Opinion
NO. 2015-CA-001158-MR
02-10-2017
MELVIN KINDLE; BRADLEY SILVERIA; AND DIEDRA ADKINS APPELLANTS v. PEGGY EMINGTON APPELLEE
BRIEFS FOR APPELLANTS: Robert L. Abell Lexington, Kentucky BRIEF FOR APPELLEE: Mark A. Osbourn Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 06-CI-011340 OPINION
AFFIRMING
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BEFORE: DIXON, J. LAMBERT, AND MAZE, JUDGES. DIXON, JUDGE: Melvin Kindle, Bradley Silveria, and Diedra Adkins appeal an order of the Jefferson Circuit Court granting summary judgment in favor of Peggy Emington. We affirm.
In October 2006, Appellants were employed by the Jeffersontown Police Department, and Emington was the Assistant Chief of Police. Appellants filed a complaint against Emington with the Jeffersontown Ethics Commission alleging mismanagement and abuse of authority. The Appellants' complaint was subsequently dismissed by the Ethics Commission. Thereafter, Emington filed a sworn complaint against Appellants with the Jeffersontown Civil Service Commission, alleging Appellants disclosed false information in violation of the police department's standard operating procedures. The Civil Service Commission held a hearing on Emington's complaint, and Appellants declined to present a defense, advising the Commission they were pursuing a cause of action in circuit court. The Commission issued findings of fact and conclusions of law, including a specific finding Appellants' statements were either false or made with reckless disregard for their truth or falsity. Based on its findings and conclusions, the Commission terminated Appellants' employment.
Emington filed a declaratory judgment action against Appellants in Jefferson Circuit Court, alleging they violated her statutory and constitutional rights by disseminating confidential information. Appellants filed a counter-claim against Emington alleging First Amendment retaliation; thereafter, Appellants also filed a similar complaint against the City of Jeffersontown, the Civil Service Commission, and other government officials, which was removed to federal court. In October 2014, the Sixth Circuit Court of Appeals affirmed summary judgment in favor of the City, Commission, and other defendants. Kindle v. City of Jeffersontown, Ky., 589 Fed. Appx. 747 (6th Cir. 2014). In its opinion, the federal court stated, in relevant part:
Emington also named the City of Jeffersontown and three city council members as defendants; however, the claims against those defendants were subsequently dismissed.
On this record, it is clear that the Commission had the authority to issue a factual finding on the veracity of plaintiffs' speech as it related to Emington's complaint. It is also undisputed that plaintiffs elected not to participate in the Commission's hearing upon advice of counsel, and that the Commission made the explicit factual finding that plaintiffs' speech was false or made with reckless disregard for the truth. Finding the elements of state administrative issue preclusion satisfied, plaintiffs are collaterally estopped from arguing that their speech was not false or made with reckless disregard for the truth.Id. at 757.
Thereafter, in February 2015, Emington filed a motion for summary judgment on Appellants' counter-claim, citing the Commission's explicit finding that Appellants' statements were false or made with reckless disregard for the truth. Appellants asserted the findings of the Commission were not entitled to any preclusive effect because collusion and irregularities at the hearing denied them due process. In July 2015, the circuit court granted Emington's motion for summary judgment and dismissed Appellants' counter-claim. This appeal followed.
Emington's case in Jefferson Circuit Court was held in abeyance until the federal litigation was finalized. --------
On appellate review, we must determine "whether the trial court correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Norton Hosps., Inc. v. Peyton, 381 S.W.3d 286, 290 (Ky. 2012). "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). "The party opposing a properly presented summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing the existence of a genuine issue of material fact for trial." City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001).
Appellants' claim of First Amendment retaliation required them to establish that they engaged in constitutionally protected speech. Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 897 (6th Cir. 2001). The First Amendment does not protect false, defamatory speech. Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 307 (Ky. 2010). Here, the Commission specifically found Appellants' statements were either false or made with reckless disregard for their truth or falsity. Appellants failed to appeal the Commission's determination; instead, they sought to re-litigate the issue of the truthfulness of their statements by bringing a counter-claim against Emington in circuit court. The record clearly indicates Emington was entitled to summary judgment because the Commission's prior determination precluded Appellants' First Amendment claim as a matter of law. See Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 465 (Ky. 1998) ("Issue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action."). Further, Appellants' claim that issue preclusion is inapplicable because they were denied due process is without merit and only supported by Appellants' speculation and conjecture. It is well- settled that a "party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment." Wymer v. JH Props., Inc., 50 S.W.3d 195, 199 (Ky. 2001). After careful review, we conclude the trial court properly granted summary judgment in favor of Emington.
For the reasons stated herein, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: Robert L. Abell
Lexington, Kentucky BRIEF FOR APPELLEE: Mark A. Osbourn
Louisville, Kentucky