IN THE COURT OF APPEALS OF IOWA

No. 19-0828

Filed July 22, 2020

DECORAH GENEALOGY ASSOCIATION,

Plaintiff-Appellant,

vs.

ROGER L. BERGAN,

Defendant-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Winneshiek County, Richard D. 

Stochl (summary judgment) and Alan T. Heavens (final disposition), Judges.

A nonprofit association appeals the dismissal of its conversion claim against 

a board member of a rival association. AFFIRMED. 

Karl G. Knudson, Decorah, for appellant.

Andrew P. Nelson of Meyer, Lorentzen & Nelson, Decorah, for appellee.

Heard by Vaitheswaran, P.J., and Doyle and May, JJ.
2

MAY, Judge.

Decorah Genealogy Association (DGA) appeals the dismissal of its

conversion claim against Roger Bergan. We affirm.

I. Facts and Prior Proceedings

This case stems from hostilities between two once-cooperative nonprofit 

organizations, DGA and the Winneshiek County Historical Society (WCHS), both 

of which are committed to preserving local history. For several years, WCHS 

operated out of the Luther College library. Eventually, the college library could no 

longer accommodate WCHS. So, in 1998, WCHS moved into the basement of the 

Decorah Public Library. DGA already operated out of the library’s lower level. The 

two organizations occupied adjoining rooms. This allowed them to share 

resources. And some people belonged to both DGA and WCHS. At times, DGA 

and WCHS held joint meetings. The groups sent out joint newsletters. 

But in 2016 the public library informed both groups they would need to 

relocate by 2017. Around this time, the relationship between the two groups began 

to deteriorate. DGA secured a new location at the local senior center. DGA began 

moving its property out of the library location a little bit at a time. WCHS received 

a historical house to restore; eventually, the house would serve as WCHS’s new 

operating location. In the interim, WCHS planned to store its property in a room in 

the old local jail. 

This case arises from events of November 10, 2016. WCHS vice president 

Roger Bergan checked out a key from the library circulation desk after hours. Then 

Bergan and other members of WCHS—including WCHS’s president and its 
3

secretary—entered DGA offices and removed microfilms1from a filing cabinet. 

Bergan contends the microfilms were “believed to be either owned entirely by 

WCHS or jointly by WCHS and DGA since many items had been com[m]ingled by 

each entity over the years.” Bergan and the others moved the microfilm to WCHS’s

storage space at the jail.

DGA asked WCHS to return the microfilm. WCHS resisted. Eventually,

DGA filed a replevin action against WCHS. The two groups reached a settlement 

agreement, and WCHS returned the microfilm. But the settlement agreement 

preserved DGA’s right to pursue this conversion action, through which DGA seeks 

damages against Bergan for his part in taking the microfilm.

Bergan filed a motion for summary judgment.2 The district court concluded

Iowa Code section 613.19 (2017) provided Bergan with statutory immunity. 

Accordingly, the court granted Bergan’s motion and dismissed DGA’s conversion 

claim. DGA appeals.

II. Scope and Standard of Review

“We review summary judgment rulings for correction of errors at law.” Roll 

v. Newhall, 888 N.W.2d 422, 425 (Iowa 2016). Summary judgment is appropriate 

when the file shows “there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). 

“An issue of fact is ‘material’ only when the dispute involves facts which might 

affect the outcome of the suit, given the applicable governing law.” Nelson v. 

 

1 Bergan and others also removed index books from the office. For readability 

purposes, all subsequent references will be limited to the microfilms.

2 DGA also sought summary judgment as to Bergan’s abuse-of-process 

counterclaim. It is not before us.
4

Lindaman, 867 N.W.2d 1, 6 (Iowa 2015) (quoting Wallace v. Des Moines Indep. 

Cmty. Sch. Dist. Bd. of Dirs., 754 N.W.2d 854, 857 (Iowa 2008)). “An issue is 

‘genuine’ if the evidence in the record ‘is such that a reasonable jury could return 

a verdict for the non-moving party.’” Id. (citation omitted). “We view the evidence 

in the light most favorable to the nonmoving party, who is entitled to every 

legitimate inference we may draw from the record.” Id. at 6–7. But “[s]peculation 

is not sufficient to generate a genuine issue of fact.” Id. at 7 (quoting Hlubeck v. 

Pelecky, 701 N.W.2d 93, 93 (Iowa 2005)).

As will be further discussed, this appeal turns on whether Bergan was 

entitled to statutory immunity. Summary judgment plays a special role in immunity 

cases. As Justice Waterman explained in Lindaman:

Summary judgment is an important procedure in statutory immunity

cases because a key purpose of the immunity is to avoid costly 

litigation, and that legislative goal is thwarted when claims subject to 

immunity proceed to trial. See Plumhoff v. Rickard, ___ U.S. 

___,___, 134 S.Ct. 2012, 2019, 188 L.Ed.2d 1056, 1064 (2014) 

(“[T]his [immunity] question could not be effectively reviewed on 

appeal from a final judgment because by that time the immunity from 

standing trial will have been irretrievably lost.”); Hlubek, 701 N.W.2d 

at 98 (noting statutory immunity removes the “‘fear of being sued’”

and affirming summary judgment (quoting Harlow v. Fitzgerald, 457 

U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396, 408 (1982))).

Indeed, in Hlubek, we recognized the defendants’ observation that 

“statutory immunity, like common-law immunity, provides more than 

protection from liability; it provides protection from even having to go 

to trial in some circumstances.” 701 N.W.2d at 96. Qualified 

immunity is “an entitlement not to stand trial or face the other burdens 

of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 

2815, 86 L.Ed.2d 411, 425 (1985).

Id. at 7 (alterations in original).
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III. Discussion

The district court concluded Iowa Code section 613.193 provided Bergan 

immunity against DGA’s suit. On appeal, DGA contends section 613.19 does not 

apply. Bergan disagrees. In addition, Bergan contends he also is entitled to 

immunity under section 504.901.

4

 

Although the district court’s ruling focused on section 613.19, “we may 

affirm summary judgment on an alternative ground supported by the record and 

urged by the movant in district court and on appeal.” Deeds v. City of Marion, 914 

N.W.2d 330, 350 n.9 (Iowa 2018). We choose to focus on Bergan’s argument 

concerning section 504.901, which was both raised below and briefed on appeal. 

Iowa Code chapter 504 is the Revised Iowa Nonprofit Corporation Act. Iowa 

Code § 504.101. Section 504.901 is entitled “Personal Liability.” It states as 

follows:

1. Except as otherwise provided in this chapter, a director, officer, 

employee, or member of a corporation is not liable for the 

 

3 Section 613.19 provides:

A director, officer, employee, member, trustee, or volunteer, of a 

nonprofit organization is not liable on the debts or obligations of the 

nonprofit organization and a director, officer, employee, member, 

trustee, or volunteer is not personally liable for a claim based upon 

an act or omission of the person performed in the discharge of the 

person’s duties, except for acts or omissions which involve 

intentional misconduct or knowing violation of the law, or for a 

transaction from which the person derives an improper personal 

benefit. For purposes of this section, “nonprofit organization” 

includes an unincorporated club, association, or other similar entity, 

however named, if no part of its income or profit is distributed to its 

members, directors, or officers.

4 Bergan also makes other arguments, such as his claim that res judicata bars 

DGA from pursuing “its second suit against Mr. Bergan when DGA has already 

had the opportunity to fully and fairly litigate its claim against WCHS.” Because 

we conclude Bergan enjoys statutory immunity, we do not reach Bergan’s other 

arguments.
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corporation’s debts or obligations and a director, officer, member, or 

other volunteer is not personally liable in that capacity to any person 

for any action taken or failure to take any action in the discharge of 

the person’s duties except liability for any of the following:

a. The amount of any financial benefit to which the person is 

not entitled.

b. An intentional infliction of harm on the corporation or the 

members.

c. A violation of section 504.835.

d. An intentional violation of criminal law.

2. A provision set forth in the articles of incorporation eliminating or 

limiting the liability of a director to the corporation or its members for 

money damages for any action taken, or any failure to take any 

action, pursuant to section 504.202, subsection 2, paragraph “d”, 

shall not affect the applicability of this section.

Id. § 504.901 (emphasis added).

As with all statutes, we find the meaning of section 504.901 in the “words 

chosen by the legislature.” See Fishel v. Redenbaugh, 939 N.W.2d 660, 663 (Iowa 

Ct. App. 2019) (citation omitted). 

Bergan claims “[t]here is no genuine fact dispute that [he] was a director, 

officer, member, and volunteer of WCHS” on the night of the microfilm removal. 

Moreover, Bergan contends, his actions were taken in his discharge of his duties 

to WCHS. And, as Bergan points out, “DGA makes no claim” that any of the 

exceptions listed in subparagraphs (a) through (d) apply here. So, Bergan 

reasons, section 504.901 precludes a finding that he is “personally liable.” 

DGA disagrees. It doubts that Bergan’s efforts to retrieve the microfilm

constituted “any action taken . . . in the discharge of [Bergan’s] duties.” DGA notes

that the word “duty” means a legal obligation, that is, an act required by the law. 

See Duty, Black’s Law Dictionary (11th ed. 2019) (defining “duty” as “[a] legal 

obligation that is owed or due to another and that needs to be satisfied; that which 

one is bound to do, and for which somebody else has a corresponding right”). And 
7

Bergan was not legally obligated to retrieve the microfilm. So the statute cannot

apply.

We disagree. To understand a statute’s words, we must consider their

context. Doe v. State, 943 N.W.2d 608, 610 (Iowa 2020). In section 504.901, the 

phrase “discharge of the person’s duties” applies not only to the actions of directors 

and officers but also to the actions of any “other volunteer.” (Emphasis added.) 

And many of the “duties” performed by “volunteers” do not involve any legal 

obligation. Indeed, in everyday usage, a “volunteer” is someone who acts without

compulsion. See Volunteer, Merriam-Webster, https://www.merriam-webster.co

m/dictionary/volunteer (defining “volunteer” as “a person who voluntarily 

undertakes or expresses a willingness to undertake a service: such as . . . one who 

renders a service or takes part in a transaction while having no legal concern or 

interest”). So, in the context of section 504.901—a statute expressly aimed at 

protecting “volunteers”—we cannot conclude “duties” means only those actions 

that are involuntary, that is, required by law.

DGA also argues that, although Bergan was Vice-President of WCHS, 

neither WCHS’s Articles of Incorporation nor its By-laws permitted Bergan to help 

retrieve the microfilm “without prior approval of the WCHS Board of Directions.” 

And, DGA notes, prior to the microfilm’s removal, “WCHS, as a corporation, had 

never held a meeting and approved a motion or resolution directing Bergan or 

anyone else” to remove the microfilm. DGA acknowledges that, just prior to the 

removal, Bergan “and five WCH[S] members”—including its president and 

secretary—“met informally” and “decided to remove the microfilm.” But the sixmember group was shy of the “10-member quorum” anticipated by WCHS’s By-
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laws. And they “kept no minutes, held no vote and clearly did not follow Robert’s 

Rules of Order” as anticipated by the By-laws. So, DGA contends, “[t]he irregular 

meeting held by Bergan and five others immediately prior” to the microfilm removal 

“was clearly not a corporate action of WCHS capable of conferring a ‘duty’ and 

hence [statutory] immunity on Bergan’s group.” And so the actions of Bergan’s 

group were merely “the individual and separate acts of persons who happened to 

be WCHS members,” not actions taken in discharge of their duties to WCHS.

We disagree. We again note that, by its plain terms, section 504.901 

immunizes all “volunteers,” whether they serve as officers or not. And we do not 

believe section 504.901 only applies to a volunteer’s actions if those actions have

been expressly pre-approved by the entire board of directors through a formal vote 

at a formal meeting. For example, if a volunteer wants to scrape snow off of the 

sidewalk or change a burned-out lightbulb in the office, do they have to obtain preapproval from the board as a whole—or else forego immunity? If the legislature 

had intended to impose such an onerous prerequisite—one that, as a practical 

matter, would pretty much swallow the statute’s grant of immunity—we think the 

legislature would have said so expressly. It did not.

Instead, we think section 504.901’s broad language (“any person,” “any 

action”) creates broad protection for Iowans who donate their time and talents to

community organizations. Cf. Vails v. United Cmty. Health Ctr., Inc., No. C11-

4048-LTS, 2012 WL 6045941, at *17 (N.D. Iowa Dec. 5, 2012) (“Section 504.901

reflects an underlying policy of encouraging community members to serve as 

directors or officers of nonprofit organizations by granting them immunity and 

limiting their personal liability. The history of the statute also reflects the 
9

legislature’s intent to reduce risk and uncertainty by narrowing the immunity 

exceptions.”). And given the particular facts of this case, we believe Bergan’s 

actions—moving the microfilm WCHS believed it owned to WCHS’s new location—

fell within its protection.

Several considerations support this view. First, in general, we “presume 

words used in a statute have their ordinary and commonly understood meaning.” 

In re A.M., 856 N.W.2d 365, 371 (Iowa 2014) (quoting McGill v. Fish, 790 N.W.2d 

113, 119 (Iowa 2010)); accord In re Estate of Franken, ___ N.W.2d ___, ___, 2020 

WL 3107692, at *4 (Iowa 2020) (noting “we seek to determine the ordinary and fair

meaning of the statutory language at issue”). And we struggle to conclude that 

efforts by an officer or director to preserve a nonprofit corporation’s property would 

fall outside “the discharge of” that “person’s duties,” as those terms are commonly 

understood.

Second, and similarly, we note that Bergan did not act alone. Instead, he 

worked with a group of several WCHS members. One of them was WCHS’s 

president. And when a “volunteer,” like Bergan, assists a nonprofit’s president to 

preserve the nonprofit’s property, we believe the volunteer is acting “in the 

discharge of [their] duties.” We think this view fits well with Iowans’ common 

understanding about the “duties” that “volunteer[s]” “discharge” in their service to 

nonprofit organizations. See A.M., 856 N.W.2d at 371; cf. Nix v. Hedden, 149 U.S. 

304, 307 (1893) (noting that, although “[b]otanically speaking, tomatoes are the 

fruit of a vine,” they are “vegetables” in “the common language of the people”).

Third, it is undisputed that Bergan’s purpose was to benefit WCHS. He did 

not seek or obtain personal gain. 
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Finally, as Bergan notes, the WCHS board ratified the removal of the 

microfilms at later meetings. Moreover, when DGA demanded return of the 

microfilms, WCHS refused. Through these actions, WCHS erased any doubt as 

to whether removal of the microfilms advanced WCHS’s perceived interests. It 

did.

Given these circumstances, we conclude Bergan’s actions were taken in 

the “discharge of [Bergan’s] duties” as a “volunteer” for WCHS, if not also in his 

role as “officer,” “director,” and “member” of WCHS. So we conclude Iowa Code 

section 504.901 provides Bergan immunity against DGA’s claim for conversion.5 

IV. Conclusion

We affirm the grant of summary judgment in Bergan’s favor. 

AFFIRMED.

 

5 DGA argues that if section 504.901 provides Bergan personal immunity, DGA 

would be left “without a full or adequate remedy” and the result would be a taking 

of DGA’s “property without just compensation in violation of the Fifth Amendment 

to the United States Constitution and article I, section 18 of the Iowa Constitution.” 

Gacke v. Pork Xtra, LLC, 684 N.W.2d 168, 171 (Iowa 2004) (summarizing a district 

court’s holding in a takings case wherein a statute provided immunity for a hog 

confinement). This argument misses the mark. DGA reached a settlement 

agreement with WCHS and recovered the microfilms. DGA now seeks monetary 

damages from Bergan for its inability to access the microfilms for a period of time.

This does not constitute a takings case under the state or federal constitution. See 

Brakke v. Iowa Dep’t of Nat. Res., 897 N.W.2d 522, 546–47 (Iowa 2017) 

(discussing the various forms of takings cases). Moreover, to the extent DGA 

argues section 504.901 is unconstitutional, the claim is not sufficiently developed 

for our review. See Midwest Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 

417, 431 n.2 (Iowa 2002) (finding passing argument without further development 

waived).