Christopher Stark v. Joshua Collins ( 2022 )

RENDERED: JULY 22, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0630-MR
CHRISTOPHER STARK AND
COURTNEY FUGATE APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 12-CI-03880
JOSHUA COLLINS APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
COMBS, JUDGE: This case involves claims for intentional infliction of emotional
distress and abuse of process filed by Christopher Stark and Courtney Fugate. The
Fayette Circuit Court entered summary judgment against them in favor of Joshua
Collins. Stark and Fugate now appeal. After our review, we affirm.
This is the parties’ second appearance before this Court. For the sake
of judicial economy, we incorporate the following paragraphs from our previous
Opinion affirming an earlier summary judgment of the Fayette Circuit Court
entered against Collins and in favor of Stark and Fugate.
Collins, who is African American, married Stark’s
ex-wife, Barbara, in July 2011. During that time, Stark
and his former spouse were involved in acrimonious
custody litigation involving their minor son. In August
2011, Stark filed a criminal complaint against Collins
regarding an altercation that occurred during a time-
sharing exchange. Stark’s sworn criminal complaint
stated, in part:
[I]n the parking lot of Church of the Savior
during the weekly transfer of my child
between my ex-wife and myself[,] [Collins]
stood outside the car asking me to roll down
the window. When I did he entered into a
verbally abusive monologue. I was videoing
the incident with my cellphone and told him
so. This did not give him pause. My child
was present in the car and he was aware of
this. He is under directive from [child’s
GAL][1] not to appear at exchanges because
of similar problems in the past. During his
outburst he suddenly reached into my car,
grabbed my cell phone and simultaneously
hit me in the face as he withdrew it. He
threatened to break it and bent it backward.
It no longer functions properly. He
eventually threw it at me and into my car. I
drove away and as I did I tasted blood in my
mouth. . . . The outside of my face was red
but no bruise. He then followed us out of
the parking lot making threatening gestures
and driving recklessly back for a mile.
1
Guardian ad litem.
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Fugate (Stark’s girlfriend), who was in the vehicle
during the incident, video-recorded the events and
submitted an affidavit corroborating Stark’s statement. A
Jessamine District Court judge authorized a warrant for
Collins’s arrest on charges of fourth-degree assault and
second-degree criminal mischief. After learning of the
warrant, Collins turned himself in to the police and was
released on bond shortly thereafter.
In December 2011, Collins filed a police report
and complaint with the Lexington-Fayette Urban County
Human Rights Commission, after his home and vehicle
were vandalized with racial slurs. The investigations
conducted by the police and the HRC failed to identify
the person responsible for the vandalism.
Stark’s criminal case against Collins was
ultimately set for a jury trial in April 2012; however,
Stark failed to appear on the day of trial because his son
was ill. At a subsequent show-cause hearing, the district
court excused Stark’s absence, but granted Collins’s
motion to dismiss the charges due to Stark’s failure to
appear at trial.
On August 24, 2012, Collins filed a complaint
against Appellees in Fayette Circuit Court alleging (1)
malicious prosecution, (2) fair housing discrimination
under KRS 344.280(5), (3) intentional infliction of
emotional distress, and (4) false imprisonment. After a
period of discovery, the trial court considered motions for
summary judgment filed by both parties. The court
ultimately issued an opinion and order granting summary
judgment in favor of Appellees on February 27, 2017.
Collins v. Stark, No. 2017-CA-000723-MR, 2018 WL 4522179, at *1 (Ky. App.
Sep. 21, 2018).
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In an Opinion rendered on September 21, 2018, we affirmed,
concluding that the circuit court had not erred by granting summary judgment to
Stark and Fugate and dismissing Collins’s claims against them. Discretionary
review was denied by the Supreme Court of Kentucky in October 2019, and our
Opinion became final on November 1, 2019. Following a pre-trial conference
conducted with respect to the pending counterclaims asserted against Collins by
Stark and Fugate, the Fayette Circuit Court ordered dispositive motions to be filed
on or before September 30, 2020.
Collins filed a timely motion for summary judgment. In his
memorandum in support of the motion, Collins observed that the only
counterclaim asserted by Stark was one for “harassment” and that the
counterclaims asserted by Fugate included an allegation of abuse of process and an
allegation of intentional infliction of emotional distress. Collins contended that he
was entitled to judgment with respect to these claims as a matter of law.
In response, Stark contended that he had asserted a viable claim of
intentional infliction of emotional distress. Stark argued that he had suffered
severe distress as a result of Collins’s outrageous conduct. Whether he had, he
contended, “is a question of material fact” sufficient to overcome a summary
judgment.
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Fugate argued that Collins made false and damaging allegations
against her both in this civil action and in the complaint filed with Kentucky’s
Human Rights Commission. She contended that these allegations constituted
abuse of process. With respect to the complaint filed with the Human Rights
Commission, Fugate argued that she was not subject to the Commission’s
jurisdiction and that there was not a good faith basis for alleging that she had
engaged in any prohibited conduct. With respect to Collins’s civil action against
her, Fugate argued that she had never been anything more than a potential witness
in the litigation between Stark and Collins.
Next, Fugate argued that statements which she made indicating that
she had never received any treatment, therapy, or medication as a result of the
parking lot incident should not be “dispositive of the determination of the
existence, amount, and effect of [her emotional distress]”; she also argued that the
fact that she had never had a conversation with Collins was irrelevant. She
claimed that whether Collins’s conduct in the parking lot could be considered
“outrageous” presented a genuine issue of material fact precluding summary
judgment. With respect to damages, Fugate contended that “[t]here are additional
facts that [she] will provide at trial to prove both the amount of damages as well as
their connection to [Collins’s] conduct.” She stated that “[t]he time to provide
evidence, dispute evidence, and evaluate evidence is at trial . . . .”
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In an order entered on May 4, 2021, the Fayette Circuit Court granted
summary judgment to Collins with respect to the claims asserted against him by
Stark and Fugate. The court concluded that Stark and Fugate had failed to present
any evidence to indicate that Collins’s conduct was outrageous or that the
emotional distress that they allegedly suffered was severe. The court held that
Fugate failed to present evidence sufficient to support her claim of abuse of
process. This appeal followed.
Summary judgment is properly granted 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.” CR2 56.03. Upon our review, we must consider whether the trial court
correctly determined that Collins was entitled to judgment as a matter of law. See
Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). Because summary judgment
involves only questions of law and not the resolution of disputed material facts, we
do not defer to the trial court’s decision. Goldsmith v. Allied Bldg. Components,
Inc., 833 S.W.2d 378 (Ky. 1992). Instead, we review the trial court’s
interpretations of law de novo. Cumberland Valley Contractors, Inc. v. Bell
County Coal Corp., 238 S.W.3d 644 (Ky. 2007).
2
Kentucky Rules of Civil Procedure.
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On appeal, Stark argues that the circuit court erred by granting
summary judgment because he suffered humiliation, lost work, and incurred legal
expenses as a consequence of: Collins’s conduct at the parking lot, Collins’s
decision to file a complaint against him with Kentucky’s Human Rights
Commission, and Collins’s decision to file a legal action against him in Fayette
Circuit Court. Before us, Stark again contends that whether he suffered severe
distress as a result of Collins’s outrageous conduct presents a genuine issue of
material fact that should be resolved by a factfinder. Fugate asserts the same
factual bases for her claim and argues that the conclusory statements that Collins’s
conduct was not outrageous and that her distress was not severe are insufficient
basis to justify summary judgment. She argues that these issues are “solely meant
to be determined at the discretion of the fact-finders of the Jury.” We strongly
disagree.
To make out a prima facie case of intentional infliction of emotional
distress (the tort of outrage), one must show: (1) that the wrongdoer’s conduct was
intentional or reckless and so intolerable that it “offends against the generally
accepted standards of decency and morality”; (2) that there was a causal
connection between the outrageous conduct and the emotional distress; and (3) that
the emotional distress was severe. Osborne v. Payne, 31 S.W.3d 911, 913-14 (Ky.
2000). Wholly contrary to the position adopted by Fugate, “[i]t is for the court to
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decide whether the conduct complained of can reasonably be regarded to be
so extreme and outrageous as to permit recovery.” Goebel v. Arnett, 259 S.W.3d
489, 493 (Ky. App. 2007).
We agree with the conclusion of the circuit court that Collins’s
conduct cannot reasonably be regarded as so extreme and outrageous as to permit
recovery. The tort of outrage has a highly restrictive application and an elevated
standard of proof. Id. As the Supreme Court of Kentucky observed in Goebel, 259
S.W.3d 493 (quoting Osborne v. Payne, 31 S.W.3d at 914):
[T]he tort is not available for “petty insults, unkind words
and minor indignities.” Kroger Company v. Willgruber,
Ky., 920 S.W.2d 61 (1996). Nor is it to compensate for
behavior that is “cold, callous and lacking sensitivity.”
Humana of Kentucky, Inc. v. Seitz, Ky., 796 S.W.2d 1(1990). Rather, it is intended to redress behavior that is
truly outrageous, intolerable and which results in
bringing one to his knees.
While the conduct complained of was doubtless aggressive, offensive, and even
alarming, it cannot be categorized as utterly outrageous as a matter of our legal
precedent regarding the tort of outrage. Moreover, with respect to Fugate’s claim,
it is undisputed that none of Collins’s conduct in the parking lot was aimed at her.
In fact, Collins never engaged with her at all. By Fugate’s own account, she was
merely a witness to the incident.
Additionally, it is worth noting that the tort of outrage was intended to
fill the gap left by outrageous conduct that harms but leaves a victim without an
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opportunity for recovery through the traditional common law torts. Bennett v.
Malcomb, 320 S.W.3d 136 (Ky. App. 2010). Where 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, but where the conduct was
not intended solely to cause extreme emotional distress in the victim, the tort is
unavailable. Banks v. Fritsch, 39 S.W.3d 474 (Ky. App. 2001). That is, emotional
distress that is incidental to the traditional torts of assault, battery, or negligence
falls short of the high threshold for the tort of outrage. Stark’s opportunity for
recovery was wholly tied to an action based on the traditional torts of assault and
battery. Therefore, he could not assert a viable claim for intentional infliction of
emotional distress.
Finally, neither Stark nor Fugate demonstrated that the emotional
distress alleged was sufficiently severe or serious. Osborne v. Keeney, 399 S.W.3d
1 (Ky. 2012). “Distress that does not significantly affect the plaintiff[’]s everyday
life or require significant treatment will not suffice.” Id. at 17. While Stark and
Fugate each contends that he/she suffered severe distress as a result of Collins’s
conduct, neither directs us to any affirmative evidence in support of the claim.
Their bare allegations are insufficient as a matter of law to meet the burden to
produce such evidence to the court. “The party opposing summary judgment
cannot rely on their own claims or arguments without significant evidence in order
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to prevent a summary judgment.” Blackstone Mining Co. v. Travelers Ins. Co.,
351 S.W.3d 193, 201 (Ky. 2010). Consequently, we conclude that summary
judgment was properly granted with respect to the claims of intentional infliction
of emotional distress.
Next, we consider Fugate’s contention that the circuit court erred by
granting summary judgment to Collins with respect to her claim for abuse of
process. Fugate contended before the circuit court that the allegations made
against her by Collins before Kentucky’s Human Rights Commission and in the
civil action before the circuit court were baseless and that she was entitled to
recover damages as a result. She argues in her brief that Collins filed his
complaint against her in Fayette Circuit Court for no other reason “than to
senselessly drag her through seemingly endless and costly litigation[.]”
The essential legal elements underlying the tort of abuse of process
are: (1) an ulterior purpose and (2) a willful act in the use of the process not proper
in the regular conduct of the proceeding. Bonnie Braes Farms, Inc. v. Robinson,
598 S.W.2d 765 (Ky. App. 1980). Asserting a meritless or vexatious claim or
cause of action cannot alone constitute an abuse of process. The claim arises only
where someone attempts to achieve an end through the use of the court’s process
that the court is unauthorized by law to order. Even where a party acts with
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malevolent intentions, a claim for abuse of process will not lie if he has done
nothing more than pursue the legal process to its authorized conclusion.
Simpson v. Laytart, 962 S.W.2d 392 (Ky. 1998). Because Fugate did not produce
evidence to show that Collins attempted to utilize the court’s process in any way
other than what is generally expected, Collins was entitled to judgment as a matter
of law with respect to her claim against him.
We affirm the summary judgment of the Fayette Circuit Court.
MAZE, JUDGE, CONCURS.
ACREE, JUDGE, CONCURS AND FILES SEPARATE OPINION.
ACREE, JUDGE, CONCURRING: I concur but write separately to emphasize the
distinction between Collins’ conduct in pursuing claims against Stark and Fugate,
on the one hand, and his conduct in the Church of the Savior parking lot, on the
other.
As to the first hand, Collins believes Stark and Fugate engaged in
actionable conduct – racially motivated vandalism – but is unable to prove it.
Stark’s and Fugate’s claims of harassment are based on Collins’ pursuit of that
claim and related matters (as described in Collins’ brief, page 1, footnote 2); those
claims are not based on Collins’ earlier conduct in the parking lot, although Stark
and Fugate seek to bootstrap it in to defeat summary judgment. The circuit court’s
proper application of law and this Court’s affirmance thwarts a chilling of the right
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to pursue claims based on sincere beliefs of wrongdoing. There is nothing
outrageous or intolerable about Collins’ pursuit of his claim. And so, I concur.
We are not required to review whether Collins’ behavior in the church
parking lot is outrageous or intolerable in civil society. The answer to that
question is obvious and the majority Opinion, in effect, says so by noting such
conduct is categorically tortious in the traditional sense of assault and battery.
For these reasons, I concur.
BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE:
Steven A. Wides Christopher D. Miller
Rawl Douglas Kazee Lexington, Kentucky
Lexington, Kentucky
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