                    IN THE COURT OF APPEALS OF IOWA

                                 No. 17-1465
                             Filed June 20, 2018


DES MOINES RHF HOUSING, INC.,
     Plaintiff-Appellant,

vs.

ALVIN SPENCER,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Odell G. McGhee, II,

District Associate Judge.



      Des Moines RHF Housing, Inc. appeals the dismissal of its petition for

forcible entry and detainer filed against Alvin Spencer. JUDGMENT VACATED

AND REMANDED.



      Jason M. Craig of Ahlers & Cooney, P.C., Des Moines, for appellant.

      Jason R. Burdick of Iowa Legal Aid, Des Moines, for appellee.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

       Des Moines RHF Housing, Inc. seeks relief from the dismissal of its petition

for forcible entry and detainer (FED) filed against Alvin Spencer. The magistrate

held the FED action was barred by the peaceable possession defense set forth in

Iowa Code section 648.18 (2017) and dismissed the petition. The district court

affirmed the magistrate’s decision. On RHF Housing’s application, the supreme

court granted discretionary review. The supreme court transferred the matter to

this court for resolution.

       “In a discretionary review of a small claims decision, the nature of the case

determines the standard of review.” De Stefano v. Apts. Downtown, Inc., 879

N.W.2d 155, 164 (Iowa 2016) (quoting GE Money Bank v. Morales, 773 N.W.2d

533, 536 (Iowa 2009)). An action for forcible entry and detainer “shall be tried as

an equitable action.” Iowa Code § 648.5(1). “Our review of a forcible entry and

detainer action, which is tried in equity, is de novo.” Capital Fund 85 Ltd. P’ship v.

Priority Sys., LLC, 670 N.W.2d 154, 156–57 (Iowa 2003) (citation omitted). “The

interpretation of statutes is reviewed for errors at law.”       Horizon Homes of

Davenport v. Nunn, 684 N.W.2d 221, 224 (Iowa 2004) (citing State v. McCoy, 618

N.W.2d 324, 325 (Iowa 2000)).

       The record reflects the following. RHF Housing, a supportive housing for

persons with disabilities facility under 42 U.S.C. § 8013, served Spencer with a

“Notice of Nonpayment of Rent, Notice of Termination of Lease, and Notice to Quit”

on May 15, 2017. The notice demanded unpaid rent from April and May 2017 and

stated, “[if] the full amount of past due rent is not paid by May 22, 2017 (the ‘cure

date’), then the Lease Agreement shall terminate on June 21, 2017 (‘the
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termination date’) without any further notice to you.” On June 22, 2017, RHF

Housing filed its FED action against Spencer and averred, “Landlord terminated

Defendant’s lease effective June 21, 2017 for non-payment of rent.” After a

hearing the magistrate determined:

               The Court finds the cause of action for nonpayment of April
       rent accrued on April 2, 2017. On May 2, 2017, Plaintiff was barred
       from filing an action based on non-payment of April rent because
       they allowed Defendant to remain on the premises peaceably for
       thirty days.
               However, a new cause of action accrued on May 2, 2017,
       when Defendant failed to pay May rent by May 1, 2017. Had the
       three-day notice only requested May rent, to cure, Plaintiff would not
       be barred from bringing this action. For these reasons, the Court
       finds peaceable possession, pursuant to Iowa Code Section 648.18,
       barring Plaintiff from bringing this action.

The district court affirmed this ruling and found the action brought by RHF Housing

was an action for non-payment of rent, not an action against a holdover tenant

after the termination of a lease.

       An action for forcible entry and detainer is an action for possession of

property.   See AHEPA 192-1 Apartments v. Smith, No. 11-0167, 2011 WL

6669744, at *5 (Iowa Ct. App. Dec. 21, 2011). “The only question in a forcible

entry and detainer action is whether the defendant is wrongfully detaining

possession of the real property at the time of the trial.” Bernet v. Rogers, 519

N.W.2d 808, 811 (Iowa 1994) (citing Rudolph v. Davis, 30 N.W.2d 484, 486 (Iowa

1948)). The Code provides for a summary remedy in certain circumstances:

       A summary remedy for forcible entry and detainer is allowable:

              1. Where the defendant has by force, intimidation, fraud, or
       stealth entered upon the prior actual possession of another in real
       property, and detains the same.
              2. Where the lessee holds over after the termination of the
       lease.
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               3. Where the lessee holds contrary to the terms of the lease.
               4. Where the defendant continues in possession after a sale
       by foreclosure of a mortgage, or on execution, unless the defendant
       claims by a title paramount to the lien by virtue of which the sale was
       made, or by title derived from the purchaser at the sale; in either of
       which cases such title shall be clearly and concisely set forth in the
       defendant’s pleading.
               5. For the nonpayment of rent, when due.
               6. When the defendant or defendants remain in possession
       after the issuance of a valid tax deed.

Iowa Code § 648.1. A “landlord who pursues this summary remedy is subject to

the defense provided in Iowa Code section 648.18,” which reads “[t]hirty days’

peaceable possession with the knowledge of the plaintiff after the cause of action

accrues is a bar to this proceeding.” Petty v. Faith Bible Christian Outreach Ctr.,

584 N.W.2d 303, 307 (Iowa 1998); see Iowa Code § 648.18.

       In this case, the district court committed two errors. First, the district court

erred in recasting RHF Housing’s petition. RHF Housing filed its petition in this

case against Spencer as a holdover tenant pursuant to section 648.1(2). The

district court treated the petition as if it asserted a claim arising under subsection

(5) for nonpayment of rent. The district court erred in so doing. See Haskenhoff

v. Homeland Energy Solutions, LLC, 897 N.W.2d 553, 579 (Iowa 2017)

(“Haskenhoff is the master of her own pleadings.”); Grimm v. US West Commc’ns,

Inc., 644 N.W.2d 8, 14 (Iowa 2002) (stating “the plaintiff is the master of [her own]

complaint” and may “intentionally craft her petition” to avoid certain legal issues).

       Second, the district court erred in holding the peaceable possession

defense barred RHF Housing’s use of the summary remedy. An action for forcible

entry and detainer based on a tenant holding over after the termination of a lease

accrues at the time of lease termination. See Smith, 2011 WL 6669744, at *7
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(“AHEPA’s FED cause of action was premised upon the ground that Smith was

holding over after the termination of the lease accrued when the lease was

terminated.”); see also Petty, 584 N.W.2d at 307 (“In the action before us the

landlord’s cause of action accrued on June 19, 1996, when the lease terminated

and the tenant did not vacate the premises.”); Hillview Assocs. v. Bloomquist, 440

N.W.2d 867, 873 (Iowa 1989) (finding the “cause of action accrued at the end of

the sixty days” when landlord gave sixty-day notice of termination of lease). Here,

RHF Housing terminated the lease on June 21 and initiated this action on June 22.

Therefore, Spencer did not have peaceable possession of the property for thirty

days after the accrual of the cause of action. The peaceable possession defense

is inapplicable here.

       Spencer contends the district court can be affirmed on alternative grounds.

Spencer argues the district court should be affirmed because RHF Housing failed

to comply with federal regulations regarding lease terminations and because RHF

Housing’s acceptance of a rent subsidy waived its ability to pursue possession of

the rental unit. These arguments were not presented to or decided by the district

court. This court cannot affirm on an alternative basis where “the parties did not

raise the issue in the district court.” State v. Maxwell, 743 N.W.2d 185, 192 (Iowa

2008). We decline Spencer’s invitation to affirm the district court on these grounds.

       Spencer also contends the district court can be affirmed because he

tendered his rent but RHF Housing refused his tender.            Spencer urged this

argument in the district court, but the district court did not resolve the issue due to

its dismissal of the case based on the peaceable possession defense. This

defense turns on disputed factual issues. Here, neither the magistrate nor the
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district court made any of the factual findings or credibility determinations

necessary to resolve Spencer’s claim. Those first-hand determinations are critical

in a case such as this. See Albert v. Conger, 886 N.W.2d 877, 880 (Iowa Ct. App.

2016) (“[E]ven in a de novo appellate review, ‘great weight’ is accorded the findings

of the trial court where the testimony is conflicting. This is because the trial court

is in a far better position to weigh the credibility of witnesses than the appellate

court.” (internal citation omitted)). RHF Housing asks that we remand this matter

for consideration of this defense. See Beck v. Phillips, 685 N.W.2d 637, 646 (Iowa

2004) (utilizing this remedy by concluding “[i]n this case, we think it is more

appropriate to remand this case for further proceedings in the district court, where

the arguments of the parties, as well as the record, can be more fully developed in

light of our ruling”). Given RHF Housing’s concession that the matter should be

remanded for findings on this issue, we conclude the disposition is appropriate.

       We vacate the judgment of the district court dismissing RHF Housing’s

petition for forcible entry and detainer, and we remand this matter for further

proceedings relating to Spencer’s claim he tendered his rent but RHF Housing

refused payment.

       JUDGMENT VACATED AND REMANDED.
