author: TERNUS, Justice.

text:
    TITAN TIRE CORPORATION, Appellant, v. EMPLOYMENT APPEAL BOARD, Appellee.
    No. 00-0340.
    Supreme Court of Iowa.
    Feb. 27, 2002.

      Gene R. La Suer and Becky S. Knutson of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellant.
    Richard R. Ramsey, Des Moines, for appellee.
    Mark T. Hedberg and Joseph L. Walsh of Hedberg, Owens, & Hedberg, P.C., Des Moines, for United Steel Workers of America, Local 164.
   TERNUS, Justice.

In this appeal, we must decide whether the appellee, Employment Appeal Board, correctly determined that striking workers of appellant, Titan Tire Corporation, were eligible for unemployment benefits. Although striking employees are normally disqualified from receiving benefits, see Iowa Code § 96.5(4) (1997), the agency determined that Titan Tire had severed its employment relationship with the strikers, ending their disqualification. This determination rested on the agency’s findings that the employer had, to some extent, permanently replaced its striking workforce and had not notified the replaced workers that jobs were still available to them should they choose to return to work.

The agency’s ruling was affirmed by the district court on judicial review. Finding no error in the legal principles applied by the agency and finding substantial evidence in the record to support its factual determinations, we affirm.

I. Scope of Review.

Iowa’s Administrative Procedure Act, Iowa Code chapter 17A, governs our review of unemployment benefit cases. Dico, Inc. v. Iowa Employment Appeal Bd., 576 N.W.2d 352, 354 (Iowa 1998). Section 17A.19(8) provides that a party may successfully challenge an agency decision when the party’s substantial rights have been prejudiced because the agency action “is unsupported by substantial evidence” or “is affected by other error of law.” Iowa Code § 17A.19(8). The court may “affirm, reverse, modify, or grant any other appropriate equitable or legal relief.” Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595, 598 (Iowa 1997).

Our review is for correction of errors of law. PanDa Eng’g v. Eng’g & Land Surveying Examining Bd., 621 N.W.2d 196, 198 (Iowa 2001). Because it is not de novo, we do “not reassess the weight to be accorded various items of evidence. Weight of evidence remains within the agency’s exclusive domain.” Burns v. Bd. of Nursing, 495 N.W.2d 698, 699 (Iowa 1993). Consequently, “[i]f the agency’s findings of fact are supported by substantial evidence, those findings are binding on judicial review.” PanDa Eng’g, 621 N.W.2d at 198. “Evidence is substantial if a reasonable person would find it adequate for reaching a conclusion, even though a reviewing court might reach a contrary inference.” Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 830 (Iowa 1992). In determining whether substantial evidence exists, the court considers all the evidence, including that offered in opposition to the agency’s findings. Burns, 495 N.W.2d at 699. “We apply agency findings broadly and liberally to uphold, rather than to defeat, an agency’s decision.” Organic Techs. Corp. v. State ex rel. Iowa Dep’t of Natural Res., 609 N.W.2d 809, 815 (Iowa 2000).

II. Background Facts and Proceedings

The following facts are supported by substantial evidence. On May 1, 1998, approximately 650 members of the United Steel Workers of America, Local 164 walked off the job at the Titan Tire factory in Des Moines. The company asserted the strike was the result of economic issues upon which the company and the union could not agree; the union, however, maintained that the strike was the result of unfair labor practices committed by Titan Tire.

In the weeks after the strike began, Maurice Taylor, chief executive officer of Titan International Inc., held various press conferences in which he discussed the continuing strike at the Des Moines plant. In a press conference on May 14, 1998, he stated if a settlement is not reached with the union, “we will start moving equipment out of the Des Moines facility to the Brownsville[, Texas] location and it will be irreversible.” At a subsequent press conference in early June 1998, Taylor made similar statements. Taylor announced that Titan Tire would move tire-making equipment to Texas because of the ongoing strike in Des Moines. This shift in production, according to Taylor, would permanently move as many as 300 jobs out of the Iowa plant. He stated that his decision was “irrevocable.”

Two weeks after Taylor’s second press conference, on June 17, 1998, all bargaining unit members of the union were sent a certified letter from Gary Carlson, president of Titan Tire. In this letter, Carlson stated that the company would be submitting to the union “its last, best, and final offer” on June 22, 1998. Carlson enclosed the offer for the members to review. After generally stating the terms of the new offer, the letter continued:

We ask that you now return to work in accordance with the attached schedule. You will be paid in accordance with the new agreement and we will immediately begin to use the new contract language. If you fail to report back to work in accordance with the enclosed schedule, Titan Tire will hire permanent replacement workers to fill your position and you may lose your right to return to work.

(Emphasis added.) The attachment scheduled employees to return to work between June 21 and June 24, 1998. This letter was the last written communication between the company and the striking union members concerning the availability of jobs.

Despite the company’s request that the striking workers return to work, nearly all of the union members remained on strike. After the certified letter was sent, John Peno, president of the union, learned from company management that jobs were being moved out of the Des Moines plant to Texas and that new hires had replaced union members.

In late July, Taylor appeared at a rally in front of Titan International’s headquarters in Illinois and was quoted in the newspaper as saying:

“It’s a tragedy, because we’re running in Des Moines with 200-some (new) employees, so most of the people on that line don’t have jobs, even if they had a contract.”
“They’re out of jobs. They don’t understand this, and the union is not telling them the truth.”
“They got their best and final offer and that’s where it is. If they’re coming back, they’re coming back under the terms that we’ve set. If they decide to come back, then what happens is, they only get the jobs that are left, by seniority.”

(Emphasis added.)

Based on information it had received, the Unemployment Insurance Bureau sent a letter of inquiry to Titan Tire on August 10, 1998. The Bureau stated that it had learned that Titan Tire had reduced the Des Moines workforce by 200 to 300 jobs and had started to resume production at the plant with replacement workers. It asked for specific information concerning the elimination of jobs at the Des Moines plant and the hiring of replacements. The company responded, denying that the transfer of equipment to Texas had eliminated any more then 25 jobs and asserting that there were “many jobs available to striking workers who are willing to return to work.” The company also stated in its response that approximately 250 workers had been granted permanent replacement status and that the hiring of replacement workers was an ongoing process. Titan Tire claimed it later revoked the permanent status of the replacement workers to avoid having to provide their names and addresses to the union. Neither the union nor its members were advised that the replacement workers were no longer considered permanent until the hearing before the administrative law judge (ALJ).

Prior to the strike, Titan Tire had provided its employees with a 401(k) retirement plan, which the company held in each employee’s name until the employee retired or separated from the company. After the strike, the company turned over only three accounts to strikers who had formally quit or retired, or who had been discharged. Other striking employees were not given access to their retirement accounts because Titan Tire considered the striking workers to be employees in good standing.

On August 31, 1998, the Bureau determined that striking workers who had made application for unemployment compensation were eligible for benefits. The decision stated that a stoppage of work had occurred at the Titan Tire plant due to a labor dispute. It further stated that the strikers had been notified that they were being replaced, which terminated the employment relationship. Therefore, concluded the Bureau, the strikers were entitled to benefits “as long as [they] met all the other eligibility requirements.” This decision affected approximately 400 workers who had applied for unemployment compensation.

Titan Tire appealed and an evidentiary hearing was held before an (ALJ). The ALJ found that Titan Tire had notified the strikers in its June letter that they would be replaced if they did not return to work as scheduled. The ALJ concluded the employment relationship between the workers and Titan Tire was severed by the company’s hiring of permanent replacement workers unless the company proved that work was actually available to the strikers and that it had notified the strikers that jobs were still available. The ALJ held that Titan Tire had in essence laid off 200 workers when it transferred production to Texas and, in addition, had hired 250 permanent replacements. In addition, the ALJ held that Titan Tire had not notified the union or its members that work was available. Accordingly, the ALJ ruled that the claimants were eligible for benefits. This decision was affirmed on appeal by the Employment Appeal Board and by the district court on judicial review.

Titan Tire has appealed to this court. Because we think it is helpful to consider the issues raised on appeal in the context of the law applicable to unemployment compensation claims of striking workers, we briefly review the governing legal principles before reaching the merits of the employer’s appeal.

III. Law Governing Claims of Striking Workers.

An employee who is not working “due to a stoppage of work which exists because of a labor dispute” is disqualified from receiving unemployment benefits. Iowa Code § 96.5(4). The work stoppage must be the cause of the unemployment to result in disqualification. Bridgestone/Firestone, Inc. v. Employment Appeal Bd., 570 N.W.2d 85, 91 (Iowa 1997).

In Bridgestone/Firestone, we held that “when an employer permanently replaces striking workers, it thereby severs the employment relationship unless the employer can show work remained despite the replacement and the claimant was so advised.” Id. at 95-96. Thus, where striking workers have been permanently replaced and the employer fails to show that work remained and that workers were ’ advised that work remained, “the labor dispute and its consequent work stoppage is no longer the cause of the claimants’ unemployment.” Id. at 95. In those circumstances, the disqualification imposed by section 96.5(4) is removed. Id. We turn now to the issues on appeal.

IV. Issues on Appeal.

Titan Tire claims on appeal that the Board erred in determining that the striking workers were eligible for unemployment benefits. There is no dispute that the striking workers were initially disqualified from receiving benefits pursuant to section 96.5(4). The issue here is whether the employer severed the employment relationship by hiring replacement workers, thereby removing the disqualification. The specific dispute with respect to this issue centers on whether the agency correctly determined that Titan Tire had not met its burden of proof under Bridgestone/Firestone to show that work was available and that it had so advised its employees.

On appeal, the employer asks this court “to determine” that the striking workers understood that work was available to them and that they had not been permanently replaced. Because our review is at law, however, we are not at liberty to determine these facts anew. The most that we can do is examine the record to assess whether there is substantial evidence to support the findings made by the agency.

Titan Tire also challenges a decision made by the ALJ at the hearing to admit certain newspaper articles offered by the claimants. We will address this evidentia-ry ruling first.

V. Admission of Newspaper Articles.

Titan Tire argues on appeal that evidence in the form of newspaper articles should not have been admitted by the ALJ. It claims this evidence is inadmissible hearsay and that the requirements of Iowa Code section 17A.14, governing the admission of evidence in a contested case hearing, were not met. We find it unnecessary to determine whether the ALJ erred or abused its discretion in admitting this evidence because Titan Tire has not shown that any error prejudiced its substantial rights. See Iowa Code § 17A.19(8) (requiring party challenging contested case decision to show that its substantial rights were prejudiced).

The challenged evidence consists of newspaper accounts of statements made by Taylor at various press conferences that production had been moved to Texas, that this transfer of equipment eliminated jobs in Des Moines, and that, in addition, the company was hiring replacements for the striking employees. We do not think this evidence can be deemed prejudicial in view of the other evidence before the agency. The company stated in response to the Bureau’s inquiry that it had hired 250 permanent replacements and that hiring of replacements was ongoing. At the hearing, Titan Tire’s company representative, William Campbell, testified that “people were hired to come in and fill the jobs that were previously being done by bargaining unit employees.” He confirmed that over 300 replacement workers had been employed by the date of the hearing. Thus, the fighting issue in this case was not whether replacement workers were hired — the company admitted they were. The determinative issue was whether the striking workers, who were notified that they would be permanently replaced, were also told that even if they did not return in accordance with the company’s schedule, there would be jobs available to them should they decide to come back to work after the June 24 deadline.

In view of the fact that the challenged evidence did not impact the determinative issue in this case, we conclude any error or abuse of discretion in the admission of the newspaper articles did not prejudice the company’s substantial rights. Therefore, it is not necessary to determine the correctness of the ALJ’s ruling on this evi-dentiary matter. We proceed now to consider whether the Board’s finding that Titan Tire did not notify the strikers that jobs were available despite the strikers’ failure to report to work as requested by the company is supported by substantial evidence.

VI. Notice to Strikers of Available Work

The parties agree that when the union workers walked off the job on May 1, 1998, there was a stoppage of work due to a labor dispute. At that point in time, the claimants were disqualified from receiving unemployment benefits because the cause of their unemployment was the strike. See Iowa Code § 96.5(4). The contested issue here is whether the strikers continued to be unemployed due to the labor dispute after they failed to return to work in accordance with the schedule attached to the company’s June letter. In that letter, Titan Tire told the claimants the company was making its “last, best, and final offer,” and if the strikers did not return as requested by the company, permanent replacements would be hired.

As noted previously, the agency concluded that Titan Tire had not proved the requirements established by Bridgestone/Firestone to continue the claimants’ disqualification, namely, that work was available and the strikers were so advised. 570 N.W.2d at 95-96. The agency found that although some jobs still existed for striking workers after the deadline for the strikers’ return to work had expired, the company had failed to show how many and which jobs remained. See id. at 93 (discussing Canonsburg Gen. Hosp. v. Unemployment Compensation Bd. of Review, 156 Pa.Cmwlth. 533, 628 A.2d 503, 510 (1993), aff'd, 540 Pa. 531, 658 A.2d 790 (1995), which stated “that should the employer choose to replace only some employees the burden is on it to demonstrate what employees it is replacing”). In addition, the agency found that Titan Tire had not notified the striking employees collectively or individually that work was available. On appeal, Titan Tire challenges both factual findings. We find it necessary, however, to address only the finding that the strikers had not been told that “despite the hiring of permanent replacements work was still available to them.” Id. at 95. That is because “[ejven if such work [was] available, failure to so advise the claimants will result in removing the section 96.5(4) disqualification.” Id.

Turning then to the record, we agree with the district court that there is substantial evidence to support the agency’s finding that the company did not notify the striking workers that jobs were available. Titan Tire admitted at the hearing that no further contact was made with the striking workers concerning the availability of jobs after the June 17 letter indicating that workers would be replaced if they did not return as set forth in the attached schedule. Union president Peno testified the union was never informed that permanent replacements had not been hired. In fact, Peno testified that on August 20, 1998, in response to his demand that replacement workers would have to come out as a condition of any agreement, Taylor and Carlson “adamantly” said that would never happen because “those people have replaced your members.” Thereafter, testified Peno, he told strikers who inquired about their employment status that they had been permanently replaced.

Titan Tire argues that the agency misinterpreted the June 17 letter and that Carlson, the company president, clearly indicated in that letter that work was available for those wishing to return. Although it is true that Titan Tire asked the strikers to return to their jobs, implying that jobs were available at that time, the company stated in the same letter that “[i]f [the striking employees] fail to report back to work in accordance with the enclosed schedule, Titan Tire will hire permanent replacement workers to fill [their] position[s] and [the striking employees] may lose [their] right to return to work.” (Emphasis added.) Thus, the relevant question is not whether jobs were available on June 17, but rather whether jobs were available upon expiration of the company’s retum-to-work schedule on June 24.

The company also argues that, unlike the employer in Bridgestone/Firestone, Titan Tire never told its employees that they had actually been replaced. See Bridgestone/Firestone, 570 N.W.2d at 87 (quoting letter from employer in which employer tells employees that they “had been permanently replaced”). We do not find this distinction to have any significance. Titan Tire’s statement that it would hire permanent replacements if the employees did not return to work by June 24 amply supports the agency’s finding that a reasonable person in the striking workers’ position would understand that upon expiration of the scheduled resumption of work on June 24, 1998, permanent replacement workers would be hired for those strikers who failed to return. This interpretation of the June letter is also supported by Union president Peno’s testimony concerning the later negotiations between the company and the union, at which time Taylor and Carlson indicated that permanent replacements had been hired. In addition, in response to the Bureau’s inquiry, the company admitted in August 1998 that it had already hired 250 permanent replacements. Even the company’s witness at trial conceded that the replacement workers had been considered permanent employees until, for unrelated reasons, they were subsequently reclassified as temporary. Significantly, the record shows that Titan Tire never notified the union or the claimants that the status of the replacements had been changed. Thus, the record shows that, until the hearing in late October 1998, the strikers reasonably believed the company had permanently replaced them just as it had stated it would. We conclude, therefore, that there is substantial evidence to support the agency’s interpretation of the June letter to striking employees, namely, that after the June 24 deadline, jobs would no longer be available to the claimants. Accordingly, this letter effectively terminated the employment of strikers who did not return as requested, unless jobs continued to be available and the employer notified the claimants of that fact as required by our Bridgestone/Firestone decision.

Titan Tire seeks to avoid the requirement that it must inform strikers that jobs remained available despite the employment of replacements on the basis that the strike here was alleged by the union to be the result of unfair labor practices committed by Titan Tire. The company argues that under the National Labor Relations Act an employer cannot legally permanently replace a worker who is striking due to unfair labor practices. See Pirelli Cable Corp. v. NLRB, 141 F.3d 503, 510 n. 1 (4th Cir.1998) (stating that “[u]nfair labor practice strikers are entitled to immediate reinstatement upon their unconditional offer to return to work regardless of whether replacement workers have been hired by the employer during the strike” (citing Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278, 76 S.Ct. 349, 355-56, 100 L.Ed. 309, 319 (1956))). While this prohibition may exist, it does not impact the present dispute. The issue here is not whether Titan Tire could legally replace the striking workers; the issue here is whether Titan Tire informed the strikers that it had not permanently replaced them after having told them it would do so if they did not return to work by June 24, 1998.

The company also argues that it should not be held to the notification requirement adopted in Bridgestone/Fire-stone because it is prohibited by federal law from contacting striking workers. The employer relies on cases that hold it is a violation of the National Labor Relations Act to solicit workers to abandon an unfair-labor-practices strike and return to work. See, e.g., NLRB v. Robin Am. Corp., 654 F.2d 1022, 1026 (5th Cir.1981); NLRB v. Bradley Washfountain Co., 192 F.2d 144, 152-53 (7th Cir.1951); NLRB v. Montgomery Ward & Co., 133 F.2d 676, 681-82 (9th Cir.1943). The persuasiveness of this argument is somewhat undermined by the fact that this prohibition apparently did not discourage Titan Tire from communicating with the striking union members on June 17. Nonetheless, even if the company was prohibited by federal law from asking striking workers to return to work, it could have informed the union that jobs were still available to the strikers despite the employment of replacement workers. We think that under the circumstances here, where the union claimed the strike was based on the company’s unfair labor practices, notice to the union that job openings continued to exist for all workers on strike would have met the employer’s notification responsibility under Bridgestone/Firestone. Consequently, we do not think the nature of the strike involved in this ease relieved Titan Tire of its responsibility to advise the strikers via notification to the union that work remained available.

VII. Conclusion.

In summary, we find error, if any, in the admission of newspaper accounts of statements made by company representatives did not prejudice Titan Tire’s substantial rights. In addition, there is substantial evidence to support the agency’s finding that the employer did not notify its striking workers that they still had jobs after informing them they would be replaced if they did not return to work as scheduled. As a consequence, the company’s hiring of replacement workers terminated the employment relationship and removed the disqualification imposed on the strikers by section 96.5(4). Finding no error in the Board’s decision that the striking employees were eligible for unemployment compensation, we affirm.

AFFIRMED.

      . Throughout these proceedings the union has participated on behalf of the claimants.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    Gene Raymond RIFE, Jr., Appellant, v. D.T. CORNER, INC. d/b/a Papa’s Planet, Centurion Security Services, Inc. a/k/a CSSI, Appellees.
    No. 00-0184.
    Supreme Court of Iowa.
    Feb. 27, 2002.

      Zorica Ilic of the Sporer Law Firm, P.C., Des Moines, for appellant.
    Thomas I. Henderson and John F. Fati-no of Whitfield & Eddy, P.L.C., Des Moines, for appellee D.T. Corner, Inc.
    Gerry M. Rinden of Wintroub, Rinden, Sens & McCreary, Des Moines, for appel-lee Centurion Security Services, Inc.
   CADY, Justice.

The fighting issue presented in this action for assault and battery and false imprisonment is whether a citizen’s arrest perfected by numerous persons acting in concert can be lawful when there is no evidence that the person who first made the arrest observed the commission of a public offense. The district court overruled the plaintiffs motion for directed verdict and motion for judgment notwithstanding the verdict following a jury verdict for the defendants. We transferred the case to the court of appeals. It reversed the district court judgment, and ordered a new trial on the false imprisonment claim. On further review, we vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Background Facts and Proceedings.

Childhood friends Gene Rife and Steven Johnson met at the Hickman Pub after work on the night of August 13, 1998. After sharing three pitchers of beer, they left the pub and went to the Court Avenue district in downtown Des Moines. They decided to visit a nightclub called “Papa’s Planet.” The nightclub was owned by D.T. Corner, Inc.

Papa’s Planet charged patrons a five-dollar fee, or cover charge. Several employees of the club were stationed at the entrance to collect the fee, and additional employees supervised the activities of the patrons. The employees who provided supervision were called “bouncers.” Papa’s Planet also contracted with Centurion Security Services, Inc. for additional security. This company provided security personnel for several Court Avenue establishments. The security officers generally patrolled the area and could be contacted by Papa’s Planet employees by radio transmitters.

Rife and Johnson entered the club without paying the cover charge. They both claimed the doorman gave them permission to enter without paying so they could look around to see if they wanted to stay. However, bouncers stationed at the door were told the two men simply entered without paying the charge. A bouncer approached Rife and Johnson in the club and asked them to return to the entrance to pay the cover charge. Additionally, security personnel from Centurion were summoned.

Rife and Johnson returned to the entrance of Papa’s Planet where they were met by two Centurion security officers, as well as Papa’s Planet employees Matt Miller, Jeff Blaine, and John Elkin. The two security officers were Todd Habick and Dan Kite. As Rife was walking out, he lowered his shoulder into Miller’s back. Rife then began complaining to Kite about the manner in which the club employees were treating him. He also began pointing a finger in Kite’s face while shouting profanities. After Rife ignored Kite’s repeated requests to step back, Kite pushed Rife away from him. Rife responded by throwing punches at Kite. Blaine then attempted to gain control of the escalating situation by grabbing Rife from behind. Rife momentarily escaped Blaine’s grasp and attempted to strike Blaine on his backside. Before Rife could do so, however, Habick sprayed the chemical Mace® on Rife to stop the attack.

After the Mace® was used, Rife started to run from Papa’s Planet. Numerous employees of the nightclub and the two security officers pursued him. The chase ended several hundred feet from Papa’s Planet when Matt Wharff, a club employee, caught up with Rife and restrained him. Habick then placed handcuffs on Rife and informed him law enforcement personnel would be arriving shortly. Rife was never informed he was under arrest or the reason for the detention.

Rife was detained until law enforcement officers arrived. Neither Rife nor any of the individuals involved in the detention of Rife were charged with committing a crime. Des Moines police officers released Rife after questioning him for a brief period of time.

Based on the incident, Rife brought an action for damages against Papa’s Planet and Centurion Security Services, Inc. on numerous grounds, which were eventually reduced to assault and battery and false imprisonment. The defendants answered the petition generally denying its allegations. Papa’s Planet also advanced affirmative defenses, including acquiescence, assumption of the risk, and defense of property and business invitees.

One week prior to the commencement of trial, the defendants filed motions for leave to amend their answers to add the affirmative defenses of citizen’s arrest and self-defense. Rife resisted the motions, claiming the amendments would substantially change the issues. The district court granted the motions.

At trial Rife, Johnson, Blaine, Miller, Elkin, Habick, and Kite testified to the events of the night of August 13, 1998. However, "Wharff, the employee who first stopped and detained Rife, had enlisted in the Navy a few months after the incident and, consequently, was unavailable to testify at trial or submit to a deposition. Nevertheless, Habick described the chase at trial and Wharffs actions in restraining Rife. Wharff led the chase of Rife, while Habick was immediately behind Wharff. When Wharff caught up with Rife, he wrapped his arms around Rife and asked Rife to acquiesce. After Rife continued to resist, Wharff picked him up and took him to the ground. Habick further testified that Rife resisted Habick while he attempted to handcuff Rife. Furthermore, Blame’s testimony supported Habick’s version of events. Although Blaine arrived on the scene a few seconds after Habick and did not see Wharffs initial restraint of Rife, Blaine did witness Wharff bringing Rife to the ground.

Habick and Blaine testified they pursued Rife for the purpose of detaining him for law enforcement officers. They observed Rife commit at least one, if not three, assaults on the premises of Papa’s Planet on August 13.

At the close of the evidence, Rife moved for a directed verdict on the false imprisonment claim. He contended the evidence at trial showed without dispute that Rife was detained against his will and that the defendants could not justify the detention based upon a citizen’s arrest because they failed to present evidence showing Wharff witnessed Rife commit a public offense. Rife also argued he was entitled to a directed verdict on his assault and battery claim because the affirmative defense of self-defense asserted by the defendants was not available based on the evidence that Rife retreated after his alleged assault. The district court overruled the motion for directed verdict.

The district court instructed the jury on Rife’s claim of false imprisonment. It also instructed the jury that private persons may lawfully arrest another person under certain circumstances, and that a lawful citizen’s arrest was an affirmative defense to the claim of false imprisonment. It further instructed the jury that Rife could not recover on his claim of false imprisonment if the defendants had established a citizen’s arrest.

The jury returned a verdict in favor of both Centurion and Papa’s Planet. Rife subsequently filed a combined post-trial motion. In a motion for judgment notwithstanding the verdict, Rife renewed his claim for a directed verdict on the false imprisonment theory, but did not raise the assault and battery theory. In a motion for new trial, Rife claimed the court erred in granting the defendants’ untimely request to add the affirmative defenses of citizen’s arrest and self-defense. The court denied both motions.

Rife appealed and raised two issues. He claimed the district court abused its discretion in permitting the defendants to file amendments to their answers. Furthermore, Rife contended that the court erred in denying his motion for directed verdict and motion for judgment notwithstanding the verdict.

We transferred the case to the court of appeals. It held the district court erred in denying the directed verdict motion, and reversed and remanded for a new trial against Papa’s Planet on the false imprisonment claim. The court of appeals found Papa’s Planet failed to introduce substantial evidence on each element of the citizen’s arrest defense. It found insufficient evidence to support the defense of citizen’s arrest because there was no testimony that Wharff observed Rife commit a public offense.

Papa’s Planet sought further review. We granted the application.

II. Standard and Scope of Review.

We afford district courts considerable discretion in ruling on motions for leave to amend pleadings. Davis v. Ottumwa YMCA, 438 N.W.2d 10, 14 (Iowa 1989). Consequently, we will reverse only if the record indicates the court clearly abused its discretion. Id.; Ellwood v. Mid States Commodities, Inc., 404 N.W.2d 174, 179 (Iowa 1987). We will find an abuse of discretion when the court bases its decision on clearly untenable grounds or to an extent clearly unreasonable. McElroy v. State, 637 N.W.2d 488, 496 (Iowa 2001); Davis, 438 N.W.2d at 14.

We review the denial of a motion for directed verdict for errors at law. McClure v. Walgreen Co., 613 N.W.2d 225, 230 (Iowa 2000). When ruling on the motion, the court must consider the evidence in a light most favorable to the party against whom the motion is directed. Id.; Kraft v. City of Bettendorf, 359 N.W.2d 466, 469 (Iowa 1984). If each element of the claim is supported by substantial evidence in the record, the court must overrule the motion. McClure, 613 N.W.2d at 230; Lamb v. Manitowoc Co., 570 N.W.2d 65, 68 (Iowa 1997). Moreover, if reasonable minds could deduce different inferences from the evidence presented, the court must submit the issue to the jury. McClure, 613 N.W.2d at 230.

III. Preservation of Error.

Rife did not challenge the district court’s failure to direct a verdict on the assault and battery claim in his motion for judgment notwithstanding the verdict. It is well settled that a motion for judgment notwithstanding the verdict serves to afford the district court an opportunity to correct any error in failing to direct a verdict. Bangs v. Maple Hills, Ltd., 585 N.W.2d 262, 268 (Iowa 1998); Meeker v. City of Clinton, 259 N.W.2d 822, 827 (Iowa 1977); see Iowa R. Civ. P. 243(b) (judgment notwithstanding verdict). Additionally, Rife failed to state in his brief how this issue was preserved for our review. See Iowa R.App. P. 14(a)(5) (appellant must state how issue was preserved for each argument); State v. Rodriquez, 636 N.W.2d 234, 246 (Iowa 2001) (finding issue waived where party “failed to state in his brief how error was preserved on th[e] issue”). Consequently, we confine our review to the false imprisonment claim and the motion to amend the answer.

IV. Amended Answer.

Iowa Rule of Civil Procedure 69(d) governs the amendment of pleadings. This rule instructs district courts to freely grant leave to amend when required by the interests of justice. Iowa R. Civ. P. 69(d); Davis, 438 N.W.2d at 14. Generally, a party may amend a pleading at any time before a decision is rendered, even after the close of the presentation of the evidence. Ackerman v. Lauver, 242 N.W.2d 342, 345 (Iowa 1976). As long as the amendment does not substantially change the issues or defense of the case, the court should permit the amendment. Glenn v. Carlstrom, 556 N.W.2d 800, 804 (Iowa 1996); Davis, 438 N.W.2d at 14; Ellwood, 404 N.W.2d at 179; Ackerman, 242 N.W.2d at 345. Even an amendment that substantially changes the issues may still be allowed if the opposing party is not prejudiced or unfairly surprised. See McElroy, 637 N.W.2d at 495; Chao v. City of Waterloo, 346 N.W.2d 822, 825-26 (Iowa 1984).

In determining whether the district court abused its discretion in permitting the defendants to amend their answers to assert the defense of citizen’s arrest, it is important to first consider the nature of Rife’s false imprisonment claim. In his petition, Rife identified his action as false imprisonment. Later, in a motion in li-mine, Rife acknowledged his claim was false imprisonment by false arrest.

We recognize a tort action for false imprisonment, as well as false arrest. See Nelson v. Winnebago Indus., Inc., 619 N.W.2d 385, 388 (Iowa 2000) (elements of false imprisonment are detention or restraint against person’s will and unlawful detention); Kraft, 359 N.W.2d at 469 (elements of false arrest are detention or restraint against person’s will and unlawfulness of detention). The elements of the torts, however, are indistinguishable. Kraft, 359 N.W.2d at 469; Children v. Burton, 331 N.W.2d 673, 678 (Iowa 1983); Fox v. McCurnin, 205 Iowa 752, 757, 218 N.W. 499, 501 (1928); 1 Dan B. Dobbs, The Law of Torts § 36, at 67 (2001) [hereinafter Dobbs]. Generally, false arrest is one of several means of committing false imprisonment. Children, 331 N.W.2d at 678. The term false arrest actually “describes the setting for false imprisonment when it is committed by a[ ] [peace] officer or by one who claims the power to make an arrest.” 1 Dobbs, § 36, at 67. Thus, a tort action for false imprisonment based on false arrest against one who is not a peace officer normally implies that the detention or restraint to support the tort was done by one who claims the power of arrest.

When a person acts under a claim of authority to arrest, with or without a warrant, the arrest normally involves conduct which, unless privileged, constitutes false imprisonment. Restatement (Second) of Torts § 118 cmt. b (1965); 1 Dobbs, § 36, at 67-68. Thus, a claim of false arrest by a citizen usually turns on whether the conditions authorizing an arrest have been satisfied. See 1 Dobbs, § 36, at 67-68. Moreover, the existence of a privilege or legal authority to arrest is an affirmative defense that the defendant must establish. Children, 331 N.W.2d at 679 (once plaintiff establishes a warrant-less arrest, burden shifts to defendant to prove justification for the arrest); Fox, 205 Iowa at 759, 218 N.W. at 501; 1 Dobbs, § 36, at 67-68. The privilege to arrest extends to private persons under the limited circumstances set forth in Iowa Code section 804.9 (1997). See 1 Dobbs, § 83, at 195 (private persons privileged to arrest under limited circumstances). If the person perfecting the arrest satisfies the conditions, the defense is met and there can be no recovery for false arrest. See Iowa Code § 804.9.

This backdrop reveals that the defense of citizen’s arrest raised by a defendant who is not a peace officer is normally an issue in an action for false arrest. See Kraft, 359 N.W.2d at 469; Fox, 205 Iowa at 759, 218 N.W. at 501. This case is no exception. Once Rife framed his false imprisonment claim as false arrest, the fighting issue in the case turned on the justification for the arrest. This entitled the defendants to assert the privilege to arrest under section 804.9. Additionally, Rife was notified of this defense in a pretrial deposition. The record reveals Habick justified his actions in detaining Rife as a citizen’s arrest in his deposition taken pri- or to trial.

As an affirmative defense, the defendants in this case were required to raise the defense of citizen’s arrest in then-pleadings. Our rules recognize affirmative defenses must be raised in pleadings. City of Clinton v. Loeffelholz, 448 N.W.2d 308, 310 (Iowa 1989); Foods, Inc. v. Leffler, 240 N.W.2d 914, 920 (Iowa 1976); see Iowa R. Civ. P. 86 (any defense alleging justification or excuse must be specifically pled); Iowa R. Civ. P. 88(a) (must raise defenses in pleadings).

Under the circumstances, the district court did not abuse its discretion in granting the motion to amend. It was necessary for the defendants to properly raise and preserve the issue, and the amendment did not create surprise or inject new issues into the case. See McElroy, 637 N.W.2d at 495; Ackerman, 242 N.W.2d at 345. In fact, the facts giving rise to the citizen’s arrest defense were nearly identical to those necessary for Rife to establish false arrest. Davis, 438 N.W.2d at 15 (discussing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 226 (1962)). The defendants were simply clarifying their theory of defense by filing the amended answer. See McElroy, 637 N.W.2d at 495; Chao, 346 N.W.2d at 826. Furthermore, Rife did not request a continuance of trial. The failure to request a continuance mitigates a party’s claim that an amendment deprives the party of the ability to adequately prepare for trial. Ackerman, 242 N.W.2d at 345.

V. Citizen’s Arrest Defense.

The right of a private person to arrest another, commonly referred to as the right of “citizen’s arrest,” originated at common law. 5 Am.Jur.2d Arrest § 56, at 708 (1995). However, our legislature expressly conferred this right on our citizens in 1851. See Iowa Code § 2846 (1851). Today, Iowa Code section 804.9 governs the arrest of persons by private individuals. It creates two categories of citizen’s arrest: public offenses and felonies. See id. § 804.9 (1997). A citizen may make an arrest for any public offense if the offense is “committed or attempted in the [citizen’s] presence.” Id. § 804.9(1). However, if the public offense is a felony, a less stringent standard is imposed. If the offense constitutes a felony, the citizen must only possess reasonable grounds to believe the person to be arrested committed the felony. Id. § 804.9(2).

There is an additional requirement to perfect a citizen’s arrest. The citizen making the arrest must inform the person to be arrested of the intent to arrest and the reasons for the arrest. Id. § 804.14 (manner of making an arrest). No formal announcement is required, as long as the citizen sufficiently conveys, either through words or conduct, the intent to perform a citizen’s arrest. See State v. Rains, 574 N.W.2d 904, 910 (Iowa 1998); State v. Dennison, 571 N.W.2d 492, 495 (Iowa 1997); State v. Lawler, 571 N.W.2d 486, 490 (Iowa 1997); 6A C.J.S. Arrest § 43, at 100 (1975); Restatement (Second) of Torts § 128 cmt. a.; Rollin M. Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 249 (1940) [hereinafter Perkins]. However, noncompliance with the notification requirements is excused if the person to be arrested is actually committing the offense or is escaping so that the citizen does not have the time or opportunity to announce the arrest. Iowa Code § 804.14. Thus, no announcement is required if it would not be feasible under the circumstances. Perkins, 25 Iowa L.Rev. at 250.

An arrest is defined as taking a person into custody. Iowa Code § 804.5. It includes “restraint of [a] person or [a] person’s submission to custody.” Id. Rife claims Wharff perfected the arrest and was required to have witnessed a predicate public offense committed by Rife. He further claims Wharff was required to notify Rife of his intent to make an arrest and the reasons for the arrest. Rife asserts there was insufficient evidence for the jury to find the necessary elements of lawful arrest, and he was therefore entitled to judgment as a matter of law.

Historically, the requirement that a public offense be committed “in the person’s presence” has been liberally construed. People v. Lee, 204 Cal.Rptr. 667, 669 (Cal.App. Dep’t Super.Ct. 1984); State v. Bergeron, 326 N.W.2d 684, 686 (N.D.1982). Yet, as with police officers making warrantless arrests, mere knowledge of the commission of a misdemeanor offense is insufficient to support a citizen’s arrest. State v. Duren, 266 Minn. 335, 123 N.W.2d 624, 631 (1963). Instead, the citizen must have observed conduct by the alleged offender that is sufficiently indicative of a crime in the course of its commission. 5 Am.Jur.2d Arrest § 57, at 708. It is sufficient if the citizen detected the commission of the offense through one of his or her senses, such as hearing, sight, or smell. State v. Moore, 129 Idaho 776, 932 P.2d 899, 902-03 (Ct.App.1996); Gray v. Earls, 298 Mo. 116, 250 S.W. 567, 572 (1923); Bergeron, 326 N.W.2d at 686; 6A C.J.S. Arrest § 15, at 25-26 & n. 15.

We agree the record fails to reveal whether Wharff witnessed any public of-‘ fense, although it does reveal evidence to support a finding that Rife committed one or more public offenses. The record further reveals Wharff was working as an employee of Papa’s Planet on August 13, 1998, and worked in the area where the incident occurred. The record also shows Wharff joined in the chase of Rife along with several other employees and security personnel employed by Papa’s Planet immediately after Rife began to run from the nightclub. More importantly, the employees and security officers were acting together. Rife acknowledged the employees and security officers acted in concert.

The circumstances that permit peace officers to make an arrest without a warrant include the commission of a public offense in the presence of the peace officer. Iowa Code § 804.7(1). Thus, one of the grounds authorizing a peace officer to make a warrantless arrest mirrors one of the grounds authorizing a private person to make an arrest. Compare id., with id. § 804.9(1). We additionally recognize that the knowledge of one peace officer, acting in concert with other peace officers, is presumed to be shared by all. State v. Satern, 516 N.W.2d 839, 841 (Iowa 1994); State v. Owens, 418 N.W.2d 340, 342 (Iowa 1988); State v. Thornton, 300 N.W.2d 94, 97 (Iowa 1981); accord People v. Thompson, 793 P.2d 1173, 1175 (Colo.1990); Voorhees v. State, 699 So.2d 602, 609 (Fla.1997). This shared-knowledge doctrine permits one officer to make an arrest without knowledge of all of the predicate elements to support an arrest as long as other officers involved have the predicate knowledge. See Torrey v. City of Tukwila, 76 Wash.App. 32, 882 P.2d 799, 803-04 (1994) (officers acting together, misdemeanor in the presence of one, arrest by the other, no tort); accord Jackson v. State, 274 Ark. 317, 624 S.W.2d 437, 439 (1981); Thompson, 793 P.2d at 1175; People v. Baca, 198 Colo. 399, 600 P.2d 770, 771-72 (1979); Voorhees, 699 So.2d at 609-10; Thornton, 300 N.W.2d at 97. Considering the identical authority of citizens and peace officers to make warrantless arrests, we believe the rule of shared knowledge applicable to police officers acting together should also apply to citizens acting together.

Applying the rule of shared knowledge to the citizen’s arrest in this case, we find the record demonstrates sufficient evidence was introduced to satisfy the presence requirement. The employees were acting within the scope of their employment and, consequently, were acting in concert in detaining Rife. Several of Wharffs co-employees testified at trial to public offenses committed by Rife in their presence. Under the circumstances, it was not necessary for Wharff to also testify to the same evidence.

Rife also claims there was insufficient evidence that the defendants complied with the disclosure requirement of the arrest statute. He claims this too rendered the arrest unlawful.

Although none of the employees or security officers involved in the citizen’s arrest informed Rife of their intent to arrest, we find there was sufficient evidence to justify noncompliance with the disclosure requirement under section 804.14 based on the circumstances surrounding the arrest. The disclosure requirement under section 804.14 appears to be designed to minimize the amount of force required to accomplish the arrest. See 1 Dobbs, § 83, at 194. Without the disclosure, the plaintiff might perceive the arrest as an attack or some other misuse of power. Id. at 195. On the other hand, section 804.14 recognizes the futility of disclosure when “the person to be arrested is actually engaged in the commission of or attempt to commit an offense, or escapes, so that there is no time or opportunity to do so_” Iowa Code § 804.14.

There was substantial evidence to show the employees were excused from the notification requirement when they attempted to restrain Rife on Papa’s Planet’s premises because Rife was “actually engaged in the commission of ... an offense” at the time. Id. Furthermore, there was substantial evidence to excuse the disclosure after Rife broke loose and ran from the premises. See id. In both instances, the situations escalated within short time periods. There was no time or opportunity for the employees to announce their intentions. See id. Additionally, the rationale for requiring the disclosure no longer existed after Rife ran from the scene. As explained in the Restatement (Second) of Torts:

If the person arrested knows of the cause of [the] arrest, the manifestation would be a mere superfluous and idle ceremony, and is therefore not required. If an officer attempts to arrest or arrests another engaged in the commission of an offense or on fresh pursuit, the officer is not required to manifest the cause of the arrest. In such case it is extremely unlikely that the person arrested is unaware of the fact that he is committing the offense, but his ignorance is immaterial unless the actor realizes or should realize that the other is not aware that his conduct constitutes an offense.

Restatement (Second) of Torts § 128 cmt. f. The circumstances support a finding that Rife was aware his conduct constituted a public offense and the defendants sought to detain him for that purpose. See 1 Dobbs, § 83, at 195 (disclosure not required where person to be arrested already aware of the reason for the arrest). Finally, when Wharff caught up with Rife, Wharff requested Rife’s cooperation before ultimately restraining him. After handcuffing Rife, Habick informed Rife the police department had been summoned. Upon the officers’ arrival, Rife was promptly released to their control. Thus, the procedural requirements of section 804.24, requiring a private citizen to deliver an arrested person to a police officer or magistrate without unnecessary delay, were also satisfied.

VI. Conclusion.

The district court acted within its discretion in granting the defendants’ motions to amend their answers. Additionally, the district court did not err in denying the motion for directed verdict and motion for judgment notwithstanding the verdict.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

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


author: CARTER, Justice.

text:
    In the Matter of the TRUST KNOWN AS the Harry L. SPENCER, Mary E. Spencer, and Gertrude Whittier Spencer Lacy MEMORIAL FUND, Under Last Will and Testament of W. Seymour Lacy, Deceased. Mid-Iowa Council of Boy Scouts of America, Inc., Appellant, v. Norwest Bank Iowa, N.A., Trustee, and Mahaska County Boys, Inc., Appellees.
    No. 99-1198.
    Supreme Court of Iowa.
    Feb. 27, 2002.

      Mark McCormick and Steven M. Collo-ton of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for appellant.
    David D. Dixon of Heslinga, Heslinga & Dixon, Oskaloosa, for appellees.
   CARTER, Justice.

This dispute concerns the distribution of proceeds from a testamentary trust. Objections were filed to the trustee’s annual report asserting that Mid-Iowa Council of Boy Scouts of America, Inc. (Mid-Iowa Council), a regional administrative division of the Boy Scouts of America, was not using the annual distributions it received in accordance with the testator’s directions. The objector is Mahaska County Boys, Inc. (Boys, Inc.), a nonprofit corporation organized for the sole purpose of providing resources for boy scout activities in Oskaloosa, Iowa. Its members consist of current and former scout leaders in the community. Boys, Inc. sought a ruling from the district court directing the annual charitable distribution that the testator provided for “the exclusive benefit of the activities of the boy scouts in Oskaloosa, Iowa,” be distributed to it rather than to Mid-Iowa Council.

The district court found that Mid-Iowa Council was not using the trust proceeds it received in the manner directed by the testator and ordered the trustee to make current and future distributions to Boys, Inc. rather than Mid-Iowa Council. Mid-Iowa Council challenges this ruling on this appeal. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court as modified by this opinion.

The testator was W. Seymour Lacy who died in the state of New York on December 10, 1957. His will was admitted to probate in New York but the trustee named therein was the Iowa Des Moines National Bank. Court supervision of the portion of the trust at issue here has, since the inception of the trust, been carried out in the Iowa District Court for Mahaska County.

Mr. Lacy’s will provided, in part, as follows:

SEVENTH: All the rest, residue and remainder of my estate, real and personal, wheresoever situated, of which I shall die seized or possessed, or to which I may in any way be entitled, or over which I may have any power of testamentary disposition, including any lapsed legacy, all of which is hereinafter referred to as my “residuary estate,” I dispose of as follows:
C. I give, devise and bequeath my residuary estate to the IOWA-DES MOINES NATIONAL BANK, as Trustee, in trust, to hold, manage and administer the trust estate, which shall be known as “THE HARRY L. SPENCER, MARY E. SPENCER and GERTRUDE WHITTIER SPENCER LACY MEMORIAL FUND,” and shall be construed to be a charitable trust, collect the income therefrom and distribute the income thereof as follows:
(b) To each of the following charitable organizations operating in the City of Oskaloosa, Mahaska County, Iowa, the birthplace of my wife, and toward which I have an abiding and deep affection, I direct that there be paid annually in each fiscal year of the trust, commencing with the date of my death, the sum set after the name of each, to wit:
(iv) The Southern Iowa Area Council of Boy Scouts of America, located at 302 East Main Street, Ottum-wa, Iowa, One thousand Dollars ($1,000.00), for the exclusive benefit of the activities of the Boy Scouts in Oskaloosa, Iowa.
It has been the desire of my wife, Gertrude W. Lacy, and me, in planning the above program which has as its main purpose the assistance of the youth of Oskaloosa, that the additional assistance which this fund mil bring to the efforts of the residents of Oskaloosa and its environs may serve to make the effectiveness of these Os-kaloosa organizations outstanding when compared with like services provided by cities of the same size.... I request the Trustee to advise each of the above-named organizations annually, at the time its share of the income from this Fund is sent to it, of this expression of the hopes and desires of my wife and myself in planning this program.
(d) If in any fiscal year of the trust there is a surplus of net income remaining over and above the payments required to be made to the said Irene D. Roberts and Harriette L. Searle and the total of the distributions required to be made to the organizations specified in subdivisions “(a)” and “(b)” hereof, then and in that event such surplus shall be divided in fiftieths and distributed among the following organizations in the proportions set after the name of each:
■ (iii) The Southern Iowa Area Council of Boy Scouts of America, three-fiftieths (3/50) for the exclusive benefit of the activities of the Boy Scouts in Oskaloosa, Iowa.

(Emphasis added.) Due to a reorganization of boy scout councils in the state of Iowa, the Southern Iowa Area Council mentioned in Mr. Lacy’s will is now the Mid-Iowa Council.

In August 1995 Boys, Inc. wrote to Mid-Iowa Council requesting an accounting of how it had used the proceeds received by the trust in prior years. It received a response from the council’s lawyer stating only that “Mid-Iowa Council has responsibly handled its financial affairs, and received unqualified audits each year it has received funds from the Lacy Trust.” On January 15, 1999, the trustee filed an annual report. Boys, Inc. objected to that report with respect to the proposed distribution to Mid-Iowa Council. It asserted that Mid-Iowa Council was not using the trust proceeds “for the exclusive benefit of the activities of the boy scouts in Oskaloo-sa, Iowa.”

There are two boy scout troops in Oska-loosa. One is affiliated with the Central Methodist Church and the other is affiliated with the First Christian Church. Within the boy scout organizational structure, these churches are known as chartered partners. They participate in conducting the scouting program. Boy scout activity in Oskaloosa also includes two Cub Scout packs and an Explorer Scout crew. There are approximately 142 members in the local scout programs in Oskaloosa. The charter between the national boy scout program and each of the chartered partners provides that the chartered partner is to “conduct the scouting program according to its own policies and guidelines as well as those of the Boy Scouts of America.”

The national organization of the Boy Scouts of America provides guidance to local scout organizations with respect to money raising projects. All fund-raising activities must be approved by the national organization. In addition, the national organization has in place bylaws governing financial operations. Money raised for the benefit of a local unit or property acquired by a local unit is deemed to be received solely for the benefit of scouting as interpreted and promoted by the Boy Scouts of America. Clause 2(d) of section 1 of article XI of the bylaws and articles of the Boy Scouts of America provides:

Special funds created for specific purposes acquired by a unit or local counsel, shall be vested in a bank, trust company, or BSA Investment Trust, in trust for the use of the unit or the local council, in accordance with the wishes of the donors ....

Mid-Iowa Council has received funds from the Lacy trust annually since 1971. Recent contributions have been approximately $8000 annually. Mid-Iowa Council has deposited the trust distribution in its general fund and used it to defray its operating costs in the twenty-seven counties of its geographical area. The record indicates that the amount of money expended by Mid-Iowa Council on behalf of scouting activities in Oskaloosa is based on a general formula that applies to all scouting programs of similar size within the district. Other facts that are relevant to our decision will be considered in connection with our discussion of the legal issues presented.

I. Interpretation of the Trust Language.

We have recognized that in interpreting the language of testamentary trusts, the intent of the testator governs. First Nat’l Bank v. Mackey, 338 N.W.2d 361, 363 (Iowa 1983); In re Work Family Trust, 260 Iowa 898, 901, 151 N.W.2d 490, 492 (1967). The meaning accorded to the language used is to be its usual and ordinary meaning. In re Manahan’s Estate, 255 Iowa 1060, 1066, 125 N.W.2d 135, 138 (1963). We must apply these rules in deciding whether Mid-Iowa Council followed W. Seymour Lacy’s wishes with respect to the use of the distributions it received from the trust.

In urging that it did comply with the testator’s wishes, Mid-Iowa Council points to evidence that Oskaloosa’s pro rata share of the council’s district-wide annual costs exceeded the council’s annual distribution from the Lacy trust. Thus, it argues the full amount of the annual distribution was spent on scouting programs in Oskaloosa. The flaw in this argument is that, in carrying out its mission, Mid-Iowa Council was obligated to provide some level of funding for the district-wide scouting programs that benefited Oskaloosa scouts had the Lacy trust not existed. The council’s use of the trust distributions served to subsidize all scouting programs throughout the district.

The district court found and we agree that it was the intention of the testator “to give an advantage to the youth of Oskaloo-sa which would be over and above the benefits received by young people in other communities of the same size.” We are convinced that Mid-Iowa Council was required to expend all of the annual distributions from the Lacy trust in a manner that discretely and directly benefited boy scout activities in Oskaloosa. The district court correctly concluded that the use of the trust distributions made by Mid-Iowa Council clearly did not accord with that requirement.

II. The Remedy.

Upon upholding the district court’s conclusion that Mid-Iowa Council has not been using the Lacy trust funds for the intended purpose, we must now consider whether the district court’s method of remedying this misuse of the funds was proper.

The reason the district court chose to substitute Boys, Inc. as the entity to which the trust distribution should flow for the benefit of local scouting activities was Mid-Iowa Council’s resolute inflexibility in declaring that it would not alter its ways. It has contended throughout this litigation that to spend this money solely on the scouting program in Oskaloosa would be contrary to basic principles of scouting. Boys, Inc. was viewed as an independent entity that would accept the trust proceeds and use them exclusively for the benefit of local scouting, thus carrying out the intent of the testator.

The district court concluded that it could justify changing the beneficiary under the doctrine of equitable deviation. That doctrine, recognized by this court in In re McDonough Trust, 252 Iowa 870, 881, 109 N.W.2d 29, 35 (1961), and described in Restatement (Second) of Trusts § 381 (1959), authorizes deviations from the methods provided for achieving the goals of the settlor, if the methods provided in the trust instrument are impracticable or impossible and the settlor’s goals can be achieved by other methods. The doctrine is aimed primarily at administrative provisions in trusts. Mid-Iowa Council argues that the doctrine is a narrow one and does not allow for the substitution of a beneficiary.

In defense of the district court’s ruling, we note that Mid-Iowa Council was not intended to be the ultimate beneficiary of these trust distributions but only a conduit through which the proceeds passed for benefit of the local boy scout organizations. It is therefore not inaccurate to characterize the changes that the district court made as involving the administration of the trust. The problem we perceive with the substitution of Boys, Inc. as the entity to receive the trust distributions and expend the money on local scouting activities is that this places the decision making on matters affecting scouting programs in the hands of an organization that has no sanctioned ties to the Boy Scouts of America. We are convinced that Mid-Iowa Council, as the sanctioned representative of the Boy Scouts of America, should be the entity to decide how money is to be spent to carry out the boy scouts’ mission. Consequently, we must modify the district court’s ruling as it pertains to Boys, Inc.

The inflexibility of Mid-Iowa Council in its attitude toward the Lacy trust surprises us in light of the rather flexible language in clause 2(d) of section 1 of article XI of the bylaws and articles of the Boy Scouts of America pertaining to earmarked gifts to local units. Nevertheless, we believe that in the final analysis this is a decision that must be made by authority within the boy scouts organization. Its arguments on appeal reveal that Mid-Iowa Council, as the representative of organized scouting in this litigation, continues to adhere to the view that it is not in keeping with the underlying principles of scouting to lavish a substantial amount of money on a single local scouting program. Assuming that is true, our decision does not rest on whether Mr. Lacy’s bequest was well advised.

If, as Mid-Iowa Council urges, it is contrary to basic principles of scouting to expend these funds for the exclusive use of scouting programs in Oskaloosa, then it should have, at the inception of the gifts, declined to accept them. We choose to give it that opportunity now. We remand the case to the district court with directions that Mid-Iowa Council may, within sixty days of the issuance of proceden-do, file an unqualified declaration of its intention to administer the Lacy trust proceeds consistent with our conclusion that the trust distributions must be used in their entirety for the discrete and direct benefit of the boy scout programs in Oska-loosa. If Mid-Iowa Council fails to accept that invitation, the trustee is directed to make no further distributions to the Mid-Iowa Council and shall apply to the district court for directions for invoking the doctrine of cy-pres and substituting a different local charitable organization as the recipient of that portion of the Lacy trust distributions that was gifted to the boy scouts under Mr. Lacy’s will.

The judgment of the district court is affirmed as modified by our opinion.

AFFIRMED AS MODIFIED.