RENDERED: SEPTEMBER 10, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1040-MR

DEBORAH OSTAFI AND ROBERT 

OSTAFI 

APPELLANTS 

v. 

APPEAL FROM GALLATIN CIRCUIT COURT

HONORABLE JAMES R. SCHRAND, JUDGE

ACTION NO. 18-CI-00074

GARY GABBARD AND JODIE 

GABBARD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES.

CALDWELL, JUDGE: Deborah and Robert Ostafi appeal from a Gallatin Circuit 

Court judgment on a jury verdict regarding trespass and malicious prosecutions 

claims arising from their disputes with neighboring landowners Gary and Jodie 

Gabbard. We affirm. 
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FACTS AND PROCEDURAL HISTORY

The Ostafis and the Gabbards own adjoining waterfront properties in 

Gallatin County. The Gabbards placed a manufactured or mobile home on their 

property. The Ostafis claimed that the home was placed in a manner violating 

setback and other requirements in local zoning rules, invading their privacy and 

creating a nuisance. 

In fall 2016, Deborah Ostafi (“Deborah”) planted several evergreen 

trees near the boundary between the Ostafis’ and the Gabbards’ properties. Shortly 

afterward, she requested that a surveyor mark the boundary between the two 

properties. She found out that some of the newly planted trees were actually on the 

Gabbards’ property. 

Gary Gabbard (“Gary”) contacted the Ostafis several times over the 

next several months, asking them to move trees from the Gabbards’ property. He 

said his wife, Jodie Gabbard (“Jodie”), did not want them there. In July 2017, the 

Ostafis saw that some of the trees which Deborah planted had been removed. 

However, the Ostafis did not actually witness anyone removing the trees. 

Deborah reported the trees’ removal to the sheriff. According to the 

sheriff’s written report, Deborah contacted the sheriff about someone stealing trees 

she planted on the property line and Deborah thought Gary was responsible for the 
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trees’ disappearance. The report states there were holes in the ground where 

something had been planted close to the property line.

Deborah next consulted the County Attorney. The County Attorney 

set up a mediation between the Ostafis and Gabbards in late July 2017 to try to 

resolve their disputes. The mediation was unsuccessful. 

At some point, some stakes marking the property line boundary had 

been removed or disappeared. The Ostafis spent about $1,000 for a private 

surveyor to re-survey and re-mark the boundary lines. Also, the Ostafis believed 

that some of their trees on their property appeared to be poisoned. And they 

perceived their underground dog fence was damaged by the Gabbards’

construction of a seawall – in which stones were placed on the Ostafis’ property 

and then later removed. 

Deborah signed a criminal complaint in late August 2017 against Gary 

which the County Attorney prepared after consulting with her. She averred that 

Gary had “unlawfully removed trees that been planted by affiant; unlawfully 

poisoned tree or trees planted by affiant, unlawfully placed new double wide 

mobile home within 6 feet of the property line in violation of the local planning 

and zoning sideline set back of 10 feet. . . .” (Plaintiff’s Trial Exhibit 3 in Record 

on Appeal). Deborah also averred that Gary had unlawfully removed survey stakes 

marking the property line, in violation of Kentucky Revised Statutes (KRS)
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433.770,

1

and that it cost her $1,000 to have the property line re-surveyed and remarked. 

The County Attorney filed proceedings against Gary in district court, 

alleging inter alia that Gary willfully removed and/or damaged boundary markers

and committed third-degree criminal mischief.

2

 Gary obtained representation of 

counsel for the district court proceeding. 

Several months after the criminal charges were filed, Gary, through 

counsel, filed a motion to dismiss the criminal charges. In this motion, he stated 

“[t]he Commonwealth and Defendant [Gary] have agreed that the felony case for 

removal of the boundary marker would be pursued as a misdemeanor and 

 

1 KRS 433.770 (titled as “Willfully removing or damaging boundary marker”) provides: 

(1) Any person who fraudulently and willfully removes, defaces, 

cuts down, or destroys a cornertree, post, cornerstone, or any 

monument erected to designate the boundary of this state, or of 

any county or city, or the boundary of any tract or lot of land, 

shall be guilty of a Class D felony and shall cause the marker, 

at his or her own expense, to be reestablished by a professional 

land surveyor.

(2) Any person who willfully and knowingly, but without a 

felonious intent, removes, defaces, cuts down, or destroys a 

tree, post, stone, or any monument erected to designate the 

boundaries of this state or of any county or city, or the 

boundaries of any tract or lot of land, shall cause the marker, at 

his or her own expense, to be reestablished by a professional 

land surveyor.

2 Willfully and fraudulently removing a boundary marker is a Class D felony. KRS 433.770(1). 

Third-degree criminal mischief is a Class B misdemeanor. KRS 512.040(2). The complaint 

filed in district court also alleged violation of local zoning ordinances. 
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recognize a civil remedy is available under KRS 433.770(2).” He requested that 

the district court dismiss the criminal case for the dispute to be resolved as a civil 

matter. The district court entered an order granting the motion to dismiss, stating 

that the case was civil rather than criminal on docket notations. 

After the criminal case against Gary was dismissed, the Ostafis filed a 

civil complaint against the Gabbards in Gallatin Circuit Court. They asserted 

claims including trespass and violation of zoning laws. The Gabbards answered 

and asserted counterclaims including trespass against the Ostafis. Gary also 

asserted a counterclaim for malicious prosecution against Deborah. 

The case proceeded to a jury trial. The sheriff testified that Deborah 

had contacted him to file a police report after noticing the removal of the trees and 

that she suspected Gary was involved based on his communications with her and 

her family. But he did not remember her saying that she had actually seen 

someone remove the trees. He also testified that Deborah did not tell him that the 

trees removed had actually been planted on the Gabbards’ property. He testified 

about wanting to verify where the property lines were, but he found that some 

markers were missing when he went to the scene.

Similarly, the County Attorney testified that Deborah consulted him 

about such problems as the missing trees and an apparently poisoned tree. He also 

did not remember her saying she actually witnessed removal of trees or survey 
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markers, or the poisoning of trees. He testified to taking her at her word and 

drawing up the complaint based on what she told him. He testified she had not 

expressed a desire to have Gary convicted of a particular crime or thrown in jail

but simply sought his help in finding a solution to her problems. 

Gary testified to telling the Ostafis that Jodie did not want the trees on 

their property on several occasions, but that the Ostafis really did not respond to 

his statements. He also testified to telling his wife to remove stones from the 

Ostafis’ property when he became aware that the Ostafis were not happy about his 

building a seawall and that the Gabbards’ contractor had placed stones on the 

Ostafis’ property when building the seawall. 

Jodie admitted in trial testimony that she had actually removed the 

trees at issue. She testified that she had told an adult relative of the Ostafis, in July 

2017, that the trees on the Gabbards’ property needed to be removed within seven 

days. And she testified that when the trees remained on the Gabbards’ property ten 

days later, she then removed the trees and threw them away in the bog. She also 

testified that she had made a video on her phone to show that the removed trees 

had been located within the Gabbards’ property as shown by the markers, which 

were still there at the time. She also admitted that she had gone on to the Ostafis’

property to remove some stones left there from construction of the Gabbards’
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seawall at Gary’s direction after Gary discovered that the contractor had left stones 

on the Ostafis’ property. 

During trial, Deborah moved for a directed verdict on the malicious 

prosecution claim arguing there was no evidence of her lacking probable cause or 

acting with malice. The trial court denied her directed verdict motion. The Ostafis 

also moved for a mistrial, based on allegations of witness tampering by the 

Gabbards’ attorney. The trial court reserved the mistrial motion, allowing the 

parties to brief the issue following trial. The Ostafis’ counsel also noted an 

objection to the trial court’s instruction on malicious prosecution. 

The jury found that Jodie had intentionally trespassed on the Ostafis’

property, but it awarded $0 in damages for that trespass. Otherwise, the jury found 

against the Ostafis on all the claims the Ostafis asserted.

3

 

On the Gabbards’ counterclaims, the jury found that Deborah and/or 

Robert Ostafi had intentionally trespassed on the Gabbards’ land and awarded $75 

in damages for this trespass. It also found for Gary Gabbard on his counterclaim 

against Deborah Ostafi for malicious prosecution and it awarded $4,500 in 

damages for the malicious prosecution.

 

3 The trial court did not instruct the jury about the zoning violations alleged in the Ostafis’

complaint as it concluded there was no private right of action for such violations. No issues 

about this conclusion have been raised on appeal. The local zoning enforcement board declined 

to take any further actions regarding alleged zoning violations until this civil lawsuit was 

resolved. 
-8-

The trial court entered judgment in accordance with the jury’s verdict

and awarded the Gabbards court costs as the prevailing party. Its original trial 

order and judgment was corrected on motion to reflect that the malicious 

prosecution claim concerned only Gary as the plaintiff and Deborah as the 

defendant. Thus, the judgment on appeal is styled as an amended trial order and 

judgment. Following the resolution of various post-trial motions, the Ostafis filed 

a timely appeal. Further facts will be provided as necessary as we analyze issues 

raised on appeal. 

ANALYSIS

Before addressing the specific issues raised on appeal, we note that an 

appellant’s brief must contain “at the beginning of the argument a statement with 

reference to the record showing whether the issue was properly preserved for 

review and, if so, in what manner.” Kentucky Rules of Civil Procedure (CR)

76.12(4)(c)(v). The Argument portion of the Appellants’ brief filed by the Ostafis 

begins with a very general preservation statement that: “All errors discussed 

below were preserved in the motions and objections of the parties.” Unfortunately, 

this preservation statement is not helpful to this Court in identifying if or how any

specific issue raised on appeal was presented to the trial court and therefore 

preserved for appeal. 
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Fortunately, we can discern from the more specific discussion of 

some issues in the Ostafis’ brief how such issues were presented to the trial court 

and preserved for review in the record on appeal. But to the extent that the Ostafis 

have failed to identify how any particular issue was preserved for our review, this 

Court has the discretion to strike portions of the brief or to review only for 

manifest injustice. Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). 

Furthermore, any inadequately preserved issue may be reviewed only for palpable 

error under CR 61.024rather than under otherwise applicable standards of review 

for that issue. With this caveat in mind, we assess whether each error alleged by 

the Ostafis amounted to reversible error.

No Reversible Error in Denial of Motion for Mistrial

The Ostafis’ first claim of error is that the trial court abused its 

discretion in denying their motion for a mistrial. Clearly, this issue is preserved for 

review in light of their filing a motion for a mistrial. The Ostafis’ counsel orally 

moved for a mistrial before the conclusion of trial, with the trial court reserving the 

issue and allowing the parties to brief it after trial. 

 

4 CR 61.02 provides: “A palpable error which affects the substantial rights of a party may be 

considered by the court on motion for a new trial or by an appellate court on appeal, even though 

insufficiently raised or preserved for review, and appropriate relief may be granted upon a 

determination that manifest injustice has resulted from the error.”
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We review the trial court’s denial of the motion for mistrial under an 

abuse of discretion standard of review. Gould v. Charlton Co., Inc., 929 S.W.2d 

734, 741 (Ky. 1996) (“The trial court’s decisions to overrule the motions 

for mistrial and a new trial cannot be disturbed absent an abuse of discretion. . . .”). 

As the basis for their mistrial motion, the Ostafis alleged that the 

Gabbards’ counsel had engaged in witness tampering. Specifically, they alleged 

that the Gabbards’ counsel advised two witnesses not to appear when the Ostafis’

counsel subpoenaed the witnesses to produce documents. They pointed to an email 

by the Gabbards’ counsel stating “I am notifying our two expert witnesses 

specifically not to appear. . . .” The Ostafis alleged they did not receive the 

subpoenaed records as a result. 

The Ostafis also claimed that the Gabbards’ counsel had contacted 

their witness, Paul Norris, in a way which Norris perceived as threatening. 

According to the Ostafis, Norris asked the Ostafis’ counsel to draft an affidavit 

concerning the allegedly threatening phone call but then declined to sign the 

affidavit and testified in a manner inconsistent with the proposed affidavit. 

The unsigned affidavit indicated that the Gabbards’ counsel attempted 

to use a prior attorney-client relationship with Norris to her advantage, that the 

Gabbards’ counsel advised Norris (who lived in Alabama) that the out-of-state 

subpoena was defective, and that she preferred him not to attend. And the 
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unsigned affidavit also stated that “when he refused to acquiesce, [the Gabbards’] 

counsel stated that the next telephone call Mr. Norris should expect to receive 

would be from John Wright, Gallatin County Prosecutor which he [Norris] 

perceived as a threat.” In another affidavit that was signed, the Ostafis’ counsel 

averred that Norris called to say he was worried about what would happen if he 

signed the affidavit prepared for him but Norris would be happy to testify about the 

truth of the contents of the prepared, unsigned affidavit. 

At trial, Norris testified that the Gabbards’ counsel called him about a 

month before trial, that she indirectly asked him not to appear, and that the Gallatin 

County Attorney’s name came up in their conversation but he did not remember 

why he should call the County Attorney or why the County Attorney should call 

him. The Ostafis point out that the Gabbards’ counsel did not ask Norris about the 

phone call in cross-examination after he testified about her telling him indirectly 

not to come to trial during direct examination. But as the Gabbards point out, the 

Ostafis’ counsel also did not follow up further through additional inquiry on redirect. 

The Gabbards filed a response to the Ostafis’ mistrial motion, 

attaching a further email from their counsel sent to the Ostafis’ counsel in which 

the Gabbards’ counsel explained that she had misspoken when telling the Ostafis’

counsel that she told the expert witnesses not to appear in an earlier email. Instead, 
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she said “I told my expert witnesses to appear but not to give you the documents 

you requested until I was present, and the Court had ruled on the motion” to quash 

the subpoena. (The Gabbards’ motion to quash the subpoena duces tecum was 

granted by the trial court prior to trial.) 

The Gabbards also attached to their response supporting affidavits 

from their counsel and from another attorney who had overheard their counsel’s 

discussion with Norris. The Gabbards’ counsel averred that she did not tell Norris 

he did not have to appear. Instead, she averred that, during a four-minute 

conversation, she asked Norris what he knew about the case and he replied 

“nothing” and denied having any direct knowledge about what happened but had 

only heard things about the neighbors’ disputes. She also averred that Norris 

complained about having to travel several hundred miles to appear at trial and that 

she advised him she was not his attorney and could not give him advice, but she 

suggested that he consult an attorney. When Norris asked what any Alabama 

attorneys might know, she asked if he knew any attorneys in Gallatin County 

(Kentucky) and he said he knew two attorneys including “Spike” Wright (the 

Gallatin County Attorney). So, counsel suggested he call one of the attorneys he 

knew about his subpoena questions. She concluded her affidavit by averring that 

her notes about the conversation with Norris read: “He doesn’t know anything or 

why he was subpoenaed.” 
-13-

The other attorney who overheard the conversation averred that the 

Gabbards’ counsel told Norris she was not his attorney and that Norris should 

consult an attorney of his own choosing about any questions about the subpoena. 

He also averred that the Gabbards’ counsel did not tell Norris he did not have to 

appear at trial pursuant to the subpoena. 

The Ostafis’ counsel also filed his own affidavit in response and that 

of a paralegal in his office who overheard a phone call with Norris. The Ostafis’

counsel averred that Norris called the Ostafis’ counsel about a month prior to trial 

to tell him that Norris received a phone call from the Gabbards’ counsel. He 

further averred that Norris requested he prepare an affidavit about this. 

The Ostafis’ counsel and the paralegal also averred that about two 

weeks after the first phone call, Norris called again to say he was worried about 

signing an affidavit but would voluntarily testify for the Ostafis. The affidavits 

also stated that Norris felt the Gabbards’ counsel used a prior attorney-client 

relationship with him to her advantage and that Norris reported telling the 

Gabbards’ counsel she was acting unethically. The affidavits recount Norris’

saying that the Gabbards’ counsel advised him that the subpoena was defective,

and she preferred he not appear and “that the next telephone call he should expect 

to receive would be from John Wright, Gallatin County Prosecutor.” 
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In its order denying the mistrial motion, the trial court cited authority 

indicating that mistrial is an extreme remedy and should only be granted “when 

there is a fundamental defect in the proceedings which will result in a manifest 

injustice” such that a party is deprived of a fair and impartial trial “and the 

prejudicial effect can be removed in no other way.” (Record on Appeal (R.), p. 

1487) (quoting Gould, 929 S.W.2d at 738). The trial court then determined that a 

mistrial was not merited, explaining that:

The Court finds that the conduct alleged by Plaintiffs [the 

Ostafis] did not result in a fundamental defect that 

resulted in a manifest injustice to Plaintiffs. In reviewing 

the correspondence between counsel, Attorney Baxter 

[counsel for the Gabbards] expressed concern not only 

that Attorney Axon [counsel for the Ostafis] had issued 

the subpoenas without giving her notice but also that she 

had identified the witnesses as experts. Attorney Baxter 

informed Attorney Axon that she did not tell the 

witnesses not to appear, but asked that they not provide 

any documents until the Court ruled on her Motion to 

Quash the Subpoenas. Additionally, the Court cannot 

find that the telephone call from Attorney Baxter to Mr. 

Norris caused him to change his opinions. Also, as 

argued by Defendants [the Gabbards], some of these 

opinions may have been properly objected to.[5]

Considering the affidavits of the Gabbards’ counsel and the other 

attorney who overheard her conversation with Norris, Norris’s trial testimony, and 

 

5 Apparently the Ostafis wished to call Norris to testify about his perceptions of the Gabbards’

character, but the Gabbards argued that such character evidence was not relevant to properly 

determining issues in controversy. 
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the affidavit prepared by the Ostafis’ counsel never actually being signed by 

Norris, we conclude that the trial court did not abuse its discretion in denying the 

mistrial motion despite any conflicts with the affidavits of the Ostafis’ counsel and 

his paralegal. 

In addition to unsuccessfully claiming that the trial court should have 

granted a mistrial for alleged misconduct by the Gabbards’ counsel, the Ostafis 

claim other errors by the trial court. Although not specifically alleging errors 

about the resolution of trespass or other claims, they appear to focus on 

challenging the validity of the trial court’s judgment on the jury verdict on 

malicious prosecution. 

Following their mistrial argument, the Ostafis claim that the trial 

court’s amended trial order and judgment is “clearly erroneous” focusing on 

alleged errors concerning the malicious prosecution claim, especially probable 

cause or lack thereof. Despite the heading more generally alleging error in the 

amended trial order and judgment, this section of their brief appears to specifically 

allege error in the trial court’s jury instructions and/or in the sufficiency of the 

evidence to support the malicious prosecution claim. We address each issue in 

turn.
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Any Error in Content of Malicious Prosecution Jury Instruction About 

Probable Cause Not Properly Preserved and Not Subject to Appellate Review

As stated by the Kentucky Supreme Court: “a trial court’s decision on 

whether to instruct on a specific claim will be reviewed for abuse of discretion; the 

substantive content of the jury instructions will be reviewed de novo.” Sargent v. 

Shaffer, 467 S.W.3d 198, 204 (Ky. 2015). CR 51(3) explicitly sets forth how 

alleged errors in jury instructions must be specifically presented to the trial court 

for such errors to be properly preserved: 

No party may assign as error the giving or the failure to 

give an instruction unless he has fairly and adequately 

presented his position by an offered instruction or by 

motion, or unless he makes objection before the court 

instructs the jury, stating specifically the matter to which 

he objects and the ground or grounds of his objection.

(Emphasis added.) And as the Kentucky Supreme Court has recently stated: “if a 

party fails to preserve properly a challenge to jury instructions in the trial court, the 

challenge is not entitled to appellate review.” Norton Healthcare, Inc. v. 

Disselkamp, 600 S.W.3d 696, 709-10 (Ky. 2020). 

To the extent that the Ostafis argue that the contents of the trial 

court’s jury instruction on malicious prosecution incorrectly stated the law 

concerning probable cause or lack thereof, we conclude that this challenge was not 

properly preserved for review and thus the Ostafis are not entitled to appellate 
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review on this argument. Id. So, we need not review the contents of the malicious 

prosecution instruction regarding probable cause or lack thereof. 

As the Gabbards point out, the Ostafis’ brief does not specifically 

point out how any error in the trial court’s jury instruction was preserved for 

review. And neither party has directed our attention to any portion of the record in 

which they tendered proposed written jury instructions. 

In the Ostafis’ reply brief at page 2, they cite to a portion of the trial 

recording in which their counsel orally noted an objection to Instruction No. 9 –

the malicious prosecution instruction. Video Record (VR) 12/4/2019 2:51:56-

2:52:02. But we heard no specific discussion of how to address probable cause in 

the malicious prosecution instruction in this cited portion of the recording – despite 

the argument in their appellate briefs that the trial court erred in the contents of its 

malicious prosecution instruction regarding probable cause, and/or erred in 

submitting the question of probable cause to the jury rather than simply 

determining that Deborah had probable cause to set in motion the criminal 

proceedings. 

Although the Ostafis’ counsel had argued there was no evidence of 

Deborah lacking probable cause, the discussion about the contents of the 

malicious prosecution instruction around the cited recording time concerned other 

matters – such as language about whether Deborah’s motive was “to coerce the 
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collection of money from the Defendant [Gary] for her trees” or whether the 

instruction listed all allegations made by Deborah in the criminal complaint she 

signed. The Ostafis did not specifically object to any particular language in the 

instruction in regard to probable cause from our review of the cited recording. In 

sum, the Ostafis have failed to show how they properly preserved any alleged error 

in the contents of the trial court’s jury instruction on malicious prosecution 

regarding probable cause or lack thereof.

6

 

While perhaps the Ostafis effectively did preserve the issue of 

whether the trial court should submit questions of probable cause to the jury in jury 

instructions, we conclude that the trial court did not abuse its discretion in 

submitting the issue to the jury as the evidence presented created a factual issue for 

the jury to resolve as we explain below. 

No Reversible Error in Denying Motions for Directed Verdict and for 

Judgment Notwithstanding the Verdict (JNOV)

Elements of a malicious prosecution claim are: 1) initiation, 

continuation, or procurement of a judicial proceeding, 2) without probable cause, 

3) with malice, meaning “seeking to achieve a purpose other than bringing an 

 

6 While perhaps the Ostafis more specifically argued how to address questions of probable cause 

in the malicious prosecution instruction at some other point, this Court should not have to search 

the record – here including recordings of a three-day trial and of hearings on other dates in 

addition to eleven bound volumes of written record – to see where the issue is properly 

preserved. See, e.g., Porter v. Allen, 611 S.W.3d 290, 293 (Ky. App. 2020). 
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offender to justice” in the criminal context, 4) termination of the proceeding in 

favor of the person it was brought against, and 5) damages suffered as a result. 

Seiller Waterman, LLC v. RLB Properties, Ltd., 610 S.W.3d 188, 196 (Ky. 2020)

(quoting Martin v. O’Daniel, 507 S.W.3d 1, 11-12 (Ky. 2016)). 

The Ostafis claim that the evidence does not support the jury’s finding 

of malicious prosecution of Gary by Deborah and that the trial court “erred in 

presenting the issue of probable cause to the jury.” It is not entirely clear whether 

they simply allege error in the jury instructions (which we reject above), or 

whether they simply mean to argue that the trial court erred in submitting the 

question of probable cause to the jury and not directing a verdict in Deborah’s 

favor on the malicious prosecution claim. They also challenge the trial court’s 

denial of their post-trial motion for a JNOV.

A ruling on a motion for a JNOV is subject to the same standard of 

review as a ruling on a motion for a directed verdict. It is difficult to prevail on an 

appeal of a trial court’s denial of a motion for a directed verdict or a JNOV. The 

appellate court must not disturb the trial court’s decision to deny a directed verdict 

or a JNOV unless its decision is clearly erroneous. Estate of Moloney v. Becker, 

398 S.W.3d 459, 461 (Ky. App. 2013). 

In ruling on a motion for a directed verdict or a JNOV, the trial court 

must “consider the evidence in the strongest possible light in favor of the party 
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opposing the motion” and “give the opposing party the advantage of every fair and 

reasonable inference which can be drawn from the evidence.” Id. (quoting Taylor 

v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985)). So, it cannot grant a directed 

verdict or JNOV “unless there is a complete absence of proof on a material issue in 

the action, or if no disputed issue of fact exists upon which reasonable [persons] 

could differ.” 

Given the very limited circumstances in which a trial court may 

properly grant a directed verdict or JNOV and the very deferential standard of 

review for such rulings, an appellate court should not reverse the denial of a 

directed verdict or a JNOV unless “it is shown that the verdict was palpably or 

flagrantly against the evidence such that it indicates the jury reached the verdict as 

a result of passion or prejudice.” Becker, 398 S.W.3d at 461 (quoting Peters v. 

Wooten, 297 S.W.3d 55, 65 (Ky. App. 2009)). 

Keeping in mind the trial court’s duty to assess the evidence in the 

light most favorable to Gary and the evidence presented at trial, we cannot say that 

the trial court clearly erred in not finding either a complete absence of proof on a 

material issue or a lack of factual dispute on a material issue in regard to the 

malicious prosecution claim – particularly on probable cause or malice. Although 

there may not have been affirmative evidence of Deborah falsely telling the 

authorities she directly witnessed Gary committing any offense, Deborah 
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indisputably signed a criminal complaint against Gary which affirmatively alleged 

he committed criminal acts.7 And the sheriff testified to Deborah not telling him 

that the removed trees had been on the Gabbards’ property despite Deborah 

admitting in her testimony that she had found out some trees were on the 

Gabbards’ property after planting the trees. Further, the testimony of all parties 

indicated some mutual animosity or suspicion in their dealings. 

Construing the evidence and all reasonable inferences therefrom in 

Gary’s favor, there was sufficient evidence to support findings that Deborah acted 

without probable cause and with malice. We are aware that malice must be 

demonstrated by independent evidence rather than just simply being inferred from 

lack of probable cause. Seiller Waterman, 610 S.W.3d at 200. Yet, construing the 

evidence and inferences in Gary’s favor, the jury’s finding that Deborah acted for 

revenge or for a purpose other than just seeking justice – specifically, using 

criminal proceedings to get Gary to pay for her trees or survey fees – is supported 

by substantial evidence and not clearly erroneous. We discern no reversible error 

in the trial court’s denying the Ostafis’ directed verdict motion despite their claims 

of insufficient evidence of malice. 

 

7 Despite the Gabbards’ claim in their brief that the criminal complaint signed by Deborah says 

she saw Gary commit the complained-of actions, the criminal complaint does not explicitly say 

that she saw or otherwise witnessed Gary doing such actions. Instead, she simply avers that 

Gary committed the actions. Whether Deborah had sufficient information to have probable 

cause to believe that Gary committed the actions was a key issue in dispute which the trial court 

properly submitted to the jury via its malicious prosecution instruction. 
-22-

Furthermore, given our review of the evidence presented at trial, we 

cannot say that the verdict was “palpably or flagrantly against the evidence” or 

indicates that the jury reached its verdict as a result of passion or prejudice. In 

sum, there was no clear error in the trial court’s decision to deny the Ostafis’

requested relief for a directed verdict and for a JNOV. 

No Reversible Error in Denying Motion for New Trial

The Ostafis argue that the trial court erred in denying their motion for 

a new trial. They argue the judgment on the jury verdict is not supported by the 

evidence and contrary to law. 

We cannot disturb the trial court’s denial of the motion for a new trial

“absent a manifest error or abuse of discretion.” Gould, 929 S.W.3d at 741. As 

discussed earlier, the Ostafis have failed to demonstrate reversible error in regard 

to the sufficiency of the evidence or in the trial court’s application of the law. 

Thus, from our review of the record before us, we discern no manifest injustice or 

abuse of discretion in the trial court’s denial of their motion for a new trial. 

No Reversible Error in Trial Court’s Order Granting in Part Motion for 

More Specific Findings

The Ostafis argue that the trial court’s order granting in part their

request for more specific factual findings under CR 52.02 is “clearly erroneous.” 

They requested more specific findings regarding why the trial court denied a 

directed verdict on malicious prosecution, and argued that Gary failed to prove that 
-23-

Deborah lacked probable cause and acted with malice. They contend that the 

findings rendered by the trial court in this order are not specific enough to allow 

meaningful appellate review. We disagree. 

The trial court’s order noted that the Ostafis argued that Gary failed to 

prove that Deborah lacked probable cause when she signed her affidavit for the 

criminal complaint against him. And it noted that the Gabbards argued that 

Deborah lacked probable cause because she testified to never seeing Gary remove 

her trees, poison her trees, or remove survey markers. It also noted Deborah’s 

argument that she relied on the advice of the County Attorney when signing the 

affidavit,8 but nonetheless concluded that a directed verdict based on probable 

cause was not appropriate considering the testimony of Deborah, the Gabbards, 

and the County Attorney, and other evidence admitted at trial – which would 

implicitly include the criminal complaint signed by Deborah. 

The trial court also specifically concluded that a directed verdict based 

on lack of termination of proceedings in Gary’s favor was not appropriate as “[t]he 

District Court signed an order dismissing the charges against him.” The Ostafis

argue that the dismissal was not really a dismissal on the merits finding Gary not 

guilty of the charges. 

 

8

In response to Deborah’s arguments that she relied on advice of counsel, the Gabbards pointed 

out to the trial court that the County Attorney was not counsel for Deborah. 
-24-

The motion to dismiss indicated the Commonwealth’s and Gary’s 

agreement to treat the survey marker removal matter as a misdemeanor rather than 

a felony, as well as Gary’s request to dismiss the criminal case entirely. The 

district court granted the motion to dismiss, simply stating that the case is civil and 

not criminal. In essence, it was a determination in Gary’s favor on the criminal 

charges – despite leaving open the possibility of the Ostafis’ recovery in a civil 

context.9 Thus, it was a determination in Gary’s favor for purposes of the 

malicious prosecution claim here – which related to Deborah’s participation in 

bringing about criminal charges, NOT a civil lawsuit. 

Despite the Ostafis’ arguments to the contrary, we believe the trial 

court’s factual findings are sufficient to permit meaningful appellate review. 

Despite the Ostafis’ arguments that probable cause was definitively established, the 

trial court indicated that some evidence on the matter appeared to be conflicting – a 

finding which we cannot say is clearly erroneous from our review of the evidence. 

In sum, we discern no reversible error in the trial court’s order granting in part the 

Ostafis’ motion for more specific factual findings. 

 

9

In the past, litigants sometimes alleged claims of “malicious prosecution” for the wrongful 

institution of a civil action which would more accurately be referred to as claims for “wrongful 

use of civil proceedings.” See, e.g., Prewitt v. Sexton, 777 S.W.2d 891, 894 (Ky. 1989) 

(distinguishing torts of malicious prosecution for wrongfully bringing about criminal 

proceedings and wrongful use of civil proceedings for filing civil suits for improper purposes). 

Here, Gary clearly claimed malicious prosecution by Deborah regarding a criminal proceeding 

and did not allege a claim for wrongful use of civil proceedings. 
-25-

No Reversible Error in Denial of Motion to Alter, Amend or Vacate

The Ostafis argue that the trial court’s judgment was based on 

manifest errors of law such as improperly allowing the jury to decide probable 

cause and thus, that the trial court erred in denying their motion to alter, amend, or 

vacate. 

We review the trial court’s ruling on the motion to alter, amend or 

vacate for abuse of discretion. Ipock v. Ipock, 403 S.W.3d 580, 583 (Ky. App. 

2013). Again, we disagree with the Ostafis’ arguments about alleged errors in the 

trial court’s application of the law. And we discern no abuse of discretion in its 

denial of their motion to alter, amend or vacate from our review of the record and 

the applicable law. 

The Trial Court’s Award of Costs Need Not be Disturbed

The last portion of the Ostafis’ argument addresses the trial court’s 

award of costs to the Gabbards, simply stating in its entirety: “Should this Court 

reverse the Trial Court’s Amended Trial Order and Judgment, the Trial Court’s 

award of costs to Appellees should also be vacated.” 

The Ostafis did not cite any legal authority or substantively argue in 

their briefs that the trial court erred in awarding costs to the Gabbards. We do not 

construe their brief discussion of the award of costs in their appellants’ brief to 

specifically allege an error in the award of costs. Instead, this discussion appears 
-26-

to be simply part of their request for relief – i.e., they request that the award of 

costs also be vacated in addition to their requests for the judgment to be reversed 

and remanded with directions for a retrial. Despite the Gabbards’ citation of 

authority to support the trial court’s award of costs to them in their appellees’ brief, 

the Ostafis do not further address the issue of the award of costs in their reply brief. 

As we discern no reason to otherwise disturb the trial court’s 

judgment, we need not address nor disturb its award of costs to the Gabbards. Any 

further issues raised in the parties’ briefs which are not discussed herein have been 

determined to lack merit or relevancy to our resolution of this appeal. 

CONCLUSION

For the foregoing reasons, the judgment of the Gallatin Circuit Court 

is hereby AFFIRMED. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Grant M. Axon

Warsaw, Kentucky

BRIEF FOR APPELLEE:

Ruth H. Baxter

Carrollton, Kentucky