Heather Jones, as Sister of Nicole Wagner, and as Administratrix and on Behalf of the Estate of Nicole Wagner v. Donald Bottoms

• Court: Court of Appeals of Kentucky
• Decided: April 25, 2024
• Docket: 2023 CA 000496
• Status: Unknown

Opinion

RENDERED: APRIL 26, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0496-MR

HEATHER JONES, AS SISTER OF NICOLE WAGNER, AND AS ADMINISTRATRIX AND ON BEHALF OF THE ESTATE OF NICOLE WAGNER; AND BETTY THOMPSON, AS MOTHER OF NICOLE WAGNER APPELLANTS

APPEAL FROM HARRISON CIRCUIT COURT v. HONORABLE JEFFERY L. SCHUMACHER, JUDGE ACTION NO. 22-CI-00092

DONALD BOTTOMS; ACUITY, A MUTUAL INSURANCE COMPANY; HANNA CAMPBELL & POWELL, LLP; AND KENNETH A. CALDERONE APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

GOODWINE, JUDGE: Heather Jones, as Sister of Nicole Wagner (“Nicole”), and

as Administratrix and on Behalf of the Estate of Nicole Wagner; and Betty Thompson, as Mother of Nicole Wagner (collectively “Jones”) appeal from a

Harrison Circuit Court order dismissing Jones’s complaint for failure to state a

claim against Donald Bottoms (“Bottoms”); Acuity, a Mutual Insurance Company;

Hanna Campbell & Powell, LLP; and Kenneth A. Calderone (collectively

“Appellees”). After careful review, finding no error, we affirm.

BACKGROUND

I. The original action – No. 20-CI-00085

The allegations in the current underlying civil action (No. 22-CI-

00092) arose out of the litigation of Jones’s claims in No. 20-CI-00085. This

Court explained the background of the underlying case in Jones v. Acuity, 658

S.W.3d 492 (Ky. App. 2022):

On the night of April 18, 2020, Bottoms, Wagner, and friends were spending time together at Bottoms’s place of business, Three D Plumbing, which also contained an apartment inside. In the early hours of April 19, after spending time in the apartment (consuming food and alcohol), Bottoms drove Wagner and her friends to Wagner’s home. According to Bottoms, Wagner refused to leave his vehicle, and he attempted to scare her out of his vehicle with a gun he kept under a seat. It is unclear exactly what happened, but during a struggle and/or accident the gun discharged, and Bottoms shot Wagner, killing her.

In January 2021, Bottoms pled guilty to second- degree manslaughter. Kentucky Revised Statute (“KRS”) 507.040. This statute states, “[a] person is guilty of manslaughter in the second degree when he wantonly causes the death of another person[.]” KRS 507.040(1).

-2- ...

In May 2020, Heather Jones (“Jones”), as Administratrix of Wagner’s estate, filed a complaint in Harrison Circuit Court for the wrongful death of her sister, Wagner. Acuity, A Mutual Insurance Company, intervened to litigate the insurance coverage issues on behalf of the insured, Bottoms. At the time of the shooting, Acuity insured Bottoms’s business, Three D Plumbing, with two coverage parts: commercial general liability coverage (“CGL”) and commercial auto coverage. Only the CGL is pertinent to this appeal. The CGL policy covers “bodily injury . . . caused by an occurrence that takes place in the coverage territory” to an insured individual “only with respect to the conduct of a business,” but specifically excludes bodily injury “expected or intended” from the “standpoint of the insured.”

....

In January 2021, the parties (and Bottoms) entered a “Master Settlement” Agreement, which included, in part, Wagner’s estate receiving the interest in Bottoms’s commercial insurance policies. Thereafter, Jones moved for summary judgment and declaratory judgment, which the circuit court denied. Acuity cross-motioned for summary judgment, which the circuit court granted. In relevant part, the circuit court found that

the [CGL] policy language unambiguously excluded intentional or expected injuries such as the fatal shooting from coverage, Bottoms’[s] guilty plea to wanton manslaughter bars any re-litigation on his intent during the shooting, and no genuine issue of material fact exists regarding whether Bottoms was promoting his business on the night of the shooting, warranting summary judgment on all of Acuity’s claims.

-3- Jones appealed.

Id. at 495-96.

The main issue in that appeal was whether “the social gathering on the

night of Wagner’s death was within the conduct of Bottoms’s plumbing business.”

Id. at 497. The circuit court’s summary judgment and this Court’s opinion were

largely based on competing affidavits. First, “Jones presented an affidavit from a

former Three D Plumbing client who stated (1) that she hired Bottoms after

attending a social gathering at Bottoms’s apartment, and (2) that Bottoms

frequently promoted his plumbing business at such events.” Id. Jones attached a

photograph “of Bottoms, Wagner, and three other people ‘poised in a luxury

bathtub in [ ] Bottoms’[s] place of business during the social gathering which

ended with the shooting of [Wagner].’” Id. In response, Bottoms filed an affidavit

stating, “that the events leading up to the shooting were not business related.” Id.

at 498. Though not discussed in this Court’s opinion, Bottoms attached to his

affidavit text messages, including explicit photos, sent by Wagner on the night of

the shooting to support his claim that he was not conducting plumbing business the

night he shot Wagner.

The circuit court entered a final and appealable order granting

summary judgment in favor of Acuity. This Court affirmed the circuit court’s

order holding “[b]ecause Bottoms’s actions on the night in question were not

-4- covered under the terms of the Acuity commercial policy, and the ‘expected or

intended’ exclusion would have been applicable if they were, Jones could not

prevail under any circumstances.” Id. at 499.

Though the events that gave rise to this case occurred during the

pendency of the underlying insurance coverage action, they were not part of the

summary judgment or appeal in that case. While the competing motions for

summary judgment were pending in the underlying action, Jones filed a motion to

amend the complaint to add claims stemming from the sexually explicit images of

Jones attached to Bottoms’s affidavit. Though the record from the underlying case

is not before us, we know from pleadings in this case that the affidavit and

supporting explicit photos were filed electronically instead of being conventionally

filed as sealed documents in contravention of Section 9 of the Administrative

Office of the Courts’s E-Filing Certification Training on p. 196. This mistake was

remedied by the affidavit and images being deleted from the electronic record and

then conventionally filed under seal. Nevertheless, Jones sought to add claims for

(1) intentional infliction of emotional distress; (2) negligent infliction of emotional

distress; (3) breach of duty of good faith and fair dealing; (4) first-party insurance

bad faith; (5) breach of fiduciary duty; and (6) tortious conduct in violation of the

Kentucky Penal Code.

-5- After the circuit court granted summary judgment in favor of Acuity,

Jones filed a motion seeking to stay its motion to file an amended complaint

pending the appeal of the circuit court’s judgment. Jones filed another motion to

amend the complaint while her motion to stay the proceedings was pending. On

June 13, 2022, the circuit court entered an order reserving Jones’s motion to file an

amended complaint to assert new claims pending appeal.

Following this Court’s opinion affirming the circuit court’s judgment,

the circuit court entered an order denying Jones’s motion to amend the complaint.

The circuit court found the motion was moot because Jones had filed a separate

action, No. 22-CI-00092, setting forth the same claims in the proposed amended

complaint.

II. The civil action on appeal – No. 22-CI-00092

On June 1, 2022, while the underlying insurance coverage case was

pending appeal, Jones filed the complaint in this case. The complaint concerned

the same conduct raised in Jones’s proposed amended complaint, i.e., the sexually

explicit images Wagner allegedly texted to Bottoms on the night she was killed,

which were attached to Bottoms’s affidavit in the original case. Jones made claims

for (1) intentional infliction of emotional distress; (2) negligent infliction of

emotional distress; (3) breach of duty of good faith and fair dealing; (4) violation

-6- of the universal duty of care; and (5) tortious conduct in violation of the Kentucky

Penal Code.

Defendants, Kenneth A. Calderone and Hanna Campbell & Powell,

LLP filed an answer.

Bottoms; Acuity; Kenneth A. Calderone; and Hanna Campbell &

Powell, LLP each filed a separate motion to dismiss. Each defendant attached

documents from the underlying action (excluding the explicit photos), No. 20-CI-

00085, to their motion to dismiss.

On September 16, 2022, the circuit court heard arguments on the

motions to dismiss.

On October 25, 2022, the circuit court entered an order requesting

information from the Administrative Office of the Courts regarding whether a

record was available to show who viewed the text messages and images attached to

Bottoms’s affidavit in No. 20-CI-00085 before being deleted on June 9, 2021. On

November 3, 2022, an employee of AOC filed an affidavit and attached reports

showing who accessed the sealed documents before their deletion from the

electronic record. On December 12, 2022, the circuit court entered an order

permitting any party contesting the information in the affidavit of the AOC

employee to file written arguments by December 15, 2022. None of the parties

-7- contested the information in the affidavit, and the circuit court took the matter

under advisement after that deadline.

On April 3, 2023, the circuit court entered an order dismissing Jones’s

complaint. The circuit court found, construing the pleadings in the light most

favorable to Jones, that the judicial proceedings privilege wholly precluded Jones’s

claims even though they were incorrectly filed electronically. Additionally, the e-

filed images were only viewed by “Administrative Office of the Courts personnel,

attorneys of record, and attorneys employed by firms listed of record.” Record

(“R.”) at 399. Thus, Jones suffered no damages. The circuit court did not address

Jones’s other claims in its order. This appeal followed.

ANALYSIS

On appeal, Jones argues the circuit court erred in (1) incorrectly

applying Kentucky Rules of Civil Procedure (“CR”) 12.02 in dismissing the

complaint; and (2) finding the judicial proceedings privilege applied to preclude all

claims. Jones raises other arguments which were not addressed by the circuit

court, mooted by our analysis, and are unnecessary for the disposition of this case.

First, Jones argues the circuit court erred in incorrectly applying CR

12.02 in dismissing her complaint. Jones asserts that construing facts in her favor

precluded dismissal, which we will address further below. Additionally, Jones

argues the circuit court erred in applying CR 12.02 in dismissing the complaint

-8- because the motions to dismiss relied on matters outside the pleadings. The circuit

court relied on documents from No. 20-CI-00085, which the defendants attached to

their motions to dismiss. The defendants excluded the sealed documents from their

exhibits. Additionally, the circuit court relied on the affidavit from the AOC

employee and accompanying documents showing who viewed the sealed

documents in No. 20-CI-00085. Jones did not contest the circuit court’s

consideration of these documents in her response to the motions to dismiss nor

when allowed to contest the AOC affidavit.

“Kentucky Rule of Civil Procedure (CR) 12.02 mandates that a

motion to dismiss is converted to a motion for summary judgment if matters

outside the pleadings are presented to, and not excluded by, the circuit court.”

Schell v. Young, 640 S.W.3d 24, 33 (Ky. App. 2021).

A trial court is free to consider matters outside the pleadings; however, doing so converts the request for dismissal into a motion for summary judgment. CR 12.02; McCray v. City of Lake Louisvilla, 332 S.W.2d 837, 840 (Ky. 1960). Accordingly, “[t]he standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

Middleton v. Sampey, 522 S.W.3d 875, 878 (Ky. App. 2017). Thus, we review de

novo. Id.

-9- The records from No. 20-CI-00085 case attached to the motions to

dismiss are central to the claims in Jones’s complaint. Those “records are subject

to consideration without having to convert the motion under review to a summary

judgment motion.” Netherwood v. Fifth Third Bank, Inc., 514 S.W.3d 558, 564

(Ky. App. 2017). However, the AOC affidavit and attached records are matters

outside the pleadings, which “effectively converts a motion to dismiss into a

motion for summary judgment.” D.F. Bailey, Inc. v. GRW Engineers, Inc., 350

S.W.3d 818, 821 (Ky. App. 2011) (citing McCray v. City of Lake Louisvilla, 332

S.W.2d 837, 840 (Ky. 1960); CR 12.02.). Thus, “[t]he standard of review on

appeal of a summary judgment is whether the trial court correctly found that there

were no genuine issues as to any material fact and that the moving party was

entitled to judgment as a matter of law.” Sampey, 522 S.W.3d at 878 (quoting

Scifres, 916 S.W.2d at 781).

Second, Jones argues the circuit court erred in finding the judicial

proceedings privilege applied to preclude all claims. In Jones’s complaint and her

response to Appellees’s motions to dismiss, she asserted there was one distribution

of the explicit photos. For the first time on appeal, Jones argues there were four

illegal distributions of the explicit photos. “This Court has stated on numerous

occasions that ‘appellants will not be permitted to feed one can of worms to the

trial judge and another to the appellate court.’” Sneed v. University of Louisville

-10- Hospital, 600 S.W.3d 221, 228 (Ky. 2020) (citation omitted). Thus, we decline to

address the newly alleged illegal distributions and only consider whether the

judicial proceedings privilege applies to the e-filing of the explicit photos.

The prevailing rule regarding the judicial statements privilege in Kentucky is that communications made pursuant to judicial proceedings are absolutely privileged even if otherwise defamatory. Maggard v. Kinney, 576 S.W.3d 559, 567 (Ky. 2019); Schmitt v. Mann, 291 Ky. 80, 163 S.W.2d 281, 283 (1942). This includes pleadings and statements of witnesses. Maggard, 576 S.W.3d at 567.

New Albany Main Street Properties, LLC v. Stratton, 677 S.W.3d 345, 348 (Ky.

2023). For a communication “to fall within the ambit of the judicial statements

privilege,” it must meet two requirements:

First, the communication must have been made “preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of a judicial proceeding.” General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1127 (6th Cir. 1990) (citing Restatement (Second) of Torts § 587 (1977)). Second, the communication must be material, pertinent, and relevant to the judicial proceeding.

Id. at 349.

The long-standing rule is “that pertinent matter in pleadings, motions,

affidavits, and other papers in any judicial proceeding, is absolutely privileged.”

Schmitt, 291 Ky. 80, 163 S.W.2d at 283 (emphasis added) (citation omitted). The

images in question were attached to Bottoms’s testimonial affidavit. Bottoms filed

-11- the affidavit to disprove Jones’s argument that he was conducting business the

night he killed Nicole. The images in question were attached to his testimonial

affidavit as supporting evidence. Jones does not take issue with the testimony in

Bottoms’s affidavit, only the supporting images. Jones opened the door to the

testimony in Bottoms’s affidavit and supporting images when she filed an affidavit

and photo to support her argument that Bottoms’s conducted business the night he

killed Nicole.

Though the disputed documents are images and not written words,

they still constitute a communication as they were supporting evidence used to

communicate Bottoms’s position to the circuit court. The images satisfy both

requirements as they were filed during the pendency of a judicial proceeding and

were material, and relevant to it. The circuit court correctly found Jones’s claims

were precluded by the judicial proceedings privilege. Thus, the circuit court

correctly determined there was no genuine issue of fact, and Appellees were

entitled to judgment as a matter of law

The circuit court declined to address Jones’s remaining arguments in

its order dismissing the complaint. Jones’s remaining arguments are also moot

because the judicial proceedings privilege wholly precludes Jones’s claims. For

these reasons, we decline to address all remaining issues.

-12- For the foregoing reasons, we affirm the judgment of the Harrison

Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE DONALD BOTTOMS: David Vandeventer Lexington, Kentucky Jason S. Morgan Betsy R. Catron Lexington, Kentucky

BRIEF FOR APPELLEES KENNETH A. CALDERONE AND HANNA CAMPBELL & POWELL, LLP:

Larry C. Deener Lexington, Kentucky

BRIEF FOR APPELLEE ACUITY, A MUTUAL INSURANCE COMPANY:

Judd R. Uhl Cincinnati, Ohio

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