author: WIGGINS, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Ryan B. MOORMAN, Respondent.
    No. 06-1520.
    Supreme Court of Iowa.
    March 23, 2007.

      Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.
    Ryan B. Moorman, Modesto, CA, pro se.
   WIGGINS, Justice.

On March 1, 2006, the Iowa Supreme Court Attorney Disciplinary Board filed an eight-count complaint against Ryan B. Moorman alleging he violated various rules of the Iowa Code of Professional Responsibility for Lawyers. Prior to the hearing the Board and Moorman entered into a stipulation of facts. Moorman and the Board stipulated to all of Moorman’s various violations of the rules of the Iowa Code of Professional Responsibility for Lawyers contained in the complaint. Additionally, the parties stipulated this court had previously suspended Moorman’s license to practice law indefinitely on June 16, 2004, with no possibility of reinstatement for two years. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 554 (Iowa 2004). The stipulation also waived a hearing and authorized the Iowa Supreme Court Grievance Commission to close the record.

The Commission found Moorman violated the provisions of the Iowa Code of Professional Responsibility for Lawyers as stipulated. It recommended we suspend Moorman’s license to practice law for an additional two years. The Commission also recommended this court not allow Moorman to practice law in this state until he repays his clients the fees he collected without performing services for them. Further, the Commission recommended Moorman only practice law in this state upon a showing that he is associated with a firm or that he has taken and continues to take a law practice mentoring program.

Although we agree with the Commission that Moorman violated numerous provisions of the Iowa Code of Professional Responsibility for Lawyers, we disagree that his license to practice law should be suspended indefinitely with no possibility of reinstatement for two years. In view of the two-year suspension we previously imposed for substantially similar conduct occurring during the same time frame as the misconduct at issue here, we believe a public reprimand is sufficient. Accordingly, we reprimand Moorman for his conduct involved in this disciplinary proceeding.

We review attorney disciplinary proceedings de novo. Iowa, Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa 2006). The Board must prove ethical violations by a convincing preponderance of the evidence. Id. “Although we consider the Commission’s factual findings and discipline recommendations, they do not bind us.” Id. Upon review, we can impose a greater or lesser sanction than the Commission recommended. Iowa Ct. R. 35.10(1).

On our de novo review, we find the facts as follows. Moorman neglected to prosecute Jose Martinez’s post-conviction relief action in 2003. Martinez filed an ethics complaint with the Board. The Board attempted to notify Moorman by restricted certified mail of Martinez’s complaint, but the Board’s letter was returned. The Board then personally served Moorman with notice of the complaint and requested a response. Moorman did not reply. The Board sent a second notice to Moorman. This notice was also returned to the Board. The Board sent a third letter by ordinary mail, but Moorman did not respond.

Between 2001 and 2003 Moorman neglected to prosecute Stanley Reed’s post-conviction relief action. Moorman received a $2000 retainer from Reed, but he did not perform the services he agreed to do. Reed filed a complaint with the Board and an application for reimbursement with the client security commission. The Board sent Moorman a notice of the complaint, which was returned. The Board then served the notice on Moorman’s wife, Kristen, at their residence. A second notice was sent and signed for by Moorman. Although' a response was required, he did not respond. Moorman also received a copy of the application for reimbursement by certified mail, but he did not respond to the application as required.

Between 2003 and 2004 Moorman neglected Randy Estabrook’s post-conviction relief action. Estabrook filed a complaint with the Board. The Board notified Moor-man of the complaint by restricted certified mail. A response was required, but Moorman did not respond. The Board attempted to serve Moorman with a second notice, but it was returned. The Board sent the second notice again, this time by regular mail. Moorman never responded.

Also between 2003 and 2004 Moorman neglected to defend Rogelio Arce-Lopez in his criminal case. In the Arce-Lopez matter, Moorman received a $1250 retainer, however, he failed to return the retainer or provide Arce-Lopez an accounting as Moorman promised. After finding Moor-man had “abandoned his representation” of Arce-Lopez, the judge in the case filed a complaint with the Board. The Board notified Moorman of the complaint by restricted certified mail and required a response, but Moorman did not reply. The Board served Moorman again by restricted certified mail, but Moorman did not respond.

Finally, Moorman neglected Ronda Kumberg’s forfeiture matter. In 2003 Kumberg hired Moorman to represent her in a forfeiture action. Kumberg paid Moorman a $5000 retainer. However, Moorman neglected to appear in the action, and Kumberg forfeited her property to the state.

In addition to these matters, in 2002 Crysthian Israel Mayoral’s wife, Maria Mayoral, retained Moorman to represent Crysthian in a criminal appeal. Moor-man’s neglect in handling Crysthian's appeal was one of the acts leading to Moor-man’s suspension in 2004. In the present matter, we are concerned about the $3300 retainer he received from Maria. Maria requested an accounting from Moorman concerning her retainer, but he did not provide one. Moorman also did not respond to Maria’s phone calls or another attorney’s inquiries on behalf of Maria requesting an accounting of the fees.

Additionally, in 2003 Moorman wrote a check to the client security trust fund for $110 and to the commission on continuing legal education for $35. The bank returned both checks as unpaid because Moorman wrote the checks on a closed account. The assistant court administrator wrote to Moorman about the dishonored checks, but Moorman did not respond. The Board then wrote to Moorman and notified him about the returned checks, and that drawing on checks from a closed account appeared to be a violation of DR 1-102(A)(4), (5), and (6). The Board requested a response. Moorman received the Board’s communication, but he did not respond. The Board sent an additional letter regarding these checks, but Moorman did not respond to this letter.

The last matter concerning Moorman’s misconduct involves the Larry E. Cody matter. In 2003 Cody filed an ethics complaint against Moorman with the Board. The Board notified Moorman of the complaint on three separate occasions, twice by restricted certified mail and once by ordinary mail. The Board required a response from Moorman, but he did not respond.

Moorman’s failure to respond to the Board’s notices violates Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(5) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice) and DR 1-102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects on the fitness to practice law).

Moorman’s failure to prosecute the post-conviction relief actions, to appear in the forfeiture action, and to defend the criminal matter violates Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(5), DR 1-102(A)(6), DR 6-101(A)(3) (prohibiting a lawyer from neglecting a client’s legal matter), and DR 7-101(A) (prohibiting a lawyer from intentionally failing to seek the lawful objectives of a client, failing to carry out a contract of employment for professional services with a client, or prejudicing or damaging a client during the course of the professional relationship).

Moorman’s acceptance of retainer fees from his clients and his subsequent failure to account for these fees violates Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(3) (prohibiting a lawyer from engaging in illegal conduct involving moral turpitude), DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(5), DR 1-102(A)(6), DR 6-101(A)(3), DR 7-101(A), DR 9-102(B)(3) (requiring a lawyer to maintain records of client funds and render appropriate accounts), and DR 9-102(B)(4) (requiring a lawyer to promptly pay and deliver funds as requested by a client).

When Moorman wrote checks on a closed account he violated Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(4), DR 1-102(A)(5), and DR 1-102(A)(6).

We have suspended an attorney’s license to practice law for up to two years for conduct similar to Moorman’s conduct. See, e.g., Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 96 (Iowa 2006) (suspending the attorney’s license for two years where the attorney’s conduct “consist[ed] of multiple acts of neglecting clients’ matters, misrepresenting how he was processing the matters to his clients, misrepresenting a matter to the court, misrepresenting a matter to the Polk County Ethics Committee, failing to withdraw from a matter when discharged, failing to deposit retainers in a trust account, failing to maintain proper books and records regarding a trust account, failing to deliver client funds when requested to do so, using funds that belong in a trust account for personal or business use, and failing to respond to the Board’s inquiries”); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Maxwell, 705 N.W.2d 477, 478-80 (Iowa 2005) (suspending the license of an attorney, with a history of prior disciplinary actions involving client neglect, for one year when the attorney neglected to file actions and to notify a client of a hearing); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 401 (Iowa 2005) (imposing an eighteen-month suspension where “[the lawyerj’s misconduct include[d] neglecting legal matters, loaning money to himself, taking fees without a proper accounting, making a misrepresentation to the court, failing to render appropriate accounts, failing to promptly distribute funds as required by the trust, failing to maintain books and records, and failing to cooperate with the disciplinary process”); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d 812, 820, 822 (Iowa 2004) (imposing a two-year suspension where the attorney’s conduct involved “multiple acts of making misrepresentations to the court, disregarding court orders, neglecting client matters, misrepresenting the status of matters to [] clients, and failing to respond to the Board’s inquiries”).

However, in determining the appropriate sanction for Moorman, we must consider Moorman’s previous suspension. There we suspended Moorman’s license to practice law, in part, for his failure to file a personal injury action on behalf of his client. Moorman, 683 N.W.2d at 552-53. After missing a statute of limitations, Moorman told his client he would pay her the amount of money he believed she would have received if he had timely filed the suit. Id. at 550-51. Then Moorman failed to pay his client the sum he promised. Id. at 551. Additionally, in an attempt to obtain medical coverage for this client, Moorman offered to misrepresent the date of his client’s accident to an insurance company. Id. Because of Moorman’s conduct, his client was forced to file for bankruptcy. Id. In addition to his conduct involving this client, Moorman neglected five separate criminal and juvenile appeals. Id. Moorman’s actions caused us to suspend Moorman’s license to practice law indefinitely with no possibility of reinstatement for two years. Id. at 554.

All of Moorman’s conduct that is the subject of the present disciplinary action occurred prior to June 16, 2004, the date we suspended Moorman’s license to practice law for two years. Moorman’s conduct in the prior disciplinary proceeding and in this proceeding is similar and demonstrates the same pattern of conduct. Under these circumstances, we are allowed to impose a concurrent sanction instead of a consecutive sanction. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. O’Brien, 690 N.W.2d 57, 58-59 (Iowa 2004) (finding even if at the time of the previous disciplinary action the court had been aware of the newly charged violations, which occurred prior to the previous disciplinary action, it is unlikely that this information would have resulted in a more lengthy suspension; and therefore running the suspension concurrent to the previous suspension); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. D’Angelo, 652 N.W.2d 213, 215 (Iowa 2002) (imposing a concurrent sentence, reasoning if additional violations had been brought to the court’s attention at the time of the previous sanction, the court “seriously doubt[s] that respondent’s prior suspension ... would have been enlarged”). Had we been aware of the conduct that is the subject of this disciplinary proceeding at the time of our previous decision, it is unlikely this conduct would have caused us to suspend Moorman’s license for longer than two years. Because Moorman’s license is presently under suspension, we see no purpose served by ordering another suspension insofar as a deterrence or protection of the public is concerned. See Comm, on Prof'l Ethics & Conduct v. Clauss, 468 N.W.2d 213, 215 (Iowa 1991) (reprimanding an attorney for conduct that occurred before a prior suspension when the conduct that was the subject of the present proceeding would not have lengthened the prior suspension).

Accordingly, for Moorman’s conduct in the present disciplinary proceeding we impose a public reprimand rather than the suspension recommended by the Commission. However, as a condition of reinstatement from his prior suspension, Moorman must repay all of his clients involved in this disciplinary proceeding the fees he collected without performing services for them. Moorman must repay Reed $2000, Arce-Lopez $1250, Kumberg $5000, and Mayoral $3300. We tax the costs of this action to Moorman pursuant to Iowa Court Rule 35.25.

ATTORNEY REPRIMANDED.


source: Caselaw Access Project

author: TERNUS, Chief Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Charles Edward ROSS III, Appellant.
    No. 05-0364.
    Supreme Court of Iowa.
    March 23, 2007.
    Rehearing Denied April 18, 2007.

      Patricia A. Reynolds, Acting State Appellate Defender, Nan Jennisch, Assistant State Appellate Defender, for appellant.
    Charles Edward Ross III, Fort Dodge, pro se.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and James P. Ward, Assistant County Attorney, for appellee.
   TERNUS, Chief Justice.

The appellant, Charles Edward Ross III, challenges his sentences on two counts of robbery in the second degree as a habitual offender. He claims the court was without authority to impose a fine because neither the robbery statute nor the habitual-offender statute provide for a fine, a claim with which the State agrees. Ross’s second challenge to his sentence focuses on the court’s imposition of a period of imprisonment “as provided by Iowa Code section! ] ... 902.12,” which requires a defendant to serve a minimum of seventy percent of his sentence before becoming eligible for parole. He claims this statute does not apply to sentences imposed on habitual offenders.

The defendant’s appeal was transferred to the court of appeals. That court vacated the defendant’s sentences in part, holding the district court was without authority to impose a fine. The court of appeals refused to address the defendant’s challenge to the applicability of section 902.12, holding error had not been preserved.

We granted further review. We agree the district court had no authority to impose a fine on the charges of second-degree robbery as a habitual offender. We disagree, however, with the court of appeals’ disposition of the defendant’s challenge to the mandatory minimum aspect of his sentences. Finding no error preservation problem and addressing this claim on the merits, we conclude section 902.12 does apply, and the court properly sentenced the defendant to serve a minimum of seventy percent of his sentence. Accordingly, we vacate the court of appeals’ decision, vacate that portion of the defendant’s sentences imposing a fine, and affirm the balance of the sentences imposed by the district court.

I. Background Facts and Proceedings.

Ross pled guilty as a habitual offender to two counts of second-degree robbery. See Iowa Code §§ 711.1, 711.3, 902.8 (2003). The defendant waived his right to file a motion in arrest of judgment and requested immediate sentencing. The district court found the defendant guilty and imposed concurrent sentences “for a period not to exceed fifteen years as provided in Iowa Code sections 902.3, 902.9 and 902.12.” The defendant was ordered to pay restitution, court costs, a law-enforcement-initiative surcharge, attorney fees, and a $5000 fine for each offense.

On appeal, the defendant’s counsel made one argument: the court was without authority to impose a fine. In a pro se brief, the defendant raised several additional issues, none of which were raised in the district court. As we discuss below, one of these issues — the question of the legality of imposing a mandatory minimum sentence — is not subject to the normal error preservation rules. Consequently, we will address that claim on its merits. The other issues raised in the defendant’s pro se brief were not preserved, and therefore, we give them no consideration.

II. Standard of Review.

In determining the proper standard for review, we focus on the nature of the defendant’s claimed error. The defendant contends his sentences were not authorized by statute. A sentence not permitted by statute is illegal. See State v. Kress, 636 N.W.2d 12, 17 (Iowa 2001). “[T]he sentence is illegal because it is ‘beyond the power of the court to impose.’ ” State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (quoting State v. Wilson, 294 N.W.2d 824, 825 (Iowa 1980)).

The issues raised by the defendant are, therefore, essentially questions of statutory interpretation. Kress, 636 N.W.2d at 17. Consequently, our review is for correction of errors of law. Id.

III. Legality of Fine.

The defendant asserts the district court was without authority to impose a fíne because neither the robbery statute nor the habitual-offender statute provides for a fine. The State agrees, and so do we.

Second-degree robbery is a class “C” felony. See Iowa Code § 711.3. Section 902.9(4) provides that a “class ‘C’ felon, not a habitual offender, ... shall be sentenced to a fíne of at least one thousand dollars but not more than ten thousand dollars.” Id. § 902.9(4) (emphasis added). The sentencing statute for a habitual offender simply provides that an “offender shall be confined for no more than fifteen years.” Id. § 902.9(3). Therefore, the applicable statutes do not authorize a fine as part of the sentence for a habitual offender convicted of second-degree robbery.

A sentence not permitted by statute is illegal and void. See State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000). Accordingly, the unauthorized fines imposed as part of the defendant’s sentences must be vacated.

IV.Mandatory Minimum Sentence.

A. Error preservation. As noted above, the defendant did not challenge the district court’s application of the mandatory minimum sentence set forth in section 902.12 until this appeal. For this reason, the court of appeals held error had not been preserved. Our cases do not support this conclusion. We stated in Woody:

An illegal sentence is void and “not subject to the usual concepts of waiver, whether from a failure to seek review or other omissions of error preservation.” Because an illegal sentence is void, it can be corrected at any time.

613 N.W.2d at 217 (quoting State v. Ohnmacht, 342 N.W.2d 838, 843 (Iowa 1983)). Thus, we proceed to consider this issue on the merits.

B. Issue. The defendant argues that the minimum sentence requirements for habitual offenders is that set forth in Iowa Code section 902.8, which provides: “A person sentenced as an habitual offender shall not be eligible for parole until the person has served the minimum sentence of confinement of three years.” The district court relied on Iowa Code section 902.12(5) in sentencing the defendant to serve seventy percent of his sentence. That statute provides:

A person serving a sentence for conviction of the following felonies shall be denied parole or work release unless the person has served at least seven-tenths of the maximum term of the person’s sentence:
5. Robbery in the first or second degree in violation of section 711.2 or 711.3.

Iowa Code § 902.12(5) (Supp.2003). We must interpret these statutes to determine whether section 902.12 applies to this defendant.

C. Governing legal principles. “ ‘When a minimum sentence is prescribed ... the legislature ordinarily requires a judicial determination of its applicability.’ ” State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000) (quoting State v. Wilson, 314 N.W.2d 408, 409 (Iowa 1982)). Whether section 902.12(5) applies to a habitual offender must be considered in light of well-established principles of statutory interpretation:

“When the text of a statute is plain and its meaning clear, the court should not search for meaning beyond the express terms of the statute .... ” However, where the language of a statute is ambiguous, so that reasonable minds would differ on the meaning, we turn to our rules of interpretation. The polestar of statutory interpretation is to give effect to the legislative intent of a statute. We “consider the objects sought to be accomplished and the evils and mis-chiefs sought to be remedied, seeking a result that will advance, rather than defeat, the statute’s purpose.” ... [W]e will not construe a statute in a way [that] creates an impractical or absurd result, nor will we speculate as to the probable legislative intent beyond what the language clearly states.

State v. Tesch, 704 N.W.2d 440, 451 (Iowa 2005) (quoting State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999)); see also State v. Allen, 708 N.W.2d 361, 366 (Iowa 2006) (“Legislative intent is derived not only from the language used but also from ‘the statute’s “subject matter, the object sought to be accomplished, the purpose to be served, underlying policies, remedies provided, and the consequences of the various interpretations.”’” (quoting Cox v. State, 686 N.W.2d 209, 213 (Iowa 2004))).

“[W]e ‘construe statutes that relate to the same or a closely allied subject together so as to produce a harmonious and consistent body of legislation.’ ” Iowa Dist. Ct., 616 N.W.2d at 578 (quoting State v. Casey’s Gen. Stores, Inc., 587 N.W.2d 599, 601 (Iowa 1998)). “In addition, the legislative history of a statute is instructive and we may consider it when ascertaining legislative intent.” Allen, 708 N.W.2d at 366.

D. Discussion. The defendant argues the mandatory minimum sentence applicable to his crime is the three-year mandatory minimum for habitual offenders established in section 902.8. He claims the district court erred in imposing the seventy-percent mandatory minimum sentence provided for persons convicted of robbery in the second degree as authorized by section 902.12.

Although we have never addressed this precise question, we considered a similar issue in State v. Burgs, 479 N.W.2d 323 (Iowa 1992). In that case, the defendant, Nathan Burgs, was convicted of a class “D” theft and sentenced as a habitual offender subject to the parole restrictions of Iowa Code section 902.11. Burgs, 479 N.W.2d at 323. Section 902.11 provides that forcible felons who have a prior forcible felony conviction must serve at least one-half of their term of imprisonment before being eligible for parole. Id. (citing Iowa Code § 902.11). Burgs claimed on appeal that section 902.11 did not apply because the parole restrictions of section 902.11 conflicted with the parole restrictions of section 902.8, which stated that habitual offenders were not eligible for parole until the person had served a three-year minimum sentence. Id. at 323-24. Finding section 902.11 “unambiguous and its meaning plain,” this court held that statute “authorize^] extended prison terms for [certain] forcible felons ..., whether habitual offenders or not .... ” Id. at 324. We noted section 902.11 was “a reasonable legislative response to the problem of recidivism.” Id. In essence, we held, “the lengthier penalty of section 902.11 merely subsumes the three-year minimum of section 902.8.” Id.

The same analysis applies here. Section 902.12 provides no exception for habitual offenders. Its terms are clear: “A person serving a sentence for conviction of [second-degree robbery] shall be denied parole or work release unless the person has served at least seven-tenths of the maximum term of the person’s sentence.” Iowa Code § 902.12. The defendant here is such a person. He was sentenced for the crime of second-degree robbery, not for being a habitual offender. See Woody, 613 N.W.2d at 217 (stating “habitual-offender statutes do not charge a separate offense; they only provide for enhanced punishment on the current offense”). Consequently, the clear and unambiguous terms of section 902.12 encompass this defendant. Like the sentence in Burgs, “the lengthier sentence of section [902.12] merely subsumes the three-year minimum of section 902.8.” Burgs, 479 N.W.2d at 324.

The defendant contends the legislative history of section 902.8 warrants a different result. Prior to 1976, Iowa Code section 747.5 defined a “habitual criminal” and provided that a habitual criminal “shall be punished by imprisonment in the penitentiary for a term of not more than twenty-five years, provided that no greater punishment is otherwise provided by statute, in ivhich case the law creating the greater punishment shall govern.” Iowa Code § 747.5 (1975) (emphasis added). When section 902.8 was enacted, the italicized qualification was not included. See Iowa Code § 902.8. The defendant argues that the omission of similar language in section 902.8 evidences the legislature’s intent that section 902.8 should stand alone to govern the punishment of habitual offenders.

An obvious fallacy in this argument is the fact that section 902.9(3) prescribes the term of imprisonment for a habitual offender. Moreover, in 1992 this court held in Burgs that the mandatory minimum sentence of section 902.11 trumped the mandatory minimum sentence of section 902.8. 479 N.W.2d at 324. The legislature has taken no action in the fourteen years since that decision to correct our interpretation of these statutes, if indeed that interpretation was wrong. See generally Drahaus v. State, 584 N.W.2d 270, 276 (Iowa 1998) (“We consider the legislature’s inaction as tacit approval of our [prior] decision .... ”).

Our interpretation of sections 902.8 and 902.12 also gives effect to the principle that the court should avoid construing a statute so as to create an absurd result. Adopting the defendant’s argument would result in the illogical situation that a recidivist would serve less time than a first-time offender. A recidivist convicted of second-degree robbery would be subject to the fifteen-year sentence for habitual offenders, but would be required to serve only a three-year minimum. See Iowa Code §§ 902.8, .9(3) (providing for a fifteen-year sentence with a three-year mandatory minimum for habitual offenders). In contrast, a first-time offender convicted of second-degree robbery would serve a ten-year sentence with a mandatory seven-year minimum. See id. §§ 902.9, .12 (providing for a ten-year sentence for second-degree robbery and a mandatory seventy-percent minimum). This result is clearly contrary to the legislature’s intent to treat recidivists more harshly. See Woody, 613 N.W.2d at 218 (noting section 902.8 was designed to punish recidivism).

Applying well-established rules of statutory construction, we hold the mandatory minimum sentences prescribed in section 902.12 apply to habitual offenders. Therefore, the district court did not impose illegal sentences in this case when it sentenced the defendant to two fifteen-year sentences to be served pursuant to section 902.12.

V. Summary and Disposition.

The district court imposed an illegal sentence when it required the defendant to pay fines for his second-degree robbery convictions. On the other hand, the district court properly interpreted section 902.12 in making the defendant’s sentences subject to the parole restrictions of that statute. Because the court of appeals erroneously held that error was not preserved on the latter issue, we vacate that court’s decision. We also vacate that portion of the defendant’s sentences requiring him to pay a fine. The defendant’s sentences are affirmed in all other respects.

DECISION OF COURT OF APPEALS VACATED; SENTENCES VACATED IN PART AND AFFIRMED IN PART.

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

      . The defendant claims the district court failed to inform him at the time of his guilty plea that a mandatory minimum sentence would be applied to his habitual-offender sentence, as required by Iowa Code section 901.5(7). The defendant failed to file a motion in arrest of judgment raising this issue, and therefore, this argument has been waived. See Iowa R.Crim. P. 2.24(3) (stating failure to challenge adequacy of plea proceeding by motion in arrest of judgment precludes defendant from asserting such a claim on appeal). The defendant also makes several challenges to the constitutionalily of section 902.12 and the application of that statute to him. These claims, being raised for the first time on appeal, are also untimely. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (holding constitutional challenges to sentencing statutes are governed by normal error preservation rules).


author: LARSON, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee, v. Don E. GOTTSCHALK, Appellant.
    No. 06-1885.
    Supreme Court of Iowa.
    April 6, 2007.

      Paul T. Shinkle, Cedar Falls, for appellant.
    Don E. Gottschalk, Cedar Falls, pro se.
    Charles L. Harrington and Wendell J. Harms, Des Moines, for appellee.
   LARSON, Justice.

The Iowa Supreme Court Attorney Disciplinary Board charged Don E. Gott-schalk with numerous violations of the Iowa Code of Professional Responsibility for Lawyers and the Iowa Rules of Professional Conduct. The Grievance Commission concluded that Gottschalk violated certain provisions of the Iowa Code of Professional Responsibility and Iowa Rules of Professional Conduct and recommended that we suspend Gottschalk’s license to practice law for a period of not less than two years.

We agree with some of the commission’s findings of misconduct, and suspend Gott-schalk’s license to practice law for a period of not less than one year.

I. Standard of Review.

Our review of attorney disciplinary proceedings is well established. We review the commission’s findings de novo. See Iowa Ct. R. 35.10(1) (2005); Iowa Supreme Ct. Attorney Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 104 (Iowa 2006).

“We give respectful consideration to the Grievance Commission’s findings and recommendations, but are not bound by them.”
The Board must prove attorney misconduct by a convincing preponderance of the evidence. This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case. Once misconduct is proven, we “may impose a lesser or greater sanction than the discipline recommended by the grievance commission.”

Iowa Supreme Ct. Attorney Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 791-92 (Iowa 2006) (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).

II. Factual Findings.

Gottschalk practices law in Iowa and, at the time of the conduct involved in this case, resided in Black Hawk County. The board filed this complaint with the commission, charging neglect, misrepresentation, conduct reflecting adversely on Gott-schalk’s fitness to practice law, conduct prejudicial to the administration of justice, and failure to return a client file, arising from Gottschalk’s representation of five separate clients.

A. The Barbara Malone estate. Gott-schalk was designated as the attorney for the executor of the Barbara Malone estate in January 1999. The clerk of court issued delinquency notices in May 1999 and December 2000 for Gottschalk’s failure to file interlocutory reports. In December 2002 and again in July 2003, the court deemed the estate delinquent for Gottschalk’s failure to progress toward closure. The court ordered Gottschalk to close the estate or file a supplemental case status report by September 1, 2003. Gottschalk did not do either, and the court again ordered Gott-schalk to close the estate or file a supplemental case status report by November 1, 2003. Gottschalk did not close the estate nor did he file a supplemental case status report by the November 2003 deadline, and as a result, the court set a show-cause hearing for January 5, 2004, at which the executor and Gottschalk would be required to show why they should not be removed from the case. The show-cause hearing was continued, at Gottschalk’s request, until June 4, 2004.

Gottschalk filed the final report for the estate on May 13, 2004. However, the final report contained a number of misrepresentations, including that the executor’s notice of appointment had been published and proof of publication was on file, that the Iowa Department of Revenue inheritance/estate tax and income tax acquit-tances were on file, affidavits concerning the executor’s and Gottschalk’s fees were on file, the beneficiaries had waived the executor’s accounting of estate money and personal property in her possession, and the estate beneficiaries had waived hearing on the final report and consented to its approval, the executor’s discharge, and the estate’s closing.

At the June 2004 show-cause hearing, the court found good cause to remove Gottschalk as attorney for the executor for his misrepresentations in the final report. The court further imposed sanctions in the amount of $5000. Gottschalk had not paid the $5000 sanction by May 3, 2005, and was again ordered by the court to pay that sum. Gottschalk finally complied with the court’s order.

The executor of the estate did not appear for the June 2004 show-cause hearing, stating that Gottschalk did not provide her with notice of the hearing. The court ordered the executor to appear in September 2004 to show cause why she should not be held in contempt for her failure to appear.

B. The Miller bankruptcy. Mary Ann and Jay D. Miller retained Gottschalk to assist them in filing for bankruptcy in an effort to save their home from foreclosure. After their initial meeting, Gottschalk and the Millers agreed to move forward with a chapter 13 bankruptcy. The Millers determined that the monthly payments originally calculated were too high and requested that Gottschalk revise the plan to provide for lower payments before filing the bankruptcy petition. Though it is unclear whether an acceptable monthly payment was ultimately calculated, it is clear that the Millers were under the impression Gottschalk would file the bankruptcy petition in February 2004, and they would then be advised of the hearing date. Gott-schalk did not file the bankruptcy petition on the Millers’ behalf in February 2004.

The Millers met with Gottschalk in early March 2004 after receiving a sheriffs lien notifying them that their home was to be sold at a sheriffs sale on April 14, 2004. The Millers were very concerned about losing their home, and Gottschalk assured them he would file the petition for bankruptcy, and a court hearing would be set in April. The Millers also retrieved some financial information they had previously provided to Gottschalk so he could complete their income tax returns. Apparently he had not done so, and 'the Millers decided to have someone else complete their tax returns. The Millers did not receive a notice of court hearing in the bankruptcy they thought Gottschalk had filed, nor did Gottschalk contact them again in March or April 2004 regarding their bankruptcy or the sheriffs sale.

On April 30, 2004, the Millers received an eviction notice advising them to vacate their home within six days. The Millers contacted Gottschalk regarding the eviction, and he told them he did not file the bankruptcy petition because he was waiting for them to provide him with their income tax information. It is unclear whether Gottschalk told the Millers that he needed this information prior to filing the bankruptcy petition. Gottschalk told the Millers he would make some calls regarding the eviction; however, he did not contact the Millers despite numerous attempts by the Millers to get in touch with him. The Millers were evicted from their home. The Millers requested their file from Gottschalk, who returned most of the file but retained some of his notes and calculations, contending they were his property.

C. Jeremy Durnan matter. Gott-schalk represented Mr. Durnan in an appeal of his dissolution of marriage. Gott-schalk filed a notice of appeal on behalf of Mr. Durnan and, in July 2004, notified Mr. Durnan in writing that he would need $600 for the cost of the trial transcript. Apparently, Mr. Durnan did not submit the $600 to Gottschalk, explaining that he could not raise the money. Gottschalk did not file and serve the proof brief or designate the appendix by the court-imposed deadline. After receiving a notice of default from the court, Gottschalk sent a letter to Mr. Dur-nan explaining that he could not proceed with the appeal without the transcript. The court dismissed the appeal on November 22, 2004, because of Gottschalk’s failure to file and serve the brief by the deadline set in the notice of default.

D. Scott Peterson matter. Gottschalk represented Scott Peterson in his dissolution-of-marriage action. Craig Ament, attorney for Mr. Peterson’s ex-wife, prepared a proposed stipulation and decree of dissolution. The stipulation required that Mr. Peterson’s ex-wife be allowed to walk through the house and resolve any issues of disputed property prior to the decree being entered. On September 9, 2005, Mr. Ament sent the stipulation and decree to Gottschalk with a cover letter reiterating that the walk-through had to be completed before the stipulation and decree were filed. On September 12, 2005, Mr. Ament sent Gottschalk a substituted decree with a name-change clause and again emphasized the walk-through provision. Mr. Ament also left a message for Gottschalk on September 12, 2005, notifying him of the substituted decree. On September 13, 2005, prior to receiving the substituted decree, Gottschalk presented the September 9, 2005 decree to the court without notifying the court of the walk-through provision. The court signed the decree, and it was entered. The walk-through had not yet been cqmpleted. Upon discovering that the decree had been entered, Mr. Ament contacted the court and had the decree set aside.

E. Bobbie Jo Bengston matter. Gott-schalk represented Bobbie Jo Bengston in a domestic-relations matter involving the temporary physical placement of Ms. Bengston’s minor child. Dustin Bengston filed an application for temporary physical placement of the child, and a hearing on the application was set for September 13, 2005. Ms. Bengston moved to Arkansas in August 2005 and did not appear for the September 2005 hearing. The court concluded that Gottschalk forgot to notify her of the date and time of the hearing. As a result, the hearing was continued until October 13, 2005, at which time Ms. Bengston did appear.

III. Ethical Violations.

A. Neglect. We have held that professional neglect involves “indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 551 (Iowa 2004). Neglect is more than negligence, and it often involves procrastination, “such as a lawyer doing little or nothing to advance the interests of a client.” Id. at 552.

Gottschalk repeatedly failed to perform the functions required as attorney for the executor of the Malone estate, to meet deadlines, to appropriately respond to court orders, and to. close the estate within a reasonable period of time in violation of DR 6-101(A)(3). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002). Further, after being sanctioned for his inadequate representation, Gottschalk failed to pay his court-imposed fine for ten months after it was ordered.

We are particularly troubled by Gottschalk’s neglect of the Millers’ bankruptcy in violation of DR 6-101(A)(3), DR 7 — 101(A)(1) (a lawyer shall not intentionally fail to seek the lawful objectives of a client), DR 7 — 101(A)(2) (a lawyer shall not intentionally fail to carry out a contract of employment with a client), and DR 7-101(A)(3) (a lawyer shall not intentionally prejudice or damage a client). Gottschalk agreed to assist the Millers in keeping their home and did little to advance his clients’ interests. We acknowledge the difficulty Gottschalk had in determining a monthly payment the Millers could afford; however, that does not relieve him of his duty to pursue their interests. See Iowa Supreme Ct Bd. of Prof l Ethics & Conduct v. Sherman, 619 N.W.2d 407, 409 (Iowa 2000). Gottschalk repeatedly informed the Millers that he was taking care of their petition for bankruptcy when, in reality, he was not. Additionally, Gott-schalk failed to follow up with the Millers regarding return of their income tax information even though he knew he needed the information to file the petition for bankruptcy. Particularly after receiving notice of the sheriffs sale, Gottschalk failed to communicate with his clearly distraught clients and “failed to act to protect the client’s interests at a critical time when action was required and could not be delayed any longer.” Moorman, 683 N.W.2d at 552. Gottschalk’s neglect in this case resulted in the loss of the Millers’ home.

Gottschalk’s failure to file the appropriate documents in Mr. Durnan’s appeal also constitutes neglect in violation of DR 6-101(A)(3). Though it appears Mr. Durnan was no longer interested in pursuing his appeal, Gottschalk had a duty to take the steps necessary to end the matter. Simply waiting for the court to dismiss the appeal for lack of prosecution constitutes neglect. Lesyshen, 712 N.W.2d at 105.

B. Misrepresentation. Gott-schalk’s misrepresentations to the court in the Malone estate final report violated DR 1-102(A)(4). Though Gottschalk contends it has always been his practice to submit final reports without first having submitted the underlying documents, this “ ‘casual, reckless disregard for the truth’ warrants discipline.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Daggett, 653 N.W.2d 377, 380 (Iowa 2002). Negligent misrepresentation does not constitute a violation of DR 1-102(A)(4); however, we have held that recklessness can support a finding of misrepresentation. Grotewold, 642 N.W.2d at 293. Just as in Grotewold, Gottschalk’s “misinformation to the court that the uncompleted tasks in the estate had been completed was based on hope and an intention that those tasks would eventually be completed. Yet, his conduct did not result from negligence, but his casual, reckless disregard for the truth.” Id. We expect attorneys to provide reliable and accurate information to the court. “Our system of justice requires ‘absolute reliability and an impeccable reputation for honesty.’ ” Id. (quoting Comm, on Prof'l Ethics & Conduct v. Ramey, 512 N.W.2d 569, 571 (Iowa 1994)). Gottschalk’s disregard for the truth in this matter cannot be excused.

Additionally, Gottschalk’s failure to inform the court of the walk-through provision in Mr. Peterson’s dissolution decree violated Iowa Rule of Professional Conduct 3.3(d) (“In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”). We acknowledge Gott-schalk’s contention that he inadvertently forgot about the walk-through provision; however, we conclude that this omission was more than mere negligence considering Mr. Ament’s emphasis on the provision in his letter to Gottschalk just days prior to Gottschalk presenting the stipulation and decree to the court. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ackerman, 611 N.W.2d 473, 474 (Iowa 2000) (“At its most basic level a court must rely, not alone on the honesty of lawyers, but also on the reliability of factual representations submitted to the court. A misrepresentation cannot be explained away, and certainly not justified, on the basis of disorganization and confusion.”); Ramey, 512 N.W.2d at 571 (“Lawyers cannot be excused for false statements on the basis of a sloppy, or even casual, unawareness of the truth. The administration of justice entrusted to our branch of government can be rendered only when our officers can be counted upon for absolute reliability and an impeccable reputation for honesty.”). Both Mr. Ament and the judge who signed the decree were disturbed by Gottschalk’s inappropriate conduct. “A lawyer must fully disclose all facts tangentially relevant and material to a judge’s decision” and a lawyer’s failure to do so amounts to misrepresentation. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Humphrey, 551 N.W.2d 306, 308 (Iowa 1996).

C. Fitness to practice law and prejudice to the administration of justice. Gottschalk’s failure to respond to court orders, his failure to timely file documents with the court, his failure to adequately pursue his clients’ interests, and his misrepresentations to the court is conduct that reflects adversely on Gottschalk’s fitness to practice law in violation of DR 1-102(A)(6) and is conduct that is prejudicial to the administration of justice in violation of DR 1-102(A)(5) and Iowa Rule of Professional Conduct 8.4(d). See Iowa Supreme Ct. Attorney Disciplinary Bd. v. Kadenge, 706 N.W.2d 403, 408-09 (Iowa 2005); Iowa Supreme Ct. Attorney Disciplinary Bd. v. Sotak, 706 N.W.2d 385, 389 (Iowa 2005); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d 812, 817 (Iowa 2004); Daggett, 653 N.W.2d at 381.

D. Failure to return client file. Upon the Millers’ request for their file, Gott-schalk refused to provide them with his working papers, notes, and calculations regarding their bankruptcy, contending they were attorney work product and, as such, were not part of the client file. We have not yet addressed this issue and take the opportunity to do so now.

In general, there are two approaches for determining who owns the documents within a client’s file — the “entire file” approach and the “end product” approach. See Henry v. Swift, Currie, McGhee & Hiers, LLP, 254 Ga.App. 817, 563 S.E.2d 899, 902 (2002). The majority of jurisdictions that have addressed this issue conclude that a client owns his or her entire file, including attorney work product, subject to narrow exceptions. Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30, 666 N.Y.S.2d 985, 689 N.E.2d 879, 881 (1997). This is the view adopted by the Restatement (Third) of The Law Governing Lawyers section 46(2) (2000): “On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.” Comment c further clarifies that “[[a] client’s right to his or her file] extends to documents placed in the lawyer’s possession as well as to documents produced by the lawyer.” The Restatement provides a few narrow exceptions to a client’s right to the file. A lawyer may deny a client’s request to retrieve, inspect, or copy documents when compliance would violate the lawyer’s duty to another. Two such situations relevant here are described in the Restatement:

[A] lawyer may properly refuse for a client’s own benefit to disclose documents to the client unless a tribunal has required disclosure....
A lawyer may refuse to disclose to the client certain law-firm documents reasonably intended only for internal review, such as a memorandum discussing which lawyers in the firm should be assigned to a case, whether a lawyer must withdraw because of the client’s misconduct, or the firm’s possible malpractice liability to the client.

Restatement (Third) of The Law Governing Lawyers § 46, cmt. c; see also Sage Realty Corp., 689 N.E.2d at 883.

A minority of jurisdictions distinguish between documents that are the end product of an attorney’s representation and those that are work product. The end product includes pleadings, correspondence, and “other papers ‘exposed to public light by the attorney to further [the] client’s interests’ ” and belong to the client. Sage Realty Corp., 689 N.E.2d at 881 (quoting Fed. Land Bank v. Fed. Intermediate Credit Bank, 127 F.R.D. 473, 479 (S.D.Miss.1989)). The attorney’s work product includes preliminary documents “ ‘used by the lawyer to reach the end result,’ such as internal legal memoranda and preliminary drafts of pleadings and legal instruments” and belong to the attorney. Id. at 882 (quoting Fed. Land Bank, 127 F.R.D. at 479).

We agree with the majority of jurisdictions and adopt the “entire file” approach to this issue. Attorneys are in a fiduciary relationship with their clients requiring open and honest communication to ensure effective representation. “The relationship between a client and an attorney ... [is] one of ‘[t]he most abundant good faith; absolute and perfect candor or openness and honesty; the absence of any concealment or deception, however slight.’ ” Resolution Trust Corp. v. H-, P.C., 128 F.R.D. 647, 648-49 (N.D.Tex.1989) (quoting Texas v. Baker, 539 S.W.2d 367, 374 (Tex.Civ.App.1976)). Allowing an attorney to unilaterally refuse to provide the client with documents created in the course of representation is contrary to this relationship. See Sage Realty Co'i“p., 689 N.E.2d at 882-83 (“That obligation of forthrightness of an attorney toward a client is not furthered by the attorney’s ability to cull from the client’s file documents generated through fully compensated representation, which the attorney unilaterally decides the client has no right to see.”); Resolution Trust Corp., 128 F.R.D. at 649-50 (“ ‘[An attorney] has no right or ability to unilaterally cull or strip from the files created or amassed during his representation of that client documents which he determines the client is not entitled to see. The client is either entitled to all of the file or none of it.’ ” (quoting In re Kaleidoscope, Inc., 15 B.R. 232 (Bankr.N.D.Ga.1981), rev’d on other grounds, 25 B.R. 729 (N.D.Ga.1982))).

. In light of this holding, Gottschalk’s failure to return the Millers’ complete file is a violation DR 9 — 102(B)(4) (providing that a lawyer shall promptly deliver to the client property the client is entitled to receive). See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Plumb, 589 N.W.2d 746, 748 (Iowa 1999). The working papers, notes, and calculations Gottschalk made during his meetings with the Millers were clearly created for the Millers’ benefit and do not fall within the exceptions outlined above.

In summary, we find the board has proven by a convincing preponderance of the evidence that Gottschalk violated the following disciplinary rules and rules of professional conduct: DR 1-102(A)(1), DR 1-102(A)(4), DR 1 — 102(A)(5), DR 1-102(A)(6), DR 6-101(A)(3), DR 7-101(A)(l), DR 7-101(A)(2), DR 7-101(A)(3), DR 9-102(B)(4), Iowa R. of Profl Conduct 32:3.3(d), rule 32:8.4(a), and rule 32:8.4(d).

IV. Sanction.

There is no standard sanction for a particular type of misconduct, and though prior cases can be instructive, we ultimately determine an appropriate sanction based on the particular circumstances of each case. Plumb, 589 N.W.2d at 748-49. In determining an appropriate sanction, we consider “the nature of the violations, the need for deterrence, protection of the public, maintenance of the reputation of the Bar as a whole, and the violator’s fitness to continue to practice law,” as well as any aggravating and mitigating circumstances. Grotewold, 642 N.W.2d at 294; Ramey, 639 N.W.2d at 245. “Often, the distinction between the punishment imposed depends upon the existence of multiple instances of neglect, past disciplinary problems, and other companion violations.” Lesyshen, 712 N.W.2d at 106.

The commission recommends we suspend Gottschalk’s license to practice law for a period of not less than two years. While we agree that Gottschalk’s misconduct is serious, we conclude that a less severe sanction is warranted. The sanction for neglect of client legal matters generally ranges from public reprimand to six-month suspension. Grotewold, 642 N.W.2d at 294. However, when neglect results in harm to the client, as Gottschalk’s neglect resulted in harm to the Millers, a more severe sanction is warranted. Honken, 688 N.W.2d at 821. Additionally, we have held that multiple incidents of neglect, as is the case here, become aggravating circumstances in considering an appropriate sanction. Moor-man, 683 N.W.2d at 552.

Gottschalk not only neglected his clients’ legal matters, he also made misrepresentations to the court. Misrepresentation to the court constitutes a serious breach of professional ethics, warranting a more severe sanction than neglect. “Considering the importance of honesty to our profession, we have stated that misrepresentation by a lawyer ... generally results in ‘a lengthy suspension.’ ” Grotewold, 642 N.W.2d at 294 (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Stein, 603 N.W.2d 574, 576 (Iowa 1999)).

Finally, we must consider Gottschalk’s disciplinary history as past violations constitute an aggravating factor in determining an appropriate sanction'. Iowa Supreme Ct. Bd. of Prof'l Ethics and Conduct v. Hohenadel, 634 N.W.2d 652, 656 (Iowa 2001). Since 1993 Gottschalk has been privately admonished twice for neglect, publicly reprimanded three times for neglect, and has had his license to practice law suspended for one year for trust account violations and misrepresentation.

The purposes of attorney disciplinary proceedings include “protecting the courts and the public from persons unfit to practice law, vindicating public confidence in the integrity of our system of justice, and deterring other lawyers from similar misconduct.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hansel, 558 N.W.2d 186, 192 (Iowa 1997). In light of the facts and circumstances of this case, we conclude that a suspension of Gottschalk’s license to practice law for a period of not less than one year is appropriate.

The previous sanctions imposed on this respondent — two private admonitions, three public reprimands, and a one-year suspension — have apparently not been effective. We now feel compelled to warn him of what should be obvious — any future violations of our disciplinary rules will be met with sanctions up to and including revocation. We trust that will not be necessary.

Y. Conclusion.

Gottschalk’s license to practice law is suspended indefinitely with no possibility of reinstatement for at least one year. This suspension shall apply to all facets of the practice of law. Iowa Ct. R. 35.12(3). Gottschalk shall provide all of the notifications required by Iowa Court Rule 35.21. Upon any application for reinstatement, Gottschalk shall have the burden to show he has not practiced law during the period of suspension and that he meets the requirements of Iowa Court Rule 35.13. Costs are taxed to Gottschalk pursuant to Iowa Court Rule 35.25(1).

LICENSE SUSPENDED.

      . The Iowa Rules of Professional Conduct became effective July 1, 2005, replacing the Iowa Code of Professional Responsibility for Lawyers. Some of the conduct in this case occurred before the effective date of the new rules and some after.


text:
    Kirk M. SMITH, Appellee, v. IOWA BOARD OF MEDICAL EXAMINERS, Appellant.
    No. 04-2026.
    Supreme Court of Iowa.
    April 6, 2007.

      Thomas J. Miller, Attorney General, and Theresa O’Connell Weeg, Assistant Attorney General, for appellant.
    Michael M. Sellers of Sellers Law Office, West Des Moines, for appellee.
    Michael A. Giudicessi of Faegre & Benson L.L.P., Des Moines, for amicus curiae Iowa Freedom of Information Council.
    Rebecca A. Brommel and Catherine C. Cownie, of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for amicus curiae Iowa Dental Association.
   WIGGINS, Justice.

The Iowa Board of Medical Examiners appeals from a district court decision ordering the Board to cease dissemination of its denial of a physician’s license. On appeal the Board argues the district court should not have heard this case because the physician failed to timely file his petition for judicial review. The Board further argues if the petition was timely filed, the denial of the physician’s license was a public record that the Board was entitled to disseminate. On appeal we find if the Board disseminated the denial of the physician’s license as alleged by the physician, the dissemination is other agency action. Therefore, we agree with that part of the district court decision finding the physician timely filed his petition for judicial review. We also affirm the district court decision ordering the Board to cease any dissemination of the denial of the physician’s license because the Board failed to provide an adequate appellate record for our review.

I. Background Facts and Proceedings.

Dr. Kirk M. Smith graduated from the University of Iowa College of Medicine in 1'999. After graduation the University of Missouri at Kansas City, Truman Medical Center accepted him into its two-year family practice residency program. Due to some problems he experienced in the program, the University of Missouri allowed Smith to take a medical leave of absence for a psychiatric disorder. After treatment for his disorder Smith was ready to return to his residency program. However, the University of Missouri determined it would be better if Smith transferred to another residency program for his second year.

Smith applied to the University of Iowa’s family practice residency program for his second year of residency. The University of Iowa accepted him into the program. In preparing to enter the program Smith applied to the Board for an Iowa resident physician license to practice medicine and surgery.

On November 16, 2001, the Board denied Smith’s application. Smith timely appealed the denial. The Board held a hearing on the appeal. On April 26, 2002, the Board granted Smith his resident physician license subject to restrictions. In the decision granting his license the Board denied Smith’s request that the Board rescind its notice to the National Practitioner’s Data Bank (NPDB) reflecting the November 16, 2001, denial of his resident physician license application. Instead the Board indicated, “[a]n entry will be added to the Data Bank which explains that the license application was granted following an appeal hearing.” The parties did not make the transcript of the appeal hearing available to the district court or to this court. We have no record before our court showing how Smith raised the NPDB entry issue at the appeal hearing, what evidence the parties introduced regarding the NPDB entry, or how each party argued the propriety of the NPDB entry.

After the Board issued its decision to grant Smith a restricted resident physician license the attorney general’s office filed an application for rehearing. The parties did not provide the application for rehearing to the district court or to this court. The Board denied the application for rehearing without any explanation as to the issues raised or the reasons for its denial. Accordingly, we have no record of the matters raised by the attorney general’s office in its application for rehearing.

On July 29, 2002, Smith filed a request for partial rescission of his license denial with the Board. The request for partial rescission contained no mention of any dissemination of the license denial. On October 8 the Board denied Smith’s request for rescission. Three days later Smith filed a demand for rescission of his license denial with the Board. Smith amended this demand for rescission of his license denial. Among other things, Smith claimed the Board’s notification of his resident physician license denial to the NPDB was untimely because the Board released the information after the denial, but prior to the running of the thirty-day appeal period. See Iowa Admin. Code r. 653-12.32(2)(6 )(2) (1999) (stating a party may appeal a proposed decision “within thirty days after service of the proposed decision on the appealing party”).

On November 19 the Board denied Smith’s demand to rescind all entries sent by the Board to the NPDB. The Board affirmatively stated:

Upon review of the records in this matter it was determined that to date, the Board has made no reports to the NPDB in this matter. At the time of the denial of licensure in this matter, the NPDB did not accept reports of denial of original licensure. The Board did file a report as required with the Federation of State Medical Boards (FSMB) on February 19, 2002, more than ninety days after [SmithJ’s November 16, 2001, Appeal and Request for Hearing in this matter.

On December 18 Smith sought judicial review of the Board’s November 19 denial of his amended demand for rescission. He later amended his request for judicial review. In this amended request Smith petitioned the district court to review: (1) the Board’s denial of his resident physician license application; (2) the Board’s subsequent denials of his applications for rescission; and (3) the Board’s failure to refer his case to the Iowa Physician’s Health Program.

The Board filed a motion to dismiss. The district court granted the Board’s motion in part, dismissing Smith’s request for the court to review the denial of his resident physician license application. The district court overruled the Board’s motion to dismiss the remainder of the issues. The Board moved to amend the district court’s ruling. The district court revised its ruling and in addition to dismissing Smith’s request for review of the denial of his license application, it dismissed Smith’s request for review of the Board’s failure to refer his case to the Iowa Physician’s Health Program. Thus, only Smith’s request to review the Board’s denials of his applications for rescission was subject to judicial review.

The district court held a hearing on the matter on October 29, 2004. A court reporter reported the proceedings. The parties did not make a transcript of the proceedings a part of this appellate record. The district court ruling states the court considered the parties’ written arguments in deciding this case. However, the parties did not make the written arguments a part of the district court or appellate court record.

In its ruling on the petition for judicial review the district court framed the issue before it as whether the Board should stop publishing the November 16, 2001, denial of Smith’s license. In its ruling the district court stated Smith’s arguments as follows:

[Smith] is requesting that [the Board] be estopped from continuing to disseminate its pre-hearing determination as though it were a final finding or ruling. [Smith] has requested that [the Board] be ordered to retract or rescind all its notices to the State Federation of State Medical Boards and to all hospitals, medical boards and insurance companies or data banks for insurance or health facilities or any other entity that has received the original denial. [Smith] requests that the Court require that [the Board] report to the Court every entity that has received the original denial and certifyG to the Court and [Smith] that every entity has been affirmatively notified that the denial has been withdrawn. [Smith] claims that the protection of the Court is needed because counsel for the State has stated in open court [the] intent of the State and [the Board] is to advise all future inquirers about [the Board]’s original position.

The district court stated the Board’s arguments as follows:

[The Board] argues that the original Notice of Denial was a public record under Iowa Code § 22.1 (2003), that states that all information in the State’s possession is a public record unless exempt under Iowa Code § 22.7 or designated by another statute as confidential. In addition, [the Board] argues that [Smith]’s request for rescission is impractical and of no effect because [the Board]’s final decision contains all the information in the original notice of denial. [The Board] concedes that the original Notice of Denial was not a final decision.

The district court found the denial of Smith’s license on November 16, 2001, to be “pre-final decision material.” Accordingly, it ruled under Iowa Administrative Code rule 653 — 12.32(2)(c) and Iowa Code section 272C.6(4) (2001) the Board was required to cease dissemination of any “pre-final decision material” involving Smith. The district court ruled it could not appropriately address the other remedies Smith requested in his action for judicial review.

II. Issues.

The Board appeals raising two issues. First, the Board claims Smith failed to timely file his petition for judicial review; therefore, the district court should not have heard his petition. Second, the Board claims its November 16, 2001, denial of Smith’s license was a public record; therefore, it could disseminate the denial.

III. Analysis.

A. Timeliness Issue. The Iowa Administrative Procedure Act broadly classifies agency action as involving rule-making, a contested case, or other agency action. Sindlinger v. Iowa State Bd. of Regents, 503 N.W.2d 387, 389 (Iowa 1993). Neither party contends the Board’s action is rulemaking. To decide the timeliness issue it is necessary for us to determine whether the Board’s action is a contested case or other agency action. This is because the type of agency action controls when a party must file a petition for judicial review.

Smith filed his petition for judicial review more than thirty days after the denial of his request for partial rescission of his license denial. The Board claims the district court should not have heard Smith’s petition for judicial review because the Board’s action was a contested case proceeding. The Board relies on section 17A.19(3), which requires a party seeking judicial review from a contested case to file a petition for judicial review within thirty days after the agency denies an application for rehearing. Iowa Code § 17A.19(3).

Smith claims the Board disseminated the November 16, 2001, denial of his license and argues this dissemination, the only issue left on appeal, is other agency action. If the Board’s action is other agency action, the Iowa Administrative Procedure Act allows Smith to file his petition for judicial review “at any time [he] is aggrieved or adversely affected by that action.” Id.

The Code defines a contested case as a proceeding “in which the legal rights, duties or privileges of a party are required by Constitution or statute to be determined by an agency after an opportunity for an evidentiary hearing.” Iowa Code § 17A.2(5); accord Brummer v. Iowa Dep't of Gorr., 661 N.W.2d 167, 171-72 (Iowa 2003); Greenwood Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 833-35 (Iowa 2002); Paulson v. Iowa Bd. of Med. Exam’rs, 592 N.W.2d 677, 679 (Iowa 1999). Other agency action is action that is neither rulemaking nor a contested case. Greenwood Manor, 641 N.W.2d at 834. Accordingly, agency action taken without a hearing required by a statute or constitution or action taken after a required hearing that does not rise to the level of an evidentiary hearing is other agency action. Id.

The narrow issue decided by the district court and presented to us on appeal is whether the Board should be able to disseminate the November 16, 2001, denial of Smith’s license. The Board does not contend there is any statutory or constitutional provision requiring it to hold a hearing prior to the time Smith claims the Board disseminated the November 16, 2001, denial of his license. Accordingly, if the Board disseminated this denial as claimed by Smith, the alleged dissemination is other agency action and not a contested case. Therefore, the district court properly heard Smith’s petition for judicial review on the question of whether the Board could disseminate its November 16, 2001, denial of his license.

B. Dissemination. The Board claims the district court erred when it ordered the Board to cease dissemination of its November 16, 2001, denial of Smith’s license. The Board argues this denial of Smith’s license was a public record that the Board was entitled to disseminate. On our review of the record, we find the record insufficient to decide this issue.

The appellate record does not include the transcript of the hearing before the Board regarding the license denial, the transcript of the hearing before the district court where the parties tried the issue of dissemination, or the briefs of the parties used by the district court to decide the dissemination issue. The Board could have made the transcripts and its brief a part of the appellate record. See Iowa R.App. P. 6.10(2) (requiring the appellant to order the transcript); Iowa R. Civ. P. 1.442(4) (stating that briefs other than those in a summary judgment proceeding cannot be filed unless by order of the court).

The Board’s combined certifícate acknowledges it did not order the transcript. The Board only filed the first page of its brief in the district court. The Board did not request an order allowing it to file its entire brief. It was the Board’s responsibility as appellant to provide this court with a sufficient record to decide this appeal. See In re F.W.S., 698 N.W.2d 134, 135 (Iowa 2005) (holding “[i]t is the appellant’s duty to provide a record on appeal” and “[t]he court may not speculate as to what took place or predicate error on such speculation”).

A multitude of statutes controls the dissemination of this type of information. Iowa Code chapter 22 generally pertains to the public’s right to examine public records. Iowa Code § 22.2(1), (2). Iowa Code chapter 272C covers the authority of licensing boards to license individuals and contains specific provisions regarding the disclosure of certain licensing information to other licensing bodies and law enforcement agencies. Id. § 272C.6(4). Iowa Administrative Code chapter 653 contains the Board’s public records and fair information practices, adopted by the Board as instructed by Iowa Code section 22.11. These rules pertain to the disclosure of the Board’s licensing records to the public. Iowa Admin. Code rs. 653 — 2.1-2.17. Congress has also established laws pertaining to the disclosure of licensing records by state boards of medical examiners. 42 U.S.C. § 11132.

The appellate record contains no information, other than what is contained in the district court’s ruling, as to what, when, where, and to whom the Board may have disseminated or intended to disseminate the November 16, 2001, denial of Smith’s license. The district court’s recitation of these matters in its ruling is not a substitute for the required appellate record.

The information as to what, when, where, and to whom the Board may have disseminated or intended to disseminate the November 16, 2001, denial of Smith’s license is necessary in order for us to apply the various statutes to the multiple disclosures -as alleged by Smith. Consequently, without knowing this critical information, we are unable to review the district court’s determination on this issue. Therefore, we must affirm the decision of the district court. Alvarez v. IBP, Inc., 696 N.W.2d 1, 4 (Iowa 2005) (stating where an appellant fails to provide a proper record on appeal the decision of the trial court will be affirmed where its judgment is not fundamentally erroneous on its face).

IV. Disposition.

Because the alleged dissemination of Smith’s November 16, 2001, license denial is other agency action, Smith timely filed his petition for judicial review. However, we will not reach the merits of the Board’s appeal because it failed to provide us with a sufficient record to perform an appellate review of the district court decision. Therefore, we affirm the judgment of the district court.

AFFIRMED.

All justices concur except STREIT and APPEL, JJ., who take no part.

      . On July 19, 2006, the Board rescinded 653 Iowa Administrative Code chapter 12 and replaced it with 653 Iowa Administrative Code chapters 22-26. 29 Iowa Admin. Bull. 114-15 (July 19, 2006). The thirty-day appeal period applicable to a person in Smith's position is now located in rule 653 — 25.30. See Iowa Admin. Code r. 653 — 25.30 (2006) (stating “[a]n applicant may appeal a preliminary notice of denial of license by filing a written notice of appeal and request for hearing with the board within 30 days of the date that the preliminary notice of denial of license was mailed by the board”).


author: VOGEL, J. SACKETT, C.J.

text:
    Daniel WANFALT and Dawn Wanfalt, Plaintiffs-Appellants, v. BURLINGTON BANK AND TRUST, Defendant-Appellee.
    No. 05-1898.
    Court of Appeals of Iowa.
    Jan. 18, 2007.
    Timothy K. Wink and Jay Schweitzer of Schweitzer & Wink, Columbus Junction, for appellants.
    James W. Miller of Cray, Goddard, Miller & Taylor, L.L.P., Burlington, for appel-lee.
   VOGEL, J.

Daniel and Dawn Wanfalt appeal the district court’s directed verdict in favor of the Burlington Bank and Trust (the Bank) on a claim for failing to execute a mandatory disclosure form pursuant to Iowa Code section 558A.1 (2003). After considering the record and arguments on appeal, we agree with the district court’s conclusion that this real estate transaction is excluded under the statute and affirm.

In 1997, the Bank acquired a mortgage from Gary and Beverly Marquardt in connection with the purchase-money financing of 21.56 acres of land with a dwelling unit near Morning Sun, Iowa. After the Mar-quardts experienced financial difficulties, the Bank accepted a quitclaim deed in lieu of foreclosure from the Marquardts for the property. Before the Bank was able to arrange for a resale of the property through an auction service or a realtor, the Wanfalts and another interested party contacted the Bank about purchasing the property. The Bank showed the Wanfalts the appraisal completed in March 2003, valuing the property at $130,000. The Bank asserted that none of its representatives had ever personally viewed the property before it was shown to the Wanfalts. The Wanfalts subsequently inspected the property on their own several times. The property included a seven-year-old manufactured home that was in extremely poor condition. Bank representatives claimed at trial that, during visits to the property with the Wanfalts, they pointed out all of the problems with the home the Bank knew of and expected the property to sell for only about half the value of the appraisal, or $60,000 to $70,000. The appraisal refers to the home intermittently as a “manufactured home” (two references) or as a “modular home” (eleven references). At some point, Dawn Wanfalt contacted Iowa State Bank to inquire about financing for the property. Dawn told Frances McElhinney at Iowa State Bank the home had a plate beside the front door. McElhinney explained that a plate meant it was a manufactured home, to which Dawn acknowledged she and Dan were aware of that fact. The Wanfalts eventually purchased the property for $121,500 after a private auction, bidding against the other interested party. The Wanfalts claim that when attempting to insure the property after the sale, they discovered for the first time that the home was a manufactured home rather than a modular home.

When this suit was originally filed in June 2004, the Wanfalts had named two additional defendants and several theories of recovery. By the time the matter proceeded to a jury trial in October 2005, only the Bank remained as a defendant, and only claims for fraudulent misrepresentation and failure to disclose pursuant to Iowa Code chapter 558A were litigated. At the close of the Wanfalt’s case in chief, the Bank moved for a directed verdict. The district court granted the motion as to the chapter 558A failure to disclose issue by finding as a matter of law that the transfer from the Bank to the Wanfalts was excluded under section 558A.1(4), because the bank had obtained the property by a deed in lieu of foreclosure. The only remaining claim submitted to the jury was fraudulent misrepresentation, on which the jury granted a defense verdict. The district court denied the Wanfalts’ post-trial motions to reconsider and for a new trial on the chapter 558A issue. The Wanfalts appeal only the grant of a directed verdict on this issue.

We review the district court’s rulings on motions for directed verdict for correction of errors at law. Yates v. Iowa West Racing Ass’n, 721 N.W.2d 762, 768 (Iowa 2006). Likewise, our standard of review on issues of statutory interpretation, including chapter 558A, is for errors at law. Jensen v. Sattler, 696 N.W.2d 582, 585 (Iowa 2005). When interpreting a statute, our primary goal is to ascertain and give effect to the intention of the legislature. Kohrt v. Yetter, 344 N.W.2d 245, 246 (Iowa 1984). We search for legislative intent as shown by what the legislature said, rather than what it should or might have said. Iowa R.App. P. 6.14(6)(to). With this in mind, we review the language of the statute and the objects sought to be accomplished. Slager v. HWA Corp., 435 N.W.2d 349, 352 (Iowa 1989). If the statute is ambiguous, we regard the consequences of a particular construction. Iowa Code § 4.6(5).

The Wanfalts argue that the district court erred when it interpreted chapter 558A as excluding the transfer of the property from the Bank to them. Iowa Code chapter 558A, known as the Real Estate Disclosure Act, requires

persons interested in transferring real estate to deliver a written disclosure statement to prospective buyers. Iowa Code § 558A.2. The disclosure statement must include certain information about the “condition and important characteristics and structures on the property” as provided in rules adopted by the real estate commission. Id. § 558A.4(1); see, e.g., Iowa Admin. Code r. 193E-14.1(6) (setting forth sample disclosure statement).

Jensen, 696 N.W.2d at 585. The district court concluded the subject transaction was excluded under section 558A.1, which reads:

4. “Transfer” means the transfer or conveyance by sale, exchange, real estate contract, or any other method by which real estate and improvements are purchased, if the property includes at least one but not more than four dwelling units. However, a transfer does not include any of the following:
b. A. transfer to a mortgagee by a mortgagor or successor in interest who is in default, or a transfer by a mortgagee who has acquired real property at a sale conducted pursuant to chapter 651, a transfer back to a mortgagor exercising a right of first refusal pursuant to section 654.16A, a nonjudicial voluntary foreclosure procedure under section 654.18 or chapter 655A, or a deed in lieu of foreclosure under section 654.19.

Iowa Code § 558A.l(4)(b) (emphasis added).

The district court reasoned the confusing syntax of that section should be interpreted so that the phrase “or a deed in lieu of foreclosure under section 654.19” modifies the earlier phrase “or a transfer by a mortgagee who has acquired real property....” This construction has some practical appeal so that all parts of subsection b are afforded a logical and reasonable meaning, consistent with one of the purposes of the statute, see State v. Pickett, 671 N.W.2d 866, 870 (Iowa 2003) (summarizing the rules of statutory construction), which is to relieve commercial lenders that do not occupy residential property, and to which they hold title only for security purposes, from the disclosure requirements of chapter 558A. We could affirm the district court under its rationale and statutory construction, but we may also affirm for a slightly different reason, as follows.

The Bank acquired the property from the original mortgagors, the Mar-quardts, by a deed in lieu of foreclosure. This procedure allowed the original mortgagors and the Bank to avoid the lengthy foreclosure process, by the grant and the acceptance of a quitclaim deed which stated “the consideration was the release of the grantors [Marquardts] of a portion of the personal liability under the underlying notes.” The Bank then sold and deeded the property to the Wanfalts. This transfer occurred, not subsequent to a “sale conducted pursuant to chapter 654” but rather after the bank acquired the property as described above, by the deed in lieu of foreclosure. Had the bank acquired the property following a “sale,” section 558A.l(4)(b) would clearly allow the subsequent transfer to occur without an accompanying disclosure statement otherwise required by Iowa Code chapter 558A. However, the weakness in the statute is that a deed in lieu of foreclosure is not specifically listed as an exempt transfer in 558A. 1 (4)(b). Nonetheless, it is the legislature’s chosen “alternate nonjudicial voluntary foreclosure procedure” under Iowa Code section 654.18(l)-(4). Utilizing an expedited process, “the mortgagor conveys to the mortgagee all interest in the mortgaged property and the mortgagee accepts the conveyance and waives any right to a deficiency.” Nash Finch Co. v. Corey Dev., Ltd., 669 N.W.2d 546, 550, n. 3 (Iowa 2003). For the Bank, it produced the same result as would have a mortgagee receiving the property after a foreclosure and sale. Moreover, a fair reading of section 558A.l(4)(b) with the various code sections of chapter 654 referenced therein, indicates that the legislature intended to exclude certain types of transactions from the disclosure requirements of 558A. The exclusion should apply whether a mortgagee acquires the property by a sale following a foreclosure or whether it acquires title by way of a deed in lieu of foreclosure. We therefore hold that, when a mortgagee transfers real property received by a deed in lieu of foreclosure pursuant to chapter 654, it is not a “transfer” under Iowa Code section 558A.1(4), requiring a written disclosure statement under chapter 558A.

Thus, we agree with the district court that the sale of the Morning Sun property was not a “transfer” under chapter 558A, and consequently no disclosure form was required of the Bank. The district court did not err by granting a directed verdict as to the Wanfalts’ chapter 558A claim.

AFFIRMED.

SACKETT, C.J., specially concurs.

SACKETT, C.J.

(concurring specially)

I concur in the result, but write separately concerning the basis for upholding the grant of a directed verdict. The majority correctly notes that, “[w]hen interpreting a statute, our primary goal is to ascertain and give' effect to the intention of the legislature.” See Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). However, “[w]e resort to ‘the rules of statutory construction only when the terms of [a] statute are ambiguous.’ ” State v. Wiederien, 709 N.W.2d 538, 541 (Iowa 2006) (quoting IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001)). I do not see any ambiguity in the terms of the statute. The legislature listed numerous transactions that are excluded from the definition of “transfer” for purposes of real estate disclosures, including:

• A transfer to a mortgagee by a mortgagor or successor in interest who is in default,
• or a transfer by a mortgagee who has acquired real property at a sale conducted pursuant to chapter 654,
• a transfer back to a mortgagor exercising a right of first refusal pursuant to section 654.16A,
• a nonjudicial voluntary foreclosure procedure under section 654.18 or chapter 655A,
• or a deed in lieu of foreclosure under section 654.19.

Iowa Code § 558A.l(4)(b) (2003).

The district court concluded the words “or a deed in lieu of foreclosure” had “to modify or go with” the second item in the list grammatically. The unambiguous language and structure of the statute does not support this conclusion. After seeking the intent of the legislature, the majority determined, “The exclusion [in the second item] should apply whether a mortgagee acquires the property by a sale following a foreclosure or whether it acquires title by way of a deed in lieu of foreclosure. ” (Underlining added; italics in original). Since the language of the statute is clear and unambiguous, we should not seek the intent of the legislature. Wiederien, 709 N.W.2d at 541; Harker, 633 N.W.2d at 325. Rather, we should apply the plain terms of the statute to the facts before us. For a court to determine a statute “should” say a certain thing is to make a policy decision — a role- reserved for the legislature. See Jensen v. Sattler, 696 N.W.2d 582, 586 (Iowa 2005).

Based on the plain language of the statute, the transfer at issue is not listed among the transactions excluded from a disclosure requirement. I believe the district court erred in concluding otherwise and in granting the motion for directed verdict on that basis. I would affirm the district court’s grant of a directed verdict for lack of substantial evidence to support the claim. See Hansen v. Seabee Corp., 688 N.W.2d 234, 238 (Iowa 2004) (noting we may affirm the district court’s decision if there is an alternative ground urged in the district court and on appeal that can support the court’s decision).

      . Furthermore, even if the statute did apply, we note that there is no category or classification on the standard form that would entail the disclosure sought by the Wanfalts: whether the dwelling is a manufactured home versus a modular home. See Iowa Admin. Code § 193E-14.1(543B) (providing a sample disclosure form).

      . When reviewing a district court's ruling on a motion for directed verdict, we view the evidence in the same light as the district court to determine whether the evidence generated a jury question. Toney v. Casey's Gen. Stores, Inc., 460 N.W.2d 849, 852 (Iowa 1990). If there is not substantial evidence to support each element of the plaintiffs’ claim, a directed verdict is appropriate. See Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468, 472 (Iowa 2005); Johnson v. Interstate Power Co., 481 N.W.2d 310, 317-18 (Iowa 1992).