Opinion
NO. 2011-CA-000560-MR
10-26-2012
JACQUES J. WIGGINTON APPELLANT v. MIKE SCANLON, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS VICE MAYOR OF THE LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLEE
BRIEFS FOR APPELLANT: James M. Morris Sharon K. Morris Lexington, Kentucky BRIEF FOR APPELLEE: Barbara B. Edelman Grahmn N. Morgan Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS D. CLARK, JUDGE
ACTION NO. 04-CI-00091
OPINION
AFFIRMING
BEFORE: CLAYTON, LAMBERT, AND STUMBO, JUDGES. LAMBERT, JUDGE: This is a second appeal in a defamation action filed by Jacques Wigginton, a former City Council member of the Lexington-Fayette Urban County Government ("LFUCG"), against LFUCG's former Vice Mayor, Mike Scanlon, and others. Wigginton has appealed from the order of the Fayette Circuit Court granting summary judgment in favor of Scanlon. Finding no error in the circuit court's judgment, we affirm.
The notice of appeal listed as appellees Mike Scanlon, both individually and in his official capacity as Vice Mayor of the Lexington-Fayette Urban County Government; Shawn Gillen; and the Lexington-Fayette Urban County Government. A three-judge panel of this Court dismissed Gillen and LFUCG as parties to the appeal on February 8, 2012, because their dismissal from the underlying action had been affirmed in a prior appeal. Wigginton's claims against Scanlon in his official capacity had also been dismissed in the underlying action, and that ruling was likewise affirmed in the prior appeal. Therefore, the only proper appellee in this appeal is Scanlon in his individual capacity.
As a brief introduction to this eight-year-old case, we shall rely on this Court's recitation of the relevant factual and procedural history as set forth in its opinion of Wigginton v. Scanlon, 2007 WL 707566 at *1-2 (2005-CA-002161-MR) (Ky. App. 2007) (Wigginton I):
Scanlon was elected Vice Mayor in November 2002. In December, he met with Gillen for an orientation session, during which Gillen allegedly stated that Wigginton had sexually harassed one of the Council's staff workers and had misused Council travel funds. On or about December 12, 2002, Scanlon repeated Gillen's accusations in a letter to the LFUCG's Ethics Commission. That letter became the subject of a January 8, 2003, Lexington Herald-Leader newspaper article, in which Scanlon disavowed any personal knowledge of Wigginton's alleged wrongdoing, but repeated the letter's assurance that the accusations came from a reliable source. During the next week or two, Scanlon was interviewed by reporters from several local radio and television stations and, according to Wigginton, he repeated both accusations during those interviews. On or about January 21, 2003, Scanlon filed a formal complaint with the Ethics Commission, which included only the travel fund accusation. The record indicates that even before Gillen made the alleged accusations regarding Wigginton to Scanlon, the County Attorney had investigated the alleged harassment, but ceased her investigations when the alleged complainant declined to pursue the matter or to give any information. In
December 2003, the Ethics Commission exonerated Wigginton of any travel fund abuses.
Wigginton filed his suit on January 8, 2004, alleging that Scanlon and Gillen (and through them their employer, LFUCG) had defamed him: Gillen during the December 2002 orientation, when he voiced the harassment and travel fund accusations to Scanlon, and Scanlon each time he repeated those accusations to reporters and to the Ethics Commission. In addition to his defamation claims, Wigginton's original complaint sought damages for tortious interference with advantageous prospects, for the infliction of emotional distress, and for abuse of the Ethics Commission process.
In a June 18, 2004 order, the trial court dismissed Wigginton's claims against LFUCG and against Scanlon and Gillen in their official capacities under the doctrine of sovereign immunity. It dismissed all defamation claims against Scanlon and Gillen individually that were based on alleged defamatory communications prior to January 8, 2003, on the ground that such claims were barred by the one-year statute of limitations. Additionally, the trial court dismissed the tortious interference claim as inadequately pled under CR 12. The trial court left intact Wigginton's abuse of process/wrongful proceeding claims and did not rule on his emotional distress claim. In light of its limitations ruling, finally, the trial court accorded Wigginton an opportunity to amend his complaint to allege more specifically any instances of defamation occurring after January 8, 2003.
Wigginton filed his Amended Complaint on August 2, 2004, in which he conceded that he knew of no defamatory publication by Gillen within the limitations period, and so "voluntarily dismisse[d] the remaining claims against Gillen without prejudice." However, the Amended Complaint referred to Scanlon's January 21, 2003 ethics complaint repeating the allegation that Wigginton had misused travel funds, and alleged that after January 8, Scanlon had appeared "on local television and radio stations, including, but not limited to,
Clear Channel, Cumulus Broadcasting, WTVQ, WLEX, WDKY, and WKYT Television stations, wherein Scanlon repeated the defamatory statements regarding Plaintiff's character, purported sexual impropriety, sexual harassment, unethical, illegal, and improper activities, theft, deception, fraud and other purportedly inappropriate activities."
On August 17, 2004, Scanlon filed a Renewed Motion to Dismiss Wigginton's defamation claim on the ground that by failing to identify the alleged defamatory statements Wigginton's Amended Complaint still failed to allege defamation with adequate specificity. The trial court agreed, and by order entered September 24, 2004, required Wigginton to file a Second Amended Complaint "that specifically identifies (i) all statements made by Scanlon after January 8, 2003 that Wigginton believes supports his claim for defamation; (ii) the approximate date on which those statements were allegedly made; and (iii) the radio program, television show or other event at which Scanlon allegedly made such statements." Wigginton then again amended his complaint, this time specifying the dates or approximate dates of several interviews Scanlon allegedly gave to specified radio and television stations and alleging that in these interviews Scanlon repeated, either verbatim or nearly so, the allegations of harassment and travel fund abuse that he first made in his December letter to the Ethics Commission.
Scanlon answered this Second Amended Complaint on October 4, 2004, and discovery commenced with Scanlon's deposition on October 8, 2004 and the submission of interrogatories. In April 2005, Wigginton moved the court to reconsider its prior decision not to recuse. The parties, meanwhile, engaged in protracted negotiations over the scheduling of Wigginton's deposition, but at last agreed on June 17, 2005 as the deposition date. When that date arrived and Wigginton failed to appear for his deposition, offering as excuse only that a family matter had arisen, Scanlon moved pursuant to CR 41.02 to dismiss Wigginton's remaining claims for lack of prosecution. As noted
above, the trial court granted this motion by order entered August 17, 2005. The court opined that Wigginton's Second Amended Complaint still violated the court's order to identify any allegedly defamatory statements, and found Wigginton's inadequately explained failure to appear at the deposition that had taken so long to schedule a breach of his duty under CR 41.02 to prosecute his claim diligently. Wigginton sought reconsideration of this order and at the same time again moved the trial judge to recuse. When, on September 20, 2005, the court denied both the CR 59 and the recusal motions, Wigginton brought a timely appeal. He filed a second appeal following the trial court's November 29, 2005, order denying his motion to reconsider his request for recusal. His two appeals have been consolidated for our review.
In the opinion, the Court affirmed the trial court's dismissal of Wigginton's claims against LFUCG as well as against Scanlon and Gillen in their official capacities on sovereign immunity grounds. It also affirmed the dismissal of Wigginton's claims against Gillen and Scanlon, individually, based on allegations of defamatory statements that were made prior to January 8, 2003, on statute of limitations grounds, rejecting Wigginton's contention that the discovery rule should be extended to defamation claims. The Court specifically noted that Gillen's allegedly defamatory conduct was published in December 2002. The Court then affirmed the denial of Wigginton's motion to recuse the trial judge. Finally, the Court reversed the dismissal of Wigginton's remaining post-January 8, 2003, claims against Scanlon individually, which had been dismissed for lack of prosecution, and remanded the matter for additional proceedings. The opinion became final on April 30, 2008, following the Supreme Court's denial of a motion for discretionary review.
On remand, the parties litigated whether Scanlon was entitled to know upon which allegedly defamatory statements Wigginton planned to rely. The court ruled that this information was discoverable and provided a deadline for Wigginton to produce written, verbatim statements made by Scanlon upon which the defamation claim was based.
In December 2009, Scanlon moved for summary judgment, arguing that Wigginton's defamation claims failed as a matter of law. Scanlon asserted that these claims were not actionable based upon the statute of limitations, lack of evidence to support a finding that he made the defamatory statements, privilege, and the truth. Scanlon also asserted that the new claim did not relate back because the claims asserted in the second amended complaint arose out of different conduct and occurred on a different date. In addition, Scanlon contended that the abuse of process claim failed because Scanlon did not initiate a judicial proceeding and that his wrongful civil proceedings claims failed because probable cause existed. Wigginton filed a response objecting to the entry of summary judgment in Scanlon's favor and specifically argued that the claims related back to avoid a statute of limitations issue.
On February 22, 2011, the circuit court entered an opinion and order granting Scanlon's motion for summary judgment. The court first set out the factual background:
The court issued a slightly amended opinion and order on March 6, 2011, inserting inadvertently omitted language from one sentence.
The facts that led to this case began in early 2002, before the Defendant became the Vice Mayor of Lexington, KY. In the first half of 2002 the Plaintiff, a council member, made two trips in association with being a council member with the Lexington Fayette Urban County Government (hereinafter LFUCG).Viewing the facts of the record in a light most favorable to Wigginton, as the party opposing the motion for summary judgment, the court granted summary judgment to Scanlon on all of the claims.
The first trip made by the Plaintiff was to San Diego, California. The Plaintiff was advanced $744.30 by the LFUCG. Upon returning from the trip to California the Plaintiff did not submit his receipts and expense report until receiving several communications from the accounting department making him aware that they were overdue. Upon submitting his expense report the Plaintiff sought reimbursement of $207.97. The expense report submitted by the Plaintiff included expenses for a trip to Tijuana "to learn of Hispanic" and a trip to Los Angeles to "visit family." Additionally, the LFUCG was charged $122 by the travel agency to change the Plaintiff's flight so that he could make his trip to Los Angeles to visit family.
The second trip that led to allegations against the Plaintiff was a trip to Washington, D.C. to attend the National League of Cities Convention. The Plaintiff was advanced $1,401.02 for the trip to Washington, D.C. The Plaintiff again failed to provide an expense report for his trip. It was later determined that the Plaintiff owed the LFUCG $210.22 due to his actual expenses being less than the advance he received. After repeated attempts to obtain repayment from the Plaintiff the LFUCG ultimately garnished his wages.
Due to the garnishment of the Plaintiff's pay check, he subsequently lost travel advance privileges.
Nonetheless, within two months the Plaintiff used the LFUCG's business account to book and pay for a flight to Tampa. When the LFUCG learned of this use it immediately denied payment and directed that the Plaintiff be billed directly.
The final set of facts that led to this case revolved around LFUCG employee Shaunee Lynch. Lynch was asked by the Council Administrator to act as the Plaintiff's legislative aide. When asked, Lynch told the Administrator that the Plaintiff had done "something" that "made her uncomfortable." Due to Lynch's statements she was questioned again on a later occasion to get more details. During her first interview, Lynch refused to give details but stated that the Plaintiff's actions were "illegal" and "inappropriate." A second interview of Lynch was later performed and again Lynch refused to give specifics.
After these events the Defendant became the Vice Mayor of Lexington. The Defendant was told of the allegations that existed against the Plaintiff regarding both the travel issues as well as the alleged inappropriate conduct with Lynch. After talking to others in the LFUCG the Defendant wrote a letter to the Ethics Commission asking the Commission to investigate the allegations that had been made by others. These allegations were not the creation of the Defendant, but were allegations that existed prior to his becoming Vice Mayor. The letter to the Ethics Commission was soon discovered by various media outlets and made public.
Upon receiving the letter from the Defendant the Ethics Commission advised him that the appropriate process was to file an affidavit and complaint. In the interim the Defendant learned the Lynch refused to cooperate in any investigation regarding the "inappropriate" actions of which she accused the Plaintiff. Thus, the Defendant filed the complaint, this time repeating only the allegations regarding travel expense abuses.
The Ethics committee found that there was a "minimal factual basis to constitute a violation of the Ethics Act" and scheduled a formal hearing. The Defendant informed the Ethics Commission that he did not wish to act as a prosecutor in the matter and that he believed it was their job to perform an investigation. Nonetheless, the Ethics Commission scheduled an investigatory hearing. The Defendant did not attend the hearing and the Commission found that there was no violation of the Ethics Act.
First addressing the defamation claims, the court held that the new claims Wigginton asserted in his second amended complaint were distinct causes of action and did not relate back to the original complaint. The court ruled that each publication of defamatory language arose from different conduct and made up a separate transaction. Because the statements to the council members and other individuals occurred before September 20, 2003, but were not pled until September 20, 2004, upon the filing of the second amended complaint, the court held those claims were time barred. The court then ruled that the defamation claims were barred by Scanlon's absolute privilege he enjoyed while at official meetings and while acting in the scope of his duties. Finally, the court ruled that the affidavit and complaint filed with the Ethics Commission, statements made to television stations, and statements made to various third parties, were all of the same basic substance (Scanlon was told of allegations about Wigginton) and were true.
Turning to Wigginton's abuse of process claim, the court ruled that the filing of a complaint with the Ethics Commission and testifying at the commission's hearing did not constitute a "judicial proceeding," and, therefore, Wigginton could not establish a prima facie case. Finally, on the claim for wrongful use of civil proceedings, the court ruled probable cause existed to support the filing of the ethics complaint. This appeal follows.
On appeal, Wigginton contends that the circuit court violated the law of the case doctrine by considering the statute of limitations, relation back, and the truthfulness arguments, which he asserts were definitively addressed and decided by the Court of Appeals in Wigginton I in its analysis of the second amended complaint. Wigginton also argues that the circuit court erred in finding Scanlon immune, in evaluating the evidence properly under the summary judgment standard, and in dismissing the remainder of his claims for abuse of process, wrongful use of a civil proceedings, and interference with a prospective advantage. In his brief, Scanlon opposes these arguments and urges this Court to affirm the trial court's summary judgment.
An appellate court's standard of review is well-settled in the Commonwealth:
The standard of review on appeal when a trial court grants a motion for 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." The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment shouldLewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). Wigginton contends in his brief that the circuit court erred in evaluating the evidence in a light most favorable to Scanlon, rather than him, in contravention of Kentucky Rules of Civil Procedure (CR) 56.03. We disagree with Wigginton's assertion and instead agree with Scanlon's statement that the circuit court properly evaluated the undisputed evidence obtained through discovery.
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. The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present "at least some affirmative evidence showing that there is a genuine issue of material fact for trial." The trial court "must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists." While the Court in Steelvest[, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991),] used the word "impossible" in describing the strict standard for summary judgment, the Supreme Court later stated that that word was "used in a practical sense, not in an absolute sense." Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. [Citations in footnotes omitted.]
Scanlon's first argument relates to the law of the case doctrine, and he contends that the circuit court should not have revisited any issues concerning the applicable statute of limitations, among other issues. We agree with Scanlon that the circuit court had the authority to consider these issues on remand. In Wigginton I, this Court upheld the dismissal of Wigginton's claims related to statements made before January 8, 2003, on statute of limitations grounds, but it reversed the dismissal of his remaining claims, deeming a dismissal for lack of prosecution pursuant to CR 41.02 as too harsh. The Court also agreed with Wigginton that his second amended complaint adequately stated a claim for defamation because he included a short, plain statement of the claim that was sufficient to put Scanlon on notice. See Wigginton I, at *5. However, the Court did not specifically address any possible statute of limitations issues or other defenses. Therefore, we hold that the circuit court had the authority on remand to consider additional arguments and defenses related to the statute of limitations and whether the relation back doctrine would apply.
As Scanlon points out in his brief, Wigginton does not make a separate argument addressing whether the circuit court properly held that the statute of limitations bars his defamation case related to statements made to council members, Peoples, and Peeples. Therefore, we shall not address whether these statements were time barred.
--------
For his second argument, Wigginton argues that the circuit court erred in granting immunity to Scanlon. He begins his argument by referencing the circuit court's dismissal of his abuse of process claim. Wigginton asserts that because the circuit court stated that filing a complaint with and testifying before the Ethics Commission could not constitute abuse of process, when Scanlon never testified before the Commission, its analysis and ruling were somehow flawed. He then moves on to his argument that Scanlon is not entitled to assert a privilege in defense of Wigginton's defamation claim for statements he made to council members. The circuit court held that Scanlon was entitled to an absolute privilege as a member of a secondary legislative body for statements made during official meetings of that body and when acting within the scope of his duties.
In Smith v. Martin, 331 S.W.3d 637, 640 (Ky. App. 2011), this Court recently set forth the elements needed to establish a claim for defamation, as well as the defenses available to defeat this claim:
To establish a claim for defamation, the following elements must exist: "[1.] defamatory language, [2.] about the plaintiff, [3.] which is published, and [4.] which causes injury to reputation." Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004)(footnote omitted). A claim of defamation may be defeated by establishing the truth of the matter asserted which is an absolute defense. Additionally, a defamation claim may be defeated by assertion of a "privilege." A privilege is recognized as a defense to a defamation claim; the defense may be either absolute or qualified. An absolute privilege affords a defendant a complete defense to a claim of defamation; whereas, a qualified privilege only affords a defendant a conditional defense to a claim of defamation.
The Court went on to discuss the absolute privilege defense, holding that "members of secondary legislative bodies are entitled to an absolute privilege for statements made during official meetings of those bodies under KRS 83A.060(15)." Smith, 331 S.W.3d at 642. More specifically, the Court explained:
Under KRS 83A.060(15), members of secondary legislative bodies, such as city councils, acquired an absolute privilege from liability for statements made during such meetings. Jacobs, 484 S.W.2d 855; 13 David J. Leibson, Kentucky Practice—Tort Law § 15:9 (2010); Restatement (Second) of Torts, § 590 (1977). The absolute privilege enjoyed by members of secondary legislative bodies is concomitant to the absolute privilege extended to members of the Kentucky General AssemblySmith, 331 S.W.3d at 640-41 (footnote omitted). Furthermore, in Gray v. Central Bank & Trust Co., 562 S.W.2d 656, 658 (Ky. App. 1978), this Court held that members of a legislative body "are granted absolute immunity for statements made while acting within the scope of the duties imposed upon them by statute."
by Section 43 of the Kentucky Constitution. See Jacobs, 484 S.W.2d 855. As with the absolute privilege contained in Section 43 of the Kentucky Constitution, the ambit of the absolute privilege contained in KRS 83A.060(15) is to be liberally construed and extends broadly to the publication of defamatory matter while performing legislative duties. Restatement (Second) of Torts § 590 (1977); Kraus v. Ky. State Senate, 872 S.W.2d 433 (Ky.1994); Wiggins v. Stuart, 671 S.W.2d 262 (Ky. App. 1984).
We agree with the circuit court and Scanlon that any statements Scanlon made to council members and other individuals were within the scope of his duties, and he is therefore afforded an absolute privilege in defense of Wigginton's defamation claim.
Regarding Wigginton's arguments related to the availability of a privilege for the Ethics Commission complaint and for statements made to television statements and, by extension, to the Lexington Herald-Leader, we recognize that the circuit court did not hold that any privilege existed to bar his defamation claim. Rather, the court applied another defense, the truth of the matter asserted, to find that Wigginton's claims failed. Because Wigginton does not present an argument seeking our review of that ruling, we shall not address his privilege argument any further.
Next, Wigginton argues that the circuit court erred in dismissing his claim for wrongful use of civil proceedings. The circuit court held that probable cause existed to support the filing of the ethics complaint because there was sufficient evidence to support Scanlon's reasonable belief that an ethics violation existed. We agree with the circuit court that Wigginton was unable to establish a prima facie case.
In Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981), the Supreme Court of Kentucky discussed the tort of wrongful use a civil proceedings, previously referred to as a claim for malicious prosecution:
The doctrine of malicious prosecution is an old one in our Commonwealth. See, for example, Holburn v. Neal, 34 Ky. 120, 4 Dana 120 (1836). Historically, it has not been favored in the law. Lexington Cab Co. v. Terrell, 282 Ky. 70, 137 S.W.2d 721 (1940). Public policy requires that all persons be able to freely resort to the courts for redress of a wrong, and the law should and does protect them when they commence a civil or criminal action in good faith and upon reasonable grounds. It is for this reason that one must strictly comply with the prerequisites of maintaining an action for malicious prosecution. Davis v. Brady, 218 Ky. 384, 291 S.W. 412 (1927).
The Raine Court went on to describe the six elements required to establish a prima facie case:
Generally speaking, there are six basic elements necessary to the maintenance of an action for malicious prosecution, in response to both criminal prosecutions and civil action. They are: (1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3)Raine, 621 S.W.2d at 899. The element at issue in this case is whether Scanlon had probable cause to file the ethics complaint.
the termination of such proceedings in defendant's favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding. Smith v. Smith, 296 Ky. 785, 178 S.W.2d 613 (1944); Cravens v. Long, Ky., 257 S.W.2d 548 (1953); Blankenship v. Staton, Ky., 348 S.W.2d 925 (1961); H. S. Leyman Co. v. Short, 214 Ky. 272, 283 S.W. 96 (1926), Restatement of Torts, 2nd ed., Sec. 674, et seq.
"Probable cause" is a legal concept with origins in the judicial decision as to whether there was probable cause to issue a warrant, and as such its existence is a question for the court to decide. [Restatement (Second) of Torts], § 681B(1). It covers both a mistake of law and a mistake of fact, and it exists where the person who initiates civil proceedings "reasonably believes in the existence of the facts upon which the claim is based, and ... that under those facts the claim may be valid under the applicable law." Id., § 675.Prewitt v. Sexton, 777 S.W.2d 891, 894 (Ky. 1989). "[T]he court determines whether the defendant had probable cause for his action." D'Angelo v. Mussler, 290 S.W.3d 75, 80 (Ky. App. 2009).
In considering the undisputed evidence and while recognizing that Wigginton certainly met some of the elements of the tort, we must agree with Scanlon that the circuit court correctly held that probable cause existed to support the filing of the ethics charge. As the court stated, there existed at least a minimum factual basis to support the charge related to Wigginton's travel expense allegations. Accordingly, we hold that the circuit court properly dismissed Wigginton's claim for wrongful use of civil proceedings.
Next, Wigginton argues that the circuit court erred in dismissing his claim for abuse of process. The circuit court concluded that Wigginton had not met the threshold to establish this claim because a proceeding before the Ethics Commission did not meeting the definition of a judicial proceeding. We agree with the circuit court that Wigginton failed to establish this element of the claim.
In Simpson v. Laytart, 962 S.W.2d 392 (Ky. 1998), the Supreme Court of Kentucky addressed the tort of abuse of process, defining this action as "the irregular or wrongful employment of a judicial proceeding." Id. at 394, quoting Stoll Oil Refining Company v. Pierce, 337 S.W.2d 263 (Ky. 1960). Simpson then listed the elements necessary to establish this cause of action:
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. Bonnie Braes Farms Inc. v. Robinson, Ky.App., 598 S.W.2d 765 (1980); Williams v. Central Concrete Inc., Ky.App., 599 S.W.2d 460 (1980). 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. W. Prosser, Handbook of the Law of Torts, Section 121 (4th ed.1971).Simpson, 962 S.W.2d at 394-95.
As did the circuit court and Scanlon, we cite with approval our unpublished opinion of Cromer v. Montgomery, 2009 WL 484999 *5 (2007-CA-002389-MR) (Ky. App. Feb. 27, 2009), for the statement of the law that "the first and most essential element of an abuse of process claim is that there be an actual judicial process involved." See also McCarthy v. KFC Corp., 607 F. Supp. 343, 345 (W.D. Ky. 1985) ("As noted in Prosser and Keaton on Torts, 5th Ed. (West, 1983): '... it is clear that the judicial process must in some manner be involved.'" [Emphasis in original]). Furthermore, "[j]udicial process may broadly be defined as all acts of the court, from the beginning of the proceeding to its end; a more narrow definition is the means of compelling a defendant to appear in court." Bonnie Braes Farms, Inc. v. Robinson, 598 S.W.2d 765 (Ky. App. 1980), citing 62 Am.Jur.2d Process § 1.
We agree with the circuit court that the Ethics Commission is an administrative agency and, as such, does not conduct judicial proceedings. Accordingly, Wigginton's claim for abuse of process must fail, and the circuit court properly dismissed this cause of action.
Finally, Wigginton argues that the circuit court improperly dismissed his claim for interference with a prospective advantage claim. We agree with Scanlon that this argument was not properly preserved because it was not raised below and because it should have been raised in Wigginton I.
For the foregoing reasons, the summary judgment of the Jefferson Circuit Court dismissing Wigginton's claim is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: James M. Morris
Sharon K. Morris
Lexington, Kentucky
BRIEF FOR APPELLEE: Barbara B. Edelman
Grahmn N. Morgan
Lexington, Kentucky