Opinion
NO. 2013-CA-000343-MR
06-27-2014
WILLIAM B. GIBSON APPELLANT v. DELMAINE DICKERSON APPELLEE
BRIEF FOR APPELLANT: Ned Pillersdorf Prestonsburg, Kentucky BRIEF FOR APPELLEE: Nicole H. Pang Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ELLIOTT CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 08-CI-00026
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: William Gibson appeals the order of the Elliott Circuit Court which granted summary judgment to Delmaine Dickerson. After our review, we affirm.
The events underlying this case began with a land condemnation case in 2001. Gibson was awarded $25,000 in exchange for a taking of a portion of his property by the Kentucky Transportation Department. However, the land was encumbered by several liens. On March 12, 2002, the court entered an order for payment to the Defendants pending determination of which liens were valid. It allowed thirty days for exceptions to be filed.
Dickerson was the Circuit Court Clerk. He admits that he incorrectly read the order of the court as referring to Defendant in the singular. Therefore, on April 13, 2002, he issued a check for $25,000 to Gibson. The mistake was not brought to the attention of Dickerson until October 2002. At that time, Dickerson asked Gibson to return the money so that it could be distributed among Gibson and his creditors. However, Gibson refused to return the money.
Dickerson continued to ask Gibson to return the money, and Gibson continued to refuse. After several months of requesting the return of the money, Dickerson consulted with the Elliott County Attorney. On April 14, 2003, Gibson was indicted for theft by unlawful taking.
In the separate civil action, Gibson was found guilty of contempt for his failure to return the money. Instead of returning the funds, Gibson chose to serve 179 days in jail. Eventually, his property was sold in order to pay his creditors, and his criminal charge was dismissed.
On March 24, 2008, Gibson filed a complaint alleging that Dickerson had committed the torts of malicious prosecution and abuse of process when he sought the criminal indictment. The claim for malicious prosecution was dismissed by an order granting summary judgment on September 17, 2010. The abuse-of-process action survived until the court granted Dickerson summary judgment on February 4, 2013. The subject of this appeal is solely the claim for the abuse of process.
Summary judgment is a device utilized by the courts to expedite litigation. Ross v. Powell, 206 S.W.3d 327, 330 (Ky. 2006). It is a "delicate matter" because it "takes the case away from the trier of fact before the evidence is actually heard." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). The movant must prove that no genuine issue of material fact exists, and he "should not succeed unless his right to judgment is shown with such clarity that there is no room left for controversy." Id.
The trial court must view the evidence in favor of the non-moving party. City of Florence v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). In order to overcome a motion for summary judgment, the non-moving party must present "at least some affirmative evidence showing the existence of a genuine issue of material fact." Id. See also Kentucky Rule[s] of Civil Procedure (CR) 56.03. On appeal, our standard of review 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). Because summary judgments do not involve fact finding, our review is de novo. Pinkston v. Audubon Area Community Services, Inc., 210 S. W.2d 188, 189 (Ky. App. 2006).
"Abuse of process" is defined as "the irregular or wrongful employment of a judicial proceeding." Bonnie Braes Farms, Inc. v. Robinson, 598 S.W.2d 765, 766 (Ky. App. 1980). The elements are "(1) an ulterior purpose and (2) a wilful [sic] act in the use of the process not proper in the regular conduct of the proceeding." Id.
Gibson's first argument is that the trial court erred by not reserving for a jury the determination of the element of ulterior motive. However, we agree with the trial court that Gibson has not provided evidence (beyond his own subjective conviction) of Dickerson's motive in initiating a criminal action. Instead, he offers mere speculation of Dickerson's desire to cover up his mistake or to affect the civil proceedings. The trial court relied on the only proffered evidence; i.e., the transcript of Dickerson's testimony to the grand jury. In his testimony, Dickerson freely admitted that he had made a mistake when he issued the check to Gibson. Furthermore, there is no evidence that Dickerson had any involvement or interest in the subsequent civil proceedings. Without evidence to the contrary, the trial court ruled correctly.
Gibson also argues that seeking a criminal indictment was not a legitimate use of the criminal process. We again refer to the well reasoned order of the trial court. It noted that the parties do not dispute that Dickerson erroneously distributed the condemnation proceeds to Gibson. They also do not dispute that Dickerson repeatedly asked Gibson to return the money and that Gibson refused.
Kentucky Revised Statute[s] (KRS) 514.050(1) sets forth that a person commits the crime of theft by mistake when:
(a) He comes into control of the property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient; andGibson does not dispute that he came into control of the money due to a mistake. Neither does he allege that he took any measures to restore it to the clerk's office. Instead, he offers a defense of being "a stubborn elderly man" who did not have legal representation. He does not provide legal authority for the alleged exculpatory nature of that line of reasoning.
(b) With intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.
Dickerson was authorized to seek the return of the money in a criminal proceeding. As Gibson and the trial court noted, the Kentucky Circuit Clerks' Accounting Manual instructs circuit clerks to contact law enforcement immediately upon notice of theft. Gibson argues that Dickerson's delay in seeking the indictment was evidence that he was acting beyond the scope of his authorized duties. However, Dickerson gave Gibson many opportunities to return the money before resorting to the criminal process. Dickerson's latitude in giving Gibson leeway to comply with the court order cannot be construed as grounds for legal action against Dickerson.
Gibson has not provided evidence which satisfy the elements of abuse of process. Thus, the trial court did not err by granting summary judgment. Since his remaining arguments are moot, we will not address them.
We affirm the order of the Elliott Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Ned Pillersdorf
Prestonsburg, Kentucky
BRIEF FOR APPELLEE: Nicole H. Pang
Frankfort, Kentucky