Malicious prosecution suit against Kentucky man and his lawyer may proceed

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The former employers of a man who sued them for discrimination and later dismissed his claims may proceed with their lawsuit alleging malicious prosecution and other claims against that man and his attorney, the Court of Appeals ruled Wednesday.

Ernest Smith worked for Dennis Boyer and Richard Smith at their recycling company in Kentucky, but he was let go when the business closed. A few years later, the pair opened a smaller successor company in Indiana. Ernest Smith, who is not related to Richard Smith, contacted Boyer to see if a job was available for him. Ernest Smith suffered severe burns when he was younger and had heart problems. Boyer told him they did not have a job available that he would be capable of performing.

Ernest Smith then filed a complaint against Boyer and Richard Smith with the Equal Employment Opportunity Commission, and he hired Kentucky attorney Suzanne Cassidy to represent him. She filed a lawsuit in federal court in Kentucky, alleging race, age and disability discrimination. During mediation, Ernest Smith disclosed that the Social Security Administration determined he was totally disabled and then dismissed all of his claims against the men and their companies.

Then Boyer and Richard Smith sued Cassidy and Ernest Smith in Indiana, alleging they filed a frivolous lawsuit, and had committed malicious prosecution, abuse of process, fraud, constructive fraud and intentional infliction of emotional distress. The trial court granted the defendant’s motion for summary judgment, finding the claims were barred by res judicata, that it lacked subject matter jurisdiction over the case, and the court lacked personal jurisdiction over Cassidy.

But the trial court was only partially correct, the COA held in Dennis Boyer and Richard Smith v. Ernest Smith, Suzanne Cassidy, and In-Plas, Inc., 15A01-1404-CT-161. The Kentucky court had noted that it did not think that Ernest Smith’s case was frivolous when it denied Boyer and Richard Smith’s request for expenses and attorney fees. But all the other claims are not barred by res judicata because they were not and could not have been determined in the federal lawsuit, Senior Judge Betty Barteau wrote.

The Indiana court did have subject matter jurisdiction over the lawsuit because the trial court in this case, Dearborn Superior Court, has jurisdiction over all civil cases filed within the county. And based on Cassidy’s contact with the state during the EEOC investigation and the lawsuit, the trial court had personal jurisdiction over her.

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