This rule has been applied has most recently in DeMoisey v. Ostermiller, No. 2014-CA-001827-MR, 2016 WL 2609321, at *14 (Ky. App. May 6, 2016) (citing Dunn for the proposition that "[i]t is correct that the statute of limitations does not begin to run on a malicious prosecution claim until the underlying litigation has been concluded."). An action for malicious prosecution ordinarily accrues on, and limitations run from, the date on which the previous unsuccessful civil or criminal proceedings were terminated in the current plaintiff's favor . . . .
Because the acts giving rise to the claim necessarily occurred in January 2021 prior to the institution of criminal process, the claim was not timely asserted and must be dismissed. See also Maqablh v. Heinz, No. 3:16-CV-289-JHM, 2016 WL 7192124, at *8 (W.D. Ky. Dec. 12, 2016); DeMoisey v. Ostermiller, No. 2014-CA-001827-MR, 2016 WL 2609321, at *15 (Ky. Ct. App. May 6, 2016) (unpublished disposition).
Although the Sixth Circuit does not appear to have addressed the date on which an abuse of process claim accrues, Kentucky courts hold in accordance with the "virtually universal" rule that "the cause of action for an abuse of process accrues at the time the conduct complained of by the plaintiff occurred, not at the termination of the underlying litigation." DeMoisey v. Ostermiller, No. 2014-CA-001827-MR, 2016 WL 2609321, at *14 (Ky. Ct. App. May 6, 2016). As stated above, the Complaint does not name any misconduct by any of these three defendants that occurred within the year before Hall filed his claims.
Jernigan argues that the claim is barred by a one-year statute of limitations, as the grand jury referral took place on September 9, 2015, more than a year before the complaint was filed. In support of this argument, she cites to DeMoisey v. Ostermiller, 2016 WL 2609321 (Ky. Ct. App. May 6, 2016). In that case, the Court of Appeals of Kentucky held that (1) abuse of process has a one-year statute of limitations, as it requires an injury to the person or his property, see KRS § 413.140(1)(a) (establishing one year statute of limitations for an action "for an injury to the person of the plaintiff"), and (2) the statute of limitations begins to run "from the termination of the acts which constitute the abuse complained of, and not from the completion of the action in which the process issued."
In Kentucky, "the statute of limitations on an abuse of process claim is one year" and is found in Ky. Rev. Stat. § 413.140(1)(a). DeMoisey v. Ostermiller, No. 2014-CA-001827-MR, 2016 WL 2609321, at *13 (Ky. Ct. App. May 6, 2016). Unlike the tort of malicious prosecution, "the cause of action for an abuse of process claim accrues at the time the conduct complained of by the plaintiff occurred, not at the termination of the underlying litigation."
Id. (quoting Baglini v. Lauletta , 315 N.J.Super. 225, 717 A.2d 449 (1998) ). Importantly, the Kentucky Court of Appeals re-affirmed its ruling in Halle with regards to the judicial statement privilege's inapplicability in abuse of process claims earlier this month in DeMoisey v. Ostermiller , 2016 WL 2609321, at *13 (Ky.Ct.App. May 6, 2016). Though the Defendants urge this Court to follow case law prior to and contrary to Halle , (Docket No. 34–7 at 33-34), the Court must apply controlling Kentucky law and, therefore, the Court finds that Lieutenant Alexander is not shielded by absolute immunity as the judicial statement privilege does not apply to abuse of process claims in Kentucky.
Raine v. Draisin, 621 S.W.2d 895, 902 (Ky. 1981); KRS 413.140(1). However, no Kentucky court had addressed when the claim begins to accrue until the recent unpublished decision in DeMoisey v. Ostermiller, 2016 WL 2609321 (Ky. App. 2016). After considering Kentucky caselaw and decisions of other jurisdictions that had addressed the issue, the Court rejected the argument that abuse of process is a continuing tort and it commences "to run, from the termination of the acts which constitute the abuse complained of, and not from the completion of the action in which the process is issued."
By Opinion rendered on May 6, 2016, this Court affirmed the circuit court's grant of summary judgment on the tortious interference claims. DeMoisey v. Ostermiller , 2016 WL 2609321 (Ky. App. May 6, 2016). We acknowledged that while DeMoisey had sufficiently pled in his complaint both a claim for tortious interference with contractual relations and a claim for tortious interference with prospective contractual relations/business advantage, he nevertheless failed to prove the elements of either tort.
We agree with the trial court that the abuse of process cause of action accrued when the complaint was filed in August 2014. In making its decision, the trial court relied on the unpublished case of DeMoisey v. Ostermiller, No. 2014-CA-001827-MR, 2016 WL 2609321, (Ky. App. May 6, 2016), and we, too, find the reasons in that case persuasive. In DeMoisey, another panel of this Court, as a matter of first impression, determined when the statute of limitations for abuse of process claims begins to run.