Opinion
NO. 2015-CA-001264-MR
02-03-2017
JOHN DAVID LEE APPELLANT v. JILL LEEANN STANLEY APPELLEE
BRIEF FOR APPELLANT: Steven D. Yater Louisville, Kentucky BRIEF FOR APPELLEE: Jill Leeann Stanley Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 14-CI-005745 OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND VANMETER, JUDGES. JONES, JUDGE: The Appellant, John David Lee, is appealing an order from the Jefferson Circuit Court dismissing his complaint against the Appellee, Jill Leeann Stanley, for failure to state any claims upon which relief can be granted. For the reasons set forth below, we AFFIRM.
Judge Laurance B. VanMeter concurred in this opinion prior to being elected to the Supreme Court of Kentucky. Release of this opinion was delayed by administrative handling.
I. Background
John David Lee and Jill Leeann Stanley were married in 1991; they divorced in 2009. In 2009, Stanley also sought and received a domestic violence order ("DVO") against Lee. As part of the DVO, Lee was not to have any contact with Stanley. The DVO was extended by court order in February of 2012. Later that year, Lee sent email correspondence to Stanley and their children's court-appointed guardian ad litem. Stanley reported Lee's correspondence with her to law enforcement, and swore out a criminal complaint against him.
Lee was arrested on August 25, 2012, and charged with violating KRS 403.763, a Class A misdemeanor punishable by a possible term of imprisonment for up to one year. The Commonwealth offered Lee a plea deal, but Lee rejected it. He subsequently pleaded not guilty. On November 22, 2012, the charge against Lee was dismissed with prejudice by order of the Jefferson District Court.
Kentucky Revised Statutes.
This section provides:
(1) Violation of the terms or conditions of an order of protection after the person has been served or given notice of the order shall constitute contempt of court and a criminal offense under this section. Once a criminal or contempt proceeding has been initiated, the other shall not be undertaken regardless of the outcome of the original proceeding.
(2) (a) Court proceedings for contempt of court for violation of an order of protection shall be held in the county where the order was issued or filed.
(b) Court proceedings for a criminal violation of an order of protection shall follow the rules of venue applicable to criminal cases generally.
(3) Nothing in this section shall preclude the Commonwealth from prosecuting and convicting the respondent of criminal offenses other than violation of an order of protection.
(4) (a) A person is guilty of a violation of an order of protection when he or she intentionally violates the provisions of an order of protection after the person has been served or given notice of the order.
(b) Violation of an order of protection is a Class A misdemeanor.
On November 6, 2014, Lee filed a civil complaint against Stanley in Jefferson Circuit Court. Lee's complaint alleged that Stanley acted wrongfully when she reported him to the authorities in 2012 in that she intentionally hid the fact that his correspondence to her was related to the parties' dissolution action. Lee's complaint further asserted that Stanley's intent was to use the criminal prosecution to harm Lee. Based on these allegations, Lee sought compensatory and punitive damages against Stanley for malicious prosecution, defamation per se, and abuse of process.
Acting without the assistance of counsel, Stanley filed a two paragraph "response" to Lee's complaint. Therein Stanley "categorically refute[d] all alleged counts brought against her in this fourth and latest lawsuit filed against her by her distraught ex-husband." She further asserted that Lee's most recent action against her should be dismissed as were "[t]he previous three frivolous and unmerited lawsuits." A short time later, Stanley filed a pro se motion to dismiss pursuant to CR 12.02(f). By order entered May 29, 2015, the trial court granted Stanley's motion and dismissed Lee's complaint in its entirety. This appeal followed.
Kentucky Rules of Civil Procedure.
II. Standard of Review
The standard for granting a motion to dismiss pursuant to Kentucky CR 12.02 is well known:
The court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. In making this decision, the circuit court is not required to make any factual determination; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002) (internal quotations and footnotes omitted). A court should not grant a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to CR 12.02 "unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim." Pari-Mutuel Clerks' Union of Kentucky v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). Because we are concerned only with whether the complaint states a cause of action, and not liability, the decision necessarily depends on the allegations made in the complaint. See Smith v. Isaacs, 777 S.W.2d 912, 915 (Ky. 1989). "We review dismissals under CR 12.02(f) de novo, accepting as true the plaintiff's factual allegations and drawing all reasonable inferences in the plaintiff's favor." Carruthers v. Edwards, 395 S.W.3d 488, 491 (Ky. App. 2012).
Additionally, since Stanley's initial response as well as her motion to dismiss were filed pro se, it was appropriate for the trial court to liberally construe them. Taylor v. Commonwealth, 354 S.W.3d 592, 594 (Ky. App. 2011). While Stanley may not have used precise legal terms such as "statute of limitations," it is clear to us that she intended to bring a number of issues, including the staleness of Lee's allegations, to the trial court's attention.
III. Analysis
A. Malicious Prosecution
"The law generally disfavors the tort of malicious prosecution because 'all persons [should] be able to freely resort to the courts for redress of a wrong'." Garcia v. Whitaker, 400 S.W.3d 270, 274 (Ky. 2013) (quoting Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981)). The necessary elements for a claim of malicious prosecution involving a criminal prosecution are: 1) the defendant [Stanley] initiated, continued, or procured the criminal proceeding against the plaintiff [Lee]; 2) the defendant [Stanley] acted without probable cause; 3) the defendant [Stanley] acted with malice (seeking to achieve a purpose other than bringing an offender to justice); 4) the proceeding terminated in favor of the plaintiff [Lee]; and 5) the plaintiff [Lee] suffered damages as a result of the proceeding. See Restatement (Second) of Torts § 653 (1977).
The trial court dismissed Lee's malicious prosecution claim on the basis that Lee could not prevail on the second element, the absence of probable cause, because Lee admitted that he sent Stanley the correspondence at issue. Lee asserts that the trial court erred because it failed to recognize that his communication with Stanley related to their dissolution proceeding.
The statute Lee was charged with violating, KRS 403.763, requires that the criminal defendant have knowledge of a valid order; that the order prohibited the conduct at issue, and that the criminal defendant intentionally violated the provision. The DVO prohibited Stanley from contacting Lee. Lee did so. Perhaps, at a criminal trial Lee could have attacked the mens rea requirement by arguing that he believed he was permitted to contact Stanley within the scope of the dissolution proceeding. This, however, does not mean that Stanley lacked probable cause to swear out the complaint against Lee as there was nothing in either KRS 403.763 or the DVO that should have caused Stanley to believe Lee's communication with her was permissible. Thus, we agree with the trial court.
Additionally, it is apparent from the face of Lee's complaint that his malicious prosecution claim is time barred. A claim for malicious prosecution must be brought within one year of its accrual. See KRS 413.140(1)(c). A claim for malicious prosecution accrues upon "a favorable termination of the criminal proceedings." Dunn v. Felty, 226 S.W.3d 68, 73 (Ky. 2007). Lee alleged in his complaint that the criminal charge against him was dismissed on November 22, 2012. He did not file the complaint at issue until November 6, 2014. Therefore, even if the facts alleged by Lee stated a claim, they were clearly pled too late.
b. Abuse of Process
An abuse of process claim exists where an individual "uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which that process is not designed[.]" Sprint Commc'ns Co., L.P. v. Leggett, 307 S.W.3d 109, 113 (Ky. 2010). "The essential elements of an action for abuse of process are (1) an ulterior purpose and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding." Simpson v. Laytart, 962 S.W.2d 392, 394 (Ky. 1998). "Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process is required and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion even though with bad intentions." Id. at 394-95. A claim for an abuse of process must be brought within one year of when the claim accrues. KRS 413.140(1)(a).
The trial court concluded that Lee could not prevail against Stanley because he failed to allege that Stanley engaged in "some definite act or threat not authorized by the process." We agree. Lee asserted in his complaint that Stanley initiated the criminal complaint against him to gain an advantage in the parties' custody dispute. Stanley's ill-will and bad intention toward Lee, standing alone, are insufficient to establish that Stanley abused the criminal process. Lee did not plead any facts to suggest that Stanley did anything more than file the initial criminal complaint against him and carry out the process "to its authorized conclusion." Lee has offered, for example, no facts that Stanley offered to drop the criminal complaint against him in exchange for some advantage in their custody and divorce proceedings. Lee cannot prevail against Stanley based solely on her alleged bad intentions.
Additionally, it is clear from the face of Lee's complaint that his abuse of process claim is time barred. A claim for abuse of process must be brought with one year of its accrual. See KRS 413.140(1)(a). Stanley made the complaint against Lee in August of 2012. Lee did not file this action until November of 2014. Even if the abuse of process claim was actionable, it would be barred because Lee brought it too late.
c. Defamation
To establish a prima facie case of defamation, a plaintiff must prove defamatory language about the plaintiff which is published and which causes injury to reputation. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004). "[D]efamatory language is 'published' when it is intentionally or negligently communicated to someone other than the party defamed." Id. at 794.
The trial court dismissed Lee's defamation claim as untimely. We agree with its conclusion. The statute of limitations for a defamation claim is one year. See Caslin v. Gen. Elec. Co., 608 S.W.2d 69, 70 (Ky. App. 1980) (citing KRS 413.140 (1)(d)). The statute begins to run from the date of the "publication." See id. Lee's defamation claim against Stanley is based on her August 2012 communication to law enforcement officials. Since he did not file the current action until November of 2014, the defamation claim is time barred.
Additionally, even if the claim was timely, it could not withstand Stanley's motion to dismiss. "A claim of defamation may be defeated by establishing the truth of the matter asserted which is an absolute defense." Smith v. Martin, 331 S.W.3d 637, 640 (Ky. App. 2011). Lee admitted he sent Stanley an email while the DVO was in place. Lee's admission precludes his defamation claim.
Any expression by Stanley that Lee's conduct violated the terms of the DVO would be a matter of pure legal opinion, and therefore, not actionable. See e.g., Cromity v. Meiners, 494 S.W.3d 499, 502 (Ky. App. 2015). --------
IV. Conclusion
For the reasons set forth above, we affirm the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Steven D. Yater
Louisville, Kentucky BRIEF FOR APPELLEE: Jill Leeann Stanley
Louisville, Kentucky