Word of God Fellowship, Inc., D/B/A Daystar Television Network v. Bob Rodgers Ministries, Inc. ( 2022 )

RENDERED: SEPTEMBER 23, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1388-MR
WORD OF GOD FELLOWSHIP, INC.,
D/B/A DAYSTAR TELEVISION
NETWORK APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 21-CI-005631
BOB RODGERS MINISTRIES, INC.
AND EVANGEL WORLD PRAYER
CENTER OF KENTUCKY, INC. APPELLEES
OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, CETRULO, AND GOODWINE, JUDGES.
GOODWINE, JUDGE: Word of God Fellowship, Inc., d/b/a Daystar Television
Network (“Daystar”) appeals from an order of the Jefferson Circuit Court
dismissing its claims against Evangel World Prayer Center of Kentucky, Inc.
(“Evangel”). The circuit court dismissed Daystar’s claims against Evangel without
allowing Daystar an opportunity to respond or be heard. Based on our review, we
reverse and remand for further proceedings.
On October 4, 2021, Daystar filed a complaint against Evangel and
Bob Rodgers Ministries, Inc. On October 25, 2021, Evangel filed a motion to
dismiss. On October 29, 2021, the circuit court entered an order granting the
motion and dismissed Daystar’s claims against Evangel with prejudice. Daystar
appealed. As this matter is purely procedural, we need not delve further into the
facts of this case.
On appeal, Daystar argues it: (1) was entitled to respond and an
opportunity to be heard on the motion to dismiss; and (2) stated valid claims
against Evangel. We review motions to dismiss de novo. Skeens v. University of
Louisville, 565 S.W.3d 159, 160 (Ky. App. 2018) (quoting Fox v. Grayson, 317
S.W.3d 1, 7 (Ky. 2010)).
First, Daystar argues it was entitled to respond to the motion and be
heard. Evangel agrees dismissal was premature. Motions to dismiss under CR1
12.02 “must be served on non-moving parties, who are given time to respond, and
a hearing is required.” Storer Communications of Jefferson Cnty., Inc. v. Oldham
Cnty. Bd. of Educ., 850 S.W.2d 340, 342 (Ky. App. 1993). Additionally, Daystar
1
Kentucky Rules of Civil Procedure.
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asserts the circuit court failed to adhere to the local rule on motions to dismiss.
Jefferson Circuit Court (JRP) Rule 401 provides:
Motions to dismiss, for judgment on the pleadings, and
for summary judgment shall not be noticed for motion
hour but shall be filed with a memorandum of authority
not exceeding twenty-five (25) pages in length, in type
no smaller than 12-point. An opposing party shall have
twenty (20) days from the certification date on the motion
to respond. A reply may be filed no later than ten (10)
days after the filing of a response and shall not exceed
five (5) pages in length, in type no smaller than 12-point.
Prior to notice of submission, counsel may request oral
argument. Counsel shall file Form AOC-280, Notice of
Submission of Case for Final Adjudication, when the
case is ready for submission.
(Emphasis added.)
In an unpublished case, Gaines v. Nichols, No. 2011-CA-000413-
MR, 2011 WL 6260365 (Ky. App. Dec. 16, 2011), this Court held “JRP 401
carries the force of a Kentucky Rule of Civil Procedure, and that [plaintiffs] were
not availed of the full 20 day period to respond to the motions to dismiss.”2 This
Court reversed the order dismissing the action and remanded the matter for further
proceedings.
Here, Evangel filed its motion to dismiss, and the circuit court granted
it four days later. Based on our review, the circuit court did not follow established
2
CR 76.28(4) (“[U]npublished Kentucky appellate decisions, rendered after January 1, 2003,
may be cited for consideration by the court if there is no published opinion that would adequately
address the issue before the court.”).
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precedent requiring an opportunity to respond to and be heard on CR 12.02
motions or JRP 401. Thus, we must reverse the order of the circuit court
dismissing Daystar’s claims against Evangel and remand.
Second, Daystar argues it stated valid claims against Evangel. We
cannot address this argument because the circuit court did not permit Daystar to
respond to the motion to dismiss. Daystar will have the opportunity to prove the
validity of its claims on remand.
For the foregoing reasons, we reverse the order of the Jefferson
Circuit Court dismissing Evangel and remand with instructions to allow Daystar to
respond to the motion, hold a hearing, and follow JRP 401 in addressing the
motion to dismiss.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Brad S. Keeton Stephen B. Pence
Connor B. Eagan Louisville, Kentucky
Louisville, Kentucky
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