author: LEE D. ANDERSON, Circuit Judge. SABERS, Justice

text:
    2001 SD 33
    Garry W. JACOBSON, Plaintiff and Appellee, v. Jeffrey L. GULBRANSEN and Carol L. Gulbransen, Defendants and Appellants.
    Nos. 21266, 21289.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 23, 2000.
    Decided March 14, 2001.

      Steven J. Oberg and Robert Gusinsky of Lynn, Jackson, Shultz & Lebrun, Rapid City, SD, Attorneys for plaintiff and appel-lee.
    Frank Driscoll and Michael V. Wheeler of DeMersseman Jensen, Rapid City, SD, Attorneys for defendants and appellants.
   LEE D. ANDERSON, Circuit Judge.

[¶ 1.] Jeff and Carol Gulbransen (Gul-bransens) appeal from a judgment in a civil action tried to the court. The trial court concluded that there was an enforceable agreement between Gulbransens and Garry Jacobson (Jacobson) for the sale of land and ordered Gulbransens to convey the land to Jacobson. On appeal, Gulbran-sens contend that there was no agreement between the parties or, alternatively, that the statute of frauds bars enforcement of the agreement. We affirm.

FACTS

[¶ 2.] Jacobson and Gulbransens are landowners in the Black Hills of South Dakota. They own land abutting on the south and north sides, respectively, of a parcel of land outside of Keystone, South Dakota that once belonged to the United States Forest Service. The Forest Service sold the property to Gulbransens in July 1997 in accordance with 16 USC § 521(c) et seq. These provisions permit the sale of small, difficult to manage parcels of land when the sale is in the public interest. The Forest Service conditioned the sale of any such parcel upon approval by all contiguous landowners.

[¶ 3.] Mr. Gulbransen contacted the Forest Service in 1993 after learning of the possibility of purchasing the parcel at issue in this appeal. Told that all adjoining landowners would have to approve the sale, Gulbransen contacted his immediate neighbors while the Forest Service contacted other adjoining landowners including Jacobson and John Kinkead. Jacobson objected to the sale and reported his objections to the Forest Service. Jacobson had used two existing roads across the parcel for access to a remote portion of his own property and as an alternate egress route in case of a forest fire. To preserve these uses, Jacobson preferred that the land not be sold or developed.

[¶ 4.] The Forest Service informed Gul-bransens of Jacobson’s objections and' directed that the objections be resolved before Gulbransens’ application to purchase the land would be considered. Gulbran-sens were also informed that, unless the objections were resolved before March 31, 1994, the District Ranger would recommend to the Forest Supervisor that the land not be sold.

[¶ 5.] Gulbransen arranged a meeting with Jacobson and Kinkead to discuss their objections. At that meeting, he showed them a rough topographical map the Forest Service had given to him that depicted the area in question. The three men discussed the proposed sale and which piece of the parcel of land each of them would want if the sale took place. Asked to identify the piece he wanted, Jacobson pointed out a window of Gulbran-sen’s house that faced south and indicated that was the land he wanted. Gulbransen mentioned that he and his wife wanted the five acres nearest their land and also mentioned their concerns about financing the purchase of such a large parcel of land. At the time of this discussion, the size of the parcel was thought to be around thirty acres. A later survey revealed it was only about twenty acres.

[¶ 6.] Subsequently, Gulbransen drew up and signed a document that he sent to Kinkead, Jacobson and another adjoining landowner. The document read:

This is to confirm agreement on the sale/transfer of property from the Small Tracts Act case # 0207 to (name). At this date, exact surveys are not known or located, however I will convey areas sought by the McNulty’s, Kinkead’s and Mr. Jacobson. (McNulty’s seeking areas between their property and Kin-kead’s, Kinkead’s below their home to gate to mine, and Mr. Jacobson property located on the South end of the tract.) Property will be located and sold to requesting parties at sale price obtained from the Forest Service plus price of survey and cost of mineral claims located on said property. I am in agreement with requests and will work with adjacent landowners to satisfy their requests.

Upon receiving this document, Kinkead inserted a detailed description of the land he sought, signed it and forwarded it to the Forest Service. Jacobson signed the agreement and forwarded it to the Forest Service without any addition to the description of the land.

[¶ 7.] The Forest Service completed the sale of the land to Gulbransens in July 1997. Some months later, Gulbransen and Jacobson met to walk the land and to set the boundary, but were unable to agree on the land to be conveyed to Jacobson. This suit followed with Jacobson seeking specific performance against Gulbransens.

[¶ 8.] The trial court found Gulbransen was not a credible witness based on both the substance of his testimony and his demeanor. However, it found Jacobson was a very credible witness. With respect to the sale, the trial court determined it was in Jacobson’s self-interest to maintain the status quo and that he withdrew his objections to the sale out of courtesy to Gulbransen and in reliance upon the agreement between the parties. Additionally, the court determined Gulbransen refused to convey the land because the final size of the parcel was smaller than expected and thus, financing was less of an issue for him. In addition, land values had increased dramatically during the period between the initial negotiations and the time for conveyance.

[¶ 9.] Based upon the evidence and testimony, the trial court concluded there was an agreement between the parties to convey the south end of the parcel consisting of all but five acres retained by Gulbran-sens and other small parcels requested by other neighbors. The court decreed specific performance of this agreement. The original judgment also awarded attorney’s fees as damages. The trial court subsequently vacated this judgment and entered an amended judgment denying the attorney’s fees.

[¶ 10.] Gulbransens appeal the trial court’s finding of an agreement for the conveyance of land and its decree of specific performance. By notice of review, Jacobson challenges the court’s denial of attorney’s fees.

STANDARD OF REVIEW

[¶ 11.] Our review begins with the findings of fact and a determination of whether the findings support the conclusions of law. Unless shown to be clearly erroneous, a trial court’s findings of fact will not be disturbed. Geraets v. Halter, 1999 SD 11, ¶ 12, 588 N.W.2d 231, 233. Conclusions of law are reviewed de novo. Id. at 234.

DECISION

[¶ 12.] There was an enforceable agreement between the parties.

[¶ 13.] The trial court’s determination that there was an agreement between the parties was based on the evidence and testimony presented at trial. When, as here, the court’s conclusions are so grounded, they will be reviewed with great deference. See e.g., Jeschke v. Wockenfuss, 534 N.W.2d 602, 604 (S.D.1995) (credibility of witnesses and weight accorded their testimony is for the trial court and we accept that version of the evidence and any reasonable inferences favorable to the trial court’s determination).

[¶ 14.] The trial court found Jacobson and the reasons given for his conduct were more credible than Gulbransen and the reasons supplied for his conduct. Because these findings are sufficiently based on the evidence and because the trial court is in the best position to judge the credibility of witnesses and to resolve disputes of fact, they will not be disturbed.

[¶ 15.] To be enforceable under South Dakota’s statute of frauds, a contract for the sale of land or some memorandum of the agreement must be in writing.

The following contracts are not enforceable by action unless the contract or some memorandum thereof is in writing and subscribed by the party to be charged or his agent, as authorized in writing:
(3) An agreement for sale of real estate or an interest therein, or lease of the same, for a period longer than one year. However, this does not abridge the power of any court to compel specific performance of any agreement for sale of real estate in case of part performance thereof[.]

SDCL 53-8-2. If the writing is a memorandum, it must describe the land, the price and the parties to the contract. Amdahl v. Lowe, 471 N.W.2d 770, 774-775 (S.D.1991). It is not necessary that it provide a precise description of the land. Id. at 775. To be sufficient, the description must merely be clear enough for extrinsic evidence to precisely identify the land. Id. “A general description of the land which is the subject of the contract is sufficient, and parol evidence may be admitted to provide the more particular description.” Id. There is no dispute that the memorandum confirming the agreement for the sale of property was signed by Gulbransen and Jacobson. This writing meets the requirement of the statute of frauds that there be written evidence that the parties reached an agreement.

[¶ 16.] Gulbransen argues that the description of land in the memorandum was indefinite or uncertain and that this resulted in an unenforceable agreement. The memorandum described the land to be conveyed to Jacobson as “the south end of the tract” and stated that, “I [Gulbransen] will convey areas sought by ... Mr. Jacobson.” The memorandum concluded with the statement that, “I am in agreement with their requests and will work with adjacent landowners to satisfy their requests.” The trial court also allowed parol evidence of the parties’ discussion to more precisely identify the parcel to be conveyed and all parties testified as to the land constituting that parcel. The trial court found Jacobson to be a very credible witness and found Gulbransen was not credible “based on the substance of his testimony as well as his demeanor while testifying.”

[¶ 17.] This Court has stated that: SDCL 53-8-2 requires that an agreement for the sale of real property be in writing, and subscribed by the party to be charged, before the agreement will be enforceable. The agreement itself need not be the writing relied upon, a memorandum evidencing the obligation is sufficient. SDCL 53-8-2. “The memorandum serves to furnish written evidence of the obligation to be enforced against the party who subscribes his name to the memorandum; that is, a memorandum is not required to make a contract but merely to evidence in uniting that a contract has been entered into.” The memorandum need not embody the exact terms of the contract; “it is sufficient that the substance of a contract for the purchase of real property is inferred from the writing!]”

Wiggins v. Shewmake, 374 N.W.2d 111, 114 (S.D.1985)(emphasis added) (citations omitted).

[¶ 18.] “A general description of the land which is the subject of the contract is sufficient, and parol evidence may be admitted to provide the more particular description.” Amdahl, 471 N.W.2d at 775. Further, a property description giving the grantor or grantee the right to pick a certain acreage is not indefinite. See Holland v. Windsor, 461 P.2d 47 (Wyo.1969); Delaney v. Shellabarger, 76 Nev. 341, 353 P.2d 903 (1960).

[¶ 19.] Here, the trial court found that, based on the writing, the surrounding circumstances and the testimony, the agreement of the parties was to allow Gulbran-sens to select five acres around their house and, except for small parcels sold to others, to convey the remaining acreage in the southern portion of the property to Jacobson. Moreover, the trial court found that the construction of the contract urged by Gulbransens, i.e. that the agreement was to convey only the southeast corner of the parcel to Jacobson, was inconsistent with the writing and conversation that took place when the parties reached their agreement. The language of the agreement specified that the south end would be sold to Jacobson. Gulbransen’s construction of the agreement as covering only the southeast corner contradicted that language.

[¶ 20.] More to the point, the trial court concluded that construing the agreement to require the sale of the entire southern end of the parcel was the only construction that would make sense in light of Jacobson’s conduct. When he originally heard of the planned sale of the parcel, Jacobson wrote to Paul Ruder, the Forest Service Ranger, objecting to the sale because he did not want the land sold or developed. It was to Jacobson’s advantage to have the Forest Service own the land because, under Forest Service ownership: he had access to nearly inaccessible land that he owned; he had an alternate escape route through the land in case of fire; and, as the trial court noted, he had these advantages without the burdens of owning the land himself. Jacobson had it in his power to continue to object to and, thus, block the sale. Instead, he agreed to withdraw his objections in exchange for the southern end of the parcel excluding the five acres abutting Gulbransens’ land.

[¶ 21.] Jacobson’s actions enabling the Forest Service’s sale of the land to Gul-bransen to go forward make no sense absent the assumption that he would retain the benefits he sought to protect when he objected to the sale. The trial court found it was not credible that Jacobson would surrender these advantages for no more than the southeast corner of the parcel.

[¶ 22.] To form a contract, there must be a meeting of the minds or mutual assent on all essential terms. Read v. McKennan Hosp., 2000 SD 66, ¶ 23, 610 N.W.2d 782, 786. Whether the parties had such a meeting of the minds is a question of fact. See Lawrie v. Riss & Co., 248 F.2d 256, 259 (8th Cir.1957) (whether or not there was a meeting of the minds was a question of fact for the trial court to determine). Whether there was mutual assent is determined by looking at the words and conduct of the parties. Read, 2000 SD 66 at ¶ 25, 610 N.W.2d at 786.

[¶ 23.] The trial court determined there was mutual assent to a contract between the parties for the sale of the parcel of land in this case. It made this determination based upon the memorandum, the surrounding circumstances and the parties’ testimony. The contract between the parties allowed Gulbransens to select and retain five acres around their house and, except for small parcels sold to other neighbors, required them to convey the remaining acreage in the southern portion of the property to Jacobson. The trial court was correct in its finding of mutual assent to this contract and in determining that an enforceable agreement existed.

[¶ 24.] Promissory estoppel also removes the agreement from the statute of frauds.

[¶ 25.] The trial court further determined that the doctrine of promissory estoppel or detrimental reliance removed the parties’ agreement from the statute of frauds. Jacobson, in reliance on the agreement that Gulbransen would convey the south end of the Forest Service parcel to him, allowed the sale to go through by withdrawing his objections and by so notifying the Forest Service. His conduct grew out of the agreement and was directly referable to it.

[¶ 26.] The role of the statute of frauds is an evidentiary one. “[T]he purpose of the statute ... is to remove ... uncertainty ... by providing written evidence of an enforceable obligation.” Sabhari v. Sapari, 1998 SD 35, n. 9, 576 N.W.2d 886, 893. The statute of frauds will not, however, be used to work an injustice. See Matter of Estate of Gosmire, 331 N.W.2d 562 (S.D.1983) (grantors, through partial performance of their obligation, removed oral contract to convey land from statute of frauds). Jacobson, in reliance upon his agreement with Gulbransens, withdrew his opposition to the sale of the land by the Forest Service and, thus forfeited the benefits he received from Forest Service ownership. Such detrimental reliance takes the agreement out of the statute of frauds. See Farmers Elevator Co. of Elk Point v. Lyle, 90 S.D. 86, 238 N.W.2d 290, 293 (1976) (doctrine of promissory estoppel prevented party from asserting statute of frauds defense); Matter of Estate of Williams, 348 N.W.2d 471, 475 (S.D.1984) (estoppel arises where conduct or acts induce a party to alter his position or to do what he otherwise would not have done to his prejudice). See also Scott v. Hyde, 440 N.W.2d 528, 531 (S.D.1989) (this court has recognized the doctrine of promissory estoppel where a party has detrimentally relied on the promise of another).

[¶ 27.] The elements of promissory estoppel or detrimental reliance are, “ ‘[a] promise which the promissor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance[.]’ ” Scott, 440 N.W.2d at 531 (quoting Valley Bank v. Dowdy, 337 N.W.2d 164, 165 (S.D.1983)). Such a promise is binding “ ‘if injustice can be avoided only by enforcement of the promise.’ ” Id. In this case, the parties entered into an agreement that Gulbran-sens would retain the five acres next to their land, Kinkead and others would get the land next to their properties and Jacobson would get the remaining property in the southern end of the parcel. This agreement was reached so the land would be sold by the Forest Service to Gulbran-sen; i.e., the promise to convey was made to induce Jacobson to withdraw his objections to the sale.

[¶ 28.] As a direct result of the agreement, Jacobson did withdraw his objections and the sale of the parcel to Gul-bransens occurred. This Court has held that, where there is such reasonable reliance upon a promise, the promisee is entitled to specific performance.

An oral promise to convey real property is enforceable by specific performance where the grantee has partially performed or has acted in reliance upon the promise of the grantor in such a manner that it would invoke a fraud or prejudice against the grantee not to grant specific performance thereon.

Gosmire, 331 N.W.2d at 567. The trial court correctly determined that Jacobson acted in reasonable reliance on Gulbran-sen’s promise to convey the southern portion of the Forest Service parcel, thus taking the agreement out of the statute of frauds. The agreement was enforceable under the doctrine of promissory estoppel.

[¶ 29.] Specific performance is “[t]he presumed remedy for the breach of an agreement to transfer real property!.]” Wiggins, 374 N.W.2d at 115. The trial court was correct in decreeing specific performance.

[¶ 30.] An award of attorney’s fees is inappropriate in this case.

[¶ 31.] The trial court ultimately declined to award attorney’s fees to Jacobson, the prevailing party. An award of attorney’s fees is not the norm. The party requesting such fees has the burden to show, by a preponderance of the evidence, the basis for such an award. See State ex rel. Steffen v. Peterson, 2000 SD 39, ¶ 30, 607 N.W.2d 262, 271 (party filing motion for award of attorney’s fees has burden of proving entitlement to award by preponderance of evidence). Furthermore, this Court has said that, ‘“[a]s a rule, attorney fees may only be awarded by contract or when explicitly authorized by statute.’ ” Matter of Estate of O’Keefe, 1998 SD 92, ¶ 17, 583 N.W.2d 138, 142 (citations omitted). Jacobson argues he is entitled to attorney’s fees because the lawsuit was induced by Gulbransens’ fraud. He urges this Court to carve out an exception to the rule barring such awards. We decline to create such an exception.

[¶ 32.] Affirmed.

[¶ 33.] AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 34.] SABERS, Justice, concurs in part and dissents in part.

[¶ 35.] LEE D. ANDERSON, Circuit Judge, for MILLER, Chief Justice, disqualified.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 36.] I concur in all respects except for the denial of damages to Jacobson resulting from Gulbransen’s fraud in the form of attorney’s fees. These attorney’s fees were directly caused by Gulbransen’s fraud and his refusal to deed the property to Jacobson, and constitute Jacobson’s damages. The majority opinion incorrectly characterizes Jacobson’s attempt to recover these damages under these facts as an attempt to carve out a new exception to the rule barring such recovery. Therefore, I dissent as to issue 3.

[¶ 37.] As a general rule, attorney’s fees may only be awarded by contract or when explicitly authorized by statute. O’Connor v. King, 479 N.W.2d 162, 166 (S.D.1991). Yet, “[i]n singular circumstances we have allowed attorney[’s] fees as damages, though not expressly authorized by statute.” Schuldies v. Millar, 1996 SD 120, ¶ 37, 555 N.W.2d 90, 100. In so doing, we have recognized a limited exception allowing the recovery of attorney’s fees as damages for a party attempting to recovery property wrongfully converted by another. Colton v. Decker, 540 N.W.2d 172, 178 (S.D.1995). See generally, Dan B. Dobbs, Law of Remedies § 3.10(3) (2d Ed. 1993) (outlining exceptions to the general rule); John Leusdorf, Recovering Attorney’s Fees as Damages, 38 Rutgers L. Rev. 439 (1986). The facts in this case clearly support the application of this rationale.

[¶ 38.] A party is entitled to recover attorney’s fees as damages for a party’s wrongful conversion of property. These “pursuit” expenses include attorney’s fees, as those fees properly flow from the act of recovering property wrongfully dispossessed. See Rollins v. Leibold, 512 P.2d 937, 945 (Alaska 1973); Motors Ins. Corp. v. Singleton, 677 S.W.2d 309, 315 (Ky.Ct.App.1984); Fulks v. Fulks, 95 Ohio App. 515, 121 N.E.2d 180, 182 (1953); Schuldies, 1996 SD 120 at ¶48, 555 N.W.2d at 100 (Sabers J., concurring).

[¶ 39.] In this case, SDCL 20-10-1 provides in part that “[o]ne who willfully deceives another ... is liable for any damage which he thereby suffers.” (emphasis added). The legislature did not exempt Gulbransen from any damage except attorney’s fees, and we should not either. In Colton, 540 N.W.2d at 178, we stated that attorney’s fees were reasonable expenses incident to recovering clear title to an impounded vehicle. The statutory authority we relied upon in Colton provided that the party should recover for their reasonable expenses resulting from the failure to provide clear title. See SDCL 57A-2-715. That statutory authority does not specifically grant attorney’s fees but utilizes language similar to SDCL 20-10-1 by providing recovery for “expenses reasonably incurred,” “any other reasonable expenses,” and resulting from “any loss” or “any breach.” This rationale is equally applicable to granting attorney’s fees as damages under SDCL 20-10-1 on these facts.

[¶ 40.] Jacobson was forced to incur substantial legal expenses as a result of Gulbransen’s attempt to keep the property he previously agreed to convey. This is particularly egregious conduct as Gulbran-sen was permitted to make this purchase only because he fraudulently obtained Jacobson’s approval to the proposed sale. After Jacobson gave his approval, Gul-bransen refused to sell the identified property pursuant to the agreement. Gulbran-sen’s fraudulent conduct forced Jacobson to bring an action for specific performance forcing Gulbransen to convey the property as agreed. The majority opinion recognizes Jacobson was legally entitled to the property. Gulbransen’s actions are tantamount to the conversion of the property-identified for sale to Jacobson. Jacobson’s damages were suffered in pursuit of the property he was entitled to purchase, and attorney’s fees as damages are recoverable in this circumstance.

[¶ 41.] I would reverse and remand for a determination of the reasonable amount of attorney’s fees as damages reasonably incurred or expended to recover the property.


source: Caselaw Access Project

author: MAHAN, J.

license: Public Domain

text:
    Patricia RINIKER and Michael Riniker, Plaintiffs-Appellees/Cross-Appellants, v. John P. WILSON, Defendant-Appellant, and Wilson Bros.-Dubuque, Inc., Defendant/Cross-Appellee.
    No. 99-1684.
    Court of Appeals of Iowa.
    Dec. 13, 2000.

      Michael J. Coyle and Norman J. Wang-berg of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for appellant.
    John L. Riccolo and David L. Baker of Riccolo and Baker, P.C., Cedar Rapids, for appellee.
    Heard by SACKETT, C.J., and HUITINK and MAHAN, JJ.
   MAHAN, J.

Defendant, John P. Wilson, appeals from the district court judgment entered on a jury verdict in favor of plaintiffs on claims for assault, battery, intentional infliction of emotional distress, and loss of consortium. Wilson contends the district court (1) erred in failing to rule the claims were barred by the statute of limitations; (2) prejudicially erred in submitting an incomplete and unbalanced statute of limitations jury instruction; (3) erred by not instructing the jury on a defense of consent; (4) prejudicially erred in defining willful and wanton disregard in the jury instructions, effectively allowing an award of punitive damages based only on negligence; and (5) abused its discretion in failing to order a new trial on grounds of an excessive verdict. Plaintiffs cross-appeal from the district court’s ruling dismissing their claims against defendant Wilson Bros.-Dubuque, Inc. We affirm.

I. Background Facts and Proceedings. Defendant John P. Wilson (Wilson) is general manager and salesman at Wilson Bros.-Dubuque, Inc. (Wilson Bros.), a business he and his father own. Plaintiffs Patricia Riniker and Michael Riniker are husband and wife. Wilson Bros, employed Michael Riniker from 1988 to 1996. Patricia and Michael, as “Jane and John Doe,” filed a petition on November 6, 1996, alleging between June 1991 and November 1994, John P. Wilson sexually abused, harassed, assaulted, battered, and threatened to harm and/or kill Patricia. According to plaintiffs, John P. Wilson threatened to fire Michael and/or take away Patricia and Michael’s youngest son if Patricia did not consent to the sexual demands made by Wilson. Plaintiffs contended the conduct of John P. Wilson was imputed to Wilson Bros., by virtue of Wilson’s use of his position as vice president of Wilson Bros, and as Michael’s employer to make his demands on Patricia. To support this contention further, plaintiffs also alleged incidents occurred on the premises of Wilson Bros,, and in vehicles owned by Wilson Bros. The petition alleged five causes of action against John P. Wilson and Wilson Bros.: (1) negligence, (2) assault and battery, (3) intentional infliction of emotional distress and/or reckless disregard, (4) sexual abuse, and (5) loss of consortium. Defendants denied the allegations, and in an amendment to their answer, raised the affirmative defenses of statute of limitations and consent.

Trial began on May 18, 1999. At trial, Patricia testified Wilson sought out and raped her violently in June 1991 and continued to terrorize her for three and one-half years with threats and acts of violence. She testified Wilson assaulted her forty to fifty times between June 1991 and November 1994. She was still remembering bits and pieces of various incidents at the time of trial. The threats allegedly included threats against her life, threats to take away her youngest child, and threats to terminate Michael’s employment. John Wilson testified he and Patricia engaged in sexual relations as consenting adults and denied using threats or force. According to Wilson, the affair ended prior to Labor Day 1994.

Patricia testified about two face-to-face meetings with Wilson in November 1994. According to Patricia, the last sexual encounter took place in early or mid-November. In late November, Patricia met with Wilson at Wilson Bros, and told him it was over. She stayed inside her car with the doors locked during the encounter, while Wilson remained outside the car. She claimed Wilson verbally threatened her during this encounter, and continued to call her for a period of time afterwards.

In 1995, after consulting with an attorney, Patricia went to the police. The police attempted a sting operation. Patricia met Wilson and tried to elicit an incriminating statement from him. When Patricia confronted Wilson, he repeatedly stated he did not know what she was talking about. The police closed their investigation. Patricia met with five lawyers and several detectives before meeting with Dr. Sanni-to.

Dr. Sannito and Dr. Beckman examined Patricia in 1996. During his March 1996 examination, Dr. Sannito concluded Patricia was clinically depressed. In Dr. Sanni-to’s opinion, she would not have entered into a consensual affair with Wilson. He did not observe a woman “scorned and out to get the guy that put her off.” Given her status as a “psychological captive” of Wilson, Dr. Sannito stated he would expect Patricia to do things that outwardly looked like she was trying to please Wilson and not anger him. Dr. Beckman, after his May 1996 examination, diagnosed Patricia with depression and post traumatic stress syndrome. He gave her an article about “Stockholm Syndrome,” a condition observed when people held hostage go along with the hostage-taker. According to Dr. Beckman, these individuals have a difficult time explaining to themselves why they would put up with the situation for so many years.

Michael Riniker testified between 1991 and 1994, he and Patricia gradually drifted apart, and their sex life diminished greatly. She became more and more withdrawn. Michael assumed Patricia’s demeanor was due to something he did. Michael testified he was unhappy with his employment at Wilson Bros, as early as 1991. In 1990, he became service manager, but was demoted in 1992. John Wilson testified Wilson Bros, hired its competitor’s service manager with twenty-three years experience in 1992, at a time when Michael had only two years experience. Michael’s title changed from service manager to service adviser. Wilson denied Michael’s pay decreased when the new service manager came. Wilson explained sometime after Wilson Bros, implemented a bonus system a mistake was made in the amount paid to Michael. He was overpaid and was required to pay part of the overpayment back.

Employees at Wilson Bros testified they observed Patricia at the dealership quite often. She would have her children with her, and would spend most of her time in Wilson’s office. She called Wilson often, at work and on his car phone. According to the employees, Wilson eventually began trying to avoid Patricia when she came in or called. Witnesses testified Patricia was usually in a good mood and laughing when she was in Wilson’s office.

The trial court sustained defendants’ motion for directed verdict as to the corporation, Wilson Bros., but overruled the motion as to John P. Wilson. On May 25, 1999, the jury returned a special verdict, finding John P. Wilson assaulted, battered, and inflicted severe emotional distress upon Patricia Riniker on or after November 6, 1994. The jury awarded Patricia $300,000 for past and future mental pain and suffering, and $450,000 in punitive damages. It awarded Michael Riniker $100,000 for past and future loss of consortium. The trial court entered judgment on May 28, 1999. The trial court overruled defendant John P. Wilson’s motions for judgment notwithstanding the verdict and a new trial. Defendant John P. Wilson appeals, and the Rinikers cross-appeal.

II. “Jane and John Doe” Petition. The last incident giving rise to plaintiffs’ cause of action allegedly occurred in November 1994. Plaintiffs filed a “Jane and John Doe” petition on November 6,1996. Plaintiffs disclosed their identity on or about December 28, 1996, by affidavits in response to defendants’ interrogatories. Plaintiffs never filed a petition or amendment naming Rinikers as plaintiffs. The trial court granted defendants’ “motion to substitute names of parties” on May 10, 1999, forcing plaintiffs to use their real names at trial.

Wilson argues Rinikers’ petition did not toll the statute of limitations because the Rinikers never obtained a court order permitting them to proceed anonymously. Wilson contends one must obtain a court order in order to proceed by a “Doe” plaintiff petition.

Iowa law does not specifically provide for “Jane Doe” plaintiff petitions. Wilson concedes no rule or statute addresses the issue of filing anonymous petitions. However, Iowa courts have allowed, without comment, the use of “Jane Doe” pleadings. Doe v. Cherwitz, 518 N.W.2d 362 (Iowa 1994) (plaintiff alleged sexual assault by defendant); Doe v. Johnston, 476 N.W.2d 28 (Iowa 1991) (plaintiff alleged malpractice after contracting AIDS from blood transfusion during surgery); Doe v. Iowa State Bd. of Physical Therapy and Occupational Therapy Exam’rs, 320 N.W.2d 557 (Iowa 1982) (petitioner, licensed physical therapist, claimed she had a right to know the name of a person who complained about her to respondent); Doe v. Ray, 251 N.W.2d 496 (Iowa 1977) (patients at mental health institute brought class action to enjoin defendant from modifying a building at the institute for use as a minimum security correctional facility); Doe v. Iowa R. Land Co., 54 Iowa 657, 7 N.W. 118 (1880) (action to recover land).

Rinikers argue the Iowa Supreme Court implicitly has approved “Doe” petitions by virtue of the Iowa “Doe” cases. We disagree. The cases make no mention of the procedure, if any, followed by plaintiffs in filing a “Doe” petition. It is impossible to determine from these cases whether the “Doe” party obtained prior approval from the district court to proceed anonymously. The issue was never raised in these cases, and we refuse to interpret the court’s silence as an implicit approval of such petitions.

Wilson urges this court to establish a rule requiring those filing “Doe” petitions to first obtain prior court approval. He cites Doe v. Bodwin, 119 Mich.App. 264, 326 N.W.2d 473 (1982), to support his contention a person seeking to proceed anonymously must seek the court’s approval. In Bodwin, “Jane Doe” filed a petition against a psychologist, alleging he had sexual intercourse with her during therapy. The defendant moved to require plaintiff to identify herself. “Jane Doe” moved to suppress her name from public disclosure pursuant to a local court rule. The Michigan Court of Appeals reversed the trial court’s refusal to grant plaintiff the 'right to proceed anonymously. The court discussed the need to balance one’s right to privacy against “the customary and constitutionally embedded presumption of openness in judicial proceedings.” Bodwin, 326 N.W.2d at 475 (citation omitted). It left the decision whether to permit the use of fictitious names to the discretion of the trial court, but found the trial court had not exercised its discretion in this case. Id. at 475-76. In reaching its decision, the court cited a local rule, which it concluded “tempered” a state statute mandating the title of an action include the names of all the parties. Id. at 476.

As one legal scholar explains:

Like courts trying to decide whether to seal a record, federal and state courts that have squarely addressed the issue of plaintiff anonymity have not been able to come up with a precise rule as to when anonymity should be allowed. A few courts have taken the hard line approach that anonymity is never allowed, and held that no action can be commenced by the filing of a complaint in which the names of all plaintiffs are fictitious. The majority of courts, however, have entered into a delicate balancing of the plaintiffs’ privacy interests, the defendants’ right to exoneration, and the public’s right of access to trials and court records.

Adam A. Miliani, Doe v. Roe: An Argument for Defendant Anonymity When a Pseudonymous Plaintiff Alleges a Stigmatizing Intentional Tort, 41 Wayne L.Rev. 1659, 1677-78 (1995) (footnotes omitted).

We find persuasive Wilson’s argument courts should be required to balance the relative interests of the parties and the public before granting a plaintiff permission to proceed anonymously. We decline, however, Wilson’s invitation to retrospectively impose such a rule on these plaintiffs. We leave it up to the legislature and/or our supreme court to establish rules regarding the use of “Doe” plaintiff petitions in the courts of this state. See State v. Rhomberg, 516 N.W.2d 803, 805 (Iowa 1994) (“A proposed change in the law, if desired, is in the province of the legislature.”); Caylor v. Employers Mut. Cas. Co., 337 N.W.2d 890, 894 (Iowa App. 1983) (“As the law stands, however, no such provision has been made by the legislature, and it is not the province of the court to enact such a provision.”).

Both parties urge the court to consider Iowa Rule of Civil Procedure 69 regarding amendments to the petition in conjunction with the court’s order forcing the Rinikers to use their proper names at trial. Wilson contends replacing “Jane and John Doe” with the Rinikers’ names was a change of party subject to Iowa Rule of Civil Procedure 69(e). Rule 69(e) simply does not apply under these circumstances, however, because Rinik.ers never attempted to amend the petition. Therefore, we will not address the merits of either party’s argument in regard to rule 69(e).

We conclude no prejudice resulted from Rinikers’ failure to amend and change party names before the eve of trial. Rinikers assert Wilson’s counsel knew their identities when he accepted service on November 6, 1996, the day the petition was filed. Wilson could have determined the parties’ identities from allegations found in the petition:

5. Plaintiff John Doe has been an employee in the Service Department of Defendant Wilson Bros, since approximately August 1988.
6. Beginning in approximately June 1991, and continuing through November 1994, the Defendant John P. Wilson sexually abused, harassed, assaulted, battered, and threatened to harm and/or kill the Plaintiff, Jane Doe. Defendant John P. Wilson also threatened to fire Plaintiff Jane Doe’s husband, John Doe, and/or take away Plaintiffs’ youngest son if Plaintiff Jane Doe did not consent to the sexual demands made by Defendant John P. Wilson.

These two allegations alone should have made Rinikers’ identities obvious to Wilson. In addition, the record indicates Wilson knew the Rinikers’ identities by December 23, 1996, approximately one month after Rinikers filed the petition.

Given the facts in this case, we cannot conclude Wilson was prejudiced by Rinik-ers’ attempt to remain anonymous. No procedure exists for the filing of “Jane Doe” petitions in Iowa, and we defer to the legislature and/or our supreme court to make such rules. Even if we were to impose a requirement of prior court approval upon those seeking to proceed anonymously, we could not impose such a procedure upon these plaintiffs retroactively. We affirm the district court’s denial of Wilson’s motion for directed verdict on this issue.

III. Jury Instructions. We review objections to jury instructions on assigned error. Iowa R.App.P. 4; Grefe & Sidney v. Watters, 525 N.W.2d 821, 824 (Iowa 1994). The only grounds for objections we may consider on appeal are those specified in objections to the trial court. Shepherd Components, Inc. v. Brice Petrides-Donohue & Assocs., Inc., 473 N.W.2d 612, 618 (Iowa 1991). To preserve error for our review, a party must specify the subject and grounds of the objection. Iowa R.Civ.P. 196; Sievers v. Iowa Mut. Ins. Co., 581 N.W.2d 638, 638 (Iowa 1998). The objection must be sufficiently specific to alert the district court to the basis for the complaint so, if error does exist, the court may correct it before placing the case in the hands of the jury. Grefe & Sidney, 525 N.W.2d at 824. A party therefore may not amplify or change the grounds on appeal. Sievers, 581 N.W.2d at 638.

We read the court’s instructions as a whole when determining whether there has been error. Grefe & Sidney, 525 N.W.2d at 824. We review to decide if the jury instructions are correct statements of the law and are supported by substantial evidence. Id.; State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996). As long as a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court must give the requested instruction. Foggia v. Des Moines Bowlr-O-Mat, Inc., 543 N.W.2d 889, 892 (Iowa 1996). If the trial court errs in submitting or refusing to submit an instruction, we will reverse only if the error has caused prejudice. Kessler v. Wal-Mart Stores, Inc., 587 N.W.2d 804, 806 (Iowa App.1998).

A. Statute of Limitations. The district court ruled the alleged negligent acts of Wilson were ongoing and continuous, and therefore limited recovery to those actions accruing during the statutory period, two years, preceding the inception of the action for damages. See Hegg v. Hawkeye Tri-County REC, 512 N.W.2d 558, 559-60 (Iowa 1994). Therefore, Rin-ikers could not recover damages caused by alleged conduct more than two years before filing the petition on November 6, 1996. Instruction 17 provided:

Defendant, for further defense, relies upon the Iowa Statute of Limitations. Under this law, Plaintiffs may only recover damages for acts of the Defendant committed within 2 years of the date of the filing by Plaintiffs of their Petition in this court.
The Petition was filed on November 6, 1996. The burden of proof is upon the Defendant to prove the facts that make this defense applicable.
Plaintiffs may not recover damages arising out of any acts of the Defendant which occurred before November 6, 1994.

Wilson argues the instruction is unbalanced and incomplete.

As a preliminary matter, we must address Rinikers’ assertion Wilson failed to preserve error on this issue. For its objection to instruction 17, Wilson argued:

MR. COYLE: Next, to Instruction 17. We believe our requested instruction dealing with the Statute of Limitations which is annotated is more complete and balanced, while the Court’s intended instruction is bare bones. It should be fleshed out as we have proposed.
THE COURT: Your instruction didn’t place the burden of proof upon yourself. Did you know that Mr. Coyle?
MR. COYLE: Oh, I might have known that. If you add that sentence to it, it would be perfect.
THE COURT: Okay.

We conclude Wilson preserved error on this issue. Wilson’s proposed instruction, combined with his argument to the court, provides a sufficient indication of his objection to the court’s instruction.

Where the wrongful act is continuous or repeated, so separate and successive actions for damages arise, the statute of limitations runs as to these later actions at the date of their accrual. Hegg, 512 N.W.2d at 559. In a continuing tort, the burden of segregating damages arising before and after the commencement of the limitation period falls on the defendant. Earl v. Clark, 219 N.W.2d 487, 491 (Iowa 1974). The trial court correctly placed the burden of proving the statute of limitations defense upon Wilson. See also Saemisch v. Ley Motor Co., 387 N.W.2d 357, 359 (Iowa 1986) (“We believe that Ley, which interposed the time limitation defense, has the burden of proof on the issue.”). We conclude the statute of limitations instruction was a correct statement of the law and did not cause prejudice to Wilson. Therefore, we affirm the trial court on this issue.

B. Consent. Wilson proposed the following instruction:

Defendants claim that Plaintiff consented to the sexual encounters. Consent is a complete defense. A person consents to otherwise offensive and potentially injurious bodily contact when the person voluntarily indicates, by words or conduct, her invitation of, agreement to or acceptance of such bodily contact.

The trial court ruled the words “or against her will,” found in the court’s battery instruction, incorporated the issue of consent. Wilson argues he was entitled to a separate instruction on consent. Rinikers contend Wilson failed to preserve error, thereby waiving the issue.

We find it questionable whether Wilson preserved error on this issue. Even if he did preserve error, however, we conclude the issue of consent was incorporated in the trial court’s other instructions. The trial court instructed the jury in order to prove the claim of battery, Rinikers must prove “[t]he defendant had sexual relations with Patricia Riniker by force or against her will.” Similarly, the trial court instructed the jury in order to prove the claim of assault, Rinikers must prove: (1) the defendant threatened to kill .or injure Patricia Riniker; (2) the act was done with the intent to put Patricia Rinker in fear of physical pain or injury or in fear of physical contact which would be insulting or offensive; and (3) Patricia Riniker reasonably believed the act would be carried out immediately. These instructions required the jury to examine the issue of consent before reaching its conclusion. We affirm the district court on this issue.

C. “Willful and Wanton Disregard.” Instruction 21 provided as follows:

Conduct is in willful and wanton disregard for the rights or safety of another when a person intentionally does an act of an unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow.

Wilson contends the trial court should have included “and which thus is usually accompanied by a conscious indifference to the consequences,” at the end of its “willful and wanton disregard” instruction, citing Vlotho v. Hardin County, 509 N.W.2d 350, 356 (Iowa 1993). According to Wilson, the trial court’s failure to include the language gave the jury permission to award punitive damages based on mere negligence. We disagree.

The trial court gave the jury three punitive damage instructions. The trial court instructed the jury it could award Patricia Riniker punitive damages if she had proven by a preponderance of clear, convincing, and satisfactory evidence Wilson’s conduct constituted a willful and wanton disregard for her rights. It instructed the jury on the definition of “clear, convincing and satisfactory evidence.” It instructed the jury an “intentional act” of “unreasonable character” was required to find “willful and wanton disregard for the rights or safety of another.” The punitive damages' instructions, read together, are correct statements of the law. Wilson can show no prejudice from the trial court’s failure to include his proposed language in its instructions. We affirm the trial court on this issue.

IV. Damages Award. A motion for new trial is the proper method for challenging the adequacy of damages. Iowa R.Civ.P. 244(d); Gorden v. Carey, 603 N.W.2d 588, 589-90 (Iowa 1999). The court can grant a new trial, or impose conditions pursuant to rule 250. Ort v. Klinger, 496 N.W.2d 265, 269 (Iowa App. 1992). A new trial is not a matter of right. Id. In ruling on motions for new trial, the trial court has broad, but not unlimited, discretion in determining whether the verdict effectuates substantial justice between the parties. Iowa R.App.P. 14(f)(3); Gorden, 603 N.W.2d at 590. We review the trial court’s ruling on an abuse of discretion standard. Foggia, 543 N.W.2d at 891. We are slower to interfere with the grant of a new trial than with its denial. Iowa R.App.P. 14(f)(4); Cowan v. Flannery, 461 N.W.2d 155, 157 (Iowa 1990).

The amount of damages awarded is peculiarly a jury, not a court, function. Gorden, 603 N.W.2d at 590. We do not set aside a verdict simply because we might have reached a different conclusion. Orb, 496 N.W.2d at 269. It is not for this court to invade the province of the jury. Id. The jury’s verdict should not be set aside or altered unless the plaintiff proves the verdict: (1) is flagrantly excessive or inadequate; or (2) is so out of reason as to shock the conscience or sense of justice; or (3) raises a presumption it is the result of passion, prejudice or other ulterior motive; or (4) is lacking in evidential support. Gorden, 603 N.W.2d at 590.

In passing on the alleged ex-cessiveness of damages, we need to determine only whether there was substantial evidence to support the verdict. Clarey v. K-Products, Inc., 514 N.W.2d 900, 903 (Iowa 1994). In considering whether the verdict is excessive, the evidence must be considered in the light most favorable to the plaintiff. Ort, 496 N.W.2d at 269.

Wilson argues the trial court should have granted his motion for new trial, based on the excessive damage award. Given only two of the alleged forty to fifty incidents occurred within the two-year limitations period, Wilson contends the compensatory damages awards were so flagrantly excessive as to indicate passion or prejudice. He also points to several occurrences during trial, which he argues could have led to the jury’s passion and prejudice in making the award.

The court limited an award of damages to events occurring on or after November 6, 1994. Patricia testified two events occurred on or after that date: (1) a sexual encounter, and (2) an encounter toward the end of November 1994, during which no physical contact occurred, but Wilson allegedly threatened Patricia. Patricia also testified as to phone calls and verbal threats during this time period, but was not specific as to when and what type of threats. Considering the evidence in the light most favorable to plaintiffs, we conclude substantial evidence supports the jury’s verdict. Wilson had the burden of proving the segregation of damages. See Earl, 219 N.W.2d at 491. We will not reverse the jury’s verdict based on the possibility he failed to meet his burden on this issue. We conclude the district court did not abuse its discretion in refusing to grant Wilson a new trial based on an excessive verdict.

V. Cross-Appeal: Claims Against the Corporation.

We review the trial court’s directed verdict for errors at law. Iowa R.App.P. 4. Where no substantial evidence exists to support each element of a plaintiffs claim, the court may sustain a motion for directed verdict. Godar v. Edwards, 588 N.W.2d 701, 705 (Iowa 1999). Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion. Hasselman v. Hasselman, 596 N.W.2d 541, 545 (Iowa 1999). We view the evidence in the light most favorable to the party against whom the motion was directed. Godar, 588 N.W.2d at 705.

Rinikers contend they were entitled to submit claims against the corporation to the jury because defendant John' P. Wilson, general manager and part owner of Wilson Bros., authorized and ratified his wrongful acts against plaintiffs. Plaintiffs argue: (1) John P. Wilson had the power to force Patricia to submit to his sexual attacks because of his supervisory position at Wilson Bros., (2) Wilson purported to speak on behalf of Wilson Bros, when he threatened to fire and/or blackmail Michael, and (3) Patricia submitted to Wilson’s wrongful acts because Wilson Bros, gave him the authority to follow through on his threats.

Under the doctrine of respon-deat superior, an employer is hable for the negligence of an employee committed while the employee is acting within the scope of his or her employment. Godar, 588 N.W.2d at 705; Jones v. Blair, 387 N.W.2d 349, 355 (Iowa 1986). “Scope of employment” refers to:

[T]hose acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.
It has been said that in general the servant’s conduct is within the scope of his employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limits of time and space, and is actuated, at least in part, by a purpose to serve the master....

Vlotho, 509 N.W.2d at 354 (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 70, at 502 (5th ed.1984)).

“Within the scope of employment” requires the conduct be of the same general nature as that authorized or incidental to the conduct authorized. Sandman v. Hagan, 261 Iowa 560, 567, 154 N.W.2d 113, 117 (1967). An act is deemed to be within the scope of one’s employment “where such act is necessary to accomplish the purpose of the employment and is intended for such purpose.” Id. 261 Iowa at 566-67, 154 N.W.2d at 117. A deviation from the employer’s business or interest to pursue the employee’s own business or interest must be substantial in nature .o relieve the employer from liability. «⅛-dar, 588 N.W.2d at 706.

Restatement (Second) of Agency lists the following factors to be considered in determining whether conduct of an employee may be characterized as occurring within the scope of the employee’s employment:

(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned between different servants;
(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.

Restatement (Second) of Agency § 229(2) (1957). The ultimate question is whether or not it is just that the loss resulting from the servant’s acts should be considered as one of the normal risks to be borne by the business in which the servant is employed. Godar, 588 N.W.2d at 706 (quoting Restatement (Second) of Agency § 229 cmt. a (1957)).

The question of whether an act is within the scope of employment is ordinarily a jury question. Sandman, 261 Iowa at 569,154 N.W.2d at 118. However, the question as to whether the act which departs markedly from the employer’s business is still within the scope of employment may well be for the court depending on the surrounding facts and circumstances. Id.

The alleged sexual abuse by Wilson was not an act committed within the scope of his employment for which the corporation may be held liable. Wilson’s acts were a substantial deviation from his duties at Wilson Bros, and were not “necessary to accomplish the purpose of employment.” While Wilson became acquainted with Patricia by virtue of his position at Wilson Bros., we cannot conclude his actions were committed in furtherance of his duties or the objectives of the corporation. The fact some of the alleged conduct occurred on Wilson Bros.’ property does not make it automatically liable for Wilson’s actions. See Godar, 588 N.W.2d at 707.

Wilson’s alleged conduct was so far removed from his duties with Wilson Bros, that the question as to whether his actions departed markedly from Wilson Bros.’ business was properly determined by the district court. We affirm the court’s dismissal of claims against the corporation.

AFFIRMED.

      . Genesee County Circuit Court Rule 11.1 Orders of Suppression. Any party or his attorney may move the Judge in writing to suppress the pleadings filed in any action that has been assigned to him, for good cause shown.


author: STREIT, P.J.

text:
    In re the MARRIAGE OF Elnora R. THIELGES, and Brian Thielges. Upon the Petition of Elnora R. Thielges, Petitioner-Appellee, And Concerning Brian Thielges, Respondent-Appellant.
    No. 00-01.
    Court of Appeals of Iowa.
    Dec. 22, 2000.

      Roger J. Kuhle, Danielle I. Foster-Smith of Law Office of Roger J. Kuhle, West Des Moines, for appellant.
    David L. Jungmann, Greenfield, for ap-pellee.
    Heard by STREIT, P.J., and VOGEL and MILLER, JJ.
   STREIT, P.J.

A father complains the mother of his children is taking them back to his home state of North Dakota. The district court modified the parties’ dissolution decree to allow this. We affirm.

7. Background Facts & Proceedings.

Brian and Elnora Thielges’s fourteen-year marriage was dissolved in April 1998. They have three children: Angela (May 1985), Nicole (August 1988), and Trenton (October 1990). Pursuant to a 1998 dissolution decree, Brian and Elnora have joint legal custody of their children with Elnora having primary physical care. The decree restricted relocation of the children by ordering: “The children shall remain in the Adair school district. In the event either party moves out of the Adair school district, such a move shall constitute a substantial change in circumstances regarding modification of custody of the minor children.”

In January 1999 Brian filed a petition asking the court to place the children in his physical care. Elnora asked the court to decrease Brian’s visitation and cancel the decree’s relocation restriction. Before the modification trial was completed, Brian agreed to dismiss his petition, pay more child support, and decrease his visitation. Elnora agreed to dismiss her counterclaim concerning the decree’s relocation restriction. The court approved their July 1999 stipulation and modified the decree accordingly.

In November 1999 Elnora filed a petition asking the court to modify the decree’s relocation and visitation provisions so she could move to North Dakota with the children. Brian asked the court to place the children in his physical care. After the trial the court removed the decree’s relocation restriction, allowed Elnora and the children to move, and altered Brian’s visitation schedule. The court also ordered Brian to pay $3500 of Elnora’s attorney fees. Brian appeals.

II. Physical Care & Visitation.

Brian claims the district court should have placed Angela, Nicole, and Trenton in his physical care or, at a minimum, barred Elnora from moving them to North Dakota. He argues the court placed improper burdens of proof on the parties. He also argues the court failed to address Angela’s wishes regarding where she wanted to live. We review de novo. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa App.1996).

A. Burdens of Proof.

The court allocated the burdens of proof in this case in accordance with Brian and Elnora’s respective modification requests. Citing In re Marriage of Frederici, 338 N.W.2d 156, 159 (Iowa 1983), the couxT stated Brian bore the burden of proof on the physical care issue and Elnora bore the burden of proof on the relocation/visitation issue.

We agree with the court’s allocation of the burdens of proof between Brian and Elnora. Brian has asked the parties’ children be placed in his physical care. He must prove, by a preponderance of the evidence, a substantial change in circumstances justifying his requested modification. See Frederici, 338 N.W.2d at 158. He must also prove he has an ability to minister more effectively to the children’s well-being. See id. His heavy burden “stems from the principle that once custody of children has been fixed it should be disturbed only for the most cogent reasons.” See id. Elnora has asked the decree’s relocation restriction be cancelled so the children can move to North Dakota with her. Elnora also has asked Brian’s visitation schedule be altered to accommodate the move. She must prove a change in circumstances justifying her requested modifications. See In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa App. 1985). Her burden is less demanding than Brian’s given “a much less extensive change of circumstances need be shown in visitation right cases.” See id.

Given these standards, Brian contends he has been improperly saddled with the heavier burden in this case. His arguments are based on the decree’s relocation restriction and section 598.21(8A), a provision of the Iowa Code applicable to long-distance relocations. We will address his arguments before we determine whether he and Elnora have met their respective burdens of proof.

1. Relocation Restriction & Section 598.21(8A).

Brian first argues Elnora must prove moving the children to North Dakota is in their best interests because she is seeking to undo the decree’s relocation restriction. “The controlling consideration in child custody cases is always what is in the best interests of the children.” In re Marriage of Swenka, 576 N.W.2d 615, 616 (Iowa App.1998); see also Iowa R.App.P. 14(f)(15). This consideration is interwoven into the modification standards applicable to such cases. Frederick 338 N.W.2d at 158 (“To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children’s best interests make it expedient to make the requested change.”); In re Marriage of Salmon, 519 N.W.2d 94, 95-96 (Iowa App.1994) (“The parent seeking to modify child visitation provisions of a dissolution decree must establish by a preponderance of evidence that there has been a material change in circumstances since the decree and that the requested change in visitation is in the best interests of the children.”). However, to the extent Brian is arguing Elnora’s burden of proof is greater than the burden allocated to her, his argument falls short. Jerome, on which Brian heavily relies, was a modification case involving a relocation restriction in which parents with a dissolved marriage sought changes similar to those requested by Brian and Elnora. See Jerome, 378 N.W.2d at 303. In that case, we allocated the burdens between the parents just as we have in this case: The parent seeking to change who had physical care of the parties’ children was required to prove a substantial change of circumstances and an ability to minister more effectively to the children’s well-being while the parent seeking to move the children out of Iowa was required to prove only a change in circumstances justifying a change in visitation. Id. at 304-05.

Requiring Brian to bear the heavier burden is appropriate even though Elnora is the party seeking to move the parties’ children to North Dakota. Although the dissolution decree contains a relocation restriction, it also provides Elnora shall be responsible for the physical care of the children. “[0]ur case law places greater importance on the stability of the relationship between [children] and [their] primary caregiver [than on] the physical setting of the [children].” In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa App.1998) (citations omitted). Brian is seeking the most significant modification in this case- — a modification that would remove the parties’ children from Elnora’s physical care and place them in his physical care. Accordingly, Brian should also bear the heavier burden in this case.

Brian also argues he has been improperly saddled with the heavier burden given the legislature’s enactment of section 598.21(8A). See 1997 Iowa Acts ch. 175, § 190. Specifically, he argues section 598.21(8A) changes the law applicable to custody modification requests triggered by one parent’s long-distance relocation. The statute reads, in part, as follows:

If a parent awarded joint legal custody and physical care or sole legal custody is relocating the residence of the minor child to a location which is one hundred fifty miles or more from the residence of the minor child at the time that custody was awarded, the court may consider the relocation a substantial change in circumstances. If the court determines that the relocation is a substantial change in circumstances, the court shall modify the custody order to, at a minimum, preserve, as nearly as possible, the existing relationship between the minor child and the nonrelo-cating parent. If modified, the order may include a provision for extended visitation during summer vacations and school breaks and scheduled telephone contact between the nonrelocating parent and the minor child.

Iowa Code § 598.2R8A) (1999).

Section 598.21(8A) changed at least one facet of the law applicable to custody modification requests. Prior to section 598.21(8A), “Iowa courts had historically recognized society’s mobility and had not fixed or changed custody based on one party’s move from an area where both parents resided absent other circumstances.” In re Marriage of Crotty, 584 N.W.2d 714, 717 (Iowa App.1998) (citing In re Marriage of Vrban, 359 N.W.2d 420, 425 (Iowa 1984), and Frederici, 338 N.W.2d at 161). After section 598.21(8A), a court may consider a move of 150 miles or more, by itself, to be a substantial change in circumstances. Crotty, 584 N.W.2d at 717. Thus, the statute tempers the ability of a parent who is responsible for his or her children’s physical care to relocate. Williams, 589 N.W.2d at 762.

Section 598.21(8A) does not change the burdens of proof applicable to custody modification requests. As is clear on its face, section 598.21(8A) does not eliminate the requirement a parent requesting either a visitation modification or physical-care modification must prove the requisite change in circumstances. Nor does it eliminate the requirement a parent requesting a physical-care modification must also prove he or she has the ability to minister more effectively to the well-being of the parties’ children. After stating “the court shall modify the custody order” if the court determines a move of 150 miles or more is a substantial change in circumstances, section 598.21(8A) states “[i]f modified, the order may include a provision for extended visitation during summer vacations and school breaks and scheduled telephone contact between the nonrelocat-ing parent and the minor child.” Thus, if a party proves only a substantial change in circumstances, section 598 .21(8A) explicitly contemplates only a visitation modification. This does not mean section 598.21(8A) is not applicable to physical-care modification requests. Rather, it confirms the statute is consistent with modification cases like Frederici that require a parent requesting a physical-care modification to prove a substantial change of circumstances and an ability to minister more effectively to his or her children’s well-being. In other words, by implication section 598.21(8A) preserves the second element of the burden of proof applicable to physical-care modification requests. The statute does not lighten Brian’s burden.

In summary, Brian bears the heavier burden of proof in this case despite the decree’s relocation restriction and section 598.21(8A). We now turn to the application of Brian and Elnora’s respective burdens of proof.

2. Application.

We, like the district court, find Brian has not met both elements of his heavy burden of proof. We find Elnora has met her burden of proof.

As we stated previously, Brian must prove a substantial change of circumstances supporting his request we place the parties’ children in his physical care. See Frederici, 338 N.W.2d at 158. The dissolution decree states the following: “In the event either party moves out of the Adair school district, such a move shall constitute a substantial change in circumstances regarding modification of custody of the minor children.” A district court, in a dissolution decree or other custody order, certainly can describe the past and present circumstances underlying the various aspects of its custody award. We strongly disapprove, however, of custody provisions, whether stipulated by the parties or mandated by the court, that predetermine what future circumstances will warrant a future modification. A court should not try to predict the future for families, nor should it try to limit or control their actions by such provisions. Cf. Hovater v. Hovater, 577 So.2d 461, 463 (Ala.Civ.App.1990) (‘We find, however, the custodial reversionary clause in this instance to be of no effect because it is premised on a mere speculation of what the best interests of the children may be at a future date.”); Bell v. Bell, 572 So.2d 841, 845 (Miss.1990) (‘We regard it [a] particular folly to decree in advance — at a time when one child may be twelve and another six — that it will be in their best interest to remain in a given community until they become adults. This is simply something that no individual and certainly no court can know.”); Wilson v. Wilson, 12 Va.App. 1251, 408 S.E.2d 576, 579 (1991) (“A move from Nashville to another location at some time in the future may prove to be in the son’s best interests. However, this cannot be determined until the move is contemplated and all the circumstances associated with it are known.”). Such provisions, besides misleading the parents, seem to provide that one event alone will mandate a change of physical care. This is an erroneous notion. Any such change of circumstances must be weighed with all the other relevant conditions affecting physical care. Accordingly, the custody provision stating a move out of the Adair school district “shall constitute a substantial change of circumstances” does not dictate the result in this case.

Nonetheless, Brian has proven a substantial change of circumstances supporting his modification request. Pursuant to the dissolution decree and the July 1999 modification decree, Brian has visitation with the parties’ children on alternate weekends and one weekday evening. Moving the children roughly 470 miles away to North Dakota would undoubtedly disrupt Brian’s visitation schedule and limit his access to them. Applying section 598.21(8A), we find Brian has proven a substantial change in circumstances that was not contemplated by the district court, is permanent, and relates to the welfare of the children. See Frederici 338 N.W.2d at 158.

Brian must also prove, however, he has an ability to minister more effectively to the well-being of the parties’ children. See id. At trial, Brian suggested he is the parent who, through word’ and deed, can provide superior care for the children. At most, the record shows Brian and Elnora are both fallible human beings who can provide the same level of care for their children. Brian has not met his heavy burden of proof; we will not place the children in his physical care.

Elnora has met her burden of proof. To justify her modification request concerning the dissolution decree’s relocation and visitation provisions, Elnora must prove there has been a change in circumstances since the decree. See Jerome, 378 N.W.2d at 305. Her burden is less demanding than Brian’s. See id. Elnora is requesting a modification so she can move to Ellendale, North Dakota, with her children. Her desire to move is predicated on valid reasons: she is originally from the Ellendale area and has relatives there, including her parents; she is a nurse and her infirm parents need her assistance; and she can get a “fresh start” there. Cf. id. (“The Iowa courts in recent years have recognized how mobile our society is and have been reluctant to limit a custodial parent to a geographic area where there is evidence that the custodial parent has valid economic reasons for moving and the move is not predicated on an attempt to limit visitation of the noncustodial parent.”) (citations omitted). It is also in the children’s best interests to continue living with Elnora as she has been their primary caregiver since the parties’ dissolution of marriage. See Williams, 589 N.W.2d at 762. Elnora’s requested modification is justified.

In reaching this conclusion, we have not ignored chapter 598’s supposition it is generally in children’s best interests to have the opportunity for maximum continuous physical and emotional contact with both of their parents. See Iowa Code §§ 598.1(1), 598.41(1). Such contact can be assured by means other than a traditional, alternating-weekends visitation schedule. For example, section 598.21(8A) states that when a court determines a long-distance relocation constitutes a substantial change in circumstances, the court can modify the custody order at issue by granting the nonrelocating parent “extended visitation during summer vacations and school breaks and scheduled telephone contact.” The district court fashioned such a solution in this case: The court modified Brian’s visitation schedule by granting him eight weeks of visitation during the summer, visitation during half of the winter school break, visitation during alternating Thanksgiving and spring breaks, reasonable visitation whenever he visits North Dakota or whenever Elnora visits Iowa, and liberal telephone and Internet communications. These changes are appropriate and fair given Brian, who also has many relatives in the Ellendale area, travels to North Dakota approximately eight to twelve times every year. We find the parties’ children have been assured the opportunity for maximum continuous physical and emotional contact with both of their parents and affirm the district court.

B. Preference.

Alternatively, Brian claims we should honor Angela’s wishes regarding where she wants to live. Angela has stated she would rather live in Iowa than North Dakota. ‘When a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment, his or her wishes, though not controlling may be considered by the court, with other relevant factors, in determining child custody rights.” In re Marriage of Hunt, 476 N.W.2d 99, 101 (Iowa App.1991). A child’s preference “is entitled to less weight in a modification action than would be given in an original custody proceeding.” Id.

We give Angela’s preference some weight, but do not defer to her. At the time of trial, Angela was fourteen. Her counselor testified she is “able to take on just about anything.” On the other hand, Elnora testified Angela vacillates on where she would prefer to live. The record also suggests Angela’s preference has more to do with her Iowa friends and school than it does with Brian and Elnora. Given these circumstances, we will not separate Angela from her siblings and Elnora. We affirm the district court.

III. Control of Trial.

Brian also claims the district court should have allowed him to present evidence of matters that antedated the July 1999 stipulation and modification decree. We review for an abuse of discretion. Cf. In re Marriage of Rebouche, 587 N.W.2d 795, 798 (Iowa App.1998) (“[W]e afford trial judges wide discretion over the course and conduct of a trial.”); In re Marriage oflhle, 577 N.W.2d 64, 67 (Iowa App.1998) (“It is generally recognized that matters relating to the course and conduct of a trial, not regulated by statute or rule, are within the discretion of the trial judge.”).

The court’s decision to exclude the aforementioned evidence followed Elnora’s filing of a motion in limine. In her motion, Elnora stated Brian’s witness and exhibit list included fifty-eight witnesses and forty-seven exhibits. She argued Brian had an opportunity to present this evidence at the partial trial on the parties’ first round of modification requests. The court directed Brian and Elnora to limit their evidence to matters arising after the July 1999 modification and also initially limited them to six witnesses apiece.

The court acted within its broad discretion. One of the primary purposes of the Iowa Rules of Evidence is to “secure fairness in ... elimination of unjustifiable expense and delay.” Iowa R.Evid. 102. Accordingly, pursuant to rule 403 a court can exclude otherwise relevant and admissible evidence if the evidence’s “probative value is substantially outweighed ... by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Similarly, rule 611 provides a “court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... avoid needless consumption of time.” Given these rules, where one party was asking to call fifty-eight witnesses, the court was not obligated to surrender the hall for such a marathon production. Requiring it to do so would have resulted in the absurd surrendering of its inherent power to control its courtroom.

Of course, arbitrary and inflexible time limits are disfavored. A court “should impose time limits only when necessary, after making an enlightened analysis of all available information from the parties.” Ihle, 577 N.W.2d at 68. “[I]t is equally incumbent upon the party seeking additional time to present evidence establishing prejudice.” Id. at 69. If a party does this adequately, it will alert the court to the particular evidence being sought and will allow the court to make an informed and specific ruling on the evidence.

In this case, Brian has not clearly articulated why the court’s decision to exclude evidence and limit the number of witnesses was purportedly an abuse of its discretion. The court imposed the evidentiary limitations only after hearing from both sides. Brian has not shown that he identified the nature and importance of the particular evidence he believed was relevant to the pending modification action. Nor has he explained how he was prejudiced by the evidentiary limitations. Finding no abuse of discretion, we affirm the district court.

IV. Attorney Fees.

Finally, Brian requests we order Elnora to pay the attorney fees and costs he incurred at trial and on appeal. Elnora, who was awarded $3500 for attorney fees at trial, requests we order Brian to pay the attorney fees and costs she has incurred on appeal. In evaluating such requests, we consider the needs of the requesting party, the ability of the other party to pay, and whether the requesting party was obligated to defend the district court’s decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa App.1981). In light of these factors, we deny Brian’s request and direct him to pay $1000 of Elnora’s attorney fees.

We affirm the district court.

AFFIRMED.

      . Significantly, one of section 598.21(8A)'s primary purposes is "to assure maximum contact between the child and the non-custodial parent.” Williams, 589 N.W.2d at 762; see also In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa App.1998) ("[Section 598.21(8A) ] is compatible with other legislative changes in the past decade focusing on the opportunity for substantial parental involvement in a child’s life by both parents even when there has been a marriage dissolution.”).

      . When Elnora and Brian entered their July 1999 stipulation, Brian’s witnesses had testified at the trial but Elnora's witnesses had not.

      . The court ultimately allowed Brian to call two additional witnesses.


author: Alan C. Page Associate Justice

text:
    Patrick J. SUTTON, on behalf of himself and all others similarly situated, Respondent, v. VIKING OLDSMOBILE NISSAN, INC., Petitioner.
    No. C2-99-1843.
    Supreme Court of Minnesota.
    Feb. 13, 2001.
   ORDER

By order dated August 22, 2000, consideration of the petition for further review in the above-entitled case was stayed pending final disposition in Group Health Plan, Inc., et al. v. Philip Morris, Inc., et at, No. C6-00-377. The Group Health opinion was filed January 11, 2001.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Court of Appeals filed June 2, 2000, be, and the same is, vacated and the matter is remanded to the Court of Appeals for consideration in light of Group Health Plan, Inc. v. Philip Morris, Inc., 621 N.W.2d 2 (Minn.2001).

BY THE COURT:

Alan C. Page Associate Justice

BLATZ, C.J., took no part in the consideration or decision of this case.


author: RUSSELL A. ANDERSON, Justice.

text:
    M. Jay JENSEN, an individual, Patricia A. Jensen, an individual, William Spooner, an individual, and Celeste Spooner, an individual, petitioners, Appellants, v. James V. WALSH, an individual, Patricia Walsh, an individual, and Timothy Schacher, Respondents.
    No. C4-99-1763.
    Supreme Court of Minnesota.
    March 22, 2001.

      Brian N. Toder, Chestnut & Cam-bronne, P.A., Minneapolis, for appellant.
    John M. Gearin, St. Paul, for respondent Jensen.
    Timothy Schacher, South St. Paul, pro se.
    Jeffrey J. Lindquist, Minneapolis, for amicus curiae Minnesota Defense lawyers Ass’n.
    Charles A. Bird, Steven S. Fuller, Rochester, for amicus curiae Minnesota Trial Lawyers Ass’*n.
   OPINION

RUSSELL A. ANDERSON, Justice.

In this bitter dispute between neighbors, we consider whether punitive damages are available in an action for intentional damage to property where the only damage is to property. We hold that a plaintiff may seek punitive damages in an action for intentional damage to property. We reverse the court of appeals and remand to the district court.

Appellants M. Jay and Patricia Jensen and respondents James and Patricia Walsh owned land adjacent to one another along a channel of the Mississippi River. The Jensens lived in their houseboat, moored along the bank of the channel, and rented the house on their property to appellants William and Celeste Spooner. William Spooner is Patricia Jensen’s nephew. The Walshes maintained that the Jensens’ houseboat restricted their access to the river.

Respondent Timothy Schacher, a business associate of respondent James Walsh, admitted that the following acts occurred in the summer of 1996 in an effort to drive the Jensens from the property or, at least, to convince them to remove the houseboat. James Walsh and Schacher stole the Jen-sens’ electric meter and Schacher cut the Jensens’ telephone line. Early in the morning of the day that the Spooners were to be married at the Jensen property, Schacher and Patricia Walsh’s daughter, S.W., apparently with Patricia Walsh’s knowledge, spray-painted an obscenity and “welcome” on the Jensens’ garage and threw eggs against the houseboat and other property. Schacher and S.W. took the Walshes’ cordless drill and S.W. used the drill to puncture tires on vehicles parked at the Jensen property. In addition, James Walsh pleaded guilty to disorderly conduct for operating his boat in an alarming manner near the Jensens’ houseboat.

The Jensens brought an action against the Walshes and Schacher for intentional damage to property and intentional infliction of emotional distress. The district court granted the Walshes’ motion for partial summary judgment, dismissing the Jensens’ emotional distress claim. The Jensens later moved to amend their complaint to include a claim for punitive damages and the district court denied the motion, concluding that punitive damages are not available where the only damage is to property. Before trial, the parties stipulated to a settlement for the property damage with the Walshes and Schacher paying damages of $5,765 to the Jensens. The stipulation, however, reserved the Jensens’ fight to appeal both the partial summary judgment dismissing their emotional distress claim and the district court’s order denying their motion to amend their complaint to include a claim for punitive damages. The court of appeals affirmed the partial summary judgment dismissing the Jensens’ emotional distress claim and the order denying the Jensens’ motion to amend their complaint to include a punitive damages claim, concluding that punitive damages were not available in the absence of personal injury.

The only issue on appeal to this court is the legal issue of whether punitive damages are available in an action for intentional damage to property where the only damage is to property. We review legal issues de novo. See Marzitelli v. City of Little Canada, 582 N.W.2d 904, 905 (Minn.1998).

Two lines of authority converge to form our analysis of the issue, our common law and our statutory law, specifically the punitive damages statute, Minn.Stat. § 549.20 (2000). The statute was intended to codify our common law on punitive damages. Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876, 891 (Minn.1986).

We begin with a brief review of the availability of punitive damages under our common law, limiting our inquiry to actions where the only damage is to property. Beginning nearly 140 years ago, we permitted punitive damages claims in actions where the only damage is to property, recognizing a centuries-old philosophy that one committing a tort with a fraudulent or evil motive should be punished and that the offender and others should be deterred from such behavior in the future. See Lynd v. Picket, 7 Minn. 128 (Gil. 128, 142-43) (1862). In Lynd, we upheld a punitive damages award against a deputy sheriff who confiscated property that he knew was exempt from the writ of attachment he executed. Id. at 143-44. In our decision, we acknowledged the longstanding purpose of punitive damages, to punish willful and malicious conduct that is intended to harass and oppress another. See id. at 143.

From the end of the nineteenth century to more recent times, it has been well-established that punitive damages were available in actions where the only damage is to property. See Hendrickson v. Grengs, 237 Minn. 196, 205, 54 N.W.2d 105, 110 (1952) (holding wrongful taking of mortgaged property in violation of injunction provided strong grounds for punitive damages); Matteson v. Munroe, 80 Minn. 340, 342-43, 83 N.W. 153, 154 (1900) (affirming award of punitive damages for malicious and willful taking of exempt grain); Carli v. Union Depot St. Ry. & Transfer Co., 32 Minn. 101, 104, 20 N.W. 89, 90 (1884) (allowing punitive damages for trespass to real estate where trespass is wanton, willful or malicious). In 1971, we again emphasized the strong public policy of punishing those who maliciously, willfully or with reckless disregard convert another’s property when we affirmed a punitive damages award against a defendant who sold a neighbor’s calves that had wandered onto defendant’s property. See Huebsch v. Larson, 291 Minn. 361, 364, 191 N.W.2d 433, 435 (1971). Our common law demonstrates that punitive damages have been available to punish defendants and to deter defendants and others from maliciously damaging the property of another.

As our common law developed, the number of punitive damages awards in product liability cases increased. See Gary T. Schwartz, Deterrence and Punishment in the Common Law of Punitive Damages: A Comment, 56 S.Cal.L.Rev. 138, 150 (1982) (identifying a surge in punitive damage awards in eases alleging defective product design and citing cases from 1978 to 1982); Dianne C. Heins, Statutory Changes in Minnesota Tort Law — 1978, Henn. Lawyer, Sept.-Oct.1978, at 6 (noting that the Minnesota legislature enacting the punitive damages statute was concerned over the increasing frequency and amount of punitive damages awards in product liability cases). By the mid 1970s, product liability insurance was in crisis over increased punitive damages claims and losses. See David G. Owen, Punitive Damages in Products Liability Litigation, 74 Mich.L.Rev. 1257,1309 (1976).

Against this backdrop of concern over the increasing number of punitive damages awards in product liability cases, our legislature enacted section 549.20 in 1978. Minnesota-Iowa Television Co. v. Watonwan T.V. Improvement Ass’n, 294 N.W.2d 297, 310-11 (Minn.1980).

The statute enacted in 1978 reflected an intent to limit punitive damages in civil actions by making the remedy available “only upon clear and convincing evidence that the acts of the defendant show a willful indifference to the rights or safety of others.” Minn.Stat. § 549.20, subd. 1 (1978). The statute was amended in 1990 to substitute “deliberate disregard” for “willful indifference.” The 1990 amendment further limited punitive damages by defining deliberate disregard.

In two product liability cases since enactment of the statute, we have limited the availability of punitive damages for actions where the only damage is to property. In the first case, we determined that punitive damages are not available in strict product liability cases where the only damage is to property. Eisert v. Greenberg Roofing & Sheet Metal Co., 314 N.W.2d 226, 228-29 (Minn.1982). In Eisert, a school district’s auto body shop was destroyed by fire and the school district brought a strict liability action against the manufacturers of foam and paint used in the auto body shop. The only damage was to property. Id. at 227. The district court denied the school district’s motion to amend its complaint to include a punitive damages claim. Id. We acknowledged that the nature of the plaintiffs injury was not a factor listed in section 549.20, subd. 3, for determining how to assess punitive damages, but we concluded that the nature of the injury could be considered in deciding where punitive damages would be allowed. Eisert, 314 N.W.2d at 229. We affirmed the district court, supporting our conclusion with the observation that the “interests implicated in strict liability actions for injury solely to property are not so great as to warrant extension of this controversial remedy * * *» 2^

In the second product liability case, a school district facing costly removal of fireproofing material brought suit against an asbestos producer under theories of negligence, strict liability, breach of implied warranties, breach of express warranties, fraud, restitution and conspiracy. Independent Sch. Dist. No. 622 v. Keene Corp., 511 N.W.2d 728, 729 (Minn.1994). After the restitution and conspiracy claims were dismissed, the jury awarded punitive damages and the district court denied defendant’s motion to set aside the punitive damages award. Id. at 729-30. The court of appeals affirmed but reduced by half the punitive damages award. Id. On appeal to this court, we rejected the school district’s argument that Eisert’s bar to punitive damages for property damage was limited to strict product liability actions and reversed the award of punitive damages. See id. at 732.

Thus, in Eisert and Keene, we concluded that denying punitive damages in product liability cases where the only damage is to property “reflects the higher value our society places on the safety of persons than it does on the security of the property.” Eisert, 314 N.W.2d at 229; see also Keene, 511 N.W.2d at 732. We did not conclude, however, that the security of property is unimportant, nor did we intend that punitive damages claims be barred in all actions where the only damage is to property.

The controversy surrounding punitive damages reflected a view that such awards in product liability actions did not necessarily advance society’s interests. See Ei-sert, 314 N.W.2d at 229 (characterizing punitive damages as a controversial remedy and noting public interest in protecting against property damage largely satisfied through compensatory damages); see also Jane Mallor and Barry Roberts, Punitive Damages: Toward a Principled Approach, 31 Hast. L.J. 639, 643-47 (1980); William L. Prosser & W. Page Keeton, Prosser and Keeton on the Law of Torts § 2, at 11 (W. Page Keeton et al. eds., 5th ed.1984) (noting punitive damages condemned as giving undue compensation). Some thought that the threat of large punitive damages awards in product liability actions may prevent the introduction of beneficial products to the marketplace and impede research and development of new products. Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 282, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) (O’Connor, J., concurring and dissenting).

While Eisert and Keene reflect an intent to control escalating lawsuits and awards in product liability actions where the only damage is to property, other claims of property damage may be protected through an award of punitive damages. Section 549.20 allows punitive damages where there is deliberate disregard of the rights or safety of others. Minn.Stat. § 549.20, subd. 1. Use of the disjunctive “or” indicates that the legislature intended to safeguard rights other than those relating to a person’s' safety. Therefore, section 549.20 does not limit its application to claims of personal injury.

The purposes of punitive damages are to punish the perpetrator, to deter repeat behavior and to deter others from engaging in similar behavior. William L. Prosser & W. Page Keeton, Prosser and Keeton on the Law of Torts § 2, at 9. Without punitive damages, one who acts with deliberate disregard of the rights or safety of others faces no greater penalty than a well-meaning but negligent offender. It is therefore appropriate, in determining whether punitive damages should be allowed, to focus on the wrongdoer’s conduct rather than to focus on the type of damage that results from the conduct.

A plain reading of section 549.20 indicates that the legislature intended to allow punitive damages when there is clear and convincing evidence that a defendant acted with deliberate disregard for the rights or safety of others regardless of the nature of the resulting damage. Thus, we hold that a plaintiff may seek punitive damages in an action for intentional damage to property where the only damage is to property, subject to the limitations of section 549.20.

We reverse the court of appeals and remand this case to the district court for reconsideration of the Jensens’ motion to amend their complaint to include a claim for punitive damages, subject to the criteria set forth in Minn.Stat. § 549.20.

Reversed and remanded.

      . All appellants will be collectively referred to hereafter as "the Jensens.”

      . Upon commencement of a civil action, a complaint cannot include a claim for punitive damages. After filing suit, a party may move to amend the pleadings to include a claim for punitive damages. Minn.Stat. § 549.191 (2000).

      . A defendant has acted with deliberate disregard for the rights or safety of others if the defendant has knowledge of facts or intentionally disregards facts that create a high probability of injury to the rights or safety of others and:
      (1) deliberately proceeds to act in conscious or intentional disregard of the high degree of probability of injury to the rights or safety of others; or
      (2) deliberately proceeds to act with indifference to the high probability of injury to the rights or safety of others.
      Minn.Stat. § 549.20, subd. 1(b) (2000).

      . We recognize that the school district in Keene brought claims other than strict product liability, including negligence, breach of implied and express warranties, and fraud. 511 N.W.2d at 729. While the syllabus in Keene indicates that punitive damages are not available in a product liability claim where the only damage is to property, the theory on which the jury based its award in Keene is not apparent from the opinion. To the extent that Keene can be construed to bar punitive damages in an action for intentional damage to property where the only damage is to property, it is overruled.