Opinion
CIVIL ACTION No. 01-2048-KHV
May 9, 2003.
MEMORANDUM AND ORDER
Gerald J. Crutcher seeks damages for state law claims of false arrest, malicious prosecution and abuse of process. Defendant, Kimberly Coleman, asserts state law counterclaims of malicious prosecution, abuse of process and outrageous conduct. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. #69) filed January 30, 2003. Also before the Court are Plaintiff's Motion For Summary Judgment Regarding Defendant's Counterclaims (Doc. #70) and plaintiff's Motion To Dismiss Counterclaims (Doc. #72), both filed January 31, 2003. For reasons set forth below, the Court finds that defendant's motion for summary judgment should be sustained in part, that plaintiff's motion to dismiss Coleman's counterclaims should be sustained, and that plaintiff's motion for summary judgment should be overruled as moot.
I. Plaintiff's Motion To Dismiss Counterclaims
A. Legal Standards
A 12(b)(6) motion should not be granted unless it is beyond doubt that the counter-claimant can prove no set of facts in support of her claim which would entitle her to relief, see GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The Court accepts all well-pleaded factual allegations as true, Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 870 (10th Cir. 1992), and makes all reasonable inferences from those facts in the light most favorable to counter-claimant. See Witt v. Roadway Express, 136 F.3d 1424, 1448 (10th Cir. 1998).
The issue in reviewing the sufficiency of the counterclaims is not whether counter-claimant will prevail, but whether counter-claimant is entitled to offer evidence to support her claims. Although a counter-claimant need not precisely state each element of her claims, she must plead minimal factual allegations on those material elements that must be proved. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
B. Analysis
Coleman asserts state law counterclaims of malicious prosecution, abuse of process and outrageous conduct based on Crutcher's conduct in bringing this lawsuit. Her malicious prosecution claim alleges that Crutcher brought this lawsuit without probable cause and with malice. Coleman's claim for abuse of process alleges that Crutcher improperly used this litigation to harass and punish her. Finally, her outrage claim alleges that Crutcher acted improperly in pursuing this litigation. Crutcher contends that the counterclaims should be dismissed because they each require Coleman to prove that his claims in this suit are invalid. Coleman has not opposed Crutcher's motion to dismiss. Pursuant to D. Kan. Rule 7.4, if a respondent fails to file a timely response, "the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice."
To set forth a claim for civil malicious prosecution, Coleman must plead and prove that the proceeding terminated in her favor. Nelson v. Miller, 227 Kan. 271, 276, 607 P.2d 438, 443 (1980). Coleman's counterclaim does not (and could not) assert that this proceeding terminated in her favor. Crutcher is entitled to dismissal of the malicious prosecution claim.
In order to state a claim for abuse of process Coleman must allege that (1) Crutcher made an illegal, improper, perverted use of the process (a use neither warranted nor authorized by the process), (2) Crutcher had an ulterior motive or purpose in exercising such illegal, perverted, or improper use of the process, and (3) she suffered damages from the irregularity. See Vanover v. Cook, 260 F.3d 1182, 1191 (10th Cir. 2001). The counterclaim specifically alleges that Crutcher's abuse of process was "the improper use and application of a deposition subpoena" which he served on their daughter. Coleman does not plead any facts to allege how the subpoena to their daughter, who was a material witness in the underlying criminal prosecution, constituted abuse of process. The law imposes no liability for abuse of process if a defendant has done nothing more than carry out the process to its logical conclusion, "even though with bad intentions." Tappan v. Ager, 599 F.2d 376, 379 (10th Cir. 1979). Coleman has failed to set forth minimal facts required to state a claim for abuse of process.
Crutcher also asserts that Coleman has failed to allege facts which set forth a claim for outrageous conduct. To state a claim for the tort of outrage, a litigant must allege (1) that defendant's conduct was intentional or in reckless disregard of plaintiff; (2) that the conduct was extreme and outrageous; (3) a causal connection between defendant's conduct and plaintiff's mental distress; and (4) that plaintiff's mental distress was extreme and severe. Smith v. Welch, 265 Kan. 868, 876, 967 P.2d 727, 733 (1998). To support the tort of outrage, conduct must be so outrageous in character and so extreme in degree as to go beyond the bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 805, 897 P.2d 123, 131 (1995). To state a claim for the tort of outrage, plaintiff must also allege a physical manifestation of extreme mental distress. Id. at 806, 897 P.2d at 131. Coleman's counterclaim alleges that defendant is liable for her emotional distress "and, if bodily harm to counterclaim plaintiff results from it, for such bodily harm." She alleges no facts concerning her alleged emotional distress and no fact of physical harm. Coleman has not set forth a claim for the tort of outrage.
Crutcher's unopposed motion to dismiss is therefore sustained. Coleman has not stated a claim on any of her three counterclaims.
II. Defendant's Motion For Summary Judgment
A. Legal Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The non-moving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
B. Facts
The following facts are set forth in the light most favorable to plaintiff. Plaintiff Gerald Crutcher and defendant Kimberly Coleman married and had two children, a boy and a girl. They separated in 1991, and later divorced. In the summer of 1992, Coleman took their five-year-old daughter to a physician to be examined for sexual abuse. He found none. On November 2, 1992, Coleman called police and told them that Crutcher was molesting their daughter. When detective Ron Copeland interviewed the daughter, she said that Crutcher had touched her vaginal area with his hands. Copeland specifically asked the daughter if Crutcher had used any other part of his body, and she said that he had not. Copeland reported this information to the Johnson County District Attorney's Office. At the District Attorney's suggestion, Coleman took her daughter to the University of Kansas Medical Center for a second examination for sexual abuse. At that examination, Coleman reported that no one had previously examined the daughter for sexual abuse.
Subject to internal review and approval in the District Attorney's office, Melinda Whitman, Assistant Johnson County District Attorney, decided to prosecute Crutcher on two counts of aggravated incest. In doing so, she relied on the investigation by the Shawnee Police Department, and she independently interviewed Coleman and the daughter — but not Crutcher. Whitman obtained no information which caused her to believe that Coleman's information was untruthful, that Coleman was not acting in good faith, or that Coleman was not presenting all information to the best of her ability. Coleman, however, had not told Whitman about innocent reasons why Crutcher might have touched their daughter in the genital-rectal area, e.g., administering prescribed suppositories and cleaning her after bed-wetting incidents.
On January 8, 1993, Crutcher appeared in the District Court of Johnson County, Kansas ("the district court") for a preliminary hearing. At the hearing, the daughter testified that Crutcher touched her "privates" with "[h]is hands, his lips, his private, too." Before she testified at the preliminary hearing, the daughter had talked with Coleman about sexual abuse "quite a bit." Ten years later, at a deposition on January 14, 2003, the daughter testified that she did not recall any incidents other than Crutcher touching her vaginal area with his hands.
After the preliminary hearing, the district court found probable cause and bound Crutcher over for trial. On January 27, 1994, a jury convicted Crutcher on both counts of aggravated incest. On June 2, 1994, the district court sentenced Crutcher to two consecutive prison terms of 49 months each. Whitman has no information which leads her to believe that his conviction was based on perjury, fraud or corruption.
In November 1992, when Coleman first complained to police of sexual abuse, she was angry with Crutcher and had threatened to withhold visitation. She had also harassed Crutcher for an extended period of time. In a motion to modify the divorce decree, Coleman had alleged that Crutcher bent the children's fingers until they were almost broken and punished them by putting their hands in hot water and beating them with a belt. Coleman had also asked the district court to hold Crutcher in contempt for non-payment of child support even though she had signed an effective waiver of child support. Coleman never saw any physical evidence that Crutcher had injured the children, and no medical or law enforcement personnel ever examined the children for any of the injuries which he had allegedly caused.
On August 13, 1999, the Kansas Court of Appeals reversed Crutcher's conviction because the district court had not given a required unanimity instruction. See Crutcher v. State, 27 Kan. App. 2d 674, 676, 8 P.3d 1, 2 (1999). The Kansas Court of Appeals remanded the case for a new trial. In an order dated January 27, 2000 the district court sustained the State's motion to dismiss the case without prejudice. On September 1, 2000, Crutcher filed a motion for order of dismissal with prejudice. The district court sustained his unopposed motion on October 10, 2000.
On January 29, 2001, plaintiff filed this action. On September 19, 2002, he filed an amended complaint asserting claims of false arrest, malicious prosecution and abuse of process.
C. Analysis
1. Immunity From Suit (All Counts)
Crutcher's claims of false arrest, malicious prosecution and abuse of process are all based on the premise that Coleman orchestrated their daughter's allegations of sexual abuse, and then pursued a conviction against him on charges of sexual abuse. Coleman asserts that she is entitled to immunity from all claims under K.S.A. § 38-1526, which provides as follows:
Anyone participating without malice in the making of an oral or written report to a law enforcement agency or the department of social and rehabilitation services relating to injury inflicted upon a child under 18 years of age as a result of physical, mental or emotional abuse or neglect or sexual abuse or in any follow-up activity to or investigation of the report shall have immunity from any civil liability that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceedings resulting from the report.
K.S.A. § 38-1526. In support of her argument Coleman cites Kennedy v. Kan. Dep't of Soc. Rehab. Servs., 26 Kan. App. 2d 98, 981 P.2d 266 (1999), in which the Kansas Court of Appeals upheld the grant of summary judgment in favor of defendants on plaintiff's claims of negligence, false arrest and malicious prosecution. In that regard, the Court of Appeals held that defendants were entitled to immunity because plaintiff had not produced direct evidence of malice or circumstantial evidence that defendants had reason to act maliciously toward plaintiff. See 26 Kan. App. 2d at 103, 981 P.2d at 169 (citing K.S.A. § 38-1526) (plaintiff offered no evidence of malice beyond fact that SRS investigated, confirmed abuse and recommended criminal charges).
Relying on Kennedy, Coleman asserts that she is entitled to immunity under Section 38-1526 because Crutcher has produced no direct evidence of malice. Crutcher points out, however, that circumstantial evidence of malice can defeat immunity under Section 38-1526. He cites evidence that when Coleman reported suspected sexual abuse to police, she was angry with Crutcher, had harassed him and threatened to withhold visitation. Further, Coleman did not inform authorities of innocent reasons why Crutcher might have touched his daughter in the genital-rectal area. These facts constitute circumstantial evidence that Coleman acted with malice in encouraging and promoting Crutcher's arrest and prosecution on fabricated charges. Coleman is not entitled to summary judgment on the basis of immunity under K.S.A. § 38-1526.
2. False Arrest (Count I)
Crutcher asserts that Coleman instigated or encouraged his arrest for aggravated incest without probable cause. Coleman asserts that she is entitled to summary judgment on Crutcher's false arrest claim because the record contains no evidence that authorities lacked probable cause for the arrest. Kansas law defines both "false arrest" and "false imprisonment" as "any unlawful physical restraint by one of another's liberty, whether in prison or elsewhere." Arceo v. Junction City, No. 00-1320-JTM, 2002 WL 73458 at *22 (D.Kan. Jan. 17, 2002) (quoting Gariety v. Fleming, 121 Kan. 42, 45, 245 P. 105, 105 (1926)). In an action for false arrest or false imprisonment, all that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or acts which the one being restrained fears to disregard. Thompson v. Gen. Fin. Co., 205 Kan. 76, 88, 468 P.2d 269, 280 (1970). If a warrant is based on false information, the resulting arrest may be without legal excuse. Id.
Coleman asserts that because a jury convicted Crutcher on two counts of aggravated incest, the Court cannot conclude that authorities arrested him without probable cause. A conviction — even one which is later reversed — creates a rebuttable presumption of probable cause which plaintiff may overcome by showing that defendant procured the conviction by fraud, undue means or false testimony. See Ross v. Hixon, 46 Kan. 550, 554 (1891); see also Vaughan v. Hornaman, 195 Kan. 291, 300, 403 P.2d 948, 956 (1965). Crutcher points out that the Kansas Court of Appeals overturned his conviction, and asserts that (1) Coleman did not give investigators information about innocent explanations for his behavior; and (2) the daughter first reported that Crutcher only touched her with his hands, but then testified to other acts of sexual abuse, thus suggesting that Coleman improperly influenced her testimony.
Such evidence might support an inference that Coleman improperly influenced her daughter's testimony, but the daughter's statements may have varied for other reasons, and on this record, a reasonable jury could not find by a preponderance of the evidence that Crutcher's conviction was based on perjury, fraud or corruption. In response to Coleman's statement of facts and in his own statement of facts, Crutcher has not set forth any testimony from the criminal trial. Although Crutcher argues that Coleman falsely reported facts and engaged in fraud and inaccurate reporting of information, his response to Coleman's summary judgment motion does not point to any specific facts which show false reports, fraud, perjury or corruption. In short, Crutcher has not produced evidence of perjury, fraud or corruption which is sufficient to rebut the presumption of probable cause.
3. Malicious Prosecution (Count II)
Crutcher asserts that Coleman subjected him to malicious prosecution him when she orchestrated their daughter's allegations of sexual abuse and then actively encouraged his prosecution for aggravated incest. Coleman asserts that she is entitled to summary judgment on this claim because Crutcher has not produced evidence necessary to establish the elements of his claim. To maintain an action for malicious prosecution, plaintiff must prove that (1) defendant instituted the proceedings, (2) defendant acted without probable cause, (3) defendant acted with malice, (4) the proceedings terminated in favor of plaintiff and (5) plaintiff sustained damages. Arceo v. City of Junction City, Kan., 182 F. Supp.2d 1062, 1087 (D.Kan. 2002); Stohr v. Donahue, 215 Kan. 528, 530, 527 P.2d 983, 985 (1974). Coleman specifically asserts that Crutcher cannot show that she initiated the proceedings, that she acted with malice and without probable cause, or that the proceedings terminated in Crutcher's favor. As set forth above, Crutcher has not demonstrated a genuine issue of material fact whether the criminal proceedings were based upon probable cause. Therefore, Coleman is entitled to summary judgment on Crutcher's malicious prosecution claim.
4. Abuse of Process (Count III)
Crutcher asserts that Coleman improperly used process in the criminal prosecution to harass him and cause him hardship. Coleman asserts that she is entitled to judgment on the pleadings because Crutcher has not stated a claim for abuse of process. The gravamen of the tort of abuse of process is not the wrongfulness of the ensuing criminal prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends. Heck v. Humphrey, 512 U.S. 477, 486 n. 5 (1994). The gist of the tort is the misuse or misapplication of process, justified in itself, for an end other than that which it was designed to accomplish. Tappen v. Ager, 599 F.2d 376, 380 (10th Cir. 1979). To state a claim for abuse of process, Crutcher must allege that he suffered damages because (1) Coleman made an illegal, improper, perverted use of the process (a use neither warranted nor authorized by the process), and (2) Coleman had an ulterior motive or purpose in doing so. See Vanover v. Cook, 260 F.3d 1182, 1191 (10th Cir. 2001) (citing Porter v. Stormont-Vail Hosp., 228 Kan. 641, 646, 621 P.2d 411, 416 (1980) (citations and quotations omitted)).
Coleman asserts that plaintiff alleges only that she improperly used the Court's process to bring a criminal case against him. She points out that the State of Kansas brought the criminal case, and that plaintiff has not alleged what process she improperly used in the criminal proceeding. Mere initiation of proceedings, with or without justification, does not constitute abuse of process. Stegall v. Great Am. Ins. Co., 996 F. Supp. 1060, 1070 (D.Kan. 1998) (citing Tappen, 599 F.2d at 380) (if defendant used judicial process for proper purpose, even with malice, no abuse of process)). This Court has found, however, that "a false police report filed for the improper purpose of causing an innocent person to be prosecuted for a crime [he or] she did not commit" constitutes use of process, and that filing a false police report and testifying falsely at a criminal trial are improper acts in the use of process. McGlory v. Bohlender, No. 93-2706-EEO, 1994 WL 326022 (D.Kan. June 15, 1994). In the pretrial order, plaintiff alleges that Coleman used judicial processes to obtain a conviction for crimes that he did not commit, that she orchestrated the case against him and that she encouraged her daughter to fabricate accounts of her time with Crutcher. See Pretrial Order (Doc. #77) at 4, 7. Liberally construing the pretrial order, Crutcher has set forth a claim for abuse of process. The Court therefore overrules Coleman's motion for judgment on the pleadings on the abuse of process claim.
IT IS THEREFORE ORDERED that Defendant's Motion For Summary Judgment (Doc. #69) filed January 30, 2003 be and hereby is SUSTAINED as to plaintiff's claims for false arrest and malicious prosecution and OVERRULED as to plaintiff's claim for abuse of process.
IT IS FURTHER ORDERED that plaintiff's Motion To Dismiss Counterclaims (Doc. #72) filed January 31, 2003 be and hereby is SUSTAINED. The counterclaims are dismissed.
IT IS FURTHER ORDERED that Plaintiff's Motion For Summary Judgment Regarding Defendant's Counterclaims (Doc. #70) be and hereby is OVERRULED as moot. Plaintiff's claim for abuse of process remains for trial.