Thomas N. McKinney, Jr. v. Kentucky Neighborhood Bank, Inc.

RENDERED: DECEMBER 4, 2020; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2019-CA-1525-MR

THOMAS N. MCKINNEY, JR. APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 15-CI-001558

KENTUCKY NEIGHBORHOOD BANK,
INC.; MATT MARDIS; and JERRY
M. COLEMAN APPELLEES

OPINION
AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, KRAMER, AND MAZE, JUDGES.

KRAMER, JUDGE: Thomas McKinney, Jr., appeals from an order of the

Jefferson Circuit Court summarily dismissing his claims against the above-

captioned appellees. Upon review, we affirm. Much of the background of this

matter was discussed in a prior opinion from this Court:
The underlying action began with the filing of a verified
complaint in which McKinney, who is a licensed real
estate broker, sought damages against Kentucky
Neighborhood Bank, Inc. (KNB), Matt Mardis, and Jerry
M. Coleman. Coleman is a licensed and practicing
attorney, and Mardis works for KNB. In his complaint,
McKinney alleged that in July of 2012, he had been hired
by the owners to manage property in Meade County.
Two months earlier, KNB had filed a foreclosure action
on the same property to enforce a mortgage. In
September of that year, KNB obtained a judgment
permitting the property to be sold at a judicial sale. KNB
purchased the property at the Commissioner’s sale. The
Report of Sale was confirmed on September 20, 2012,
and a deed was prepared and approved. The deed was
recorded in the Meade County Clerk’s Office on October
11, 2012.

McKinney went on to allege that on September 19, 2012,
Coleman wrote a letter to him on behalf of KNB
accusing him of stealing fixtures from the property and
threatening legal action against him. That letter stated as
follows:

I am the attorney representing Kentucky
Neighborhood Bank who purchased the
property at the Master Commissioner sale in
the above-referenced lawsuit [KNB v.
Collins, Meade Circuit Court, Civil Action
No. 12-CI-00113], pursuant to a mortgage
that the Bank had on these premises. It had
been brought to my attention that you may
[have] allowed or been aware of fixtures
being removed from the premises, consisting
of toilets, water heaters, dishwashers, stoves,
microwaves, refrigerators, ceiling fans and
perhaps even other fixtures. Certainly you
had the keys to the premises and would have
been in a position to know of these fixtures
being removed. Taking these fixtures from

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 the premises is unlawful and the Bank will
not stand for it. They have directed me to
take legal action if all of these fixtures are
not returned at a designated time and place
to the premises for installation by the Bank.
We do not want them reinstalled, we want
them to be brought to the premises at an
appointed time. In addition, we want the
keys to the premises since my client
purchased the property and the Bank has a
right to those keys.

Please get in touch with me immediately
about this matter to avoid legal proceedings.

Coleman wrote a second letter several days later making
the same accusation and stating that witnesses saw him
take fixtures from the property. That letter provided as
follows:

Since I last talked with you on the phone we
have done some investigating and found
several witnesses who saw you taking
certain ones of these items from the condo.
We are also having a police report done on it
and once that is completed it will be taken to
the Hardin County Commonwealth
Attorney’s office for prosecution if these
items are not returned by the end of the
week. Please give me a call before then if
you have any intention of keeping this
matter out of the criminal courts.

McKinney contended that he had not stolen anything and
that KNB did not have legal or equitable title of the
property when the demand was made.

Mardis, as KNB’s agent, initiated a criminal action
against McKinney in Meade District Court, and
McKinney was subsequently charged with felony theft.

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As a result, McKinney was arrested at his place of
business, and while he was released, his liberty was
restricted by the conditions of his release, including
having to surrender his concealed carry weapon permit.
McKinney alleged that Mardis provided false or
misleading information at the probable cause hearing,
which led to a finding of probable cause and a referral to
the grand jury. The grand jury returned an indictment
charging McKinney with felony theft charges.[FN]

[FN] Criminal Action No. 13-CR-00021.

McKinney alleged that the criminal prosecution was
brought about by the defendants in order to extort money
from him and to gain an advantage in what he said should
have been a civil matter. The criminal charges were
dismissed on June 23, 2014, without a stipulation of
probable cause.

As a result of these factual allegations, McKinney filed
the above civil action seeking damages for malicious
prosecution, negligence, defamation by libel and slander,
outrageous conduct, and civil conspiracy. He demanded
compensatory and punitive damages. Coleman filed an
answer to the complaint and raised several affirmative
defenses, including that McKinney’s claim was barred by
the applicable statute of limitations and that he was
precluded from asserting his action because he paid
restitution in the amount of $3,000.00 to have the
criminal action dismissed. Because the criminal
proceeding was not terminated in McKinney’s favor, he
could not bring his claim.

In lieu of filing an answer, KNB and Mardis moved to
dismiss McKinney’s complaint pursuant to Kentucky
Rules of Civil Procedure (CR) 8.01 and CR 12.02. They
argued that McKinney could not prove a negligence
claim because he could not establish that a duty existed
between them or that there was a breach of any duty. In
addition, the one-year statute of limitations for personal

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injuries as set forth in Kentucky Revised Statutes (KRS)
413.140(1)(a) had expired. The limitations period began
to run on February 2, 2013, when he was indicted by the
grand jury, and the complaint was filed more than two
years later. As to McKinney’s defamation claim, KNB
and Mardis claimed that they were entitled to absolute
immunity for any statements made in the course of a
judicial proceeding. As with the negligence claim, KNB
and Mardis contended that the limitations period for this
claim had expired. McKinney’s outrageous conduct
claim also failed to include an allegation that they acted
with the intent to cause emotional distress or that he
suffered from severe emotional distress. His civil
conspiracy claim failed to allege sufficient facts that any
of the defendants conspired to commit malicious
prosecution and, in any event, the limitations period had
expired. Finally, McKinney’s malicious prosecution
claim failed because the criminal action was supported
by probable cause.

McKinney filed a response in opposition to the motion to
dismiss, arguing that in a light most favorable to him,
KNB and Mardis failed to establish that he was not
entitled to relief.

By separate motion, Coleman moved for a judgment on
the pleadings pursuant to CR 12.03, and while the
memorandum in support was not included in the record
on appeal, it appears that Coleman raised arguments
similar to those raised by KNB and Mardis in their
motion to dismiss. Attached to McKinney’s response
was a copy of the Commonwealth’s answer to the bill of
particulars in the criminal action. In the answer, the
Commonwealth included a list of items that had allegedly
been taken as well as the value of each item. The value
of the items totaled $7,465.00.

In an opinion and order entered November 16, 2015, the
circuit court ruled on Coleman’s motion for a judgment

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 on the pleadings. The court granted the motion, holding
as follows:

The thrust of Coleman’s argument rests on
the principle that, because McKinney issued
a check of $3,000 which resulted in the
dismissal of his criminal case in Meade
County, a claim of malicious prosecution
cannot survive, because “having bought
peace the accused may not thereafter assert
that the proceedings have terminated in his
favor.” Broaddus v. Campbell, 911 S.W.2d
281, 285 (Ky. App. 1995). McKinney
counters that, although he paid the $3,000,
this was not an admission of guilt which led
to the dismissal of charges, but rather a
preventative effort to end prosecution
without a comment on the merits of the
charges.[1]

1
Since the rendering of our earlier opinion in this matter, McKinney has, as discussed below,
taken to denying knowingly paying KNB any money prior to when his felony theft charge was
dismissed. This is a material deviation from his original position. In the August 14, 2015
response he filed to the appellees’ motions for judgment on the pleadings, McKinney
acknowledged – as indicated in the trial court’s November 16, 2015 order – that he knowingly
paid KNB $3,000 prior to when his felony theft charge was dismissed. There, in relevant part,
he stated:
Coleman’s argument in support of his motion to dismiss the
Malicious Prosecution claim is very simple-- he argues the claim
should fail because Mr. McKinney cannot prove the termination of
the judicial proceedings—the criminal action brought against him
in the Meade Circuit Court-- was in his favor. Coleman’s entire
argument in this regard is premised on his suggestion the criminal
charges against Mr. McKinney “. . . were only dismissed after
Plaintiff [Mr. McKinney] settled the matter by paying KNB $3,000
in restitution”. This argument must fail for a number of reasons.
...

[T]he money paid to KNB by Mr. McKinney was not the reason
why the criminal felony charges against Mr. McKinney were
dismissed. The motive for the criminal charges was not that Mr.
McKinney committed a crime and needed to be punished, but
rather, because Coleman and the other Defendants used the

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 Malicious prosecution is a claim “not
favored in the law.” Strohschein v. Crager,
258 S.W.3d 25, 30 (Ky. App. 2007). In
Broaddus, cited above, the plaintiff’s
malicious prosecution claim was dismissed
because the plaintiff had admitted to
probable cause for the criminal charges.
Despite the fact that McKinney maintains he
has not admitted to probable cause, the
money paid to secure the dismissal of the
charges means that the criminal case was not
resolved in his favor, which renders any
claim for malicious prosecution moot.
Regarding McKinney’s surviving claims, his
defamation [claim] must fail based on the
expiration of the one year statute of
limitations on defamation actions. His
outrage claim must fail, because emotional
distress damages are available through
traditional torts. Rigazio v. Archdiocese of
Louisville, 853 S.W.2d 295 (Ky. App.
1993). McKinney’s negligence claim must
fail because of negligence elements in other
claimed torts, and his civil conspiracy claim
fails both as a matter of law and under the
statute of limitations. Accordingly,
Coleman’s Motion for Judgment on the
Pleadings is granted.

The court made the order final and appealable. In a
separate order entered December 7, 2015, the court ruled
that McKinney’s claims against KNB and Mardis were
dismissed for the same reasons as set forth in the
November order, and thus both were considered under
CR 12.03.

criminal prosecution and the threat thereof to extort money in a
civil dispute from Mr. McKinney.

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McKinney v. Coleman, No. 2016-CA-000303–MR, 2017 WL 3129210, at *1-*3

(Ky. App. Jul. 21, 2017) (unpublished).

Following McKinney’s prior appeal, this Court held the circuit court

“should not have relied upon McKinney’s $3,000.00 payment as a basis to grant

CR 12.03 relief. Rather, the circuit court should have treated the motions as ones

seeking summary judgment and followed the procedure for such motions.” Id. at

*5. Accordingly, we declined to address any aspect of the circuit court’s order,

and instead vacated and remanded for further proceedings.

For over two years following our remand, the parties then conducted

further discovery regarding the facts surrounding the dismissal of McKinney’s

felony charge; the appellees once again moved to have McKinney’s claims

dismissed (this time, under the standard of CR 56); and, as indicated, the circuit

court summarily dismissed McKinney’s claims. This appeal followed. Additional

information, including the substance of what was gleaned through the parties’

further discovery, will be discussed in the context of our analysis.

When a trial court grants a motion for summary judgment, the

standard of review for the appellate court is de novo because only legal issues are

involved. Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App.

2004). Summary judgment is appropriate where “the pleadings, depositions,

answers to interrogatories, stipulations, and admissions on file, together with the

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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.” CR 56.03. The

movant bears the initial burden of demonstrating that there is no genuine issue of

material fact in dispute. The party opposing the motion then has the burden to

present, “at least some affirmative evidence showing that there is a genuine issue

of material fact for trial.” Steelvest, Inc. v. Scansteel Serv. Ctr, Inc., 807 S.W.2d

476, 482 (Ky. 1991) (citations omitted). A party responding to a properly

supported summary judgment motion cannot merely rest on the allegations in his

pleadings. Continental Cas. Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d

914, 916 (Ky. 1955). “If the summary judgment is sustainable on any basis, it

must be affirmed.” Fischer v. Fischer, 197 S.W.3d 98, 103 (Ky. 2006).

1. Malicious prosecution

To prevail on a claim of malicious prosecution, the claimant must

prove:

1) the defendant initiated, continued, or procured a
criminal or civil judicial proceeding, or an administrative
disciplinary proceeding against the plaintiff; 2) the
defendant acted without probable cause; 3) the defendant
acted with malice, which, in the criminal context, means
seeking to achieve a purpose other than bringing an
offender to justice; and in the civil context, means
seeking to achieve a purpose other than the proper
adjudication of the claim upon which the underlying
proceeding was based; 4) the proceeding, except in ex
parte civil actions, terminated in favor of the person

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 against whom it was brought; and 5) the plaintiff suffered
damages as a result of the proceeding.

Martin v. O’Daniel, 507 S.W.3d 1, 11-12 (Ky. 2016).

Here, as before, the circuit court’s decision to dismiss McKinney’s

malicious prosecution claims against the appellees focused upon the fourth above-

stated element. Specifically, the circuit court held that the appellees had adduced

affirmative evidence demonstrating McKinney had agreed to pay KNB $3,000 in

exchange for the dismissal of his felony charge and that McKinney had produced

no material evidence to the contrary. Consequently, it could not be said that the

criminal proceedings had terminated in McKinney’s favor and, accordingly,

McKinney’s malicious prosecution claim failed as a matter of law. See Broaddus,

911 S.W.2d at 285.

On appeal, McKinney offers two overarching reasons why, in his

view, the circuit court erred in this respect. First, McKinney asserts that in 13-CR-

00021, the criminal proceedings terminated in his favor because they were

dismissed “with prejudice,” and because the court’s one-sentence order in that

matter did not include a written stipulation to the effect that probable cause

supported the issuance of his indictment.

In making this argument, McKinney misapprehends what his burden

was below. As explained in Davidson v. Castner-Knott Dry Goods Co., Inc., 202

S.W.3d 597, 605 (Ky. App. 2006),

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 In Alcorn v. Gordon, 762 S.W.2d 809 (Ky. App. 1988), a
panel of this court cited to Comment a to the Restatement
(Second) of Torts § 660 for the proposition that
“[p]roceedings are ‘terminated in favor of the accused’ as
that phrase is used in § 653 and throughout this Topic,
only when their final disposition is such as to indicate the
innocence of the accused.” Id. at 811-12. Further citing
to Lackner v. LaCroix, 25 Cal.3d 747, 159 Cal.Rptr. 693,
602 P.2d 393 (1979), we elaborated on this principle,
stating:

It is apparent “favorable” termination does
not occur merely because a party
complained against has prevailed in an
underlying action. While the fact he has
prevailed is an ingredient of a favorable
termination, such termination must further
reflect on his innocence of the alleged
wrongful conduct. If the termination does
not relate to the merits—reflecting on
neither innocence of nor responsibility for
the alleged misconduct—the termination is
not favorable in the sense it would support a
subsequent action for malicious prosecution.

Id. at 812, citing Lackner, 159 Cal.Rptr. at 695, 602 P.2d
at 395 (Italics added). We therefore concluded that
“dismissal of a suit for technical or procedural reasons
that do not reflect on the merits of the case is not a
favorable termination of the action.” Id.

In other words, the onus was upon McKinney to affirmatively

demonstrate why his criminal charge was dismissed, not that it was dismissed.

Because the one-sentence order of dismissal entered in 13-CR-00021 did not on its

face reflect on either McKinney’s innocence or responsibility for his alleged felony

offense, it did not satisfy McKinney’s burden in that respect. Continuing in that

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vein, it likewise makes no difference that the order provided no stipulation to the

effect that probable cause supported the issuance of his indictment. No Kentucky

authority required such a stipulation, and its absence, which merely gave rise to

speculation, did not excuse McKinney from his burden to prove this element, along

with every other element, of his malicious prosecution claim. See CR 43.01; see

also O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (explaining speculation is

insufficient to overcome summary judgment).

Second, McKinney argues “there is a mountain of evidence to refute

that the [$3,000] payment was a quid pro quo payment” for the dismissal of his

criminal charge. This “mountain,” as he describes it in his appellate brief, consists

of the following: (1) his assertion that if he had stood trial for his criminal charge,

he would have prevailed – particularly because he had successfully moved to

exclude certain evidence from any potential trial prior to when his charges were

ultimately dismissed, and because in his view his charge lacked merit; (2) what he

describes as the absence of a written compromise agreement, memorialized of

record, regarding his criminal charge; and (3) his denial that he ever knowingly

paid KNB any money prior to when his felony theft charge was dismissed.

As to point (1), the disposition of McKinney’s alleged criminal matter

is at issue in this appeal, not the merits or the hypothetical outcome of a trial that

never occurred. McKinney’s mere assertion that his criminal matter would, could,

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or should have been dismissed on the merits is not evidence that it was dismissed

on the merits; it is mere speculation. McKinney also notes that the dismissal of his

criminal matter was prompted by a motion from his former counsel, Richard

Hardin. However, the motion to dismiss that Hardin filed on his behalf, which is

of record herein, likewise sheds no light upon why his criminal matter was

dismissed. In full, the motion stated: “COMES now your DEFENDANT,

THOMAS MCKINNEY (hereinafter “Defendant”), by and through Counsel,

respectfully requesting this criminal action be Dismissed with prejudice.”

As to point (2), McKinney is correct that no written compromise

agreement is memorialized of record regarding his criminal charge. However, as

the circuit court correctly observed, there is overwhelming and unrebutted

evidence that such an agreement existed, and that it effectuated the dismissal of

McKinney’s charge. We begin with the post-remand affidavit of David Williams,

the Commonwealth Attorney who prosecuted McKinney. He recalled that

McKinney’s criminal charge was dismissed as the result of a compromise. In

relevant part, he averred:

1. I am the Meade County Commonwealth’s Attorney,
and was the Meade County Commonwealth’s Attorney
during the criminal prosecution of Plaintiff, Thomas
McKinney, for theft by unlawful taking or disposition of
property valued over $500 (Meade Circuit Court
Criminal Case No. 13-CR-00021).

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 2. Mr. McKinney settled the aforementioned criminal
charge by paying restitution in the amount of $3,000 to
the criminal complainant, Defendant Kentucky
Neighborhood Bank. A copy of the check through which
Mr. McKinney made this payment is attached hereto as
Exhibit A. I was personally involved in the settlement
discussions with Mr. McKinney’s criminal defense
attorney, Hon. Richard Hardin.

3. The criminal prosecution of Mr. McKinney was
terminated for the sole reason that he paid restitution of
$3,000.00 to the criminal complainant. Mr. McKinney’s
payment of restitution of $3,000.00 to the criminal
complainant was the express condition for my agreement
to drop the criminal charge brought against him.

McKinney’s former defense attorney, Richard Hardin, likewise

provided a post-remand affidavit in support of McKinney’s response to the

appellees’ motion for summary judgment. There, in relevant part, Hardin averred:

4. I represented Thomas McKinney in Meade Circuit
Court Action No. 13 CR 00021, which is now the subject
of the above lawsuit.

5. The case against Mr. McKinney was dismissed by the
Court with prejudice, with no stipulation of probable
cause by Mr. McKinney. In my opinion, the
Commonwealth had no evidence to prove any of the
accusations against Mr. McKinney and prior to the
dismissal, I had made a motion to dismiss.

6. To the best of my recollection, there was no
agreement regarding the dismissal memorialized either in
writing or on the record. In my years of practice, I have
never seen where a case was dismissed in exchange for
some act by the Defendant without the requirement of a
stipulation of probable cause.

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 We have already addressed the salient points of Hardin’s affidavit. To

review, the merit of McKinney’s criminal proceeding was not relevant to the

appellees’ summary judgment motion. The “motion to dismiss” Hardin filed on

McKinney’s behalf provided no clue as to why the criminal proceedings were

dismissed. And, the absence of a “probable cause stipulation” in the court’s order

provided no inference that probable cause was absent. That said, Hardin’s

affidavit is more notable for what it does not say. In paragraph “6,” Hardin

represents he has no “recollection” of an “agreement regarding the dismissal

memorialized either in writing or on the record.” But, he does not deny the

existence of such an agreement.

Fortunately, we need not rely upon Hardin’s recollection. Instead, for

purposes of summary judgment, the appellees provided the circuit court two video

recordings from the Meade Circuit Court criminal proceedings. Both recordings

occurred on May 22, 2014. They feature the presiding judge entertaining motions

in a conference room; an assistant prosecuting attorney sitting near the judge at the

conference table; and Richard Hardin, who walks into the conference room during

each recording to inform the judge and assistant prosecuting attorney about his

continued progress and eventual success in dismissing McKinney’s felony charge

in exchange for a $3,000 payment to a Commonwealth’s Attorney referred to as

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“David.”2 And, in conformity with the substance of the May 22, 2014 recordings,

the appellees also presented the following:

2
The two recordings last only a few minutes each. The first begins at approximately 1:11 p.m.,
and the exchange was in relevant part as follows:

HARDIN: How you doing?
ASST. PROSECUTOR: Is this on McKinney?
HARDIN: What do you want me to do?
ASST. PROSECUTOR: Is this the total?
HARDIN: Do you want me to run it through my escrow account and bring you
over a check today?
ASST. PROSECUTOR: Yeah. Or – well, that would be to our office.
HARDIN: Yes, that’s what I’m saying, (inaudible) gave that –
ASST. PROSECUTOR: Okay. Yeah. You’d write it to our office and then – and
then take it over there. You can.
HARDIN: Okay.
ASST. PROSECUTOR: Or –
HARDIN: I mean, I just wanted to—I mean—
ASST. PROSECUTOR: So is that the total?
HARDIN: Yes, that was the total amount that we agreed on for the dismissal.
ASST. PROSECUTOR: David’s still here if you want to—
JUDGE: Who?
HARDIN: Thomas McKinney. We were going to dismiss it.
JUDGE: You were?
ASST. PROSECUTOR: Will you find David? I think he’s in there.
HARDIN: Sure.
JUDGE: (Inaudible).
HARDIN: I was just—we have a problem with the check being in my name
versus the Commonwealth or—
ASST. PROSECUTOR: Yeah (inaudible). Talk with David.
HARDIN: But I have the check.
ASST. PROSECUTOR: Okay. Because I wasn’t sure it was going to be
dismissed. I mean, it’s your guy’s deal, so make sure.

(Emphasis added.) The second recording, which began at approximately 2:25 p.m., provided the
following relevant exchange:

JUDGE: Call Mr. McKinney, Jr. I wonder whatever happened to my old buddy
Francie McKinney. He was here forever. Hell, he was just making a living off of
(inaudible) and Social Security at one time. (Inaudible) Francie. (Inaudible)
settle down. Rick.
HARDIN: How are you doing, Judge?

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 • A May 21, 2014 check, drawn from McKinney’s expense account at “Dream

House Real Estate,” made payable in the amount of $3,000 to “Rick

Hardin”;

• A slip indicating Hardin deposited McKinney’s check into an account at The

Cecilian Bank on May 27, 2014;

• A May 27, 2014 check from Hardin Law Office, LLC, and from its account

at The Cecilian Bank, made payable in the amount of $3,000 to

“Commonwealth Attorneys Office” with the memo line providing, “Thomas

McKinney”;

• A June 9, 2014 check 2530 from “David Williams Commonwealth

Attorney,” from a Bank of Clarkson account, payable in the amount of

JUDGE: Fine as frog hairs as they always (inaudible). What’s this on? Let’s see.
Is your man here?
HARDIN: Yeah. I mean, Dave—Dave told him to basically go on home. We’re
doing agreed order to dismiss the case. I got the $3,000 check in my pocket.
JUDGE: Oh, that was the—we had it set—I got it.
HARDIN: Yes, your Honor. And I just need to turn it into my escrow account,
write them a check—
JUDGE: (Inaudible).
HARDIN: —after it clears.
JUDGE: I got you.
HARDIN: Yes, your Honor. Do you want to just keep it active for two weeks
while—
ASST. PROSECUTOR: Yeah.
HARDIN: —we get the order going?
ASST. PROSECUTOR: Uh-huh.
JUDGE: I recall which one it is now. I suddenly recall.

(Emphasis added.)

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 $3,000 to “Kentucky Neighborhood Bank” with the memo line providing,

“CW vs. Thomas McKinney”; and

• A June 10, 2014 letter bearing the official letterhead of “The Office of David

M. Williams Commonwealth’s Attorney,” and addressed to “Kentucky

Neighborhood Bank Attn: Matt Mardis.” It lists as the subject, “RE: CW

vs. Thomas McKinney Meade Co Case No. 13-CR-00021,” and provides in

relevant part:

Dear Mr. Mardis:

Please find enclosed check no. 2530 in the amount of
$3,000.00 for payment from Thomas McKinney in the
above styled case. If you have any questions, please feel
free to contact me.

In sum, this evidence overwhelmingly and unequivocally

demonstrates McKinney’s charges were dismissed as the result of a compromise.

Which, in turn, leads to point (3). Despite acknowledging he paid his attorney

$3,000 and that his attorney apparently paid $3,000 to the Commonwealth’s

Attorney to compromise his criminal matter, McKinney argues – as set forth in his

post-remand affidavit – that he never knowingly paid KNB any money and never

actually authorized his attorney to compromise his criminal matter.

This argument lacks merit for two reasons. First, it is disingenuous.

See supra, Note 1. Second, despite McKinney’s self-serving averments regarding

Hardin’s actual authority to bind him to what was apparently an agreed judgment

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effectuated over five years ago, the circuit court committed no error in summarily

determining McKinney was nevertheless bound. Indeed, it cannot be contested –

considering what is set forth above and the ultimate dismissal with prejudice of

McKinney’s criminal charge – that the Commonwealth detrimentally relied upon

Hardin’s purported compromise authority. See, e.g., Clark v. Burden, 917 S.W.2d

574, 576-77 (Ky. 1996), explaining in relevant part:

If it should be determined that third parties who may be
dealing with such attorneys would be substantially and
adversely affected by unauthorized attorney settlements,
then the client employing the attorney should be bound.

...

[T]he client must be charged with responsibility for
having employed an attorney who failed to observe the
requirements of fidelity to the client's wishes. That point,
we believe, is when the rights of innocent third parties
are adversely affected.

In short, we have reviewed the circuit court’s disposition of

McKinney’s malicious prosecution claims against the appellees. We discern no

error.

2. Outrage

In his complaint, McKinney outlined his “outrageous conduct” claim

against the appellees by incorporating all of the allegations he had already set forth

in his malicious prosecution, negligence, and defamation claims, and then adding:

“The conduct of Defendants as above described constitutes outrageous conduct on

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the part of Defendants, which conduct damaged Mr. McKinney, entitling him to an

award of damages against Defendants, compensatory and punitive.” The circuit

court dismissed McKinney’s claims in this respect after observing that “outrage” or

“intentional infliction of emotional distress” (IIED) claims are unavailable where

“emotional distress damages are already available through McKinney’s traditional

tort claims of malicious prosecution and defamation.” On appeal, McKinney

argues in relevant part as follows:

Here however, it is quite clear Coleman intended to cause
extreme emotional distress when he wrote the letters
threatening to proceed with criminal prosecution of Mr.
McKinney[.]

...

Mr. McKinney clearly alleged in the Verified Complaint
that the actions of Coleman and his co-defendants were
willful, oppressive, malicious and undertaken
deliberately for the purpose of damaging him – and in
fact those actions did damage him when he charged [sic]
with committing crimes he did not commit and was
originally indicted.

...

Based on false information furnished to the authorities,
Mr. McKinney was charged with a crime which was held
over his head for over a year, indicted and deprived of his
civil rights, based on information that was completely
untrue.

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 The appellees argue – and we agree – that the tort of outrage or IIED

could not lie under the holding in Rigazio v. Archdiocese of Louisville, 853 S.W.2d

295 (Ky. App. 1993). In Rigazio, this Court held:

[W]here an actor’s conduct amounts to the commission
of one of the traditional torts such as assault, battery, or
negligence for which recovery for emotional distress is
allowed, and the conduct was not intended only to cause
extreme emotional distress in the victim, the tort of
outrage will not lie.

Id. at 299 (emphasis added). This Court noted the historical role of the tort of

outrage, referring to it as a “gap-filler” that provides “redress for extreme

emotional distress in those instances in which the traditional common law actions

did not[.]” Id. at 298-99. Such a conclusion was based on Kentucky’s adoption of

the Restatement (Second) of Torts (1965) § 46, Comment a., which explains:

[The tort of outrage] creates liability only where the actor
intends to invade the interest in freedom from severe
emotional distress. The fact that the actor intends to
invade some other legally protected interest is
insufficient to create liability where the only effect of his
act is the creation of emotional distress[.]

Rigazio, 853 S.W.2d at 298. See also Craft v. Rice, 671 S.W.2d 247, 251 (Ky.

1984) (adopting the Restatement definition of outrageous conduct causing severe

emotional distress).

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 In the case at bar, McKinney did not allege the appellees intended to

invade his right to freedom from emotional distress.3 Rather, the facts pled allege

that the emotional distress stemmed from alleged malicious prosecution and

defamation. Consequently, McKinney’s complaint did not support an independent

action for outrageous conduct. We discern no error.

3. Defamation

With respect to its dismissal of McKinney’s defamation claims, the

circuit court held as follows:

A libel or slander claim must be brought within one year
after the cause of action accrued. KRS § 413.140(1)(d).
Further, “it is the publication of the alleged libelous
matter that causes the defamation or injury thus
commencing the running of the one-year statute of
limitations.” Caslin v. General Electric Co., 608 S.W.2d
69, 70 (Ky. App. 1980). Here, the publication of the
alleged libelous matter was, at the very latest, when
McKinney was indicted by the Meade County Grand
Jury on February 4, 2013. The complaint was filed on
April 1, 2015, more than a year after the indictment.
Therefore, McKinney’s defamation claim is barred by the
statute of limitations.

In his brief before this Court, McKinney argues the circuit court erred

in dismissing his defamation claims for the following reasons:

3
To the extent his complaint ascribed any motive to the appellees regarding their alleged
infliction of his emotional distress, McKinney stated in Paragraph 21, “The prosecution of Mr.
McKinney by the Defendants was undertaken to extort and extract money from Mr. McKinney
and to gain an advantage in what should have been a civil matter and the actions of Defendants
in that regard was fraught with malice, and as a direct and proximate result thereof, Mr.
McKinney was damaged, entitling him to an award of damages against Defendants.”

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 Mr. McKinney submitted in the record documents
indicating the publication of slanderous information by
the Appellees continued, e.g., Coleman wrote Mr.
McKinney’s counsel on November 6, 2014. (TR 114) In
addition, if as Appellees maintain Mr. McKinney was
guilty of crimes and the Criminal Case was not dismissed
in Mr. McKinney’s favor, that dismissal did not take
place until June 23, 2014. As of that date, as well as in
November of that year, it is quite clear Coleman was
standing by his statements to the effect Mr. McKinney
was a thief. Since the action was filed on April 1, 2015,
it was timely and thus, summary judgment on this issue
was inappropriate as well and reversal is appropriate.

As to McKinney’s assertion that he “submitted in the record

documents indicating the publication of slanderous information continued,” there

is a reason why the circuit court did not address this point regarding the singular

document McKinney is referencing (i.e., the “November 6, 2014 letter from

Coleman to his counsel”). Namely, McKinney did not raise any argument

regarding this letter in his response to the appellees’ motions for summary

judgment. Accordingly, he cannot raise any such argument here. See Fischer v.

Fischer, 348 S.W.3d 582, 588 (Ky. 2011), abrogated on other grounds by Nami

Resources Co. L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323 (Ky. 2018)

(“It is an unvarying rule that a question not raised or adjudicated in the court below

cannot be considered when raised for the first time in this court.”).

Also, McKinney’s contention that the limitations period associated

with his claims of defamation was tolled pending the outcome of his criminal

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proceedings is without merit. As the circuit court correctly noted, publication of

the allegedly defamatory matter causes injury, thus commencing the running of the

one-year statute of limitations. Caslin v. Gen. Elec. Co., 608 S.W.2d 69, 70 (Ky.

App. 1980). The dismissal of McKinney’s criminal charge was not essential to

proving the elements of McKinney’s defamation claims.4 Therefore, the trial court

properly dismissed his defamation claims as untimely.

4. Negligence

McKinney asserted negligence claims against the appellees which, in

his complaint, simply incorporated his allegations underpinning his malicious

prosecution claims. Moreover, like malicious prosecution, he asserted his

negligence claims did not commence until his underlying criminal proceeding had

concluded. In their respective motions for summary judgment, the appellees

argued McKinney’s negligence claims failed for several reasons, including the

applicable statute of limitations and because no common law duty capable of

supporting a negligence claim was owed to McKinney under the circumstances.

Below, the circuit court disposed of McKinney’s claims on limitations grounds.

4
In Dunn v. Felty, 226 S.W.3d 68 (Ky. 2007), the Kentucky Supreme Court held that the one-
year statute of limitations for false imprisonment accrued when the plaintiff was released from
the allegedly illegal restraint, not upon the favorable termination of the criminal proceedings. Id.
at 72. The Court noted that, if there are pending criminal proceedings, the civil claim would
need to be stayed until the criminal case is ended. Id. at 74. Likewise, a defamation claim would
also need to be brought within one year of publication despite any pending criminal charges
arising from those matters.

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However, it is this Court’s prerogative to affirm on any ground supported by the

record,5 and we do so because no common law duty was owed relative to

McKinney’s negligence claims.

Generally speaking, “To recover under a claim of negligence in

Kentucky, a plaintiff must establish that (1) the defendant owed a duty of care to

the plaintiff, (2) the defendant breached its duty, and (3) the breach proximately

caused the plaintiff’s damages.” Lee v. Farmer’s Rural Elec. Co-op. Corp., 245

S.W.3d 209, 211-12 (Ky. App. 2007). In the context of this tort, as indicated,

McKinney believes an attorney and his client owe the individuals they sue or press

criminal charges against a common law duty to not file frivolous or malicious

lawsuits or charges.

With that said, roughly the same argument was made, and rejected, in

Hill v. Willmott, 561 S.W.2d 331, 335 (Ky. App. 1978), where we explained in

relevant part:

The key to the protection of the basic legal concept
allowing free access to the courts is the element of
“probable cause” in an action for malicious prosecution.
Any less demanding standard would make the attorney
“. . . an insurer to his client’s adversary that his client will
win in litigation.” See Tool Research & Engineering
Corp. v. Henigson, 46 Cal.App.3d 675, 120 Cal.Rptr. 291
(1975). To allow a party to bring a negligence action

5
“[I]t is well-settled that an appellate court may affirm a lower court for any reason supported by
the record.” McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009) (citation
omitted).

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 against the adverse attorney would have a chilling effect
on the number of meritorious claims filed and this cannot
be tolerated under our system.

Applying the foregoing principles to the case at bar, it is
readily apparent that Willmott [i.e., the attorney] did not
owe the alleged duty urged by Hill [i.e., the non-client
defendant/appellant] nor was the appellant an intended
beneficiary of Willmott’s services. Willmott’s alleged
failure to investigate the facts and law prior to the filing
of the suit in his name would have been material as to the
question of “probable cause” in a malicious prosecution
action if such had been pleaded. However, his alleged
failure to investigate was not a duty owing to Hill and as
such does not constitute a cause of action by him.

Because there exists no reason to deviate from Hill, we accordingly

find no error in the circuit court’s decision to dismiss these claims, either.

5. Civil conspiracy

Lastly, McKinney asserted “civil conspiracy” claims against these

appellees, which the circuit court likewise dismissed. In this respect, we likewise

discern no error. Civil conspiracy is not a free-standing claim; rather, it merely

provides a theory under which a plaintiff may recover from multiple defendants for

an underlying tort. See Davenport’s Adm’x v. Crummies Creek Coal Co., 299 Ky.

79, 184 S.W.2d 887, 888 (1945). Here, McKinney’s claims of civil conspiracy

have no tort to be based upon; as discussed, the circuit court properly dismissed his

malicious prosecution, outrage, defamation, and negligence claims. Therefore,

McKinney’s civil conspiracy claims cannot survive as a matter of law.

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 CONCLUSION

In light of the foregoing, we AFFIRM.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE, JERRY M.
COLEMAN:
David B. Mour
Louisville, Kentucky Edward H. Stopher
Todd P. Greer
Louisville, Kentucky

BRIEF FOR APPELLEES,
KENTUCKY NEIGHBORHOOD
BANK, INC. AND MATT MARDIS:

Benjamin Riddle
Louisville, Kentucky

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