Aspire of Pleasant Valley v. Creighton

IN THE COURT OF APPEALS OF IOWA

No. 23-0459
Filed May 8, 2024

RIVERVIEW SNF OPERATOR LLC d/b/a ASPIRE OF PLEASANT VALLEY,
Plaintiff-Appellant,

vs.

MARILYN CREIGHTON and BRENDA JOYCE CREIGHTON-WILSON, in her
capacity as agent under power of attorney for Marilyn Creighton,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.

A creditor in a collection suit appeals the district court’s order dismissing its

claim against one of the defendants. APPEAL DISMISSED.

Rebecca A. Brommel and Joshua D. Hughes of Dorsey & Whitney LLP, Des

Moines, for appellant.

R. Douglas Wells of Gomez May LLP, Davenport, for appellees.

Heard by Ahlers, P.J., and Chicchelly and Buller, JJ.
2

AHLERS, Presiding Judge.

Riverview SNF Operator LLC, doing business as Aspire of Pleasant Valley

(Aspire), sued Marilyn Creighton and her daughter Brenda Creighton-Wilson in her

capacity as Marilyn’s agent1 pursuant to a power of attorney. Aspire alleged

Marilyn breached an implied contract after failing to pay for nursing home services

it provided to Marilyn and her now deceased husband. It alleged Brenda, as agent,

also breached an implied contract for the same failure to pay and that both Marilyn

and Brenda were unjustly enriched by the uncompensated services Aspire

provided for Marilyn and her husband.

Brenda moved to dismiss the claims against her. She argued she is not a

proper defendant in the action because she was not personally obligated to pay

Aspire and did not become personally liable simply by being Marilyn’s agent. The

district court granted her motion and dismissed Aspire’s claims against her. After

obtaining judgment against Marilyn, Aspire appealed the order dismissing Brenda

from the suit. Brenda countered by filing a motion with the supreme court asking

to dismiss the appeal as moot because she is no longer Marilyn’s agent under the

power of attorney. The supreme court ordered the motion to be submitted with the

appeal and then transferred the case to our court.

1 Throughout its briefs, Aspire consistently refers to Brenda as Marilyn’s “power of

attorney.” This conflicts with the statutory nomenclature. A power of attorney is
the writing that grants one person the authority to act in place of another. See
Iowa Code § 633B.102(9) (2022) (defining “power of attorney”). The person given
the authority to act in place of another via a power of attorney is called an “agent”
or “attorney in fact.” See id. § 633B.102(1) (defining “agent”). We will use the
statutory term “agent” to refer to Brenda’s role.
3

We begin with the mootness issue. The mootness doctrine permits a court

to decline to hear a case when, due to changed circumstances, there is no longer

a live controversy and the court’s decision will not matter. Riley Drive Ent. I, Inc.

v. Reynolds, 970 N.W.2d 289, 296 (Iowa 2022).

Aspire argues that we cannot dismiss the appeal as moot because Iowa

Rule of Appellate Procedure 6.1006(1)(a)(1)2 only allows for dismissal “based

upon the appellant’s failure to comply with an appellate filing deadline . . . , the

appellant’s filing of a document that fails to substantially comply with the appellate

rules or a court order, or an allegation that the appropriate appellate court lacks

jurisdiction or authority to hear the case.” But mootness is an additional ground

for dismissing an appeal. In re Guardianship of Kennedy, 845 N.W.2d 707, 710–

11 (Iowa 2014) (considering dismissal of the appeal on mootness grounds even

when there are no grounds for dismissal under rule 6.1006(1)(a)); see also

Maghee v. State, 773 N.W.2d 228, 231‒35 (Iowa 2009) (deciding mootness issue

after appellant died while appeal was pending); In re L.H., 480 N.W.2d 43, 45 (Iowa

1992) (deciding whether issue had become moot during pendency of further

review); Kuehl v. Sellner, No. 19-1980, 2021 WL 3392813, at *1‒3 (Iowa Ct. App.

Aug. 4, 2021) (deciding whether issue had become moot based on event occurring

five months after filing of notice of appeal). As mootness provides a ground for

2 Since the filing of the parties’ appellate briefs, revisions to the rules of appellate

procedure went into effect and Iowa R. App. P. 6.1006(1)(a) was split into several
subparagraphs. The part of former rule 6.1006(1)(a) at issue here is now located
at rule 6.1006(1)(a)(1), to which we will refer. See Iowa Supreme Ct. Supervisory
Order, In the Matter of Adopting Amendments to Chapter 6 of the Iowa Court
Rules, Iowa Rules of Appellate Procedure 3 (February 29, 2024).
4

dismissal outside the confines of rule 6.1006(1)(a)(1), we reject Aspire’s argument

to the contrary.

Aspire next contends we cannot consider Brenda’s mootness claim

because it relies on facts outside the record. While we generally cannot consider

facts that are not part of the record, see Alvarez v. IBP, Inc., 696 N.W.2d 1, 3 (Iowa

2005), the general rule does not apply to questions of mootness. Riley, 970

N.W.2d at 296. Since entry of the district court’s order dismissing Brenda from the

suit, there is no dispute that Brenda no longer serves as Marilyn’s agent and that

she cannot do so in the future due to a founded allegation that Brenda committed

dependent adult abuse against Marilyn. See Iowa Code § 633B.110(2)(e)

(terminating an agent’s authority under a power of attorney when “[t]he agent is

named as having abused the principal in a founded dependent adult abuse

report”). After Brenda relinquished her position as Marilyn’s agent, Brenda’s

brother took over the role of serving as Marilyn’s agent and confessed judgment

against Marilyn in favor of Aspire. We rely on these facts to address the mootness

issue.

Aspire’s argument that the case is not moot is best summed up by this

excerpt from its appellate brief:

[T]his case implicates a (yet unpaid) monetary demand . . . . Aspire
is not seeking an abstract declaration that Brenda could be or might
be liable; Aspire instead seeks to actually hold Brenda liable in her
role as power of attorney[3] to Marilyn and collect judgment from the
assets held by Brenda during the time she served in such a role.
Whether Brenda actually holds any of those assets now is immaterial
to the question before the [c]ourt, which is whether the [d]istrict
[c]ourt improperly dismissed Brenda on the record before it.

3 As noted in footnote one, the proper term here is “agent,” but we quote the

terminology used in Aspire’s brief.
5

Contrary to Aspire’s argument, the fact that Brenda no longer holds assets on

Marilyn’s behalf—assuming she ever did—is the crux of the matter. Aspire has

made it clear that it seeks judgment against Brenda only in her representative

capacity and not personally.4 But Aspire’s argument only makes sense if it were

suing Brenda in her personal capacity. Brenda is no longer Marilyn’s agent and is

prohibited from serving in that role in the future due to the founded dependent adult

abuse report. Brenda no longer has the right to do anything with Marilyn’s assets,

including paying Aspire. If this court were to reach the merits, we would only be

deciding the academic question of whether a creditor may sue the debtor’s agent

as a separate defendant from the debtor. Whether the answer is yes or no does

not affect Aspire and Brenda in this case. As the question whether an agent under

a power of attorney can be sued in the agent’s representative capacity is nothing

more than an academic exercise in this case, the issue is moot. See Riley, 970

N.W.2d at 296 (noting that courts do not exist to resolve academic questions of

law).

Aspire contends that, even if the question is moot, we should decide it on

the merits anyway. Aspire relies on two exceptions to the mootness doctrine—

voluntary cessation and public importance.

We first address the voluntary-cessation exception. This exception applies

when a defendant voluntarily stops performing the action challenged by the plaintiff

but could start again once the suit is dismissed. Id. at 297. In such cases, courts

4 Aspire’s reply brief admits that Aspire “does not seek damages against Brenda

personally in this action.”
6

generally decide to hear the matter out of concern that the defendant will be “free

to return to [its] old ways.” Id. at 296 (quoting Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). Iowa has not expressly

recognized this exception to the mootness doctrine. Id. But even if we did

recognize it, this exception cannot apply here because Brenda is legally prohibited

from acting again as Marilyn’s agent under a power of attorney by operation of

Iowa Code section 633B.110(2)(e).

The public-importance exception to the mootness doctrine gives us “the

discretion to decide a moot case if ‘matters of public importance are presented and

the problem is likely to recur.’” Id. at 298 (quoting Homan v. Branstad, 864 N.W.2d

321, 330 (Iowa 2015)). To decide whether to apply the public-importance

exception, we consider four factors: “(1) the private or public nature of the issue;

(2) the desirability of an authoritative adjudication to guide public officials in their

future conduct; (3) the likelihood of the recurrence of the issue; and (4) the

likelihood the issue will recur yet evade appellate review.” Id. (quoting Homan,

864 N.W.2d at 330).

Applying the four-factor test, we start with the first two factors and conclude

this case presents a wholly private issue—whether a creditor (a private entity) may

sue a private individual in her capacity as representative for another private

individual—that will provide little if any guidance to public officials. Cf. id.

(concluding challenge by bar operators to governor’s COVID-19 public health order

was of a public nature); Women Aware v. Reagen, 331 N.W.2d 88, 92 (Iowa 1983)

(determining agency’s decision not to implement benefit increase expressly

required by the legislature “arguably is a matter of substantial public interest”).
7

Aspire claims that resolving this question would provide guidance to Iowans who

have executed or are considering executing a power of attorney. But the Iowa

Rules of Civil Procedure already provide guidance on the roles of representatives

in lawsuits. See Iowa. Rs. Civ. P. 1.201, .226. The private nature of this dispute,

the resolution of which will not guide public officials, cuts against applying the

public-importance exception.

Perhaps more importantly, we don’t imagine this issue recurring, and if it

did, it is unlikely to evade review. See Riley, 970 N.W.2d at 299 (“Our precedents

make clear that we do not invoke the public-importance exception unless the

dispute is likely to recur.”). As representatives, agents simply stand in the

principal’s shoes, so if the agent fails to pay a creditor of the principal, for example,

the creditor would naturally sue the principal, not the agent. See Brownell v.

Johnson, No. 19-0847, 2020 WL 6482732, at *6 (Iowa Ct. App. Nov. 4, 2020)

(“Essentially the agent acting under a power of attorney steps into the shoes of the

principal to act for the best interests of the principal.”); see also Ames Tr. & Sav.

Bank v. Reichardt, 121 N.W.2d 200, 204 (Iowa 1963) (“The administratrix, as

personal representative, stepped into the shoes of the decedent . . . .”). We again

highlight the fact that Aspire sued Brenda only in her representative capacity and

not in her individual capacity. Aspire has not provided a clear explanation—nor

can we think of one—as to what benefit suing the agent in the agent’s

representative capacity adds to a claim against the principal such that others would

start bringing similar suits. And even if suits against agents in their representative

capacity started popping up, it is unlikely that the issue of whether they are a proper

party will evade review. This case became moot because a founded allegation of
8

dependent adult abuse prevented Brenda from staying in her role as agent—an

unusual situation not likely to recur. Applying the four-factor test, we determine

the public-importance exception does not apply here.

Because the issue Aspire raises on appeal is moot, and neither exception

to the mootness doctrine relied upon by Aspire applies, we dismiss Aspire’s

appeal.

APPEAL DISMISSED.