Opinion
NO. 2015-CA-000643-MR
03-03-2017
MICKEY SCHMITT; HEATHER CANSLER; HEATHER COOK; WILLIE HOUCHENS; GAYLA HOUCHENS; ALLEN GRACE; JENNIFER GRACE; SANDRA WINDERS; KERRY WINDERS; ROBIN SMITH; ANNETTA HAMBY; CAPITOLA CHARLES; JULIANA LACY; HELEN WEST; GERLINDE DELANEY; CLINTON DELANEY; AND LISA DOWNEY APPELLANTS v. CHRISTIAN COUNTY BOARD OF EDUCATION; KENTUCKY BOARD OF EDUCATION; KENTUCKY DEPARTMENT OF EDUCATION; AND KENTUCKY SCHOOL FACILITIES CONSTRUCTION COMMISSION APPELLEES
BRIEFS FOR APPELLANTS: Daniel N. Thomas Hopkinsville, Kentucky BRIEF FOR APPELLEES: Jack N. Lackey, Jr. Benjamin R. Talley Hopkinsville, Kentucky Todd G. Allen Lisa K. Lang Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW SELF, JUDGE
ACTION NO. 14-CI-00552 OPINION AND ORDER
DISMISSING
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BEFORE: CHIEF JUDGE KRAMER; DIXON AND TAYLOR, JUDGES. TAYLOR, JUDGE: Mickey Schmitt, Heather Cansler, Heather Cook, Willie Houchens, Gayla Houchens, Allen Grace, Jennifer Grace, Sandra Winders, Kerry Winders, Robin Smith, Annetta Hamby, Capitola Charles, Juliana Lacy, Helen West, Gerlinde Delaney, Clinton Delaney, and Lisa Downey (collectively referred to as appellants) bring this appeal from a March 27, 2015, Opinion and Judgment of the Christian Circuit Court granting the Christian County Board of Education's motion for summary judgment. For the reasons stated, we dismiss this appeal.
On November 21, 2013, the Christian County Board of Education (Board of Education) voted to close Lacy Elementary School effective June 30, 2015. As a consequence, on May 12, 2014, appellants, Mickey Schmitt, Heather Cansler, Heather Cook, Willie Houchens, Gayla Houchens, Allen Grace, Jennifer Grace, Sandra Winders, Kerry Winders, Robin Smith, Annetta Hamby, Capitola Charles, Juliana Lacy, Helen West, Gerlinde Delaney, Clinton Delaney, and Lisa Downey filed a complaint in the Christian Circuit Court against the Christian County Public Schools, their superintendent, and individual school board members. By order entered July 9, 2014, the circuit court dismissed the individual board members and superintendent from the case and substituted the Christian County Board of Education for the "public schools" as the real party in interest, who had previously filed an answer to the complaint. By first amended complaint filed on September 2, 2014, plaintiffs named additional defendants, inter alios, the Kentucky Department of Education, Kentucky Board of Education, Kentucky School Facilities Construction Commission, and Terry Holliday, Kentucky Commissioner of Education. Therein, appellants claimed that the Board of Education improperly closed Lacy Elementary School and that defendants violated 702 Ky. Admin. Regs. (KAR) 4:180 and acted in an arbitrary manner. By order entered October 8, 2014, the Kentucky School Facilities Construction Commission was dismissed as a party. On October 17, 2014, the remaining defendants answered the amended complaint. On February 2, 2015, the Board of Education filed a motion for summary judgment.
Appellants, plaintiffs below, are parents of children who attended Lacy Elementary School, taxpayers of Christian County and/or residents of Christian County.
By Opinion and Judgment entered March 27, 2015, (2015 Judgment) the circuit court granted summary judgment in favor of the Board of Education. In particular, the circuit court concluded:
Based on the foregoing, this court finds and concludes as a matter of law that the Defendant, Christian County Board of Education, did not act arbitrarily with regard to its decision to close Lacy School. The process utilized was fair, rational, and in compliance with applicable state statutes, regulations and procedures. This court further finds and concludes as a matter of law that there are no genuine issues of material fact and that the Christian County Board of Education is entitled to judgment as a matter of law.
For these reasons, the Christian County Board of Education's Motion for Summary Judgment shall be and is hereby GRANTED.2015 Judgment at 14-15.
This is a final and appealable order.
On April 24, 2015, appellants filed a notice of appeal from the 2015 Judgment. In the notice, appellants named Board of Education, Kentucky Board of Education, Kentucky Department of Education and Kentucky School Facilities Construction Commission as appellees. This appeal follows.
A final and appealable judgment is one that adjudicates all the rights of all the parties or is made final under the Kentucky Rules of Civil Procedure (CR) 54.02. In an action involving multiple claims and/or multiple parties, CR 54.02 permits the trial court to make an otherwise interlocutory order final and appealable. An interlocutory order may only be made final and appealable if the order includes both certifications - (1) there is no just cause for delay, and (2) the decision is final. It is well-recognized that strict compliance with the rule is required. Peters v. Bd. of Educ., 378 S.W.2d 638 (Ky. 1964). A court's failure to include both certifications in a judgment renders it interlocutory and nonappealable. Turner Const. Co. v. Smith Bros., Inc., 295 S.W.2d 569 (Ky. 1956).
In Watson v. Best Fin. Servs., Inc., 245 S.W.3d 722, 727 (Ky. 2008), the Kentucky Supreme Court held that CR 54.02 certifications must be thoroughly considered by the circuit court before making a ruling:
A trial court should not grant CR 54.02 requests routinely or as a courtesy to counsel. Each case must be evaluated on a case-by-case basis.
In this case, appellants named as defendants, inter alios, the Board of Education, Kentucky Board of Education, Kentucky Department of Education, Kentucky School Facilities Construction Commission and Terry Holliday, Kentucky Commissioner of Education. However, in the 2015 Judgment, the circuit court concluded that the Board of Education was entitled to summary judgment but did not mention the other defendants named in the action. The 2015 Judgment also did not recite that all claims were dismissed or that the complaint was dismissed. And, most relevant, the 2015 Judgment failed to include both certifications under CR 54.02; it only recited "[t]his is a final and appealable order."
As noted in Peters, 378 S.W.2d 638, an appellate court must raise the issue of lack of jurisdiction on its own motion where an order lacks finality. Id. And, the parties, by agreement, cannot confer jurisdiction on this Court. Wilson v. Russell, 162 S.W.3d 911 (Ky. 2005).
From our analysis and review above, it is clear that the 2015 Judgment is interlocutory. Summary judgment was only granted in favor of the Board of Education and not the other defendants. So, it was incumbent upon the circuit court to include both CR 54.02 certifications in order to make the judgment final and appealable. See Turner Const. Co., 295 S.W.2d 569; Peters, 378 S.W.2d 638. The circuit court failed to do so; thus, the 2015 Judgment is interlocutory and nonappealable. See Turner Const. Co., 295 S.W.2d 569.
Now therefore be it ORDERED that Appeal No. 2015-CA-000643-MR is DISMISSED as having been taken from an interlocutory judgment. Additionally, it is ORDERED that the Board of Education's Motion to Dismiss this appeal as moot is DENIED.
Having reviewed the Christian County Board of Education's motion to dismiss and response thereto, we harbor grave doubt that a live controversy still exists between the parties. However, we believe such issue should be addressed by the circuit court considering the current procedural posture of this case. --------
ALL CONCUR. ENERED: March 3, 2017
/s/ Jeff S. Taylor
JUDGE, COURT OF APPEALS BRIEFS FOR APPELLANTS: Daniel N. Thomas
Hopkinsville, Kentucky BRIEF FOR APPELLEES: Jack N. Lackey, Jr.
Benjamin R. Talley
Hopkinsville, Kentucky Todd G. Allen
Lisa K. Lang
Frankfort, Kentucky