RENDERED: APRIL 16, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0398-MR

RESHAWNDA SCOTT APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE MITCH PERRY, JUDGE

ACTION NO. 19-CI-000340

IMPERIAL RECOVERY AGENCY, INC. AND 

RUSSELL LESLIE APPELLEES

OPINION

AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON, 

JUDGES.

THOMPSON, L., JUDGE: Reshawnda Scott appeals from an order of the 

Jefferson Circuit Court which granted summary judgment to Imperial Recovery 

Agency, Inc. and Russell Leslie.1 The court’s order dismissed Appellant’s claims 

 

1 Mr. Leslie is an employee of Imperial.
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of malicious prosecution and negligent infliction of emotional distress.2 We find 

no error and affirm.

FACTS AND PROCEDURAL HISTORY

In April of 2016, Appellant entered into a title-lien agreement with 

Santander Consumer USA for the purpose of financing the purchase of a 2015 

Chrysler 200. The agreement included terms indicating that the car would be 

repossessed if Appellant defaulted on the payments. A couple months after 

entering into the agreement, Appellant stopped making payments. Around the time 

that Appellant defaulted on her loan, Santander assigned its interests under the 

agreement to Innovate Loan Servicing Corporation.

Innovate directed Imperial to perform an involuntary repossession of 

the vehicle. The repossession happened at Appellant’s place of employment. 

Appellant was later able to track down the location of the car. Appellant claims 

that she was able to go to the repossession location and retrieve the car without any 

incident and without paying any fees. Appellees claim that someone 

accompanying Appellant to the location brandished a gun and forced Imperial 

employees to turn over the car. Imperial employees then called the police and 

 

2 Appellant’s appeal only concerns the malicious prosecution claim. She has raised no 

arguments regarding the negligent infliction of emotional distress issue.
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reported the car as stolen. Appellees also filed a criminal complaint against 

Appellant.

On August 22, 2016, an Imperial employee requested that police 

accompany him to Appellant’s house in order to effectuate another repossession. 

Once at Appellant’s residence, the police officer who accompanied the tow truck 

driver discovered that the vehicle had been reported stolen. Appellant was arrested 

and charged with receiving stolen property. The vehicle was also repossessed at 

that time.

During Appellant’s probable cause hearing in the criminal division of 

the Jefferson District Court, the officer who arrested Appellant testified about the 

events which occurred on August 22, 2016. There was no testimony during the 

hearing regarding the previous repossession or Appellant recovering her vehicle. 

The district court found there was no probable cause for the arrest and dismissed 

the case. The district judge made the following statement from the bench:

“If there is additional evidence or additional information that the lienholder has, 

perhaps that they had already repossessed the car, and she came and stole it back, 

any additional information can be taken direct through the Commonwealth 

Attorney’s office.”

Following the dismissal of the criminal case, Appellant brought the 

underlying action against Appellees alleging malicious prosecution and negligent 
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infliction of emotional distress. After some discovery, Appellees moved for 

summary judgment. They argued that despite the district court’s dismissal of the 

criminal charges, there was probable cause for Imperial to bring criminal charges 

against Appellant and for the arrest because Appellant impermissibly took the car 

from Imperial after it had been repossessed. The trial court agreed and held that 

Appellant had no right to take possession of the car after it had been repossessed 

without proper payment to her loan servicer. The trial court held there was 

probable cause for the arrest and entered summary judgment in favor of Appellees. 

This appeal followed.

ANALYSIS

 The 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. . . . “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.” Summary “judgment is only proper where the 

movant shows that the adverse party could not prevail 

under any circumstances.” Consequently, summary 

judgment must be granted “[o]nly when it appears 

impossible for the nonmoving party to produce evidence 

at trial warranting a judgment in his favor[.]”

Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citations omitted).

“Historically, the tort of malicious prosecution has been disfavored 

because it runs contrary to the public policy supporting the exposure and 
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prosecution of criminal conduct. We express that disfavor by requiring strict 

compliance with the prerequisites for maintaining a malicious prosecution action.” 

Martin v. O’Daniel, 507 S.W.3d 1, 7 (Ky. 2016) (citations omitted). 

A malicious prosecution action may be established by 

showing that:

1) the defendant initiated, continued, or procured a 

criminal or civil judicial proceeding, or an administrative 

disciplinary proceeding against the plaintiff;

2) the defendant acted without probable cause;

3) the defendant acted with malice, which, in the criminal 

context, means seeking to achieve a purpose other than 

bringing an offender to justice; and in the civil context, 

means seeking to achieve a purpose other than the proper 

adjudication of the claim upon which the underlying 

proceeding was based;

4) the proceeding, except in ex parte civil actions, 

terminated in favor of the person against whom it was 

brought; and

5) the plaintiff suffered damages as a result of the 

proceeding.

Id. at 11-12.

Here, the trial court only addressed the probable cause element of 

malicious prosecution. We believe this element is dispositive in this case; 

therefore, we will focus on it. “[A] prior finding of probable cause at a preliminary 

hearing only raises a presumption that may be rebutted by evidence.” Craycroft v.

Pippin, 245 S.W.3d 804, 806 (Ky. App. 2008) (footnote omitted). We believe the 
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same is true for a prior finding of a lack of probable cause. Even though the 

district court found no probable cause to substantiate the criminal charge, the 

circuit court properly examined the issue again and found there was probable 

cause. We agree with the circuit court. 

Appellant was charged with receiving stolen property, but Imperial’s 

criminal complaint alleged theft by unlawful taking. Kentucky Revised Statutes 

(KRS) 514.030(1) defines theft by unlawful taking as follows:

Except as otherwise provided in KRS 217.181, a person 

is guilty of theft by unlawful taking or disposition when 

he unlawfully:

(a) Takes or exercises control over movable property of 

another with intent to deprive him thereof; or

(b) Obtains immovable property of another or any 

interest therein with intent to benefit himself or another 

not entitled thereto.

We will now examine whether Appellees had probable cause to file 

the criminal complaint against Appellant. “Probable cause, as often defined in this 

court, means such ground as would induce a man of ordinary prudence to believe 

that the person prosecuted had committed the crime charged.” Louisville & N. R.

Co. v. Sharp, 282 Ky. 758, 140 S.W.2d 383, 385 (1940). Here, discovery indicated 

that Appellant’s vehicle had been properly repossessed by Imperial pursuant to the 

title-lien agreement. According to that agreement, Appellant could recover the 

vehicle only after she tendered a certain amount of money to her loan servicer. 
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Appellant made no payments when she recovered the car and took the car without 

Imperial’s permission. Based on these facts, we believe Appellees had probable 

cause to initiate a criminal complaint against Appellant. Furthermore, our holding 

is supported by the statement made by the district court during the probable cause 

hearing in the criminal action.

CONCLUSION

Based on the foregoing, we conclude that Appellees had probable 

cause to file a criminal complaint against Appellant. Seeing as Appellant could not 

satisfy the lack of probable cause element of malicious prosecution, the trial court 

properly granted summary judgment, and we affirm.

ALL CONCUR.

BRIEF FOR APPELLANT:

Shaun A. Wimberly, Sr.

Louisville, Kentucky

BRIEF FOR APPELLEES:

B. Scott Jones

Louisville, Kentucky