Eric Posey <strong>v</strong>. Summer Bushnell

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IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 52072

ERIC POSEY,                         )
                                    )
      Plaintiff-Respondent,         )                Lewiston, April 2026 Term
                                    )
v.                                  )                 Opinion Filed: September 22, 2026
                                    )
SUMMER BUSHNELL,                    )                Melanie Gagnepain, Clerk
                                    )
      Defendant-Appellant,          )
____________________________________)

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Kootenai County. Ross Pittman, District Judge.

       The judgment of the district court is affirmed.

       Summer Bushnell, Pro Se, for Appellant. Summer Bushnell argued.

       Stoel Rives LLP, Boise, for Respondent. Wendy J. Olson argued.
                          _________________________________

BEVAN, Chief Justice.
       This appeal arises from a jury verdict and district court judgment in a defamation case. In
June 2022, Posey performed on stage at a drag show in Coeur d’Alene City Park. The performance
was attended by members of the public, including children. Bushnell did not attend the live show,
though she later obtained a video recording of Posey’s performance. On social media, Bushnell
posted a video of herself describing what she saw in the video, claiming that Posey had “flashed
his genitalia” during the performance, and asking why Posey had not been arrested. Bushnell then
uploaded an edited version of Posey’s performance to social media, blurring out the area around
his crotch and claiming that the blurred area covered Posey’s “fully exposed genitals.” Posey sued
Bushnell for defamation, alleging that Bushnell had lied about his performance for the sake of
gaining attention on social media. The case went to trial and the jury found in favor of Posey,
awarding him $926,000 in compensatory damages and $250,000 in punitive damages.
       Bushnell appeals the district court’s judgment giving effect to the jury’s verdict. She
alleges that the district court committed ten errors: (1) not requiring proof of loss or evidence of
damages before allowing the jury to consider punitive damages; (2) failing to provide an expanded
jury instruction on punitive damages; (3) ignoring her second amended requested jury instructions
and verdict form; (4) providing the jury with the verdict form that contained errors; (5) allowing
the jury to consider damages after Posey admitted that Bushnell was not the cause of his job loss;
(6) misapplying Idaho Code section 16-1604, 1 regarding punitive damages; (7) failing to provide
adequate jury guidance on the damages awarded; (8) failing to properly apply Idaho Rule of Civil
Procedure Rule 47(f); (9) inconsistently applying the law because a judge previously assigned to
the case deemed her to be a “media defendant” and another judge later assigned to the case did
not; and (10) holding that Posey was not a limited-purpose public figure. Posey defends the district
court’s judgment and argues that the jury’s verdict should be affirmed, and the appeal dismissed.
For the reasons set forth below, we affirm the judgment against Bushnell.
        We also take this opportunity to address the risks associated with reliance on generative
artificial intelligence and to make clear that such reliance is fraught with potential peril. As
explained below, the use of artificial intelligence does not excuse inaccuracies in briefing, whether
it be used by attorneys or self-represented litigants.
                          I.       FACTUAL AND PROCEDURAL BACKGROUND
A.      Factual Background
        In June 2022, the North Idaho Pride Alliance (“NIPA”) hosted its sixth annual Pride in the
Park event at Coeur d’Alene City Park. A local man, Eric Posey, applied to perform in a drag show
that was a part of the event. Posey had not performed in drag for several years, but some of his
friends on the board of NIPA told him about the opportunity, and it interested him. Posey’s
application was accepted, and he went on to perform three times at Pride in the Park. These
performances lasted around three to five minutes each and took place on a stage in front of a crowd
comprised of children and other members of the public. One of those observers, a man named
Jeremy Lokken, recorded one of Posey’s performances and sent the video recording to Summer
Bushnell, a local internet blogger.
        Bushnell took great exception to Posey’s performance. After reviewing Lokken’s
recording, Bushnell posted a video of herself on Facebook. In her video, Bushnell asked: “why did
nobody arrest the man in a dress who flashed his genitalia to minors and people in the crowd[?]”


1
 Idaho Code section 16-1604 describes retained jurisdiction under Idaho’s Child Protective Act. Idaho Code section
6-1604 provides limitations on punitive damages. Bushnell’s briefing repeatedly cites 16-1604 while discussing
punitive damages. Our analysis assumes her citations were erroneous and analyzes her argument according to 6-1604.


                                                        2
She then posted an edited version of Posey’s performance on social media, blurring out Posey’s
crotch. Bushnell’s posts informed the public that the blurred area covered “fully exposed genitals,”
and that she could see Posey’s “berries and partial twig” in the unedited version. She also spliced
in a scene of children from a different performance reacting to something off camera, implying
that the children were reacting to Posey’s alleged exposure. She would later admit that the most
she could see was the “faint outline of a testicle” in the unedited version of the video, and that she
knew that it was false to say that she could see Posey’s penis at the time she made her comments.
Nevertheless, Bushnell still publicly called for the police to investigate Posey’s performance,
claiming that Posey had violated the law and should be arrested.
           Bushnell’s public statements subjected Posey to public backlash. The police department
began an investigation into Posey’s performance based on Bushnell’s claims that Posey had
exposed himself to children in public. This investigation was eventually closed for a lack of
evidence. Posey was also harassed at Walmart, where he worked, and repeatedly called racial slurs.
Customers even told Posey to run away and to go into hiding.
           These experiences caused Posey significant mental anguish. He felt that he had to hide his
movements from the public, and he decided to seek out crisis counseling to address his
deteriorating mental health. Posey even changed his residence in response to the public backlash.
He was also afraid that he might be arrested for his performance, at least until the police department
dropped its investigation because of the lack of evidence of wrongdoing.
           Posey further claimed that Bushnell’s allegations cost him his employment with Walmart.
After Bushnell posted her video to social media, Posey had a very negative experience with a
customer. The customer had asked Posey for change and then called him a racial slur when he took
too long. In Posey’s words, he “cracked” when he heard the insult, and he wrote the racial slur
down on the customer’s change before giving it to the customer. Walmart then fired Posey,
something he attributed to Bushnell’s statements because he was “fine before all of this.”
B.         Procedural Background
           Posey filed a complaint on September 26, 2022, alleging that Bushnell had defamed him
directly and by implication. After about a year of discovery, Posey and Bushnell 2 brought cross
motions for summary judgment. Then, a few months later, Posey moved for leave to amend his


2
    Bushnell was represented by an attorney in the proceedings below. She represents herself in this appeal.


                                                            3
complaint to add punitive damages. The district court denied the parties’ cross motions for
summary judgment in late December 2023. As part of its order denying the parties’ cross motions
for summary judgment, the district court determined that Posey was not a “public figure” or a
“limited-purpose public figure.” However, the district court did permit Posey to amend his
complaint and seek punitive damages, which he did.
       On May 13, 2024, both Posey and Bushnell submitted proposed jury instructions to the
district court. Bushnell argued—for the first time—that she was a media defendant; thus, her
statements were deserving of heightened First Amendment protection. She also reasserted that
Posey was a limited-purpose public figure, which would have increased Posey’s burden of proof
at trial. Then, on May 19, Bushnell submitted her first set of amended jury instructions. By this
time, a new district court judge had been assigned to the case. That judge determined that Bushnell
was a media defendant, and that Posey therefore had to prove that Bushnell’s statements were false
in order to prevail. However, the new judge rejected Bushnell’s argument that Posey was a limited-
purpose public figure, noting that a judge previously assigned to the case had already determined
that Posey was not a limited-purpose public figure, and that he would not “disturb” that ruling.
       Jury selection began on May 20, 2024. During voir dire, the district court asked the
potential jurors if any of them held “a religious or moral position that would make it impossible to
render judgment . . . .” The court asked this question because it could “see there’s a religious
position in this specific case [that] may preclude [potential jurors] from making a decision.” The
district court then asked if the potential jurors would be “willing to set aside this religious position
and render a fair and impartial verdict . . . .” Bushnell did not object when the district court asked
these questions, nor did she object when jurors were excused for cause on this basis. Ultimately,
five prospective jurors were excused because they held moral or religious views that they felt could
not allow them to render judgment or be impartial. The jury was empaneled early in the afternoon
on May 20, and the jury trial began.
       A few days later, on May 22, Bushnell submitted a second set of amended jury instructions.
This second set of amended jury instructions was identical to Bushnell’s first set of amended jury
instructions, except that she had also included two new jury instructions that identified truth as a
defense to defamation. On May 23, after Bushnell had rested her case, the district court began
conferencing with the parties to finalize the jury instructions and verdict form. The next day, the
district court, with input from the parties, finalized the jury instructions and a verdict form.


                                                   4
Bushnell’s counsel did not object to the final jury instructions or verdict form. Once the parties
finished presenting their closing arguments, the case was submitted to the jury.
        The jury returned a verdict in favor of Posey. The jury found that Bushnell had defamed
Posey and defamed him by implication. The jury awarded Posey $326,000 in damages for the
defamation claim and $600,000 for the defamation by implication claim. The jury also found that
Bushnell knew that her statements were false, or had acted with reckless disregard for the truth,
and that she had acted oppressively, fraudulently, maliciously, or outrageously by making those
statements. Pursuant to this finding, the jury awarded Posey $250,000 in punitive damages. The
district court then entered a judgment giving effect to the verdict. Bushnell timely appealed from
that judgment.
                                   II.     ISSUES ON APPEAL
     1. Whether Bushnell’s appeal should be dismissed for her failure to comply with appellate
        standards.
     2. Whether the district court erred by holding that Posey was not a limited-purpose public
        figure.
                                 III.    STANDARD OF REVIEW
        “Determining whether an individual is a public figure or official presents a question of
law.” Verity v. USA Today,
164 Idaho 832, 842
,
436 P.3d 653, 663
(2019) (citation omitted). “This
Court applies a de novo standard of review to questions of law.” Yellowstone Log Homes, LLC v.
City of Rigby,
173 Idaho 288
, 293,
540 P.3d 990, 995
(2023) (quoting Ware v. City of Kendrick,
168 Idaho 795, 798
,
487 P.3d 730, 733
(2021)).
                                         IV.    ANALYSIS
A.      We decline to address nine of Bushnell’s issues on appeal because Bushnell’s briefing
        does not comply with our appellate standards.
        Generally speaking, aggrieved parties have a right to appeal those judgments and orders
made appealable by the Idaho Appellate Rules. See, e.g., I.A.R. 11 (identifying appealable
judgments and orders); I.A.R. 4 (outlining who may appeal). However, the right to appeal does
not entitle a litigant to prosecute an appeal in whatever manner the litigant chooses. Idaho
Appellate Rule 4 clarifies that an aggrieved party may appeal an appealable judgment or order
only in accordance with Idaho’s appellate rules. See I.A.R. 4. Those rules, together with this
Court’s precedent, establish the standards governing appellate advocacy before this Court, and
those standards apply equally to represented and self-represented litigants. See Suitts v. Nix, 141
5
Idaho 706, 709
,
117 P.3d 120, 123
(2005) (“Pro se litigants are held to the same standards and
rules as those represented by an attorney.” (quoting Twin Falls County v. Coates,
139 Idaho 442,
445
,
80 P.3d 1043, 1046
(2003))). When a party’s arguments fail to comply with the requirements
of the Idaho Appellate Rules or this Court’s precedent, we will often refuse to consider those
arguments. See Bach v. Bagley,
148 Idaho 784
, 790–91,
229 P.3d 1146
, 1152–53 (2010). In more
egregious cases, we may exercise our discretion to impose sanctions for violations of the appellate
rules or other misconduct in the appellate process. See I.A.R. 11.2(a).
        In this case, Posey requests that we dismiss Bushnell’s appeal “outright” for failing to
sufficiently comply with our appellate standards. He does not seek a monetary sanction in the form
of attorney fees. Posey argues that Bushnell failed to support her issues with cogent argument and
authority, that she has failed to preserve most of her issues, and that she failed to articulate or apply
the correct standard of review.
        Generally, this Court will not dismiss an entire appeal because the appellant has failed to
argue some of the issues under the correct standard of review. See Cummings v. Stephens
(Cummings II),
160 Idaho 847, 853, 380
, P.3d 168, 174 (2016) (refusing to consider one issue
raised under the wrong standard of review but considering others that were raised under the correct
standard of review). And this Court will not necessarily dismiss an entire appeal because some—
or even most—of the issues were presented without cogent argument or authority. See Bach, 148
Idaho at 790–91, 229 P.3d at 1152–53 (addressing some arguments on appeal that were
“marginally raised” but refusing to consider others that were “lacking in coherence, citations to
the record, citations of applicable authority, or comprehensible argument”). Nor will this Court
dismiss an entire appeal simply because some issues were unpreserved. See State v. Bodenbach,
165 Idaho 577
, 583–84,
448 P.3d 1005
, 1011–12 (2019) (addressing one issue that was preserved
while dismissing other issues that were not). Applying this standard in this case, we agree with
Posey that Bushnell’s briefing fails to comply with appellate standards to such a degree that we
will not address nine of the alleged errors she claims on appeal. However, we decline to dismiss
the appeal outright.
        1. Our appellate standards require adequate argument and authority.
        One foundational appellate standard is the requirement to present one’s position with
adequate argument and authority. This Court will not consider an issue that is not “supported by
argument and authority in the opening brief.” Bach,
148 Idaho at 790
,
229 P.3d at 1152
(quoting


                                                   6
Jorgensen v. Coppedge,
145 Idaho 524, 528
,
181 P.3d 450, 454
(2008); remaining citation
omitted); see also I.A.R. 35(a)(6), (b)(6) (stating that the parties should present argument with
“citations to the authorities . . . relied upon”). “Regardless of whether an issue is explicitly set forth
in the party’s brief as one of the issues on appeal, if the issue is only mentioned in passing and not
supported by any cogent argument or authority, it cannot be considered by this Court.” Bach,
148
Idaho at 790
,
229 P.3d at 1152
(citation omitted). “A party waives an issue cited on appeal if either
authority or argument is lacking, not just if both are lacking.” AgStar Fin. Servs., ACA v. Nw. Sand
& Gravel, Inc.,
161 Idaho 801, 816
,
391 P.3d 1271, 1286
(2017) (emphasis added) (quoting Gem
State Ins. Co. v. Hutchinson,
145 Idaho 10, 16
,
175 P.3d 172, 178
(2007); and then citing I.A.R.
35(a)(6)).
         Our review of Bushnell’s briefing reveals that most of the issues raised on appeal are
unsupported by cogent argument or authority. Although Bushnell cites numerous authorities in
support of her arguments, many do not support her arguments because they are fabricated or
inaccurate quotations. In fact, of the twenty-two purported quotations Bushnell attributes to
caselaw, statutes, court rules, pattern jury instructions, and the Idaho Constitution, only six are
accurate quotations with some minor spelling errors. Bushnell’s briefing also misrepresents
caselaw, statutory law, court rules, and pattern jury instructions. For example, Bushnell cites
“Jones v. Lynn,
155 Idaho 439, 445
(2013),” (italics in original), as holding that errors occurring
during voir dire require reversal, even absent a contemporaneous objection, when those errors
undermine the fairness of jury selection. No such decision exists. The only Jones v. Lynn decision
in Idaho is from 2021 and concerns an appeal from a grant of summary judgment.
169 Idaho 545
,
549–50,
498 P.3d 1174
, 1178–79 (2021). The decision does not discuss jury selection.
Id.
Bushnell
also cites two nonexistent cases: McAdam v. McAdam and Dairyland Insurance Co. v. Hawkins.
Neither reference included the reporter citation for the case, and we were unable to identify any
relevant caselaw in Idaho with those names. 3
         Fake quotations, errant citations, and non-existent cases do not constitute adequate
authority. Neither do citations that materially misstate or misrepresent the authorities on which



3
  Bushnell claims that she inadvertently failed to identify McAdam as a North Dakota case. The record does not support
that explanation. Bushnell cited McAdam for the proposition that legally inaccurate jury instructions require reversal.
The closest North Dakota case we identified is McAdams v. McAdams,
530 N.W.2d 647, 650
(N.D. 1995), which
involved a child custody case that did not address juries or jury instructions.


                                                          7
they purport to rely. Indeed, fabricated authority is more troubling than the absence of authority
because it introduces false information into the judicial process. Appellate advocacy depends on
the accurate and candid presentation of legal authority. Fabricated authority hinders this Court’s
consideration of the issues presented, requires this Court to expend resources identifying and
correcting false representations, and undermines the integrity of the appellate process.
       Many of Bushnell’s arguments on appeal depend on fabricated or misrepresented authority.
Once that authority is set aside, those arguments are left without the cogent legal support necessary
for appellate review. For example, Bushnell has failed to provide adequate authority supporting
her contention that compensatory damages must be shown before punitive damages may be
awarded. She has also failed to provide sound authority demonstrating that Idaho Rule of Civil
Procedure 51(e) requires reversal if a district court did not rule on a requested instruction. And she
has provided no authority to show that the district court must find clear and convincing evidence
supporting an award of punitive damages before allowing the jury to consider such an award.
Therefore, we decline to consider these arguments, which comprise parts of the first, third, and
fifth issues that Bushnell has raised on appeal.
       Bushnell has also failed to support a significant number of her issues with cogent argument.
Many of her issues are presented in passing with very little explanation. Others are so amorphous
that it is almost impossible to determine what she is arguing. For example, Bushnell asserts that
the district court erred by not accepting her proposed “verdict form modifications,” but she has
made no attempt to identify those supposed modifications, nor has she identified the specific
language those modifications were meant to replace. She only states that these modifications were
necessary “to avoid language implying Defendant’s guilt or predetermining liability.” These vague
and conclusory arguments appear to invite this Court to search the record on Bushnell’s behalf to
make her arguments for her. But “it is not the role of this Court to search the record on appeal for
citation or argument. Indeed, judges are not like pigs, hunting for truffles buried in briefs.”
Dickenson v. Benewah Cnty. Sheriff,
172 Idaho 144
, 150,
530 P.3d 691
, 697 (2023) (citation
modified). For that reason, we decline to consider several of Bushnell’s deficient arguments,
including: whether the district court erred in how it instructed the jury on defamation by
implication; whether the district court erred by not accepting Bushnell’s proposed verdict form
modifications; whether the district court erred by failing to include limiting principles from section
6-1604; whether the district court erred by “allowing damages to be considered” in light of Posey’s


                                                   8
employment testimony; and whether the district court erred by failing to reduce the punitive
damages amount due to constitutional limitations on punitive damages. This disposes of parts of
the second, third, and sixth issues that Bushnell raised on appeal, as well as the entire fifth error
alleged.
        Finally, several of Bushnell’s arguments rely on imagined or misrepresented facts from the
record. For example, Bushnell claims that the district court erred by failing to adopt her proposed
punitive damages instruction based on Idaho Civil Jury Instruction 9.20. But the record clearly
demonstrates that the district court adopted Bushnell’s requested instructions based on 9.20. An
appellate argument is only as sound as the record on which it rests. When a party misrepresents
the record, the resulting argument cannot establish reversible error because it attributes actions to
the district court that it never took.
        Here, the district court did not fail to adopt Bushnell’s requested 9.20 instructions, her
“truth as a complete defense” to defamation instruction, or a media defendant instruction. Nor did
the district court fail to adopt a requested actual malice instruction. Bushnell never requested such
an instruction. Moreover, the district court never provided a verdict form to the jury asking the
jury to award damages before determining liability. Nor did it err in failing to apply any statutory
limitation on the punitive damages award because the jury’s award did not exceed the statutory
cap. See I.C. § 6-1604(4) (limiting punitive damages to the greater of $250,000 or three times the
compensatory damages). Likewise, the district court did not apply the law inconsistently because,
contrary to Bushnell’s assertion, no judge ever determined that she was not a media defendant.
These assertions comprise part of the fourth and seventh issues on appeal. They also constitute the
remaining arguments in the second, third, and sixth errors alleged—as well as the entirety of the
ninth issue on appeal. These arguments rest on demonstrably inaccurate descriptions of the record
and therefore do not constitute the cogent appellate advocacy required before this Court.
        Accordingly, we decline to consider Bushnell’s first, second, third, fifth, sixth, and ninth
issues on appeal because she has failed to present these issues with adequate argument and
authority. We also decline to consider some of the arguments raised in the fourth and seventh
issues for the same reason.
        2. Our appellate standards require issues to be preserved.
        Another foundational standard in appellate review is the doctrine of preservation.
“Appellate court review is limited to the evidence, theories and arguments that were presented


                                                 9
below.” Nelson v. Nelson,
144 Idaho 710, 714
,
170 P.3d 375, 379
(2007) (quoting Obenchain v.
McAlvain Constr., Inc.,
143 Idaho 56, 57
,
137 P.3d 443, 444
(2006)). “[A] party preserves an issue
for appeal by properly presenting the issue with argument and authority to the trial court below . . .
or a party preserves an issue for appeal if the trial court issues an adverse ruling.” State v.
Miramontes,
170 Idaho 920
, 924–25,
517 P.3d 849
, 853–54 (2022) (emphasis omitted). This is so
because trial courts are usually “in the best position to determine the relevant facts and adjudicate
the dispute.”
Id. at 925
,
517 P.3d at 854
(quoting Puckett v. United States,
556 U.S. 129, 134
(2009)). And also so that “the trial court may have an opportunity to prevent or if possible eradicate
such error . . . .”
Id.
(quoting Stewart v. City of Idaho Falls,
61 Idaho 471
, 478–79,
103 P.2d 697,
700
(1940)).

        Here, in addition to failing to cite adequate authority and misstating the record, Bushnell
has failed to preserve a number of her issues on appeal. Some of those unpreserved issues have
already been addressed above, and those issues will not be recounted here. But there are three
additional issues that were presented with at least some cogency and supporting authority that were
nonetheless unpreserved, namely issue eight and parts of issues four and seven. 4 First, Bushnell
did not preserve her argument that the district court erred by failing to adopt an instruction based
on Idaho Civil Jury Instruction 9.20.5 because she never requested this instruction and did not
object to its absence in the final jury instructions. See I.R.C.P. 51(i)(3) (stating that parties may
not “assign as error” the failure to give an instruction unless the party objected to the failure).
Second, Bushnell failed to preserve her argument that the district court erred during voir dire by
asking prospective jurors whether they held any beliefs that would prevent them from rendering a
fair and impartial verdict and by excusing for cause several jurors who indicated that they did.
Bushnell did not object when the district court asked this question, nor did she object when the
district court excused these jurors for cause. And finally, Bushnell failed to preserve her general
objection to the verdict form because she was given an opportunity to object to that form and
instead indicated that the form was acceptable. In each of these instances, Bushnell failed to present
her argument to the district court and as such, failed to receive an adverse ruling. These arguments



4
  This is not to say that these arguments would have prevailed but for the preservation problem. Rather, these
arguments at least arguably cleared the minimum requirements for appellate filings to be considered by this Court,
except for the lack of preservation.


                                                       10
comprise the rest of the fourth and seventh issues and the entirety of the eighth issue on appeal.
Therefore, these issues are unpreserved, and this Court will not consider them on appeal.
       At bottom, we decline to consider issues one through nine for failing to conform to our
minimum appellate standards.
       3. Our appellate standards require parties to apply the correct standard of review.
       Posey cites an Idaho Court of Appeals case, Somes v. Starnes, in support of his argument
that Bushnell’s appeal should be dismissed “outright” for failing to articulate and apply the correct
standard of review. In Somes, the Court of Appeals noted that the appellant had failed to “identify
the applicable standard of review or apply that standard in his opening brief.” Somes v. Starnes,
176 Idaho 368
, ___,
576 P.3d 305
, 308 (Idaho Ct. App. 2025). The Court of Appeals concluded
that the appellant had “waived the issues on appeal” because the “[f]ailure to include the correct
standard of review on appeal results in a waiver of claims on appeal.”
Id.
at ___, 576 P.3d at 308–
09 (citation omitted). Nevertheless, the Court of Appeals still “review[ed]” the appellant’s “claims
on their merits” to show that he had “failed to establish the district court erred.”
Id.
at ___, 576
P.3d at 309.
       Here, Bushnell only attempts to identify a standard of review on one issue: whether the
district court erred in allowing the jury to consider punitive damages. And the standard of review
she identified for that issue is incorrect. Bushnell claimed that the standard of review for that issue
was a de novo standard, but the standard of review for that issue is for an abuse of discretion.
Alexander v. Stibal,
161 Idaho 253, 260
,
385 P.3d 431, 438
(2016) (citation omitted).
       However, this Court does not “require a formalistic recitation of the standard of review” to
reach the merits of an appeal. State v. Jeske,
164 Idaho 862, 870
,
436 P.3d 683, 691
(2019). “The
real concern of this Court is whether an appellant’s arguments are supported with relevant
argument and authority.”
Id.
(first citing Bach v. Bagley,
148 Idaho 784, 790
,
229 P.3d 1146, 1152
(2010); and then citing I.A.R. 35(a)(6)). In order for this Court to disregard an appellant’s
argument, the appellant must have ignored the standard of review to such a degree that portions of
their appeal must be rejected for lack of adequate argument or authority. See Cummings v. Stephens
(Cummings II),
160 Idaho 847, 853, 380
, P.3d 168, 174 (2016).
       In Cummings II, this Court disregarded an appellant’s argument on a particular issue
because he failed to “identify the applicable standard of review, much less attempt to apply it.”
Id.
The standard of review for that issue was an abuse of discretion standard, but the appellant had


                                                  11
made “no attempt to address the” factors that this Court considers “when evaluating a claimed
abuse of discretion.”
Id.
We concluded our analysis of that issue by stating that the appellant had
“failed to advance any meaningful argument that the district court abused its discretion . . . .
Therefore, his claim that the district court erred fails.”
Id.
However, we still considered another
issue he had raised on appeal because he had applied the correct standard of review for that issue.
See
id.
at 850–52, 380 P.3d at 171–73.
         Our cases declining to consider appellate arguments for failure to articulate the standard of
review in briefing have largely involved claims of abuse of discretion. See, e.g., Stephens v. Buell,
175 Idaho 574
, 598–99,
568 P.3d 471
, 495–96 (2025) (appellant’s failure to identify the abuse of
discretion standard of review, among other things, was a waiver of that issue on appeal); Est. of
Ekic v. Geico Indem. Co.,
163 Idaho 895
, 899,
422 P.3d 1101, 1105
(2018) (failure to cite the
abuse of discretion standard of review and explain how the court violated that standard is “fatally
deficient” to the party’s appeal (quoting State v. Kralovec,
161 Idaho 569
, 575 n.2,
388 P.3d 583
,
589 n.2 (2017)); Bergeman v. Select Portfolio Servicing,
164 Idaho 498, 502
,
432 P.3d 47, 51
(2018) (appellant’s failure to identify the applicable abuse of discretion standard of review
rendered his appeal “fatally flawed” as to that issue). A proper articulation of the standard of
review in such cases is essential, as the appellant must explain how the trial court abused its
discretion under one or more of the four Lunneborg 5 prongs in order to prevail. See Midtown
Ventures, LLC v. Capone,
173 Idaho 172, 180
,
539 P.3d 992, 1000
(2023) (“[T]he failure to
articulate the abuse of discretion prong challenged and put forth an argument under that prong is
fatal” to an appeal.).
         By contrast, the only remaining issue appropriate for consideration in this case, whether
the district court erred in determining that Posey was not a limited-purpose public figure, presents
a question of law. See Verity v. USA Today,
164 Idaho 832, 842
,
436 P.3d 653, 663
(2019) (citation
omitted). Questions of law are reviewed de novo. See Yellowstone Log Homes, LLC v. City of
Rigby,
173 Idaho 288
, 293,
540 P.3d 990, 995
(2023) (quoting Ware v. City of Kendrick,
168 Idaho
795, 798
,
487 P.3d 730, 733
(2021)). This Court may review these legal questions even in the



5
  This Court considers four elements when reviewing a trial court’s decision for an abuse of discretion. Lunneborg v.
My Fun Life,
163 Idaho 856
, 863,
421 P.3d 187, 194
(2018). “Whether the trial court: (1) correctly perceived the issue
as one of discretion; (2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal
standards applicable to the specific choices available to it; and (4) reached its decision by the exercise of reason.”
Id.
12
absence of an explicit statement of the de novo standard of review, provided the argument that
error occurred is otherwise supported by cogent authority. See Bach,
148 Idaho at 790
,
229 P.3d
at 1152
. We determine that Bushnell’s remaining issue was sufficiently argued under the correct
legal standard. Therefore, we decline to dismiss Bushnell’s appeal “outright” for this reason.
       4. Misrepresented facts and authorities can merit sanction.
       As discussed above, the errors in Bushnell’s briefing are pervasive and egregious. Even a
cursory review of the record and transcript, or verification of the rules and cases cited in her brief,
would have readily revealed the errors. Indeed, the nature and extent of the inaccuracies and
misrepresentations in Bushnell’s briefing suggest that she may have relied on generative artificial
intelligence (“GenAI” or “AI”) in drafting her briefs. It is well-established that such tools often
“hallucinate” and generate false legal citations. See Kruse v. Karlen,
692 S.W.3d 43
, 51–52 (Mo.
Ct. App. 2024) (noting that GenAI often hallucinates or provides false authority). Based on the
extent and nature of the misrepresentations in Bushnell’s briefing, we conclude that these cited
authorities were not subjected to meaningful verification by Bushnell before filing.
       As a result of these errors, we ordered Bushnell to submit supplemental briefing to explain
why her appeal should not be dismissed as a sanction. See Grant v. City of Long Beach,
96 F.4th
1255
(9th Cir. 2024) (dismissing an appeal for similar errors). Bushnell filed a supplemental brief
in which she was apologetic and asserted that any inaccuracies were inadvertent. And she repeated
these assertions at oral argument. We accept those representations. But Bushnell also maintained
that she did not rely on GenAI in preparing her briefing. Review of her briefing and the record
raise serious doubt as to that assertion. Regardless, the origin of these deficiencies is less
concerning than the burdens they impose on this Court.
       All litigants, whether represented by counsel or proceeding pro se, are obligated to ensure
the accuracy and validity of the arguments they present to this Court. See I.A.R. 11.2. Parties must
sign the briefs they submit, thereby certifying that, “to the best of the signer’s knowledge,
information, and belief after reasonable inquiry[,]” the filing is “well grounded in fact and is
warranted by existing law . . . .”
Id.
A failure to satisfy that obligation may warrant sanctions under
the rule. See
id.
Thus, this Court possesses ample authority to sanction a litigant for submitting
briefing containing the type of pervasive inaccuracies and misrepresentations present here.
       We nevertheless decline to award attorney fees sua sponte as a sanction in this case. An
award of attorney fees on appeal is discretionary. See Wilson v. Wilson,
174 Idaho 979
, 993, 560
13
P.3d 1126
, 1140 (2024). Ordinarily, such an award depends on a request from the prevailing party
identifying a legal basis for the award. Contrast York v. Kemper Nw., Inc.,
177 Idaho 1
, ___,
584
P.3d 1
, 14 (2026) (declining to award attorney fees where the prevailing party failed to “timely
cite to a code section or contract provision that forms the basis of the request for attorney fees”),
with Idaho State Bar v. Smith,
170 Idaho 534
, 556,
513 P.3d 1154, 1176
(2022) (awarding attorney
fees sua sponte as a sanction for a frivolous appeal). Posey requested no attorney fees in his briefing
or at oral argument. Although that omission does not limit our authority to impose a monetary
sanction, we decline to exercise that authority here.
       We have dismissed nine of Bushnell’s issues on appeal because of deficiencies in her
briefing. Although those dismissals are not sanctions under Idaho Appellate Rule 11.2, they
represent substantial consequences flowing directly from Bushnell’s failure to comply with the
requirements of appellate briefing. Finally, Bushnell is already subject to a judgment of
$1,176,000, plus post-judgment interest. Under these circumstances, we conclude that an
additional monetary sanction is unnecessary. Our decision should not be understood as minimizing
the seriousness of Bushnell’s conduct. As noted above, her briefing reflects a pervasive failure to
verify the accuracy of the factual and legal representations made to this Court and falls well below
the standard of candor and reasonable inquiry required of every litigant who invokes our appellate
jurisdiction. Thus, while Bushnell’s conduct could warrant sanctions under Rule 11.2, we exercise
our discretion to impose no sanction in this appeal.
B.     Any alleged error in the district court’s determination that Posey was not a limited-
       purpose public figure did not prejudice Bushnell’s substantial rights because the jury
       was instructed that Bushnell had to act with actual malice to award Posey damages.
       We have declined to address virtually every issue raised by Bushnell on appeal except for
one: whether the district court erred by ruling as a matter of law in connection with Bushnell’s
motion for summary judgment, that Posey was not a limited-purpose public figure. Bushnell
contends this ruling lead to a lowering of Posey’s burden of proof and materially altered the jury
instructions. We disagree. Even if we were to conclude the district court erred when it ruled that
Posey was not a limited-purpose public figure, the district court instructed the jury that, to award
punitive damages, it must find Bushnell acted with actual malice. The district court further
instructed the jury that actual malice existed if Bushnell “knew the defamatory information was
false, or acted with a reckless disregard for its truth . . . .” The jury unambiguously found on the
special verdict form that Bushnell knew the communicated information was false or that she acted


                                                  14
with reckless disregard for its truth. In other words, even if we assumed the district court’s ruling
was wrong, any alleged error was harmless because the jury determined by clear and convincing
evidence that Bushnell acted with actual malice, which would mean that Posey is entitled to
recover compensatory damages.
       “To prevail on a defamation claim in Idaho, a plaintiff must prove that 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.” Verity,
164 Idaho at 841
,
436
P.3d at 662
(citing Clark v. Spokesman-Review,
144 Idaho 427, 430
,
163 P.3d 216, 219
(2007)).
However, a private individual who voluntarily injects himself or herself into a particular public
controversy may become a “limited-purpose public figure” and, as a result, must prove actual
malice to recover for defamatory statements related to that controversy. See Gertz v. Robert Welch,
Inc.,
418 U.S. 323
, 351–52 (1974) (recognizing that a person may become a “public figure for a
limited range of issues” by voluntarily injecting himself or herself into a “particular public
controversy”). In this context, “actual malice” does not refer to ill will, spite, or hostility toward
the plaintiff. Rather, it requires proof that the defendant knew the defamatory statement was false
or acted with reckless disregard for whether it was false.
Id.
at 327–28.
       Bushnell contends that, because Posey was a limited-purpose public figure, he was required
to prove actual malice to prevail on his defamation claim. She provides three pieces of evidence
that Posey was a limited-purpose public figure:
       1) Posey’s conduct at a public park performing in front of many people, including
       minors, were [sic] at the center of a public controversy that garnered profound
       media attention, 2) By making public accusations, engaging with multiple
       community members, and allowing his claims to be discussed in public forums,
       Posey voluntarily participated in - and helped shape - the public discourse
       surrounding the events, and 3) Posey’s interactions with the press and willingness
       to make statements for public consumption indicate a purposeful engagement with
       public attention.
She therefore argues that, because the district court erroneously found that Posey was not a limited-
purpose public figure, the jury was improperly instructed and that the error prejudiced her defense.
Posey counters that Bushnell has failed to show that he was a limited-purpose public figure. He
also asserts that any error by the district court was harmless on this issue.
       Even assuming Posey was a limited-purpose public figure and therefore required to prove
that Bushnell acted with actual malice, any error was harmless. The district court instructed the
jury that it could award punitive damages only if Posey proved that Bushnell acted with actual

                                                  15
malice. Thus, although the actual-malice instruction was given for a different reason, the jury
necessarily found that Bushnell acted with actual malice when it awarded punitive damages.
       The district court instructed the jury:
              In this case the law requires that the plaintiff shall not be entitled to recover
       punitive damages unless the defendant acted with actual malice in the
       communication of the defamatory information.
               Therefore, you are instructed that in order to recover punitive damages, the
       plaintiff must prove all of the elements of defamation claimed and must prove by
       clear and convincing evidence that the defendant communicated the defamatory
       information with actual malice.
             Actual malice exists when the defendant knew the defamatory information
       was false or acted with reckless disregard for its truth at the time of the
       communication of the information to another.
       Moreover, the jury’s special verdict form showed that Posey did, in fact, prove that
Bushnell knew the defamatory statements were false or acted with reckless disregard for their
truth. Question number three on the jury verdict form asked:




       As shown in the image of the verdict form above, the jury answered “yes” to this question.
This means that the jury believed, based on clear and convincing evidence, that Bushnell either
“knew that the communicated information was false, or acted with reckless disregard for the
truth . . . .” Because this is the very definition of actual malice, we conclude that the jury found
that Posey had proved that Bushnell acted with “actual malice.” Consequently, Posey would have
been able to recover compensatory damages even if the district court had ruled that he was a
limited-purpose public figure; thus, any potential error in the district court’s summary judgment
ruling is harmless because it did not prejudice Bushnell’s substantial rights. See I.R.C.P. 61 (“At



                                                 16
every stage of the proceeding, the court must disregard all errors and defects that do not affect any
party’s substantial rights.”). Thus, Bushnell’s claim of error is without merit.
                                       V.      CONCLUSION
       As set forth above, we affirm the district court’s judgment in full. We also conclude that
Posey has prevailed on every issue raised on appeal. Accordingly, he is awarded costs as a matter
of course. I.A.R. 40(a).


Justices BRODY, MOELLER, ZAHN, and MONSON, J. Pro Tem, CONCUR.




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