                  IN THE SUPREME COURT OF IOWA
                                  No. 95 / 07–0158

                              Filed October 24, 2008

STATE OF IOWA, ex rel. ALICIA CLAYPOOL,

       Appellant,

vs.

MICHAEL EVANS, MTE PROJECT
DEVELOPMENT, and ANDERSON-BOGERT
ENGINEERS & SURVEYORS, INC.,

       Appellees.
-----------------------------------------------------------

STATE OF IOWA, ex rel. JEFF FRANK,

       Appellant,

vs.

MICHAEL EVANS, and
MTE PROJECT DEVELOPMENT,

       Appellees,

and

BLUE JAY RIDGE CONDOMINIUM
OWNERS ASSOCIATION,

       Defendant.


       Appeal from the Iowa District Court for Johnson County, Amanda

Potterfield, Judge.



       Plaintiffs appeal the district court decision granting the defendants’

motions for summary judgment on the grounds their claims are barred

by the statutes of limitations. AFFIRMED.
                                    2

      Thomas J. Miller, Attorney General, and Teresa Baustian,

Assistant Attorney General, for appellant.



      Richard S. Fry, Theresa C. Davis, and Sarah J. Gayer of

Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellees Evans and

MTE Project Development.

      Webb L. Wassmer of Simmons Perrine PLC, Cedar Rapids, for

appellee Anderson-Bogert Engineers & Surveyors, Inc.
                                      3

WIGGINS, Justice.

      In this case the plaintiffs claim the district court erred in finding

the statutes of limitations for unfair or discriminatory practices in

housing under the Iowa Civil Rights Act barred their claims. Because we

find the statutes of limitations apply to the plaintiffs, including the State,

and in one action the statutes of limitations begins to run on the date

when the unit was purchased, and in the other action the statutes of

limitations begins to run when the defendants sold the last unit, we

affirm the decision of the district court granting the defendants’ motions

for summary judgment.

      I. Background Facts and Proceedings.

      We find the undisputed facts as follows.           In August 1999, Jeff

Frank and his wife purchased a condominium at Blue Jay Ridge

Condominiums in Coralville from Michael T. Evans Construction, a

corporation registered as Chael Design and Development, Inc.            Chael

designed,   developed,     constructed,    and    sold     Blue   Jay   Ridge

Condominiums.       Frank was the first purchaser of a unit in the

development.    The development included seven buildings, each having

four units on the ground floor.

      Frank suffers from osteoarthritis and progressive degeneration of

the joints in his hips and knees. This condition forces him to use a cane,

crutches, and a walker depending upon the current state of his

symptoms.      The doctors have said Frank will likely need to use a

wheelchair in the future.         The design and construction of the

condominium development included obstructed sidewalks that caused

Frank difficulty accessing his unit from the parking area. About two to

three months after moving in, Frank complained to Evans about the
                                      4

obstructed sidewalks, but Evans ignored the complaints, so Frank’s

accessibility problem continued for the duration of his occupancy.

      On April 8, 2002, he filed a complaint with the Iowa Civil Rights

Commission against West Winds Management Company, Wendell Miller,

an employee of West Winds Management Company, Blue Jay Ridge

Condominium Owners Association, and Michael Evans, alleging the

construction and design of the condominium development blocked

access to his unit in violation of the Iowa Civil Rights Act. West Winds

managed the condominium development.          On November 6, 2003, the

commission received a report describing Blue Jay Ridge as highly

inaccessible. In July 2003, prior to the time the commission received the

report, Frank moved out of the development.

      Frank elected not to file his own lawsuit, but chose to have the

commission file a civil rights petition on his behalf under Iowa Code

section 216.17A(1)(a) (2003).   On December 10, 2004, in a proceeding

separate   from   Frank’s,   Alicia   Claypool,   the   Iowa   Civil   Rights

Commissioner, filed a complaint on behalf of the commission pursuant to

Iowa Code section 216.15(1).     She filed the complaint against Michael

Evans, MTE Project Development, and Anderson-Bogert Engineers &

Surveyors, Inc. alleging the condominium development was highly

inaccessible and violated the Iowa Civil Rights Act.      Anderson-Bogert

provided design services for Blue Jay Ridge Condominiums. On June 2,

2005, the executive director of the commission filed a written request

with the attorney general asking him to file suit under Iowa Code section

216.17A(9) claiming the design and construction of the condominium

development led to a denial of housing rights that raised an issue of

general public importance.
                                     5

      On November 28, 2005, the attorney general filed separate actions

on behalf of Frank and Claypool. Both petitions alleged the defendants

discriminated in the sale or made housing unavailable under Iowa Code

section 216.8A(3)(a)(1), (c)(3), discriminated in terms, conditions or

privileges of sale and also in providing services or facilities according to

section 216.8A(3)(b)(1), (c)(3), and failed to design and construct the

dwelling in compliance with accessibility and adaptability features

according to section 216.8A(3)(c)(3). The State filed Frank’s action based

on the discriminatory sale of the unit to him, while the State filed

Claypool’s action based on the discriminatory sale of the condominium

units to the public.

      Anderson-Bogert moved for summary judgment in the Claypool

case, stating the State’s claim was time-barred by the two-year statute of

limitations for civil rights actions, and the requirement that a civil rights

complaint be filed with the commission within 180 days of the

discriminatory practice.    A few weeks later MTE and Evans also filed

motions for summary judgment against the State in both the Claypool

and the Frank cases. These motions for summary judgment stated the

claims were time-barred by the 180-day complaint period and the

applicable statute of limitations.

      Frank purchased his unit more than 180 days prior to the filing of

his complaint with the commission and more than two years prior to the

attorney general filing the petition in the district court on his behalf. The

sale of the last unit in the condominium development occurred more

than 180 days prior to Claypool filing her complaint with the commission

and more than two years prior to the attorney general filing the Claypool

petition in the district court.
                                    6

      The district court combined the cases for a hearing on the motions

for summary judgment. During the hearing, the parties agreed there was

essentially no dispute as to the facts in the case; thus, the dispute

concerned the application of the statutes of limitations to the facts. The

district court granted the defendants’ motions for summary judgment.

The State dismissed, without prejudice, the remaining defendant that

had not filed a motion for summary judgment, Blue Jay Ridge

Condominium Owners Association. The State appeals.

      II. Scope of Review.

      The case is on appeal from a motion for summary judgment. The

district court enters summary judgment when there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter

of law. Iowa R. Civ. P. 1.981; Robinson v. Fremont County, 744 N.W.2d

323, 325 (Iowa 2008). If no genuine issue of material fact exists, our job

is to determine whether the district court correctly applied the law.

Kragnes v. City of Des Moines, 714 N.W.2d 632, 637 (Iowa 2006).

Because no genuine issue of material fact exists as to the facts

surrounding the statutes of limitations, our decision will turn on the

construction of the statutes of limitations contained in the Iowa Civil

Rights Act. We review questions of statutory construction for correction

of errors at law.   Estate of Ryan v. Heritage Trails Assocs., Inc., 745

N.W.2d 724, 728 (Iowa 2008).

      III. Statutory Framework.

      Chapter 216 of the Code, The Iowa Civil Rights Act, defines a

“person” as “one or more individuals, partnerships, associations,

corporations, legal representatives, trustees, receivers, and the state of

Iowa and all political subdivisions and agencies thereof.”     Iowa Code
                                     7

§ 216.2(11). The relevant parts of the Act define unfair or discriminatory

housing practices as follows:

            3a. A person shall not discriminate in the sale or
      rental or otherwise make unavailable or deny a dwelling to a
      buyer or renter because of a disability of any of the following
      persons:

            (1) That buyer or renter.

            ...

             b.    A person shall not discriminate against another
      person in the terms, conditions, or privileges of sale or rental
      of a dwelling or in the provision of services or facilities in
      connection with the dwelling because of a disability of any of
      the following persons:

            (1) That person.

            ...

            c.    For the purposes of this subsection only,
      discrimination includes any of the following circumstances:

            ...

                   (3)   In connection with the design and
            construction of covered multifamily dwellings for first
            occupancy after January 1, 1992, a failure to design
            and construct those dwellings in a manner that meets
            the following requirements:

                        (a) The public use and common use
                  portions of the dwellings are readily accessible to
                  and usable by persons with disabilities.

                        (b) All doors designed to allow passage
                  into and within all premises within the dwellings
                  are sufficiently wide to allow passage by persons
                  with disabilities in wheelchairs.

                        (c) All premises within the dwellings
                  contain the following features of adaptive design:

                               (i) An accessible route into and
                         through the dwelling.

                               (ii) Light switches, electrical outlets,
                         thermostats, and other environmental
                         controls in accessible locations.
                                        8
                                   (iii) Reinforcements in bathroom
                             walls to allow later installation of grab
                             bars.

                                  (iv) Usable kitchens and bathrooms
                             so that a person in a wheelchair can
                             maneuver about the space.

Id. § 216.8A(3).

      The Act contains two statutes of limitations. The first statute of

limitations provides, “[a] claim under this chapter shall not be

maintained unless a complaint is filed with the commission within one

hundred eighty days after the alleged discriminatory or unfair practice

occurred.” Id. § 216.15(12). The Code defines the person that can file

the claim as “[a]ny person claiming to be aggrieved by a discriminatory or

unfair practice . . . .” Id. § 216.15(1). The second statute of limitations

provides:

             2. a. An aggrieved person may file a civil action in
      district court not later than two years after the occurrence of
      the termination of an alleged discriminatory housing or real
      estate practice, or the breach of a mediation agreement
      entered into under this chapter, whichever occurs last, to
      obtain appropriate relief with respect to the discriminatory
      housing or real estate practice or breach.

            b. The two-year period does not include any time
      during which an administrative hearing under this chapter
      is pending with respect to a complaint or charge based on
      the discriminatory housing or real estate practice.

Id. § 216.16A(2)(a), (b).

      IV. Analysis.

      Section 216.15(12) requires a person to file a complaint with the

commission     “within      one   hundred   eighty   days   after   the   alleged

discriminatory or unfair practice occurred.”         Id. § 216.15(12).    Section

216.16A(2) requires a person to file a civil action “not later than two

years after the occurrence of the termination of an alleged discriminatory
                                    9

housing or real estate practice.”    Id. § 216.16A(2)(a).   To determine

whether Frank and Claypool timely filed their complaints with the

commission under section 216.15(12), we must determine when the

alleged discriminatory housing or real estate practice occurred.       To

determine whether Frank and Claypool timely filed their petitions in the

district court under section 216.16A(2), we must determine when the

termination of an alleged discriminatory housing or real estate practice

occurred.

      In construing the statutes involved, we must determine legislative

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

2004).    We determine legislative intent from the words chosen by the

legislature, not what it should or might have said. State v. Dohlman, 725

N.W.2d 428, 431 (Iowa 2006). Under the guise of construction, we may

not extend, enlarge, or otherwise change the meaning of a statute. Auen,

679 N.W.2d at 590.

      The State and Claypool, acting on behalf of the commission,

contend the statutes of limitations do not apply to them. The Iowa Civil

Rights Act defines a “person” as an individual, the state of Iowa, and all

of its agencies.   Iowa Code § 216.2(11).   Therefore, the limitations of

actions contained in sections 216.15(12) and 216.16A(2) apply to the

Claypool complaint and petition.

      Under sections 216.15(12) and 216.16A(2), we must first determine

the alleged discriminatory housing or real estate practice upon which

Frank and Claypool base their claims. They both claim the defendants

discriminated in the sale or made housing unavailable under Iowa Code

section 216.8A(3)(a)(1), (c)(3), discriminated in terms, conditions or

privileges of sale and in providing services or facilities according to

section 216.8A(3)(b)(1), (c)(3), and failed to design and construct the
                                     10

dwelling in compliance with accessibility and adaptability features

according to section 216.8A(3)(c)(3).

      Section 216.8A(3) prohibits discrimination in the “sale” of a

dwelling. Iowa Code § 216.8A(3)(a), (b). Section 216.8A(3)(c) defines the

“discrimination” referred to in subsection (3) of section 216.8A as “the

design and construction” of an inaccessible dwelling. Id. § 216.8A(3)(c).

Therefore, the crux of these claims is that the defendants provided design

and construction services for the development that made it inaccessible

to a person with disabilities, then sold it to Frank and the other

residents. Because the alleged discriminatory practice complained of is

the sale of a housing unit designed and constructed to be inaccessible to

a person with disabilities, it is clear the alleged discriminatory housing or

real estate practice occurred and terminated at the time of the sale of the

relevant units. See Garcia v. Brockway, 526 F.3d 456, 461–64 (9th Cir.

2008) (construing a similar federal statute of limitations in a similar

fashion).

      Accordingly, Frank’s 180-day period for filing his complaint with

the commission and two-year period to file his petition with the district

court began in August of 1999 when he purchased his unit. He filed his
complaint in April of 2002 and his petition in November of 2005.

Consequently, Frank’s complaint and petition were untimely, and the

statutes of limitations bar his action.

      In Claypool’s action, the undisputed facts are that the sale of the

last unit in the condominium development occurred more than 180 days

prior to the filing of the Claypool complaint, and more than two years

prior to the filing of the Claypool petition. Thus, Claypool’s complaint

and petition were also untimely, and the statutes of limitations bar her

action.
                                    11

      Claypool and Frank suggest an interpretation known as the

encounter theory should apply to this case. Under the encounter theory,

“a disabled homeseeker’s cause of action does not become complete until

he personally encounters the defendant’s inaccessible building.” Robert

G. Schwemm, Barriers to Accessible Housing: Enforcement Issues in

“Design and Construction” Cases under the Fair Housing Act, 40 U. Rich.

L. Rev. 753, 850 (2006). The plain language of the Iowa statute is not

consistent with such a reading. The plain language of the statute defines

the discriminatory practice as the sale of a housing unit designed and

constructed to be inaccessible to a person with disabilities. Therefore,

the statutes of limitations begin to run on the sale of the unit as to

Frank, and on the last sale of the units as to Claypool. The encounter

theory is more consistent with a tort theory, whereas Frank and Claypool

have brought statutory claims under the Iowa Civil Rights Act. Tort law

cannot “trump statutory provisions that deal expressly with the statute

of limitations.” Garcia, 526 F.3d at 464.

      Finally, Frank and Claypool argue that the alleged discriminatory

practice continued after the sale of the units; therefore, under a

continuing violation theory the statutes of limitations did not run. The

Supreme Court defines a continuing violation as one in which the

plaintiff “challenges not just one incident of conduct violative of the Act,

but an unlawful practice that continues into the limitations period.”

Havens Realty Corp. v. Coleman, 455 U.S. 363, 381, 102 S. Ct. 1114,

1125, 71 L. Ed. 2d 214, 230 (1982). However, we must distinguish the

continuing violation theory from the continuing ill effects suffered from

the original violation.
      A recent Supreme Court decision focused on the issue of
continuing violation versus continuing effect. Ledbetter v. Goodyear Tire
                                    12

& Rubber Co., 550 U.S. 618, ______, 127 S. Ct. 2162, 2167–69, 167 L.
Ed. 2d 982, 990–93 (2007).      There the plaintiff made a Title VII pay
discrimination claim. Id. at ____, 127 S. Ct. at 2165, 167 L. Ed. 2d at
988. The issue decided by the Court was when the discriminatory act
occurred. Id. The plaintiff claimed the discriminatory act occurred when
she received lower pay. Id. at ____, 127 S. Ct. at 2166, 167 L. Ed. 2d at
988. The employer claimed the discriminatory act occurred at the time
the plaintiff received low performance scores, the cause for her receiving
lower pay. Id. at ____, 127 S. Ct. at 2166, 167 L. Ed. 2d at 989. The
Supreme Court found that the giving of low performance scores was the
discriminatory act, and the lower pay she received as a result of those
low scores was a continuing effect of those low scores. Id. at _____, 127
S. Ct. at 2169, 167 L. Ed. 2d at 992–93. In Ledbetter, the Court noted it
is necessary for a court to identify the specific discriminatory practice at
issue when applying a statute of limitations. Id. at _____, 127 S. Ct. at
2167, 167 L. Ed. 2d at 989. Accordingly, the Supreme Court stated the
“charging period ran from the time when the discrete act of alleged
intentional discrimination occurred, not from the date when the effects of
this practice were felt.” Id. at ____, 127 S. Ct. at 2168, 167 L. Ed. 2d at
992.
       In this case the specific discriminatory practice was the sale of a
housing unit designed and constructed to be inaccessible to a person
with disabilities.   This discriminatory practice was complete upon the
sale. The lack of accessibility of the non-compliant development was a
continuing effect of the discriminatory practice rather than a continuing
violation. Garcia, 526 F.3d at 462–63; Moseke v. Miller & Smith, Inc., 202
F. Supp. 2d 492, 507 (E.D. Va. 2002).         Had the legislature wanted
developers and designers of the unit to be liable after the sale, it could
                                   13

have expressly provided for continuing liability in the Iowa Civil Rights
Act.
       V. Disposition.
       Because Frank’s and Claypool’s actions are barred by the statutes
of limitations, we affirm the judgment of the district court granting the
defendants’ motions for summary judgment.
       AFFIRMED.
