                IN THE SUPREME COURT OF IOWA
                              No. 11–0699

                            Filed June 1, 2012


EMPLOYERS MUTUAL CASUALTY COMPANY,

      Appellee,

vs.

LACINDA RANEE VAN HAAFTEN,

      Appellant.



      Appeal from the Iowa District Court for Jasper County, Gary G.

Kimes, Judge.



      Defendant, an alleged embezzler, appeals the summary judgment

in favor of her employer’s subrogated insurer imposing civil liability

under the doctrine of issue preclusion based on her Alford plea preceding

a deferred judgment on the criminal theft charge. AFFIRMED IN PART

AND REVERSED IN PART; CASE REMANDED.



      Brent D. Rosenberg of Rosenberg & Morse, Des Moines, for

appellant.



      John F. Fatino and S. Luke Craven of Whitfield & Eddy, P.L.C.,

Des Moines, for appellee.
                                            2

WATERMAN, Justice.

       This appeal presents a question of first impression in Iowa:

whether an Alford plea preceding a deferred judgment on a felony theft

charge has preclusive effect in a subsequent civil action against the

defendant to recover stolen funds.              A secretary at Prairie City-Monroe

Community School District (PCM), Lacinda Van Haaften, allegedly

embezzled from a student activity fund and faced criminal charges. The

district court accepted her Alford plea 1 to first-degree theft and entered a

deferred judgment on that charge. PCM’s subrogated insurer, Employers

Mutual Casualty Company (EMCC), brought a civil action against

Van Haaften to recover $66,749 it paid on the theft loss.                  The district

court entered summary judgment in favor of EMCC in that amount,

concluding Van Haaften’s Alford plea precluded her from denying the

theft or the amount.         She appeals, contending her deferred judgment

should have no res judicata effect in the civil case.

       Our precedent allows third parties to use an Alford plea to

preclude the defendant from relitigating essential elements of the

criminal offense in a civil action because the district court is required

under Iowa Rule of Criminal Procedure 2.8 to find the plea is supported

by a factual basis.       Van Haaften argues this precedent is inapplicable

when a deferred judgment is granted.               We disagree because the same

judicial finding of a factual basis for the charge is required when the



       1An  Alford plea is a guilty plea entered pursuant to North Carolina v. Alford, 400
U.S. 25, 38, 91 S. Ct. 160, 168, 27 L. Ed. 2d 162, 171–72 (1970). “An Alford plea is a
variation of a guilty plea. In effect, the pleas are the same as the defendant is agreeing
to the imposition of a criminal sentence for the crime charged.” State v. Burgess, 639
N.W.2d 564, 567 (Iowa 2001). The plea only differs from the traditional guilty plea “in
that when a defendant enters an Alford plea, he or she does not admit participation in
the acts constituting the crime.” Id. at n.1.
                                    3

district court enters a deferred judgment after the Alford plea.

Accordingly, we hold the victim of a crime (or the victim’s subrogated

insurer) may invoke the doctrine of issue preclusion in a civil action

based on the defendant’s Alford plea regardless of whether the defendant

successfully complies with the conditions for the deferred judgment on

the criminal charge.

      We conclude EMCC was entitled to summary judgment on liability,

but not for the full amount of EMCC’s claimed damages. The preclusive

effect of her Alford plea is limited to $10,000, the minimum amount

required to support a charge of first-degree theft.   EMCC must prove

damages in excess of that amount.       Genuine issues of material fact

precluded summary judgment in excess of $10,000.

      Accordingly, we affirm the district court’s summary judgment

establishing Van Haaften’s civil liability to EMCC for theft and for

damages of $10,000 based on issue preclusion. We reverse the summary

judgment in excess of that amount and remand for a trial on the

remaining damages sought by EMCC.

      I. Background Facts and Proceedings.

      Lacinda Van Haaften worked as a secretary and account manager

for the athletic director at PCM beginning in May 2004.         She was

entrusted with day-to-day management of the “Student Activity Fund,”

including processing invoices, preparing account reports, and depositing

collections.   In March 2008, the school board discovered irregularities

with the activity fund after Van Haaften overstated the fund’s balance by

more than $22,000. PCM hired the certified public accounting (CPA) firm

Nolte, Cornman & Johnson P.C. to independently audit the account. The

CPA firm investigated the account’s internal controls and tested account

deposits and disbursements against athletic event revenue and expenses.
                                    4

The CPA firm’s twenty-four-page, independent auditor’s report concluded

Van Haaften failed to deposit collections of $57,759.21 into the Student

Activity Fund between September 1, 2004, and May 31, 2008.

      The State charged Van Haaften by trial information with first-

degree theft, a class “C” felony, under Iowa Code section 714.2(1) (2009).

On June 1, 2010, the district court accepted Van Haaften’s knowing and

voluntary Alford plea of guilty to first-degree theft. During the colloquy,

Van Haaften’s attorney stated there was “evidence . . . not contained in

the minutes of testimony that is exculpatory in nature” and “that if this

matter went to trial” the defense would rely on that evidence “as a basis

for . . . establishing reasonable doubt as to the defendant’s guilt.” The

district court, in response, decided it would not accept Van Haaften’s

plea unless she denied that “the evidence that [she would] present before

a jury [could] overcome . . . guilt beyond a reasonable doubt” as

established in the minutes of testimony. Van Haaften’s attorney agreed

to take a ten-minute recess so he could discuss the plea with

Van Haaften.

      After the recess, Van Haaften admitted the minutes of testimony

establish her guilt beyond a reasonable doubt and that she could not

present evidence to create reasonable doubt.      The district court then

asked Van Haaften:

      [B]ased upon what you have told me, the minutes of
      evidence would establish as alleged in Count I that . . . you
      either directly committed or aided and abetted or conspired
      with another or entered into a common scheme . . . to
      unlawfully take possession and/or control of the property of
      another; to wit, deposits from the Prairie City Monroe
      Community School District Activity Fund totaling
      $57,759.21 with the intent to deprive the rightful owner
      thereof. Did you understand all of that?
                                         5

Van Haaften responded, “Yes, your honor.”               Van Haaften’s attorney

responded, “Your honor, the record should reflect my client is tendering

an Alford plea of guilty to that charge and I think she will acknowledge

that is what she is doing.” The district court accepted her plea.

      The district court informed Van Haaften at the plea hearing that

she has a right to file a motion in arrest of judgment to challenge the

legality   of   the   plea   until   sentencing   and   judgment   is   entered.

Van Haaften did not file any motion challenging her plea. The district

court held a sentencing hearing on July 12, six weeks after the plea

colloquy, and entered a deferred judgment that placed Van Haaften on

probation for three years and imposed a $1000 civil fine. The deferred

judgment order stated:

             The Court upon questioning the Defendant has
      determined that the Defendant understands her rights and
      the consequences of such plea of guilty; that said plea was
      knowingly, intelligently, and voluntarily made and that there
      is an adequate factual basis for said plea. Accordingly, the
      Court has accepted said plea of guilty, finds the Defendant
      guilty of the crime alleged, and hereby enters judgment of
      guilty thereupon. Upon inquiry, no legal cause has been
      shown to prevent sentencing on this date.

      EMCC provided insurance coverage to PCM and paid PCM $66,749

for losses caused by Van Haaften’s theft.         In return, PCM assigned its

claims against Van Haaften to EMCC. On September 24, EMCC filed this

equitable subrogation claim against Van Haaften to recover the $66,749

it paid to PCM.         EMCC’s amended petition alleged Van Haaften is

precluded from relitigating her theft in this civil action.        Van Haaften

denied those allegations in her answer.           EMCC moved for summary

judgment on grounds that Van Haaften’s guilty plea has preclusive effect.

Van Haaften resisted.        She supported her resistance with her affidavit

denying the theft allegations, and she argued her deferred judgment is
                                     6

not a final judgment for res judicata purposes. On April 12, 2011, the

district court after an unreported hearing granted EMCC’s summary

judgment by calendar entry.       On June 3, the district court entered

judgment for $66,749.21 plus interest and costs.       Van Haaften timely

filed her notice of appeal.

      We retained the appeal to decide whether an Alford plea resulting

in a deferred judgment has preclusive effect in a subsequent civil action.

      II. Scope of Review.

      We review a district court’s summary judgment ruling for errors at

law. Gardner v. Hartford Ins. Accident & Indem. Co., 659 N.W.2d 198,

201 (Iowa 2003).     Summary judgment is appropriate if there are no

genuine issues of material fact and the moving party is entitled to

judgment as a matter of law.       Id.   “Whether the elements of issue

preclusion are satisfied is a question of law.”    Grant v. Iowa Dep’t of

Human Servs., 722 N.W.2d 169, 173 (Iowa 2006).            Issue preclusion

therefore is appropriately adjudicated by summary judgment. See, e.g.,

Brown v. Monticello State Bank, 360 N.W.2d 81, 84 (Iowa 1984). We view

the evidence in the light most favorable to the nonmoving party. C & J

Vantage Leasing Co. v. Outlook Farm Golf Club, LLC, 784 N.W.2d 753,

756 (Iowa 2010).

      III. Van Haaften’s Guilty Plea Has Preclusive Effect.

      Issue preclusion, sometimes referred to as collateral estoppel, is a

form of res judicata. Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567,

571 (Iowa 2006). Issue preclusion prevents parties “ ‘from relitigating in

a subsequent action issues raised and resolved in [a] previous action.’ ”

Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 103 (Iowa 2011) (quoting

Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981)).         The

doctrine “serves a dual purpose: to protect litigants from ‘the “vexation of
                                       7

relitigating identical issues with identical parties or those persons with a

significant connected interest to the prior litigation,” ’ and to further ‘the

interest of judicial economy and efficiency by preventing unnecessary

litigation.’ ”   Haverly, 727 N.W.2d at 571–72 (quoting Am. Family Mut.

Ins. Co. v. Allied Mut. Ins. Co., 562 N.W.2d 159, 163 (Iowa 1997)). Issue

preclusion also “ ‘tends to prevent the anomalous situation, so damaging

to public faith in the judicial system, of two authoritative but conflicting

answers being given to the very same question.’ ” Grant, 722 N.W.2d at

178 (quoting Robert C. Casad & Kevin M. Clermont, Res Judicata: A

Handbook on Its Theory, Doctrine, and Practice 113 (2001)). A plaintiff

may offensively use issue preclusion “in [a] second action [by relying]

upon a former judgment against the defendant to establish an element of

his or her claim.” Soults Farms, Inc., 797 N.W.2d at 104.

       The party invoking issue preclusion must establish four elements:

       “(1) the issue in the present case must be identical, (2) the
       issue must have been raised and litigated in the prior action,
       (3) the issue must have been material and relevant to the
       disposition of the prior case, and (4) the determination of the
       issue in the prior action must have been essential to the
       resulting judgment.”

Id. (quoting Fischer v. City of Sioux City, 654 N.W.2d 544, 547 (Iowa

2002)); accord Hunter, 300 N.W.2d at 123.          When issue preclusion is

invoked offensively to establish an element of a claim, two additional

considerations are present:

       “(1) whether the opposing party in the earlier action was
       afforded a full and fair opportunity to litigate the issues . . . ,
       and (2) whether any other circumstances are present that
       would justify granting the party resisting issue preclusion
       occasion to relitigate the issues.”

Soults Farms, Inc., 797 N.W.2d at 104 (quoting Fischer, 654 N.W.2d at

547); see also Hunter, 300 N.W.2d at 126 (citing Restatement (Second) of
                                     8

Judgments § 88 (Tentative Draft No. 2, 1975) (now Restatement (Second)

of Judgments § 29 (1982))).

      A determination must also be “final” for res judicata purposes to

have preclusive effect.   Hunter, 300 N.W.2d at 123 (citing Goolsby v.

Derby, 189 N.W.2d 909, 913 (Iowa 1971)).           But, “[t]he fact that a

judgment is treated as final for purposes of res judicata does not

necessarily mean that it is final for other purposes . . . .” Restatement

(Second) of Judgments § 13 cmt. b, at 133.

      Van Haaften concedes our precedent extends preclusive effect to

Alford pleas in subsequent civil actions. Aid Ins. Co. (Mut.) v. Chrest, 336

N.W.2d 437, 440 (Iowa 1983) (applying preclusive effect to an Alford

plea). Van Haaften argues Aid Insurance Co. (Mutual) is not controlling

because it did not involve a deferred judgment on the criminal charge.

She contends her deferred judgment is not a final judgment that

supports issue preclusion. She also contends EMCC’s offensive use of

her Alford plea is improper under the circumstances of this case.

      A. The District Court’s Finding of a Factual Basis for the

Charge Underlying the Plea Is Sufficient for Issue Preclusion. “The

rule is well established in Iowa that a validly entered and accepted guilty

plea precludes a criminal defendant from relitigating essential elements

of the criminal offense in a later civil case arising out of the same

transaction or incident.”     Dettmann v. Kruckenberg, 613 N.W.2d 238,

244–45 (Iowa 2000) (citing Teggatz v. Ringleb, 610 N.W.2d 527, 529 (Iowa

2000)); accord Aid Ins. Co. (Mut.), 336 N.W.2d at 440; Ideal Mut. Ins. Co.

v. Winker, 319 N.W.2d 289, 296 (Iowa 1982)).        We have allowed third

parties to use a defendant’s guilty plea against him in a civil action.

Ideal Mut. Ins. Co., 319 N.W.2d at 297.
                                     9

      In Ideal Mutual, this court overturned precedent that held criminal

guilty pleas lacked preclusive effect in subsequent civil litigation.    319

N.W.2d at 296.    We thoroughly analyzed the American Law Institute’s

Restatement (Second) of Judgments, the writings by Professor Allan

Vestal, and developing caselaw in other jurisdictions.       We concluded

“[s]ubstantial support exists for the proposition that a guilty plea should

be given preclusive effect against the accused.” Id. at 291. We held the

executor of the deceased’s estate could use the defendant’s second-

degree murder plea to establish tort liability in a subsequent civil action

for wrongful death. Id. at 297.

      We determined a guilty plea, on its face, could satisfy the first,

third, and fourth elements of our issue-preclusion test. Id. at 294–95.

An element of a criminal offense is often identical to a civil tort issue

(first element), material in both proceedings (third element), and essential

to establish the offense (fourth element).     Id.   Only the “raised and

litigated” requirement gave us pause because a guilty plea does not

result from a trial. Id. But our concern was alleviated by our rule of

criminal procedure that requires the district court to find the elements of

the charged offense are supported by a factual basis before accepting a

defendant’s plea. Id. at 295; see Iowa R. Crim. P. 2.8(2)(b). We reasoned:

      [T]he effect of the factual basis rule is to require the
      existence of evidence sufficient to convince the trial court
      that the plea is founded on fact. Once a guilty plea is
      accepted, a judicial determination has thus been made with
      respect to the essential elements of the crime. We hold the
      factual basis requirement for guilty pleas is sufficient to meet
      the second requirement of our issue preclusion principle.
      We think a result is fair which precludes relitigation
      concerning an essential element of a crime when the accused
      has tendered a guilty plea . . . and the court has ascertained
      that a factual basis exists for the plea and accepts it.

Ideal Mut. Ins. Co., 319 N.W.2d at 295.
                                     10

       One year later we extended Ideal Mutual to Alford pleas. Aid Ins.

Co. (Mut.), 336 N.W.2d at 440. The defendant attempted to distinguish

Ideal Mutual by claiming his Alford plea was motivated by plea bargaining

and that he maintained his innocence through his plea. Id. at 439–40.

We rejected the argument, finding an Alford plea “indistinguishable” from

a traditional guilty plea because each requires the district court to find a

factual basis before accepting the plea.     Id. at 440; see also State v.

Schminkey, 597 N.W.2d 785, 792 (Iowa 1999) (vacating conviction and

sentence resulting from Alford plea for lack of factual basis).          We

reasoned that a plea’s preclusive effect “does not depend on the accused

person’s motivation in entering the guilty plea nor does it require the

factual basis for the conviction to be established by the person’s

admissions.   It merely requires a valid plea.”    Aid Ins. Co. (Mut.), 336

N.W.2d at 440.

       Accordingly, the district court’s determination that a plea has a

“factual basis” is the “judicial determination . . . made with respect to the

essential elements of the crime” that has preclusive effect. See Ideal Mut.

Ins. Co., 319 N.W.2d at 295; see also Aid Ins. Co. (Mut.), 336 N.W.2d at

440.   Van Haaften does not ask us to overrule this well-established

precedent but, instead, claims it is distinguishable because the pleas in

those cases did not result in deferred judgments. We conclude that is a

distinction without a difference here.

       B. A Deferred Judgment Does Not Alter the Finality of the

District Court’s “Factual Basis” Determination. Van Haaften argues

her plea that resulted in a deferred judgment does not have preclusive

effect because it is not a final judgment for purposes of appeal. See State

v. Stessman, 460 N.W.2d 461, 462 (Iowa 1990) (holding a deferred

judgment is not a “final judgment of sentence” from which a defendant
                                           11

may appeal under Iowa Code section 814.6). Under Iowa law a deferred

judgment

       means a sentencing option whereby both the adjudication of
       guilt and the imposition of a sentence are deferred by the
       court and whereby the court assesses a civil penalty as
       provided in section 907.14 upon the entry of the deferred
       judgment.     The court retains the power to pronounce
       judgment and impose sentence subject to the defendant’s
       compliance with conditions set by the court as a requirement
       of the deferred judgment.

Iowa Code § 907.1. It can be argued a deferred judgment is written in

disappearing ink because, upon successful completion of the conditions

set by the court and payment of fees, the defendant is discharged

“without entry of judgment.”           Id. § 907.3(1). 2     Moreover, “the court’s

criminal record with reference to the deferred judgment shall be

expunged.”       Id. § 907.9(4).      Van Haaften’s argument fails, however,

because it is the court’s factual-basis determination when accepting the

plea that provides the plea’s preclusive effect, not the subsequent

sentence and deferred judgment. The factual-basis determination is final

for issue preclusion purposes.

       Finality is a term of art for res judicata. For example, interlocutory

visitation orders subject to modification may have preclusive effect for
res judicata purposes. See, e.g., Spiker v. Spiker, 708 N.W.2d 347, 355

(Iowa 2006) (noting order granting continuing relief is “final” for

res judicata purposes as long as there has been no substantial change in

       2We   acknowledge our decision today is the third within a year that recognizes
collateral consequences based on the court’s acceptance of the plea notwithstanding the
defendant’s deferred judgment. See Daughenbaugh v. State, 805 N.W.2d 591, 592, 598
(Iowa 2011) (defendant lost federal pharmacy license as result of a plea to three felonies
for taking prescription pills notwithstanding the deferred judgment); State v.
Deng Kon Tong, 805 N.W.2d 599, 603 (Iowa 2011) (holding a guilty plea pursuant to a
deferred judgment is a conviction for purposes of the felon-in-possession-of-a-firearm
statute, Iowa Code section 724.26).
                                     12

circumstance).    And judgments are given res judicata effect during

appeals.   Peterson v. Eitzen, 173 N.W.2d 848, 850 (Iowa 1970) (“The

judgment of the trial court is res judicata until set aside, modified or

reversed.”); see also N. Star Steel Co. v. MidAmerican Energy Holdings Co.,

184 F.3d 732, 737 (8th Cir. 1999) (“Under Iowa law, issue preclusion

may be applied to a trial court’s ruling on the merits of an issue despite

the pendency of an appeal from that ruling.”); Restatement (Second) of

Judgments § 13 cmts. c, f, at 133, 135 (recognizing preclusive effect of

judgments notwithstanding pending appeal or collateral attack).           The

Restatement defines “final judgment” to include “any prior adjudication

of an issue in another action that is determined to be sufficiently firm to

be accorded conclusive effect.” Restatement (Second) of Judgments § 13,

at 132.

      Our cases are consistent with decisions in other jurisdictions that

“have relaxed traditional views of the finality requirement by applying

issue preclusion to matters resolved by preliminary rulings or to

determinations of liability that have not yet been completed by an award

of damages or other relief.” 18A Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 4434, at 110–11 (2d

ed. 2002) (collecting cases).

      Finality for purposes of res judicata requires that a firm and

considered decision has been made by the court:

      [T]o hold invariably that [finality] is not to be permitted until
      a final judgment in the strict sense has been reached in the
      first action can involve hardship . . . .          In particular
      circumstances the wisest course is to regard the prior
      decision of the issue as final for the purpose of issue
      preclusion without awaiting the end judgment. . . . Before
      doing so, the court should determine that the decision to be
      carried over was adequately deliberated and firm, even if not
      final in the sense of forming a basis for a judgment already
      entered. Thus preclusion should be refused if the decision
                                     13
      was avowedly tentative. On the other hand, that the parties
      were fully heard, that the court supported its decision with a
      reasoned opinion, that the decision was subject to appeal or
      was in fact reviewed on appeal, are factors supporting the
      conclusion that the decision is final for the purpose of
      preclusion.

Restatement (Second) of Judgments § 13 cmt. g, at 136. Example three

illustrates how a preliminary ruling may be final for res judicata

purposes:

              In a jurisdiction that permits “split” trials (a trial of
      liability followed, if liability is found, by a separate trial to
      ascertain the damages), the jury in a negligence case finds
      for the plaintiff A as to liability, the defendant B having
      denied his own negligence and pleaded contributory
      negligence on the part of A.            Under the law of the
      jurisdiction, B cannot appeal at this point as there is no
      judgment that qualifies as final for that purpose; an
      appealable judgment would be reached later, when, in the
      second phase of trial, another jury assessed the damages.
      But prior to the second phase, the jury’s verdict as to
      liability may be held conclusive as to the issues of A’s and
      B’s negligence in any other action between them in which the
      same issues appear.

Id. § 13 cmt. g, illus. 3, at 137.

      The illustration is analogous to this case. Here, the district court

was required under criminal procedure rule 2.8 to find a factual basis for

Van Haaften’s Alford plea before accepting the plea and later imposing

sentence and judgment.          Two separate judicial determinations are

made—whether the plea is supported by a factual basis and, if so, the

appropriate sentence and judgment.        See State v. Deng Kon Tong, 805

N.W.2d 599, 601 (Iowa 2011) (distinguishing between adjudication of

guilt “established . . . through a plea” and “postplea . . . judgment and

sentencing” in construing the statutory term “conviction”). In this case,

the district court made these separate determinations six weeks apart.

Van Haaften had forty-five days to file a motion in arrest of judgment to
                                     14

challenge her plea before sentencing but declined to do so. Iowa R. Crim.

P. 2.24(3)(b).

      We give preclusive effect to a guilty plea or Alford plea because the

district court’s factual-basis determination satisfies the “raised and

litigated” element for issue preclusion. Ideal Mut. Ins. Co., 319 N.W.2d at

295; Aid Ins. Co. (Mut.), 336 N.W.2d at 440. Van Haaften observes those

cases do not involve a deferred judgment. The issue preclusion analysis,

however, does not turn on the sentence imposed. Rather, these cases

apply issue preclusion based on the district court’s “factual basis”

determination for accepting the guilty plea or Alford plea.

      The district court’s factual-basis determination contains the

hallmarks of res judicata finality—it is “subject to appeal,” “adequately

deliberated,” and “procedurally definite.”       Restatement (Second) of

Judgments § 13 cmt. g, at 136. The defendant may effectively appeal the

district court’s factual-basis determination by filing a motion in arrest of

judgment within forty-five days of her plea. Iowa R. Crim. P. 2.24(3)(a)

(“A motion in arrest of judgment is an application by the defendant that

no judgment be rendered on a finding, plea, or verdict of guilty.”). The

district court cannot enter final judgment until fifteen days after the plea,

thus ensuring the defendant an opportunity to challenge the plea. Id. r.

2.23(1).   The district court’s denial of the defendant’s motion is an

appealable ruling pursuant to Iowa Code section 814.6. See, e.g., State

v. Myers, 653 N.W.2d 574, 581 (Iowa 2002) (reviewing district court’s

denial of motion in arrest of judgment for abuse of discretion); State v.

Speed, 573 N.W.2d 594, 597–98 (Iowa 1998) (same).

      The factual-basis determination “guarantees adequate exploration

of the issues” and that “criminal liability is fully explored by the parties

and the court and a judicial determination is made with respect to the
                                    15

essential elements of the crime.” Ideal Mut. Ins. Co., 319 N.W.2d at 296.

“We think a result is fair which precludes relitigation concerning an

essential element of a crime when the accused has tendered a guilty plea

. . . and the court has ascertained that a factual basis exists for the plea

and accepts it.” Id. at 295.

      For these reasons, entry of a deferred judgment does not alter the

preclusive effect of the district court’s decision to accept a guilty plea.

Accordingly, we hold the district court’s factual-basis determination

accepting her Alford plea was a final adjudication of the essential

elements of Van Haaften’s charge of first-degree theft.

      C. EMCC May Use Van Haaften’s Alford Plea to Establish Her

Civil Liability.   Van Haaften claims EMCC should not be permitted to

use offensive issue preclusion in this case.      In Hunter, we overturned

long-standing precedent that required mutuality of parties. 300 N.W.2d

at 125.   We allowed the offensive use of issue preclusion unless the

defendant “lacked a full and fair opportunity to litigate the issue in the

first action or unless other circumstances justify affording him an

opportunity to relitigate the issue.”    Id.   The Restatement (Second) of

Judgments identifies such other circumstances when it is inappropriate

to allow offensive use of issue preclusion:

           (1) Treating the issue as conclusively determined
      would be incompatible with an applicable scheme of
      administering the remedies in the actions involved;

            (2) The forum in the second action affords the party
      against    whom      preclusion     is   asserted     procedural
      opportunities in the presentation and determination of the
      issue that were not available in the first action and that
      might likely result in the issue's being differently determined;

            (3) The person seeking to invoke favorable preclusion,
      or to avoid unfavorable preclusion, could have effected
      joinder in the first action between himself and his present
      adversary;
                                    16
            (4) The determination relied on as preclusive was itself
      inconsistent with another determination of the same issue;

             (5) The prior determination may have been affected by
      relationships among the parties to the first action that are
      not present in the subsequent action, or was based on a
      compromise verdict or finding;

            (6) Treating the issue as conclusively determined may
      complicate determination of issues in the subsequent action
      or prejudice the interests of another party thereto;

            (7) Other circumstances make it appropriate that the
      party be permitted to relitigate the issue.

Id. (quoting Restatement (Second) of Judgments § 88 (Tentative Draft No.

2, 1975) (now Restatement (Second) of Judgments § 29)).

      Van Haaften argues the second and fifth circumstances militate

against EMCC’s offensive use of issue preclusion in this case because her

plea was motivated by a desire to reduce her exposure to criminal

penalty and she cannot appeal her deferred judgment.            We have,

however, consistently allowed third parties to use guilty pleas offensively

to impose liability on the defendant in subsequent civil actions.      See
Ideal Mut. Ins. Co., 319 N.W.2d at 297; Aid Ins. Co. (Mut.), 336 N.W.2d at

440. In Aid Insurance Co. (Mutual), we expressly rejected the defendant’s

argument that offensive issue preclusion was improper because his

Alford plea was motivated by a desire to reduce criminal punishment.

336 N.W.2d at 440. We reasoned:

      The holding in [Ideal Mutual], however, does not depend on
      the accused person’s motivation in entering the guilty plea
      . . . . In fact, like Chrest, [the defendant in Ideal Mutual]
      sought to avoid issue preclusion in the subsequent civil
      action by alleging his plea was entered only because of the
      risk of conviction of a greater offense . . . .

Id. Also, as earlier explained, Van Haaften had procedural mechanisms
to appeal the district court’s determination her plea was supported by a
factual basis.   Iowa R. Crim. P. 2.24(3).   She chose not to appeal her
                                          17

Alford plea. We adhere to our precedent permitting third parties to use a
defendant’s guilty plea offensively in a subsequent civil action.
       For these reasons, we hold EMCC can use Van Haaften’s Alford
plea to first-degree theft to prevent Van Haaften from denying or
relitigating the essential elements of that offense.
       D. The       Essential       Elements         of    Van Haaften’s         Plea.
Van Haaften’s plea to first-degree theft only has preclusive effect as to
the essential elements of the offense. Ideal Mut. Ins. Co., 319 N.W.2d at
296.    This limitation is necessary to satisfy the elements of issue
preclusion. Id. at 294 (requiring issues to be “identical” and “material
and relevant” and “necessary and essential” in both proceedings).
Van Haaften argues the amount of her theft in excess of $10,000 is not
an essential element of first-degree theft. 3 The district court rejected the
argument and awarded EMCC judgment for $66,749.21.
       First-degree theft is defined as the “theft of property exceeding ten
thousand dollars in value.”          Iowa Code § 714.2.         Theft is defined as
“misappropriat[ion] [of] property . . . in the person’s possession or
control.” Id. § 714.1. First-degree theft thus consists of two essential
elements: (1) the misappropriation of property and (2) the property value
must exceed $10,000. Van Haaften is precluded from denying either of
these allegations in this subrogation action. EMCC, however, is alleging
Van Haaften misappropriated $57,759.21 from PCM.                        The specific
amount by which her theft exceeds $10,000 is not an essential element
of first-degree theft.      Her plea is valid whether she misappropriated
$10,000.01 or $57,759.21; therefore, she had no incentive in the



       3The   parties stipulate Van Haaften preserved this argument by raising it before
the district court at the unreported summary judgment hearing. Van Haaften renews
the argument again on appeal. We therefore find the argument was properly preserved.
                                     18

criminal proceeding to contest the amount by which her theft exceeded
$10,000.
      Our reasoning is consistent with the majority of courts considering
the issue that have refused to preclude litigation of damages in excess of
the threshold amount needed to establish the criminal offense. United
States v. Wight, 839 F.2d 193, 196 (4th Cir. 1987) (holding that, because
“the amount of his remuneration was not a necessary part of the plea
agreement [to theft], the district court should not have estopped Wight
from contesting the $70,107 amount”); Appley v. West, 832 F.2d 1021,
1026–27 (7th Cir. 1987) (holding defendant who pled guilty to embezzling
$957,000 was not precluded from contesting damages in the civil action
because the amount “was not a material fact of the indictment on which
the guilty plea was based”); United States v. Fletcher, No. 502-CV-493-
H3, 2005 WL 5290464 (E.D.N.C. Apr. 12, 2005) (“The greater weight of
authority . . . counsels in favor of denying the use of collateral estoppel
on the issue of damages where . . . the elements of the crimes did not
include specific minimum amounts required to convict defendant of false
claims.”), aff’d, 205 F. App’x 155 (4th Cir. 2006); State v. Thompson, 908
P.2d 329, 331 (Or. Ct. App. 1995) (holding defendant’s plea to
indictment, alleging $8000 theft was not an admission to the theft
amount).   But see Benedick v. Mohr, 600 N.E.2d 63, 67 (Ill. App. Ct.
1992) (affording preclusive effect to a restitution order for theft because it
“goes to the merits and forms a substantive part of the matter that is
being litigated in a hearing before the court”).
      We hold Van Haaften’s plea to first-degree theft does not preclude

her from contesting the amount by which her theft exceeds $10,000.
                                    19
    IV. A Genuine Issue of Material Fact Precludes Summary
Judgment on the Amount of Her Theft Exceeding $10,000.

      EMCC argues that, even if Van Haaften’s plea does not preclude
her from contesting the theft amount, it is still entitled to summary

judgment for $66,749.21 because Van Haaften’s summary judgment

resistance failed to create a material fact issue as to the theft amount.

We disagree.
      EMCC supported its motion for summary judgment with the
transcript of Van Haaften’s plea colloquy to establish her liability. See
Book v. Datema, 256 Iowa 1330, 1337, 131 N.W.2d 470, 474 (1964)
(admitting guilty plea to criminal operation of a motor vehicle as proof of
negligence in civil action), overruled on other grounds by Ideal Mut. Ins.
Co., 319 N.W.2d at 296. Van Haaften did not claim the transcript of her
plea colloquy was inadmissible. For the reasons addressed above, EMCC
was entitled to summary judgment in the amount of $10,000 under the
doctrine of issue preclusion based on Van Haaften’s Alford plea accepted
by the district court.
      EMCC, however, failed to show it is entitled to summary judgment
in excess of $10,000. EMCC attached several exhibits to its summary
judgment motion to establish Van Haaften misappropriated $57,759.21
from PCM. Included is a press release issued by the CPA firm stating
Van Haaften failed to deposit $57,759.21 into the Student Activity Fund,
the CPA firm’s independent auditor’s report, and a copy of a $66,749.21
check EMCC paid to PCM for its loss.       EMCC submitted no affidavit
testimony to authenticate those exhibits and no expert testimony of a
CPA to prove up the amount of the loss. Van Haaften objected that these
exhibits were inadmissible hearsay.       We agree those exhibits were
insufficient to entitle EMCC to summary judgment for the amount of its
claim above $10,000.     See Iowa R. Civ. P. 1.981(5) (the moving party
                                   20

“shall set forth such facts as would be admissible in evidence”); see also
Hildenbrand v. Cox, 369 N.W.2d 411, 414 (Iowa 1985) (disregarding
summary judgment affidavit because it was not supported by personal
knowledge and would not be admissible in evidence).
       Even when a motion for summary judgment is properly supported
by admissible evidence, summary judgment should not be granted if the
resisting party responds with “specific facts that show a genuine issue
for trial.”   Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234, 245
(Iowa 2006); accord Iowa R. Civ. P. 1.981(5). Van Haaften’s resistance
was supported by her affidavit testimony denying she misappropriated
funds. Her affidavit attached and discussed her bank and tax records.
Her affidavit describes how she processed Student Activity Fund deposits
and collections.    She stated deposits were made directly by coaches
during summer months and she did not exercise control over completed
deposit slips. Her affidavit explains her asset purchases, bank deposits,
and credit card activity during the relevant time period.    Her affidavit
stated her tax records provide an accurate reflection of her income
during the relevant times.    Her affidavit thus sets forth specific facts
disputing her exclusive control of the student activity account and
controverting the claim that her personal finances show a $57,759.21
misappropriation.
       We must view the evidence in the light most favorable to the
nonmoving party. C & J Vantage Leasing Co., 784 N.W.2d at 756. We
find Van Haaften’s affidavit testimony creates a genuine issue of material
fact as to the amount of the theft in excess of the $10,000 conclusively
established by her Alford plea. See Wernimont v. Wernimont, 686 N.W.2d
186, 191 (Iowa 2004) (holding nonmoving party’s affidavit created
genuine issue of material fact as to the existence of an employment
                                   21

relationship).   Accordingly, the district court erred in granting EMCC
summary judgment for $66,749.21.
      V. Disposition.
      We affirm the district court’s summary judgment establishing
Van Haaften’s civil liability to EMCC for theft and for damages of $10,000
based on issue preclusion. We reverse the summary judgment in excess
of that amount and remand for a trial on the remaining damages sought
by EMCC. Costs of this appeal are taxed equally to each party.
      AFFIRMED       IN   PART   AND    REVERSED      IN   PART;    CASE
REMANDED.
