                     IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0665
                              Filed March 21, 2018


JAY DRIESEN and RAYMOND EHRMAN,
     Plaintiffs-Appellants,

vs.

IOWA DEPARTMENT OF HUMAN SERVICES, MISTY SPOONER, and
SHAYNE MAYER,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Lyon County, Jeffrey A. Neary,

Judge.



      Two men appeal the dismissal of their elderly-abuse petition. AFFIRMED.




      Jay Driesen, Inwood, and Raymond Erhman, Freeman, South Dakota,

appellants pro se.

      Robert M. Livingston of Stuart Tinley Law Firm, L.L.P., Council Bluffs, for

appellee Shayne Mayer.

      Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant

Attorney General, for appellee State.

      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
                                            2


VAITHESWARAN, Presiding Judge.

         This appeal is from a district court order dismissing the third of three related

actions. The plaintiffs contend the district court’s rulings in the first two actions

were erroneous.

         The first action was filed by the State to obtain protective services for an

elderly man with Alzheimer’s disease who was unable to care for himself. See

Iowa Code § 235B (2017). Following a hearing, the district court concluded the

man was a dependent adult subject to dependent adult abuse. The court voided

a power of attorney the man had given two individuals, Ray Ehrman and Jay

Driesen.

         The second action, also filed by the State, sought an involuntary

guardianship and conservatorship to manage the man’s affairs. The district court

ultimately granted the petition. The order is the subject of a separate appeal.1

         The third action was filed by Ehrman and Driesen against the Iowa

Department of Human Services, its employee Misty Spooner, and Lyon County

Attorney Shayne Mayer. The suit was filed under the auspices of Iowa Code

chapter 235F, which authorizes “a vulnerable elder or a substitute petitioner” to

seek relief from elder abuse. See Iowa Code § 235F.2(1). Ehrman and Driesen

alleged the State defendants and the county attorney overreached in seeking to

(1) find the elderly man a dependent adult subject to dependent adult abuse, (2)

void their power of attorney, and (3) appoint a guardian and conservator.




1
    See In re Guardianship & Conservatorship of R.K., No. 17-0647.
                                            3


       The department and Spooner moved to dismiss the petition on the ground

they were not properly served with process. They also asserted the petition was

an impermissible collateral attack on the first two actions and chapter 235F did not

authorize an action against them. Mayer appeared through counsel and joined in

the collateral attack argument. Following a hearing, the district court granted the

motion to dismiss (1) for lack of proper service on the department, (2) as an

impermissible collateral attack on the order in the first action, and (3) as a

potentially inappropriate use of Iowa Code chapter 235F. Ehrman and Driesen

filed a rule 1.904(2) motion for enlarged findings and conclusions. See Iowa R.

Civ. P. 1.904(2). The district court summarily denied the motion and this appeal

followed.

       Ehrman and Driesen challenge the rulings in the first two actions and

contend the district court in the third action could not “refuse to hear the[ir] known

material claims.” The State defendants again assert the third action was an

“impermissible collateral attack” and an “inappropriate use of chapter 235F.” They

do not reprise their lack-of-service argument.2 Mayer argues the appeal was

untimely. He also raises the “collateral attack” and “inappropriate use” arguments

made by the State defendants.


2
 At the hearing, counsel for the department and Spooner stated Spooner was served with
process the day before. The record reflects Spooner was served but only as a
representative of the department and not in her individual capacity. Spooner was not a
presiding officer, clerk, or secretary for the department; she attested she was a child and
adult protective worker. See Iowa R. Civ. P. 1.305(13) (stating service on “a governmental
board, commission or agency” is to be effected by “serving its presiding officer, clerk or
secretary”). Nonetheless, the State did not and does not challenge the district court’s
exercise of personal jurisdiction over Spooner. The State also does not raise the absence
of service on the department, notwithstanding that service through Spooner was improper.
We conclude the issue of personal jurisdiction has been waived. See Klinge v. Bentien,
725 N.W.2d 13, 16 (Iowa 2006).
                                           4


       Preliminarily, we address the timeliness of the appeal. “[A] party must

ordinarily file a notice of appeal within thirty days of the filing of the final order or

judgment.” Homan v. Branstad, 887 N.W.2d 153, 159-60 (Iowa 2016) (citing Iowa

R. App. P. 601(1)(b)). A rule 1.904(2) motion to enlarge or amend the findings of

fact or conclusions of law tolls the time for filing the appeal until the court rules on

the motion. Id.

       In the past, the rule 1.904(2) motion also had to be “proper” to toll the appeal

period. Id. Effective March 1, 2017, the Iowa Supreme Court amended the rules

to delete this requirement.     Iowa R. Civ. P. 1.904 cmt. (“Rules 1.904(3) and

1.904(4) supersede prior case law that held a timely rule 1.904(2) motion must also

have been ‘proper’ to extend the time for appeal.”). Mayer’s argument on the

untimeliness of the appeal is premised on the propriety of the plaintiffs’ rule

1.904(2) motion. Because propriety is no longer an issue under the rule, we

conclude the concededly timely motion tolled the time for filing an appeal. The

appeal was filed within thirty days of the district court’s ruling on the rule 1.904(2)

motion. The appeal was timely.

       We turn to the collateral attack argument.            According to the State

defendants, “The issues raised by Plaintiff-Appellants in this case were exactly the

ones they raised in the previous cases and the district court was correct in not

letting them try those issues for a third time.” Mayer raises the same contention.

Their assertions implicate the doctrine of issue preclusion.

       Issue preclusion prohibits parties from re-litigating issues “already litigated

and decided.” Colvin v. Story Cty. Bd. of Review, 653 N.W.2d 345, 348 (Iowa

2002). “The entire premise of issue preclusion is that once an issue has been
                                              5

resolved there is no further fact-finding function to be performed.” Id. at 349. Like

the district court, we will focus on the first action which was litigated to conclusion

before the district court dismissed the third action.3

       Ehrman and Driesen intervened in the first action. They challenged the

State’s request to find the elderly man subject to dependent adult abuse and they

challenged the request to void their power of attorney. The district court held an

evidentiary hearing at which Ehrman and Driesen testified. As noted, the district

court granted both of the State’s requests. In finding the elderly man a dependent

adult, the court stated:

              The testimony of the medical providers is overwhelming
       concerning [the man’s] current diagnosis of dementia/Alzheimer’s
       and chronic leukemia. [He] is at the middle stage of his Alzheimer’s
       disease resulting in an absolute loss of his short-term memory. [He],
       however, does have good physical health and has his long-term
       memory. However, as confirmed by [his physician, he] needs 24/7
       supervision and care. Based upon his complete lack of short-term
       memory, he is a danger to himself and is unable to provide daily care.
       [The physician’s] testimony is corroborated by the social worker who
       has conducted tests on [him] confirming his short-term memory loss.
       [He] is unable to recognize his daily care providers from day to day.
       The clear and convincing evidence is also supported by the
       testimony of Misty Spooner and the Lyon County deputies that have
       observed [his] residence. This residence is uninhabitable based
       upon the hoarding behavior of [the man] and the extreme bad
       conditions of the home. Utilities are not functioning. It appears that
       there is no access to a bed or toilet in the residence. Likely, as
       confirmed by the guardian ad litem report, [he] was sleeping in his
       minivan. The guardian ad litem report, along with other reports from
       Canton individuals, makes clear that [he] was not caring for himself
       and was at risk due to his behaviors in the community.




3
  At the time of the district court’s dismissal order, a final ruling had yet to be entered in
the second action.
                                           6


In continuing an injunction prohibiting Ehrman and Driesen from using the powers

of attorney granted to them, the court noted the man’s “decision-making capacity”

was “impaired.”

       Ehrman and Driesen did not appeal the ruling. Instead, they filed the third

petition, alleging the elderly gentleman was abused by “[t]he continued attempt to

characterize [him] as mentally incompetent and unable to care for himself.” They

also alleged his right “to contract by way of limited Power of Attorneys” was not

“impair[ed].” These were precisely the issues raised and litigated in the first action.

As the district court stated, Ehrman and Driesen “seek to raise in this action the

same issues that were adjudicated in the first action filed by the State.” They “seek

an order of this court requiring the named Defendants to discontinue providing

protective services to [the elderly gentleman] and requiring them to discontinue

their attempts to obtain a ruling that he is incompetent.” They “seek to rescind an

injunction preventing them from utilizing a power of attorney given them by [the

man]. . . . [T]his action amounts to an impermissible collateral attack on [the order

in the first action].” We discern no error in the court’s conclusion.

       In affirming the district court, we have considered Ehrman and Driesen’s

apparent reliance on procedural improprieties in the first action as grounds for

reaching the merits in the third action. It is true a judgment without jurisdiction over

the subject matter is void and void judgments are subject to collateral attack. In re

Estate of Falck, 672 N.W.2d 785, 789 (Iowa 2003). But the claimed irregularities

in the first action did not implicate the district court’s subject matter jurisdiction;

they implicated questions of personal jurisdiction which, as noted, may be waived.

Id. In addition, “[t]he res judicata consequences of a final unappealed judgment
                                       7


are not altered by the fact that the judgment may have rested on incorrect legal

principles.” Spiker v. Spiker, 708 N.W.2d 347, 356 (Iowa 2006) (quoting In re

Bisenius, 573 N.W.2d 258, 260 (Iowa 1998)).

      We affirm the dismissal of the third petition on issue preclusion grounds.

Our conclusion makes it unnecessary to address the appellees’ additional

arguments in support of affirmance.

      AFFIRMED.
