LAWRENCE M. v. LONNIE LEACH
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RENDERED:
SEPTEMBER 5, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001273-MR
LAWRENCE M. FROMAN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NO. 01-CI-005810
v.
LONNIE LEACH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, SCHRODER AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Lawrence M. Froman has appealed from an order
entered by the Jefferson Circuit Court on April 19, 2002,
granting summary judgment to Lonnie Leach.
Having concluded
that there is no genuine issue as to any material fact and that
Leach was entitled to a judgment as a matter of law, we affirm.
Froman brought this action against Leach as the owner
of A & B Polygraph Professionals.
This case arises from a
polygraph examination administered to Froman by Leach at
Froman’s request.
At the time of the examination, Froman was an
inmate at Kentucky State Reformatory (KSR) in LaGrange,
Kentucky.
Froman alleged in his complaint that Leach
intentionally sent the results of the polygraph examination to
Lieutenant Bill Searcy, the Internal Affairs Officer at KSR,
without Froman’s permission.
Froman claimed that the report was
then used against him at a subsequent parole hearing, whereby he
was denied parole.
Froman also claimed that Leach lied in the
polygraph examination report.
On January 30, 2002, Leach filed a motion for summary
judgment which was supported by affidavits from Froman, Leach
and Lt. Searcy.
The trial court granted one motion by Froman
for an extension of time to file a response; however, the trial
court denied his second motion requesting an extension of time.
The trial court then considered the merits of the motion and
granted summary judgment to Leach in an order entered on April
19, 2002.
This appeal followed.
Summary judgment is authorized "if the pleadings,
depositions, answers to interrogatories, stipulations, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."1
“Only when it appears impossible for the nonmoving party to
1
Kentucky Rules of Civil Procedure (CR) 56.03.
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produce evidence at trial warranting a judgment in his favor
should the motion for summary judgment be granted.”2
“There is
no requirement that the appellate court defer to the trial court
since factual findings are not at issue.”3
"The record must be
viewed in a light most favorable to the party opposing the
motion for summary judgment and all doubts are to be resolved in
his favor."4
However, “a party opposing a properly presented
summary judgment motion cannot defeat it without presenting at
least some affirmative evidence showing the existence of a
genuine issue of material fact for trial.”5
In his complaint, Froman alleged that Leach had
violated his civil rights as guaranteed by numerous sections of
the Kentucky Constitution and the Kentucky Revised Statutes.6
Froman also claimed that he was entitled to relief for damages
for humiliation and emotional distress.
The trial court
addressed each of Froman’s constitutional and statutory claims
and concluded that each failed to state a claim for which relief
could be granted.
We will not seek to reiterate each of the
2
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476,
482 (1991).
3
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
4
Steelvest, 807 S.W.2d at 480.
5
Id. at 482.
6
On appeal, Froman claims Leach violated his Fifth, Eighth and Fourteenth
Amendment rights under the United States Constitution. Because he failed to
make this claim in the trial court, those issues are not subject to appellate
review. Kaplon v. Chase, Ky.App., 690 S.W.2d 761, 763 (1985).
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constitutional and statutory claims.
As to those claims, we
adopt the analysis of the trial court as follows:
I.
KRS Chapter 344
. . . .
KRS Chapter 344 governs civil rights
and sets forth causes of action for
discrimination by employers, employment
agencies, labor organizations, and
apprenticeships or training. Froman alleges
that Leach, with whom he contracted to
perform services, lied about the
conversation they had prior to the polygraph
test. Such an allegation does not involve
any employer, employment agency, labor
organization or apprenticeship or training.
Thus, Froman has failed to allege an
underlying claim pursuant to KRS Chapter 344
to support a “further” violation and the
Complaint must be dismissed.
II.
KRS Chapter 413
. . . .
Because KRS 413.120 does not set forth a
cause of action, but a statute of
limitation, Froman has failed to state a
claim based upon KRS 413.120.
III. Kentucky Constitution
. . . .
Considering the allegations in Froman’s
Complaint, this Court finds that Froman has
failed to make allegations supporting a
cause of action pursuant to any of the cited
sections of the Kentucky Constitution. In
his Complaint, Froman alleged that the
person he contracted with lied and sent a
copy of the results to prison officials
without his consent. Froman’s allegations
concern a breach of contract, not a
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violation of Section 1. Furthermore,
Sections 13 and 14 of the Kentucky
Constitution concern criminal actions, not a
civil breach of contract. Sections 26, 109,
112, and 113 set forth general principles
and powers of government, not rights. Thus,
considering Froman’s allegations in the most
favorable light, this Court finds that
Froman has failed to state a claim under the
cited sections of the Kentucky Constitution.
IV.
Criminal Statutes
. . . .
KRS 514.050 provides the following, in
pertinent part:
A person is guilty of theft of
property, mislaid, or delivered 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; and (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.
KRS 466.070 provides that a “person
injured by the violation of any statute may
recover from the offender such damages as he
sustained by reason of the violation,
although a penalty or forfeiture is imposed
for such violation.” While listing KRS
514.050 in his Complaint, Froman alleges
that Leach “should have maintained custody
and control of this confidential document,”
rather than sending it to prison officials.
However, there is no allegation that Leach
came into control of the document because it
was “lost, mislaid, or delivered [to him]
under a mistake as to the nature or amount
of the property or the identity of the
recipient.” Thus, Froman has failed to
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state a claim pursuant to KRS 466.070 and
KRS 514.050 and his Complaint must be
dismissed.
Similarly, KRS 506.040 sets forth the
crime of criminal conspiracy and provides
the following:
(1) A person having the intention of
promoting or facilitating the
commission of a crime is guilty of
criminal conspiracy when he: (a) Agrees
with one (1) or more persons that at
least one (1) of them will engage in
conduct constituting that crime or an
attempt or solicitation to commit such
a crime; or (b) Agrees to aid one or
more persons in the planning or
commission of that crime or an attempt
or solicitation to commit such a crime.
Froman alleged a breach of contract, not
conduct that constitutes a crime. Thus, he
has failed to allege an action pursuant to
KRS 506.040, through KRS 466.070, and the
claim must be dismissed.
KRS 506.080 sets forth the crime of
criminal facilitation. “A person is guilty
of criminal facilitation when, acting with
knowledge that another person is committing
or intends to commit a crime, he engages in
conduct which knowingly provides such person
with means or opportunity for the commission
of the crime and which in fact aids such
person to commit the crime.” KRS
505.080(1). Again, Froman’s allegations of
breach of contract [ ] will not support a
statutory action for the crime of criminal
facilitation as no underlying crime has been
alleged. Thus, Froman has failed to state a
claim and the Complaint must be dismissed.
Finally, KRS 514.110 provides that “[a]
person is guilty of receiving stolen
property when he receives, retains, or
disposes of movable property of another
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knowing that it has been stolen, or having
reason to believe that it has been stolen,
unless the property is received, retained,
or disposed of with intent to restore it to
the owner.” Leach performed the polygraph
under a contract, and thus, it would be
impossible for Froman to allege that the
document containing the polygraph results
was stolen property. Therefore, Froman has
failed to state a claim and the Complaint
must be dismissed.
We agree with the trial court’s ruling that Froman
failed to state a claim for which relief could be granted on any
of his constitutional or statutory claims.
We also agree with
the trial court that Froman’s claims sounded in contract and
that Froman failed to produce any affirmative evidence of a
genuine issue as to any material fact and that Leach was
entitled to summary judgment as a matter of law.
The record contains affidavits by Leach and Lt.
Searcy.
Attached to Lt. Searcy’s affidavit is a consent form
dated January 6, 1998.
This form authorized Leach to give a
copy of the polygraph results to the Internal Affairs Office at
KSR.
The form was signed by Froman, Lt. Searcy and Lt. Erica
Rueberger.
Lt. Searcy explained that an inmate did not have the
right to a polygraph test and that Internal Affairs conditioned
the privilege of Froman being administered a polygraph test on
Froman’s consent to provide a copy of the test results to
Internal Affairs.
Lt. Searcy stated that the purpose of this
release was to ensure that the test was being used for a proper
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institutional purpose.
Lt. Searcy also stated that he and Lt.
Rueberger witnessed Froman sign the consent form authorizing
Leach to forward the report to Internal Affairs.
Leach’s affidavit stated that he performed the
polygraph test in a professional manner, in good faith and that
he obtained Froman’s informed consent7 to administer the test and
to release the results to the Internal Affairs Office.
The fact
that the report was marked “Confidential” does not prove, as
Froman contends, that he did not consent to Internal Affairs
receiving the report.
It merely evidences that the contents
were confidentially sent to Internal Affairs.
Other than his
protestations, Froman failed to produce any affirmative evidence
that he did not consent to the release of the report, in order
to establish a genuine issue of material fact for trial.
Froman’s claim that the report was subsequently used
against him at a parole board hearing is only relevant as to his
claims against Leach if Leach was not authorized to release the
report to Internal Affairs.
Since the evidence establishes that
Leach was authorized to release the information, its subsequent
use cannot be attributed to Leach.
Froman also claims that Leach lied in the polygraph
report.
The only “evidence” Froman offers to support this claim
7
Leach stated that he had lawfully destroyed the informed consent form but
provided the court with a blank form, stating that his was the form he always
used with his clients.
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is his assertion that because Froman knew that Froman was
telling the truth, then the results of the polygraph test to the
contrary must be lies.
Froman’s bald allegations, beliefs and
speculations are not affirmative evidence sufficient to create a
genuine issue as to a material fact sufficient to defeat the
properly supported motion for summary judgment.
For the foregoing reasons, the order of the Jefferson
Circuit Court granting summary judgment to Leach is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lawrence M. Froman, Pro Se
LaGrange, Kentucky
Robert Y. Gwin
David S. Kaplan
Louisville, Kentucky
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