                   THE SUPREME COURT OF IOWA
                                 No. 17–2009

                         Filed February 7, 2020


STANDARD WATER CONTROL SYSTEMS, INC.,

      Appellee,

vs.

MICHAEL D. JONES and CORI JONES,

    Appellants.
---------------------------------
MICHAEL D. JONES and CORI JONES,

      Counterclaim Plaintiffs,

vs.

STANDARD WATER CONTROL SYSTEMS, INC.,

      Counterclaim Defendant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.



      Homeowners appeal a district court order allowing a contractor to

recover attorney fees against a homestead in an action to enforce a

mechanic’s lien.    DECISION OF COURT OF APPEALS AFFIRMED IN

PART AND VACATED IN PART; DISTRICT COURT JUDGMENT

AFFIRMED.
                                    2

      John F. Fatino, Jonathan Kramer, and Zachary J. Hermsen of

Whitfield & Eddy, P.L.C., Des Moines, for appellants.



      Jodie C. McDougal and Elizabeth R. Meyer of Davis Brown Law Firm,

Des Moines, for appellee.
                                      3

MANSFIELD, Justice.

      I. Introduction.

      Long-running litigation, like a species in the order lepidoptera, often

goes through a metamorphosis. The difference is that the final stage of a

legal metamorphosis is not a butterfly. Rather, as here, it is frequently a

battle over attorney fees.

      In June 2013, certain homeowners hired a contractor to waterproof

their basement. After the contractor accidentally drilled into the house’s

water and sewer lines, which were in an unusual location, the homeowners

refused to pay the contractor’s bill. The contractor then sued to enforce a

mechanic’s lien.

      After more than three years of litigation, including an appeal, it was

ultimately determined that the homeowners had to pay all but $500 of the

contractor’s unpaid $5400 bill and that the contractor was entitled to

foreclosure of its mechanic’s lien.

      This lawsuit is now in the last stage of its life cycle. The present

dispute relates to the contractor’s attorney fees, which now amount to over

$58,000.    Iowa law provides that “[i]n a court action to enforce a

mechanic’s lien, a prevailing plaintiff may be awarded reasonable attorney

fees.” Iowa Code § 572.32(1) (2013). But Iowa law also provides significant

homestead rights. See id. ch. 561.

      In March 2017, a revised decree was entered granting the contractor

the right to foreclose a mechanic’s lien against the property both for the

principal amount due ($4900) and for the attorney fees ($58,000). Five

months later, when a second sheriff’s sale of the home was imminent, the

homeowners for the first time asserted that including attorney fees in the

mechanic’s lien foreclosure decree violated their homestead rights. They

maintained that the house was their homestead and could not be sold to
                                          4

pay the contractor’s attorney fees—or anything other than the $4900

principal amount due. That dispute forms the basis for the present appeal.

       On our review, we conclude that in principle the homeowners are

right: homestead rights generally prevail over a mechanic’s lien for

attorney fees. Neither the homestead law nor the mechanic’s lien statute

contain specific language to the contrary and in that event the homestead

law must go first. See Iowa Code § 561.16. However, we also conclude

that the homeowners’ assertion of homestead rights in this case came too

late. The homeowners needed to raise their homestead exemption before

the district court entered a foreclosure decree recognizing that the

contractor had a mechanic’s lien for both the unpaid principal amount

and attorney fees “senior and superior to any right, title or interest owned

or claimed by” the homeowners—not later when the decree was being

executed.

       Accordingly, we affirm the district court judgment that found a

waiver by the homeowners. We also affirm in part and vacate in part the

decision of the court of appeals.

       II. Facts and Procedural Background.

       A. The Waterproofing Contract between the Joneses and

Standard Water. In June 2013, Michael and Cori Jones (the Joneses)

hired Standard Water Control Systems (Standard Water) to install a

waterproofing system in the basement of their two-bedroom, one-story

home located in Des Moines. 1          The parties’ written contract called for

installation of drainage pipe and tile and a sump pump, and removal and

replacement of the existing concrete. The contract price was $6000, of

which the Joneses paid $600 down.

       1Michael Jones had inherited the house. The Joneses did not move into the house
until months after Standard Water did the waterproofing work.
                                        5

         The contract provided that Standard Water would “not be

responsible for any damage to hidden or unknown installations under the

floor.” It also provided that “any person or company supplying labor or

materials for this improvement to your property may file a lien against your

property if that person or company is not paid for the contributions.”

Lastly, it stated that

         if any type of collection action is brought against the Owner to
         collect any portion of Contractor’s fee, the Owner shall be
         liable for the Contractor’s actual attorney’s fees and costs of
         collection, in addition to any balance due under this
         Agreement.

         B. The Beginning of the Parties’ Dispute. During the course of

this work on July 15, one of Standard Water’s employees drilled through

the home’s water and sewer lines. These lines were unexpectedly buried

within the concrete basement floor. Standard Water informed the Joneses

a plumber would need to repair the breaks before they could complete their

work. Standard Water had finished ninety-five percent of the job at that

point. It left behind materials to complete the remaining five percent of

the work once the repair was made. Standard Water also left behind an

invoice for the $5400 due on completion of the work. The invoice stated

that interest of twelve percent per annum would be charged on past-due

balances. Standard Water promised to return to the house and complete

the waterproofing system once the Joneses repaired the water and sewer

lines.

         The Joneses did not have the water and sewer lines repaired for

approximately two months, did not allow Standard Water to complete the

waterproofing work, and did not pay Standard Water’s $5400 bill.

Standard Water posted a mechanic’s lien to the lien registry on July 31.

On September 10, the Joneses had a plumber repair the water and sewer
                                      6

lines and perform other plumbing work to make the house code-compliant.

On October 1, the Joneses’ counsel made demand on Standard Water to

foreclose its mechanic’s lien pursuant to Iowa Code section 572.28. On

October 30, Standard Water filed a petition to foreclose the lien in the Polk

County District Court.

      C. The First Round of District Court Litigation. Thus began the

long and winding procedural history of this litigation. A trial to the district

court was held on August 18 and 19, 2014. At the conclusion, the court

found that Standard Water had substantially completed the waterproofing

job on July 15, 2013, that the presence of the water and sewer lines

encased in the concrete basement floor was unusual and not foreseeable,

and that Standard Water had exercised due care in performing its work.

The court concluded Standard Water was entitled to judgment for $5400

plus interest at twelve percent from July 15, assuming it was allowed by

the Joneses to complete the work. If not, the judgment amount would be

reduced by $500 from $5400 to $4900. In a supplemental order, the court

awarded $43,835.25 in attorney fees, pursuant to Iowa Code section

572.32 and the parties’ contract, and $299.04 in costs. Final judgment

was entered on February 16, 2015, in person against the Joneses and in

rem against the Joneses’ home. The in rem portion of the judgment stated,

      Standard is entitled to foreclosure of its mechanic’s lien dated
      July 31, 2013 . . . on the single family dwelling owned by the
      Joneses with a . . . locally known address of 2910 Mahaska
      Ave., Des Moines, Polk County, Iowa 50317 (“Property”); . . .
      Standard is entitled to an in rem judgment and a foreclosure
      of the Mechanics’ Lien in the full and total amount of the
      aforementioned monetary judgment, together with all
      accruing interest, costs and fees; and . . . the Mechanic’s Lien
      is a valid lien and is the senior lien against the Property, being
      senior and superior to any right, title or interest owned or
      claimed by any of the Defendants.
                                          7

       D. The First Appeal. The Joneses appealed. 2 They argued that

Standard Water had failed to post a notice of commencement of work to

the lien registry within ten days of the commencement of work as required

by Iowa Code section 572.13A.             They also argued that the contract

provision authorizing an award of attorney fees to Standard Water was not

enforceable.    Lastly, they urged that the amount of attorney fees was

excessive. The case was transferred to the court of appeals, which on

August 31, 2016, upheld the judgment except for the amount of fees.

Standard Water Control Sys., Inc. v. Jones, 888 N.W.2d 673, 679 (Iowa

Ct. App. 2016).      The court noted that the fees “exceeded 800% of the

underlying judgment” and that the district court had “underemphasized

the time necessarily spent on this matter given the limited amount at issue

and the limited factual issue presented.”            Id.   The court affirmed the

judgment in part and remanded “for additional fact-finding to determine

an [attorney fee] award consistent with the facts presented in this case and

the Schaffer [v. Frank Moyer Construction, Inc., 628 N.W.2d 11, 24 (Iowa

2001)] factors.” Id. We denied the Joneses’ application for further review.

       E. The First Sheriff’s Sale—and the Setting Aside of that Sale.

In the meantime, Standard Water had arranged for a special execution on

its judgment and had caused the home to be sold at a sheriff’s sale on

October 21, 2015. At the sale, Standard Water was the winning bidder for

$45,000.

       Following the court of appeals decision, the Joneses moved

immediately to set aside the sheriff’s sale. On September 28, 2016, while

the Joneses’ application for further review in our court was still pending

and procedendo had not yet issued, the district court set aside the sale.

       2The  Joneses also elected not to permit Standard Water to complete the project,
leading to a $500 reduction in the principal amount of the judgment.
                                           8

The district court noted that Standard Water “will not be prejudiced”

because it “still retain[s] a judgment against the property.”

       F. The Second Round of District Court Litigation. On March 24,

2017, the district court entered an order reducing Standard Water’s

district court attorney fees by $2165, but awarding an additional

$17,283.44 for appellate attorney fees. 3           Hence, the revised judgment

amounted to $41,670.25 in trial attorney fees and $17,283.44 in appellate




       3Standard   Water had requested $29,144 for the appeal. In justifying the overall
fee award, the district court explained,

       [W]hile this [s]hould have been a “run-of-the-mill” mechanic’s lien
       foreclosure, the Jones escalated the stakes and caused much of the
       expended legal services by the positions they took in the case. They
       asserted that Standard failed to properly perform when they struck and
       cut the water line in their home. The court disagreed. They argued that
       Standard breached its duty by not discovering the water line before it was
       cut. The Jones’ plumber testified that no plumber would anticipate the
       water line to be located where it was in the Jones’ house. The Jones
       demanded and sought over $11,000.00 in damages against Standard and
       they received nothing on this claim. The case because of the positions
       asserted by the Jones and the legal interpretation required of the amended
       mechanic’s lien statute caused this case to be anything but a “run-of-the-
       mill” foreclosure of a mechanic’s lien.

              ....

               The court recognizes the attorney fees awarded for services
       provided through trial are substantially greater than the monetary award
       Standard received. However, the Jones forced this litigation when they
       demanded Standard foreclose on the mechanic’s lien. They escalated the
       stakes in the case when they asserted a counterclaim against Standard for
       an amount twice the amount sought by Standard. They interpreted and
       argued that certain sections of the Iowa Code that if they prevailed, would
       have precluded Standard’s recovery here. They filed a motion for partial
       summary judgment in an attempt to convince the district court their
       interpretation of the Iowa Code was correct.

               Standard was forced to respond. The response provided was
       reasonable and necessary, as limited by this order. Standard presented
       the appropriate lay and expert witnesses to prove their case and rebut the
       Jones. They, likewise, responded appropriately and reasonably to issues
       set forth in the pre-trial motions filed by the Jones.
                                            9

attorney fees against the Joneses. The court also reduced the Joneses’

redemption period on a future sale from one year to ninety days.

       The Joneses filed a motion to enlarge and amend the judgment and

a motion to reopen the record. The court denied these motions on May 9.

The Joneses launched their second appeal, contending the new total of

$58,953.69 in fees was excessive.

       G. The Second Sheriff’s Sale and the Joneses’ Assertion of the

Homestead Exemption. Standard Water began the sheriff sale process

anew while the Joneses’ second appeal went forward. A sheriff’s sale was

again scheduled—this time for August 22, 2017. On August 10, less than

two weeks before the sale date, the Joneses filed a motion to vacate the

writ of special execution, asserting for the first time that the house was

their homestead and could not be sold to pay attorney fees, interest, or

costs, but only the principal amount of the judgment itself. The Joneses

argued the sale should not go forward, but if it did, they should be able to

redeem their home for $4900—i.e., the principal amount.

       On August 21, the court denied the motion to vacate the special

execution and allowed the sale to go forward.                 In its order, the court

reserved a later determination as to whether the house was the Joneses’

homestead and—if so—whether the lien amount could include attorney

fees, costs, and interest.

       Standard Water again purchased the home at the August 22, 2017

sale for $45,000.       In a November 12 postsale order, the district court

addressed the issues it had reserved. By then, the parties had agreed that

the house was in fact the Joneses’ homestead, so the court turned to the

other issues. 4 The court held that “[Iowa Code] section 561.21(3) does not


        4The homestead declaration and plat were recorded August 21, 2017, the day

before the second sheriff’s sale. In addition, the Joneses filed affidavits dated August 22
                                        10

allow a homestead to be sold to recover attorney fees, costs of the action

or interest that may have been entered as a judgment against the home in

[a] foreclosure action under chapter 572.” However, the court observed

that the Joneses did not raise their homestead claim until 2017. The court

also observed that the Joneses had successfully moved to set aside the

first sheriff’s sale based on the premise that attorney fees were part of the

lien. Accordingly, for reasons of judicial estoppel, law of the case, and res

judicata, the court declined to set aside the August 22 sale. On November

17, the Joneses redeemed the house by tendering $45,300 to the Polk

County district court clerk.

       The Joneses appealed a third time, arguing the district court erred

in finding they were barred by estoppel, waiver, and res judicata from

asserting their homestead rights against the lien for attorney fees, costs,

and interest.

       H. The Second Appeal.           Simultaneously, the Joneses’ second

appeal, which challenged the revised amount of attorney fees awarded,

was still proceeding. We transferred that appeal to the court of appeals.

On February 7, 2018, the court of appeals rejected the Joneses’ contention

that the fees were excessive, upholding the total award of $58,953.69 but

declining to award any attorney fees for that appeal.            Standard Water

Control Sys., Inc. v. Jones, No. 17–0854, 2018 WL 739330, at *3 (Iowa Ct.

App. Feb. 7, 2018).

       I. The Present Appeal.          The Joneses’ third appeal was also

transferred to the court of appeals.         On February 9, 2019, that court

upheld the district court’s ruling that the “[Iowa Code] does not allow a


stating that the property was their homestead. The record does not show exactly when
the property became the Joneses’ homestead, although it suggests they moved into the
house in 2014.
                                      11

homestead to be sold to recover attorney fees, costs of the action or interest

that may have been entered as a judgment against the home in a

foreclosure action under chapter 572.”       But it overturned the district

court’s ruling that principles of judicial estoppel, waiver, and res judicata

barred the present consideration of the Joneses’ homestead arguments.

Standard Water Control Sys., Inc. v. Jones, No. 17–2009, 2019 WL 478498,

at *7 (Iowa Ct. App. Feb. 6, 2019).

      Standard Water applied for, and we granted, further review.

      III. Standard of Review.

      We review questions of statutory interpretation for correction of

errors at law. Vance v. Iowa Dist. Ct., 907 N.W.2d 473, 476 (Iowa 2018).

We review questions of res judicata for corrections of errors at law. Tyson

Foods, 740 N.W.2d at 195.

      IV. Analysis.

      A. Can Attorney Fees, Costs and Interest Be Recovered in a

Mechanic’s Lien Foreclosure Action Against the Homestead?                This

case involves the intersection of two chapters in the Iowa Code—chapter

561 concerning homesteads and chapter 572 concerning mechanic’s liens.

Iowa Code section 561.16 provides that “[t]he homestead of every person

is exempt from judicial sale where there is no special declaration of statute

to the contrary.” Iowa Code § 561.16. Section 561.21 provides,

             The homestead may be sold to satisfy debts of each of
      the following classes:

            ....

            3. Those incurred for work done or material furnished
      exclusively for the improvement of the homestead.

Id. § 561.21(3). Meanwhile, Iowa Code section 572.32 provides, “In a court

action to enforce a mechanic’s lien, a prevailing plaintiff may be awarded
                                    12

reasonable attorney fees.” Id. § 572.32(1). No one disputes at this point

that Standard Water can recover its principal amount due of $4900 by

foreclosing on the Joneses’ homestead. This represents “work done or

material furnished exclusively for the improvement of the homestead.” Id.

§ 561.21(3). The question is whether Standard Water can also recover its

attorney fees, interest, and costs by foreclosing on the homestead.

      Iowa has a long history of protecting the homestead. In 1854, we

considered Bridgman v. Wilcut, 4 Greene 563 (Iowa 1854), our first case

involving Iowa’s homestead statute. In that case, we found a debtor was

entitled to protect his home from sale under an 1849 statute protecting

homesteads from “forced sale.” Id. at 566. Thus, less than three years

after Iowa became a state, our legislature had already passed a statute

protecting the homestead.

      By 1928, we observed that “exemption statutes are to be construed

liberally in favor of the debtor.” Berner v. Dellinger, 206 Iowa 1382, 1385,

222 N.W. 370, 372 (1928). In 1934, we considered whether a homeowner

who wanted to redeem her home that had been foreclosed in a mechanic’s

lien action could be required to pay the lienor’s $250 in attorney fees. See

Werner v. Hammill, 219 Iowa 314, 316, 257 N.W. 792, 793 (1934). We held

that the homeowner could not be required to pay the fees. Id. at 317–18,

257 N.W. at 794. Although there was no statute in effect comparable to

Iowa Code section 572.32 at the time, and, in fact, no one furnished a

reason why the homeowner should have to pay the lienor’s fees, id. at 316,

257 N.W. at 793–94, this case does form part of our historical backdrop.

      In 2014, we reaffirmed that “we construe our homestead statute

broadly and liberally to favor homestead owners” because the legislative

scheme strongly favors the homestead. In re Estate of Waterman, 847

N.W.2d 560, 567 (Iowa 2014) (“The general assembly has ‘chosen to
                                      13

provide special procedures to protect homestead rights, and has defined

this protection in a comprehensive manner.’ ” (quoting Martin v. Martin,

720 N.W.2d 732, 738 (Iowa 2006)). Moreover, the homestead statute exists

“to provide a margin of safety to the family, not only for the benefit of the

family, but for the public welfare and social benefit which accrues to the

State by having families secure in their homes.” Id. at 566–67 (quoting

Brown v. Vonnahme, 343 N.W.2d 445, 451 (Iowa 1984)); see also Am. Sav.

Bank of Marengo v. Willenbrock, 209 Iowa 250, 253, 228 N.W. 295, 297

(1929) (“The law allowing the exemption is to be liberally construed, and

is not to be pared away by construction, so as to defeat its beneficent,

sociological, and economic purpose.”).

      However,    the   mechanic’s    lien   also   has    an   important   and

longstanding status in Iowa.         The territory of Iowa already had a

mechanic’s lien law by 1843, and some form of the lien has existed ever

since. Colcord v. Funk, Morris 178, 179, 1843 WL 1195, at *1 (Iowa 1843)

(per curiam); see also Schaffer, 628 N.W.2d at 19; Greene & Bros. v. Ely,

2 Greene 508, 508 (Iowa 1850). In Schaffer, we noted the mechanic’s lien

statute stems “from principles of equity which require paying for work

done or materials delivered.”      628 N.W.2d at 19 (quoting Carson v.

Roediger, 513 N.W.2d 713, 715 (Iowa 1994)).                 Considerations of

“restitution and prevention of unjust enrichment drive the mechanic’s lien

entitlement.”   Id. (quoting Carson, 513 N.W.2d at 715).         Therefore, we

liberally construe the mechanic’s lien statute.           Id.; see also Winger

Contracting Co. v. Cargill, Inc., 926 N.W.2d 526, 535 (Iowa 2019) (“The

mechanic’s lien statute is liberally construed to promote restitution,

prevent unjust enrichment, and assist the parties in obtaining justice.”).

      Additionally, in 1983, the legislature amended the mechanic’s lien

statute to allow for the recovery of attorney fees in mechanic’s lien actions.
                                     14

1983 Iowa Acts ch. 106, § 1 (codified as amended at Iowa Code § 572.32

(2020)). “Typically, courts generously construe statutes authorizing an

award of fees to a prevailing party.” Lee v. State, 874 N.W.2d 631, 645

(Iowa 2016).

      Although we have not previously addressed the interplay between

the homestead law and Iowa Code section 572.32, we have had to resolve

other tensions between the homestead law and separate provisions of the

Iowa Code. Thus, in In re Property Seized from Bly, we were presented with

the question “whether a legitimately acquired homestead may be forfeited

to the State under Iowa Code chapter 809 . . . when it has been used by

its owner to facilitate the commission of a criminal offense.” 456 N.W.2d

195, 196 (Iowa 1990).      The forfeiture statute expressly provided that

property used to facilitate the commission of a criminal offense was

forfeitable. Id. Yet we noted that Iowa Code section 561.16 required a

“special declaration,” and “neither the homestead exemption nor chapter

561 is mentioned anywhere in [the statutory definition of forfeitable

property or the chapter of the Iowa Code devoted to forfeiture].” Id. at 200.

In summary, we said,

            In light of the legislature’s choice not to refer to the
      homestead law in chapter 809, we conclude that the current
      Iowa statutes do not permit the State to forfeit a legitimately
      acquired homestead under section 809.1(2)(b) even though
      the homestead was used by its owner to facilitate the
      commission of a criminal offense.

Id.

      Under the Bly standard for what amounts to a “special declaration,”

Iowa Code section 572.32 falls short.        It too does not mention the

homestead exemption.

      One possible counterargument to Bly is that a “special declaration”

is unnecessary here because the exception for debts “incurred for work
                                           15

done or material furnished exclusively for the improvement of the

homestead” already includes attorney fees incurred enforcing those debts.

See Iowa Code § 561.21(3) (2013) (stating that the homestead may be sold

to satisfy debts “incurred for work done or material furnished exclusively

for the improvement of the homestead”). We are not persuaded by that

argument. The language in section 561.21(3) resembles the language at

the beginning of the mechanic’s lien chapter in section 572.2(1). See id.

§ 572.2 (stating that the lien is “to secure payment for the material for

labor furnished or labor performed”). Yet that language did not authorize

recovery of attorney fees until section 572.32 was added in 1983. Attorney

fees are not a debt incurred for work done or material furnished. They are

a debt incurred for collecting a debt for work done or material furnished. 5

       Still, a number of Iowa cases have found that specific statutory

provisions trump the homestead exemption even when they do not

mention it. An example can be found in tax law. See Tate v. Madison

County, 163 Iowa 170, 171, 143 N.W. 492, 492 (1913). Tate concerned a

statute declaring “taxes due from any person upon personal property shall

be a lien upon any and all real estate owned by such person.” Id. (quoting

Iowa Code § 1400 (Supp. 1907)). Our court found “any and all real estate”
included homesteads, making taxes enforceable against them, including

taxes not specifically due on the homestead. Id. at 172, 143 N.W. at 492.

We reaffirmed that conclusion in Hampe v. Philipp, 210 Iowa 1243, 1244,

232 N.W. 648, 649 (1930). 6

       5See  also Palomita, Inc. v. Medley, 747 S.W.2d 575, 577–78 (Tex. App. 1988)
(holding that a Texas law authorizing recovery of attorney fees by a mechanic’s lienholder
who recovers in a suit on the lien does not permit the fees to be included in the lien,
because the lien “secures payment for . . . the labor done or material furnished for the
construction or repair” under Texas law (quoting Tex. Prop. Code Ann. § 53.023)).
       6The relevant statute now reads, “[E]xcept that no property of the taxpayer is
exempt from payment of the tax.” Iowa Code § 422.26(7)(a) (2020).
                                    16

      Even without the benefit of “any and all real estate” language, we

held in Cox v. Waudby that a married couple could not shield a home they

had purchased with fraudulently obtained proceeds from an equitable lien.

433 N.W.2d 716, 718–19 (Iowa 1988). We explained,

      Although exemption statutes are to be liberally construed in
      favor of the debtor, our construction must not extend the
      debtor privileges not intended by the legislature. We conclude
      the legislature never contemplated or intended that a
      homestead interest could be created or maintained with
      wrongfully appropriated property. Where wrongfully obtained
      funds are used to purchase property, the property does not
      belong to the purchasers, and therefore, to the extent of the
      illegal funds used, they never acquire a homestead interest.

Id. at 719 (citations omitted).

      And in In re Marriage of Tierney, we held that Iowa Code section

561.16 did not bar a dissolution decree from directing that the family

homestead be sold, even though nothing in Iowa Code section 598.21

expressly mentioned homestead. 263 N.W.2d 533, 534–35 (Iowa 1978).

We observed, “Our cases have long recognized that § 598.21 constitutes a

‘special declaration of statute’ which makes homestead laws ineffective to

bar judicial sale of the homestead in adjusting the property rights of the

parties.” Id. at 534.

      Additionally, a homestead may be subjected to an involuntary

partition sale despite the absence of any reference to homestead in the

partition statutes or rules. See Coyle v. Kujaczynski, 759 N.W.2d 637, 641

(Iowa Ct. App. 2008). As the court of appeals explained in Coyle,

      [T]he legislature, in providing for homestead protection, never
      contemplated or intended that a homestead interest could be
      created or maintained against other co-owners of the property.
      Rather, the legislature merely sought to put homesteads
      beyond the reach of creditors.

Id.
                                         17

         We think Bly controls as to whether attorney fees can be recovered

against the homestead in an action to foreclose a mechanic’s lien. Iowa

Code section 572.32, like the criminal forfeiture law in Bly and unlike the

laws governing divorce, partition, and taxes in Tierney, Coyle, and Tate, is

a relatively recent progeny of the legislative process. The legislature did

not elect to make a “special declaration” regarding the unavailability of the

homestead exemption in 1983 when it enacted section 572.32.

Accordingly, we conclude the homestead exemption prohibits efforts to

recover attorney fees in mechanic’s lien foreclosure actions. We do not

believe we are extending to the debtors in this case a privilege “never

contemplated or intended” by the legislature. Cox, 433 N.W.2d at 719.

When the legislature wants to create a new remedy intended to supersede

the homestead exemption, section 561.16 puts the burden on the

legislature to make a “special declaration” saying so.

         Our conclusion also finds support in Iowa Code section 4.7, which

states,

         If a general provision conflicts with a special or local provision,
         they shall be construed, if possible, so that effect is given to
         both. If the conflict between the provisions is irreconcilable,
         the special or local provision prevails as an exception to the
         general provision.

Iowa Code § 4.7 (2020).        If we line up Iowa Code sections 561.16 and

561.21, on the one hand, and Iowa Code section 572.32, on the other, the

latter mentions only a remedy.           The homestead provisions, however,

mention both an exemption and remedies to which the exemption does not

apply.      Hence, the relevant homestead provisions appear to be more

specific.

         We note that Texas law, like Iowa law, expressly authorizes the

recovery of attorney fees in a mechanic’s lien foreclosure action. See Tex.
                                     18

Prop. Code Ann. § 53.156 (West, Westlaw through 2019 Legis. Sess.). Yet

a Texas appellate court held that attorney fees could not be paid from

homestead sale proceeds. See Dossman v. Nat’l Loan Investors, L.P., 845

S.W.2d 384, 386–87 (Tex. App. 1992).

      There are reasonable policy reasons to reach this result. When a

dispute arises between a homeowner and a residential contractor, it is

conceivable that the contractor’s attorney fees could far exceed the

underlying amount in dispute. That is exactly what happened here. In

that circumstance, the legislature may not have wanted to put the home

in jeopardy for such amounts. On the other hand, given that construction

litigation can be costly and protracted, the legislature may have decided

that for nonhomesteads the contractor should be compensated for its

actual litigation cost when the owner is in the wrong—especially when

attorney fees are less likely to be disproportionate to the amount in

controversy.

      Yet the matter is not without doubt. A 1919 precedent, not cited by

either party, supports Standard Water’s position. See Chandler v. Hopson,

188 Iowa 281, 175 N.W. 62 (1919). In Chandler, we upheld a judgment

for the defendant in a proceeding to fix the boundary line between two

properties. Id. at 288–89, 175 N.W. at 64. We also held that the district

court did not err in making the costs a lien on the plaintiff’s property, even

though it was his homestead. Id. at 289, 175 N.W. at 64–65. We noted

that Iowa Code section 4238, now section 650.16, provided,

      The costs in the proceeding shall be taxed as the court shall
      think just, and shall be a lien on the land or interest therein
      owned by the party or parties against whom they are taxed,
      so far as such land is involved in the proceedings.

Id. at 289, 175 N.W. at 65 (quoting Iowa Code § 4238 (1897) (current

version available at Iowa Code § 650.16 (2020))). However, we then quoted
                                       19

from Iowa Code section 2972, which is now section 561.16.              Id.   We

concluded,

            This section [section 2972, now section 561.16] was
      enacted prior to section 4238 [now section 650.16]. It will be
      noted that by section 2972 the homestead is exempt from
      judicial sale only “when there is no special declaration of
      statute to the contrary.” Section 4238 expressly makes any
      judgment for costs a lien upon the land involved in the
      proceedings.

               We are of opinion that the decree of the district court is
      right.

Id. (quoting Iowa Code § 2972 (1897) (current version available at Iowa

Code § 561.16 (2020))).       In short, even though section 4238 did not

mention homestead rights, the express authority granted in that area of

the Iowa Code to make the costs a lien on the land was deemed a “special

declaration” sufficient to overcome the homestead. Bly seems to be to the

contrary and requires the legislature “to refer to the homestead law.” 456

N.W.2d at 200.

      In any event, as to interest and taxable costs here, we hold that they

can be included in a mechanic’s lien against a homestead. Unlike attorney

fees, interest and costs have traditionally been recoverable in mechanic’s

lien actions and in litigation generally. We believe that interest is part of

the “debt[] . . . incurred for work done or material furnished exclusively for

the improvement of the homestead.”           Iowa Code § 561.21(3) (2013).

Limiting an unpaid contractor to recovery of its principal amount from the

homestead no matter how long it took to foreclose the lien would encourage

delay on the part of the homeowner and was “never contemplated or

intended” by the legislature. Cox, 433 N.W.2d at 719.

      Our prior cases have allowed interest and costs in mechanic’s lien

judgments. See Farrington v. Freeman, 251 Iowa 18, 24–25, 99 N.W.2d

388, 391–92 (1959); Moffitt v. Denniston & Partridge Co., 229 Iowa 570,
                                      20

571–72, 576, 294 N.W. 731, 731, 734 (1940). In Moffitt, we affirmed a

mechanic’s lien judgment including interest and costs and allowed it to be

enforced against a homestead on the basis of the predecessor to section

561.21(3). 229 Iowa at 571–72, 576, 294 N.W.2d at 731, 734. In fairness,

whether interest and costs could be included in the judgment was not

presented as a distinct issue in Moffitt. Id. at 571–76, 294 N.W. at 731–

34. In Farrington, we held that a contractor was entitled to interest in an

action for foreclosure of a mechanic’s lien. 251 Iowa at 23–26, 99 N.W.2d

at 391–93. Whether the property was a homestead was not discussed,

although the defendants had occupied it as their home. Id. at 22–23, 99

N.W.2d at 389. See also S. Hanson Lumber Co. v. DeMoss, 253 Iowa 204,

212, 111 N.W.2d 681, 687 (1961) (awarding interest in an action to

foreclose a mechanic’s lien against a residence). These precedents are not

controlling, but they suggest we have previously operated on an

assumption that interest and costs can be recovered in an action to enforce

a mechanic’s lien, even against a homestead.

      B. Are the Joneses Precluded by Judicial Estoppel, Law of the

Case, or Res Judicata/Waiver from Asserting Their Homestead

Exemption? Notwithstanding its views on the underlying legal issue, the

district court found it was too late for the Joneses to object to the inclusion

of attorney fees, costs, and interest in the sheriff’s sale. The court cited

three reasons—judicial estoppel, law of the case, and res judicata/waiver.

Significantly, this mechanic’s lien foreclosure action was filed in June

2013, but the homestead exemption was not raised until more than four

years later in August 2017.        The Joneses argue that timing is not

dispositive, and the district court erred in invoking these three doctrines.

Because we find the issue of res judicata/waiver controlling, we do not

address the other two doctrines.
                                     21

      The district court found principles of res judicata and waiver barred

the Joneses’ assertion of a homestead exemption. The court particularly

relied on Francksen v. Miller, 297 N.W.2d 375 (Iowa 1980). In that case, a

foreclosure action proceeded to judgment without the homeowner having

raised a homestead claim. Id. at 376. The homeowner appealed from that

judgment but dismissed his appeal. Id. He did not assert the homestead

defense until after the sheriff’s sale had taken place. Id. At that point, the

district court found the assertion untimely. Id. Later, the homeowner

again tried to raise the homestead as a defense in the purchaser’s forcible

entry and detainer (FED) action. Id. We held that the original foreclosure

decree was res judicata:

            The record of the foreclosure suit shows defendant did
      not assert his homestead claim until after the sheriff’s sale.
      The trial court held the claim was untimely and refused to set
      the sale aside. No appeal was taken from that adjudication.
      Therefore, under Dodd [v. Scott, 81 Iowa 319, 46 N.W. 1057
      (1890)], defendant is precluded from raising a homestead
      defense in the present action, whether grounded on his own
      right or derived from his wife’s right. This is based on the
      principle of res judicata.

Id. at 377.

      Although Francksen bears some similarities to the present case,

there are also differences. This case has never involved two separate legal

proceedings, such as the foreclosure action and the FED in Francksen.

Furthermore, when the Joneses raised their homestead right in August

2017 before the second sheriff’s sale, the foreclosure decree was still

winding through the appellate courts on the Joneses’ second appeal.

      The pertinent question to ask is whether Francksen applies

whenever a homeowner fails to raise the homestead exemption before the

foreclosure decree eliminating the alleged homestead interest is entered.

In Larson v. Reynolds & Packard, we noted a failure to assert a homestead
                                      22

right in a foreclosure action could preclude a party from later raising it.

13 Iowa 579, 582 (1862). There we reversed a decree of foreclosure and a

sheriff’s sale because the complainant’s wife had not been made a party to

the foreclosure proceeding. Id. Yet we added,

             If complainant’s present wife had been made a party to
      the bill to foreclose, we think the controversy would have been
      at an end. A failure to set up the homestead exemption at
      that time would have concluded and estopped them from
      making the claim against one holding under the sale. The
      order of foreclosure would have settled the homestead right,
      and in an action for the possession, it could not be again
      adjudicated.
Id.
      Additionally, in Haynes, Hutt & Co. v. Meek, we precluded a

defendant from raising his homestead rights in an FED action after the

foreclosure suit terminated, observing “this homestead right, if it ever

existed, was lost to him by failing to set it up in the foreclosure proceeding.”

14 Iowa 320, 322 (1862).

      In Dodd, which involved another FED action, we again reaffirmed,

“Being a party to the foreclosure suit, if he had a homestead right available

to him as a defense therein, he must interpose it, or the right is lost.” 81

Iowa at 320, 46 N.W. at 1058; see also In re Sinnard, 91 B.R. 850, 853

(Bankr. N.D. Iowa 1988) (citing Dodd and stating that “[a] debtor’s

homestead claim is a personal defense to a mortgage foreclosure action,

and is waived by the putative claimant’s failure to urge it in a foreclosure

action”). Ninety years later, we relied on Dodd in Francksen, 297 N.W.2d

at 377.

      Also on point is Collins v. Chantland, 48 Iowa 241 (1878). The case

was a nineteeth-century precursor to a dramshop action:

      Alice McNamara instituted an action against Peter Maloney
      for injuries sustained by reason of sales of intoxicating liquors
      to her husband; that Collins was made a party to the action,
                                     23
      and a lien was claimed against his real estate occupied by
      Maloney, where the liquors were sold.

Id. at 242.     McNamara (the plaintiff) prevailed against Collins (the
homeowner). Id. Then Collins failed to assert his homestead rights until

a judgment enforcing the lien was entered and the property was set for

sale. Id. Although Collins filed a petition prior to the sale, we held this

was too late:

      The plaintiff Collins was a party to the action wherein
      judgment was rendered against his property. Any defense
      which he had to the claim for a lien made against him should
      have been made in that action. Failing to make such defense,
      he cannot resist the enforcement of the judgment upon the
      ground that the property is exempt from the lien. The
      question of the lien is res adjudicata. His ignorance of his
      rights at the time the judgment was rendered is no ground for
      setting it aside.

Id. at 243.

      Finally, in Weir & Russell Lumber Co. v. Kempf, the plaintiff obtained

favorable provisions in a decree of foreclosure on a mechanic’s lien. 234

Iowa 450, 451–53, 12 N.W.2d 857, 858–59 (1944). The defendant later

urged, among other things, that the decree violated her homestead rights.

Id. at 453–54, 12 N.W.2d at 859–60. We rejected this contention, stating,

“The collateral attack now made upon the decree . . . cannot be sustained.

The decree is not void and is not subject to collateral attack for mere errors

or irregularities.” Id. at 454, 12 N.W.2d at 860.

      Based on these authorities, we hold that the March 24, 2017 order

modifying the prior February 16, 2015 order and granting a judgment in

rem against the home to Standard Water for $4900 plus $58,953.69 in

attorney fees has conclusive and binding effect. There is no question that

the Joneses could have raised their homestead exemption before the entry
                                          24

of these orders. 7 In effect, their August 2017 motions challenging the

sheriff’s sale were a collateral attack on the previously entered foreclosure

decrees. For those motions to succeed, the previously entered orders had

to be wrong.

      It is true that the Joneses appealed the March 24, 2017 order. But

the appeal raised only the excessiveness of the fees, and it was

unsuccessful.

      This is a case where “[t]he order of foreclosure would have settled

the homestead right.” Larson, 13 Iowa at 582. The Joneses “cannot resist

the enforcement of the judgment upon the ground that the property is

exempt from the lien. The question of the lien is res adjudicata.” Collins,

48 Iowa at 243. “Being a party to the foreclosure suit, if [the Joneses] had

a homestead right available to [them] as a defense therein, [they] must

interpose it, or the right is lost.” Dodd, 81 Iowa at 320, 46 N.W. at 1058.

      This outcome makes sense.                Had the Joneses asserted their

homestead exemption earlier, much of this litigation could have been

avoided. The parties and the court system would have saved a great deal

of time and trouble.

      Critical to our holding is the fact that the district court’s February

2015 and March 2017 decrees recognized that Standard Water’s attorney

fees were part of the mechanic’s lien on which Standard Water could

foreclose and were superior to any interest of the Joneses in the property.

This would be a different case if Standard Water were attempting to

execute by sheriff’s sale on a personal judgment, for example.




      7As   previously noted, the record suggests they moved into the house in 2014.
                                   25

      V. Conclusion.

      For the foregoing reasons, we affirm the judgment of the district

court. We affirm in part and vacate in part the decision of the court of

appeals.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.

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