Opinion
NO. 2019-CA-001088-MR
04-10-2020
ROWENA HANKINS APPELLANT v. LOGAN COUNTY, KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Rowena Hankins, pro se Russellville, Kentucky BRIEF FOR APPELLEE: Harold M. Johns Logan, Kentucky Joseph E. Ross Russellville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 19-CI-00141 OPINION
AFFIRMING
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BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES. ACREE, JUDGE: Rowena Hankins, proceeding pro se, appeals the Logan Circuit Court's June 21, 2019 order dismissing her complaint based on the doctrine of sovereign immunity. Finding no error, we affirm.
Hankins alleged she was injured while walking down the steps at the Logan County Sheriff's Department. She filed a pro se complaint sounding in the tort of negligence, naming a single defendant, Logan County. Logan County Judge Executive Logan Chick was served with the complaint on May 16, 2019. Logan County filed an answer on June 3, 2019, and moved to dismiss the action based on the doctrine of sovereign immunity.
Notwithstanding that Logan County answered the complaint, on June 5, 2019, Hankins filed a motion for default judgment. Two days later, she filed a motion for change of venue, requesting the case be transferred to Warren Circuit Court. These motions were scheduled to be heard on June 18, 2019. Logan County subsequently re-noticed its own motion to dismiss to be heard on June 18, 2019, so all pending motions could be heard at the same time.
The circuit court denied Hankins's motions and dismissed her complaint based on the doctrine of sovereign immunity. This appeal followed.
"Whether a defendant is entitled to 'immunity is a question of law . . . , which we review de novo.'" Kentucky River Foothills Dev. Council, Inc. v. Phirman, 504 S.W.3d 11, 14 (Ky. 2016) (quoting Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006)).
"Sovereign immunity affords the state absolute immunity from suit[.]" Transit Auth. of River City v. Bibelhauser, 432 S.W.3d 171, 173 (Ky. App. 2013). Likewise, "Kentucky counties are cloaked with sovereign immunity." Lexington-Fayette Urban Cty. Gov't v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004). "This immunity flows from the Commonwealth's inherent immunity by virtue of a Kentucky county's status as an arm or political subdivision of the Commonwealth." Id. Therefore, Logan County, as an arm or political subdivision of Kentucky, is cloaked with immunity.
Attempting to salvage her case, Hankins named Logan County Judge Executive Logan Chick as a defendant on her notice of appeal even though he was not a party to the circuit court action. She also claims Chick was named as a defendant on all documents filed in this case. However, upon review of her complaint, that is not so. Logan County was the only named defendant. And, nowhere in the complaint does she allege negligence on the part of Chick, in either his individual or official capacity. Accordingly, the circuit court properly granted Logan County's motion to dismiss.
Hankins also contends she should have been allowed to take discovery to find "factual evidence to include actions by Logan Chick, Judge Executive . . . ." But Chick was not a defendant, and sovereign immunity is purely a legal issue, requiring no findings of fact. We find no prejudice.
Hankins also asserts the circuit court erred in two other ways: (1) by denying her motion for default judgment; and (2) by denying her motion for a change of venue. Both arguments became moot the moment it was determined the only party Hankins sued was cloaked with sovereign immunity.
However, Hankins is a pro se advocate seeking to avail herself of the protections of our courts despite lacking the training and skill essential to the task. For that reason, we will go further than would have been necessary had she engaged an attorney at law to represent her and who, undoubtedly, would have explained why her claim was destined to fail.
Setting aside sovereign immunity for the moment, Hankins was not entitled to a default judgment because Logan County was not in default, having filed a timely answer to Hankins's complaint. Logan County filed its answer on June 3, 2019, well within the twenty-day response period. See CR 4.02. Not only did the circuit court not abuse its discretion by denying her motion for default, it would have been an abuse of discretion, even legal error, to have granted it.
Kentucky Rules of Civil Procedure.
The circuit court did not err by denying her motion to change venue. To start, an "action for an injury to the person or property of the plaintiff . . . against a defendant residing in this state, must be brought in the county in which the defendant resides, or in which the injury is done." KRS 452.460(1). Here, the defendant (Logan County) resides in, in fact is, Logan County, and the injury allegedly occurred in Logan County. Logan County is the proper venue.
Kentucky Revised Statutes. --------
However, a party may seek a change in venue "when it appears that, because of the undue influence of his adversary or the odium that attends the party applying or his cause of action or defense, or because of the circumstances or nature of the case he cannot have a fair and impartial trial in the county." KRS 452.010(2). Hankins alleges change of venue was proper because "county employee relationships are too close and intertwined, including the Circuit Court Judge, who along with the Fiscal Court and County Commissioners, is involved in budget expenditures. Their only interest in any claim should not be aggression to protect other county employees." (Appellant's brief, p. 7). This argument lacks merit.
Even when the defendants "were identified with political or governmental circles in Bell County" including the elected prosecutors and judges, and the plaintiff was concerned that a fair trial could not be had, our highest Court repeated the long-standing, and still current rule: "The trial judge has a broad discretion in passing on petitions for a change of venue, and this court will not reverse his ruling in the absence of a showing of an abuse of that discretion." Bringardner Lumber Co. v. Knuckles, 278 Ky. 356, 128 S.W.2d 727, 729 (1939); Big Sandy Realty Co. v. Stansifer Motor Co., 253 S.W.2d 601, 604 (Ky. 1952) (trial court "accorded a wide discretion, particularly in civil cases, in determining applications for change of venue").
Furthermore, if venue change had been granted, this Court is confident that no court of this Commonwealth would have failed to dismiss this case on grounds of sovereign immunity. And that returns the Court to consideration of Hankins's overarching argument - "Sovereign immunity ought not to exist as law in the United States." (Appellant's brief, p. 9). Therefore, she urges that "Sovereign Immunity can be removed as the Court of course does not have to follow precedent of previous decisions . . . ." (Id. at p. 10). Of course, neither of these statements is so.
We will say no more than that there are powerful reasons "[t]he doctrine of sovereign immunity is so embedded in constitutional history and practice . . . ." Kern-Limerick v. Scurlock, 347 U.S. 110, 122, 74 S. Ct. 403, 411, 98 L. Ed. 546 (1954). These reasons, and many other concepts such as an inferior court's duty of obedience to precedent, are the stuff of a legal education. This case is easily decided because it was brought by a non-lawyer, talented as she may be, who is handicapped by a dearth of this specialized training and knowledge.
The Logan Circuit Court's order dismissing Hankins's complaint is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Rowena Hankins, pro se
Russellville, Kentucky BRIEF FOR APPELLEE: Harold M. Johns
Logan, Kentucky Joseph E. Ross
Russellville, Kentucky