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Littrell v. Bosse

Court of Appeals of Kentucky

July 26, 2019



          BRIEFS FOR APPELLANT: J. Dale Golden Kellie M. Collins Lexington, Kentucky

          BRIEF FOR APPELLEES: Charles D. Cole Derrick T. Wright M. Todd Osterloh Lexington, Kentucky



          SPALDING, JUDGE.

         Michael Littrell appeals from the summary disposition of his claims of contractual interference, outrage, witness intimidation, harassment, and official misconduct against Georgetown Police Chief Michael Bosse and the City of Georgetown. Having reviewed the record in the light most favorable to Littrell, we find no reversible error in any of the arguments presented and affirm the summary judgment of the Scott Circuit Court.

         Appellant Littrell is a former employee of the Georgetown Police Department. After leaving his employment as a detective with the department, Littrell became an instructor for Bluegrass Community and Technical College teaching criminal justice courses and was later hired as a professor at Georgetown College. At the time Littrell left his position with the police department, Greg Reeves was the police chief. The current chief, appellee Michael Bosse, replaced Reeves.

         During his time at the community college, Littrell worked with Chief Bosse to establish an internship program for criminal justice students. After leaving the community college to teach at Georgetown College, Littrell arranged to have the internship program follow him to his new employer. Apparently, on November 19, 2014, Chief Bosse invited Littrell to meet with him at the police station ostensibly for the purposes of discussing expansion of the internship program. The meeting, however, turned out to be a discussion of Littrell's Facebook posts concerning pending litigation between the police department and an officer who worked with Littrell when he was with the department. There are, of course, two different versions of how that conversation progressed, but Littrell claims Chief Bosse attempted to get him to lie during his upcoming testimony in that litigation and that he refused to do so.

         Two days after their meeting, Littrell's attorney sent Chief Bosse a letter about their conversation and warned him about interfering with his job at the college. However, either because he had already done so, or because he was undeterred by the letter, Chief Bosse contacted Jim Newberry, counsel for the college, with information about the Facebook posts that eventually reached Provost Rosemary Allen. Allen then sent an email to Littrell indicating that Newberry "apparently" expected her to "do something" about the posts. However, she also emphasized that the controversy appeared to be between Littrell and Chief Bosse and did not appear to have anything to do with the college. Allen closed the subject by assuring Littrell the college would protect his first amendment rights so long as he abided by the college handbook. Very soon thereafter, Littrell initiated the litigation which culminated in this appeal.

         Littrell insists that other faculty members told him that he was in trouble with the college and was going to lose his job. Essentially, he maintains that his life was not the same after those communications. Yet, on March 1, 2015, the date by which the college was required to take any personnel action, it did not do so and thereby reaffirmed Littrell's contract for another academic year. Nevertheless, in April 2015, Littrell resigned his position effective at the end of the academic year, electing not to continue his employment with the college.

         Again, prior to resigning his position, Littrell had already filed a five-count complaint. The first count alleged interference with his contractual relations with the college. Another count asserted the intentional infliction of emotional distress and the final three counts cited Kentucky Revised Statute ("KRS") 446.070 for the proposition that he was entitled to recover damages by reason of Chief Bosse's violation of three criminal statutes. After a period of discovery, appellees Bosse and the City of Georgetown moved for summary judgment which was granted on all counts.

         Littrell first argues in this appeal that the trial court erred in refusing to apply the Restatement (Second) of Torts §766A to his claim that Chief Bosse intentionally interfered with his contractual relations with the college. That section states: "One who intentionally and improperly interferes with the performance of a contract . . . between another and a third person, by preventing the other from performing . . . or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him." (Emphasis added.) Kentucky has yet to adopt that section of the Restatement. Whether the failure to do so is intentional or whether Kentucky courts simply have not had occasion to do so is the subject of debate between counsel. Littrell also argued that his claim was cognizable under recognized Kentucky claims for intentional interference with business relationships.

         The trial court based its decision to grant summary judgment on Littrell's intentional interference claim on the undisputed fact that Littrell did not lose his job. To the contrary, the college renewed his contract for another year after which he chose to resign. Looking at the evidence in the light most favorable to Littrell, it might be that Chief Bosse attempted to interfere with Littrell's contractual relationship with the college. However, even if he did, the fact remains that he was unsuccessful because the college renewed Littrell's contract. Harm without injury is not a tort. Queensway Financial Holdings Ltd. v. Cotton & Allen, P.S.C., 237 S.W.3d 141, 147 (Ky. 2007). Chief Bosse's actions did not cause him to lose his job; he quit. If he suffered pecuniary loss, it was because he resigned. It was not by reason of any action attributable to Chief Bosse.

         Littrell attempts to avoid the failure of this aspect of his claim by alleging that he was constructively discharged when conditions of his employment became intolerable. The only change in employment Littrell points to is the fact that he was "devastated" when the college replaced him as liaison with the police department ...

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