RENDERED: APRIL 1, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1058-MR

JEROME RENDER; GEORGE 

MOZEE; GREGORY PEYTON; AND 

NAOMI WEST AS PARENT AND 

NEXT FRIEND OF JOSHUA FLOYD APPELLANTS 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE AUDRA J. ECKERLE, JUDGE

ACTION NO. 10-CI-001183 

CRYSTAL MARLOWE APPELLEE 

AND

NO. 2019-CA-1682-MR

CRYSTAL MARLOWE APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE AUDRA J. ECKERLE, JUDGE

ACTION NO. 10-CI-001183 

TIFFANY WASHINGTON APPELLEE 
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OPINION

AFFIRMING IN PART, REVERSING IN PART, 

AND VACATING

**   **  **

BEFORE: ACREE, DIXON, AND McNEILL, JUDGES.

McNEILL, JUDGE: The underlying cases involve numerous claims and plaintiffs. 

Case No. 2019-CA-1058-MR involves an appeal by Appellants, Jerome Render 

(Render), George Mozee (Mozee), Gregory Peyton (Peyton), and Naomi West, as 

parent and next friend of Joshua Floyd (Floyd). Case No. 2019-CA-1682-MR is an 

appeal from a jury verdict in favor of Appellee, Tiffany Washington (Washington). 

Both cases arise from claims filed against former Louisville Metro Police 

Detective, Crystal Marlowe (Marlowe). Because we are reversing and vacating the 

judgment in Washington’s case, we will begin there. 

Appeal No. 2019-CA-1682-MR – Washington

There is an appellate record here that is necessary to cite at length in 

order to appropriately convey the factual and procedural foundation memorialized 

by a previous panel of this Court:

On December 22, 2007, three armed suspects (two 

males and one female) entered the home of Abbey 

Schmitt. The three suspects demanded money and 

assaulted Schmitt and her boyfriend, Robert Hayes. 

Schmitt reported to responding officers that the female 

suspect was African-American, “20-24 years of age, 

5’7”, 130 pounds, thin build, and with a short black 

afro.” Marlowe’s Brief at 7. Schmitt also reported that 
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one of the male suspects referred to the female suspect as 

“Nikki.” Marlowe was assigned to investigate the 

robbery.

University of Louisville’s campus police 

investigated a similar robbery near Schmitt’s home. 

Campus police presented a photo-pack to the victim of 

the similar robbery, and she identified Vaughn Carter as 

one of the male suspects. Carter was arrested, and 

Marlowe interviewed Carter. Upon questioning, Carter 

apparently acknowledged knowing a woman that went by 

the nickname of “Nikki.” According to Marlowe, Carter 

identified Tiffany Washington as “Nikki” and reported 

that she worked at the University of Louisville’s campus 

library.

Marlowe subsequently compiled a photo-pack 

containing Washington’s photo. Marlowe utilized 

Washington’s driver’s license photograph and placed it in 

a photo-pack with five other female mug-shot 

photographs. The driver’s license photograph used in the 

photo-pack depicted Washington as having straight 

shoulder-length hair. Also, Washington’s driver’s 

license photograph had a light blue background while the 

other mug shot photographs had a dark colored 

background.

. . . 

Washington was arrested and remained incarcerated

for approximately five days until she posted bail. The 

grand jury declined to indict Washington after hearing 

alibi evidence that Washington was in Henderson, 

Kentucky, on the day of the crime.

. . .

The circuit court did not address whether Marlowe 

possessed probable cause to obtain an arrest warrant for 

Washington in its summary judgment. Considering the 
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factual complexity and the current posture of this case, 

we reverse upon this issue and remand for the circuit 

court to determine whether Marlowe possessed probable 

cause to obtain an arrest warrant for Washington and if 

so, whether Marlowe acted in good faith and was entitled 

to qualified official immunity.

Washington v. Marlowe, No. 2013-CA-001500-MR, 2017 WL 5045614, at *12-15 

(Ky. App. Nov. 3, 2017) (hereafter “Marlowe I”). During the pendency of 

Marlowe I, the Kentucky Supreme Court rendered Martin v. O’Daniel, 507 S.W.3d

1 (Ky. 2016) (holding that qualified official immunity does not shield a police

officer from a malicious prosecution claim). 

On remand, the trial court again considered Marlowe’s motion for 

summary judgment in light of the Court’s holding in Marlowe I. Ultimately, the 

court denied Marlowe summary judgment as to Washington’s claims. The case 

was tried in the fall of 2019 during which Marlowe moved for a directed verdict,

which was granted in part and denied in part. A Jefferson Circuit Court jury 

ultimately found in favor of Washington on the counts of malicious prosecution 

and abuse of process. The jury awarded her a total of $2,250,000.00 in damages, 

including $250,000.00 in punitive damages. Marlowe now appeals to this Court as 

a matter of right. She primarily argues that the trial court erred in denying her 

motion for summary judgment and in denying her motion for a directed verdict. 
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STANDARD OF REVIEW

A motion for summary judgment should be granted “if the pleadings, 

depositions, answers to interrogatories, stipulations, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment as a matter of 

law.” CR1 56.03. The Kentucky Supreme Court further explained this summary 

judgment standard in Steelvest, Inc. v. Scansteel Service Center, Inc.:

While it has been recognized that summary judgment is 

designed to expedite the disposition of cases and avoid 

unnecessary trials when no genuine issues of material 

fact are raised, . . . this Court has also repeatedly 

admonished that the rule is to be cautiously applied. 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. Even though a 

trial court may believe the party opposing the motion 

may not succeed at trial, it should not render a summary

judgment if there is any issue of material fact. The trial 

judge must examine the evidence, not to decide any issue 

of fact, but to discover if a real issue exists. It clearly is 

not the purpose of the summary judgment rule, as we 

have often declared, to cut litigants off from their right of 

trial if they have issues to try.

807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). We review the trial court’s 

decision on a motion for a directed verdict for an abuse of discretion. Exantus v.

1 Kentucky Rules of Civil Procedure.
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Commonwealth, 612 S.W.3d 871, 887 (Ky. 2020). With these standards in mind, 

we turn to the applicable law and the facts of the present case.

ARGUMENT

Marlowe’s sole argument on appeal underlying the denial of her

dispositive motions is that Washington’s malicious prosecution and abuse of 

process claims are barred by the one-year statute of limitation (SOL). KRS2

413.140. That issue was not discussed in Marlowe I, although it appears that the 

trial court addressed the matter in its initial order denying summary judgment. At 

issue here, however, is Marlowe’s appeal from the trial court’s order denying 

summary judgment entered on June 20, 2019 and the motion for a directed verdict 

at trial. However, “once the trial begins, the underlying purpose of the summary 

judgment expires and all matters of fact and law procedurally merge into the trial 

phase, subject to in-trial motions for directed verdict or dismissal and postjudgment motions for new trial and/or judgment notwithstanding the verdict.” 

Transportation Cabinet, Bureau of Highways, Commonwealth of Kentucky v.

Leneave, 751 S.W.2d 36, 38 (Ky. App. 1988). See also Ortiz v. Jordan, 562 U.S.

180, 183-84, 131 S. Ct. 884, 888-89, 178 L. Ed. 2d 703 (2011). Because this case 

2 Kentucky Revised Statutes.
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was tried and Marlowe requested a directed verdict, we need not address 

Marlowe’s argument concerning the denial of her motion for summary judgment. 

 A. Denial of Directed Verdict 

Washington was arrested on April 17, 2008 and her incarceration 

ended on April 22, 2008. The grand jury declined to indict Washington after 

hearing alibi evidence that Washington was in Henderson, Kentucky, on the day of 

the crime. In her brief on appeal, Washington submits that her criminal case was 

dismissed on May 19, 2008. She filed her complaint in the present case on 

February 19, 2010. As previously stated, there is a one-year SOL for malicious 

prosecution and abuse of process claims. In order to establish an action for 

malicious prosecution, a plaintiff must demonstrate:

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
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5) the plaintiff suffered damages as a result of the 

proceeding.

Martin, 507 S.W.3d at 11-12 (emphasis added). 

Marlowe’s SOL argument is premised in part on the syllogism that 

because the trial court directed a verdict as to Washington’s claims for false 

imprisonment, assault, and battery, the court should have done so concerning the 

malicious prosecution charge. Although this argument is underdeveloped, the 

general assertion is correct in that these claims are ripe for litigation at the time of 

their accrual, and are not tolled pursuant to the “discovery” rule. See Fluke Corp.

v. LeMaster, 306 S.W.3d 55, 56 (Ky. 2010):

We also refuse to extend application of the discovery rule

to cases not involving latent injuries, latent illnesses, or 

professional malpractice and conclude that the Court of 

Appeals erred to the extent that it applied 

the discovery rule under the circumstances presented 

here. 

For a more thorough explanation of the accrual vs. discovery, see RONALD W.

EADES, Limitation periods for tort claims, KY. L. OF DAMAGES § 12:13 (2022) 

(“[T]he time of discovery rule was an exception to the general rule of time of 

accrual . . . .”) (internal quotation marks and citation omitted). In Dunn v. Felty, 

the Kentucky Supreme Court specifically determined that “[t]he alleged malicious 

prosecution began at [Plaintiff’s] arraignment, when he was held pursuant to legal 

process, and accrued upon a favorable termination of the criminal proceedings
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against him.” 226 S.W.3d 68, 73 (Ky. 2007) (emphasis added).

3

 See also 54 

C.J.S. Limitations of Actions § 229:

An action for malicious prosecution ordinarily accrues 

on, and limitations run from, the date on which the 

previous unsuccessful civil or criminal proceedings were 

terminated in the current plaintiff’s favor . . . .

In analyzing the present issue, it is also instructive to observe that:

Historically, the tort of malicious prosecution has

been disfavored because it runs contrary to the public 

policy supporting the exposure and prosecution of 

criminal conduct. We express that disfavor by requiring 

strict compliance with the prerequisites for maintaining a 

malicious prosecution action.

Martin, 507 S.W.3d at 7 (citations omitted). Therefore, based on the preceding 

binding and persuasive authority, Washington’s malicious prosecution claim 

accrued May 19, 2008, when the criminal proceedings against her were terminated. 

As previously stated, Washington filed her complaint in the present case on 

February 19, 2010. Therefore, her claim for malicious prosecution was untimely, 

as it is was filed outside of the one-year SOL period. Accordingly, the trial court 

abused its discretion by denying Marlowe’s directed verdict motion on the charge 

of malicious prosecution. 

3 This rule has been applied has most recently in DeMoisey v. Ostermiller, No. 2014-CA001827-MR, 2016 WL 2609321, at *14 (Ky. App. May 6, 2016) (citing Dunn for the proposition

that “[i]t is correct that the statute of limitations does not begin to run on a malicious prosecution 

claim until the underlying litigation has been concluded.”).
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Marlowe raises the same general SOL argument concerning the abuse 

of process charge, albeit greatly underdeveloped. Nevertheless, this issue is 

properly preserved for our review. The United States District Court for the 

Western District of Kentucky applied Kentucky law to address a very similar issue 

as follows:

Jackson asserts a state law abuse of process claim. A 

claim for abuse of process requires the plaintiff to 

establish “(1) an ulterior purpose and (2) a willful act in 

the use of the process not proper in the regular conduct of 

the proceeding.” George v. Lavit, 2006 WL 3228616, at 

*2 (Ky. Ct. App. Nov. 9, 2006) (citing Bonnie Braes

Farms, Inc. v. Robinson, 598 S.W.2d 765, 766 (Ky. Ct. 

App. 1980)). Jackson asserts that Jernigan abused the 

legal process by referring the case to the grand jury. 

(Pl.’s Compl. [DN 1] ¶ 3.) Jernigan argues that the claim 

is barred by a one-year statute of limitations, as the grand 

jury referral took place on September 9, 2015, more than 

a year before the complaint was filed. In support of this 

argument, she cites to DeMoisey v. Ostermiller, 2016 WL 

2609321 (Ky. Ct. App. May 6, 2016). In that case, the 

Court of Appeals of Kentucky held that (1) abuse of 

process has a one-year statute of limitations, as it requires 

an injury to the person or his property, see KRS § 

413.140(1)(a) (establishing one year statute of limitations 

for an action “for an injury to the person of the 

plaintiff”), and (2) the statute of limitations begins to run 

“from the termination of the acts which constitute the 

abuse complained of, and not from the completion of the 

action in which the process issued.” DeMoisey, 2016 

WL 2609321, at *14 (citations omitted). DeMoisey, 

however, was ordered not to be published, casting doubt 

on its value as precedent. Jackson has not responded to 

the argument that the claim is time-barred.
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Regardless of DeMoisey, federal district courts in 

Kentucky have consistently held that abuse of process 

claims are subject to a one-year statute of limitations 

under KRS § 413.140(1)(a). See Maqablh v. Heinz, 2016 

WL 7192124, at *8 (W.D. Ky. Dec. 12, 2016); Vidal,

[4]

2014 WL 4418113, at *7; Dickerson v. City of Hickman, 

2010 WL 816684, at *5 (W.D. Ky. Mar. 4, 2010) (“[A] 

cause of action for abuse of process has been generally 

held to accrue . . . from the termination of the acts which 

constitute the abuse complained of, and not from the 

completion of the action in which the process issued”) 

(quoting 1 A.L.R.3d 953 § 1). Therefore, Jackson’s 

claim for abuse of process is time-barred. 

Jackson v. Jernigan, No. 3:16-CV-00750-JHM, 2017 WL 1962713, at *9–10 

(W.D. Ky. May 11, 2017) (footnote omitted). In the present case, Washington’s 

abuse of process claim accrued, at the latest, on May 19, 2008. She filed her 

complaint in the present case on February 19, 2010. Therefore, Washington’s 

abuse of process claim was untimely, as it was filed outside of the one-year SOL 

period. Accordingly, the trial court abused its discretion by denying Marlowe’s 

directed verdict on the charge abuse of process. Lastly, Marlowe raises several 

alleged evidentiary errors. However, because we are reversing and vacating the 

judgment here, we need not address those concerns. We now turn our analysis to 

the merits of Appeal No. 2019-CA-1058-MR. 

4 Vidal v. Lexington Fayette Urban Cty. Gov’t, No. 5:13-117-DCR, 2014 WL 441 8113 (E.D. 

Ky. Sep. 8, 2014).
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Appeal No. 2019-CA-1058-MR − Render, Mozee, Peyton, and Floyd5

The claims made in this case all involve various alleged acts of 

misconduct by Marlowe that appear to be entirely separate and distinct from the 

facts underlying Washington’s claim. Similar to Washington’s case, however, this 

Court has previously addressed the parties’ claims at length in Marlowe I. Therein, 

the Court held that “[b]ased upon the holding in Martin, we conclude that the

circuit court erred by dismissing the malicious prosecution claims of . . . Render,

Peyton, Mozee, and Floyd upon the basis of Marlowe’s entitlement to qualified

official immunity. See Martin, 507 S.W.3d 1.” Marlow I at *4. The Court 

affirmed summary judgment as to the remainder of Peyton’s claims. Id. at *10. 

However, the Court reversed summary judgment as to the remainder of the claims 

raised by Render, Mozee, and Floyd, and remanded. Id. at *9-12. 

On remand, the trial court granted Marlowe’s renewed motion for 

summary judgment on the basis that she was entitled to qualified immunity for the 

claims not involving malicious prosecution. As to the malicious prosecution 

claims, the trial court granted Marlowe summary judgment on the basis that 

Appellants could not prove that Marlowe lacked probable cause to arrest them. 

Simply put, nothing in Appellants’ argument on appeal requires reversal of the trial 

5 The legal authority previously cited in Washington’s case applies equally here, i.e., Steelvest,

Martin, etc. 
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court’s order granting Marlowe summary judgment as to Appellants’ malicious 

prosecution claims, including the testimony of their expert witness, Dr. Thomas 

Barker. More precisely, Appellants have failed to cite with specificity to any 

disputed facts that would negate a judgment as a matter of law. As to their 

remaining claims concerning qualified immunity, Appellants have similarly failed 

to cite to any evidence of record or legal standard that would negate a judgment as 

a matter of law in this instance. See CR 76.12(4)(c)(v); see also Marlowe I at *3 

(discussing relevant legal standards in qualified immunity cases). Therefore, we 

cannot conclude that the trial court erred in granting Marlowe’s motion for 

summary judgment. 

CONCLUSION

For the foregoing reasons, we hereby REVERSE the Jefferson Circuit 

Court’s denial of Marlowe’s motion for a directed verdict on Washington’s claims

for malicious prosecution and abuse of process, and VACATE the court’s 

judgment entered on October 14, 2019. We AFFIRM the court’s order granting 

summary judgment against all other Appellants. 

ALL CONCUR.
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BRIEFS FOR APPELLANT

CRYSTAL MARLOWE:

Carol S. Petitt

Adam E. Fuller

Pewee Valley, Kentucky

BRIEFS FOR APPELLANTS 

JEROME RENDER, GEORGE

MOZEE, GREGORY PEYTON, 

AND NAOMI WEST AS 

PARENT AND NEXT FRIEND

OF JOSHUA FLOYD:

John A. Bahe, Jr. 

Patrick Markey

David Mushlin

Louisville, Kentucky

Ryan C. Vantrease

Louisville, Kentucky

BRIEF FOR APPELLEE TIFFANY 

WASHINGTON:

John A. Bahe, Jr. 

David Mushlin

Patrick Markey

Louisville, Kentucky

Ryan C. Vantrease

Louisville, Kentucky

BRIEF FOR APPELLEE CRYSTAL 

MARLOWE:

Carol S. Petitt

Adam E. Fuller

Pewee Valley, Kentucky