation, and questions, if any, with respect to substantive law.”

Id. at 143 (citation omitted). The agreement between the parties gave the arbitrator the authority, without limitation, to decide any dispute between the parties concerning the agreement. Thus, the arbitrator had the authority to decide the attorney’s fees and costs dispute and make any reductions as allowed by his interpretation of the agreement and the evidence.

We disagree with the district court’s determination that substantial evidence did not support the arbitrator’s decision to make the first reduction in AGLW’s claim for attorney’s fees and costs. This reduction reduced AGLW’s claim of over $115,000 to $83,485.08.

When a written contract allows for the recovery of attorney’s fees, the award must be for reasonable attorney’s fees. Iowa Code § 625.22. The burden is on the party seeking to recover fees “ ‘to prove both that the services were reasonably necessary and that the charges were reasonable in amount.’ ” Lynch v. City of Des Moines, 464 N.W.2d 236, 238 (Iowa 1990) (citation omitted). The factors to consider when awarding reasonably necessary attorney’s fees

“include the time necessarily spent, the nature and extent of the service, the amount involved, the difficulty of handling and importance of the issues, the responsibility assumed and results obtained, the standing and experience of the attorney in the profession, and the customary charges for similar service. The district court must look at the whole picture and, using independent judgment with the benefit of hindsight, decide on a total fee appropriate for handling the complete case.”

Id. (citation omitted).

The arbitrator first reduced AGLW’s claim for attorney’s fees and costs because the claimed fees and costs contained items that were incurred prior to the arbitration, were unrelated to the arbitration, were excessive, or were duplicative. This first adjustment is supported by substantial evidence and represents the reasonably necessary attorney’s fees and costs AGLW expended in defending itself in the arbitration proceeding and the district court proceeding regarding Ales’ request for acceleration of the New Note.

We do agree, however, with the district court that substantial evidence does not support the second reduction made by the arbitrator to balance the fees and costs between the parties. The agreement states the prevailing party is entitled to recover its attorney’s fees and costs. In interpreting the agreement, the arbitrator had the authority to determine what fees and costs were reasonably necessary and award that amount to the prevailing party. The evidence only supported the arbitrator’s reduction of AGLW’s claimed fees and costs that were incurred prior to the arbitration, were unrelated to the arbitration, were excessive, or were duplicative. Accordingly, neither the agreement, the evidence, nor the reasonably necessary standard for awarding attorney’s fees allowed the arbitrator to balance the fees and costs between the parties. Consequently, we must vacate that part of the arbitrator’s decision reducing the award of attorney’s fees and costs to AGLW from $83,458.08 to $41,742.54.

Y. Conclusion and Disposition.

Because substantial evidence supports the arbitration award regarding Ales’ breach of the covenant not to compete and the damages awarded for the breach, we affirm the decision of the district court on these issues. We reverse the district court’s decision regarding the attorney’s fees and costs award, confirm the arbitrator’s decision that the reasonably necessary amount of the attorney’s fees and costs AGLW expended to defend the arbitration and the district court case regarding Ales’ request for acceleration of the New Note is $83,458.08, and vacate that portion of the arbitrator’s award further reducing the fees and costs award to $41,742.54.

Ales claims if we vacate part of the arbitrator’s decision, we must vacate the entire decision. We would agree with Ales if the portion of the award vacated did not go to a distinct and severable part of the award. See Superior Constr. Co. v. Bentley, 104 P.3d 331, 333 (Colo.Ct.App.2004) (finding where there is a discrete and severable part of the award, which is identified as being beyond the arbitrator’s powers, this portion of the award can be vacated and the rest affirmed). Here, where the attorney’s fees and costs award is distinct and severable from the other portions of the award, a court can vacate that portion of the award. See Gas Aggregation Servs., Inc. v. Howard Avista Energy, LLC, 319 F.3d 1060, 1069 (8th Cir.2003) (affirming the district court’s vacation of portions of the arbitrators’ award, including the vacation of an award for attorney’s fees, where the arbitrators’ decision “evidenced a manifest disregard for [the] law”); Davis v. Prudential Secs., Inc., 59 F.3d 1186, 1195 (11th Cir.1995) (vacating the portion of the district court’s confirmation of the arbitrators’ determination of attorney’s fees).

Therefore, we remand the case to the district court for the court to confirm the arbitration decision in all respects except for the arbitrator’s reduction of the attorney’s fees and costs award from $83,458.08 to $41,742.54. On remand the district court shall enter judgment confirming the arbitrator’s finding that Ales breached the covenant not to compete and the offsets of $145,650 against the New Note of as of September 17, 2002, and $49,480.10 as of July 1, 2003. The district court shall also enter judgment confirming that $83,458.08 is the reasonably necessary attorney’s fees and costs expended by AGLW to defend the arbitration and the district court case regarding Ales’ request for acceleration of the New Note. This amount shall be offset against the New Note as of March 13, 2004, the date of the arbitrator’s final award on fees and expenses. Finally, because AGLW requested attorney’s fees and costs in its application to the district court and on this appeal, the district court shall determine an additional award of attorney’s fees and costs in favor of AGLW for AGLW’s fees and costs incurred in the district court and in this appeal. Any additional attorney fees and costs award shall be offset against the New Note. If any amount determined by this court or the district court exceeds the amount due under the New Note, the court shall enter an appropriate judgment against Ales for the excess amount.

The costs of this matter are taxed to Ales.

AFFIRMED IN PART, REVERSED IN PART AND CASE REMANDED WITH DIRECTIONS.

All justices concur except TERNUS, C.J., and APPEL, J., who take no part.

      . The district court cannot vacate an arbitration award for lack of substantial evidence if the party urging the vacation of an arbitration award did not cause the proceedings to be recorded or if the arbitration was conducted under the auspices of the American Arbitration Association. Iowa Code § 679A.12(1)(/) (2003).


author: HECHT, Justice.

text:
    Robin OLSON, Appellee, v. Scott SUMPTER, Appellant.
    No. 05-0161.
    Supreme Court of Iowa.
    March 16, 2007.

      Joseph D. Thornton of Smith Peterson Law Firm, Council Bluffs, for appellant.

      Jon H. Johnson of Johnson Law, P.L.C., Sidney, for appellee.
   HECHT, Justice.

The district court concluded the jury was improperly instructed on the subject of Olson’s alleged unreasonable failure to mitigate her damages in this personal injury case and granted Olson’s motion for a new trial. Because Olson failed, before closing arguments, to object to the mitigation instruction, a new trial should not have been granted on that ground. We therefore reverse the grant of a new trial.

I. Background Facts and Proceedings.

Robin Olson and Scott Sumpter were neighbors in Hamburg, Iowa. Olson backed her car out of her driveway onto the adjacent street. Within seconds after she changed gears and began moving forward on the street, Sumpter backed his ear out of his driveway. The rear of Sumpter’s car collided with the passenger-side rear of Olson’s car. Olson sued Sumpter alleging Sumpter’s negligence caused personal injuries and property damage. Sumpter denied liability and, as an affirmative defense, alleged Olson’s fault was a proximate cause of her claimed damages. See Iowa Code § 668.1 (2003) (defining “fault”).

The case was tried to a jury. The district court provided the parties with proposed jury Instructions 14, 15, 16, and 17, addressing the subject of comparative fault. Instructions 14, 15, and 16 addressed Olson’s alleged fault in failing to keep a proper lookout at the time of the accident. Instruction 17 dealt with Sump-ter’s allegation that Olson failed to mitigate her damages. When asked whether the plaintiff had objections to the proposed instructions, Olson’s counsel made no express reference to Instruction 17 or the subject of mitigation and did not object to the verdict form. Olson’s counsel said, “Your Honor, for the record, I would object to Instruction Number 14 and 15, 16[sic] in that I don’t think there is sufficient evidence to go to the jury on the fault of the plaintiff, Robin Olson.” The district court overruled the objection, instructed the jury on the law, and submitted the case to the jury.

Question three on the verdict form directed the jury to decide whether the plaintiff was at fault. During its deliberations, the jury asked the court for clarification of that question: “In the verdict form on question 3 does the subject of ‘fault’ refer to the actual accident? [0]r the personal injuries?” The record contains no stenographic record of a colloquy between the court and counsel with reference to the jury’s inquiry. The district court responded, “Question # 3 refers to the issue of all fault alleged by the defendant. Please reread the instructions.”

The jury returned a verdict allocating sixty percent of the fault to Olson and the remaining forty percent to Sumpter, barring Olson from recovery. See id. § 668.3 (barring recovery where “a claimant bears a greater percentage of fault than the combined percentage of fault attributed to the defendants”). Olson filed a motion for new trial asserting the district court erred in failing to employ separate verdict forms that would have required the jury to allocate plaintiffs fault, if any, between periods before and after the alleged failure to mitigate commenced and in giving an erroneous additional instruction in response to a question from the jury. Olson’s post-trial motion further asserted the jury’s verdict allocating sixty percent of the fault to Olson was not supported by substantial evidence. The district court sustained 01-son’s motion for new trial, concluding it had failed to “properly instruct the jury on the issue of defendant’s claim that the plaintiff failed to mitigate her damages by failure to follow medical orders.”

On appeal, Sumpter contends the district court’s grant of a new trial should be reversed and the jury’s verdict reinstated because Olson “failed to preserve error.” In support of this contention, Sumpter notes that Olson failed to make a specific and timely objection to (1) jury Instruction 17, (2) the form of the jury verdict, and (3) the sufficiency of the evidence to support the submission of mitigation as a component of Olson’s comparative fault. Sumpter further asserts the jury’s verdict allocating sixty percent of the total fault to Olson is supported by substantial evidence. In response, Olson claims her challenges to the mitigation instruction, the jury verdict form, and the sufficiency of the evidence to support the submission of mitigation as a component of comparative fault were timely because (1) the court’s response to the jury’s question was an addition to the instructions, which may be challenged for the first time in a motion for new trial, and (2) as plaintiff, Olson had no obligation to object to the absence of separate verdict forms because the comparative fault defense was asserted by Sumpter. Olson further asserts the district court properly granted a new trial in this case because the evidence was insufficient to engender a jury question on Olson’s alleged comparative fault.

II. Discussion.

A Scope of Review.

“ ‘The scope of our review of a district court’s ruling on a motion for new trial depends on the grounds raised in the motion.’ ” Richards v. Anderson Erickson Dairy Co., 699 N.W.2d 676, 678 (Iowa 2005) (quoting Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001)). If the motion for a new trial was “ ‘based on a discretionary ground, we review it for an abuse of discretion.’ ” Id. (quoting Roling v. Daily, 596 N.W.2d 72, 76 (Iowa 1999)). If the ruling granting a new trial was prompted by a motion based on a legal question, as in this case, our review is for errors at law. Id. at 680.

B. Waiver of Objections to Instruction 17 and the Jury Verdict Form.

We begin with Sumpter’s contention that Olson did not preserve error on her claims for the district court’s posttrial consideration. Generally, under Iowa Rule of Civil Procedure 1.924, error in jury instructions is waived if not raised before closing arguments are made to the jury. See Iowa R. Civ. P. 1.924 (stating that objections to jury instructions must be made and ruled on before arguments to the jury and that “[n]o other ... objections shall be asserted thereafter, or considered on appeal”); Julian v. City of Cedar Rapids, 271 N.W.2d 707, 708-09 (Iowa 1978) (reversing the district court’s grant of a new trial on grounds not raised before submission of instructions to the jury); Peterson v. First Nat’l Bank of Iowa, 392 N.W.2d 158, 161 (Iowa Ct.App.1986) (same).

Olson failed to expressly object to Instruction 17 or the jury verdict form before closing arguments. Although her counsel did make a timely objection to Instructions 14, 15, and 16, noting that he did not “think there is sufficient evidence to go to the jury on the fault of the plaintiff,” we conclude that objection did not suffice to avoid waiver of Olson’s posttrial challenge to Instruction 17 and the verdict form. Even a timely objection to jury instructions will not avoid waiver of error if the objection is not sufficiently specific. The objecting party must “specify[] the matter objected to and on what grounds.” Iowa R. Civ. P. 1.924. The objection must be “ ‘sufficiently specific to alert the trial court to the basis of the complaint so that if error does exist the court may correct it before placing the case in the hands of the jury.’ ” Boham v. City of Sioux City, 567 N.W.2d 431, 438 (Iowa 1997) (quoting Moser v. Stallings, 387 N.W.2d 599, 604 (Iowa 1986)). And if the objection assails the “sufficiency of the evidence supporting an instruction,” it “must specify that portion of the instruction lacking evidentiary support and the particular factual deficiency.” Id. (holding that a general objection that the evidence was insufficient to submit various instructions to the jury was not adequate to alert the district court to the contention on appeal that the evidence was insufficient to submit pre-death damages to the jury). When measured against these well-established principles, Olson’s objection to Instructions 14,15, and 16 was clearly inadequate to alert the district court to the substance of her alternative posttrial claims that (1) the mitigation defense should not have been submitted to the jury as a component of comparative fault, and (2) the district court erred in failing to employ separate jury verdict forms as suggested by our decision in Greenwood v. Mitchell, 621 N.W.2d 200, 208 (Iowa 2001).

Olson contends her failure to make a specific objection to Instruction 17 and the jury verdict form before closing arguments is excused by Iowa Rule of Civil Procedure 1.924. That rule allows a party to first raise in a motion for new trial an objection to a revised or added jury instruction given by the district court after closing arguments. As we have already noted, Olson’s motion for new trial asserted that the district court’s response to the jury’s question was erroneous because it failed to inform the jury that a percentage of fault for failure to mitigate damages could be assigned to Olson only for the time period after any failure to mitigate commenced. We assume without deciding that the court’s answer to the jury’s question was an “added” instruction and that Olson could raise a timely objection to it in her motion for new trial under rule 1.924. But under the circumstances presented in this case, Olson’s timely posttrial objection to the court’s added instruction was without merit.

The added instruction was completely consistent with the instructions given by the court to the jury without objection before the jury began its deliberations. Instruction 17 informed the jury that “fault” would include any failure by Olson to mitigate her damages. The court’s added instruction merely reconfirmed this for the jury. Instruction 17 had also already informed the jury that a percentage of fault could be allocated to Olson for any failure to mitigate damages during “the time period after the failure to mitigate.” It was therefore unnecessary to restate that temporal limitation in the additional instruction that was given in response to the jury’s question. We find no error in the additional instruction and must reject Olson’s effort to utilize a post-trial motion to resurrect error that was waived by her failure to object before closing arguments to the sufficiency of the evidence to support the mitigation instruction and the adequacy of the jury verdict form.

Olson also contends on appeal that her failure to object before closing arguments to Instruction 17 and the verdict form did not waive error, because the comparative fault defense was asserted by Sumpter. Olson cites no authority for this novel proposition, and we therefore do not consider it. See Iowa R.App. P. 6.14(l)(c).

Because Olson failed in advance of closing arguments to object to jury Instruction 17, the jury verdict form, and the sufficiency of the evidence of her unreasonable failure to mitigate damages, the district court erred in granting a new trial as a consequence of the failure to properly instruct the jury on Sumpter’s mitigation defense.

C. Sufficiency of the Evidence of Comparative Fault.

Olson urges us to affirm the grant of a new trial because the jury’s verdict attributing to her sixty percent of the total fault is not supported by substantial evidence. Although the district court’s post-trial ruling was not based on insufficiency of the evidence supporting the jury’s allocation of fault to the parties, we may uphold the ruling on any ground raised in the district court. DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002). As we have noted above, Olson did articulate a timely challenge to the sufficiency of the evidence supporting Instruction 16, which addressed Sumpter’s claim that Olson was at fault for failing to keep a proper lookout. We therefore now consider whether the grant of a new trial was appropriate for a reason raised by Olson, but not relied on by the district court.

If a jury verdict is not supported by sufficient evidence and fails to effectuate substantial justice, a new trial may be ordered. Bredberg v. Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996). In this case, the jury’s verdict allocating sixty percent of the fault to Olson is supported by sufficient evidence. Olson testified that she noticed Sumpter’s car in his driveway before backing her car onto the street. She further testified that she did not see Sumpter’s car moving backward on his driveway before the collision. After a careful review of the record, we conclude the jury’s allocation to Olson of sixty percent of the causative fault is supported by sufficient evidence in the record. Accordingly, we must reject Olson’s contention that the grant of a new trial should be affirmed for the reason that the evidence of her fault is insufficient to support the jury’s verdict.

III. Conclusion.

Olson failed in advance of closing arguments to object to jury Instruction 17, the jury verdict form, and the sufficiency of the evidence of her unreasonable failure to mitigate her damages. Accordingly, Olson waived any error as to the mitigation defense and the verdict form and is not entitled to a new trial for the reason articulated by the district court. The district court’s additional instruction given in response to the jury’s question was consistent with the substance of the instructions given before deliberations commenced. It was not erroneous and did not resurrect any instructional error that was waived by Olson’s failure to object to Instruction 17 and the verdict form. Because we find substantial evidence supports the jury’s allocation of sixty percent of the causative fault to Olson, the grant of a new trial cannot be sustained on the alternative ground of insufficiency of the evidence of Olson’s fault. We therefore reverse and remand for entry of judgment based on the jury’s verdict.

REVERSED AND REMANDED.

All justices concur except APPEL, J., who takes no part.

      . Sumpter expressly alleged Olson was at fault in failing to (1) wear a seat safety belt or harness and (2) keep a proper lookout. The question of what percentage of fault, if any, should be allocated to Olson as a consequence of her failure to wear a seatbelt was not submitted to the jury because the parties resolved that issue by pretrial stipulation.

      . Instruction 14 provided:
      Damages may be the fault of more than one person. In comparing fault, you should consider all of the surrounding circumstances as shown by the evidence, together with the conduct of the plaintiff and defendant and the extent of the causal relation between their conduct and the damages claimed. You should then determine what percentage, if any, each person’s fault contributed to the damages.
      Instruction 15 provided:
      After you have compared the conduct of all parties, if you find the plaintiff, Robin Olson, was at fault and the plaintiff’s fault was more than 50% of the total fault, the plaintiff, Robin Olson, cannot recover damages. However, if you find the plaintiff’s fault was 50% or less of the total fault, then I will reduce the total damages by the percentage of plaintiff’s fault.
      Instruction 16 provided:
      The defendant claims the plaintiff was at fault in the following particular(s): Failure to keep a proper lookout.
      These grounds of fault have been explained to you in other instructions.
      The defendant must prove both of the following propositions:
      1. The plaintiff was at fault. In order to prove fault, the defendant must prove plaintiff failed to keep a proper lookout.
      2. The plaintiff’s fault was a proximate cause of the plaintiff’s damage.
      If the defendant has failed to prove either of these propositions, the defendant has not proved his defense. If the defendant has proved both of these propositions, then you will assign a percentage of fault against the plaintiff and include the plaintiff's fault in the total percentage of fault found by you answering the special verdicts.

      .Instruction 17 provided:
      Defendant claims plaintiff was at fault for failing to mitigate her damages by not exercising ordinary care to obtain reasonable medical treatment.
      Plaintiff has a duty to exercise ordinary care to reduce, minimize or limit her damages. However, plaintiff has no duty to do something that is unreasonable under the circumstances, such as undergo serious or speculative medical treatment or undertake action which imposes unreasonable inconvenience.
      To prove defendant’s claim of failure to mitigate, he must prove all of the following:
      1. There was something plaintiff could to [sic] do mitigate her damages;
      2. Requiring plaintiff to do so was reasonable under the circumstances;
      3. Plaintiff acted unreasonably in failing to undertake the mitigating activity; and
      4. Plaintiff's failure to undertake the mitigating activity proximately caused an identifiable portion of her damages.
      If the defendant has proved all of these numbered propositions, then defendant has proved this defense, and you shall assign a percentage of fault to the plaintiff for the time period after the failure to mitigate. This amount will be used in answering the special interrogatory in the verdict. If the defendant has failed to prove one or more of these numbered propositions, then defendant has not proved plaintiff failed to mitigate her damages.

      . In Greenwood v. Mitchell, 621 N.W.2d 200, 208 (Iowa 2001), we suggested that the allocation of plaintiff's fault for failure to mitigate damages would best be handled in the event of a retrial through the "use of separate verdict forms for the period prior to the plaintiff's alleged failure to mitigate and for the period that includes the plaintiff's alleged failure to mitigate.”

      . Although not a model of clarity on this point, we interpret Olson’s posttrial motion as an assertion that the additional instruction failed to clearly inform the jury that fault could be attributed to Olson for unreasonable failure to mitigate only for the period after the failure to mitigate commenced.

      . Olson's posttrial motion contended the evidence was insufficient to allocate fault to Olson "in regard to the actual accident” and noted Sumpter’s failure to produce expert testimony tending to prove any unreasonable failure to mitigate damages was a proximate cause of an identifiable portion of Olson’s claimed damages.