Turcios v. Carter

678 S.W.3d 802

Jose TURCIOS, Appellant

v.Tabitha CARTER, Michael Lundy, Andrea M. Carter, Liza Lundy, December Smith, Sara Melton, Myrtle Clifton, and Viviana Harrison, Appellees

No. CV-20-366

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered October 25, 2023

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION [NO. 60CV-19-1027], HONORABLE MACKIE M. PIERCE, JUDGE

Porter Law Firm, by: Austin Porter, Jr., Little Rock, for appellant.

Thomas M. Carter, City Att’y, by: Rick Hogan, Deputy City Att’y, for separate appellees Sgt. Tabitha Carter and Det. Michael Lundy.

Leslie Rutledge, Att’y Gen., by: Kat Guest, Ass’t Att’y Gen., for separate appellee Andrea Carter.

Hilburn & Harper, Ltd., by: Scott Hilburn and Zachary L. Nicholson, for separate appellee Liza Lundy.

The Brad Hendricks Law Firm, Little Rock, by: Lloyd W. Kitchens, for separate appellees December Smith, Sara Melton, and Myrtle Clifton.

WENDY SCHOLTENS WOOD, Judge

I. Introduction

₁Appellant Jose Turcios appeals the order entered by the Pulaski County Circuit Court dismissing his second amended complaint alleging claims for malicious prosecution and civil conspiracy against appellees Tabitha Carter (T. Carter), Michael Lundy (M. Lundy), Andrea Carter (A. Carter), Liza Lundy (L. Lundy), December Smith, Sara Melton, Myrtle Clifton, and Viviana Harrison. Turcios raises five points on appeal. First, Turcios argues that the circuit court erred in dismissing his claims against T. Carter and M. Lundy for failure of proper service. Second, Turcios argues that the circuit court erred in finding that his claims ₂against the remaining appellees—A. Carter, Smith, Melton, Clifton, L. Lundy, and Harrison—were barred by collateral estoppel. Third, Turcios claims that the circuit court erred in considering evidence of a subsequent administrative decision against him to decide whether he stated a claim against A. Carter for malicious prosecution. Fourth, Turcios argues that the circuit court erred in finding that his second amended complaint failed to state a claim upon which relief could be granted pursuant to Arkansas Rule of Civil Procedure 12(b)(6) against A. Carter, Smith, Melton, Clifton, L. Lundy, and Harrison. And fifth, Turcios claims that the circuit court erred in considering the doctrine of collateral estoppel because it was waived by Smith, Melton, and Clifton. We reverse the circuit court’s decision that Turcios failed to properly serve T. Carter and M. Lundy and remand for further proceedings consistent with this opinion. We affirm the circuit court’s decision that Turcios’s claims against the remaining appellees are barred by the doctrine of collateral estoppel.

II. Facts

Turcios is the owner of Healthy Smiles dental office in Little Rock, Arkansas. Turcios began treating Smith, who was a minor, in 2010, and he regularly placed her on nitrous oxide during restorative procedures. On March 4, 2015, Smith, then fifteen years old, was placed on nitrous oxide during a restorative procedure. Following the March 4 procedure, Smith told her grandmother, Clifton, and her mother, Melton, that Turcios sexually abused her during her appointment. On March 9, Melton reported Smith’s allegations to the Little Rock Police Department (LRPD).

₃T. Carter was an officer with the LRPD working in the juvenile division and was the lead investigator of Smith’s report of abuse. M. Lundy, another LRPD officer working in the juvenile division, also participated in the investigation of the alleged abuse. A. Carter was an investigator with the Arkansas State Police working in the Crimes Against Children unit who investigated Smith’s claim of abuse. L. Lundy is a dentist, was married to M. Lundy, and was a former employee of Turcios. Harrison was also a former employee of Turcios.

On March 9, T. Carter referred Smith’s case to the Arkansas Department of Human Services (DHS). Smith was interviewed by T. Carter and A. Carter at the Children’s Protection Center on March 11. That same day, T. Carter and A. Carter interviewed Melton, Clifton, and Valerie Robertson, another individual who had made similar complaints against Turcios. Following the March 11 interviews, T. Carter executed a probable-cause affidavit concerning the sexual-assault allegations and obtained an arrest warrant for Turcios.

On March 12, Turcios was arrested and charged with second-degree sexual assault. On March 17, the Arkansas State Board of Dental Examiners suspended Turcios’s dental license as the result of his arrest. Turcios’s dental license was reinstated twenty-eight days later under the condition that he never be left alone with a patient. In late March, T. Carter and A. Carter reviewed video footage from Healthy Smiles taken during Smith’s appointment and drafted a memo concluding that the video depicted an instance of sexual assault.

In April 2016, the criminal trial against Turcios proceeded in Pulaski County Circuit Court. T. Carter and Smith (among others) testified, and the jury was shown the Healthy ₄Smiles video footage. On April 26, 2016, a Pulaski County jury acquitted Turcios of all criminal charges.

A. Carter prepared a report in the DHS case regarding Smith’s claims of abuse against Turcios finding the allegations to be true. Turcios appealed A. Carter’s findings and was given an administrative hearing after the conclusion of his criminal trial. The administrative hearing officer found by a preponderance of the evidence that Turcios had sexually abused Smith and ordered Turcios’s name be placed on the Arkansas Child Maltreatment Central Registry. Turcios was notified of his right to appeal the administrative decision to the circuit court, but no appeal was filed.

Following his acquittal in the criminal case and the conclusion of the administrative action against him, Turcios filed an action in the United States District Court for the Eastern District of Arkansas (District Court) in November 2017 against T. Carter, M. Lundy, A. Carter, Smith, Melton, and others. Turcios’s complaint alleged three claims for relief under 42 U.S.C. § 1983, including a claim for malicious prosecution and a civil-conspiracy claim that was predicated on the malicious-prosecution claim. In the malicious-prosecution claim, Turcios asserted that the defendants deprived him of rights secured by the Fourth and Fourteenth Amendments because they made false allegations against him; ignored exculpatory evidence; and knowingly entered a conspiracy among themselves (and others) for the purpose of pursuing criminal charges against him and depriving him of his protected property interest and professional reputation with the intent to steal his patients, harm him economically, and benefit the defendants. Although not named as defendants in the federal ₅case, Turcios specifically alleged in his complaint that L. Lundy and Clifton were involved in the conspiracy against him. Turcios’s prayer for relief regarding his claims sought damages pursuant to 42 U.S.C. § 1983. Turcios’s federal complaint also cited 28 U.S.C. § 1367, which provides for supplemental jurisdiction over state-law claims.

All the defendants in the federal case moved for summary judgment, and on January 22, 2019, the District Court entered an order granting the motions. In granting summary judgment on the malicious-prosecution claim, the District Court found that Turcios presented no evidence that any investigating officer prompted Smith, Melton, or anyone else to make false allegations against him and that he presented no evidence that any officer coerced any witness to testify against him. The District Court concluded that while Turcios’s evidence pointed to gaps in the investigation and information that the officers should have pursued, he failed to present evidence of intentional or reckless misconduct by the officers.

Regarding probable cause for Turcios’s arrest, the District Court found that T. Carter prepared an affidavit that accurately reported what she had been told by Smith, Melton, Clifton, and Robertson and submitted that affidavit to a judge, who found that the affidavit established probable cause. The District Court concluded—in response to Turcios’s claims that T. Carter made material misrepresentations or omissions in the affidavit—that Turcios did not identify any misrepresentations in the affidavit, and he did not show that T. Carter intentionally omitted any material information. The court recognized that Turcios’s claim of civil conspiracy was predicated on his claim of malicious prosecution and that because the allegations of malicious prosecution failed as a matter of law, the allegations of civil ₆conspiracy likewise failed as a matter of law. Regarding Turcios’s purported state-law claims, the District Court concluded the following:

It is not clear from Turcios’s complaint whether he has alleged state-law claims for malicious prosecution and civil conspiracy. Although his complaint alleges three counts under 42 U.S.C. § 1983 with no separate statement of corresponding state-law claims, he invokes this Court’s jurisdiction in part based on 28 U.S.C. § 1367, which provides for supplemental jurisdiction over state-law claims … and when he addresses the elements of a malicious prosecution claim in his brief he cites Stokes v. S. States Coop., Inc., 651 F.3d 911, 916 (8th Cir. 2011), which is a diversity case based on Arkansas law …. Assuming, without deciding, that Turcios’s complaint alleges state-law claims, this Court declines to exercise supplemental jurisdiction over them.

Turcios filed his initial complaint in the present action on February 21, 2019, against T. Carter, M. Lundy, A. Carter, Smith, and Melton, all of whom were defendants in the federal action. He alleged claims for malicious prosecution, the tort of outrage, civil conspiracy, defamation, and violations of the Arkansas Civil Rights Act. The allegations in Turcios’s complaint were based on the same facts as those alleged in his federal cause of action....