Hyde-Rhodes v. IDHW

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 47757

KIMBERLY ANN HYDE-RHODES, )
) Filed: March 23, 2021
Plaintiff-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STATE OF IDAHO, DEPARTMENT OF ) OPINION AND SHALL NOT
HEALTH AND WELFARE, ) BE CITED AS AUTHORITY
)
Defendant-Respondent. )
)

Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Jefferson County. Hon. Stevan H. Thompson, District Judge.

Judgment dismissing amended petition, affirmed.

Kimberly Ann Hyde-Rhodes, Washington, UT, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Dayton P. Reed, Deputy Attorney
General, Boise, for respondent.
________________________________________________

HUSKEY, Chief Judge
Kimberly Ann Hyde-Rhodes appeals from the district court’s order dismissing her
amended petition for civil relief. Hyde-Rhodes alleges the district court erred in dismissing her
amended petition. Because Hyde-Rhodes does not challenge several of the bases on which the
district court dismissed her amended petition, we affirm the dismissal on the unchallenged
grounds. Alternatively, Hyde-Rhodes does not support the sole claim properly before this Court
with any argument or authority, and accordingly waives consideration of the issue. To the extent
Hyde-Rhodes makes additional allegations of error by the district court, she similarly waives
consideration of these claims. Thus, the district court’s judgment summarily dismissing Hyde-
Rhodes’ amended petition is affirmed and attorney fees are awarded to the State of Idaho
Department of Health and Welfare (Department) on appeal.

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I.
FACTUAL AND PROCEDURAL BACKGROUND
The Department initiated child protection proceedings against Hyde-Rhodes and took her
children into care. Dissatisfied with the child protection proceedings, Hyde-Rhodes filed a
petition against the Department purportedly for negligence and defamation. In the action, Hyde-
Rhodes requested the court order reimbursement from the Department for expenses she incurred
because of the child protection action, order the Department to adhere to unspecified obligations,
and issue a decision on the various motions that she filed in the child protection case.
The Department filed a motion to dismiss pursuant to Idaho Rule of Civil Procedure
12(b)(6) and (8), arguing that Hyde-Rhodes’ action against the Department failed to state a claim
for which relief could be granted and was duplicative of the child protection case. Hyde-Rhodes
filed a motion to transfer the action to district court because she asserted, for the first time, that
she was claiming $3 million in damages which exceeded the jurisdictional limits of the
magistrate court. Based on her assertion, Hyde-Rhodes filed an amended petition asserting $3
million in damages against the Department. The magistrate court transferred the case to the
district court.
The Department filed a motion to dismiss Hyde-Rhodes’ amended petition pursuant to
I.R.C.P. 12(b)(1), (6), and (8). After a hearing on the motion, the district court found that the
magistrate court assigned to the child protection case had not issued a final judgment in that case;
Hyde-Rhodes’ action was duplicative of the child protection proceedings and thus subject to
dismissal pursuant to I.R.C.P. 12(b)(8); Hyde-Rhodes’ notice was likely not properly filed; the
Department was immune from a defamation suit as a government agency; and Hyde-Rhodes’
amended petition failed to state a negligence or defamation claim and was subject to dismissal
pursuant to I.R.C.P. 12(b)(6). Accordingly, the district court dismissed Hyde-Rhodes’ amended
petition. Hyde-Rhodes timely appeals.
II.
ANALYSIS
Hyde-Rhodes alleges the district court erred in dismissing her amended petition. In
response, the Department asserts various reasons supporting the district court’s dismissal of the
amended petition and requests attorney fees on appeal.

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A. The District Court’s Dismissal of Hyde-Rhodes’ Amended Petition Is Affirmed on
Unchallenged Grounds
The Idaho Supreme Court has held that when a trial court makes a ruling based on two
alternative grounds and only one of those grounds is challenged on appeal, the appellate court
must affirm on the uncontested basis. State v. Grazian, 144 Idaho 510, 517-18, 164 P.3d 790,
797-98 (2007). On appeal, Hyde-Rhodes does not challenge the district court’s findings that her
petition was duplicative of the child protection action and subject to dismissal pursuant to
I.R.C.P. 12(b)(8), that the claims relating to the child protection action were not properly before
the district court because no final judgment had been issued in the child protection action, or that
the Department was immune from a defamation suit as a government agency. Consequently, we
affirm the dismissal of Hyde-Rhodes’ amended petition on those grounds.
B. Fifteen of Hyde-Rhodes’ Listed Issues Are Not Properly Before This Court and the
Only Issue Properly Before This Court Is Waived on Appeal
Alternatively, the majority of Hyde-Rhodes’ allegations of error are not properly before
this Court for consideration. On appeal, Hyde-Rhodes alleges sixteen issues. However, fifteen
of the issues arise from the separate child protection case. Hyde-Rhodes’ appeal in this case
cannot encompass claims from a completely different case.
However, Hyde-Rhodes’ sixteenth and only remaining issue is properly before this Court.
For this issue, Hyde-Rhodes alleges that the district court erred in dismissing her amended
petition because the court should have investigated all of the claims relating to the child
protection case and allowed Hyde-Rhodes the opportunity to “state [her] case” before dismissing
the petition. This is the entirety of Hyde-Rhodes’ articulation of this issue; she does not explain
how the district court erred beyond this conclusory allegation or provide any legal authority to
support her argument. A party waives an issue on appeal if either argument or authority is
lacking. Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997). Pro se
litigants are held to the same standards as those litigants represented by counsel. Michalk v.
Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585 (2009). Pro se litigants are not excused from
abiding by procedural rules simply because they are appearing pro se and may not be aware of
the applicable rules. Id. Because Hyde-Rhodes fails to support the only issue properly before
this Court with sufficient argument or authority, she has waived consideration of this issue on
appeal.

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C. Hyde-Rhodes’ References to Other Errors by the District Court Are Waived
Because She Does Not Include the Errors in Her Statement of Issues, Provide an
Adequate Record, or Support the Claims of Error With Argument and Authority
Although not listed as issues on appeal, Hyde-Rhodes mentions additional alleged errors
by the district court in her appellate brief. Generally, the failure of an appellant to include an
issue in the statement of issues as required by Idaho Appellate Rule 35(a)(4) will eliminate
consideration of the issue on appeal. Kugler v. Drown, 119 Idaho 687, 691, 809 P.2d 1166, 1170
(Ct. App. 1991). However, this rule may be relaxed where the issue is argued in the briefing and
citation to authority is provided. Everhart v. Washington Cnty. Rd. and Bridge Dep’t, 130 Idaho
273, 274, 939 P.2d 849, 850 (1997).
In these passing claims of error, Hyde-Rhodes alleges the district court erred in
dismissing her amended petition. Although not entirely clear, it appears Hyde-Rhodes is
challenging the dismissal pursuant to I.R.C.P. 12(b)(6). Idaho Rule of Civil Procedure 12(b)(6)
is a defense to an assertion that the pleading fails to state a claim upon which relief can be
granted. Hyde-Rhodes argues that she made “a valid legal claim in [her] petition about
negligence, defamation, and served it properly” and “clearly [alleged] illegal conduct,” yet the
district court “failed to recognize [her] claims of relief within [her] petition and [her] claim for
relief.” Despite these assertions, Hyde-Rhodes does not allege with any specificity how the
district court erred, point to evidence in the record to show she asserted a valid negligence or
defamation claim, explain how “illegal conduct” meets the elements of either a negligence or
defamation claim, or provide sufficient argument or authority to support her assertions.
Consequently, Hyde-Rhodes fails to establish any error by the district court and we affirm the
court’s dismissal of the petition pursuant to I.R.C.P. 12(b)(6).
Additionally, Hyde-Rhodes alleges the district court erred because it did not give her the
opportunity to amend her petition before dismissing it, despite the court stating at the dismissal
hearing that it would take the matter under advisement and give her an opportunity to amend the
petition. A petitioner may move to amend her petition to remedy deficiencies identified by the
trial court, but the court has discretion whether to grant the motion. See Parkinson v. Bevis, 165
Idaho 599, 608-09, 448 P.3d 1027, 1036-37 (2019). Thus, a trial court’s denial of a plaintiff’s
motion to amend her petition is subject to review under an abuse of discretion standard. Id. at
609, 448 P.3d at 1037. However, it is the responsibility of the appellant to provide a sufficient
record to substantiate her claims on appeal. Powell v. Sellers, 130 Idaho 122, 127, 937 P.2d 434,

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439 (Ct. App. 1997). In the absence of an adequate record on appeal to support the appellant’s
claims, we will not presume error. Id.
Nothing in the record shows that Hyde-Rhodes filed a motion for leave to further amend
her amended petition. The court minutes from the summary dismissal hearing do not indicate
that Hyde-Rhodes orally moved the district court for leave to amend her petition or that the
district court granted leave to amend the amended petition. Instead, the court minutes from the
hearing indicate only that the district court took the matter under advisement. Hyde-Rhodes has
not provided a transcript of the hearing on appeal. Thus, the clerk’s record on appeal does not
support Hyde-Rhodes’ claim that the district court told her during the dismissal hearing that it
would grant her an opportunity to amend her petition. Consequently, Hyde-Rhodes fails to
persuade this Court that the district court erred.
Further, the record shows that the district court explicitly found it unnecessary to grant
Hyde-Rhodes leave to amend her amended petition because any further amendment would be
futile. Hyde-Rhodes does not provide any argument or authority challenging the district court’s
finding that any amendments would be futile; thus, she has failed to establish any error in
dismissing her amended petition. Because Hyde-Rhodes did not move for leave to amend her
amended petition, failed to provide an adequate record to support her assertion that the district
court stated it would grant her leave to amend her amended petition, and did not provide
argument and authority to support a challenge to the court’s finding that providing leave to
amend would be futile, she has not established that the court abused its discretion by dismissing
her amended petition without granting leave to further amend.
D. The Department is Awarded Attorney Fees on Appeal
The Department requests attorney fees on appeal pursuant to Idaho Code § 12-117(1).
Idaho Code § 12-117(1) provides:
Unless otherwise provided by statute, in any proceeding involving as
adverse parties a state agency or a political subdivision and a person, the state
agency, political subdivision or the court hearing the proceeding, including on
appeal, shall award the prevailing party reasonable attorney’s fees, witness fees
and other reasonable expenses, if it finds that the nonprevailing party acted
without a reasonable basis in fact or law.
Pursuant to I.A.R. 41, an award of attorney fees may be granted to the prevailing party and such
an award is appropriate when the court finds that the appeal has been brought or defended
frivolously, unreasonably, or without foundation.

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Here, Hyde-Rhodes’ appeal did not allege error with the district court’s decision with any
specificity, support her appeal with any argument or authority, or provide support in the record
for her assertion that the district court erred. Instead, Hyde-Rhodes mostly reiterates various
grievances with the Department’s handling of the child protection proceedings. Hyde-Rhodes
notes she has approximately sixteen pending actions and has been declared a vexatious litigant.
Because Hyde-Rhodes has pursued this appeal without a reasonable basis in fact or law, the
Department is entitled to attorney fees for the appeal. As the prevailing party, the Department is
also entitled to costs pursuant to I.A.R. 40.
III.
CONCLUSION
Hyde-Rhodes does not challenge several of the bases on which the district court
dismissed her amended petition, and we affirm the dismissal on the unchallenged grounds.
Although the majority of Hyde-Rhodes’ allegations of error are not properly before this Court for
consideration, Hyde-Rhodes does not support the sole issue properly before this Court with any
argument or authority, and accordingly Hyde-Rhodes waives consideration of the issue. To the
extent Hyde-Rhodes makes additional allegations of error by the district court, she did not list
these allegations in her statement of issues and fails to provide an adequate record or argument
and authority to support these claims; consequently Hyde-Rhodes waives consideration of these
claims on appeal. Therefore, the district court did not err and the order dismissing Hyde-
Rhodes’ amended petition is affirmed. The Department is awarded costs and attorney fees on
appeal.
Judge GRATTON and Judge LORELLO CONCUR.

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