Opinion
NO. 2017-CA-000295-MR NO. 2017-CA-001668-MR
05-08-2020
JASON LEE STANFORD APPELLANT/CROSS-APPELLEE v. ROBERT SALING APPELLEE/CROSS-APPELLANT
BRIEFS AND ORAL ARGUMENT FOR APPELLANT/CROSS-APPELLEE: John Davis Cox Louisville, Kentucky BRIEFS AND ORAL ARGUMENT FOR APPELLEE/CROSS-APPELLANT: Thomas R. Coffey Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 15-CI-002599 OPINION AND ORDER
DISMISSING APPEAL NO. 2017-CA-000295-MR AND AFFIRMING APPEAL NO. 2017-CA-001668-MR
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES. ACREE, JUDGE: Robert Saling sued Jason Stanford in Jefferson Circuit Court for malicious prosecution, abuse of process, and defamation after the Commonwealth dismissed the criminal action Stanford initiated against Saling. Stanford counterclaimed for assault and other torts. He later moved for summary judgment as to Saling's abuse of process and malicious prosecution claims on various grounds including that his initiation of a criminal action was absolutely privileged as a judicial statement.
On February 2, 2017, the circuit court granted summary judgment as to Saling's abuse of process claim because it was filed outside the limitations period. However, the circuit court rejected Stanford's assertion of the judicial statements privilege and denied summary judgment as to the malicious prosecution claim. Citing Halle v. Banner Industries of N.E., Inc., 453 S.W.3d 179 (Ky. App. 2014), the circuit court stated, "[T]he judicial statements privilege is only applicable to communications and has no application where it is alleged that the conduct of the tortfeasor serves as the basis for the claim." (Record (R.) at 614 (citing Halle, 453 S.W.3d at 189 ("non-communicative conduct not protected by the privilege in any tort action"))). The court then found "that it is possible for [Saling] to prevail on his malicious prosecution claim at trial" and denied Stanford's summary judgment motion as to that claim. (R. at 614).
The summary judgment did not include finality language and remained interlocutory. Nevertheless, Stanford filed a notice of appeal.
Because Stanford's appeal was interlocutory on its face, this Court ordered Stanford to show cause why his appeal should not be dismissed. Citing Morgan & Pottinger, Attorneys, P.S.C. v. Botts, Stanford argued that, because he had "raised claims of absolute immunity . . . , the order [i.e., the summary judgment denying Stanford's invocation of the judicial statements privilege] is appealable, though interlocutory." 348 S.W.3d 599, 601 (Ky. 2011), overruled by Maggard v. Kinney, 576 S.W.3d 559 (Ky. 2019). Compelled to follow Botts, this Court allowed Stanford's appeal to proceed.
The circuit court record was certified in Stanford's appeal about eight months after the summary judgment. Only then did Saling file a notice of cross-appeal. This Court entered an order in that appeal for Saling to show cause why his untimely cross-appeal should not be dismissed. Cause was not shown, and the appeal was dismissed. Saling v. Stanford, No. 2017-CA-001400-MR.
Saling returned to the circuit court and moved to amend the summary judgment to recite that there was no just reason to delay entry of a final judgment as to the abuse of process claim, and to declare the judgment final and appealable. CR 54.02(1). After that motion was granted, the circuit court entered a new summary judgment that included finality language. Stanford filed a timely notice of appeal from that amended, now final and appealable, summary judgment.
Kentucky Rules of Civil Procedure.
Thereafter, the two appeals were consolidated. Because the appeals present unrelated issues, we address them separately.
Stanford v . Saling, Appeal No. 2017-CA-000295-MR
In a somewhat cursory way, the Supreme Court said in Botts that when a party "raise[s] claims of absolute immunity as the basis for their motions, the order is appealable, though interlocutory." 348 S.W.3d at 601. In Botts, the Supreme Court equated the judicial statements privilege and the claim of absolute immunity found in Breathitt County Board of Education v. Prater, 292 S.W.3d 883, 887 (Ky. 2009), where it had said, "[A]n order denying a substantial claim of absolute immunity is immediately appealable even in the absence of a final judgment." Id. The Supreme Court has since examined the question more closely.
In Maggard v. Kinney, the Supreme Court said, "Botts is overruled . . . to the extent it allows interlocutory appeal of an order disallowing a party's invocation of the judicial statements privilege." 576 S.W.3d at 570. Noting that "Halle . . . correctly distinguished the judicial statements privilege from immunity[,]" id. at 567, the Supreme Court agreed with that Court of Appeals opinion, saying that "for cases involving purely an asserted judicial statements privilege, no immunity is involved." Id. at 568.
What the Supreme Court next said in Maggard is directly applicable to the previous order of this Court allowing Stanford's interlocutory appeal to proceed: "[T]he Court of Appeals erred in this case by equating the judicial statements privilege with immunity and deeming the trial court's order denying use of that privilege appropriate under the collateral order doctrine for interlocutory appellate jurisdiction." Id. at 569. Because this Court's previous order allowing the appeal to proceed was itself an interlocutory order, it can be revisited. And because of Maggard, we must revisit it now.
Maggard is both definitive and clear regarding the non-availability of immediate relief in this Court from a non-final order or judgment of the circuit court ruling on a claim of judicial statements privilege. Stanford's appeal was from an interlocutory order denying his invocation of the judicial statements privilege; this Court has no jurisdiction to hear that appeal and it must be dismissed.
When final disposition of an appeal is made by an "Opinion and Order," as in this case, the party adversely affected may move for reconsideration as provided by CR 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1)(a).
Saling v . Stanford, Appeal No. 2017-CA-001668-MR
Saling claims it was improper for the circuit court to dismiss his abuse of process claim as untimely because the court erred in determining the date the cause of action accrued. We disagree.
An action for abuse of process must be brought within one year of the date on which the cause accrues. KRS 413.140(1)(a). "To answer the question of when the statute of limitations begins to run—or, keeping with the language of KRS 413.140(1), when the cause of action accrued . . . , we turn to the elements of the tort." Dunn v. Felty, 226 S.W.3d 68, 70-71 (Ky. 2007). Our Supreme Court said the tort of abuse of process "is comprised of the following two necessary elements: (1) an ulterior purpose and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding." Garcia v. Whitaker, 400 S.W.3d 270, 276 (Ky. 2013) (citations and internal quotation marks omitted). Those elements existed and Saling could bring that claim as of March 17, 2014, just as he alleged in his complaint.
Kentucky Revised Statutes.
Saling based this cause of action on the following allegations:
(1) on March 17, 2014, Stanford made a false written statement that led to criminal action against him;On these allegations, Stanford successfully argued that Saling's abuse of process claim was time barred, having been brought on May 28, 2015.
(2) Stanford's ulterior purpose was to prevent Saling's attendance at master commissioner's sales;
(3) at Saling's arraignment on May 28, 2014, the district court issued a no-contact order;
(4) at a pre-trial conference in the criminal action on July 25, 2014, the court "specifically ordered that [Saling] shall not attend Jefferson County Commissioner sales during the pendency of the criminal action."
Responding on October 31, 2016 to Stanford's summary judgment motion, Saling alleged the following for the first time:
Mr. Stanford was present at Mr. Saling's district court proceeding on January 12, 2015. . . . Mr. Saling's attorney . . . moved the court to amend Mr. Saling's particular condition of bond that forbade him from attending Jefferson County Commissioners' sales. Mr. Stanford . . . was there to do everything he could to ensure that the condition of bond remained. That is, he was continuing to act to further his abuse of the legal process. . . . [He] approached the prosecutor . . . and said something to him. Subsequently, [the prosecutor] urged the Court to deny changing the conditions of the bond. . . .(R. at 365-66 (italics in original; underlining added; footnote omitted)).
Mr. Saling maintains . . . that Mr. Stanford instituted the criminal action with the ulterior motive to prevent him from attending commissioner's sales . . . [and] that Mr. Stanford continued his actions to further this unlawful design on January 12, 2015.
In Saling's supplement to his sur-reply to his response to the summary judgment motion, he said:
The issue for the Court, as Mr. Saling understands it, is that Mr. Saling's Complaint does not reference the January 12, 2015 underlying criminal hearing where Mr. Stanford intervened to ensure Mr. Saling's specific bond condition of prohibiting him from attending commissioner sales remained.(R. at 555-56). Saling thus believed he needed to correct his pleading.
He moved to amend his original complaint to add this new allegation, and he tendered an amended complaint. He also tendered an order granting leave to file that amended complaint. However, the circuit court never signed that tendered order or any order allowing amendment of the complaint. The allegations regarding the abuse of process claim remained as originally stated.
The parties were heard on the motion for summary judgment and, as to the abuse of process claim, the circuit court entered summary judgment stating:
The statute of limitations on an abuse of process claim is one (1) year after the cause of action accrues. KRS 413.140(1)(a). As such, and while Mr. Stanford may have continued to actively (and even egregiously) participate in the criminal proceedings, the underlying tort was comprised of his single act of filing an allegedly false criminal complaint. This took place in March of 2014. Accordingly, and insofar as Mr. Saling's abuse of process claim was brought on May 28, 2015, that claim is time-barred by the applicable statute of limitations. KRS 413.140.(R. at 585).
Because the circuit court did not allow Saling to amend his complaint, we need not consider whether abuse of process is a continuing tort. For the same reason, we need not consider whether anything Stanford may have done or said on January 12, 2015, constituted a separate count of abuse of process. As we read the Supreme Court's opinion in Garcia v. Whitaker, Stanford's conduct or words on January 12, 2015, may be simple evidence of an ulterior purpose for initiating the criminal process on March 17, 2014. 400 S.W.3d at 277 (issue to be determined is "ulterior purpose in instituting the criminal process" (emphasis added)). Saling filed his claim for abuse of process more than one year after Stanford initiated the criminal process about which Saling filed suit.
We review summary judgments de novo. Caniff v. CSX Transp., Inc., 438 S.W.3d 368, 372 (Ky. 2014). Based on this record, there are no genuine issues of material fact regarding the accrual of Saling's claim for abuse of process and Stanford was entitled to judgment as a matter of law because the claim was filed more than one year after the cause of action accrued. KRS 413.140(1)(a).
For the foregoing reasons, we dismiss Appeal No. 2017-CA-000295-MR as having been taken from an interlocutory judgment. We affirm that portion of the February 2, 2017 order granting summary judgment and dismissing Saling's abuse of process claim as time barred.
ALL CONCUR. DATE : May 8, 2020
/s/_________
JUDGE, COURT OF APPEALS BRIEFS AND ORAL ARGUMENT
FOR APPELLANT/CROSS-
APPELLEE: John Davis Cox
Louisville, Kentucky BRIEFS AND ORAL ARGUMENT
FOR APPELLEE/CROSS-
APPELLANT: Thomas R. Coffey
Louisville, Kentucky