Harold Edward Hall v. Richard Vernon Hornung

• Court: Court of Appeals of Kentucky
• Decided: October 12, 2023
• Docket: 2022 CA 000995
• Status: Unknown

Opinion

RENDERED: OCTOBER 13, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0995-MR

HAROLD EDWARD HALL APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 22-CI-000169

KELLEY ANN HEAVENER; RICHARD VERNON HORNUNG; AND ANDREW RICHARD HORNUNG APPELLEES

AND

NO. 2022-CA-1163-MR

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MARY M. SHAW, JUDGE ACTION NO. 20-CI-003193

KELLEY ANN HEAVENER; ANDREW HORNUNG, ESQUIRE.; RICHARD HORNUNG, ESQUIRE; AND HEBEL & HORNUNG, P.S.C. APPELLEES OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; GOODWINE AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Harold Edward Hall brings Appeal No. 2022-CA-0995-MR

from an April 27, 2022, Opinion and Order of the Jefferson Circuit Court

dismissing a complaint filed by Hall alleging abuse of process and wrongful use of

civil proceedings and brings Appeal No. 2022-CA-1163-MR from a May 23, 2022,

Order and an August 29, 2022, Order of the Jefferson Circuit Court denying his

motion for sanctions.1 We affirm both Appeal Nos. 2022-CA-0995-MR and 2022-

CA-1163-MR.

The relevant underlying facts of these appeals are sad. Hall and Kelly

Ann Heavener were never married but had a son – Jared Heavener – who was born

on February 10, 1994. Jared lived with Heavener and apparently had very limited

contact with Hall. On October 29, 2019, at the age of twenty-five, Jared died

unexpectedly of natural causes. As Jared was not married and had no children, he

was survived by Hall and Heavener.

1 By Order entered March 1, 2023, this Court denied appellant Harold Edward Hall’s motion to consolidate these appeals, but ruled the appeals would be considered together by the same three- judge panel upon completion of briefing.

-2- Following Jared’s death, Heavener met with Newcomer Cremation

and Funeral Home in New Albany, Indiana, to discuss the funeral arrangements for

Jared. At this meeting, Heavener was apparently accompanied by her boyfriend

and her mother; Hall was not present. In fact, the obituary prepared at Heavener’s

direction did not identify Hall as Jared’s father. During the meeting with the

funeral director, Heavener expressed her desire to have Jared cremated and to keep

his cremated remains in her possession. At this point, the funeral home director

informed Heavener that Indiana law required that she and Hall must agree to the

cremation and further agree to the disposition of the cremated remains. As

Heavener and Hall would not communicate directly, the funeral director contacted

Hall to see if he was agreeable to Heavener’s wishes. Hall agreed to Jared being

cremated; however, Hall would not agree to Heavener keeping Jared’s cremated

remains in her possession. Rather, Hall suggested that Jared’s remains be interred

at a cemetery. With Heavener and Hall reaching an impasse, the funeral director

suggested that the parties consider dividing Jared’s cremated remains as a

compromise. After Jared’s cremation, his entire remains were eventually interred

at Evergreen Cemetery in Louisville, Kentucky. Following the interment,

Heavener maintained that Hall had agreed to allow her to keep a portion of Jared’s

cremated remains with her; Hall denied the existence of such an agreement.

-3- APPEAL NO. 2022-CA-1163-MR

On June 1, 2020, Heavener filed a complaint in the Jefferson Circuit

Court (Action No. 20-CI-003193) seeking an order to compel Hall to abide by the

terms of an alleged oral agreement to divide Jared’s cremated remains with

Heavener. Hall responded by filing a motion to dismiss claiming lack of

jurisdiction and failure to state a claim upon which relief could be granted.

(Kentucky Rules of Civil Procedure (CR) 12.02.) Hall’s motion to dismiss was

denied; thereafter, Hall filed an answer and an amended answer. On January 18,

2021, Heavener filed a motion to dismiss her complaint against Hall. And, by

order entered January 19, 2021, the circuit court granted Heavener’s motion and

dismissed Heavener’s complaint against Hall without prejudice.

On March 1, 2021, Hall filed a motion seeking sanctions against

Heavener and her attorneys, Richard Vernon Hornung and Andrew Richard

Hornung (Hornungs), for filing a frivolous complaint under CR 11. On May 23,

2022, the circuit court entered a two-sentence Order denying Hall’s motion for CR

11 sanctions; the order included complete CR 54.02 language. Hall subsequently

filed a CR 59 motion to vacate the May 23, 2022, Order for failure to render

findings of fact and conclusions of law as required by CR 52.01 and for a new trial

on the sole issue of entitlement to CR 11 sanctions. By Order entered August 29,

2022, the circuit court granted Hall’s motion in part and made findings of fact and

-4- conclusions of law per CR 52.01; however, the court denied the motion to set aside

the May 23, 2022, order denying CR 11 sanctions. This appeal follows.

Hall contends the circuit court erred by denying his motion for CR 11

sanctions against Heavener and the Hornungs. More particularly, Hall asserts that

Heavener’s attorneys did not conduct an investigation to ensure there was some

basis in fact and in law before signing the complaint.

CR 11 governs sanctions and provides, in relevant part, as follows:

Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. . . . The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

It is well-settled that CR 11 does not provide litigants with any

substantive rights; rather, CR 11 is merely a procedural rule intended to “curb

abusive conduct” in litigation. Large v. Oberson, 537 S.W.3d 336, 339 (Ky. App.

2017) (citation omitted). In fact, CR 11 sanctions are “intended only for

exceptional circumstances.” Id. at 339. In considering a motion for CR 11

sanctions, the circuit court must determine whether the attorney’s conduct, when

-5- he “signed the allegedly offending pleading or motion, was reasonable under the

circumstances.” Id. at 339 (emphasis added). Upon appellate review of a

decision to deny sanctions, “our review is limited to a determination of whether the

trial court abused its discretion.” Clark Equip. Co., Inc., v. Bowman, 762 S.W.2d

417, 420 (Ky. App. 1988).

Applying these principles to the case sub judice, we do not believe the

circuit court abused its discretion by denying CR 11 sanctions. The basis for

Hall’s motion for sanctions was that the Hornungs should have conducted a more

thorough investigation before signing the complaint. In support thereof, Hall

asserts that the Hornungs solely relied upon a text message from Heavener in

which she alleged Hall had orally agreed to a division of Jared’s cremated remains.

Hall asserted that the complaint failed to identify any facts in support of the alleged

oral agreement and that none of the deposed witnesses could articulate the

formation or existence of an oral agreement to divide Jared’s cremated remains.

In its August 29, 2022, order, the circuit court stated the following:

Looking to the merits, although [Heavener]’s counsel could have conducted a more thorough investigation, the Court is satisfied that, at the time, his filing the complaint was reasonable under the circumstances. The allegation was an oral contract, which can entail little to no corroborating evidence. Based upon the information received from Ms. Heavener, the agreement was spoken between the two parties to this action. Given her claim, a reasonable inquiry would be asking a client the nature of the agreement and the time it was made. [Heavener]’s

-6- counsel has the details of the alleged agreement in a text received from Ms. Heavener. That is enough to file a complaint in good faith under Kentucky’s notice pleading standard. Indeed, “A plaintiff and his attorney, however, need not have garnered enough facts at the time of filing a complaint to get by a summary judgment, much less a directed verdict.” Id. at 422. [Clark Equipment Co., Inc., v. Bowman, 762 S.W.2d 417 (Ky. App. 1988).] Absent indication his client is untruthful or seeks to harass Mr. Hall, he need not find each plausible witness to bolster Ms. Heavener’s allegation.

August 29, 2022, Order at 5. Upon review of the circuit court’s analysis above and

the record before this Court on appeal, we agree with the circuit court that the

signing of the complaint was reasonable under the circumstances. This includes

the circuit court’s reliance upon its in camera review of a text message from

Heavener to Richard Hornung which the circuit court concluded set out a sufficient

basis for filing the complaint.2 Thus, we conclude that the circuit court did not

abuse its discretion by denying Hall’s motion for CR 11 sanctions.

2 The purported text from Kelley Ann Heavener to her counsel and counsel’s notes were reviewed in camera by the circuit court at a hearing on December 3, 2021. Counsel for Heavener asserted that the documents were protected by attorney-client privilege and a copy was not provided to Hall’s attorney. At oral argument in this appeal, counsel for Hall argued that the tendered documents were placed under seal by the circuit court and should have been disclosed by the circuit court under the waiver provisions set out in Kentucky Rules of Evidence (KRE) Rule 509. Hall styles this “trial by ambush” at the hearing. While Hall’s counsel objected to the circuit court’s review of the documents at the December 3, 2021, hearing, there was no motion to place the documents under seal or in the record by avowal. Likewise, counsel has not cited this Court to where those documents were located in the record below and based on our thorough review of the record on appeal, said documents are not part of the record. It is not this Court’s responsibility to search the record on appeal to ensure that an issue has been preserved. Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019). In Hall’s Kentucky Rules of Civil Procedure 59 motion below, no reference is made to the circuit court’s in camera review of Heavener’s text to her counsel nor the KRE Rule 509 issue for the court to consider. Accordingly, any

-7- APPEAL NO. 2022-CA-0995-MR

On January 3, 2022, Hall filed a complaint in Jefferson Circuit Court

(Action No. 22-CI-000169) against Heavener and her attorneys, the Hornungs.

Therein, Hall alleged that the Hornungs, as Heavener’s attorneys, had engaged in

abuse of process and wrongful use of civil proceedings by filing the complaint on

behalf of Heavener and by pursuing relief in Action No. 20-CI-003193. In

response, Heavener and the Hornungs filed a motion to dismiss Hall’s complaint

pursuant to CR 12 for failure to state a claim upon which relief could be granted.

Hall then filed a motion to disqualify the Hornungs from representing Heavener.

By Order entered April 27, 2022, Hall’s complaint was dismissed and the motion

to disqualify counsel was denied as moot. Hall filed a motion pursuant to CR

59.05 to alter, amend, or vacate the April 27, 2022, Order dismissing his

complaint. By Order entered July 15, 2022, the circuit court denied the motion.

This appeal follows.

Hall initially contends that the circuit court erred by granting

Heavener and the Hornungs’ motion to dismiss pursuant to CR 12.02 for failure to

state a claim upon which relief could be granted. More particularly, Hall asserts

evidentiary issue regarding the documents reviewed in camera by the circuit court has not been properly preserved for our review on appeal. See Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016).

-8- the circuit court erroneously concluded he did not have a cause of action for abuse

of process or wrongful use of civil proceedings.

CR 12.02(f) provides:

Every defense, in law or fact, to a claim for relief in any pleading, . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . (f) failure to state a claim upon which relief can be granted[.]

It is well-established that a court should not dismiss a complaint for

failure to state a claim upon which relief can be granted under CR 12.02(f) “unless

the pleading party appears not to be entitled to relief under any state of facts which

could be proved in support of his claim.” Certain Underwriters at Lloyd’s, London

v. Abundance Coal, Inc., 352 S.W.3d 594, 596 (Ky. App. 2011) (citation omitted).

In ruling upon a CR 12.02(f) motion, the circuit court does not make any factual

determinations; instead, the matter is merely a question of law. Id. Thus, appellate

review of a circuit court’s order dismissing a complaint pursuant to CR 12.02(f) is

de novo. Id. Our review proceeds accordingly.

Abuse of Process

An abuse of process occurs where an individual utilizes “a legal

process, whether criminal or civil, against another primarily to accomplish a

purpose for which that process is not designed[.]” Sprint Commc’ns Co., L.P. v.

Leggett, 307 S.W.3d 109, 113 (Ky. 2010). The elements necessary for establishing

-9- an action for abuse of process are “(1) an ulterior purpose and (2) a willful act in

the use of the process not proper in the regular conduct of the proceeding.”

Simpson v. Laytart, 962 S.W.2d 392, 394 (Ky. 1998).

Regarding the first element of abuse of process (an ulterior purpose),

the circuit court concluded that Hall failed to identify an ulterior purpose on the

part of Heavener or the Hornungs in filing the original complaint in Action No. 20-

CI-003193. The circuit court also acknowledged that “[w]hile factual proof is not

required for a complaint to survive to the discovery phase, the allegations

themselves must at least meet the elements of the claim being brought.” April 27,

2022, Opinion and Order at 3. We agree with the circuit court.

In the case sub judice, Hall failed to allege an ulterior purpose for

Heavener filing the complaint. Rather, as indicated in the complaint, Heavener

believed Hall had orally agreed to divide Jared’s cremated remains. Even after the

circuit court pointed out the deficiency in Hall’s complaint, Hall failed to identify

in his appellant’s brief where he had alleged “an ulterior purpose” in the complaint.

April 27, 2022, Opinion and Order at 3. The only mention of a problem between

Hall and Heavener in the original complaint was that since Jared’s birth Heavener

allegedly held a grudge against Hall. This, standing alone, on its face without any

evidence, does not support a basis for an ulterior purpose by Heavener and/or the

Hornungs in filing the complaint seeking to enforce an agreement regarding the

-10- disposition of Jared’s cremated remains. Having failed to establish the first of two

elements necessary for an abuse of process claim, we do not believe the circuit

court erred by dismissing Hall’s complaint as to the abuse of process claim for

failure to state a claim upon which relief could be granted pursuant to CR 12.02(f).

Wrongful Use of Civil Proceedings

It is well-settled public policy that individuals should be free to

“resort to the courts for redress of a wrong, and the law should and does protect

them when they commence a civil or criminal action in good faith and upon

reasonable grounds.” D’Angelo v. Mussler, 290 S.W.3d 75, 79 (Ky. App. 2009)

(citations omitted). The elements necessary to maintain an action for wrongful use

of civil proceedings are subject to strict compliance. Id. The elements of wrongful

use of civil proceedings are as follows:

1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff;

2) the defendant acted without probable cause;

3) the defendant acted with malice, which, . . . in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based;

4) the proceeding, except in ex parte civil actions, terminated in favor of the person against whom it was brought; and

-11- 5) the plaintiff suffered damages as a result of the proceeding.

Martin v. O’Daniel, 507 S.W.3d 1, 11-12 (Ky. 2016).3 All five elements must be

demonstrated to establish a claim for malicious prosecution.

As to the first element for wrongful use of civil proceeding, Heavener

and the Hornungs admittedly instituted a civil proceeding against Hall wherein it

was alleged Hall breached an oral agreement to divide Jared’s cremated remains.

Therefore, the first element necessary for a claim of wrongful use of civil

proceedings was satisfied.

As to the second element for wrongful use of civil proceedings, Hall

must demonstrate that Heavener and the Hornungs acted without probable cause in

initiating the proceedings against Hall. In a civil proceeding, the person initiating

the proceeding is not required to have the same degree of certainty regarding the

relevant facts as is necessary in a criminal proceeding. D’Angelo, 290 S.W.3d at

80 (citation omitted). In fact, civil proceedings often must be initiated before the

relevant facts can be ascertained. To require otherwise would place “an

3 In Martin v. O'Daniel, 507 S.W.3d 1, 11 (Ky. 2016), the Kentucky Supreme Court appears to have merged the two torts of malicious prosecution and wrongful use of civil proceedings, even though the RESTATEMENT (SECOND) OF TORTS §§ 653 and 674 (1977) and prior common law had clearly differentiated the two. See Prewitt v. Sexton, 777 S.W.2d 891, 893-94 (Ky. 1989); Mapother and Mapother, P.S.C. v. Douglas, 750 S.W.2d 430, 431 (Ky. 1988).

-12- unreasonable burden upon those whose rights cannot be otherwise effectively

enforced.” Id.

Relevant to this inquiry, the Hornungs filed a civil action (Action No.

20-CI-003139) on behalf of Heavener to enforce an alleged oral agreement

regarding disposition of Jared’s cremated remains. The filing of the complaint was

based upon communications between Heavener and her counsel, in particular, a

text message from Heavener to her attorney regarding the oral agreement to divide

Jared’s cremated remains. As discussed in footnote 2 and based on our review of

the record, we do not believe that Hall has demonstrated that Heavener and/or the

Hornungs acted without probable cause when filing the complaint. Thus, we do

not believe the circuit court erred by granting the motion to dismiss Hall’s

complaint for failure to state a claim upon which relief could be granted.

As Hall is unable to demonstrate that Heavener and the Hornungs

acted without probable cause it is unnecessary to engage in an analysis of the

remaining elements of wrongful use of civil proceedings. Accordingly, we do not

believe the circuit court erred by dismissing Hall’s complaint for failure to state a

claim upon which relief could be granted.

Hall also contends the circuit court erred by denying his motion to

amend his complaint pursuant to CR 15.01. CR 15.01 governs the amendment of

pleadings and provides:

-13- A party may amend his pleading once as a matter of course at any time before a responsive pleading is served . . . . Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.

It is well-established that a circuit court is granted wide discretion in

granting leave to amend pleadings pursuant to CR 15.01. Swearingen v. Hagyard

Davidson McGee Assoc., PLLC, 641 S.W.3d 186, 192 (Ky. App. 2022) (citation

omitted). And, such a ruling by the circuit court will not be disturbed on appeal

absent an abuse of discretion. Givens v. Boutwell, 701 S.W.2d 146, 147 (Ky. App.

1985). An abuse of discretion occurs where the decision of the circuit court was

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Goodyear Tire & Rubber Co., v. Thompson, 11 S.W.3d 575, 582 (Ky. 2000).

In the case sub judice, the record indicates that Hall filed the motion

to amend the complaint on April 26, 2022, after the issues were fully briefed on

Heavener’s motion to dismiss. Hall had filed a Motion of Submission (AOC Form

280) on April 8, 2022. The court entered the order dismissing on April 27, 2022.

As Heavener did not grant written consent for Hall to amend the

complaint, Hall had to seek leave of court pursuant to CR 15.01 to amend the

complaint and the circuit court denied same. There is nothing in the record to

-14- indicate that the circuit court’s decision was arbitrary, unreasonable, unfair, or

unsupported by sound legal principles. The underlying basis for the amended

complaint was newly discovered evidence although Hall fails to specifically

identify the evidence or where it can be found in the record below. Presumably,

Hall is relying on statements made by Richard Hornung at a hearing on the motion

for Rule 11 sanctions before the court in Action No. 20-CI-003139. That hearing

occurred on April 12, 2022. This Court has reviewed the hearing video record and

does not believe counsel’s statements rise to the level of an admission of legal

malpractice to support the amendment. Therefore, we conclude the circuit court

did not abuse its discretion by denying Hall’s motion to file an amended complaint.

For the foregoing reasons, we affirm Appeal Nos. 2022-CA-0995-MR

and 2022-CA-1163-MR.

ALL CONCUR.

BRIEFS AND ORAL ARGUMENT BRIEFS FOR APPELLEES: FOR APPELLANT: Richard V. Hornung David B. Mour Andrew R. Hornung Louisville, Kentucky Louisville, Kentucky

ORAL ARGUMENT FOR APPELLEES:

Andrew R. Hornung Louisville, Kentucky

-15-