author: STREIT, Justice. CARTER, Justice

text:
    STATE of Iowa ex rel. Thomas J. MILLER, Attorney General of Iowa, Appellant, v. CUTTY’S DES MOINES CAMPING CLUB, INC., Appellee.
    No. 03-0934.
    Supreme Court of Iowa.
    April 1, 2005.

      Thomas J. Miller, Attorney General, and Kathleen Keest and Benjamin Bellus, Assistant Attorneys General, for appellant.
    David A. Tank of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellee.
   STREIT, Justice.

A Des Moines area campground club waged a tough campaign to compel hundreds of ex-campers to pay it dues. The Attorney General, claiming the campground club was engaging in an “unfair practice” in violation of Iowa’s Consumer Fraud Act, filed suit to stop the collection efforts. The district court dismissed the Attorney General’s case on the campground club’s motion for summary judgment, and the court of appeals affirmed. We conclude dismissal was not proper. We vacate the decision of the court of appeals, reverse the district court judgment, and remand for further proceedings.

I. Facts and Prior Proceedings

A. The Development of the Campground

In 1980, Cutty’s Incorporated (“the Developer”) developed a private recreational vehicle park and campground resort (“campground”) on approximately eighty acres of land near Des Moines. For six years, the Developer purported to sell “1/3000 undivided interests” in the property to prospective campers. Although we adopt the “undivided interests” terminology in the remainder of this opinion, we do not decide the precise nature of what the buyers actually purchased. Compare Kovach v. Erie Islands Resort & Marina, 93 Ohio App.3d 11, 637 N.E.2d 382, 383 (1994) (interest in real estate), with All Seasons Resorts, Inc. v. Abrams, 68 N.Y.2d 81, 506 N.Y.S.2d 10, 497 N.E.2d 33, 38 (1986) (not interest in real estate).

Each buyer paid the Developer between $3000 and $5700 for the “1/3000 undivided interest,” depending upon whether the buyer paid the Developer up front or financed the purchase through an installment sales contract. The typical installment sales contract stated that upon payment in full, the Developer would deliver to the buyer a deed conveying title to the undivided interest as a tenant in common with all the owners of the other undivided interests.

The undivided interests were subject to a Declaration of Restrictions (“the Restrictions”) on the campground property. The Restrictions, which the Developer recorded in 1980, were variously referred to as “covenants,” “conditions,” and “easements and cross-easements in fee.” By their own terms, the Restrictions ran with the land. The Restrictions were “binding upon the present title holderfe] ... and their respective heirs, assigns, and successors ...

Ownership of an undivided interest gave the buyer access to the campground and use of the campground’s amenities, which included an indoor pool, whirlpool, sauna, miniature golf course, tennis courts, various “play areas,” and a fishing lake with paddle boats. Buyers did not own a specific campsite. Partition of the property was restricted, and some buyers’ contracts prohibited them from recording their undivided interests. On the other hand, owners of undivided interests were permitted to sell, give, or devise them to others, so long as they paid a fee to a third party, Cutty’s Des Moines Camping Club, Incorporated.

B. The Club

At the same time the Developer recorded the Restrictions and began selling undivided interests, it simultaneously created Cutty’s Des Moines Camping Club, Incorporated (“the Club”). The Club was set up to manage and operate the campground. It also had the sole power to assess, collect, enforce, and spend dues for the benefit of the property.

The Club claims the purchase of an undivided interest automatically made a buyer a member of the Club and obligated the buyer, as well as the buyer’s grantees and heirs, to pay the Club dues each year for the upkeep of the property. Dues were also necessary because the Restrictions required the Club to pay all property taxes levied on the campground.

The Restrictions and the Club’s bylaws contemplated various measures for members who did not pay their annual dues. The Restrictions stated those who did not pay their dues were personally liable for failing to do so. The Restrictions also stated that unpaid dues “shall be a lien upon said Membership and Undivided Interest until paid.” Lastly, the Restrictions granted the Club the right to purchase an undivided interest at a discounted price if a membership were “terminated” for failing to pay dues. The Club, however, has never perfected a lien upon an undivided interest and has not purchased a “terminated” member’s interest.

The Club’s bylaws outlined a more specific procedure for addressing the nonpayment of dues. The bylaws stated that if a member did not pay his dues, the Club was required to notify him that he was a “delinquent member.” Upon certification to the Club’s five-member Board of Directors that a member was delinquent,

by a majority vote of the Board of Directors, such member may be suspended from Membership in the Club. Any voting member so suspended shall not be entitled to vote [or] use Club facilities .... The Membership of any member who remains suspended for a period of six (6) months shall be automatically terminated....

Elsewhere, the bylaws stated that

[germination of a Voting Membership shall constitute a forfeiture, abandonment, surrender, release and relinquishment of all interest of such terminated voting member ... in and to the Club and its Property, and such terminated member shall ... have no rights thereto or therein unless reinstated by the Board of Directors.

The Club did not send out “delinquent member” notices as required in its bylaws. Nor did it ever avail itself of this termination procedure. The Club’s longtime manager testified the Club has not terminated anyone’s undivided interest in decades, if ever.

In the early to mid-1980s, the Developer sold 2100 of the 3000 undivided interests it had created. In 1986, the Developer stopped selling undivided interests. Today the Developer retains 900. The Club owns another 400 undivided interests. (The Club received most of these interests from former members.) Should the campground ever be sold, proceeds will be divided proportionately based upon the number of undivided interests owned.

Dues are not insignificant. Although in 1980 the dues were $96 per year, today they are nearly $400 per year. For reasons that are not clear in the record, the Developer does not pay dues. The Club’s 400 shares do not pay dues, either.

A five-member Board of Directors runs the Club. The Developer controls the Board. (In another lawsuit in California, the owner of the Developer conceded he controlled the Des Moines Club.) Although each owner of an undivided interest is entitled to one “voting membership” in the Club, every election the Developer votes its block of 900 shares by proxy. Because the Club holds 400 non-voting shares and many individual campers do not or cannot vote, the Board is perpetually ran by three directors nominated by the Developer. These three Board Members, one of whom is the Developer’s owner, live out-of-state and rarely, if ever, visit the campground. Two local campers round out the remaining seats on the Board.

C. The Collection Campaign

In October 2001, the Club initiated an aggressive collection campaign against owners of undivided interests who had not paid their dues over the years. Many of the owners targeted by the campaign had never visited the campground or stopped using it long ago. They stopped paying dues anywhere from four to sixteen years ago, and some heard nothing after they quit paying. Matters of proof were complicated by the fact that a fire in 2000 destroyed the vast majority of the Club’s records — including copies of dues statements it claims it sent to owners.

The Club maintained the purchase of an undivided interest obligated the buyer to pay annual club dues for life, unless the buyer found someone to purchase (or accept as a gift or devise) the undivided interest. Although some owners have managed to dispose of their undivided interests over the years, others have not been able to do so. At least one owner found a buyer only to have the Club prevent him from selling it; there is also evidence the Club has waged a campaign to stop “cheap membership sales” so as not to bring “undesirable” owners to the RV park and campground. Some owners have tried to give their undivided interests to the Club for free, but the Club would not accept them.

Some owners of undivided interests who purchased from another owner in a resale (as opposed to directly from the Developer) claim they were never told by their seller they could not cancel their memberships and were not provided the documents other owners received that allegedly spelled out their purported obligations. At least one ex-camper, however, claims her undivided interest was “terminated” only to have the Club later seek payment for dues that accrued after that date.

The collection campaign began with an amnesty program. The Club briefly offered to settle some of its claims against certain buyers (some of which were alleged to owe as much as $4000 in unpaid dues) if the buyer paid the Club $350 within thirty days. In exchange for payment, the Club would forgive all past dues and accept a quitclaim deed for the undivided interest, thus canceling all alleged future obligations. Some buyers took advantage of this program, others did not. Not all buyers received notice of the amnesty program.

The Club then sued buyers who still owed dues. The record contains a number of small-claims decisions and appeals in which the Club obtained judgments against owners of undivided interests. The judgments were almost uniformly grounded on the theory that the owner of an undivided interest subject to the Restrictions was akin to an owner of a condominium with a covenant. On this theory, Club members, like condominium owners, had to pay dues to support the common areas and, in the case of the owners of undivided interests, a share of the property taxes for the entire project; in either case, the landowner is subject to a covenant that runs with the land. After judgments were obtained, the Club garnished the wages and bank accounts of owners.

D. The Consumer Fraud Lawsuit

In late 2002, the Attorney General, on behalf of the State of Iowa, filed a lawsuit against the Club alleging it had engaged in “unfair practices” in violation of the Iowa Consumer Fraud Act. See Iowa Code § 714.16(2)(a) (2001). The State sought injunctive relief, reimbursement, and a civil penalty, as well as investigative and attorneys’ fees. See id. § 714.16(7), (11). The Club filed a motion for summary judgment. The Club argued the Consumer Fraud Act did not apply to this case, and, in any event, it had not engaged in an unfair practice.

The district court granted the Club’s motion for summary judgment. The court reasoned the case was “at its heart a dispute between dues-paying members and nonpaying members of a nonprofit corporation.” The court ruled the Act did not apply absent a buyer-seller relationship between the consumer and the defendant. Even if the statute did apply, the court further held there was no “unfair practice” because there was no evidence of unavoidable injury. The court found it was undisputed that an owner’s interest could “be sold, willed or given away at any time,” and therefore the consumer could avoid the obligation to pay dues in the future. The State appealed.

The court of appeals affirmed, albeit for a different reason. The court held the Act did not apply because “no sale is implicated in the matters complained of here”; the State, it reasoned, was only complaining about “later conduct that is unrelated to the sale.” The State sought further review, which we granted.

II. Principles of Review

Actions brought under the Consumer Fraud Act are tried in equity, Iowa Code § 714.16(7), so our review on appeal is ordinarily de novo. See, e.g., State ex rel. Miller v. New Womyn, Inc., 679 N.W.2d 593, 596 (Iowa 2004). Because this case was resolved on a motion for summary judgment, however, appellate review is for the correction of errors at law. See Coralville Hotel Assocs., L.C. v. City of Coralville, 684 N.W.2d 245, 247 (Iowa 2004) (review of an equity case resulting in summary judgment is at law).

Summary judgment is proper only if the record shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. We view the record in a light most favorable to the nonmoving party and indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question.

Id. at 247-48 (citations and internal quotation omitted).

The State has the burden to prove violations of the Iowa Consumer Fraud Act by a preponderance of clear, convincing, and satisfactory evidence. State ex rel. Miller v. Pace, 677 N.W.2d 761, 767 (Iowa 2004).

III. The Merits: The Iowa Consumer Fraud Act

A. General Principles

The Iowa Consumer Fraud Act deems a variety of bad business practices unlawful. For the purposes of this appeal, an unlawful practice is defined as

[t]he act, use or employment by a person of an unfair practice .... in connection with the ... sale ... of any merchandise ....

Id. § 714.16(2)(a). This same section of the Code defines “merchandise” broadly as including “any ... real estate or services.” Id. § 714.16(1)(i). Although this definition of “merchandise” is counterintuitive, see Black’s Law Dictionary 1008 (8th ed.2004), “the legislature may be its own lexicographer.” State ex rel. Turner v. Koscot Interplanetary, Inc., 191 N.W.2d 624, 629 (Iowa 1971). Whether one views the sale of an undivided interest as a sale of real estate or a service, it plainly falls within the purview of the Act. For this reason we need not decide the nature of the undivided interests in this appeal.

What is an “unfair practice”? On its face the term is dizzying in its generality. Guidance can be found, however, in the decisions of other courts and in the definitional portion of the statute. Other courts have pointed out that an unfair practice is nothing more than conduct “a court of equity would consider unfair.” S. Atl. P’ship v. Riese, 284 F.3d 518, 535 (4th Cir.2002) (emphasis omitted); see also Barquis v. Merchants Collection Ass’n, 7 Cal.3d 94, 101 Cal.Rptr. 745, 496 P.2d 817, 829-30 (1972); Harrington Mfg. Co. v. Powell Mfg. Co., 38 N.C.App. 393, 248 S.E.2d 739, 744 (1978). These courts have determined statutes that prohibit “unfair practices” are designed to infuse flexible equitable principles into consumer protection law so that it may respond to the myriad of unscrupulous business practices modern consumers face. See Barquis, 101 Cal.Rptr. 745, 496 P.2d at 829-30. The Iowa Code provides further guidance, insofar as an “unfair practice” is explicitly defined as

an act or practice which causes substantial, unavoidable injury to consumers that is not outweighed by any consumer or competitive benefits which the practice produces.

Id. § 714.16(1)(n); cf. 15 U.S.C. § 45(n) (2000) (a practice is unfair if it “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition”). Determining what constitutes an unfair practice is a “highly fact-specific inquiry” that will depend upon the circumstances of each case. See Riese, 284 F.3d at 535. In cases such as this one where the facts are disputed and open to different interpretations, a court should be especially wary to grant a motion for summary judgment.

At the Club’s urging, the courts below have offered three primary reasons why the merits of this lawsuit should not be heard and summary judgment should be granted in favor of the Club as a matter of law. The Iowa Consumer Fraud Act, it was contended, does not regulate the collection campaign because (1) it is unrelated activity occurring after the sale; (2) the campers did not suffer unavoidable injury; and (3) the Club did not sell the undivided interests. We now examine each of these issues in turn. See Smith v. Shagnasty’s Inc., 688 N.W.2d 67, 72 (Iowa 2004) (supreme court retains discretion to decide issues on review of decision of court of appeals, whether or not raised in the applications for further review).

B. The Act May Regulate Conduct Occurring After the Sale

The court of appeals held the Iowa Consumer Fraud Act did not regulate the Club’s collection campaign because the campaign was “later conduct ... unrelated to the sale.” Because the Club’s collection campaign may be found to be “an unfair practice ... in connection with the ... sale ... of ... merchandise,” Iowa Code § 714.16(2)(a), we vacate the court of appeals’ decision.

1. Defining “In Connection With” for Purposes of the Act

The Act does not define the phrase “in connection with.” As a threshold matter, however, we point out that nothing in the Act places a bright-line temporal limit upon the Act’s purview, as the Club contends. The Act merely requires the activity be “in connection with,” not “prior to” or “at the time of,” the sale of the merchandise. Nothing in the phrase “in connection with” constrains the Act’s scope to only those business practices occurring prior to or at the time of the sale. The legislature did not limit the Act in this way for a good reason:

The definitions presented in the Iowa Consumer Fraud Act are broad and comprehensive in order to effect the wide application of the Act.... These broad general definitional guidelines ensure the application of the Act in a wide variety of circumstances.

Note, Consumer Protection Under the Iowa Consumer Fraud Act, 54 Iowa L.Rev. 319, 325 (1968) [hereinafter ICFA Article]; cf. Am. Fin. Servs. Ass’n v. FTC, 767 F.2d 957, 980 (D.C.Cir.1985) (“It is impossible to frame definitions which embrace all unfair practices. There is no limit to human inventiveness in this field.” (Citation omitted.)). While definition “is primarily a matter of drawing lines or distinguishing between one kind of thing and another,” see H.L.A. Hart, The Concept of Law 13 (2d ed.1994), nothing in the legislature’s use of “in connection with” in the Act enunciates a bright-line temporal rule. We will not judicially superinscribe one. To do so would not only violate well-established canons of statutory interpretation, but also conflict with the liberal interpretation we must give the statute. See Koscot Interplanetary, 191 N.W.2d at 630; ICFA Article at 325.

In the absence of a legislative definition, we note that the phrase “in connection with” is commonly defined as “related to, linked to, or associated with.” Metro. Prop. & Cas. Ins. Co. v. Fitchburg Mut. Ins. Co., 58 Mass.App.Ct. 818, 793 N.E.2d 1252, 1255 (2003); see also Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 930 (2d Cir.1998) (noting under Foreign Sovereign Immunities Act it is “well settled” an act is made “in connection with” commercial activity if there is a “substantive connection” or “causal link” between the two). It plainly has a broader reach than the phrases “arising out of,” see Metro. Prop. & Cas. Ins. Co., 793 N.E.2d at 1255, and “contained in.” In re Pierce, 95 B.R. 154, 158 (Bankr.N.D.Cal.1988). To show an unfair practice is “in connection with” the sale of merchandise, then, the attorney general need only show some relation or nexus between the two. See Metro. Prop. & Cas. Ins. Co., 793 N.E.2d at 1255; see also Black’s Law Dictionary 1070 (8th ed.2004) (defining “nexus” as “[a] connection or link, often a causal one”).

Other courts have recognized that post-sale conduct may be “in connection with the sale of merchandise.” See, e.g., Lony v. E.I. du Pont de Nemours & Co., 821 F.Supp. 956, 962 (D.Del.1993) (holding post-sale activity may be “in connection with the sale”); Pack & Process, Inc. v. Celotex Corp., 503 A.2d 646, 658 (Del.Super.Ct.1985) (same); see also Celebrezze v. United Research, Inc., 19 Ohio App.3d 49, 482 N.E.2d 1260, 1261-62 (1984) (post-sale activity of suing consumers in distant fora fell within statute that stated “[n]o supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction,” where “consumer transaction” included the sale of any good or service). But see Norman Gershman’s Things To Wear, Inc. v. Mercedes-Benz of N. Am., Inc., 558 A.2d 1066, 1074 (Del.Super.Ct.1989), aff'd on other grounds, 596 A.2d 1358 (Del.1991). Likewise, courts faced with broad language in consumer protection laws similar to Iowa’s have also held that post-sale conduct may constitute an unfair practice. See, e.g., Showpiece Homes Corp. v. Assurance Co., 38 P.3d 47, 59 (Colo.2001) (holding post-sale activity-actionable; if legislature had wanted to impose a temporal requirement, it knew how to do so); Elder v. Coronet Ins. Co., 201 Ill.App.3d 733, 146 Ill.Dec. 978, 558 N.E.2d 1312, 1320 (1990) (interpreting “in the conduct of any trade or commerce” to include a series of unfair acts in processing insurance claims); Hines v. Evergreen Cemetery Assoc., 865 S.W.2d 266, 269 (Tex.App.1993) (finding “no requirement that the defendant’s act occur simultaneously with the sale”; “[s]o long as the goods or services form the basis of the plaintiffs claim” post-sale actions can violate state consumer protection law); Griffith v. Porter, 817 S.W.2d 131, 134 (Tex.App.1991) (similar); Salois v. Mut. of Omaha Ins. Co., 90 Wash.2d 355, 581 P.2d 1349, 1351 (1978) (refusing to limit state consumer protection law to unfair or deceptive practices “designed to induce a sale” of an insurance policy; consumer did not simply purchase a piece of paper, but rather “potential benefits and security of coverage” that would continue into the future). It appears those courts holding to the contrary have generally done so because the statute at issue required a showing of a fraudulent practice for the plaintiff to recover under the consumer protection law. See, e.g., Norman Gershman’s, 558 A.2d at 1074 (citing 6 Del.Code Ann. tit. 6, § 2513(a)). Here, of course, the State may prevail even if it only shows an unfair practice.

“[Deceptive and unfair practices are distinct lines of inquiry.... [WJhile a practice may be both deceptive and unfair, it may be unfair without being deceptive.” Orkin Exterminating Co. v. FTC, 849 F.2d 1354, 1367 (11th Cir.1988). The disjunctive language of the Iowa Act clearly requires proof of only one, not both, sorts of conduct. See Commonwealth v. DeCotis, 366 Mass. 234, 316 N.E.2d 748, 753-54 (1974) (post-consummation conduct can be unfair even if pre-contract disclosure was not deceptive); accord Therrien v. Res. Fin. Group, Inc., 704 F.Supp. 322, 329 (D.N.H.1989). Recognizing this fact about the Iowa statute is important because

[deception occurs primarily (though not exclusively) at the formation stage of a contract. Conversely, unfairness occurs primarily (though not exclusively) with respect to the substance or performance of a contract.

Michael M. Greenfield, Consumer Law: A Guide for Those Who Represent Sellers, Lenders, and Consumers § 4.1, at 161 (1995). Were we to interpret the phrase “in connection with” as containing an implicit per se rule barring all post-sale activity from the ambit of the Act simply because other courts have interpreted statutes which are directed only at fraudulent practices in such a manner would ignore the plain language of the Iowa statute and thereby eviscerate much of the statute’s protection against unfair practices. We will not do so. Once again, the legislature chose broad language for a good reason, and we are compelled to interpret the statute as written.

The foregoing interpretation of the phrase “in connection with” is also consistent with prior precedent in this state. In Stromberg Hatchery v. Iowa Employment Security Commission, we were asked to decide whether, for purposes of Iowa’s unemployment statute, hatchery employees who were not engaged in the manual process of incubating chicks were performing “agricultural labor.” 239 Iowa 1047, 1048-54, 33 N.W.2d 498, 499-503 (1948). The unemployment statute defined “agricultural labor” as including “all services performed ... ‘in connection with’... the hatching of poultry.” Id. at 1048, 33 N.W.2d at 499-500 (quoting Iowa Code § 96.19 (1946)). In our analysis, we pointed out that the statutory language at issue was identical to that in the federal Social Security Act, see 26 U.S.C. § 1426 (1939), which was designed to relieve agriculture of the social security tax burden. See Stromberg, 239 Iowa at 1050-54, 33 N.W.2d at 500-02. We therefore concluded the statutory phrase “in connection with” should be interpreted liberally, and included employees not engaged in the manual process of incubating chicks. Id. Similarly, in the case at bar we are presented with a statute that serves a remedial purpose and must be interpreted liberally. See Koscot Interplanetary, 191 N.W.2d at 630; ICFA Article at 325. As in Strom-berg, we will not impose a bright-line restriction — in this case a temporal one— upon the phrase “in connection with.”

2. Application of the Facts

The difficult factual question posed in this case is whether the Club’s collection campaign, itself admittedly post-sale conduct, is an unfair practice “in connection with” the sale of merchandise. Viewed in a light most favorable to the State of Iowa, we conclude the summary judgment record before us may show one. The State should get its day in court.

A trier of fact could find a nexus between the Developer’s sales of the undivided interests in the early 1980s and the Club’s collection campaign today. For example, a trier of fact could find the Developer established this entire elaborate arrangement, including continued control over the Club, from the outset to the substantial detriment of consumers. There is evidence in the record the Developer conceived, created, and has retained control over the Club throughout the years to the present day. On this theory of the case, the Club is nothing more than the present-day operating arm of the Developer.

The Developer retains control over the Club because the Developer stopped selling undivided interests in 1986. Later the Developer solidified its control of the Club when the Club, presumably at the Developer’s direction, started buying them up. By virtue of its controlling share, the Developer is able to maintain a sizeable interest in real estate free of property tax. All property taxes and improvements upon the property are paid for by the owners of all the other undivided interests. In doing so, the Developer and Club have reduced the number of dues-paying interests, thereby increasing proportionally the costs those that did buy must bear. A trier of fact may view this as unfair and in connection with the sale. Importantly, a trier of fact could find that at the time the consumers bought the shares they had every reason to believe all shares would be sold, or at least that any shares the Developer or the Club owned would be dues-paying shares. The documents the consumers received at the time of the sale apparently contemplated as much. In other words, a trier of fact could find the Developer and the Club have a duty to use good-faith efforts to sell their undivided interests. As matters stand, however, the Developer does not pay the Club dues and the Club, controlled by the Developer, does not require the Developer to pay them.

Even if the trier of fact were to take a narrower view, it could find the Club’s collection campaign constitutes an unfair practice in connection with the sale of the undivided interest. The connection between the sale and the collection campaign is plain. All the Club’s alleged rights vested at the time of the sale and continue to this day on account of that transaction. See Hines, 865 S.W.2d at 269 (finding statute applies to post-sale conduct when sale gives rise to ongoing rights and obligations in the future); see also Bexley Vill., Ltd. v. Limbach, 68 Ohio App.3d 306, 588 N.E.2d 246, 248 (1990) (only furtherance of purpose, not unity of ownership, required to satisfy “connected with” element of statute). A trier of fact could find the Club sat on these rights for an unreasonable period of time. By all accounts the Club snoozed for as many as sixteen years. Bills were not sent. No collection efforts were undertaken. Termination procedures, spelled out in the installment contracts, the Restrictions, and the Bylaws, were not invoked. Only decades later did the Club awake from its slumber, track down ex-campers, and sue them for back dues. In light of the ambiguous nature of the Restrictions and Bylaws, owners of undivided interests could reasonably have thought under these circumstances their memberships were terminated when they stopped paying dues and ceased using the campground. In a variety of equitable doctrines developed over the years, we have long recognized the unfairness of one party unreasonably delaying the prosecution of an alleged claim against another party. See, e.g., Garrett v. Huster, 684 N.W.2d 250, 255-56 (Iowa 2004) (setting forth elements of laches and estoppel by acquiescence); Davidson v. Van Lengen, 266 N.W.2d 436, 439 (Iowa 1978) (explaining differences between two doctrines, as well as their underlying policies); see also Lake Caryonah Improvement Ass’n v. Pulte Home Corp., 903 F.2d 505, 509-10 (7th Cir.1990) (explaining laches doctrine in property context).

Our decision today does not mean the Iowa Consumer Fraud Act grants the attorney general broad authority to police bad bargains. We have no quarrel with the fact some campers entered into bad bargains, insofar as they paid thousands of dollars for a small slice of a campground they rarely or never used. See Walker v. Gribble, 689 N.W.2d 104, 110 (Iowa 2004) (“Parties to contracts should not look to courts to rescue them from their bad bargains.”). As other courts have recognized, conduct carried out pursuant to contractual relations does not often constitute an unfair or deceptive practice. See Riese, 284 F.3d at 536 (construing North Carolina law). For now, however, we think there is sufficient evidence in the summary judgment record before us to warrant a decision by the trier of fact. We remand for a decision on the merits.

C. Unavoidable Injury

The district court determined there was no “unfair practice” because there was no evidence of unavoidable injury. See Iowa Code § 714.16(1)(n) (requiring showing of unavoidable injury). The court found it was undisputed an owner’s interest could be “sold, willed or given away at any time,” thereby avoiding the obligation to pay any dues in the future.

We disagree and find there is evidence in this summary judgment record that the Club’s unfair practice caused unavoidable consumer injury. Contrary to the district court, we find it is not undisputed that all consumers could sell their undivided interests. Moreover, the Club’s actions may have had the effect of reducing the price the consumers might otherwise have received for their undivided interests; the Club apparently took active efforts to stop sales. The Club’s amnesty program did not forestall substantial injury. Not all owners received the amnesty letters and, in any event, amnesty came with a significant price tag.

A trier of fact could also find consumer injury was unavoidable because the Club and the Developer, acting in concert with one another at the time of the initial transaction, used ambiguous documents to lure unwitting consumers into ownership of what are, in the Club’s view, the equivalent of lifetime contracts. Similarly, a trier of fact may find consumers would not have anticipated that the Developer and the Club, again working together, would stop selling undivided interests and actively attempt to accumulate them — thereby unfairly reducing the number of dues-paying interests, and thus increasing, proportionally, the costs those who did buy must bear. If it is shown that the Developer and the Club created the circumstances that led to consumers purchasing 1/3000 undivided interests on the belief that all interests would be sold, a trier of fact could find all holders of undivided interests have suffered an unavoidable injury because the number of dues-paying shares was unfairly reduced.

Unavoidable injury is particularly acute for ex-campers. While the Club sat on its rights and slept, dues increased nearly fourfold and mounted exponentially without the knowledge of the ex-campers, who had long since abandoned the campground. For example, had the Club diligently pursued its rights and begun its collection campaign earlier, Club members may have sold their interests or used the facilities. An analysis that focuses solely on the fact the ex-campers can now sell their interests misses the mark. Even if we were to assume there is a market for the undivided interests, the sale of the interests does not allow the owners to avoid the injuries they have already suffered on account of the Club’s delay in prosecution of its alleged claims. As matters stand now a trier of fact could find this delay has “so operated that it will be impossible to place the parties in status quo and enforcement of the [Club’s] right would work inequity.” Cf. Chadek v. Alberhasky, 253 Iowa 32, 40, 111 N.W.2d 297, 301 (1961). We vacate the decision of the court of appeals.

D. The Act Does Not Only Apply to Sellers of Merchandise

The district court ruled that because the Developer, and not the Club, sold the undivided interests, the Act could not regulate the Club’s collection campaign. We disagree. Even if we were to assume that the Club is not the “seller” of the merchandise (our earlier discussion shows why we should not on the facts of this case), we do not take such a narrow view of the statute. The statute simply states “[t]he act, use or employment by a person of an unfair practice ... in connection with the ... sale ... of any merchandise ... is an unlawful practice.” Iowa Code § 714.16(2)(a) (emphasis added). The term “person” is a general one that is not on its face limited to sellers, and we see no reason to read such a limitation into the statute. As we recently pointed out, the Act

defines “person” broadly:.... “The term ‘person’ includes any natural person or the person’s legal representative, partnership, corporation ..., company, ... [or] business entity or association. ...”

New Womyn, 679 N.W.2d at 597 (quoting Iowa Code § 714.16(1)(j))- The Club is plainly a “person” for purposes of the Act, and therefore the Act applies in this case. Cf. Holeman v. Neils, 803 F.Supp. 237, 243 (D.Ariz.1992) (reaching same conclusion under similarly worded statute). The legislature knew how to limit this provision of the Act to sellers, for elsewhere in the Act the legislature expressly defined and employed the terms “buyers” and “sellers.” See Iowa Code § 714.16(1)(6), (l). It did not do so here, and by all accounts did not do so for good reasons. We will not write in such a requirement; again, to do so would not only violate well-established canons of statutory interpretation but also conflict with the liberal interpretation we must give the statute. See Koscot Interplanetary, 191 N.W.2d at 630; ICFA Article at 325.

IV. Conclusion

The Iowa Consumer Fraud Act may regulate post-sale conduct. A trier of fact should decide whether the Club has engaged in an “unfair practice.” Nor does the Act only apply to sellers of merchandise. Dismissal on the Club’s motion for summary judgment was not proper.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED FOR FURTHER PROCEEDINGS.

All justices concur except CARTER and TERNUS, JJ., who dissent.

CARTER, Justice

(dissenting).

I dissent.

Perhaps the individual members who have failed to pay the prescribed dues can show a right to equitable relief from that obligation on some legal theory other than Iowa Code section 714.16(2)(a) (2001), but the action that has been brought by the attorney general based on that statute was properly rejected by the district court and the court of appeals.

The statute on which the attorney general’s claims are based provides:

The act, use or employment by a person of an unfair practice, deception, fraud, false pretense, false promise, or misrepresentation, or the concealment, suppression, or omission of a material fact with intent that others rely upon the concealment, suppression, or omission, in connection with the lease, sale, or advertisement of any merchandise or the solicitation of contributions for charitable purposes, whether or not a person has in fact been misled, deceived, or damaged, is an unlawful practice.

Iowa Code § 714.16(2)(a) (emphasis added). The key words are “in connection with the lease, sale, or advertisement of any merchandise or the solicitation of contributions for charitable purposes.” These words limit the situations in which deceptive practices constitute a violation of the act.

Although I agree with the attorney general’s argument that there may be instances in which events occurring subsequent to the sale or lease of merchandise are so preordained by the sale or lease transaction that they warrant action under section 714.16(2)(a), this is not such a situation. The collection efforts alleged to be improper were prompted by an unanticipated shortfall in dues collections that occurred long after any sale. The collections were undertaken to enable the alleged victims’ fellow subscribers to reap the benefit of their bargain. This attempt at collection of monies owed by defaulting members was clearly not undertaken in connection with any sale of merchandise, as required by section 714.16(2)(a).

I would affirm the decision of the court of appeals and the judgment of the district court.

TERNUS, J., joins this dissent.

      . Some of the legal instruments upon which the Club has relied to support this assertion are somewhat ambiguous. For example, the typical installment sales contract stated:
      By virtue of Buyer's ownership of the undivided interest ..., Buyer is eligible for membership in the Club. Buyer agrees to pay to the Club when due, all dues and assessments required by or pursuant to the Bylaws of the Club, or the Declaration [of Restrictions].
      (Emphasis added.) Likewise, the Restrictions opaquely stated each buyer would
      automatically become a member of the Club upon receipt of payment and approval of his or her application for membership by an officer of [the Developer].

      (Emphasis added.) On the other hand, elsewhere the Restrictions, as well as the Club’s bylaws, plainly mandated that
      [t]he acceptance of a membership or Undivided Interest shall constitute an agreement that these Restrictions, the Bylaws and the Rules and Regulations ... are accepted, ratified and will be complied with.

      (Emphasis added.)

      . Although it appears a member must be suspended before termination occurs, another provision in the Club’s bylaws implies that termination automatically occurs upon nonpayment of dues. That provision provides that ”[v]oting Membership in the Club of any member shall terminate when a member ... [flails to pay his dues or assessments....”

      . There is also evidence the Developer offered certain owners a “buy back program” at the time of the sale of the undivided interest. The Developer agreed to buy the undivided interest back at a discount, but only if its owner complied with a list of obligations over a seven-year period and then, within a specific thirty-day period, notified the Developer of the wish to do so. At least one owner called the Club to sell her undivided interest shortly in advance of the requisite buy-back period, but the Club did not buy her interest or remind her of this provision in the sales contract.

      . The court also denied the Attorney General’s request for a preliminary injunction. This ruling was not appealed.

      . At this stage in the proceedings, today's Club should not be viewed in legal isolation from the Developer; pulling back the sheets, a trier of fact may yet find the Developer and the Club in bed together.

      . We do not mean to suggest that any particular equitable doctrine is a valid defense for individual owners in their small-claims cases; those cases must be considered on their own merits and the doctrine must be carefully construed, where applicable. Here we only draw an analogy to show the Club’s delayed collection campaign was arguably not equitable and therefore an “unfair practice” under the Iowa Consumer Fraud Act.

      . We make no attempt to comprehensively define the parameters of the doctrine of unfair practices at this stage of the proceedings. As the matter progresses to trial, the evidence as developed may show an unfair practice in some other respect. Cf. Estate of Countryman v. Farmers Coop. Ass’n, 679 N.W.2d 598, 605 n. 2 (Iowa 2004) (stating that on a summary judgment record alone "we make no attempt to define the precise parameters of the participation theory of liability and the type of participation that gives rise to liability under the doctrine”).


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    Robert S. KENNEDY, Individually, Appellee, v. CIVIL SERVICE COMMISSION OF the CITY OF COUNCIL BLUFFS, Iowa, Appellant. Joseph A. Venditte, Individually, Appellee, v. Civil Service Commission of the City of Council Bluffs, Iowa, Appellant.
    No. 03-1710.
    Supreme Court of Iowa.
    April 1, 2005.

      Michael A. Sciortino, Assistant City Attorney, Council Bluffs, for appellant.
    David E. Richter and Kristina M. Kaed-ing, Council Bluffs, for appellees.
   CARTER, Justice.

The Civil Service Commission of the City of Council Bluffs (the commission) appeals from an order of the district court canceling the hearings that the commission had set concerning appeals by city employees, Joseph A. Venditte and Robert S. Kennedy, who had been disciplined by the appointing authority of the city. In conjunction with canceling the hearings, the district court also set aside the discipline that had been imposed in each case based on its belief that there had been an undue delay in the statutory appeal process. These proceedings in the district court followed a remand from this court on a prior appeal. See Kennedy v. Civil Serv. Comm’n, 654 N.W.2d 511 (Iowa 2002).

After reviewing the record and considering the arguments presented, we conclude that the district court erred in canceling the scheduled hearings before the commission and in taking summary action on the merits of the employment dispute without the completion of the statutory appeal process before the commission. We reverse the judgment of the district court and direct that the statutory appeal process be resumed in accordance with this court’s mandate on the prior appeal.

On January 3, 2000, Joseph A. Venditte, a Council Bluffs police officer, received two suspensions for disobeying orders. Ven-ditte appealed the suspensions to the commission on January 11, 2000. On February 18, 2000, Robert S. Kennedy, also a Council Bluffs police officer, was terminated from employment. Kennedy appealed his termination to the commission on February 21, 2000. On January 13, 2000, the commission, acting pursuant to a recently adopted rule change, employed a hearing officer to conduct the statutory-appeal hearings for Venditte and Kennedy.

The officers challenged -the hearing-officer procedure in separate certiorari actions commenced in the district court. The district court upheld the commission’s procedure with respect to each officer. Those rulings were appealed to this court and were reversed. Our mandate to the district court was as follows:

The case is remanded to [the district] court with directions to sustain the writ of certiorari and order a new hearing of these civil .service appeals before the civil service commissioners.

Kennedy, 654 N.W.2d at 514. Procedendo was issued on January 16, 2003.

On April 24, 2003, the commission requested the district court to comply with this court’s mandate by sustaining the writs of certiorari and ordering new hearings before the civil service commissioners. Venditte and Kennedy filed a resistance to that application, raising issues of timeliness and lack of prosecution. They later filed new certiorari actions in the district court, raising these same issues. The district court ordered new hearings before the commission, but simultaneously heard and decided the certiorari actions and ruled that the commission would be without authority to resume the proceedings more than three and one-half years after the appeal process was commenced. It sustained the writs of certiorari and ordered that the discipline imposed by the appointing authority be set aside as to each officer. The commission has appealed.

I. Standard of Review.

Review of the decision of the district court is de novo. Iowa Code § 400.27; Dolan v. Civil Serv. Comm’n, 634 N.W.2d 657, 662 (Iowa 2001). Review is confined to the record made in the district court and is limited to the issues raised in the district court. Id.

II. Compliance With Statutory Time Requirements for Civil Service Appeals.

A. The commission’s arguments. The commission contends that the officers’ hearings were originally scheduled within the statutory time period prior to the earlier appeal to this court. Following our remand order, it is the position of the commission that resumption of the civil service hearings had to await further orders by the district court as this court had directed.

B. The officers’ arguments. The officers argue that, because the commission at no time filed a motion to stay proceedings, it did not meet the timing requirements of section 400.23. It predicates this claim on the time the appointing authority’s specifications were filed and allows for no interruption as a result of the consideration of their prior certiorari actions in both the district court and this court.

C. Analysis. Iowa Code section 400.23 provides:

Within ten days after such specifications are filed, the commission shall fix the time, which shall not be less than five nor more than twenty days thereafter, and place for hearing the appeal and shall notify the parties in writing of the time and place so fixed, and the notice shall contain a copy of the specifications so filed.

Prior to the first appeal to this court, Venditte filed his appeal to the commission on January 11, 2000. The “specifications of charges” were filed by the appointing authority on January 25, 2000. On February 3, 2000, the commission set Venditte’s appeal hearing for February 9, 2000. Kennedy filed his appeal on February 21, 2000. The “specifications of charges” against Kennedy were filed by the city on February 29, 2000. On March 2, 2000, the commission set Kennedy’s hearing for March 15, 2000.

The timing of these hearings was in compliance with the requirements of section 400.23 with respect to both the time at which the hearings were set and the time for which the hearings were scheduled. In Venditte’s case, the commission met nine days after the “specifications of charges” were filed and fixed the time for hearing six days after the meeting. In Kennedy’s case, the commission met three days after the “specifications of charges” were filed and fixed the time for his hearing thirteen days after the meeting.

On June 25, 2003, following the first appeal to this court, the district court complied with the remand order by sustaining the officers’ writs of certiorari and sending the case back to the commission for new hearings. The commission set the time for new hearings on the officers’ appeals for July 8, 2003 (Kennedy), and July 9, 2003 (Venditte). This action was taken by the commission on July 1, 2003. Based on these dates, the commission was in compliance with the time requirements of section 400.23 if the time is measured from the earliest date that its jurisdiction was restored.

Our decision up to this point disposes of the timeliness issue. To the extent that the district court also relied on a theory of failure to prosecute, we also reject that analysis. Neither the commission nor the City of Council Bluffs was tasked with the responsibility for prosecuting its employees’ appeals. The employees were the parties that were obligated to do that. To enable them to do this, the commission was required to comply with the applicable statutes concerning the time of setting hearings. As we have noted, however, it did comply with those statutes both prior to the first appeal to this court and thereafter.

The delays that have occurred in the civil service appeal process for these officers have resulted entirely from their challenges to the original hearing process. That hearing process had been timely pursued. No new process could commence until the litigation initiated by the officers had been completed and the exclusive jurisdiction of the commission in this personnel matter had been restored. See VanBaale v. City of Des Moines, 550 N.W.2d 153, 155 (Iowa 1996) (civil service commission appeal is exclusive remedy for challenging discipline by employees subject to the act). Such delay provides no basis for disturbing the discipline imposed by the appointing authority in a manner other than a resumption of the civil service appeal process.

We have considered all issues presented and conclude that the judgments of the district court should be reversed in each of the officer’s certiorari actions. The case is remanded to the district court for an order directing the civil service commission to reschedule the statutory appeal hearings for each officer.

REVERSED AND REMANDED.


author: LAVORATO, Chief Justice.

text:
    In re the MARRIAGE OF Donna and Scott ANLIKER. Upon the Petition of Donna Anliker, Appellee, And Concerning Scott Anliker, Appellant.
    No. 03-1371.
    Supreme Court of Iowa.
    April 1, 2005.

      Michael J. Schilling of Cahill & Schilling Law Office, Burlington, for appellant.
    Scott E. Schroeder of Schroeder Law Office, Burlington, for appellee.
   LAVORATO, Chief Justice.

In this dissolution of marriage proceeding, Scott Anliker appealed from the district court’s award of spousal support in the form of traditional alimony to his spouse Donna Anliker and from the court’s division of marital debt. We transferred the case to the court of appeals, which reversed the award of spousal support in the form of traditional alimony and awarded her, in lieu of this form of support, rehabilitative alimony. The court affirmed on the issue of debt division. We granted Donna’s application for further review. We affirm the court of appeals decision on the division of debt issue. However, we vacate its decision on the spousal support issue, concluding the district court correctly ordered spousal support in the form of traditional alimony. Because of the conclusions we reach, we affirm the district court judgment in all respects.

I. Background Facts.

Donna and Scott were married on December 27, 1984. At the time he was twenty-one and she was thirty-three. Donna had three children from a previous marriage, two of whom lived with Donna and Scott and the other child lived with his father.

The parties decided that Donna should stay home and care for the children rather than look for outside employment and incur transportation and child care expenses. Donna, however, did work at a variety of jobs from 1984 through 1996, but never full time.

In 1996 while working at a gas station, Donna fell and injured her left knee. She had multiple surgeries on her knee as a result of the fall, including knee replacement. She has never fully recovered from the injury. Her left leg is crippled and is one inch shorter than her right leg, causing her to hobble as she walks. The difference in leg length affects her hips and back. She anticipates additional surgeries as a result of her injury.

In addition to her knee condition, Donna has other health problems. Her left kidney was removed several years before trial of this matter. Her right kidney functions, but there is a cyst in it. Her thyroid was removed shortly before the parties’ marriage, and she takes Synthroid because of this. She also takes Premarin, a hormone replacement. These prescriptions cost $40 per month. She also takes over-the-counter pain medication.

Although Donna can drive, she sometimes suffers from leg cramps. She can dress and groom herself, although putting on shoes, socks, and bottoms can be challenging so that she sometimes needs help tying her shoes. She has great difficulty standing for two to three hours at a time.

Donna’s earnings from 1972 through 2001 are reflected in a report from the Social Security Administration. During that time span, there were seven years in which she did not earn any income (1973, 1975, 1983, 1997, 1998, 1999, and 2000). She did not work from 1997 through 2000 because of her knee injury. For six of the years she did work (1972, 1974, 1979, 1981, 1982, and 1984), her income was less than $1000. In five of those years (1977, 1978, 1980, 1985, and 1987), her income was between $1000 and $2000. In three of the years she worked (1976, 1986, and 1988), Donna’s income was between $2000 and $4000. She earned between $4000 and $7000 for eight of the years she worked (1989, 1990, 1991, 1992, 1993, 1994, 1995, and 2001). Donna’s highest income was $7823 in 1996.

In 2001 Donna was employed as a seasonal employee at a toy store where she earned $8 per hour. Because she could not lift, she was told she would not be hired back. Over the year and a half preceding trial, Donna was hospitalized overnight two to three times for severe pain.

Donna currently receives $363.50 per month social security disability benefits because of her knee injury, minus $54 per month for medical insurance, leaving her with net social security benefits of $309 per month. If Donna is able to work, she could darn up to $800 per month without jeopardizing her social security benefits.

Donna received a $30,000 settlement from her work-related injury to her knee. After deducting attorney fees, costs, and medical expenses, she netted $14,000, all of which was spent on marital debts.

In the early 1990s, Donna was injured in an automobile accident and received a settlement of between $7000 and $10,000. The parties applied that money toward the purchase of a home. During the pendency of the dissolution action, the parties sold the home and each netted $5635.57 from the sale. Both parties elected to use their share of the proceeds for expenses and debts.

Scott has a high school diploma; Donna earned a GED. At the time of trial, Scott was in good health. Since August of 2000, Scott has worked for Golden Furrow Fertilizer where he earns a gross salary of $1026.04 per week. Scott’s job is secure, and he does not intend to change jobs in the immediate future. Donna’s supplemental medical insurance of $109 per month and life insurance of $14 per month are deducted from Scott’s wages.

II. Proceedings.

On October 10, 2002, Donna filed a petition for dissolution of marriage. The case was tried on April 18, 2003. The district court identified four issues in its ruling following trial: (1) division of contested debts, (2) Donna’s request for spousal support, (3) Donna’s request for attorney fees, and (4) liability for court costs.

The court noted that during the twenty-year marriage the parties accumulated very little property and a lot of debt. The court approved the property division proposed by Scott. Finding that Scott, with the greater earning capacity, is more able to assume a greater portion of the parties’ debts, ordered him to assume payment of $34,356.01 of the parties’ debts and ordered Donna to assume $5633.57. Included in the $34,356.01 is a debt to Scott’s parents in the amount of $11,450.82. The court noted that Scott had not made a payment- on that debt in the past four years and doubted that Scott would be required to repay it.

In addition, the court awarded Donna spousal support in the form of traditional alimony in the amount of $1250 per month payable until Donna attains age sixty-five or either party dies, whichever occurs first. The court ordered Donna to assume payment of her monthly supplemental health insurance payment and her monthly life insurance payment, both of which had been deducted from Scott’s wages.

Finally, the court ordered Scott to pay $1500 toward Donna’s attorney fees and the court costs.

Following a ruling denying Donna’s posttrial motion, Scott appealed. He contended that the district court erroneously considered hearsay evidence, erred in awarding Donna spousal support in the form of traditional alimony, and the debt division was inequitable.

We transferred the case to the court of appeals. The court of appeals concluded it need not decide the hearsay issue because it could conduct its review without relying on the challenged evidence. The court modified the spousal support award by awarding Donna spousal support in the form of rehabilitative alimony in the amount of $1000 per month for thirty-six months. The court affirmed the debt division.

Donna sought further review, which we granted. As the court of appeals did, we consider all three issues raised by Scott’s appeal.

III. Scope of Review.

Because this case is an equitable proceeding, our review is de novo. Iowa R.App. P. 6.4. In such proceedings, we give weight to the district court’s findings of fact, especially when considering the credibility of the witnesses. However, we are not bound by those findings. Id. R. 6.14(6)(g).

IV. The Hearsay Objections.

The first issue Scott raised on his appeal was that the district court improperly admitted and considered exhibits 10 and 13 that constituted hearsay. Exhibit 10 was a copy of clinical notes from a medical appointment Donna had with Dr. Joseph Chen at the University of Iowa Hospitals and Clinics. In exhibit 10 Dr. Chen stated that “[Donna’s] left knee replacement would be classified as a poor result with a 30% whole person impairment which equals a 75% lower extremity impairment.”

Exhibit 13 was a letter from Dr. John Callaghan to Donna’s workers’ compensation attorney. Dr. Callaghan wrote that “[Donna’s] permanent partial impairment is approximately 50% of the lower extremity and 25% of the entire body.... I would rate it at approximately 50% total body.”

Scott’s counsel objected to both exhibits as hearsay. In its ruling, the district court relied on both exhibits in its findings concerning Donna’s disability.

Like the court of appeals, we find there is enough undisputed evidence apart from these two exhibits supporting Donna’s claim that she is disabled. See Wilker v. Wilker, 630 N.W.2d 590, 598 (Iowa 2001) (question of admissibility of evidence is not controlling if appellate court can, under its de novo review, arrive at same result with or without that evidence). Donna has had multiple surgeries on her knee and anticipates more surgery. One leg is shorter than the other because of the injury, she is in constant pain, and she hobbles. She cannot stand more than two to three hours at a time, and she cannot lift. She has been left with one kidney and has a problem with the other kidney. Her thyroid has been removed. Moreover, she receives social security disability payments because of her knee injury.

Y. Spousal Support.

The second issue Scott raised on his appeal was that Donna is not entitled to spousal support in the form of traditional permanent alimony. He asserted that spousal support in the form of rehabilitative alimony was more appropriate, a contention with which the court of appeals agreed. On further review, Donna asks us to vacate the court of appeals decision and affirm the district court’s ruling on this issue.

“Alimony ‘is a stipend to a spouse in lieu of the other spouse’s legal obligation for support.’ ” In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004) (citation omitted). Such an award is not an absolute right. And whether it is awarded depends on the circumstances of the particular case. In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996). When deciding to award alimony, the district court must consider the factors in Iowa Code section 598.21(3). In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996). Although our review of the district court’s award of alimony is de novo, we give that court considerable latitude in making this determination based on the criteria in section 598.21(3). Spiegel, 553 N.W.2d at 319. We will disturb that determination only when there has been a failure to do equity. Id.

The factors in section 598.21(3) pertinent to this case include (1) the length of the marriage; (2) the age and physical and emotional health of the parties; (3) the property distribution; (4) the educational level of each party at the time of the marriage and at the time the action is commenced; (5) the earning capacity of the party seeking alimony, including educational background, training, employment skills, work experience, length of absence from the job market; (6) the feasibility of the party seeking alimony becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary to achieve this goal; and (7) other factors the court may determine to be relevant in an individual case. Iowa Code § 598.21(3)(a )-(f), (j) (Supp.2001).

We recognize three different types of alimony as an appropriate award of spousal support: traditional, rehabilitative, and reimbursement. Probasco, 676 N.W.2d at 184-85. Traditional alimony is “payable for life or so long as a spouse is incapable of self-support....” In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989).

Rehabilitative alimony was conceived as a way of supporting an economically dependent spouse through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting.
Because self-sufficiency is the goal of rehabilitative alimony, the duration of such an award may be limited or extended depending on the realistic needs of the economically dependent spouse, tempered by the goal of facilitating the economic independence of the ex-spouses.

Id. at 63-64 (citations omitted).

Reimbursement alimony “is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other.” Id. at 64. And “[s]imilar to a property award, but based on future earning capacity rather than a division of tangible assets, it should be fixed at the time of the decree.” Id.

The district court considered these factors in deciding to award Donna traditional alimony as an appropriate form of spousal support. In applying these factors, we think the district court had it exactly right when it made the following findings:

In this case neither party is receiving a substantial amount of property.- The property being divided relates to minimal household goods and furnishings as well as Donna’s basic transportation. The debts being assigned to Scott are no more onerous to him than the debts being assigned to Donna pursuant to this decree....
While Donna is only 51 years of age, the record supports a finding that her health has deteriorated since 1996 and is not likely to improve. She suffers ongoing pain and incapacity, and even Scott does not believe that she has exaggerated her testimony regarding her physical health. She is currently on several medications and is limited in her ability to alleviate her pain due to her loss of a kidney several years ago. Donna has been determined to be disabled by the Social Security Administration and her sole source of income at this point is her disability benefits, which net her $309 per month. Although Scott feels that any alimony award should be for rehabilitative purposes only, the record does not support such a conclusion. Due to .her physical infirmities, Donna is an unlikely candidate for further education or training. She has never been able to put what training and experience she has accrued in her 51 years to practical use in the job market. The Court does not find, it to be realistic to think that Donna is employable in her current condition....
This is a long-term marriage' of nearly 20 years. Scott has a substantially better earning capacity than Donna, who is permanently disabled. Donna’s earning capacity appears limited to her social security disability benefits. Scott continues to have an earning capacity of $50,000 annually or more. Scott will have far greater social security retirement benefits than Donna. Additionally, Scott receives use of a vehicle as an employment benefit and does not currently have the expense of car payments. While Scott is to be commended for his support of Donna’s children, which has been ongoing even after they became adults, the Court takes note that the settlements she received for injuries and future disabilities were invested in the marriage and are no longer available to Donna at the very time she needs the money.

In view of these findings, which are fully supported in the record and which we adopt, we think the spousal support award of $1250 per month in- traditional alimony until Donna attains the age of sixty-five or either party dies was equitable and should not be disturbed. Cf. In re Marriage of Brown, 487 N.W.2d 331, 334-35 (Iowa 1992) (spousal support in the form of traditional alimony affirmed where parties were 'married almost nineteen years, recipient spouse was in poorer health than payor spouse, payor spouse was skilled machinist and recipient spouse performed unskilled labor and had no specialized skills or training, payor spouse’s income was substantially more than recipient spouse’s income, and support payments would be taxable to the recipient and tax deductible to the payor); In re Marriage of Debler, 459 N.W.2d 267, 268-70 (Iowa 1990) (spousal support award in the form of traditional alimony affirmed where there was a twenty-two-year marriage, recipient spouse lacked skills to earn more than minimum wage, recipient spouse stayed home to care for the parties’ children pursuant to the parties’ joint decision, recipient spouse had only a high school education, recipient spouse has no pension, and payor spouse was skilled laborer with pension and present income from one job three times what recipient spouse made working three jobs).

VI. Debt Division.

The last issue Scott raised on appeal was that in light of the spousal support award in the form of traditional alimony the debt division was not equitable. He contends that if the spousal support award is affirmed, Donna should assume more of the debt burden.

Iowa Code section 598.21(1) directs the district court to divide the property “equitably between the parties” after considering a number of factors. Such factors that are pertinent here include (1) the length of the marriage, (2) the property brought into the marriage by each party, (3) the age and physical and emotional health of each party, (4) the earning capacity of each party, (5) the amount of spousal support awarded, and (6) other economic circumstances of each party. Iowa Code § 598.21(1)(a), (6), (d), (f), (h), (i). As the court of appeals noted, adjudicating property rights in a dissolution action has to involve a division between the parties of their marital assets and debts. And in deciding what constitutes an equitable distribution of property, there need not be an equal division if the division is justified and equitable under all of the circumstances and factors set forth in section 598.21(1). In re Marriage of McNerney, 417 N.W.2d 205, 209 (Iowa 1987).

Reaching its conclusion concerning the debt division, the district court expressly mentioned and relied on these principles and statutory factors and found:

In this case, the Court’s determination will result in a negative award to both parties. The Court has, therefore, determined that Scott, as the individual with the greater earning capacity, is more able to assume a greater portion of those obligations. In reaching that decision, the Court specifically notes its doubt that Scott will actually be required to pay the debt to his parents in the amount of $11,450.82. Deleting that figure from the ultimate total would make Scott’s liability obligations as proposed in Respondent’s Exhibit A to his final summation significantly less. The Court concludes that the proposed division of the liabilities of the parties as shown in Respondent’s Exhibit A is appropriate under all of the facts and circumstances of this case. Under the unusual facts and circumstances of this case the Court believes that the proposed division of liabilities is the most equitable under all of the circumstances and factors required by law .... It is also an appropriate award in light of the Court’s determination on Donna’s request for spousal support.

We agree with and adopt these findings. One additional factor that the court of appeals considered important on this issue is that Donna’s workers’ compensation award was applied to the retirement of marital debts. We likewise find this significant as well as the fact that the parties used between $7000 and $10,000 of Donna’s personal injury settlement for the purchase of a home. Each party netted $5635.57 from the sale of the home, which they used to pay expenses and marital debts.

We agree with the district court and the court of appeals that the debt division was equitable.

VII. Disposition.

Because we agree with the court of appeals on the debt division issue, we affirm its decision on this issue. However, because we disagree with the court of appeals on the issue of spousal support, we vacate its decision on this issue. The conclusions we reach are in accord with the district court’s judgment and for that reason we affirm that judgment in all respects. Costs on appeal are taxed to Scott.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Steven F. SORONOW, a Minnesota Attorney, Regitration No. 298748.
    No. A04-1536.
    Supreme Court of Minnesota.
    March 28, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed an amended and supplementary petition for disciplinary action alleging that respondent Steven F. Soronow has committed professional misconduct warranting public discipline, namely, sending an email to a witness in another’s lawyer’s disciplinary matter asking the witness not to cooperate with the Director’s Office, and making misleading statements on Internet websites for the law firm of which he was a member, both before and after his suspension from the practice of law, in violation of Minn. R. Prof. Conduct 3.4(f), 7.1(a) and (c), and 8.4(d). Respondent is currently indefinitely suspended from the practice of law. In re Soronow, 651 N.W.2d 197 (Minn.2002).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is an extension of respondent’s current suspension and that respondent not be eligible to apply for reinstatement for a minimum of 30 months from the date of this order, and payment of $900 in costs under Rule 24, RLPR. The parties further agree that all conditions for reinstatement set forth in the prior suspension order shall remain in effect.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Steven F. Soronow’s current indefinite suspension is extended for at least an additional 30 months from the date of this order. Respondent shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST James W. MOEN, a Minnesota Attorney, Registration No. 160349.
    No. A04-1071.
    Supreme Court of Minnesota.
    March 28, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent James W. Moen has committed professional misconduct warranting public discipline, namely, respondent committed wire fraud and was convicted of the above offenses in federal court. Respondent was sentenced to pay $200,000 in restitution and placed on probation for 18 months. Respondent’s misconduct violated Minn. R. Prof Conduct 8.4(b) and (c).

Respondent admits his conduct violated the Minnesota Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is an indefinite suspension, effective as of the date of this order, to run concurrent with the term of respondent’s criminal probation; and payment of $900 in costs and disbursements pursuant to Rule 24, RLPR. The parties further recommend that the reinstatement hearing provided for in Rule 18, RLPR, not be waived and that reinstatement be conditioned upon: (1) payment of costs in the amount of $900 plus interest under Rule 24, RLPR; (2) compliance with Rule 26, RLPR; (3) successful completion of the professional responsibility portion of the bar examination under Rule 18(e), RLPR; and (4) satisfaction of the continuing legal education requirements pursuant to Rule 18(c), RLPR. Finally, the parties recommend that respondent be permitted to file a petition for reinstatement on or after May 1, 2005, but in no event may respondent be reinstated prior to the completion of his criminal probation.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent James W. Moen is indefinitely suspended from the practice of law for the term of his criminal probation subject to the conditions stated in this order, and that he shall pay $900 in costs plus interest under Rule 24, RLPR.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


author: /s/G. Barry Anderson Associate Justice

text:
    Nancy FRENCH, Relator, v. MPLS. SPECIAL SCHOOL DIST. # 1/ Self-Insured/Sedgwick Claims Management Service, Respondents.
    No. A05-131.
    Supreme Court of Minnesota.
    April 6, 2005.
    David R. Vail, Soderberg & Vail, L.L.C., Minneapolis, MN, for Appellant.
    Barbara Bloom, David M. Bateson, Rider Bennett, L.L.P., Minneapolis, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed December 29, 2004, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/G. Barry Anderson Associate Justice


author: CRIPPEN, Judge.

text:
    William B. WESTON, et al., Plaintiffs, v. McWilliams & ASSOCIATES, INC., d/b/a Top Value Homes, Appellant, v. Tappe Construction, Panelcraft of Minnesota, Inc., et al., Windsor Window Company, Respondents.
    No. A04-1251.
    Court of Appeals of Minnesota.
    April 12, 2005.

      Scott M. Rusert, Andrea D. Kiehl, Flynn, Gaskins & Bennett, L.L.P., Minneapolis, MN, for appellant.
    Michael D. Barrett, Cousineau, McGuire & Anderson, Minneapolis, MN, for respondent Tappe Construction.
    Michael J. Tomsche, Teresa Gumerman, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, MN, for respondent Panelcraft of Minnesota.
    Michael P. North, Douglas D. McGhee, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, MN, for respondent Windsor Window Company.
    Considered and decided by MINGE, Presiding Judge, WRIGHT, Judge, and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

This appeal requires judicial interpretation of the statute of repose for claims premised on defective and unsafe real estate improvements. Appellant contends the ten-year statute (running from the date when construction is completed), because it limits when an action can “accrue,” permits suits within the normal two-year limitation period in the eleventh or twelfth year after construction is completed, even though its claim accrued in fact after the ten-year anniversary. Determining that a proper interpretation of the statute requires this result, we reverse the summary judgment dismissing appellant’s contribution and indemnity claims and remand the proceedings to the district court.

FACTS

In 1993, plaintiffs Weston and Schwalbe contracted with appellant Top Value Homes to build a home in Eagan. Top Value subcontracted with respondents Tappe Construction (framing), Panelcraft of Minnesota (siding), and Windsor Window Company (manufacturing windows). A certificate of occupancy was completed for the home on July 20,1993.

In 2002, an inspector of the home found significant amounts of mold and believed the cause was water intrusion. This followed the deteriorating health of plaintiffs and their children. In May 2003, two months before the tenth anniversary of completion of the home construction, plaintiffs brought an action for damages against appellant Top Value. Appellant initiated contribution and indemnity action against respondents in March and April 2004, in the eleventh year after construction was completed. The contribution and indemnity claim had not ripened before the tenth year following construction. Following motions premised on the statute of repose in Minn.Stat. § 541.051, subd. 1(a) (2002), the district court granted summary judgment to respondents.

ISSUE

Did the district court correctly determine that Minn.Stat. § 541.051, subd. 1(a) (2002), bars initiation of a contribution and indemnity suit in the eleventh year after completion of construction?

ANALYSIS

When reviewing the district court’s summary judgment, we must determine whether the court erred in its application of the law. Larson v. Babcock & Wilcox, 525 N.W.2d 589, 591 (Minn.App.1994) (announcing standards for review of decision on the facts and on the law).

Minn.Stat. § 541.051, subd. 1(a), limits actions and accrual of actions for injuries “arising out of the defective and unsafe condition of an improvement to real property,” and for contribution and indemnity for damages sustained on account of these injuries. Id. Subject to conditions not relevant to this case, paragraph (a) prohibits an action more than two years after the injury is discovered “or, in the case of an action for contribution or indemnity, [after] accrual of the cause of action.” Id. A subsequent clause of the paragraph states the period of repose: “[N]or, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.” Id. (emphasis added).

In the case of contribution and indemnity claims, the limitation period begins upon “accrual” of the cause of action. Id. Minn.Stat. § 541.051, subd. 1(b), declares that “a cause of action accrues” under paragraph (a), in the case of an action for contribution and indemnity, upon “payment” on a claim arising out of the unsafe condition. Id. An injury claim “accrues upon discovery of the injury,” the time stated in paragraph (a) for the beginning of the limitation period on these claims. Id.

We must determine the meaning of the subsequent clause of paragraph (a), stating that an action shall not “accrue” more than ten years after substantial completion of the construction.

The parties have not produced and we have not found legislative history relevant to the use of the “accrue” concept in the 1980 amendment of Minn.Stat. § 541.051. The original version of the limitations and repose provisions now found in Minn.Stat. § 541.051, subd. 1(a), was enacted in 1965, and this version was subsequently found to be unconstitutional for reasons not relevant to this case. See Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 555 (Minn.1977). The first version of the statute provided that no action “shall be brought” more than ten years after completion of construction. See Calder v. City of Crystal, 318 N.W.2d 838, 842-43 (Minn.1982) (reviewing history of enactment and alteration of provision). The “accrue” concept for the repose clause first appeared in Minn.Stat. § 541.051, subd. 1 (1980). Calder, 318 N.W.2d at 843.

We also are unassisted in our interpretation of this repose statute by any precedents addressing the issue in this case. We observe but find no authority in mixed signals from appellate court dicta on this statute of repose. Thus, for example, we note the observation of the supreme court that the repose provision of Minn.Stat. § 541.051, subd. 1(a), “specifies a limitation period barring suit more than 10 years after substantial completion of a real property improvement;” the court had no occasion when making this observation either to note the accrual concept or to determine the time when the statute operated to stop the period for suit. Olmanson v. LeSueur County, 693 N.W.2d 876, 880, n. 2 (Minn.2005) (reviewing scope of claims subject to statute of repose); cf. Concordia Coll. Corp. v. W.R. Grace & Co., 999 F.2d 326, 328 (8th Cir.1993) (when confirming lawful application of repose statute 20 years after construction, correctly paraphrasing statute as one on “accrual” of a cause and declaring that the cause “will be deemed accrued” under the statute “no later than” ten years after construction).

Without explanation, the district court determined that becausé the “commencement by Top Value of its claim for third-party contribution” occurred more than ten years after completion of construction, “the clock had run on the period of repose” and its claims were “extinguished.”

At' least two things' are evident upon initially examining the statute at issue in this case. First, it is a statute of repose added to the statute of limitation, declaring an ultimate repose of an injury action or a contribution or indemnity action, regardless of when the cause of action arises. See Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 454 (Minn.1988); see also Koes v. Advanced Design, Inc., 636 N.W.2d 352, 357 (Minn.App.2001) (determining dat'e of discovery for a statute of limitations, and noting common effect of repose statutes to ultimately bar some litigation of claims before injuries are ever discovered), review denied (Minn. Feb. 19, 2002).

Second, this is not a “typical” statute of repose. Although the “nor” clause might be expected to state a date of repose for the time when an action “shall be brought” (the verbs employed in the preceding limitations clause of the sentence), the repose clause says instead that the cause of action must “accrue” no later than ten years after construction is completed. Minn.Stat. § 541.051, subd. 1(a). In the limitations portion of the statute, the date of accrual is the date the limitations period begins. For an injury claim, the date of this significant accruing is designated as the date of discovery. Minn.Stat. § 541.051, subd. 1(a), (b). For a contribution/indemnity claim, the beginning date of the limitations period is designated only as the date of “accrual,” and this is defined in the next subparagraph as the payment event that gives rise to the contribution claim. Id., subd. 1(b).

In the case of either an injury claim or a contribution/indemnity claim, the repose clause begs for clarity as to an ultimate time limit that the statute addresses in terms of the event when a claim “accrue[s].” As evident in the case now on appeal, this effort to interpret the meaning and effect of the word “accrue” will dwell particularly on the matter of claims that accrue in fact after the tenth year following completion of construction. Because of another part of the statutory scheme, we need not imagine the potential for bringing a suit after year twelve; Minn.Stat. § 541.051, subd. 2 (2002), provides that no action of the kind addressed by subdivision 1 may “be brought” more than 12 years after construction is completed.

As the parties appreciate in this case, there are conflicting inferences that might be attributed to this statute of repose for a late-arising claim, one that ripens after the stated ten-year anniversary date.

On the one hand, it might be inferred from the statutory language that the claim never accrues, that no suit can ever be brought if the claim accrues in fact in year eleven or twelve. The statute does not speak of the bringing of a suit, but this limit on suing can fairly be inferred from the notion that accrual is not to occur after the tenth year. And this reading does no offense to the prospect for suits in year eleven and year twelve, for claims that have accrued within ten years, and the concept does not conflict with a stated limit against suits after year twelve.

On the other hand, it might as reasonably be inferred, although also not expressed, that ripening of the cause is deemed by law to occur at the end of the tenth year, and that no action on the claim can be brought after the end of year twelve, when the relevant statute of limitations will have expired. As already observed, the statute does not contain an express bar against the conduct of litigants, the bringing of an action, and its reference instead to a concept of law, the occurrence of accrual, begs as well for this conflicting inference.

Based on numerous considerations, we determine that the second inference, accrual deemed no later than the end of year ten, is compelling and must be declared a matter of law.

A. Accrual

Standards of interpretation dictate attention to the fact that this legislature and others commonly use the concept of “shall be brought” in statement of statutes of limitation and repose, and we must adjudge as deliberate the choice of the 1980 Minnesota Legislature against expressing an end of the time to sue. The legislature chose instead to state a distinctly different concept of accrual. Minn.Stat. § 645.16(5) (2002) (requiring attention to legislation on similar subjects). The right to sue is not addressed by the repose clause of subdivision 1(a).

Although there are no prior appellate decisions that review the issue in this case, the supreme court has addressed the concept of accrual and distinguished it from the right to sue; this occurred in an opinion stating the court’s holding that a contribution claim can be brought before accrual occurs. See Calder, 318 N.W.2d at 842 (observing that contribution claimant, although its claim was not accrued, was free to state its claim for over a year before enactment of statute barring its action, making “hollow” its cry of unfairness in application of the statute). Subdivision 1(a) addresses the significance of accrual but is silent on the right to sue.

Finally, we are mindful that it is commonplace to speak of the date of accrual as the occasion when statutes of limitations begin to run. Accordingly, the legislature provided that the two-year statute of limitations begins to run when contribution or indemnity actions accrue. The concept signals the beginning of a limitations period, not the end date for the validity of a claim. See Minnesota Landmarks v. M.A. Mortenson Co., 466 N.W.2d 413, 415-16 (Minn.App.1991) (application of limitations statute to contribution and indemnity claim), review denied (Minn. May 10, 1991).

B. Bringing Suit

In contrast with subdivision 1, the right to sue is expressly addressed in Minn.Stat. § 541.051, subd. 2, which deals with the conduct of bringing suit and bars initiation of a legal action after year twelve following the completion of construction. Thus, when examining the repose language of subdivision 1(a), we are mindful that section 541.051 expressly contemplates that suit may occur in years eleven and twelve. Minn.Stat. § 541.051, subd. 2, complements the statement of a two-year period to sue after accrual of a contribution and indemnity claim. Minn.Stat. § 541.051, subd. 1(a).

Taking into account these plain-meaning observations of Minn.Stat. § 541.051, we also remember that we are compelled to avoid an absurd interpretation. Thus, we anticipate cases where injuries covered by the section are discovered, for example, in the ninth or tenth year after construction, but the cause of action is not brought until year eleven or year twelve. In cases of this kind, an interpretation barring a contribution or indemnity action after the tenth year prospectively destroys the right to assert such a claim before the contribution claimant has any opportunity to learn that a meritorious claim of an injured party has arisen. See Minn.Stat. § 645.16(6) (2002) (requiring attention to the consequences of interpretation); see also Minn. Stat. § 645.17(1) (2002) (declaring legislative intent against the absurd or unreasonable).

C. Narrow Construction

Although it is not singularly critical, we give weight while deliberating on these considerations to the demand of the supreme court for strict construction of the unique provisions of Minn.Stat. § 541.051 (2002). See Kittson County v. Wells, Denbrook & Assocs., 308 Minn. 237, 240-41, 241 N.W.2d 799, 801 (1976) (contrasting the approach to this statute with the liberal construction previously accorded statutes of limitations “as embodying important public policy in barring stale claims”). This rule of construction was premised on uncertainty in the scope of Minn.Stat. § 541.051, the resulting risk that persons affected by its terms may not be fairly apprised of its application to their decisions, and the potential harsh result for affected persons. Id. These are reasons that are applicable to the kind of question at issue in this case.

Based on these considerations, we conclude that the statute of repose deems accrual of appellant’s contribution and indemnity claims to have occurred at the end of the tenth year following completion of construction in 1993. Because the statute of limitations permits commencement of action on the claims in the following two years, appellant’s actions against respondents in 2004 were timely.

In the absence of relief by interpretation of the statute of repose, appellant states cause for permitting its contribution and indemnity actions under general principles of equity and justice. Because the district court’s judgment is reversed under the statute, we need not reach this issue. Based on the plain language of the statute and our foregoing analysis, we reject as without merit appellant’s additional argument, its assertion that the “repose” language of Minn.Stat. § 541.051, subd. 1(a), addresses only injury claims and not claims for contribution and indemnity.

DECISION

Because appellant’s suit on its claims of contribution and indemnity occurred within the parameters of Minn.Stat. § 541.051 (2002), and thus was timely, we reverse the district court’s summary judgment and remand for further proceedings in the case.

Reversed and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

      . Under Minn.Stat. § 541.051, subd. 1(b) (2002), discussed more fully in our legal analysis of this case, a contribution or indemnity claim "accrues" "upon payment of a final judgment, arbitration award, or settlement arising out of the defective and unsafe condition.”

      . Minn.Stat. § 541.051, subd. 1(b) (2002), provides: "For purposes of paragraph (a), a cause of action accrues upon discovery of the injury or, in the case of an action for contribution or indemnity, upon payment of a final judgment, arbitration award, or settlement arising out of the defective and unsafe condition.”

      . This accrual provision in subdivision 1(b) adopts a standard previously recognized in appellate decisions. "[A]n action for contribution or indemnity does not accrue until one tortfeasor, commonly liable with at least one other tortfeasor, pays more than its share of the damage.” See Blomgren v. Marshall Mgmt. Servs., Inc., 483 N.W.2d 504, 506-07 (Minn.App.1992) (holding that common liability is not destroyed by the running of the statute of limitations on the plaintiff’s claim against a joint tortfeasor). When such third-party action is brought, the contribution/indemnity claim is considered contingent upon the outcome of the original action. Grothe v. Shaffer, 305 Minn. 17, 25-26, 232 N.W.2d 227, 233 (1975).

      . In similar fashion, the supreme court noted earlier that this statute of repose establishes "finite period of time in which actions against certain parties may be brought.” Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 454 (Minn.1988) (approving constitutionality of statute in circumstances where injuries occurred more than 18 years after completion of construction).

      . As already noted, prior to 1980, Minn.Stat. § 541.051, subd. 1, specifically stated the "shall be brought” requirement for both the limitations and the repose provisions. Reflecting .this version, and with no occasion for applying or addressing the "accrue” concept in the 1980 amendment, other dicta in several opinions states that the repose provision provides when a suit can be commenced. See Larson, 525 N.W.2d at 591 (reviewing application of statute 37 years after completion of construction); see also Lourdes High Sch. of Rochester, Inc. v. Sheffield Brick & Tile Co., 870 F.2d 443, 445 (8th Cir.1989) (choosing Minnesota law in case where injuries were discovered 25 years after construction); Bethesda Lutheran Church v. Twin City Constr. Co., 356 N.W.2d 344, 352 (Minn.App.1984) (review on two-year statute of limitations), review denied (Minn. Feb. 5, 1985).

      . This dicta of Koes speaks of the repose statute of Minn.Stat. § 541.051, subd. 1(a), but addresses only its ultimate potential to defeat litigation, without having occasion to address the time parameters it announces.

      . "A typical statute of repose will specify a presumptive number of years after which an action cannot be brought.” Olmanson, 693 N.W.2d at 880 (reviewing claims subject to relevant statute of repose; quoting Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830 (Minn.1988) (reviewing "useful life” defense in products liability statute, Minn.Stat. § 604.03 (1986), and contrasting this with "typical” statute of repose)).

      . Minn.Stat. § 541.051, subd. 2, provides as follows:
      Action allowed; limitation. Notwithstanding the provisions of subdivision 1, in the case of an action which accrues during the ninth or tenth year after substantial completion of the construction, an action to recover damages may be brought within two years after the date on which the action accrued, but in no event may an action be brought more than 12 years after substantial completion of the construction.

      . For example, we note Minn.Stat. § 541.052 (2002) (liability for land survey error), enacted in 1986, setting both the limitations period and the ten-year repose period in reference to the act of bringing suit. This statute resembles the 1965 version of Minn.Stat. § 541.051, subd. 1. See supra note 5.

      . Calder applied the statute of repose in Minn.Stat. § 541.051, subd. 1(a), after its reenactment in 1980, but not in circumstances pertinent to the immediate case. In Calder, the contribution claim had not yet accrued when the case was decided in 1982, but the completion-of-construction date was 24 years earlier, in 1958. 318 N.W.2d at 839-40.

      .This subdivision assists in our interpretation, but does not directly resolve the issue of this case. Although the provision permits suits in years eleven and twelve, it does not expressly determine that this affects actions accrued either before year ten, at the end of year ten, or later.