Opinion
NO. 2013-CA-001188-MR
02-27-2015
KEN ISAACS AND ANNETTA CORNETT APPELLANTS v. GEORGETOWN-SCOTT COUNTY PLANNING COMMISSION; JEFF CALDWELL, MEMBER OF GEORGETOWN-SCOTT PLANNING COMMISSION; JOHN SHIRLEY, MEMBER OF GEORGETOWN-SCOTT PLANNING COMMISSION; CINDY FOSTER, MEMBER OF GEORGETOWN-SCOTT PLANNING COMMISSION; STEVE SMITH, MEMBER OF GEORGETOWN-SCOTT PLANNING COMMISSION; GREG HAMPTON, MEMBER OF GEORGETOWN-SCOTT PLANNING COMMISSION; FRANK WISEMAN, MEMBER OF GEORGETOWN-SCOTT PLANNING COMMISSION; JANET HOLLAND, MEMBER OF GEORGETOWN-SCOTT PLANNING COMMISSION; HORACE WYNN, MEMBER OF GEORGETOWN-SCOTT PLANNING COMMISSION; ROB JONES, MEMBER OF GEORGETOWN-SCOTT PLANNING COMMISSION; TOWN AND COUNTRY BANK; AND JOHN TACKETT APPELLEES
BRIEFS FOR APPELLANTS: W. Henry Graddy, IV Randal A. Strobo Versailles, Kentucky BRIEF FOR APPELLEE GEORGETOWN-SCOTT COUNTY PLANNING COMMISSION: Charles M. Perkins Georgetown, Kentucky BRIEF FOR APPELLEE TOWN AND COUNTRY BANK: R. Bruce Lankford Georgetown, Kentucky BRIEF FOR APPELLEE JOHN TACKETT: Harold F. Simms Georgetown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
ACTION NO. 12-CI-00538
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. MAZE, JUDGE: Ken Isaacs and Annetta Cornett (Appellants) appeal from an opinion and order by the Scott Circuit Court granting motions to dismiss for lack of jurisdiction. Appellants argue that the trial court erred in concluding that they failed to effect timely issuance and service of summons against Town and Country Bank (the Bank). Under the circumstances presented in this case, we agree with the circuit court that the summons was not issued within the statutory time period, and that Appellants failed to make good-faith efforts to serve the summons on the Bank. Hence, we affirm.
Appellants sought to appeal as an aggrieved party from the Georgetown-Scott County Planning Commission's approval of an amendment to a preliminary subdivision plan of Harbor Village Subdivision. On June 16, 2012, the last day an appeal could be filed, Appellants filed this action with the Scott County Clerk. As required by KRS 100.347(4), the Appellants named the Planning Commission, John Tackett, the applicant, and the Bank. However, the appeal did not identify the Bank as the owner of the property. The style of the action listed addresses for Tackett and the Planning Commission, but not for the Bank.
Kentucky Revised Statutes.
The action named the Planning Commission itself and all of its members in their official capacities. The members named are Jeff Caldwell, John Shirley, Cindy Foster, Steve Smith, Greg Hampton, Frank Wiseman, Janet Holland, Horace Wynn and Rob Jones. We refer to the Planning Commission and its members collectively as the Planning Commission.
While counsel for the Planning Commission and Tackett waived formal service of process, counsel for the Bank did not. Therefore, when Appellants' attorney filed the action, he simultaneously sought to have a summons issued for the Bank to be returned to him for delivery. The clerk refused to issue the summons for the Bank because no address was specified. The following day, on July 17, 2012, another clerk accepted the summons, which still lacked an address for the Bank, and issued the summons to Appellants' attorney. Appellants' attorney testified he made one attempt to serve the summons on the Bank's attorney at his office, but the door was locked.
On August 7, 2012, Tackett filed a motion to dismiss for lack of subject-matter jurisdiction for failure to properly include an indispensible party. Two days after receiving Tackett's motion to dismiss, Appellants' attorney retained a constable to serve the summons on the Bank. On August 10, 2012, the constable served the summons on a teller at a Georgetown branch of the Bank. The summons was filed with proof of service on August 13.
A week later, the Bank entered a limited appearance solely for the purpose of filing a motion to dismiss, arguing: (1) failure to state a claim by failing to allege its ownership of the property; (2) lack of jurisdiction over it for failure to perfect service of process because the summons was served on a teller of the Bank at its Canewood branch; (3) lack of jurisdiction over the subject matter for failure to include the Bank, an indispensible party; and (4) failure to timely file an appeal within the statutory limit of thirty days where the summons was issued after that date.
In its opinion and order granting the motions to dismiss, the circuit court explained the Bank was an indispensible party as the owner of the property and, if it received improper service, the court had to dismiss the action. It determined the Bank received improper service because the summons was not issued until thirty-one days after the Planning Commission's final action. The court also determined that equitable tolling did not apply because the clerk did not accept the summons without an address listed. In addition, the circuit court determined the summons was not issued in good faith because Appellants' attorney failed to make diligent efforts to hire a server or personally serve the Bank until August 10, 2012. Based upon these findings, the circuit court dismissed the action. This appeal followed.
The circuit court's decision to dismiss the action for lack of jurisdiction presents a mixed question of law and fact. We review the circuit court's factual findings regarding the actions of Appellants' attorney under the clearly erroneous standard of CR 52.01. Moore v. Assente, 110 S.W.3d 336, 354 (Ky. 2003). On the other hand, the trial court's application of those factual findings to the jurisdictional question is a pure legal issue which we review de novo. Harrison v. Park Hills Bd. of Adjustment, 330 S.W.3d 89, 93 (Ky. App. 2011).
Kentucky Rules of Civil Procedure.
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KRS 100.347(2) requires any person claiming to be aggrieved by a final action of the Planning Commission must appeal to the circuit court within thirty days from such action. In this case, the Planning Commission's final action took place on June 14, 2012. While the thirty-day window for appeal would have closed on July 14, 2012, that day fell on a Saturday. By operation of CR 6.01, the final day to file the appeal was extended to Monday, July 16, 2012.
KRS 100.347(4) further requires that the appeal must name as parties the Planning Commission, the owners of the property, and the applicants who initiated the proceedings. KRS 100.347(4). An appeal is not perfected and the circuit court lacks jurisdiction under KRS 100.347 if not all the necessary parties have been included in the action. Bd. of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978). Therefore, as the owner of the property, the Bank is an indispensible party to the action and, if the summons issued as to it is insufficient to make it a party to the action, the circuit court lacked jurisdiction.
An appeal from an order of an administrative agency is not a true appeal, but an original action initiated in the same manner as a civil action. Metro Medical Imaging, LLC v. Commonwealth, 173 S.W.3d 916, 918 (Ky. App. 2005); KRS 23A.010(4). Because KRS 100.347 does not provide any procedure for commencing an action, the Civil Rules govern. See Arlinghaus Builders, Inc. v. Kentucky Public Service Com'n, 142 S.W.3d 693, 695-696 (Ky. App. 2003). Under CR 3.01 "civil actions are commenced by: (1) the filing of a complaint (petition), and (2) the issuance of summons (or warning order) in good faith." Commonwealth, Transp. Cabinet, Dept. of Highways v. City of Campbellsville, 740 S.W.2d 162, 164 (Ky. App. 1987). "An action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action." KRS 413.250. The statutory limitation period runs until a summons is actually issued." Steadman v. Gentry, 314 S.W.3d 760, 762 (Ky. App. 2010) (quoting Simpson v. Antrobus, 260 Ky. 641, 86 S.W.2d 544, 546 (1935)). If a summons is not timely issued, the circuit court lacks jurisdiction over the cause of action even if the complaint has been timely filed. Metro Medical Imaging, LLC, 173 S.W.3d at 918.
In this case, the complaint was filed within the thirty-day period and two of the parties formally waived service. However, Appellants still needed to effect timely issuance and service of the summons to obtain jurisdiction over the Bank. Relying upon Nanny v. Smith, 260 S.W.3d 815 (Ky. 2008), Appellants argue the clerk's failure to accept the summons without an address submitted by their attorney amounts to a breach of a ministerial duty and thus excuses the untimely filing of the summons.
In Nanny, as in the current case, the plaintiff's counsel filed the complaint, but failed to complete the summons. But unlike in the current case, the clerk in Nanny accepted the summons. Consequently, our Supreme Court found that the plaintiff could reasonably expect that the summons would be issued within the statutory period. Id. at 817.
In the current case, Appellants' attorney attempted to obtain issuance of a summons for the Bank at approximately 4:20 p.m. on the last day on which the action could be commenced. The clerk refused to issue the summons because it did not contain the Bank's address. The version of CR 4.01(1) in effect when Appellants filed the complaint allowed the initiating party to either (a) direct the clerk to deliver the summons and complaint by registered or certified mail, or (b) "[c]ause the summons and complaint . . . to be transferred for service to any person authorized . . . to deliver them[.]" While clerks do need an address if they are mailing a copy of the summons and complaint in accordance with CR 4.01(1)(a), if clerks are delivering copies to an attorney for service by an officer under KRS 454.140 pursuant to CR 4.01(1)(b), there is no requirement that an address be provided.
Under these circumstances, the clerk's office personnel could have accepted the summons within the thirty-day limitation period. However, Nanny does not hold that the clerk was required to do so; that case only holds that the clerk has a ministerial duty to file the complaint and issue the summons once it is accepted. Nanny, 260 S.W.3d at 817-18. We find no authority which would require the clerk to accept a summons without an address for one of the parties. Moreover, this deficiency was solely within the control of Appellants' counsel, who prepared and submitted the summons. Consequently, we agree with the trial court that equitable tolling of the limitation period was not appropriate.
Furthermore, even if the summons were deemed to be timely filed, we must still address whether the summons was issued in good faith. Appellants' attorney testified that he sought to retain the summons so he could serve it himself or by constable for a lesser fee than the sheriff's office. We agree that this was a valid choice and was permissible under CR 4.01. However, Appellants must still demonstrate that their attorney had a bona fide, unequivocal intention to have the summons served on presently or in due course or without abandonment. Louisville & N.R. Co. v. Little, 264 Ky. 579, 95 S.W.2d 253, 255 (1936). Action and intention combined constitute the commencement of the suit, because a summons filled out and signed with no intention of having it served is altogether inoperative. Id.
Appellants argue that their attorney's imperfect service or a delay in service does not negate good faith. An action may be commenced in good faith even if the attorney does not immediately serve the summons on a party so long as the delay under the circumstances is not sufficiently lengthy to negate good faith. In Rucker's Adm'r v. Roadway Exp., 279 Ky. 707, 131 S.W.2d 840 (1939), the Court held that a delay of six weeks in serving a party could show negligence, but did not show bad faith. During this time, the attorney was attempting to determine the proper agent to serve, his wife was ill for three weeks, and the summons was misfiled, requiring him to obtain another one. While the Court explained that the attorney's actions likely amounted to negligence, "the circumstances shown in this particular case are not such as to negative a lack of good faith at the time the summons was issued or to indicate abandonment of intention to have it executed in due course." Id. at 843. See also Jones v. Baptist Healthcare Sys., Inc., 964 S.W.2d 805, 807 (Ky. App. 1997) ("negligence, rather than bad faith, in the execution and issuance of a summons will not bar a cause of action").
In this case, Appellants' attorney made only one attempt to serve the summons on the Bank's counsel. In addition, counsel waited for three more weeks to retain a constable to effect service on the Bank, and even then, only in response to Tackett's motion to dismiss. Appellants make no effort to explain the reasons for the delay.
Under these circumstances, it is a close call whether Appellants' attorney demonstrated a good-faith and uninterrupted intention to serve the summons in due course. The delay in service was not as lengthy as was the case in Ruckers Adm'r. However, Appellants' attorney made no diligent attempts to either personally serve the summons or to hire a constable for three weeks. Furthermore, there are no extenuating circumstances which might explain the delay. The circuit court made a factual finding that Appellants' attorney lacked a bona fide, unequivocal and uninterrupted intention to have the summons served on the Bank. Since the circuit court was in the best position to judge the weight and credibility of the testimony, we cannot say the court clearly erred in finding that Appellants' counsel failed to demonstrate a good faith effort to serve the summons in a timely manner. Therefore, we conclude that the action was not commenced against the Bank within the time period allowed.
Accordingly, we affirm the order the Scott Circuit Court dismissing this action.
ACREE, CHIEF JUDGE, CONCURS AND FILES SEPARATE OPINION.
ACREE, CHIEF JUDGE, CONCURRING: I concur with the result in this case but write separately to clarify my reasoning.
In my view, whether there was equitable tolling is irrelevant. We need not rule on that question and I decline to comment either way.
I focus my attention on that section of the circuit court's order that says:
. . . Appellant failed to issue a summons in good faith when he made no diligent effort to hire a servicer, or to personally serve Town and Country Bank, until August 2012.
In this case, the Appellants admit that their attorney "did not obtain the issuance of a summons [against the Bank] on July 16, 2012 [but] did . . . the following morning on July 17, 2012 [and that t]his delay was . . . to seek agreement of [the Bank's] counsel to waive formal service." (Appellant's brief, p. 9). When Appellants' counsel went to the office of the Bank's counsel and found it closed, he had not made the trip in an attempt to serve the summons, but "in an attempt to . . . discuss waiver of service[.]" (Appellant's brief, p. 2). There is no explanation for the subsequent month-long delay and, more importantly, no effort to serve the summons on the Bank, until an Appellee moved to dismiss the case.
Repeating what this Court has said before, "[i]f the facts are as appellant describes them, and the summons was . . . held by appellant's attorney . . . , Whittinghill v. Smith, Ky.App., 562 S.W.2d 649 (1977), is controlling. The only difference in that case and the present one is that in this case, instead of asking the clerk to hold the summons, appellant's counsel accepted the issued summons and retained it himself." Gibson v. EPI Corp., 940 S.W.2d 912, 912 (Ky. App. 1997). As the Court said in Whittinghill, "[i]t may well be that appellant did not at any time intend to abandon the action but it is equally plain that . . . [t]he intention to go forward with the service of process was not reached until the limitation period had expired and thus the action was not commenced within the limitation period." Whittinghill, 562 S.W.2d at 650-51 (emphasis added); see also Allen v. O.K. Mobile Home Sales, Inc., 570 S.W.2d 660 (Ky. App. 1978) ("If the evidence shows that the clerk issued the summons [to] . . . the attorney to deliver it to the sheriff at some future time, then the presumption of good faith issuance is rebutted if the service of the summons is made after the right to sue ends.").
The undisputed evidence before the circuit court was that the "intention to go forward with service of process," as opposed to obtaining a waiver of such service, did not manifest until a month after the limitations period ended. To the extent the circuit court's ruling relies on it, its fact-finding is certainly not clearly erroneous; to the extent this case presents a question of law, it is consistent with the cited cases.
It is for these reasons that I concur.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, DISSENTING: Respectfully, I am compelled to dissent. I disagree that the deputy clerk could refuse to issue a summons when the complaint was filed and with the majority's conclusion that the lapse of time between the issuance of the summons and its service is sufficient evidence of bad faith. From what are admittedly bad facts, the majority has promulgated two equally bad procedural rules that create traps for the unwary practitioner and litigants.
First, the majority erroneously views the nature of a clerk's duty when accepting a complaint. The majority admits that an address is not required to be provided if service is to be accomplished pursuant to Kentucky Rules of Civil Procedure (CR) 4.01(1)(b). However, it then holds that a clerk is not required to accept a summons without an address given for a defendant. If I understand its reasoning, the majority vests the clerk with the discretionary authority to simply reject a summons based on his or her judgment of the adequacy of the information given by the complaining party. I believe the majority's holding is contrary to CR 4.01, case law, and common practice.
CR 4.01 expressly sets forth the clerk's ministerial duty: "Upon filing of the complaint (or other initiating document) the clerk shall forthwith issue the required summons[.]" (Emphasis added). The language is unequivocal that the clerk is mandated to issue a summons upon the filing of the complaint. There is no discretion afforded to the clerk to make a judgment call as to the sufficiency of the information provided or otherwise refuse to issue a summons.
Ancient case law teaches us "[t]he duties of the clerk are purely ministerial in the matter of issuing summons upon the information filed in his office[.]" Fleming v. Sinclair, 22 Ky. L.Rptr. 499, 58 S.W. 370, 371 (1900). "The sufficiency of the information is a matter for determination of the court, not the clerk." Id. In a more recent case, and one that I conclude is binding precedent in this situation, the ministerial duty of a clerk to issue a summons when a complaint is filed was reaffirmed.
Nanny v. Smith, 260 S.W.3d 815 (Ky. 2008), is not unlike the current case and the legal principles enunciated compel reversal. Unfortunately, the majority erroneously recites the facts in Nanny when it states "the plaintiff's counsel filed the complaint, but failed to complete the summons" and "the clerk in Nanny accepted the summons." In stark contrast to the majority's factual summation, "Nanny did not have a summons prepared...ostensibly because she was under the impression that it was the clerk's duty to prepare such document under CR 4.01(1)." Id. at 817. Thus, Nanny did not simply fail to complete the summons as the majority recites but she failed to provide a summons at all. Nevertheless, the Court held "[o]nce Nanny delivered the complaint, she could reasonably expect that the summons would be issued within the statutory period." Id.
Citing the mandatory language of CR 4.01, the Court held "Nanny had neither the power nor the duty to ensure that the clerk perform official duties" and, therefore, the issuance of the summons within the statute of limitations was beyond her control. Id. The conduct of a clerk cannot be permitted to deprive a litigant access to the courts whether in an original action or appeal. Id. at 818 (quoting Ward v. Howard, 177 Ky. 38, 197 S.W. 506, 510 (1917).
Here, a summons was provided but simply did not contain an address for Town and Country Bank. Certainly, if the clerk's ministerial duty to issue a summons is not eviscerated by the failure to provide a summons at all, a summons without an address would not eviscerate that same duty.
If the majority view is correct and a clerk has discretion to issue or decline to issue a summons simply because he or she believes it to be inadequately completed, I cannot fathom the consequences to the practicing bar and litigants. The address of a defendant is often unknown and, before the statute of limitations expires, cannot be known.
Moreover, I cannot discern any consistent rule that can be taken from the majority's opinion. As the majority correctly explains, an address is unnecessary pursuant to CR 4.01(1)(b), yet it concludes it can find no authority which would require the clerk to accept a summons without an address for a defendant. I submit the authority is found in CR 4.01, which requires the clerk to perform his or her ministerial duty when the complaint is filed and, without exception, to issue the summons.
I believe the ministerial nature of the duties imposed upon a clerk to issue a summons when a complaint is filed serves efficiency, predictability and justice. Commingling the clerk's ministerial duties with the traditionally judicial duties of determining the adequacy of a complaint and summons is fraught with potential arbitrariness, unreasonableness, and injustice. The facts in this case prove my point.
On the afternoon of the filing deadline, a deputy clerk refused to issue the summons. However, the following morning, a different deputy clerk issued the exact same summons. A litigant's access to the court should not depend on the happenstance of which deputy clerk accepted his or her complaint but on well defined and precise rules to be executed by each deputy clerk.
I also do not find the majority's conclusion that there was a lack of good faith by counsel persuasive. First, the taking out a summons is presumptive evidence of an intent to have it served in due course. Whittinghill v. Smith, 562 S.W.2d 649, 650 (Ky. App. 1977). If the good faith presumption is to mean anything, it cannot be rebutted by the mere passage of time. The case law is clear that the inquiry is not whether the plaintiff could have been more diligent in having the summons served but whether there was an intent to delay service of process when the summons was issued. As stated in Rucker's Adm'r v. Roadway Exp., 279 Ky. 707, 131 S.W.2d 840, 843 (1939):
Plaintiff's attorney was undoubtedly guilty of negligence, negligence which comes perilously near to barring his client's right of action, but the statute does not say that negligence in the execution of a summons after it is issued will bar the right of action. Such bar is effective only if there was a lack of good faith-lack of intention to have the summons presently executed when issued.
Case law offers examples of bad faith. In Whittinghill, the complaint was filed on the 365th day following the motor vehicle accident. Whittinghill, 562 S.W.2d at 649. "Settlement negotiations were under way and appellant's counsel directed the clerk to hold the summons and not deliver it to the sheriff for service." Id. at 650. The summons was served two and one-half months after the expiration of the limitations period. The presumption of the plaintiff's good faith to have the summons served in due course was rebutted by evidence of that the "intention to go forward with the service of process was not reached until the limitation period had expired[.]" Id.
In Gibson v. EPI Corp., 940 S.W.2d 912 (Ky.App. 1997), the plaintiff's attorney held the summons for six months and served it only after the statute of limitations had expired and settlement negotiations were unsuccessful. Unable to find any significant distinction between the facts and those in Whittinghill, the Court concluded the good faith presumption had been rebutted. Id. at 913.
The delay in service in this case was less than thirty days and, under the circumstances, did not evidence an abandonment of the intent to serve the summons. This was a multi-party action in which two defendants had already waived service of process and there was testimony that Appellants' attorney was attempting to avoid the cost of formal service by attempting to also obtain the Bank's waiver. Given the nature of this case, it does not seem unreasonable that the Bank would likewise waive formal service. Service was not delayed to prejudice the Bank, but to save the cost of formal service.
In Browning Mfg. Division v. Paulus, 539 S.W.2d 296 (Ky. 1976), the Court readily dismissed an argument that service of summons was not timely served on the defendant's insurance carrier or the Workers' Compensation Board in an administrative appeal. Noting that the petition on appeal was filed on June 25, 1975, and summonses were issued on the same date, the Court held that where the employer was served on the date the petition was filed and summons issued, service on the insurance carrier eight days later and service on the Board nineteen days later was timely. Id. at 298. The Bank's argument in this case should likewise be readily rejected.
I add that we must be cognizant of the nature of this action and the brief time in which a party has to prepare, file, and, now, to serve the defendants. While an action of this nature is an "original action," the time period in which to file an appeal is only thirty days, drastically less time than a traditional statute of limitations. Now, in the majority's view, service must be made within less than thirty days after filing a complaint or the summons will be deemed to be issued in bad faith.
The majority ignores the reality of the practice of law. Many summons take months to execute for various reasons, including when there is an attempt to obtain a waiver of service. However, the requisite showing of bad faith in the service of summons can only be shown where there is evidence of intent to delay service of summons when issued.
I am disturbed by the uncertainty inherent in the majority's opinion. Contrary to legal precedent and common legal thought, it holds that the clerk's duties are not ministerial and the issuance of a summons upon the filing of a complaint depends upon the judgment of an individual clerk or his or her deputy. Litigants can no longer file an action confident service of process will be issued. Secondly, I believe the mere passage of time cannot be the basis for finding bad faith by a plaintiff in having the summons served. The rule requires good faith be rebutted by evidence of intent to delay service of summons when issued.
I would reverse. BRIEFS FOR APPELLANTS: W. Henry Graddy, IV
Randal A. Strobo
Versailles, Kentucky
BRIEF FOR APPELLEE
GEORGETOWN-SCOTT COUNTY
PLANNING COMMISSION:
Charles M. Perkins
Georgetown, Kentucky
BRIEF FOR APPELLEE TOWN
AND COUNTRY BANK:
R. Bruce Lankford
Georgetown, Kentucky
BRIEF FOR APPELLEE JOHN
TACKETT:
Harold F. Simms
Georgetown, Kentucky