author: LAVORATO, Chief Justice.

text:
    CIVIL SERVICE COMMISSION OF CORALVILLE, Iowa, Appellant, v. Britton JOHNSON, Appellee.
    No. 01-1005.
    Supreme Court of Iowa.
    Oct. 9, 2002.
    Rehearing Denied Dec. 2, 2002.

      Peter L.J. Pashler and Randall H. Stefa-ni of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellant.
    William H. Roemerman of Crawford, Sullivan, Read & Roemerman, P.C., Cedar Rapids, and Tom Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellee.
   LAVORATO, Chief Justice.

The Civil Service Commission of Coral-ville (Commission) appeals from a district court ruling reducing the disciplinary sanction imposed against Britton Johnson from termination of employment to a thirty-day suspension. Johnson" cross-appeals, contending the discipline imposed by the district court should be reduced or eliminated. On our de novo review, we reverse on appeal the decision of the district court and remand for an order reinstating the Commission’s original termination decision. Our decision on appeal disposes of the cross-appeal.

I. Background Facts and Proceedings.

Britton Johnson has been in law enforcement since 1974. In the latter part of 1983, he began working as a police officer with the Coralville Police Department.

In late 1994 and early 1995, a series of armed robberies of restaurants occurred in western Illinois and eastern Iowa. In November 1994, a robbery occurred at the Bonanza restaurant in Coralville. At the time, Johnson was a detective with the Coralville Police Department. In that capacity, he was assigned to investigate the robbery.

Michael Bowers, a detective with the Davenport Police Department, was also investigating the restaurant robberies. Working with Bowers, Johnson determined that Michael Constantino was a suspect in the Bonanza restaurant robbery.

Johnson, Bowers, and Donald Smith, a detective with the Davenport Police Department, interrogated Constantino at the Davenport Police Station on February 23, 1995. The interrogation lasted several hours, during which Constantino provided information about several of the robberies under investigation. In providing that information, Constantino made incriminating statements about his involvement in the Coralville Bonanza restaurant robbery.

Unbeknownst to Johnson, the Davenport detectives recorded the first ninety-one minutes of the Constantino interrogation on audiotape. Johnson did not learn of the recording until after he completed his report of the interrogation.

In May 1995, a federal grand jury indicted Constantino and three others on charges of conspiracy to obstruct commerce by robbery and extortion. Constan-tino moved to suppress the statements he made to the officers during the February 23, 1995, interrogation. Johnson testified at the hearing on the motion held before United States District Court Judge Charles Wolle in September 1995.

In his final order on pretrial motions, Judge Wolle concluded that (1) the interrogation was not coercive, (2) Constantino’s statements were voluntary, and (3) during the investigation Constantino waived his right to remain silent and his right to counsel. The judge denied the motion to suppress and the case proceeded to trial.

Johnson testified at Constantino’s federal trial. Before Johnson testified, the federal prosecutors failed to give Constanti-no’s lawyer copies of Johnson’s grand jury testimony and Johnson’s notes of the February 23, 1995, interrogation. This failure constituted a Jenks Act violation and resulted in a mistrial. Constantino then entered an Alford, plea on November 16, 1995, and was released from custody.

One day after his release from federal custody, Constantino was arrested and charged in state court with first-degree robbery of the Coralville Bonanza restaurant. In February 1996, District Judge Larry Conmey suppressed Constantino’s statements made during the February 23, 1995, interrogation. The judge determined that Constantino made an unambiguous request for counsel during the interrogation, after which the detectives should have terminated the interrogation and Constantino should have been provided with an attorney. Judge Conmey did not rule on the voluntariness of Constantino’s statements made during the interrogation. A week after the judge’s ruling, a jury acquitted Constantino of the robbery charge.

On February 13, 1998, Constantino filed a civil suit against Johnson and the City of Coralville. In the suit, Constantino alleged that he was subjected to false arrest, false imprisonment, and malicious prosecution, among other wrongs, as a result of his interrogation, arrest, and prosecution for the robberies. Several days before the suit was filed, Constantino’s lawyer sent a demand letter to the City, detailing the allegations of misconduct against Johnson.

After reviewing the petition, Coralville’s chief of police, Barry Bedford, determined it contained allegations of wrongdoing significant enough to warrant an internal affairs investigation. On February 20, 1998, Chief Bedford advised Johnson of the lawsuit and told him an internal affairs investigation into his conduct was warranted.

The City of Coralville settled with Con-stantino less than six weeks after the suit was filed, without filing an answer. The settlement upset Johnson and prompted him to file suit against the City, its insurer, and various other defendants because Gonstantino’s suit was settled without an answer or trial. See City of Coralville v. Iowa Dist. Ct., 634 N.W.2d 675, 677 (Iowa 2001).

On April 6, 1998, shortly after the City’s settlement with Constantino, Chief Bed-ford ordered an internal affairs investigation of Johnson. The chief designated Lieutenant Ron Wenman as the primary investigator. During the investigation, Johnson responded to allegations in writing and in person. Wenman completed his final report on January 20,1999.

In his April 6,1998 order, Chief Bedford listed fifteen allegations of misconduct against Johnson, all based on claims made by Constantino in his lawsuit against Johnson and the City. The chief added two allegations. Wenman added three allegations, bringing the total to twenty.

Wenman’s report sustained thirteen allegations, sustained in part one allegation, and did not sustain six allegations. The report recommended that the chief discharge Johnson. Chief Bedford approved the report on January 22, 1999. On the same day, the chief notified Johnson that he — the chief — intended to discharge him. On March 29, 1999, Johnson received a written notice of discharge.

Johnson appealed the discharge to the Civil Service Commission pursuant to Iowa Code chapter 400 (1997). In November 1999, the Commission upheld the discharge. Several days later, Johnson appealed the Commission’s ruling to the district court, pursuant to Iowa Code section 400.27.

In February 2001, the district court heard several days of testimony. Several months later, the court ruled. Of the fourteen allegations that had been sustained in Wenman’s final report, approved by the chief and upheld by the Commission, the court sustained only three of them — allegations 6 (sustained in part), 18, and 19.

Allegation 6 stated, “Officer Johnson untruthfully reported in official reports and sworn testimony, misrepresenting statements by Michael Constantino.” The district court divided this allegation into eight subparts, A through H. It sustained only subpart “A,” which related to Johnson’s report of Constantino’s alleged request for an attorney.

Allegation 18 related to a search warrant Johnson obtained on November 30, 1994. The district court concluded that Johnson did not properly document the search warrant procedure.

Allegation 19 related to alleged “offers of leniency.” The district court found “many examples of promises of leniency made by Johnson during the interrogation” of Constantino, but did not find these were “improper offers of leniency.” The court concluded that “the offers, even though they did not render the confession involuntary, were made and were not disclosed.” The court therefore sustained the allegation.

The district court ordered a thirty-day suspension, effective March 29, 1999. The court further ordered Johnson’s reinstatement to his former position as police officer, retroactive to April 29,1999.

The Commission appealed; Johnson cross-appealed.

II. Issues.

The Commission disputes the district court’s factual findings. It contends the evidence shows Johnson was untruthful in reporting and testifying during a criminal investigation. Rather than addressing each allegation individually, as the district court did, the Commission addresses a number of general areas in which it claims Johnson was untruthful. These include the following: (1) request for counsel, (2) promises of leniency, (3) documenting the search warrant, and (4) internal affairs. The Commission contends, “[t]he issue that has come front and center on this appeal is: Was Britton Johnson honest and truthful when he made reports and gave testimony concerning the interrogation and investigation of Michael Constan-tino?”

The Commission concludes that based on the record before it, the district court erred by reducing the sanction imposed against Johnson from termination to a thirty-day suspension.

In his cross-appeal, Johnson contends we should reduce or eliminate the discipline the district court imposed.

The appeal and cross-appeal come down to (1) whether Johnson was untruthful, and (2) if so, what discipline is warranted.

III. Scope of Review.

We review the district court’s decision de novo. Iowa Code § 400.27; Dolan v. Civil Serv. Comm’n, 634 N.W.2d 657, 662 (Iowa 2001). We give weight to the district court’s findings but are not bound by them. Id. Our review is confined to the record made in the district court. Id. We do not receive new evidence, and we limit our review to the same issues raised in the district court. Id. We “independently construe the factual record as a whole to determine if the officer’s discipline was warranted.” City of Des Moines v. Civil Serv. Comm’n, 513 N.W.2d 746, 748 (Iowa 1994).

IV.Applicable Law.

A chief of police may remove, demote or suspend a police officer for neglect of duty, disobedience of orders, misconduct or failure to properly perform duties. Iowa Code §§ 400.18, .19. Misconduct has no fixed meaning, but is a broad term that “includes relatively minor or innocuous behavior ... or more flagrant and injurious breeches of decorum.” Sieg v. Civil Serv. Comm’n, 342 N.W.2d 824, 829 (Iowa 1983). A chiefs suspension or dismissal of an officer must be for “conduct detrimental to the public interest.” City of Fort Dodge v. Civil Serv. Comm’n, 562 N.W.2d 438, 440 (Iowa Ct.App.1997) (citation omitted).

A police officer

does not have a constitutional right to his employment and is subject to reasonable supervision and restriction by his supervisors so proper discipline may be maintained and the activities of officers do not disrupt or impair their public duties. Rules and regulations are necessary to maintain order and discipline among officers and to ensure and improve public service. The purpose of these rules is not merely punitive; it is also to protect the public. Since peace officers are charged with a public trust, the public has every right to expect these officers to conduct themselves with good character, sobriety, judgment and discretion. Police departments are akin to paramilitary organizations, and discipline must be strictly enforced.

Sieg, 342 N.W.2d at 829 (citations omitted).

The image presented by police personnel to the general public “is vitally important to the police mission.” City of Fort Dodge, 562 N.W.2d at 440 (citation omitted). Additionally, such image “also permeates other aspects of the criminal justice system and impacts its overall success.” Id. For these reasons, “police officers must earn and maintain the public trust at all times by conducting themselves with good judgment and sound discretion.” Id.

Grounds justifying discipline of an officer are not confined to the violation of a criminal statute or a departmental rule. Eilers v. Civil Serv. Comm’n, 544 N.W.2d 463, 466 (Iowa Ct.App.1995). Pri- or violations of rules may be considered in determining whether the cumulative effect of an officer’s misconduct is sufficient to warrant discharge. City of Fort Dodge, 562 N.W.2d at 440.

Y. Untruthfulness.

The egregiousness of Johnson’s untruthfulness regarding promises of leniency he made during the interrogation of Constan-tino, together with Johnson’s prior violations, convinces us that the proper discipline in this case is termination, a matter we discuss later in this opinion. We limit our discussion here to the promises and Johnson’s subsequent statements regarding those promises.

An officer may tell a suspect it is better to tell the truth. State v. Hodges, 326 N.W.2d 345, 349 (Iowa 1982). But where an officer tells a suspect what advantage is to be gained or is likely from making a confession, ordinarily the officer’s statements become promises or assurances, rendering the suspect’s statements involuntary. Id.

The transcript of the interrogation is replete with Johnson’s statements of leniency, as the following excerpts from the interrogation show:

JOHNSON: ... [Y]ou got a hell of a lot to lose.
CONSTANTINO: Yes.
JOHNSON: Yes you do, and life can go on or life can stop as you know it, and it depends on you. I mean you can write your own chapter on how you want this book to end, but this book is gonna end.
JOHNSON: You’re gonna be on a fast track to hell, I’m telling you. This game is up. And if you want to sit here and play this game, fine, I’ll play this game, Mike will play this game and we’ll play this game until you get tired of it. But the train is picking up speed every second, and you’re on it, and you won’t be able to get off. We are giving you a chance to get off.
JOHNSON: And we haven’t even gotten to the serious part of it yet. But it’s gonna take you telling us something to make us think that you are willing to work with us, and talk to us and help us, and if you don’t do that, life as you know it is over. I’m not gonna tell you anything that we know until we want you to know about it.
JOHNSON: We did a search warrant at your place. We’ve got statements. You’re about five seconds away from taking a trip. We’re giving you a chance. You’re the first person we’re talking to, and we want some cooperation from you on this and some other stuff more serious than this, and if we don’t get it, you won’t recognize yourself when you get out of jail.
JOHNSON: Ok. You’re not the person we want the most. Now, I’m telling you this, and you can take it to the bank. You don’t know me from Adam, I know that, and I could be the word’s best bullshitter. I’m not bullshitting you. You can take this to the bank. You either work with us and help us, or you’re gonna be buried by what we write up.
JOHNSON: Alright, so now I’m gonna turn this conversation over to you for a little bit, and I want you to give us some indication that you are gonna help us, that you are gonna work it out with us, and we’ll do everything we can to help you, but like I said, if you bullshit us, we’re gonna start writing tickets until we get writer’s cramp.
JOHNSON: ... It’s over. Now, you can write how you want it to end, you don’t have to, you don’t have to be involved with the federal system. Plain and simple.
JOHNSON: Life as you know it is over. Now, it can maintain some semblance of reality, and it can maintain its normal course, slightly. You keep f — ing around, and life as you know it is gone, and you’re not going to see your kids growing up, and you are not going to be around Hope [Constantino’s wife].
JOHNSON: It doesn’t matter to me. You’re the only one that has no criminal record. You’re the only one that’s got a family. You’re the only one that’s got a house. You’re the only one that’s got a car. You’re the only one.
JOHNSON: ... We’re not going to talk to Ricky, we’re not going to talk to Bobby, we’re not going to talk to Theo, we’re talking to you, because you got the most to lose. You help us, and we’ll take care of you.
JOHNSON: ... You tell us about it, and we’ll help you out, but you gotta do that. I can’t make you.
JOHNSON: ... I’m giving you a key to a door, man, you can walk out of here today.
JOHNSON: ... Nobody here wants you. He said he will make that go away. We don’t want you.
JOHNSON: What I’m saying is, I don’t want you.... You can walk out of here, you can go home. Nobody sees your car parked in that back lot, nobody knows you’re in here talking.
JOHNSON: You can get out of here today.... Or, you can go to jail.
JOHNSON: ... You can walk out of here. You can go home to your family, but [I] need something from you, something I already know that’s going to show me that you’re willing to help us, and that can go away. I don’t want you. You have no criminal record. We can keep it like that. I don’t want you, but I’ll take you, and you’ll have one hell of a criminal record when I’m done.
At the final pretrial conference hearing in federal court, Johnson testified as follows:
Q. Did you offer him any benefit in exchange for cooperation? A. No.
Q. Did you tell him that you weren’t going to charge him with anything? A. No.
Q. Do you remember saying to Michael Constantino, “If you talk to us, you’ve got no criminal record and you can keep it that way?” Do you remember telling him that? A. No sir.
Q. Didn’t you promise him that if he would talk to you, he would have no criminal record? A. No sir.
Q. You deny that? A. Yes, sir.
Q. You specifically for sure never told him words anything like, ‘You’ve got no criminal record, you can keep it that way?” A. I don’t recall saying that.
Q. Do you remember saying to him, “If you cooperate with me, I’ll give you the key to the door, and you can walk out of here today?” A. No, sir.

At the suppression hearing in state court, Johnson testified as follows:

Q. When you made statements about writing charges or getting writer’s cramp, did you ever tell the defendant that you weren’t going to file any robbery charges in relation to those statements? A. Never.
Q. Did you ever promise a specific advantage to the defendant in return for his cooperation? A. Never.

We agree with the Commission’s characterization of these excerpts: “In spite of the extensive number and nature of such promises, Johnson, when asked, did not merely state he did not remember making such promises. Instead, ... he flatly denied making them when the transcript shows he had repeatedly done so.” In short, we find that Johnson was untruthful in these proceedings despite being under oath.

Officers understand their obligations about offers of leniency and their obligation to disclose such offers in their reports to superiors. Significantly, from the very beginning, Johnson concealed from his superiors his promises of leniency to Constantino. His report deletes any mention of such promises and merely describes the interrogation this way:

We also said that we were not after him as being the main person responsible for the robberies. We indicated to him that we were wanting his cooperation. He said to us that he was going to cooperate, again 100%.

As mentioned, Johnson learned of the audiotape of the interrogation after he completed his report. This was before the proceedings in question took place. He therefore had access to the audiotape before testifying. It is inconceivable to us that Johnson would neglect to listen to the audiotape and read the transcript before testifying in proceedings where the promise of leniency was a primary issue. We can thus reasonably assume that someone in Johnson’s position would have had a keen interest in the audiotape and transcript and would have familiarized himself with their contents before testifying. At the very least, we think prosecutors would have suggested to Johnson that he listen to the audiotape and read the transcript.

As mentioned, the federal court ruled that Constantino’s statements were voluntary, and his will was not overborne or overcome by the officers’ conduct. However, at one point during the final pretrial conference hearing, Judge While expressed concern about Johnson’s and even Bowers’ credibility:

[0]ne thing that ... is troublesome for me ... is that the witness Johnson and the witness Bowers both gave testimony about what took place that we then heard an audiotape about, and much of what they remembered and gave testimony about was inconsistent with the audiotape, and does that also reflect on how much reliability we can place on their description of what took place that wasn’t taped .... [I]t seems to me that their credibility is affected by the fact that they had very poor memory and, frankly, that their written report is inconsistent with the tape we already have.

Judge Wolle’s reference to the officers’ “poor memory” relates to two points covered in the interrogation of Constantino. At one point during the interrogation, Detective Smith entered the room with a “booking sheet.” Smith was investigating Constantino relative to burglaries at North Park Mall, where Constantino previously had been employed in maintenance. During the interrogation, the following exchange took place:

SMITH: ... Michael, this is what you’re facing right there, there is your booking sheet, okay?
CONSTANTINO: What am I robbing?
SMITH: Okay, Michael.
CONSTANTINO: And what am I bur-glarying?
JOHNSON: Do you understand that this is not bullshit?
CONSTANTINO: Yes.
JOHNSON: We are not playing games.
SMITH: Notice your bond, okay?
CONSTANTINO: I don’t, I can’t see that.
SMITH: Okay, you want that to go away, talk to the man. Right now I’ve got all these, okay? You talk to this man, I can make this go away today.

At the final pretrial conference hearing before Judge Wolle, Johnson testified he did not remember the booking sheet. Even after listening to the audiotape, Johnson testified he did not recall the booking sheet.

At another point during the interrogation, Bowers informed Constantino his car was going to be searched:

BOWERS: ... I’ve also got a search warrant for your car, and I am going out there right now, and I’m going to go through your car with a fine[-]tooth comb with an evidence technician.
CONSTANTINO: That’s fine.
BOWERS: And you better think about what you are going to say when I get back and
CONSTANTINO: If you want to search my car, if you want to search my car, I want to be there, and I want....
BOWERS: You ain’t going to be shit.

Johnson was present when this exchange took place. At the final pretrial conference hearing before Judge Wolle, even after listening to the audiotape, Johnson testified he did not remember the vehicle search.

We find Johnson’s claimed memory lapse as to both instances unbelievable in light of the fact that he had access to the audiotape before the hearing. Additionally, Johnson had ample reason to feign a loss of memory. As the Commission points out, “the booking sheet was the list of charges that potentially stood to be ‘resolved’ if Constantino agreed to cooperate” and thus “would have been a classic case of the ‘bait’ for a promise of leniency.”

VI. Discipline.

We turn now to the question of the appropriate discipline in this case. Truthfulness in the performance of duty is at the core of this case. The importance of this is underscored in Chief Bedford’s notice of discharge to Johnson:

Honesty and truth telling is a core ethical value in our society. Citizens demand that those who are given ejctensive power and authority over them abide by high standards of integrity and credibility. The integrity of any organization is dependent upon the personal integrity of each individual member. This is even more important in the area of law enforcement. A law enforcement organization must never tolerate any less than fully truthful behavior from officers in the performance of their duties. Unfortunately, you have chosen repeatedly to be untruthful and withhold information in the course of your official duties. Your blatant disregard for following departmental policies and your lack of professionalism leads me to conclude that I can no longer depend upon your judgment or your truthfulness.

By his actions, Johnson, a veteran of almost thirty years who should know better, not only withheld information when he failed to disclose in his report that he made promises of leniency to a suspect but also lied about it in court proceedings. His lack of credibility was so obvious that a federal district judge commented on it. In these circumstances, to allow Johnson to remain on the job would potentially taint any investigation in which he might be involved. No police department should be put in that position. Nor should citizens be subjected to an officer who has no compunction about stretching the truth concerning his conduct involving the citizen’s constitutional rights. Truly, Johnson’s conduct was detrimental to the public interest.

In a number of cases, courts have found discharge to be an appropriate sanction where a police officer has been untruthful. See, e.g., Valio v. Bd. of Fire & Police Comm’rs, 311 Ill.App.3d 321, 244 Ill.Dec. 136, 724 N.E.2d 1024, 1032 (2000) (sufficient cause existed to justify officer’s discharge where officer violated departmental rules of conduct by lying during departmental investigation); Merrifield v. Illinois State Police Merit Bd., 294 Ill.App.3d 520, 229 Ill.Dec. 255, 691 N.E.2d 191, 199 (1998) (sufficient cause to justify officer’s termination where male officer knowingly maintained an ongoing romantic relationship with a female convicted felon and deliberately misstated the status of the relationship to fellow officers); Moran v. Civil Serv. Comm’n, 120 Ill.App.3d 884, 76 Ill.Dec. 367, 458 N.E.2d 1021, 1026-27 (1983) (affirming discharge of officer who admitted he gave false testimony under oath before a federal grand jury); Slayton v. Bd. of Fire & Police Comm’rs, 102 Ill.App.3d 335, 58 Ill.Dec. 99, 430 N.E.2d 41, 43-44 (1981) (termination upheld where officer admitted making false representations while off duty to an officer from a neighboring town, and admitted the representations were intended to protect a friend who had just committed a crime); Kupkowski v. Bd. of Fire & Police Comm’rs, 71 Ill.App.3d 316, 27 Ill.Dec. 407, 389 N.E.2d 219, 225-26 (1979) (officer’s dismissal justified where officer involved in one-car accident denied orally and in writing knowledge of the resulting damage); Merritt v. Council Bluffs Civil Serv. Comm’n, 458 N.W.2d 867, 869-70 (Iowa Ct.App.1990) (termination an appropriate sanction where officer “wiUfuUy sought to hide the fact that he was continuing to live with his family in Omaha throughout his employment with the Coundl Bluffs police force,” despite residency requirement of which he was informed during orientation); Benvignati v. Civil Serv. Comm’n, 106 Pa.Cmwlth. 643, 527 A.2d 1074, 1076 (1987) (undisputed facts established course of conduct providing cause for officer’s dismissal where officer knew or should have known at the time he signed a search warrant he did not personally participate in surveillance).

Moreover, Johnson is no stranger when it comes to misdeeds in his official capacity as a police officer. His prior disciplinary history with the Coralville Police Department includes six incidents. In 1986, Johnson received a written reprimand of his actions during a traffic stop. In 1987, he received a verbal reprimand for his response to a citizen complaint. In 1989, he received a written reprimand for conducting an unreasonable search and seizure. In 1997, he received a letter of warning regarding a high-speed pursuit, and another regarding an automobile accident to which he contributed.

In 1990, Johnson received a written reprimand and five-day suspension for his role in an incident involving the removal of a memorandum from the police department without authorization. In that incident, Johnson’s truthfulness was also called into question. In a written reprimand of Johnson, Chief Bedford wrote:

[T]he story you gave concerning how you came to be in possession of the memorandum is both incredible and unbelievable. Even when face to face with the supervisor and his assertion of fact, you failed to be candid or truthful about the circumstances in question.

Finally, in 1981, Johnson was discharged by the police chief of the Clinton Police Department for using excessive force in arresting a suspect. On appeal, this court found Johnson had used excessive force, reversed the district court’s imposition of a two-year suspension, and concluded that discharge was appropriate under the circumstances. Johnson v. Civil Serv. Comm’n, 352 N.W.2d 252, 258 (Iowa 1984).

Given the seriousness of Johnson’s misconduct and his prior disciplinary record, we have no hesitation in concluding Johnson should be discharged from his position as police officer with the Coralville Police Department. Accordingly, we reverse the decision of the district court and remand for an order reinstating the Commission’s termination decision. Our decision on appeal disposes of the cross-appeal.

REVERSED AND REMANDED WITH DIRECTIONS.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    Kevin I. MASON, Appellant, v. SCHWEIZER AIRCRAFT CORP., Appellee.
    No. 00-1231.
    Supreme Court of Iowa.
    Nov. 14, 2002.

      Paul P. Morf of Simmons, Perrine, Al-bright & Ellwood, P.L.C., Cedar Rapids, for appellant.
    Diane Kutzko and Kurt Kratovil of Shuttleworth & Ingersoll, Cedar Rapids, and Peter T. Kirchen of Kern and Wooley, L.L.P., Los Angeles, California, for appel-lee.

      Richard G. Santi of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., Des Moines and Frederick C. Schafrick of Shea & Gardner, Washington, D.C., for amicus curiae General Aviation Manufacturers Association.
   TERNUS, Justice.

The appellant, Kevin Mason, was injured when the helicopter he was piloting crashed. Mason then brought suit against the appellee, Schweizer Aircraft Corporation, which had provided maintenance support materials to Mason’s employer, the owner of the aircraft. The district court granted Schweizer’s motion for summary judgment, ruling that Mason’s suit was barred under the statute of repose found in the General Aviation Revitalization Act of 1994 (GARA), 49 U.S.C. § 40101 note (1994). Mason appealed. Finding no error, we affirm.

I. Background Facts and Proceedings.

On August 19, 1996, Kevin Mason, a Cedar Rapids police officer, was seriously injured when the helicopter he was piloting experienced complete engine failure and crashed. An investigation by the National Transportation Safety Board determined that the probable cause of the crash was two plastic pieces that had broken off the air filter housing and entered the air induction tubes, blocking the flow of air and fuel into the engine.

The helicopter, a Model 269A, had been manufactured by Hughes Tool Company— Aircraft Division and sold to the United States Army in 1968. Hughes Tool Company held the type certificate for the Model 269A, which had been issued by the Federal Aviation Administration (FAA). See generally 49 U.S.C. § 44704(a) (stating type certificate is issued upon a finding by the FAA “that the aircraft ... is properly designed and manufactured, performs properly, and meets the regulations and minimum standards prescribed under section 44701(a)”).

Discovery in this case disclosed that in the 1960s there were reports of engine stoppages in the model 269A, presumably from a defect in the air filter housing. As a result, Hughes Tool added stiffening beads to the side of the housing to prevent cracking, incorporating this design change into production components in 1966. Hughes Tool received no further reports of similar problems following implementation of this change. For reasons not disclosed in the record, the air filter housing of the helicopter involved in the accident at issue here did not have the stiffening beads.

After some intermediate transfers of the type certificate, Schweizer purchased the Model 269 product line, including the FAA-issued type certificate, in 1986 from McDonnell Douglas Helicopter Company. Although Schweizer has never manufactured a model 269A helicopter, it has made 269C and 269D series helicopters under the type certificate purchased from McDonnell Douglas. In addition, it has provided maintenance support materials and services for the 269A model to various subscribers, one of them being the City of Cedar Rapids aviation department.

Prior to Mason’s accident, the City had paid a fee to subscribe to certain Schweizer publications, including Schweizer’s Handbook of Maintenance Instruction for Hughes 269A Helicopters. The subscription service arguably promoted the use of Schweizer for purchase of replacement parts. As part of the subscription service, Schweizer’s personnel were available to consult with the City’s mechanics by telephone. The record shows that City aviation maintenance personnel relied upon the handbook for guidance in inspecting and maintaining the helicopter.

Schweizer had a procedure in place to encourage operators to provide reports on material component part failures or malfunctions, and received such reports daily. Prior to this accident, it had never received a report of engine stoppage due to air filter housing cracks or failures. There was evidence, however, that Schweizer was aware of previous problems with the air filter housing and that Hughes Tool had made design changes. On the other hand, Schweizer had no knowledge that the helicopter involved in this case did not have the modified housing.

The record reveals the City’s director of maintenance had inspected the air filter housing and other parts of the helicopter in question on August 16, 1996, three days before the crash. He was aware at the time of his inspection that a cracked housing presents a safety issue and that a helicopter with a cracked air filter housing would not be airworthy. The director did not identify any cracks in the housing at the time of his inspection.

On May 5,1998, Mason filed suit against Schweizer, alleging claims based on strict liability, implied warranties of merchantability and fitness for a particular purpose, and negligence. Schweizer raised the GARA statute of repose as an affirmative defense. This statute imposes a cutoff on all civil actions against a manufacturer for death, injury or property damage caused by general aviation aircraft and their component parts eighteen years from the date of initial delivery of the aircraft. See 49 U.S.C. § 40101 note, §§ 2(a), 3(4).

After discovery, Schweizer filed a motion for summary judgment, asserting that the plaintiffs claims were barred by the statute of repose as a matter of law. It argued it was being sued in its capacity as a manufacturer of the helicopter and its components and, since the helicopter had been delivered to the initial purchaser more than eighteen years ago, suit was barred.

Mason resisted Schweizer’s motion, asserting his claim against Schweizer was not based upon a products liability theory, or on any relationship between Schweizer and the actual manufacturer. Rather, contended Mason, his suit was based on Restatement (Second) of Torts section 324A, liability to a third person for negligent performance of an undertaking, based on Schweizer’s provision of maintenance materials to the City of Cedar Rapids that omitted “information regarding the existence, nature, and extent of the risk caused by plastic cracks in the air filter housing.” Mason argued that Schweizer was not a “manufacturer” of the helicopter within the meaning of GARA, nor was Schweizer being sued “in its capacity as a manufacturer” as required by the statute of repose.

The district court held that Schweizer, by virtue of its purchase of the type certificate, was the successor in interest of the original manufacturer and entitled to the protection of the statute of repose as a manufacturer. It also concluded that the actions Mason alleged Schweizer failed to take were based upon Schweizer’s status as a manufacturer. The court ruled, therefore, that suit was barred.

Mason has now appealed. He claims the district court erred in concluding that the GARA statute of repose applied here. First, Mason contends Schweizer is not the “manufacturer” of the helicopter within the meaning of the statute. Second, he argues that even if Schweizer is the manufacturer, his theory of recovery is not based upon Schweizer’s status as the manufacturer, but rather upon Schweizer’s negligence in the performance of an independent undertaking pursuant to Restatement section 324A. Finally, he asserts'that GARA does not bar his suit against Schweizer because Schweizer’s negligent acts and omissions occurred within the past eighteen years, thereby falling within the “rolling provision” of the statute of repose. See 49 U.S.C. § 40101 note, § 2(a)(2).

II. Scope of Review.

We review a district court’s summary judgment ruling for correction of errors of law. See Cato v. Am. Suzuki Motor Corp., 622 N.W.2d 486, 494 (Iowa 2001). Summary judgment is appropriate when the record shows “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. I.981(3). In determining whether the district court correctly concluded that this standard was met, we view the record in the light most favorable to the nonmoving party. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).

III. For Purposes of GARA’s Statute of Repose, Was Schweizer the Manufacturer of the Hughes Model 269A Helicopter Involved in This Lawsuit?

GARA was enacted in 1994 in an attempt to help “bolster the aviation industry by relieving it from an ‘onslaught of product liability litigation.’ ” Jennifer L. Anton, A Critical Evaluation of the General Aviation Revitalization Act of 1994, 63 J. Air L. & Com. 759, 762 (1994) (citation omitted) [hereinafter “Anton”]. Congress found that an important cause of the “serious decline” in the manufacture and sale of general aviation aircraft and aircraft parts in the United States was “the tremendous increase in the industry’s liability insurance costs.” H.R.Rep. No. 103-525, pt. 1, at 1 (1994), reprinted in 1994 U.S.C.C.A.N. 1638, 1638. It was believed that relief from the long tail of liability would revitalize the industry. Id. at 2-3, reprinted in 1994 U.S.C.C.A.N. at 1639-40. The adoption of a statute of repose was justified in committee hearings by recognition of the industry’s need for protection from endless liability and the protection of the public provided by the pervasive federal regulatory control of the aviation industry:

The legislation attempts to strike a fair balance by providing some certainty to manufacturers, which will spur the development of new jobs, while preserving victims’ right to bring suit for compensation in certain particularly compelling circumstances. In essence, the bill acknowledges that, for those general aviation aircraft and component parts in service beyond the statute of repose, any design or manufacturing defect not prevented or identified by the Federal regulatory process by then should, in most instances, have manifested itself....

H.R.Rep. No. 103-525, pt. 2, at 6 (1994), reprinted in 1994 U.S.C.C.A.N. 1644, 1648.

GARA’s statute of repose provides in pertinent part:

[N]o civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft or the manufacturer of any new component, system, subassembly, or other part of the aircraft, in its capacity as a manufacturer if the accident occurred—
(1) after the applicable limitation period [18 years] beginning on—
(A) the date of delivery of the aircraft to its first purchaser or lessee, if delivered directly from the manufacturer; or
(B) the date of first delivery of the aircraft to a person engaged in the business of selling or leasing such aircraft; or
(2) with respect to any new component, system, subassembly, or other part which replaced another component, system, subassembly, or other part originally in, or which was added to, the aircraft, and which is alleged to have caused such death, injury, or damage, after the applicable limitation period beginning on the date of completion of the replacement or addition.

49 U.S.C. § 40101 note, § 2(a). Although there are exceptions to this statutory bar, see id. § 2(b), none are implicated here. GARA also provides for a preemption of state law: “This section supersedes any State law to the extent that such law permits a civil action described in subsection (a) to be brought after the applicable limitation period for such civil action established by subsection (a).” Id. § 2(d).

In asserting that the federal statute of repose does not apply here, Mason claims Schweizer is not a “manufacturer” within the meaning of GARA because it did not make the helicopter that crashed. Schweizer argues that because it has acquired the type certificate and has the right to manufacture model 269 helicopters, it has stepped into the shoes of the manufacturer and is, therefore, within the group Congress intended to protect.

“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199, 204 (1979); accord Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359, 363 (Iowa 2000). “Only when the terms of a statute are ambiguous do we engage in an analysis of legislative intent by applying rules of statutory construction.” Garwick v. Iowa Dep’t of Transp., 611 N.W.2d 286, 289 (Iowa 2000). In attempting to ascertain legislative intent, we look not only to the words used, “but also to the context within which they appear.” Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 460 (Iowa 2000). “The legislative history of the statute is also helpful in determining Congress’s purpose in enacting a particular provision. Once we have determined Congress’s intent, we interpret the statute so as to give effect to the purpose underlying the legislation.” Id.

GARA does not define the term “manufacturer.” Black’s Law Dictionary defines this word as an “entity engaged in producing or assembling new products.” Black’s Law Dictionary 977 (7th ed.1999). In this case, it is undisputed that Schweizer did not make or produce the helicopter or the air filter housing at issue. Nonetheless, it is part of the general aviation industry and, more importantly, is engaged in producing current models of the aircraft at issue here. We think, in the context of this statute, that the scope of the word “manufacturer” is uncertain. Therefore, it is appropriate to consider the legislative history and the purpose underlying the statute in determining whether an entity that acquires the type certificate from the original manufacturer is also entitled to the protection of the statute of repose.

We agree with the appellate court in Burroughs v. Precision Airmotive Corp., 78 Cal.App.4th 681, 93 Cal.Rptr.2d 124, 132 (Ct.App.2000), that it would be contrary to Congress’s purpose to deny the protection of GARA to a manufacturer who steps into the shoes of the original manufacturer by acquiring the type certificate. In Burroughs, the plaintiffs suffered injuries in the crash of a light aircraft, allegedly due to a malfunction in the engine’s carburetor. 93 Cal.Rptr.2d at 126. The defendant was an aircraft parts manufacturer who had not sold the particular model of carburetor involved in the accident but had acquired the product line from a predecessor who had purchased it from the original manufacturer. Id. The trial court granted summary judgment to the defendant, “finding that the federal statute barred [the plaintiffs’] claims against [the] defendant in its capacity as successor to the original manufacturer.” Id. This decision was affirmed on appeal:

Although [the defendant] did not actually manufacture the particular carburetor in this case, it is a manufacturer of general aviation aircraft parts, including carburetors, and it took over the manufacturer’s responsibilities for the Marvel-Schebler product line. [The defendant] is part of the general aviation industry which GARA was specifically enacted to “revitalize,” ... and [the defendant] is thus precisely the type of entity GARA was designed to protect from the long tail of liability. The central objective of GARA would be materially undermined if its protection did not apply to a successor to the manufacturer who, as part of its ongoing business, acquired a product line long after the particular product had been discontinued and years after the statute of repose had run as to the original manufacturer. To construe GARA to allow liability claims against the successor manufacturer in these circumstances while barring the same claims against the actual manufacturer would defeat its purpose.

Id. at 132.

The plaintiff here argues that under Iowa law governing the corporate liability of successor entities, the defendant is not a successor manufacturer. We, like the court in Burroughs, do not think state law should govern the determination of who is a successor manufacturer under GARA. Id. There is a “general assumption that ‘in the absence of a plain indication to the contrary, ... Congress when it enacts a statute is not making the application of the federal act dependent on state law.’ ” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43, 109 S.Ct. 1597, 1605, 104 L.Ed.2d 29, 43 (1989) (citation omitted). One reason for this presumption is that “federal statutes are generally intended to have uniform nationwide application.” Id. at 43, 109 S.Ct. at 1605-06, 104 L.Ed.2d at 43. We find nothing in GARA to indicate that the liability of a successor manufacturer depends on where the suit is filed. Moreover, it would be contrary to Congress’s intent to revitalize the entire industry to have application of the protective statute of repose vary from state to state. Therefore, we decline Mason’s request to examine the defendant’s status as a successor manufacturer under Iowa law.

In summary, we conclude Schweizer is a “manufacturer” within the meaning of GARA. By acquiring the type certificate to the model 269 product line, it stepped into the shoes of the original manufacturer and is entitled to the protection of the eighteen-year statute of repose.

IV. Is This Action Brought Against Schweizer “in its Capacity as a Manufacturer”?

GARA’s statute of repose bars only those civil actions brought against a manufacturer “in Its capacity as a manufacturer.” 49 U.S.C. § 40101 note, § 2(a). The claims pled against Schweizer are premised on theories of strict liability, implied warranty of merchantability and implied warranty of fitness for a particular purpose, as well as negligence. As the plaintiff implicitly concedes on appeal, the strict liability claims and warranty claims are indisputably based on Schweizer’s status as a manufacturer and, accordingly, are barred by the statute of repose unless these claims fall within the statutory extension for new parts or components, an issue we address later. See 49 U.S.C. § 40101 note, § 2(a)(2) (providing that the limitation period for any new component or part begins “on the date of completion of the replacement or addition”). Therefore, our only concern at this juncture is whether Schweizer’s alleged liability for a negligently performed undertaking is based on its capacity as the manufacturer of the helicopter.

Mason contends that its negligence claim rests on Schweizer’s undertaking to sell maintenance materials and its failure to include in those materials a warning of the potential risks of a cracked housing and that such cracks would render the helicopter not airworthy. He asserts Schweizer’s duty to warn under these circumstances is independent of its obligations as a manufacturer or holder of the type certificate. The defendant argues in response that GARA protects manufacturers against all failure-to-warn claims, because any duty to warn, regardless of the theory, is a duty imposed on the manufacturer in its capacity as a manufacturer.

We begin our analysis with the observation that the original manufacturer had a legal obligation to provide a “maintenance manual ... contain[ing] information which ... [is] essential for the proper maintenance of the rotorcraft.” Civil Air Regulations, 14 C.F.R; § 6.719 (Rev.1952 & Supp. 1956). We think it could hardly be disputed that had Hughes Tool, the original manufacturer, provided updated manuals for a fee that it would have been doing so “in its capacity as a manufacturer.” See Alter v. Bell Helicopter Textron, Inc., 944 F.Supp. 531, 540 (S.D.Tex.1996) (holding “the manufacturer’s provision of maintenance and repair manuals was part of its duty to warn as a manufacturer ” (emphasis added)); Burroughs, 93 Cal.Rptr.2d at 133-34 (holding that “claims based on the alleged failure to deliver adequate warnings of known defects” are claims against the manufacturer “in its capacity as a manufacturer”); Campbell v. Parker-Hannifin Corp., 69 Cal.App.4th 1534, 82 Cal.Rptr.2d 202, 210 (Ct.App.1999) (holding a failure-to-warn claim is based on the manufacturer’s actions in “its role as manufacturer”). Any other interpretation would subject manufacturers to liability on failure-to-warn claims without regard to the statute of repose, thereby thwarting Congress’s objective in enacting the statute.

Similarly, we think that a successor manufacturer who has acquired the type certifícate and who manufactures updated versions of the aircraft is likewise acting “in its capacity as a manufacturer” when it makes revised versions of the maintenance manual available for a fee. See Burroughs, 93 Cal.Rptr.2d at 132 (“We" conclude ... if GARA applies to shield the original manufacturer of a defective product from product liability claims such as the failure to warn alleged here, a successor manufacturer who has taken over the duties and obligations of the original manufacturer as to that product is also protected from liability for such claims.”). Therefore, whether the theory of liability is based on products law or on the negligent performance of an undertaking, the successor manufacturer who issues updated manuals is acting in its capacity as a manufacturer and is entitled to the protection of the GARA statute of repose. See Alter, 944 F.Supp. at 538-40 (holding GARA’s statute of repose precluded potential liability of manufacturer under any theory, including negligent performance of an undertaking under section 324A, “based on allegedly misleading inspection instructions in the maintenance manual that failed to warn or allow detection of the design flaw” in the subject helicopter); see also Schamel v. Textron-Lycoming, 1 F.3d 655, 657 (7th Cir.1993) (stating in case involving Indiana products liability statute of repose, “The provision of service manuals and other sources of service information is not a separate and discrete, post-sale undertaking pursuant to § 324A; rather, such information is generally necessary to satisfy the manufacturer’s duty to warn.”); Dague v. Piper Aircraft Corp., 275 Ind. 520, 418 N.E.2d 207, 212 (Ind.1981) (holding that failure-to-warn claim against aircraft manufacturer is, ultimately, a products liability claim because it is premised on damage caused by “the manufacture, construction or design of the product”).

We have not overlooked the legislative history upon which Mason relies to support his argument that the services provided by Schweizer went beyond its role as the manufacturer. The legislative history cited by Mason shows the following reason for limiting the reach of the statute of repose to suits brought against a manufacturer “in its capacity as a manufacturer”:

The latter limitation is intended to insure that parties who happen to be manufacturers of an aircraft or a component part are not immunized from liability they may be subject to in some other capacity. For example, in the event a party who happened to be a manufacturer committed some negligent act as a mechanic of an aircraft or as a pilot, and such act was a proximate cause of an accident, the victims would not be barred from bringing a civil suit for damages against that party in its capacity as a mechanic.

H.R. Rep. 103-525, pt. 2, at 7, reprinted in 1994 U.S.C.C.A.N. at 1649. One author analyzing GARA made the following observation with respect to this limitation:

When the manufacturer acts in any capacity other than its role in the manufacturing of the original part, it loses the protection of GARA to the extent that its role caused or contributed to the accident. What other role might a manufacturer play? Many component part manufacturers offer overhaul and part rebuilding services. In addition, some manufacturers are becoming involved in certain maintenance programs related to their own aircraft, as their expertise and facilities allow them to actively compete in the industry. As a result, if a manufacturer plays a role deviating from that of an original manufacturer, it will not reap protection under GARA.

Robert F. Hedrick, A Close and Critical Analysis of the Neiv General Aviation Revitalization Act, 62 J. Air L. & Com. 385, 399 (1996) (emphasis added); see also Anton, 63 J. Ar L. & Com. at 789 (“Since many manufacturers provide overhaul, rebuilding services, and maintenance services, their work in those capacities may be susceptible to suit after the expiration of the period of repose.”).

We do not think Schweizer crossed the line from manufacturer to service provider by selling updated maintenance manuals. The California court rejected a similar contention in Burroughs where the successor manufacturer had provided service information, holding “itself out as the source of FAA-approved service information, parts catalogues, and replacement parts” to its “potential economic benefit.” 93 Cal. Rptr.2d at 136. Noting that the defendant had not actually performed services or repairs on the allegedly defective carburetor, the court concluded the successor manufacturer had not “acted in any capacity other than as a manufacturer carrying out its obligation to ensure airworthiness.” Id. at 138. We need not consider whether a manufacturer who provides services beyond updates to the FAA-required maintenance manual, such as telephone consultation on service issues, would likewise be deemed to be acting “in its capacity as a manufacturer.” That is because Mason makes no allegation in the present case that erroneous advice was given as part of Schweizer’s telephone consultation service, only that Schweizer failed to give adequate warnings with respect to the air filter housing in its written materials. Thus, we hold the allegedly negligent acts by Schweizer were performed “in its capacity as a manufacturer,” thereby falling within the protection of the statute of repose.

V. Does the “Rolling Provision” of the GARA Statute of Repose Apply Here?

Mason asserts that even if the GARA statute of repose is applicable here, the maintenance manual provided by Schweizer is a replacement part subject to GARA’s “rolling provision,” which in essence triggers a new statutory period for a replacement part running from the date of replacement. See 49 U.S.C. § 40101 note, § 2(a)(2). Because the sale of instructional materials to the City of Cedar Rapids occurred within eighteen years of commencement of suit, argues Mason, his claims based on the absence of warnings in these materials are not barred.

Courts are divided on whether manuals are a “part” subject to the rolling provision of GARA. Compare Caldwell v. Enstrom Helicopter Corp., 230 F.3d 1155, 1157 (9th Cir.2000) (holding an aircraft’s flight manual is a part of the aircraft, not a separate product), with Alter, 944 F.Supp. at 538 (holding manufacturer’s maintenance and repair manuals and revisions to those manuals were not new component systems). We need not decide this issue, however, because even if the manual at issue here were considered a component of the helicopter, it would not trigger GARA’s rolling provision.

In Caldwell, the court held the mere fact a manual could be considered a part of the aircraft was not sufficient to start a new statutory period every time a revised version of the manual was distributed. 230 F.3d at 1158. It explained:

A revision to the manual does not implicate GARA’s rolling provision, however, unless the revised part “is alleged to have caused [the] death, injury, or damage.” Just as the installation of a new rotor blade does not start the 18-year period of repose anew for purposes of an action for damages due to a faulty fuel system, a revision to any part of the manual except that which describes the fuel system would be irrelevant here. Furthermore, mere cosmetic changes (like changing the manual’s typeface) do not revive the statute of repose. In sum, if Defendant substantively altered, or deleted, a warning about the fuel system from the manual within the last 18 years, and it is alleged that the revision or omission is the proximate cause of the accident, then GARA does not bar the action.

Id. (citation omitted); accord Lyon v. Agusta S.P.A., 252 F.3d 1078, 1088 (9th Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 809, 151 L.Ed.2d 694 (2002) (restating Caldwell holding that mere failure-to-warn, as opposed to a revision to a manual, will not allow a plaintiff to bypass the statute of repose). We agree with this analysis.

Turning to the record in the present case, we find bare allegations that Schweizer failed to warn the City of the need to inspect the housing and the dangers of a cracked housing. There is no evidence, nor is the argument even made, that Schweizer revised the manual prepared by its predecessors in any substantive fashion causally related to the crash in this case. Consequently, the rolling provision does not apply. Carolina Indus. Prods., Inc. v. Learjet, Inc., 189 F.Supp.2d 1147, 1170-71 (D.Kan.2001) (holding GARA statute of repose did not start from date maintenance manual was issued where there was no allegation that accident was caused by an alteration in the manual within eighteen years of the accident); cf. Butchkosky v. Enstrom Helicopter Corp., 855 F.Supp. 1251, 1257 (S.D.Fla.1993) (holding, under Florida products liability statute of repose, that mere issuance of maintenance manual within the period of repose could not be used to circumvent statutory bar, as “[t]he result would be evisceration of the statute of repose”). Therefore, the district court properly granted summary judgment to Schweizer.

VI. Summary.

We hold that Schweizer, as the holder of the type certificate for the Hughes model 269A helicopter, is a manufacturer within the meaning of the GARA statute of repose. Moreover, the failure-to-warn claim at issue in this case implicates Schweizer’s role as a manufacturer, not as a maintenance provider, regardless of the theoretical label attached to the claim. Finally, we hold that the rolling provision of the statute of repose is not triggered upon the issuance or sale of a maintenance manual unless the manual contains a revision that is causally related to the injury-producing event. Because the claim here rests on Schweizer’s failure to warn rather than any revision or change to the maintenance manual made by Schweizer, the rolling provision of the statute of repose does not apply. Accordingly, the trial court correctly ruled that this lawsuit, commenced more than eighteen years after the helicopter in question was delivered to its first purchaser, is barred by GARA as a matter of law. We affirm the district court’s order granting summary judgment to Schweizer.

AFFIRMED.

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

      . Mason also sued the City, two co-employees, and McDonnell Douglas. His claims against these defendants were eventually either settled or dismissed and are not the subject of this appeal.

      . The FAA issued the type certificate for the model 269 in 1959, so we refer to the regulations in effect at that time.


author: LARSON, Justice.

text:
    CITY OF AMES, Iowa, Appellee, v. REGENCY BUILDERS, INC. and Regency Land Company, L.C., Appellants.
    No. 00-1323.
    Supreme Court of Iowa.
    Nov. 14, 2002.

      Thomas G. Fisher, Jr. of Hogan & Fisher, P.L.C., Des Moines, for appellants.
    Judy K. Parks, Assistant City Attorney, Ames, for appellee.
   LARSON, Justice.

We granted a housing developer’s application for discretionary review to consider a ruling by the district court that the developer’s construction and use of model homes violated an Ames zoning ordinance. The court of appeals affirmed the district court, and we granted further review. We affirm the decision of the court of appeals and the judgment of the district court.

I. Facts and Prior Proceedings.

The facts are undisputed. Regency Builders, Inc. and Regency Land Company, L.C. are affiliated companies (collectively Regency) that build and develop homes throughout Iowa. The two properties at issue, 2905 Bayberry Road and 2405 Grant Circle, are located in residential subdivisions in Ames where Regency-affiliated companies own lots. The lots in the subdivisions are offered for sale to buyers seeking to construct new homes. On both of the lots in question, the builders have constructed model homes, which are completely furnished. The garage of each home has been modified by removing the garage door and replacing it with a French door and placing a desk and chairs in the garage. This office-type area is used to show potential buyers available floor plans.

The model homes are staffed during posted hours by real estate agents. The agents refer to these posted times as “daily open houses.” One of the agents testified that, as to one of the homes, it was open for an hour every weekday except Friday and three hours each weekend day. Weekdays do not involve much customer traffic; one of the agents testified that, in the prior two years, only four potential customers had visited one of the model homes. He testified that on the weekends there are usually more, “sometimes up to ten,” prospects — “similar to any open house.” The homes are equipped with lockboxes so that prospective buyers can visit the homes with other real estate agents.

Initially, the homes were not listed on the multiple-listing service. Both homes are now listed, although the possession date for them has been delayed. The model homes are sold after all of the other lots in the development are sold. Both homes have been granted certificates of occupancy, although no one actually lives in them. When the initial complaints about the homes were made to the city, one of the homes was displaying an American flag, an Iowa flag, and a flag with the Regency logo on it. The flags and both homes were lit with floodlights. The flags were subsequently removed and the lighting modified, all before the district court hearing.

The properties are located in areas zoned Rl-6, low-density residential. The text of the municipal zoning ordinance involved is set out below. In substance, it provides that permitted uses include single-family dwellings, two-family dwellings that qualify to be “grandfathered” in, churches, cemeteries, golf courses, country clubs, private schools, and supervised group homes.

On March 14, 2000, the city issued citations for both lots for violating Zoning Code section 29.15 by “permitting a commercial use of premises located in a residential zoning district by allowing the premises to be used for a place to facilitate commercial transactions for sale or construction of houses at other sites.”

II. Legal Principles.

Under Iowa Code section 364.22(10) (1999), an appeal from a finding of a municipal infraction is subject to the same procedures as in a small-claims appeal. We have stated that discretionary review of a small claims action depends on the nature of the case. Roeder v. Nolan, 321 N.W.2d 1, 3 (Iowa 1982). If the action is at law, we review the district court’s ruling on error. Hyde v. Anania, 578 N.W.2d 647, 648 (Iowa 1998). The parties agree that our review is at law. The standard of proof for municipal infractions is “clear, satisfactory, and convincing evidence.” Iowa Code § 364.22(5)(b).

Section 29.15 of the Ames Municipal Code provides this with respect to the district in which these houses are located:

Rl-6, LOW-DENSITY RESIDENTIAL DISTRICT.
Statement of Intent. This district is intended to provide for low-density residential areas with single-family dwellings and certain existing two-family dwellings.
(I) Permitted Uses. A building or premises shall be used only for the following purposes:
Single-family dwellings

“Dwelling unit” and “dwelling — single-family” are also defined:

(10) Dwelling Unit. A building or portion thereof designed or used exclusively for residential occupancy, not including house traders, mobile homes, hotels or motels.
(II) Dwelling — single-family. A building designed for and occupied exclusively by one family.

These model homes fit within the definition of a “dwelling unit” because they are designed for residential occupancy. However, they do not fit the definition of a single-family dwelling with the more restrictive language, “designed for and occupied exclusively by one family.” (Emphasis added.)

In construing an ordinance, we must examine the whole ordinance, giving each section consideration in order to “give the ordinance its natural and intended meaning.” Kordick Plumbing & Heating Co. v. Sarcone, 190 N.W.2d 115, 117 (Iowa 1971) (municipal zoning ordinance interpreted to exclude a mobile home park in a heavy industrial district).

The ordinance is quite clear: Buildings in the district, according to section 29.15 of the ordinance, “shall be used only for ... [sjingle family dwellings,” which in turn are defined as “building[s] designed for and occupied exclusively by one family.” (Emphasis added.) It is undisputed that these homes were designed as single-family dwellings for actual occupancy at some time, but the ordinance also requires that they shall be used for that purpose as well. Actual use as single-family dwellings has been delayed as to these homes for an indefinite period of time.

Regency argues that the sales offices are similar to real estate open houses. However, an open house is a use in which the absence of the occupants is only temporary. The open house itself is intended to show the home to persons who are interested in becoming occupants of that particular home. Attracting new owners to a home through an open house is a use that is “consistent with the use of the building for its designed purpose.” In contrast, a model home is intended to attract potential occupants to other homes on other lots. Such a use is commercial in nature.

We have not decided a case involving the issue raised here, and cases from other jurisdictions, relied on by Regency, are distinguishable. In a case involving classifications of property for tax purposes, the Colorado Court of Appeals addressed the proper classification for model homes in Mission Viejo Co. v. Douglas County Board of Equalization, 881 P.2d 462 (Colo.Ct.App.1994). The court stated:

Model homes are located in areas which are zoned for residential use, and they are generally intended for use as residences after the other homes in the subdivision are sold. Because of this, they are “designed” predominantly for residential use. Therefore, ... model homes would be properly classified as “residential real property.”

Id. at 465. However, the taxability of the real estate in Mission Viejo turned on the design of the home not its use. In contrast, in this case, it is the use of the structure that is determinative.

The Superior Court of Pennsylvania found that model homes did not violate a restriction in a deed limiting structures to residential purposes. Groninger v. Aumiller, 435 Pa.Super. 123, 644 A.2d 1266 (Pa.Super.Ct.1994). The court said “there is nothing about the Aumillers’ model home (except possibly the small sign designating it a model home for their contracting company) which sets it apart from the other residential homes in the neighborhood.” Id. at 1268. However, the issue in Groninger was again whether the design of the structure — not its use — was restricted by the deed. Id. at 1268.. Groninger is therefore also distinguishable.

We believe that, although the model homes here were designed as single-family dwellings to be occupied eventually by single families, they violate the ordinance because they are presently being used for commercial purposes. We affirm the decision of the court of appeals and the judgment of the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.


author: NEUMAN, Justice.

text:
    Lee D. SCOTT, d/b/a Click-It, Appellee, v. GRINNELL MUTUAL REINSURANCE COMPANY and Grinnell Infosystems, Inc., Appellants.
    No. 00-1577.
    Supreme Court of Iowa.
    Nov. 14, 2002.

      John B. Grier of Cartwright, Druker & Ryden, Marshalltown, and Dennis G. Day, Grinnell, for appellants.
    Mark W. Fransdal of Redfern, Mason, Dieter, Larsen & Moore, P.L.C., Cedar Falls, for appellee.
   NEUMAN, Justice.

This appeal concerns an alleged breach of contract for the purchase of computer programming services. Plaintiffs petition rested solely on a theory of implied contract for the value of services rendered. At trial, however, plaintiff was permitted— over defendants’ objection — to amend to conform to proof of breach of an express contract. The jury’s verdict premised on this new theory awarded plaintiff reliance damages totabng $100,000, and defendants now appeal the judgment entered on that verdict.

Because the evidence pertinent to damages recoverable under plaintiffs original theory differs so markedly from the proof required for recovery under the theory submitted to the jury, and the amendment was allowed at the close of all the evidence, we agree with defendants’ claim on appeal that the judgment for plaintiff cannot stand. We therefore vacate a contrary decision by our court of appeals, reverse the judgment entered by the district court, and remand for new trial.

I. Background Facts.

Plaintiff, Lee Scott, is a self-employed computer programmer who operated a business in Grundy Center, Iowa, known as “Click-It.” Defendants, Grinnell Mutual Reinsurance Company and Grinnell In-fosystems, Inc., are corporations headquartered in Iowa which are engaged in the sale and marketing of insurance products. Mike Ward, president of Grinnell, contacted Scott about writing a computer program that could be used by Grinnell-affiliated county mutual insurance companies to quote comparative rates for fire and wind insurance. Ward was particularly interested in providing such a program to Flom Mutual Insurance Company of Minnesota. Scott began working on the program in late fall, 1996, with an estimated completion date of February 1997.

As with virtually all breach-of-contract cases, the controversy before us centers on the nature and scope of the parties’ agreement. During their initial negotiations, both Scott and Ward recognized that a joint venture held promise for marketing such programs throughout the Midwest. But their perspectives on the Flom project differed markedly. Scott was willing to build the program for the modest sum of $2300 on his belief that, once it was successfully completed, Grinnell would aggressively market similar programs, resulting in substantial royalties and service contracts. Ward, meanwhile, agreed to pay Scott $2300 for a completed Flom product but believed that negotiations concerning future marketing must await Flom’s acceptance of Scott’s work.

At Scott’s request, Ward reduced the parties’ oral agreement to writing in February 1997 via the following e-mail message:

This is to confirm our agreement for your company, Click-it, to create a mul-ti-company quoting system for sale to FLOM Regional Mutual. Grinnell Info-systems is involved in this project because it has agreed to provide a solution for Flom to handle its multi-company quoting needs.
Your quoted price for this project is $2300 which is payable by Grinnell Info-systems upon completion of the work and acceptance of the quoting system by Flom for use by its mutual and distribution to its agents.

Ward’s message also outlined the technical requirements for the quoting system but made no mention of marketing it to other companies.

The prototype furnished by Scott in February was met with enthusiasm by Ward but required substantial revision to meet Flom’s needs. Scott reportedly made the revisions in the hope of future rewards. A version submitted in May 1997 was likewise received with enthusiasm but also found wanting in the details. According to Scott, however, he was led to believe that he and Grinnell were “close” to achieving the desired product, a milestone that prompted Scott and Ward to discuss future marketing strategies in some detail. Scott then submitted written proposals for future compensation — joint ownership of the program with fixed compensation for Scott of $120,000 plus additional bonuses depending on sales — but received no response, positive or negative, from Ward.

Despite continued work on the program over the summer, Scott was never quite able to satisfy Flom’s programming needs. Scott described the situation as working on a “moving target.” Ward, meanwhile, complained that the programs submitted for trial by Flom could not be successfully operated. After each unsuccessful demonstration, Ward would submit a list of needed revisions to Scott.

In August, when Ward expressed uncertainty concerning the future of the program, Scott retained legal counsel. His lawyer wrote to Ward in September, expressing Scott’s desire to be fairly compensated for his time and effort. Ward replied that “[u]pon completion of the listed corrections and subject to Flom’s satisfactory review of the program, we would pay Click-it the amount agreed to of $2300. We wish to make it clear that this is the only amount which we have agreed to pay Click-it.” Attached to the letter was a six-page list of additional changes. Scott suspended all work on the program.

In a letter written to Scott’s lawyer in December 1997, Grinnell’s general counsel confirmed that its agreement to pay $2300 had been contingent on receipt of a completed product and, failing that, it had no further obligation to Scott. The company likewise made no claim to the Click-It price-quoting program. Scott later learned that in June 1997, Grinnell had entered discussions with IDI, a Wisconsin company, concerning a computerized comparative rate-quoting program. By February 1998, Grinnell had purchased IDI’s assets, including the rate-quoting program, for roughly $225,000. Grinnell thereafter marketed the program to 245 county mu-tuals in its nine-state area.

II. Legal Proceedings.

Scott sued Grinnell for breach of contract for “expert computer design services.” His petition rested on his claim that “[t]he law implies a promise to pay the reasonable value of services and/or products” and that Grinnell “knowingly accepted]” Scott’s services but has “failed and refused to make reasonable arrangements to compensate him.” Grinnell responded with a general denial and, later, moved for summary judgment. In its motion, Grinnell argued that because the parties had an express agreement regarding payment, Scott could not prevail on an implied contract as a matter of law. The district court overruled Grinnell’s motion. Based on the limited record submitted, it concluded an agreement for “some amount of additional compensation was clearly implied,” over and above the express agreement for $2300 upon completion of the Flom project. The case proceeded to trial.

At trial, Scott introduced evidence that from December 1996 through September 1997, he and two part-time employees devoted approximately 1800 hours to keying in data and building the computer program requested by Grinnell for Flom. He testified that custom programming of this type would ordinarily command compensation at the rate of $75 to $125 per hour in the marketplace. He insisted that the seemingly endless changes requested by Ward were, for the most part, not intended to correct errors but to modify the product beyond that originally contemplated by the parties’ agreement.

Ward, for his part, did not dispute the reasonableness of the hourly wages Scott introduced. Nor did he contest the fact that he and Scott had engaged in preliminary negotiations concerning future marketing of the project upon successful completion and acceptance of the Flom program. He merely asserted the evidence was essentially irrelevant because the work performed by Scott was never suitable for its intended purpose and, so, the condition precedent to payment of the agreed sum of $2300 — or to support planning a joint venture in marketing — was not fulfilled.

At this juncture the court, as well as counsel for Scott, seemed to recognize that although the case had been pled on a theory of implied contract for the value of services received but uncompensated, no services of any value were ever received by Grinnell. Instead, the trial record arguably supported a claim for anticipatory breach of an express contract, not merely for the $2300 agreed upon by the parties but for the future marketing potential for Scott’s program that would have existed but for Grinnell’s unwarranted repudiation of their agreement. Thus, over Grinnell’s objection, the court granted Scott’s motion to amend his petition to assert breach of an express contract. It also sustained, over Scott’s objection, Grinnell’s motion for directed verdict on the alleged breach of an implied contract, or quantum meruit.

After further wrangling over the sufficiency of the evidence to support Scott’s claim for reliance damages, the court submitted the case to the jury. It returned a verdict for $100,000 in Scott’s favor. Grin-nell’s subsequent motions for new trial and for judgment notwithstanding the verdict were denied by the court. This appeal by Grinnell followed. Further facts will be detailed as they pertain to the issues on appeal.

III. Issues on Appeal.

Grinnell urges three separate grounds for reversal: (1) the jury’s verdict was excessive, the result of an erroneous instruction on damages; (2) the court erred in allowing plaintiff to amend his petition at the close of the evidence; and (3) defendants were entitled to directed verdict, or judgment notwithstanding the verdict, on plaintiffs claim of anticipatory breach of an express contract. In fact all three assignments of error are interrelated. They are rooted in Grinnell’s allegation of prejudice flowing from the allowance of the amendment so late in the trial, a matter to which we now turn.

Applicable law. A decision granting leave to amend to conform to the proof rests in the sound discretion of the trial court, reversible on appeal only when a clear abuse of discretion is established. Bennett v. City of Redfield, 446 N.W.2d 467, 474-75 (Iowa 1989). Abuse may be demonstrated by proof that the court’s decision rested on clearly untenable or unreasonable grounds. Rife v. D.T. Corner, Inc., 641 N.W.2d 761, 766 (Iowa 2002). The timing of a motion to amend, standing alone, is not a determinative factor. Allison-Kesley Ag Ctr., Inc. v. Hildebrand, 485 N.W.2d 841, 845 (Iowa 1992). The crucial question is whether the amendment substantially changed the issues before the court. Id. at 845-46.

Historically, “where pleadings allege an implied contract and the proof establishes an express contract, or vice versa, the result is a fatal variance.” Gosha v. Woller, 288 N.W.2d 329, 331 (Iowa 1980) (citing Wayman v. City of Cherokee, 208 Iowa 905, 225 N.W. 950 (1929)). We recognize that modern rules of notice pleading have tempered the harshness of the rule, placing emphasis on proof of prejudice sustained by the party on the receiving end of the variance. Id.; see Iowa R. Civ. P. 1.457 (objecting party must prove amendment would prejudice maintenance of defense on the merits). Principles of fairness nevertheless dictate notice of the claims asserted in order to give the opposing party opportunity to make an adequate response. Gosha, 288 N.W.2d at 331.

To appreciate the quandary generated by the case before us, we must examine the elements of the theories advanced and defenses posed both before and after the amendment. Breach of an express contract requires proof of a contract in which the parties “manifest their agreement by words.” Iowa Waste Sys., Inc. v. Buchanan County, 617 N.W.2d 23, 29 (Iowa Ct.App.2000); accord Guldberg v. Greenfield, 259 Iowa 873, 878, 146 N.W.2d 298, 301 (1966). An “agreement to agree to enter into a contract is of no effect unless all of the terms and conditions of the contract are agreed on and nothing is left to future negotiations.” Crowe-Thomas Consulting Group, Inc. v. Fresh Pak Candy Co., 494 N.W.2d 442, 444-45 (Iowa Ct.App.1992).

An implied contract, by comparison, requires proof of an agreement that is “inferred in whole or in part from expressions other than words on the part of the promisor.” Iowa Waste, 617 N.W.2d at 29. To recover for breach of a contract implied-in-fact, the plaintiff must prove the services were carried out under such circumstances as to give the recipient reason to understand that

(a) they were performed for him and not some other person, and
(b) they were not rendered gratuitously, but with the expectation of compensation from the recipient; and
(c) the services were beneficial to the recipient.

Id. at 30 (quoting Bloomgarden v. Coyer, 479 F.2d 201, 208-09 (D.C.Cir.1973)). “[T]he law will not imply a contract where there is an express contract.” Giese Constr. Co. v. Randa, 524 N.W.2d 427, 431 (Iowa Ct.App.1994).

For breach of an implied-in-fact contract, the injured party is entitled to quantum meruit — “the reasonable value of the services provided and the market value of the materials furnished.” Iowa Waste, 617 N.W.2d at 29. By contrast, damages for breach of an express contract are limited to the protection of the injured party’s “expectation interest” (benefit of the bargain) or “reliance interest.” Potter v. Oster, 426 N.W.2d 148, 150 (Iowa 1988); accord Restatement (Second) of Contracts § 344 (1979).

Here, following the amendment, Scott sought only “reliance” damages, that is, reimbursement for loss caused by reb-anee on the contract, to place him in as good a position as if the contract had never been made. See Potter, 426 N.W.2d at 150. Such damages require proof of actual expenditures made, or forbearance of other opportunities, prior to the repudiation of the contract. 22 Am.Jur.2d Damages § 43, at 67 n. 61 (1988) (citations omitted); § 49, at 73. But in no event may recovery for expenditures exceed the contract price. Restatement (Second) of Contracts § 349 cmt. a, at 124; see Eric Mills Holmes, Corbin on Contracts § 8.8, at 22, 26 (rev. ed.1996).

Analysis. In Gosha, where the turnaround in legal theories was devised by the court following submission of the case without notice to the defendant, we held that fairness dictated reversal and remand for new trial. See Gosha, 288 N.W.2d at 331-32. The question is whether the same principles of fairness motivating the court in Gosha should be appbed here. Although Grinned had a chance to resist the amendment prior to submission of the case to the jury, the “before and after” legal theories at issue demanded such variance in proof and corresponding defense that we are convinced reversal and remand for retrial is compelled.

Crucial to Scott’s recovery of damages was proof that he and his staff devoted time to Grinnell’s project that could have been devoted to other projects. Otherwise his recovery would rest solely on the reasonable value of the time expended on services for the defendants, an appropriate measure of damages in quantum meruit but not for breach of an express contract. Reliance damages are not designed to rescue the plaintiff from the consequences of a bad bargain, but to compensate him for gains unrealized as a result of the breaching party’s conduct. See Dialist Co. v. Pulford, 42 Md.App. 173, 399 A.2d 1374, 1382 (1979) (reliance damages sustained by proof of salary forgone in order to carry out contract).

Here, of course, the record before the jury included all of Scott’s evidence of time records tailored to his pleaded theory of quantum meruit, irrespective of lost opportunities. And the alleged marketing agreement regarded by Grinnell as no more than an unenforceable “agreement to agree” was suddenly transformed into one segment of a multi-part express contract.

Grinnell was plainly prejudiced by submission of the case under a legal theory at variance with the proof and defense anticipated by the litigants both before and during the trial. See Gosha, 288 N.W.2d at 332 (“although [plaintiffs] petition was limited to the theory of express warranty the evidence was not”). As in Gosha, fairness dictates that we reverse and remand for new trial so that the elements of the claims, and the sufficiency of the defenses, may be adequately addressed based on the case being tried.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

      . By stipulation, the defendants have been treated as one entity throughout this litigation and will be identified on appeal simply as ''Grinnell.”

      . Scott argued in the trial court, and urges by way of cross-appeal, that the jury should have been permitted to consider alternative theories of recovery based on both implied contract and express contract. For the reason explained in the text above, the record is factually insufficient to support recovery based on quantum meruit, i.e., "a breach of an implied-in-fact contract, for the reasonable value of the services provided.” Iowa Waste Sys., Inc. v. Buchanan County, 617 N.W.2d 23, 29 (Iowa Ct.App.2000). The argument's legal sufficiency is likewise suspect. See Giese Constr. Co. v. Randa, 524 N.W.2d 427, 431 (Iowa Ct.App.1994) ("An express contract and an implied contract cannot coexist with respect to the same subject matter, and the law will not imply a contract where there is an express contract.”). We therefore give the claim no further consideration.