McCollum v. Garrett

• Decision Date: 21 April 1994
• Docket Number: No. 93-SC-083-DG,93-SC-083-DG
• Citation: 880 S.W.2d 530
• Parties: Charles R. McCOLLUM, III, Henderson County Attorney, Appellant, v. Georgia Fay GARRETT, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 530

880 S.W.2d 530

Charles R. McCOLLUM, III, Henderson County Attorney, Appellant, v. Georgia Fay GARRETT, Appellee.

No. 93-SC-083-DG.

Supreme Court of Kentucky.

April 21, 1994.

As Modified on Denial of Rehearing Sept. 1, 1994.

W. Kenneth Nevitt, C. Thomas Hectus, R. Thaddeus Keal, Williams & Wagoner, Edward H. Stopher, Boehl Stopher & Graves, Louisville, for appellant.

Jeanie Owen Miller, Owensboro, for appellee.

Michael E. Conliffe, Paul B. Whitty, Louisville, for amicus curiae, Kentucky County Attys. Ass'n.

D. Brent Irvin, G. Dennis Howard, Asst. Atty. Gen., Frankfort, Thomas J. Smith, III, Ky. Com. Atty's. Ass'n, Sp. Asst. Atty. Gen., Richmond, KY, for amicus curiae, Chris Gorman, Atty. Gen. and Ky. Com. Atty's. Ass'n.

LAMBERT, Justice.

This Court granted discretionary review to consider the extent to which a public prosecutor shall have immunity from civil liability for malicious prosecution. ¹ A separate question which must first be addressed is whether the complaint filed by appellee, Georgia Fay Garrett, sufficiently stated an individual, as opposed to an official capacity, claim against appellant, Charles R. McCollum, III. As this case was resolved by summary judgment in the trial court, the relevant testimony contained in Garrett's affidavit must be taken as true. ²

This claim for relief arose out of the following events: Two female prisoners were being escorted to a court appearance. In the courthouse yard, the prisoners were approached by a woman and a bearded man who hugged and kissed them and thereby transferred pills from their teeth to the prisoners. This act was witnessed by two women who reported the occurrence to Detective Cottingham and County Attorney McCollum. On receiving this information and suspecting a violation of the law with respect to promoting contraband, McCollum went with the two women to the courthouse yard in an effort to determine who had committed the acts. In the vicinity, McCollum found a cigarette case which he took to the courtroom. He inquired of those assembled to whom the cigarette case belonged and Tracy Griffin identified it as hers. McCollum then asked Ms. Griffin whether she had seen who had hugged and kissed the prisoners and she replied that the man's name was Blake and that the woman was Fay Garrett. In the courtroom, McCollum then called out the name of Fay Garrett and she responded.

What transpired thereafter is disputed. According to Garrett, she and McCollum went to the sheriff's office together. On arrival, Tracy Griffin, the eyewitness, immediately stated to McCollum, "She's not the one." Ms. Griffin then repeated this remark and was told by McCollum to sit down and shut her mouth. After further inquiring as to Garrett's identity and the identity of the man known only as Blake, McCollum left the sheriff's office and instructed Garrett to go into a side room in the sheriff's office and sit down. While in this room, Garrett claims she was rudely questioned by Detective Cottingham, and a considerable time later, Garrett's attorney, Bob Bowers, arrived. After Garrett had been fingerprinted and photographed, McCollum returned and asked Garrett if she had kissed her sister, one of the prisoners. When she responded that she had not, after a brief time out of the room, McCollum returned and said, "I'm sorry. I know you're not guilty." When Garrett expressed the assumption that she was not being arrested, McCollum explained, "I have to rush this because I had to stop the judge in the hallway as he was leaving and get the warrant signed." Other statements are attributed to McCollum which indicate that he knew Garrett was not the person who had passed the pills to the prisoners, but was causing her arrest upon his belief that she was protecting some other person.

As earlier indicated, McCollum's version of the facts differs substantially. He has stated that immediately after Garrett was identified by Griffin as one of the persons who had passed pills to the prisoners, he instructed his secretary to prepare a criminal complaint and arrest warrant for Garrett. Not until after the warrant had been signed by a judge commanding Garrett's arrest did he hear Tracy Griffin's statement that Fay Garrett was not the one who had committed the act.

From the foregoing, it is evident that there is a factual dispute as to whether McCollum procured Garrett's arrest after having been told he had the wrong person by the only person who had earlier named Garrett.

I.

Prior to reaching the immunity question, it is necessary to address McCollum's contention that Garrett's complaint is fatally defective for failing to assert a claim against him in his individual capacity. He contends that the claim is against him as an official of Henderson County and as such, he is entitled to the sovereign immunity of the county. See Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967), which held that Jefferson County, the Jefferson County Board of Education, and the Jefferson County Playground and Recreation Board were protected by the doctrine of sovereign immunity from their tortious acts.

For this contention, McCollum relies upon the failure of the complaint to specify individual capacity and its use of his official title in the caption and in paragraph 2. Without such specificity, he contends the claim should be construed as being against him in his official capacity, resulting in immunity.

In the caption McCollum is referred to as "Charles R. McCollum, III, Henderson County Attorney," and in paragraph 2, it is alleged that he is and was at all relevant times Henderson County Attorney. Otherwise, references to him in the complaint identify him only as defendant or defendant McCollum. In the ad damnum clause, judgment is sought only against "the defendants." ³ From the foregoing, it is clear that Garrett failed to expressly state whether her claim was against McCollum in his individual or official capacity.

McCollum relies on this Court's recent decision in Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., Ky., 805 S.W.2d 133 (1991), and our holding that a claim for personal liability had not been stated against the MSD board members. We said, inter alia:

We are persuaded by the failure to specify individual capacity in the heading, the lack of specificity in the body, and the failure to seek judgment against such individuals in the concluding demand, that the Complaint fails to state a separate cause of action for personal liability against any particular individual.

Id. at 139. Standing alone, the foregoing would appear to support McCollum's contention, but when read in context, the conclusion is otherwise. In Calvert, the claim was against the Louisville & Jefferson County Metropolitan Sewer District and its board members, together with the Louisville & Jefferson County Board of Health and its director of division of environmental health, as well as the Commonwealth of Kentucky, Natural Resources and Environmental Protection Cabinet, and its secretary. The ad damnum clause sought recovery from MSD, the Board of Health and the Cabinet, but did not mention the individuals. We concluded that the Calvert claim was, in reality, against the governmental entities and that failure to specify claims against the individuals resulted in the absence of any such claims. An earlier decision, Morgan v. O'Neil, Ky., 652 S.W.2d 83 (1983), reached a draconian result, but acknowledged that CR 8.01 requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." A proper approach is found in Smith v. Isaacs, Ky., 777 S.W.2d 912 (1989), in which we held the complaint sufficient to state a claim against the defendant for his individual negligence despite a possible construction that the allegations merely sought to pierce the corporate veil. We quoted from 6 Bertelsman and Philipps, Kentucky Practice Rules of Civil Procedure, and its discussion of the function of notice pleadings and concluded that

We no longer approach pleadings searching for a flaw, a technicality upon which to strike down a claim or defense, as was formerly the case at common law. Whereas the old common law demur searched the pleadings for a reason to dismiss, now a Motion to Dismiss is directed at the substance of the pleading. (Citation omitted.)

Smith v. Isaacs, 777 S.W.2d at 915. We have considered the federal authorities cited by the parties, but decline to follow what appears to be the more rigorous requirements of Lovelace v. O'Hara, 985 F.2d 847 (6th Cir.1993).

In our view, this issue should be resolved by a commonsense reading of the complaint and application of the Rules of Civil Procedure. While disclosure of McCollum's official position in the caption and in paragraph 2 creates a measure of uncertainty, the complaint otherwise states a straightforward claim against McCollum based upon his individual actions. Nowhere is there any allegation that Henderson County or its fiscal court is liable for damages. The relevant allegations of misconduct are directed at McCollum and Cottingham. ⁴ CR 8.06 requires that "All pleadings shall be so construed as to do substantial justice." This rule, sometimes called a "liberal construction" rule, requires that a pleading be judged according to its substance rather than its label or form. To construe this pleading as a claim against the defendants in their official capacity would result in the claim being barred. To construe it as an individual capacity claim permits the litigation to proceed toward the merits, a goal we have expressly embraced in other contexts. Ready v. Jamison, Ky., 705 S.W.2d 479 (1986), Crossley v. Anheuser-Busch, Inc., Ky., 747 S.W.2d 600 (1988).

Our examination of the record reveals no misleading of or prejudice to McCollum. We note that he timely and properly filed an answer to the complaint and did not move pursuant to CR 12.05 for a more definite statement, an approved method...