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IN THE COURT OF APPEALS OF IOWA No. 7-403 / 06-1156 Filed October 24, 2007

MARK DAVENPORT, Plaintiff-Appellant, vs. CITY OF CORNING, MARVIN STEFFEN, and LARRY DREW, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Adams County, David L. Christensen, Judge.

Plaintiff appeals from the district court summary judgment rulings dismissing his claims for conspiracy, defamation, harassment, and invasion of privacy. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Theodore F. Sporer of Sporer & Ilic, P.C., Des Moines, for appellant. Hugh J. Cain of Hopkins & Huebner, P.C., Des Moines, for appellees City of Corning and Marvin Steffen. Joseph P. McLaughlin and Mark Wiedenfeld of Wiedenfeld & McLaughlin, L.L.P., Des Moines, for appellee Larry Drew.

Heard by Zimmer, P.J., Eisenhauer, J., and Schechtman, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).

2 ZIMMER, P.J. Mark Davenport appeals from the district court rulings that granted summary judgment in favor of the City of Corning; its former mayor, Marvin Steffen; and its chief of police, Larry Drew; and dismissed his claims for conspiracy, defamation, harassment, and invasion of privacy. We affirm the

judgment of the district court in part, reverse in part, and remand for further proceedings. I. Background Facts and Proceedings. Davenport's public battle with the City of Corning (City), its former mayor, and the chief of police began in 1999 when Davenport's employment as a police officer was terminated after several local women alleged Davenport harassed them. Davenport sued the City, Steffen, and Drew for wrongful termination. He filed a separate lawsuit against the women who accused him of harassment. The parties in both cases reached a settlement in January 2000, and the lawsuits were dismissed. Shortly after the January 2000 settlement, Drew purportedly received information that Davenport abused his wife from a person who asked to remain anonymous. Drew stated he investigated the incident, but he did not file any charges against Davenport. Davenport denies the allegations and believes the informant is fictitious. Kelly Calvert, a former police officer in Corning, stated he overheard Drew "talking to someone on the phone about Mark" one day at the police department. Calvert said Drew "did nothing but bash Mark." He also "remember[ed] about the time that Mark's lawsuit over his job was coming to a head, Larry Drew was making several comments to others and on more than one

3 occasion around the Police Department about Mark abusing his wife." Calvert stated Drew told him "if I continued to be friends with Mark, my job would be on the line." Calvert "left the Corning Police Department and area" in September 2000. In 2001 Davenport ran against Steffen in the City's mayoral election. He lost the election to Steffen. During the campaign, Greg Passley, a resident new to Corning, wrote a letter to the editor of the local paper criticizing the police department and Steffen, concluding, "We think its STEFFENATLEY time for a change!!" Suspecting the author of the letter was actually Davenport, Steffen asked Drew to find out "who [Passley] was." Drew ran a background check on Passley; talked to the mother of Passley's girlfriend, Marilyn Steele; and submitted a written report to the city council concerning the results of his inquiry. Davenport complained about Drew's actions in investigating Passley to the city council. At the request of the council, Davenport prepared a written report detailing Drew's alleged unlawful activities. The city council voted not to investigate Davenport's complaints. Davenport then provided a copy of his

report to the council to the county attorney. The county attorney convened a grand jury, which returned a two-count indictment against Drew on March 11, 2002, for nonfelonious conduct in office. Drew was acquitted of the charges in a jury trial. In February 2002 Vic Gray was stopped by Drew for a seatbelt violation as Gray was leaving "Davenport's place of business." During the traffic stop, Drew asked Gray if he was acquainted with Davenport. Drew told him Davenport was "no friend of mine," and he asked Gray if he could get any "dirt" on Davenport.

4 Soon thereafter, Gray reported the incident to Davenport, who was bothered because he noticed "every time [he] looked out [his] front door" Drew was driving by in his unmarked police car "glaring at [his] store." Davenport submitted

multiple affidavits from other Corning residents stating they too noticed Drew frequently driving by Davenport's home and business. Davenport became concerned about Drew's "drive-bys," which he alleges continued until "at least August 2004," and hired two private investigators. They both contacted Drew and recorded their telephone conversations with him. The first investigator, Nicole Adams, spoke to Drew on February 14, 2002. She

implied she had worked with Davenport in Des Moines and said she was contacted by Gray for information about Davenport. Adams asked Drew why he wanted information about Davenport. Drew made his dislike of Davenport clear and said he wanted "to get his ass out of here." He told her he heard Davenport "beats on" his wife. Adams informed Drew her "boyfriend" knew more about Davenport and would contact him. The second investigator, Scott Gratias,

contacted Drew on February 15, 2002, pretending to be the boyfriend. Drew told Gratias he was "looking for something to jab [Davenport] with . . . something formal." Drew said he thought Davenport "was doing some domestic crap . . . I think mentally, not so much physical." On November 16, 2002, Davenport filed suit in federal court against the City, Steffen, and Drew under 42 U.S.C.

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