RENDERED: AUGUST 18, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0437-DG
BEN MARTIN APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2018-CA-1260
SCOTT CIRCUIT COURT NO. 16-CI-00539
DURBIN WALLACE APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
AFFIRMING
The Kentucky Court of Appeals reversed and remanded the Scott Circuit
Court’s entry of summary judgment in favor of Officer Ben Martin of the
Georgetown Police Department. Relying on Martin v. O’Daniel, 507 S.W.3d. 1
(Ky. 2016), the Court of Appeals concluded Officer Martin was not entitled to
qualified official immunity on claims of malicious prosecution, abuse of
process, and defamation per se levied against him by Durbin Wallace. We
granted Officer Martin’s motion for discretionary review. Having reviewed the
record and the arguments of the parties, we agree Wallace did not adequately
state a claim against Officer Martin for abuse of process and affirm the Court of
Appeals’ determination that the deficiency is fatal to Wallace’s claim. We
further agree with the Court of Appeals that Officer Martin was not entitled to
qualified official immunity on the remaining claims levied against him, and
remand for further proceedings and development of the record as necessary.
Wallace was a school bus driver in Scott County for several years. On
August 27, 2015, Wallace ordered a five-year-old passenger who was causing a
disturbance to move to the front of the bus. A short time later, the child began
talking to and grabbing at another student. Wallace stopped the bus, forcibly
picked the child up, and moved him several rows back to an empty seat. The
event was recorded by security cameras mounted in the bus. The sound of the
child’s head striking the bus window and a faint cry can be heard on the
recording. Wallace was suspended as a bus driver on September 2 pending an
investigation into the incident.
Officer Martin, a police officer and school resource officer, was assigned
to conduct the investigation. After conducting several interviews and reviewing
the videotape with his supervisors and the Scott County Attorney, all agreed
probable cause existed to charge Wallace with assault in the fourth degree. An
arrest warrant was subsequently issued and signed by a judge of the Scott
District Court. Wallace was arrested at his home pursuant to the warrant by
Officer Martin and another as-yet-unidentified uniformed officer. As a result of
the arrest, Wallace was terminated from his job as a bus driver. At
arraignment, the charge of assault in the fourth degree was amended to
harassment (physical contact—no injury) and Wallace entered a plea of not
guilty. The Scott County Attorney later sought to amend the charge back to
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assault in the fourth degree, but the motion was denied. The matter went to a
jury trial on March 4, 2016, and Wallace was found not guilty.
Less than four months later, Wallace filed the instant suit against Officer
Martin and Scott County Board of Education Superintendent Patricia Putty,
alleging malicious prosecution, abuse of process, and defamation.1 Following a
period of discovery, Officer Martin moved for summary judgment based on
qualified official immunity and, alternatively, failure of proof by Wallace of the
elements of his claims including malice or a lack of probable cause. On July
18, 2018, over two years after the suit began, summary judgment was entered
in favor of Officer Martin. In its order, the trial court concluded the arrest
warrant sought by Officer Martin was valid and the actions he took to secure
the warrant were discretionary, done in good faith, and accomplished in the
course of his work as a police officer. It further found the record did not
contain a scintilla of evidence of maliciousness or bad faith. Based on those
circumstances, the trial court determined Officer Martin was entitled to
qualified official immunity and entered summary judgment as a matter of law.
Wallace appealed, and the Court of Appeals took a different view.
Finding good faith and malice to be mutually exclusive, most intentional torts
preclude acting in good faith, and relying on this Court’s decision in Martin, the
Court of Appeals concluded qualified official immunity did not shield police
1 Officer Martin was sued in his individual capacity as a police officer, while
Superintendent Putty was sued in her individual and official capacities. This opinion
concerns only those claims levied against Officer Martin as no judgment has yet been
entered regarding Superintendent Putty and she is not a party to this appeal.
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officers from malicious prosecution claims. If a plaintiff can prove an officer
acted with malice, entitlement to immunity is destroyed; conversely, if the
plaintiff cannot show malice, immunity becomes unnecessary. Based on these
conclusions, the Court of Appeals determined the trial court erred in granting
Officer Martin summary judgment on Wallace’s malicious prosecution claim.
The Court of Appeals further held Wallace’s defamation claim required proof of
actual malice such that qualified official immunity was inapplicable under
Martin and the trial court erred in not so finding. Finally, after reviewing
Wallace’s complaint, the Court of Appeals held Wallace had stated a claim for
abuse of process against Superintendent Putty but had not made the same
allegations against Officer Martin. Thus, it concluded the trial court correctly
dismissed that claim. This Court granted discretionary review.
Before turning to the merits, we find it important to note the briefs filed
by Officer Martin and Wallace each fail to comply with the mandates of CR2
76.12. Officer Martin includes no statement of preservation for any of his
arguments, CR 76.12(4)(c)(v); includes minimal citations to the trial court
record supportive of his statement of the case or arguments, CR 76.12(4)(c)(iv)
and (v); and does not include a copy of the opinion of the Court of Appeals in
the appendix, CR 76.12(4)(c)(vii). For his part, Wallace’s brief contains not a
single citation to the record. CR 76.12(4)(d)(iii). Wallace’s deficiency before this
Court is compounded by the fact he was chided by the Court of Appeals for the
same deficiency in his brief filed with that court. Although we choose not to
2 Kentucky Rules of Civil Procedure.
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impose penalties based on these shortcomings, we take the opportunity to
remind the parties and future litigants that failing to comply with the civil rules
is an unnecessary risk the appellate advocate should not chance.
It is a dangerous precedent to permit appellate advocates to ignore
procedural rules. Procedural rules “do not exist for the mere sake
of form and style. They are lights and buoys to mark the channels
of safe passage and assure an expeditious voyage to the right
destination. Their importance simply cannot be disdained or
denigrated.”
Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (quoting Louisville &
Jefferson Cnty. Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007)).
When a trial court grants a motion for summary judgment, the standard
of review for an appellate court is de novo because only legal issues are
involved. Isaacs v. Sentinel Ins. Co. LTD., 607 S.W.3d 678, 681 (Ky. 2020).
Summary judgment is appropriate where “the pleadings, depositions, answers
to interrogatories, stipulations, and admissions on file, together with the
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
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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).
Here, the trial court based its grant of summary judgment on Officer
Martin’s entitlement to qualified official immunity. As the Court of Appeals
correctly held, the trial court’s decision on immunity was incorrect as a matter
of law. Our decision in Martin plainly answered the question in the context of a
claim of malicious prosecution against police officers but likewise covered other
causes of action predicated on malice such as Wallace’s claim of defamation
per se.
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. Draisin], 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.
Therefore, in the context of a malicious prosecution claim against
state law enforcement officers, the issue of qualified official
immunity is superfluous. The same would also be true with
respect to any cause of action predicated upon malice instead of
negligence or some other basis of liability. We agree with the
officers’ assertion that qualified official immunity is not limited to
negligence actions. But, while absolute immunity will prevail even
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against acts that are maliciously motivated, Morgan & Pottinger,
Attorneys, P.S.C. v. Botts, 348 S.W.3d 599, 601 (Ky. 2011),
qualified official immunity yields to proof that a defendant’s actions
were malicious. Consequently, when a plaintiff must prove malice
to sustain his cause of action, a defense of qualified official
immunity has little meaning and no effect.
Martin, 507 S.W.3d at 5-6. Thus, on this authority, the trial court plainly erred
in determining Officer Martin was entitled to the cloak of qualified official
immunity on Wallace’s claims of malicious prosecution and defamation per se.
The Court of Appeals conducted a lengthy and thorough analysis on this point
and reached the correct result.
Additionally, as the Court of Appeals aptly noted, Wallace failed to allege
the elements of an abuse of process claim against Officer Martin. The only
allegations set forth in his complaint regarding abuse of process related solely
to Superintendent Putty. It is axiomatic a party must clearly allege facts and
circumstances demonstrating each element to pursue a claim against another.
Wallace did not. Based on this failure, the Court of Appeals correctly held the
trial court’s grant of summary judgment on the abuse of process claim as to
Officer Martin was not erroneous. Thus, that portion of the decision of the
Court of Appeals is likewise affirmed.
Finally, Officer Martin asserts the trial court’s entry of summary
judgment should be upheld on alternative grounds. He contends that even
after two years of litigation and discovery, Wallace has failed to provide proof of
essential elements of his claims such as subjective bad faith, objective bad
faith, absence of probable cause, or malice. In his view, because Wallace has
failed to meet his burden during this protracted period, Officer Martin argues
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remand is futile and summary judgment was appropriately granted even if the
trial court’s determination regarding qualified official immunity was improper.
However, Officer Martin overlooks a key facet of immunity defenses—the
suspension of discovery until the issue is finally decided.
“[T]he applicability of the qualified [immunity] defense is a question of
law to be decided prior to discovery.” Jefferson Cnty. Fiscal Ct. v. Peerce, 132
S.W.3d 824, 837 (Ky. 2004) (citations omitted).
“Absolute immunity refers to the right to be free, not only from the
consequences of the litigation’s results, but from the burden of
defending oneself altogether.” Fralin & Waldron, Inc. v. Henrico
County, Va., 474 F. Supp. 1315, 1320 (D.C. Va. 1979); 63C Am.
Jur. 2d, Public Officers and Employees, § 308 (1997). As stated by
the U.S. Supreme Court, the “essence of absolute immunity is its
possessor’s entitlement not to have to answer for his conduct in a
civil damages action.” Mitchell v. Forsyth, 472 U.S. 511, 525, 105
S. Ct. 2806, 2815, 86 L. Ed. 2d 411, 424 (1985). It allows the
possessor the right to avoid being “subjected to the cost and
inconvenience and distractions of a trial.” Tenney v. Brandhove,
341 U.S. 367, 377, 71 S. Ct. 783, 788, 95 L. Ed. 1019, 1027 (1951)
(legislators).
Immunity from suit includes protection against the “cost of trial”
and the “burdens of broad-reaching discovery” that “are peculiarly
disruptive of effective government.” Harlow v. Fitzgerald, 457 U.S.
800, 817-18, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 409-10
(1982) (qualified immunity for presidential assistants).
Lexington-Fayette Urb. Cnty. Gov’t v. Smolcic, 142 S.W.3d 128, 135 (Ky. 2004).
It is not merely immunity from liability which is protected by qualified official
immunity, but rather the entirety of the burdens of suit including discovery.
See Rowan Cnty. v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006). Thus, until the
threshold issue of immunity is determined, a case simply may not proceed, and
discovery is placed on hold.
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Here, Officer Martin improperly and unfairly attempts to place upon
Wallace a burden of substantiating his claims when Officer Martin’s assertion
of qualified official immunity has, itself, deprived Wallace of the opportunity to
develop the record and establish the elements of his claims. As noted by the
Court of Appeals, though two years of litigation has elapsed, only limited
discovery has occurred. Wallace has been unable to depose Officer Martin or
any other witnesses, has not been provided with the identity of the uniformed
officer present at his arrest, nor has he had access to two of the three video
recordings of the initial incident underlying this matter. At the hearing on
Officer Martin’s summary judgment motion, the trial court itself noted the
potential need for further discovery should the immunity issue be decided
against Officer Martin. Thus, Officer Martin’s request for this Court to sustain
the trial court’s summary judgment on alternative grounds is not well-taken.
Factual issues remain which can only be resolved through further discovery
and development of the record. Wallace should not be penalized for
deficiencies in the record which he has been precluded from developing.
Remand for further proceedings is required.
For the foregoing reasons, the decision of the Court of Appeals is
affirmed.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
L. Scott Miller
Sturgill, Turner, Barker & Moloney, PLLC
COUNSEL FOR APPELLEE:
Edward E. Dove
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Supreme Court of Kentucky
2020-SC-0437-DG
BEN MARTIN APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO. 2018-CA-1260
V. SCOTT CIRCUIT COURT NO. 16-CI-00539
DURBIN WALLACE APPELLEE
ORDER DENYING PETITION FOR REHEARING
The Petition for Rehearing, filed by the Appellee, of the Opinion of the
Court, rendered April 28, 2022, is DENIED. On the Court’s own motion, the
Opinion rendered in the above-styled action by this Court on April 28, 2022, is
hereby withdrawn and vacated and a new opinion issued.
All sitting. All concur.
ENTERED: August 18, 2022.
_______________________________________
CHIEF JUSTICE