Reshawnda Scott v. Imperial Recovery Agency, Inc. ( 2021 )

RENDERED: APRIL 16, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0398-MR
RESHAWNDA SCOTT APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCH PERRY, JUDGE
ACTION NO. 19-CI-000340
IMPERIAL RECOVERY AGENCY, INC. AND
RUSSELL LESLIE APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON,
JUDGES.
THOMPSON, L., JUDGE: Reshawnda Scott appeals from an order of the
Jefferson Circuit Court which granted summary judgment to Imperial Recovery
Agency, Inc. and Russell Leslie.1 The court’s order dismissed Appellant’s claims
1
Mr. Leslie is an employee of Imperial.
of malicious prosecution and negligent infliction of emotional distress.2 We find
no error and affirm.
FACTS AND PROCEDURAL HISTORY
In April of 2016, Appellant entered into a title-lien agreement with
Santander Consumer USA for the purpose of financing the purchase of a 2015
Chrysler 200. The agreement included terms indicating that the car would be
repossessed if Appellant defaulted on the payments. A couple months after
entering into the agreement, Appellant stopped making payments. Around the time
that Appellant defaulted on her loan, Santander assigned its interests under the
agreement to Innovate Loan Servicing Corporation.
Innovate directed Imperial to perform an involuntary repossession of
the vehicle. The repossession happened at Appellant’s place of employment.
Appellant was later able to track down the location of the car. Appellant claims
that she was able to go to the repossession location and retrieve the car without any
incident and without paying any fees. Appellees claim that someone
accompanying Appellant to the location brandished a gun and forced Imperial
employees to turn over the car. Imperial employees then called the police and
2
Appellant’s appeal only concerns the malicious prosecution claim. She has raised no
arguments regarding the negligent infliction of emotional distress issue.
-2-
reported the car as stolen. Appellees also filed a criminal complaint against
Appellant.
On August 22, 2016, an Imperial employee requested that police
accompany him to Appellant’s house in order to effectuate another repossession.
Once at Appellant’s residence, the police officer who accompanied the tow truck
driver discovered that the vehicle had been reported stolen. Appellant was arrested
and charged with receiving stolen property. The vehicle was also repossessed at
that time.
During Appellant’s probable cause hearing in the criminal division of
the Jefferson District Court, the officer who arrested Appellant testified about the
events which occurred on August 22, 2016. There was no testimony during the
hearing regarding the previous repossession or Appellant recovering her vehicle.
The district court found there was no probable cause for the arrest and dismissed
the case. The district judge made the following statement from the bench:
“If there is additional evidence or additional information that the lienholder has,
perhaps that they had already repossessed the car, and she came and stole it back,
any additional information can be taken direct through the Commonwealth
Attorney’s office.”
Following the dismissal of the criminal case, Appellant brought the
underlying action against Appellees alleging malicious prosecution and negligent
-3-
infliction of emotional distress. After some discovery, Appellees moved for
summary judgment. They argued that despite the district court’s dismissal of the
criminal charges, there was probable cause for Imperial to bring criminal charges
against Appellant and for the arrest because Appellant impermissibly took the car
from Imperial after it had been repossessed. The trial court agreed and held that
Appellant had no right to take possession of the car after it had been repossessed
without proper payment to her loan servicer. The trial court held there was
probable cause for the arrest and entered summary judgment in favor of Appellees.
This appeal followed.
ANALYSIS
The 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. . . . “The record must be viewed in a light
most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in
his favor.” Summary “judgment is only proper where the
movant shows that the adverse party could not prevail
under any circumstances.” Consequently, summary
judgment must be granted “[o]nly when it appears
impossible for the nonmoving party to produce evidence
at trial warranting a judgment in his favor[.]”
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citations omitted).
“Historically, the tort of malicious prosecution has been disfavored
because it runs contrary to the public policy supporting the exposure and
-4-
prosecution of criminal conduct. We express that disfavor by requiring strict
compliance with the prerequisites for maintaining a malicious prosecution action.”
Martin v. O’Daniel, 507 S.W.3d 1, 7 (Ky. 2016) (citations omitted).
A malicious prosecution action may be established by
showing that:
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 against whom it was
brought; and
5) the plaintiff suffered damages as a result of the
proceeding.
Id. at 11-12.
Here, the trial court only addressed the probable cause element of
malicious prosecution. We believe this element is dispositive in this case;
therefore, we will focus on it. “[A] prior finding of probable cause at a preliminary
hearing only raises a presumption that may be rebutted by evidence.” Craycroft v.
Pippin, 245 S.W.3d 804, 806 (Ky. App. 2008) (footnote omitted). We believe the
-5-
same is true for a prior finding of a lack of probable cause. Even though the
district court found no probable cause to substantiate the criminal charge, the
circuit court properly examined the issue again and found there was probable
cause. We agree with the circuit court.
Appellant was charged with receiving stolen property, but Imperial’s
criminal complaint alleged theft by unlawful taking. Kentucky Revised Statutes
(KRS) 514.030(1) defines theft by unlawful taking as follows:
Except as otherwise provided in KRS 217.181, a person
is guilty of theft by unlawful taking or disposition when
he unlawfully:
(a) Takes or exercises control over movable property of
another with intent to deprive him thereof; or
(b) Obtains immovable property of another or any
interest therein with intent to benefit himself or another
not entitled thereto.
We will now examine whether Appellees had probable cause to file
the criminal complaint against Appellant. “Probable cause, as often defined in this
court, means such ground as would induce a man of ordinary prudence to believe
that the person prosecuted had committed the crime charged.” Louisville & N. R.
Co. v. Sharp, 282 Ky. 758, 140 S.W.2d 383, 385 (1940). Here, discovery indicated
that Appellant’s vehicle had been properly repossessed by Imperial pursuant to the
title-lien agreement. According to that agreement, Appellant could recover the
vehicle only after she tendered a certain amount of money to her loan servicer.
-6-
Appellant made no payments when she recovered the car and took the car without
Imperial’s permission. Based on these facts, we believe Appellees had probable
cause to initiate a criminal complaint against Appellant. Furthermore, our holding
is supported by the statement made by the district court during the probable cause
hearing in the criminal action.
CONCLUSION
Based on the foregoing, we conclude that Appellees had probable
cause to file a criminal complaint against Appellant. Seeing as Appellant could not
satisfy the lack of probable cause element of malicious prosecution, the trial court
properly granted summary judgment, and we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Shaun A. Wimberly, Sr. B. Scott Jones
Louisville, Kentucky Louisville, Kentucky
-7-