IN THE COURT OF APPEALS OF IOWA

No. 19-2086

Filed May 12, 2021

JERRY HOFFMANN and HOFFMANN INNOVATIONS, INC., d/b/a DIY 

AUTOTUNE,

Plaintiffs-Appellees,

vs.

SCOTT CLARK and REALTUNERS, LLC,

Defendants-Appellants.

________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Susan L. 

Christensen (pretrial proceedings) and Margaret Reyes (pretrial, trial, and posttrial 

proceedings), Judges.

The defendants appeal from the $11,000,000 judgment entered against 

them, arguing they should get a new trial because the sanction entered against 

them was too harsh, the district court wrongly prevented them from presenting 

evidence to limit the award of damages, the damages awarded by the jury were 

improper and excessive, and the court’s award of common law attorney fees was 

in error. AFFIRMED. 

Matthew G. Sease and Kylie E. Crawford of Sease & Wadding, Des Moines, 

for appellants.

Robert M. Livingston of Stuart Tinley Law Firm, LLP, Council Bluffs, and 

Seth Katz of Shepherd Law, LLC, Atlanta, Georgia, for appellees.

Heard by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2

GREER, Judge.

“Falsehood flies, and truth comes limping after it; so that when men come 

to be undeceived, it is too late . . . .”

1

 This concern became central in a case that 

started as a relatively common dispute between an employer and a former 

employee. Jerry Hoffmann is the chief executive officer of Hoffmann Innovations, 

Inc.,2 which does business as DIY AutoTune.3 They are our plaintiffs. Scott Clark, 

who worked for DIY AutoTune, was fired by Hoffman in August 2016. Clark then 

started his own company, RealTuners, LLC. They are our defendants. Less than 

a year later, Hoffmann initiated a lawsuit, raising a number of claims addressing

Clark’s new company and a noncompete agreement Clark had signed; actions 

Clark allegedly took using confidential information and trade secrets from DIY 

AutoTune; and statements Clark had made on social media disparaging Hoffmann

and his products and services. 

A few months into the litigation, the parties asked the court to file a consent 

agreement “in an effort to narrow the scope of litigation and avoid additional causes 

of action.” The consent agreement prohibited all parties from making any 

disparaging statements “about adverse [p]arties to this case, their services, 

products, employees or abilities—whether verbally or in writing, including via online 

postings and websites, regardless of the truth or the falsity of such statements.” 

Between January 2018, when the consent order was filed, and August 

2019, when the jury trial began, Hoffmann brought twelve successful motions for 

 

1 Jonathan Swift, Political Lying, in 3 English Prose (ed. Henry Craik 1916). 

2 Hoffmann Innovations, Inc. is a Georgia corporation. 

3 At times, we use “Hoffmann” to refer to the plaintiffs collectively. 
3

sanctions against Clark.

4

 Hoffmann repeatedly asked the court to strike Clark’s 

answer and counterclaims as a sanction, and the court gave that remedy after 

Hoffmann’s fourth successful motion for sanctions. For this reason, the jury trial in 

August 2019 was limited to the determination of whether Clark caused damages 

to Hoffmann and the amount of any damages. The jury awarded Hoffmann and 

Hoffmann Innovations a total of $11,000,000 in damages, and the court awarded 

Hoffmann attorney fees. 

Clark and RealTuners appeal. They contend they should get a new trial 

because the sanction entered against them was too harsh, the district court 

wrongly prevented them from presenting evidence to limit the award of damages, 

the damages awarded by the jury were improper and excessive, and the court’s 

award of common law attorney fees was in error. Hoffmann and Hoffmann 

Innovations ask that we affirm. 

I. Background Facts and Proceedings. 

Hoffmann Innovations specializes in assisting customers, including racers, 

with do-it-yourself automotive tuning products and services for their automobile 

engines. While Scott Clark was an employee of DIY AutoTune, his duties included 

creating curriculum and teaching training classes for customers, marketing and 

selling the classes, providing trackside support, and providing installation and 

tuning services. The tuning products are very technical and complicated, and 

Clark is very knowledgeable about them. Because of his expertise, many people

listen to his advice about engine tuning through various forums, including his 

 

4 At times, we use “Clark” to refer to the defendants collectively.
4

personal Facebook page, where he had several thousand friends or followers, and 

public industry pages, some of which had more than 100,000 followers. 

In July 2017, Hoffmann filed a lawsuit against Clark and the company Clark 

had started since leaving Hoffmann’s employment, RealTuners, LLC. Hoffmann 

alleged Clark (1) defamed him and his company by publishing statements claiming 

Hoffmann was knowingly selling defective products out of greed (among others); 

(2) committed civil extortion, by threatening to make a “social media stink” and 

problems for Hoffmann if Clark was not paid a severance, which Clark then 

followed through on; (3) breached his employee duty of loyalty by using his access 

to confidential information and trade secrets to teach classes on tuning while he 

was still employed by DIY AutoTune without turning the money over to Hoffmann; 

(4) breached the two-year noncompete agreement he signed by opening 

RealTuners, which engaged in a substantially similar business to Hoffmann 

Innovations; (5) was unjustly enriched when he used Hoffmann Innovations’ 

materials and equipment he failed to return to teach tuning classes after his 

termination from DIY AutoTune, while keeping the profit; (6) should be required to 

pay punitive damages; (7) and acted in bad faith by ignoring Hoffmann’s demands 

he cease his misconduct. Hoffmann asked for an injunction to prevent Clark from 

operating RealTuners in violation of the noncompete agreement and posting 

derogatory comments about Hoffmann and his business. 

Clark and RealTuners answered, asserting truth as an affirmative defense 

to the defamation claims. Additionally, they counterclaimed for defamation, 

injunctive relief, intentional interference with prospective business advantage, and 

invasion of privacy.
5

On January 22, 2018, the parties jointly asked the court to file a consent 

order, which stated in part: 

1. The Plaintiffs in this case—Jerry Hoffmann and Hoffmann 

Innovations, Inc., d/b/a DIY AutoTune . . . contend that Defendant 

Scott Clark . . . has engaged in a pattern of oral and written 

defamation against Plaintiffs and are interfering with Plaintiffs’

business relationships, prior to and after filing of the Complaint in this 

matter.

2. On the other hand, Clark contends that Hoffmann has 

engaged in oral and/or written defamation against Clark and are 

interfering with Defendants’ business, prior to and subsequent to the 

filing of the Complaint in this case.

3. The Parties contend they have suffered and will continue to 

suffer damages as a result of such alleged misconduct.

4. In an effort to narrow the scope of litigation and avoid 

additional causes of action, to the extent possible, the Parties seek 

an order restricting all Parties from making any disparaging 

statements about adverse Parties to this case, their services, 

products, employees or abilities—whether verbally or in writing,

including via online postings and websites, regardless of the truth or 

the falsity of such statements.

5. As such, the Parties are hereby ordered to refrain from 

making any disparaging or critical statements, express or implied, 

regardless of truth or falsity, in any form, written or oral (including but 

not limited to emails and online statements/postings), about an 

adverse Party to this case, to anyone (other than counsel and the 

Court). This applies to all statements about the Parties, including but 

not limited to about their businesses, owners and employees, their 

capabilities, their services, their reputation, their products, their 

methods of operation and business practices, their customers, their 

policies and/or business partners.

6. The Parties advised the Court they have not and will not 

make or file (or request/command another to file) any charge or 

complaint against an adverse Party to this case with anyone (other 

than those made prior to the initiation of this case regarding Clark’s 

unemployment), including but not limited to any person, company, 

entity, law enforcement entity, organization, government agency,

governing/regulatory body or investigative agency.

7. Furthermore, no Party to this case will, voluntarily or 

involuntarily, provide any individual a forum, including but not limited 

to a Facebook or other online page, to make any such disparaging 

or negative statements about an adverse Party in this case.

. . . .

9. Within three (3) days of the date this Order is signed by the 

Court, the Parties will remove any negative statements or postings 
6

or websites or videos they have made or published about an adverse 

Party to this case or which have been made or posted by anyone in 

a forum/post/website controlled by a Party. . . .

. . . .

12. . . . The Parties and attorneys are ordered to work in good 

faith prior to involving the Court in a dispute concerning the terms of 

this Order. Repeat violations of the terms of this Order should be 

brought to the Court’s attention immediately.

13. Any violation of this Order may result in the imposition of 

sanctions and any offending Party may be forced to pay the 

reasonable attorneys’ fees of any Party forced to bring a violation of

this Order to the Court’s attention.

The district court filed the order the next day.

With a focus on the consent order, Hoffmann filed his first motion for 

sanctions on March 5, 2018. He alleged Clark violated the consent order multiple 

times, including posting statements on Facebook that were negative about 

Hoffman’s automotive engine management system.5 Specifically, Clark said he 

“wouldn’t run the latest MS3pro stuff, just an FYI on that. Problems.” Then the day 

after the court filed the consent order, Clark took a question about the MS3 Pro 

product on his podcast, stating, “I only have about 36 more hours before I can’t 

talk about these guys . . . due to a court order.” Clark wrote other posts on 

Facebook, suggesting people should use products other than the MS3 Pro

because it was difficult to use, had problems, and “tech support [was being] 

 

5

In the motion for sanctions, Hoffmann contended “Mega Squirt” or “MS” is his 

automotive engine management system, which permits the automobile to achieve 

peak performance, and that there are different versions of MS. Mega Squirt 3 Pro 

or “MS3 Pro” is the “high end” line of his MS products. In his resistance to the 

motion, Clark responded that there are multiple manufacturers of MS3; Hoffman is 

not the only manufacturer or owner of the trademark. He also argued that MS3 is 

not software owned by Hoffman; “[s]everal other companies not affiliated with 

Hoffman license this software.” According to Hoffmann’s trial testimony, while 

someone else “created the core product,” he “sell[s] 100 percent of the original 

MegaSquirt products in the United States.”
7

ordered to lie to you about the problem.” Clark also suggested a user who stated 

they preferred the MS3 Pro had been paid to post the positive comment. For a 

remedy, Hoffmann asked the court to strike Clark’s answer, require him to pay 

$10,000 into the court registry “to be forfeited and paid upon Clark’s next violation 

of the order,” and award Hoffmann attorney fees incurred in bringing the motion 

for sanctions.

Clark resisted the motion for sanctions, generally admitting he made the 

statements but denying he violated the consent order—sometimes challenging 

Hoffmann’s understanding of the statement by emphasizing certain context and 

other times denying such a statement fell within the prohibitions of the consent 

order. 

Following an unreported hearing on March 14,

6

the district court found Clark 

had violated the terms of the order, sustaining the motion for sanctions and 

requiring Clark to reimburse Hoffmann $3187.34 in attorney fees and travel 

expenses within thirty days. The court denied Hoffmann’s request that Clark pay 

$10,000 to the court registry but said it would reconsider if future violations 

occurred. 

Only two days later, Hoffmann filed a second motion for sanctions. 

Hoffmann alleged that Clark violated the consent order when he went on his 

podcast a few hours after the March 14 hearing and said, “It’s been one of those 

fun days,” before then singing, “Oh, justice for sale.” Later during the podcast, one 

of Clark’s cohosts stated, “If you write a check, you can have anything you want,”

 

6 Clark did not attend the hearing, though Hoffmann and his counsel traveled from 

Georgia to attend. 
8

in reference to a different issue. Clark then responded, “Oh, that’s the theme 

today, isn’t it, though?” before again singing “justice for sale.”

7

 Hoffmann asked 

for the same remedies, including striking Clark’s answer and counterclaims, 

requiring Clark to pay $10,000 to the court registry, and ordering Clark to pay the 

attorney fees incurred in bringing the second motion. At this point, Clark’s attorney 

was allowed to withdraw, and Clark filed a notice of his intent to represent himself 

in the proceedings. Clark resisted the second motion for sanctions, generally 

admitting making the statements outlined by Hoffmann but denying they violated 

the consent agreement.8 Later, Hoffmann filed a motion for contempt, alleging that 

more than thirty days had passed and Clark had not yet paid Hoffmann $3187.34 

to reimburse him for attorney fees and travel expenses for the first sanction. 

The hearing on the second motion and contempt action took place on April 

26. At it, Hoffmann played for the court portions of Clark’s podcast and entered 

into evidence a document Clark admitted he authored and sent to his “group of 

hosts” for his podcast. It said: 

I’ll be honest. I’m considering ending the podcast only 

because Hoffmann/DIYAutotune.com lawyers are manipulating my 

local court system with amazing prowess; at amazing cost I’m not 

allowed to talk about any of this, even here I am violating my “Gag 

Order”—but I’d like to point out that YOU GUYS ARE FREE TO 

TALK ABOUT IT OUTSIDE THE PODCAST OR ANY OF MY 

FORUMS

The court ruled from the bench, stating: 

 

7 At the hearing, the court asked Clark if he admitted it was him speaking when a 

recording of the podcast was played for the court and Clark agreed it was. 

8 Clark also filed a motion for sanctions, alleging Hoffmann was in violation of the 

consent order. This was heard at the same time as Hoffmann’s motions. The 

court found Clark failed to resolve the alleged dispute prior to filing his motion for 

sanctions as required by the consent order and failed to prove Hoffmann willfully 

violated the consent order. 
9

This Court finds beyond a reasonable doubt that you’re referring to 

my Order, you were referring to the judicial system, and you were 

referring to Plaintiff and his business. And . . . also I find you beyond

a reasonable doubt are actively encouraging others to besmirch and 

badmouth and do whatever they can to cause distress to his 

business. I don’t know how you put a value on that. You weren’t 

here for the last hearing. An argument was made by [Hoffmann’s 

counsel]—correct me if I’m wrong—one item that is sold might be 

$2,000, something like that. You can never prove something that

didn’t happen. How many items . . . were not sold or could not be 

sold? How many sales were thwarted because of those negative

comments on your podcast? You’re attempting to goad him, and 

you’re getting it. Now you’re attempting to goad the Court, and I will 

not tolerate that. 

In its written order, the court sustained Hoffmann’s second motion for sanctions 

and ordered Clark to deposit $10,000 into the court registry within thirty days. The 

money would be forfeited if Clark violated the consent order again. Additionally, 

Clark was ordered to pay Hoffmann’s attorney fees of $3795 and travel costs of 

$1588.27, which were incurred for the second motion and hearing. Clark was also 

found in contempt for failing to pay $3187.34 from the March 14 order; he was 

given ten days to pay the sum to purge that contempt action. 

On May 16, Hoffmann filed a third motion for sanctions and second 

application for contempt. He asserted Clark had yet to pay any amount toward the 

sums ordered on March 14 or April 26. Additionally, Hoffman alleged Clark again 

violated the consent order. Specifically, a nonparty, Zac, posted a picture of a cup 

with MS3 Pro’s logo on Facebook. The photo was not directed at or involving 

Clark. But Clark then commented on the photo, “I cannot comment. The parties 

are in litigation.” The comment thread continued, with Zac stating, “Beeter boom

has an MS3, I know who I’d bet on if them two tangled lol.” According to Hoffmann, 

“Beater Bomb” is a racecar equipped with MS3 Pro and is owned by one of 
10

Hoffmann’s customers. Clark responded, “. . . but couldn’t make race last weekend 

because ‘electrical issues’” (alteration in original). The back and forth continued, 

and then Clark posted, “Zac, it’s ok. I still like you. You get worked up too easily, 

like I used to. You just need some shitty ecu[9] manufacturer to pay people to 

spread crazy stories about you, once that happens you’ll learn to calm down.” Zac 

seemed to understand Clark’s post was about Hoffmann’s company, as he 

responded in part, “That ecu manufacturer was the best thing since sliced bread 

when they were cutting you a paycheck.” After several more comments, some 

about Clark losing his job with Hoffmann’s company, Clark wrote again, “Oh, 

almost forgot. ‘I cannot comment. The parties are in Litigation’—just making sure.” 

Hoffmann asked the court to strike Clark’s answer and counterclaim, fine him $500 

for his contempt, jail him for “no less than 48 hours,” and award Hoffmann attorney 

fees for bringing the third motion. 

In July, Hoffmann moved to compel discovery.

On July 12, Hoffmann filed his fourth motion for sanctions and third 

application for contempt. Hoffmann, who lives in Georgia, said he recently learned 

Clark had filed in Iowa a petition for civil protection from Hoffmann. Clark’s petition 

claimed he and his fiancée feared Hoffmann. However, Hoffmann had not been 

served, and Clark refused to provide the petition and exhibits to Hoffmann’s 

attorney. Clark had filed the petition on April 25, the day before the hearing on the 

second motion for sanctions. 

 

9 Hoffmann explained “ecu” means engine control unit, which his company 

manufactures. 
11

The court heard Hoffmann’s third and fourth motions for sanctions on 

August 13. At the beginning of the hearing, the court informed the parties:

I’m inclined at this point, if there are further findings and even based 

on the prior findings of contempt, Plaintiff has asked for me to strike 

your Answer and your Counterclaim. Another option that I’m getting 

kind of creative with—and the more I think about it the more I like it—

is allowing plaintiffs to talk about it in front of the jury, and you don’t 

get to respond. They get to talk about all the findings of contempt 

and what they were about because I think a lot of them have to do 

with the genesis of this case, and it kind of sheds more light on their 

case in chief.

. . . .

. . . I am persuaded to grant the request to strike your Answer 

and Counterclaim, but I want some authority. I want more authority 

than what I’ve been given so far. If I’m not persuaded I can do that, 

I’m certainly at a minimum going to allow them to tell a jury . . . exactly 

how many times he’s been found in contempt, what he was ordered 

to do, and that it has not happened. And you are not going to be 

allowed to respond to that [Clark]. . . .

Clark responded he “would like to proceed today to be able to present my case. I 

don’t believe that my contempt is willful.” The court stopped Clark, pointing out he 

had already been found in contempt by the court twice and those rulings would not 

be reconsidered. The court continued:

I’m not saying I’ve ruled on what’s been alleged for today. But I’ve

already found you in contempt twice, and I ordered you to pay 

$10,000 here, attorney’s fees there, travel costs, knock it off, and 

those things didn’t happen. I’m saying that I’m considering letting the 

Plaintiff bring that up to the jury, and you would not get to respond. 

Hoffmann then presented as evidence printouts of the Facebook posts he outlined 

in his third motion for sanctions. When asked, Clark did not deny writing the 

comments and posting them; he argued it “looks to me as though employees or 

contractors, subcontractors of Mr. Hoffmann are baiting me.” The court asked, 

“And are you taking the bait?” and Clark responded, “I have. I have compulsion. 

I’ve taken the bait multiple times. That’s why I’m here.” 
12

Regarding the fourth motion for sanctions, Hoffmann noted the consent 

order provided that the parties would not file a charge or complaint against the 

other, which he asserted Clark violated by filing the petition for civil protection.

Hoffmann also suggested Clark had fabricated evidence or intentionally misled the 

court in filing the petition for protection, noting one of the exhibits attached to the 

petition purported to be a message from Hoffmann to a nonparty, Timothy, sent in 

October 2017 and stating, “If [Clark’s] not careful you’re not going to have to worry 

about him being around much longer. I’ll shut him down. I have a lot of 

ammunition, and I’m not kidding even a little bit.” When Hoffmann went through 

his own Facebook messages, he found he had sent a similar message—though to 

a different nonparty, Mark—and it actually said, “If he’s not careful you’re not going 

to have to worry about him being around much longer. I will shut him down. I have 

a lot of ammunition. My lawyer is chomping at the bit, and I’m not kidding even a 

little bit.” (Emphasis added.) Clark maintained he submitted the exhibit exactly as 

he received it from Timothy, although a written submission included with the 

application, which took out “My lawyer is chomping at the bit” from Hoffmann’s 

message, used ellipsis to show something had been removed—suggesting the 

writer was aware that a more complete version of the message existed.

10

 Raising 

additional questions about Clark’s motive for filing the petition, Hoffmann pointed 

out the alleged basis was vandalism to Clark’s fiancée’s property that occurred in 

January, but Clark and his fiancée did not file the petition for protection until March, 

 

10 The written submission read, “If he’s not careful you’re not going to have to worry

about him being around much longer. I will shut him down. I have a lot of 

ammunition . . . and I’m not kidding even a little bit.” 
13

were silent about it at the April hearing on sanctions, and never actually had 

Hoffmann served. 

Clark argued that while he had not paid any money toward his sanctions, 

he “tried four separate times” to get Hoffmann to accept payments from him. He 

later seemed to change his statement, telling the court, “Long story short, as far as 

my willful contempt of court, I cannot afford sanction payments. I made that very 

clear. I provided financial documentation to their satisfaction that they requested. 

I turned it over happily. I offered to do the best that I possibly could.” Clark argued 

“nonpayment of sanctions part is not because of willful or reckless behavior.” The 

court asked him what sums he had paid toward the sanctions, and he responded, 

“Zero,” again claiming Hoffmann would not take money from him. Hoffmann 

denied turning down money from Clark, and the court informed Clark the clerk of 

court was the receiver of the money. Clark responded, “My mistake is that I 

understood that I was to negotiate with [Hoffmann’s attorney].”

11

 The court 

seemed to believe this could have been a misunderstanding, but then Clark was 

unable to explain why he thought an order telling him to pay $10,000 to the court 

registry was also meant to be paid to Hoffmann. 

During the same hearing, the court heard Hoffmann’s motion to compel 

discovery. When asked under oath, Clark admitted he operated Facebook 

accounts under his name, his business name, and two aliases, though he had not 

provided any discovery response for the accounts of the aliases. 

 

11 At the same hearing, the court considered Clark’s motion for sanctions, which, 

based on the content of the motion and with agreement from Clark at the hearing, 

was determined to be a motion to reconsider the court’s previous contempt 

sanctions against Clark. The court overruled the motion. 
14

The court ruled from the bench, concluding Hoffmann’s third and fourth rule 

to show cause were proved beyond a reasonable doubt. The court was 

“persuaded to grant the request to strike [Clark’s] answer and counterclaim” but 

asked for a brief with authority about sanctions available to the court. 

In the court’s August 31 order, it concluded Iowa Rule of Civil Procedure 

1.517(2)(b)(3) permitted the court to strike the pleadings of a disobedient party 

and, because Clark willfully violated the consent order in bad faith, Clark’s answer 

and counterclaim were stricken. Additional financial sanctions were denied. The 

court sustained Hoffmann’s motion to compel discovery in part,12 ordering Clark to 

provide within five business days his login and password for any and all Facebook 

accounts he posted under, a description of all classes Clark taught or put on (along 

with other information about the specific classes), all written communications 

between Clark and a California attorney that Hoffmann believed may be ghostwriting Clark’s filings,13 Clark’s full judicial history, and Clark’s petition for civil 

protection and the exhibits.

Hoffmann filed a fifth motion for sanctions and request for incarceration on 

November 20, 2018. He asserted Clark had violated the motion to compel, 

refusing to turn over his login credentials for Facebook or his communications with 

the California attorney. Clark had also not provided his full judicial history or all of 

the information relating to his classes. Hoffmann also alleged Clark had again 

violated the consent order by continuing to post disparaging comments about 

Hoffmann and his products on Facebook, including a comment that stated, “NO 

 

12 Clark also filed a motion to compel discovery, and it was sustained in part. 

13 Clark maintained he was pro se and was not receiving advice from any attorney.
15

‘10% prices increases so we can spend more money suing little guys’ behavior at 

RealTuners. We’re read [sic] blooded Americans, not Nazis.”

14

 

The next day, the court filed a rule to show cause, ordering Clark to appear 

on November 29 with “all documents described and sought in plaintiffs’ fifth motion 

for sanctions.” 

Hoffmann supplemented his fifth motion for sanctions on November 28, 

alleging that on November 22, Clark had changed his profile picture on Facebook 

to an image with the words, “STOP MEGASQUIRT LAWSUIT” and the website 

“REALTUNERS.COM/LEGALFUND.” The website included the following:

For the past 2 years RealTuners and their customers have been 

harassed, stalked, threatened, and ultimately sued by 

DIYAutotune.com for discussing faulty products and problems in 

public. We showed that they knew about problems and were 

dishonest about them. DIY has spent an estimated $300,000 in a 

civil lawsuit, after their attempts at a “criminal” case failed. You may 

have seen their website about us... it was quite interesting. NOW –

we are at the point where their Attornies have convinced the court to 

demand I turn over financial information and contact names of all 

customers, and my personal facebook account, which they’ll use to 

harass our customers and further damage our business. They also 

seek to shutdown RealTuners Radio. This is an industry-typical “War 

of Attrition” and a David vs. Goliath story. 

It asked people to donate, share the story, and urge Hoffmann to stop the legal 

action against Clark and included the contact information of Hoffmann, some 

DIYAutotune employees, and some of Hoffmann’s business partners. Additionally, 

on Facebook, some nonparties asked about the lawsuit, and Clark responded to 

some, including telling one person, “[O]ther parties all are involved in this because 

they are actively communicating with my customers in an effort to steer business 

 

14 On November 20, the case was assigned to a new judge, following Judge 

Christensen’s appointment to the Iowa Supreme Court. 
16

away from us. All of those businesses accept royalties from diy sales and all were 

aware of product problems but kept quiet in order to keep royalties flowing.” 

Another nonparty posted, “One ploy may be to get everyone to send Registered 

Letters with signature required to DIY’s legal counsel denying the use of our 

information. That would tie up their resources for awhile. Again, not a lawyer but 

I think there is a way.” Clark then responded, “great advice as always” to the post 

and then, several minutes later, posted a link to the website of Hoffmann’s 

attorneys. Clark then posted again, claiming, “This story is about big money trying 

to silence a whistle blower. Do you know what can happen when your fuel injectors 

locked upon a running engine? A couple people discovered the hard way and I’ll 

be talking about that.” Another nonparty commented, “Sharing it with everyone I 

can [Clark].” In other posts discussing the lawsuit, Clark said, “[J]udges are 

lawyers. Lawyers are a tight knit group.” In response to one nonparty stating, in 

part, “Sometimes it’s a sad corrupt world,” Clark posted, “You NAILED it. They 

hired local lawyers who have lunch with all the judges here.” At least one person 

responded to the line of posts, saying, “Wow, had no idea about any of this. Looks 

like I will never be doing business with diyautotune.” 

Clark came to the November 29 hearing without the discovery he was 

ordered to bring, and he told the court he would not turn over some of the Facebook 

information that was ordered. He claimed he was trying to hire an attorney to 

represent him but needed more time to find one. The court found Clark was in 

willful contempt of court orders but decided to wait to determine the punishment 

until Clark obtained a lawyer; he was given one week to find a lawyer and have 

them file an appearance in the matter. However, he was assessed the attorney 
17

fees and traveling fees for Hoffmann, as he and his attorney had again traveled 

from Georgia for the hearing. Additionally, from the bench, the court ruled:

[U]ntil the time that we have a hearing on the show cause, you may 

not go online and post anything, any comments about Mr. 

Hoffmann’s business, not through your own identity, not through 

another person’s identity. If there is a person related to you, you

better ask them to do you a big favor and not post any negative 

comments about this. I will not have any further delays or any further 

increase in damages in this case. . . .

. . . .

Mr. Clark, you will further be refrained from referring to this 

litigation, referring to this Court, referring to anything related to this

litigation.

On December 6, Hoffmann filed his sixth motion for sanctions. In it, he 

complained Clark continued to violate the court’s orders by discussing the lawsuit. 

Clark, who had previously posted he may be jailed for his contempt before the 

November 28 hearing, responded to a question about how court went, stating he 

was “at [his] home, having a super good day, getting ready for class in FL this 

weekend.” This led to others responding with their thoughts about the litigation. A 

few days later, Clark posted the image from the “get out of jail, free” card from the 

game Monopoly. He also continued to post about and sell clothing with the phrase 

“Free RealTuners” imposed on a jail cell. The website to buy the shirts included a 

description, stating, “FREE REALTUNERS—help us fight huge companies trying 

to shut us down because we speak truth.”

The same day, Clark filed a document titled “Suggestion in Bankruptcy,” in 

which he claimed he filed for protection under the bankruptcy laws on March 15, 

2016, and “suggest[ed] that this action has been stayed by the operation of 11 

U.S.C.A. § 362.” Hoffmann filed a response, asserting Clark’s action for 
18

bankruptcy, filed before Hoffmann initiated his lawsuit, did not stay the 

proceedings. 

Hoffmann filed his seventh motion for sanctions on December 17. In this 

motion, he maintained Clark violated the court’s orders when he, on December 10, 

posted on Facebook:

[A] quick update on the legal issues facing us: thanks to your support

and donations #RealTuners was able to obtain legal advice that put 

the brakes on our aggressor’s activity: one smart attorney amongst 

you, after reviewing all the 1000+ pages of paper thrown at us in the 

past 12 months - discovered a technical error on the part of DIY’S 

lawyers. As it turns out, you must pass tech to race on this surface!

A simple note to the Court on OUR part effectively ends 

DIYAutotune’s distracting and harassing legal activity against 

#RealTuners classes and our podcast. We filed it Thursday.

Personally I’m sure DIY will still seek to drag this out, and via 

their facebook goons keep the crap going on social media (as if it 

ever stopped) because if you spent deep six figures only to lose on

a minor technicality, so would you. Ylkes! That’s A LOT of money 

poured straight down the drain! I wonder if they’ll get their money 

back, and put it to better use??

Also, at our hearing last week I was able to avert their request 

to incarcerate me for refusing to turn over all our electronic 

communications with all #RealTuners customers: thereby protecting 

both our intellectual property and theirs (yours!). I had prepared

myself for this, just in case. Under no circumstances will I be 

releasing confidential information or intellectual property (your tune 

files!) to third parties without permission. Period. There may be 

some followup activity on our part to “quash” this request (yes, that 

is a legal term) but it’ll be dead along with their lawsuit soon enough.

Stay tuned as there are sure to be updates, but it looks like 

there is light at the end of the tunnel!

This post by Clark then generated a number of comments and posts from 

nonparties about Clark, Hoffmann, and their thoughts on the litigation. 

In spite of his Facebook post saying he had been able to obtain legal advice, 

Clark appeared at the December 19 hearing pro se, reporting he had yet to find an 

attorney to represent him. As with all the other hearings, Clark did not deny writing 
19

or posting the comments identified by Hoffmann; he just denied they violated any 

orders or claimed a lack of understanding of what was required of him. At the 

hearing, when the court was discussing what discovery Clark had yet to complete 

despite a court order to do so, Clark responded, “Facebook is not ever going to 

happen. I apologize. That’s simply not going to happen, okay?” The court then 

confirmed, “Mr. Clark, on November 29th you were ordered to produce to the 

Plaintiffs’ lawyers everything that was required by the court’s August 31st 

hearing. . . . [B]ut for sure you’re not turning over and you’re refusing to turn over 

the Facebook information, is that correct?” Clark agreed, “That is correct, Your 

Honor.” Ruling from the bench, the court again found Clark in contempt based on 

the actions alleged in both the sixth and seventh motions for sanctions; he was 

ordered to spend thirty days in jail and fined $500. In its written order, the court 

noted Clark had yet to pay any of the plaintiffs’ attorney fees or travel costs since 

some were first ordered on March 14, had yet to pay any amount to the court 

registry since ordered on April 26, and continued to refuse to comply with discovery 

orders. 

On January 23, an attorney filed an appearance for Clark. By consent of 

the parties, the jury trial, which had been scheduled to take place in February, was 

continued.

Before a March 20, 2019 hearing, Hoffmann filed an eighth, ninth, and tenth 

motion for sanctions. Each alleged further violations by Clark, by failing to turn 

over his Facebook account information and continuing to post disparaging 

comments about the lawsuit, Hoffmann, and Hoffmann’s products on the internet. 

Clark’s attorney attended the hearing in person, but Clark failed to do so in spite 
20

of a court order requiring his presence. He participated by telephone, telling the 

court he did not attend in person because he did not want to be arrested and put 

in jail.15 The court found Hoffmann in contempt for failing to appear at the hearing 

and for his recent social media posts. The court also found him in contempt for his 

continued refusal to turn over his Facebook history, noting that while Clark claimed 

it contained “privileged” information, this was a self-designation made by Clark, 

who had not proved any privilege existed or applied in this case.

16

 The court 

entered a protective order months before, which prevented each party from 

disclosing or using the other’s information, but this had not caused Clark to turn 

over the information he was ordered to provide. And while Clark had just recently 

complained about the size of the information he was ordered to give Hoffman, the 

court concluded he had not shown he was “unable to comply with the order . . . 

only that he is unwilling to do so.” The court granted Hoffmann’s eighth, ninth, and 

tenth motions for sanctions and ordered Clark to turn himself into the local jail on 

April 22 for a ten-day sentence for those contempts. The court also ordered Clark 

to serve three additional days for failing to personally appear at the hearing. 

Finally, the court ordered Clark to serve “an indefinite term . . . for the willful 

 

15 This statement must have been made before the court opened the record; it 

does not appear in the transcript, although Hoffmann’s counsel alluded to such a 

statement being made and the court included it in its written ruling. 

16 At the same hearing, the court considered Clark’s motion for adjudication of law 

points regarding Hoffmann’s claim Clark breached the noncompete clause. The 

court denied the motion, ruling that because Clark’s answer and counterclaims 

were stricken, Clark was “barred from obtaining any relief raised in defense of this 

lawsuit” and the “only issue remaining for trial is Plaintiffs’ claim for damages 

against Defendants.” The court also considered and denied Clark’s motion for 

sanctions, in which he alleged Hoffmann had violated the court’s previous order 

compelling Hoffmann to comply with discovery. 
21

contempt of this court’s orders requiring him to provide discovery, names his 

Facebook account information and history, to the Plaintiffs.” The term of 

incarceration was to end when Clark turned over the ordered information. 

On April 25, Hoffmann filed his eleventh motion for sanctions. Hoffmann 

alleged Clark was using the Facebook account of a nonparty, Mark, to continue 

posting comments about the litigation on social media. Specifically, when a 

nonparty commented they did not understand how Clark could be ordered to 

produce his Facebook information since “[t]he law says you aren’t required to give 

any information that could be self incriminating,” Clark (using Mark’s account) 

responded:

EXACTLY (this is Scott posting). That’s why I am not turning it over. 

The Judge was appointed to her position by Hoffmann’s attorneys 

local to me (he has 4). If you’re into reading 3000+ pages, there are 

a number of ‘errors of law’ and ‘errors of fact’ being forced on me. 

And I am refusing to be incarcerated illegally. We could easily appeal 

this—if we had $50,000 to pay for it. 

Clark did not turn himself in to serve his contempt sentences, and a bench 

warrant was issued for his arrest on April 26. He was eventually arrested on May 

16. 

At a status hearing on May 17—scheduled before Clark was arrested—the 

court advised the parties that on May 3, court administration informed her that 

Clark had posted on Facebook that he was leaving Iowa to avoid his warrant and 

then also posted a link to the judge’s personal Facebook page. The court told 

Clark he was being found “in direct contempt . . . for posting those things” and it 

would be considered further in a later hearing—along with Hoffmann’s eleventh 

motion for sanctions. Clark stated he was now willing to turn over his Facebook 
22

history, and the court made arrangements for Clark to have access to his computer 

while in jail in order to download the Facebook history from his personal account 

and any other accounts he had used or posted under. 

On June 14, Hoffmann filed his twelfth motion for sanctions, which he later 

supplemented on June 27. In the original motion, Hoffmann outlined more social 

media posts where Clark spoke about the lawsuit and maligned the court, stating:

2 weeks on the road. Good news: class tomorrow in 

Kentucky!

Crap news: can’t go home to Iowa, because some shady 

judges, lawyers, and a hyper-wealthy stalker who believes Jesus told 

him to kill me, are winning. There actually exists a bench warrant for 

my arrest. . . . because I refused to forfeit my right not to give 

privileged information in a shady lawsuit trying to “shut me down in 

Jesus name”—I kid you not.

If anyone is interested in a nice little home on 5 acres with lots 

of trees in southwest Iowa, hit me up. . . . 22 years there, I’m not 

paying anymore iowa property taxes after what we have seen 

taxpayer dollars fund in iowa courts, we aren’t supporting that kind 

of racket anymore

(First ellipsis in original). As mentioned at the status hearing, Clark then posted a 

link to the presiding judge’s personal Facebook page, stating, “Here’s my judge. 

She’s a social media starlet.” When nonparties commented, suggesting fleeing 

the state due to an arrest warrant was not a good idea, Clark responded, “Don’t let 

Jerry Hoffmann fool ya. he’s the one with felony drug sales charges. Not me. I 

just stopped participating in a clearly biased and bogus lawsuit designed to distract 

you from the fact his products. . . still aren’t fixed.” (Ellipsis in original.) Clark also 

posted apparent threats toward Hoffmann’s attorney, stating, “His lawyer told me 

on Weds ‘We didn’t intend for you to be pushed out of your house and home state.’ 

My response: ‘I didn’t intend for you to have a compound fractured pelvis either[.]’”
23

At the June 27 hearing, Hoffmann complained that while Clark had turned 

over some of the ordered Facebook information, the information only went through 

August 2018 and, even then, did not include pictures or videos. Plus Clark 

provided Facebook information from only his personal page, not the aliases he 

used or the Facebook information for his friend Mark, whose account Clark 

admitted using to post. Clark, who again refused to appear in person, participated 

by telephone; his attorney was personally present at the hearing. Ruling from the 

bench, the court found Clark in contempt for posting the judge’s personal 

Facebook page and for failing to personally appear. In a written order, the court 

also found Clark in contempt for the willful actions outlined in Hoffmann’s eleventh, 

twelfth, and supplement to the twelfth motions for sanctions and for failing to turn 

over all Facebook information for all accounts he posted under. The court 

sentenced Clark to sixty days in jail and fined him $500 for each category of 

contempt ($2000 total). The court gave Clark the option to purge his jail sentence 

and fines if he appeared and participated in a mental-health evaluation with a 

specific doctor on a specific date. Additionally, the court ruled:

This court is at a loss for how to move this case forward to a trial on 

Plaintiffs’ damages, the only remaining issue in this case, without 

further hearings for contempt by the Defendant. This case is set for 

trial on August 20, 2019. Any further applications for contempt will 

be addressed in a pre-trial hearing or at trial in the context of 

damages. No further contempt hearings will be held before trial on 

August 20, 2019.

On July 9, Clark filed a “report to the court,” in which he claimed he had two 

Facebook accounts “that are permanently locked” so he was unable to provide 

information from those accounts and that he had no “instant messages” available 

to give because he stopped using that feature two years earlier. He informed the 
24

court his friend Mark, whose account he had used, “refuses to give the defendant 

his [F]acebook information.” 

Following an unreported hearing on July 17 “on Defendant’s discovery 

responses and compliance status with previous court orders,” the court filed an 

order noting that Clark had made conflicting statements about his use of Facebook 

Messenger. The court ordered Clark to “confirm the location of the Facebook

messages within the archive previously provided or provide the messages in 

another format”; to “file an official notification from Facebook about the status of 

his locked accounts no later than 5 p.m. today”; and “identify his Facebook 

messages within his Facebook archive or otherwise produce his Facebook 

messages to the Plaintiffs by 5 p.m. today.”

17

On August 12, Hoffmann filed a document with what he contended were 

100 “undisputed or stipulated facts” because Clark’s answers and counterclaims 

were stricken. Hoffmann also filed a motion Iimine, asking the court to instruct 

Clark that, at trial, Clark was not allowed to comment on Clark’s defenses, 

including but not limited to “any testimony about the quality of Hoffmann products 

or anyone else’s opinion about Hoffmann products and dissimilarity between 

Parties’ businesses”; Hoffmann’s alleged conduct, including any allegation or claim 

of wrongdoing; any effect of litigation on Clark, such as having to move or a drop 

in business; statements about the parties’ wealth or success; and the motion in 

limine and striking of Clark’s pleadings. Clark responded to the motion in limine, 

agreeing the only issue remaining in the litigation was damages but arguing 

 

17 On July 19, Clark filed a motion asking the judge to recuse herself. Hoffmann 

resisted, and the court denied the motion in a written ruling on July 25. 
25

Hoffmann was still required to prove damages were caused by Clark or 

RealTuners, LLC and in what amount, so “[d]efendants must be allowed to provide 

testimony or evidence that would challenge the amount of damages sought by the 

plaintiffs.” 

Clark filed a motion in limine the next day, asking the court to strike all of 

Hoffmann’s trial exhibits18 because he failed to file an exhibit list at least fourteen 

days before trial, as required by the trial scheduling and discovery plan filed on 

February 15, 2018. 

Following an unreported pretrial conference, the court filed an order on 

August 16, granting Hoffmann’s motion in limine entirely. The court denied Clark’s 

motion in limine, ruling:

While not filed 14-days in advance of trial as set out in the trial 

scheduling order, the Plaintiffs’ exhibits list filed 8-days in advance 

of trial provides Defendant with a fair opportunity to prepare for trial 

and avoids unfair surprise to Defendants. Furthermore, any delay in

Plaintiffs’ filing has been caused in part by the Defendants’ own 

failure to provide discovery to Plaintiffs, namely his Facebook history, 

for nearly a year. At the pretrial hearing, the court was informed that 

the Defendant has yet to comply with this court’s most recent order 

to Defendant, Scott Clark, to identify his Facebook messages in his

downloaded Facebook history, or to provide a new download of the 

Facebook history, including messages to the Plaintiffs by 5 p.m. on 

July 17, 2019. The Defendant has yet to comply with the court’s July 

17, 2019 order. The Defendants cannot show they have been 

disadvantaged, or surprised, by the late filing of the exhibit list when 

the Defendants have failed to comply with discovery rules and orders 

of this court concerning discovery of the Defendants’ Facebook 

history. For these reasons, the Defendants’ motion in limine 

concerning the late filing of the Plaintiffs’ exhibit list is DENIED.

IT IS FURTHER ORDERED THAT the Defendant, Scott 

Clark, provide a copy of the Defendants’ Facebook messages in an 

*.html format, or other readable format, to the Plaintiffs no later than 

 

18 Clark also asked the court to strike Hoffmann’s one witness that was not himself. 

This was also denied. 
26

8 a.m. on Monday, August 19, 2019. Failure to comply with this order 

will result in further sanctions to the Defendants.

On August 19, Clark filed a motion asking the court to deny Hoffmann’s 

request for attorney fees from “the court and/or the jury” because “[t]he 

noncompete clause does not mention attorney fees” and “no statute involved in 

this case that would allow the award of attorney fees.” Hoffman responded, 

asserting attorney fees could be awarded in tort actions under common law “when 

a losing party has acted in bad faith, vexatiously, wantonly, or for oppressive 

reasons.”

Also on August 19, Hoffmann filed another application for rule to show 

cause, asserting Clark had still not provided his entire Facebook history, did not 

provide what was turned over in the format ordered by the court, had not proved 

he attended the mental-health evaluation, and continued to talk about the litigation 

on Facebook. 

Before the jury trial began on August 20, Hoffmann advised the court that 

he had filed what he believed were stipulated facts, to which Clark had not 

objected, and thought it would be best if the court read those facts to the jury before 

his opening statement. Clark did not personally attend the first day of trial, but his 

attorney was present, and on Clark’s behalf he “object[ed] to the Court reading 

facts and evidence into evidence.” The court responded it was “open to how this 

gets presented to the jury” but “the jury does need to know that this case is kind of 

starting not at square one but we’re starting a few steps ahead and all their 

responsibility is . . . to calculate damages in this case.” Hoffmann suggested the 

stipulated facts might be included in the jury instructions, and the court responded 
27

“that might work” before asking Clark how he thought the facts should be presented 

to the jury. Clark responded, “Okay. Well, I just want it noted that I object to you 

reading that to the jury or being it offered without foundation.” After further 

discussion about what the facts should be referred to in front of the jury and how 

they might be presented in jury instructions, Clark stated, “So the record is clear, I 

object to your reading the stipulated facts to the jury.” The court responded, “And 

I’m not [going to] call them stipulated facts. I’m [going to] call them facts deemed 

admitted, and I note your objection, and your objection will be overruled.” 

The jury trial lasted three days; Clark never appeared for it. Hoffmann and 

his wife were the sole witnesses. Hoffmann testified about Clark’s actions from 

the time of his termination until trial started, including a number of negative posts

Clark had written and the forums in which he shared those posts. Hoffmann also 

testified about the impact Clark’s ongoing, negative statements about Hoffmann 

and Hoffmann Innovations had on his employees, their customers, and the 

resellers with whom he used to do business. Hoffmann’s wife testified regarding 

how Clark’s actions had affected Hoffman personally. 

As part of the jury instructions, the jury was given a list of the 100 “facts 

deemed admitted” as well as the instructions on the relevant law. Clark’s attorney 

“object[ed] to all facts deed admitted,” stating, “I don’t think it was proper for the 

Court to have sanctioned my client by striking all of his pleads.” 

On the first page of the special verdict for given to the jury, it was told:

With the exception of damages, the Court has determined that 

Plaintiffs have proven all the propositions regarding the instructions 

on: spoliation of evidence; breach of fiduciary duty; breach of 

contract; civil extortion; and, libel (slander) per se.
28

Your duty is to determine whether Plaintiffs have proven 

damages and, if so, the amount.

The jury returned a verdict for Hoffmann and Hoffmann Innovations in the amount 

of $11,000,000, with $4,939,750 against Clark and $6,060,250 against 

RealTuners. Specifically, the jury awarded:

Amount Awarded to Awarded against Legal claim

$500,000 Hoffman Clark libel per se

$500,000 Hoffman RealTuners libel per se

$2,060,250 Hoffmann Innovations Clark libel per se

$2,060,250 Hoffmann Innovations RealTuners libel per se

$27,000 Hoffmann Innovations Clark breach of fiduciary duty

$102,500 Hoffmann Innovations Clark breach of contract

$250,000 Hoffmann Innovations Clark civil extortion

$2,000,000 Plaintiffs Clark punitive damages

$3,500,000 Plaintiffs RealTuners punitive damages

Clark and RealTuners filed a motion for judgment notwithstanding verdict 

(JNOV) on September 3, alleging Hoffmann “provided no evidence of damages 

other than the unsupported claims by plaintiff Jerry Hoffmann” so the court should 

have sustained his motions for directed verdict. He also filed a motion for new trial 

and request for remittitur, arguing the damages testified to at trial were not 

supported by substantial evidence, but even if they were, those damages were for 

$4,500,000 for Hoffmann Innovations and $1,000,000 for Hoffmann—substantially 

less than the $11,000,000 awarded. Clark also claimed “the jury should not have 

been given instructions concerning the bad acts of the defendants since [the court 

sustained Hoffmann’s motions for directed verdict and] that was no longer an issue 

at trial . . . .” and challenged the court’s decision to allow Hoffmann to introduce 

exhibits and the testimony of Hoffmann’s wife when Hoffmann’s exhibit and 
29

witness list were not provided fourteen days before trial. Hoffmann resisted both 

of Clark’s motions. 

On October 1, the court heard Clark’s post-trial motions, as well as issues 

that remained following the trial, including Hoffmann’s request for attorney fees; an 

injunction; and another motion for rule to show cause filed by Hoffmann on the eve 

of trial, which he also supplemented after trial. Clark again failed to personally 

appear in spite of being ordered to do so; he participated by telephone. 

Clark maintains his motions should be granted, reiterating that Hoffmann’s 

testimony alone was not sufficient to support the jury’s award—not the $5,500,000

he asked for or the amount awarded by the jury. He also challenged the jury’s 

award of punitive damages, arguing the amount was too much considering the jury 

had little evidence of Clark’s net worth. Clark asserted the jury based its award on 

being “upset Mr. Clark did not appear at trial, they just felt sorry for Hoffman and 

his wife.” Regarding Hoffmann’s motions, when discussing the request for attorney 

fees, Hoffmann’s attorney stated he had subtracted the amounts previously 

awarded by the court from the amount of requested fees, affirming “these are 

things that have not already been awarded.” Like his written response to the 

request for fees, Clark argued attorney fees are only allowed under statute or 

contract; for the first time, he also argued if Hoffmann was relying on equitable 

principles for the fees, he could only be awarded fees incurred to get the equitable 

relief—the injunction—and not the monetary damages. Hoffmann also argued in 

favor of extinguishing the consent order but enjoining Clark from making other false 

statements about him and his products. 
30

In its later written ruling, the court denied Clark’s motion for JNOV and new 

trial. It granted Hoffmann’s request for an injunction, and enjoined Clark and 

RealTuners from

speaking, posting or otherwise publishing false, deceptive or 

disparaging comments about the Plaintiffs and are specifically

enjoined from making the following admittedly false statements 

about Hoffmann or Hoffmann Innovations:

1. That Hoffmann or Hoffmann Innovations knowingly or 

otherwise sold/sells defective products and/or products that they 

could not/cannot support;

2. That Hoffmann or Hoffmann Innovations sold defective 

products out of greed;

3. That Hoffmann or Hoffmann Innovations is dishonest in 

business dealings;

4. That Hoffmann or Hoffmann Innovations has sold/sells 

dangerous or fire prone or explosion-prone products;

5. That Hoffmann or Hoffmann Innovations published false 

failure rates associated with their products/services;

6. That Hoffmann or Hoffmann Innovations published false 

information relating to damages caused by their products; and/or

7. That Hoffmann or Hoffmann Innovations published untrue 

things about Clark relating to his income, reputation and whether he 

destroyed engines.

Additionally, the court granted Hoffmann’s request for attorney fees, finding

the Defendants doggedly and relentlessly published false, 

disparaging and damaging information about Plaintiffs in multiple 

mediums and multiple forums. The court attempted to quell the 

damage by sanctioning the Defendants and by prohibiting the parties 

from posting or publishing disparaging comments about each other 

in January 2018, however the Defendants ignored the court's orders 

entirely and repeatedly. When the court prohibited the Defendants 

from posting or making comments about this litigation in any respect 

in an effort to reduce the number of contempt applications filed with 

the court, the Defendants began posting disparaging comments 

about the court and the legal system in general, including requesting

donations to a legal defense fund. . . .

. . . .

Furthermore, the Defendants blatant disregard for the legal 

process and the court's orders resulted in numerous contempt 

hearings in this matter. The Defendants' defiant conduct delayed 

litigation, wasted court resources, and drove up the expenses in this 

case, including the Plaintiffs' attorneys' fees.
31

The court ordered Clark and RealTuners to pay $210,743.21 of Hoffmann and 

Hoffmann Innovations’ attorney fees.19

Clark and RealTuners appeal. 

II. Discussion.

A. New Trial: Improper Striking of Answer and Counterclaims.

Clark and RealTuners maintain they are entitled to a new trial because the 

district court improperly struck their answer and counterclaims as a sanction for 

Clark’s repeated willful violations of the consent order and other court orders. “We 

review a district court’s order imposing sanctions under our rules of civil procedure 

for an abuse of discretion.” First Am. Bank v. Fobian Farms, Inc., 906 N.W.2d 736, 

744 (Iowa 2018) (citation omitted).

To start, we have to determine the appropriate scope of our review. Clark 

advocates our review of whether the court was right to strike the answer and 

counterclaims is limited to his actions at the time the court ordered the sanction—

after Hoffmann’s fourth successful motion for sanctions. But Hoffmann suggests

that we should consider Clark’s actions through all twelve successful motion for 

sanctions. 

Clark cites Kendall/Hunt Public Co. v. Rowe, 424 N.W.2d 235, 240 (Iowa 

1988) for the proposition that the court is to consider the record as it existed at the 

time the sanction was entered in determining whether the sanction was 

appropriate. In Kendall, the district court entered a default judgment against the 

 

19 Based on the affidavit filed after trial by Hoffmann’s attorney, Hoffmann asked 

the court to award $211,787 in attorney fees. It is not clear from the court’s ruling 

why it reduced the requested award by approximately $1000. 
32

defendants in September 1984 after they failed to comply with the court’s discovery 

order. 424 N.W.2d at 238. Then, about a month later, the defendants’ attorney 

filed a motion to set the default judgment aside, which the court ultimately granted, 

determining the default never should have been entered as a sanction in the first 

place because the failure to comply with discovery was not due to willfulness, fault, 

or bad faith. Id. at 239–41. After the defendants were successful at trial, the 

plaintiff appealed the district court’s decision to set aside the default. Id. at 237. 

In considering whether the district court was right to set aside the default judgment, 

we recognize our supreme court said it was “turn[ing] to the record in this case as 

it existed on September 5 when the default was entered.” Id. at 240. But we do 

not think this stands for the proposition that sanction decisions should always be 

reviewed as the record stood at the time when they were entered. Ultimately, the 

court upheld the district court’s decision to reconsider the earlier sanction and set 

aside the default judgment and, in doing so, reiterated, “A trial judge may usually 

correct his or her own ruling or that of another judge of the same court anytime 

before a final judgment.” Id.

Here, given Clark’s continuing pattern of behavior throughout this case, we 

believe we should consider all of Clark’s willful violations—even those that took 

place after the court ordered his answer and counterclaims to be struck—to 

determine if the sanction is appropriate. We reach this conclusion because, while 

the pleadings were struck relatively early in the pendency of the case, the 

enforcement or consequences of that sanction did not take place until the jury trial 

and the court could have reconsidered its sanction decision anytime up to the trial. 

And, Clark can hardly complain where his own behavior throughout this case 
33

supports what the district court foresaw, he would not be deterred from violating 

the court’s orders. We think it could lead to an absurd result if we consider just 

Clark’s actions leading up to the fourth willful violation; if his actions up to the fourth 

sanction did not warrant striking his pleadings but his actions up to time of trial did,

why should Clark get the benefit of a new trial? Even so, we find the sanction was 

warranted when it was issued.

The district court relied on Iowa Rule of Civil Procedure 1.602(5) to strike 

Clark’s pleadings. Rule 1.602(5) provides that “[i]f a party or party's attorney fails 

to obey a scheduling or pretrial order, . . . the court, upon motion or the court's own 

initiative, may make such orders with regard thereto as are just, and among others 

any of the orders provided in rule 1.517(2)(b)(2)-(4).” Rule 1.517(2)(b)(3) explicitly 

gives the court the right to enter an order “striking out pleadings or parts thereof, . 

. . or rendering a judgment of default against the disobedient party.” 

On appeal, Clark is not disputing the district court had the authority to strike 

his pleadings. He claims the sanction was too harsh or unreasonable in light of 

his actions and their effect on the litigation. He contends the court’s decision to 

strike his pleadings and then deem all of Hoffman’s allegations as admitted facts 

was tantamount to entering a default judgment against him for each of Hoffmann’s 

claims, and Clark reiterates that “[b]ecause the sanctions of dismissal and default 

judgment preclude a trial on the merits, the range of the trial court’s discretion to 

impose such sanctions is narrow.” Troendle v. Hanson, 570 N.W.2d 753, 755 

(Iowa 1997). The district court did not enter default judgment in favor of Hoffmann; 

he was still required to prove to the jury that he suffered damages as a result of 

each of Clark’s complained-of actions and the amount of damages suffered. 
34

However, we recognize the sanction imposed greatly circumscribed the issues to 

be determined by the jury, and the district court’s discretion “narrows” when the 

sanctions are more drastic. See Kendall, 424 N.W.2d at 240. 

Clark urges us to evaluate his claim by considering factors used by at least 

some federal courts when deciding whether to impose a more extreme sanction, 

such as dismissal. See id. at 242 (noting Iowa Rule of Civil Procedure 134, now 

renumbered rule 1.517, mirrors Federal Rule of Civil Procedure 37 and cases 

under rule 37 are persuasive authority); R.E. Morris Invs., Inc. v. Lind, 304 N.W.2d 

189, 191 (Iowa 1981) (“[W[e note that the federal courts have recognized 

constitutional limitations on the imposition of sanctions pursuant to [rule] 37 . . . 

and decisions in the federal courts interpreting that rule are of persuasive 

authority.”). We accept Clark’s invitation and review his actions20 while considering 

the following factors:

(1) the degree of actual prejudice to the [non-violating party]; (2) the 

amount of interference with the judicial process; . . . (3) the culpability 

of the litigant; (4) whether the court warned the party in advance that 

dismissal of the action would be a likely sanction for noncompliance; 

and (5) the efficacy of lesser sanctions.

Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (alteration in original) 

(citation omitted). 

 

20 When reviewing the district court’s imposition of sanctions, “[w]e must . . . be 

satisfied that substantial evidence supports any factual findings necessary to the 

court’s exercise of its discretion.” Troendle, 570 N.W.2d at 755. Clark has not 

challenged any of the factual findings against him (although he challenges some 

of the context surrounding his posts, arguing they were just “ambiguously 

negative”). But, even if he did, our review of the record convinces us the fact 

findings against Clark following each motion for sanctions are supported by 

substantial evidence. 
35

Because Clark has limited his review of his actions to the first four sanction 

hearings, he maintains Hoffmann and Hoffmann Innovations “did not suffer any 

actual prejudice” because his early behavior “had [nothing] to do with any claimed 

discovery violation or impeding [their] ability to prosecute their case.” We disagree. 

In this case, which began with each party asserting the other was harming their 

business by dishonestly disparaging them and their products in public, the ability 

to determine the amount of damage caused to them and their respective 

businesses was always going to be difficult. It was hard to ascertain how many 

people saw or heard the defamatory comments and what impact it had on their 

purchasing decisions. For this reason, and “in an effort to narrow the scope of 

litigation and avoid additional causes of action, to the extent possible,” the parties 

agreed to enter the consent order. 

Even considering just Clark’s early actions, he continued posting in places 

where anywhere from 4000 to over 100,000 people could see it, alleging 

Hoffmann’s products were difficult to use, had problems, and that Hoffmann’s 

customer service representatives were being paid to lie to people about these 

issues. Additionally, Clark explicitly encouraged his podcast cohosts to use their 

platform to do the same. These actions had the potential to cause further harm or 

damages to Hoffmann’s business and reputation and impeded Hoffmann’s ability 

to prosecute his case as it was pled. Of course, the actual prejudice is even worse 

when considering Clark’s later actions of repeatedly informing the court he 

understood what he was required to turn over regarding Facebook history (his and 

several other accounts he admitted using) but also that it was “not ever going to 

happen.” At the time of trial, Clark had still not turned over all of the discovery 
36

required of him, in spite of the fact that it was ordered more than a year before the 

trial began. 

Clark’s amount of interference with the judicial process was great. He 

knowingly and purposely violated the consent order a number of times, he mocked 

the court and the ongoing litigation in the public, he refused to turn over discovery 

he was repeatedly ordered to produce, and, by the end, he stopped attending all

hearings and even skipped trial—apparently because he did not want to serve the 

jail time he was ordered to serve for his repeated violations. Clark even posted 

that he had “decided to stop participating and start making fun of them again.” As 

he made clear to his followers, Clark refused to recognize the power of the court 

and did as he wished throughout the proceedings.

Clark’s culpability is also great. While it is possible some of his earliest 

actions were due to a lack of understanding about the confines of the consent order 

he agreed to, leading up to the trial, Clark made clear that he understood what was 

expected of him and just chose not to comply. For example, Clark’s posts made it 

clear he knew he was supposed to turn himself in to serve a jail sentence for one 

of his contempts, but instead he chose to go on the run. As we noted before, Clark 

understood what he was expected to turn over regarding Facebook information in 

response to the court’s discovery order and just blatantly told the court it was “not 

ever going to happen.” Clark was repeatedly ordered to attend contempt hearings 

in person, and he repeatedly participated by telephone so he could not be jailed 

for his actions, telling the court as much from the phone. 

Clark maintains he was not warned his pleadings may be struck as a 

sanction for his continued violations before the court imposed the sanction. It 
37

appears this is technically true; we have found no statement from the court directly 

to Clark warning him the court may choose to strike his answer and counterclaims 

as a sanction before the court did so. But the consent order, which Clark agreed 

to with the assistance of counsel, warns that “[a]ny violation of this Order may 

result in the imposition of sanctions.” And Hoffmann asked the court to impose the 

sanction of striking Clark’s pleadings in his first three motions for sanctions. 

Similarly, Hoffmann similarly spoke about the possible remedy at the first two 

sanction hearings.21 So Clark was at least aware that Hoffmann believed it was 

an appropriate sanction and that the court was being asked to consider it. 

Clark maintains “there were many less drastic, alternative options available 

to the court than striking the pleadings” and then recognizes, “Indeed, the district 

court implemented many of them against Clark throughout the proceedings.” What 

strikes us about this statement is that, looking at all of Clark’s actions and behavior 

through the start of trial, none of the sanctions had the desired effect. Clark 

suggests a lesser sanction could have done the job, but they did not. He never 

paid any amount into the court registry, his fines, or Hoffmann’s attorney fees he 

was ordered to pay; he failed to serve his later jail sentences, reporting he was on 

the run and not returning to the state, and he refused to turn over the discovery 

that was ordered or even attend trial. Nothing slowed or stopped his behavior even 

before the pleadings were struck. And through it all, he continued to post 

damaging comments about Hoffmann, his products, and his businesses to 

 

21 Hoffmann also spoke about the remedy at the third hearing, which was a 

combined hearing on his third and fourth motions for sanction, but as that hearing 

followed Clark’s actions that ultimately led to the sanction, any such discussion of 

the remedy would not be a warning to Clark. 
38

potentially large numbers of people. Worse, Clark used his contempt for the court 

process to incite his social media followers against Hoffmann. Neither the “lesser” 

sanctions nor the “drastic” sanction caused Clark to comply with court orders such 

as turning over discovery or ceasing actions that were causing new, further 

damages to Hoffmann and his business after the lawsuit was initiated. 

Alternatively, Clark argues the court could have remedied Clark’s continued 

violations “by allowing Hoffmann and [Hoffmann Innovations] to amend their 

petition to include each new violation as another basis for their defamation claim.” 

But this remedy was never suggested to or asked of the district court, so we will 

not now consider whether it would have been a more appropriate sanction. See 

State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (“Nothing is more basic in the 

law of appeal and error than the axiom that a party cannot sing a song to us that 

was not first sung in trial court.”). 

Clark also suggests that we should consider he was pro se litigant for much 

of the time leading up to trial, claiming he “lacked a fundamental understanding . . . 

of what the consent order’s language actually meant.” See Lindstedt v. City of 

Granby, 238 F.3d 933, 937 (8th Cir. 2000) (considering that litigant was pro se 

when determining if sanction was appropriate, but also noting, “A pro se litigant is 

bound by the litigation rules as is a lawyer”). We recognize that Clark was 

represented by counsel from the time the consent order was entered until March 

19, 2018, at which point Hoffmann had just filed his second motion for sanctions. 

Another attorney did not file an appearance for Clark until January 23, 2019, at 

which point the court had recently sustained Hoffmann’s seventh motion for 

sanctions and rule to show cause. Clark was then represented from the eighth 
39

motion for sanctions through his post-trial motions. While Clark had no attorney of 

record for about ten months during the pendency of the case, most of his violations 

during this time showed he understood what was required of him and he chose to 

violate those requirements. In his online posts, he repeatedly referenced that he 

was not supposed to speak about Hoffman or the ongoing litigation but made a 

joke out of it. His explicit statement to the court that he would never turn over the 

ordered discovery happened during this same time. And we note that there is 

reason to believe Clark was receiving legal advice from an attorney or attorneys 

even while he had no attorney of record. Hoffmann raised questions about 

whether Clark was receiving advice from a California attorney early in the 

proceedings, which Clark denied, but the district court questioned Clark’s credibility 

on the matter. Additionally, Clark’s own posts during the time he claimed to be 

unrepresented reference that he received legal advice. On December 10, 2018 

he posted, in part: 

[T]hanks to your support and donations #RealTuners was able to 

obtain legal advice that put the brakes on our aggressor’s activity: 

one smart attorney amongst you, after reviewing all the 1000+ pages 

of paper thrown at us in the past 12 months—discovered a technical 

error . . . .

Even assuming Clark was a truly pro se litigant for much of the case, this does not 

convince us that striking his pleadings was too drastic or harsh a sanction. 

As our case law suggests, the sanction imposed should be proportionate to 

the effect the violating party’s action had on the proceedings and the other party. 

See In re Marriage of Williams, 595 N.W.2d 126, 129–30 (Iowa 1999) (confirming 

entry of default judgment against violating party, where violating party failed to 

comply with discovery requests, even after given two additional deadlines, and the 
40

failure to comply prejudiced the other party); Fenton v. Webb, 705 N.W.2d 323, 

326 (Iowa Ct. App. 2005) (affirming district court’s decision to strike violating 

party’s answer and finding party in default when the party was willfully 

noncompliant of discovery orders and failed to personally appear when ordered); 

Cf. In re Det. of Huss, 688 N.W.2d 58, 65 (Iowa 2004) (considering whether

“drastic” sanction of entering default judgment may have been necessary to stop 

noncomplying party from blocking the other party’s ability to prove their case). 

Here, we find the sanction does just that.

Finally, within the same section of his appellate brief, Clark challenges a 

corollary decision of the district court. Shortly before trial, Hoffmann filed 100 

“facts” which he suggested were undisputed since Clark’s answer and 

counterclaims had been struck. Clark did not resist. The court ultimately 

determined they were “facts deemed admitted,” read them to the jury at the 

beginning of trial, and then included them in the written jury instructions. Now on 

appeal, Clark seems to raise three separate issues. First, he challenges that the 

court made the decision to deem the facts admitted, claiming that because the 

court was wrong to strike his pleadings, it follows the remedy of “deemed admitted 

facts” were also in error. Second, Clark argues that even if it was appropriate for 

the court to deem the facts admitted, the court should not have included them in 

the written jury instructions. And third, Clark picks twelve of the one hundred facts 

that he claims were “irrelevant” and “[i]nstructing the jury of these was in error.”

We understand Clark’s first argument to be a natural extension of his claim

the sanctions were inappropriate, and we consider it under that umbrella. But his 

second and third argument were not preserved for our review. Before the jury was 
41

brought in on the first day of trial, Hoffmann asked the court to read the facts to the 

jury, and Clark’s response was that he “would object to the Court reading facts.” 

When the court expressed it was open to other suggestions how the jury should 

be informed of the facts, including that they be added to the jury instructions, Clark 

again stated, “I just want it noted that I object to you reading that to the jury.” A 

couple days later, when the parties and the court were specifically discussing jury 

instructions, Clark stated, “I object to all facts deemed admitted. I don’t think it was 

proper for the Court to have sanctioned my client by striking all of his pleadings.” 

But this seems to be an objection in line with Clark’s first argument—because the 

pleadings should not have been struck, the facts should not have been deemed 

admitted. It is not an objection to the form the facts were being presented to the 

jury, i.e. giving them a written list of the facts deemed admitted. Rather, it is an 

objection that the court ever deemed them admitted in the first place. Clark never 

took issue with any specific fact out of the 100 before they were given to the jury, 

let alone the twelve he now lists as “most problematic.” Therefore, we do not 

consider his second and third arguments related to the facts deemed admitted. 

See Meier v. Senecaut, 641 N.W.2d 532, 5374 (Iowa 2002) (“It is a fundamental 

doctrine of appellate review that issues must ordinarily be both raised and decided 

by the district court before we will decide them on appeal.”). Yet, even if we did 

consider the arguments, the 100 “facts” arose from allegations made in the 

pleading and all of Clark’s defenses to those facts were struck.

Considering all the foregoing, the district court did not abuse its discretion 

in imposing the sanction of striking Clark’s answer and counterclaims. For the 

same reason, it was not an error to instruct the jury on the “facts deemed admitted.” 
42

B. Limitation of Clark’s Evidence.

Leading up to trial, Hoffmann filed a motion in limine, asking the court to 

prevent Clark and RealTuners from “offering any defense to their behavior as 

alleged in the Complaint or any justification for same,” including but not limited to

testimony about the quality of Hoffmann products or anyone else’s 

opinion about Hoffmann products and any dissimilarity between the 

Parties’ businesses. Permitting Defendants to offer a defense or 

justifications for their actions permits irrelevant testimony and 

prejudices Hoffmann and it rewards Clark for his misbehavior leading 

to the striking of his Answer/Counterclaims.

Additionally, Hoffmann asked the court to prevent Clark from “discuss[ing] any

allegation or claim of wrongdoing by Hoffmann—at any time.” The court granted 

Hoffmann’s motion in limine in its entirety. 

On appeal, Clark challenges some of the court’s evidentiary rulings, arguing 

the district court abused its discretion when it agreed with Hoffmann’s objection 

the answers were no longer relevant since Clark was not allowed to present any 

defense for his actions, such as truth in response to the defamation claim. Clark 

maintains the testimony he was attempting to elicit was admissible because it was 

relevant to show some of the damages Hoffmann claimed were not due to Clark. 

Clark challenges the following specific court rulings, which occurred while 

Hoffmann was being cross-examined at trial:

DEFENSE COUNSEL: Did you ever write an e-mail to the 

public or on your Facebook saying—regarding your MS3Pro that we 

had an issue, we acknowledged it and we are making it right?

HOFFMANN: I think—

PLAINTIFF’S COUNSEL: Your Honor, I object. This was

covered in a motion and the ruling filed prior to trial on—

THE COURT: I agree. I’m going to sustain the objection and 

ask that you move on from that question, [defense counsel].

PLAINTIFF’S COUNSEL: Your Honor, I would also

respectfully ask for an instruction that the instructions set forth in the 
43

Court’s order prior to trial be followed because this is prejudicially

asking the questions that are improper. We’ve been instructed on 

what to do.

THE COURT: Understood. Understood.

DEFENSE COUNSEL: Well, did your MS3 product ever fail?

PLAINTIFF’S COUNSEL: Same objection, Your Honor.

DEFENSE COUNSEL: Your Honor, the crux of this case is 

whether or not my client lied about his product, and I’m not even 

allowed to ask about it.

PLAINTIFF’S COUNSEL: Not anymore it’s not, Your Honor. 

That ship has sailed.

THE COURT: Gentlemen, I understand what you’re saying, 

and we addressed this in our pretrial motions, and so you're aware 

of the ruling in that matter, and so we need to move on from that line 

of questioning.

A short while later, the following exchange took place:

DEFENSE COUNSEL: Have you ever acknowledged 

anywhere at any time that your MS3Pro or your MS3Pro Ultimate 

had problems?

PLAINTIFF’S COUNSEL: Same objection, Your Honor, and

I've asked for an instruction to stop going down this road because it's 

prejudicing the jury. The Court ruled on this issue already.

THE COURT: Go ahead.

DEFENSE COUNSEL: It’s prejudicial to my client not to be 

able to defend himself.

THE COURT: Well, your client could choose to come and be 

present and defend himself, [defense counsel,] so we’ve had a prior 

court ruling on this issue, and you need to move on from this topic. 

The objection is sustained.

Later, after Clark called Hoffmann to testify, the following occurred: 

DEFENSE COUNSEL: Did you ever start a Facebook attack 

or strike back in any way at Mr. Clark?

PLAINTIFF’S COUNSEL: Objection, Your Honor. That

question is directly implicated by the Court's instructions prior to trial.

DEFENSE COUNSEL: I’m not sure about that.

. . . .

THE COURT: . . .That objection is sustained, and . . . you

need to move on to a different line of questioning for Mr. Hoffmann.

DEFENSE COUNSEL: My client tells me that you’ve been

convicted of a felony; is that true?

PLAINTIFF’S COUNSEL: Same objection, Your Honor.

THE COURT: I’ll sustain the objection.
44

“We review relevance rulings for an abuse of discretion.” State v. Tipton, 897 

N.W.2d 653, 691 (Iowa 2017). But “[e]ven if we find an abuse of discretion, we will 

not reverse the ruling unless it caused prejudice.” State v. Buenaventura, 660 

N.W.2d 38, 50 (Iowa 2003). 

As we understand all of the court’s rulings up through trial—following all the 

rulings on sanctions and even after granting Hoffmann’s motion in limine—

Hoffmann was still required to prove that he suffered damages as a result of Clark’s 

complained-of actions and the amount of those damages. That understanding is 

supported by the special verdict form given to the jury, which stated, “Your duty is 

to determine whether Plaintiffs have proven damages and, if so, the amount.” 

Because the jury was required to determine the amount of damages actually 

caused by Clark’s actions, evidence regarding whether Hoffmann or his company’s 

reputation was suffering due to other reasons—such as real issues with products—

would be relevant for the determination of damages. So the court should have 

admitted such evidence and instructed the jury as to the limited purpose it could 

consider it. 

That being said, we cannot say Clark was prejudiced by the court’s rulings 

excluding the evidence. Clark asserts on appeal that “[e]ach of these sustained 

objections had a great and significant impact on [his] ability to defend this action.” 

But Clark did not make an offer of proof to show how Hoffmann would have 

answered any of the questions he was posed, so we do not know what the 

excluded testimony would have been or what it would have added. See Deters v. 

Int’l Union, Security, Police & Fire Prof., No. 20-0262, 2020 WL 6157816, at *4 

(Iowa Ct. App. Oct. 21, 2020) (affirming the district court’s decision to exclude 
45

testimony as being irrelevant, where the complaining party “did not make an offer 

of proof to show what the excluded testimony would have added” and “even if the 

district court [was] wrong[], the record does not show the [complaining party] was 

prejudiced”). Clark wants us to assume Hoffmann would have answered that he 

knew the MS3 Pro had failed and he had told his customers as much, but he points 

to nothing in the record that supports that assumption. To that end, when Clark 

did inquire about the Hoffmann products, Hoffmann confirmed the products did not 

start a fire and no customer alleged that they had.

Clark has not shown he should receive a new trial because he was 

prejudiced by the court’s exclusion of relevant evidence. 

C. Amount of Jury Award.

Clark challenges each of the jury’s award of damage—except the damages 

for breach of fiduciary duty and breach of contract—arguing he is entitled to a new 

trial “or at least a remittitur” because the damages are flagrantly excessive. 

Hoffman represented throughout the case that the damage Clark was causing was 

“difficult to quantify.” On its face, this jury award is extremely large, so we look 

carefully at the categories of damage and the evidence supporting the jury’s 

numbers.

At the start, when reviewing a claim that damages were excessive, “we view 

the evidence in the light most favorable to the verdict and need only consider the 

evidence favorable to the plaintiff whether contradicted or not.” Rees v. O’Malley, 

461 N.W.2d 833, 839 (Iowa 1990) (citation omitted). “The assessment of damages 

is traditionally a jury function. Its decision should be disturbed only for the most 

compelling reasons.” Id. (citation omitted). We will only reduce or set aside a jury 
46

award if it is “(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 a result 

of passion, prejudice or other ulterior motive; or (4) is lacking in evidentiary 

support.” Id. (citation omitted). 

Civil extortion. The jury awarded Hoffmann Innovations $250,000 for its 

civil-extortion claim against Scott. This claim was based on Scott’s statement to 

Hoffmann that he would make a “social media stink” if Hoffmann Innovations did 

not pay him a severance. In a taped phone call of when Clark was terminated, the 

recording captures Clark confirming he would “go away” if he could get a 

severance payment. He insinuated that there might be a “public mayhem” if he 

were to get “pissed off.” The payment would come with his “promise” he would not 

blow up, followed by another promise to “get off social media.” On appeal, Clark 

argues Hoffmann “presented no evidence to support an award of damages for the 

claim of civil extortion.” We disagree.

The jury was instructed the elements of extortion included 

1. A person commits extortion if the person does any of the 

following with the purpose of obtaining for oneself or another 

anything of value, tangible or intangible, including labor or services:

a. Threatens to inflict physical injury on some person, or to

commit any public offense;

b. Threatens to accuse another of a public offense;

c. Threatens to expose any person to hatred, contempt, or

ridicule;

d. Threatens to harm the credit of a business or professional

reputation of any person; or

e. Threatens to wrongfully injure the property of another.

Clark’s only challenge to the jury instruction was, “I don’t believe there’s a prima 

facie case of extortion.” Clark did not object to the form of the instruction, therefore, 

it becomes the law of the case. See Kiner v. Reliance Ins. Co., 463 N.W.2d 9, 14 
47

(Iowa 1990). So with this instruction in mind, a jury could find Clark threatened “to 

expose [Hoffman] to hatred, contempt, or ridicule” and “to harm the credit of a 

business or professional reputation of [Hoffman and his business].” As other 

support of this message of threats, Clark also contacted Hoffman’s business 

associate directing him to convince Hoffman to drop the civil case or Clark would 

attempt to stop the sale of the products that both Hoffman and the business 

associate profited from by contacting multiple governmental agencies and racing 

bodies.

In his own words, Clark knew he had the power to hurt a business over 

social media. After he was fired but before he started regularly attacking 

Hoffmann, Clark was in contact with Hoffmann Innovation’s technical support and 

engineering supervisor, asking about another company that Clark believed may 

have copied Hoffmann’s product. Clark told the supervisor, “Well, just let me know 

if the attorn[eys] can’t do anything worthwhile. Because I could make a single post 

on FB about it and wipe them out. Lemme know what [Hoffmann] wants to do 

about it i.e. if you need the Court of Social Media.” When the supervisor responded 

that Hoffmann was out of town, Clark responded, “I will contain my vengeance, but 

you let me know it’s time to open a can of Fuck Them.” Substantial evidence 

supported the attempt to extort. “[G]eneric” extortion is defined as “obtaining 

something of value from another with his consent induced by the wrongful use of 

force, fear, or threats.” Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 409 

(2003) (citation omitted). 

And Hoffmann argues Clark failed to preserve error on the jury’s award of 

this element of damage. We agree. “Thus, like the old adage that every dog is 
48

entitled to one bite, every trial judge is entitled to one-but only one-chance to 

prevent or correct error in the record.” 12 Barry A. Lindahl, Iowa Practice Series: 

Civil & Appellate Procedure § 43:13 (2020 ed.). Clark’s post-trial pleadings are 

void of any objection to this damage award. Therefore, we will not disturb the 

damage award of $250,000. 

Libel per se for Hoffman Innovations. The jury awarded Hoffmann 

Innovations $2,060,250 from both Clark and RealTuners for libel per se. Clark 

argues these awards are not supported by evidence and are flagrantly excessive. 

“In case of statements that are libelous per se, damages for mental anguish 

or hurt feelings are allowed because damage to reputation is presumed.” Schlegel 

v. Ottumwa Courier, 585 N.W.2d 217, 222 (Iowa 1998). These statements are 

actionable without proof of damages. See Rees, 461 N.W.2d at 839. Specifically, 

“[s]landerous imputations affecting a person in his or her business, trade, 

profession, or office are also actionable without proof of actual harm.” Lara v. 

Thomas, 512 N.W.2d 777, 785 (Iowa 1994). “However, recovery is limited to 

‘those damages which were a natural and probable consequence of the original

[defamation] or its repetition or republication.’” Rees, 461 N.W.2d at 839 (citation 

omitted). While proof of damages is not required to recover, the jury must have 

some evidence with which to determine the consequences of the slander, like “the 

extent of the publication.” Id. (citation omitted). Juries are not limited to awarding 

purely reputational damages for libel per se; “a plaintiff can recover other actual 

damages such as loss of income, emotional distress, physical pain and suffering, 

medical and hospital services attendant to mental anguish, and for personal 

humiliation and embarrassment.” Patrick J. McNulty, The Law of Defamation: A 
49

Primer for the Iowa Practitioner, 44 Drake L. Rev. 638, 653–54 (1996) (citing 

Vinson v. Linn-Marr Comm. Sch. Dist., 360 N.W.2d 108, 120 (Iowa 1984)). 

At the start, we refer to a perception offered by our supreme court when it 

indicated “[w]e are not persuaded, however, that the Internet’s ability to restore 

reputations matches its ability to destroy them.” Bierman v. Weier, 826 N.W.2d 

436, 454 (Iowa 2013). Quoting a case from the New Jersey Supreme Court, 

Bierman noted:

In today’s world, one’s good name can too easily be harmed 

through publication of false and defaming statements on the Internet.

Indeed, for a private person defamed through the modern means of 

the Internet, proof of compensatory damages respecting loss of 

reputation can be difficult if not well-nigh insurmountable. We 

question why New Jersey’s longstanding common law tradition of 

presumed damages—for defamation claims by private citizens on 

matters that do not involve public concern—should be altered now to 

force an average citizen to ferret out proof of loss of reputation from 

any of the world-wide potential viewers of the defamatory Internet 

transmission about that otherwise private person. We are not 

persuaded that the common law of this state need change to require 

such victims to demonstrate compensatory losses in order to 

proceed with a cause of action.

In sum, private persons face the real risk of harm through the 

modern ease of defamatory publications now possible through use 

of the Internet. Presumed damages vindicate the dignitary and 

peace-of-mind interest in one’s reputation that may be impaired 

through the misuse of the Internet. Permitting reputational damages 

to be presumed in a defamation action arising in that setting serves 

a legitimate interest, one that ought not be jettisoned from our 

common law.

826 N.W.2d at 454 (quoting W.J.A. v. D.A., 43 A.3d 1148, 1159–60 (2012)). And 

recently the Supreme Court warned, “Today, one of the most important places to

exchange views is cyberspace, particularly social media . . . .” Packingham v. 

North Carolina, 137 S. Ct. 1730, 1735–37 (2017) (deeming social media the 

“modern public square”). Social media sites like Facebook give users a low-cost 
50

and easy way to voice their views. Id. at 1735. “However, users must be aware 

that they could potentially be liable for their online speech.” Bauer v. Brinkman, 

___ N.W.2d ___, ___, 2021 WL 1431671, at *4 (Iowa 2021). And even in 1990, 

our supreme court appreciated that especially for a sole business owner, “the 

natural and probable consequences of statements challenging [the owner’s]

integrity are that customers will stop doing business with his company” and that 

“his business could suffer greatly.” Rees, 461 N.W.2d at 840.

Pointing to Hoffmann’s failure of proof, Clark argues the actual damages 

cannot be recovered “until and unless damage to reputation is shown,” which he 

says was not done. See Patrick J. McNulty & Adam D. Zenor, Iowa Defamation 

Law Redux: Sixteen Years After, 60 Drake L. Rev. 365, 389–91 (2012). Yet

Hoffmann presented evidence upon which the consequences of Clark’s 

slanderous statements could be judged. Supporting the reputational injury, the 

words of potential customers in the social media posts established the dramatic 

impact of Clark’s campaign. Supporting the actual-damage claim, Hoffmann and 

his wife testified about the stress, lack of sleep, and distress caused by the 

campaign. And evidence of the two-year daily fight to respond to returns of 

merchandise, allegations of problems with the product, and tracking negative 

comments about the company proved the adverse impact from both a financial and 

reputation vantage point. 

Here, Hoffmann testified at trial as to just some of the posts Clark had 

written and shared, including ones that included statements Hoffmann Innovations 

was selling knowingly faulty products, the products ruined engines and caused 

cars to start on fire, Hoffmann Innovations employees were being paid to lie to 
51

customers about the products, and that people speaking positively about Hoffmann 

Innovation’s products were all being paid to say those things. Hoffmann introduced 

at trial a video that Clark had a friend edit that was put online. The video has a 

scene from the movie Inglourious Basterds, and includes an actor portraying Adolf 

Hitler and screaming maniacally. Clark’s friend edited subtitles under “Hitler” to be 

Hoffmann saying things about Hoffmann Innovations knowingly selling failing 

products and covering it up. At trial, Hoffmann testified the video made a mockery 

of him and suggested customers who lost respect for Hoffmann had stopped 

purchasing his products. He also provided numbers of followers or “friends” for 

some of the sites and pages Clark was posting on, including the MegaSquirt 

Engine Management Club, which had 13,000 followers; RealTuners’ business 

page, which had nearly 5000 followers; Clark’s RealTuners podcast, which had 

2370 members; and TurboBullet, an industry page with approximately 120,000 

followers. Hoffmann also testified as to how followers were interacting with these 

pages; some would “like” or comment on Clark’s posts, which caused others to get 

involved with his posts. Additionally, it was unclear how many nonparties were 

seeing and sharing these posts to their own pages or other places on the internet, 

possibly expanding the potential audience. 

Hoffmann also testified about the impact Clark’s posts and the resulting

rumors were having on his business, including the number of products being sent 

back because clients were afraid of the issues Clark listed. Several of Hoffmann’s 

paid employees spent their full-time hours working to test products and get them 

sent back to customers with the assurance they were working properly. His

marketing team had to focus on fighting the negative stories and rumors that were 
52

circulating about the products rather than working on campaigns to move the 

company forward. Attributing this disruption to Clark, Hoffman estimated his 

employees spent time every day countering this barrage of social media posts. 

Hoffmann testified it was hard to know what customers stopped buying his product 

or would now never buy his product based on the falsehoods they heard, although 

he was able to point to some posts on social media where nonparties made exactly 

those statements. He also testified about a business relationship he lost as a result 

of Clark’s lies; Motion Raceworks were resellers who were buying $10,000-

$15,000 worth of Hoffmann Innovation’s products each month but then stopped. 

Hoffmann testified that at the time of trial, that relationship had been lost for twentyfive months, so his conservative estimate was that the company lost $250,000 in 

revenue22 from that discontinued relationship alone. He also testified Motion 

Raceworks had grown during those twenty-five months so he believed their 

monthly orders would have increased if the relationship remained. 

Taken as a whole, Clark engaged in a relentless campaign to destroy and 

punish Hoffmann. “The doctrine of presumed damages developed because proof 

of actual damage was believed to be impossible in many cases when, from the 

character of the defamatory words and the circumstances of publication, it was 

certain that serious harm in fact resulted..” McNulty, 44 Drake L. Rev. at 300. 

Likewise, repetition of a defamatory message may be shown “in aggravation of 

damages.” See Rhynas v. Adkisson, 159 N.W. 877, 880 (Iowa 1916).

 

22 Hoffmann testified 40% of the revenue would have been profit. 
53

Here, Hoffmann asked for $4,500,000 for the loss in the company’s 

reputation, which he explained in part based on the company’s lost revenue. 

Summarizing his position, Hoffman said,

I considered how many years of blood, sweat and tears, sacrifice 

have been poured into this business. I considered how my

customers have responded to the way that we’ve taken care of them 

for almost 15 years now, and I looked at how they’re talking about 

me now, and I looked at the loss of revenue that’s occurred since Mr. 

Clark began this campaign of terror, and I came up with the best 

number that I could.

On the subject of loss of revenue, he testified that he came up with that amount by 

determining Hoffmann Innovations growth rate before Clark’s attacks began, which 

he determined was 23%. Using a more conservative estimate, 20% growth, he 

compared the company’s actual revenue at the time of trial compared to what it 

would have been worth if the growth rate continued unabated. The jury also heard 

Hoffman address the long-term impact of the slander:

Well, the company, I mean, we’ve hit—we’ve been damaged so 

much that, I mean, I’m only so far quantifying the losses until today. 

It’s gonna take years to rebuild this, and I don’t think I’ll ever replenish 

that name with a large number of people that used to adore us, and, 

honestly, I don’t believe Clark is gonna quit, so I don’t—I don’t know 

how we’re gonna get out of that hole.

Based on all the foregoing, we reject Clark’s contention that the jury’s award 

was overly speculative. See Pavone v. Kirke, 801 N.W.2d 477, 495 (Iowa 2011) 

(providing that “damages are denied” “if the evidence is speculative and uncertain 

whether damages have been sustained” but “if the uncertainty merely lies in the 

amount of damages sustained, recovery may be had if there is proof of a 

reasonable basis from which the amount can be inferred or approximated”). And 

because we believe the amount awarded is supported by the evidence presented, 
54

this is not a flagrantly excessive verdict that “raises a presumption that it is the 

product of passion or prejudice.” WSH Props., L.L.C. v. Daniels, 761 N.W.2d 45, 

50 (Iowa 2008).

Libel per se for Hoffmann. The jury awarded Hoffmann $500,000 from 

both Clark and RealTuners for libel per se. Clark challenges these awards for 

similar reasons as the award to Hoffman Innovations. But the posts Clark was 

making public to large groups of people also included attacks against Hoffmann 

personally, so his personal reputation is also presumed to be damaged. See 

Schlegal, 585 N.W.2d at 222. Hoffmann presented strong evidence of the harm 

he suffered from the antics of Clark. The social media posts with photographs of 

Hoffmann, about which Hoffmann could not respond, along with other inflammatory 

posts, tore at Hoffmann’s personal reputation. See State v. Poston, 203 N.W. 257, 

258 (Iowa 1925) (“Roughly stated, character is what a man actually is, while 

reputation is what his neighbors say he is.”). And Hoffmann and his wife both 

testified to the toll Clark’s actions took on Hoffman, stating Hoffmann was having 

trouble sleeping, “stressed to the max all the time,” and consumed by how to deal 

with the attacks. Hoffman’s wife noted, because Hoffman followed the terms of 

the consent order, “these attacks would come in, he couldn’t respond to them. . . . 

He had to sit and watch his reputation be torn apart online and not say anything 

about it.” Substantial evidence supports this jury award.

Punitive Damages. The jury found Clark liable for $2,000,000 in punitive 

damages and RealTuners liable for $3,500,000 in punitive damages. Clark asserts 

these are not justified, but he does not articulate a clear argument or cite authority 

in support of his current position against these specific damages, so we do not 
55

consider them. See Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (holding 

appellate courts will not speculate on arguments a party “might have made and 

then search for legal authority and comb the record for facts to support such 

arguments”). While these damages are high, Clark cannot be held to complain as 

it is his relentless behavior that warranted such a punishment. And his disregard 

of clear directives from the district court to stop violating the consent order further 

supports these punitive damages. Here, the district court patiently counseled Clark 

about his behavior and he voiced understanding, yet he could not contain the 

inflammatory messaging that brings us to this point today. Clark can blame only 

himself for the relentless attack mode he pursued and the award of damages of 

this magnitude. 

We affirm each of the jury’s award of damages. 

D. Award of Attorney Fees.

Clark challenges the district court’s award of attorney fees to Hoffmann and 

Hoffmann Innovations. “Whether to grant common law attorney fees rests in the 

court’s equitable powers,” so our review is de novo. Williams v. Van Sickel, 659 

N.W.2d 572, 579 (Iowa 2003). 

It appears Hoffmann first raised the issue of attorney fees in the unreported 

pretrial conference on August 16.23 In response, Clark filed a motion to deny the 

request for attorney fees, claiming, “Unless attorney fees are allowed by statute or 

contract, the plaintiffs cannot recover fees.” He asserted the noncompete

 

23 We make the assumption as we have found no filing in the record where 

Hoffmann requested attorney fees for the litigation, and Clark filed his “motion to 

deny attorney fees” on August 19, in which he claimed Hoffmann was “requesting 

the court and/or the jury to award” attorney fees. 
56

agreement did not provide for the award of attorney fees and no statute applied, 

so Hoffmann’s request for fees should be denied. Hoffmann then filed a response, 

outlining his claim that fees could be awarded “when a losing party has acted in 

bad faith, vexatiously, wantonly, or for oppressive reasons.” Hockenberg Equip.

Co. v. Hockenberg’s Equip. & Supply Co., 510 N.W.2d 153, 158 (Iowa 1993) 

(citation omitted). At trial, the parties agreed the issue of attorney fees was for the 

court to decide and that the court could take it up after the jury trial ended. Then, 

at the October 1 hearing on post-trial motions, the court heard argument about 

whether to award attorney fees. Hoffmann reiterated the court had the power to 

award fees if it determined they were appropriate and outlined some facts he 

believed supported the award. Clark responded, again stating that attorney fees 

are generally only allowed in Iowa where a statute or contract provides for them. 

Then, for the first time, Clark argued that because Hoffmann was relying on an 

equitable principle to be awarded fees, then “attorney fees should be broken down 

into what part of their attorney fees were incurred in getting the injunction, which 

is equitable relief, and what part of their attorney fees were incurred in getting the 

damages that the jury awarded.” 

Now, on appeal, Clark offers new arguments why Hoffmann should not be 

awarded attorney fees. He notes Hoffmann had the burden to prove “the 

culpability of the defendant’s conduct exceeds the ‘willful and wanton disregard for 

the rights of another’; such conduct must rise to the level of oppression or 

connivance to harass or injure another.” Id. at 159–60. Clark claims Hoffmann 

failed to meet this burden “because they relied on Clark’s conduct that was not the 

subject of their petition in order support of their claim for attorney fees.” This is 
57

Clark’s first time arguing that the court was limited in what actions of his could be 

considered in determining if attorney fees were appropriate here. See Fed. Land 

Bank v. Recker, 460 N.W.2d 480, 482 (Iowa Ct. App. 1990) (“It is axiomatic that 

we will generally not consider issues raised for the first time on appeal.”). 

Insofar as Clark challenges the court’s ruling that attorney fees were 

inappropriate when considering all of Clark’s actions during the pendency of the 

case, we have little trouble concluding they reached the necessary level of conduct 

that was “difficult to bear, harsh, tyrannical, or cruel” and “intentional and likely to 

be aggravated by cruel and tyrannical motives.” Williams, 659 N.W.2d at 579. We 

affirm the court’s award of attorney fees. 

III. Conclusion.

Because Clark and RealTuners have not established a reversible error, we 

see no reason to disturb the jury’s awards, and we decline to consider the

argument against the award of attorney fees as it is raised for the first time on 

appeal, we affirm. 

AFFIRMED.