Opinion
NO. 2018-CA-001137-MR
07-26-2019
Michael W. LITTRELL, Appellant v. Michael BOSSE; and the City of Georgetown, Kentucky, Appellees
BRIEFS FOR APPELLANT: J. Dale Golden, Kellie M. Collins, Lexington, Kentucky. BRIEF FOR APPELLEES: Charles D. Cole, Derrick T. Wright, M. Todd Osterloh, Lexington, Kentucky.
BRIEFS FOR APPELLANT: J. Dale Golden, Kellie M. Collins, Lexington, Kentucky.
BRIEF FOR APPELLEES: Charles D. Cole, Derrick T. Wright, M. Todd Osterloh, Lexington, Kentucky.
BEFORE: DIXON, SPALDING, AND TAYLOR, JUDGES.
OPINION
SPALDING, JUDGE:
Michael Littrell appeals from the summary disposition of his claims of contractual interference, outrage, witness intimidation, harassment, and official misconduct against Georgetown Police Chief Michael Bosse and the City of Georgetown. Having reviewed the record in the light most favorable to Littrell, we find no reversible error in any of the arguments presented and affirm the summary judgment of the Scott Circuit Court.
Appellant Littrell is a former employee of the Georgetown Police Department. After leaving his employment as a detective with the department, Littrell became an instructor for Bluegrass Community and Technical College teaching criminal justice courses and was later hired as a professor at Georgetown College. At the time Littrell left his position with the police department, Greg Reeves was the police chief. The current chief, appellee Michael Bosse, replaced Reeves.
During his time at the community college, Littrell worked with Chief Bosse to establish an internship program for criminal justice students. After leaving the community college to teach at Georgetown College, Littrell arranged to have the internship program follow him to his new employer. Apparently, on November 19, 2014, Chief Bosse invited Littrell to meet with him at the police station ostensibly for the purposes of discussing expansion of the internship program. The meeting, however, turned out to be a discussion of Littrell’s Facebook posts concerning pending litigation between the police department and an officer who worked with Littrell when he was with the department. There are, of course, two different versions of how that conversation progressed, but Littrell claims Chief Bosse attempted to get him to lie during his upcoming testimony in that litigation and that he refused to do so.
Two days after their meeting, Littrell’s attorney sent Chief Bosse a letter about their conversation and warned him about interfering with his job at the college. However, either because he had already done so, or because he was undeterred by the letter, Chief Bosse contacted Jim Newberry, counsel for the college, with information about the Facebook posts that eventually reached Provost Rosemary Allen. Allen then sent an email to Littrell indicating that Newberry "apparently" expected her to "do something" about the posts. However, she also emphasized that the controversy appeared to be between Littrell and Chief Bosse and did not appear to have anything to do with the college. Allen closed the subject by assuring Littrell the college would protect his first amendment rights so long as he abided by the college handbook. Very soon thereafter, Littrell initiated the litigation which culminated in this appeal.
Littrell insists that other faculty members told him that he was in trouble with the college and was going to lose his job. Essentially, he maintains that his life was not the same after those communications. Yet, on March 1, 2015, the date by which the college was required to take any personnel action, it did not do so and thereby reaffirmed Littrell’s contract for another academic year. Nevertheless, in April 2015, Littrell resigned his position effective at the end of the academic year, electing not to continue his employment with the college.
Again, prior to resigning his position, Littrell had already filed a five-count complaint. The first count alleged interference with his contractual relations with the college. Another count asserted the intentional infliction of emotional distress and the final three counts cited Kentucky Revised Statute ("KRS") 446.070 for the proposition that he was entitled to recover damages by reason of Chief Bosse’s violation of three criminal statutes. After a period of discovery, appellees Bosse and the City of Georgetown moved for summary judgment which was granted on all counts.
Littrell first argues in this appeal that the trial court erred in refusing to apply the RESTATEMENT (SECOND) OF TORTS § 766A to his claim that Chief Bosse intentionally interfered with his contractual relations with the college. That section states: "One who intentionally and improperly interferes with the performance of a contract ... between another and a third person, by preventing the other from performing ... or causing his performance to be more expensive or burdensome, is subject to liability to the other for the pecuniary loss resulting to him." (Emphasis added.) Kentucky has yet to adopt that section of the Restatement. Whether the failure to do so is intentional or whether Kentucky courts simply have not had occasion to do so is the subject of debate between counsel. Littrell also argued that his claim was cognizable under recognized Kentucky claims for intentional interference with business relationships.
The trial court based its decision to grant summary judgment on Littrell’s intentional interference claim on the undisputed fact that Littrell did not lose his job. To the contrary, the college renewed his contract for another year after which he chose to resign. Looking at the evidence in the light most favorable to Littrell, it might be that Chief Bosse attempted to interfere with Littrell’s contractual relationship with the college. However, even if he did, the fact remains that he was unsuccessful because the college renewed Littrell’s contract. Harm without injury is not a tort. Queensway Financial Holdings Ltd. v. Cotton & Allen, P.S.C. , 237 S.W.3d 141, 147 (Ky. 2007). Chief Bosse’s actions did not cause him to lose his job; he quit. If he suffered pecuniary loss, it was because he resigned. It was not by reason of any action attributable to Chief Bosse.
Littrell attempts to avoid the failure of this aspect of his claim by alleging that he was constructively discharged when conditions of his employment became intolerable. The only change in employment Littrell points to is the fact that he was "devastated" when the college replaced him as liaison with the police department concerning the internship program. We are not persuaded of the efficacy of this argument. Even if we were to agree for the sake of argument that a claim of constructive discharge was appropriate under the RESTATEMENT (SECOND) OF TORTS § 766, the facts upon which Littrell relies fall far short of meeting the constructive discharge standard. Quoting Northeast Health Management, Inc. v. Cotton , 56 S.W.3d 440, 445 (Ky. App. 2001), our Supreme Court in Brooks v. Lexington-Fayette Urban County Housing Authority , 132 S.W.3d 790, 807 (Ky. 2004), reaffirmed that "[t]he commonly accepted standard for constructive discharge is whether, based upon objective criteria, the conditions created by the employer's action are so intolerable that a reasonable person would feel compelled to resign." (Emphasis added.) We are convinced that exposure to gossip about his job security by other faculty members who lacked knowledge of the situation and the loss of the ability to grow the internship program are woefully insufficient to support a constructive discharge claim. Interference with a contractual relationship requires actual interference with the contract and impairment of the contract. There was no impairment of the contract in this case because Littrell had virtually identical employment for the next academic year which he chose to forego. The trial court properly granted summary judgment on the claim of interference with contractual relations.
Turning now to Littrell’s claim of intentional infliction of emotional distress, we are again convinced Littrell failed to establish an essential element of his claim. To prevail, Littrell had to prove 1) that Chief Bosse’s conduct was intentional or reckless; 2) that his conduct was outrageous and offended generally accepted standards of decency and morality; 3) that there was a causal connection between Chief Bosse’s conduct and Littrell’s emotional distress; and 4) that his emotional distress was severe. Humana of Kentucky, Inc. v. Seitz , 796 S.W.2d 1, 2-3 (Ky. 1990). However, Kentucky law also requires that a claim founded in the intentional infliction of emotional distress be supported by expert medical or scientific proof. Keaton v. G.C. Williams Funeral Home, Inc. , 436 S.W.3d 538, 545 (Ky. App. 2013) (holding that a family which presented only the statements of its members that they had suffered severe emotional distress failed to meet its burden of establishing the tort of intentional infliction of emotional distress). Thus, Littrell’s proof that he was willing to testify as to his emotional distress is insufficient to satisfy one of the elements of his cause of action. Hence, summary judgment was properly entered on his outrage claim.
Littrell’s final three arguments center on Chief Bosse’s alleged violation of three criminal statutes. His claim for damages for the violation of those statutes is predicated upon KRS 446.070 which provides:
A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.
That statute is the codification of the negligence per se doctrine in this Commonwealth which "applies when the alleged offender violates a statute and the plaintiff comes within the class of persons intended to be protected by the statute." St. Luke Hospital, Inc. v. Straub , 354 S.W.3d 529, 534 (Ky. 2011). In criminal law, the rule of lenity requires any ambiguity in a statute to be resolved in favor of a criminal defendant. White v. Commonwealth , 178 S.W.3d 470 (Ky. 2005).
Littrell first alleges that Chief Bosse violated KRS 524.040 by threatening him in an attempt to influence his testimony in litigation concerning the department. KRS 524.010(8) defines "threat" as "any direct threat to kill or injure a person...." Littrell admitted in his deposition that Chief Bosse did not use or threaten to use physical force against him. In light of that admission, we are convinced that the trial court correctly entered summary judgment because under the undisputed facts, Chief Bosse did not violate KRS 524.040 as defined. Littrell argues that we should adopt a more expansive view and broaden the definition of threat based upon public policy concerns. As previously noted where criminal statutes are concerned, we are required to do the opposite. White, supra . We thus decline Littrell’s invitation to improve upon the definition provided by the legislature.
Next, Littrell asserts that Chief Bosse violated KRS 525.080 by subjecting him to communications which were intended to "harass, annoy, or alarm" him. Pertinent to Littrell’s claim, a violation of KRS 525.080 occurs when a person, with intent to intimidate, harass, annoy, or alarm another person, "(a) [c]ommunicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of electronic or written communication in a manner which causes annoyance or alarm and serves no purpose of legitimate communication;" or "(b) [m]akes a telephone call, whether or not conversation ensues, with no purpose of legitimate communication[.]" Apparently Littrell’s claim is not that Chief Bosse’s communication to him directly was harassing, but that Chief Bosse’s communication with Mr. Newberry was harassing. In disposing of Littrell’s contention, the trial court found 1) that there was no evidence that the communication between Chief Bosse and Newberry did not serve a legitimate purpose; and 2) that the statute is intended to protect the recipient of the communication from being harassed, annoyed, or alarmed; not a third party like Littrell. We concur in the trial court’s assessment and conclude that Chief Bosse did not violate KRS 525.080. Thus, the trial court did not err in entering summary judgment on this aspect of Littrell’s complaint.
Finally, Littrell asserts that Chief Bosse violated KRS 522.030, official misconduct in the second degree. A public servant is guilty of official misconduct when he a) commits an act which constitutes an unauthorized exercise of his official functions; b) refrains from performing a duty imposed upon him by law or which is clearly inherent in the nature of his office; or c) violates any statute or lawfully adopted rule or regulation relating to his office. Littrell predicates his claim against Chief Bosse on violation of KRS 522.030(1)(a).
Although the term "unauthorized" is not defined by statute, Merriam-Webster Dictionary defines that term as "not authorized; without authority or permission[.]" Unauthorized , MERRIAM-WEBSTER DICTIONARY , http://www.merriam-webster.com/dictionary/unauthorized (last visited July 19, 2019). Littrell insists that Chief Bosse’s actions were unauthorized because they were inherently wrong, not because he defied a superior’s instruction or lacked permission to do what he did. Under Littrell’s view of the term unauthorized, virtually every act undertaken by a public servant which is not expressly authorized or for which previous permission has not been given would constitute a crime. Not only does such a construction fail to comport with the rule of lenity, but it would bring public service to a screeching halt. Had the chief’s superiors specifically told him not to engage in the conduct at issue here, there may have been a violation of statute. However, that is not the case. Chief Bosse’s actions fall outside the statute’s intent in proscribing unauthorized exercise of his official functions. As the Supreme Court emphasized in Bailey v. Commonwealth , 790 S.W.2d 233, 234 (Ky. 1990), "[t]he statutory definition of official misconduct in the first degree clearly calls for an official act." Like the situation in Bailey , the acts complained of in this case were outside the scope of "authorized" or "unauthorized." Accordingly, the trial court did not err in granting summary judgment as to the official misconduct claim. In light of our resolution of the factual basis for summary judgment we need not discuss the question of official immunity.
In sum, the Scott Circuit Court correctly determined that there were no genuine issues of material fact and that Chief Bosse and the City of Georgetown were entitled to summary judgment as a matter of law. Accordingly, we affirm its judgment in all respects.
ALL CONCUR.