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Wilson v. Clem

Court of Appeals of Kentucky

October 11, 2019



          BRIEFS FOR APPELLANT: Jude A. Hagan Lebanon, Kentucky

          BRIEF FOR APPELLEE: Erica K. Mack Lexington, Kentucky



          LAMBERT, JUDGE.

         Bobby Lee Wilson, Jr., has sought review of the summary judgment of the Boyle Circuit Court dismissing his claim for malicious prosecution against the Boyle County Sheriff's Department Deputy Dustin Clem.[1] We affirm.

         The underlying matter began with the filing of a complaint by Wilson on December 15, 2014, against Deputy Clem in his individual capacity, in which Wilson sought compensatory and punitive damages related to his criminal prosecution.[2] He alleged causes of action for malicious prosecution, defamation, false light, and trespass, stating that he was wrongfully arrested based upon false allegations that he had committed a felony. Wilson's claims for trespass and defamation were dismissed by summary judgment entered August 19, 2016, although the motion for summary judgment as to his malicious prosecution claim was denied as premature.

         In a renewed motion for summary judgment, Deputy Clem argued that he was entitled to a judgment as a matter of law and that he was entitled to qualified immunity from Wilson's suit. Wilson objected to the motion, arguing that he had set out a prima facie case for defamation and that Deputy Clem was not entitled to qualified immunity. In an order entered October 16, 2017, the circuit court granted summary judgment, concluding that Wilson failed to establish his claim for malicious prosecution because there was probable cause to support his arrest and that in any event Deputy Clem was protected by qualified immunity because he was performing a discretionary action in good faith when he executed the arrest warrant.

         Wilson moved the court to vacate its summary judgment, citing a change in the law for malicious prosecution cases as set forth in Martin v. O'Daniel, 507 S.W.3d 1 (Ky. 2016). In response, Deputy Clem stated that Wilson had misinterpreted the holding in Martin and had also failed to dispute the circuit court's rulings related to probable cause and qualified immunity. The circuit court denied Wilson's motion in an order entered January 18, 2018, noting that Wilson failed to file a brief within thirty days explaining how Martin affected its decision pursuant to its direction. This appeal now follows.

         On appeal, Wilson argues that summary judgment was improper on his malicious prosecution claim and that Deputy Clem was not entitled to immunity. He has not addressed the dismissal of his trespass and defamation claims.

         We shall address Wilson's second argument first, in that it encompasses a procedural issue that would ordinarily be determinative in this case. In his prehearing statement, Wilson listed the issue he proposed to raise on appeal as follows:

#7. Issues proposed to be raised on appeal.
Whether an indictment, which is based on "misleading or inaccurate" information, rises to probable cause thus exonerating the police against the claim for malicious prosecution, especially when "misleading or inaccurate" information was knowingly utilized. Although this case is technically not one of first impression, the case law definitely changed during the pendency of this action in the Boyle Circuit Court.

         Kentucky Rules of Civil Procedure (CR) 76.03 addresses the prehearing conference process in the Court of Appeals and requires the appellant in subsection (4)(h) to include "[a] brief statement of the facts and issues proposed to be raised on appeal, including jurisdictional challenges[.]" CR 76.03(8), in turn, provides that "[a] party shall be limited on appeal to issues in the prehearing statement except that when good cause is shown the appellate court may permit additional issues to be submitted upon timely motion." Wilson failed to list the qualified immunity issue in his prehearing statement, and even a strained reading of the proposed issue he did raise cannot encompass that issue. He also did not seek permission to raise the issue for good cause. Therefore, we may not consider that issue on appeal. Sallee v. Sallee, 142 S.W.3d 697, 698 (Ky. App. 2004) ("Since that issue was not raised either in the prehearing statement or by timely motion seeking permission to submit the issue for 'good cause shown,' CR 76.03(8), this matter is not properly before this court for review.").

         In the October 17, 2017, judgment, the circuit court addressed the qualified immunity issue, holding that Deputy Clem was entitled to protection as "the execution of the arrest and search warrant, seizing the plaintiff's property, and arresting the plaintiff, were discretionary acts that were within the defendant's authority as a police officer and taken in good faith." Because he failed to list this issue in his prehearing statement, Wilson would not normally be permitted to seek review of this ruling, and we would be constrained to affirm the judgment on appeal.

         However, our Supreme Court's opinion in Martin, supra, effectively eliminates the qualified immunity defense in malicious prosecution claims.

Acting with malice and acting in good faith are mutually exclusive. Malice is a material fact that a plaintiff must prove to sustain a malicious prosecution claim. [Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981)]. But, it is also a fact that defeats the defendant's assertion of qualified official immunity. Official immunity is unavailable to public officers who acted "with the malicious intention to cause a deprivation of constitutional rights or other injury . . . ." [Yanero v. Davis, 65 S.W.3d 510, 523 (Ky. 2001)] (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
It thus becomes apparent that the very same evidence that establishes the eponymous element of a malicious prosecution action simultaneously negates the defense of official immunity. In simpler terms, if a plaintiff can prove that a police officer acted with malice, the officer has no immunity; if the plaintiff cannot prove malice, the officer needs no immunity.

Martin, 507 S.W.3d at 5. "Therefore, in the context of a malicious prosecution claim against state law enforcement officers, the issue of qualified official immunity is superfluous. . . . [W]hen a plaintiff must prove malice to sustain his cause of action, a defense of qualified official immunity has little meaning and no effect." Id. at 5-6. For this reason, the circuit court's ruling that Deputy Clem was entitled to qualified official immunity is superfluous, and Wilson's failure to list this as an issue in his prehearing statement is harmless ...

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