               IN THE SUPREME COURT OF IOWA
                              No. 08–0133

                          Filed August 21, 2009


IOWA LAND TITLE ASSOCIATION,

      Appellant,

vs.

IOWA FINANCE AUTHORITY, IOWA
TITLE GUARANTY DIVISION,

      Appellee,

And also concerning

CHARLES W. HENDRICKS,

      Applicant.


      Appeal from the Iowa District Court for Polk County, Douglas F.

Staskal, Judge.



      The Iowa Land Title Association appeals a district court judgment

affirming the decision of the Iowa Title Guaranty Division. AFFIRMED.


      James H. Gilliam of Brown, Winick, Graves, Gross, Baskerville and

Schoenebaum, P.L.C., Des Moines, for appellant.



      Thomas J. Miller, Attorney General, and Grant K. Dugdale,

Assistant Attorney General, for appellee.
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WIGGINS, Justice.

      An attorney sought a waiver of the title plant requirement to

become a participating abstractor under the Iowa Title Guaranty

Program. The Iowa Land Title Association intervened taking a position

adverse to the attorney.      The agency, through one of its divisions,

granted the attorney a waiver. The association sought judicial review of

the agency decision. The district court affirmed the agency. Because we

agree that the agency correctly construed the applicable statute and that

the record was insufficient to review the agency action for substantial

evidence, we affirm the judgment of the district court.

      I. Background Facts and Proceedings.

      Charles Hendricks graduated from Drake Law School.         He was

admitted to practice law in Iowa in 1999.       Hendricks worked at the

Lipman Law Firm and then at Wasker, Dorr, Wimmer & Marcouiller, P.C.

from April 2003 through December 2006. At Wasker, he devoted almost

100% of his practice to real estate matters.      In December 2006, he

started his own law office. His main clients are mortgage brokers that

conduct business statewide.

      Hendricks’ current practice focuses on real estate title work and

real estate transaction closings.   He forecasts that if he is allowed to

become a certified abstractor, abstracting will constitute twenty-five

percent of his business with closings, title opinions, probate, and

litigation constituting the remaining seventy-five percent.       All of

Hendricks’ employees have substantial experience in the title industry.

His staff had abstracted over 3000 titles in the year prior to his

application.

      One reason Hendricks started his own law firm was to pursue the

opportunity of becoming a participating abstractor in the Iowa Title
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Guaranty Program.        The legislature established the title guaranty

program. Iowa Code § 16.91 (2007). The Iowa Title Guaranty Division is

the agency that administers this program. Id. §§ 16.2(1), 16.91(1). The

Code requires that each abstractor participating in the program “own or

lease, and maintain and use in the preparation of abstracts, an up-to-

date abstract title plant including tract indices for real estate for each

county in which abstracts are prepared for real property titles

guaranteed by the division.”    Id. § 16.91(5).    The Iowa Title Guaranty

Division may waive the title plant requirement upon an application,

“which shows that the requirements impose a hardship to the attorney or

abstractor and that the waiver clearly is in the public interest or is

absolutely necessary to ensure availability of title guaranties throughout

the state.” Id.

      In the spring of 2007, Hendricks filed for a waiver with the Iowa

Title Guaranty Division so he could become a certified abstractor without

a title plant.     The Iowa Land Title Association intervened taking a

position adverse to Hendricks.    After holding a hearing, the Iowa Title

Guaranty Board issued its ruling granting the requested waiver.       One

member of the board dissented.

      The association petitioned for judicial review.    The district court

agreed with the board’s decision and affirmed it.          The association

appeals.

      II. Issue.

      On this appeal, we must decide if the board correctly construed the

waiver provisions contained in section 16.91(5).

      III. Scope of Review.

      When reviewing agency decisions, “[o]ur review is governed by Iowa

Code chapter 17A.” Lakeside Casino v. Blue, 743 N.W.2d 169, 172 (Iowa
                                    4

2007). We must decide whether the conclusions we reach, after applying

chapter 17A standards, are the same as those of the district court.

Mycogen Seeds v. Sands, 686 N.W.2d 457, 463–64 (Iowa 2004).

      In reaching its decision, the board determined the meaning of the

terms “hardship” and “public interest” as used in Iowa Code section

16.91(5).   Unless the legislature vested the agency with the power to

construe this statute, this court gives no deference to the agency’s

construction. Iowa Code § 17A.19(11)(b). To determine if the legislature

vested the agency with the power to construe the statute, we examine the

statutes creating the agency.   See State v. Pub. Employment Relations

Bd., 744 N.W.2d 357, 360 (Iowa 2008) (looking at the creation statutes);

Mycogen, 686 N.W.2d at 464 (examining chapter 85 when deciding the

scope of review of an issue in a workers’ compensation appeal).

      The Iowa Finance Authority, which houses the Iowa Title Guaranty

Division, was established to exercise “public and essential governmental

functions” and to undertake other finance programs.           Iowa Code

§ 16.2(1). The legislature vested the powers of the division with the Iowa

Title Guaranty Board. Id. The enacting statute gave the Iowa Finance

Authority “all of the general powers needed to carry out its purposes and

duties, and exercise its specific powers.” Id. § 16.5. When discussing

the powers of the Iowa Title Guaranty Division, the Code merely states its

powers relate “to the issuance of title guaranties.” Id. § 16.2. The Iowa

Finance Authority has the power to adopt rules pursuant to the

Administrative Procedure Act “that are necessary for the implementation

of the title guaranty program.”     Id. § 16.91(8).   The Iowa Finance

Authority also has the general power to make, alter, or repeal rules

consistent with the provisions of chapter 16 of the Iowa Code and

pursuant to the Iowa Administrative Procedure Act. Id. § 16.5(17).
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       The Code does give the Iowa Finance Authority extensive powers in

order to effectuate its purpose, but does not give the agency the power to

construe statutes.       Therefore, when we construe Iowa Code section

16.91(5), we will not give any deference to the agency’s construction of

this section. Id. § 17A.19(11)(b). Accordingly, our review of the board’s

construction of section 16.91(5) will be for correction of errors at law. Id.

§ 17A.19(10)(c).

       IV. Rules of Statutory Construction.

       The goal of statutory construction is to determine legislative intent.

Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). We

determine the legislature’s intent by the words the legislature chose, not

by what it should or might have said. State v. Wiederien, 709 N.W.2d

538, 541 (Iowa 2006). Absent a statutory definition or an established

meaning in the law, we give words their ordinary and common meaning

by considering the context in which the word was used.                    City of Des

Moines v. Employment Appeal Bd., 722 N.W.2d 183, 196 (Iowa 2006).

       V. Construing the Term “Hardship.”

       The board determined the term “hardship,” as used by the

legislature in section 16.91(5), did not require a “hardship of an

extraordinary magnitude or type.”           Consequently, it found a “financial

hardship alone can constitute hardship.”                  The association claims

something more than a financial hardship is required.

       Neither the Iowa Code nor the Administrative Code in place at the

time of the board’s decision defined the term “hardship” as used in

section 16.91(5).1      When the legislature used the term “hardship” in

       1The   current Administrative Code includes a definition of hardship. The
Administrative Code defines hardship as “deprivation, suffering, adversity, or long-term
adverse financial impact in complying with the title plant requirement that is more than
minimal when considering all the circumstances. Financial hardship alone may
constitute a hardship.” Iowa Admin. Code r. 265―9.7(2).
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section 16.91(5), it did not qualify the term. The legislature knows how

to modify the word, “hardship,” and has done so in many instances. See,

e.g., Iowa Code §§ 2C.18 (referring to a “needless hardship”), 13.15

(referring to a “financial hardship”), 17A.9A(2)(a) (referring to an “undue

hardship”),     138.12(2)   (referring   to   an   “unnecessary       hardship”),

232.69(3)(e) (referring to a “significant hardship”), 425.37 (referring to an

“unreasonable     hardship”),   554.3513(2)    (referring   to   an   “economic

hardship”), 607A.6 (referring to an “extreme hardship”), 815.9(1)(b)

(referring to a “substantial hardship”), 904.902 (referring to a “physical

hardship”).     Without any modification of the word “hardship” by the

legislature, we must assume the legislative intent in section 16.91(5) was

to allow the board to grant a waiver if the applicant can show a

“hardship” in the sense that the word is ordinarily used and understood.

      “Hardship” as defined in the dictionary means privation or

suffering. Webster’s Third New International Dictionary 1033 (unabr. ed.

2002). Black’s Law Dictionary defines “hardship” as privation, suffering,

or adversity.    Black’s Law Dictionary 734 (8th ed. 2004).           Therefore,

“hardship” as contained in this section means suffering, privation, or

adversity. A financial hardship alone can create privation, suffering, or

adversity.    Thus, we agree with the board’s construction of section

16.91(5) that a financial hardship is a hardship sufficient to justify a

waiver under the statute.

      VI. Construing the Meaning of “Public Interest.”

      The Code allows the board to grant a waiver of the requirement

that a participating abstractor have a title plant upon a showing of

hardship and a showing that the waiver clearly is in the public interest.

Iowa Code § 16.91(5). The board determined the granting of the waiver

in this case was clearly in the public interest. The board identified five
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public interests that granting this waiver would effectuate.              First,

granting the waiver would increase competition among abstractors.

Second, it would encourage the use of the title guaranty program

throughout Iowa. Third, it would make the title guaranty program more

competitive with out-of-state insurance.     Fourth, it would improve the

quality of the land-title system. Fifth, it would protect consumers.

       The association claims the legislature did not contemplate these

public interests as reasons to waive the title plant requirement.

Therefore, it claims, the board misinterpreted the statute when it relied

upon these public interests to waive the title plant requirement.

       The legislature did not define “public interest” when it enacted the

title guaranty program.     It did indicate, however, the purpose of the

program in its legislative findings. Iowa Code § 16.3(15). The legislature

stated:

       The abstract-attorney’s title opinion system promotes land
       title stability for determining the marketability of land titles
       and is a public purpose. A public purpose will be served by
       providing, as an adjunct to the abstract-attorney’s title
       opinion system, a low cost mechanism to provide for
       additional guaranties of real property titles in Iowa. The title
       guaranties will facilitate mortgage lenders’ participation in
       the secondary market and add to the integrity of the land-
       title transfer system in the state.

Id.   Consistent with these legislative findings, the Iowa Title Guaranty

Division declared its mission

       is to operate a program that offers guaranties of real property
       titles in order to provide, as an adjunct to the abstract-
       attorney’s title opinion system, a low-cost mechanism to
       facilitate mortgage lenders’ participation in the secondary
       market and add to the integrity of the land-title transfer
       system in the state.

Iowa Admin. Code r. 265―9.2.
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      After our review of the legislative findings and the mission

statement of the division, we agree that the public interests as set forth

by the board were consistent with the intent of the term “public interest”

under section 16.91(5).    By increasing competition among abstractors,

the title guaranty program can drive down prices of abstracts making

Iowa’s abstract-attorney’s title opinion system more cost efficient.

Encouraging the use of the title guaranty program adds to the integrity of

the land-title transfer system, thereby helping its consumers.     Making

the title guaranty program more competitive with out-of-state title

insurance serves the public interest by decreasing the use of title

insurance.    Improving the quality of the land-title system serves the

public by adding to the integrity of the title guaranty program and better

serving its customers. Finally, protecting consumers serves the public

interest.

      Accordingly, we agree with the board’s construction of the meaning

of “public interest.”

      VII. Substantial Evidence Analysis.

      The board determined Hendricks would suffer financially if the

board required him to maintain a title plant and that the granting of

Hendricks’ application for a waiver of the forty-year title plant

requirement effectuated the public interests it identified in its decision.

The association claims that even if a financial hardship is a sufficient

hardship and the board correctly identified the public interest envisioned

by the legislature, substantial evidence does not support the board’s

findings.

      We review a question of whether substantial evidence supports an

agency’s finding by examining the agency record as a whole. Iowa Code

§ 17A.19(10)(f).   At oral argument, the association advised us that the
                                     9

board did not record the proceedings, but kept minutes of its

proceedings.   The transmittal of the agency record filed in the district

court did not include the minutes of the meeting. The minutes would

have contained a summary of the proceedings, including a summary of

the testimony of all persons testifying at the hearing.      Without the

minutes, we have no record to determine whether substantial evidence

supports the agency’s finding. It is the appellant’s duty to make sure the

reviewing court has an adequate record to decide an appeal. In re F.W.S.,

698 N.W.2d 134, 135 (Iowa 2005). The association failed to provide the

district court or this court with the agency record; therefore, we must

affirm the agency on the substantial evidence issue. Alvarez v. IBP, Inc.,

696 N.W.2d 1, 4 (Iowa 2005).

      VIII. Disposition.

      We hold the board properly construed the terms “hardship” and

“public interest” as used in Iowa Code section 16.91(5). We also find the

record insufficient to conduct a substantial evidence review under

section 17A.19(10)(f). Accordingly, we affirm the judgment of the district

court affirming the decision of the board.

      AFFIRMED.

      All justices concur except Hecht, J., who takes no part.
