                  IN THE SUPREME COURT OF IOWA
                              No. 18–0261

                           Filed June 12, 2020


IN THE MATTER OF THE ESTATE OF SANDRA R. FRANKEN,
Deceased.

JOHN E. ROTTINGHAUS and DESSIE ROTTINGHAUS,

      Appellants,

vs.

LINCOLN SAVINGS BANK, Fiduciary of the Estate of Sandra R. Franken,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County,

David P. Odekirk, Judge.



      On further review, appellants challenge an adverse grant of

summary judgment on their claim for breach of a right of first refusal.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT          REVERSED     AND     REMANDED        FOR     FURTHER

PROCEEDINGS.



      Larry J. Thorson of Ackley, Kopecky & Kingery, L.L.P., Cedar Rapids,

for appellants.
                                 2

      Mark A. Roberts (until withdrawal), Chad D. Brakhahn, Jared F.

Knight, and Brian J. Fagan of Simmons Perrine Moyer Berman PLC, Cedar

Rapids, for appellee.
                                      3

       McDONALD, Justice.

       John and Dessie Rottinghaus filed a claim in the estate of John’s

sister, Sandra Franken f/k/a Kipp. The Rottinghauses sought contract

damages on the ground the estate sold certain real estate in violation of

the Rottinghauses’ right of first refusal to purchase the real estate. The

executor disallowed the claim and moved for summary judgment on the

ground the claim was barred by the limitations period set forth in Iowa

Code section 614.17A (2016).        The district court granted the estate’s

motion. On appeal, the Rottinghauses contend the district court erred in

holding section 614.17A barred their claim.

                                      I.

       The facts are not disputed.     In 1973, the Rottinghauses sold a

portion of the farm owned by Dessie to Sandra and James Kipp as

husband and wife and as joint tenants with full rights of survivorship.

Sandra and James granted the Rottinghauses a right of first refusal to

purchase the property. The right of first refusal was reserved within the

deed, and it provided as follows:

       Grantees hereby agree that they will not sell or otherwise
       convey the premises described above to any person other than
       grantors without first giving grantors the opportunity to
       purchase the premises at a price equal to any bona fide offer
       to purchase the premises made by any other person. In the
       event any person offers to purchase the said premises from
       the grantees, the grantees shall notify the grantors
       immediately and grantors shall have fifteen (15) days to
       purchase the property at the same price as offered.

Only James signed the deed. The deed containing the right of first refusal

was recorded in 1973. The Rottinghauses never refiled or renewed the

right of first refusal.

       Twenty-eight years later, in 2001, James passed away.        Sandra

subsequently married Bennett Franken.         In 2005, Sandra executed a
                                      4

quitclaim deed, conveying the property to herself and Bennett as joint

tenants in common with full rights of survivorship.        Both Sandra and

Bennett signed the deed. Five years later, in 2010, the couple executed a

warranty deed, conveying the real estate from themselves to Sandra, as

sole titleholder.

      Sandra passed away in 2014. Sandra bequeathed a life estate in the

property to Bennett.       In 2015, Bennett died, and the life estate

extinguished, leaving Sandra’s estate as the sole titleholder of the real

estate. In April 2016, Sandra’s estate entered into a purchase agreement

to sell the property to a third party. The executor of the estate did not

notify the Rottinghauses of the purchase agreement or impending sale. In

May 2016, the estate sold the property to the third party in exchange for

$195,000. The Rottinghauses learned of the sale when they saw the buyer

removing a fence near their property.

      In July 2016, the Rottinghauses filed a claim in the probate estate.

The Rottinghauses alleged the estate breached the “contract, covenant and

restriction granting [them] a right of first refusal with respect to the . . .

real estate.” They sought monetary damages in the amount of $195,000

plus interest at the statutory rate. The Rottinghauses claimed they were

ready, willing, and able to purchase the property.

      The executor disallowed the claim and moved for summary

judgment, claiming Iowa Code section 614.17A barred the Rottinghauses’

claim. Generally speaking, “the statute bars actions to recover or establish

interests in or claims to real estate in two situations: if the claim arose

more than ten years previously, or if a ten-year extension period expired

without the claimant filing a statement triggering an additional ten-year

extension.” In re Estate of Hord, 836 N.W.2d 1, 5 (Iowa 2013) (citation

omitted).   In the estate’s memorandum in support of the motion for
                                       5

summary judgment, it argued the Rottinghauses’ claim was an action to

recover or establish an interest in or claim to real estate and was thus

barred by section 614.17A, as interpreted in West Lakes Properties, L.C. v.

Greenspon Property Management, Inc., No. 16–1463, 2017 WL 4317297, *1

(Iowa Ct. App. Sept. 27, 2017).       In their resistance to the motion for

summary judgment, the Rottinghauses argued they were “not maintaining

an action ‘. . . to recover or establish any interest in or claim to real estate

. . . against the holder of the record title to the real estate in possession.’ ”

They further argued section 614.17A “deals with the real estate aspects of

the claim filed by the Rottinghauses in this case, not the contract aspects

of the damage they suffered from breach of contract damages.”              They

further argued section 614.17A does not apply because they were “not

asking for an interest in the real estate nor have they asked the Court to

recover their interest in the property.”      In its reply brief on summary

judgment and at the hearing on the motion for summary judgment, the

estate argued the language of the statute cut off both the claim to

possession of the real estate and the claim for damages.                    The

Rottinghauses disputed the estate’s argument.

      The district court granted the motion for summary judgment. The

district court considered the Rottinghauses’ argument that the statute

applies only to a claim to establish an interest in real estate and not a

claim for damages:

             Claimants are not asking for an interest in the real
      estate nor are they asking to recover their interest in the
      property but are seeking contractual damages not only as a
      right in the real estate but also contractual damages between
      the parties. . . . The Estate argues that Iowa Code section
      614.17A bars actions in law and equity and that the statute
      of limitations in section 614.17A bars this case.
                                      6

The district court rejected the Rottinghauses’ distinction between an

action to recover or establish any interest in or claim to real estate against

the holder of the record title to the real estate in possession and an action

for damages.    Relying on West Lakes, the district court concluded the

statute of limitations precluded the Rottinghauses’ claim for damages:

            A right of first refusal falls within the scope of Iowa Code
      section 614.17A as an interest in real estate. West Lakes
      Properties, L.C. v. Greenspon Property Management, Inc., 2017
      WL 4317297 (Iowa App. Sept. 27, 2017). The Right of First
      Refusal was recorded in 1973 but Claimants did not file a
      statement with the recorder to extend the period of ten years
      when required by Iowa Code section 614.17A(2). As such, the
      Court finds the Right of First Refusal is no longer enforceable.
      Therefore, Claimants are barred from enforcing the real estate
      interest created in the 1973 deed.

      The Rottinghauses timely filed this appeal. We transferred the case

to the court of appeals. A divided court of appeals affirmed the judgment

of the district court. Relying on West Lakes, the court of appeals reasoned

section 614.17A rendered the right of first refusal unenforceable.         See

Rottinghaus v. Lincoln Sav. Bank, No. 18–0261, 2019 WL 1938656, at *2
(Iowa Ct. App. May 1, 2019).      The dissenting judge concluded section

614.17A did not apply here because the statute bars only actions to

recover or establish a possessory interest in or claim to real estate and not

actions for breach of contract seeking monetary relief. See id. at *4 (Vogel,

C.J., dissenting). We granted the Rottinghauses’ application for further

review.

                                     II.

      Our review is for the correction of legal error. See Baker v. City of

Iowa City, 867 N.W.2d 44, 51 (Iowa 2015).            Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is
                                      7

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

party seeking summary judgment has the burden of establishing that the

facts are undisputed and that the “party is entitled to a judgment as a

matter of law.” See Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673,

677 (Iowa 2004) (quoting Iowa R. Civ. P. 1.981(3)). “When a motion for

summary judgment is made and [properly] supported . . . , [the opposing]

party may not rest upon the mere allegations or denials in the

pleadings . . . .” Iowa R. Civ. P. 1.981(5); see Bitner v. Ottumwa Cmty. Sch.

Dist., 549 N.W.2d 295, 299 (Iowa 1996). Instead, the resisting party must

set forth specific material facts, supported by competent evidence,

establishing the existence of a genuine issue for trial. See Bitner, 549

N.W.2d at 299. “A fact is material if it will affect the outcome of the suit,

given the applicable law.” Parish v. Jumpking, Inc., 719 N.W.2d 540, 543

(Iowa 2006). An issue of fact is “genuine” if the evidence would allow “a

reasonable jury [to] return a verdict for the nonmoving party.” Fees v. Mut.

Fire & Auto. Ins., 490 N.W.2d 55, 57 (Iowa 1992). It is well established

that “[s]peculation is not sufficient to generate a genuine issue of fact.”

Nelson v. Lindaman, 867 N.W.2d 1, 7 (Iowa 2015) (quoting Hlubek v.

Pelecky, 701 N.W.2d 93, 96 (Iowa 2005)).

                                     III.

      We first address whether the district court erred in concluding Code

section 614.17A bars the Rottinghauses’ claim.

                                     A.

      The Rottinghauses first contend the estate waived the affirmative

defense set forth in section 614.17A when it failed to assert the affirmative

defense in its first responsive pleading—the notice disallowing the

Rottinghauses’ claim—and instead raised the defense for the first time in

its motion for summary judgment. We disagree.
                                     8

      A party who fails to raise an affirmative defense in its responsive

pleading may do so in a motion for summary judgment so long as the

opposing party is not prejudiced.     This action arises in probate.     The

probate code provides the personal representative of an estate “shall move

or plead [in response to a] claim in the same manner as though the claim

were a petition filed in an ordinary action.”       Iowa Code § 633.444.

“[T]hereafter, all provisions of law and rules of civil procedure applicable

to motions, pleadings and the trial of ordinary actions shall apply . . . .”

Id. Under the rules of civil procedure and our case law, “a party relying

upon the statute of limitations as a defense must specifically plead that

fact and . . . also show the facts constituting the bar.” Cuthburtson v.

Harry C. Harter Post No. 839 of the V.F.W., 245 Iowa 922, 928, 65 N.W.2d

83, 87 (1954). However, our case law also holds an affirmative defense

can also be raised in the first instance in a motion for summary judgment

so long as there is no prejudice to the opposing party. See McElroy v. State,

637 N.W.2d 488, 497 (Iowa 2001) (“Furthermore, a defendant may first

raise an affirmative defense in a motion for summary judgment as long as

the plaintiff is not prejudiced.”); Stahl v. Preston Mut. Ins. Ass’n, 517

N.W.2d 201, 202 (Iowa 1994) (“A limitations of action defense may be

raised by affirmative defense and motion for summary judgment.”).

      We cannot conclude the Rottinghauses suffered prejudice.           The

district court’s determination seems reasonable under the circumstances

presented. The Rottinghauses filed their claim in probate in July 2016.

The only claim raised by the Rottinghauses was the alleged violation of

their right of first refusal.   Within the time allotted for answer, the

administrator of the estate disallowed the claim. The matter was set for

hearing in December 2017, and the estate raised their defense two months

prior to that hearing date. The Rottinghauses’ ability to recover damages
                                      9

for an alleged breach of the right was the only thing at issue. The district

court, having familiarity with the probate proceeding, concluded the

affirmative defense was properly raised and properly before the court. We

see no error in its conclusion.

                                      B.

      We now address the merits of the estate’s affirmative defense. In

their brief, the Rottinghauses identify the issue as follows: “The language

of Iowa Code § 614.17A (or § 614.24) should not bar this action[.]” In its

brief, the estate “agree[d] error was preserved” on this argument. As do

we. The question of whether 614.17A bars only an action to recover or

establish any interest in or claim to real estate against the holder of the

record title to the real estate in possession and not an action for damages

was squarely presented to and decided by the district court. Also squarely

presented to the district court was the issue of whether the statute, as

interpreted in West Lakes, barred the Rottinghauses’ claim for damages.

The district court held that it did. The court of appeals, also relying on

West Lakes, held the statute bars the action for damages. We conclude

this was erroneous.

      We have described a right of first refusal, or preemption, as follows:

      Unlike an “option,” a preemption does not give the
      preemptioner the power to compel an unwilling owner to sell.
      A preemption merely requires the owner, when and if he
      decides to sell, to offer the property first to the person entitled
      to the preemption. Once the owner decides to sell the
      property, the preemption ripens into an option.                The
      preemptioner may then elect to buy the land.                If the
      preemptioner decides not to buy, then the owner may sell to
      anyone.

Riley v. City of Hartley, 565 N.W.2d 344, 346 (Iowa 1997) (quoting Knepper

v. Monticello State Bank, 450 N.W.2d 833, 836–37 (Iowa 1990)).
                                      10

      We begin our inquiry with the text of the statute. Using traditional

interpretive tools, we seek to determine the ordinary and fair meaning of

the statutory language at issue. See State v. Davis, 922 N.W.2d 326, 330

(Iowa 2019) (“We give words their ordinary meaning absent legislative

definition.”); In re Marshall, 805 N.W.2d 145, 158 (Iowa 2011) (“We should

give the language of the statute its fair meaning, but should not extend its

reach beyond its express terms.”). In determining the ordinary and fair

meaning of the statutory language at issue, we take into consideration the

language’s relationship to other provisions of the same statute and other

provisions of related statutes.     See Iowa Code § 4.1(38) (“Words and

phrases shall be construed according to the context and the approved

usage of the language . . . .”); State v. Doe, 903 N.W.2d 347, 351 (Iowa

2017) (stating we consider the “relevant language, read in the context of

the entire statute”). If the “text of a statute is plain and its meaning clear,

we will not search for a meaning beyond the express terms of the statute

or resort to rules of construction.” In re Estate of Voss, 553 N.W.2d 878,

880 (Iowa 1996); see State v. Richardson, 890 N.W.2d 609, 616 (Iowa 2017)

(“If the language is unambiguous, our inquiry stops there.”).

      Here, “the language of the statute is plain and unambiguous.” Lane
v. Travelers Ins., 230 Iowa 973, 978, 299 N.W. 553, 555 (1941).            The

statute bars “an action . . . to recover or establish an interest in or claim

to real estate” only if “all the following conditions are satisfied.” Iowa Code

§ 614.17A(1). First, “[t]he action is based upon a claim arising more than

ten years earlier or existing for more than ten years.” Id. § 614.17A(1)(a).

Second, “[t]he action is against the holder of the record title to the real

estate in possession.” Id. § 614.17A(1)(b). Third, “[t]he holder of the record

title to the real estate in possession and the holder’s immediate or remote
                                     11

grantors are shown by the record to have held chain of title to the real

estate for more than ten years.” Id. § 614.17A(1)(c).

      The statute bars only those actions seeking to recover or establish

an interest in or claim to real estate. This conclusion is dictated by the

statutory text. The statute provides that an action shall not be maintained

to “recover or establish an interest in or claim to real estate.”          Id.

§ 614.17A(1). A party pursuing an action only for damages for breach of

contract does not seek to recover or establish an interest or claim to real

estate.   Instead, the party pursuing an action only for damages seeks

monetary relief in lieu of recovering or establishing an interest in or claim

to real estate. The statute does not at all address an action for monetary

damages arising out of a real estate agreement. The district court and the

court of appeals erred in relying on West Lakes and holding otherwise.

      The district court and court of appeals erred in relying on West

Lakes for an additional reason. The statute provides a defense only where

“[t]he action is against the holder of the record title to the real estate in

possession.” Id. § 614.17A(1)(b). In this case, the action is against the

estate.   The estate sold the property to a third party prior to the

commencement of this action. The Rottinghauses’ action is thus not one
“against the holder of the record title to the real estate in possession.” Id.

As the Rottinghauses argued in the district court, the statute is simply

inapplicable here. See Tesdell v. Hanes, 248 Iowa 742, 748–49, 82 N.W.2d

119, 120–23 (1957) (“Only those who possess a title which complies with

the conditions of [section 614.17A] are qualified to invoke its aid.”).

      Our conclusion that section 614.17A applies only to actions seeking

to recover or establish an interest in or claim to real estate filed against

the holder of the record title is consistent with the purpose of the statute.

“Iowa Code section 614.17A is a marketable title statute that applies to
                                      12

real estate claims maintained after July 1, 1992. Its predecessor statute

has been described as the pioneering marketable title provision in the

country.” Hord, 836 N.W.2d at 5. The purpose of the statute and its

predecessor statutes is “to give ‘stability and effect to record titles.’ ” Id.

at 6 (quoting Lewis M. Simes & Clarence B. Taylor, The Improvement of

Conveyancing by Legislation 306–09 (1960)); see Chi. & N.W. Ry. v. City of

Osage, 176 N.W.2d 788, 793 (Iowa 1970) (recognizing 614.17A’s

predecessor statute as part of a series of statutes to “improve and render

less complicated the land transfer system”). “[T]here can be little doubt of

the desirability of statutes giving greater effect and stability to record

titles.” Lane, 230 Iowa at 978–79, 299 N.W. at 555. Actions seeking to

recover or establish an interest or claim to property against the holder of

the record title to the real estate in possession create instability in record

titles. Only those actions implicate the purpose of the statute. And only

those actions should be limited by this statute.

                                      IV.

      The estate contends even if the district court erred in holding section

614.17A bars the Rottinghauses’ claim, the judgment can be affirmed on

additional grounds advanced but not decided in the district court. As a
general rule, “[i]f we disagree with the basis for the court’s ruling, we may

still affirm if there is an alternative ground, raised in the district court and

urged on appeal, that can support the court’s decision.” Ostrem v. Prideco

Secure Loan Fund, LP, 841 N.W.2d 882, 904 (Iowa 2014) (quoting Fencl v.

City of Harpers Ferry, 620 N.W.2d 808, 811–12 (Iowa 2000) (en banc)). The

estate advances four alternative grounds to affirm the district court’s

decision: (1) the Rottinghauses’ contract claim merged into the deed;

(2) the Rottinghauses’ claim is barred by the statute of frauds; (3) the

Rottinghauses’ claim fails as a matter of law because they cannot establish
                                       13

the existence of a contract; and (4) the Rottinghauses’ claim is barred by

the statute of limitations set forth in Iowa Code section 614.1(5).        We

address each in turn.

                                       A.

          The estate first argues the Rottinghauses’ breach of contract claim

fails because the contract merged into the deed. “The broad rule is that a

contract to convey land presumptively becomes merged in the subsequent

deed executed in performance thereof and that the deed speaks and the

contract is silent as to all matters of conflict between them.” Phelan v.

Peeters, 260 Iowa 1359, 1362, 152 N.W.2d 601, 602 (1967); see Gray v.

Van Gordon, 187 Iowa 835, 839, 174 N.W. 588, 590 (1919) (“The execution

of the deed presumably is the consummation of the contract, and parties

thereafter look only to the deed for conditions of the transfer . . . .”). “The

rule has many qualifications, one of which is that collateral agreements or

conditions not incorporated in the deed or inconsistent therewith will be

deemed to survive for the purpose of enforcement.” Tamm, Inc. v. Pildis,

249 N.W.2d 823, 836 (Iowa 1976) (quoting Phelan, 260 Iowa at 1362, 152

N.W.2d at 602).

          The merger doctrine provides the estate with no relief.          The

Rottinghauses do not seek to enforce any collateral agreements or

conditions not incorporated into the deed. To the contrary, the contractual

right of first refusal is contained in the deed. The Rottinghauses seek

damages for a violation of their contractual right of first refusal as

expressed in the deed. The merger doctrine does not bar their claim for

relief.

                                       B.

          The estate argues the statute of frauds precludes the Rottinghauses’

contract claim. “The Iowa statute of frauds does not render oral promises
                                          14

invalid. Rather, the statute is a rule of evidence that renders incompetent

oral   proof   of     such   promises.”        Olson   v.   Nextel   Partners,   Inc.,

317 F. Supp. 2d 972, 978 (S.D. Iowa 2004). The statute provides:

              Except when otherwise specially provided, no evidence
       of the following enumerated contracts is competent, unless it
       be in writing and signed by the party charged or by the party’s
       authorized agent:

               ....

             3. Those for the creation or transfer of any interest in
       lands, except leases for a term not exceeding one year.

Iowa Code § 622.32(3). Sandra did not sign the deed containing the right

of first refusal. Instead, the deed was signed by her first husband, James.

Thus, the estate argues, the contract claim fails.

       The argument is not availing. “The provisions of section 622.32,

subsection 3, do not apply where the purchase money, or any portion

thereof, has been received by the vendor, or when the vendee, with the

actual or implied consent of the vendor, has taken and held possession of

the premises under and by virtue of the contract, or when there is any other

circumstance which, by the law heretofore in force, would have taken the

case out of the statute of frauds.” Id. § 622.33 (emphasis added). The

deed conveyed the property to “James Kipp and Sandra Kipp, husband

and wife.” Sandra, as a vendee, took and held possession of the real estate

by virtue of the contract. The statute of frauds does not apply here. See

Gilbert v. Plowman, 218 Iowa 1345, 1346–49, 256 N.W. 746, 746–48 (1934)

(finding that a deed with no grantee signature, and where the grantee gave

no valuable consideration, was excluded from the statute of frauds).

                                          C.

       The estate also argues Code section 614.17A indirectly bars the

Rottinghauses’ claim for damages. The estate argues:
                                     15
      Iowa Code § 614.17A . . . indirectly bars Appellants’ claim
      because it precludes them from “establish[ing] a . . . claim to
      real estate.” Iowa Code § 614.17A provides that an action may
      not be maintained “to recover or establish an interest in or
      claim to real estate.” In order to prove a breach of contract,
      Appellants must first prove “(1) the existence of a contract
      [and] (2) the terms and conditions of the contract.” Iowa
      Arboretum, Inc. v. Iowa 4-H Foundation, 886 N.W.2d 695, 706
      (Iowa 2016).

            But in this case, proving the existence of and terms and
      conditions of the right of first refusal necessarily requires
      Appellants to first “establish” a right of first refusal exists.
      Iowa Code § 614.17A plainly prohibits Appellants from
      “establish[ing] an interest in or claim to real estate,” and
      accordingly Appellants cannot prove a breach of contract as a
      matter of law.

      This argument does not entitle the estate to any relief. The estate

confuses two separate things.     The estate is certainly correct that the

Rottinghauses must first establish a right of first refusal exists as a

prerequisite to seeking damages for the violation of the right. However,

the estate is mistaken that section 614.17A precludes the Rottinghauses

from the establishing the right of first refusal.   Nothing in the statute

extinguishes the right of first refusal or otherwise bars a plaintiff from

establishing such a right exists. Instead, as we concluded in division III.B.

of this opinion, section 614.17A is a statute of limitations that bars a

certain type of action to enforce a possessory interest in real estate. The

statute does not extinguish the underlying right itself.     Given that the

Rottinghauses’ right of first refusal is contained in the deed, they have

established the right.

                                     D.

      Finally, the estate argues the statute of limitations in Code section

614.1(5) bars the Rottinghauses’ damages action. That provision provides,

as relevant here, that actions on written contracts must be brought within

ten years.   See Iowa Code § 614.1(5)(a).       The estate argues Sandra
                                      16

breached the right of first refusal in 2005 when she conveyed the property

to herself and her husband Bennett.

      We do not think the estate’s statute of limitations argument entitles

it to any relief. The specific claim presented in this appeal is whether the

estate breached the right of first refusal when it sold the property to a third

party in 2016 without first offering the Rottinghauses the option of

matching the sale.      That action clearly falls within the statute of

limitations.

                                       V.

      For these reasons, we conclude the district court erred in granting

the estate’s motion for summary judgment.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT        REVERSED         AND        REMANDED      FOR      FURTHER

PROCEEDINGS.

      All justices concur except Appel, J., who concurs specially.
                                     17

                                          #18–0261 In re Estate of Franken

APPEL, Justice (specially concurring).

      I agree on the procedural issue that the Franken estate could raise

the issue of statute of limitations in a motion for summary judgment. I

write separately, however, on questions of issue preservation.

      The first substantive question addressed by the majority is whether

the action was “to recover or establish” an interest in real estate. Although

the question of whether the action is one “to recover or establish” was

presented to the district court, and thus was preserved below, the question

was not directly addressed in the Rottinghauses’ brief on appeal. The

phrase “recover or establish” does not appear anywhere in the

Rottinghauses’ brief. The failure to make an argument based upon this

language raises a potential question of waiver. See State v. Cooley, 608

N.W.2d 9, 13–14 (Iowa 2000) (en banc).

      The majority accurately notes that the Rottinghauses in their

appellate brief stated in a heading that the issue in the case was as follows:

“The language of Iowa Code [section] 614.17A (or [section] 614.24) should

not bar this action[.]” A reference to “the language” of a section of the Code

that “bars” the action is not an argument, but a conclusion. Indeed, in

Cooley, we expressly declined to address claims in a conclusory header

when a criminal defendant failed to articulate any arguments in support

of the claim. Cooley, 608 N.W.2d at 13; see also Iowa R. App. P. 14(a)(3).

      As a general proposition, I do not think a vague reference to a statute

that contains three sections and multiple subsections with a number of

potential issues means that all potential statutory issues are raised on

appeal. See Cooley, 608 N.W.2d at 13. Further, although the majority

establishes that the “recover or establish” issue was raised below, the

preservation of error in the district court does not mean an argument
                                      18

cannot be waived on appeal. See Iowa R. Civ. P. 14(a)(3); Thomas A. Mayes

& Anuradha Vaitheswaran, Error Preservation in Civil Appeals in Iowa:

Perspectives on Present Practice, 55 Drake L. Rev. 39, 67 (2006) (“Assuming

one has properly preserved an issue at trial, one must properly present

the issue on appeal.”).

      But while the Rottinghauses did not expressly cite the statutory

term “to recover or establish,” I conclude that they at least impliedly raised

the specific issue in their appellate brief. They emphasized that the right

of first refusal was not a reversion or use restriction. Although not stated

in clear statutory terms, the point of the no reversion, no use restriction

discussion was to show that the Rottinghauses’ claim was not an effort to

recover or establish an interest in real estate. We do not require a specific

verbal formulation to preserve error when the issue can be fairly gleaned

from the language used by a party.

      Therefore, while I think a general reference to the statute in a header

may not be sufficient to preserve a specific statutory claim, the

Rottinghauses did more than simply make a conclusory claim in a header

ambiguously based on a multifactored statute. I therefore conclude that

the recover or establish claim has been preserved. On the merits of the

claim, I agree with the handling of the matter by the majority.

      The second substantive question addressed is whether the case

involves a claim against “the holder of the record title” to the real estate in

possession. I do not understand the need to address the second issue, as

the first issue is dispositive in this appeal.

      In any event, there is a preservation issue here, too. Unlike the “to

recover or establish issue,” the Rottinghauses argued the issue in their

main brief; therefore, the problem is not one of waiver on appeal. The

estate, however, responded that the “holder of the record title” issue was
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not presented to or ruled upon by the district court. According to the

estate, the claim was thus “forfeited” by the Rottinghauses.

      In response to the forfeiture claim of the estate, the Rottinghauses

did not contest the assertion by the estate that the “holder of the record

title” issue was not presented to or ruled upon by the district court.

Instead, the Rottinghauses sole response to the preservation claim was the

asking of the rhetorical question in their reply brief: “Can the plain

language of the statute be asserted at any time?” The Rottinghauses then

assert in a heading that “[t]he plain language of the statute may be

asserted at any time.” (Emphasis added.) While they raise the “at any

time” theme in their heading in their reply brief, they make no claim that

they actually litigated the issue below or obtained a ruling on the issue

from the district court.   Instead, they state, “This is not some hidden

language that the Claimants are raising but is contained on the face of the

statute.   The Court should take judicial notice of the language of the

statute and interpret in accordingly.”

      If it were necessary to decide this second issue to resolve this appeal,

I would address the issue actually presented by the parties, namely, are

“plain language” statutory claims exempt from our ordinary preservation

rules through some kind of judicial notice theory. The answer to that

question, it seems, is no. Citing Meier v. Senecaut, 641 N.W.2d 532, 537

(Iowa 2002), the court of appeals declined to address the holder of the

record title issue as unpreserved. I doubt that there is a majority of this

court who would use judicial notice of statutory language as a vehicle to

preserve issues on appeal.

      Except for the above issues, I agree with the majority’s approach to

other issues in this case. Because I agree that the “recover or establish”
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claim was preserved and is dispositive in this case, I concur in the result

reached by the majority.
