Vescovo v. Kingsland
| Decision Date | 29 December 2020 |
| Docket Number | WD 83324 Consolidated with WD 83335,WD 83349 |
| Citation | 628 S.W.3d 645 |
| Parties | Paul VESCOVO, Appellant, v. Robert D. KINGSLAND, Jr. and Dempsey & Kingsland, P.C., Respondents, Chad Gardner and Law Office of Chad Gardner, Respondents-Cross Claim Respondents; Linda Jepsen, Respondent-Cross Claim Appellant, v. Lauren Maberry, Defendant-Cross Claim Appellant. |
| Court | Missouri Court of Appeals |
Clayton E. Gillette, Kansas City, MO, for appellant Vescovo.
Stephen B. Millin, Jr., Kansas City, MO, for defendant-cross claim appellant Maberry.
James C. Morrow, Kansas City, MO, for respondents-cross claim respondents Gardner.
Taylor L. Connolly, Overland Park, KS, for respondents Kingsland.
Kimberly S. Humphrey, Gladstone, MO, for respondent-cross claim appellant Jepsen.
Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Mark D. Pfeiffer, Judge and Edward R. Ardini, Jr., Judge
Paul Vescovo ("Vescovo") appeals from the trial court's entry of summary judgment in favor of attorneys Chad G. Gardner and The Law Office of Chad G. Gardner, P.C. ("Gardner") and Robert D. Kingsland, Jr. and Dempsey & Kingsland, P.C. ("Kingsland"), and their client, Linda Jepsen ("Jepsen"), on Vescovo's claims of malicious prosecution and abuse of process. Jepsen and Lauren Maberry ("Maberry") each appeal the trial court's entry of judgment on the pleadings in favor of Gardner on their cross-claims for legal malpractice. Finding no error, we affirm.
During 2012, Matthew Hunter ("Hunter"), a deputy with the Clay County Sheriff's Office, worked after hours with Star Investigations, LLC, a private investigation business. James Murray ("Murray") owns Star Investigations. Murray initiated a private investigation into Jepsen in the spring of 2012. Jepsen attended several meetings with Murray, after he advised that it was in her best interest to do so. Hunter attended these meetings in his sheriff's uniform, introduced himself as a sheriff's deputy, and drove his patrol vehicle.
Hunter and Murray also initiated a private investigation into the death of Murray's daughter. Hunter and Murray went to Maberry's home and spoke to her minor daughter, who gave them Maberry's phone number and place of employment. On August 28, 2012, Hunter called Maberry and identified himself as a Clay County sheriff's deputy who was helping another police department investigate the death of Murray's daughter. Maberry refused to answer his questions. Murray also contacted Maberry and asked her questions which Maberry described as inappropriate and private.
On September 24, 2012, Maberry filed a complaint with the Clay County Sheriff's Office regarding Hunter's conduct. On November 5, 2012, the Clay County Sheriff's Office issued a "Professional Standards" summary report in response to Maberry's complaint, finding that Hunter had used county resources when performing private investigations.
On November 5, 2012, Vescovo was elected as the Clay County Sheriff, and was set to take office on January 1, 2013.
Vescovo defeated the incumbent Clay County Sheriff, Robert Boydston. While he was sheriff-elect, Vescovo performed transition functions from November 5 through December 31, 2012, including the selection of an undersheriff, major, and captains. Specifically, Vescovo interviewed and selected Hunter for a promotion to Captain in December 2012, effective January 1, 2013. During this same time frame, Vescovo counselled Hunter regarding Maberry's complaint, though Vescovo stated he was not disciplining Hunter.
After Vescovo became Sheriff, he stated that he took no further action to address Maberry's pending complaint. In January, 2013, Vescovo directed Hunter to obtain a Clay County Sheriff's Office ID badge for Murray. In April 2013, Vescovo approved a policy change allowing the employment of Clay County Sheriff's Office deputies as private investigators. Hunter then obtained permission from the Clay County Sheriff's Office to work as a private investigator for Murray's company, Star Investigations. Maberry stated that she continued to be concerned for her and her children's safety throughout 2013 because Hunter had not been disciplined and was instead promoted.
Maberry retained Gardner to investigate her concerns about Hunter's conduct. During this investigation, Gardner reviewed the November 5, 2012 report that had been prepared in response to Maberry's complaint. Gardner learned about Hunter's contacts with Jepsen from that report.
On October 20, 2014, Gardner filed suit in the United States District Court for the Western District of Missouri ("federal district court") on behalf of Maberry and Jepsen ("federal lawsuit"). The federal lawsuit named as defendants Vescovo in his official and individual capacities, Hunter in his official and individual capacities, the Clay County Sheriff's Office, Murray, and Star Investigations.
The claims against Hunter were resolved by settlement and dismissed with prejudice on March 29, 2015. In April, Kingsland joined Gardner in representing Jepsen and Maberry in the federal lawsuit. During a deposition of Maberry on April 3, 2015, Vescovo's trial attorney informed Maberry and Gardner that Vescovo intended to file suit for malicious prosecution. On May 20, 2015, the claims against Murray and Star Investigations were dismissed with prejudice, after a settlement.
On June 18, 2015, Gardner and Kingsland filed an amended complaint alleging claims for common law invasion of privacy and for violation of 42 U.S.C. section 1983 (" section 1983") against Vescovo in his official capacity and against Clay County, Missouri. The amended complaint also asserted the section 1983 claim against Vescovo in his individual capacity.
The federal district court granted summary judgment in favor of Clay County, Missouri and Vescovo in his official capacity with respect to all of the claims asserted in the amended complaint. The federal district court also entered an order granting judgment on the pleadings in favor of Vescovo in his individual capacity, because the factual allegations in the amended complaint depended on finding Vescovo vicariously liable for Hunter's actions, which the court held would not support recovery on a section 1983 claim.
On January 31, 2017, Vescovo filed suit in the Circuit Court of Jackson County, Missouri against Jepsen, Maberry, Gardner, and Kingsland. Vescovo asserted claims of malicious prosecution (Count II) and abuse of process (Count III) against Gardner and Kingsland. Vescovo asserted a claim of malicious prosecution against Jepsen and Maberry (Count I). All of Vescovo's claims complained about the fact that Vescovo had been named in the federal lawsuit in his individual capacity. Vescovo's lawsuit did not allege that it was malicious prosecution or an abuse of process to name him in his official capacity, or the other defendants, in the federal lawsuit.
Jepsen and Maberry each retained counsel to answer Vescovo's malicious prosecution claim and, among other things, asserted the affirmative defense of reliance on the advice of counsel. Jepsen and Maberry also filed cross-claims against Gardner asserting legal malpractice. The cross-claims alleged that Gardner pursued the section 1983 claim against Vescovo in his individual capacity without probable cause. Alternatively, the cross-claims alleged that even if there was probable cause to sue Vescovo in his individual capacity, Gardner abandoned Jepsen and Maberry by failing to appeal the dismissal of the section 1983 claim against Vescovo in his individual capacity, and by failing to advise Jepsen or Maberry of the potential ramifications of failing to appeal.
The parties filed multiple dispositive motions. Gardner and Kingsland filed motions for summary judgment alleging that Vescovo could not, as a matter of law, establish one or more of the essential elements of his claims of malicious prosecution and abuse of process. Specifically, Gardner and Kingsland alleged that Vescovo could not establish the essential elements of absence of probable cause and malice for the malicious prosecution claim, and that Vescovo could not establish the essential elements of improper use of process and illegal purpose for the abuse of process claim. Jepsen filed a motion for summary judgment alleging that Vescovo could not prevail as a matter of law on his claim of malicious prosecution because of the affirmative defense of reliance on the advice of counsel. Gardner filed motions for judgment on the pleadings with respect to Maberry's and Jepsen's cross-claims, asserting they had not alleged and could not establish proximate cause between the failure to appeal dismissal of the federal lawsuit against Vescovo in his individual capacity and damages alleged to have been incurred due to the filing of Vescovo's lawsuit.
On October 9, 2019, the trial court entered its judgment and order ("Judgment") granting summary judgment in favor of Gardner and Kingsland on Counts II and III of Vescovo's lawsuit, and in favor of Jepsen on Count I of Vescovo's lawsuit. The Judgment also granted Gardner's motions for judgment on the pleadings on Jepsen's and Maberry's cross-claims.
The Judgment concluded that based on the uncontroverted facts and the applicable law "there existed probable cause to file a claim under Section 1983 and that [Gardner] and [Kingsland] pursued said claim on behalf of [ ] Maberry and Jepsen with the purpose of obtaining a proper adjudication for their clients." The Judgment also concluded that Vescovo Finally, the Judgment concluded that ...
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