IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36535
GEORGE DAVIDSON, ) 2011 Opinion No. 2
)
Plaintiff-Appellant, ) Filed: January 26, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
JESYCA HOOD DAVIDSON; BENJAMIN )
PUCKETT; KATHY GUTHRIE; and JOHN )
PRIOR, )
)
Defendants-Respondents. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Timothy Hansen, District Judge.
Orders of the district court granting motions to dismiss and granting summary
judgment, affirmed; order granting partial summary judgment, reversed and case
remanded.
George Davidson, Nampa, pro se appellant.
Troupis Law Office, P.A.; Christ T. Troupis, Eagle, for respondents Jesyca Hood
Davidson and Kathy Guthrie.
Michael E. Duggan, Nampa, for respondent Benjamin Puckett.
John Prior, Nampa, pro se respondent.
________________________________________________
GRATTON, Chief Judge
George Davidson (Davidson) appeals from the district court’s orders dismissing his
complaint as to respondent John Prior (Prior); granting summary judgment as to respondent
Benjamin Puckett (Benjamin), and partial summary judgment as to respondent Jesyca Hood
Davidson (Jesyca); as well as dismissing the remainder of his claims against respondents Jesyca
and Kathy Guthrie (Kathy).
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I.
FACTS AND PROCEDURAL BACKGROUND
On February 19, 2008, Davidson, acting pro se, filed a complaint against Jesyca
(Davidson’s former daughter-in-law), Benjamin (Jesyca’s boyfriend), Kathy (Jesyca’s mother),
and Prior (Jesyca’s divorce attorney), alleging specific claims of intentional infliction of
emotional distress, abuse of process, slander per se, conspiracy, and negligence. All of the
claims stem from Davidson’s assertion that these individuals all participated, to some extent, in
falsely accusing him of child molestation and perpetuating those allegations in court and in
public.
Respondents maintain that on July 17, 2007, Jesyca was at her apartment with her
boyfriend, Benjamin, and her two daughters, S.D. and R.A.D., who were ages three and two at
the time. According to Jesyca, her daughter, S.D., exposed her genital area. Benjamin asked
S.D. who taught her to do that, and she replied “Grandpa,” which they inferred meant Davidson.
Jesyca claimed to have knowledge that S.D.’s father, Renato, who is Jesyca’s ex-husband and
Davidson’s son, had been molested by Davidson when he was a child and that this knowledge
led her to believe that S.D. had also been molested by Davidson.
After conferring with Kathy, Jesyca and Benjamin took S.D. to the hospital for a medical
examination. The examination did not reveal physical signs of abuse. However, Jesyca claimed
that she remained concerned that S.D.’s safety was at risk if left unattended with Davidson.
Based upon her concerns, Jesyca, along with Benjamin, filed a report of suspected child abuse
with the Canyon County Sheriff’s office on July 19, 2007. The sheriff’s office investigated the
allegations and forwarded the case to the prosecuting attorney’s office, which ultimately decided
not to proceed with charges against Davidson.
During the time period involving the incident with S.D., Jesyca and Renato were engaged
in a joint custody and visitation dispute with respect to their two children. The allegations that
Davidson had abused his son, Renato, and his granddaughter, S.D., were presented during
hearings on the custody and visitation dispute. On July 24, 2007, Jesyca filed two sworn
petitions for protection orders against Davidson and Renato, again describing her account of the
incident with S.D. and stating that “[Davidson] has been known to molest his son [Renato].”
Jesyca requested supervised visitation because she was concerned that Renato would take the
children to Davidson’s home. Both petitions were dismissed.
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In his complaint, Davidson claimed that respondents filed a false report of sexual abuse
with the intent to “cause serious harm to [Davidson],” that they “attempted to use the false
allegations to coerce [Davidson] into dropping a small claims action and to coerce [Davidson’s]
son to drop a Motion to Modify Child Custody,” that they “spread these false allegations in
public” knowing that they were untrue thereby causing damage to Davidson’s reputation, that
they acted in concert with one another in order to “personally destroy [Davidson],” and that they
were negligent in breaching their statutory duties “to not make false allegations of a crime they
knew or should have known had never taken place.”
Respondent Prior filed a motion to dismiss on grounds that Davidson failed to properly
serve him, Idaho Rules of Civil Procedure 12(b)(5) and 4(d)(2), and that Davidson failed to state
a claim upon which relief could be granted, I.R.C.P. 12(b)(6). At the hearing held on the motion
to dismiss, the district court stated that it would take the I.R.C.P. 12(b)(6) issue under
advisement, but indicated that it intended to grant the motion to dismiss with respect to I.R.C.P.
12(b)(5) and 4(d)(2). The court subsequently issued a written decision granting Prior’s motion
on both grounds. Davidson filed a notice of appeal, which was conditionally dismissed.
Thereafter, Davidson sought a permissive appeal, which was ultimately dismissed. Davidson
filed a motion for leave to amend his complaint to include Prior again as a defendant and raising
new allegations against him, as well as raising a claim for punitive damages against the other
respondents. The court granted the motion with respect to adding a claim for punitive damages,
but denied the motion to again include Prior as a party.
The remaining respondents, Jesyca, Kathy, and Benjamin, filed motions for summary
judgment with accompanying affidavits. Davidson filed an opposition to the motions, along with
supporting affidavits and exhibits. At a hearing held on the motion, the district court indicated
that in reviewing Davidson’s claim, it noted that it was based, in part, upon Idaho Code § 16-
1607, a code provision under the Child Protective Act (CPA). The court indicated that I.C. § 16-
1607 provides that a cause of action arising under that provision is to be tried to the court rather
than a jury. The court stated that its purpose for raising the issue was to notify the parties and to
request briefing on the issue of “whether or not there is a right to a jury trial under those
provisions.”
After receiving extensive briefing from the parties on the issue, the court issued its
decision, acknowledging that Davidson was entitled to a jury trial. However, the court agreed
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with the parties that the question of immunity, pursuant to I.C. § 16-1606, was for the court to
decide rather than a jury and deemed the summary judgment motion fully submitted for decision.
The court subsequently issued a written decision, concluding that Jesyca and Benjamin
had reported allegations of abuse in good faith and, thus, were immune from suit pursuant to
I.C. § 16-1606, regarding any statements made in relation to those reports. The court also
concluded that because Kathy did not file a report pursuant to I.C. § 16-1605(1), she was not
immune from suit. The court granted summary judgment as to Benjamin and partial summary
judgment as to Jesyca. The court determined, however, that there were genuine issues of
material fact with respect to whether Jesyca and Kathy made statements to persons not involved
with the report, and denied summary judgment as to those statements.
Davidson filed a motion for reconsideration, which was denied. At a status conference
held on the remaining claims, Davidson indicated that because the majority of his case had been
dismissed, his remaining claims should be dismissed in order to allow him the opportunity to
appeal. The court expressed its understanding of Davidson’s request as being that the court
would “simply dismiss the balance of the case but he would reserve the right to go ahead and
appeal any decisions [the court] had made concerning immunity or probably any other issues that
[the court] had addressed, as well.” Respondents did not object to that request, and Benjamin’s
attorney requested that the dismissal be with prejudice. Davidson did not object. Therefore, the
court granted Davidson’s motion to dismiss with prejudice any remaining claims in the case.
Davidson now appeals.
II.
ANALYSIS
A. Dismissal of Claims Against Prior
At the hearing on the motion to dismiss, Prior argued, citing Campbell v. Reagan, 144
Idaho 254, 159 P.3d 891 (2007), that he was not properly served since Davidson had attempted
to serve him by mailing a copy of the summons and complaint to his law office rather than
personally serving him. Prior also asserted that Davidson’s complaint should be dismissed
pursuant to I.R.C.P. 12(b)(6) because Davidson’s allegations were based upon statements Prior
made during judicial proceedings, which he argued, were absolutely privileged under Malmin v.
Engler, 124 Idaho 733, 864 P.2d 179 (Ct. App. 1993).
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Davidson’s primary argument on appeal is that the district court erred in relying upon
Malmin in granting the motion to dismiss. He contends that if this Court agrees that the district
court’s reliance on Malmin was misplaced, it should also find that good cause exists to waive the
six-month time limit for service and allow him on remand to re-serve Prior in person. Because
we find the issue relative to service of process dispositive, we need not address Davidson’s
contention that the district court erred in granting the motion to dismiss on the basis of I.R.C.P.
12(b)(6).
1. Insufficiency of service of process
In response to Prior’s argument that he had not been properly served, Davidson argued:
The point of the process of service is that the person who is being sued
knows they are being sued so that somebody doesn’t come and start taking their
property away from them sometime in the future and they have no idea what
happened. He knows he was being sued, he was served at his office. He accepts
process of service at his office.
I pointed out in my objection that on behalf of my son, I served other
papers there on him before and he accepted them. His secretary signs for them.
So that argument, too, in my opinion is moot.
The district court rejected Davidson’s argument, noting that “in this case there is absolutely no
dispute that service of process was not compliant with Rule 4(d)(2) of the Rules of Civil
Procedure.” Because Davidson still had time to properly serve Prior, the court specifically
acknowledged that granting a dismissal pursuant to I.R.C.P. 12(b)(5) and 4(d)(2) would not
preclude Davidson from pursuing his legal action against Prior and, thus, he would not suffer any
undue prejudice. The court also expressed its concern that if it were to accept Davidson’s
argument, it would be rendering the Idaho Rules of Civil Procedure meaningless. We agree.
Idaho Rule of Civil Procedure 4(d)(2) sets forth the requirements for service upon
individuals, as follows:
Upon an individual . . . by delivering a copy of the summons and of the complaint
to the individual personally or by leaving copies thereof at the individual’s
dwelling house or usual place of abode with some person over the age of eighteen
(18) years then residing therein or by delivering a copy of the summons and of the
complaint to an agent authorized by appointment or by law to receive service of
process.
As noted by the district court, Davidson’s service of process did not comply with the rule.
Davidson does not provide any explanation on appeal for his non-compliance. In his objection to
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Prior’s motion, he argued that he only had Prior’s law office address, and that he was unaware of
Prior’s home address. He further asserted, “it seems an unwieldy burden to place upon Davidson
to discover a home address when Mr. Prior himself, on the face of his Motion, uses the very law
office address where Davidson had him served by certified mail.” This argument
misunderstands the rule, as Davidson was free to personally serve Prior at his law office. There
is certainly a distinction, as Prior argued below, between Prior as an individual and Prior’s law
office. Service upon one does not constitute service upon the other. The Rules of Civil
Procedure are clear as to what is required, and, as the district court found, those requirements
were not met.
2. Good cause
Davidson asserts that good cause exists such that he should be allowed “to re-serve Prior
in person to properly re-join him as a defendant.” Davidson argues that if service by certified
mail was improper and the district court was correct to dismiss the complaint on that basis, he
still could have personally served Prior within the six-month time period set forth in I.R.C.P.
4(a)(2). He contends, however, that the court dismissed his complaint on another ground,
I.R.C.P. 12(b)(6), prior to expiration of the six-month period for service. While Davidson does
not explicitly articulate why good cause exists to waive the six-month time requirement, it
appears that he is arguing that because the district court also granted the motion to dismiss on the
immunity ground, good cause exists to relieve him of the six-month time requirement as
personally serving Prior would not have altered the outcome because of the court’s dismissal of
the complaint under I.R.C.P. 12(b)(6). Thus, he contends that should this Court conclude that
the district court erred in dismissing the complaint on that basis, we should “also order that the
six month time limit for service is waived for good cause.” We are unpersuaded.
The district court did not dismiss Davidson’s complaint as to Prior on the basis of
I.R.C.P. 4(a)(2). Therefore, good cause was never argued to the district court. As noted,
Davidson failed to provide any explanation for why he could not personally serve Prior. In any
event, good cause does not exist to waive the time requirements.
If the summons and complaint are not served upon the defendant within six months after
filing the complaint “and the party on whose behalf such service was required cannot show good
cause why such service was not made within that period, the action shall be dismissed as to that
defendant without prejudice . . . .” I.R.C.P. 4(a)(2). There is no bright-line test in determining
6
whether good cause exists. Martin v. Hoblit, 133 Idaho 372, 375, 987 P.2d 284, 287 (1999).
“[W]hether legal excuse has been shown is a matter for judicial determination based upon the
facts and circumstances in each case.” Id. The focus of the good cause inquiry is on the six-
month time period following the filing of the complaint. Id. “If a plaintiff fails to make any
attempt at service within the time period of the rule, it is likely that a court will find no showing
of good cause.” Id. at 377, 987 P.2d at 289; see also Campbell v. Reagan, 144 Idaho 254, 257,
159 P.3d 891, 894 (2007). Courts look to factors outside of the plaintiff’s control including
sudden illness, natural catastrophe, or evasion of service of process. Martin, 133 Idaho at 377,
987 P.2d at 289. Lack of prejudice is irrelevant to the good cause analysis. Id. at 375, 987 P.2d
at 287.
At the hearing on the motion to dismiss, the district court indicated that Davidson would
not be prejudiced by a dismissal pursuant to I.R.C.P. 12(b)(5) and 4(d)(2), as Davidson could
simply cure the defect by complying with the rule. Davidson acknowledges on appeal that the
dismissal on that basis occurred prior to the expiration of the six-month time requirement.
However, Davidson did not avail himself of the opportunity to personally serve Prior. Rather, he
waited until the court also dismissed the complaint on another ground. Davidson chose how to
proceed with his case, and his failure to comply with the Idaho Rules of Civil Procedure does not
support a finding of good cause. Moreover, the court’s action in dismissing the complaint
on another ground does not constitute good cause for why service was not made within the six-
month time period.
B. Voluntary Dismissal of Claims Against Jesyca and Kathy
As noted, following the court’s order regarding summary judgment, Davidson voluntarily
dismissed the remainder of his claims against Jesyca and Kathy that related to statements made
to third parties. The court understood Davidson’s request as “simply dismiss[ing] the balance of
the case but . . . reserv[ing] the right to go ahead and appeal any decisions [the court] had made
concerning immunity or probably any other issues that [the court] had addressed, as well.” It
was requested that the dismissal be with prejudice, and Davidson did not object. The court
ultimately granted Davidson’s motion to dismiss with prejudice any remaining claims in the
case. Davidson then appealed the order granting his own motion.
While Davidson acknowledges in his opening brief that he “requested, and was granted
by the trial court, voluntary dismissal of all remaining claims not covered by partial summary
7
judgment so as to facilitate the undertaking of this appeal,” he argues that the dismissal was not
truly voluntary. Respondents argue that Davidson has not cited error or presented any argument
or authority to overturn the dismissal order, see Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d
434, 440 (Ct. App. 1997), that he is judicially estopped from claiming the trial court erred in
entering a dismissal order at his request, see Lawrence v. Hutchinson, 146 Idaho 892, 900, 204
P.3d 532, 540 (Ct. App. 2009), and that the invited error doctrine bars Davidson’s appeal of the
dismissal order, see Thomson v. Olsen, 147 Idaho 99, 106, 205 P.3d 1235, 1242 (2009). We
agree.
Davidson had the opportunity to litigate the remainder of his claims but, because he
believed he would not prevail at trial, requested that they be dismissed. The district court cannot
be faulted for Davidson’s choice to proceed in this fashion. Thus, the district court did not err in
granting Davidson’s motion to dismiss the remainder of the claims against Jesyca and Kathy
with prejudice. Since Kathy was not involved in reporting abuse to authorities, as opposed to
private parties, the voluntary dismissal operates to conclude all claims against her. However,
Davidson’s claims against Jesyca (and Benjamin) relating to false reporting remain and are
addressed below.
C. Summary Judgment on Claims Against Jesyca and Benjamin
Having concluded that the district court did not err in granting Prior’s motion to dismiss
or in granting Davidson’s motion to voluntarily dismiss the remainder of his claims against
Jesyca and Kathy, the only claims remaining are those with respect to the alleged false reporting
of abuse by Jesyca and Benjamin, and whether the court erred in granting summary judgment.
At the hearing on the motion for summary judgment, respondents argued, as they do on appeal,
that they had a statutory duty to report child abuse, that they reported the alleged child abuse in
good faith, and that they were entitled to statutory immunity because they reported in good faith.
While Davidson did not directly respond to respondents’ arguments, he did generally contest
their allegations that any abuse occurred. The district court ultimately granted summary
judgment to Jesyca and Benjamin on the claim that they were entitled to statutory immunity
under I.C. § 16-1606.
On appeal, Davidson contends that the district court applied the wrong standards in
granting Jesyca and Benjamin statutory immunity under I.C. § 16-1606. This appeal raises
several issues, including: (1) who is required to report instances of child abuse under I.C. § 16-
8
1605; (2) to whom does the immunity from suit provision of I.C. § 16-1606 apply; (3) how does
the immunity from suit provision apply; (4) the scope of immunity; (5) the role of the court
versus a jury; (6) the proper standard for summary judgment in cases involving claims of false
reporting of child abuse; and (7) application of the summary judgment standard to this case.
Because we conclude that Davidson has demonstrated genuine issues of material fact such that
his claim survives summary judgment, we need not address every issue presented in this appeal.
Therefore, we address only the questions of whether Davidson’s claim of false reporting of child
abuse is to be tried to a court or a jury, whether the traditional summary judgment standard
applies to such claims, and whether summary judgment was properly granted.
1. Court versus jury
Before ruling on the motion for summary judgment, the district court raised, sua sponte,
the issue of whether a portion of Davidson’s case was to be tried before the court rather than a
jury due to the fact that Davidson based his complaint, at least in part, upon provisions in the
CPA. 1 The court quoted I.C. § 16-1613(1), which provides that “[p]roceedings under [the CPA]
shall be dealt with by the court at hearings separate from those for adults and without a jury.”
The court indicated that such proceedings “would include a petition . . . for civil damages as a
result of the bad faith filings of claims of abuse.” The court also stated that, according to its
reading of the relevant provisions, a cause of action arising under the CPA, including a claim for
damages under I.C. § 16-1607, must be tried to a court and not a jury.
After receiving briefing from the parties on the issue, the district court ultimately
determined:
A grant of immunity is for determination by the court and not a jury and
should be resolved as early in the proceedings as possible and, in any event, prior
to trial. See, e.g., Rosenberger v. Kootenai County Sheriff’s Department, 140
Idaho 853, 856-857, 103 P.3d 466 (2004); also, F.A., P.A., and M.N., M.A. & C.A.
v. W.J.F., Jr. & S.F., 280 N.J. Super. 570, 579, 656 A.2d 43, 47-48 (Super. Ct.
App. Div. 1995).
1
Davidson alleged in his complaint that respondents had made a number of false reports,
and he specifically invoked the provisions of I.C. §§ 16-1606 and 1607, relating to false
reporting, in his claim of conspiracy, and I.C. §§16-1605-1607, in his claim of negligence.
Davidson also requested compensatory damages, “plus treble damages under IC 16-1607 if it is
found that the allegations referred to herein were made falsely or with malice.”
9
While the district court originally raised the immunity question in the context of the CPA, it
ultimately relied upon Rosenberger and out-of-state case law in making its determination that the
issue was to be decided by the court rather than a jury.
We agree with the district court that the question of immunity is for the court. The
court’s reliance upon Rosenberger and out-of-state case law, however, was misplaced. An
appellate court may affirm a lower court’s decision on a legal theory different from the one
applied by that court. In re Estate of Bagley, 117 Idaho 1091, 1093, 793 P.2d 1263, 1265 (Ct.
App. 1990). Not only is Rosenberger factually distinguishable, but the legal issue addressed in
that case bears little similarity to the issue presented here. Rosenberger, while addressing a
question of immunity, did so in the context of whether police officers were entitled to qualified
immunity in a 42 U.S.C. § 1983 claim alleging a violation of Fourth Amendment rights through
excessive use of force during the arrest. We decline to extend the law applicable to excessive
use of force claims to claims alleging false reporting of child abuse. Moreover, we are not bound
to follow out-of-state case law, particularly where an Idaho statute controls the issue.
In this case, Davidson alleged that he was entitled to damages pursuant to I.C. § 16-1607.
Idaho Code § 16-1607 provides:
Any person who makes a report or allegation of child abuse, abandonment
or neglect knowing the same to be false or who reports or alleges the same in bad
faith or with malice shall be liable to the party or parties against whom the report
was made for the amount of actual damages sustained or statutory damages of two
thousand five hundred dollars ($2,500), whichever is greater, plus attorney’s fees
and costs of suit. If the court finds that the defendant acted with malice or
oppression, the court may award treble actual damages or treble statutory
damages, whichever is greater.
(Emphasis added.) This statute provides for liability in cases of false reporting of child abuse.
The statute is clear that where the court makes a finding of malice or oppression, it may award
exemplary damages. Because findings of fact, including those involving punitive damages, are
typically for a jury to make, the explicit reference to the court making such a finding indicates
that the entire matter is to be tried before the court. Additionally, as noted, I.C. § 16-1613(1)
provides that procedures under the CPA are to be tried by the court. Consequently, the question
of whether a person makes a report or allegation of child abuse knowing it to be false or reports
in bad faith or with malice is to be tried to a court rather than a jury.
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2. Summary judgment standard
Rather than applying the traditional summary judgment standard, the court set forth the
standard as follows:
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, and admissions on file, together with the affidavits, if any, show there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” I.R.C.P. 56(c). The district court is to “liberally
construe facts in the existing record in favor of the nonmoving party, and to draw
all reasonable inferences from the record in favor of the nonmoving party.” Bonz
v. Sudweeks, 119 Idaho 539, 541, 808 P.2d 876 (1991) (citations omitted).
However, issues of material fact do not preclude summary judgment on the basis
of immunity from suit. See Rosenberger v. Kootenai County Sheriff’s
Department, 140 Idaho 853, 857, 103 P.3d 466 (2004); also, May v. Southeast
Wyoming Mental Health Center, 866 P.2d 732, 738 (Wyo. 1993).
Thus, while the court acknowledged the traditional standard, it declined to follow that standard,
instead relying again upon Rosenberger and out-of-state case law. With respect to what standard
should apply to summary judgment proceedings in cases involving allegations of false reporting
of child abuse, two approaches have emerged.
The first approach, employed by the district court in this case, is to dispense with the
traditional summary judgment standard and simply allow the trial court to resolve the immunity
question. See May v. Southeast Wyoming Mental Health Center, 866 P.2d 732 (Wyo. 1993); see
also F.A. by P.A. v. W.J.F., 656 A.2d 43 (N.J. Super. A.D. 1995). In May, the Wyoming
Supreme Court, in applying their immunity provision, which includes a presumption of good
faith, concluded:
The well-known standard of review for summary judgments has only
minimal significance here. Rather, the summary judgments in this case can be
upheld on the basis of immunity. Therefore, we need not search the record to see
if there are disputed material facts, nor need we examine in detail the materials in
support of summary judgment or in opposition.
May, 866 P.2d at 738. Thus, the court in May opted not to apply the traditional summary
judgment standard, choosing instead to employ a standard, pursuant to Wyoming’s immunity
statute, of whether the plaintiff had presented sufficient evidence to overcome the presumption of
good faith or shown that the defendants did not act in good faith.
The New Jersey Superior Court in F.A. by P.A. relied upon May’s reasoning. In that
case, the court determined that the legislature’s intent to protect persons who report suspected
11
child abuse “can be easily frustrated if complying with the duty to report can subject the reporter
to costly and protracted civil litigation.” F.A. by P.A., 656 A.2d at 47. The court held that
summary judgment procedures should be used so that “immunity issues will be addressed and
determined speedily without extensive and burdensome discovery and trial preparation.” Id.
The court also concluded:
The use of an objective test [whether a reasonable person would have
reasonable cause to believe that a child has been abused] should also facilitate
speedy determination by way of summary judgment. Objective findings do not
generally turn on such issues as intent, motive, credibility and the like, which
often preclude the granting of summary judgment.
F.A. by P.A., 656 A.2d at 47.
The second approach is that while a trial court is allowed to rule on issues of immunity, it
still must apply the traditional summary judgment standard to determine whether there are any
genuine issues of material fact with respect to whether a report of child abuse was made in good
faith. See e.g., J.E.B., et. al. v. Danks, 785 N.W.2d 741, 746-47 (Minn. 2010); Yuille v. State
Dept. of Social and Health Services, 45 P.3d 1107, 1110-1111 (Wash. Ct. App. 2002); Stratakis
v. Ferncliff Manor Home for Handicapped, 764 N.Y.S.2d 431, 432 (N.Y. App. Div. 2003); see
also Danny R. Veilleux, Validity, construction, and application of state statute requiring doctor
or other person to report child abuse, 73 A.L.R. 4th 782 (1989).
In J.E.B., the Minnesota Supreme Court addressed the question of whether the trial court
had properly granted statutory immunity at the summary judgment stage. The trial court had
determined that because the determination of immunity involved mixed questions of law and
fact, those questions were “left to the discretion of the trial court in the interest of judicial
economy.” J.E.B., 785 N.W.2d at 747. The supreme court concluded that the trial court had
used the wrong legal standard and that there was no “basis for departing from our traditional
summary judgment standard.” The court stated:
Under the traditional standard, the district court is not to find facts by
resolving disputes at the summary judgment stage, but is to determine whether,
when the evidence is construed in the light most favorable to the party opposing
summary judgment, there is a genuine issue of material fact.
Id. The court noted that the trial court’s confusion may have resulted from its reliance on a
previous Minnesota Supreme Court case stating, much like Rosenberger, that “[b]ecause the
determination of an immunity’s application is best decided by the trial court at the earliest
12
possible juncture, however, the trial court’s determination necessarily will include mixed
questions of law and fact.” Id. The J.E.B. court held that this statement did not “stand for the
proposition that the district court may resolve factual disputes at the summary judgment stage.”
The court further distinguished that case, by stating in that case, “[t]he factual predicate--the
existence of good faith--was undisputed.” Id.
The court noted that the trial court had entered judgment for the defendant because the
plaintiffs “ha[d] not presented substantial evidence that indicates that the defendant acted in bad
faith.” Id. at 747-48. The court held that the “substantial evidence” standard was not the correct
standard to apply on summary judgment. As such, the court determined that the granting of
summary judgment based on statutory immunity depends upon whether, when construing the
evidence in the light most favorable to the non-moving party, there is no genuine question of
material fact on either of the two prerequisites to immunity: (1) that the defendant knew, had
reason to know, or suspected that abuse occurred; and (2) that the defendant made her report in
good faith. Id. at 748. The court concluded that if there is a genuine issue of material fact as to
either of these prerequisites, then summary judgment is inappropriate. Id.
While we agree with the premise stated in Rosenberger that, whenever possible,
questions of immunity should be decided early on in the proceedings, see Rosenberger, 140
Idaho at 857, 103 P.3d at 470, we conclude that this does not require departure from the
traditional summary judgment standard. Moreover, the Idaho Supreme Court in Rosenberger
employed a two-step analysis, specifically tailored to claims of excessive use of force, which is
inapplicable to this case. We conclude, as did the J.E.B. court, that the traditional summary
judgment standard applies in the context of liability of persons reporting instances of suspected
child abuse. Therefore, the district court erred in applying a different standard.
a. Application of proper standard
Summary judgment shall be rendered when “the pleadings, depositions, and admissions
on file, together with the affidavits, if any, show that 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.” I.R.C.P. 56(c).
Where the evidentiary facts are not disputed and the trial court rather than a jury will be the trier
of fact, summary judgment is appropriate, despite the possibility of conflicting inferences
because the court alone will be responsible for resolving the conflict between those inferences.
Riverside Development Co. v. Ritchie, 103 Idaho 515, 519, 650 P.2d 657, 661 (1982). Moreover,
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“[w]hen an action is to be tried before the court without a jury, the judge is not constrained to
draw inferences in favor of the party opposing a motion for summary judgment but rather the
trial judge is free to arrive at the most probable inferences to be drawn from uncontroverted
evidentiary facts.” Loomis v. City of Hailey, 119 Idaho 434, 437, 807 P.2d 1272, 1275 (1991).
In its decision on the motion for summary judgment, the district court found that Jesyca
and Benjamin had a “good faith reason to report what they did to the Canyon County Sheriff’s
Office.” The court determined that because Benjamin’s comments were related solely to the
investigation into the report, he was immune pursuant to I.C. § 16-1606. The court also
concluded that Jesyca was immune as to any statements she made concerning the report, as well
as statements made in the child custody case and the petitions for domestic violence protection
orders because they were related to the report.
The court ultimately concluded:
There is no dispute that the relationship between Plaintiff and Defendants
is acrimonious. Plaintiff filed a civil suit for damages against Jesyca Davidson,
and Renato Davidson and Jesyca Davidson were involved in a custody dispute
concerning their children. Jesyca Davidson also filed a petition for a domestic
violence protection order pursuant to I.C. 39-6301, et. seq., based upon the
allegations contained in her report. There is also no dispute regarding critical
comments from Defendants directed toward Plaintiff. However, Plaintiff has
offered nothing about the acrimonious relationship tending to show that the report
to the Canyon County Sheriff was motivated by malice or bad faith. The
comments directed by Defendants toward Plaintiff are consistent with a good faith
belief that there has been inappropriate sexual contact.
As noted above, the question of whether a person makes a report of child abuse in bad faith is to
be tried to a court rather than a jury. As such, on summary judgment the court is free to draw
inferences from uncontroverted evidentiary facts. The district court in this case determined that
the facts were uncontroverted and that Davidson had offered nothing tending to show that the
report was motivated by bad faith. Were this the case, we could affirm the district court in spite
of its deviance from the traditional summary judgment standard. However, we conclude that
Davidson met his burden of demonstrating that there were genuine issues of material fact as to
whether Jesyca made the reports in bad faith. 2
2
Generally, if the moving party has demonstrated the absence of a question of material
fact, the burden shifts to the nonmoving party to demonstrate an issue of material fact that will
preclude summary judgment. I.R.C.P. 56(e); Kiebert v. Goss, 144 Idaho 225, 228, 159 P.3d 862,
14
Davidson argues on appeal that “the evidence here supports the contention that
Defendants made false reports for revenge and to get Davidson to drop a small claims suit
against Jesyca, and for his son (Renato) to drop attempts to gain sole custody over the girls.”
Davidson claims that “Jesyca began making unsubstantiated reports in March 2007 and then
continued serially making at least six more unsubstantiated reports over the next several
months.” Davidson also asserts that “Jesyca filed the two sworn petitions for domestic violence
protection orders not to protect the children, but for her own declared ulterior purpose of seizing
custody of the two little girls.” (Emphasis in original.) With respect to Benjamin, Davidson
argues that “Ben’s malicious motives were on full display in his testimonial statement to the
police.”
The evidence submitted by Davidson indicated that Jesyca and Renato, Davidson’s son,
were married on December 17, 2003, that they separated in October 2006, and that they were
divorced on March 9, 2007. At some point in 2003, Jesyca and Renato confided in one another
that they had both allegedly been abused by their fathers. Jesyca told her mother, Kathy, and her
mother’s partner about the alleged abuse. Prior to their marriage, Jesyca became pregnant with
their first child, S.D. Davidson insisted that Jesyca and Renato get married “so that everyone’s
rights were protected.” Jesyca became upset insisting that it was “none of [Davidson’s] business
and that [he] should stay out of it.” Davidson represented that Jesyca’s “overt hostility toward
[him] continued to grow over all the years [he] knew her.”
Renato stated that shortly after this incident, Kathy and her partner told him that they had
told his mother, Davidson’s wife, about Davidson abusing Renato. They planned to encourage
her to obtain a protection order and a divorce. They also indicated that they intended to go to
Child Protective Services in order to make a report so that Davidson could not be around his
865 (2007). The non-moving party must come forward with evidence, by affidavit or otherwise,
that contradicts the evidence submitted by the moving party in order to survive summary
judgment. Kiebert, 144 Idaho at 228, 159 P.3d at 865. In cases alleging false reporting of child
abuse, however, the party making such allegations must establish that there are genuine issues of
material fact regarding whether the report was made in bad faith in order to survive summary
judgment. See I.C. § 16-1607. Here, Davidson did come forward with sufficient evidence,
including affidavits and exhibits, to demonstrate genuine issues of material fact.
15
grandchild. Renato stated that he had never been abused by Davidson and that he made that
statement to Jesyca under the influence of alcohol and drugs and due to her confiding in him
about her own father’s alleged abuse.
Shortly before the divorce, on March 6, 2007, the Department of Health and Welfare
received a referral regarding alleged abuse of S.D. The Department identified the issue being
investigated as possible bruising of S.D.’s groin and leg area. The case was determined to be
unsubstantiated as the mark was the result of S.D. putting lipstick on that area. While Davidson
contends that Jesyca and Kathy made the report, the exhibit included in the record is redacted
and there is no indication as to who made the referral. Following the divorce, in April 2007,
Davidson filed a claim against Jesyca in small claims court for money that she allegedly owed
the family business. Davidson indicated that an incident occurred in May 2007 after leaving the
courtroom in that case. He stated that while walking through the parking lot, Jesyca passed him
in her vehicle and made a slashing motion over her throat.
Thereafter, on June 25, 2007, Renato indicated that Jesyca was in court being sentenced
on a DUI conviction occurring in Ada County. Renato had asked Davidson to attend the hearing
and report back on the outcome. Davidson allegedly reported to Renato that Jesyca had been
sentenced to receive some jail time. Renato stated that in talking with Jesyca, she denied having
to go to jail and stated that Davidson was lying. Renato indicated that he started making
preparations to obtain full custody of the children due to Jesyca’s behavior. The following day,
on June 26, 2007, the Department received another referral regarding alleged abuse of S.D. The
report indicated that Jesyca was concerned about a change in her children’s behavior after visits
with Renato. While this exhibit was also redacted, it indicates that Jesyca expressed concern
about Renato exposing the children to Davidson due to his alleged previous molestation of
Renato.
Renato stated that around Thursday, July 12, 2007, Jesyca’s mother, Kathy, dropped the
children off at daycare and that she later picked them up at Renato’s home on Sunday evening.
Renato stated that he spoke with Jesyca on the morning of July 17, 2007, about what had
happened, and Jesyca indicated that she had gone to jail. Renato stated that she should not have
withheld the children from him and “she said words to the effect that she had to because she
thought me and my Dad were out to get her. She also said that this was how it was going to be
from now on.”
16
That evening, Jesyca and Benjamin took S.D. to the hospital where they related the
incident that spawned this litigation. The hospital records submitted by Davidson as exhibits
show that, in addition to relating the incident to hospital personnel, Jesyca also reported that she
had “called CPS two weeks ago to file a complaint but she’s not heard anything back from
them.” Renato, unaware of the report of alleged abuse, filed a pro se motion to modify the
custody agreement between himself and Jesyca on July 18, 2007. Thereafter, Jesyca and
Benjamin made a report, as noted above, to law enforcement on July 19, 2007, and Jesyca
subsequently sought protection orders in the custody case against both Renato and Davidson. 3
Davidson also stated that on July 22, 2007, he spoke with Kathy on the phone regarding
Jesyca’s actions. Kathy allegedly stated, “You know you did it. We’re going to prove you did it.
You molested [S.D.] You know it, and I know it, and you might as well admit it because soon
everyone else is going to see it too. You’ll see. You’ll see. We’ll all see when the police come
for you and I’m going to be there every step of the way to see you go down. You’ll see!”
Davidson stated that following this conversation, Jesyca and Kathy allegedly came to his home
and began arguing with his son, Renato, regarding custody of the children, and Renato indicated
that he wanted to keep the children until the judge could assess the situation of Jesyca allowing
the children to “run around naked in front of some strange guy.” Davidson stated that he heard
Kathy yell at his son, “Oh, we’re going to make some trouble for you all right, there is going to
be big trouble behind this. You and your Daddy both are going to end up in jail!”
Based upon the evidence before the district court, there is a genuine issue of material fact
as to whether Jesyca reported her allegations of child abuse in bad faith. While the court
acknowledged the acrimonious nature of the parties’ relationship, it concluded that Davidson had
not demonstrated how that relationship tended to show that Jesyca’s reports were motivated by
3
Davidson contends that the district court inappropriately relied upon Rosenberger for the
proposition that it could only look to information available to the reporting person at the time the
report was made when making the determination of whether the report was made in good faith.
Rosenberger was evaluating the objective reasonableness of an officer’s actions in an excessive
use of force claim. Such an evaluation must be based upon the information available to the
officers at the time. By contrast, a good faith determination is concerned with the question of
intent, which is demonstrated through circumstantial evidence. An acknowledgment of false
reporting after the report has been made would clearly show bad faith. As such, the district
court’s reliance upon Rosenberger on this point was misplaced.
17
bad faith. However, the substance of some of the prior allegations of child abuse to the
Department, as well as the timing of those reports, raises genuine issues of material fact
regarding Jesyca’s motivation. According to the evidence, the day after Jesyca had been
sentenced on her DUI, which may have created problems for her relative to custody, she made a
report to the Department indicating concerns about Renato exposing the children to Davidson.
Moreover, Jesyca took S.D. to the hospital right after getting out of jail and after Renato told her
that she should not have withheld the children from him. The evidence demonstrates that there
are genuine issues of material fact regarding whether Jesyca made the reports in an attempt to
gain some advantage in the custody dispute and exact revenge upon Davidson. Therefore, the
district court erred in granting Jesyca partial summary judgment on the claim of false reporting
of child abuse. 4
With respect to Benjamin, Davidson submitted, as evidence, an interview Benjamin
underwent with the police, as well as a deposition. Benjamin acknowledged that Jesyca and
Kathy had told him Davidson had abused Renato when he was a child. Davidson contends that
Benjamin’s interview with the police demonstrates his “malicious motives” as he “openly
expressed his hatred, bias, and prejudice against [Davidson].” While the interview does illustrate
that Benjamin stated that he has a “hate thing for molesters,” he did not directly express hatred
for Davidson. He maintained that although he did not see S.D. expose herself, when he asked
her who taught her to do that, she said “Grandpa.” Davidson’s conclusory statement that
Benjamin hates him, with little more, is insufficient to demonstrate a genuine issue of material
fact that Benjamin made allegations of child abuse in bad faith. Therefore, the district court did
not err in granting Benjamin summary judgment. 5
4
By this opinion, we are not expressing any view with respect to the scope and application
of the immunity provision, I.C. § 16-1606. We simply conclude that there are genuine issues of
material fact on whether Jesyca reported in bad faith.
5
Davidson also argues at length that respondents’ evidence was inadmissible due to a
number of inconsistencies. While there may have been inconsistencies in the various documents
submitted by respondents, which may be relevant for the purposes of showing questions of fact,
such inconsistencies do not render the evidence inadmissible, but rather go to the weight of such
evidence. Davidson also argues that the evidence was inadmissible on grounds of hearsay,
leading questions, and I.R.E. 404(b). The record does not demonstrate that the evidence was
offered for inappropriate purposes or that the district court erred in admitting the evidence.
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D. Attorney Fees
Kathy argues on appeal that she is entitled to attorney fees. An award of attorney fees
may be granted under I.C. § 12-121 and I.A.R. 41 to the prevailing party and such an award is
appropriate when the court is left with the abiding belief that the appeal has been brought or
defended frivolously, unreasonably, or without foundation. Rendon v. Paskett, 126 Idaho 944,
945, 894 P.2d 775, 776 (Ct. App. 1995). Because Davidson voluntarily dismissed his claims as
to Kathy, his appeal trying to re-raise those claims is frivolous. Therefore, costs and attorney
fees are awarded to Kathy.
III.
CONCLUSION
The district court did not err in granting Prior’s motion to dismiss pursuant to
I.R.C.P. 12(b)(5) because Davidson failed to comply with I.R.C.P. 4(d)(2) in serving Prior.
Moreover, Davidson’s failure to personally serve Prior does not constitute good cause to suspend
the service requirements of I.R.C.P. 4(a)(2). The district court did not err in granting Davidson’s
voluntary motion to dismiss the remainder of his claims against Jesyca and Kathy with prejudice.
The district court did not err in granting Benjamin summary judgment on the claim of false
reporting of child abuse. The district court did, however, err in granting Jesyca partial summary
judgment because there were genuine issues of material fact as to whether Jesyca reported in bad
faith. Therefore, we reverse and remand the case for a trial on that issue. We award costs and
attorney fees to Kathy.
Judge GUTIERREZ and Judge MELANSON CONCUR.
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