IN THE SUPREME COURT OF IOWA

No. 18–1037

Filed June 28, 2019

CHERYL ALBAUGH,

Appellant,

vs.

THE RESERVE,

Appellee.

Appeal from the Iowa District Court for Polk County, Michael D. 

Huppert, Judge.

The appellant appeals the district court’s grant of summary 

judgment concluding the Iowa Uniform Residential Landlord and Tenant 

Act does not apply to retirement facilities and appellant had no other 

claims against the retirement facility as a matter of law. AFFIRMED.

Jason M. Craig and Emily A. Kolbe of Ahlers & Cooney, P.C., Des 

Moines, for appellant.

William J. Miller of Dorsey & Whitney, LLP, Des Moines, for appellee.
2

CHRISTENSEN, Justice.

On behalf of her mother, Cheryl Albaugh challenges the district 

court’s grant of summary judgment in favor of a “senior adult congregate 

living facility” as defined in Iowa Code chapter 523D. Iowa Code 

§ 523D.1(11) (2016). She sued the facility after it would not return her 

mother’s entrance fee or supplemental amount when her mother had to 

vacate the facility for health reasons. Albaugh argued the agreement 

between her mother and the facility violated Iowa Code chapter 562A, the 

Iowa Uniform Residential Landlord and Tenant Act (IURLTA). She also 

presented several other claims, including consumer fraud, breach of 

fiduciary duty, breach of the implied covenant of good faith and fair 

dealing, and unconscionability. The district court granted the facility’s 

motion for summary judgment, concluding the IURLTA did not apply to 

the facility and the facility was entitled to judgment as a matter of law on 

all other claims. We affirm the district court judgment on appeal for the 

reasons discussed below.

I. Background Facts and Proceedings.

Cheryl Albaugh holds power of attorney for her mother, Shirley 

Voumard, a former resident of The Reserve on Walnut Creek (Reserve) from 

October 2007 to September 2014. The Reserve is a member-owned, 

nonprofit senior adult congregate living facility in Urbandale, Iowa, that is 

governed by a board of directors and “offers residents the opportunity to 

enjoy retirement without the hassle of home ownership.” It provides 

housing and supportive services to its residents with periodic charges in 

consideration of an entrance fee. These supportive services include 

various home healthcare services, maintenance, communal activities, 

security, transportation, and dining options.
3

To become a member of the Reserve, “an individual or couple must 

be 60+ years old, of sufficiently good health to live an independent life, and 

must be able to meet certain minimum financial requirements.” Voumard 

entered into a contract with the Reserve called an “application agreement” 

(agreement) on September 27, 2007, to obtain a membership interest in 

the Reserve and the right to occupy a two-bedroom apartment there. 

Voumard agreed to pay certain fees to cover the Reserve’s operation 

expenses. She agreed to pay a $64,975 entrance fee and a $63,557 

supplemental amount upon signing the agreement.1 She also agreed to 

pay a varying monthly fee that was originally set at $1078 “in advance of 

the first day of each succeeding month until such Resident’s Residential 

Membership is transferred as detailed in these Covenants of Occupancy.” 

In doing so, Voumard agreed to pay the monthly charges “until the earlier 

of (i) the date [her] Residential Membership is transferred as provided in 

Article 7, or (ii) the date [her] Residential Membership is terminated as 

provided in Article 12.”

This agreement contained the following bold-faced language:

i. Upon disbursement of such Entrance Fee and such 

Supplemental Amount to the uses and purposes of the 

Corporation the Corporation will have no further obligation to 

refund or return such Entrance Fee or such Supplemental 

Amount to Applicant.

ii. Applicant’s ability to recover such Entrance Fee and 

such Supplemental Amount will depend entirely on the 

 1The supplemental amount was paid to lower Voumard’s monthly fee. The 

supplemental amount and the monthly fee, in combination, are intended to cover 

Voumard’s proportional share of the costs incurred by the Reserve. The monthly fee is 

set by the Reserve’s board of directors, a majority of whom are elected by the members. 

Where a resident has paid a supplemental amount, the board must “fairly and equitably 

account for” the supplemental amount in establishing that resident’s monthly fee. The 

agreement also states that “[n]o resident shall be charged with more than his/her 

proportionate share thereof as determined by the Board of Directors.”
4

Applicant’s ability to assign or transfer his Membership in the 

Corporation to another person or persons.

iii. The Monthly Charge is subject to fluctuation.

iv. Upon the transfer of Applicant’s Membership in the 

Corporation to another person or persons there is no 

guarantee the Applicant will recover the entire Entrance Fee, 

the entire Supplemental Amount, or such other funds as may 

have accrued during Applicant’s residency within the 

Development pursuant to Article 7 of the Covenants of 

Occupancy.

v. Should Applicant default under the terms of the 

Covenants of Occupancy, which default is not cured in a 

manner deemed satisfactory by the Corporation, Applicant’s 

Residential Membership shall be terminated and all of 

Applicant’s right, title and interest in and to such Entrance 

Fee, such Supplemental Amount, and such other funds as 

may have accrued during Applicant’s residency within the 

Development pursuant to Article 7 of the Covenants of 

Occupancy shall be forfeited by Applicant and become the sole 

and separate property of the Corporation, and the Corporation 

shall have the right and authority to transfer Applicant’s 

Apartment to an assignee or transferee. Upon such transfer, 

the Corporation, in its sole discretion, shall have the right to 

deduct all Monthly Charges by Applicant and other expenses 

due and payable upon transfer.

(Emphasis omitted.) 

Just above the signature line, the agreement stated, “This 

Agreement will supersede any prior understandings and agreements and 

constitutes the entire agreement between us, and no oral representations 

or statements shall be considered a part hereof.” Voumard elected 

Albaugh as her personal representative on the agreement. Thus, pursuant 

to the agreement, Albaugh was appointed to receive copies of the 

agreement, “the [Reserve’s] Articles of Incorporation, Bylaws, Covenants of 

Occupancy and all other notices, disclosures, or forms required to be 

delivered to [Voumard] under Chapter 523D of the Iowa Code.”

In August 2014, the Reserve began contacting Albaugh about 

Voumard’s inability to care for herself. The Reserve contacted Albaugh 
5

multiple times, and Voumard was subsequently diagnosed with dementia. 

After Voumard’s doctor determined she could no longer live independently, 

Albaugh notified the Reserve that Voumard would be vacating her unit as 

of September 13, in order to move into an assisted living facility.

Albaugh has not sold or transferred Voumard’s unit either to a third 

party or to the Reserve. In accordance with the agreement, the Reserve 

has continued to bill Voumard pursuant to the agreement after she moved 

out of the Reserve. Albaugh has requested the Reserve refund Voumard’s 

entrance fee and supplemental amount. The Reserve continues to deny 

this request. On February 5, 2015, the Reserve sent Albaugh a notice of 

default informing her that Voumard’s rights under the agreement would 

be terminated and her entrance fee and supplemental amount would be 

deemed forfeited if Voumard’s unpaid charges were not paid within thirty 

days. Voumard’s unpaid charges totaled $5132 at the time the Reserve 

sent the notice. Albaugh disputed these charges and requested a refund 

of Voumard’s entrance fee and supplemental amount as a rental deposit 

pursuant to the IURLTA.

In March, the Reserve’s elected board of directors announced a 

change to the Reserve’s financial structure due to the increase in “Type A” 

units the Reserve owned through default or donation. Type A units came 

with a higher monthly fee than Voumard’s “Type B” unit. Due to the 

Reserve’s increase in Type A units, the Reserve allowed these units to be 

transferred for an entrance fee of $5000. The Reserve did not change the 

monthly charges for these units, and the board of directors declared, 

“Please be assured that there will be no ‘steering’ of prospects away from 

member-owned units up for transfer, and we’ll continue working hard on 

moving all available units.” 
6

The Reserve subsequently implemented a leasing program in July to 

allow members to lease their units to qualified individuals and to allow the 

Reserve to lease Reserve-owned units “at market-competitive lease rates.” 

According to the Reserve’s marketing director, this program has increased 

demand and led to a waiting list for units at the Reserve. Though Albaugh 

communicated with the Reserve’s marketing director about marketing and 

transferring Voumard’s membership interest, the record is unclear 

concerning the extent of these marketing efforts. Since Voumard vacated 

her unit at the Reserve, Albaugh has repeatedly requested a full refund of 

Voumard’s entrance fee and supplemental amount. The Reserve 

continues to deny these requests, and it declared Voumard in default on 

March 8, 2016.

On August 24, Albaugh filed a lawsuit in district court against the 

Reserve in which she presented seven claims. First, she argued the 

agreement between Voumard and the Reserve violated the IURLTA. 

Second, Albaugh claimed the Reserve violated Iowa Code chapter 523D, 

governing retirement facilities. Third, she alleged the Reserve engaged in 

consumer fraud in violation of Iowa Code chapter 714H. Fourth, Albaugh 

maintained the Reserve breached its fiduciary duties to Voumard. Fifth, 

Albaugh maintained the Reserve breached the implied covenant of good 

faith and fair dealing. Sixth, she argued Voumard should no longer be 

held to the terms of her agreement with the Reserve due to impossibility 

of performance or frustration of purpose. Finally, Albaugh challenged the 

enforceability of the agreement, claiming it was unconscionable. The 

Reserve brought in the Essex Corporation as a third-party defendant in its 

capacity as the former manager of the Reserve to seek indemnity and 

contribution. 
7

Albaugh filed a motion for partial summary judgment on December 

11, 2017, requesting the district court enter judgment that the agreement 

between Voumard and the Reserve is subject to the IURLTA and relief 

consistent with that judgment. The Reserve filed a motion for summary 

judgment on December 20, arguing the agreement is not subject to the 

IURLTA and challenging Albaugh’s other claims as a matter of law. The 

Essex Corporation filed a motion for summary judgment in which it argued 

it had no liability to the Reserve to the extent the Reserve had no liability 

to Albaugh and, alternatively, the undisputed facts fail to establish a basis 

for a claim of contribution or indemnity as a matter of law.

On May 26, 2018, the district court denied Albaugh’s motion for 

partial summary judgment and granted the Reserve’s motion for summary 

judgment. In doing so, the district court concluded that “the legislature 

did not otherwise intend for [the IURLTA] to be applicable to an 

arrangement governed by chapter 523D” and Albaugh’s other claims failed 

to generate any genuine issue of material fact. The district court granted 

Essex Corporation’s motion for summary judgment, noting there was no 

“need to consider the claims against the [Essex Corporation] . . . in the 

absence of a direct claim by [Albaugh] against the [Reserve].” Albaugh filed 

a timely notice of appeal on June 14, and we retained the appeal.

II. Standard of Review.

Our review of a district court ruling on a motion for summary 

judgment is for correction of errors at law. Jahnke v. Deere & Co., 912 

N.W.2d 136, 141 (Iowa 2018). “Summary judgment is proper when the 

moving party has shown ‘there is no genuine issue as to any material fact 

and the moving party is entitled to judgment as a matter of law.’ ” Id.

(quoting Homan v. Branstad, 887 N.W.2d 153, 163 (Iowa 2016)). We review 
8

the district court ruling on any statutory interpretation issues presented 

in a motion for summary judgment for correction of errors at law. Id.

III. Analysis.

Albaugh presents several claims on appeal. First, she argues the 

IURLTA applies to the Reserve and requests relief based on the Reserve’s 

alleged violations of the IURLTA. Second, Albaugh claims the Reserve 

committed consumer fraud. Third, she maintains the Reserve breached 

its fiduciary duty to Voumard. Fourth, Albaugh proclaims the Reserve 

also breached the implied covenant of good faith and fair dealing. Finally, 

she asserts the Reserve’s agreement with Voumard was unconscionable.

A. The Applicability of the IURLTA to Retirement Facilities. 

Albaugh contends the district court erred in granting the Reserve’s motion 

for summary judgment based on its conclusion that the IURLTA is 

inapplicable to the Reserve and other retirement facilities governed by Iowa 

Code chapter 523D. 

Iowa Code chapter 523D is entitled “Retirement Facilities” and is 

applicable to a provider who executes a contract for housing and one or 

more “supportive services” in a facility that “is or will be located in this 

state” and where the contract “requires or permits the payment of an 

entrance fee.” Iowa Code §§ 523D.1, .2. Some examples of supportive 

services include activity services, housekeeping, dining options, 

emergency nursing care, and transportation. Id. § 523D.1(12). As a 

provider that contracts with residents to supply this sort of housing and 

living services in an Iowa facility, the Reserve is considered a retirement 

facility and thus governed by chapter 523D.

On the other hand, “[t]he IURLTA generally defines the legal rights 

and obligations of a landlord and tenant” in a rental agreement. Lewis v. 

Jaeger, 818 N.W.2d 165, 178 (Iowa 2012). A “ ‘rental agreement’ means 
9

an agreement . . . embodying the terms and conditions concerning the use 

and occupancy of a dwelling unit and premises.” Iowa Code § 562A.6(11). 

The crux of Albaugh’s claim against the Reserve concerning the 

IURLTA is that Voumard’s $64,975 entrance fee and $63,557 

supplemental amount should be refunded to Voumard because they are 

improper rental deposits under the IURLTA. This brings us to the 

fundamental issue: whether the fees permitted by chapter 523D are rental 

deposits subject to the IURLTA. 

We reconcile Chapter 523D and the IURLTA by considering the rules 

of statutory construction.2 See Citizens’ Aide/Ombudsman v. Miller, 543 

N.W.2d 899, 902 (Iowa 1996) (“The controversy arises only when [the 

statutes] are jointly brought to bear on the facts. . . . We therefore proceed 

to a consideration of the rules of statutory construction.”). Under these 

rules, “ ‘[t]he primary purpose of statutory construction is to determine 

legislative intent,’ gleaned from the words used by the legislature.” Simon 

Seeding & Sod., Inc. v. Dubuque Human Rights Comm’n, 895 N.W.2d 446, 

461 (Iowa 2017) (quoting State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000) 

(en banc)). To ascertain legislative intent, we examine “the language used, 

the purpose of the statute, the policies and remedies implicated, and the 

consequences resulting from different interpretations.” Des Moines Flying 

Serv., Inc. v. Aerial Servs., Inc., 880 N.W.2d 212, 220 (Iowa 2016) (“ ‘[A] 

statute should not be interpreted to read out what is in a statute as a 

matter of clear English’ and should not render terms superfluous or 

 2Considered separately, chapter 523D and the IURLTA are not ambiguous. When 

the meaning of a statute contains no ambiguity, “the statute will be applied in accordance 

with its plain meaning.” Citizens’ Aide/Ombudsman v. Miller, 543 N.W.2d 899, 902 (Iowa 

1996). However, because Iowa Code § 523D.7(5) states, “[t]his chapter does not limit a 

liability which may exist by virtue of any other statute or under common law if this 

chapter were not in effect,” it does not preempt the application of other statutes. As a 

result, any latent conflict must be resolved through the rules of statutory construction. 

Miller, 543 N.W.2d at 902.
10

meaningless.” (quoting 1A Norman J. Singer & Shambie Singer, Statutes 

and Statutory Construction § 21:1, at 163 (7th ed. 2009))). Further, 

legislative intent is also derived from the statute’s subject matter and 

object to be accomplished. See Homan, 887 N.W.2d at 166. In doing so, 

“[w]e assess the entire statute and its enactment to ‘give the statute its 

proper meaning in context.’ ” Aerial Servs. Inc., 880 N.W.2d at 220 

(quoting Sanon v. City of Pella, 865 N.W.2d 506, 511 (Iowa 2015)). “We 

will not consider what the legislature ‘should or might have said’ when it 

construed a statute.” Homan, 887 N.W.2d at 153 (quoting Iowa R. App. P. 

6.904(3)(m) (“In construing statutes, the court searches for the legislative 

intent as shown by what the legislature said, rather than what it should 

or might have said.”)). 

We now turn to the relevant statutory provisions to determine 

whether the fees regulated under chapter 523D are subject to the IURLTA. 

Iowa Code section 523D.1 provides, in relevant part,

4. “Entrance Fee” means an initial or deferred transfer 

to a provider of a sum of money or other property made or 

promised to be made as full or partial consideration for 

acceptance of a specified individual in a facility if the amount 

exceeds either of the following:

a. Five thousand dollars.

b. The sum of the regular periodic charges for six 

months of residency. 

Iowa Code § 523D.1(4)(a)–(b). The provision of the IURLTA on which 

Albaugh relies provides,

12. “Rental Deposit” means a deposit of money to secure 

performance of a residential rental agreement, other than a 

deposit which is exclusively in advance payment of rent. 

Iowa Code § 562A.6(12). Chapter 562A further defines a rental deposit 

and states, 
11

1. A landlord shall not demand or receive as a security 

deposit an amount or value in excess of two months’ rent. 

. . . . 

3. a. A landlord shall, within thirty days from the date 

of termination of the tenancy . . . return the rental deposit to 

the tenant or furnish to the tenant a written statement 

showing the specific reason for withholding of the rental 

deposit or any portion thereof. . . . The landlord may withhold 

from the rental deposit only such amounts as are reasonably 

necessary for the following reasons:

(1) To remedy a tenant’s default in the payment of rent 

or of other funds due to the landlord pursuant to the rental 

agreement. 

(2) To restore the dwelling unit to its condition at the 

commencement of the tenancy, ordinary wear and tear 

excepted. 

(3) To recover expenses incurred in acquiring 

possession of the premises from a tenant who does not act in 

good faith in failing to surrender and vacate the premises . . . .

Id. § 562A.12(1), (3)(a). 

Affording each statute its proper context, the words used by the 

legislature reflect the intent to regulate two entirely distinct living 

arrangements. Chapter 523D regulates facilities that provide housing 

together with supportive services. In contrast, Chapter 562A pertains to 

the rights and obligations of a landlord and tenant. This distinction is 

made plain by what the legislature said in each definition. An entrance 

fee only qualifies as an entrance fee if the amount exceeds “five thousand 

dollars” or “[t]he sum of the regular periodic charges for six months of 

residency” and is used as consideration for acceptance in a facility. Id.

§ 523D.1(4)(a)–(b). A rental deposit, however, is limited to “two months’ 

rent” and may only be used to remedy the tenant’s default, to restore the 

dwelling unit to its prior condition, and to recover expenses associated 

with the recovery of the premises. Id. § 562A.12(1), (3)(a). This reasonably 

demonstrates the legislature did not contemplate the use of an entrance 
12

fee as a rental deposit because the statutory definition of entrance fee is 

neither constrained to two months’ rent nor restricted as a landlord’s 

remedial function. 

We conclude the plain statutory language makes clear the 

legislature did not intend the fees permitted by chapter 523D be subject 

to the rental deposit provision of the IURLTA. See Ryan v. Maryann Morse 

Healthcare Corp., No. 1681CV02433A, 2018 WL 6424841, at *5 (Mass. 

Super. Ct. Jan. 9, 2018) (concluding the legislature did not intend assisted 

living facilities be subject to the security deposit statute governing aspects 

of the landlord–tenant relationship). But see Hennessy v. Brookdale Senior 

Living Cmtys. Inc., No. 1784CV04215BLS2, 2018 WL 4427020, at *2 

(Mass. Super. Ct. Aug. 1, 2018) (determining the assisted living resident 

agreement “is in part a residential lease and is therefore, to that extent, 

subject to” the rights and duties of a residential landlord and tenant 

pertaining to security deposits). Accordingly, the district court did not err 

in granting the Reserve’s motion for summary judgment based on the 

inapplicability of the IURLTA. 

B. Consumer Fraud. Albaugh maintains the district court erred in 

granting the Reserve’s motion for summary judgment on her consumer 

fraud claim under Iowa Code chapter 714H. Iowa Code section 714H.3(1) 

provides, 

A person shall not engage in a practice or act the person 

knows or reasonably should know is an unfair practice, 

deception, fraud, false pretense, or false promise, or the 

misrepresentation, concealment, suppression, or omission of 

a material fact, with the intent that others rely upon the unfair 

practice, deception, fraud, false pretense, false promise, 

misrepresentation, concealment, suppression, or omission in 

connection with the advertisement, sale, or lease of consumer 

merchandise . . . .
13

An “unfair practice” is “an act or practice which causes substantial, 

unavoidable injury to consumers that is not outweighed by any consumer 

or competitive benefits which the practice produces.” Id. § 714H.2(9). The 

statute broadly defines “merchandise” to include “objects, wares, goods, 

commodities, intangibles, securities, bonds, debentures, stocks, real 

estate or services.” Id. § 714H.2(6).

Albaugh claims the Reserve committed consumer fraud in 2015 by 

prioritizing the sale of the units it held for a low entrance fee and later 

leasing units to residents without an entrance fee or supplemental 

amount. According to Albaugh, these practices were unfair because 

Voumard entered into the agreement with the understanding that the 

Reserve would refund her entrance fee and supplemental amount and no 

one informed Voumard that the Reserve would begin leasing or selling 

units in this manner. Nevertheless, the agreement between Voumard and 

the Reserve clearly states otherwise. The agreement stated, 

Upon the transfer of Applicant’s Membership in the 

Corporation to another person or persons there is no 

guarantee the Applicant will recover the entire Entrance Fee, 

the entire Supplemental Amount, or such other funds as may 

have accrued during Applicant’s residency within the 

Development . . . .

Further, Albaugh does not point to, nor does the record contain, 

evidence that the Reserve engaged in a practice that it knew or should 

have known was unfair under section 714H. Notably, Albaugh omits the 

knowledge element from her brief entirely in explaining the statute. In any 

event, Albaugh’s argument that a reasonable jury could find the Reserve’s 

actions unfair and “rely on its own common sense” to support this 

conclusion does not demonstrate that the Reserve knew or should have 

known it was engaging in an unfair practice. There is no evidence that the 

Reserve knew in 2007—when Voumard entered her agreement with the 
14

Reserve—that it would have to lower the price on entrance fees in 2015. 

Thus, the district court correctly granted the Reserve’s motion for 

summary judgment on this claim.

C. Breach of Fiduciary Duty. Albaugh challenges the district 

court’s decision to grant the Reserve’s motion for summary judgment on 

her breach of fiduciary duty claim based on its conclusion that Albaugh 

“failed to identify a factual basis upon which a fiduciary relation could 

exist.” Albaugh argues the Reserve owed a fiduciary duty to Voumard 

because Voumard relied on the Reserve to protect the value of her 

membership. The existence of a fiduciary relationship “turns on the facts 

of the case,” and “may, in some cases, be decided by the court in a 

summary-judgment proceeding.” Cemen Tech, Inc. v. Three D Indus., 

L.L.C., 753 N.W.2d 1, 13 (Iowa 2008). The term “fiduciary duty” is “very 

broad,” as it “embrac[es] both technical fiduciary relations and those 

informal relations which exist wherever one man trusts in or relies upon 

another.” Id. (quoting Kurth v. Van Horn, 380 N.W.2d 693, 695 (Iowa 

1986)).

A fiduciary relationship “exists when there is a reposing of faith, 

confidence and trust, and the placing of reliance by one upon the judgment 

and advice of the other.” Id. (quoting Kurth, 380 N.W.2d at 695–96). 

Indicative factors of a fiduciary relationship 

include the acting of one person for another; the having and 

the exercising of influence over one person by another; the 

reposing of confidence by one person in another; the 

dominance of one person by another; the inequality of the 

parties; and the dependence of one person upon another.

Weltzin v. Cobank, ACB, 633 N.W.2d 290, 294 (Iowa 2001) (quoting Kurth, 

380 N.W.2d at 696). In contrast, a fiduciary relationship does not exist 

when the relationship exists through an “arms-length transaction,” which
15

is “[a] transaction between two unrelated and unaffiliated parties” or “[a] 

transaction between two parties, however closely related they may be, 

conducted as if the parties were strangers, so that no conflict of interest 

arises.” Arms-length Transaction, Black’s Law Dictionary (10th ed. 2014); 

see also Pirkl v. Nw. Mut. Ins., 348 N.W.2d 633, 635 (Iowa 1984) (holding 

there was no clearly defined fiduciary duty in an arms-length relationship).

The district court correctly granted the Reserve’s motion for 

summary judgment on this issue because Voumard and the Reserve 

engaged in an arms-length transaction that did not establish a fiduciary 

relationship. The record demonstrates that Voumard and the Reserve 

entered into the agreement as unrelated and unaffiliated parties. The 

indicative factors of a fiduciary relationship are not present here, as 

Voumard and the Reserve negotiated and entered the agreement on equal 

footing without the Reserve having any form of influence over Voumard. 

See Weltzin, 633 N.W.2d at 294. Moreover, despite Albaugh’s claim that 

Voumard put her confidence in the Reserve to protect her entrance fee and 

supplemental amount, we have already noted the application agreement 

between Voumard and the Reserve stated there was “no guarantee 

[Voumard] will recover the entire Entrance Fee, the entire Supplemental 

Amount, or such other funds as may have accrued during [her] residency 

within the Development.” Overall, nothing in the record supports 

Albaugh’s claim that a fiduciary relationship existed between the parties.3 

The district court correctly granted the Reserve’s motion for summary 

judgment on this issue.

 3The Reserve was managed by a board of directors, a majority of whom were 

elected by all members, including Voumard. The directors owed a fiduciary duty to act 

for the benefit of the Reserve, not an individual member.
16

D. Breach of Implied Covenant of Good Faith and Fair Dealing. 

Albaugh contends the district court erred in granting the Reserve’s motion 

for summary judgment on her breach-of-implied-covenant-of-good-faith 

claim. Albaugh claims Voumard had a justified expectation that future 

residents would have to pay entrance fees like she did to become a 

resident, and the Reserve breached this expectation when it reduced the 

prices of the Reserve-owned units and later offered lease options to 

prospective residents without an entrance fee. An implied covenant of 

good faith and fair dealing is inherent in all contracts. Alta Vista 

Properties, LLC v. Mauer Vision Ctr., PC, 855 N.W.2d 722, 730 (Iowa 2014). 

“The underlying principle is that there is an implied covenant that neither 

party will do anything which will have the effect of destroying or injuring 

the right of the other party to receive the fruits of the contract.” Id. (quoting 

Am. Tower, L.P. v. Local TV Iowa, L.L.C., 809 N.W.2d 546, 550 (Iowa Ct. 

App. 2011)). This implied covenant “does not give rise to new substantive 

terms that do not otherwise exist in the contract.” Id. at 731 (quoting

Bagelmann v. First Nat’l Bank, 823 N.W.2d 18, 34 (Iowa 2012)).

Here, no terms exist in the agreement to support Albaugh’s 

argument that the Reserve breached an implied covenant of good faith and 

fair dealing. Nothing in the agreement suggested the Reserve would enable 

Voumard to recover her entrance fee or supplemental amount. Rather, 

the agreement explicitly stated that Voumard’s ability to recover these fees 

“will depend entirely on [Voumard]’s ability to assign or transfer [her] 

Membership in the Corporation to another person or persons.” 

Consequently, “any allegation of bad faith here lacks a contract term to 

which it can be attached.” Bagelmann, 823 N.W.2d at 34 (declining to find 

a breach of the implied covenant of good faith and fair dealing when a 

mortgagee did not promptly provide mortgagors with updated and more 
17

accurate flood zone information determinations because nothing in the 

mortgage contained a promise to provide this information). We affirm the 

grant of summary judgment to the Reserve on this issue.

E. Unconscionability. Albaugh proclaims the district court erred 

in granting the Reserve’s motion for summary judgment on her 

unconscionability claim. She points to a number of provisions in the 

agreement that she believes are unconscionable. Some of these claims 

rely on the application of the IURLTA, and we need not examine them 

further given our holding that the IURLTA does not apply to the Reserve. 

“A contract is unconscionable where no person in his or her right 

senses would make it on the one hand, and no honest and fair person 

would accept it on the other hand.” C & J Vantage Leasing Co. v. Wolfe, 

795 N.W.2d 65, 80 (Iowa 2011). “Whether an agreement is unconscionable 

must be determined at the time it was made.” Bartlett Grain Co., LP v. 

Sheeder, 829 N.W.2d 18, 27 (Iowa 2013). “[W]e examine factors of ‘assent, 

unfair surprise, notice, disparity of bargaining power, and substantive 

unfairness’ ” to determine whether a contract is unconscionable. Id.

(quoting C & J Vantage, 795 N.W.2d at 80). Nevertheless, “the doctrine of 

unconscionability does not exist to rescue parties from bad bargains.” Id.

(quoting C & J Vantage, 795 N.W.2d at 80).

We generally recognize procedural and substantive 

unconscionability. Id. Procedural unconscionability “includes the 

existence of factors such as ‘sharp practices[,] the use of fine print and 

convoluted language, as well as a lack of understanding and an inequality 

of bargaining power.’ ” Id. (alteration in original) (quoting In re Marriage of 

Shanks, 758 N.W.2d 506, 515 (Iowa 2008)). Substantive 

unconscionability “includes ‘harsh, oppressive, and one-sided terms.’ ” Id.

(quoting In re Marriage of Shanks, 758 N.W.2d at 515). 
18

Albaugh maintains the agreement between Voumard and the 

Reserve was substantively unconscionable, yet she presents no evidence 

to demonstrate the agreement was unconscionable at the time Voumard 

and the Reserve entered into it. The agreement did not contain any 

elements of unfair surprise, as it clearly informed Voumard of her payment 

obligations regardless of whether she was still occupying her unit. See id. 

It provided her with explicit notice that her ability to recover the entrance 

fee and supplemental amount depended entirely on her ability to assign or 

transfer her membership interest to someone else, and Voumard assented 

to the terms of the agreement. See id. Nothing in the record suggests 

Voumard was unable to understand what she was assenting to. 

Further, as we have already noted, Voumard and the Reserve 

entered into the agreement on equal footing, so there was not a disparity 

of bargaining power. See id. Despite Albaugh’s claim that the agreement 

is so “harsh, oppressive, and one-sided” that “no man in his senses and 

not under delusion would make” it, there was a waiting list for certain 

types of units at the Reserve when Voumard joined. In re Marriage of 

Shanks, 758 N.W.2d at 514–15 (first quoting Rite Color Chem. Co. v. Velvet 

Textile Co., 411 S.E.2d 645, 648 (N.C. Ct. App. 1992); and then quoting 

Casey v. Lupkes, 286 N.W.2d 204, 207 (Iowa 1979)). In fact, a motivating 

factor in Voumard’s decision to enter her agreement with the Reserve was 

that Albaugh’s mother-in-law was already a member there. Finally, we 

note Iowa Code chapter 523D expressly allows the entrance fee and 

supplemental amount outlined in the Reserve’s agreement. See Iowa Code 

§§ 523D.2, .3, .6. Considering these factors, we affirm the district court’s 

decision to grant summary judgment in favor of the Reserve.

IV. Conclusion.

For these reasons, we affirm the judgment of the district court.
19

AFFIRMED.

All justices concur except Appel and Wiggins, JJ., who dissent, and 

Cady, C.J., who takes no part. 
20

#18–1037, Albaugh v. The Reserve

APPEL, Justice (dissenting).

I. Introduction.

I respectfully dissent. In my view, the majority errs in its resolution 

of Cheryl Albaugh’s claim under the Iowa Uniform Residential Landlord 

and Tenant Act, Iowa Code chapter 562A (IURLTA).

Iowa Code chapter 523D (retirement facilities statute) and the 

IURLTA address, at least in part, the same subject matter. This is a 

common occurrence in Iowa law. The legislature, as well as our own 

caselaw, direct that when statutes govern the same subject matter, we 

should strive to reconcile potential conflicts through harmonizing the 

statutes. Iowa Code § 4.7 (2016); In re Estate of Kirk, 591 N.W.2d 630, 

633 (Iowa 1999).

The harmonizing of statutes “constrain[s] judicial discretion in the 

interpretation of laws.” Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 

U.S. 104, 109, 111 S. Ct. 2166, 2170 (1991). We do not interpret statutes 

to generate conflict. With a firm hand and a determined eye, we 

deliberately and conscientiously seek to avoid conflict in such situations.

Further, aside from our efforts to avoid the shoals of conflict, we do 

not find that statutes conflict unless they meet the extraordinary standard 

of “positive repugnancy.” State v. Perry, 440 N.W.2d 389, 391 (Iowa 1989) 

(quoting United States v. Batchelder, 442 U.S. 114, 122, 99 S. Ct. 2198, 

2203 (1979)). Not simply overlapping, or related, or dealing with the same 

subject matter. They must be positively (not by implication or 

construction) repugnant (completely conflicting).

But the statutes here are easily harmonized through a modest effort 

at reconciliation. Simply put, a facility can impose an entrance fee under 

Iowa Code section 523D.1(4) as long as that entrance fee is not used as an 
21

illegal rental deposit under Iowa Code section 562A.6(12) and .12(1). The 

majority through an expansive interpretation concludes that the 

retirement facilities statute allows an entrance fee in an amount and with 

a purpose that would be prohibited by the IURLTA. This approach is 

hardly avoiding the shoals of conflict. Are the statutes positively 

repugnant after our best efforts to reconcile them through statutory 

interpretation designed to further the ends of both statutes? No. Under 

the statutes, a retirement facility can charge an entrance of any amount 

over $5000 so long as the purpose is not to secure performance of the 

rental agreement.

The legislature is presumed to know the contents of prior law. 

Mulhern v. Catholic Health Initiatives, 799 N.W.2d 104, 118–19 (Iowa 

2011). Thus, the legislature was presumably aware of the provisions of 

the IURLTA. Yet it chose not to expressly override the IURLTA. There is 

no positive repugnancy.

But there is more. Even if the statutes were irreconcilable and 

positively repugnant notwithstanding a conscientious effort to interpret 

them in harmony, the broadly worded savings clause in Iowa Code section 

523D.7(5) provides a legislative directive that liabilities under “any other 

statute” remain in effect as if the retirement facilities statute “were not in 

effect.” The legislature has thus expressly stated what happens if the 

provisions of the retirement facilities statute are found, after determined 

harmonization efforts, to be irreconcilable with another statute. In cases 

of irreconcilable conflict, the legislature has declared that liabilities in 

other sections of the Code survive, period.

Rather than apply the savings clause in a straightforward manner, 

the majority twists the statute by inferring exclusivity in the definition of 

an entrance fee. On what basis? There is no provision of exclusivity in 
22

the statute, and as recognized by the majority, the retirement facilities 

statute does not preempt the IURLTA. Well, the majority points out, the 

IURLTA would otherwise limit the scope of allowable entrance fees. But 

that does not imply exclusivity. Does the retirement facilities statute also 

trump the statutory prohibitions on discrimination in rental agreements, 

since antidiscrimination provisions would otherwise limit the scope of 

allowable entrance fees? Of course not. Taken to its logical conclusion, 

the majority’s rationale suggests that any statutory prohibition potentially 

conflicting with the retirement facilities statute must be obliterated. Of 

course, that comes at the expense of the legislative directions to harmonize 

statutes and to choose statutory liability under other statutes where 

harmonization is not possible.

We have repeatedly declared, with blaring legal bugles, that it is not 

our province to rewrite statutes. See State v. Doe, 927 N.W.2d 656, 665 

(Iowa 2019) (“We cannot rewrite the statute . . . .”); State v. Walden, 870 

N.W.2d 842, 843 (Iowa 2015) (“We decline the State’s invitation to apply 

the absurd-results doctrine to effectively rewrite the statute.”); In re A.M., 

856 N.W.2d 365, 378 (Iowa 2014) (“We are not free to rewrite a statute in 

the guise of interpretation.”). If the principle so proudly proclaimed in 

these cases has any real meaning, it must be applied consistently to the 

unambiguous savings clause in Iowa Code section 523D.7(5). Likewise, 

we are not at liberty to choose which statutory provisions apply absent 

irreconcilability. We must honor legislative choices, not rewrite them.

In the end, the majority inexorably bulldozes to its result by 

declining to interpret the statutes to avoid conflict and by remodeling the 

statutory savings clause. What gives? The result today chooses a 

disclosure approach over the substantive regulation of security deposits in 

the IURLTA. But in doing so, the majority avoids our caselaw and the 
23

choices actually made by the legislature through a novel mechanism of 

judicial override that departs from our traditional approach.

II. Discussion.

A. The Statutes Are Easily Harmonized.

1. Potentially conflicting statutes are harmonized unless 

irreconcilable. The legislature has instructed us to harmonize potentially 

conflicting statutes. “If a general provision conflicts with a special or local 

provision, they shall be construed, if possible, so that effect is given to 

both.” Id. § 4.7; accord In re Estate of Kirk, 591 N.W.2d at 633. We have 

said, “If a court can reasonably harmonize two statutes dealing with the 

same subject, it must give concurrent effect to both, even though one is 

specific, or special, and the other general.” State v. Lutgen, 606 N.W.2d 

312, 314 (Iowa 2000) (quoting 82 C.J.S. Statutes § 355, at 474–75 (1999)). 

“[R]elated statutes . . . should be construed together as though they 

constituted one law, that is, they must be construed as one system.” State 

v. Peters, 525 N.W.2d 854, 857 (Iowa 1994) (quoting 82 C.J.S. Statutes

§ 366, at 801–08 (1953)). If two statutory provisions can be harmonized, 

it is unnecessary to consider which provision is more specific. Citizens’ 

Aide/Ombudsman v. Miller, 543 N.W.2d 899, 903–04 (Iowa 1996).

The demanding standards are a result of the presumption that the 

legislature is aware of existing law when it enacts new statutes. See

Mulhern, 799 N.W.2d at 118–19; Slager v. HWA Corp., 435 N.W.2d 349, 

353–54 (Iowa 1989) (en banc). The lack of positive repugnancy thus 

indicates a legislative intent to harmonize the statutes.

Harmonizing two apparently conflicting statutes “constrain[s] 

judicial discretion in the interpretation of the laws.” Astoria Fed. Sav. & 

Loan Ass’n, 501 U.S. at 109, 111 S. Ct. at 2170; see Good v. Crouch, 397 

N.W.2d 757, 760 (Iowa 1986) (“A finding of implied repeal in the absence 
24

of such a clear showing of legislative intent ‘would constitute a usurpation 

of legislative authority.’ ” (quoting State v. Rauhauser, 272 N.W.2d 432, 

435 (Iowa 1978)). We do not interpret statutes to generate conflicts; we 

assiduously interpret statutes to avoid conflict.

It is only when the very high bar of irreconcilability is met that a 

specific statutory provision will prevail over a general provision. To 

demonstrate irreconcilability, “[i]t is not enough to show that the two 

statutes produce differing results when applied to the same factual 

situation. The legislative intent to repeal must be manifest in the ‘positive 

repugnancy between the provisions.’ ” Perry, 440 N.W.2d at 391 (quoting 

Batchelder, 442 U.S. at 122, 99 S. Ct. at 2203); see Freeman v. Grain 

Processing Corp., 848 N.W.2d 58, 88 (Iowa 2014) (explaining that an 

implied repeal occurs “only where the statutes ‘cover the same subject 

matter,’ are ‘irreconcilably repugnant,’ and implied repeal is ‘absolutely 

necessary’ ” (quoting Rauhauser, 272 N.W.2d at 434)).

This “demanding” standard exists because “[t]he legislature is 

presumed to know the existing state of the law when the new statute is 

enacted,” and “[i]n the absence of any express repeal, the new provision is 

presumed to accord with the legislative policy embodied in prior statutes.” 

Freeman, 848 N.W.2d at 88. We have found that statutory provisions may 

be reconciled when they require different statutory elements to show a 

violation or when one provision supplements another. Peters, 525 N.W.2d 

at 858. We have also found that statutory provisions may be reconciled 

where “the wording of the statutes does not suggest they may not coexist” 

and “the provisions of the more specific one are not included in the general 

one.” Lutgen, 606 N.W.2d at 314.

2. The retirement facilities statute and the IURLTA can be easily 

harmonized. The retirement facilities statute “applies to a provider who 
25

executes a contract to provide continuing care or senior adult congregate 

living services in a facility . . . if the contract requires or permits the 

payment of an entrance fee to a person.” Iowa Code § 523D.2. 

“ ‘Continuing care’ means housing together with supportive services, 

nursing services, medical services, or other health related services, 

furnished to a resident . . . in consideration of an entrance fee.” Id.

§ 523D.1(2). Similarly, “ ‘[s]enior adult congregate living services’ means 

housing and one or more supportive services furnished to a resident . . . 

in consideration of an entrance fee.” Id. § 523D.1(11). An entrance fee is 

a transfer of money or property “made as full or partial consideration for 

acceptance of a specified individual in a facility if the amount exceeds 

either . . . [f]ive thousand dollars [or] [t]he sum of the regular periodic 

charges for six months of residency.” Id. § 523D.1(4).

The IURLTA allows certain rental deposits and prohibits others. A 

rental deposit is “a deposit of money to secure performance of a residential 

rental agreement, other than a deposit which is exclusively in advance 

payment of rent.” Id. § 562A.6(12). But a rental deposit cannot be “an 

amount or value in excess of two months’ rent.” Id. § 562A.12(1).

Is there an irreconcilable conflict here? No. The fact that the 

retirement facilities statute allows entrance fees for housing and 

acceptance into the facility does not create “positive repugnancy between 

the provisions” in the retirement facilities statute and the IURLTA. Perry, 

440 N.W.2d at 391 (quoting Batchelder, 442 U.S. at 122, 99 S. Ct. at 2203). 

We are not at liberty to infer from the ambiguous terms “housing” and 

“acceptance . . . in a facility” that the retirement facilities statute permits 

entrance fees to secure performance of a residential rental agreement, 

manufacture a conflict with the IURLTA, and unleash “judicial discretion 

in the interpretation of the laws.” Astoria Fed. Sav. & Loan Ass’n, 501 U.S. 
26

at 109, 111 S. Ct. at 2170. As the United States Supreme Court recently 

explained,

When confronted with two Acts of Congress allegedly touching 

on the same topic, this Court is not at “liberty to pick and 

choose among congressional enactments” and must instead 

strive “to give effect to both.” A party seeking to suggest that 

two statutes cannot be harmonized, and that one displaces 

the other, bears the heavy burden of showing “a clearly 

expressed congressional intention” that such a result should 

follow. The intention must be “clear and manifest.” And in 

approaching a claimed conflict, we come armed with the 

“stron[g] presum[ption]” that repeals by implication are 

“disfavored” and that “Congress will specifically address” 

preexisting law when it wishes to suspend its normal 

operations in a later statute.

These rules exist for good reasons. Respect for 

Congress as drafter counsels against too easily finding 

irreconcilable conflicts in its work. More than that, respect 

for the separation of powers counsels restraint. Allowing 

judges to pick and choose between statutes risks transforming 

them from expounders of what the law is into policymakers 

choosing what the law should be. Our rules aiming for 

harmony over conflict in statutory interpretation grow from an 

appreciation that it’s the job of Congress by legislation, not 

this Court by supposition, both to write the laws and to repeal 

them.

Epic Sys. Corp. v. Lewis, 584 U.S. ___, ___, 138 S. Ct. 1612, 1624 (2018) 

(alterations in original) (first quoting Morton v. Mancari, 417 U.S. 535, 551, 

94 S. Ct. 2474, 2483 (1974); then quoting Vimar Seguros y Reaseguros, 

S.A. v. M/V Sky Reefer, 515 U.S. 528, 533, 115 S. Ct. 2322, 2326 (1995); 

then quoting Morton, 417 U.S. at 551, 94 S. Ct. at 2483; and then quoting 

United States v. Fausto, 484 U.S. 439, 452–53, 108 S. Ct. 668, 676 (1988)). 

We might show the same respect to the Iowa legislature.

At most, the ambiguous nature of “housing” and “acceptance . . . in 

a facility” requires us to harmonize those provisions with the limitations 

on rental deposits in the IURLTA. See Iowa Code § 4.7. An entrance fee 

is permitted if it is consideration for acceptance into the facility or for 
27

continuing care services, but it is not permitted to secure performance of 

a residential rental agreement in an amount greater than two months’

rent.

Another approach is to carefully observe the limitations of the 

retirement facilities statute. An entrance fee is defined as a payment for 

“acceptance of a specified individual in a facility” that exceeds certain 

amounts. Id. § 523D.1(4) (emphasis added). The words are clear: It is a 

fee for acceptance into a facility. It gets you in the door. It is a ticket of 

admission for entrance on day one. But the authorizing of an entrance fee 

for purposes of “acceptance of a specified individual in a facility” is not 

contrary to the security deposit provisions of the IURLTA. The 

authorization of an entry fee “for acceptance” is neither positively 

repugnant with the IURLTA nor an implied permit to evade the provisions 

of the IURLTA. If the provisions of the retirement facilities statute 

preempted other statutes and regulations, entrance fees could be used in 

discriminatory fashion without violating civil rights law, transportation 

services could be provided by unlicensed chauffeurs who violate rules of 

the road, and nursing services could be provided in a fashion contrary to 

medical practices.

Some concrete examples illustrate the ease with which the 

provisions are harmonized. An entrance fee can be charged for certain 

“housing together with supportive services, nursing services, medical 

services, or other health related services,” id. § 523D.1(2), without running 

afoul of the prohibition in the IURLTA so long as the fee for those services 

is not both greater than two months’ rent and designed to secure 

performance of the rental agreement, id. §§ 562A.6(12), .12(1); see also

Paul A. Gordon, Am. Seniors Housing Ass’n, The Impact of Landlord Tenant 

Laws on Community Fees 1 (2007) (contrasting real estate related fees, 
28

which might be subject to landlord–tenant law, with other types of fees 

linked to provision of services). Further, a nonrefundable entrance fee is 

generally not a security deposit under the IURLTA. See De Stefano v. Apts. 

Downtown, Inc., 879 N.W.2d 155, 185–86 (Iowa 2016); see also M & I First

Nat’l Bank v. Episcopal Homes Mgmt., Inc., 536 N.W.2d 175, 186 (Wis. Ct. 

App. 1995) (noting that nonrefundable fee could be a payment to secure 

execution of the lease and not a security deposit to ensure performance of 

obligations under a rental agreement).

3. Application. In this case, the entrance fee was designed to secure 

the position of The Reserve (Reserve) in the event of a default, not as 

consideration for acceptance into the facility or for continuing care 

services. Specifically, the rental agreement provided,

Should Applicant default under the terms of the Covenants of 

Occupancy, which default is not cured in a manner deemed 

satisfactory by the Corporation, Applicant’s Residential 

Membership shall be terminated and all of Applicant’s right, 

title and interest in and to such Entrance Fee, [and] such 

Supplemental Amount . . . shall be forfeited by Applicant and 

become the sole and separate property of the Corporation . . . .

In short, the Reserve used the entrance fee and supplemental amount in 

the manner of a rental deposit, namely, to secure performance of the rental 

agreement. See Iowa Code § 562A.6(12). And the entrance fee and 

supplemental amount were each far in excess of two months’ rent, the 

maximum allowable amount for a rental deposit. See id. § 562A.12(1). 

Therefore, the entrance fee and supplemental amount charged by the 

Reserve were illegal rental deposits prohibited by the IURLTA.

The problem here, as Albaugh points out, is not irreconcilability of 

statutory provisions. Rather, the problem only arises because the Reserve 

structured its entrance fee and supplemental amount as rental deposits. 

The Reserve can charge $120,000 or more as an entrance fee and 
29

supplemental amount; it just cannot charge that amount as a rental 

deposit.

Consequently, Albaugh was entitled to summary judgment on the 

IURLTA claim.

B. Exclusivity. The provisions in the retirement facilities statute

concerning entrance fees do not constitute the exclusive statutory 

regulation of monies collected and labeled as an entrance fee.

Can a provider regulated under the retirement facilities statute

discriminate in charging entrance fees by, for example, charging a woman 

twice the fee as a man? The Iowa Civil Rights Act, of course, says no. See

Iowa Code § 216.8(1)(b). The majority’s approach to this case might allow 

such discrimination, so long as both entrance fees are greater than $5000, 

because the regulation of entrance fees in the retirement facilities statute

is considered sui generis. But there is no reason to believe the legislature 

intended to allow such discrimination. Meanwhile, if the requirements of 

the Iowa Civil Rights Act still apply to entrance fees, why wouldn’t the 

security deposit requirements in the IURLTA also apply?4

 4Additionally, even as the majority believes that regulation of entrance fees in the 

retirement facilities statutes is sui generis, it offers no principle limiting the sui generis 

in the retirement facilities statute to entrance fees. Perhaps none of the IURLTA applies 

to facilities regulated under the retirement facilities statute. For instance, the retirement 

facilities statute states that a “[p]rovider” is “a person undertaking through a lease” to 

provide care in a facility. Iowa Code § 523D.1(8). So, the retirement facilities statute 

expects a provider to use a lease. Is that lease also immune from the IURLTA? Likewise, 

the retirement facilities statute contemplates that facilities will offer lodging. Id.

§ 523D.1(2). Since lodging is authorized under the retirement facilities statute, need the 

facility comply with requirements in the IURLTA to keep the lodging “in a fit and habitable 

condition” and “[s]upply running water and reasonable amounts of hot water at all times 

and reasonable heat”? Id. § 562A.15(2), (6).

Indeed, under the majority’s reasoning, perhaps any action contemplated in the 

retirement facilities statute is unregulated by any other provision of the Iowa Code. The 

retirement facilities statute recognizes that facilities may offer nursing care, id.

§ 523D.1(2), (11), (12), so can facilities offer uncertified nursing care?
30

Further, there is no exclusivity provision in the retirement facilities 

statute. By contrast, numerous other parts of the Code contain exclusivity 

provisions. See, e.g., Iowa Code § 17A.23(1) (Iowa Administrative 

Procedure Act); id. § 85.20 (workers’ compensation); id. § 216.16(1) (Iowa 

Civil Rights Act); id. § 600A.3(1) (termination of parental rights). “The 

general assembly can express its intent by omission, and we cannot 

‘enlarge or otherwise change the terms of a statute as the legislature 

adopted it.’ ” Homan v. Branstad, 887 N.W.2d 153, 172 (Iowa 2016) 

(quoting Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995)). If the 

legislature intended the provision to be exclusive, it could have said so. 

George v. D.W. Zinser Co., 762 N.W.2d 865, 872 (Iowa 2009).

At the same time, the legislature has included a broad savings 

clause in the retirement facilities statute. See Iowa Code § 523D.7(5). It 

says, “This chapter does not limit a liability which may exist by virtue of 

any other statute or under common law if this chapter were not in effect.” 

Id. It is hard to imagine a savings clause whose plain meaning is more 

antiexclusive. A belief that the entrance fee provisions in the retirement 

facilities statute are exclusive would rewrite the statute by blue penciling 

the savings clause. But we do not rewrite statutes. Doe, 927 N.W.2d at 

665; Walden, 870 N.W.2d at 843; In re A.M., 856 N.W.2d at 378.

Finally, there are a number of cases supporting the view that the 

retirement facilities statute does not exclusively regulate monies collected 

and labeled an entrance fee. Two decisions from Massachusetts hold 

statutory provisions regulating security deposits in the state landlord–

tenant law apply to “community fees” collected by a senior living facility. 

Hennessy v. Brookdale Senior Living Cmtys., Inc., No. 1784CV04215BLS2, 

2018 WL 4427020, at *1–4 (Mass. Super. Ct. Aug. 1, 2018); Gowen v. 

Benchmark Senior Living, LLC, No. 1684CV03972BLS2, 2017 WL 
31

3251585, at *1–3 (Mass. Super. Ct. May 8, 2017). Similar to the savings 

clause in Iowa Code section 523D.7(5), the Massachusetts law regulating 

senior living facilities provides that the facilities “shall meet the 

requirements of all applicable federal and state laws and regulations.” 

Mass. Gen. Laws Ann. ch. 19D, § 16 (West, Westlaw current through ch. 

12 of 2019 1st Sess.). The Massachusetts savings clause, according to the 

Gowen court,

makes clear that [the state statute regulating senior living 

facilities] is not intended to be an exhaustive regulatory 

scheme that governs all aspects of assisted living operations. 

And it also makes clear that [the senior living facility] must 

comply with all laws that govern residential tenancies to the 

extent they apply to its facility.

Assisted living facilities can easily comply with both 

statutory schemes, providing supportive services in accord 

with [the state statute regulating senior living facilities] to a 

resident whose tenancy is also governed by [the landlord–

tenant law]. Courts must therefore construe and apply these 

two statutes in a manner that gives “meaning and purpose to 

both. . . . ‘so that the policies underlying both may be 

honored.’ ”

2017 WL 3251585, at *2 (quoting Alliance to Protect Nantucket Sound, Inc. 

v. Energy Facilities Siting Bd., 932 N.E.2d 787, 796 (Mass. 2010)); accord 

Hennessy, 2018 WL 4427020, at *2. Further, the Gowen court explained, 

the senior living facility may charge a community fee for “services that are 

beyond the scope of a typical residential tenancy.” Id.

Another Massachusetts decision disagrees with the result reached 

in Gowen and Hennessy. See Ryan v. Maryann Morse Healthcare Corp., 

No. 1681CV02433A, 2018 WL 6424841, at *5 (Mass. Super. Ct. Jan. 9, 

2018). But the rationale in Ryan supports Albaugh’s position in this 

litigation. “First,” the Ryan court noted, “[the state statute regulating 

senior living facilities] does not use the terms ‘lease,’ ‘lessor’ or ‘tenant’ 

employed in [the landlord–tenant law].” Id. By contrast, Iowa Code section 
32

523D.1(8) anticipates that providers will utilize leases. Next, the Ryan

court said that the community fee in the case before it was unlike fees that 

are “closely related to the leased property.” Ryan, 2018 WL 6424841, at 

*5. But in our case, the entrance fee could hardly be more closely related 

to the leased property, as it was used to secure performance of the lease 

obligations. “More to the point,” the Ryan court continued, the 

Massachusetts statute regulating senior living facilities actually mentions 

the landlord–tenant law in one provision but not with respect to the fee at 

issue. Id. at *6. Of course, in Iowa, there is no such reference to the 

IURLTA in the retirement facilities statute (except, of course, in the savings 

clause which plainly provides for applicability of the IURLTA). Finally, the 

Ryan court said its conclusion

is bolstered by the fact that [the state statute regulating senior 

living facilities] provides a comprehensive set of protections to 

residents in [the facilities]. [The state statute regulating senior 

living facilities] does not displace landlord–tenant law and 

leave residents to fend for themselves. It provides a 

comprehensive list of resident rights which, generally 

speaking, demand fairness in the [facility]–resident 

relationship. These rights include privacy rights, use of 

personal property in the living area and eviction protections—

concerns otherwise within the scope of landlord–tenant law.

Id. at *7. But the Iowa retirement facilities statute has no such 

protections. We cannot rely on the Ryan court’s evaluation of a completely 

different statutory environment.

Similarly, in Jackim v. CC–Lake, Inc., 842 N.E.2d 1113, 1120 (Ill. 

App. Ct. 2005), an Illinois appellate court reviewed a different statutory 

and factual environment. There is no indication that the Illinois statute 

regulating senior living facilities contains a savings clause like that in Iowa 

Code section 523D.7(5). Indeed, the Jackim court found the absence of 

such a statement in the Illinois statute important, stating, “If the Illinois 

legislature intended for entrance fees paid by residents to providers in 
33

connection with life care contracts to be subject to the Security Deposit 

Interest Act, it could have said so . . . .” Id. Well, the Iowa legislature did 

say so in the savings clause in section 523D.7(5). There is good reason to 

think that the Jackim court would have come to a different conclusion had 

it before it the Iowa statutory scheme. Further, the Jackim court placed 

great weight on the fact that the plaintiffs’ contract with the facility allowed 

the plaintiffs to move around to different apartments during their lives. Id.

at 1119. According to the Jackim court, that fact precluded finding a 

landlord–tenant relationship which, in turn, prevented application of the 

security deposit regulations. Id. at 1119–20. But here, the contract 

between the Reserve and Shirley Voumard only gave her access to one 

apartment. With key factual and legal bases for Jackim being irrelevant to 

the situation before us, there is little persuasive value to Jackim.

C. The Savings Clause in the Retirement Facilities Statute

Precludes that Statute from Preempting the IURLTA. Further, in the 

alternative, any irreconcilability between the retirement facilities statute

and another statute must be resolved in favor of the other statute. Iowa 

Code section 523D.7(5) states, “This chapter does not limit a liability which 

may exist by virtue of any other statute or under common law if this 

chapter were not in effect.”

In considering whether there is liability under another statute—like 

the IURLTA—the legislature has directed not to limit “any other statute” 

as if the retirement facilities statute “were not in effect.” This is sweeping, 

unqualified language. To me, the language of the savings clause means 

that statutory liability arising outside of the retirement facilities statute 

remains in place and cannot be ousted by language in the retirement 

facilities statute.
34

We often struggle with how two statutory regimes scattered 

throughout the Code fit together. But here, the legislature has given us 

an answer to the question. If there is statutory liability in another 

provision of the Code, the retirement facilities statute cannot trump or 

supersede it.

In fact, Iowa Code section 523D.7(5) trumps our ordinary approach 

to interpreting conflicting statutes. Ordinarily, as noted, an irreconcilable 

conflict between a general and specific statute is resolved in favor of the 

specific statute. Oyens Feed & Supply, Inc. v. Primebank, 808 N.W.2d 186, 

194 (Iowa 2011). But that approach has no warrant in conflicts between 

the retirement facilities statute and another statute. In such instances, 

because of the savings clause, the other statute must prevail over the 

retirement facilities statute no matter the level of generality.

We cannot amend the unequivocal general savings statute through 

judicial legislation based on speculation that the legislature would have 

written the statute differently had it thought more deeply about the 

application of the IURLTA to the retirement facilities statute. We presume 

the legislature is aware of existing law. State v. Adams, 810 N.W.2d 365, 

370 (Iowa 2012). The question is what the statute means, not what the 

legislature meant. Richardson v. City of Jefferson, 257 Iowa 709, 714, 134 

N.W.2d 528, 531 (1965).

I break no new ground by following the statute. In Advest, Inc. v. 

Kirschner, No. 92–6656, 1994 WL 18592, at *2 (E.D. Pa. Jan. 21, 1994), 

the court employed similar reasoning. In Advest, the court first 

determined that securities transactions were covered by Pennsylvania’s 

consumer protection law. Id. Then, the court turned to an argument that 

liability under the consumer protection law was displaced by the 

Pennsylvania Securities Act. Id. The court explained,
35

[Plaintiff] . . . argues that since the sale of securities is already 

regulated by the Pennsylvania Securities Act of 1972, the 

[consumer protection law] was not intended to apply to 

securities transactions. It is true that as a rule the particular 

statute overrides the general, but . . . for [that rule] to apply, 

the statutes must be irreconcilable. Here, not only may they 

be reconciled, the securities act expressly states: “[n]othing in 

this act shall limit any liability which might exist by virtue of 

any other statute or under common law if this act were not in 

effect.” Thus for me to nullify liability under the [consumer 

protection law], because of the more specific securities 

statute, would be for me to construe the above language to the 

precise converse of plain meaning—the antithesis of apt 

statutory construction.

Id. (fourth alteration in original) (citations omitted) (quoting 70 Pa. Cons. 

Stat. § 1-506). That is the same situation we have here—the statutes may 

be reconciled, and even if they could not, the legislature has directed us to 

avoid the ordinary rule of favoring the more specific statute.

In another case, a federal district court faced the question of 

“whether the General Assembly ‘intended the [Securities Act] and the 

[consumer protection law] to coexist as independent statutory 

mechanisms or whether the [Securities Act] is intended to provide the sole 

and exclusive statutory penalty for alleged’ securities violations.” Denison 

v. Kelly, 759 F. Supp. 199, 204 (M.D. Pa. 1991) (first and third alterations 

in original) (quoting Pekular v. Eich, 513 A.2d 427, 433 (Pa. Super. Ct. 

1986)). The court found that the two statutes could coexist because there 

was no irreconcilable conflict and because

the Securities Act nowhere indicates that it is intended as the 

exclusive statutory remedy for securities violations. In fact, 

as pointed out by the plaintiffs, it specifically preserves other 

remedies. [The Securities Act] provides, in pertinent part, 

that: “Nothing in this act shall limit any liability which might 

exist by virtue of any other statute or under common law if 

this act were not in effect.” “Any other statute” must 

encompass the [consumer protection law].

Id. (quoting 70 Pa. Cons. Stat. § 1-506).
36

Until 2005, Iowa’s Uniform Securities Act contained a provision 

practically identical to the savings clause in section 523D.7(5). 

Specifically, Iowa Code section 502.505 (2003) stated, “Nothing in this 

chapter shall limit any liability which might exist by virtue of any other 

statute or under common law if this chapter were not in effect.” The only 

Iowa court to interpret the provision appears to be a district court. See

Cheyenne Camping Ctr. Co. v. Frazer, No. LA99770, 2004 WL 5238947 

(Iowa Dist. Ct. Jan. 1, 2004). The district court noted that courts in other 

jurisdictions faced with almost identical statutory schemes “have found 

that the underlying protective purpose of the statute is inconsistent with 

cutting off additional common law remedies.” Id. The district court also 

noted the common practice of joining claims under the securities act with 

other civil tort claims. Id. (citing Kramersmeier v. R.G. Dickinson & Co., 

440 N.W.2d 873, 878 (Iowa 1989)). On that authority, the district court 

found the plaintiff “is not precluded from asserting its common law causes 

of action while pursuing a remedy through [the securities act].” Id.

The notion of broad savings clauses preserving preexisting statutes 

is commonplace in securities and franchise laws, where many states have 

savings clauses virtually identical to that in the retirement facilities 

statute. In Andersen v. Griswold International, LLC, No. 14-CV-02560-

EDL, 2014 WL 12694138, at *5 (N.D. Cal. Dec. 16, 2014), the court said, 

“The plain language of the statute preserves preexisting common law and 

statutes enacted before the [California Franchise Investment Law] that 

would apply if it had not been enacted.” In Tractor & Farm Supply, Inc. v. 

Ford New Holland, Inc., 898 F. Supp. 1198, 1204 (W.D. Ky. 1995) (quoting 

Mich. Comp. Laws § 445.1434), the court declared, “[T]he Franchise Law’s 

remedies are cumulative; the Law clearly states ‘[n]othing in this act shall 

limit a liability which may exist by virtue of any other statute or common
37

law if this act were not in effect.’ ” In Victory Lane Quick Oil Change, Inc. 

v. Hoss, No. 07-14463, 2009 WL 2461183, at *3 (E.D. Mich. Aug. 10, 

2009), the court noted, “[T]he [Michigan Franchise Investment Law] does 

not limit the availability of causes of action created by other statute or 

common law.” In Ugarte v. Atlas Securities, Inc., No. C043720, 2004 WL 

670857, at *6 (Cal. Ct. App. Apr. 1, 2004), the court explained, “[T]he 

Corporations Code does not interfere with existing common law causes of 

action.” In Toyz, Inc. v. Wireless Toyz, Inc., 799 F. Supp. 2d 737, 745 (E.D. 

Mich. 2011), the court stated, “The plain language of the statute does not 

limit any other cause of action brought under common law.” In Fantastic 

Enterprises, Inc. v. S.M.R. Enterprises, Inc., 540 N.Y.S.2d 131, 135 (Sup. 

Ct. 1988), the court denied a motion to dismiss claims of common law 

fraud and breach of contract on the basis of a statute of limitations in the 

General Business Law because the business law “explicitly states that it 

does not limit any liabilities which exist under common law.” In H.R.R. 

Zimmerman Co. v. Tecumseh Products Co., No. 99 C 5437, 2001 WL 

289867, at *4 (N.D. Ill. Mar. 15, 2001), the court declared, “The language 

[the plaintiff] relies upon is . . . unambiguous in that it does not preclude 

any causes of action available outside of this Act.” In Brennan v. Reed, 

Smith, Shaw & McClay, 450 A.2d 740, 747 (Pa. Super. Ct. 1982), the court 

explained, “The act . . . does not interfere with any independent rights of 

action that might exist at common law such as a suit for legal malpractice.” 

In L.A. Insurance Agency Franchising, LLC v. Elia, No. 18-13523, 2019 WL 

1515412, at *4 (E.D. Mich. Apr. 8, 2019), the court said, “[T]he Michigan 

Franchise Investment Law specifically protects a party’s other common law 

contract rights . . . .” In Southern Illinois Beverage, Inc. v. Hansen 

Beverage Co., No. 07-CV-391-DRH, 2007 WL 3046273, at *4 (S.D. Ill. Oct. 

15, 2007), the court explained, “It is proper to plead [Illinois Franchise 
38

Disclosure Act] claims with common-law claims because, as the statute 

expressly provides, it does not preempt remedies under the common law 

and other statutes.” In Tyszka v. Make & Take Holding, LLC, 900 N.Y.S.2d 

211, 212–13 (App. Div. 2010) (alterations in original), the court noted,

We agree with the determination of the court in its written 

decision that “[t]he final sentence of the provision preserves 

[preexisting] common law claims which would exist under the 

common law if the Act were not in effect, [but that], here, the 

only violation alleged as against [defendant] is aiding and 

abetting a violation of the Act itself, not a free-standing 

common law violation. For claims arising out of statutory 

violations of the Act, the Act itself provides the plaintiffs with 

their exclusive remedy.

Commentators agree with those interpretations. In Illinois, because 

of the savings clause, “the Franchise Act does not preempt common law 

and other statutory remedies.” James K. Genden, A Guide to the Illinois 

Franchise Disclosure Act, 20 Franchise L.J. 59, 60 (2000). The savings 

clause in Pennsylvania’s securities law “specifically directs that the 

remedies provided by the [securities law] are not exclusive” and that the 

law “was not intended to displace or supersede existing common law 

remedies for fraud.” Kurt M. Saunders, Comment, Proof of Fault in Actions 

for Securities Fraud: A Cloud in Pennsylvania’s Blue Sky, 46 U. Pitt. L. Rev. 

1083, 1091 & n.57 (1985). “In fact, all Blue Sky [Securities] Laws are 

“additive”—i.e., intended to supplement other remedies available to 

defrauded investors.” Jesse Stewart, False Conflicts: A 50-State Survey of 

Blue Sky Laws, 25 PIABA B.J. 383, 383 (2018).

I have found two cases taking a somewhat different approach with 

respect to common law claims. These cases generally conclude that 

California statutes were intended to displace the common law concerning 

particular matters. See Samica Enters., LLC v. Mail Boxes Etc. USA, Inc., 
39

637 F. Supp. 2d 712, 721–22 (C.D. Cal. 2008); Mirkin v. Wasserman, 858 

P.2d 568, 582 (Cal. 1993).

For one thing, it is not even clear that Samica and Mirkin would 

support the Reserve in this case. Both of those cases decided that common 

law claims did not survive, Samica, 637 F. Supp. 2d at 721–22; Mirkin, 

858 P.2d at 582, whereas Albaugh’s claim is statutorily based. It is 

perfectly conceivable that the California legislature intended to override 

the common law to a greater extent than its own statutes. Further, those 

cases held that the common law claims did not survive because the 

California legislature had provided an analogous remedy. Samica, 637 

F. Supp. 2d at 721–22; Mirkin, 858 P.2d at 582. But here, the retirement 

facilities statute provides no remedy where a landlord collects an illegal 

rental deposit. That is addressed in the IURLTA.

In any case, Samica and Mirkin were wrongly decided. Aside from 

being against the great weight of authority on the matter, as recounted 

above, the reasoning in those opinions has been specifically rejected in 

other judicial opinions. Toyz, 799 F. Supp. 2d at 745 (rejecting reasoning 

in Samica); Mirkin, 858 P.2d at 594–95 (Kennard, J., concurring and 

dissenting) (rejecting Mirkin majority); see also Christopher Boffey, Note, 

Mirkin v. Wasserman: The Supreme Court of California Rejects the Fraudon-the-Market Theory in State Law Deceit Actions, 49 Bus. Law. 715, 736 

(1994) [hereinafter Boffey] (same). The Samica and Mirkin courts forgot 

that the purpose of the purportedly preemptive statute was to protect 

consumers through disclosure and other requirements—just like the 

retirement facilities statute—by adding remedies rather than replacing 

them. Mirkin, 858 P.2d at 594–95; Boffey, 49 Bus. Law. at 736–37. 

Indeed, the Samica and Mirkin courts ignored the plain meaning of the 

savings clauses which sought to ensure that such purpose would be 
40

achieved. Toyz, 799 F. Supp. 2d at 745; Mirkin, 858 P.2d at 594–95; see 

Boffey, 49 Bus. Law. at 736 (“[I]t seems likely the [Mirkin] court overlooked 

that federal and state securities laws were not intended to provide 

exclusive remedies for securities transactions involving deceit. Both the 

California Corporations Code, and the Securities Exchange Act of 1934 

include sections that make it clear the remedies created by them were 

intended to supplement (and not replace) remedies available under 

common and other statutory laws.” (Footnotes omitted.)). Justice Kennard 

put it well: 

To speak, as the majority does, of a “conflict” between 

securities law remedies and the traditional action for fraud is 

to ignore the decisions of our state Legislature and Congress 

to make securities laws nonexclusive and cumulative to 

traditional tort remedies.

Mirkin, 858 P.2d at 595. Justice Kennard’s reasoning applies with full 

force to the question before us concerning the relationship between the 

retirement facilities statute and the IURLTA.

In my view, Voumard’s daughter, acting as her substitute, was 

entitled to partial summary judgment on the IURLTA claim. The Reserve 

was not entitled to summary judgment on the IURLTA claim. I would so 

hold, reverse, and remand the case to the district court.

III. Conclusion.

For the reasons discussed above, I would reverse the district court 

judgment on the IURLTA claim, grant summary judgment to Albaugh on 

the IURLTA claim, and remand to the district court for further proceedings.

Wiggins, J., joins this dissent.