Opinion
NO. 2014-CA-000310-MR
05-01-2015
THOMAS O'CONNOR APPELLANT v. WILLIAM SHIPLEY AND LYNN SHIPLEY APPELLEES
BRIEFS FOR APPELLANT: Gray Caudill Bowling Green, Kentucky BRIEF FOR APPELLEES: Bill V. Seiller Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD BURKMAN, JUDGE
ACTION NO. 12-CI-003550
OPINION
AFFIRMING
BEFORE: COMBS, J. LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: Thomas O'Connor appeals from an Order of the Jefferson Circuit Court granting Summary Judgment in favor of William and Lynn Shipley. O'Connor's action alleged that the Shipleys abused the civil process by improperly and maliciously filing an action against him in 2008. O'Connor now argues that the trial court erred in concluding that the Shipleys had probable cause to file the 2008 lawsuit, and therefore did not abuse the civil process. We find no error, and AFFIRM the Order on appeal.
O'Connor and the Shipleys each owned residential parcels on Rufer Avenue in Jefferson County, Kentucky. In approximately 2005, the Shipleys sought to turn their parcel into a rental fourplex. According to the record, O'Connor was very vocal about his opposition to the fourplex, and repeatedly contacted the office of Inspection, Permits and Licenses ("IPL") to complain. These complaints resulted in a stop-work order and several citations issued to the Shipleys.
In 2006, the Shipleys were cited by the IPL for violation of the Land Development Code. They appealed the citations to the Board of Zoning and Adjustments ("BOZA"), which sustained the IPL's citations. The Shipleys then appealed the BOZA ruling to the Jefferson Circuit Court. This action is referred to in the record as the "2008 lawsuit."
In the 2008 lawsuit, the Shipleys alleged in part that the City of Louisville improperly failed to respond to their Kentucky Open Records Act request in 2006. The suit also alleged that O'Connor improperly contacted their tenants and encouraged them to terminate their leases and sue the Shipleys. The Shipleys ultimately settled their claim against the City of Louisville, and dismissed their action against O'Connor on June 25, 2012.
The following day, O'Connor filed the instant action against the Shipleys and other defendants alleging Abuse of Civil Process, Malicious Prosecution and Harassment. The matter proceeded in Jefferson Circuit Court, whereupon the Shipleys filed a Kentucky Rules of Civil Procedure (CR) 56 Motion seeking Summary Judgment. A hearing on the motion was conducted on July 22, 2013, which resulted in an Order rendered on September 18, 2013, sustaining the motion. Citing Raine v. Drasin, 621 S.W.2d 895 (Ky. 1981), the trial court determined that the elements of Abuse of Civil Process could not be met by O'Connor. Specifically, the court concluded that the Shipleys did not lack the element of probable cause for the institution of their action against O'Connor. O'Connor's Motion to Vacate the Summary Judgment Order was overruled, and this appeal followed.
Currently, malicious prosecution only refers to criminal prosecutions while abuse of civil process concerns civil actions.
The sole issue for our consideration is O'Connor's contention that the Jefferson Circuit Court erred in dismissing his Abuse of Civil Process claim against the Shipleys. As a basis for dismissing O'Connor's action, the trial court determined that the Shipleys had probable cause to institute the 2008 lawsuit against O'Connor; therefore, the action was not abusive or malicious. Specifically, the court found that the Shipleys made a "reasonable assumption" that renter Matthew Grayson's failure to pay rent was brought about by 1) O'Connor's ongoing efforts to thwart the Shipley's usage of their parcel, and 2) O'Connor's alleged statements to Grayson telling him that the Shipleys were going to evict him and he should sue the Shipleys. O'Connor contends that this finding was in error because it is not supported by the record, and that it did not form a proper basis for concluding that the Shipleys' action was not abusive or malicious.
In dismissing the action, the Jefferson Circuit Court relied on the elements of malicious prosecution as set out in Raine, supra. Raine holds that an action for malicious prosecution may be maintained upon showing,
These elements apply to both criminal malicious prosecution and abuse of civil process.
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a) the institution of civil proceedings,Id. at 899. In applying the facts to Raine, the trial court determined that the Shipleys instituted the 2008 lawsuit, and that the suit's dismissal operated as a termination in favor of O'Connor. The court's analysis focused on whether the Shipleys lacked probable cause for the proceedings, and it answered that question in the negative. As a basis for this conclusion, the court determined that Grayson's failure to pay rent coincided chronologically with O'Connor's efforts to thwart the Shipleys' usage of the parcel and O'Connor's alleged threat to Grayson that the Shipleys and/or a local governmental entity were going to evict him. Though testimony evidence was later adduced that Grayson's failure to pay rent did not arise from O'Connor's alleged threats, the court found that at the time the 2008 lawsuit was filed, the Shipleys had a reasonable suspicion to believe that O'Connor's actions caused Grayson to stop paying rent. This conclusion is supported by the record.
b) by the plaintiff,
c) the termination of such proceedings in the defendant's favor,
d) malice in the institution of such proceedings,
e) lack of probable cause for the proceedings, and
f) the suffering of damages as the result of the proceedings.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Id. "Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact." Id. Finally, "[t]he standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
When viewing the record in a light most favorable to O'Connor and resolving all doubts in his favor, we must conclude that the Jefferson Circuit Court correctly found that there were no genuine issues as to any material fact and that the Shipleys were entitled to a judgment as a matter of law. The dispositive inquiry is not merely that the 2008 lawsuit was resolved in O'Connor's favor. Raine, supra. Rather, in order to prevail on a claim of Abuse of Civil Process, and among other elements, O'Connor must demonstrate that the Shipleys did not possess probable cause to institute the action. Id. "One who initiates civil proceedings against another has probable cause for so doing if he reasonably believes in the existence of the facts upon which his claim is based, and . . . reasonably believes that under such facts the claim may be valid at common law or under an existing statute[.]" Smith v. Smith, 296 Ky. 785, 787-8, 178 S.W.2d 613, 614 (1944) (internal citation and quotation marks omitted). The record supports the Jefferson Circuit Court's determination that the Shipleys reasonably believed the existence of facts upon which their claim was based, and that under such facts a valid common law claim could be prosecuted. Thus, an essential element of O'Connor's claim of Abuse of Civil Process could not be met, and Summary Judgment in favor of the Shipleys was warranted. We find no error.
For the foregoing reasons, we AFFIRM the Order of the Jefferson Circuit Court granting Summary Judgment in favor of the Shipleys.
ALL CONCUR. BRIEFS FOR APPELLANT: Gray Caudill
Bowling Green, Kentucky
BRIEF FOR APPELLEES: Bill V. Seiller
Louisville, Kentucky