Mosley v. Brock

• Decision Date: 05 October 2018
• Docket Number: NO. 2016-CA-001099-MR,NO. 2016-CA-001020-MR,2016-CA-001020-MR,2016-CA-001099-MR
• Parties: CHARLES MOSLEY & ROSEMARY MOSLEY APPELLANTS/CROSS-APPELLEES v. ALBEY BROCK & BRUCE NUNN APPELLEES/CROSS-APPELLANTS
• Court: Kentucky Court of Appeals

CHARLES MOSLEY & ROSEMARY MOSLEY APPELLANTS/CROSS-APPELLEES v. ALBEY BROCK & BRUCE NUNN APPELLEES/CROSS-APPELLANTS

NO. 2016-CA-001020-MR

NO. 2016-CA-001099-MR

Commonwealth of Kentucky Court of Appeals

OCTOBER 5, 2018

NOT TO BE PUBLISHED

APPEAL & CROSS-APPEAL FROM BELL CIRCUIT COURT

HONORABLE ROBERT V. COSTANZO, JUDGE

ACTION NO. 12-CI-00022

OPINION

AFFIRMING IN PART, REVERSING IN PART, & REMANDING

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BEFORE: CLAYTON, CHIEF JUDGE; JONES AND J. LAMBERT, JUDGES.

JONES, JUDGE: At the heart of this case is a road in Bell County. As part of a previous appeal, this Court determined that the road in question was a private drive and, therefore, had been improperly classified as a county road. Thereafter, Appellants, Charles and Rosemary Mosley, brought claims against Appellees, Albey Brock and Bruce Nunn, for trespass to real property, trespass to chattel, outrage, malicious prosecution, wrongful use of civil proceedings, and punitive damages. The circuit court granted summary judgment in favor of Appellees as to the malicious prosecution and wrongful use of civil proceedings claims; summary judgment was denied as to all other claims against Appellees. Following the circuit court's designation of its partial grant of summary judgment as a final and appealable order, Appellants appealed to this Court. Appellees bring a cross-appeal, pursuant to Breathitt Cty. Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009), challenging the circuit court's determination that they are not immune from suit under the doctrine of qualified immunity. Following a review of the record and applicable legal authority, we affirm in part, reverse in part, and remand.

I. BACKGROUND

Charles and Rosemary Mosley (the "Mosleys") own a piece of real property located at 34 Charles Mosley Road, Bell County, Kentucky. As Charles Mosley Road (the "Road") was a dead-end road giving access solely to their property, the Mosleys always believed that the road was a private drive. In July of 2010, a county bridge that allowed access to abutting property was destroyed. This property, owned by Ron and Terry Blevins, had never been accessed by the Road before. With the bridge destroyed, however, the Blevinses had no practical means of accessing their property. County officials requested permission from the Mosleys to extend the Road to give the Blevinses access to their property. This request was denied. The County, however, believed that the Road was a part of the county road system. This belief was based on the fact that the road map completed for Bell County by the Kentucky Transportation Cabinet in July of 1999 indicated that the Road was part of the county road system and designated it as road number 1310E. Further, the Road had been adopted into the county road system by the Bell County Fiscal Court in 1999. Therefore, despite the fact that the Mosleys had objected to the Blevinses' using the Road, the County accessed the Mosley property and began working on extending the road to the Blevinses' property.

Because of the Mosleys' objections, the Bell County Fiscal Court filed an action seeking a declaratory judgment that the Road was a county road and to prevent the Mosleys from obstructing access to the Road (the "2010 Action"). The Mosleys counterclaimed against the Fiscal Court and its members, in their official capacities, asserting claims of tortious conduct and property damage resulting from the illegal taking of their property. On cross motions for summary judgment, the trial court found that the Fiscal Court had adopted the Road into the county road system in 1999. Additionally, the trial court found that the Mosleys' counterclaims were barred due to improper service of process, as no summons had been issued to the Fiscal Court Members, and that the Fiscal Court and its members were entitled to sovereign immunity. By separate order, the trial court found that CSX Transportation, Inc.—which owned property next to the Mosleys' property and had been added as a defendant to the declaratory judgment action—was entitled to summary judgment as any road on its property was private.

The Mosleys filed a notice of appeal of the 2010 Action on January 3, 2012. On January 18, 2012, the Mosleys filed a civil complaint in Bell Circuit Court against County Judge Executive Albey Brock in his individual capacity. The complaint asserted numerous allegations against Brock, including that: he had abused his elective power; had disrupted the Mosleys' quiet enjoyment of their home; inflicted emotional distress on the Mosleys, destroyed the Mosleys property; caused continual trespass on the Mosleys' property; attempted to interfere with the Mosleys' contractual relationships; and caused wrongful civil proceedings to be filed against the Mosleys for his personal benefit. Following Brock's filing an answer to the complaint, the action was held in abeyance pending resolution of the Mosleys' appeal to this Court.

Immediately following the trial court's ruling that the CSX Transportation property was private, the Mosleys' former attorney wrote them a letter indicating that they could erect a fence at the boundary line of the Mosley property and the CSX Transportation property. Mr. Mosley did so. This effectively cut off the Blevinses' access to their property, as they were able to traverse only a short distance up the Road before being cut off. Unbeknownst to the Mosleys, however, Bell County entered into a lease with CSX Transportation on March 7, 2012, to use the portion of its property that allowed access to the Blevinses' property. This lease was not recorded. On March 13, 2012, Bell County Road Foreman Bruce Nunn was made aware that the Mosleys had erected a fence at the border of their property and the CSX Transportation property by Brock and Bell County Attorney Neil Ward. At Ward's direction, Nunn signed a criminal complaint against Mr. Mosley, which had been prepared by Ward's staff. That same day, an arrest warrant was issued for Mr. Mosley. Nunn and the sheriff went to the Mosley property where Nunn removed the chain to the gate, opened it, and tied it back to allow full access to the Road. Mr. Mosley was then arrested for obstructing a public highway and taken to jail.

By opinion rendered August 9, 2013, this Court held that the "trial court erred as a matter of law by concluding that [the Road] was properly adopted by the Fiscal Court as a county road" and reversed as to that portion of the judgment. This Court also concluded that the trial court erred in ruling that the Mosleys' counterclaims were barred due to improper service of process, as all named parties had waived the defect in service by filing answers. However, the Court held that the trial court was correct in its determination that the Mosleys' counterclaims against the Fiscal Court, Brock, and the Magistrates were barred by sovereign immunity.¹ The Kentucky Supreme Court denied discretionary review and all criminal charges against Mr. Mosley were subsequently dropped.

With this Court's determination that the Road was, in fact, a private road, the Mosleys moved the trial court to amend their complaint to add the individuals involved in Mr. Mosley's wrongful arrest as defendants. The trial court consolidated the civil action filed by Mr. Mosley with the 2010 Action, now on remand, and allowed the Mosleys to amend their complaint to add Nunn, in his individual capacity, as a defendant. Following additional discovery, the Mosleys filed a notice of clarification on March 10, 2016. Therein, the Mosleys clarified that they were withdrawing their claim for conversion, but asserting the following claims against the defendants: trespass to land; trespass to chattels; tort of outrage; tort of wrongful use of civil proceedings; tort of malicious prosecution; and punitive damages, attorney fees, litigation expenses, and costs. The Mosleys later amended the clarification to include a claim for false imprisonment.

On March 16, 2016, Brock and Nunn filed a joint motion and memorandum for summary judgment. In their memorandum, Brock and Nunn contended that all claims against them must be dismissed based on the doctrine of qualified official immunity. Additionally, they contended that the claims against Brock were barred by res judicata, as all of the claims asserted against him had occurred by the time the counterclaim and amended counterclaim had been filed in the 2010 Action. As to the Mosleys' claims for wrongful use of civil proceedings and malicious prosecution, Brock and Nunn contented that the Mosleys were unable to successfully assert all required elements of those actions. The Mosleys filed a response to the motion on April 5, 2016. Therein, they argued that Brock and Nunn were not entitled to qualified official immunity, as not only is the construction and maintenance of public roads a ministerial duty, but Brock and Nunn had performed those duties in bad faith. Additionally, the Mosleys argued that their claims against Brock were not barred by res judicata, and that genuine issues of material fact existed regarding their claims for malicious prosecution and wrongful use of civil proceedings.

The trial court entered an order granting summary judgment in part and denying summary judgment in part on May 11, 2016. The court found that Brock and Nunn could not claim the protection of qualified official immunity, as the trial court interpreted Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), as extending qualified official immunity only to claims sounding in negligence. Additionally, the trial court found that res judicata and issue preclusion did not bar the Mosleys' claims against Brock. As to the Mosleys' claims for wrongful use of civil proceedings and malicious prosecution, the trial court agreed with Brock and Nunn that the Mosleys could not make a showing of all elements required to successfully assert the claims and, therefore, dismissed them. Specifically, the trial court noted that the Mosleys could not show...