Canning v. Poole et al
Filing
114
MEMORANDUM OPINION & ORDER: It is ordered that Brian Privett's 102 Motion for Summary Judgment is GRANTED. It is further ordered that Barbara Poole's 107 Motion for Summary Judgment is GRANTED in part and DENIED in part. It is furthe r ordered that Brian Privett's 103 Motion in Limine is DENIED as moot. It is further ordered that Canning's trial exhibits must provide more specific proof of damages than she has furnished. The scheduling order requires all pretrial com pliance documents to be furnished NLT 7 days prior to the pretrial conference. If Canning fails to provide proof of damages for her breach-of-contract claim, the court will entertain a renewal of Poole's motion for summary judgment. Signed by Judge Jennifer B Coffman on 10/18/2012. (SCD)cc: COR,Pro Se Pla(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 10-16-JBC
NANCY L. CANNING,
V.
PLAINTIFF,
MEMORANDUM OPINION & ORDER
BARBARA W. POOLE, ET AL.,
DEFENDANTS.
***********
This matter is before the court upon the motions for summary judgment of
two defendants, Brian Privett, R.102, and Barbara Poole, R.107. For the following
reasons, the court will grant Privett’s motion and will grant Poole’s motion in part
and deny it in part.
Nancy Canning filed this action after a series of alleged events that resulted
in the seizure of several of her horses. She claims that the defendants unlawfully
entered a farm and seized her equine stock, unlawfully conspired to seize and
control her horses, falsely claimed a debt owed by her, and interfered with her
horse-breeding business. Brian Privett was brought into this suit as a defendant for
his involvement as legal counsel for Barbara Poole in a state court action. Privett
represented Poole in a dispute over a claimed debt owed by Canning to Poole for
unpaid veterinarian bills, and he drafted and filed a veterinarian lien against
Canning’s equine stock. Canning also brings suit against Poole for allegedly
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performing unrequested veterinary services on several of her horses, sending
inaccurate billing statements to Canning, and directing that an unlawful
veterinarian’s lien be filed against Canning’s horses.
Specifically, Canning brings claims of unlawful and unreasonable search and
seizure, due process violations, civil conspiracy, conversion, malicious abuse of
legal process, intentional infliction of emotional distress, and tortious interference
with business against both Privett and Poole. She alleges violations of Kentucky
law against Privett as well as claims of veterinary malpractice, slander, and breach
of contract against only Poole. Because Canning has “fail[ed] to make a showing
sufficient to establish the existence of [] element[s] essential to [her] case” as to all
claims against Privett and most claims against Poole, see Celotex Corporation v.
Catrett, 477 U.S. 317, 322 (1986), the court will grant summary judgment fully in
favor of Privett and partially in favor of Poole.
First, Canning alleges violations of her constitutional right to be free from
unreasonable searches and seizures under the Fourth Amendment pursuant to 42
U.S.C. § 1983. Because neither Privett nor Poole acted under color of state law
when they performed the alleged events, Canning cannot meet the necessary
elements for this claim. Hahn v. Star Bank, 190 F.3d 708, 717 (6th Cir. 1999). In
order to succeed on a § 1983 claim, “a plaintiff must show that the defendants
while (1) acting under color of state law (2) caused the deprivation of a federal
right, constitutional or statutory.” Id. Even though Privett was acting as a statelicensed attorney when he filed the veterinarian lien on behalf of Poole, “private
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attorneys, by virtue of being officers of the court, do not act under color of state
law within the meaning of section 1983.” Id. (citing Barnard v. Young, 720 F.2d
1188, 1189 (10th Cir. 1983)). Canning also argues that Poole and Privett in their
capacities as private actors satisfy the state action component because they were
in a “symbiotic relationship” with the state, but she cites no law to support this
argument. Therefore, summary judgment is appropriate on the § 1983
unreasonable search and seizure claims against Privett and Poole.
Second, Canning’s procedural due process claims against Privett and Poole
cannot succeed.1 Canning alleges that the seizure of her horses by the defendants
constituted a deprivation of her due process of law. The lien and warrant in
question, however, did not authorize the horses to be removed from the property
where they were boarded. R.1-9, p.9. Canning argues that the horses were
“seize[d] and transport[ed] . . . without legal basis.” This alleged deprivation
cannot constitute a violation of procedural due process under § 1983 because “a
deprivation of a constitutionally protected property interest caused by . . .
unauthorized conduct does not give rise to a § 1983 procedural due process claim.”
Zinermon v. Burch, 494 U.S. 113, 115 (1990). The record shows, and Canning
admits, that the seizure of her horses was not legally authorized; therefore,
summary judgment will be granted against her on the due process claims.
Third, Canning’s claim that Privett and Poole unlawfully conspired with other
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Even though Count 2 of Canning’s amended complaint alleges a due process violation generally, her
specific allegations support a procedural due process claim, and she offers no argument in support of
a substantive due process claim.
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defendants to seize and gain ownership and control of her horses cannot succeed
because Canning has failed to present any evidence of a conspiracy between Privett
or Poole and the other defendants. “In order to prevail on a claim of conspiracy,
the proponent must show an unlawful/corrupt combination or agreement between
the alleged conspirators to do by some concerted action an unlawful act.” James v.
Wilson, 95 S.W.3d 875, 897 (Ky. App. 2005)(citing Smith v. Board of Education
of Ludlow, 94 S.W.2d 321 (Ky. 1936)). Canning’s conclusory statements that
Privett, Poole, and other defendants participated in a conspiracy – i.e., that they
“joined to work in concert” to seize her horses – do not pass muster. R.5, p.22-23;
she offers no evidence of such a conspiracy.
Fourth, Canning claims that Privett and Poole’s alleged acts of wrongfully
exercising dominion and control over her horses by instructing others to seize them
constitutes conversion as a substantial interference with the use and enjoyment of
her property. Canning, however, has not presented a prima facie case of
conversion, which requires a showing that “the defendant exercised dominion over
the property in a manner which denied the plaintiff[‘s] rights to use and enjoy the
property and which was to the defendant’s own use and beneficial enjoyment.” Ky.
Ass’n of Counties All Lines Fund Trust v. McClendon, 157 S.W. 3d 626, 632 (Ky.
2005)(citing 90 C.J.S. Trover and Conversion § 4 (2004)). Nowhere does Canning
allege that Privett or Poole exercised dominion over her property for their own use
and enjoyment, nor do the facts indicate such use. Even if the horses were seized
as Canning describes and placed in the possession of Poole and other defendants,
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she never alleges or shows that Poole’s possession was for her own use and
enjoyment rather than as security for an alleged debt; therefore, summary judgment
on those claims is appropriate.
Fifth, Canning claims that Privett, Poole, and others have committed
“malicious abuse of legal process.” R.5, p.25. This claim appears to combine two
separate causes of action, malicious prosecution and abuse of process. Canning
has failed to establish evidence sufficient to defeat summary judgment on either
theory. One required element “necessary to the maintenance of an action for
malicious prosecution” is that a proceeding, which was instituted or continued by
the plaintiff, is terminated “in defendant’s favor.” Raine v. Drasin, 621 S.W. 2d
895, 899 (Ky. 1981)(internal citations omitted). Here, the record is devoid of any
indication or allegation that the state proceeding at issue has been terminated in
Canning’s favor; thus any potential malicious prosecution claim against Privett and
Poole fails.
Nothing in the record shows that Privett, acting in his role as Poole’s
attorney and filing a lien against Canning’s property, acted with an ulterior purpose,
as required to prove abuse of process. See Simpson v. Laytart, 962 S.W. 2d 392,
394 (Ky. 1998). Canning’s conclusory statements about Privett’s acting in
conspiracy with others to deprive Canning of her horses are not enough to show
such an ulterior motive. The lien filed by Privett and signed by a judge indicated
that the horses were not to be removed from the farm where Canning was boarding
them. No evidence shows that Privett filed a lien on behalf of Poole for any reason
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besides securing an alleged debt owed by Canning to Poole.
Also, Canning has shown no ulterior purpose for Poole’s actions. Canning
claims that Poole improperly utilized the lien and warrant, which stated that
Canning’s horses were not to be sold or removed from the property, as a basis for
having the horses seized. But she provides no evidence to support this argument.
Nothing in the record, besides Canning’s own statements, indicates that Poole hired
Privett to file the lien for any reason other than to secure the cost of services.
Even Tommy Wente, Jr., who testified that he saw Poole trying to seize Canning’s
horses, states that Poole claimed she was not paid by Canning for her veterinarian
services. R.1-12, p.4-5. Without more than a scintilla of evidence showing an
ulterior motive by Poole or Privett, summary judgment on these claims is
appropriate.
Sixth, Canning alleges intentional infliction of emotional distress by Privett,
Poole, and others, but she fails to establish any evidence to support her claim that
she suffers severe emotional distress related to the conduct of the defendants.
Although Canning claims that she has identified an expert witness, see R.110, pp.1
& 6, she has not specified which expert could testify as to her severe emotional
distress nor has she offered any proof of her emotional distress. Rather, she has
admitted that “she has received no treatment for any emotional distress or other
mental health issues arising from the facts of this case.” R.90, p.2. Because a
showing of severe emotional distress is necessary for a claim of intentional
infliction of emotional distress, see Humana of Ky., Inc. v. Seitz, 796 S.W.2d 1, 3
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(Ky. 1990), Canning’s claim cannot survive the motions for summary judgment.
Seventh, Canning’s claim of tortious interference with a business relationship
cannot succeed because Canning has failed to establish “the existence of a valid
business relationship or its expectancy” and evidence of special damages, two of
the six required elements of the claim. CMI, Inc. v. Intoximeters, Inc., 918 F.
Supp. 1068, 1080 (W.D.Ky. 1995) (citing Nat’l Collegiate Athletic Ass’n v.
Hornug, 754 S.W. 2d 855 (Ky. 1988)). Canning alleges that Privett interfered with
her horse breeding business by filing a lien on her horses and by “directing and/or
instruct[ing] the . . . Sheriff’s Department to seize and remove [her] horses.” R.5,
p.32. Canning also claims that “Poole went to High View Stables . . . for purposes
of removing key boarding and breeding equipment, and for deliberately interfering
with Plaintiff’s horse breeding business” and that Poole “performed unauthorized
veterinary services and/or administered drugs and/or failed to administer drugs to
Plaintiff’s horses” to further her own business and to interfere with Canning’s horse
breeding business. R.5, p.30. However, nowhere does Canning specifically state
with whom she had a business relationship or expectancy or how Privett or Poole
interfered with a particular business relationship.
Even if Canning’s broad allegations could show the existence of a business
relationship, she has not made a showing of “special damages.” CMI, Inc., 918
F.Supp at 1080 (W.D. Ky. 1995). Canning does not seek, nor does she provide
any evidence to support, special or “pecuniary” damages. Id. at 1081. There is no
“evidence that [Privett or Poole] either caused a third party not to enter into a
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contractual relationship [with Canning] or that they caused someone to discontinue
an existing relationship.” Because a plaintiff “must allege and prove special
damages to recover under this cause of action,” and Canning offers no evidence to
support her claim for tortious interference with her horse breeding business,
summary judgment will be granted.
Eighth, Canning alleges that Privett violated Kentucky law by instructing the
sheriff to “seize and remove [her] horses,” by failing to provide notice to her of the
veterinary lien, by “knowingly and falsely represent[ing] to the Court and to [her]
that KRS 376.470 et al permit[s] a veterinarian to perfect a vet lien by seizure,”
and by “acting to seize [her] horses when [he] knew that the Lien and Warrant”
instructed that her horses be left in custody and control of William Poole. R.5,
p.33. None of these allegations specifies what law Privett allegedly violated.
Canning also claims that Privett violated KRS § § 376.110, 376.120, and 376.130
by allegedly having her horses seized before a hearing was held on the matter.
These statutes provide no cause of action against Privett.
KRS § 376.110 sets forth the process for enforcement of a lien and referral
of the action to a commissioner. The statute does not require the attorney who
filed the lien to refer the case to a commissioner. And “the failure to refer the
cause to the commissioner and have such report before the court when it meets
does not . . . deprive the court of the power or the jurisdiction to enter a judgment
enforcing the lien.” Lorton v. Ashbrook, 295 S.W. 1027, 1028 (Ky. 1927). KRS
§§ 376.120 and 376.130 concern duties of the commissioner and do not apply to
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Privett as the filing attorney. Thus, summary judgment is appropriate.
Ninth, Canning claims that Poole committed veterinary malpractice by
departing from the veterinary medical community’s standard of care when she
performed allegedly unauthorized services that resulted in the termination or
prevention of pregnancies and injuries in several of Canning’s horses. Canning,
however, has offered no expert witnesses to testify in support of her claims.
“Generally, liability for medical negligence requires expert medical testimony
establishing the applicable standard of care and the breach thereof,” unless other
medical testimony provides an adequate foundation for res ipsa loquitur or the
negligence and injury are “‘so apparent that laymen with a general knowledge
would have no difficulty in recognizing it.’” Green v. Owensboro Medical Health
System, Inc., 231 S.W.3d 781, 783-84 (Ky. App. 2007)(citing Jarboe v. Harting,
397 S.W.2d 775, 778 (Ky. 1965)). Canning argues the applicability of neither of
those two exceptions.
Even though Canning has offered a list of potential witnesses that includes at
least two doctors, she has never stated whether any of these doctors will testify or
are qualified to testify as to the standard of care in the veterinary community. The
affidavits of Dr. Kendall and Dr. Burns do not discuss the issue. R.5-12 & 5-13.
Tommy Wente, Jr., provides testimony that Poole administered unnecessary and
unauthorized shots to Canning’s horses. But Canning has not shown that Wente,
as someone who boards and takes care of Canning’s horses but is not a doctor of
veterinarian medicine, is a medical expert on the issue. Because expert testimony
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is necessary to establish Canning’s claim of veterinary malpractice and the deadline
for disclosure of expert witnesses has passed, see R.67, summary judgment will be
granted.
Tenth, Canning alleges that Poole committed slander by making and
publishing “defamatory statements about [her] to veterinarians, horse haulers” and
others, which “damaged [her] reputation in the horse breeding industry.” R.5,
pp.34-35. However, Canning has not provided any evidence of specific
statements, including to whom or when statements were made or the content of
such statements. An essential element of defamation is “a false and defamatory
statement concerning another.” Harstad v. Whiteman, 338 S.W.3d 804, 810 (Ky.
App. 2011)(citing Restatement (Second) of Torts § 558 (1997)). Without evidence
of a particular statement, Canning has failed to establish the existence of an
essential element of her claim, and summary judgment is appropriate.
Lastly, Canning claims that Poole breached an oral contract in two ways: by
failing “to perform requested services and/or perform[ing] unauthorized services”
which were detrimental to Canning’s horses, and by failing to provide Canning with
timely invoices. R.5, p.36. Poole argues that Canning’s lack of expert testimony on
the issues of whether Poole’s alleged conduct deviated from the standard of care
required by veterinarians and whether the alleged conduct is causally connected to
any specified damages warrants a grant of summary judgment on this claim.
However, a genuine dispute remains as to whether the three required elements for
a breach-of-contract claim have been established: “1) existence of a contract; 2)
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breach of that contract; and 3) damages flowing from the breach of contract.”
Metro Louisville/Jefferson County Gov’t v. Abma, 326 S.W.3d 1, 8 (Ky. App.
2009).
Poole and Canning had an oral agreement for veterinarian services in
exchange for a fee. Canning alleges that Poole breached the contract for services
by performing services outside the context of the agreement and by failing to
perform tasks upon which the parties agreed. No expert testimony is needed to
show whether Poole deviated outside any agreed-upon services. Even though an
expert witness might be necessary to prove harm from the performance of
unauthorized services by Poole on Canning’s horses, Canning also alleges damages
in the form of her having to defend Poole’s lien action based upon Poole’s failure to
provide timely invoices. Canning does not define “defend,” but the court assumes
this means expenses and legal fees and will construe her pleading generously
because she is pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972).2 At this
stage, the court accepts Canning’s facts that her defense of the lien was based on
untimely invoices. Smith Wholesale Co., Inc. v. R.J. Reynolds Tobacco Co., 477
F.3d 854, 861 (6th Cir. 2007). Poole provides no legal argument as to why this is
not a valid claim for damages; therefore, a genuine issue remains as to whether
Canning can recover on her breach-of-contract claim, and the court will deny
summary judgment. Accordingly,
IT IS ORDERED that the defendant Brian Privett’s motion for summary
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Canning is cautioned, however, that the court will require more specificity at pretrial conference
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judgment, R.102, is GRANTED.
IT IS FURTHER ORDERED that the defendant Barbara Poole’s motion for
summary judgment, R.107, is GRANTED in part and DENIED in part, in accord with
this opinion. Summary judgment is granted for Poole on all claims asserted against
her except the breach-of-contract claim.
IT IS FURTHER ORDERED that the defendant Brian Privett’s motion in limine,
R.103, is DENIED as moot.
IT IS FURTHER ORDERED that Canning’s trial exhibits must provide more
specific proof of damages than she has heretofore furnished. Specifically, the
scheduling order requires all pretrial compliance documents to be filed no later than
seven (7) days before the pretrial conference. If Canning fails to provide proof of
damages for her breach-of-contract claim, the court will entertain a renewal of
Poole’s motion for summary judgment.
Signed on October 18, 2012
and trial.
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