APPEAL FROM JEFFERSON CIRCUIT COURT
LAMBERT, JUDGE:
Bardstown Capital Corporation and Frank Csapo have appealed from the orders of the Jefferson Circuit Court granting the defendants' motion for summary judgment and dismissing their claim for wrongful use of civil proceedings and dismissing their claim for abuse of process. We affirm the dismissal of the abuse of process claim, and we reverse the summary judgment.
Bardstown Capital Corporation is a property development company with a principal place of business in Louisville, Kentucky, and Frank Csapo is its owner and chief executive officer. We shall collectively refer to these two parties as Bardstown Capital. On November 4, 2016, Bardstown Capital filed a complaint against several homeowners on Wingfield Road in Louisville who opposed one of its development and rezoning proposals (as detailed below) (collectively, the homeowners); Seiller Waterman, LLC, the law firm representing the homeowners in the zoning case; and Bill V. Seiller, an attorney with Seiller Waterman (collectively, Seiller Waterman). Bardstown Capital sought damages for wrongful use of civil proceedings in the continued opposition to the approved zoning changes, stating that it had incurred lost profits in the amount of $12 million and legal fees totaling $73,752.33 as of the time of the filing of the complaint.
By way of background, we shall rely upon the recitation of the facts as set forth in this Court's opinion in the homeowners' appeal from the zoning decision:
Bardstown Capital Corporation ("BCC") proposed to develop approximately 43.5 acres of property located in the southeast quadrant of the intersection of Bardstown Road and Interstate 265, and being bounded to the south by Wingfield Road. The proposed development, when complete, would contain a mixture of retail, restaurantand other commercial uses intended to serve the entertainment and shopping needs of nearby residents and the region as a whole. The proposed development site consisted of numerous individual parcels owned by the Appellees. Each of the Appellants owns real property on Wingfield Road, directly adjoining the proposed development site. BCC convened neighborhood meetings concerning the proposal to inform interested parties and solicit feedback in September 2008 and July 2009. The Stewarts and Watsons attended both meetings.
In furtherance of the development plan, in August of 2009, BCC filed an application with Louisville Metro Planning and Design Services requesting: a change in zoning for the subject property from R-4, R-5 and OR-3 to C-2 and OR-1; a change in the form district from neighborhood to regional center; and approval of a general development and subdivision plan. Following this filing, a public review of the case was conducted on December 10, 2009, by the Land Development and Transportation Committee ("LD&T") of the Louisville Metro Planning Commission. Notice of the meeting was mailed to first and second tier adjoining property owners, including each of the Appellants. At the hearing, a date of February 4, 2010, was scheduled and announced for the public hearing required pursuant to [Kentucky Revised Statutes (KRS)] 100.214, and the case was scheduled to return to LD&T on January 14, 2010.
On December 29, 2009, an official notice of the February 4, 2010, public hearing before the Commission was mailed by first class mail to all first and second tier adjoining property owners, including each Appellant, as required by KRS 100.214(2). Mauney claims to have never received this notice. On December 31, 2009, approximately twelve signs were erected on and around the property notifying the public of the February 4, 2010, hearing.
The case returned to LD&T on January 14, 2010, and the floor was opened for public comments. Although the Stewarts were present at the meeting, they did not offer suggestions or comments. LD&T again announced the February 4, 2010, public hearing date and scheduled the matter to return to LD&T on January 28, 2010, for further review. On January 22, 2010, a notification of the public hearing date was published in The Courier-Journal, the primary daily newspaper for Louisville.
At the January 28, 2010, LD&T meeting—attended by the Stewarts and Mauneys—additional public comments were fielded, including comments from Carolyn Mauney. Approximately twelve seconds after Mrs. Mauney concluded her remarks, the LD&T chairman announced the February 4, 2010, public hearing date.
The full Commission convened on February 4, 2010, and announced in open session that the public hearing would be continued to March 4, 2010, and ordered the matter returned to LD&T on February 25, 2010, for further review. Additional public comments were taken at the February 25 meeting. At the March 4, 2010, Commission meeting, approximately three hours of public testimony and evidence was taken. It was then announced the hearing would be continued to March 18, 2010, so additional work could take place. On March 18, the Commission announced the hearing would be continued to April 1. That hearing was again rescheduled to April 15, and the continuance was announced in an open session. The hearing was once again rescheduled to May 20, and the matter was returned to the May 13, 2010, LD&T meeting for further review. Additional public comments were fielded by LD&T on May 13 and an announcement was made in open session about the May 20, 2010, public hearing date.
Finally, on May 20, 2010, the Commission took approximately five and one-half hours of evidence and testimony, after which it unanimously recommended approval of the zoning change, form district change, and the general development and subdivision plan. The Commission forwarded its extensive written recommendation to the Council which then passed an ordinance approving the change in zoning and form district with only a single vote of nay.
On August 26, 2010, the Appellants filed a complaint and statement of appeal contesting the Commission's recommendation to approve the zoning and form district change and final approval of the Council's changes. Allegations were levied that the actions of the Commission and Council were erroneous, arbitrary and capricious, and done in violation of KRS Chapter 100. A lengthy period of discovery and motion practice ensued. Approximately three years later, both sides filed motions for summary judgment with supporting memoranda. After hearing oral arguments, the trial court granted summary judgment in favor of the Appellees.1 This appeal followed.
The issues raised in this appeal relate to the trial court's rejection of the Appellants' claims related to violations of the notice and certification requirements of KRS 100.214.
Mauney v. Louisville Metro Council, No. 2014-CA-000263-MR, 2016 WL 4255017, at *1-2 (Ky. App. Aug. 12, 2016) (footnotes omitted).
This Court affirmed on appeal, rejecting the three arguments the appellants raised. As to the first argument, this Court held:
The Appellants first argue the notice provisions of KRS 100.214(2) require actual receipt by adjoining landowners of the notice of public hearing, a task which was not complied with in the instant matter as the [Mauneys] averred they did not receive the notice which was mailed to them.2 Their contention focuses on the statute's use of the word "given" in relation to notice, and contend a person cannot be "given" notice if it is not placed in their possession or control. We believe this strained interpretation creates a higher burden than called for by the plain statutory language.
Id. at *3. "Contrary to the Appellants' assertion, the plain text of the statute does not indicate the Legislature intended to require the Commission to guarantee actual receipt of the mailed notices. The statute requires only mailing to interested parties 'by first-class mail' and certification that such task was accomplished." Id. at *4. "No ambiguity exists in the simple statutory language and we will not accept the Appellants' invitation to engage in logical gymnastics to graft an onerous burdenonto the statutory language when the General Assembly itself chose not to do so." Id.
As to the second argument, this Court held:
Next, the Appellants contend the Commission failed to comply with the certification of mailing requirements set forth in KRS 100.214(2). Although they admit a writing exists which asserts the notices were mailed, they contend it "falls woefully short of a certification." In support, they cite only the definition of "certification" from Black's Law Dictionary and an example of a more formal document issued by one of the planning technicians involved in this matter. Our review indicated that while the certification at issue could have been more thorough and formal, it meets the technical requirements of being "an official document stating that a specified standard has been satisfied." CERTIFICATION, Black's Law Dictionary (10th ed. 2014). Although the Appellants contend the writing at issue is inadequate, the text of the statute requires only certification of mailing but does not specify the manner of such certification. The handwritten and attested notation that the notices were mailed in this matter was sufficient to satisfy the basic statutory requirements. There was no error.
Id.
And finally, this Court rejected the third argument, which was that "noncompliance with the statutory notice and certification provisions resulted in material prejudice to [Appellants,] specifically by denying them the opportunity to testify...
