Opinion
NO. 2018-CA-000202-MR
02-01-2019
PIKE COUNTY, KENTUCKY; PIKE COUNTY FISCAL COURT; WILLIAM DESKINS, JUDGE EXECUTIVE; JEFF ANDERSON, MAGISTRATE; VERNON JOHNSON, MAGISTRATE; LEO MURPHY, MAGISTRATE; KENNETH ROBINSON, MAGISTRATE; HILLMAN DOTSON, MAGISTRATE; AND BOBBY VARNEY, MAGISTRATE APPELLANTS v. TIMOTHY WAYNE ADAMS APPELLEE
BRIEF FOR APPELLANTS: Jonathan C. Shaw Paintsville, Kentucky BRIEF FOR APPELLEE: Adam S. Hall Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE THOMAS M. SMITH, SPECIAL JUDGE
ACTION NO. 17-CI-01183 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. CLAYTON, CHIEF JUDGE: Appellants appeal from the Pike Circuit Court's interlocutory order denying Appellants' motion to dismiss pursuant to Kentucky Rules of Civil Procedure (CR) 12.02 based on sovereign immunity. Because we agree with Appellants that they are entitled to immunity, we reverse the circuit court's ruling and remand for dismissal of the complaint.
BACKGROUND
Adams filed this suit on October 23, 2017, alleging personal injuries he sustained while walking in an area of a relative's property. Adams alleged that Pike County, Kentucky and its fiscal court, comprised of the County Judge Executive, William Deskins, and each of the magistrates, jointly owned an easement or right-of-way across the subject real property for the placement and installation of a pipeline which carried water underneath the county road, across the property, and disposed the water into an adjacent creek. Adams further alleged that a drainage problem with the pipeline had led to erosion of the ground underneath the surface, causing the ground underneath him to collapse and leading to his injuries.
The complaint was based on a negligence theory, with Adams alleging that Appellants had a duty to exercise ordinary care in the repair and maintenance of the pipeline, that they breached their duty of care, that they knew, or should have known, that a risk of harm was present, and that Appellants' failure to comply with their duties was the proximate cause of Adams' bodily injury. In his complaint, Adams did not indicate whether he was naming either the judge executive or the magistrates in their individual capacities, nor did he make any specific allegations of negligence or fault as to any of those individuals. He merely stated that the individuals "comprised" the Pike County Fiscal Court. The Pike Circuit Court entered an order on January 31, 2018, denying Appellants' motion to dismiss based upon sovereign immunity, and this appeal followed.
ANALYSIS
The denial of a motion to dismiss is typically interlocutory and not subject to appeal, as appellate review is available solely for final judgments. CR 54.01. Nevertheless, "when an appeal is based on a claim of sovereign immunity, immediate de novo review is available upon request." County Employees Retirement System v. Frontier Housing, Inc., 536 S.W.3d 712, 713 (Ky. App. 2017) (citing Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009)). Consequently, an appellate court has jurisdiction to consider the denial of a motion to dismiss which is directly connected to a claim of sovereign immunity. Id. at 713-14.
The Kentucky Supreme Court thoroughly addressed the standard of review for motions to dismiss for failure to state a claim upon which relief can be granted in Fox v. Grayson, stating:
A motion to dismiss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved . . . . Accordingly, the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true. This exacting standard of review eliminates any need by the trial court to make findings of fact; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead an appellate court reviews the issue de novo.Fox, 317 S.W.3d 1, 7 (Ky. 2010) (internal quotation marks and footnotes omitted). "Because we are concerned only with whether the complaint states a cause of action, and not liability, our decision necessarily depends on the allegations made in the complaint." Taylor v. Maxson, 483 S.W.3d 852, 855 (Ky. App. 2016) (citing Smith v. Isaacs, 777 S.W.2d 912, 915 (Ky. 1989)).
Appellants assert that the complaint does not state a claim upon which relief can be granted because they are entitled to sovereign immunity. It is well-settled in Kentucky jurisprudence that "Kentucky counties are cloaked with sovereign immunity." Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004) (citing Monroe County v. Rouse, 274 S.W.2d 477, 478 (Ky. 1955)). "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. (citation omitted).
Moreover, "county governments cannot be held liable for the negligent actions of employees acting in an official capacity." Estate of Clark ex rel. Mitchell v. Daviess County, 105 S.W.3d 841, 844 (Ky. App. 2003) (citation omitted). Similarly, a county judge executive and fiscal court members in their official capacities are entitled to absolute immunity from tort actions. Id. "Any action against fiscal court members in their official capacities is essentially an action against the county which is barred by sovereign immunity." Id. (citation omitted). On the other hand, "when sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment." Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001) (citation omitted). While a public officer or employee has immunity for the good faith performance of a discretionary function, he or she is "afforded no immunity from tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Id. (citation omitted).
The Kentucky Supreme Court in Calvert Investments, Inc. v. Louisville & Jefferson County Metropolitan Sewer Dist., however, cautioned that a claim against a public employee or official in his or her individual capacity must be made with "specificity[.]" 805 S.W.2d 133, 139 (Ky. 1991). The Calvert Investments, Inc. Court found that the complaint in that case failed to state a separate cause of action for personal liability against any particular individual, pointing out the complaint's "failure to specify individual capacity in the heading, the lack of specificity in the body, and the failure to seek judgment against such individuals in the concluding demand[.]" Id.
In a successive decision of the Kentucky Supreme Court, the Court distinguished Calvert and found that, although the complaint did not specifically mention whether the action was against the state actor in his individual or official capacity, when taken as a whole, it was adequate to allege individual liability. McCollum v. Garrett, 880 S.W.2d 530, 533 (Ky. 1994). The Court highlighted the complaint's allegations:
While disclosure of McCollum's official position in the caption and in paragraph 2 creates a measure of uncertainty, the complaint otherwise states a straightforward claim against McCollum based upon his individual actions. Nowhere is there any allegation that Henderson County or its fiscal court is liable for damages. The relevant allegations of misconduct are directed at McCollum[.]Id. (emphasis added).
Moreover, a panel of this Court had the opportunity to address a set of circumstances similar to those in this case in Edmonson County v. French, 394 S.W.3d 410 (Ky. App. 2013). In French, a court employee, French, slipped and fell on ice while entering the Edmonson County Courthouse. Id. at 411-12. French sued Edmonson County, Edmonson County Fiscal Court, and the members of Edmonson County Fiscal Court, alleging negligence on the part of the defendants. Id. at 412. The French Court found that, pursuant to Smolcic, Edmonson County had sovereign immunity. Id. at 414. The Court further found that, as to the issue of whether the individual members of the fiscal court had immunity, Calvert was more applicable than McCollum, as French's complaint:
did not specify whether she was alleging claims against the judge executive and fiscal court members in their official or individual capacities, but she certainly referred to them in their official capacities. She then referred to them as "defendants" in the remainder of the complaint, and specifically requested relief from the defendants in the ad damnum clause. However, French specifically pled that the Edmonson County Fiscal Court was "responsible for maintaining and keeping safe the premises of the Edmonson County Courthouse, public building" and that the defendants failed to keep the premises she would reasonably be expected to use in a reasonably safe condition. French did not single out any particular member of the fiscal court or the judge executive regarding that person's action or lack of action, as was the case in McCollum. And she certainly alleged that the county and the fiscal court were liable.Id. at 416.
The foregoing jurisprudence leads us to the conclusion that the instant complaint must be dismissed on the basis of sovereign immunity. In this case, Adams' complaint clearly alleged a tort action, based both on the clear wording of the complaint and the fact that Adam would not have standing to challenge any breach of an existing easement agreement or other contract between Appellants and the owners of the real property at issue. See Presnell Const. Managers, Inc. v. EH Const., LLC, 134 S.W.3d 575, 579 (Ky. 2004) (holding that, in Kentucky, privity of contract must exist before a party may sue for breach of contract). Further, pursuant to Smolcic, Pike County is absolutely immune - as a county, it is shielded by sovereign immunity from tort actions.
Moreover, regarding whether the individual Appellants are liable, we are persuaded that, as in French, the facts of this case are more akin to Calvert than to McCollum. As previously discussed, whether the individual Appellants are entitled to immunity depends on whether Adams was suing them in their individual capacities or only in their official capacities. Adams' complaint's caption designates "Pike County, Kentucky and The Pike County Fiscal Court Comprised of Judge Executive William Deskins, Magistrate Jeff Anderson, Magistrate Vernon Johnson, Magistrate Leo Murphy, Magistrate Kenneth Robinson, Magistrate Hillman Dotson, Magistrate Bobby Varney" as the defendants without further language indicating whether any of the individuals were named in their individual or official capacity. The complaint additionally states that Pike County, Kentucky "is subject to service of process through its duly elected Judge Executive, William Deskins," and "the other Defendants, including Judge Deskins, comprise the public body known as the Pike County Fiscal Court." The complaint further alleges that Appellants "jointly . . . had an easement or right-of-way across the real property" and "demands judgment against the Defendants to compensate [Adams] for such damage."
The complaint's caption in the case sub judice does not designate whether the judge and magistrates were named in their individual or official capacities, and the individuals are consistently referred to throughout as "comprising" the Pike County Fiscal Court. As in French, Adams refers to Appellants as "defendants" throughout the entire complaint and makes no reference to Appellants individually in the body of the complaint. Adams does not single out any particular member of the fiscal court or the judge executive regarding that person's action or lack of action, as was the case in McCollum, and the entire basis of his complaint was that the court and the fiscal court were liable. In summary, the complaint consists only of allegations that any acts of negligence were in Appellants' capacities as either county judge executive or magistrate. We conclude that the circuit court erred when it ruled that Appellants were not entitled to sovereign immunity as to Adams' tort claims.
CONCLUSION
For the foregoing reasons, the Pike Circuit Court's order denying Appellants' motion to dismiss is reversed, and this matter is remanded for dismissal of Adams' complaint.
ALL CONCUR. BRIEF FOR APPELLANTS: Jonathan C. Shaw
Paintsville, Kentucky BRIEF FOR APPELLEE: Adam S. Hall
Pikeville, Kentucky