RENDERED: APRIL 26, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0496-MR
HEATHER JONES, AS SISTER OF
NICOLE WAGNER, AND AS
ADMINISTRATRIX AND ON
BEHALF OF THE ESTATE OF
NICOLE WAGNER; AND BETTY
THOMPSON, AS MOTHER OF
NICOLE WAGNER APPELLANTS
APPEAL FROM HARRISON CIRCUIT COURT
v. HONORABLE JEFFERY L. SCHUMACHER, JUDGE
ACTION NO. 22-CI-00092
DONALD BOTTOMS; ACUITY, A
MUTUAL INSURANCE COMPANY;
HANNA CAMPBELL & POWELL,
LLP; AND KENNETH A.
CALDERONE APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
GOODWINE, JUDGE: Heather Jones, as Sister of Nicole Wagner (“Nicole”), and
as Administratrix and on Behalf of the Estate of Nicole Wagner; and Betty
Thompson, as Mother of Nicole Wagner (collectively “Jones”) appeal from a
Harrison Circuit Court order dismissing Jones’s complaint for failure to state a
claim against Donald Bottoms (“Bottoms”); Acuity, a Mutual Insurance Company;
Hanna Campbell & Powell, LLP; and Kenneth A. Calderone (collectively
“Appellees”). After careful review, finding no error, we affirm.
BACKGROUND
I. The original action – No. 20-CI-00085
The allegations in the current underlying civil action (No. 22-CI-
00092) arose out of the litigation of Jones’s claims in No. 20-CI-00085. This
Court explained the background of the underlying case in Jones v. Acuity, 658
S.W.3d 492 (Ky. App. 2022):
On the night of April 18, 2020, Bottoms, Wagner,
and friends were spending time together at Bottoms’s
place of business, Three D Plumbing, which also
contained an apartment inside. In the early hours of April
19, after spending time in the apartment (consuming food
and alcohol), Bottoms drove Wagner and her friends to
Wagner’s home. According to Bottoms, Wagner refused
to leave his vehicle, and he attempted to scare her out of
his vehicle with a gun he kept under a seat. It is unclear
exactly what happened, but during a struggle and/or
accident the gun discharged, and Bottoms shot Wagner,
killing her.
In January 2021, Bottoms pled guilty to second-
degree manslaughter. Kentucky Revised Statute (“KRS”)
507.040. This statute states, “[a] person is guilty of
manslaughter in the second degree when he wantonly
causes the death of another person[.]” KRS 507.040(1).
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...
In May 2020, Heather Jones (“Jones”), as
Administratrix of Wagner’s estate, filed a complaint in
Harrison Circuit Court for the wrongful death of her sister,
Wagner. Acuity, A Mutual Insurance Company,
intervened to litigate the insurance coverage issues on
behalf of the insured, Bottoms. At the time of the shooting,
Acuity insured Bottoms’s business, Three D Plumbing,
with two coverage parts: commercial general liability
coverage (“CGL”) and commercial auto coverage. Only
the CGL is pertinent to this appeal. The CGL policy
covers “bodily injury . . . caused by an occurrence that
takes place in the coverage territory” to an insured
individual “only with respect to the conduct of a business,”
but specifically excludes bodily injury “expected or
intended” from the “standpoint of the insured.”
....
In January 2021, the parties (and Bottoms) entered
a “Master Settlement” Agreement, which included, in part,
Wagner’s estate receiving the interest in Bottoms’s
commercial insurance policies. Thereafter, Jones moved
for summary judgment and declaratory judgment, which
the circuit court denied. Acuity cross-motioned for
summary judgment, which the circuit court granted. In
relevant part, the circuit court found that
the [CGL] policy language unambiguously
excluded intentional or expected injuries
such as the fatal shooting from coverage,
Bottoms’[s] guilty plea to wanton
manslaughter bars any re-litigation on his
intent during the shooting, and no genuine
issue of material fact exists regarding
whether Bottoms was promoting his business
on the night of the shooting, warranting
summary judgment on all of Acuity’s claims.
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Jones appealed.
Id. at 495-96.
The main issue in that appeal was whether “the social gathering on the
night of Wagner’s death was within the conduct of Bottoms’s plumbing business.”
Id. at 497. The circuit court’s summary judgment and this Court’s opinion were
largely based on competing affidavits. First, “Jones presented an affidavit from a
former Three D Plumbing client who stated (1) that she hired Bottoms after
attending a social gathering at Bottoms’s apartment, and (2) that Bottoms
frequently promoted his plumbing business at such events.” Id. Jones attached a
photograph “of Bottoms, Wagner, and three other people ‘poised in a luxury
bathtub in [ ] Bottoms’[s] place of business during the social gathering which
ended with the shooting of [Wagner].’” Id. In response, Bottoms filed an affidavit
stating, “that the events leading up to the shooting were not business related.” Id.
at 498. Though not discussed in this Court’s opinion, Bottoms attached to his
affidavit text messages, including explicit photos, sent by Wagner on the night of
the shooting to support his claim that he was not conducting plumbing business the
night he shot Wagner.
The circuit court entered a final and appealable order granting
summary judgment in favor of Acuity. This Court affirmed the circuit court’s
order holding “[b]ecause Bottoms’s actions on the night in question were not
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covered under the terms of the Acuity commercial policy, and the ‘expected or
intended’ exclusion would have been applicable if they were, Jones could not
prevail under any circumstances.” Id. at 499.
Though the events that gave rise to this case occurred during the
pendency of the underlying insurance coverage action, they were not part of the
summary judgment or appeal in that case. While the competing motions for
summary judgment were pending in the underlying action, Jones filed a motion to
amend the complaint to add claims stemming from the sexually explicit images of
Jones attached to Bottoms’s affidavit. Though the record from the underlying case
is not before us, we know from pleadings in this case that the affidavit and
supporting explicit photos were filed electronically instead of being conventionally
filed as sealed documents in contravention of Section 9 of the Administrative
Office of the Courts’s E-Filing Certification Training on p. 196. This mistake was
remedied by the affidavit and images being deleted from the electronic record and
then conventionally filed under seal. Nevertheless, Jones sought to add claims for
(1) intentional infliction of emotional distress; (2) negligent infliction of emotional
distress; (3) breach of duty of good faith and fair dealing; (4) first-party insurance
bad faith; (5) breach of fiduciary duty; and (6) tortious conduct in violation of the
Kentucky Penal Code.
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After the circuit court granted summary judgment in favor of Acuity,
Jones filed a motion seeking to stay its motion to file an amended complaint
pending the appeal of the circuit court’s judgment. Jones filed another motion to
amend the complaint while her motion to stay the proceedings was pending. On
June 13, 2022, the circuit court entered an order reserving Jones’s motion to file an
amended complaint to assert new claims pending appeal.
Following this Court’s opinion affirming the circuit court’s judgment,
the circuit court entered an order denying Jones’s motion to amend the complaint.
The circuit court found the motion was moot because Jones had filed a separate
action, No. 22-CI-00092, setting forth the same claims in the proposed amended
complaint.
II. The civil action on appeal – No. 22-CI-00092
On June 1, 2022, while the underlying insurance coverage case was
pending appeal, Jones filed the complaint in this case. The complaint concerned
the same conduct raised in Jones’s proposed amended complaint, i.e., the sexually
explicit images Wagner allegedly texted to Bottoms on the night she was killed,
which were attached to Bottoms’s affidavit in the original case. Jones made claims
for (1) intentional infliction of emotional distress; (2) negligent infliction of
emotional distress; (3) breach of duty of good faith and fair dealing; (4) violation
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of the universal duty of care; and (5) tortious conduct in violation of the Kentucky
Penal Code.
Defendants, Kenneth A. Calderone and Hanna Campbell & Powell,
LLP filed an answer.
Bottoms; Acuity; Kenneth A. Calderone; and Hanna Campbell &
Powell, LLP each filed a separate motion to dismiss. Each defendant attached
documents from the underlying action (excluding the explicit photos), No. 20-CI-
00085, to their motion to dismiss.
On September 16, 2022, the circuit court heard arguments on the
motions to dismiss.
On October 25, 2022, the circuit court entered an order requesting
information from the Administrative Office of the Courts regarding whether a
record was available to show who viewed the text messages and images attached to
Bottoms’s affidavit in No. 20-CI-00085 before being deleted on June 9, 2021. On
November 3, 2022, an employee of AOC filed an affidavit and attached reports
showing who accessed the sealed documents before their deletion from the
electronic record. On December 12, 2022, the circuit court entered an order
permitting any party contesting the information in the affidavit of the AOC
employee to file written arguments by December 15, 2022. None of the parties
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contested the information in the affidavit, and the circuit court took the matter
under advisement after that deadline.
On April 3, 2023, the circuit court entered an order dismissing Jones’s
complaint. The circuit court found, construing the pleadings in the light most
favorable to Jones, that the judicial proceedings privilege wholly precluded Jones’s
claims even though they were incorrectly filed electronically. Additionally, the e-
filed images were only viewed by “Administrative Office of the Courts personnel,
attorneys of record, and attorneys employed by firms listed of record.” Record
(“R.”) at 399. Thus, Jones suffered no damages. The circuit court did not address
Jones’s other claims in its order. This appeal followed.
ANALYSIS
On appeal, Jones argues the circuit court erred in (1) incorrectly
applying Kentucky Rules of Civil Procedure (“CR”) 12.02 in dismissing the
complaint; and (2) finding the judicial proceedings privilege applied to preclude all
claims. Jones raises other arguments which were not addressed by the circuit
court, mooted by our analysis, and are unnecessary for the disposition of this case.
First, Jones argues the circuit court erred in incorrectly applying CR
12.02 in dismissing her complaint. Jones asserts that construing facts in her favor
precluded dismissal, which we will address further below. Additionally, Jones
argues the circuit court erred in applying CR 12.02 in dismissing the complaint
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because the motions to dismiss relied on matters outside the pleadings. The circuit
court relied on documents from No. 20-CI-00085, which the defendants attached to
their motions to dismiss. The defendants excluded the sealed documents from their
exhibits. Additionally, the circuit court relied on the affidavit from the AOC
employee and accompanying documents showing who viewed the sealed
documents in No. 20-CI-00085. Jones did not contest the circuit court’s
consideration of these documents in her response to the motions to dismiss nor
when allowed to contest the AOC affidavit.
“Kentucky Rule of Civil Procedure (CR) 12.02 mandates that a
motion to dismiss is converted to a motion for summary judgment if matters
outside the pleadings are presented to, and not excluded by, the circuit court.”
Schell v. Young, 640 S.W.3d 24, 33 (Ky. App. 2021).
A trial court is free to consider matters outside the
pleadings; however, doing so converts the request for
dismissal into a motion for summary judgment. CR
12.02; McCray v. City of Lake Louisvilla, 332 S.W.2d
837, 840 (Ky. 1960). Accordingly, “[t]he standard of
review on appeal of a summary judgment is whether the
trial court correctly found that there were no genuine
issues as to any material fact and that the moving party
was entitled to judgment as a matter of law.” Scifres v.
Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
Middleton v. Sampey, 522 S.W.3d 875, 878 (Ky. App. 2017). Thus, we review de
novo. Id.
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The records from No. 20-CI-00085 case attached to the motions to
dismiss are central to the claims in Jones’s complaint. Those “records are subject
to consideration without having to convert the motion under review to a summary
judgment motion.” Netherwood v. Fifth Third Bank, Inc., 514 S.W.3d 558, 564
(Ky. App. 2017). However, the AOC affidavit and attached records are matters
outside the pleadings, which “effectively converts a motion to dismiss into a
motion for summary judgment.” D.F. Bailey, Inc. v. GRW Engineers, Inc., 350
S.W.3d 818, 821 (Ky. App. 2011) (citing McCray v. City of Lake Louisvilla, 332
S.W.2d 837, 840 (Ky. 1960); CR 12.02.). Thus, “[t]he standard of review on
appeal of a summary judgment is whether the trial court correctly found that there
were no genuine issues as to any material fact and that the moving party was
entitled to judgment as a matter of law.” Sampey, 522 S.W.3d at 878 (quoting
Scifres, 916 S.W.2d at 781).
Second, Jones argues the circuit court erred in finding the judicial
proceedings privilege applied to preclude all claims. In Jones’s complaint and her
response to Appellees’s motions to dismiss, she asserted there was one distribution
of the explicit photos. For the first time on appeal, Jones argues there were four
illegal distributions of the explicit photos. “This Court has stated on numerous
occasions that ‘appellants will not be permitted to feed one can of worms to the
trial judge and another to the appellate court.’” Sneed v. University of Louisville
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Hospital, 600 S.W.3d 221, 228 (Ky. 2020) (citation omitted). Thus, we decline to
address the newly alleged illegal distributions and only consider whether the
judicial proceedings privilege applies to the e-filing of the explicit photos.
The prevailing rule regarding the judicial statements
privilege in Kentucky is that communications made
pursuant to judicial proceedings are absolutely privileged
even if otherwise defamatory. Maggard v. Kinney, 576
S.W.3d 559, 567 (Ky. 2019); Schmitt v. Mann, 291 Ky.
80, 163 S.W.2d 281, 283 (1942). This includes pleadings
and statements of witnesses. Maggard, 576 S.W.3d at
567.
New Albany Main Street Properties, LLC v. Stratton, 677 S.W.3d 345, 348 (Ky.
2023). For a communication “to fall within the ambit of the judicial statements
privilege,” it must meet two requirements:
First, the communication must have been made
“preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as part of a
judicial proceeding.” General Elec. Co. v. Sargent &
Lundy, 916 F.2d 1119, 1127 (6th Cir. 1990) (citing
Restatement (Second) of Torts § 587 (1977)). Second,
the communication must be material, pertinent, and
relevant to the judicial proceeding.
Id. at 349.
The long-standing rule is “that pertinent matter in pleadings, motions,
affidavits, and other papers in any judicial proceeding, is absolutely privileged.”
Schmitt, 291 Ky. 80, 163 S.W.2d at 283 (emphasis added) (citation omitted). The
images in question were attached to Bottoms’s testimonial affidavit. Bottoms filed
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the affidavit to disprove Jones’s argument that he was conducting business the
night he killed Nicole. The images in question were attached to his testimonial
affidavit as supporting evidence. Jones does not take issue with the testimony in
Bottoms’s affidavit, only the supporting images. Jones opened the door to the
testimony in Bottoms’s affidavit and supporting images when she filed an affidavit
and photo to support her argument that Bottoms’s conducted business the night he
killed Nicole.
Though the disputed documents are images and not written words,
they still constitute a communication as they were supporting evidence used to
communicate Bottoms’s position to the circuit court. The images satisfy both
requirements as they were filed during the pendency of a judicial proceeding and
were material, and relevant to it. The circuit court correctly found Jones’s claims
were precluded by the judicial proceedings privilege. Thus, the circuit court
correctly determined there was no genuine issue of fact, and Appellees were
entitled to judgment as a matter of law
The circuit court declined to address Jones’s remaining arguments in
its order dismissing the complaint. Jones’s remaining arguments are also moot
because the judicial proceedings privilege wholly precludes Jones’s claims. For
these reasons, we decline to address all remaining issues.
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For the foregoing reasons, we affirm the judgment of the Harrison
Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE
DONALD BOTTOMS:
David Vandeventer
Lexington, Kentucky Jason S. Morgan
Betsy R. Catron
Lexington, Kentucky
BRIEF FOR APPELLEES
KENNETH A. CALDERONE AND
HANNA CAMPBELL & POWELL,
LLP:
Larry C. Deener
Lexington, Kentucky
BRIEF FOR APPELLEE
ACUITY, A MUTUAL INSURANCE
COMPANY:
Judd R. Uhl
Cincinnati, Ohio
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