               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 Fraud-

on-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.
