Davidson v. Castner-Knott Dry Goods Co., Inc.

• Decision Date: 28 April 2006
• Docket Number: No. 2005-CA-000259-MR,2005-CA-000259-MR
• Citation: 202 S.W.3d 597
• Parties: TAJA DAVIDSON, Appellant v. CASTNER-KNOTT DRY GOODS CO., INC., Appellee
• Court: Kentucky Court of Appeals

202 S.W.3d 597

TAJA DAVIDSON, Appellant v. CASTNER-KNOTT DRY GOODS CO., INC., Appellee

No. 2005-CA-000259-MR

Court of Appeals of Kentucky.

April 28, 2006.

John William Stewart, Louisville, Kentucky, Oral argument and brief for Appellant.

Robert E. Stopher, Louisville, Kentucky, Oral argument and brief for Appellee.

Before: COMBS, Chief JUdge; DYCHE AND HENRY, Judges.

HENRY, JUDGE:

Taja Davidson appeals from a January 28, 2005 order of the Warren Circuit Court granting summary judgment to Castner-Knott Dry Goods Co., Inc. as to Davidson's malicious prosecution claim. Upon review, we reverse and remand for further proceedings.

On October 2, 1997, Davidson reported to the Nashville Metropolitan Police Department that checks on her account at First Union National Bank of Tennessee had been stolen, and that her account there had been closed for approximately one year. The report resulted from Davidson's discovery that two of those checks had been presented to a grocery store and a Wal-Mart in Nashville.

On November 28, 1997, Castner-Knott accepted a check in the amount of $349.79 drawn on Davidson's First Union account. The check was dishonored by the bank and returned to Castner-Knott marked "Account Closed." Subsequently, on or about March 5, 1998, Timothy Bush — a loss prevention employee at Castner-Knott — appeared at the Warren County Attorney's office and signed a criminal complaint against Davidson. On April 8, 1998, the Warren County Grand Jury reported a True Bill against Davidson charging her with Theft by Deception over $300.00,¹ and a bench warrant was issued for her arrest.

On July 21, 2001, Davidson was a passenger in a car that was stopped in Blue Ash, Ohio, for an alleged traffic violation. A record check disclosed the Warren County bench warrant, and Davidson was arrested. Several days later, she appeared in court in Hamilton County, Ohio, where she waived extradition before being taken to Warren County by sheriff's deputies. She was subsequently arraigned and released from custody on July 27, 2001, by Warren Circuit Court Judge Thomas R. Lewis.

On August 29, 2001, the Commonwealth Attorney filed a written motion to dismiss the indictment against Davidson without prejudice. On September 4, 2001, at the scheduled pretrial conference, the Commonwealth Attorney told Judge Lewis that he sought to dismiss the case due to (1) Davidson's police report indicating that her checks had been stolen, and (2) the fact that Castner-Knott no longer did business in Warren County, so the Commonwealth did not have a witness. In response to the Commonwealth's motion to dismiss, counsel for Davidson moved the court to dismiss the indictment with prejudice, citing the Commonwealth's inability to go forward with the case and the injustice that had been caused to Davidson. On September 5, 2001, the court entered an order dismissing the indictment without prejudice, in accordance with the Commonwealth's request.

On August 30, 2002, Davidson filed suit against Castner-Knott in Warren Circuit Court alleging malicious prosecution and abuse of process. On July 24, 2003, Castner-Knott moved for summary judgment on the malicious prosecution claim on the basis that Davidson could not prove that the underlying criminal proceeding terminated in her favor, in part because she allegedly agreed to the Commonwealth's motion to dismiss without prejudice. On September 2, 2003, Judge Lewis entered an order denying the motion. Castner-Knott appealed the denial to this court and then to the Kentucky Supreme Court, but the appeal was rejected in both cases.

On September 29, 2004, following Judge Lewis' retirement, Castner-Knott renewed its motion for summary judgment. It reiterated the arguments made in its previous motion and additionally contended that Timothy Bush had probable cause to swear out a complaint against Davidson. Following an October 26, 2004 hearing and extensive briefing, Judge John R. Grise indicated that he would grant the motion at a December 16, 2004 pretrial conference. A written order to this effect was entered on January 28, 2005.

In this order, the trial court concluded that "Castner-Knott is entitled to summary judgment because Ms. Davidson has failed to show that the dismissal without prejudice of the indictment constitutes a termination of criminal proceedings in her favor." First — relying primarily upon Van Arsdale v. Caswell, 311 S.W.2d 404 (Ky. 1958) — the trial court held that, although a dismissal without prejudice is not final for purposes of the tort of malicious prosecution, Davidson still could have appealed the dismissal without prejudice. It also noted that a formal objection to the dismissal without prejudice is nowhere to be found in the record.

The trial court then disagreed with Davidson's argument that a dismissal without prejudice was a termination in her favor, citing to a passage in 52 Am.Jur.2d Malicious Prosecution § 40 (2000) that states: "Some types of terminations that do not satisfy the requirement for a favorable termination include . . . the striking of the case from the criminal docket with leave to reinstate." The court also cited to 52 Am.Jur.2d Malicious Prosecution § 34 and Van Arsdale for the proposition that "an indefinite continuance does not amount to an abandonment of prosecution that would permit maintenance of a malicious prosecution action."

The court also found — pointing to § 660(c) of the Restatement (Second) of Torts while indicating that it has never been adopted by a Kentucky appellate court — that Davidson was not entitled to relief because her indictment was not withdrawn because the Commonwealth thought she was innocent; instead, it "was dismissed because attainment of evidence necessary to fully prosecute her was not readily available." The court further held — citing to this same provision — that Davidson's indictment "was not abandoned out of mercy requested or accepted by the accused." In this context, the court concluded that the Commonwealth had to believe that Davidson was guilty; otherwise, it would not have dismissed her indictment without prejudice.

Consequently, the trial court held that "Davidson will not be able to prove that the indictment that was dismissed without prejudice constitutes a termination of proceedings in her favor, even if the facts indicate that the Commonwealth will more than likely never re-indict her." It continued: "From the Kentucky case law cited above, there are no genuine issues of material fact as to whether the `filing away' of an indictment constitutes nothing more than in [sic] indefinite continuance of the state's prerogative to bring charges against Ms. Davidson at a later date." The court finally concluded: "A dismissal without prejudice is neither final nor in Ms. Davidson's favor. Therefore, summary judgment in favor of Castner-Knott should be granted." This appeal followed.

On appeal, Davidson first argues that Castner-Knott's renewed summary judgment motion and the trial court's order granting it violate the "law of the case" doctrine. She specifically contends that the original order from Judge Lewis denying summary judgment was the "law of the case" pursuant to CR² 54.02(1).

As a general rule, "[t]he doctrine of law of the case establishes a presumption that a ruling made at one stage of a lawsuit will be adhered to throughout the lawsuit." Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 n. 4 (Ky.App. 2004). However, a judge does have the discretionary authority to reconsider a ruling. Id. "Generally, a judge may reexamine an earlier ruling and rescind it if he has a reasonable conviction that it was wrong and it would not cause undue prejudice to the party that benefited from it." Id. Moreover, and of particular relevance here, "[i]t is well established that a trial court may reconsider and grant summary judgment to a party subsequent to an earlier denial." Id.

We review a decision to reconsider under an abuse of discretion standard. Id. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004); see also Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994). After examining the record and the arguments of both parties, we do not believe that the trial court abused its discretion in deciding to reconsider its previous ruling. Judge Grise obviously felt that Judge Lewis' previous decision was wrong, and we do not believe that Davidson has produced enough substantive evidence of undue prejudice to merit a reversal on this ground. Accordingly, we turn to her remaining arguments.

Our standard of review as to cases where a summary judgment has been granted 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); CR 56.03. Summary judgment "is proper only where the movant shows that the adverse party could not prevail under any circumstances." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 479 (Ky. 1991). And, "[b]ecause summary judgments involve no fact finding, this Court reviews them de novo, in the sense that we owe no deference to the conclusions of the trial court." Blevins v. Moran, 12 S.W.3d 698, 700 (Ky.App. 2000).

"[T]here are six basic elements necessary to the maintenance of an action for malicious prosecution, in response to both criminal prosecutions and civil action." Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). They include: "(1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination of such proceedings in defendant's favor, (4) malice in the institution of such proceeding, (5) want or lack of...