Berian v. Berberian ( 2020 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 47122
GALUST BERIAN, a single individual; and )
JULIA BERIAN, a single individual, )
)
Plaintiffs-Counterdefendants- )
Appellants, )
) Boise, May 2020 Term
v. )
) Opinion Filed: November 2, 2020
OVANES BERBERIAN, a single individual; )
and SOCORRO BERBERIAN, a single ) Melanie Gagnepain, Clerk
individual, )
)
Defendants-Counterclaimants- )
Respondents. )
)
Appeal from the District Court of the Seventh Judicial District of the State of Idaho,
Jefferson County. Stevan H. Thompson, District Judge.
The district court’s order granting partial summary judgment is affirmed in part,
and reversed in part. The partial judgment is affirmed in part, and vacated in part.
Dunn Law Office, PLLC, Rigby, and Whittington Law Office, Chtd., Idaho Falls,
for appellants, Galust and Julia Berian. Robin D. Dunn argued.
Hopkins Roden Crockett Hansen & Hoopes, PLLC, Idaho Falls, for respondents,
Ovanes and Socorro Berberian. Lary S. Larson argued.
_____________________
STEGNER, Justice.
This case arises out of a number of disputes between two brothers, Galust Berian (Galust)
and Ovanes Berberian (Ovanes). In June 2017, Galust and Julia Berian (Julia is the daughter of
Galust and the niece of Ovanes) were arrested after Ovanes reported to law enforcement that Galust
and Julia had stolen several items from him. After the reported theft, Galust and Julia were arrested
for unlawful entry onto property shared by Ovanes and his ex-wife, Socorro Berberian (Socorro),
and for resisting arrest. After these charges were dropped, Galust and Julia brought a lawsuit
against Ovanes and Socorro, alleging intentional infliction of emotional distress, negligent
1
infliction of emotional distress, invasion of privacy, malicious prosecution, defamation, breach of
contract, fraud, unjust enrichment, quantum meruit, and conversion. Ovanes filed a counterclaim
seeking redress for conversion.
Ovanes and Socorro moved for summary judgment on all of Galust’s and Julia’s claims,
which the district court granted except for their conversion claim. The district court also certified
its grant of partial summary judgment as final pursuant to I.R.C.P. 54(b), a process which allowed
Galust and Julia to appeal the district court’s decision even though all of the claims between the
parties had not been resolved.
Galust and Julia appeal from the grant of summary judgment, arguing that summary
judgment was improper because genuine issues of material fact exist with respect to each of their
other causes of action. Ovanes and Socorro respond, arguing summary judgment was proper
because Galust and Julia failed to establish one or more elements of each of their claims. In
addition, Ovanes and Socorro argue that Galust and Julia failed to establish a genuine factual issue
in regard to Ovanes’ and Socorro’s affirmative defenses, including the judicial privilege doctrine
and the statute of limitations.
For the reasons outlined in this opinion, we affirm the grant of summary judgment
regarding the tort claims of invasion of privacy and negligent infliction of emotional distress, as
well as the contract and fraud claims. However, we reverse the grant of summary judgment
regarding the claims of intentional infliction of emotional distress, malicious prosecution, and
defamation.
I. FACTUAL AND PROCEDURAL BACKGROUND
Galust and Ovanes are Russian artists who immigrated to the United States and now reside
in eastern Idaho. From April to June of 2017, they were involved in a series of disputes in which
Ovanes claimed that Galust and his daughter, Julia, had stolen property from him, including
multiple paintings and frames, a trailer, and a water pump. According to Ovanes, while he was
teaching in California, his assistant notified him that his painting, titled “The Approaching Storm,”
was missing. After returning home, Ovanes found “dozens of other paintings and frames missing”
from his home and storage shed. He also discovered that his flatbed trailer was missing. Ovanes’
security system had been disabled during the thefts; Ovanes suspected that Galust had taken the
items as he was among the few people with knowledge of the location of the security cameras and
2
their power supply. On May 9, 2017, Ovanes reported the purported theft by Galust to the Jefferson
County Sheriff’s Office.
Ovanes claims that later, on June 19, 2017, Galust and Julia drove a van onto his property,1
towing Ovanes’ flatbed trailer. Ovanes alleges that the two broke into his home and returned “The
Approaching Storm” painting. Galust and Julia then went to Ovanes’ storage shed, and allegedly
stole a water pump and several more paintings. All of this activity was purportedly recorded on
Ovanes’ security cameras.2 Ovanes called the Jefferson County Sheriff’s Office to report the
trespass and break-in while Galust and Julia were still on his property.
Later that same night, Ovanes alleges that Galust and Julia returned to his home and
instigated an argument with Ovanes.3 During that time, Jefferson County Sheriff’s deputies arrived
to investigate the alleged break-in. The deputies arrested Galust for unlawful entry, and arrested
Julia for resisting an officer.
Ovanes provided a written statement to the Jefferson County Sheriff’s Office, detailing the
break-in and the missing items. Ovanes argues that this statement was accurate to the best of his
knowledge and contained his honest belief that Galust and Julia had stolen his property.
Galust provides a much different explanation of how the painting ended up in his
possession, and what happened the night he returned it. According to Galust, in the spring of 2017,
Ovanes had mentioned his struggles with completion of “The Approaching Storm” painting.
Galust alleged that he offered to re-work the painting for Ovanes and took the painting back to his
studio to complete it.4 Galust maintained that even though Ovanes knew Galust had the painting,
Ovanes reported to law enforcement that the painting was stolen.
On June 19, 2017, after learning that Ovanes had reported “The Approaching Storm”
stolen, Galust asserts that he called Ovanes and told him that he would return the painting to
1
Ovanes’ ex-wife, Socorro Berberian, is the legal owner of the property, but shared the property with Ovanes; she
attested that she permitted him to use the property as though he were also the owner.
2
After Ovanes reported the alleged theft on May 9, 2017, he had additional security cameras positioned around the
house and storage shed. Although Ovanes submitted the security camera footage from June 19 as an exhibit to his
motion for summary judgment, the security footage was not included in the clerk’s record on appeal.
3
The description of this visit is bizarre. Galust and Julia arrived at Ovanes’ residence each carrying a two-foot red,
wooden cross. These wooden crosses were also mentioned in the probable cause affidavit for Julia, when she was
asked several times by the police to drop the cross, eventually complying. At one point, she even raised the cross
above her head.
4
It appears from the record that, prior to this dispute, the two brothers often helped each other with the other’s
paintings.
3
Ovanes’ house. Additionally, Galust alleges that Ovanes had given him permission to pick up the
water pump and additional paintings. Galust and Julia also claim that Galust owns the trailer in
question.5 After Galust and Julia entered Ovanes’ property, their account of what happened largely
matches what Ovanes stated happened. Galust and Julia acknowledge that Ovanes called the
police; however, they contend Ovanes falsely accused the two of trespassing and theft. While
Galust and Julia were “visiting and conversing with” Ovanes, Jefferson County Sheriff’s deputies
arrived and arrested Galust and Julia.6
Following the arrests of Galust and Julia, the Jefferson County Sheriff’s Office executed a
search warrant at Galust’s residence on June 22, 2017. During the execution of the search warrant,
the Sheriff’s deputies seized a flatbed trailer and a water pump. They also seized Galust’s cell
phone and laptop.
Independent of the events giving rise to the allegations of theft, Galust and Julia also allege
that Ovanes previously hired the two to perform “extensive construction and landscaping work”
and to make improvements to the property where Ovanes lived. Ovanes’ ex-wife, Socorro, actually
owned the property; however, she let Ovanes use it. Galust and Julia assert that they performed
the work, planting numerous shrubs, trees, and flowers, and made other major improvements to
the land. The two also maintain they built a large storage building at Ovanes’ request. According
to Galust and Julia, Ovanes refused to pay them for the work they performed on the property.
Finally, Galust alleges that Ovanes stole a painting from him, this one titled, “Moonlight
in Yalta.” Ovanes denies stealing the painting. Rather, Ovanes argues that he was working on the
painting at Galust’s request.
Galust and Julia filed a lawsuit against Ovanes and Socorro7 for various causes of action
including: (1) malicious prosecution; (2) defamation; (3) invasion of privacy; (4) intentional
infliction of emotional distress; (5) negligent infliction of emotional distress; and (7) breach of
5
The ownership of the trailer remains disputed. For example, in response to Galust’s claim that he owned the trailer,
Ovanes stated that he learned that Galust had taken the title certificate to the trailer and presented it to the Department
of Motor Vehicles and succeeded in transferring title into his own name. However, notes from the Jefferson County
Sheriff’s Office suggest there is no evidence that Galust had title transferred to himself. Further, Ovanes had the
certificate of origin for the trailer, which only had Ovanes’ name on it. Accordingly, ownership of the trailer is
disputed.
6
There were two undated probable cause affidavits in this case. However, they are only minimally relevant because
they do not focus on what Ovanes knew at the time he made the allegations leading to the charges being filed.
7
Socorro was included as a defendant for two reasons. First, Galust and Julia claim that she is liable on the tort claims
“by reason of her marriage to Ovanes.” Second, Galust and Julia claim that she is liable for the contract claims as the
owner of the property on which the work was performed and from which she benefitted.
4
contract, fraud, unjust enrichment, and quantum meruit. Galust also sued Ovanes for conversion
for the purported theft of one of his paintings. Ovanes filed a counterclaim against Galust for
conversion, alleging that Galust had stolen over twenty-one paintings and frames.
Ovanes and Socorro moved for summary judgment on all of Galust’s and Julia’s claims.
On February 8, 2019, the district court entered its decision and order regarding Ovanes’ and
Socorro’s motion for summary judgment. The district court considered Galust’s and Julia’s claims
as falling into three broad categories: (1) claims based on the false police reports; (2) claims for
landscaping and construction work performed on Socorro’s property; and (3) a conversion claim
based on an allegation that Ovanes stole one of Galust’s paintings. The police reports gave rise to
claims of malicious prosecution, invasion of privacy, defamation, intentional infliction of
emotional distress, and negligent infliction of emotional distress. The landscaping and construction
work gave rise to claims of breach of contract, fraud, unjust enrichment, and quantum meruit.
As for the malicious prosecution claims, the district court granted summary judgment
because there was no genuine issue of material fact regarding whether probable cause existed for
Galust’s and Julia’s arrests. The district court concluded that “the prosecutor applied for and
received a search warrant based on the information that he possessed, which would have required
a showing of probable cause.” Further, the district court concluded that the judicial privilege
doctrine barred the claims for defamation, intentional infliction of emotional distress, negligent
infliction of emotional distress, and invasion of privacy.
Additionally, the district court granted summary judgment on the contract claims because
it found that those claims were barred by the applicable statute of limitations. The district court
concluded that because Galust and Julia had failed to provide any dates for the work allegedly
performed, or any proof that they had performed any work at all, there was no genuine issue of
material fact that the statute of limitations had run on those claims.
Finally, the district court denied summary judgment on Galust’s conversion claim. The
district court concluded that because (1) Galust alleged that Ovanes stole a painting from him, and
(2) “Ovanes has admitted that he has [the painting], but merely claims that Galust gave him
permission to work on it,” there was a genuine issue of material fact regarding how Ovanes came
into possession of the painting. The district court’s denial of summary judgment on Galust’s
conversion claim has not been appealed.
5
Following the district court’s order granting partial summary judgment, the only claims
remaining were Galust’s claim of conversion and Ovanes’ counterclaim of conversion. Galust and
Julia moved the district court to certify its summary judgment decision for appeal pursuant to
I.R.C.P. 54(b). The district court granted the motion and certified the summary judgment decision
for appeal. Following the certification, Galust and Julia timely appealed.
II. STANDARD OF REVIEW
“On appeal from the grant of a motion for summary judgment, this Court utilizes the same
standard of review used by the district court originally ruling on the motion.” Nelson v. Kaufman,
166 Idaho 270, 274, 458 P.3d 139, 143 (2020) (quoting Samples v. Hanson, 161 Idaho 179, 181–
82, 384 P.3d 943, 945–46 (2016)). “Summary judgment is proper ‘if 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.’” Id.(quotation omitted); see also I.R.C.P. 56(a). “If the evidence reveals no disputed issues of material
fact, then only a question of law remains, over which this Court exercises free review.” Nelson,
166 Idaho at 274, 458 P.3d at 143 (quoting Lapham v. Stewart, 137 Idaho 582, 585, 51 P.3d 396,
399 (2002)).
“The burden of establishing the absence of a genuine issue of material fact rests at all times
with the party moving for summary judgment.” Finholt v. Cresto, 143 Idaho 894, 896, 155 P.3d
695, 697 (2007) (citing Tingley v. Harrison, 125 Idaho 86, 89, 867 P.2d 960, 963 (1994)).
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. The nonmoving party must present evidence
contradicting that submitted by the movant, and which demonstrates a question of
material fact. However, a mere scintilla of evidence or only slight doubt as to the
facts is not sufficient to create a genuine issue of material fact for the purposes of
summary judgment.
Eagle Springs Homeowners Ass’n, Inc. v. Rodina, 165 Idaho 862, 868, 454 P.3d 504, 510 (2019)
(quotation omitted). Likewise, “[a] party may not rely on his pleadings nor merely assert that there
are some facts which might or will support his legal theory, but rather he must establish the
existence of those facts by deposition, affidavit, or otherwise.” Fischer v. Croston, 163 Idaho 331,
339, 413 P.3d 731, 739 (2018) (quotation omitted). “Disputed facts should be construed in favor
of the non-moving party, and all reasonable inferences that can be drawn from the record are to be
drawn in favor of the non-moving party.” Nelson, 166 Idaho at 274, 458 P.3d at 143 (quoting
6
Hoffman v. Bd. of the Local Improvement Dist. No. 1101, 163 Idaho 464, 468, 415 P.3d 332, 336
(2017)).
III. ANALYSIS
A. The district court erred in granting summary judgment on Galust’s and Julia’s
malicious prosecution claims because there is a genuine issue of material fact
regarding whether probable cause existed.
Galust and Julia asserted claims of malicious prosecution, alleging that Ovanes made a
false police report that caused the two to be arrested. Ovanes and Socorro moved for summary
judgment contending that because the county prosecutor had obtained a search warrant, probable
cause existed and therefore a malicious prosecution claim could not proceed.8
To recover under a malicious prosecution claim, a plaintiff must prove “(1) [t]hat there was
a prosecution; (2) [t]hat it terminated in favor of the plaintiff; (3) [t]hat the defendant was the
prosecutor; (4) [m]alice; (5) [l]ack of probable cause; and (6) [d]amages sustained by the plaintiff.”
Taylor v. McNichols, 149 Idaho 826, 843, 243 P.3d 642, 659 (2010) (italics removed) (quoting
Badell v. Beeks, 115 Idaho 101, 102, 765 P.2d 126, 127 (1988)). “To sustain an action for malicious
prosecution, there must be a concurrence of malice and want of probable cause. Neither, however
clearly established, will support an action in the absence of the other.”9 Clark v. Alloway, 67 Idaho
32, 37, 170 P.2d 425, 428 (1946) (quotation omitted).
Accordingly, the district court focused on whether Galust’s and Julia’s arrests were
justified by probable cause. The district court inferred that probable cause existed in this case
because the prosecutor obtained a search warrant, which required a disinterested magistrate to find
probable cause. As a result, the district court granted summary judgment on the malicious
prosecution claims.
The crux of this issue on appeal is whether there is a genuine issue of material fact
regarding the existence of probable cause. In an action for malicious prosecution, the trial court
determines whether the defendant had probable cause for his actions. Badell, 115 Idaho at 103,
8
Generally speaking, when a disinterested magistrate determines probable cause exists, an action for malicious
prosecution may not be pursued. Herrold v. Idaho State Sch. for the Deaf & Blind, 112 Idaho 410, 412, 732 P.2d 379,
381 (Ct. App. 1987).
9
“This is true even though the defendant is found to have been actuated by malice and for an improper purpose, since
it is deemed good citizenry to cause the prosecution of those who are reasonably suspected of a crime.” Howard v.
Felton, 85 Idaho 286, 290, 379 P.2d 414, 416 (1963). “Courts reason that a defendant’s personal motive should not
render him personally liable for the performance of a public obligation. The existence of malice does not create even
an inference that probable cause was lacking.” Id. at 290–91, 379 P.2d 416 (quotations omitted).
7
765 P.2d at 128 (citing Restatement (Second) of Torts § 681B(1)(c) (1977)); see also Restatement
(Second) of Torts § 673. “The jury’s role is limited to adjudicating the facts necessary to enable
the court to determine the existence, or lack, of probable cause.” Badell, 115 Idaho at 103, 765
P.2d at 128 (citation omitted); see also Restatement (Second) of Torts § 673.
“[P]robable cause consists of a belief in the charge or facts alleged, based on sufficient
circumstances to reasonably induce such belief in a person of ordinary prudence in the same
situation.” Clark, 67 Idaho at 37, 170 P.2d at 428 (citation omitted). The Restatement (Second) of
Torts, which this Court cited with approval in Badell, provides that probable cause to initiate a
criminal proceeding exists if the defendant reasonably believes:
(a) that the person whom he accuses has acted or failed to act in a particular manner,
and
(b) that those acts or omissions constitute the offense that he charges against the
accused, and
(c) that he is sufficiently informed as to the law and the facts to justify him in
initiating or continuing the prosecution.
Restatement (Second) of Torts § 662; see Badell, 115 Idaho at 103, 765 P.2d at 128.
“The question of probable cause is to be determined in the light of those facts that the accuser
knows or reasonably believes to exist at the time when he acts.” Badell, 115 Idaho at 103, 765
P.2d at 128 (quoting Restatement (Second) of Torts § 675 cmt. c).
Although the probable cause analysis generally focuses on what the defendant knew at the
time of his actions, an “independent finding of probable cause by a magistrate preclude[s] as a
matter of law a finding that there was no probable cause to arrest the plaintiff in a malicious
prosecution action where there [has] been a full disclosure to the magistrate.” Herrold, 112 Idaho
at 412, 732 P.2d at 381 (alterations in original) (quotation omitted).
Here, there is a genuine issue of material fact as to whether Ovanes had probable cause to
initiate the prosecutions. The district court relied on the fact that a search warrant had been
procured. Because search warrants require a finding of probable cause, see I.C.R. 41(c)(1), the
district court inferred that probable cause existed. However, the search warrant is not in the record,
nor was it ever presented to the district court. Additionally, no probable cause affidavit in relation
to the search warrant was included in the record. Consequently, it is not possible to determine
whether “full disclosure to the magistrate” occurred. Finally, the record is devoid of any actual
independent finding of probable cause. Instead, the district court inferred an independent judicial
8
finding of probable cause based on a certain action undertaken by law enforcement. However, at
summary judgment, all inferences are to be drawn in favor of the non-moving party. Nelson, 166
Idaho at 274, 458 P.3d at 143 (quotation omitted). Therefore, the district court erred in drawing an
inference of probable cause against Galust and Julia, the non-moving parties. In conclusion, we
vacate the district court’s order granting summary judgment on Galust’s and Julia’s claims of
malicious prosecution and remand for further proceedings on this issue.
B. The district court erred in granting summary judgment on the defamation claims
because Ovanes’ statements to law enforcement are only entitled to a qualified
privilege, not an absolute privilege.
Galust and Julia allege in their complaint that Ovanes slandered them by making false
statements to law enforcement that the two had stolen from him. The district court concluded that
Ovanes’ statements to law enforcement were protected by judicial privilege, barring Galust and
Julia from maintaining their claim of defamation.
On appeal, Galust and Julia argue that, while Idaho has recognized certain statements are
protected by judicial privilege, no case law in Idaho supports the proposition that statements to
law enforcement fall within the scope of judicial privilege. Ovanes and Socorro respond, arguing
that Ovanes’ statements were protected “by the absolute privilege afforded to statements made in
the course of a judicial proceeding.”
“In a defamation action, a plaintiff must prove that the defendant: (1) communicated
information concerning the plaintiff to others; (2) that the information was defamatory; and (3)
that the plaintiff was damaged because of the communication.”10 Elliott v. Murdock, 161 Idaho
281, 287, 385 P.3d 459, 465 (2016) (quoting Clark v. Spokesman-Review, 144 Idaho 427, 430, 163
P.3d 216, 219 (2007)).
Ovanes concedes that he made statements to law enforcement, and that a genuine issue of
material fact existed as to whether that statement was defamatory. However, he argues that his
communications to law enforcement are protected by an absolute judicial privilege.
Idaho has long recognized that defamatory statements made in the course of a judicial
proceeding are absolutely privileged, even if made with malicious intent or knowledge of their
falsity. Richeson v. Kessler, 73 Idaho 548, 551, 255 P.2d 707, 709 (1953); Malmin v. Engler, 124
10
There is an additional element to a defamation claim—actual malice—if the plaintiff is a public figure. See Elliott,
161 Idaho at 287, 385 P.3d at 465 (citing New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). It appears that the
parties assumed that the plaintiff was a private plaintiff and therefore malice was not an element of a defamation claim.
9
Idaho 733, 737, 864 P.2d 179, 183 (Ct. App. 1993). The purpose of the judicial privilege is “to
keep the paths leading to the ascertainment of truth as free and unobstructed as possible.” 50 Am.
Jur. 2d Libel and Slander § 280 (2020) (citation omitted).
However, this Court has never decided whether the absolute privilege for defamatory
statements extends to those made to law enforcement prior to the initiation of criminal
proceedings. The scope of this absolute privilege was outlined in this Court’s opinion in Richeson,
73 Idaho at 551, 255 P.2d at 709. This Court clarified:
The term judicial proceeding is not restricted to trials, but includes every
proceeding of a judicial nature before a court or official clothed with judicial or
quasi[-]judicial power[.] . . . With certain exceptions, unimportant here, defamatory
matter published in the due course of a judicial proceeding, having some reasonable
relation to the cause, is absolutely privileged[.]
Id. at 551–52, 255 P.2d at 709 (citing 53 C.J.S. Libel and Slander § 104). In Malmin, the Idaho
Court of Appeals extended this privilege to defamatory statements made by attorneys as
“statements made preliminary to a proposed judicial proceeding.” Malmin, 124 Idaho at 737, 864
P.2d at 183 (italics in original). Based on this case law, Idaho appears to offer some protection to
statements made prior to the initiation of judicial proceedings; however, this Court has never
determined how far the privilege extends.
There is a jurisdictional split regarding the extent of the privilege that is afforded statements
made to law enforcement officials. Some states have decided that statements to law enforcement
officials are absolutely privileged, while others have concluded that such statements have only a
qualified privilege. It is important to understand the practical difference between these two
privileges. If the statements are protected by an absolute privilege, the statements may not be used
to bring an action for defamation, even if the statements are made maliciously and with knowledge
that the statements are false. Richeson, 73 Idaho at 552, 255 P.2d at 709 (citations omitted). In
contrast, a qualified privilege, as the name suggests, is something less than absolute. Generally,
the privilege may be “lost where it is abused as, for example, where the statements are not made
in good faith.” Gardner v. Hollifield, 96 Idaho 609, 614, 533 P.2d 730, 735 (1975) (quotation
omitted).
A majority of states have held that such statements to law enforcement officials enjoy only
a qualified privilege, rather than an absolute privilege. See, e.g., Gallo v. Barile, 935 A.2d 103,
111–12 (Conn. 2007); Fridovich v. Fridovich, 598 So. 2d 65, 67 (Fla. 1992) (surveying case law
of various jurisdictions); Williams v. Tharp, 914 N.E.2d 756, 763 (Ind. 2009); Caldor, Inc. v.
10
Bowden, 625 A.2d 959, 969 (Md. App. 1993); DeLong v. Yu Enters., Inc., 47 P.3d 8, 12 (Or. 2002)
(en banc).
On the other hand, a minority of states have found statements made to law enforcement
prior to the lodging of a criminal complaint are absolutely privileged. See Gen. Elec. Co. v. Sargent
& Lundy, 916 F.2d 1119, 1125–27 (6th Cir. 1990) (construing Kentucky law); Borg v. Boas, 231
F.2d 788, 794 (9th Cir. 1956) (construing Idaho law); Ledvani v. Cerasani, 146 P.3d 70, 75 (Ariz.
Ct. App. 2006); Hagberg v. Cal. Fed. Bank, 81 P.3d 244, 249 (Cal. 2004); Starnes v. Int’l
Harvester, 539 N.E.2d 1372, 1374–75 (Ill. Ct. App. 1989), abrogated on other grounds by Bryson
v. News Am. Publ’ns., Inc., 672 N.E.2d 1207, 1222 (Ill. 1996).
There are two important and competing interests considered by the courts that have
addressed this issue. On one side, the persons against whom allegations have been levied have an
interest in protecting their reputation from defamation and being wrongly accused of criminal
conduct. Fridovich, 598 So. 2d at 69. On the other, there is a competing interest of “encouraging
the free and unhindered communications to law enforcement authorities necessary to facilitate the
investigation and prosecution of crimes.” Ledvina, 146 P.3d at 74.
In those jurisdictions that recognize only a qualified privilege for communications with
law enforcement, the courts generally recognize that a qualified privilege strikes the proper balance
between providing protection to those “wishing to report events concerning crime[,]” with “the
countervailing harm caused by potentially disastrous consequences that may befall the victim of a
false accusation of criminal wrongdoing[.]” Gallo, 935 A.2d at 111.
We are persuaded by the rationale regarding the majority rule. We agree with the Supreme
Court of Florida that a “qualified privilege ‘is sufficiently protective of [those] wishing to report
events concerning crime and balances society’s interest in detecting and prosecuting crime with a
defendant’s interest not to be falsely accused.’” Fridovich, 598 So. 2d at 69 (alteration in original)
(quotation omitted). The Florida Supreme Court went on to write,
[t]here is no benefit to society or the administration of justice in protecting those
who make intentionally false and malicious defamatory statements to the police.
The countervailing harm caused by the malicious destruction of another’s
reputation by false accusation can have irreparable consequences. We believe the
law should provide a remedy in situations such as this.
Id. (footnote omitted).
Given the potentially devastating consequences that may befall the victim of false
accusations of criminal wrongdoing, we are unwilling to afford absolute immunity to such
11
statements. We are unconvinced that the safeguards currently in place to deter those who would
make a false statement to law enforcement are sufficient. While it is true that most states, including
Idaho, have statutes making it a crime to make false allegations to a law enforcement officer, see,
e.g., I.C. §§ 18-705, 18-5413, or allowing a civil claim for malicious prosecution or abuse of
process, it is unlikely that these safeguards offer sufficient consolation to someone wrongfully and
maliciously accused of criminal wrongdoing. Accordingly, we hold that defamatory statements
made by private individuals to law enforcement officials prior to the institution of criminal charges
are entitled to a qualified privilege, not an absolute privilege, and this qualified privilege will not
apply when the defamatory statements are made with malice. Gardner, 96 Idaho at 614, 533 P.2d
at 735. Given the strained relationship between the brothers, there is a genuine issue of material
fact whether Ovanes’ statements were made maliciously. Consequently, we reverse the grant of
summary judgment on the defamation claims.
C. Statements made to law enforcement with the purpose of initiating criminal
proceedings are entitled to a qualified privilege for all torts except malicious
prosecution.
Further, we hold that this qualified privilege applies to all tort claims, except for malicious
prosecution. The reason to extend the privilege beyond defamation claims is that without its
expansion, the privilege becomes almost meaningless. Without expanding the qualified privilege,
a plaintiff could artfully categorize his claims as anything other than defamation and have those
claims proceed, regardless of the fact that the claims are based on the same allegedly defamatory
statements. Other jurisdictions have held similarly.11
11
Christonson v. United States, 415 F. Supp. 2d 1186, 1195 (D. Idaho 2006) (“This privilege is not limited to
defamation claims; rather, it extends ‘to all claims arising from the same statements.’”); Petyan v. Ellis, 510 A.2d
1337, 1343 (Conn. 1986) (“Since the defendant had an absolute privilege to state her reasons for the termination of
the defendant’s employment in the ‘fact-finding supplement’ solicited by the employment security division, she was
exercising a legal right in a permissible fashion and cannot be held liable for the intentional infliction of emotional
distress.”); Barker v. Huang, 610 A.2d 1341, 1349 (Del. 1992) (“Application of the absolute privilege solely to the
defamation count, accordingly, would be an empty gesture indeed, if, because of artful pleading, the plaintiff could
still be forced to defend itself against the same conduct regarded as defamatory.”); Johnson v. Johnson & Bell, Ltd., 7
N.E.3d 52, 56 (Ill. App. Ct. 2014) (alteration in original) (quotations omitted) (“[T]he absolute privilege would be
meaningless if a simple recasting of the cause of action . . . could void its effect.”); Franson v. Radich, 735 P.2d 632,
635 (Or. Ct. App. 1987) (quotations omitted) (“Because the privilege ‘is based upon a public policy of securing to
attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients,’ we see no reason
why it should not also apply in claims for intentional infliction of emotional distress based on actions taken and
statements made in connection with a judicial proceeding.”); 5-State Helicopters, Inc. v. Cox, 146 S.W.3d 254, 256
(Tex. App. 2004) (“An absolutely privileged communication is one for which, due to the occasion upon which it was
made, no civil remedy exists[.]”); Bennett v. Jones, Waldo, Holbrook & McDonough, 70 P.3d 17, 32 (Utah 2003)
(“[T]he judicial proceeding privilege extends not only to defamation claims but to all claims arising from the same
statements[.]”).
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Malicious prosecution actions are an exception to the general rule that statements made to
law enforcement with the purpose of initiating criminal proceedings are entitled to a qualified
privilege. An action for malicious prosecution is permitted because “[t]he policy of encouraging
free access to the courts . . . is outweighed by the policy of affording redress for individual wrongs
when the requirements of favorable termination, lack of probable cause, and malice are satisfied.”
See Silberg v. Anderson, 786 P.2d 365, 371 (Cal. 1990).
As a result, the district court erred in concluding that Galust’s and Julia’s remaining tort
claims were barred by an absolute judicial privilege. Instead, Ovanes’ statements are only entitled
to a qualified privilege. As explained above, there is a genuine issue of material fact as to whether
Ovanes’ statements were made with malice. Therefore, each cause of action will be discussed
individually to determine whether a genuine issue of material fact exists to survive summary
judgment.
D. There is no genuine issue of material fact regarding Galust’s and Julia’s claims of
invasion of privacy.
In their complaint, Galust and Julia allege that they are entitled to damages under their
claims of “invasion of privacy.” The claims are largely based on the fact that Ovanes purportedly
made false allegations of theft against Galust and Julia to law enforcement, leading to the search
of Galust’s and Julia’s residence. The district court granted summary judgment on the invasion of
privacy claims due to judicial privilege. However, as noted above, the statement is only protected
by a qualified privilege. Accordingly, we must determine whether there is a genuine issue of
material fact regarding the invasion of privacy claims.
“This Court has recognized an action for invasion of privacy.” Hoskins v. Howard, 132
Idaho 311, 316, 971 P.2d 1135, 1140 (1998) (citations omitted). Generally, there are four
categories of invasion of privacy: “[1] Intrusion upon the plaintiff’s seclusion or solitude, or into
his private affairs. [2] Public disclosure of embarrassing private facts about the plaintiff. [3]
Publicity which places the plaintiff in a false light in the public eye. [4] Appropriation, for the
defendant’s advantage, of the plaintiff’s name and likeness.” Id. (quotation omitted).
It is unclear from Galust’s and Julia’s complaint what category of invasion of privacy they
are alleging, nor did they take the opportunity to clarify the category in their briefing on appeal.
Preliminarily, the fourth category, appropriation, is clearly not applicable on these facts. However,
the other three categories are possible theories of liability for this case.
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1. There is no genuine issue of material fact regarding whether Ovanes intruded on
Galust’s and Julia’s solitude.
First, the invasion of privacy claims may be based on the fact that the search warrant was
executed on Galust’s and Julia’s residence, intruding upon their solitude. “Liability for a claim of
invasion of privacy by intrusion requires: (1) an intentional intrusion by the defendant; (2) into a
matter, which the plaintiff has a right to keep private; (3) by the use of a method, which is
objectionable to the reasonable person.” Jensen v. State, 139 Idaho 57, 62, 72 P.3d 897, 902 (2003)
(italics added) (citations omitted).
In this case, nothing alleged by Galust and Julia claim that Ovanes intruded into any private
matter. Ovanes did not take part in the search of Galust’s and Julia’s residence, telephones, or
computers. Therefore, he did not personally intrude into their private affairs. While it is true that
Ovanes’ allegations led to the execution of the search warrant, there is no Idaho authority which
imputes any liability for those acts to Ovanes. There is therefore no genuine issue of material fact
regarding whether there was an intrusion on Galust’s and Julia’s solitude by Ovanes.
Consequently, summary judgment was appropriate on this theory.
2. There is no genuine issue of material fact regarding whether Ovanes made a public
disclosure of embarrassing facts.
The allegations Ovanes made to law enforcement might give rise to a claim for “public
disclosure of embarrassing private facts about the plaintiff.” Hoskins, 132 Idaho at 317, 971 P.2d
at 1141. In order to have an actionable claim for public disclosure of private facts, the plaintiff
must prove the following three elements: (1) public disclosure, (2) the facts must be entitled to
privacy, and (3) the public disclosure must be “offensive and objectionable to a reasonable person.”
Id. at 317, 971 P.2d at 1141 (citation omitted).
This Court has held that “a public disclosure did not occur when the record indicated that
only a limited number of persons received the private information and those persons had a right to
know the information.” Nation v. State, Dep’t of Correction, 144 Idaho 177, 188, 158 P.3d 953,
964 (2007) (citing Baker v. Burlington N., Inc., 99 Idaho 688, 691, 587 P.2d 829, 832 (1978)).
Here, the statement to a law enforcement officer is not a “public disclosure.” The record is unclear
as to the exact number of sheriff’s deputies to whom Ovanes made a statement, but as noted in
Nation, a public disclosure does not occur when a limited number of persons received the
information. Likewise, disclosure of information to law enforcement would, by its nature, be
private as opposed to public. Accordingly, there is no genuine issue of material fact regarding
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whether there was a public disclosure. As a result, summary judgment was appropriate on this
theory.
3. There is no genuine issue of material fact regarding whether Ovanes made a public
statement casting Galust and Julia in a false light.
Finally, the allegations Ovanes made to law enforcement might give rise to a claim for
invasion of privacy by casting “false light” on a person. In order to prove a “false light” claim, the
plaintiff must prove (1) disclosure to the public by the defendant; (2) the disclosure is a falsehood
concerning the plaintiff; and (3) the disclosure was the proximate cause of damages. Uranga v.
Federated Publ’ns, Inc., 138 Idaho 550, 553, 67 P.3d 29, 32 (2003). As noted above, it is
undisputed that there was no public disclosure. As a result, summary judgment was appropriate on
this theory. Having concluded that none of the alternative ways to establish invasion of privacy is
available to Galust or Julia, summary judgment on this cause of action was appropriately granted.
E. There is a genuine issue of material fact regarding Galust’s and Julia’s claims of
intentional infliction of emotional distress.
The complaint also alleges claims for intentional infliction of emotional distress based on
the purportedly false allegations made by Ovanes to law enforcement officials against Galust and
Julia. The alleged emotional distress is related to the fact that Galust and Julia were arrested and
jailed as a result of the allegations.
In order to establish a claim of intentional infliction of emotional distress,
the plaintiff must prove that: (1) the defendant’s conduct was intentional or
reckless; (2) the defendant’s conduct was extreme and outrageous; (3) there was a
causal connection between the defendant’s wrongful conduct and the plaintiff’s
emotional distress; and (4) the emotional distress was severe.
James v. City of Boise, 160 Idaho 466, 484, 376 P.3d 33, 51 (2016) (citing Edmondson v. Shearer
Lumber Prods., 139 Idaho 172, 179, 75 P.3d 733, 740 (2003)).
Below, the district court relied entirely on an absolute privilege to dispense with Galust’s
and Julia’s intentional infliction of emotional distress claims, and did not analyze the merits of
their claims. On appeal, Ovanes has continued to argue that an absolute privilege precludes the
emotional distress claims, but alternatively argues that his conduct was not “extreme and
outrageous” which would be required to state a cause of action. Because we have concluded that
Ovanes is not entitled to an absolute privilege under these circumstances, the district court erred
in granting summary judgment on the claims of Galust and Julia for intentional infliction of
emotional distress. However, Ovanes urges us to affirm on the basis that the allegations against
15
him do not rise to the level of “extreme and outrageous” behavior sufficient for the cause of action
to continue. Accordingly, we turn to this issue. See Mortensen v. Stewart Title Guar. Co., 149
Idaho 437, 446, 235 P.3d 387, 396 (2010) (citation omitted) (alteration in original) (“This [C]ourt
must uphold the finding and judgment of the trial court if it is capable of being upheld on any
theory.”).
“Courts have required very extreme conduct before awarding damages for the intentional
infliction of emotional distress.” Edmondson, 139 Idaho at 180, 75 P.3d at 741.
It is for the court to determine, in the first instance, whether the defendant’s conduct
may reasonably be regarded as so extreme and outrageous as to permit recovery, or
whether it is necessarily so. Where reasonable men may differ, it is for the jury,
subject to the control of the court, to determine whether, in the particular case, the
conduct has been sufficiently extreme and outrageous to result in liability.
Id. (quoting Restatement (Second) of Torts § 46 cmt. h (1965)). “Even if a defendant’s conduct is
unjustifiable, it does not necessarily rise to the level of ‘atrocious’ and ‘beyond all possible bounds
of decency’ that would cause an average member of the community to believe it was ‘outrageous.’”
Id. (citations omitted).
Examples of conduct that has been deemed sufficiently extreme and
outrageous by Idaho courts include: an insurance company speciously denying a
grieving widower’s cancer insurance claim while simultaneously impugning his
character and drawing him into a prolonged dispute, Walston v. Monumental Life
Ins. Co., 129 Idaho 211, 219–20, 923 P.2d 456, 464–65 (1996), prolonged sexual,
mental, and physical abuse inflicted upon a woman by her co-habiting boyfriend,
[Curtis v. Firth, 123 Idaho 598, 606–07, 850 P.2d 749, 757–58 (1993)], recklessly
shooting and killing someone else’s donkey that was both a pet and a pack animal,
Gill v. Brown, 107 Idaho 1137, 1138–39, 695 P.2d 1276, 1277–78 (Ct. App. 1985),
and real estate developers swindling a family out of property that was the subject
of their lifelong dream to build a Christian retreat. [Spence v. Howell, 126 Idaho
63, 773–74, 890 P.2d 714, 724–25 1995).]
Johnson v. McPhee, 147 Idaho 455, 464, 210 P.3d 563, 572 (Ct. App. 2009). In Johnson, the Court
of Appeals held that verbal abuse consisting of multiple instances where defendant verbally abused
the plaintiff in profanity-laced tirades was insufficient to constitute extreme and outrageous
conduct. Id. The Court of Appeals held that “[w]hile [the defendant’s] alleged conduct . . . if true,
was mean-spirited and crude, it does not rise to the level of extreme and outrageous conduct
required to kindle this cause of action.” Id. at 465, 210 P.3d at 573.
Obviously, making false allegations of criminal behavior against someone is egregious
behavior. As noted, it would also be unlawful. See I.C. § 18-5413. It is significantly more
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outrageous than subjecting someone to a profanity-laced tirade, which is not actionable. See
Johnson, 147 Idaho at 465, 210 P.3d at 573. We have also noted the potentially devastating
consequences of a false criminal allegation. Taking these factors into consideration and drawing
all inferences in favor of Galust and Julia, we hold that there is a genuine issue of material fact as
to whether Ovanes’ purported actions rise to the level of extreme and outrageous conduct. If
Ovanes had no reason to suspect that Galust and Julia had stolen from him, a reasonable jury could
find that making numerous, unsubstantiated allegations of criminal wrongdoing to the authorities
could qualify as extreme and outrageous conduct. Consequently, summary judgment regarding the
intentional infliction of emotional distress claims is reversed.
F. There is no genuine issue of material fact regarding Galust’s and Julia’s claims of
negligent infliction of emotional distress.
Galust and Julia’s complaint alleges claims of negligent infliction of emotional distress
based on the same facts as the intentional infliction of emotional distress claims. “The elements of
negligent infliction of emotional distress are (1) a legal duty recognized by law; (2) a breach of
that duty; (3) a causal connection between the defendant’s conduct and the plaintiff’s injury; and
(4) actual loss or damage.” Frogley v. Meridian Joint Sch. Dist. No. 2, 155 Idaho 558, 569, 314
P.3d 613, 624 (2013) (citations omitted). “Additionally, there must be a physical manifestation of
the plaintiff’s emotional injury, which is designed to provide a degree of genuineness that claims
of mental harm are not imagined.” Id. (citing Czaplicki v. Gooding Joint Sch. Dist. No. 231, 116
Idaho 326, 332, 775 P.2d 640, 646 (1989)).
While there may be a genuine issue of material fact regarding the four elements of negligent
infliction of emotional distress, there are no facts in the record regarding a physical manifestation
of emotional distress. Ovanes and Socorro moved for summary judgment on the basis that Galust
and Julia could not prove a prima facie case of negligent infliction of emotional distress. Once
Ovanes and Socorro satisfied their burden that there was a lack of a genuine issue of material fact
regarding the cause of action, the burden shifted to Galust and Julia to identify facts in the record
to support their claims. See Eagle Springs Homeowners Ass’n, Inc., 165 Idaho at 868, 454 P.3d at
510. Their briefing on the matter only focused on Ovanes’ conduct. Consequently, the pleadings
and argument failed to establish a claim against Socorro. Moreover, there is not a scintilla of
evidence to suggest either Galust or Julia suffered any physical manifestations from their alleged
emotional injuries. The two failed to point to facts in the record that created a genuine issue of
17
material fact regarding the negligent infliction of emotional distress claims. Accordingly, we
affirm the grant of summary judgment on these claims.
G. The district court’s summary judgment in favor of Socorro on all tort claims is
affirmed because she has no independent liability.
In paragraphs 41 through 45 of their complaint, Galust and Julia allege that Socorro is
liable for the allegedly wrongful conduct of Ovanes “by reason of her marriage to Ovanes.”
However, at no point during this action was Socorro legally married to Ovanes. Galust and Julia
point to no other authority or reason that Socorro would be liable for any of the claims based on
Ovanes’ statements made to law enforcement. Accordingly, the district court’s decision to grant
Socorro summary judgment on all tort claims is affirmed.
H. The district court did not err in concluding that the statute of limitations barred
Galust’s and Julia’s contract claims.
Galust and Julia asserted claims of breach of contract, fraud, unjust enrichment, and
quantum meruit. These claims were based on allegations that Ovanes hired Galust and Julia to
build a large storage building and provide landscaping for property owned by Socorro and used by
Ovanes. Galust and Julia claim that they planted hundreds of trees and shrubs on the property and
did other extensive landscaping, excavation, and improvement. Additionally, Galust and Julia
allege that they were hired to build a large storage building on Ovanes’ property, and did so. The
two assert that Ovanes never paid them for their time and labor, despite owing them at least
$300,000.
In their motion for summary judgment, Ovanes and Socorro argued that the statute of
limitations for the oral contract had expired. According to Ovanes and Socorro, Galust and Julia
“placed a shack on [Ovanes’ and Socorro’s] property, performed some landscaping, and drilled a
well in May, 2010, and were ordered off their project by the end of Spring, 2010.” Galust asserted
in his declaration—submitted with his memorandum in opposition to summary judgment—that
“Ovanes agreed to all of these services, agreed to compensation, and a meeting of our minds
occurred on this work and thoughts occurred [sic] which were commenced within four years of
the filing of the complaint herein.” Ovanes and Socorro argued that Galust’s statement (that the
work was commenced within four years of filing the complaint) fails to materially contradict
Ovanes’ and Socorro’s evidence that the work was concluded in the spring of 2010.
The district court granted summary judgment on the contract claims because it concluded
that the statute of limitations had run on all of the claims. The district court noted,
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Galust and Julia have offered no evidence of when the landscaping and construction
work took place beyond a vague statement that “Ovanes agreed to all of these
services, agreed to compensation, and a meeting of our minds occurred on this work
and thoughts occurred [sic] which were commenced within four years of the filing
of the compliant herein.” . . . Galust and Julia claim to have purchased building
material and to have removed plants and other materials from [Galust’s] property
and taken them to Ovanes’ property. But they provide no proof of either their
purchases or their work. Galust and Julia have not provided proof of their actual
expenditures, but instead rely on the improved value of the property as proof of
their damages. Galust and Julia also do not provide any dates that would show that
the actions took place within the statute of limitations.
The statute of limitations for an oral contract is four years. I.C. § 5-217. This is also the
statute of limitations for claims based on unjust enrichment or quantum meruit. I.C. § 5-224; see
also Hayden Lake Fire Prot. Dist. v. Alcorn, 141 Idaho 388, 403, 111 P.3d 73, 88 (2005), overruled
on other grounds by Farber v. Idaho State Ins. Fund, 152 Idaho 495, 272 P.3d 467 (2012). The
determination of the applicable statute of limitations is a question of law over which this Court has
free review. Id.A cause of action for breach of contract accrues upon breach for limitation purposes.
Simons v. Simons, 134 Idaho 824, 830, 11 P.3d 20, 26 (2000); see also Cuevas v. Barraza, 146
Idaho 511, 517, 198 P.3d 740, 746 (Ct. App. 2008). In this case, breach would have occurred after
Galust and Julia had completed the requested work, and once Ovanes refused to pay what was due.
As this Court does not have before it the material terms of the agreement, Idaho law dictates that
payment would have been due within a reasonable time after the work was performed, taking into
consideration all the surrounding circumstances. Irvine v. Perry, 78 Idaho 132, 143, 299 P.2d 97,
104 (1956) (quotation omitted).
The district court did not err in granting summary judgment to Ovanes and Socorro on the
contract claims. The only evidence in the record of when work was performed was in 2010 when
Galust placed a shack and began drilling a well on the property. After Ovanes provided this
information, the burden shifted to Galust and Julia to point to evidence in the record which
demonstrated a genuine issue of material fact. The only evidence that Galust and Julia point to is
Galust’s statement that “Ovanes agreed to all of these services, agreed to compensation, and a
meeting of our minds occurred on this work and thoughts occurred [sic] which were commenced
within four years of the filing of the complaint herein.” Galust and Julia do not point to receipts
showing dates upon which they purchased materials or point to any date to cast doubt on Ovanes’
evidence. The statement provided by Galust is no more than an indefinite and conclusory
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statement. “Statements that are conclusory or speculative do not satisfy either the requirement of
admissibility or competency under” I.R.C.P. 56(c)(4). Dulaney v. St. Alphonsus Reg’l Med. Ctr.,
137 Idaho 160, 164, 45 P.3d 816, 820 (2002) (citation omitted).
Therefore, there is no genuine issue of fact regarding whether the statute of limitations had
run. The last known date of work performed was in the spring of 2010, well outside the four-year
statute of limitations period. Consequently, the district court did not err in granting Ovanes and
Socorro summary judgment on Galust’s and Julia’s contract claims.
Additionally, mixed into the contract claims is an allegation of fraud.12 Essentially, it
appears that Galust and Julia claim that they were defrauded out of their labor and materials for
improvements made on the property. Here, the fraud claims are also barred by the statute of
limitations. The statute of limitations for fraud is three years. I.C. § 5-218. As noted above, the
only evidence in the record regarding the timing of the work performed was in the spring of 2010.
This date is well outside the statute of limitations of three years. Galust and Julia do not point to
anything in the record to create a genuine issue of material fact. Accordingly, summary judgment
was appropriate on the fraud claims.
I. No party is entitled to attorney fees on appeal.
Galust and Julia did not request attorney fees in their opening brief. Accordingly, they are
not entitled to attorney fees on appeal. I.A.R. 41.
Ovanes and Socorro request attorney fees on appeal pursuant to Idaho Code section 12-
121.
However, this appeal arises from an I.R.C.P. 54(b) certified judgment which
resolved some, but not all, of the parties’ claims. Since each claim in an action must
be resolved before a court may determine the prevailing party, the identity of the
prevailing party in this case will not be known until proceedings at the trial level
are complete.
Steel Farms, Inc. v. Croft & Reed, Inc., 154 Idaho 259, 269, 297 P.3d 222, 232 (2012) (citing
I.R.C.P. 54(d)(1); Bagley v. Thomason, 149 Idaho 799, 804–05, 241 P.3d 972, 977–78 (2010)).
Accordingly, it would be premature to award any attorney fees at this juncture. Upon the
district court’s entry of a final judgment deciding each claim below, the court is to determine which
party has prevailed and whether that party is entitled to attorney fees related to this appeal.
12
Although not addressed by the district court, the fraud claim was not pleaded with particularity as required in
I.R.C.P. 9(b). Galust and Julia failed to plead the elements of fraud in the general sense, let alone with particularity.
20
IV. CONCLUSION
For the foregoing reasons, we affirm the grant of summary judgment regarding the tort
claims of invasion of privacy and negligent infliction of emotional distress, as well as the contract
and fraud claims. However, we reverse the grant of summary judgment regarding the claims of
malicious prosecution, intentional infliction of emotional distress, and defamation.
As Socorro has no liability on any of the remaining claims, including the conversion claims
not appealed, Socorro’s summary judgment is affirmed and on remand she should be dismissed
from the case. As a prevailing party on appeal, Socorro is entitled to her costs.
Finally, no party is entitled to attorney fees on appeal.
Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER CONCUR.
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