Mark Stonex v. Cailtlin Higinbotham ( 2022 )

RENDERED: JUNE 3, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0724-MR
MARK STONEX AND MICHELLE
SHANKLIN APPELLANTS
APPEAL FROM CUMBERLAND CIRCUIT COURT
v. HONORABLE GREGORY A. LAY, SPECIAL JUDGE
ACTION NO. 19-CI-00092
CAITLIN HIGINBOTHAM APPELLEE
AND NO. 2020-CA-0725-MR
JONATHAN HALL APPELLANT
APPEAL FROM CUMBERLAND CIRCUIT COURT
v. HONORABLE GREGORY A. LAY, SPECIAL JUDGE
ACTION NO. 19-CI-00092
CAITLIN HIGINBOTHAM APPELLEE
OPINION
DISMISSING APPEAL NO. 2020-CA-0724-MR AND
AFFIRMING APPEAL NO. 2020-CA-0725-MR
** ** ** ** **
BEFORE: CALDWELL, DIXON, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Appellee, Caitlin Higinbotham (Caitlin), filed a complaint in
Cumberland Circuit Court on November 14, 2019, against Probation and Parole
Officer Tyler Young, and others. Therein, Caitlin alleged, inter alia, that Officer
Young was liable for assault, battery, negligence, gross negligence, and intentional
infliction of emotional distress arising from acts committed by Officer Young
while Caitlin was reporting to her probation and parole office. According to
paragraph ten of her complaint, those acts include mistreatment, harassment,
molestation, and sexual abuse.
Also named as individual defendants were Jonathan Hall, Mark
Stonex, and Michelle Shanklin (collectively referred to as “Appellants”). To be
clear, the only allegations raised against Appellants in the complaint include
negligent supervision, training, and care, based on their supervisory roles.1 Each
Appellant is identified in the complaint as follows: Hall (former Director of
Probation and Parole); Stonex (Probation and Parole Western Branch Manager);
and Shanklin (Assistant Supervisor of Warren County Probation and Parole). On
1
Count I therein also alleges that Appellants’ conduct constituted gross negligence, etc.
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April 29, 2020, Special Judge Gregory Lay granted Appellants’ motion to dismiss
with respect to all claims asserted against them in their official capacities, and
denied their motion to dismiss with respect to those claims asserted against them in
their individual capacities. See CR2 12.02(f). Appellants appealed to this Court as
a matter of right. See Breathitt v. Prater, 292 S.W.3d 883 (Ky. 2009). Our
standard of review was summarized in Fox v. Grayson:
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.
317 S.W.3d 1, 7 (Ky. 2010) (footnotes omitted).
Before we address the merits of the present issue, we must address a
procedural matter. The notice of appeal provides that Stonex and Shanklin
2
Kentucky Rules of Civil Procedure.
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appealed from the April 29 order “in their individual capacities.” They did not pay
the filing fee, but the circuit court clerk docketed their notice of appeal on May 29,
2020. However, Appellant Hall did pay the filing fee for his appeal. On June 9,
2020, this Court ordered Stonex and Shanklin to show cause why their appeal
should not be dismissed based on their failure to pay the filing fee. Stonex and
Shanklin filed a response on June 29, 2020. They rely on KRS3 12.200 et seq.,
stating: “The clear intent is that persons sue [sic] for acts or omissions in the
course and scope of their employment with the Commonwealth not be burdened
with legal costs except under narrow circumstances.” Appellants do not cite any
case law in support of their interpretation of the statutes. KRS 12.211 provides:
Upon request of an employee or former employee, the
Attorney General may provide for the defense of any
civil action brought against such employee in his official
or individual capacity, or both, on account of an act or
omission made in the scope and course of his
employment as an employee of the Commonwealth and
any of its agencies, except that neither the state, state
employee, nor former state employee shall be subject to
an action arising from discretionary acts or decisions
pertaining to the design or construction of public
highways, bridges, or buildings.
Pursuant to KRS 12.213:
The Governor shall provide by regulation for the defense
of employees or former employees of the Commonwealth
pursuant to KRS 12.211 to 12.215 by one (1) or more of
the following methods:
3
Kentucky Revised Statutes.
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(1) By the Attorney General;
(2) By employing other counsel for this purpose as
provided for in KRS 12.210;
(3) By authorizing the purchase of insurance which
requires that the insurer provide or underwrite the cost of
the defense; or
(4) By authorizing defense by counsel assigned to or
employed by the department, agency, board, commission,
bureau, or authority which employed the person
requesting the defense.
Stonex and Shanklin are presently represented by the counsel for the Justice and
Public Safety Cabinet, which appears to fall within KRS 12.213(4). As to the costs
of the defense, KRS 12.215 provides:
The expenses incurred by the Attorney General in
defending state employees and former state employees
shall not be charged against the regular budget of the
Attorney General but shall be paid by the secretary of the
Finance and Administration Cabinet from unappropriated
general funds surplus in the State Treasury as a necessary
governmental expense on vouchers submitted by the
Attorney General and approved by the secretary. The
expenses to be so paid include but are not limited to the
cost of the time spent by salaried attorneys of the
Attorney General’s office, contract attorneys, court
reporters, and the cost of trial preparation and
investigation.
(Emphasis added.) The applicable administrative regulations likewise state:
Section 7. Cost of Administration. The Attorney
General shall be reimbursed for the cost to his or her
office for the administration of KRS 12.211 to 12.215
upon vouchers submitted by the Attorney General and
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approved by the Secretary of the Finance and
Administration Cabinet.
10 KAR4 1:011. The statutes and regulations do not expressly state whether the
filing fees are waived. The provisions stating the Attorney General can be
reimbursed for “expenses to be [] paid” supports the conclusion that Appellants
were required to pay the filing fee.
Considering generally whether the Commonwealth must pay filing
fees, KRS 453.010 provides:
No judgment for costs shall be rendered against the
Commonwealth in any action prosecuted by or against
the Commonwealth in its own right, unless specifically
provided by statute; provided, however, that in any civil
action filed in any court of competent jurisdiction by or
against the Commonwealth of Kentucky, the costs may
be paid by the Commonwealth when such costs are
approved and allowed by the judge of the court in which
the case was filed. Costs shall not exceed the fees
allowed for similar services in other civil actions.
In Commonwealth v. Pelfrey, No. 2001-CA-001048-MR, 2003 WL
1254293 (Ky. App. Feb. 7, 2003), the circuit court dismissed the Transportation
Cabinet’s petition for review of a Board of Claims decision in the Pelfreys’ favor.
This Court held dismissal of the petition was correct because “the Cabinet failed to
ensure that the Pelfreys were served with process as mandated by the unambiguous
terms of CR 3 and 4.” Id. at *4. The Court held the issue of whether the petition
4
Kentucky Administrative Regulations.
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should have been dismissed for failure to comply with CR 3.02 (payment of circuit
court filing fees) was moot. In dicta, the Court then stated:
While the statute [KRS 453.010] does expressly vest the
circuit court with authority to assess costs against the
Commonwealth at the conclusion of an action when
deemed appropriate, such authority is permissive rather
than mandatory. That being the case, the court is not
empowered to dismiss an action initiated by a state
agency (the Cabinet) for failure to pay the filing fee as
was the case here, since the agency had no way of
knowing in advance if the court would exercise its
authority and, therefore, could not be held accountable
for paying a fee that had not been assessed. Such a result
would not only be inconsistent with the plain language of
the statute, it offends common sense. Assessing a filing
fee against the Commonwealth is the equivalent of
ordering the Commonwealth to transfer money from one
pocket to another.
Id. at *5.
The present case involves an appeal taken by individuals, not by the
Commonwealth or a state agency. Appellants won on the issue of liability in their
“official capacities,” and their appeal pertains to whether the plaintiff may proceed
against them individually. The Kentucky Circuit Court Clerks’ Accounting
Manual5 provides that only the Commonwealth and state agencies are exempt from
payment of the filing fee. It would also be inequitable to permit Stonex and
Shanklin to avoid the fee, while Hall paid the fee, because the three individuals are
5
https://kycourts.gov/Courts/County-Information/Documents/CCCAcctManual.pdf (last visited
Jun. 1, 2022).
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similarly situated. We addressed a similar issue in Bruner v. Sullivan
University System, Inc., as follows:
In short, if a notice of appeal is tendered to a clerk
within the time permitted by the Civil Rules, but is
unaccompanied by the requisite filing fee, there
could be two very different results: (1) As in
Hurley,6 the clerk might violate his or her oath of
office by accepting the notice of appeal anyway, in
which case the ensuing appeal will not be subject
to automatic dismissal as untimely; or (2) as in
Excel,7 the clerk might refuse to file the notice of
appeal until the filing fee is received, in which case
– assuming the filing fee is paid on a date outside
the appellate window – the ensuing appeal will be
subject to automatic dismissal as untimely.
544 S.W.3d 669, 672 (Ky. App. 2018). Based on Bruner, the present case is not
subject to automatic dismissal. As previously stated, however, Stonex and
Shanklin were provided an opportunity to show cause as to why their appeal
should not be dismissed. They filed a one paragraph response with no citation to
any specific legal or factual basis that would negate dismissal. Therefore, Stonex
6
Norwest Bank Minn., N.A. v. Hurley, 103 S.W.3d 21 (Ky. 2003) (holding notice of appeal was
validly filed, even where appellant tendered an unsigned check with the notice, because the
circuit court clerk had docketed the notice the day it was filed).
7
Excel Energy, Inc. v. Commonwealth Institutional Securities, Inc., 37 S.W.3d 713 (Ky. 2000),
as modified on denial of reh’g (Mar. 22, 2001) (notice of appeal held untimely where appellant
placed it in the drop box on the last day for filing without tendering the filing fee; circuit court
clerk refused to note on the docket sheet that the notice had been filed until the payment was
made the next day).
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and Shanklin’s appeal is hereby DISMISSED. We now turn to the merits of
Appellant Hall’s case.
Within his general argument that the trial court erred, Hall argues that
Caitlin has failed to make any allegations relevant to whether Hall’s alleged acts or
omissions were carried out as either discretionary or ministerial functions – i.e.,
whether Hall is entitled to qualified immunity. The defense of qualified official
immunity applies generally as follows:
[T]o the negligent performance of “(1) discretionary acts
or functions, i.e., those involving the exercise of
discretion and judgment, or personal deliberation,
decision, and judgment; (2) in good faith; and (3) within
the scope of the employee’s authority.” [Yanero v.
Davis, 65 S.W.3d 510, 522 (Ky. 2001)] (internal citation
omitted). It does not apply to “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. (citing Franklin Cty. v.
Malone, 957 S.W.2d 195, 201 (Ky. 1997)).
Ritchie v. Turner, 559 S.W.3d 822, 831 (Ky. 2018). Moreover, “[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.
As Caitlin correctly cites in her brief, CR 8.01 requires that pleadings
must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief . . . .” “It is not necessary to state a claim with technical precision
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under this rule, as long as a complaint gives a defendant fair notice and identifies
the claim. This principle fully applies to negligent supervision claims . . . .”
Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 844 (Ky.
2005) (internal quotation marks and citation omitted). Immunity is not an element
of Caitlin’s proof. Rather, “[q]ualified official immunity is an affirmative defense
that must be specifically pled[,]” by the party invoking the defense. Yanero, 65
S.W.3d at 522 (emphasis added) (citation omitted). Having reviewed the
complaint and the arguments presented herein, we believe that dismissal at this
juncture would be inappropriate. For the foregoing reasons, we dismiss Appeal
No. 2020-CA-0724-MR. As to Appeal No. 2020-CA-0725-MR, we affirm the
circuit court’s order entered on April 29, 2020, and remand for additional
proceedings consistent with this Opinion.
ALL CONCUR.
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BRIEFS FOR APPELLANT BRIEFS FOR APPELLEE:
JONATHAN HALL:
Lee Whittenberg
Chris J. Gadansky Monticello, Kentucky
Louisville, Kentucky
Luke Morgan
Lexington, Kentucky
BRIEF FOR APPELLANTS MARK
STONEX AND MICHELLE
SHANKLIN:
Edward A. Baylous II
Frankfort, Kentucky
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