Roy D. Cheesman v. John Graf

• Court: Court of Appeals of Washington
• Decided: March 24, 2020
• Docket: 36347-3
• Status: Unpublished

Opinion

FILED MARCH 24, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

ROY D. CHEESMAN, ) No. 36347-3-III ) Appellant, ) ) v. ) ) UNPUBLISHED OPINION JOHN GRAF; TIA ROSS; NANCY ) WILLBANKS; BEN MOUNT; and the ) ELLENSBURG SCHOOL DISTRICT, ) ) Respondents. )

P ENNELL, C.J. — Roy Cheesman appeals a summary judgment order dismissing his

complaint against the Ellensburg School District and several of its employees. We affirm.

FACTS

Employees of the Ellensburg School District noticed a six-year-old student came to

school with a black eye. When asked, the student offered two explanations for the bruising;

in one, she stated her father, Roy Cheesman, had caused it by striking her. Consistent with

Washington’s mandatory reporting statutes, RCW 26.44.030 and.040, school officials

contacted Child Protective Services (CPS). As a consequence, Mr. Cheesman’s daughter

was removed from his home. The State brought, but later dismissed, criminal charges

against Mr. Cheesman. No. 36347-3-III Cheesman v. Graf

Mr. Cheesman filed a lawsuit against the Ellensburg School District and four of its

employees. He sought relief for intentional infliction of emotional distress and malicious

prosecution. The District moved for summary judgment, arguing Mr. Cheesman’s claims

lacked factual and legal support. Mr. Cheesman opposed the District’s motion, but did not

otherwise submit evidence supporting his claims. Instead, he sought a continuance to

conduct discovery.

The superior court considered the parties’ positions during an in-person hearing. At

the hearing, the court engaged Mr. Cheesman in a lengthy colloquy. The court asked Mr.

Cheesman why he had not yet obtained evidence supporting his claims. Mr. Cheesman

stated he had been confused as to the process. He also cited his work schedule, medication,

and the pendency of criminal charges against him for half of the case’s duration. The court

also questioned Mr. Cheesman on the legal basis for his claims. Mr. Cheesman asserted that

the defendants violated the law because they should have contacted the police regarding

alleged abuse instead of CPS.

The trial court ruled Mr. Cheesman had not presented a case of excusable delay and

denied his continuance motion. The court also found Mr. Cheesman lacked sufficient

evidence to support his claims, and granted summary judgment to the District and its

employees. Mr. Cheesman timely appeals.

2 No. 36347-3-III Cheesman v. Graf

ANALYSIS

In his pro se appeal, Mr. Cheesman lists 12 assignments of error. The majority of the

alleged errors are not well developed. However, it appears Ms. Cheesman is arguing: (1) the

trial court improperly denied his motion to continue, and (2) the defendants failed to

support their motion for summary judgment. 1

A trial court’s decision on a motion to continue a summary judgment hearing is

reviewed for an abuse of discretion. Barkley v. GreenPoint Mortg. Funding, Inc., 190 Wn.

App. 58, 71, 358 P.3d 1204 (2015). Discretion is abused when a decision is “manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons.” State ex rel.

Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). A summary judgment

continuance is not permissible if “(1) the requesting party does not have a good reason for

the delay in obtaining the evidence, (2) the requesting party does not indicate what evidence

would be established by further discovery, or (3) the new evidence would not raise a

genuine issue of fact.” Barkley, 190 Wn. App. at 71 (quoting Qwest Corp. v. City of

Bellevue, 161 Wn.2d 353, 369, 166 P.3d 667 (2007), abrogated on other grounds by

Cost Mgmt. Servs., Inc. v . City of Lakewood, 178 Wn.2d 635, 310 P.3d 804 (2013)).

1 To the extent Mr. Cheesman has attempted to raise additional errors, his claims are not sufficiently developed to warrant appellate review. See RAP 10.3(a)(6); In re Marriage of Fahey, 164 Wn. App. 42, 59, 262 P.3d 128 (2011).

3 No. 36347-3-III Cheesman v. Graf

No abuse of discretion happened here. Mr. Cheesman’s case had been pending for a

significant period of time prior to the defendants’ summary judgment motion. During the

court hearing, Mr. Cheesman could not articulate sufficient reasons for his delay in

obtaining evidence and, perhaps more importantly, he did not identify what relevant

evidence could be obtained should the court grant his request. Although Mr. Cheesman was

proceeding pro se, the trial court properly held him to the same standard as an attorney.

Kelsey v. Kelsey, 179 Wn. App. 360, 368, 317 P.3d 1096 (2014).

Turning to the merits of the summary judgment order, the test is whether the moving

party demonstrated an absence of genuine issues of material fact such that it was entitled to

judgment as a matter of law. CR 56(c). Genuine issues are absent when the available

evidence could not lead any reasonable juror to return a verdict for the nonmoving party.

Reyes v. Yakima Health Dist., 191 Wn.2d 79, 86, 419 P.3d 819 (2018). “A defendant may

move for summary judgment on the ground that the plaintiff lacks competent evidence to

support its claim.” Hymas v. UAP Distrib., Inc., 167 Wn. App. 136, 150, 272 P.3d 889

(2012).

The defendants’ summary judgment submissions amply supported the trial court’s

ruling. The undisputed statements by Mr. Cheesman’s daughter provided school employees

4 No. 36347-3-III Cheesman v. Graf

a sufficient basis for making a referral to CPS. 2 This precludes a claim for intentional

infliction of emotional distress and malicious prosecution. Christian v. Tohmeh, 191 Wn.

App. 709, 735-36, 366 P.3d 16 (2015) (The tort of intentional infliction of emotional

distress requires objectively outrageous conduct “beyond all possible bounds of decency.”);

Hanson v. City of Snohomish, 121 Wn.2d 552, 558, 852 P.2d 295 (1993) (Malicious

prosecution requires absence of probable cause.).

CONCLUSION

The trial court’s order of summary judgment and judgment of dismissal are affirmed.

A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_________________________________ Pennell, C.J. WE CONCUR:

______________________________ Korsmo, J. Siddoway, J.

2The statute states that professional school personnel shall report abuse to law enforcement or the department of children, youth, and families (i.e., CPS). RCW 26.44.030(1)(a); see also RCW 26.44.020(4), (10).