SUSAN McCROBIE v. BARBARA ANDERSON
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RENDERED:
NOVEMBER 7, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001694-MR
SUSAN McCROBIE
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NOS. 00-CI-01090, 00-CI-01601
AND 01-CI-01493
BARBARA ANDERSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
McANULTY
SCHRODER, JUDGE:
AND
SCHRODER,
JUDGES;
HUDDLESTON,
SENIOR
Susan McCrobie (“Susan”) appeals from a
judgment of the Hardin Circuit Court wherein a jury found in
favor of Barbara Anderson (“Barbara”) on Susan’s claim for abuse
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment
of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky
Constitution and Ky. Rev. Stat. (KRS) 21.580.
of process.
On appeal, Susan asserts that the trial court
should have directed a verdict in her favor on the abuse of
process claim and erred by allowing Barbara’s attorney to
testify during the trial of this issue.
Having reviewed the
record, the arguments presented by these parties and the
applicable law, we reject Susan’s assertions and affirm the
judgment of the trial court.
This case has its roots in an alleged affair between
Barbara and Susan’s husband, Harry McCrobie (“Harry”), that
turned sour.
Harry claims that he had an extramarital affair
with Barbara and that the relationship ended bitterly in 1998.
Barbara denies that she had an affair with Harry.
Harry claimed
that Barbara, with the assistance of her husband, Chester, and
Barbara’s mother, Wanda Scott, filed several criminal charges
against him in Hardin County.
The first set of charges,
harassing communications, was filed on May 3, 1999, and
dismissed with prejudice on August 4, 1999.
The second set of
misdemeanor charges was filed May 5, 1999, and these charges
were ultimately dismissed with prejudice.
A third set of
charges, two counts of harassing communications, was filed
August 25, 1999.
These charges proceeded to a jury trial,
wherein Harry was found not guilty.
Two felony charges of
intimidating a witness were filed after Harry’s acquittal, but
the Hardin County grand jury failed to return an indictment on
2
these charges.
The charges of intimidating a witness were
eventually dismissed with prejudice.
Finally, Scott brought a
harassment charge in Bullitt County that appears to have been
dismissed without prejudice and with instructions to Harry to
stay away from Scott and her family.
Ultimately this charge was
modified to a dismissal with prejudice.
After all of the criminal charges had been dismissed,
Harry filed a civil complaint against Barbara, Chester, and
Scott alleging malicious prosecution and outrage.
On October
23, 2000, Susan filed a separate complaint against Barbara and
Scott alleging that Barbara and Scott intentionally engaged in
an outrageous course of conduct towards her.
In her complaint,
Susan alleged that Barbara and Scott verbally abused her,
prevented her from getting into her vehicle on one occasion,
followed her around Elizabethtown for no reason, and engaged in
offensive gestures towards her.
After filing her complaint,
Susan filed a criminal harassment charge against Barbara.
Eventually, Barbara and Scott answered the civil complaints and
filed a counterclaim against Susan for abuse of process and
wrongful use of civil proceedings.
In April 2001, Harry and Susan’s civil claims
proceeded to a jury trial.
this time.
The counterclaim was not tried at
The jury found that the Andersons and Scott were
liable to Harry for malicious prosecution and imposed $4,650.00
3
in compensatory damages and $1,000.00 in punitive damages.2
The
Andersons and Scott appealed the jury’s verdict to this Court.
In an unpublished opinion rendered August 9, 2002, a panel of
this Court affirmed the judgment against the Andersons, but
reversed the judgment against Scott.3
Concerning Susan’s claim,
the jury found for Barbara and Scott.
At this point, the
criminal harassment charge filed by Susan against Barbara and
Barbara and Scott’s counterclaim against Susan were pending.
Sometime after the conclusion of the April 2001 trial,
the Andersons and Scott authorized their trial counsel, C. Mike
Moulton, to attempt to settle this matter with the McCrobies.
Moulton contacted the McCrobies’ attorney, James Kelly, and
verbally proposed an offer of settlement.
Moulton’s proposed
settlement offer provided that Barbara and Scott would agree to
dismiss their counterclaim against Susan in exchange for Harry
agreeing to vacate the judgment he obtained against the
Andersons and Scott and Susan requesting the dismissal of the
harassment charge against Barbara.
Additionally, Moulton’s
proposal also required the parties to agree in writing to not
2
The jury apportioned liability as follows: 80% to Barbara; 10% to Chester;
and 10% to Scott.
3
The judgment against Scott was reversed because the record revealed that
the criminal charges Scott filed against Harry in Bullitt County were
dismissed by compromise of the accused. Accordingly, a panel of this Court
held that Harry failed to satisfy the requirements of Raine v. Drasin, Ky.,
621 S.W.2d 895, 899 (1981) and Broaddus v. Campbell, Ky. App., 911 S.W.2d 281
(1995), that the proceedings at issue were terminated in his favor. Anderson
v. McCrobie, No. 2001-CA-001227-MR. The Kentucky Supreme Court denied
discretionary review on June 4, 2003.
4
pursue any and all future criminal or civil actions against each
other that could have been brought prior to the signing of the
agreement.
Receiving no response from Kelly concerning his
proposal, Moulton forwarded a letter, dated May 8, 2001, to
Kelly making the same offer.
Kelly, on behalf of the McCrobies,
rejected this settlement offer on May 17, 2001.
As a result of
this rejection, the Andersons and Scott filed their appeal from
Harry’s judgment, Barbara proceeded to trial on the harassment
charge, and Barbara and Scott pursued their counterclaim against
Susan.4
On September 20, 2001, a jury returned a not guilty
verdict in Barbara’s criminal harassment trial.
At the
conclusion of the criminal trial, Moulton forwarded another
letter5 to Kelly reviving the earlier offer to settle the
outstanding civil proceedings between the parties.
This letter
provided in pertinent part as follows:
Since the issues involved in the criminal
trial were the issues involved in Mr. [sic]
McCrobie’s civil complaint, I will be filing
a motion to amend the counterclaim in the
pending civil matter. However, before
proceeding with that motion, and before
spending time and money on depositions in
the pending civil case, I would like to once
4
In August 2001, Barbara and Scott amended their counterclaim to include a
claim against Susan for malicious prosecution. This claim stemmed from the
jury verdict in favor of Barbara and Scott in Susan’s civil claim against
them.
5
Moulton’s second letter, incorrectly dated March 14, 2001, was sent to
Kelly on September 24, 2001.
5
again see if it is possible to resolve this
matter. The settlement offer previously
made and rejected is once again being
offered. That settlement offer is that the
judgment in the initial case be invalidated
and all current and civil appellate actions
be dismissed. Additionally, all parties
will enter into an agreement foregoing the
right to file any civil or criminal action
that could be brought between the parties,
real or imagined, concerning incidents
occurring prior to date of the agreement.
Hopefully, at that point, all ties between
the parties will be severed and they can get
on with there [sic] respective lives.
On October 1, 2002, in response to this settlement
offer, Harry and Susan filed a new complaint against the
Andersons and Scott for abuse of process.
In numerical
paragraphs four (4) and five (5) of that complaint, the
McCrobies allege:
4.
That the Defendants, through their
attorney, have threatened that unless
the Plaintiff, Susan McCrobie, drop
[sic] her criminal complaint and the
Plaintiff, Harry McCrobie, gives up his
Judgment for money against the
Defendants, then the Defendants, Barbara
Anderson and Wanda Scott, would continue
prosecuting their Counterclaim for abuse
of process and would also file an
additional cause of action for malicious
prosecution through amendment of their
Counterclaim against the Plaintiff,
Susan McCrobie, and that these threats
were made in the presence of others and
have now been carried out and the
Defendants are actively proceeding with
these claims in order to force the
Plaintiffs to settle on their terms.
6
5.
That the continuation of the original
Counterclaim for abuse of process and
the Amended Counterclaim alleging the
new offense of malicious prosecution
constitute wrongful use of the process
of this Court, as the motive is to force
the Plaintiffs to stop pursuing lawful
remedies, and that because of the
wrongful conduct of the Defendants, the
Plaintiffs will have to employee [sic]
an attorney to defend these actions and
will suffer emotional distress and
mental suffering.
In response, Barbara filed a second amended
counterclaim on October 9, 2001, adding a claim of malicious
prosecution.
This cause of action stemmed from the not guilty
verdict Barbara received from the jury at her criminal
harassment trial.
Thereafter, the McCrobies amended their
complaint to include an allegation that the Andersons and Scott
were abusing civil process by appealing the judgment Harry
obtained as a result of the April 2001 trial in an effort to
pressure Harry into vacating his award.
Ultimately, the trial
court granted summary judgment to these appellees on Harry’s
complaint for abuse of process and permitted the remaining
claims to proceed to trial.
The trial court, however, ordered
this trial bifurcated after determining that Moulton would need
to testify in the phase of the trial encompassing Susan’s claim
for abuse of civil process on Barbara’s behalf concerning the
motives behind his settlement offer.
7
On June 17, 2002, a bifurcated jury trial commenced on
the issues outstanding in this matter.
The first portion of the
trial concerned only Barbara and Scott’s counterclaim against
Susan for malicious prosecution and wrongful use of a civil
proceeding.
After hearing the evidence, the jury returned a
verdict for Barbara and Scott, but awarded no damages.
During
the second portion of the trial, the jury heard evidence and
considered Susan’s abuse of process claim against Barbara.
Ultimately, the jury rejected Susan’s claim by returning a
verdict in Barbara’s favor.
This appeal followed.
On appeal, Susan first argues that the trial court
erred by failing to direct a verdict in her favor on her abuse
of process claim against Barbara.
We disagree.
When a motion for directed verdict is made, “the trial
court must consider the evidence in its strongest light in favor
of the party against whom the motion was made and must give him
the advantage of every fair and reasonable intendment that the
evidence can justify.”
922 (1991).
Lovins v. Napier, Ky., 814 S.W.2d 921,
A directed verdict is appropriate only when,
“drawing all inferences in favor of the nonmoving party, a
reasonable jury could only conclude that the moving party was
entitled to a verdict.”
S.W.2d 24, 26 (1998).
Buchholtz v. Dugan, Ky. App., 977
The trial court cannot grant a motion for
directed verdict “unless there is a complete absence of proof on
8
a material issue in the action, or if no disputed issue of fact
exists upon which reasonable men could differ.”
Kennedy, Ky. App., 700 S.W.2d 415, 416 (1985).
Taylor v.
“On appeal, the
appellate court considers the evidence in the same light.”
Lovins, 814 S.W.2d at 922.
The tort of abuse of process involves “the irregular
or wrongful employment of a judicial proceeding.”
Bonnie Braes
Farms, Inc. v. Robinson, Ky. App., 598 S.W.2d 765, 766 (1980)
(citations omitted).
The essential elements of an action for
abuse of process include an ulterior purpose and a willful act
in the use of the process not proper in the regular conduct of a
proceeding.
(1998).
Simpson v. Laytart, Ky., 962 S.W.2d 392, 394
Abuse of process consists simply of “the employment of
legal process for some other purpose other than that which it
was intended by the law to effect.”
Raine v. Drasin, Ky., 621
S.W.2d 895, 902 (1981); Flynn v. Songer, Ky., 399 S.W.2d 491
(1966).
Accordingly, in order for an abuse of process claim to
be viable, 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.
Id.
There exists 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 394-395 (citing W. Prosser, Handbook of the Law of
Torts, Section 121 (4th ed. 1971)).
9
Looking at the record in this case, we cannot say that
the jury’s verdict is so palpably or flagrantly against the
evidence as to merit a reversal.
The record reveals that
Barbara was only pursuing the legal remedies available to her
after Susan rejected the offer to resolve this matter.
Barbara’s counterclaim against Susan for abuse of process and
wrongful use of civil proceedings possessed merit after a jury
determined that Barbara and her mother did not engage in
outrageous conduct toward Susan.
Moreover, Barbara’s claim for
malicious prosecution became viable after Barbara was acquitted
of the criminal harassment charges that Susan had pressed
against her.
After Barbara’s offer of compromise was rejected,
Barbara simply carried out these two claims against Susan to an
authorized conclusion.
While Barbara may have possessed bad
intentions in prosecuting her counterclaims against Susan, there
is no indication from the record that Barbara had an ulterior
purpose in filing her counterclaims or that these claims were
improper.
Thus, we believe that the circuit court appropriately
denied Susan’s motion for a directed verdict because the
evidence clearly established that Barbara did not abuse the
judicial process by employing legally sanctioned process to
resolve her claims against Susan.
Next, Susan argues that the trial court erred by
allowing Barbara’s trial counsel on the counterclaim issues, C.
10
Mike Moulton, to testify as a witness at the portion of the
trial that dealt solely with Susan’s claim for abuse of process.
Susan
lawyer
to
asserts
testify
in
that
favor
Kentucky
of
a
law
party
does
whom
not
he
permit
a
represents.
Indeed, this long-standing principle is espoused in Rule 3.7 of
the Kentucky Rules of Professional Conduct (Supreme Court Rule
3.130):
(a) A lawyer shall not act as an advocate at
trial in which the lawyer is likely to be a
necessary witness except where:
(1) The testimony relates to an
uncontested issue;
(2) The testimony relates to the
nature and value of legal services
rendered in the case; or
(3) Disqualification of the lawyer
would work a substantial hardship on
the client.
The commentary to Rule 3.7 understands the
difficulties a trial court endures when confronted with a
situation wherein an attorney who represents one of the parties
at trial may be required to testify concerning a particular
issue:
[1] Combining the roles of advocate
and witness can prejudice the opposing party
and can involve a conflict of interest
between lawyer and client.
[2] The opposing party has proper
objection where the combination of roles may
prejudice that party’s rights in the
11
litigation. A witness is required to
testify on the basis of personal knowledge,
while an advocate is expected to explain and
comment on evidence given by others. It may
not be clear whether a statement by an
advocate-witness should be taken as proof or
as an analysis of the proof.
SCR 3.130-3.7, Comment (1), (2).
A review of the record reveals that Moulton’s
testimony concerning his efforts to settle all pending
litigation on behalf of the Andersons and Scott did not violate
Rule 3.7.
First, there is no indication that the roles of
advocate and witness were combined during the trial of Susan’s
claim for abuse of process.
In fact, the trial of Susan’s claim
was bifurcated from the trial of Barbara’s counterclaims, with
the counterclaims tried first, after the trial court learned
that Moulton would be required to testify since his offer was
the central component of Susan’s abuse of process claim.
In
bifurcating the trial, the trial court prohibited attorney
Moulton from acting as Barbara’s advocate during the trial of
Susan’s claims and, during that portion of the trial, Moulton
did not present evidence to the jury on Barbara’s behalf or make
arguments to the jury explaining or commenting on the evidence
presented therein.
In fact, another attorney, Lyn Taylor Long,
represented Barbara during this portion of the bifurcated trial.6
Since attorney Moulton did not act as Barbara’s advocate during
6
Lyn Taylor Long is Moulton’s law partner.
12
the trial of Susan’s abuse of process claim, we cannot say that
the trial court erred or permitted Moulton to violate the
Kentucky Rules of Professional Conduct.
Moreover, the record reveals that, prior to the
beginning of the bifurcated trial containing only Susan’s abuse
of process claim, the trial court admonished the jury that
Moulton was testifying like any other witness and that the jury
was not to give Moulton’s testimony any additional weight even
though Moulton represented Barbara during the first portion of
the trial.
This admonition was designed to ensure that the jury
did not confuse Moulton’s roles as an advocate in one part of
the trial and as a necessary witness during the second part.
Absent any evidence to the contrary, the trial court’s
admonition to the jury concerning Moulton’s testimony cured any
prejudice that might have resulted during trial.
Grecco, Ky. App., 111 S.W.3d 877, 884 (2002).
See King v.
Accordingly, we
deem Susan’s arguments concerning this issue to be totally
lacking in merit.
For the aforementioned reasons, the judgment of the
Hardin Circuit Court is affirmed.
McANULTY, JUDGE, CONCURS.
HUDDLESTON, SENIOR JUDGE, CONCURS IN RESULT ONLY.
13
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Douglas E. Miller
Radcliff, Kentucky
C. Mike Moulton
Elizabethtown, Kentucky
14
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