author: STEGNER, Justice.

text:
    IDAHO RETIRED FIREFIGHTERS ASSOCIATION, Sharon Koelling, and John Anderson, Claimants-Appellants, v. PUBLIC EMPLOYEE RETIREMENT BOARD, Defendant-Respondent.
    Docket No. 45769
    Supreme Court of Idaho, Boise, January 2019 Term.
    Filed: June 13, 2019
    Herzfeld & Piotrowski, PLLC, Boise, for appellant. James Piotrowski argued.
    Idaho Attorney General's office, Boise, for respondent. Steven L. Olsen argued.
   STEGNER, Justice.

This case involves a dispute over how the Idaho Public Employee Retirement Board (the Board) calculates the annual cost of living adjustment (COLA) for retirees who are participants in the Firemen's Retirement Fund (FRF). The Idaho Industrial Commission (the Commission) held that the definition of "paid firefighter" includes part-time firefighters. The effect of the Commission's decision results in a smaller annual COLA for retired firefighters. On appeal, the Idaho Retired Firefighters Association (the Association), and Sharon Koelling and John Anderson (Koelling and Anderson will be collectively referred to as the "Individual Claimants"), allege that the Board's inclusion of part-time firefighters violates statutory and constitutional provisions. The Association and the Individual Claimants seek a ruling from this Court reversing the Commission's decision. In its place, they seek a ruling that would exclude part-time firefighters from the Board's annual COLA calculations, the effect of which would be an increase in the annual COLA applicable to retired firefighters. For the reasons set forth in this opinion, we vacate the Commission's decision because we conclude it lacked the necessary jurisdiction to decide the question presented to it.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The FRF system and the annual COLA calculations.

In 1945, the Idaho Legislature created the FRF to provide pension and disability benefits to Idaho firefighters. The Legislature codified the FRF in Title 72, Chapter 14. From 1945 until 1980, the State Insurance Fund administered the FRF.

In 1976, the Legislature passed Idaho Code section 72-1432B (now Idaho Code section 72-1471 ) to provide for an annual COLA for FRF beneficiaries. Idaho Code section 72-1471 states that the annual COLA is to be "calculated on the percentage increase or decrease in the average paid firefighter's salary or wage." (Italics added.)

Also during the 1976 Session, the Legislature amended the definition of "paid firefighter." 1976 Idaho Sess. Laws 922. The definition was changed to the following:

The words "paid fireman" are synonymous with "paid firefighter," and mean any individual, male or female, excluding office secretaries employed after July 1, 1967, who is on the payroll of any city or fire district in the state of Idaho prior to October 1, 1980, and who devotes his or her principal time of employment to the care, operation, maintenance or the requirements of a regularly constituted fire department of such city or fire district in the state of Idaho.

Id. This definition has not changed since 1980. 1980 Idaho Sess. Laws 82 (codified at I.C. § 72-1403(A) ).

In 1979, the Legislature transferred all of the assets and administration of the FRF to the Public Employee Retirement System of Idaho (PERSI), which is administered by the Board. I.C. § 59-1305 ("The board shall have the power and duty ... of managing the system."). The transfer was effective October 1, 1980. The Legislature adopted Idaho Code sections 59-1351 to 59-1392 (the legislation governing the FRF now extends to Idaho Code section 59-1399 ) to implement the transfer of the administration of the FRF to the Board. In 1984, the Legislature amended the definition of "paid fireman" in section 59-1391(f) to match much of the definition in section 72-1403(A) but omitted any kind of date restriction and the clarification that "paid fireman" was synonymous with firefighter. 1984 Idaho Sess. Laws 319. The Board has set the FRF's annual COLA since 1980.

The Association is a nonprofit entity, which was formed to monitor pension and retirement benefits for retired firefighters in Idaho. The Association meets with the Board regularly, tracks the annual COLA, and advocates (and now litigates) on behalf of its members.

In the fall of 2009, at the annual meeting of the Board and the Association, the Association's representative voiced concerns about the hiring of more reserve or part-time firefighters by the Lewiston Fire Department. The Association's concern was that inclusion of these reserve firefighters in the annual COLA calculation would reduce the calculation to the detriment of the Association's members. Based on the Association's concerns, PERSI's executive director, ordered an audit of the City of Lewiston's contributions to PERSI as it related to the FRF. The PERSI audit determined that there were inaccuracies in Lewiston's monthly reports. As a result, the Board made corrections based on its determination that Lewiston had not been correctly reporting its contributions to PERSI. After the audit, the Lewiston Fire Department began reporting the wages of all fire department employees it determined met the statutory definition of paid firefighter, which included reserve (or part-time) firefighters.

A few years later, the Association's representative requested that the Board recalculate the annual COLA excluding part-time firefighters in order to establish how the COLA was being affected. After the recalculations were performed, the Board determined the annual COLA would have increased if the reserve firefighters had been excluded. The Association lobbied the Board through its legal counsel to change its practice of including those part-time firefighters in the annual COLA calculations. However, the Board declined, stating that an amendment to the statute would be necessary to exclude part-time firefighters from the annual COLA calculation. The Association then initiated legal proceedings.

In October 2015, the Association, along with the Individual Claimants, filed a Petition and Complaint for Declaratory Ruling with the Commission. The Commission denied the petition because it did not have original jurisdiction over the dispute.

The Association and the Individual Claimants then filed a Petition for Declaratory Relief with the Board on November 24, 2015. A hearing was held on May 3, 2016. The hearing officer ruled against the Association and the Individual Claimants on August 18, 2016. The Board adopted the hearing officer's recommended order in its final order on October 18, 2016.

In response, the Association and the Individual Claimants then returned to the Commission on November 23, 2016, seeking review of the Board's final order. The Board filed a motion to dismiss on March 2, 2017, arguing that the Commission's jurisdiction was limited to "claims" and that the Association's and the Individual Claimants' request for a declaratory judgment was not a claim. The Commission denied the motion, finding that it had jurisdiction over appeals from the Board. (While the Commission found it had jurisdiction to decide whether a declaratory judgment should be issued, it also concluded it lacked jurisdiction to decide whether the Board's interpretation of the statute was unconstitutional.) On December 29, 2017, the Commission affirmed the decision of the Board in its Findings of Fact, Conclusions of Law, and Order (Order). The Association and the Individual Claimants timely appealed the Commission's Order.

II. QUESTION PRESENTED ON APPEAL

Does the Commission have jurisdiction to review a request for declaratory relief on appeal from a decision by the Board?

III. STANDARD OF REVIEW

"The question of jurisdiction is fundamental and cannot be ignored. Even if jurisdictional questions are not raised by the parties, the Court must address them on its own initiative." State v. Hartwig , 150 Idaho 326, 328, 246 P.3d 979, 982 (2011) (citing Diamond v. Sandpoint Title Ins., Inc. , 132 Idaho 145, 148, 968 P.2d 240, 243 (1998) ). Questions of jurisdiction are questions of law over which this Court has free review. Bach v. Miller , 144 Idaho 142, 145, 158 P.3d 305, 308 (2007).

IV. ANALYSIS

Although the Board argued that the Commission did not have jurisdiction below, it did not raise the issue on appeal. However, this Court must address any jurisdictional concerns before it may resolve an underlying dispute. Hartwig , 150 Idaho at 328, 246 P.3d at 982 (citation omitted). The question is whether the Commission had jurisdiction to review a rejection of a request for declaratory relief issued by the Board.

The Association and the Individual Claimants properly filed both the declaratory judgment request and any potential claims for benefits under the FRF with the Board. I.C. § 67-5232 (claimants "may petition an agency for a declaratory ruling as to the applicability of any statute"); I.C. § 72-1423 ("All claims against the public employee retirement account shall be filed with the ... [B]oard."). Further, this Court has jurisdiction to review conclusions of law in any order issued by the Commission. Idaho Const. art. V, § 9. As will be discussed, the Commission has appellate jurisdiction over specific claims for benefits under section 72-1423. Therefore, the sole issue in this appeal is whether the Commission had jurisdiction under section 72-1423 to review an order of the Board in which it rejected a request for declaratory relief.

Because the Commission was created by statute, it has no jurisdiction outside of what the Legislature specifically grants it. See Idaho Power Co. v. Idaho Pub. Utils. Comm'n , 102 Idaho 744, 750, 639 P.2d 442, 448 (1981). Therefore, the Commission exercises limited jurisdiction, "with nothing being presumed in favor of its jurisdiction." Id. As such, this Court must void an order by the Commission that determines issues outside of its statutory jurisdiction. See Wernecke v. St. Maries Joint Sch. Dist. No. 401, 147 Idaho 277, 286 n.10, 207 P.3d 1008, 1017 n.10 (2009) (citing 73 C.J.S. Public Administrative Law & Procedure § 112 ).

A. Idaho Code section 72-1423 does not create jurisdiction for the Commission to decide a petition for declaratory relief.

Generally, a district court has jurisdiction to review declaratory judgments by administrative agencies. I.C. § 67-5272(1). Here, the Board, as an agency, is governed by the Idaho Administrative Procedure Act (the Act). See I.C. § 67-5201(2). Under the Act, when an agency is presented with a petition for declaratory judgment, it may initiate a contested case. I.C. § 67-5232(2). Then, the Board would have jurisdiction under section 67-5232 to issue an order regarding the petition for declaratory judgment. The order issued by the Board would be considered a "final agency action" (pursuant to Idaho Code section 67-5232(3) ), which would be reviewable by a district court under section 67-5270(2).

Section 67-5270(1) further states, "[j]udicial review of agency action shall be governed by the provisions of this chapter unless [an]other provision of law is applicable to the particular matter. " I.C. § 67-5270 (italics added). Here, the other provision of law that would potentially apply is Idaho Code section 72-1423. Section 72-1423 sets out the procedure and jurisdiction of the Commission in regard to appeals from the Board.

However, section 72-1423 limits the Commission's appellate jurisdiction to "claims." That section provides,

All claims against the public employee retirement account [fund][ ] shall be filed with the public employee retirement system board. Any appeal from a decision of the board shall be filed with the industrial commission in as nearly as practicable the same manner that claims under the Workers' Compensation Law of the state of Idaho are filed, and the said industrial commission is hereby given jurisdiction to entertain and pass upon said claims , allow or deny claims and make awards, and the provisions of the Workers' Compensation Law of the state of Idaho relative to process, hearings and appeals are hereby made applicable to the provisions of this chapter, and said industrial commission is hereby given power and authority to make rules and regulations governing procedure in relation to said claims appealed from the public employee retirement system board.

I.C. § 72-1423 (italics added). Given the process outlined in the statute above, it is clear the Commission only has appellate jurisdiction under the FRF over "claims" appealed from the Board.

Thus, for the Commission to have proper jurisdiction under this statute, the requested declaratory judgment must be considered a "claim" under section 72-1423. However, as the FRF statutes do not define "claim," this Court must turn to statutory interpretation to determine the definition.

"Statutory interpretation begins with 'the literal words of the statute, and this language should be given its plain, obvious, and rational meaning.' " Farmers Nat'l Bank v. Green River Dairy, LLC , 155 Idaho 853, 856, 318 P.3d 622, 625 (2014) (quoting Seward v. Pac. Hide & Fur Depot , 138 Idaho 509, 511, 65 P.3d 531, 533 (2003) ). "[I]f statutory language is clear and unambiguous, the Court need merely apply the statute without engaging in any statutory construction." Saint Alphonsus Reg'l Med. Ctr. v. Raney , 163 Idaho 342, 345, 413 P.3d 742, 745 (2018) (citing State v. Burnight , 132 Idaho 654, 659, 978 P.2d 214, 219 (1999) ).

Here, "claim" unambiguously refers to an entitlement of monetary benefits from the FRF. Section 72-1423 states that "claims" must be against the "public employee retirement account [fund]." Section 72-1403 references the fund as created by Idaho Code section 59-1311. Section 59-1311 establishes a special fund of money that is set aside for retirement benefits. Because a claim can only be made against the fund, which refers to money set aside to satisfy retirement benefits, a "claim" would be limited to a claim for monetary benefits, not a declaration of rights under the particular chapter.

This is further supported by the fact that the Commission is not the administrator of the FRF. Rather, the Board administers the FRF. I.C. § 72-1405. It seems incongruous that the Legislature would invest the Commission with the ability to declare rights granted in the laws and rules of a chapter that another agency administers. It is more consistent with the legislative intent that the Commission would review claims against the fund for issues of factual determinations, like whether a claimant has established eligibility to monetary benefits, and that questions of substantive law in which a declaratory judgment is sought would be referred to the district court.

Here, the gravamen of the petition is to secure a declaratory ruling. The entire petition's language is devoted to the legal determination of how to calculate the annual COLA. Any potential request for monetary benefits from the Individual Claimants was solely predicated on the outcome of the declaratory ruling. Therefore, as any claims in this context are contingent on the declaratory judgment, the district court was the proper venue for judicial review of the requested relief. The Commission only has appellate jurisdiction over the specific claims for monetary benefits against the fund.

We have previously held this type of divided jurisdiction (that is, that declaratory judgements will be heard by the district court and claims will be decided by the Industrial Commission) to be the proper result. See Idaho Mut. Benefits Ass'n, Inc. v. Robison , 65 Idaho 793, 803, 154 P.2d 156, 161 (1944). In that case, this Court was tasked with determining relevant jurisdiction between the Commission and the district court.

Id. The claimants pursued a determination of the constitutionality of a particular unemployment law as well as the application of the law to their claims. Id. This Court held:

[T]he district court had jurisdiction to construe the law and pass upon its constitutionality, but that it had no jurisdiction to investigate the facts, to make findings thereon or to determine the weight of the evidence or credibility of witnesses. These were questions to be determined by the [Commission] in the first instance reviewable on appeal. We will therefore not determine these phases of the controversy but leave them for the appropriate tribunal and consequent attendant procedure.

Id. In other words, the district court has jurisdiction to construe the law, while the Commission acts as the factfinder and decides specific claims. Id. Here, the issue, as presented by the Commission, involved a question of law: "Is PERSI acting in violation of statute by including part-time firefighters employed by the City of Lewiston in the cost-of-living adjustments for the Firem[e]n's Retirement Fund?" Consequently, the Board's motion to dismiss should have been granted and this question of law should have been heard by the district court.

Accordingly, we hold that the district court has proper jurisdiction to review the declaratory judgment and the Commission has proper jurisdiction to review specific claims. Here, as the Commission did not have jurisdiction to review the declaratory judgment, the Commission's Order is void. See Wernecke , 147 Idaho at 286 n.10, 207 P.3d at 1017 n.10 (citation omitted).

We decline to address any potential claims made by the Individual Claimants. As noted above, the gravamen of the petition is to secure a declaratory ruling. Further, although it is unclear whether the Individual Claimants are entitled to relief, their claims are so interrelated to the Association's request for declaratory relief that the claims should only be addressed after a ruling on the Association's request. See Robison , 65 Idaho at 803, 154 P.2d at 161 ("We will therefore not determine these phases of the controversy but leave them for the appropriate tribunal and consequent attendant procedure."). For example, if the Association were entitled to a declaratory judgment then the Individual Claimants would presumably be entitled to benefits pursuant to a recalculated annual COLA. Conversely, if the Association were not entitled to declaratory relief, the Individual Claimants would presumably not have any claim to benefits. Therefore, this Court will not address any potential individual claims at this juncture. To address them, would "contravene our policy of avoiding piecemeal litigation." Mortimer v. Riviera Apartments , 122 Idaho 839, 842, 840 P.2d 383, 386 (1992) ; see also Losser v. Bradstreet , 145 Idaho 670, 674, 183 P.3d 758, 762 (2008).

B. On remand, the Commission must dismiss the petition for declaratory judgment. The Association and the Individual Claimants would then be entitled to seek review in district court.

The Board's final order, as well as Idaho Code section 67-5273, stated that the Association and the Individual Claimants had twenty-eight days to file a petition for review of the declaratory judgment with the district court. That time has now elapsed. However, section 67-5273 also states, "[t]he time for filing a petition for review shall be extended during the pendency of the petitioner's timely attempts to exhaust administrative remedies, if the attempts are clearly not frivolous or repetitious." I.C. § 67-5273.

Given the complexities and uncertainties regarding jurisdiction in this case, the Association's and the Individual Claimants' efforts were not frivolous. (This is especially true given that the Commission erroneously concluded that it had jurisdiction to decide the Association's request.) Therefore, this Court determines the Commission's Order is void and correspondingly vacates the Commission's Order and remands the case to the Commission. On remand, the Commission must dismiss the petition seeking declaratory relief. Upon that happening, the Association and the Individual Claimants may file a petition for review of the Board's declaratory judgment with the district court as contemplated by Idaho Code section 67-5273, assuming it is done within twenty-eight days of the filing of the Commission's order dismissing the petition for declaratory judgment.

V. CONCLUSION

As the Commission's Order is void, we vacate it and remand this matter to the Commission so that it can dismiss the request for the declaratory judgment because the Commission lacked the jurisdiction to determine the request.

Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER concur.

      For ease of identification, this decision will refer to "part-time" firefighters as those who negatively affect the annual COLA, i.e., the COLA is less than it would be if these firefighters are included in the calculation. While the issue is more nuanced, it is sufficient to say that the vast majority of those who negatively affect the annual COLA may accurately be referred to as "part-time" firefighters.

      Idaho Code section 72-1403(F) defines "public employee retirement account" as the account created by Title 59, Chapter 13. Title 59, Chapter 13 only created a "fund." It appears the Idaho Code Commission added the bracketed [fund] to address this confusion.

      Robinson concerned the application of the Declaratory Judgment Law, which is not applicable here as the initial request for declaratory judgment was filed pursuant to the Administrative Procedure Act with the Board. I.C. § 67-5232.

      Any potential claims would be limited to the Individual Claimants; the Association cannot be a claimant as it is not entitled to any benefits under the FRF.


source: Caselaw Access Project

author: BRODY, Justice.

license: Public Domain

text:
    In the MATTER OF: Jane DOE II, A Child Under Eighteen (18) Years of Age.
    John and Jane Doe I, Petitioners-Respondents, v. John Doe, Respondent-Appellant.
    Docket No. 46458
    Supreme Court of Idaho, Boise, February 2019 Term.
    Opinion Filed: June 13, 2019
    Catherine E. Enright, Bonner County Public Defender's office, Sandpoint, for appellant.
    Jeremy P. Featherston, Featherston Law, Sandpoint, for respondents.
   BRODY, Justice.

This is an expedited appeal from a Bonner County magistrate court's termination of the parental rights of John Doe (Father) to his minor child (IW). John and Jane Doe I, the maternal grandmother and step-grandfather (collectively "Guardians"), filed a petition to adopt IW and terminate Father's parental rights. Guardians alleged that Father abandoned IW and that termination was in her best interests. The magistrate court granted the Guardians' petition, and Father timely appealed. We affirm the magistrate court's amended judgment because there is substantial and competent evidence to support its findings.

I. FACTUAL AND PROCEDURAL BACKGROUND

IW is eight years old. At the time of IW's birth, Father owned a house in Vallejo, California, in which Father, Mother, IW, and IW's maternal half-sister, MW, resided. Father and Mother were regular drug users at the time of IW's birth.

Grandmother was called upon to provide care for IW after she was born. Late one evening, Grandmother received a call from an unknown person stating that IW's parents had left IW with her. Grandmother immediately drove to Vallejo and retrieved the infant. Neither parent was present when Grandmother took custody of IW. IW began residing with Guardians full time. Shortly thereafter, IW's older half-sister, MW, who is also the granddaughter of Grandmother, came to live with them.

When IW was about six months old, Grandmother filed for legal guardianship of both IW and MW, in Solano County, California, listing step-grandfather as an additional guardian. The California court granted the petition over Father's objection. When the guardianship was granted, the California court issued a written explanation of duties and obligations for Guardians, which they acknowledged by signing the document. Central to this case, the document contained a provision which stated that Guardians did not have the right to change IW's residence to a place outside of California without the court's permission.

About two months after the California court granted Grandmother's guardianship petition, Father was arrested on charges relating to sexual contact with MW. Following two jury trials, both resulting in hung juries, Father pleaded guilty to a Lewd Act upon a Child and was sent to prison.

While incarcerated, Father filed for divorce from Mother. Custody of IW was not addressed in the divorce decree as it was "previously established" in the Guardians' California guardianship case. Mother testified at the hearing on the Guardians' petition at issue here that Mother and Father's relationship was tempestuous. Mother accused Father of domestic violence, testifying that he threw her down steps and broke her arm. Mother also testified that she pulled a shotgun on Father upon finding out that he was abusing her daughter, MW.

Father was released from prison and placed on parole on March 31, 2014, when IW was three years old. There was no contact between Father and IW between the time of his release from prison and the time of the termination hearing except that Father claims to have sent a drawing of angel wings to IW and MW at the Guardians' last known address. The record does not contain any evidence establishing whether the drawing was received.

In November 2015, Guardians moved with IW to Priest River, Idaho. There is no dispute that Guardians did not inform the California court that they were moving, nor did they seek permission from the court prior to moving, as was required by the terms of the guardianship. Father was also not informed that Guardians were moving to Idaho with IW.

In March of 2016, Father sold his Vallejo home and received roughly $ 68,000 in proceeds. From that money, he paid about $ 20,000 in back taxes and other unspecified amounts to various family members. He also used a portion of the proceeds ($ 1,500) to hire a private investigator in California to locate IW. When Father learned that Guardians had moved, he paid another investigator in Idaho $ 1,500 to locate IW.

Father and other witnesses testified at the termination hearing that Father has lived at many different addresses since IW was born. He is currently residing in a drug and alcohol program facility that houses up to forty parolees in Woodland, California. According to his parole officer, Father is not in the substance abuse program but requested to stay there because he had no other place to live. Father testified that he is currently unemployed but receives Social Security disability benefits in the amount of $ 910 per month. Father testified that he has been receiving benefits since he was fifteen. No evidence was offered as to the nature of his disability but his parole conditions state that Father has a documented history of mental illness.

Father has never paid nor offered to pay child support.

In October of 2016, the Solano County Superior Court issued an order requiring the Guardians to appear in court and show cause why sanctions should not be imposed against them for their failure to seek court permission to move IW and MW to Idaho. A subsequent order to show cause was issued requiring the Guardians to either return the girls to California or institute a guardianship action in Idaho immediately. After receiving the show cause orders, Guardians sought to register the guardianship in Idaho. The guardianship was successfully registered in Idaho, and the California guardianship was terminated in November 2017.

In May 2017, during the time that the guardianship registration issue was being addressed, Guardians filed the Petition for Adoption and Termination of Parental Rights which is at issue. Father objected to the petition, and a two-day trial was held. On June 6, 2018, the magistrate court entered an Order finding that Father had abandoned IW and that termination was in her best interests. Judgment was entered, and Father filed a timely notice of appeal.

II. ISSUES ON APPEAL

A. Whether the magistrate court erred in finding that Father willfully abandoned his child without just cause.
B. Whether the magistrate court erred in finding that termination of Father's parental rights was in the best interests of the child.

III. STANDARD OF REVIEW

"Pursuant to Idaho Code section 16-2005(1), a court may terminate parental rights if it finds that doing so is in the best interests of the child and that at least one of five grounds for termination is satisfied." In re Doe (2014-23) , 157 Idaho 920, 923, 342 P.3d 632, 635 (2015). "The trial court must find that grounds for terminating parental rights have been proved by clear and convincing evidence." Dep't of Health & Welfare v. Doe , 149 Idaho 207, 210, 233 P.3d 138, 141 (2010). The clear and convincing evidentiary standard is met when there is "[e]vidence indicating that the thing to be proved is highly probable or reasonably certain." In re Adoption of Doe , 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006) (quoting BLACK'S LAW DICTIONARY 577 (7th ed. 1999)).

On appeal, "the appellate court does not reweigh the evidence to determine if it was clear and convincing." Doe , 149 Idaho at 210, 233 P.3d at 141. This Court "will not disturb the magistrate court's decision to terminate parental rights if there is substantial, competent evidence in the record to support the decision." Doe v. Doe (In re Doe) , 150 Idaho 46, 49, 244 P.3d 190, 193 (2010). "Substantial, competent evidence is such 'evidence as a reasonable mind might accept as adequate to support a conclusion.' " In re Doe , 143 Idaho 343, 345-46, 144 P.3d 597, 599-600 (2006) (quoting Folks v. Moscow Sch. Dist. No. 281, 129 Idaho 833, 836, 933 P.2d 642, 645 (1997) ). "[T]his Court will indulge all reasonable inferences in support of the trial court's judgment." Dep't of Health & Welfare v. Doe (2013-15) , 156 Idaho 103, 106, 320 P.3d 1262, 1265 (2014) (quoting In re Aragon , 120 Idaho 606, 608, 818 P.2d 310, 312 (1991) ).

IV. ANALYSIS

Guardians sought to terminate Father's parental rights on the basis that Father abandoned IW. A court may grant an order terminating parental rights where it finds: (1) at least one of the five bases for termination has been proven by clear and convincing evidence; and (2) termination is in the best interest of the child. I.C. § 16-2005. One of the five bases for termination is abandonment. I.C. § 16-2005(1)(a). Section 16-2002(5) defines the term "abandoned" as the willful failure to maintain a normal parental relationship for a period of six months in situations where a grandparent is seeking termination to adopt the child:

"Abandoned" means the parent has willfully failed to maintain a normal parental relationship including, but not limited to, reasonable support or regular personal contact. ... [W]here termination is sought by a grandparent seeking to adopt the child, the willful failure of the parent to maintain a normal parental relationship as provided herein without just cause for six (6) months shall constitute prima facie evidence of abandonment.

I.C. § 16-2002(5).

"No hard-and-fast rule controls the question of whether a parent has abandoned his or her child; instead, '[e]ach case must be decided on its own particular facts.' " In re Adoption of Doe , 143 Idaho at 191, 141 P.3d at 1060 (alteration in original) (quoting Crum v. Dep't of Health & Welfare , 111 Idaho 407, 409, 725 P.2d 112, 114 (1986) ). A petitioner bears the burden of persuasion to show by clear and convincing evidence that the parent abandoned his child, which "includes a showing that the defendant parent is without just cause for not maintaining a normal relationship." Id. at 192, 141 P.3d at 1061.

If the petitioner meets his burden, the parent must present evidence that there is just cause for his failure to maintain the parental relationship. Id. "If the trier of fact finds that there are no valid defenses or 'just causes,' then the petitioning party has met the burden of persuasion." Id. "In making this determination a court should consider evidence of the logistical and financial difficulties associated with maintaining the parental relationship." In re Doe (2013-30) , 156 Idaho 532, 537, 328 P.3d 512, 517 (2014).

A. The magistrate court did not err in finding that Father willfully abandoned his child without just cause.

Father concedes that Guardians have shown that he has not maintained a normal parental relationship with IW for at least a period of six months. However, Father argues that the magistrate court's finding that he "willfully" failed to maintain a normal parental relationship is not supported by substantial and competent evidence and that the magistrate court did not consider evidence of just cause for his failure to maintain a normal parental relationship.

Pursuant to Idaho Code section 16-2002(5), abandonment may occur in situations where a parent willfully fails to provide "reasonable support or regular personal contact" with his child. As the disjunctive "or" indicates, "a finding that a parent has failed to provide reasonable support without just cause, by itself, establishes abandonment." Matter of Doe II , 163 Idaho at 7, 407 P.3d at 594 (2017). The key inquiry regarding "willfulness" is whether a parent is capable of maintaining a normal relationship with the child. Doe v. Doe (In re Doe) , 155 Idaho 505, 508, 314 P.3d 187, 190 (2013). As we have stated, "[f]or one to willfully fail to do something, he or she must have the ability to do it." Doe I v. Doe II (In re Doe) , 148 Idaho 713, 716, 228 P.3d 980, 983 (2010).

Father's arguments in this case closely resemble the arguments we recently addressed in Doe I v. Doe II (2016-23) , 161 Idaho 532, 387 P.3d 785 (2016). There, a mother allowed her two children to live with their grandparents. Id. at 534, 387 P.3d at 787. The grandparents were later awarded guardianship and filed a petition to terminate the mother's parental rights. Id. The magistrate court found that the mother failed to provide financial support to the children, help the grandparents with the cost of caring for the children, or help with expenses of any kind, despite mother's ability to provide at least some reasonable support. Id. at 534, 536, 387 P.3d at 787, 789. As a result, the magistrate court determined that clear and convincing evidence established that the mother abandoned her children by failing to provide reasonable support without just cause. We affirmed, highlighting the fact that the mother had some financial resources, yet did not support the children in any way, except for buying "some toys, [and] little stuff." Id.

Here, there is no evidence that Father ever supported IW financially. When asked whether Father had ever paid child support for IW, he responded, "No, because I was never asked to." The magistrate court considered Father's justification for his failure to provide support and rejected it, noting that it "fell flat." The court found that despite his time in prison, Father had financial resources available after the sale of his Vallejo home and that he was receiving Social Security disability benefits. Nevertheless, he failed to make even a single phone call to California child support services or the Social Security Administration to see what he could do to support his daughter. The magistrate court further stated that, although Father subjectively loves IW, "she has not been a consistent priority for him." As a result, it concluded that, "[F]ather's conduct and omissions constitute a willful abandonment of [IW] and it has continued for much longer than the 6-month statutory prima facie test. His efforts to initiate a relationship with [her] are too little and too late."

We do not re-weigh the evidence on appeal. There is substantial and competent evidence to support the magistrate court's conclusion that Father willfully abandoned IW without just cause. Although the magistrate court further held that Father's lack of personal contact also established abandonment, we need not address that issue "because the lack of reasonable support, by itself, establishes abandonment." Doe I v. Doe II (2016-23) , 161 Idaho at 536, 387 P.3d at 789 (2016).

B. The magistrate court did not err in finding that termination of Father's parental rights is in the best interests of the child.

Once a finding of statutory abandonment has been made, the magistrate court must then determine whether it is in the best interests of the child to terminate the parental relationship. In re Aragon , 120 Idaho at 611, 818 P.2d at 315 (1991). Numerous factors are to be considered when making this determination, including the stability and permanency of the child's current home, unemployment of the parent, the financial contribution of the parent to the child's care after the child is placed in protective custody, improvement of the child while under other care, the parent's efforts to improve his or her situation, and the parent's continuing problems with the law. See Doe v. Roe (in Re Doe ), 133 Idaho 805, 992 P.2d 1205 (1999). A finding that the decision to terminate parental rights is in the best interests of the child must be based on objective grounds and supported by substantial and competent evidence. Idaho Dep't of Health & Welfare v. Doe (In re Doe) , 152 Idaho 953, 957, 277 P.3d 400, 404 (Ct. App. 2012).

The magistrate court weighed all relevant factors and determined that it is in IW's best interest to terminate Father's parental rights. IW is now eight years old and has only known Guardians as her parents. Father was incarcerated shortly after her birth and has had no contact with IW since he was released. Currently, Father lives in a drug and alcohol program facility in California with up to 40 other parolees. As a result, he does not have a suitable home for IW. Father is also currently on parole and is a registered sex offender for a sexual offense committed against IW's half-sister, MW.

Notably, Mother consented to the termination of her parental rights and believes it is in IW's best interest for Father's parental rights to be terminated as well so that Guardians may adopt IW. Guardians are the maternal grandmother and step-grandfather of IW and have been fully supporting and caring for her almost her entire life. IW has bonded with Guardians, believes that they are her parents, and appears to be well adjusted in their home. The magistrate court concluded that "IW needs consistent love and care. She should not have to wait for that. She has already waited far too long ...." We hold that there is substantial and competent evidence to support the magistrate court's determination.

V. CONCLUSION

We affirm the magistrate court's judgment terminating Father's parental rights to IW.

Chief Justice BURDICK, and Justices BEVAN, STEGNER and MOELLER concur.


text:
    Philip P. MCGIMPSEY, Plaintiff-Counterdefendant-Appellant, v. D&L VENTURES, INC., a Nevada corporation, Defendant-Counterclaimant-Respondent, and David B. Asher, individually, Defendant-Respondent.
    D&L Ventures, Inc., a Nevada corporation, Third Party Plaintiff-Respondent, v. Philip P. McGimpsey, as Trustee of JJM Special Needs Trust, Third Party Defendant-Appellant, and Jolene McGimpsey, Third Party Defendant.
    Philip P. McGimpsey, Plaintiff-Counterdefendant, v. D&L Ventures, Inc., a Nevada corporation, Defendant-Counterclaimant, and David B. Asher, individually, Defendant-Respondent.
    D&L Ventures, Inc., a Nevada corporation, Third Party Plaintiff-Respondent, v. Jolene McGimpsey, Third Party Defendant-Appellant, and Philip P. McGimpsey, as Trustee of JJM Special Needs Trust, Third Party Defendant.
    Philip P. McGimpsey, Plaintiff-Counterdefendant-Appellant, v. D&L Ventures, Inc., a Nevada corporation, Defendant-Counterclaimant-Respondent, and David B. Asher, individually, Defendant.
    D&L Ventures, Inc., a Nevada corporation, Third Party Plaintiff-Respondent, v. Philip P. McGimpsey, as Trustee of JJM Special Needs Trust, Third Party Defendant-Appellant, and Jolene McGimpsey, Third Party Defendant.
    Docket Nos. 46023 46024 46112
    Supreme Court of Idaho, Boise, May 2019 Term.
    Filed: June 13, 2019
    Philip P. McGimpsey and Jolene McGimpsey, Eagle, appellants pro se. Philip P. McGimpsey argued.
    Jones Williams Fuhrman Gourley, P.A., Boise, for respondents. Kimbell D. Gourley argued.
   BRODY, Justice.

This dispute arises from a breach of contract claim between the tenant McGimpsey and landlord D&L Ventures, Inc., who entered into a combined lease/Buy-Sell Agreement for a residential property in Eagle, Idaho. On discovering that D&L was an unregistered Nevada corporation conducting business in Ada County, McGimpsey failed to close on the purchase of the home on September 13, 2017, because he believed D&L to be in violation of Idaho Code section 30-21-502(a) which prohibits an unregistered foreign corporate entity from doing business in the state. After the closing date passed, D&L informed McGimpsey that the contractual provisions terminated upon his failure to close and reminded McGimpsey he had to vacate the property, pursuant to the Buy-Sell Agreement. About a month later, D&L registered with the Idaho Secretary of State as a Nevada corporation and filed all of its tax returns and paid its other obligations. McGimpsey subsequently filed a complaint against D&L, and the corporation counterclaimed against McGimpsey and third-party defendants. D&L filed a motion for summary judgment that was granted in part and denied in part. The district court ultimately concluded that D&L had the legal ability to convey the property via warranty deed and that McGimpsey breached the Buy-Sell Agreement by failing to close and failing to show that his breach was excused by D&L's alleged inability to convey marketable title. McGimpsey and third-party defendants timely appealed and their appeals have been consolidated in this case. We affirm the district court's award of summary judgment to D&L because Idaho Code section 30-21-502 does not impair the validity of contracts; therefore, D&L had the legal ability to convey the property via warranty deed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Starting in February of 2014, Philip McGimpsey ("McGimpsey") and his wife Jolene McGimpsey leased a home from D&L Ventures, Inc. D&L is a Nevada corporation owned by David Asher and his wife Georgina Asher. The residential property McGimpsey leased from D&L is located in Eagle, Idaho (hereinafter "the Property"). D&L obtained the Property in a 2013 foreclosure sale and received a trustee's deed, which excluded any warranties.

On June 26, 2017, McGimpsey and the JJM Special Needs Trust-of which McGimpsey is trustee-entered a Buy-Sell Agreement with D&L for the Property. The contract included the following pertinent provisions: (1) McGimpsey would pay $ 2,400 per month in rent between July 1, 2017 and closing; (2) the parties agreed to a purchase price of $ 485,000, with $ 5,000 earnest money at closing; (3) if the parties failed to close, McGimpsey would vacate the Property; (4) the contract was contingent on McGimpsey's receipt and approval of the preliminary title commitment; and (5) at closing, D&L agreed to convey the Property by warranty deed "free of all liens and encumbrances except those described in the preliminary title commitment, as approved by Buyer." D&L also certified that it was "qualified to own or transfer real property in the State of Idaho." Closing was set for September 13, 2017.

While examining the Property's title insurance commitment, McGimpsey discovered that D&L was an unregistered Nevada corporation. Because D&L was conducting business in Ada County as an unregistered entity, McGimpsey believed D&L was in violation of Idaho Code section 30-21-502(a), and, consequently, legally incapable of conveying the Property to McGimpsey "by warranty deed, free of all liens and encumbrances." D&L maintained on multiple occasions that it was ready, willing, and able to deliver the warranty deed at closing. Neither party, however, presented at the closing agent's office on September 13, 2017.

In the days following the set closing date, McGimpsey and D&L exchanged emails wherein McGimpsey expressed his desire to still purchase the Property as well as his concern regarding D&L's "capacity" to sell. D&L informed McGimpsey that the contract's buy-sell provisions had terminated, reminded him that his September rent was due, and asked McGimpsey his intentions concerning rent and vacating the Property pursuant to the Buy-Sell Agreement. About two weeks after the designated closing date, McGimpsey demanded that D&L cure its unregistered status. The next day, D&L contacted the escrow officer to return McGimpsey's earnest money in full because closing never occurred. A few weeks later, on October 17, 2017, D&L registered with the Idaho Secretary of State as a Nevada corporation and filed all of its tax returns and paid its other obligations.

On November 3, 2017, McGimpsey filed a complaint against both D&L and Asher for breach of contract, asking the court to find D&L breached the contract and was in violation of Idaho Code section 30-21-502(a). McGimpsey requested either specific performance of the original terms in the Buy-Sell Agreement or monetary damages for the breach. D&L filed a counterclaim against McGimpsey, specifically naming Jolene McGimpsey and the JJM Special Needs Trust as third-party defendants. The court set a date for a jury trial.

On February 26, 2018, D&L filed a motion for summary judgment. D&L maintained that there was "nothing in the law providing that D&L Ventures could not transfer title to the [Property] as a Nevada corporation owning the real estate in Idaho." The court set a hearing for April 10, 2018. A month later, on March 26, McGimpsey filed an opposition brief as well a motion for summary judgment. At the April 10, 2018, hearing for D&L's motion, the district court asked D&L whether it was pursuing damages in the action.

D&L stated: "Yes, your Honor, we are comfortable pursuing what I'll call the post-petition rent -- not post-petition, post-closing rent from October through the present date at the $ 2,400 per month and comfortable not seeking monetary damages if the Court grants summary judgment."

On April 25, 2018, the district court granted D&L's motion for summary judgment in part. The district court noted that "all the pending claims were effectively placed at issue for purposes of D&L's summary judgment motion." It determined that D&L had the legal ability to convey the Property via warranty deed and that McGimpsey breached the Buy-Sell Agreement by failing to close and failing to show that his breach was excused by D&L's alleged inability to convey marketable title. D&L's remaining claims-breach of implied covenant and a request to quiet title-were moot, so summary judgment was denied on these issues.

McGimpsey then filed a "Supplemental Summary Judgment Supporting Brief" to explain why the district court's order failed to dispose of his complaint, arguing that D&L failed to properly deny allegations thereby creating a question of fact. The district court issued an additional order on May 7 (titled "Order Re: Judgment and Vacating Summary Judgment Hearing") to address McGimpsey's arguments.

The district court issued its original final judgment for D&L on May 7, 2018, and two amended judgments thereafter. Ultimately, the district court concluded that D&L Ventures had the legal ability to convey the real property located in Eagle, Idaho, to McGimpsey and the JJM Special Needs Trust, and that D&L Ventures did not breach the Buy-Sell Agreement by failing to register with the Idaho Secretary of State. The district court also awarded D&L Ventures $ 21,776.79 against McGimpsey, granted possession of the Property to D&L Ventures, and issued a writ of assistance directing the Ada County Sheriff to remove McGimpsey from the Property. It then dismissed McGimpsey's claims with prejudice. However, McGimpsey did not vacate the Property until June 29, 2018-two months after the entry of judgment-even though their last rent payment to D&L was in September of 2017. After McGimpsey vacated the Property on June 29, D&L retook possession of the Property.

The district court's final judgment was timely appealed.

II. ISSUES PRESENTED

A. Whether the district court erred in granting summary judgment for D&L and in vacating McGimpsey's summary judgment hearing and the jury trial.
B. Whether the district court erred in dismissing McGimpsey's complaint and thereby deprived McGimpsey of an inviolate right to a jury trial.
C. Whether the district court's order was a valid judgment under Idaho Rules of Civil Procedure 54 and 58.
D. Whether the district court erred in awarding restitution damages to D&L.
E. Whether D&L is entitled to attorney fees and costs on appeal.

III. STANDARD OF REVIEW

When this Court reviews an order for summary judgment, it applies the same standard of review used by the district court in ruling on the motion. Van v. Portneuf Med. Ctr., 147 Idaho 552, 556, 212 P.3d 982, 986 (2009).

This Court must construe the record in the light most favorable to the party opposing the motion, drawing all reasonable inferences in that party's favor. If reasonable people could reach different conclusions or inferences from the evidence, the motion must be denied. However, the nonmoving party must submit more than just conclusory assertions that an issue of material fact exists to withstand summary judgment. 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. Instead, the nonmoving party must respond to the summary judgment motion with specific facts showing there is a genuine issue for trial.

Id. (citations omitted). However, this Court also reviews questions of law de novo.

Valiant Idaho, LLC v. JV L.L.C., 164 Idaho 280, 429 P.3d 168, 174 (2018).

IV. ANALYSIS

A. The district court did not err in granting summary judgment for D&L or in vacating McGimpsey's summary judgment hearing and the jury trial.

The district court concluded that D&L had the legal ability to convey the Property via a warranty deed and that McGimpsey breached the Buy-Sell Agreement by failing to close and failing to show that his breach was excused by D&L's alleged inability to convey marketable title. D&L maintains that the district court correctly applied the law and granted summary judgment because there was no genuine issue of material fact. In arguing that the district erred by granting summary judgment for D&L, McGimpsey actually makes four distinct legal arguments: (1) D&L could not legally convey title because of its unregistered status and unpaid corporate income taxes, as required under Idaho Code section 30-21-502 ; (2) D&L could not provide a warranty deed as required in the Buy-Sell Agreement because D&L "could not convey any better title than what the Trustee held"; (3) pursuant to Idaho Rule of Civil Procedure 8(b)(6), D&L's failure to deny allegations in the complaint were admissions of its material breach of the Buy-Sell Agreement; and (4) even if McGimpsey breached the Buy-Sell Agreement, the district court failed to determine whether McGimpsey's breach was material or incidental. We will address each issue in turn.

1. D&L's unregistered status and likely unpaid corporate income taxes did not impair the validity of the Buy-Sell Agreement.

a. D&L's unregistered status

While the district court concluded that McGimpsey failed to justify his failure to close on the Property, McGimpsey contends that a prudent buyer would not proceed to closing knowing of D&L's unregistered status because D&L could not actually convey marketable title under Idaho Code section 30-21-502. We disagree.

Idaho law requires a foreign entity to register with the Secretary of State prior to conducting business in the State of Idaho. Idaho Code section 30-21-502 specifically provides:

(a) A foreign filing entity or foreign limited liability partnership may not do business in this state until it registers with the secretary of state under this chapter.
(b) A foreign filing entity or foreign limited liability partnership doing business in this state may not maintain an action or proceeding in this state unless it is registered to do business in this state.
(c) The failure of a foreign filing entity or foreign limited liability partnership to register to do business in this state does not impair the validity of a contract or act of the foreign filing entity or foreign limited liability partnership or preclude it from defending an action or proceeding in this state.

The statute requires a foreign entity to register with the state in order to conduct business within Idaho; however, an entity's failure to register only affects its capacity to sue. I.C. § 30-21-502(c). The entity's contract formations or its defense in any arising litigation remains unimpaired. See id.

This statute-and its predecessors-have been addressed by this Court in a procedural context. For example, in Burley Newspapers, Inc. v. Mist Publishing Co., an unregistered Oregon corporation contracted to sell a newspaper operation it had owned and operated for seventeen years in Idaho. 90 Idaho 515, 517, 414 P.2d 460, 460 (1966). Two years later, the buyer-Burley Newspapers-filed suit to rescind the contract because of alleged misrepresentations and breaches by the seller, Mist Publishing. Id. Mist counterclaimed. Id. at 517, 414 P.2d at 461. The case came to this Court to determine whether Mist Publishing was barred from filing its counterclaim because it was unqualified to do business in Idaho at the time it entered the contract with Burley Newspapers. Id. at 520-21, 414 P.2d at 461-62. This Court concluded the statute did not preclude Mist from asserting its counterclaim because the statute was meant to protect an Idaho citizen's rights to sue, not prohibit or discourage corporations from doing business in the state. Id. at 522, 414 P.2d at 462.

In making this determination, the Court assessed the purposes behind the statutes that required foreign corporations to register with the Secretary of State, which are helpful to understanding the newer statutory provisions at issue in this case. The Court quoted the following from Katz v. Herrick :

A failure to comply with these requirements and obtain the legal right to transact business is not in fact so much of an invasion or violation of the sovereignty of the state as it is a violation of the private and property rights of the citizens with whom it does business. At the time of the adoption of the Constitution, as well as now, it was the practice of many tramp, predatory, and rapacious foreign corporations organized under the laws of-nobody knew where-to come into this jurisdiction, and, without appointing an agent or establishing a place of business, make contracts and transact business, and, after having violated their contracts or committed injuries and depredations upon the rights of the citizen, avoid the process of the state courts, which practically amounted, in many instances, to complete protection and immunity from the consequences of their unlawful acts. In the great majority of instances, if the citizen be unable to prosecute his action and secure redress for his grievances in the state courts and in the county where he resides, it amounts to denying him redress at all. ... We have never held, and never intended so to do, that such contracts are entirely and absolutely void. On the contrary, we intimated in the original opinion that they are enforceable on the side of the party with whom they have assumed to contract. We did say, however, that the corporation should be without any remedy in the courts on an action to enforce contracts made by them while in default of compliance with the requirements of law. The evil does not exist so much in the contract as in the legal existence of one of the contracting parties. ... here the hazard and risk is admitted-hazard and risk of being unable to get service of process on the noncomplying corporation.

Id. at 521, 414 P.2d at 462 (quoting Katz v. Herrick, 12 Idaho 1, 26-30, 86 P. 873, 879-80 (1906) ).

While both Burley Newspapers, Inc., and Katz addressed older statutory provisions, the historic Idaho Code sections set out similar filing requirements for foreign corporations to register with the Secretary of State in order to conduct business in Idaho. Id. at 520-21, 521 n.1-2, 414 P.2d 460, 460. Thus, these corporation-registration requirements have long established two important principles: first, contracts made by an unregistered corporation are not void, nor are they voidable by the other party or against public policy; second, the statute's purpose is to ensure Idaho citizens can sue foreign corporations in Idaho. See id. at 521-22, 414 P.2d at 462. This conclusion also corresponds with the plain language of the statute, which states: the "failure of a foreign filing entity or foreign limited liability partnership to register to do business in this state does not impair the validity of a contract." I.C. § 30-21-502(c). Indeed, almost every case from this Court dealing with a company's failure to register has concerned permissible litigation procedures, not contract validity. See, e.g., Ketterling v. Burger King Corp., 152 Idaho 555, 558-60, 272 P.3d 527, 530-32 (2012) (holding that an LLC's failure to register as a foreign LLC or file an assumed business name did not disadvantage the plaintiff because the identity and contact information were readily available); Young Elec. Sign Co. v. Capps, 94 Idaho 518, 520, 492 P.2d 57, 59 (1971) (quoting Spokane Merchants' Ass'n v. Olmstead, 80 Idaho 166, 170, 327 P.2d 385, 387 (1958) ) ("The (contract) would not be void though plaintiff had not qualified to do business in this state. The disability affects only the remedy. Qualification at the time of trial is sufficient to entitle plaintiff to maintain the action.").

In contrast, the only authority McGimpsey offers to support his position is the rule that "[e]very title is doubtful which invites or exposes the party holding it to litigation." Bell v. Stadler, 31 Idaho 568, 174 P. 129, 131 (1918) ; see also Brown v. Yacht Club of Coeur d'Alene, Ltd., 111 Idaho 195, 196, 722 P.2d 1062, 1063 (Ct. App. 1986) ("A purchaser of real property who bargained for marketable title thereto cannot be required to accept property with an admitted cloud on the title.") (quoting Fajen v. Powlus, 98 Idaho 246, 248, 561 P.2d 388, 390 (1977) ). McGimpsey also relies on sections (a) and (b) of Idaho Code section 30-21-502 to remind the Court that the plain language of the statute bars D&L from conducting business in Idaho, including the leasing and selling of the Property. Yet this Court has recognized that a foreign entity's failure to register does not cloud a property's title. Cooper v. Boise Church of Christ of Boise, Idaho, Inc., 96 Idaho 45, 46-47, 524 P.2d 173, 174-75 (1974) (recognizing a quitclaim deed was not void because of a New Mexico corporation's failure to register to do business in Idaho).

Ultimately, no authority supports McGimpsey's interpretation. Instead, the plain language of the statute expressly states that the "failure of a foreign filing entity or foreign limited liability partnership to register to do business in this state does not impair the validity of a contract ." I.C. § 30-21-502(c) (emphasis added). Case law and the statute's historical purposes also suggest that the longstanding need for, and enforcement of, foreign entity registrations is to protect an Idaho citizen's right to sue the foreign entity. "The evil does not exist so much in the contract as in the legal existence of one of the contracting parties." Burley Newspapers, Inc., 90 Idaho at 521, 414 P.2d at 462 (quoting Katz, 12 Idaho at 28, 86 P. at 879 ). Idaho Code section 30-21-502 is more of a sword than a shield because it protects honest dealers from fraudulent foreign business activities by giving Idaho residents a litigation avenue. As such, D&L's Buy-Sell Agreement would not be void or voidable because of its unregistered status. On the contrary, D&L's failure to register would not create a defect in the chain of title, making McGimpsey's concerns unfounded.

Finally, while the parties agree that the contract is valid, they disagree over whether McGimpsey's failure to close was excused. He has not supplied any legal basis under Idaho Code section 30-21-502 to justify the breach. The contract is valid and must be enforced in full. "Equity requires that if part of a contract is to be enforced, as respondent is seeking to do in its action, the entire contract, which is valid, also should be enforced, including the obligations of the plaintiff." Burley Newspapers, Inc., 90 Idaho at 522, 414 P.2d at 462. In the end, D&L's nonregistration did not invalidate its contractual ability to sell the Property and McGimpsey failed to show any authority to the contrary that would excuse his non-performance.

b. D&L's unpaid taxes

McGimpsey next contends that D&L incurred potential tax liabilities as an unregistered entity, thereby creating a cloud on the Property's title that prohibited D&L from providing a warranty deed. The district court concluded that unpaid taxes cannot become a lien on a property until the taxes are assessed and, even then, "the lien or potential lien would only extend to the property currently owned by the tax payer at the time of the assessment." The district court's analysis is correct.

Pursuant to Idaho Code section 63-3050, tax debts to the State of Idaho may be collected through a lien foreclosure. Likewise, under the federal Internal Revenue Code, unpaid federal taxes can become a lien "in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person." 26 U.S.C. § 6321. However, both federal and state laws specify that a lien arises at the time of a tax assessment. 26 U.S.C. § 6322 ; I.C. § 63-3045A(1). Idaho law provides: "no tax commission activities to enforce collection of tax may be conducted, nor may a proceeding to collect a tax be instituted, until taxes are assessed in accordance with the provisions of this section." I.C. § 63-3045A(1). Federal law states: "the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time." 26 U.S.C. § 6322. Thus a tax lien arises after assessment begins, and unassessed corporate taxes are not an encumbrance on the corporate property. See 26 U.S.C. § 6322 ; I.C. § 63-3045A(1).

There is no evidence of a tax assessment, lien, or tax lien proceedings on the Property or on D&L prior to the closing date. McGimpsey indicates that discovery would solve these factual gaps by providing evidence of any unpaid taxes, yet simultaneously argues that he acted as a prudent purchaser when he refused to close even though there is no evidence to support his assertions. Absent such evidence, McGimpsey failed to establish a reasonable basis for him to refuse to close on the purchase of the Property.

2. D&L could promise a warranty deed as required in the Buy-Sell Agreement despite receiving a trustee deed.

McGimpsey contends that because D&L received a trustee deed on obtaining the Property in 2013, it "could not convey any better title than what the Trustee held." He also asserts that the warranty deed does not exist because it was never produced. We reject McGimpsey's arguments.

A deed is, quite simply, a writing-signed, sealed, and delivered-to convey some interest in property. Glander v. Glander, 72 Idaho 195, 200, 239 P.2d 254, 257 (1951). In Idaho, a "conveyance of an estate in real property may be made by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing." I.C. § 55-601. One such instrument is a warranty deed, which "expressly guarantees the grantor's good, clear title and that contains covenants concerning the quality of title, including warranties of seisin, quiet enjoyment, right to convey, freedom from encumbrances, and defense of title against all claims." Warranty deed, BLACK'S LAW DICTIONARY (8th Ed. 2004).

However, the common law requirements for a deed have never required the writing to be identical through the chain of title. In other words, D&L was not required to convey the Property without warranties because it received the Property without warranties. As analyzed in the foregoing sections, D&L could convey the Property despite its unregistered status, and it could have been held liable to McGimpsey if there was a breach of warranty. Once again, McGimpsey points to no authority for his argument and his contention that, if accepted, would turn property law on its head by trapping real properties in set warranties (or lack thereof) in perpetuity.

3. D&L generally denied allegations in the complaint so it did not admit a material breach of the Buy-Sell Agreement.

Following the district court's order granting D&L summary judgment, McGimpsey argued that D&L's failure to properly respond to and deny allegations in the complaint were admissions of the corporation's material breach of the Buy-Sell Agreement. The district court concluded that D&L generally denied the allegations therein, which made " IRCP 8(b)(6) ... of no assistance to McGimpsey in fending off judgment." We agree with the district court's analysis.

Idaho Rule of Civil Procedure 8(b)(6) states, "An allegation, other than one relating to the amount of damages, is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided." However, Rule 8(b)(3) permits a party to generally deny all allegations except those specifically admitted. While it is technically true that D&L did not respond specifically to paragraphs 16 through 18 of McGimpsey's complaint, paragraph 1 of D&L's answer and counterclaim stated, "Defendants deny each and every allegation not specifically admitted herein." This is an appropriate general denial of the remaining allegations. The lack of specific responses to these paragraphs alone does not constitute an admission of material breach by D&L.

4. The district court correctly concluded that McGimpsey's non-performance was a material breach even if it did not use that exact language.

Finally, McGimpsey claims that the district court "failed to decide whether [his] breach was material or merely incidental" to the Buy-Sell Agreement. We disagree.

A material breach is one that permits the other party to rescind the contract. Borah v. McCandless, 147 Idaho 73, 79, 205 P.3d 1209, 1215 (2009). Such a breach is more than incidental-a material breach "touches the fundamental purpose of the contract, defeating the object of the parties entering into the agreement." Id.

In inferring his breach was only incidental, McGimpsey seems to only rephrase his argument that his performance should be excused because D&L breached by not providing marketable title. In addition, the district court implied there was a material breach, even if it did not use that terminology, because it concluded that the breach occurred when McGimpsey failed to close on the purchase of the Property. That was a material breach because it defeated the fundamental purpose of the Buy-Sell Agreement-the purchase of the Property. The district court's finding that McGimpsey breached the Buy-Sell Agreement did not constitute clear error.

B. The district court did not err in dismissing McGimpsey's complaint, nor did it deprive McGimpsey of an inviolate right to a jury trial.

Citing to Idaho Rules of Civil Procedure 38 and 39, McGimpsey next argues that the district court violated McGimpsey's constitutional right to a jury trial by granting summary judgment for D&L before McGimpsey's summary judgment hearing occurred. He also alleges this "judicial wheeling and dealing" of the summary judgment process denied him an opportunity to be heard. D&L argues that McGimpsey's claims were fully briefed in support of his motion for summary judgment, and that all the claims were resolved by the district court through summary judgment. We agree that the district court resolved all claims and that McGimpsey received due process.

Idaho Rules of Civil Procedure 38 and 39 preserve a party's constitutional right to a jury trial and establish the procedures required to request and waive a jury trial. See generally I.R.C.P. 38 - 39. Meanwhile motions for summary judgment fall under Idaho Rule of Civil Procedure 56, and summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." I.R.C.P. 56(a). "To survive summary judgment, a non-moving party must demonstrate the existence of a genuine issue for trial." Kootenai Cnty. v. Harriman-Sayler, 154 Idaho 13, 17, 293 P.3d 637, 641 (2012). The burden shifts to the non-moving party to show the existence of a genuine issue of material fact. Id. The adverse party must set forth specific facts-a "mere scintilla of evidence," slight doubt, or conclusory assertions are insufficient to raise a genuine issue of material fact precluding summary judgment. Id.

The record clearly shows that McGimpsey requested a jury trial and the district court set a date for that trial. However, both parties filed motions for summary judgment soon thereafter. With cross motions for summary judgment before the court, the district court correctly determined that all of the claims from McGimpsey's complaint were before the court: the questions of contract breach, potential violations to Idaho Code section 30-21-502(a), and a determination of remedies.

As noted by the district court, in opposing D&L's motion for summary judgment McGimpsey simply referred to his own motion and memorandum for summary judgment, "thus compelling the Court to consider both in rendering a decision."

In opposition and response to Defendants' February 26, 2018 global summary judgment motion, Plaintiff fully incorporates by this reference his independent Motion for Summary Judgment and Supporting Brief dated and served on March 23, 2018.

Both D&L and McGimpsey argued before the district court at the hearing on D&L's motion for summary judgment on April 10, 2018. Thus all issues were before the district court on cross motions for summary judgment, and the district court heard both parties make oral arguments on their briefing at the April 10 hearing. As shown in the analysis under section A, the district court correctly determined that D&L could convey the Property despite its unregistered status and McGimpsey failed to show why his breach for failing to close should be excused. The district court addressed all of McGimpsey's claims in his complaint; there were no remaining issues for a jury trial to address.

As for McGimpsey's due process argument, procedural due process requires both notice and the opportunity to be heard, but "the protections and safeguards necessary vary according to the situation." Meyers v. Hansen, 148 Idaho 283, 292, 221 P.3d 81, 90 (2009). McGimpsey's opportunity to be heard was given and utilized at the April 10 hearing, but his assertions were still found wanting after he pleaded his case. A second bite at the apple in another summary judgment hearing is not required for due process, nor has McGimpsey presented any new factual or legal basis that would establish a genuine issue of material fact to preclude summary judgment.

C. The district court issued a valid judgment under Idaho Rules of Civil Procedure 54 and 58.

Following the district court's award of summary judgment to D&L, McGimpsey filed a supplemental brief to argue that D&L actually admitted to a material breach under Idaho Rule of Civil Procedure 8(b)(6). In response, the district court issued its May 7, 2018, "Order Re: Judgment and Vacating Summary Judgment Hearing" alongside its final judgment. That May 7 order explained that the district court properly denied all of McGimpsey's claims and that every issue was ultimately addressed by the earlier April 25 award of summary judgment to D&L. McGimpsey now asserts that the district court's May 7 order was not a valid judgment under Idaho Rule of Civil Procedure 54(a)(1).

McGimpsey's contention is unfounded. The May 7 order was never intended as a final judgment. The district court issued the order upon receipt of McGimpsey's additional briefing, filed outside the proper procedures and following adjudication on the parties' motions. It was simply a response to McGimpsey's unauthorized brief. In addition, the actual judgment entered on May 7 is appropriately titled, states the relief D&L is entitled to (including dismissal of McGimpsey's claims with prejudice), has no recital of the pleadings, and begins with "JUDGMENT IS ENTERED AS FOLLOWS:" as required by Idaho Rule of Civil Procedure 54(a)(1).

D. The district court did not err in awarding restitution damages to D&L.

McGimpsey's final argument on appeal is that judicial estoppel bars the award of restitution damages and that D&L waived its right to damages because it said at the April 10 hearing it would not seek damages. As the district court noted, this is a disingenuous reading of the April 10 hearing transcript.

Judicial estoppel is a doctrine that "precludes a party from advantageously taking one position, then subsequently seeking a second position that is incompatible with the first." McCallister v. Dixon, 154 Idaho 891, 894, 303 P.3d 578, 581 (2013). In addition, "clear error will not be deemed to exist if the findings are supported by substantial and competent, though conflicting, evidence." State, Dep't of Health & Welfare v. Roe, 139 Idaho 18, 21, 72 P.3d 858, 861 (2003).

In the April 10 hearing, the district court asked what remedies D&L sought. D&L explained that it was not seeking damages for lost profit on the sale of the property but that it sought "post-closing rent from October through the present date at the $ 2,400 per month" rate. McGimpsey's report of the transcript is misconstrued. D&L consistently maintained throughout litigation that it sought unpaid rent from McGimpsey, the tenant who refused to vacate the Property or pay rent and late fees for the additional nine months he lived there. McGimpsey has not given any basis to apply judicial estoppel, nor has he given any explanation of why D&L is not entitled to the unpaid rent. In short, McGimpsey's judicial estoppel argument is unsupportable and the award of damages to D&L did not constitute clear error.

E. D&L is not entitled to attorney fees and costs on appeal.

D&L claims it is entitled to attorney fees on appeal pursuant to Idaho Code section 12-121. That provision states: "In any civil action, the judge may award reasonable attorney's fees to the prevailing party or parties when the judge finds that the case was brought, pursued or defended frivolously, unreasonably or without foundation." However, McGimpsey presented some legitimate issues on appeal concerning the interpretation of the corporate registration statute. We do not find his appeal frivolous and accordingly decline to award D&L fees on appeal.

V. CONCLUSION

We affirm the district court's final judgment for D&L, but decline to award attorney fees. Costs to D&L.

Chief Justice BURDICK, and Justices BEVAN, STEGNER, and MOELLER concur.