               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 46790

MIA KIM VIG and TOMMY VIG,                     )
                                               )   Filed: January 24, 2020
       Plaintiffs-Appellants,                  )
                                               )   Karel A. Lehrman, Clerk
v.                                             )
                                               )   THIS IS AN UNPUBLISHED
SARAH JANE GERDES,                             )   OPINION AND SHALL NOT
                                               )   BE CITED AS AUTHORITY
       Defendant-Respondent,                   )
                                               )
and                                            )
                                               )
JOHN DOE and/or JANE DOE,                      )
                                               )
       Defendants.                             )
                                               )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

       Judgment of dismissal, affirmed.

       Mia Kim Vig and Tommy Vig; West Hills, California, pro se appellants.

       Paine Hamblen LLP; Scott C. Cifrese, Spokane, Washington, for respondent.
                ________________________________________________

HUSKEY, Chief Judge
       Mia Kim Vig and Tommy Vig appeal from the district court’s final judgment of
dismissal. Specifically, the Vigs argue the district court erred when it granted Sarah Jane
Gerdes’s motion to dismiss 1 (“motion for summary judgment”) and denied the Vigs’ motion for
summary judgment and motion to amend. Because the Vigs failed to establish a claim of



1
        Gerdes filed the motion to dismiss pursuant to Idaho Rule of Civil Procedure 12(b)(6).
The district court determined it was considering matters outside the pleadings and, thus, treated
Gerdes’s motion to dismiss as a motion for summary judgment, pursuant to I.R.C.P. 56. See
I.R.C.P. 12(d). We will hereafter refer to this motion as Gerdes’s motion for summary judgment.

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defamation per se, the district court properly granted Gerdes’s motion for summary judgment.
We therefore affirm the district court’s judgment of dismissal.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Gerdes wrote a book entitled “Sue Kim of the Kim Sisters, The Authorized Biography.”
The book was an account of Sue Kim, who was a member of the Kim Sisters musical group.
Mia Kim, who was also a member of the Kim Sisters, and her husband, Tommy, sued Gerdes for
defamation resulting from publication of the book.
       The Vigs’ complaint alleged libel, defamation, intentional infliction of emotional distress,
and intentional interference with prospective economic advantage. However, the Vigs did not
identify any specific monetary amount of damage in their complaint. Instead, the Vigs explained
the contents of the book were libel per se, 2 and as such, the Vigs’ claim was “actionable without
further proof of fact or damages.” The complaint listed the following general damages: the lack
of invitations to perform in Korea; the damage to their reputation as human beings and
performers; and the damage to their reputation for honesty and integrity, their standing in the
entertainment community, and present and future employment.
       Gerdes filed an answer to the Vigs’ complaint. The Vigs subsequently withdrew the
claims of intentional infliction of emotional distress and intentional interference with prospective
economic advantage, and the same day, the Vigs filed a motion for summary judgment. 3 The
Vigs served Gerdes by mail with two separate requests for admission. Gerdes failed to respond
to the requests. The Vigs also filed a motion to amend complaint, seeking leave to add a claim
of fraud. In addition, the Vigs submitted a notice to the court which indicated they served
Gerdes with three sets of requests for admission. The district court ultimately held that Gerdes




2
        Libel consists of the publication of defamatory matter by written or printed words.
Restatement (Second) of Torts § 568 (1977). The Vigs alleged both “libel” and “defamation” in
their complaint, and use “libel per se” and “defamation per se” interchangeably throughout this
case, but any difference of usage is not dispositive in the current case. For consistency, this
Court will refer to the claim as “defamation,” unless it cites to motions or arguments made by the
Vigs.
3
       Within the next four months, the Vigs filed ten supplemental documents in support of
their motion for summary judgment.
                                                 2
was properly served with the first two sets of requests for admission and because she failed to
respond, the requests were deemed admitted pursuant to Idaho Rule of Civil Procedure 36(a)(4). 4
          Gerdes sought to dismiss the suit and filed a motion summary judgment along with a
memorandum in support of the motion for summary judgment. In her motion, Gerdes argued she
did not defame plaintiffs because the statements were not actionable either as generally
defamatory or defamatory per se statements; the Vigs were public figures; and truth is an
absolute defense to an allegation of defamation. Gerdes further asserted that because the Vigs
had not pleaded or established an actionable claim, the complaint should be dismissed. Various
other pretrial motions were filed by both parties. The district court held a hearing on three
motions: the Vigs’ motion for summary judgment, the Vigs’ motion to amend complaint, and
Gerdes’s motion for summary judgment. The district court issued a memorandum decision and
order denying the Vigs’ motion for summary judgment, denying the Vigs’ motion to amend
complaint, and granting Gerdes’s motion for summary judgment. The district court entered a
judgment of dismissal and found the Vigs did not establish a general defamation claim. The
district court did not address whether the Vigs had established a defamation per se claim. The
Vigs timely appeal.
                                                 II.
                                    STANDARD OF REVIEW
          On appeal, we exercise free review in determining whether a genuine issue of material
fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v.
Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986).                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. I.R.C.P. 56(c). The movant has the burden of
showing that no genuine issues of material fact exist. Stoddart v. Pocatello Sch. Dist. No. 25,
149 Idaho 679, 683, 239 P.3d 784, 788 (2010). The burden may be met by establishing the
absence of evidence on an element that the nonmoving party will be required to prove at trial.
Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App. 1994). Such an absence of
evidence may be established either by an affirmative showing with the moving party’s own

4
          Although Gerdes challenged the sufficiency of service below, this issue is not raised on
appeal.

                                                 3
evidence or by a review of all the nonmoving party’s evidence and the contention that such proof
of an element is lacking. Heath v. Honker’s Mini-Mart, Inc., 134 Idaho 711, 712, 8 P.3d 1254,
1255 (Ct. App. 2000). Once such an absence of evidence has been established, the burden then
shifts to the party opposing the motion to show, via further depositions, discovery responses or
affidavits, that there is indeed a genuine issue for trial or to offer a valid justification for the
failure to do so under I.R.C.P. 56(d). Sanders v. Kuna Joint Sch. Dist., 125 Idaho 872, 874, 876
P.2d 154, 156 (Ct. App. 1994). Disputed facts and reasonable inferences are construed in favor
of the nonmoving party. Castorena v. Gen. Elec., 149 Idaho 609, 613, 238 P.3d 209, 213 (2010).
This Court freely reviews issues of law. Cole v. Kunzler, 115 Idaho 552, 555, 768 P.2d 815, 818
(Ct. App. 1989).
                                                III.
                                           ANALYSIS
       The Vigs claim the district court erred when it granted Gerdes’s motion for summary
judgment and denied the Vigs’ motion for summary judgment. 5 The Vigs argue they were
defamed by Gerdes and that her admissions, by default, establish defamation. Although the Vigs
briefly address the district court’s denial of their motion for summary judgment, an order
denying a motion for summary judgment is not an appealable order. Verity v. USA Today, 164
Idaho 832, 841, 436 P.3d 653, 662 (2019). Thus, this appeal is limited to the issue of whether
the district court correctly granted Gerdes’s motion for summary judgment.
       According to the Vigs, summary judgment was not appropriate because Gerdes failed to
respond to requests for admission. The Vigs also claim the district court erred because it failed
to grant their claim of defamation per se. While the Vigs make several broad and general
allegations about Gerdes’s book, they direct this Court to two specific excerpts from the book
which are the bases for their claims. The first instance involved a demand letter and a financial
settlement, which was discussed on page 285 of Gerdes’s book. 6 A second instance involved a



5
        The Vigs also claim the district court erred in denying the motion to amend. However,
the Vigs provide no argument or authority to support why the district court erred in denying their
motion to amend the complaint. Because a party waives an issue on appeal if either argument or
authority is lacking, the Vigs waive this issue on appeal. Powell v. Sellers, 130 Idaho 122, 128,
937 P.2d 434, 440 (Ct. App. 1997).
6
       The passage at issue states:

                                                 4
passage from page sixty of the book, in which Mia Kim Vig’s father said Mia Kim Vig would be
“one less mouth to feed and person to worry about” once she departed from the family home and
joined the other Kims as part of the musical group. 7 Gerdes argues the Vigs did not establish the
statements were defamatory, and in the alternative, the Vigs failed to establish defamation per se
as alleged in their complaint.
       There are two types of defamation claims: general defamation claims and defamation per
se claims. See Hill v. Stubson, 420 P.3d 732, 741 (Wyo. 2018). In a general defamation action,
a plaintiff must prove the defendant: (1) communicated information concerning the plaintiff to
others; (2) the information was defamatory; and (3) the plaintiff was damaged because of the
communication. Irish v. Hall, 163 Idaho 603, 607, 416 P.3d 975, 979 (2018). In a general
defamation case, a defamatory statement is one that tends to harm a person’s reputation, usually
by subjecting the person to public contempt, disgrace, or ridicule, or by adversely affecting the
person’s business. Id. On the other hand, a statement is defamatory in a defamation per se case
when the statement involves: (1) a criminal offense; (2) a loathsome disease; (3) a matter


               Then misfortune struck two times over. The first came in the form of a
       demand letter from Mia. The former group member had continued to receive
       payments every week for years, even though she hadn’t performed. [Sue’s]
       generosity had long outstripped Mia’s participation, and as she affirmed to John,
       not once had she regretted her decision. It had been the right thing to do. But
       now, even Sue’s unending reservoir of kindness went dry when she read the note
       from her former adopted sister.
               She immediately heeded John’s advice to pay her off and be done with the
       woman. They hired Norm Kershman, a former union lawyer, to negotiate a
       settlement, one that included a one-time lump sum of $52,500, a figure Sue
       thought a fortune. With the money was the agreement and rights for Sue to
       continue using the Kim Sisters name, and Mia’s inability to reference the Kim
       Sisters in her own solo pursuits, should she continue on stage. Sue and John had
       no other options than to attain a second mortgage on their home, a fact neither
       disclosed in the paperwork. Once the final documentation was signed, Sue never
       heard from Mia again. All the years of work, family and friendship gone once she
       had a check.
7
       The passage at issue states:
       Since joining the Kim family, [Mia] retreated into a quiet role, uncomfortable
       with taking the beds or food that rightfully belonged to her cousins. By
       performing, she knew she’d be contributing to the family, not taking away.
       [Mia’s father] gave her his full blessing: “It is one less mouth to feed and person
       to worry about.”

                                                5
incompatible with business, trade, profession, or office; or (4) serious sexual misconduct. Hill,
420 P.3d at 741.8 Unlike in a general defamation action, where a special damage amount must
be asserted, statements may be defamatory per se without proof of special damages. Farber v.
Cornils, 94 Idaho 326, 327, 487 P.2d 689, 690 (1971); see also Irish, 163 Idaho at 607, 416 P.3d
at 979.
          Here, the Vigs specifically alleged “libel per se” in their complaint and pleaded only
general damages, thus the Vigs’ claim could only be a claim of defamation per se. Nonetheless,
the district court only considered whether the claim satisfied the requirements of general
defamation, instead of whether the Vigs made a successful claim of defamation per se.
          In its memorandum decision, the district court considered whether the requests for
admission that were admitted by default could individually or cumulatively prove general
defamation. The district court found the default admissions did not conclusively establish that
the Vigs were defamed because, at most, they collectively satisfied only one of the three
elements of defamation--the book communicated information concerning the Vigs to others. The
two remaining elements of defamation, according to the district court, were not satisfied by
Gerdes’s default admissions to the Vigs’ requests for admission. The district court concluded:
“Gerdes’s default admissions do not conclusively establish that statements contained in the book
qualify as defamatory, or that the alleged defamatory statements caused the Vigs to suffer actual
damage.” We disagree with this analysis.
          Although we disagree with the district court’s defamation analysis, this Court may still
find the district court correctly granted Gerdes’s motion if, as a matter of law, the Vigs cannot
establish a claim of defamation per se. The district court was presented with alternate theories of
dismissal, but ruled on only one of those theories. When a district court is presented with

8
        Idaho case law recognizes there are four categories but has analyzed two of these four
categories. In Irish, without a reference to the other three categories, the Idaho Supreme Court
explained defamatory statements may be defamatory per se when “they impute conduct
constituting a criminal offense chargeable by indictment or by information either at common law
or by statute and of such kind as to involve infamous punishment (death or imprisonment) or
moral turpitude conveying the idea of major social disgrace.” Irish v. Hall, 163 Idaho 603, 607,
416 P.3d 975, 979 (2018) (internal quotations omitted). In Barlow, the Idaho Supreme Court
explained defamatory per se statements included the category of criminal conduct as well as
“utterances which (ascribe) to another conduct, characteristics or a condition incompatible with
the proper conduct of his lawful business, trade, (or) profession.” Barlow v. Int’l Harvester Co.,
95 Idaho 881, 890, 522 P.2d 1102, 1111 (1974) (internal quotations omitted).

                                                 6
alternate theories but rules on only one of the theories, the court may be affirmed on the
unaddressed theory so long as that theory correctly addresses the issue; this is also known as the
“right-result, wrong-theory” analysis. State v. Hoskins, 165 Idaho 217, 222, 443 P.3d 231, 236
(2019). Here, Gerdes presented the district court with alternate reasons why Gerdes’s motion for
summary judgment should be granted: the book did not defame the Vigs, either as general
defamation or under the per se standard. The district court only ruled on the former.
       The Vigs’ original complaint alleged that Gerdes’s book contained statements that were
defamatory per se. The Vigs correctly claimed that a defamation per se claim is actionable
without proof of special damages. See Irish, 163 Idaho at 607, 416 P.3d at 979. Nonetheless, the
Vigs failed to establish that any part of Gerdes’s book was defamatory per se.
       Neither of the two excerpts relied upon by the Vigs constitutes defamation per se. The
two statements at issue are plain and unambiguous and Gerdes admitted she made the statements,
and thus, this Court may freely review whether they are defamation per se. Id. at 608, 416 P.3d
at 980. As a matter of law, the two excerpts identified by the Vigs are not defamatory per se
because neither is chargeable as a criminal offense, a loathsome disease, a matter incompatible
with business, trade, profession, or office, or serious sexual misconduct. The first statement at
issue referenced an alleged demand letter from Mia Kim Vig, and a subsequent financial
settlement between Mia Kim Vig and Sue Vig. A demand letter and a financial settlement are
not conduct which constitutes a criminal offense chargeable by indictment or by information, a
loathsome disease, a matter incompatible with business, trade, profession, or office, or serious
sexual misconduct. The second excerpt at issue from Gerdes’s book was a statement by Mia
Kim Vig’s father that Mia Kim Vig would be “one less mouth to feed and person to worry
about” once she left home and joined the musical group. Like the reference to the demand letter,
this statement by Mia Kim Vig’s father does not fall within any of the categories establishing
defamation per se. Here, the Vigs failed to establish defamation per se. As such, no genuine
issue of material fact existed regarding the defamation per se claim since there was no evidence
there was any defamatory statement within Gerdes’s book. This Court can therefore affirm the
district court’s granting of Gerdes’s motion for summary judgment.
       Gerdes requests that this Court award her attorney fees pursuant to Idaho Appellate
Rules 35(b)(5) and 41, and I.C. § 12-121. This Court will not award attorney fees “if the losing
party brought the appeal in good faith and presented a genuine issue of law.” Clearwater REI,

                                                7
LLC v. Boling, 155 Idaho 954, 962, 318 P.3d 944, 952 (2014). In normal circumstances, this
Court will only award attorney fees if we are left with the abiding belief that the appeal was
brought, pursued, or defended frivolously, unreasonably, or without foundation. Id.
       We determine Gerdes is not entitled to attorney fees in this case. The Vigs brought the
appeal based on a good faith belief that the district court erred regarding the defamation per se
ruling. Therefore, the appeal was not pursued frivolously, unreasonably, or without foundation,
and no attorney fees will be awarded. Costs are awarded to Gerdes.
                                              IV.
                                        CONCLUSION
       We affirm the district court’s judgment of dismissal and award costs to Gerdes.
       Judge LORELLO and Judge BRAILSFORD CONCUR.




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