Thacker v. Walton

• Decision Date: 03 December 2020
• Docket Number: Case No. 118,301
• Citation: 499 P.3d 1255
• Parties: Kirt THACKER, Plaintiff/Appellee, v. Scott WALTON, individually and in his official capacity, Defendant/Appellant, and John Singer, individually, Defendant/Appellant, and Charles Rogers, individually, Defendant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

499 P.3d 1255

Kirt THACKER, Plaintiff/Appellee,

v. Scott WALTON, individually and in his official capacity, Defendant/Appellant,andJohn Singer, individually, Defendant/Appellant,andCharles Rogers, individually, Defendant.

Case No. 118,301

Court of Civil Appeals of Oklahoma, Division No. 3.

Decided: December 3, 2020

Order Awarding Attorney Fees: March 8, 2021

Mandate Issued: October 21, 2021

James W. Connor, Jr., Sidney D. Smith and Adam L. Wilson, RICHARDS & CONNOR, Tulsa, Oklahoma, for Appellant Walton.

Scott B. Wood, WOOD, PUHL & WOOD, P.L.L.C., Tulsa, Oklahoma, for Appellant Singer.

Brendan M. McHugh, Claremore, Oklahoma, and Dana Jim, Vinita, Oklahoma, for Appellee.

Opinion by Trevor S. Pemberton, Judge:

I

¶1 Kirt Thacker ("Plaintiff," "Appellee" or "Thacker") filed his Petition against the three named Defendants, Scott Walton ("Walton"), John Singer ("Singer") and Charles Rogers ("Rogers")¹ , on November 18, 2018, asserting claims for malicious prosecution, both state and federal, false light invasion of privacy, defamation (slander and libel), retaliation, abuse of process, civil conspiracy, breach of contract, breach of fiduciary duty, and violation of Thacker's state constitutional rights under article 2, § 7, due process, and § 30, unreasonable searches and seizures. Thacker filed a First Amended Petition shortly thereafter on December 13, 2018.

¶2 On August 16, 2019, the Rogers County District Court held a hearing to consider motions to dismiss² pursuant to the Oklahoma Citizens Participation Act ("OCPA"), 12 O.S. Supp. 2014 § 1430 et seq.³ The district court determined prior to the first witness being called at the August 16^th hearing that it would take judicial notice of what had been presented. The court then found the comments and statements of Walton involved matters of public concern and free speech; thus, the burden shifted to Thacker to "show, ‘by clear and specific evidence a prima facie case for each essential element of the claim[s] in question.’ Id . § 1434(C)." Southwest Orthopaedic Specialists, P.L.L.C. v. Allison , 2018 OK CIV APP 69, ¶7, 439 P.3d 430, 434.⁴

¶3 The district court did not issue a decision after the hearing, and the motion to dismiss was deemed denied by operation of law. Title 12 O.S. Supp. 2014 § 1437 provides:

A. If a court does not rule on a motion to dismiss filed pursuant to Section 3 of the Oklahoma Citizens Participation Act in the time prescribed by Section 5 of the act [30 days], the motion shall be considered denied by operation of law and the moving party may appeal .

B. An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action filed pursuant to Section 3 of this act or from a trial court's failure to rule on that motion in the time prescribed by Section 5 of this act.

12 O.S. § 1437(A)-(B) (emphasis added). The district court, by declining to issue an order after the August 16, 2019 hearing, put at issue in this appeal only the denial of the motion to dismiss pursuant to the OCPA.

¶4 Thacker's cause of action stems from accusations by Walton, Singer and Rogers that Thacker improperly and illegally using county property, such as a bulldozer, to modify a pond on property through which he ran his cattle operation. Thacker insisted he used the equipment on behalf of the county to address flooding issues on a nearby roadway and that addressing overflow at the pond was part of the flood control work.

¶5 Thacker was a County Commissioner for Rogers County, Oklahoma, serving from January 2007 to December 2014. He alleged Walton, the Rogers County Sheriff, as sheriff and in his individual capacity, Singer and Rogers conspired to maliciously prosecute him for the purported illegal use of county property, resulting in charges against Thacker for embezzlement of county property, embezzlement of equipment, materials and labor, 21 O.S. Supp. 2012 § 1451, and conspiracy to defraud Rogers County in violation of 21 O.S. 2011 § 424. November 13, 2017, Thacker entered an Alford plea to a misdemeanor. The felony charges and the second criminal complaint were dismissed as part of the plea agreement.

¶6 While running to retain his County Commissioner seat, Thacker lost in the primary in the summer of 2014. He attributed his loss to the cloud of these criminal accusations and a failed initiative petition, which Thacker believed was spearheaded by Walton and others.⁵

II

¶7 Based on the reasoning provided in Southwest Orthopaedic Specialists , 2018 OK CIV APP 69, ¶5, 439 P.3d at 433 (quoting in part Krimbill v. Talarico , 2018 OK CIV APP 37, ¶4, 417 P.3d 1240, 1244 ), a de novo standard of review is required, to wit:

It is clear that the OCPA provides a new summary process/dismissal procedure in certain cases, however, and that, traditionally, Oklahoma appellate courts have reviewed decisions pursuant to such procedures by a de novo standard. The OCPA also requires dismissal if a plaintiff fails to show a prima facie case, and is hence similar to a motion for directed verdict. Directed verdict challenges also are reviewed de novo . Finally, Texas, which has an almost identical act, has adopted a de novo standard of review. Hence, we find a de novo standard indicated by existing precedent and persuasive authority, and we adopt that standard here (footnote omitted).

We will apply this standard in the current case. "Issues of law are reviewable by a de novo standard. An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." Neil Acquisition, L.L.C. v. Wingrod Inv. Corp. , 1996 OK 125, n.1, 932 P.2d 1100.

III

¶8 Once Walton and Singer demonstrated the OCPA applied,⁶ the burden shifted to Thacker to show "by clear and specific evidence" the requirements of § 1434(C).⁷ The OCPA does not define "clear and specific evidence," and as the appellate court noted in Krimbill v. Talarico , 2018 OK CIV APP 37, ¶14, 417 P.3d at 1246, the phrase "clear and specific evidence" "has not previously appeared in published Oklahoma appellate case law." However, this court will apply the clear and specific evidence standard in a manner based on the reasoning provided in Krimbill , which presumes the "definition of ‘clear and specific evidence’ in § 1434(C) is in harmony with the established standard for prima facie case." Krimbill , 2018 OK CIV APP 37, ¶15, 417 P.3d at 1246.⁸ If Thacker establishes his claims in accord with § 1434(C), the next consideration to address would be whether Walton and Singer established by a preponderance of the evidence each essential element of a valid defense.

¶9 We deal first with Thacker's state malicious prosecution claim against both Walton and Singer.⁹

The plaintiff in a malicious prosecution action has the burden of affirmatively proving five elements: (1) the bringing of the original action by the defendant; (2) its successful termination in plaintiff's favor; (3) want of probable cause to join the plaintiff; (4) malice, and (5) damages. Towne v. Martin , 196 Okl. 510, 166 P.2d 98 (1946).

Young v. First State Bank, Watonga , 1981 OK 53, 628 P.2d 707, 709.

¶10 Failure to establish a prima facie case for any one element of the malicious prosecution claim requires dismissal of Thacker's claim under the guidelines of § 1434(C). Thacker's malicious prosecution cause must be dismissed due to failure to establish the second element. The termination of Thacker's prosecution for the criminal cases relating to his use of county property to modify the pond did not end in his favor. To the contrary, Thacker entered an Alford plea. Effectively, Thacker pled guilty to a lesser, misdemeanor, offense. See Martin v. Phillips , 2018 OK 56, ¶¶13-15, 422 P.3d 143, 148 ;¹⁰ Heck v. Humphrey , 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372-73, 129 L.Ed.2d 383 (1994). We find the district court's denial of Appellants' motion to dismiss with respect to the state malicious prosecution claim was in error.

¶11 We next examine Thacker's abuse of process claim. "The elements of an abuse of process claim are (1) the improper use of the court's process (2) primarily for an ulterior or improper purpose (3) with resulting damage to the plaintiff asserting the misuse." McGinnity v. Kirk , 2015 OK 73, ¶64, 362 P.3d 186, 203-04. "The quintessence of abuse of process is ‘not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends.’ " Greenberg v. Wolfberg , 1994 OK 147, 890 P.2d 895, 905 (quoting Heck , 512 U.S. at 486 n.5, 114 S.Ct. 2364 ).

¶12 The abuse of process Appellants allegedly committed against Thacker occurred in 2015, when criminal charges were initiated against him. The Oklahoma Supreme Court has determined an abuse of process claim accrues "when a plaintiff could have ‘first maintained the cause to a successful result.’ " Greenberg , 1994 OK 147, 890 P.2d at 898 (quoting Neff v. Willmott, Roberts & Looney , 1935 OK 119, 170 Okla. 460, 41 P.2d 86, 87 ). Under this rationale, the cause accrued no later than 2015, when the charges were brought against Thacker, not in 2017 when Thacker pleaded guilty to the misdemeanor charge. As a result, the statute of limitation for this claim expired in 2017, two years after it accrued, and the year before Thacker filed his Petition and First Amended Petition in 2018. Greenberg , 1994 OK 147, 890 P.2d at 898. Because Walton and Singer established by a preponderance of the evidence a valid defense, we find the district court's denial of Appellants' motion to dismiss with respect to Thacker's abuse of process claim was in error.

¶13 Thacker also alleges a false light claim against Walton for Walton's publicly critical evaluation of Thacker during a November 15, 2017 podcast.¹¹ The elements of a false light claim are:

"One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to

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