Umeka Lewis v. John J. Jaeger, Robert E. Boge, and the City of Dubuque

IN THE SUPREME COURT OF IOWA
No. 11–0834
Filed July 20, 2012
UMEKA LEWIS,
Appellant,
vs.
JOHN J. JAEGER, ROBERT E. BOGE,
and THE CITY OF DUBUQUE,
Appellees.
Appeal from the Iowa District Court for Dubuque County,
Lawrence H. Fautsch, Judge.
Tenant appeals unfavorable district court judgment. AFFIRMED
IN PART, REVERSED IN PART, AND CASE REMANDED.
Raymond H. Johnson of Johnson Law Firm, West Des Moines, for
appellant.
Leslie V. Reddick of Kane, Norby & Reddick, P.C., Dubuque, for
appellees Boge and City of Dubuque.
Cory R. Thein, Dubuque, for appellee Jaeger.
2
APPEL, Justice.
In this case, a tenant brings claims against her landlord, the City
of Dubuque, and a city official, asserting that they unlawfully caused her
eviction from her apartment. According to the defendants, the eviction
occurred because a city housing official, acting pursuant to a city
ordinance designed to protect public health and safety in emergency
situations, issued a valid oral order directing the landlord to lock out a
tenant who, according to the landlord, repeatedly left the water and gas
stove running for hours at a time, including periods of time when no one
was in the apartment.
The tenant sued the City, the housing official, and her landlord. In
her pleading, the tenant alleged that the conduct of the defendants
violated a number of her statutory rights under the Iowa Uniform
Residential Landlord and Tenant Act (IURLTA), including those related to
eviction, entry onto the premises, and return of security deposits. To the
extent the Dubuque ordinance authorized the action of the defendants,
the ordinance, according to the tenant, was preempted by the IURLTA.
The tenant also alleged the city defendants violated her constitutional
rights to due process of law by invading her property right in her
apartment without notice and an opportunity to be heard. The tenant
further claimed the city defendants violated due process by attempting to
enforce an unduly vague ordinance. Finally, the tenant brought a
common law claim for conversion of her private property, claiming the
landlord took some of her possessions during the eviction process.
After a one-day trial, the district court concluded that the tenant
was entitled to the return of her security deposit but denied all other
relief. The tenant appealed. For the reasons expressed below, we affirm
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in part and reverse in part the judgment of the district court and remand
for further proceedings.
I. Factual and Procedural Background.
This case arises out of a landlord–tenant dispute in Dubuque,
Iowa, between tenant Umeka Lewis and landlord John Jaeger. Lewis,
who was twenty-one years old at the time of trial, receives housing
benefits under Section 8, a federal program to assist low-income
persons. 1 Jaeger is a landlord who owns and manages twenty-two
apartment units in six buildings in Dubuque.
Lewis and Jaeger entered into a one-year rental agreement
beginning November 1, 2008, and ending October 31, 2009. The
agreement required Lewis to pay a $465 security deposit and $465 each
month. Her apartment was part of a four-plex unit. Jaeger was aware
that Lewis was a participant in the Section 8 program.
Shortly after moving in, Lewis thought she heard bats in the walls
of her apartment. She began to run the water for extended periods of
time, including overnight, in an effort to scare the bats away. Also, at
about the same time, Lewis found the heat in her apartment inadequate.
The thermostat which controlled the heat, however, was located in a
different unit and thus beyond Lewis’s direct control. In order to
increase the heat in her apartment, Lewis turned on her gas stove and
opened the oven door. She left the gas stove on with the door open for
several hours at a time, including while she slept.
After receiving complaints from other tenants in the apartment
building that there was no hot water, Jaeger investigated and determined
1“Section8” is a reference to a provision of the United States Housing Act of
1937, as amended in 1974. See 42 U.S.C. § 1437(f) (2006). This provision is designed
to provide housing assistance to lower income families. See Horizon Homes of
Davenport v. Nunn, 684 N.W.2d 221, 222 (Iowa 2004).
4
that Lewis was running the water and heating the apartment with her
oven. Jaeger told Lewis to stop, leaving several notes for his tenant. One
note stated: “Umeka! Don’t pull that shit ever again. [You] can leave
whenever you want. Call me. . . . [You are] being charged for the water
[and] heat you used!!” A second note declared:
Umeka,
Here’s the deal, if you leave before this lease you can’t
get housing for [one] year.
If I have to evict you[,] you can’t get housing for [three]
years.
If you pay for all the charges to the gas [and] water,
you can stay!
Otherwise you will be evicted. They will turn the heat
up if you are cold. You are running everyone out of hot
water.
Your case worker Karen knows about all of this.
Your choice,
John
Lewis ceased running the water and the gas stove.
The winter of 2008–2009 was uneventful. During the spring of
2009, Lewis called the City complaining about bats. Robert Boge, the
City’s housing inspector supervisor, inspected the premises. He found
no evidence of bats and could not find how bats could enter the
apartment.
In late September 2009, Lewis told Jaeger that she intended to
move to Florida. She asked Jaeger to refund her security deposit so that
she could pay an anticipated security deposit for a new apartment.
Jaeger declined to make the refund. 2 At about this time, Lewis again
2A tenant cannot compel premature payment of a security deposit while the
tenant’s obligation continues, leaving the landlord unsecured for the remainder of the
5
began to heat her apartment with the oven and to leave the water
running for extended periods of time. On several occasions during late
September or early October, Jaeger entered Lewis’s apartment to turn
the gas stove and water off. According to Jaeger, Lewis’s response was to
simply turn the water and the gas stove back on.
Lewis consulted with an attorney at Dubuque Legal Aid on
October 7. Her primary concern was obtaining the security deposit from
Jaeger. The fact that Lewis was consulting with a lawyer was a reflection
of the deteriorating relationship between Lewis and Jaeger.
Jaeger, too, was looking for outside help with the situation. On
October 8, Jaeger telephoned Boge. Jaeger testified that he informed
Boge that Lewis would turn on the water and the gas stove and leave
them on unattended for extended periods of time. Jaeger further told
Boge that he could not turn off the gas and water to Lewis’s apartment
without also turning off the gas and water to the other apartments in the
building. Jaeger claimed that Boge then issued an order to Jaeger to
lock the doors to Lewis’s apartment. It is undisputed that Boge did not
talk with Lewis or attempt to contact her prior to making this oral order.
Jaeger changed the locks on Lewis’s apartment. He also gathered
her minimal belongings—an air mattress, a fan, and an alarm clock—and
placed them outside the apartment. Jaeger then called Lewis on her cell
phone and told her he had changed the locks and removed her
belongings from the apartment.
_______________________
term of the lease. See Iowa Code § 562A.12(3) (2009) (stating a landlord has thirty days
from the date of termination of the tenancy and receipt of mailing address or delivery
instructions to return the tenant’s rental deposit or furnish statement showing the
reason for withholding the deposit or any portion thereof); Seifert v. Dosland, 328
N.W.2d 531, 532 (Iowa 1983) (holding section 562A.12(3) applies when tenant
prematurely terminates lease).
6
Lewis came to the apartment and gathered her belongings. She
called the Dubuque police, asserting that some of her belongings were
missing. The Dubuque police arrived and investigated, but the record
does not reveal any further action taken at that time by law enforcement
authorities.
On October 9, Lewis met with Alex Kornya, a legal aid lawyer, to
discuss her plight. Kornya electronically sent a letter to Jaeger claiming
that he had evicted Lewis in violation of a provision of the IURLTA,
specifically Iowa Code section 562A.26 (2009). In the letter, which was
dated October 9, Kornya stated that Lewis was terminating her tenancy
as of the date of the letter and demanded the return of her security
deposit by Monday, October 12, at 5:00 p.m. Kornya indicated that if the
amount was not paid, a small claims action would be filed demanding
the security deposit and damages related to her illegal eviction.
On October 12, Boge prepared a handwritten memorandum of the
order which was the basis of a more formal typed order. The
handwritten order, backdated to October 8, stated: “Landlord is ordered
to . . . change the locks on the unit . . . . Tenant is leaving gas stove
unattended and letting the hot water run unattended. This is
endangering the lives of other occupants of the building.”
Based on the handwritten order, city staff prepared a more formal
document entitled, “NOTICE TO VACATE.” The document consisted of a
cover-page letter and an attachment. The cover page, addressed to
Jaeger, stated that a “housing inspection” had been performed on the
apartment. The second page of the notice, listing “expected repairs,”
stated that, pursuant to Dubuque City Code section 6-6-4(B)(3):
LANDLORD IS ORDERED TO CHANGE THE LOCKS ON THE
UNIT AT 414 ½ LORAS BOULEVARD. TENANT IS LEAVING
GAS STOVE ON UNATTENDED AND LETTING THE HOT
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WATER RUN UNATTENDED. THIS IS ENDANGERING THE
LIVES OF THE OTHER OCCUPANTS OF THE BUILDING.
APPEAL RIGHTS, PLEASE NOTE:
ANY PERSON HAVING ANY RECORDED TITLE OR LEGAL
INTEREST OR ANY OCCUPANT HAVING BEEN SERVED A
NOTICE AND ORDER, MAY APPEAL FROM THE NOTICE
AND ORDER OF ANY ACTION OF THE CITY MANAGER TO
THE HOUSING CODE APPEALS BOARD, PROVIDED THE
APPEAL IS MADE IN WRITING AS PROVIDED IN THIS
CODE, AND FILED WITH THE CITY MANAGER WITHIN
FOURTEEN (14) DAYS FROM THE DATE OF SERVICE OF
SUCH NOTICE AND ORDER, OR ACTION.
FAILURE TO APPEAL WILL CONSTITUTE A WAIVER OF ALL
RIGHTS TO AN ADMINISTRATIVE HEARING AND
DETERMINATION OF THE MATTER.
Boge did not leave a copy of the notice on the door of Lewis’s apartment,
nor did Boge mail or otherwise attempt to provide a copy of the notice to
Lewis. In other words, he did not “nail and mail” the notice to achieve
service on the tenant.
Lewis subsequently filed an action against Jaeger, Boge, and the
City of Dubuque. Counts I through IV of the petition alleged Jaeger
illegally retained Lewis’s security deposit, unlawfully entered Lewis’s
apartment, converted Lewis’s property, and illegally evicted Lewis.3
Count VI alleged Jaeger, Boge, and the City of Dubuque acted in concert
to deprive Lewis of due process under the Iowa and Federal
Constitutions. Specifically, Lewis argued that section 6-6-4(B)(3) of the
Dubuque City Code is unconstitutional both on its face and as applied
because it is not reasonably calculated to give adequate notice or a
hearing. Lewis also asserted the ordinance is vague, overbroad, and
preempted by the IURLTA.
3Count V of the petition alleged the lease contained illegal lease provisions.
Lewis filed a motion for partial summary judgment on the issue, which was granted.
Although summary judgment was granted, the district court declined to award damages
under Iowa Code section 562A.11(2) because it found Jaeger’s conduct was not willful.
Lewis does not challenge this finding on appeal.
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A bench trial was held in March 2011. Lewis gave her side of the
story. Among other things, Lewis testified that Jaeger entered her
apartment on a number of occasions, including while she was asleep, to
turn the water and gas stove off. She admitted that when he left, she
would turn the water and gas stove back on. She denied leaving the
utilities on when she was not home. Lewis testified that Jaeger called
her on the day of the eviction and told her he changed the locks and
removed her possessions from the apartment. Lewis stated Jaeger did
not mention any involvement by the City during the phone call. When
she arrived at the apartment to retrieve her belongings, Lewis claimed a
set of earrings given to her by her mother worth about $450, a blanket,
and a DVD player were missing. She testified that if an official from the
City had requested that she stop running the water or the gas stove, she
would have complied. She asserted that as a result of her eviction and
the failure of Jaeger to refund her security deposit, she lived in a
homeless shelter for a period of time and, when the shelter closed, she
lived out of her car. She testified that she often slept in her car at night
in a Walmart parking lot or in the parking lot of a local hospital.
Jaeger also testified. He stated Lewis left the water and stove on
two or three times during the week of her eviction. He testified that
“there was no talking to her,” and that once he ensured the water and
gas stove were off, Lewis would “turn it right back up.” Jaeger further
testified that Lewis was not in the apartment when he turned off the
utilities. According to Jaeger, at the time he locked her out, “everything
was running, which was always the case: The faucet, the kitchen, the
bathtub, the vanity in the thing, and the stove on and the door open.”
Jaeger testified he told Boge that the gas stove and water were left
on unattended in the apartment. Although he spoke with Boge, Jaeger
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testified that “[he] was going to lock [Lewis] out pretty much probably
anyways because [he] couldn’t figure a way to make the people around
her safe.” After he locked her out, he found no reason to go to court to
seek her eviction because, according to his testimony, he “assumed she
was gone.” He did not give the public housing authority notice regarding
the termination of the tenancy because “it seemed like she was going to
be gone and out of everyone’s lives.”
Boge testified about his actions. Boge explained that Jaeger called
him and told him that Lewis was upset with him (Jaeger), that she
wanted her deposit back, and that she was leaving the apartment with
the gas stove turned on and the hot water running to get even with
Jaeger. Boge himself had never observed the water running or the gas
stove on at the apartment and made no further inquires after his
conversation with Jaeger.
Boge stated that he directed the lockout based on the conversation
with Jaeger. Boge explained that his order was pursuant to Dubuque
City Code section 6-6-4(B)(3), which states:
Emergencies: Whenever, in the judgment of the city
manager, an emergency exists which requires immediate
action to protect the public health, safety or welfare, an
order may be issued, without a hearing or appeal, directing
the owner, occupant, operator or agent to take such action
as is appropriate to correct or abate the emergency. If
circumstances warrant, the city manager may act to correct
or abate the emergency under terms of the Iowa statutes for
abatement of public nuisance.
According to Boge, Lewis’s conduct created an “emergency”
requiring “immediate action to protect the public . . . safety” because
“[t]he CO [carbon monoxide] that is emitted from a stove that’s running
can kill somebody.” Boge stated leaving the gas stove unattended creates
a fire hazard because the apartment can fill with gas if the pilot light
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goes out. Boge also thought leaving the water running unattended posed
a risk because, if the sink became plugged, the overflowing water could
cause an electrical short resulting in a fire. Boge further testified that he
believed that the only way to correct or abate the threat posed by Lewis’s
behavior was to change the locks on Lewis’s apartment.
Boge testified that he did not talk with Lewis about the situation.
He indicated that usually the City would post a notice on the door of a
residence that was uninhabitable. He testified that he did not know
whether Lewis would have listened had he talked to her about the
situation.
Two other persons who were tenants in the building at the time of
the events, Patricia Stanford and Ellen Johnson, also testified at trial.
They recounted problems with hot water at their apartments. Johnson
testified that on one occasion, the gas stove was on when Lewis was not
at the apartment.
During trial, Jaeger made a confession of judgment in which he
admitted that he owed the security deposit and was willing to pay $500.
Lewis rejected the offer on the ground that she was entitled to $200 in
liquidated damages for bad faith on top of her $465 security deposit.
Following trial, the district court entered its order. The district
court made factual findings that the plaintiff “often left her gas stove on
and water running for extended periods of time, including while she was
asleep and at least several occasions when she was out of the
apartment.” The district court further determined that Boge ordered
Jaeger to change the locks pursuant to the city ordinance after being
contacted by Jaeger about the situation in early October. The district
court found that “the only feasible way for the City to abate this
emergency was to order that the locks be changed because it is clear that
11
[Lewis] otherwise would have continued to leave the stove on
unattended.” The district court found that in compliance with the order,
Jaeger entered the apartment and changed the locks. Jaeger also placed
Lewis’s property outside the apartment. In light of its factual findings
and its analysis of legal issues, the district court concluded that the city
ordinance was not preempted by the IURLTA, that there was no unlawful
eviction or unlawful entry, and that no conversion occurred. The district
court found that Lewis did not receive any notice of the action by the
City, but did not address the due process issues raised by Lewis.
Finally, the district court held that Lewis was entitled to her security
deposit, but that there was no evidence Jaeger acted in bad faith. Lewis
filed a motion to enlarge the findings to include the due process claims,
which was overruled. 4 Lewis appealed.
Lewis raises eight issues on appeal. Lewis claims that (1) the
ordinance in question is preempted by the IURLTA, codified at Iowa Code
chapter 562A; (2) the City violated the due process provisions of the
Federal and Iowa Constitutions by ordering the lockout without notice or
an opportunity to be heard; (3) the ordinance is void for vagueness under
the Federal and Iowa Due Process Clauses; (4) Jaeger unlawfully evicted
Lewis under the provisions of the IURLTA; (5) Jaeger acted in bad faith
when he failed to return the security deposit; (6) Jaeger converted some
of Lewis’s belongings; (7) Jaeger illegally entered Lewis’s apartment; and
4The district court did not expressly decide the due process issues in its order
overruling the motion to enlarge. We have held that a motion to enlarge findings
preserves error on an issue not decided by the district court even if the district court
does not address the issue following the motion. See Madden v. City of Eldridge, 661
N.W.2d 134, 138 (Iowa 2003); see also Thomas A. Mayes & Anuradha Vaitheswaran,
Error Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake L.
Rev. 39, 70 (2006).
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(8) Jaeger’s confession of judgment at trial was insufficient to preclude
Lewis from recovering costs.
II. Standard of Review.
We review constitutional issues de novo. Hensler v. City of
Davenport, 790 N.W.2d 569, 578 (Iowa 2010). A wrongful eviction action
is at law, and therefore our review is for correction of errors at law. See
Roeder v. Nolan, 321 N.W.2d 1, 3 (Iowa 1982); Wernet v. Jurgensen, 245
Iowa 596, 598, 63 N.W.2d 216, 217 (1954). Issues involving statutory
construction, including claims that a local ordinance is preempted by a
statute, are reviewable for correction of errors at law. Hensler, 790
N.W.2d at 578. The conversion claim is an action at law and reviewable
for errors at law. Murray v. Conrad, 346 N.W.2d 814, 817 (Iowa 1984);
Larsen v. Housh, 259 Iowa 911, 913, 146 N.W.2d 314, 315 (1966).
III. Discussion.
A. Preemption.
1. Introduction. In this case, we consider the interaction of the
IURLTA; Iowa Code section 364.17, which requires cities to develop and
enforce housing codes; and a Dubuque municipal ordinance related to
health and safety in housing. The specific legal question is whether the
Dubuque city ordinance is preempted by the IURLTA.
Under legislative home rule, municipalities are permitted to
exercise their police power without prior legislative approval or
authorization as long as the exercise is not “ ‘inconsistent with the laws
of the general assembly.’ ” City of Davenport v. Seymour, 755 N.W.2d
533, 538 (Iowa 2008) (quoting Iowa Const. art. III, § 38A). The doctrine
of preemption has been developed to determine whether municipal action
is permitted or prohibited by the legislature. Id. We have recognized
three types of preemption: express preemption, implied or “conflict”
13
preemption, and implied field preemption. Id. at 538–39. Lewis argues
that the IURLTA preempts the Dubuque ordinance under theories of
implied conflict and implied field preemption.
Implied conflict preemption occurs “where an ordinance prohibits
an act permitted by statute, or permits an act prohibited by statute.” Id.
at 538. The standard for conflict preemption is demanding and requires
the local law to be “irreconcilable” with the state law. Id. at 539. We
presume the ordinance is valid and, if possible, we will interpret the state
statute harmoniously with the ordinance. Id. Under conflict preemption,
“the conflict must be obvious, unavoidable, and not a matter of
reasonable debate.” Id.; see also Hensler, 790 N.W.2d at 585; Goodell v.
Humboldt Cnty., 575 N.W.2d 486, 493 (Iowa 1998).
Implied field preemption occurs “when the legislature has so
covered a subject by statute as to demonstrate a legislative intent that
regulation in the field is preempted by state law.” Seymour, 755 N.W.2d
at 539. As with implied conflict preemption, the standard in field
preemption is demanding and requires a “clear expression of legislative
intent to preempt a field from regulation by local authorities, or a
statement of the legislature’s desire to have uniform regulations
statewide.” Id.; see also Hensler, 790 N.W.2d at 585–86; Goodell, 575
N.W.2d at 493.
2. Position of the parties. Lewis maintains that the IURLTA
preempts any application of Dubuque City Code section 6-6-4(B)(3) to
this case. The ordinance provides:
Emergencies: Whenever, in the judgment of the city
manager, an emergency exists which requires immediate
action to protect the public health, safety or welfare, an
order may be issued, without a hearing or appeal, directing
the owner, occupant, operator or agent to take such action
as is appropriate to correct or abate the emergency. If
14
circumstances warrant, the city manager may act to correct
or abate the emergency under terms of the Iowa statutes for
abatement of public nuisance.
Dubuque, Iowa, Code § 6-6-4(B)(3). Lewis cites Iowa Code section
562A.33, which provides that “[a] landlord may not recover or take
possession of [a] dwelling unit by action or otherwise . . . except in case
of abandonment, surrender, or as permitted in this chapter.” According
to Lewis, the only way Jaeger could evict her under the circumstances of
this case was to institute an eviction procedure under the IURLTA.
Based on the premise that Jaeger must proceed under the IURLTA
in any eviction, Lewis cites Iowa Code section 562A.27A as the procedure
that Jaeger was required to follow. Iowa Code section 562A.27A provides
that a landlord may bring a proceeding to evict a tenant where the tenant
has created “[a] clear and present danger to the health or safety of other
tenants.” Under Iowa Code section 562A.27A(1), a tenant is entitled to
three days’ notice and an opportunity to contest the eviction in a court
proceeding. According to Lewis, Jaeger and the City circumvented the
procedural requirements of the IURLTA by invoking the alleged authority
of the City under the ordinance. Lewis sees the conflict between the
IURLTA and the ordinance as “obvious, unavoidable, and not a matter of
reasonable debate.” See Hensler, 790 N.W.2d at 585 (citation and
internal quotation marks omitted).
Lewis also claims the doctrine of field preemption prevents the
application of the city ordinance in this case. According to Lewis, the
IURLTA establishes a comprehensive framework for evicting tenants.
Because the IURLTA occupies the field, the ordinance can have no
application under the facts of this case.
Lewis makes a parallel claim under federal law. As a participant in
Section 8 housing, her lease contains an addendum prohibiting eviction
15
without notice or court proceedings. Under the applicable federal
regulations, 24 C.F.R. section 982.310(e)(1)–(2) (2009), a tenant must be
given notice of the grounds for termination during the lease term, and
the Public Housing Authority must be given a copy of the notice before
an action to terminate the lease is commenced. Lewis claims that under
the circumstances, federal law prohibits the application of the ordinance
against her.
Jaeger counters that this court should seek “to interpret the state
law in such a manner as to render it harmonious with the ordinance.”
Goodenow v. City Council, 574 N.W.2d 18, 26 (Iowa 1998). He then cites
two provisions of the IURLTA that bolster his position.
The first provision of the IURLTA cited by Jaeger is Iowa Code
section 562A.28, which provides:
If there is noncompliance by the tenant with section
562A.17, materially affecting health and safety, that can be
remedied by repair or replacement of a damaged item or
cleaning, and the tenant fails to comply as promptly as
conditions require in case of emergency . . . the landlord may
enter the dwelling unit and cause the work to be done in a
competent manner . . . .
Iowa Code § 562A.28. Iowa Code section 562A.17(5) requires a tenant to
“[u]se in a reasonable manner all electrical, plumbing, sanitary, heating
. . . and other facilities and appliances.” These two provisions of the
IURLTA, according to Jaeger, allow him to enter the apartment for the
purpose of abating the hazard caused by Lewis’s conduct.
The second IURLTA provision cited by Jaeger is Iowa Code section
562A.3. The provision states:
Unless displaced by the provisions of this chapter, the
principles of law and equity in this state, including the law
relating to capacity to contract, mutuality of obligations,
principal and agent, real property, public health, safety and
fire prevention, estoppel, fraud, misrepresentation, duress,
16
coercion, mistake, bankruptcy, or other validating or
invalidating cause, shall supplement its provisions.
Id. § 562A.3. Jaeger contends that the ordinance is a public health or
safety and fire prevention measure that does not conflict with, but
supplements, provisions of the IURLTA. 5
The City repeats much of Jaeger’s arguments. The City, however,
asserts that Iowa Code section 562A.27A, upon which Lewis relies, does
not apply to any emergencies, but only to those relating to clearly illegal
activities. According to the City, there is no section of the IURLTA that
deals with a situation such as that presented in this case, and therefore,
no conflict preemption is present.
3. Analysis of implied conflict preemption. Lewis primarily argues
the Dubuque ordinance is irreconcilable with Iowa Code section 562A.33.
Section 562A.33 states:
A landlord may not recover or take possession of the
dwelling unit by action or otherwise, including willful
diminution of services to the tenant by interrupting or
causing the interruption of electric, gas, water or other
essential service to the tenant, except in the case of
abandonment, surrender, or as permitted by this chapter.
Id. § 562A.33 (emphasis added). Lewis asserts that because chapter
562A does not permit a landlord to take possession of an apartment in
order to correct or abate an emergency requiring immediate action, any
ordinance permitting a landlord to do so is irreconcilable with section
562A.33.
While Lewis’s argument has some appeal, we find it ultimately
unpersuasive. The IURLTA generally defines the legal rights and
obligations of a landlord and tenant. See id. § 562A.2(2)(a). Section
5Jaeger in his brief did not address the question of whether the ordinance was
inconsistent with federal law.
17
562A.33 is a remedial provision confining the methods by which a
landlord can take self-help measures.
The ordinance in question, however, does not relate to the legal
relationship of landlords and tenants. The ordinance is an enforcement
mechanism of the Dubuque housing code which permits the City, not the
landlord, to take certain actions to cure an emergency requiring
immediate action. Section 562A.33 in no way restricts the City’s
authority to correct or abate emergencies. Instead, the City’s authority
to adopt and enforce a housing code is controlled by Iowa Code section
364.17.
Iowa Code section 364.17 requires cities with a population of at
least fifteen thousand to adopt a housing code. Id. § 364.17(1)–(2). The
Code further requires cities to “adopt enforcement procedures” which
“include but are not limited to” a number of enumerated enforcement
mechanisms. Id. § 364.17(3)(a). The precise ordinance involved in this
case, of course, is not specifically mandated, but it is clear that the
general assembly expressly granted cities the authority to promulgate
enforcement mechanisms of their respective housing codes. 6 The power
to enforce housing codes relating to health and safety is traditionally
among the core responsibilities of municipal government. We cannot
easily conclude that the legislature intended to preempt this traditional
local government responsibility through the IURLTA.
Indeed, our caselaw suggests that the relationship between the
city’s police power over health and safety matters related to housing and
landlord/tenant law is symbiotic rather than antagonistic. In the
seminal case of Mease v. Fox, 200 N.W.2d 791, 796–97 (Iowa 1972), we
6For a history of Iowa housing code legislation, see Russell E. Lovell II, The Iowa
Uniform Residential Landlord and Tenant Act and the Iowa Mobile Home Parks
Residential Landlord and Tenant Act, 31 Drake L. Rev. 253, 256–61 (1981).
18
found that a residential lease contained an implied warranty of
habitability in part in order to give “overdue recognition . . . for minimum
housing standards” established by municipalities and to encourage
municipal inspections and enforcement by providing tenants with the
right to withhold rent when the implied warranty of habitability was
breached. The passage of the IURLTA in 1978 was, in part, a codification
of Mease. See Russell E. Lovell II, The Iowa Uniform Residential Landlord
and Tenant Act and the Iowa Mobile Home Parks Residential Landlord and
Tenant Act, 31 Drake L. Rev. 253, 263 (1981).
Shortly after the passage of the IURLTA, we decided Wilson v.
Nepstad, 282 N.W.2d 664 (Iowa 1979). In Nepstad, we allowed a tenant
to sue the city for negligent inspections related to fire safety. Nepstad,
282 N.W.2d at 673–74. The new tort liability clearly provided incentive
for more effective enforcement of Iowa housing codes. While Nepstad did
not directly involve the relationship between landlords and tenants, it did
emphasize the importance of effective enforcement of local housing codes
related to health and safety. See id.
Lewis correctly points out that, as construed, the City’s action
resulted in Lewis being displaced from her apartment. An effect of this
was that the landlord came into the possession of the apartment through
means other than by abandonment, surrender, or as expressly provided
under chapter 562A. Yet chapter 562A is not to be viewed in isolation.
Iowa Code section 562A.3 states:
Unless displaced by the provisions of this chapter, the
principles of law and equity in this state, including the law
relating to capacity to contract, mutuality of obligations,
principal and agent, real property, public health, safety and
fire prevention, estoppel, fraud, misrepresentation, duress,
coercion, mistake, bankruptcy, or other validating or
invalidating cause, shall supplement its provisions.
19
Iowa Code § 562A.3 (emphasis added). Housing codes, and their
enforcement mechanisms, certainly relate to public health, safety, and
fire prevention. Thus, while chapter 562A does not allow a landlord,
acting alone, to take possession of an apartment under the
circumstances presented here, chapter 562A does allow the city to take
appropriate measures to correct or abate an emergency that requires
immediate action, even if abatement has the derivative effect of
displacing tenants. For example, the IURLTA would not prevent the City
of Dubuque from ordering tenants removed from a building with an
unsound structure that may crumble at any moment. Thus, the housing
code and enforcement provisions found in city ordinances generally
supplement the IURLTA.
A narrower issue, however, is whether a city, which generally may
exercise police powers without offending the IURLTA, may enforce its
order through the owner of the property who also happens to be a
landlord. In other words, in order to avoid conflict with the IURLTA,
must a city enforce its ordinance directly? We think not. It would
elevate form over substance to suggest that a city may have its workers
change the locks, but that a city lacks authority to direct the owner of
property who happens to be a landlord to do so. There is ample
authority for the proposition that when a landlord takes action pursuant
to an order of a public official, a breach of the covenant of quiet
enjoyment does not occur. See, e.g., Zwerin v. Geiss, 237 N.Y.S.2d 280,
284 (Civ. Ct. 1963) (reentry of apartment by landlord required by public
authorities does not subject landlord to action for disturbance or
interference with leasehold interest); Dunn v. Mellon, 23 A. 210, 210 (Pa.
1892) (landlord not liable to tenant for interference of possession of
premises where city orders landlord to make building alterations);
20
Sunderman v. Warnken, 29 N.W.2d 496, 499 (Wis. 1947) (landlord entry
to make repairs required by public officials not a breach of covenants);
1 Herbert Thorndike Tiffany, A Treatise on the Law of Landlord and
Tenant § 79(c)(4), at 526 (1912) (disturbance by acts of sovereign do not
breach covenant of quiet enjoyment). We think the same reasoning
applies when a claim is made that the landlord violates provisions of the
IURLTA when acting pursuant to an order by municipal authorities.
Because we do not find an obvious or unavoidable conflict between the
IURLTA and the ordinance as applied in this case, we reject Lewis’s
implied conflict preemption claim. 7
4. Implied field preemption claim. Lewis relies on Iowa Code
section 562A.27A, which permits a landlord to recover possession of an
apartment where the tenant “has created or maintained a threat
constituting a clear and present danger to the health or safety of other
tenants.” Iowa Code § 562A.27A(1). Lewis argues section 562A.27A(1)
“exclusively addresses and occupies the field of eviction of tenants where
the tenant allegedly has created a ‘clear and present danger to the health
or safety of other tenants.’ ” 8 As noted above, however, the ordinance at
issue does not involve legal remedies between landlords and tenants, but
instead is part of Dubuque’s housing code enforcement scheme. The
Iowa Code explicitly authorizes cities to breathe life into their housing
codes through enforcement measures. The IURLTA simply does not
7We come to the same conclusion for the same reasons regarding Lewis’s claim
that Section 8 preempts the Iowa law. Nunn, 684 N.W.2d at 228. The applicable
regulation cited by Lewis prohibits the “owner” from evicting a Section 8 tenant without
notice and a hearing. 24 C.F.R. § 982.310(f). We have concluded, however, that
Jaeger’s action in response to an order by a city official is not an eviction by him. The
same reasoning applies with respect to Lewis’s Section 8 claim.
8Lewis could also cite section 562A.27(1), which allows a landlord to recover
possession of a dwelling for noncompliance with section 562A.17 “materially affecting
health and safety.”
21
manifest a clear expression of the legislature’s intent to preempt the field
of city housing codes and enforcement. Indeed, Iowa Code section
562A.3 suggests the opposite. We therefore reject Lewis’s field
preemption claim.
B. Procedural Due Process Claim. Lewis argues the City violated
the due process provisions of the Iowa and Federal Constitutions by
issuing the lockout order without notice and an opportunity to be heard. 9
The City responds by citing a number of cases that stand for the
proposition that in emergency situations, property owners are not
entitled to prior notice and hearing. 10
Under procedural due process, notice and an opportunity to be
heard are required when a person’s property interests are at stake. War
Eagle Vill. Apartments v. Plummer, 775 N.W.2d 714, 719 (Iowa 2009); F.K.
v. Iowa Dist. Ct., 630 N.W.2d 801, 808 (Iowa 2001). We employ a two-
step analysis. First, we determine whether a person has been deprived of
a protected liberty or property interest. War Eagle, 775 N.W.2d at 719;
F.K., 630 N.W.2d at 808. If so, we address what process is due for the
specific interest. War Eagle, 775 N.W.2d at 719; F.K., 630 N.W.2d at
808.
9Lewis does not claim that Boge’s order to Jaeger was not authorized by the
ordinance, nor does Lewis claim that the City’s action in this case was inconsistent with
state law. See, e.g., Iowa Code § 364.17(3)(g) (enforcement procedures shall be designed
to improve housing conditions rather than displace persons from their homes).
10The parties have not claimed the due process provisions of the Iowa
Constitution should be analyzed differently than the Due Process Clause of the Federal
Constitution. Under these circumstances, we ordinarily treat the substantive standards
under the Iowa Constitution the same as those developed under the Federal
Constitution. Even though we ordinarily treat the substantive standards the same
when the parties do not suggest a different approach, we reserve the right to apply the
standards in a different fashion than the federal caselaw. See Simmons v. State Pub.
Defender, 791 N.W.2d 69, 76 n.3 (Iowa 2010); War Eagle Vill. Apartments v. Plummer,
775 N.W.2d 714, 719 (Iowa 2009); State v. Bruegger, 773 N.W.2d 862, 883 (Iowa 2009).
22
Lewis has been deprived of a property interest. In War Eagle, we
held a tenant’s continued residence in his or her home implicates a
significant property interest. War Eagle, 775 N.W.2d at 719 (citing
Greene v. Lindsey, 456 U.S. 444, 450–51, 102 S. Ct. 1874, 1878, 72
L. Ed. 2d 249, 256 (1982)). Although the defendants assert the lockout
was not intended to be an eviction, the objective facts suggest otherwise.
The City ordered Jaeger to change the locks of the apartment. Further,
even if the lockout was intended to be temporary, Lewis was nevertheless
deprived of a property interest. See Fuentes v. Shevin, 407 U.S. 67, 84–
85, 92 S. Ct. 1983, 1996, 32 L. Ed. 2d 556, 572 (1972) (“But it is now
well settled that a temporary, nonfinal deprivation of property is
nonetheless a ‘deprivation’ in terms of the Fourteenth Amendment.”); see
also Flatford v. City of Monroe, 17 F.3d 162, 167 (6th Cir. 1994) (stating
due process requires notice and hearing prior to eviction). Lewis was
therefore entitled to due process protection.
For more than a century the central meaning of
procedural due process has been clear: Parties whose rights
are to be affected are entitled to be heard; and in order that
they may enjoy that right they must first be notified.
Fuentes, 407 U.S. at 80, 92 S. Ct. at 1994, 32 L. Ed. 2d at 569 (citation
and internal quotation marks omitted); see War Eagle, 775 N.W.2d at
719 (“[W]hen an individual’s property interests are at stake, that person
is entitled to adequate notice and a reasonable opportunity to be
heard.”); State v. Seering, 701 N.W.2d 655, 665–66 (Iowa 2005) (“At the
very least, procedural due process requires notice and opportunity to be
heard in a proceeding that is adequate to safeguard the right for which
the constitutional protection is invoked.”) (citation and internal quotation
marks omitted). While predeprivation notice and opportunity to be heard
is ordinarily required before eviction, see, e.g., War Eagle, 775 N.W.2d at
23
720; Flatford, 17 F.3d at 167, postdeprivation notice and opportunity to
be heard may be adequate in “extraordinary situations,” see Fuentes, 407
U.S. at 90, 92 S. Ct. at 1999, 32 L. Ed. 2d at 575. As explained by the
United States Supreme Court, postdeprivation notice is adequate when
(1) “the seizure has been directly necessary to secure an important
governmental or general public interest”; (2) “there has been a special
need for very prompt action”; and (3) “the State has kept strict control
over its monopoly of legitimate force; the person initiating the seizure has
been a government official responsible for determining . . . that it was
necessary and justified in the particular instance.” Id. at 91, 92 S. Ct. at
2000, 32 L. Ed. 2d at 576; see also Baker v. City of Iowa City, 260
N.W.2d 427, 431 (Iowa 1977) (applying Fuentes).
Although the City provided notice to Jaeger, it is undisputed that
the City failed to even attempt to provide notice to Lewis. Boge did not
place a notice on the door of the apartment, did not mail the notice to
Lewis, did not inquire of Jaeger how to contact Lewis, and did not
instruct Jaeger to take any steps to ensure notice to Lewis. In short, the
means employed by Boge—posttermination notice on Jaeger days after
the fact—were not such that “one desirous of actually informing the
absentee might reasonably adopt to accomplish [notice].” War Eagle, 775
N.W.2d at 720 (citation and internal quotation marks omitted).
The City and Jaeger nonetheless argue that “notice was not
required in this case because the situation created by . . . Lewis was
deemed to be an emergency by the city manager. Under Iowa law, due
process requirements do not apply in such emergency circumstances.”
The City cites State v. Strayer, 230 Iowa 1027, 299 N.W. 912 (1941), and
Walker v. Johnson County, 209 N.W.2d 137 (Iowa 1973), in support of its
argument.
24
Yet here the action of the City did more than abate the emergency
situation. Once the lockout was achieved, the nuisance was abated. But
the lockout also deprived Lewis of her leasehold interest in her
apartment on an ongoing basis. In the event of emergencies, we regard
the law as well established that summary administrative action is
appropriate. Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S.
264, 299–301, 101 S. Ct. 2352, 2372–73, 69 L. Ed. 2d 1, 30–31 (1981);
Gorra Realty, Inc. v. Jetmore, 510 A.2d 440, 446 (Conn. 1986). But this
justifies only the imposition of the lockout and not the maintenance of
the lockout on an ongoing basis. Because of the ongoing effects of the
lockout on her property right, we believe Lewis is entitled to a
postdeprivation notice and an opportunity to be heard.
Before we find a due process violation based on lack of notice and
hearing, however, we must consider the fact that Lewis elected to
terminate her lease on October 9. While there was certainly a right to a
prompt postdeprivation hearing, Lewis makes no claim that she was
entitled to a postdeprivation hearing the day after her eviction as a
matter of law. Thus, even if she were entitled to a postdeprivation
hearing, she abandoned that claim by terminating her property interest
in the lease. Under these circumstances, we find the due process claim
is moot. See Smith v. Bd. of Cnty. Comm’rs, 891 P.2d 88, 92 (Wyo. 1995)
(holding due process claim of terminated employee was moot where
plaintiff voluntarily resigned position).
C. Void for Vagueness.
1. Introduction. Lewis also argues the ordinance violates due
process because the term “emergency” is too vague. 11 Citing Grayned v.
11As with procedural due process, this challenge is brought under both the Iowa
and Federal Constitutions. Because Lewis does not suggest that the Iowa Constitution
25
City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972),
Lewis asserts that no person of ordinary intelligence would be able to
determine what conduct is lawful. Further, according to Lewis, the
ordinance, which states that whether an emergency is present rests in
“the judgment of the city manager [or his delegate],” fails to provide
sufficient guidelines to limit the discretion of the City in enforcing the
ordinance.
The City responds by asserting that a person challenging a statute
as void for vagueness carries a heavy burden to overcome a presumption
of constitutionality. See State v. Bauer, 337 N.W.2d 209, 210 (Iowa
1983). The City further asserts that vagueness of the ordinance can be
avoided by reasonable construction. See State v. Duncan, 414 N.W.2d
91, 95 (Iowa 1987).
In considering vagueness challenges, we have emphasized three
theoretical underpinnings to the doctrine. State v. Nail, 743 N.W.2d 535,
539 (Iowa 2007). First, a statute cannot be so vague that a person of
ordinary understanding would not know that their conduct is prohibited.
Id. Second, the statute must not be so vague as to encourage arbitrary
or discriminatory enforcement. Id. Finally, a statute cannot sweep so
broadly as to prohibit substantial amounts of constitutionally protected
speech. Id.; see also Formaro v. Polk Cnty., 773 N.W.2d 834, 840 (Iowa
2009). Because free speech is not an issue in this case, we address the
notice and arbitrary enforcement components of vagueness analysis.
2. Vagueness based on lack of notice. We have had several
occasions to address as-applied vagueness challenges to city ordinances
_______________________
should be interpreted differently, we assume the state and federal standards are
similar. See Bruegger, 773 N.W.2d at 883. Even so, we reserve the right to apply the
standard under the Iowa Constitution in a more rigorous fashion than federal
precedents. Id.; State v. Feregrino, 756 N.W.2d 700, 704 n.1 (Iowa 2008).
26
on grounds of lack of notice. A city ordinance is unconstitutionally
vague under the due process clause “when its language does not convey
a sufficiently definite warning of the proscribed conduct.” Devault v. City
of Council Bluffs, 671 N.W.2d 448, 451 (Iowa 2003). We articulated the
legal test for notice required to overcome a vagueness challenge in Knight
v. Iowa District Court, 269 N.W.2d 430, 432 (Iowa 1978), in which we
stated: “If the statute’s meaning is fairly ascertainable by reliance on
generally accepted and common meaning of words used, or by reference
to the dictionary, related or similar statutes, the common law or previous
judicial constructions, due process is satisfied.” An ordinance is not
unconstitutionally vague for lack of notice merely because a key word is
undefined. Blinder, Robinson & Co. v. Goettsch, 403 N.W.2d 772, 773
(Iowa 1987).
Given the factual findings of the district court, which are generally
not challenged in this appeal, 12 we reject Lewis’s vagueness claim on
notice grounds. An “emergency” is defined as “an unforeseen
combination of circumstances or the resulting state that calls for
immediate action,” and “an urgent need for assistance or relief.” Merriam
Webster’s Collegiate Dictionary 377 (10th ed. 2002). The emergency
under the ordinance must relate to public safety in the context of
housing. A person of ordinary understanding would know that
repeatedly leaving an ignited gas stove unattended for seven or eight
hours at a time poses an imminent threat to the safety of the tenants in
an apartment building. The danger is exacerbated when a tenant
demonstrates repeated unwillingness to abate the threat at the request of
the landlord. Further, the uncontroverted testimony of the housing
12Lewis does challenge the factual finding that the withholding of the security
deposit by Jaeger was not in bad faith.
27
inspector supports the proposition that leaving running water and a gas
stove on unattended for several hours creates a fire hazard and a risk of
carbon monoxide that endangers the lives of all those in the building.
See People v. Plane, 78 Cal. Rptr. 528, 530 (Ct. App. 1969) (declaring it
beyond argument that landlord, concerned and responsible for the safety
of tenants, knowing that renter left apartment unexpectedly with
reasonable possibility of an unattended lighted stove, may enter
apartment to ensure safety). Under these circumstances, we cannot
conclude that a person of ordinary understanding would not know that
Lewis’s conduct, as determined by the factual findings of the district
court, created an emergency that required immediate action to protect
public safety. See State v. Doe, 231 P.3d 1016, 1030 (Idaho 2010)
(“emergency errand or other legitimate business” not unconstitutionally
vague).
3. Vagueness based upon potential for arbitrary or discriminatory
conduct. There is, however, a second important prong of void for
vagueness doctrine, namely, to prevent the vesting of virtually unlimited
discretion in governmental officials. Grayned, 408 U.S. at 108–09, 92
S. Ct. at 2298–99, 33 L. Ed. 2d at 227–28. This second prong is more
problematic in this case.
The term “emergency” is potentially very broad. On top of the
elastic term “emergency,” the ordinance provides that an emergency
exists according to “the judgment” of city officials. There are no criteria
in the ordinance for the determination of emergency. The ordinance
explicitly states that there is no right of appeal. Further, the ordinance
does not detail the enforcement remedies that might be available. Read
literally, you could not fight city hall under the ordinance.
28
The fundamental question before us is whether we can, as the City
suggests, save this ordinance through reasonable construction or
whether the elastic terms render it fatally flawed. There are, of course,
competing principles at stake here. On the one hand, as the City rightly
observes, broadly framed statutes may be saved from constitutional
defect through judicial construction. On the other hand, courts are not
legislatures. We are not in the business of rewriting statutes or
ordinances.
There are a few cases standing for the proposition that when a
legislative enactment fails to establish any meaningful standards, courts
should not blue pencil them into the law. For example, in United Nuclear
Corp. v. Cannon, 553 F. Supp. 1220, 1233, 1235 (D.R.I. 1982), the court
held that a state statute requiring the posting of a “Ten Million Dollar
($10 million) bond” to cover the cost of “decontamination” was hopelessly
vague and could not be rescued by judicial construction. See also S. of
Second Assocs. v. Georgetown, 580 P.2d 807, 811 (Colo. 1978) (historic
preservation ordinance fails to provide sufficient standards to determine
if location is within historic preservation area); Chronis v. State ex rel.
Rodriguez, 670 P.2d 953, 957–58 (N.M. 1983) (clause which states that
action may be taken when “public health, safety, and welfare requires
emergency action” held vague under New Mexico Constitution). As a
general matter, however, we have embraced the notion that judicial
construction may save an otherwise vague statute from constitutional
infirmity. Nail, 743 N.W.2d at 540.
In looking at the ordinance in question, there is good reason to use
an elastic term such as “emergency.” In order to protect public safety,
the ordinance must necessarily use language that is sufficiently flexible
to cover a wide variety of factual situations that may arise. We do not
29
require a legislative body to define every term. The ordinary definition of
a broad term like “emergency” is available to limit the reach of the
ordinance. See People v. McKnight, 617 P.2d 1178, 1187–88 n.9 (Colo.
1980) (citing Webster’s Seventh New Collegiate Dictionary definition of
“emergency” in rejecting due process attack on sentencing provision
related to automobile statute); Doe, 231 P.3d at 1030 (using the
definition of “emergency” in Webster’s Third New International Dictionary
as “an unforeseen combination of circumstances or the resulting state
that calls for immediate action” to limit the scope of a statute). Further,
the context of the ordinance demonstrates that the emergencies
referenced are limited to those involving health and safety issues in
housing.
In addition, although a statute employing broad terms is obviously
more susceptible to being applied in an arbitrary or discriminatory
fashion than one containing detailed language, an ordinance may be
narrowed through an implied term of objective reasonableness. For
example, in Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425,
438–39 (Tex. 1998), the court implied an objective reasonableness
standard to narrow the scope of a disciplinary rule that prohibited an
attorney from making comments “calculated . . . to harass or embarrass
the juror or to influence his actions.” The court explained that the
objective reasonableness standard assuaged vagueness concerns and
reduced the danger of arbitrary enforcement. Benton, 980 S.W.2d at
439.
In the end, we believe that in light of the application of the
commonly understood definition of emergency, the implied requirement
that the judgment of the city manager or his delegate be exercised in an
objectively reasonable fashion, and with the due process guarantee of
30
notice and an opportunity to be heard, the ordinance survives a void-for-
vagueness due process challenge.
D. Unlawful Eviction by Jaeger. Lewis next argues she was
unlawfully evicted by Jaeger. Lewis argues Jaeger unlawfully evicted her
because he failed to comply with Iowa Code section 562A.27A(1), which
she says provides the exclusive means to evict a tenant posing a clear
and present danger to other tenants. Lewis also asserts there was no
emergency situation that would justify eviction under section
562A.27A(1).
As discussed above, however, the ordinance permits the city
manager, or his designee, to order an owner to correct or abate an
emergency that requires immediate action. Depending on the
circumstances, the ordinance may require residents to be displaced from
their homes while the emergency is resolved. In this case, the City
ordered Jaeger to change the locks on Lewis’s apartment. Jaeger,
whether he agreed or disagreed with the City’s decision, had no choice in
the matter. 13 Jaeger therefore did not unlawfully evict Lewis by carrying
out the City’s order. 14 See Zwerin, 237 N.Y.S.2d at 284; Dunn, 23 A. at
210–11; Sunderman, 29 N.W.2d at 498.
E. Unlawful Entry by Jaeger and Other Tenants. Lewis claims
Jaeger and other tenants unlawfully entered the apartment on three
13Jaeger testified that he would have locked Lewis out in any event, but the
record shows that Jaeger first called the City, was orally ordered by Boge to lock Lewis
out, and then proceeded to do so. Although he might well have locked her out in any
event, he was acting pursuant to an order by Boge to do so.
14Lewis makes no allegation that the City erroneously concluded an emergency
existed or otherwise exceeded its authority under the ordinance. Whether the City
complied with the requirements of the ordinance, therefore, is not at issue. See Sell v.
City of Columbus, 47 F. App’x 685, 697–98 (6th Cir. 2002) (holding city official exceeded
scope of similar ordinance by ordering emergency eviction, in absence of hearing,
without first determining whether postponing the eviction would jeopardize health and
safety).
31
occasions. She cites the entry by Jaeger when he entered the apartment
pursuant to the order of the City but also removed her belongings from
the apartment and placed them outside the apartment building. She
also claims that on two occasions Jaeger allowed another renter, Ellen
Johnson, to enter the apartment without her permission. The district
court concluded that there were no unlawful entries.
Ordinarily, a lease vests in a tenant the right of exclusive
possession, which precludes entry by the landlord except for limited
purposes. Milton R. Friedman, Friedman on Leases § 4:3.1, at 4–21
(Patrick A. Randolph, Jr. ed., 5th ed. 2012). Under the IURLTA, a
“landlord may enter the dwelling unit without [the] consent of the tenant
in case of emergency.” Iowa Code § 562A.19(2). The landlord, however,
“shall not abuse the right of access or use it to harass the tenant.” Id.
§ 562A.19(3). Except in cases of emergency or when it is impractical, the
landlord is directed to give the tenant twenty-four hour notice before
entering. Id. Aside from the Code section, the landlord does not have
another right of access “except by court order, and as permitted by
sections 562A.28 and 562A.29, or if the tenant has abandoned or
surrendered the premises.” Id. § 562A.19(4).
The order from the City authorized Jaeger to lock Lewis out of her
apartment. But there is nothing in the order that authorized Jaeger to
enter the apartment for the purpose of seizing her belongings and
removing them from the premises. We have upheld landlord entry under
Iowa Code section 562A.29 for a limited purpose of assisting police in
investigating a potential burglary. State v. Koop, 314 N.W.2d 384, 387
(Iowa 1982). Even assuming that Jaeger’s actions in changing the lock
on the apartment pursuant to an order by the City may not have given
rise to a violation of the IURLTA, his entry into the apartment to gather
32
Lewis’s belongings and remove them from the premises amounts to
action well beyond the scope of entries permitted by Iowa Code section
562A.19 and the order of the City and constitutes an abuse of the right
of entry. See Reichhold v. Sommarstrom Inv. Co., 256 P. 592, 593 (Cal.
Ct. App. 1927) (landlord’s authority to enter premises and put it in safe
condition did not authorize actions exceeding the scope of those ordered
by city inspector); Kalmas v. Wagner, 943 P.2d 1369, 1373 (Wash. 1997)
(stating a cause of action arises when property manager exceeds the
scope of entrance permitted by statute); see also Stankiewicz v. Hawkes,
369 A.2d 253, 253–54 (Conn. Super. Ct. 1976) (where tenant absent
from apartment to allow landlord to abate health hazard, landlord could
not take tenant’s possessions and pile them in backyard, even though
landlord considered the property rags and junk). 15 For this abusive
entry, we conclude that based upon the undisputed facts, Lewis has
established a violation of the IURLTA. See Iowa Code § 562A.19(3).
Under Iowa Code section 562A.35(2), Lewis is entitled to recovery of
actual damages not less than an amount equal to one month’s rent and
reasonable attorney fees.
Next, Lewis claims that by allowing other tenants into her
apartment, Jaeger violated section 562A.19. The record established that
the only tenant other than Lewis to enter Lewis’s apartment was
Johnson. Johnson testified she was in Lewis’s apartment twice without
permission from Lewis.
The defining characteristic of a leasehold interest is the tenant’s
right to possession of the premises. Nathan Lane Assocs., L.L.P. v.
15We do not address the issue of a landlord’s duty with respect to tenant
property after a lawful eviction. Khan v. Heritage Prop. Mgmt., 584 N.W.2d 725, 729
(Iowa Ct. App. 1998) (finding that a landlord generally has no duty to store or maintain
a tenant’s personal property after a tenant has been lawfully evicted).
33
Merchants Wholesale of Iowa, Inc., 698 N.W.2d 136, 139 (Iowa 2005). A
tenant’s right to possession is generally exclusive, and the tenant, not
the landlord, has legal control of the leased premises. Bernet v. Rogers,
519 N.W.2d 808, 811 (Iowa 1994).
Yet, Lewis has not brought a trespass case against Johnson.
Instead, Lewis claims that by authorizing Johnson to enter Lewis’s
apartment, an unlawful entry occurred under Iowa Code sections
562A.19 and 562A.35. While Johnson testified that on one occasion she
went with Jaeger to Lewis’s apartment after Jaeger had knocked on the
door of Johnson’s apartment, Johnson later on cross-examination
testified that she entered the apartment on her own without obtaining
Jaeger’s permission. Although there is evidence in the record to support
Lewis’s theory of unlawful entry with respect to one of the entries, we
cannot say the district court erred as a matter of law in concluding that
the plaintiff failed to prove Jaeger authorized the entry of Johnson.
Therefore, Jaeger is not liable for any claimed unlawful entry arising from
Johnson’s intrusion into Lewis’s apartment. 16
F. Bad Faith Retention of Security Deposit. It is undisputed
that Jaeger failed to return Lewis’s rental deposit in the amount of $465.
Iowa Code section 562A.12(3) requires a landlord to return a tenant’s
rental deposit or provide a written statement showing the specific reason
for withholding the deposit within thirty days of the receipt of the
tenant’s mailing address or delivery instructions. Iowa Code section
562A.12(7) states:
7. The bad faith retention of a deposit by a landlord,
or any portion of the rental deposit, in violation of this
16Nothing in this opinion should be construed as preventing a landlord from
reasonably permitting workers access to an apartment for the purpose of abating a
potential hazard or for any other lawful purpose.
34
section shall subject the landlord to punitive damages not to
exceed two hundred dollars in addition to actual damages.
The burden is on the tenant to show the landlord held the security
deposit in bad faith before punitive damages will be awarded. Roeder v.
Nolan, 321 N.W.2d 1, 4 (Iowa 1982). Bad faith can be established by
circumstantial or direct evidence. Id. at 5.
The district court found that Jaeger owed the security deposit to
Lewis, but did not act in bad faith in failing to pay it. The only basis
Jaeger offered for failing to pay the security deposit at trial was lack of
knowledge regarding where Lewis resided.
We recognize that there is authority for the proposition that when a
tenant does not leave a forwarding address and the landlord cannot find
the tenant, there is no basis for an award of a penalty. Smith v. Callico,
562 So. 2d 1102, 1105 (La. Ct. App. 1990) (failure of landlord to send
accounting for repairs of premises justifying retention of security deposit
was not willful violation of statute where lessee did not provide
forwarding address); Alston v. Thomas, 391 A.2d 978, 980 (N.J. Essex
County Ct. 1978) (where landlord does not know forwarding address and
cannot find tenant in the exercise of reasonable diligence, statutory
requirements to give notice to tenant related to security deposit are
excused), overruled on other grounds by Reilly v. Weiss, 966 A.2d 500,
506 n.4 (N.J. Sup. Ct. App. Div. 2009).
On the other hand, the court in Prescott v. Makowski, 458 N.E.2d
1281, 1283 (Ohio Ct. App. 1983), held that, under a statute similar to
Iowa Code section 562A.12, when a tenant does not provide a forwarding
address, but the landlord has actual knowledge of the tenant’s
subsequent residence, the landlord is required to refund the security
deposit. According to the Prescott court, the state statutory requirement
35
that the tenant provide a forwarding address was solely designed to
ensure that the landlord knew where to send the deposit. Prescott, 458
N.E.2d at 1283. Further, in an unreported case, an Ohio appellate court
has held that a current business address, known to the landlord, has
been sufficient to require payment of the security deposit to the tenant at
that address. Smitson v. Zeches, No. 92AP-1773, 1993 WL 317243, at
**2–3 (Ohio Ct. App. Aug. 17, 1993).
In this case, Jaeger claimed he did not know where to send the
security deposit as no address was given to him during the litigation. We
accept that Jaeger did not know where Lewis was currently residing. It
is undisputed, however, that Jaeger received a demand letter by Lewis’s
legal counsel shortly after the eviction, on letterhead, setting a deadline
for him to pay the security deposit to Lewis. The letter plainly amounts
to “delivery instructions” with respect to the security deposit under Iowa
Code section 562A.12(3). Further, during the entire time when this
matter was pending in Dubuque County, Jaeger was aware that Lewis
was represented by counsel.
Yet, Jaeger made no effort to pay the security deposit by providing
it to Lewis’s attorney. He knew from events leading up to October 8 that
Lewis needed the funds for a security deposit on a new apartment. He
knew that, as a person receiving Section 8 assistance, Lewis was a
person of limited means. He nevertheless withheld the security deposit.
Instead of paying it, his lawyer tried to offer to confess what was plainly
owed as a strategy to shift the costs of the litigation.
Under these undisputed facts, we conclude that Jaeger knew he
owed Lewis the money, knew that Lewis had a pressing need for the
money, had no plausible reason for not paying it, and simply ignored the
demand by Lewis’s counsel. While we recognize that the district court’s
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factual finding on bad faith must be affirmed if supported by substantial
evidence, we conclude that the undisputed facts require us to reverse the
district court and find that the refusal to pay the security deposit was
done in bad faith. See Tammen v. Page, 584 S.W.2d 914, 917 (Tex. Civ.
App. 1979) (bad faith retention of security deposit under landlord and
tenant statute found where attorney for tenant wrote demand letter that
provided attorney’s address). As a result, Lewis, in addition to the return
of the $465 security deposit ordered by the district court, is entitled to
punitive damages not to exceed $200, any actual damages shown on the
present record, and may be entitled to an award of reasonable attorney
fees. Iowa Code § 562A.12(7)–(8).
G. Conversion. Conversion is “the wrongful control or dominion
over another’s property contrary to that person’s possessory right to the
property. The wrongful control must amount to a serious interference
with the other person’s right to control the property.” Condon Auto Sales
& Serv., Inc. v. Crick, 604 N.W.2d 587, 593 (Iowa 1999) (citations
omitted). At trial, Lewis alleged Jaeger did not return some of her
belongings after her eviction, including $450 earrings, a blanket, and a
DVD player. Jaeger testified, however, that he returned all Lewis’s
possessions when he changed the locks to the apartment. Stating that
Jaeger was more credible on the issue, the district court found that he
did not convert any of Lewis’s possessions. After reviewing the record at
trial, we find no reason to disturb the district court’s findings on the
conversion issue.
H. Confession of Judgment. During opening statements,
Jaeger’s attorney made an oral offer to confess judgment in the amount
of $500 for the rental deposit. Lewis’s attorney rejected the offer on the
grounds that Jaeger owed an additional $200 for bad faith retention of
37
the security deposit. In its decision, the district court awarded Lewis
$465 for the rental deposit, but ordered Lewis to pay the court costs in
light of Jaeger’s offer to confess judgment for $500. On appeal, Lewis
asserts Jaeger’s offer to confess judgment was insufficient because
section 677.7 of the Iowa Code requires the offer to be made in writing.
See Iowa Code § 677.7.
Iowa Code section 677.4, however, states, “After an action for the
recovery of money is brought, the defendant may offer in court to confess
judgment for part of the amount claimed, or part of the causes involved
in the action.” A confession under section 677.4 must be made when the
plaintiff is present. Lingo v. Belt, 198 Iowa 1276, 1278, 201 N.W. 5, 5
(1924). Before opening statements, the court observed that Lewis was
present with her attorney. In any event, no issue has been made of
Lewis’s presence during the offer. See Sheer Constr., Inc. v. W. Hodgman
& Sons, Inc., 326 N.W.2d 328, 333 (Iowa 1982); see also Manning v. Irish,
47 Iowa 650, 652 (1878) (courts may, in absence of evidence to the
contrary, presume plaintiff’s presence). While Jaeger may not have
complied with section 677.7, Jaeger did make a sufficient offer to confess
judgment under section 677.4.
However, based on the conclusions in this opinion, it is clear that
the offer to confess judgment in the amount of $500 was below the
amount to which Lewis is entitled. Therefore, the offer to confess has no
effect, and Lewis cannot be ordered to pay court costs as a result of the
offer.
IV. Conclusion.
As indicated above, we affirm the district court’s ruling that the
city ordinance is not preempted by the IURLTA and that there has been
no violation of federal law in connection with the action of Jaeger or the
38
City. We further find that the ordinance is not unconstitutionally vague
and that any procedural due process claim is moot. We conclude,
however, that Jaeger violated the IURLTA when he removed the
belongings of Lewis from the apartment. We also conclude that Jaeger’s
withholding of Lewis’s security deposit was a bad faith violation of the
IURLTA. As a result, the judgment of the district court is affirmed in part
and reversed in part. The case is remanded for further proceedings in
order to determine actual damages not less than an amount equal to one
month’s rent for the unlawful entry violation, to award bad faith damages
on the withholding of the security deposit, and to address the question of
an award of attorney fees and costs for the violations of the IURLTA.
AFFIRMED IN PART, REVERSED IN PART, AND CASE
REMANDED.