Marcie Lynn Troutt as Administratrix of the Estate of Madelynn Noel Troutt and Individually v. The Bail Project, Inc.

Court of Appeals of Kentucky·Decided April 18, 2024·No. 2023 CA 000171·Unknown

Opinion

RENDERED: APRIL 19, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0171-MR

MARCIE LYNN TROUTT AS ADMINISTRATRIX OF THE ESTATE OF MADELYNN NOEL TROUTT AND INDIVIDUALLY AND JEREMY TROUTT APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANN BAILEY SMITH, JUDGE ACTION NO. 22-CI-000909

THE BAIL PROJECT, INC.; CARRIE COLE; HOLLY ZOLLER; AND SHAMEKA PARRISH-WRIGHT APPELLEES

OPINION

AFFIRMING

** ** ** ** **

BEFORE: GOODWINE, KAREM, AND MCNEILL, JUDGES. GOODWINE, JUDGE: Marcie Lynn Troutt as Administratrix of the Estate of Madelynn Noel Troutt and Individually and Jeremy Troutt (collectively the “Troutts”) appeal from an order of the Jefferson Circuit Court granting judgment in

favor of The Bail Project, Inc., and its employees: Carrie Cole; Holly Zoller; and Shameka Parrish-Wright (collectively “TBP”). TBP moved to dismiss, and the circuit court converted the motion to one for summary judgment because TBP relied on matters outside the pleadings. The circuit court found there was no genuine issue of material fact regarding whether TBP owed the Troutts a duty of care. Based on our review, finding no error, we affirm.

On February 24, 2022, the Troutts filed a complaint against TBP alleging TBP was negligent in posting a bail bond for Michael DeWitt (“DeWitt”), loss of consortium of their daughter, and punitive damages. The suit arose out of a fatal accident between DeWitt and the Troutts’ daughter Madelynn. According to the complaint, DeWitt has a criminal history dating back to 2012. Relevant to this appeal, on February 16, 2021, DeWitt was arrested in Louisville and charged with receiving stolen property (motor vehicle), public intoxication (controlled substance), criminal trespass, disorderly conduct, resisting arrest, and assault on a police officer resulting in physical injury.

On February 24, 2021, TBP posted a bond for DeWitt, and he was released from custody. Five days later, on March 1, 2021, DeWitt, while under the influence of amphetamines and benzodiazepines, drove a stolen vehicle and crossed the centerline of Dixie Highway in Jefferson County, causing a head-on collision with a vehicle driven by Madelynn, a 17-year-old. DeWitt was allegedly

traveling 58 miles per hour one second before the impact, which occurred in a 45- mile-per-hour zone. Additionally, the Troutts alleged DeWitt was driving a stolen car containing six stolen guns. Tragically, Madelynn died at the hospital about forty-five minutes after the accident.

The Troutts claimed TBP was negligent in failing “to reasonably investigate DeWitt’s criminal history and propensity to re-offend before posting his bail bond thereby permitting him to be released from jail.” Record (“R.”) at 5. They also alleged TBP failed to comply with duties it undertook “to ensure DeWitt attended the drug rehabilitation program and other terms and conditions of bond,” and “breached other duties of care not yet known” to the Troutts and other duties that “were the proximate cause” of the accident that resulted in Madelynn’s death. Id.

TBP filed a CR1 12.02(f) motion to dismiss. TBP argued Kentucky does not recognize a legal duty of a third-party bail surety to control the post- release actions of a criminal defendant. Even if TBP had a duty regarding DeWitt’s release, DeWitt’s actions were an intervening superseding cause. Additionally, TBP argued its free bail assistance for indigent pretrial detainees was political speech protected by the First Amendment. In support of its motion, TBP attached DeWitt’s form AOC-365.1 which stated his bail conditions and that TBP

1 Kentucky Rules of Civil Procedure.

was the surety. TBP also attached an amended order from the Supreme Court of Kentucky titled, “In Re: Authorization for the Non-Financial Uniform Schedule of Bail Administrative Release Program.” R. at 67. Both documents are public records.

The Troutts opposed the motion to dismiss arguing Kentucky recognizes the undertaker’s duty, and duty depends on the facts, which requires discovery. Additionally, they argued the First Amendment is an affirmative defense, which cannot be properly decided on a motion to dismiss. The Troutts did not mention either document in its response to the motion.

The circuit court entered an order converting TBP’s motion to dismiss to a motion for summary judgment and granting judgment in favor of TBP. The circuit court found TBP did not have a special relationship with DeWitt and did not undertake a duty to control DeWitt’s actions upon his release from jail. Thus, TBP owed Madelynn no duty of care.

The Troutts then filed a motion to vacate the circuit court’s order converting TBP’s motion to one for summary judgment and granting judgment in TBP’s favor. The Troutts argued they were entitled to discovery before the circuit court could grant summary judgment. TBP responded opposing the motion. TBP argued the civil rules require circuit courts to convert a motion to dismiss to one for summary judgment when it relies on matters outside the pleadings, and there

are no additional facts that would change the outcome of the case. The circuit court heard arguments from both parties and denied the Troutts’ motion. This appeal followed.

On appeal, the Troutts argue the circuit court erred in: (1) sua sponte converting TBP’s motion to dismiss to a motion for summary judgment without prior notice; (2) granting summary judgment; and (3) granting judgment when the First Amendment was pled as an affirmative defense.

First, the Troutts argue the circuit court erred in sua sponte converting TBP’s motion to dismiss to a motion for summary judgment without prior notice. The Troutts’ argument ignores well-established Kentucky statutory and case law. “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.” Middleton v. Sampey, 522 S.W.3d 875, 878 (Ky. App. 2017) (citing CR 12.02; McCray v. City of Lake Louisvilla, 332 S.W.2d 837, 840 (Ky. 1960)). The circuit court correctly converted TBP’s motion to one for summary judgment as required by the civil rules. 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 v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996)).

Second, the Troutts argue the circuit court erred in granting summary judgment in favor of TBP. Under this argument, the Troutts argue: (1) TBP owed a duty like any other business; (2) duty depends on the facts, which requires discovery; and (3) causation is a jury issue.

In their complaint, the Troutts allege that TBP “failed to reasonably investigate DeWitt’s criminal history and propensity to re-offend before posting his bail bond,” and by paying DeWitt’s bail, TBP “failed to comply with various duties they had undertaken to ensure DeWitt attended the drug rehabilitation program and other terms and conditions of bond.” R. at 5.

However, DeWitt’s bail determination on form AOC-365.1 did not require DeWitt to attend a drug rehabilitation program. The only conditions on DeWitt’s bail determination form were “no further violations of the law,” “no illegal use/possession of firearms or other deadly weapons,” and “make all court dates.” R. at 66. This document was attached to TBP’s motion to dismiss and was properly considered by the circuit court.

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Marcie Lynn Troutt as Administratrix of the Estate of Madelynn Noel Troutt and Individually v. The Bail Project, Inc., (Ky. Ct. App. 2024).

Marcie Lynn Troutt as Administratrix of the Estate of Madelynn Noel Troutt and Individually v. The Bail Project, Inc. (Marcie Lynn Troutt as Administratrix of the Estate of Madelynn Noel Troutt and Individually v. The Bail Project, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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