Opinion
NO. 2016-CA-000108-MR
03-16-2018
DMITRIY ZILBERMAN AND JULIA ZILBERMAN APPELLANTS v. H.W. LOCHNER, INC. APPELLEE
BRIEF FOR APPELLANTS: C. Dodd Harris, IV Lee Harris Donahue Louisville, Kentucky ORAL ARGUMENT FOR APPELLANTS: C. Dodd Harris, IV Louisville, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEES: Robert M. Brooks Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 12-CI-002590 OPINION
VACATING AND REMANDING
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BEFORE: ACREE, JOHNSON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Dmitriy Zilberman and Julia Zilberman bring this appeal from a December 22, 2015, order of the Jefferson Circuit Court granting a motion for summary judgment upon the basis of qualified official immunity filed by H.W. Lochner, Inc. (Lochner). We vacate and remand.
On May 9, 2012, the Zilbermans filed a complaint in the Jefferson Circuit Court against Lochner and the Commonwealth of Kentucky, Transportation Cabinet. The complaint alleged improper and negligent acts surrounding negotiations between the Cabinet, Lochner (who acted as agent for the Cabinet in the negotiations), and the Zilbermans for the purchase of an easement upon the Zilbermans' real property located in eastern Jefferson County. The easement was being acquired in conjunction with the construction of a bridge over the Ohio River located east of Louisville (referred to as "East End Bridge"). In September 2011, after appraising the Zilbermans' property and making an offer that was rejected by the Zilbermans, the Commonwealth withdrew its offer. Shortly thereafter, the Commonwealth downsized the project for the East End Bridge. In January 2012, the Zilbermans were notified that their property was no longer needed for the bridge construction project. This lawsuit followed in Jefferson Circuit Court. Lochner and the Transportation Cabinet each filed separate answers.
In January 2015, the Transportation Cabinet filed a motion to dismiss based upon the doctrine of sovereign immunity. By summary judgment entered June 3, 2015, the circuit court dismissed all claims against the Commonwealth. The circuit court specifically concluded that the Zilbermans' "claim that there is a 'taking' is not supported by the record and fails as a matter of law; . . . [the Zilbermans'] claim for bad faith and violations of statutes are barred by sovereign immunity" as to the Commonwealth. June 3, 2015, order at 11. The circuit court included complete Kentucky Rules of Civil Procedure (CR) 54.02 language, but no appeal was taken.
On June 26, 2015, Lochner filed a motion for summary judgment, and the circuit court granted the motion by order entered December 22, 2015. Therein, the circuit court determined that Lochner was entitled to qualified official immunity, holding that all acts of Lochner in the negotiation process on behalf of the Cabinet were discretionary and performed in good faith. The court further concluded that no "taking" had occurred in this case. This appeal follows.
Summary judgment is proper where there exists no material issue of fact and movant is entitled to judgment as a matter of law. CR 56; Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). All facts and inferences therefrom are to be viewed in a light most favorable to the nonmoving party. Steelvest, Inc., 807 S.W.2d 476.
The Zilbermans contend that the circuit court erred by granting summary judgment to Lochner upon the basis of qualified official immunity. In particular, the Zilbermans allege that qualified official immunity is an affirmative defense that must be specifically pleaded in the answer to the Complaint. The Zilbermans argue that Lochner failed to affirmatively plead qualified official immunity in its answer; consequently, the defense was waived.
In Kentucky, the law is well-settled that qualified official immunity constitutes an affirmative defense under CR 8.03 that must be specifically pleaded. Yanero v. Davis, 65 S.W.3d 510 (Ky. 2011); Jerauld ex rel. Robinson v. Kroger, 353 S.W.3d 636 (Ky. App. 2011). An affirmative defense must ordinarily be set forth in a pleading (as opposed to a motion) and must be stated so as to give fair notice of the defense asserted. Vogler v. Salem Primitive Baptist, 415 S.W.2d 72 (Ky. 1967). And, the failure to do so constitutes waiver of the affirmative defense. Id.
For a thorough discussion of the necessary pleading requirements to assert an affirmative defense, see Ison v. Thomas, No. 2006-CA- 000289-MR, 2007 WL 1194374 (Ky. App. 2007); see Kentucky Rules of Civil Procedure (CR) 76.28(4).
In its December 22, 2015, order, the circuit court concluded that qualified official immunity was not an affirmative defense:
[The Zilbermans] argue that, since Lochner did not specifically plead the affirmative defense of "qualified official immunity," said affirmative defense is waived. CR 8.03 provides, pertinently:
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. . . .
As is evident from the above discussion of sovereign immunity, governmental immunity and qualified official immunity, it was not necessary for Lochner to affirmatively plead such "immunity" as an "affirmative defense." Likewise, "qualified official immunity immunity" [sic] is not one of the enumerated "affirmative defenses" CR 8.03 requires to be pleaded. Thus, [the Zilbermans'] argument is without merit.December 22, 2015, order at 14.
Based upon our review of the record and applicable law, we believe the circuit court committed an error of law by concluding that qualified official immunity was not an affirmative defense that must be affirmatively pleaded pursuant to CR 8.03. To the contrary, qualified official immunity is an affirmative defense that must be plead. Robinson, 353 S.W.3d at 639. However, Lochner maintains that official qualified immunity was affirmatively set forth in its answer, which reads as follows:
25. Lochner affirmatively states and alleges that the claims of [the Zilbermans'] herein are barred by applicable statutes, limitations and immunity.Lochner Answer at 4.
From the above, Lochner clearly did not specifically allege the defense of qualified official immunity in its answer. Rather, Lochner generally alleged certain defenses and stated entitlement to "immunity" presumably as an affirmative defense under CR 8.03. In such instances we believe the circuit court must examine the general language contained in the answer and determine whether Lochner gave sufficiently fair notice to preserve the affirmative defense. Cf. Sheffer v. Chromalloy Mining, 578 S.W.2d 594 (Ky. App. 1979). In this case, the circuit court failed to address this issue below. As the circuit court failed to address and determine whether Lochner gave fair notice of the affirmative defense of qualified official immunity, we vacate and remand for the circuit court to make such determination. If the circuit court determines the defense was not sufficiently pleaded, the defense shall be waived and the case shall proceed accordingly.
We note there was no cross-appeal filed in this case regarding the court's ruling that qualified official immunity was not an affirmative defense. Accordingly, until the circuit court properly addresses the issue of the sufficiency of the qualified official immunity defense as an affirmative defense, the matter is not ripe for our review. --------
We deem any other contentions of error as moot at this time.
For the foregoing reasons, the order of the Jefferson Circuit Court is vacated and remanded for additional proceedings consistent with this opinion.
ACREE, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION:
JOHNSON, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: I agree with the majority that the circuit court erred by concluding that qualified official immunity is not an affirmative defense that must be affirmatively pleaded pursuant to CR 8.03.
However, where I disagree with the majority is remanding of this matter back to the circuit court for a determination of whether Lochner gave fair notice of the affirmative defense of qualified official immunity.
I believe that there is sufficient evidence in the record that not only was Zilberman put on notice that Lochner was pleading immunity, but Zilberman was given an opportunity to rebut the defense. There was no surprise or unfair prejudice to Zilberman simply because Lochner plead simple "immunity" in its answer and did not use the magic words of "qualified official immunity" in its answer.
The purpose of an affirmative defense is to give the opposing party notice of the defense and a chance to rebut it. Ison v. Thomas, 2007 WL 1194374, 2006-CA-000289-MR (Ky. App. 2007). Even in situations where a plaintiff gets notice of the affirmative defense by means other than pleadings, a defendant's failure to strictly comply with CR 8.03 is not fatal. See Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997).
In this case, Zilberman knew that the Transportation Cabinet was pleading immunity, and he was aware that Lochner was also pleading immunity. Zilberman responded in his pleadings to the issue of immunity, had ample opportunity to rebut the defense and in fact did so. Since Zilberman was on notice of the defense, responded to it, and was not prejudiced by Lochner's simple pleading of "immunity," the record is clear that no further determination is necessary.
Because I believe that Lochner has satisfied the requirements of affirmatively pleading qualified official immunity I see no reason to remand this to the circuit court. BRIEF FOR APPELLANTS: C. Dodd Harris, IV
Lee Harris Donahue
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLANTS: C. Dodd Harris, IV
Louisville, Kentucky BRIEF AND ORAL ARGUMENT
FOR APPELLEES: Robert M. Brooks
Louisville, Kentucky