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George Davidson v. Jesyca Hood Davidson; Benjamin

January 26, 2011

GEORGE DAVIDSON, PLAINTIFF-APPELLANT,
v.
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.

The opinion of the court was delivered by: Gratton, Chief Judge

2011 Opinion No. 2

Stephen W. Kenyon, Clerk

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 (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).

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.

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 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).

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 ...


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