Kerr v. Bank of America, Idaho, N.A.
| Decision Date | 22 November 2011 |
| Docket Number | 2011 Unpublished Opinion No. 719,Docket No. 37754 |
| Parties | TERRY LEE KERR, Plaintiff-Appellant, v. BANK OF AMERICA, IDAHO, N.A., Defendant-Respondent. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bonneville County. Hon. Jon J. Shindurling, District Judge.
Order granting partial dismissal; orders granting partial summary judgment; order
denying motions for sanctions and/or cease and desist orders; order denying
motion for change of venue; and order granting motion to extend
mediation, affirmed.
Terry Lee Kerr, Idaho Falls, pro se appellant.
Hawley Troxell Ennis & Hawley LLP; Michelle R. Points, Boise, for respondent.
Terry Lee Kerr appeals the district court's order granting dismissal of two claims in his complaint and orders granting summary judgment as to the other claims in his complaint. Kerr also appeals the district court's denial of his numerous motions for sanctions and/or cease and desist orders, denial of his motion for a change of venue, and granting of the motion to extend mediation. For the reasons set forth below, we affirm.
Kerr filed a complaint against Bank of America Idaho, N.A. ("Bank of America"), alleging several different "Claims for Relief" as follows:
Along with its answer, Bank of America filed a motion to dismiss, based on Idaho Rule of Civil Procedure 12(b)(6) affirmative defense for failure to state a claim, as to the fifth, seventh, eighth, and tenth claims. Bank of America simultaneously filed an Idaho Rule of Civil Procedure 56(c) motion for summary judgment as to the first, second, third, fourth, and sixth claims.
In considering the two motions and accompanying memorandums of support, the court addressed each claim individually. First, it addressed the claims subject to the motion to dismiss. The district court found the fifth claim of bad faith and the tenth claim of intentional infliction of emotional distress appropriate for dismissal under Idaho Rule of Civil Procedure 12(b)(6). Construing all facts in favor of Kerr, the district court found Kerr adequately stated his seventh claim of defamation because he asserted Bank of America told other financial institutions to avoid dealing with him due to excessive fees and overdrafts on his account. Concluding that damage to Kerr's reputation and harassment was sufficient to allege harm, the trial court denied the motion to dismiss this claim. In considering the claim of interference with a prospective economic advantage, the eighth claim, the district court treated the motion to dismiss as a motion for summary judgment because evidence and affidavits outside of the pleadings were presented to the court for consideration of that claim.
In its examination of the claims subject to the motion for summary judgment, the court granted the motion as to all claims: the first, second, third, fourth, sixth, and eighth. Generally,this conclusion was predicated on the fact Kerr was unable to or did not cite a statutory or other legal basis for these claims.
Because the claim of defamation survived the first motions, the case proceeded to discovery. The case was also set for mediation; however, discovery and other proceedings were not stayed pending the outcome of mediation. After conducting more of its own investigation, Bank of America filed another motion for summary judgment as to the defamation claim and asked the court to postpone mediation. The district court granted the extension for mediation and held a hearing on the second summary judgment motion. The evidence on the motion presented to the court showed Bank of America was unable to confirm any contacts between its agents and any other financial institutions regarding Kerr's personal information or account history. Without evidence of any statement made by Bank of America to another person, Kerr could not sustain a defamation claim. After oral argument from both parties, the district court granted the second motion for summary judgment.
From the time the complaint was filed up until the hearing on the second motion for summary judgment, Kerr also made several other motions: eleven motions for sanctions and/or cease and desist orders; one motion for a change of venue; one motion to compel discovery; and one motion to amend his complaint.3 The motions for sanctions and/or cease and desist orders mainly consisted of allegations that the Bank of America lawyers were orchestrating and participating in a large civil conspiracy to harass, harm, defame, and smear Kerr and his family. The allegations ranged in scope and subject from paying police to alter an infraction Kerr incurred to a misdemeanor, to paying school children to threaten Kerr's son, to extinguishing a possible loan modification on a home Kerr allegedly owned. The district court heard argument on these numerous motions at the hearing on the second motion for summary judgment and denied all of the motions in one order.
The motion for a change of venue was precipitated by Kerr's assertions that the civil conspiracy in which Bank of America and its lawyers were involved was so extensive he would be unable to receive a fair trial in Bonneville County. The district court found no evidence attributing the allegations to the bank and held that generalized complaints about the community failed to show how a fair trial would not be available. Thus, the district court denied the motionfor change of venue. The motion to compel discovery was not set for hearing until after the hearing on the second motion for summary judgment and became moot after the district court granted judgment for Bank of America. Finally, the motion to amend the complaint was not noticed for hearing and the court did not consider it.
After judgment was entered for Bank of America, Kerr timely filed an appeal. Because Kerr appeals substantially all prior dealings with the trial court, we will review each decision by the district court in turn.
Review of a district court's dismissal of a complaint under Idaho Rule of Civil Procedure 12(b)(6) is de novo. Taylor v. McNichols, 149 Idaho 826, 832, 243 P.3d 642, 648 (2010). As an appellate court, we will affirm a trial court's grant of a Rule 12(b)(6) motion where the record demonstrates that there are no genuine issues of material fact and the case can be decided as a matter of law. Young v. City of Ketchum, 137 Idaho 102, 104, 44 P.3d 1157, 1159 (2002). When reviewing an order of the district court dismissing a case pursuant to Rule 12(b)(6), the nonmoving party is entitled to have all inferences from the pleadings viewed in its favor, and only then may the question be asked whether a claim for relief has been stated. Id. The issue is not whether the plaintiff will ultimately prevail, but whether the party is entitled to offer evidence to support the claims in the pleadings. Orthman v. Idaho Power Co., 126 Idaho 960, 962, 895 P.2d 561, 563 (1995). All factual allegations will be considered true, unless they are purely conclusory. Orrock v. Appleton, 147 Idaho 613, 618, 213 P.3d 398, 403 (2009). Where all factual allegations in the pleadings, if true, still fail to meet the elements of a claim showing a plaintiff is entitled to relief, dismissal is appropriate. See id. We review the district court's grant of dismissal under Rule 12(b)(6) as to Kerr's fifth and tenth claims, bad faith and intentional infliction of emotional distress, respectively.
Kerr asserts Bank of America employees failed to post credits and placed cash holds on Kerr's checking account in bad faith, causing him to overdraw his account. Additionally, other checks and debits came through with resulting overdraft bank fees. Because all bankingcontracts contain an implied covenant of good faith and fair dealing, Kerr asserts he is entitled to both contract and tort damages.
A claim of bad faith can be initiated as an independent tort claim or as a breach of the covenant of good faith and fair dealing in a contract. See White v. Unigard Mut. Ins. Co., 112 Idaho 94, 100, 730 P.2d 1014, 1020 (1986). However, the claim in tort is limited in Idaho to the insurance context. Idaho First Nat'l Bank v. Bliss Valley Foods, Inc., 121 Idaho 266, 275-76, 824 P.2d 841, 850-51 (1991). Therefore, we address only whether Kerr states a claim sounding in contract.
A duty of good faith and fair dealing is implied in any contract. Indep. Sch. Dist. of Boise City v. Harris Family Ltd. P'ship, 150 Idaho 583, 589, 249 P.3d 382, 388 (2011). Whether the covenant of a contract has been breached is an objective determination of whether the parties have acted in good faith in terms of enforcing contractual provisions. Wesco Autobody Supply, Inc. v. Ernest, 149 Idaho 881, 891, 243 P.3d 1069, 1079 (2010). "The covenant requires that the parties perform, in good faith, the obligations imposed by their agreement, and a violation of the covenant occurs only when either party violates, nullifies or significantly impairs any benefit of the contract." Idaho Power Co. v. Cogeneration, Inc., 134 Idaho 738, 750, 9 P.3d 1204, 1216 (2000). However, it only arises in connection to the terms of the agreement. Wesco, 149 Idaho at 892, 243 P.3d at 1080; Taylor v. Browning, 129 Idaho 483, 491, 927 P.2d 873, 881 (1996).
In order to establish a claim for relief in the pleadings, Kerr needed to recite at...
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