Opinion
NO. 2015-CA-001705-MR NO. 2015-CA-001719-MR
06-23-2017
RODERIKA BRYANT, INDIVIDUALLY AND RODERIKA BRYANT, AS THE ADMINISTRATRIX OF THE ESTATE OF DAVION POWELL APPELLANTS v. LOUISVILLE METRO HOUSING AUTHORITY AND JUANITA MITCHELL APPELLEES AND RONALD HAYES APPELLANT v. LOUISVILLE METRO HOUSING AUTHORITY AND JUANITA MITCHELL APPELLEES
BRIEF FOR APPELLANT RODERICKA BRYANT: David J. Guarnieri Robert M. Guarnieri Louisville, Kentucky BRIEF FOR APPELLANT RONALD HAYES: Andrew Horne Louisville, Kentucky BRIEF FOR APPELLEES: Patricia C. Le Meur Richard Nash, III Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 12-CI-002309 OPINION
AFFIRMING
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BEFORE: JOHNSON, JONES, AND THOMPSON; JUDGES. JONES, JUDGE: This appeal raises the question of whether the Louisville Metro Housing Authority ("LMHA"), and its property manager, Juanita Mitchell, are entitled to immunity so as to preclude liability in litigation arising from the tragic death of a child at the 550 Apartments. The Jefferson Circuit Court found that they are immune. Because LMHA is a government agency, specifically of the Louisville Metropolitan County Government, performing a governmental function, it is entitled to immunity. Further, because Mitchell was performing a discretionary task, she is likewise entitled to immunity from suit in her individual capacity. For the reasons more fully explained below, we affirm the ruling of the Jefferson Circuit Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the tragic death of a young child, Davion Powell ("Powell"), who was shot while in the apartment of Terrah Love ("Love"). Powell was with his mother, Appellant, Rodericka Bryant ("Bryant"), who was visiting Love. Love and her children resided at the 550 Apartments, located on Eighth Street between Muhammad Ali Boulevard and Chestnut Street in Louisville, Jefferson County, Kentucky. The 550 Apartments are a low-income, government-subsidized residential housing complex, owned, managed, and operated by LMHA.
LMHA
LMHA is an administrative agency of the Louisville/Jefferson County Metropolitan Government. In 2003, the former Jefferson County and the former City of Louisville merged to form Louisville Metropolitan County Government. This is a consolidated local government organized under Chapter 67C of the Kentucky Revised Statutes (KRS) and, as such, is the duly formed government of Jefferson County, Kentucky. LMHA came into being as part of the 2003 merger and is the successor agency of the former Housing Authority of Jefferson County and former Housing Authority of Louisville. LMHA is an agency of Louisville Metro Government, created pursuant to state statute and local ordinance. (KRS 67C.101, KRS 80.010, Louisville Metro Government Ordinance 32.350 et seq.).
LMHA is not the same entity as the Louisville Metro Housing Authority Development Corp., which is a Kentucky non-profit corporation with no role in the ownership, operation, or maintenance of LMHA's low-income, subsidized housing units. Louisville Metro Housing Authority Development Corp. has never owned or operated the 550 Apartments.
In accordance with these statutes and ordinances, LMHA's mission is to provide quality, affordable housing for impoverished residents of Metro Louisville, to assist residents in their efforts to achieve financial independence, and to work to strengthen the Louisville/Jefferson County community and its neighborhoods. In furtherance of its mission, LMHA owns and operates public housing units throughout the Jefferson County geographic area. It also administers the United States Department of Housing and Urban Development (HUD) Section 8 Housing Choice Voucher Program, secures federal grants to fund large-scale neighborhood revitalization projects, administers an academic scholarship fund for children of public housing, and provides support services and community outreach to disabled, elderly, refugee, and other populations. LMHA additionally administers programs designed to foster family self-sufficiency and home ownership among community members who are low income.
Juanita Mitchell
Juanita Mitchell ("Mitchell") was employed by LMHA as the property manager of the 550 Apartments from April 24, 1986, until April 30, 2011. Mitchell also served as the property manager for two nearby LMHA properties during that time. Her general duties as property manager were to enforce the residential leases, collect rent, and oversee maintenance.
The Residential Lease Agreement enumerates tenant responsibilities, lease enforcement, and termination policies and procedures. The tenant responsibilities can be found in Section F of the Lease Agreement, which provides:
RESPONSIBILITIES OF THE RESIDENT including but not limited to any drug-related or criminal activity by Resident, or Resident's family members, guests, visitors, or individuals on LMHA property at the invitation of Resident or under the control of Resident shall be deemed a serious violation of material terms of this lease and good cause for termination of this residential lease
without further opportunity to cure or remedy the violation. Proof of violation of any of the above provisions of section F, which relates to unlawful or criminal activity shall not require criminal conviction but shall be by a preponderance of the evidence, unless otherwise provided by law.Mitchell reviewed this agreement with prospective tenants before they signed the lease. Enforcement and termination of resident leases are guided by LMHA's lease agreement and its Admissions and Continued Occupation Policy (ACOP), as well as by Kentucky's Landlord-Tenant Act (KRS 383.010, et seq.), and state and federal law.
LMHA submitted an affidavit from its Executive Director, Timothy Barry. Therein, Barry provided that, as property manager, Mitchell was vested with broad discretion in the performance of her duties, including her responses to resident complaints, actions taken with respect to any lease violations, and flexibility in allowing tenants to cure any violations. In her deposition, Mitchell added that for many residents, their LMHA apartments represented "their last chance more or less for decent housing." Mitchell explained that she made every effort to work with the tenants in her buildings to comply with the lease requirements. Mitchell stated:
When you're in a management position, and you're dealing with low-income, very young people who don't know how to live alone, they're trying to raise families, and they've got all these different people coming in and out and whatever you become a counselor, a mother, a father. You become all these things and say, I'm trying to
help you. You do that kind of thing until this is it; you're not working with us. So then - this is sincere.Barry explained that this exercise of discretion by Mitchell and other property managers in the performance of their duties is vital to LMHA's day-to-day operations of its properties and to the long-term success of LMHA's relationships with its residents, all in accordance with its statutory mandate.
In her deposition, Mitchell explained how she would handle a complaint or notice of a lease violation. She provided that upon receipt of a complaint or notice of a lease violation, she could choose among several responses, including sending the tenant a warning letter, a 30-day termination letter, or a 14-day termination letter advising of the violation. The tenant could address this notice in various ways, including coming to the office to discuss the situation with Mitchell or stopping the behavior at issue. The letters give the tenant an opportunity to correct the situation.
Mitchell stated that if a tenant continued to violate the lease and she felt they had been given enough chances, she had the option to recommend eviction. To do so, she would fill out a "Form A Eviction for Cause" and submit it to her supervisor for review. Mitchell's supervisor would then submit it to the Executive Director for approval. Mitchell stated that her supervisor could decide that the tenant should be given another chance.
Once Form A is reviewed and approved at all levels, the matter is turned over to LMHA's attorney for appropriate court proceedings. LMHA must comply with Kentucky statutes and with HUD requirements regarding eviction proceedings. As such, except in limited circumstances, tenants are entitled to due process, including a court hearing, before termination of a lease.
Once a forcible detainer judgment is obtained from the court, a tenant could be evicted. However, even at this point, Mitchell claimed that she or her supervisors had the authority to stop eviction proceedings if she felt the tenants cured their problem. Mitchell's duties and enforcement of these policies with respect to enforcement of Love's lease are central to our review of this case.
Love's Tenancy
Love resided at the 550 Apartments from February 2008 through July 2011. During her tenancy, Love had several lease violations and alleged violations. These problems ranged from having breed restricted dogs in her apartment, to playing loud music, to allowing individuals not on the lease to live with her.
On September 4, 2008, Mitchell sent Love a "30 Day Lease Termination Letter with No Right to Cure," on behalf of LMHA for violating provisions of the lease. On April 13, 2010, a forcible detainer judgment was entered against Love in favor of LMHA. No further action was taken and Love remained a tenant. On February 4, 2011, Mitchell sent Love a warning letter indicating that she may have violated provisions in her lease. Next, on February 8, 2011, the Louisville Metro Police Department ("LMPD") responded to a report of violence between Love and a male roommate in front of her children. The LMPD arrested Terrah Love and charged her with Assault Fourth Degree.
On April 14, 2011, Mitchell hand delivered a lease termination letter to Love, stating that her lease would be terminated in 14 days. Mitchell stated that on or before April 29, 2011, she filled out a document indicating LMHA had been notified that Love was involved in "shootings and physical fights with other residents." Mitchell's successor filled out the same form on May 13, 2011. On May 12, 2011, LMHA filed a forcible detainer action based on Love's failure to pay her April 2011 rent.
To complicate matters, Mitchell's scheduled retirement was on April 30, 2011. Before she retired, she forwarded the "Form A" to her supervisor who was to be the interim property manager. Mitchell's interim successor initiated eviction proceedings after Mitchell's retirement. Love was eventually evicted in July 2011.
On May 13, 2011, Bryant and Powell went to Love's apartment for a cookout. Powell played inside Love's apartment with other children while Bryant socialized outside with Love and others. A neighborhood man, who was not a resident at the 550 Apartments, Roderick Moss, approached the group outside Love's apartment. Moss fired several gunshots into the windows of the apartment, wounding Powell, who sadly passed away three days later.
The shooting incident arose from a conflict between Love and another woman. The conflict had begun several months prior to the shooting, and Bryant was aware of the ongoing conflict. Bryant had known Love for over a year prior to the May 2011 incident, and stated that she went to visit Love often. She described Love's apartment at the 550 Apartments as the "hangout spot." Bryant admitted that she would have gone to visit even if Love had lived elsewhere.
Procedural History
Bryant filed the underlying lawsuit against LMHA and Mitchell alleging claims for negligence, wrongful death, loss of consortium, and punitive damages arising from Powell's death. Specifically, she alleged that LMHA and Mitchell negligently failed to evict Love prior to the May 13, 2011, shooting, thereby directly causing Powell's death. (Amended Complaint, R. 64-66). Powell's father, Ronald Hayes, later filed a motion to intervene as plaintiff. Thereafter, several depositions were taken of the parties.
Appellants filed an amended complaint on June 12, 2012.
Appellants filed a motion for partial summary judgment, arguing that LMHA and Mitchell are not entitled to sovereign or official immunity. Bryant also argued that the criminal acts of a third party do not absolve LMHA and Mitchell of liability. LMHA and Mitchell filed a response, as well as their own motion for summary judgment arguing that they are both entitled to immunity. Appellants filed a responding motion and renewed motion for summary judgment.
The trial court issued its order granting summary judgment in favor of Appellees on May 21, 2015. Thereafter, Appellants filed a motion to alter, amend, or vacate which was ultimately denied by the trial court through its order entered October 12, 2015.
This appeal followed.
II. STANDARD OF REVIEW
A party moving for summary judgment must establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR 56.03. Generally, an order denying a motion for summary judgment is interlocutory and, therefore, not appealable. Battoe v. Beyer, 285 S.W.2d 172 (Ky. 1955). Nevertheless, an order denying a motion for summary judgment based on a claim of sovereign immunity is immediately appealable. Breathitt Cty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 886-87 (Ky. 2009).
Kentucky Rules of Civil Procedure. --------
Whether a defendant is protected by immunity is a question of law, which we review de novo. Rowan Cty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006); Estate of Clark ex rel. Mitchell v. Daviess Cty., 105 S.W.3d 841, 844 (Ky. App. 2003). "In the context of qualified official immunity, summary judgments play an especially important role, as the defense renders one immune not just from liability, but also from suit itself." Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010) (internal quotations and citation omitted).
III. ANALYSIS
A. Immunity of Housing Authority
Kentucky law distinguishes between sovereign immunity and governmental immunity and, in turn, draws a distinction between the protections afforded the state and county governments and those afforded governmental agencies or entities. The Commonwealth and Kentucky counties enjoy sovereign (absolute) immunity from suit, absent consent or waiver. Comair, Inc. v. Lexington-Fayette Urban Cty. Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009). "[P]erhaps the most succinct explanation accounting for the concept is that 'it is not a tort for government to govern . . . .'" Id. (citation omitted). A merged urban-county government, such as the Louisville/Jefferson County Metropolitan Government, is a classification of county government that likewise is afforded sovereign immunity. Lexington-Fayette Urban Cty. Gov't v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004).
The parties generally concede, and we agree, that LMHA is not entitled to sovereign immunity. It is neither the Commonwealth nor a county thereof. The question we must resolve is whether LMHA is a government agency performing an integral state governmental function, such that it is entitled to protections of governmental immunity. Governmental immunity is a derivative of sovereign immunity and is granted to qualified governmental agencies or entities. Comair, 295 S.W.3d at 94. The test for whether an entity qualifies for governmental immunity is two-pronged. Id. at 99. First, the entity must have been established by an immune entity. Id. Second, the court must assess whether the entity performs a "function integral to state government." Id.
First, we must examine the origin, or "parent," of the entity to determine if the entity is an agency (or alter ego) of a clearly immune parent. Id. This inquiry recognizes that, to some extent, an entity's immunity status depends on the immunity status of the parent entity. Id. The consolidated local government of Louisville-Jefferson County is the parent entity of LMHA. Consolidated local governments, formed through the merger of a city of the first class and the county containing the city, are afforded the same sovereign immunity as counties. See KRS 67C.101(1) & (2)(e). Because Louisville-Jefferson County Metropolitan Government is a consolidated local government organized under Chapter 67C and formed by the merger of the former City of Louisville and the former Jefferson County, it is protected by sovereign immunity. See Jewish Hosp. v. Louisville/Jefferson Cty. Metro Gov't., 270 S.W.3d 904, 907 (Ky. App. 2008). Additionally, as LMHA is organized under KRS Chapter 80, it is an agency of the state as well. See Brooks v. Lexington-Fayette Urban Cty. Hous. Auth., 332 S.W.3d 85, 90 (Ky. App. 2009). It is well-established that Kentucky law provides that both the Commonwealth and the Louisville Metro Government are entitled to sovereign immunity. As LMHA is a government entity whose parent entity is entitled to immunity, the first prong of the Comair analysis is satisfied. See Comair, 295 S.W.3d at 99.
As to the second prong, we must determine whether LMHA exercises a function integral to state government. In determining whether an entity's function is "integral to state government" the court's examination should focus "on state level governmental concerns that are common to all of the citizens of this state, even though those concerns may be addressed by small geographic entities (e.g., by counties). Such concerns include, but are not limited to, police, public education, corrections, tax collection, and public highways." Id. We agree with LMHA that providing services to the poor at the county level has historically been treated as an integral government function. As set forth in Comair:
[A] county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provisions for the poor , of military organization, of the means of travel and transport, and especially for the general administration of justice.Id. (quoting Marion Cty. v. Rives & McChord, 118 S.W. 309, 311 (Ky. 1909) (emphasis added)).
Kentucky's General Assembly has also recognized that housing authorities function to address concerns common to the state as a whole and that the operation of housing authorities provides benefits and advantages to the public as a whole:
It is hereby declared that there exist in Kentucky unsafe and unsanitary housing conditions and a shortage of safe and sanitary dwelling accommodations for persons of low income; that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services and facilities; and that the public interest requires the remedying of these conditions. It is further declared that the assistance provided in KRS 80.280 to 80.300 for the remedying of such conditions constitutes a public use and purpose and an essential governmental function for which public money may be spent and other aid given; that it is a proper public purpose for any public body to aid any housing authority located or operating within its boundaries or jurisdiction, as the public body derives immediate benefits and advantages from such a housing authority or developments; and that the provisions of KRS 80.280 to 80.300 are necessary in the public interest.KRS 80.270.
LMHA's function is to address state-level concerns regarding "unsafe and unsanitary housing conditions and a shortage of safe and sanitary dwelling accommodations for persons of low income," which the Kentucky General Assembly has declared constitutes an "essential government function" that addresses public health and safety concerns of the Commonwealth. Accordingly, the public and essentially governmental nature of LMHA's systematic work to address state-level low income housing concerns throughout the Louisville/Jefferson County Metropolitan area is well-established and satisfies the second prong of the Comair analysis. As such, the trial court correctly granted summary judgment in LMHA's favor on the basis of governmental immunity.
B. Immunity of Juanita Mitchell
Next, we address whether Juanita Mitchell is immune from liability for tort claims arising from her duties as the property manager at the 550 Apartments. The doctrine of qualified official immunity shields public officers and employees from liability for the negligent performance of discretionary acts if done in good faith and within the scope of their authority. Nelson Cty. Bd. of Educ. v. Forte, 337 S.W.3d 617, 621 (Ky. 2011); Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). The doctrine is designed to protect officials for their "good faith judgment calls made in a legally uncertain environment." Haney, 311 S.W.3d at 240 (quoting Yanero, 65 S.W.3d at 522) (emphasis omitted). On the other hand, no immunity is afforded for the negligent performance or omissions of a ministerial act. Yanero, 65 S.W.3d at 521; Forte, 337 S.W.3d at 621 ("[I]t has always been the case that the negligent performance of a ministerial act by an official or employee enjoys no immunity[.]").
Appellants allege that Mitchell was negligent for not evicting Love from the 550 Apartments before Moss shot into her apartment and killed Powell on May 13, 2011. There is no dispute that Mitchell was a public official/employee acting in her capacity as LMHA property manager and that enforcement and termination of residential leases was her official duty within the scope of such employment. The issue presented in this case is whether Mitchell's duties and functions concerning the termination of Love for alleged violations of her lease were discretionary or ministerial.
The distinction between a discretionary act and a ministerial act is critical to the immunity determination. Yanero, 65 S.W.3d at 521. Our threshold task in any qualified official immunity case, then, is to label "the particular acts or functions in question" as either discretionary or ministerial. Haney, 311 S.W.3d at 240. Discretionary acts involve "the exercise of discretion and judgment, or personal deliberation, decision, and judgment[.]" Yanero, 65 S.W.3d at 522. Such acts "require the exercise of reason in the adaptation of means to an end, and discretion in determining how or whether the act shall be done or the course pursued." Haney, 311 S.W.3d at 240. Conversely, "ministerial acts or functions - for which there are no immunity - are those that require '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. (quoting Yanero, 65 S.W.3d at 522).
The need to ascertain the "fixed and designated" facts does not necessarily convert a ministerial act into a discretionary act. Upchurch v. Clinton Cty., 330 S.W.2d 428, 430 (Ky. 1959). Likewise, "[a]n act is not necessarily 'discretionary' just because the officer performing it has some discretion with respect to the means or method to be employed." Yanero, 65 S.W.3d at 522. The task of deciphering whether a function is discretionary or ministerial often proves to be a very difficult endeavor for the courts. Ultimately, "the decision as to whether a public official's acts are discretionary or ministerial must be determined by the facts of each particular case[.]" Jerauld ex rel. Robinson v. Kroger, 353 S.W.3d 636, 640-41 (Ky. App. 2011) (quoting Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, 286 S.W.3d 790, 809 (Ky. 2009)).
Appellants argue that the terms of the lease agreement created a ministerial duty for Mitchell, as the property manager, to evict Love from the housing complex. Thus, they argue that Mitchell failed to enforce a known rule when she failed to carry out Love's eviction. We disagree.
In Yanero v Davis, the Court found that a coach's duties were ministerial in nature because they "involved only the enforcement of a known rule requiring that student athletes wear batting helmets during baseball batting practice." 65 S.W.3d at 529. As such, the coach was not entitled to the defense of qualified official immunity. Here, there was no "binary directive" like the rule in Yanero requiring students engaged in batting practice to wear a helmet. Haney, 311 S.W.3d at 242 (citing Yanero, 65 S.W.3d at 529).
In contrast to the "binary directive" present in Yanero, here, both the ACOP and terms of the lease demonstrate the wide discretion afforded to LMHA and its property managers in the enforcement of a tenant's lease. The residential lease agreement contains multiple provisions in which tenants are advised that certain actions - such as disorderly, disruptive, or abusive conduct and criminal activity threatening others' health, safety, or right to peaceful enjoyment - "may result in termination" or "shall be cause for termination." While the lease language provides instances that "shall be cause" for eviction or termination, there is no language that requires eviction. That a tenant's infraction shall be cause for termination, or may result in termination, does not require the lease to be terminated. Further, Section 20.2 of the ACOP provides that "[t]he Louisville Metro Housing Authority may terminate the lease for serious or repeated violation of material lease terms." (emphasis added). Termination is not required under this provision, but is discretionary. As the trial court noted, if they intended for the lease to automatically terminate, the language might state that such activity "shall terminate the lease." However, no such mandatory language exists.
LMHA executive director, Mr. Barry, provided that the ability of LMHA property managers to exercise discretion in the performance of their jobs is vital to the day-to-day operation of LMHA housing and the long-term success of the relationship between LMHA and its residents. Mr. Barry explained the wide discretion afforded to Mitchell:
As Property Manager, LMHA invested Ms. Mitchell with broad discretion in the performance of her duties. Ms. Mitchell was given discretion to determine the best manner of addressing resident complaints, dealing with emergencies, and mediating disputes between residents. It was also within Ms. Mitchell's discretion to determine whether a particular resident was in violation of her lease, whether a resident in violation would have the opportunity to cure that violation, and whether LMHA ultimately would take legal action against a resident for lease violations.Mitchell's deposition testimony also confirms the discretionary nature of her duties and functions as property manager. In Mitchell's deposition, she explained her options upon receiving a complaint or notice that a tenant had violated her lease. Mitchell explained that she was vested with authority to respond in several ways: she could send a warning letter, a 30-day termination letter or a 14-day termination letter. Even after these warning letters or termination letters were sent, she explained that tenants had the opportunity to come talk with her and cure their violation.
Further, she provided that a tenant could also cure the situation by simply ceasing the offending behavior. Mitchell explained that she would assess the situation and then would recommend to her supervisor if she felt that eviction proceedings should begin. Mitchell explained though, that even if she had initiated eviction proceedings, she could stop the proceedings if she felt that a tenant had cured the problem. The record overwhelmingly supports that Mitchell was vested with great discretion in her function to enforce residential leases and address Love's lease violations.
LMHA also points to Dep't of Hous. and Urban Dev. v. Rucker, 535 U.S. 125, 130, 122 S. Ct. 1230, 152 L.Ed.2d 258 (2002), arguing that the United States Supreme Court has specifically determined that permissive language, such as the language included in the lease agreement herein, vests housing authorities with discretion regarding lease enforcement. In Rucker, the Court examined a federal statute requiring housing authorities to utilize language in leases providing that tenants or guests of the tenants engaged in drug-related criminal activity "shall be cause for termination of tenancy." The Court explained:
The statute does not require the eviction of any tenant who violated the lease provision. Instead, it entrusts that decision to the local public housing authorities, who are in the best position to take account of, among other things, the degree to which the housing project suffers from "rampant drug-related or violent crime," "the seriousness of the offending action," and "the extent to which the leaseholder has . . . taken all reasonable steps to prevent or mitigate the offending action." (Internal citations omitted. Emphasis in original).Id. at 133-34, 122 S.Ct. at 1235; see also Hous. Auth. of Covington v. Turner, 295 S.W.3d 123, 126-27 (Ky. App. 2009). In Hous. Auth. of Covington v. Turner, this Court examined the same federal statute in Rucker, and noted that "the federal law does not mandate eviction." Id. at 126. This Court quoted Rucker, stating that the "statute does not require the eviction of any tenant who violated the lease provision. Instead, it entrusts that decision to the local public housing authorities [.]" Turner, 295 S.W.3d at 126 (quoting Rucker, 535 U.S. at 134). The trial court found that the language in the lease here was parallel to the federal statutory language referred to in Rucker and Turner. Thus, the trial court concluded that Mitchell's acts or functions as property manager concerning termination of a tenant's lease are discretionary. We agree.
Finally, we are not persuaded by Appellant's arguments that once Mitchell made the decision to terminate Love that her function transformed into a ministerial duty to carry out the process. Appellants point to Gaither v. Justice & Pub. Safety Cabinet, 447 S.W.3d 628 (Ky. 2014), to support this argument. In Gaither, the Court determined that there was:
[A] known rule, a clear and certain imperative within the law enforcement professions . . . that a confidential informant whose identity was compromised by his appearance in public with his police sponsors, and by his personal appearance under his own name before a grand jury, cannot be used in another buy/bust operation.Id. at 635. The Court found that while police had discretion and therefore immunity as to a number of their decisions in handling the confidential informant, the specific decision to use him in another bust after his identity as an informant was revealed violated an "absolute, certain, imperative, and clear" standard of police work. Id. Consequently, the police were not entitled to qualified official immunity for negligence regarding that ministerial action.
We find that Gaither is inapplicable to the facts before us as Appellants have failed to identify a similar "absolute, certain, imperative, and clear" standard here that Mitchell violated. Mitchell's actions were discretionary throughout and to attempt to consider them ministerial once a decision had been made would "transform all general duties into ministerial acts and functions, thus eviscerating the doctrine of qualified official immunity." Haney, 311 S.W.3d at 245.
Despite the evidence of Love's lease violations, there has been no evidence offered that it was Mitchell's mandatory duty to carry out the termination of a tenant who violated the terms of her lease. Rather, the evidence supports that there were listed reasons such as violence or criminal activity which could provide cause for termination of a lease. While the warning letters provided that a tenant's lease would be terminated in 30 days, Mitchell provided abundant testimony that she routinely gave residents second chances and that she had the authority to work with residents when they committed violations. Mitchell specifically stated that tenants always have a right to cure.
Further, Mitchell explained that even in instances where she would recommend a termination of a tenant's lease, she would then send her recommendation to her supervisor for review, and then to LMHA's attorneys for appropriate court proceedings.
Q. It would be fair to say though that there were - there are instances if severe enough that would allow you, as property manager, to immediately cancel the lease?Importantly, Mitchell's decision or recommendation never resulted in immediate termination. Rather, her decision would be reviewed by her supervisor and then LMHA's attorneys, if court proceedings needed to be initiated. Mitchell provided that she could only recall one instance in her 25 years as a property manager in which a tenant's lease was immediately terminated. There, an extreme instance occurred involving a tenant that "threw a fire bomb into an apartment." In light of the wide discretion afforded to Mitchell in her role as property manager and the lack of mandatory language in regard to termination, the trial court correctly found that Mitchell's duties as property manager to terminate the lease and evict a tenant were discretionary and she was entitled to qualified immunity.
A. As property manager, no, but I could make the recommendation to the next step.
In any event, there is also no evidence that Mitchell purposefully allowed Terrah Love to reside at the 550 Apartments for an improper purpose or that Mitchell exercised any bad faith in carrying out her duties as property manager. The evidence is much to the contrary. Mitchell's unrefuted testimony was that she, like other property managers, is vested with great discretion in carrying out her duties. She explained the nature of the housing for low income tenants and that this housing is often a tenant's last resort before becoming homeless. As such, she explained that she often worked with her tenants and allowed them multiple chances.
IV. CONCLUSION
Because LMHA is a government agency, specifically of the Louisville Metropolitan County Government, performing a governmental function, it is entitled to immunity. Further, because Mitchell was performing a discretionary task she is likewise entitled to immunity from suit in her individual capacity. For these reasons, we AFFIRM the order of the Jefferson Circuit Court granting Appellees Summary Judgment on the basis of immunity.
JOHNSON, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT
RODERICKA BRYANT: David J. Guarnieri
Robert M. Guarnieri
Louisville, Kentucky BRIEF FOR APPELLANT
RONALD HAYES:
Andrew Horne
Louisville, Kentucky BRIEF FOR APPELLEES: Patricia C. Le Meur
Richard Nash, III
Louisville, Kentucky