MARTIN (GARY), ET AL VS. O'DANIEL (STEPHEN)
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RENDERED: MAY 20, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001738-MR
&
NO. 2009-CA-001739-MR
&
NO. 2009-CA-001795-MR
GARY MARTIN; MIKE SAPP; AND
BOBBY MOTLEY
v.
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, SPECIAL JUDGE
ACTION NO. 07-CI-00820
STEPHEN O'DANIEL
APPELLEE
OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND LAMBERT, JUDGES; SHAKE,1 SENIOR JUDGE.
KELLER, JUDGE: Three Kentucky State Police Officers, Det. Gary Martin (Det.
Martin), Lt. Colonel Mike Sapp (Lt. Col. Sapp), and Sgt. Bobby Motley (Sgt.
Motley) appeal from the circuit court's denial of their motion for summary
1
Senior Judge Ann O'Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
judgment on the issue of qualified immunity. Having reviewed the record and the
arguments of counsel, we affirm.
FACTS
The underlying facts, generally, are not in dispute. However, because
this is before us on a summary judgment issue, we construe disputed facts in a light
most favorable to the appellee, Stephen O'Daniel (O'Daniel). Steelvest, Inc., v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Sometime in early March 2006, O'Daniel, a retired Kentucky State
Police (KSP) Officer, purchased what he thought was a 1974 Corvette from David
Godsey (Godsey). At the time, O'Daniel worked as Executive Director of the
Office of Investigations for the Justice & Public Safety Cabinet (the Cabinet).
Shortly after purchasing the Corvette, O'Daniel took it to a Wal-Mart for an oil
change where he discovered that the engine was not a 1974 Corvette engine.
Because he suspected the Corvette might not be what he thought he had purchased,
O'Daniel undertook an investigation and eventually came into contact with
Detective Bill Riley (Det. Riley), who worked in the stolen vehicle division of the
KSP. With O'Daniel's agreement and assistance, Det. Riley inspected the Corvette
and determined that it was a 1975, not a 1974 model. Det. Riley also discovered
that the original 1975 vehicle identification number (VIN) plate had been replaced
with a different VIN plate. Det. Riley then prepared a "confidential report," 2 told
O'Daniel that the Corvette appeared to have been stolen, and impounded the car.
2
The report is called a "confidential report" because it reflects information obtained from a
review of the "confidential" or hidden VIN. It is not meant to be kept confidential.
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With further investigation, Det. Riley determined that the 1975 Corvette had been
stolen in 1981; that State Farm had paid the original owner for the loss; and that
the VIN plate belonged to a 1974 Corvette that had also been reported as stolen.
Based on that information, Det. Riley believed that State Farm was the titular
owner of the 1975 Corvette.
After discovering that the 1975 Corvette was a stolen car, O'Daniel
told Luke Morgan (Morgan), general counsel for the Cabinet. Morgan told
O'Daniel that the matter was personal and that he should not let it interfere with his
duties as Executive Director of the Office of Investigations.
O'Daniel, who was insured by State Farm at the time, contacted his
insurance agent. The agent referred O'Daniel to Rod Marshall in State Farm's
Illinois office. Rod Marshall stated that State Farm could not find any
documentation regarding the Corvette, was not interested in the Corvette, and that
O'Daniel could have the car. At some point during this time period, O'Daniel also
spoke with a State Farm representative in Kentucky, Kevin Root (Root). Contrary
to what Rod Marshall said, Root advised O'Daniel that State Farm was interested
in and would pursue a claim for the Corvette.
Based on these conversations, O'Daniel began to explore how he
could get a "clear" title containing the correct VIN and model year, and he
contacted an attorney, David Marshall (Attorney Marshall). Attorney Marshall
spoke with Rod Marshall and Root and confirmed what they had told O'Daniel.
Additionally, Attorney Marshall contacted Det. Riley, who stated that he would
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crush the Corvette before he would return it to O'Daniel.3 At some point after that
conversation, O'Daniel took three steps that ultimately led to this litigation.
One, O'Daniel contacted personnel at the Department of
Transportation (DOT) to find out how he could get a clear title to the Corvette. He
was advised that he could not because the Corvette had been stolen.
Two, after speaking with DOT personnel, O'Daniel contacted the
Jessamine County Clerk and asked her how he could obtain a "corrected" title and
replacement VIN plate. The Clerk told O'Daniel that he needed a confidential
report from the KSP indicating what the correct VIN and model year were for the
Corvette. Several days later, O'Daniel returned to the Clerk's office with the
confidential report that had been prepared by Det. Riley, and the Clerk completed
an application for a title with the Corvette's correct VIN and model year and an
application for a replacement VIN plate. When personnel at the DOT received
O'Daniel's applications, they contacted the KSP and reported that they had received
applications for title and replacement VIN plates from State Farm and O'Daniel.
The KSP then began a criminal investigation regarding O'Daniel's applications.
Sgt. Motley and Det. Martin were assigned to conduct that investigation under the
supervision of Lt. Col. Sapp.
Three, O'Daniel told Morgan about Det. Riley's comment that he
would rather crush the car than give it to O'Daniel. Morgan believed at that point
3
We note that Det. Riley stated that he could not remember making this statement. Furthermore,
there is some evidence that the statement, if made, was made in jest. However, O'Daniel and
Attorney Marshall took the statement seriously and, because this matter is before us on a
summary judgment, we construe the statement as they did.
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the matter was purely a civil dispute between O'Daniel and State Farm regarding
ownership of the Corvette. Because he wanted to avoid any appearance of
impropriety, Morgan took steps to get the investigation regarding the Corvette out
of the hands of the KSP and the Cabinet. These steps included calling a meeting
with O'Daniel, Lt. Col. Sapp., Sgt. Motley, and Det. Martin; consulting with the
Deputy Secretary of the Cabinet, the Secretary of the Cabinet, the Commissioner
of the KSP, and the Governor's Chief of Staff; and asking the KSP to transfer the
investigation and the Corvette to another police department. The preceding
Cabinet members became involved in this matter to various degrees and the KSP
interpreted their involvement as interference with a criminal investigation and/or
obstruction of justice. When the KSP did not abandon the investigation and only
very reluctantly transferred the Corvette to the Jessamine County Sheriff, the
Cabinet members interpreted behavior by the KSP officers as insubordination. We
note that the record is replete with accusations of obstruction of justice and
insubordination; however, the details of those accusations are largely irrelevant to
the issue on appeal. Therefore, we do not recite them further herein.
Once Det. Motley and Sgt. Martin had completed their investigation
into O'Daniel's alleged fraud, they presented their evidence to the Franklin
Commonwealth Attorney, Larry Cleveland (Cleveland). According to O'Daniel,
Cleveland indicated that he did not believe the evidence was sufficient to establish
the intent necessary to successfully prosecute O'Daniel, and he refused to do so.
O'Daniel further asserts that, because Cleveland refused to prosecute, the
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appellants then "shopped" for a prosecutor who would put the evidence against
O'Daniel before a grand jury.
The appellants assert that Cleveland chose not to prosecute because he
had a conflict and that he recommended bringing in a special prosecutor.
Regardless, a special prosecutor reviewed the evidence presented by Det. Martin
and Sgt. Motley and presented that evidence to a grand jury. The grand jury then
indicted O'Daniel. The case went to trial and the jury acquitted O'Daniel.
O'Daniel then brought a malicious prosecution action against Lt. Col. Sapp, Sgt.
Motley, Det. Riley, and Det. Martin. The trial court dismissed O'Daniel's claims
against Det. Riley; therefore, we address only those issues related to Lt. Col. Sapp.,
Sgt. Motley, and Det. Martin.
As to Lt. Col. Sapp, O'Daniel alleges that he: refused to comply with
orders from Cabinet personnel to transfer the investigation of O'Daniel to another
police agency; and orchestrated removing Cleveland and replacing him with
another prosecutor. Furthermore, O'Daniel alleges that Lt. Col. Sapp failed to
timely produce for O'Daniel's criminal defense attorney written evidence of his
involvement in Cleveland's removal. As to Det. Martin, O'Daniel alleged that he:
lied to the grand jury about how many times the Jessamine County Clerk had been
interviewed; lied to the grand jury about the status of O'Daniel's civil case; and
withheld the Clerk's first statement from O'Daniel's criminal defense attorney until
the week before trial. As to Sgt. Motley, O'Daniel alleged that he withheld the
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statement he took from the Jessamine County Clerk. Finally, O'Daniel alleged that
all three appellants conspired to wrongfully prosecute him.
The appellants filed motions to dismiss on the pleadings and/or
motions for summary judgment. In their motions, the appellants argued that
O'Daniel had failed to set forth sufficient evidence to meet his burden of
establishing the elements of malicious prosecution. They also argued that they are
entitled to qualified immunity. The trial court, in summary fashion, denied the
appellants' motions. It is from the trial court's denial of their motions for
dismissal/summary judgment on the issue of qualified immunity that the appellants
appeal.
STANDARD OF REVIEW
Because the appellants offered, and the trial court considered,
evidence outside the pleadings, we treat the matter before us as an appeal from a
denial of summary judgment. Cabinet for Human Resources v. Women's Health
Services, Inc., 878 S.W.2d 806, 807 (Ky. App. 1994). Summary judgment is only
proper when "it would be impossible for the respondent to produce any evidence at
the trial warranting a judgment in his favor." Steelvest, 807 S.W.2d at 480. In
ruling on a motion for summary judgment, the Court is required to construe the
record "in a light most favorable to the party opposing the motion . . . and all
doubts are to be resolved in his favor." Id. Whether the appellants are entitled to
qualified immunity is a question of law, which we review de novo. Haney v.
Monsky, 311 S.W.3d 235, 240 (Ky. 2010).
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ANALYSIS
At the outset, we note O'Daniel's argument that the trial court's denial
of the appellants' motions for summary judgment is not appealable. The appellants
made motions for summary judgment based on two arguments: that they are
entitled to qualified immunity; and that O'Daniel had not presented sufficient
evidence to meet his burden of proving malicious prosecution. Following the
hearing on the appellants' motions, the trial court summarily denied them. The
court did not specifically address whether that denial was based on a finding that
the appellants are not entitled to qualified immunity or on a finding that O'Daniel
had raised sufficient issues of material fact regarding malicious prosecution.
Because granting either motion would have put an end to this matter, we presume
the court denied the appellants' motions on both grounds.
"The general rule under CR 56.03 is that a denial of a motion for
summary judgment is . . . not appealable because of its interlocutory nature . . . ."
Transportation Cabinet, Bureau of Highways, Com. of Ky. v. Leneave, 751 S.W.2d
36, 37 (Ky. App. 1988). However, the denial of a motion for summary judgment
based on a claim of qualified immunity is properly appealable. See Haney v.
Monsky, 311 S.W.3d 235 (Ky. 2010). Therefore, the court's denial of the
appellants' motions for summary judgment on the issue of malicious prosecution is
not properly before us. However, the court's denial of the appellants' motions for
summary judgment on the issue of qualified immunity is.
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Before we undertake our analysis of the appellants' entitlement to
qualified immunity, we note that the appellants argue extensively in their briefs
that the trial court erred when it denied their motions based on the issue of
malicious prosecution. Although we might agree with the appellants and might
have held differently than the trial court on that issue, we cannot address it herein.
Thus, we only address the trial court's denial of summary judgment on the issue of
qualified immunity.
Qualified official immunity applies to the negligent
performance by a public officer or employee of (1)
discretionary acts or functions, i.e., those involving the
exercise of discretion and judgment, or personal
deliberation, decision, and judgment, id. § 322; (2) in
good faith; and (3) within the scope of the employee's
authority. Id. § 309; Restatement (Second) Torts, supra,
§ 895D cmt. g. An act is not necessarily “discretionary”
just because the officer performing it has some discretion
with respect to the means or method to be employed.
Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001).
As noted by O'Daniel, the Supreme Court of Kentucky in Yanero
limited the application of qualified immunity to claims of negligence. Therefore,
to determine if the trial court erred in denying the appellants' motions for summary
judgment on the issue of qualified immunity, we must determine if O'Daniel's
claim sounds in negligence. We hold that it does not.
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
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proceedings, (2) by, or at the instance, of the plaintiff, (3)
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.
Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981).
As noted by the Supreme Court in Yanero, a public official is not
entitled to qualified immunity if "the officer or employee willfully or maliciously
intended to harm the plaintiff or acted with a corrupt motive." Yanero, 65 S.W.3d
at 524. One of the key elements of malicious prosecution is malice, which, if
proven, negates a public employee's claim to qualified immunity. Because the trial
court determined that O'Daniel had produced sufficient evidence to go forward
with his malicious prosecution claim, a claim involving the malicious intent to
cause harm, the appellants are not entitled to qualified immunity. Therefore, we
affirm the trial court's denial of the appellants' motion for summary judgment on
the issue of qualified immunity.
We note that the appellants cited to Smith v. Nesbitt, 2003-CA000331, 2003 WL 22462413 (Ky. App. Oct. 31, 2003), Howell v. Sanders, 2010
WL 2490343 (E.D. Ky. June 17, 2010), and Caudill v. Felder, 2010 WL 411474
(E.D. Ky. Jan. 29, 2010), in support of their position that they are exempt from
liability based on qualified immunity. In Smith, Boyle County officials filed
flagrant non-support charges against Smith. Those charges were ultimately
dismissed and Smith filed a malicious prosecution claim against the officials
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because of the flagrant non-support charges. The circuit court found that the
officials were entitled to qualified immunity and dismissed Smith's claim.
In affirming the circuit court, this Court agreed that the officials were
entitled to qualified immunity because there was sufficient evidence to bring the
charges against Smith and the defendants had acted in good faith. In fact, this
Court specifically noted that there was no "evidence that [the officials] acted with a
corrupt motive." Id. at *4. Smith is easily distinguished from the matter before us.
Unlike in Smith, the trial court herein found that there was sufficient evidence of
malicious intent to permit the matter to proceed. Therefore, Smith is not
persuasive.
Howell involved entitlement to immunity by a prosecutor, not police
officers; and therefore is distinguishable. Furthermore, the federal district courts in
Howell and Caudill found that the plaintiff had not established the elements
necessary to make a claim for malicious prosecution. The circuit court herein,
when it denied the appellants' motions for summary judgment on O'Daniel's
malicious prosecution claims, came to the opposite conclusion. Therefore, Howell
and Caudill are also not persuasive.
Finally, O'Daniel filed a motion to dismiss this appeal approximately
one month before oral arguments. In support of his motion, O'Daniel cited to a
recent opinion by another panel of this Court, wherein this Court remanded an
appeal to the circuit court for additional findings on the issue of qualified
immunity. In that case, there were a number of issues in addition to qualified
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immunity and it was not clear if the circuit court had considered the issue of
qualified immunity in denying summary judgment. We do not believe that such a
remand is necessary in this case because it is clear to us that the circuit court
denied the appellants' qualified immunity motion for summary judgment.
Furthermore, we note that O'Daniel, while not formally withdrawing his motion
during oral arguments, indicated that the only "benefit" he believed he would
receive by a remand would be the passage of time prior to a final resolution.
Therefore, he indicated that he was not going to argue his position. For these
reasons, O'Daniel's motion to dismiss this appeal is denied.
CONCLUSION
Qualified immunity is available in claims sounding in negligence;
however, O'Daniel's claim of malicious prosecution does not sound in negligence.
To the contrary, it is an intentional tort, requiring proof of malice; and the trial
court believed there were genuine issues of material fact regarding malice on the
part of the appellants. To reiterate what we said earlier, we might have found
differently regarding the aforementioned; however, that issue is unfortunately not
before us. Therefore, although we would like to see this matter come to an end,
we hold that the appellants are not entitled to qualified immunity and we affirm.
Finally, for the reasons set forth above, we deny O'Daniel's motion to
dismiss this appeal.
ALL CONCUR.
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ENTERED: May 20, 2011
/s/ Michelle M. Keller
JUDGE, COURT OF APPEALS
BRIEFS AND ORAL
ARGUMENT FOR APPELLANT
GARY MARTIN:
BRIEF FOR APPELLEE:
William E. Johnson
Frankfort, Kentucky
BRIEF FOR APPELLANT
BOBBY MOTLEY:
Heidi Engel
Charles E. Johnson
Winchester, Kentucky
Daniel J. Canon
Thomas E. Clay
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Thomas E. Clay
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANT BOBBY MOTLEY:
Charles E. Johnson
Winchester, Kentucky
BRIEF FOR APPELLANT
MIKE SAPP:
Morgain M. Sprague
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLANT MIKE SAPP:
Scott Miller
Frankfort, Kentucky
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