                  IN THE COURT OF APPEALS OF IOWA

                                 No. 15-0587
                            Filed August 31, 2016


PHEASANT HILLS ELDRIDGE CONDOMINIUM
OWNERS AND FACILITIES ASSOCIATION,
    Plaintiff-Appellee,

vs.

CHARLES W. RAY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.



      Charles Ray appeals an order in favor of a condominium owners’

association that terminated his right to occupy, use, or control his unit and

ordered a sale of the unit. AFFIRMED.




      Paul J. Bieber of Gomez May, L.L.P., Davenport, for appellant.

      Marc Gellerman, Bettendorf, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Condominium owner Charles Ray appeals an order in favor of the

condominium owners’ association that terminated his right to occupy, use, or

control his unit and ordered a sale of the unit. Ray contends (1) the association

failed to prove it served proper notice of the meeting at which the forced-sale

amendment to the bylaws was approved; (2) the association’s attempt to force

the sale of his unit was not reasonable; and (3) principles of equity did not allow

the forced sale.

I.     Background Facts and Proceedings

       Ray purchased a unit at Pheasant Hills Condos in Eldridge, Iowa, and

lived there for decades. Ray was not a model neighbor. He repeatedly allowed

liquids to permeate the ceiling of the unit below him; placed personal belongings

in common areas; sprayed water on a common deck, which splashed into

another unit; offended a resident by retrieving mail in his underwear; stole mail—

a crime for which he was convicted; and possessed a cache of firearms as a

felon—a crime for which his probation was revoked. He also failed to pay his

dues on time, generated mold within his unit, created fire hazards inside and

outside his unit, and failed to maintain his garage.

       The Pheasant Hills homeowners’ association regulated owner conduct

through its bylaws, which were periodically amended. One of the amendments

authorized involuntary sales of units if owners “violate[d] any of the covenants or

restrictions or provisions of this Declaration, the By-laws or the regulations

adopted by the Association.”
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       Over the years, the association sent Ray notices of bylaw violations but

had limited success in gaining compliance. Eventually, the association sent Ray

a thirty-day notice to cure the violations and, when not cured, served him with a

ten-day notice to terminate his ownership rights. The association followed up

with an “application for injunction relief,” seeking an order requiring him to “sell

his unit and immediately terminate his occupancy.” Ray did not file an answer or

personally appear at trial, although an attorney appeared on his behalf.

Following trial, the district court entered a “decree of mandatory injunction”

terminating Ray’s interest in the property, ordering a sale of the unit, and

enjoining Ray from reacquiring his interest. Ray appealed.

II.    Standard of Review

       The association argues for de novo review.         At first blush, this would

appear to be the appropriate standard, given its request for the equitable remedy

of injunctive relief. See Max 100 L.C. v. Iowa Realty Co., 621 N.W.2d 178, 181

(Iowa 2001) (stating “[g]enerally, the issuance of an injunction invokes the

equitable powers of the court,” and “[g]enerally, our standard of review for the

issuance of injunctions is de novo”). However, the district court analyzed the

action as a breach-of-contract case, which is a law action. See Oberbillig v. W.

Grand Towers Condo. Ass’n, 807 N.W.2d 143, 149-50 (Iowa 2011) (applying

general rule of contracts to construe bylaws of condominium association).

Accordingly, our review is at law, with fact-findings binding on us if supported by

substantial evidence. Id. at 149; see also Harrington v. Univ. of N. Iowa, 726

N.W.2d 363, 365 (Iowa 2007) (“[T]he existence of a request for an injunction

does not alter our conclusion that this matter was tried as a law action.”).
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III.      Notice

          Ray contends, the association “does not have a copy of the notice given of

the meeting at which the forced sale amendment was approved and cannot

prove it complied with the ‘terms and conditions’ of the contract.” The district

court found otherwise, stating: “The uncontroverted evidence and these exhibits

provide that proper notice and voting was done to properly amend the By-laws.

Ray never challenged the legality of these amendments.” Substantial evidence

supports this finding. As noted, the bylaws were amended to add a provision on

the involuntary sale of units.      The amendment, filed with the Scott County

Recorder in 2001, stated it was passed following “notice to said owners and

directors specifically called for the purpose of considering the amendments to the

By-Laws.”

          The association’s action against Ray was filed thirteen years later. He

furnished no evidence the notice of the proposed amendment was deficient. The

most Ray could muster was an admission from an elderly resident that she did

not recall how the notice was provided. The district court reasonably found the

evidence uncontroverted on the question of pre-amendment notice to unit

owners.

IV.       Whether the Forced Sale was Reasonable

          Ray contends the association acted unreasonably in attempting to force

the sale of his unit. In his view, “[t]he restrictions upon which the association[’]s

case is based do not clearly prohibit much of [the] behavior the plaintiffs[’]

witnesses complain about; it cannot be said the intent to prohibit the conduct is

clear.”
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       To the contrary, the bylaws contained detailed and specific restrictions on

owner conduct:

               Restrictions on Use of Apartments: In order to provide for
       congenial occupancy of the property and for the protection of the
       values of the apartments, the use of the property shall be restricted
       to and shall be in accordance with the following provisions:
               a) The apartments shall be used for residential purposes
       only, except as reserved to the Declarant for sales or administrative
       purposes, or except as reserved in the Declaration.
               b) Garages must be used for the storage of motor vehicles
       and other miscellaneous storage purposes. Such use shall be in a
       neat and clean manner consistent with their purpose as residential
       garages accessory to home ownership.
               c) The common areas shall be used only for the purposes for
       which they are intended.
               d) No nuisances shall be allowed in the property nor any use
       or practice which is a source of annoyance to residents or which
       interferes with the peaceful possession and proper use of the
       property by its residents.
               e) No immoral, improper or offensive or unlawful use shall be
       made of the property or any part thereof, and all valid laws, zoning
       ordinances and regulations of all governmental bodies having
       jurisdiction thereof shall be observed. Provisions of the law, orders,
       rules, regulations or requirements of any governmental agency
       having jurisdiction thereof relating to any portion of the property
       shall be complied with, by and at the sole expense of the apartment
       owners or the Board of Directors, whichever shall have the
       obligation to maintain or repair such portion of the property.
               f) A portion less than a whole apartment shall not be rented,
       and no transient tenants may be accommodated.
               g) No household pets shall be kept in any apartment. This
       paragraph shall not apply to fish or birds which are not regarded as
       household pets for purposes hereof.
               h) The Declarant may make such use of the unsold
       apartments and the common areas as may facilitate completion
       and sale, including but not limited to maintenance of a sales office,
       the showing of the property and the displays of signs.

The only arguably ambiguous portion relevant here was subparagraph (e),

prohibiting “immoral, improper or offensive” conduct. But most of Ray’s conduct

fell within the clear and unambiguous prohibition on engaging in “unlawful”

conduct, a prohibition he routinely violated.
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       Even if interpretation of the bylaws were a prerequisite to finding a bylaw

violation, the business judgment rule would require us to defer to the

association’s interpretation. See Oberbillig, 807 N.W.2d at 155-56. That rule

“severely limit[s] second guessing of business decisions which have been made

by those whom the corporation has chosen to make them,” absent a showing of

self-dealing or a conflict of interest. Id. (citation omitted); see also 40 W. 67th St.

Corp. v. Pullman, 790 N.E.2d 1174, 1179-80 (N.Y. 2003) (“In the realm of

cooperative governance and in the lease provision before us, the cooperative’s

determination as to the tenant’s objectionable behavior stands as competent

evidence necessary to sustain the cooperative’s determination. If that were not

so, the contract provision for termination of the lease—to which defendant

agreed—would be meaningless.”).         No such showing was made here.            See

Pullman, 790 N.E.2d at 1181 (“By not appearing or presenting evidence

personally or by counsel, defendant failed to challenge the findings and has not

otherwise satisfied us that the Board has in any way acted ultra vires.”). The

association reasonably interpreted and applied its bylaws in deciding to seek an

involuntary sale of Ray’s condominium unit. See 4215 Harding Rd. Homeowners

Ass’n v. Harris, 354 S.W.3d 296, 307-08 (Tenn. Ct. App. 2011) (concluding

judicial sale of condominium unit was an appropriate remedy based in part on

unit owner’s denial of problem, association’s “repeated and generous efforts over

more than a year to help remedy the problem,” unit-owner’s “continuing failure to

remedy the situation,” “the gravity of the nuisance,” and “its impact on other

residents”); see also Pullman, 790 N.E.2d at 1181 (stating defendant failed to

show “the Board’s purpose was anything other than furthering the overall welfare
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of a cooperative that found it could no longer abide defendant’s behavior”);

Michael C. Kim, Involuntary Sale: Banishing an Owner from the Condominium

Community, 31 J. Marshall L. Rev. 429, 436 (1998) (“[T]here is no apparent

statutory bar against the involuntary sale remedy but that remedy must be

applied in light of the overall condominium theme of cooperative property

ownership and operations.”). We discern no error in the district court’s approval

of the association’s request.

V.     Whether Principles of Equity Allow the Forced Sale

       In a variation of its previous argument, Ray contends the association

“skipped the incremental approach and went directly to the most radical remedy,”

an approach which—in his view—“is inconsistent with the principles of equity

required by the Iowa Supreme Court.”        Because the district court tried and

decided the case as a law action, we find it unnecessary to decide whether

equity militated in favor of a more measured remedy.

       We affirm the district court order and judgment.

       AFFIRMED.
