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Driesen v. Iowa Department of Human Services

Court of Appeals of Iowa

March 21, 2018

JAY DRIESEN and RAYMOND EHRMAN, Plaintiffs-Appellants,
v.
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.

          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.

         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.

         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 ...


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