Daisy Olivo v. Legislative Research Commission ( 2022 )

RENDERED: JULY 1, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0167-MR
DAISY OLIVO APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 17-CI-01256
LEGISLATIVE RESEARCH
COMMISSION APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
CALDWELL, JUDGE: Daisy Olivo (“Olivo”) appeals from the Franklin Circuit
Court’s grant of summary judgment to the Legislative Research Commission
(“LRC”) on her whistleblowing claim. She also appeals from the trial court’s
allowance of certain legislators to intervene in the lawsuit. As the intervention
issue is moot, and Olivo failed to make a prima facia case that disclosures of
improper activity were contributing factors in a personnel action, we affirm.
FACTS AND PROCEDURAL HISTORY
In January 2016, Olivo was hired as a partisan communications staffer
by Representative Jeff Hoover (“Hoover”), then the Minority Floor Leader of the
Kentucky House of Representatives. In January 2017, as the Republican Party
became the majority party, Hoover became Speaker of the House and Olivo was
promoted to Communications Director for the Republican majority. Olivo admits
that she was an at-will employee who served at the pleasure of the Speaker of the
House, but she was on the payroll of the Legislative Research Commission.
As Communications Director, Olivo served as the primary media
contact for the Speaker’s office and also served Republican leadership and House
members as directed. She also supervised staff members, including one known for
purposes of this case as Jane Doe (“Doe”).
Beginning in 2016, Olivo perceived the development of a flirtatious
and unprofessional relationship between Hoover and Doe. She spoke with Doe
about the situation. She reported her observations in 2016 to then Chief of Staff
for Minority Leader Hoover, Brad Metcalf. In 2017, she made further reports to
the Chief of Staff for then Speaker of the House Hoover, who was also her own
supervisor, Ginger Wills (“Wills”).1 Though Olivo perceived the relationship
1
Wills later married and changed her name to Ginger Kelly, but we will refer to her as Wills
since that was her last name at the time of events leading to the Whistleblower lawsuit.
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between Hoover and Doe to be inappropriate, she believed it was consensual based
on her conversations with Doe at the time.
Doe took approved military leave for a few months during the spring
and summer of 2017. In August 2017, Doe spoke with Olivo and told her that
Doe’s relationship with Hoover was not consensual. According to Olivo, Doe also
alleged that Wills was hostile to Doe due to Doe’s relationship with Hoover.
After returning from military leave in early October 2017, Doe
expressed concerns to Olivo about alleged harassment. And on October 16, Doe
told Olivo that she (Doe) had made a settlement demand on Hoover and other
legislators. Doe showed Olivo her demand letter and text messages exchanged
with Hoover.
On October 25, 2017, Doe and her counsel attended a mediation with
Wills, Hoover, and other legislators where a settlement was reached. Olivo did not
participate in the mediation. Olivo states that she first became aware that a
settlement was reached when a reporter contacted the Speaker’s office to ask for
details about the settlement.
Apparently, the fact that a settlement had taken place quickly became
a matter of public knowledge:
While the mediation was ongoing, a reporter filed an
Open Records Request seeking information about
whether public resources had been involved in a
harassment complaint against Speaker Hoover . . . .
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Shortly after the mediation, news of a settlement became
public, though specific details were still unknown.
(Judgment, page 3.) The Chief Clerk of the House of Representatives contacted
LRC to inquire about the settlement on October 26. On October 27, screenshots of
text messages allegedly sent by Hoover were released via a Twitter account falsely
represented to be Hoover’s account. By November 1, “major media outlets were
reporting that Speaker Hoover had entered into a confidential agreement related to
sexual harassment allegations with an LRC staffer.” (Judgment, pages 3-4.)
Meanwhile, Olivo and Doe had spoken on or about October 26. Olivo
asserted that Doe relayed messages to her, warning Olivo to stop talking about the
harassment or related matters and further warning that Hoover and Wills sought to
fire Olivo. Also on October 26, in an email to Wills, Olivo expressed concern
about Doe being harassed and feeling fearful of returning to work. Wills
responded to the email saying that any employees should bring any concerns about
harassment to her (Wills). Olivo perceived this as less than helpful since she
believed Wills was involved in harassing those reporting alleged misconduct.
Around October 27, Olivo called the Executive Director of LRC to
report that Hoover and Wills were covering up a confidential settlement for sexual
harassment. Also, around this date, Olivo sent email correspondence to LRC
officials (including general counsel and human resources director) to report sexual
harassment and potential liability of LRC and Doe’s fears of returning to work.
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On November 1, 2017, Olivo met with the LRC human resources
director and LRC general counsel for several hours. She disclosed information
from Doe about the inappropriate relationship with Hoover and the confidential
settlement and attempt to keep the settlement secret. She also reported that Wills
was creating a hostile work environment for Doe.
On November 2, Olivo received an email from Wills advising Olivo,
“Per conversation with Speaker, please direct all media inquiries for Speaker
Hoover to Tommy Druen until further notice.” (Record (“R.”), p. 615.) According
to Wills’ deposition testimony, this was because Wills received a report on October
30 that Olivo had contacted the media seeking publication of stories about Hoover
and the sexual harassment allegations. Olivo disputes this, contending this was
retaliation for her disclosure to LRC officials – pointing to the timing of Wills’
email coming just a day after her meeting with the LRC human resources director
and general counsel.
On November 5, Hoover resigned as Speaker and Representative
David Osborne became Acting Speaker. On November 7, 2017, a staffer for
Osborne sent out an email stating, “Per conversation with Speaker Pro Tem
Osborne, all media inquiries received will now be directed to Daisy Olivo until
further notice.” (R., p. 384.) Olivo, however, in her deposition alleged that
although she continued to be paid, kept her benefits, and kept her title, she was
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effectively not allowed to do anything and was ostracized from early November
2017 until her eventual termination a year later.
In December 2017, Olivo filed a lawsuit asserting claims under the
Kentucky Whistleblower Act (“KWA”) codified at Kentucky Revised Statute
(“KRS”) 61.101 et seq. Her complaint further set forth allegations that she met
again with LRC’s human resources director and general counsel in mid-November
and reported that Wills continued to create a hostile work environment. She
asserted that various legislators attempted to intimidate her, including one
legislator surreptitiously photographing her and a co-worker. Her complaint also
detailed her attempt to meet with the House budget director to discuss pending
legislation and her perception that communications staff were being given no
information and thus could not provide communications assistance to majority
caucus members. And she asserted that the House budget director, Frank Willey,
made disparaging comments about her.
Olivo alleged retaliation by Hoover and Wills by removing her job
duties for reporting official misconduct. She requested relief including a jury trial,
compensatory and punitive damages, and attorney’s fees.
Sometime after the inception of the lawsuit and depositions taken,
Hoover and other legislators filed a motion to intervene in this action to protect
their reputations and cross-examine witnesses. The trial court allowed the
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intervention. The intervening legislators sought to depose Doe, but they agreed to
continue the deposition until after the November 2018 election. Ultimately, the
intervenors never took the deposition.
David Osborne was formally elected the Speaker of the House in early
November 2018. On or about November 30, 2018, Speaker Osborne replaced
Olivo and she was terminated as Communications Director. Olivo successfully
sought leave to amend her complaint to include allegations of additional retaliation
including her termination. An agreed order was entered for the intervening
legislators to be dismissed from the action in October 2019 – after LRC had filed a
motion for summary judgment.
The trial court expressed concerns about separation of powers and
ordered supplemental briefing on the issue. Ultimately, the trial court granted
LRC’s motion for summary judgment.
The trial court found, for purposes of the KWA, the following: that
the LRC is a division of the state; that Olivo, as an employee of the LRC, was an
employee of the state; and that Olivo had made a good faith disclosure of a
suspected violation of state or local law to an appropriate body. But it further
found that there was no evidence that the LRC had any knowledge or involvement
in the re-assignment of Olivo’s duties or the other retaliatory actions complained of
by Olivo. Therefore, Olivo could not make a prima facia case for one of the
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necessary elements required to show a violation of KRS 61.102. The trial court
further determined that it would overstep its bounds under constitutional separation
of powers provisions if it reviewed a Speaker’s personnel decisions regarding high-
level partisan staff who traditionally serve at the Speaker’s pleasure.
Olivo filed a timely appeal from the summary judgment. She also
challenges the trial court’s allowing Hoover and other legislators to intervene in
her lawsuit. Further facts will be set forth as needed.
STANDARD OF REVIEW
Summary judgment is proper where no material issues of fact exist,
and the moving party is entitled to judgment as a matter of law. Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). On appeal, we
review the trial court’s grant of summary judgment under the non-deferential de
novo standard, as the Kentucky Supreme Court has explained: “Appellate review
of a summary judgment involves only legal questions and a determination of
whether a disputed material issue of fact exists. So we operate under a de
novo standard of review with no need to defer to the trial court’s decision.”
Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013)
(footnotes omitted).
At the outset, we would note that Olivo disputes some of the fact as
set forth in the trial court’s order regarding whether a temporary re-assignment of
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some duties could not be characterized as retaliatory absent some penalization such
as loss of pay or benefits or that actions taken directly by the Speaker of the House
are not direct actions of the LRC. We also note, and are mindful that, when
opposing summary judgment, the party must present “some affirmative evidence”
that material facts are in dispute. Steelvest, 807 S.W.2d at 482. However, we are
not persuaded that the trial court misunderstood or misconstrued the evidence and
agree with the trial court that no genuine issue of fact exists.
Kentucky Whistleblower Act and Other Relevant Statutes and Regulations
KRS 61.102(1) appears to broadly prohibit employers from engaging
in actions which “in any manner whatsoever” discriminate against or discourage
employees who whistle-blow, i.e., report or disclose actual or suspected illegal or
unethical conduct or abuse of authority.2 But KRS 61.103(3) requires that an
2
KRS 61.102(1) states: “No employer shall subject to reprisal, or directly or indirectly use, or
threaten to use, any official authority or influence, in any manner whatsoever, which tends to
discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate
against any employee who in good faith reports, discloses, divulges, or otherwise brings to the
attention of the Kentucky Legislative Ethics Commission, the Attorney General, the Auditor of
Public Accounts, the Executive Branch Ethics Commission, the General Assembly of the
Commonwealth of Kentucky or any of its members or employees, the Legislative Research
Commission or any of its committees, members or employees, the judiciary or any member or
employee of the judiciary, any law enforcement agency or its employees, or any other
appropriate body or authority, any facts or information relative to an actual or suspected
violation of any law, statute, executive order, administrative regulation, mandate, rule, or
ordinance of the United States, the Commonwealth of Kentucky, or any of its political
subdivisions, or any facts or information relative to actual or suspected mismanagement, waste,
fraud, abuse of authority, or a substantial and specific danger to public health or safety. No
employer shall require any employee to give notice prior to making such a report, disclosure, or
divulgence.”
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employee must prove that the disclosure was a contributing factor in a “personnel
action”3 to prevail on a civil action filed under KRS 61.103(2) for violation of KRS
61.102(1).
KRS 61.990, which includes provisions for penalties for violation of
KRS 61.102,4 similarly indicates that the focus of civil proceedings filed under
KRS 61.103 for violations of the KWA is to address retaliatory personnel actions
based on the specific relief available – such as reinstatement and back pay. See
KRS 61.990(4) (“A court, in rendering a judgment in an action filed under KRS
61.102 and 61.103, shall order, as it considers appropriate, reinstatement of the
employee, the payment of back wages, full reinstatement of fringe benefits and
seniority rights, exemplary or punitive damages, or any combination thereof. A
court may also award the complainant all or a portion of the costs of litigation,
including reasonable attorney fees and witness fees.”).
3
KRS 61.103(3) states: “Employees filing court actions under the provisions of subsection (2)
of this section shall show by a preponderance of evidence that the disclosure was a contributing
factor in the personnel action. Once a prima facie case of reprisal has been established and
disclosure determined to be a contributing factor to the personnel action, the burden of proof
shall be on the agency to prove by clear and convincing evidence that the disclosure was not a
material fact in the personnel action.” KRS 61.103(2) provides in pertinent part for a right to file
a civil action to obtain injunctive relief and/or punitive damages for violation of KRS 61.102(1).
4
KRS 61.990(3) provides: “Any person who willfully violates the provisions of KRS
61.102(1) shall be guilty of a Class A misdemeanor.” But to our knowledge, no criminal charges
have been filed against anyone regarding Olivo’s allegations.
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Thus, under KRS 61.102 and KRS 61.103, in addition to proving
other elements of a whistleblower claim,5 a claimant must prove that his/her
disclosure of improper activity was a contributing factor in a personnel action.
Davidson, 152 S.W.3d at 251. This is an all or nothing test. Each factor must be
fulfilled and the employee must also “prove by a preponderance of evidence that
‘the disclosure was a contributing factor in the personnel action’” Thornton v.
Office of Fayette County Attorney, 292 S.W.3d 324, 329 (Ky. App. 2009) (citations
omitted).
Based on our review of the record and applicable law, Olivo has not
established a genuine issue of material fact regarding her employer taking or
threatening action to discourage disclosure or to discriminate against or punish her
for a disclosure. Further, even if that were not the case, Olivo has not established a
genuine issue of material fact as to whether any disclosure was a contributing
factor in a personnel action even construing all evidence and reasonable inferences
5
Davidson v. Commonwealth, Dep’t of Military Affairs, 152 S.W.3d 247, 251 (Ky. App. 2004),
states that a violation of KRS 61.102 requires four elements: 1) employer being a state officer,
2) employee being a state employee, 3) employee making or attempting to make a disclosure of
actual or suspected illegal activity to a proper authority, and 4) employer taking or threatening
action to discourage disclosure or to discriminate against or punish employee for the disclosure.
Id. at 251. Additionally, even though the trial court properly assessed for summary judgment
purposes the issues regarding these four elements, we also affirm on the alternate ground
concerning the personnel action requirement of KRS 61.103(3). Furthermore, we express no
opinion on the trial court’s discussion of constitutional separation of powers provisions. Rather,
consistent with precedent, we decline to reach constitutional issues not necessary for resolution
since this case may be properly resolved on non-constitutional grounds. See, e.g., Baker v.
Fletcher, 204 S.W.3d 589, 597-98 (Ky. 2006); Preston v. Clements, 313 Ky. 479, 483, 232
S.W.2d 85, 88 (1950).
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therefrom in her favor. See Steelvest, 807 S.W.2d at 480-83. Thus, we affirm the
trial court’s grant of summary judgment.
ANALYSIS
The trial court found that Olivo presented evidence sufficient to go
forward as to the first three elements necessary to bring an action under the KWA,
as set out in Davidson. However, she failed to present proof necessary to support a
prima facia case for the required fourth element.
Though acknowledged by Olivo that she was a partisan, at-will
employee who served at the pleasure of the Speaker of the House, there has been
no real dispute that she was an employee of the LRC, and therefore the state, for
purposes of the KWA. But whether or not the information allegedly disclosed by
Olivo was not already public information, and therefore not subject to the KWA, is
sharply contested by the LRC. The LRC contends that Olivo made no protected
disclosure because any reports she made were communicated after the information
at issue was already made public.
In its order, the trial court discussed the qualifications necessary for a
report to be a protected disclosure under the KWA, specifically citing the Supreme
Court of Kentucky, where it held, “First, the ‘disclosure’ of information which is
public information or otherwise already widely known within the organization
cannot qualify as a whistleblower disclosure. The statute protects the
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whistleblower who exposes information not generally known.” Harper v.
University of Louisville, 559 S.W. 3d 796, 802 (Ky. 2018). It is true, there were
facts showing at least some public knowledge about the settlement prior to Olivo’s
disclosure. However, when all facts were considered, and all inferences therefrom
taken in the light most favorable to Olivo, and presuming the truth of her
allegations for purposes of the summary judgement motion, we cannot hold the
trial court erred regarding the nature of Olivo’s disclosure.
We also cannot hold that the trial court erred in finding that the facts
were not sufficient to show a preponderance of the evidence that the protected
disclosure was a contributing factor in a personnel action. Olivo has alleged that
she was the object of retaliation in three ways: 1) the initial alleged removal of
duties as a result of the November 2, 2017 email advising that all media inquiries
regarding then-Speaker Hoover be directed to another employee rather than Olivo,
2) ostracism from legislators (and other employees) and lack of media inquiries to
handle or other meaningful work to do for the approximately one-year period
ending in late November 2018, and 3) her termination in late November 2018.
However, with the exception of her eventual termination, none of these alleged
forms of retaliation were personnel actions. Further, there is no evidence that the
alleged retaliatory actions were taken by the LRC.
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KRS 61.101 and KRS 61.103 provide definitions for other terms used
in the KWA including employee, employer, disclosure, and contributing factor.
But neither explicitly defines the term personnel action which is something a
claimant must prove to prevail on a KWA claim under KRS 61.103(3). And we
are unaware of any other more general statutory definition of personnel action
such as those provided for other terms in KRS 446.010.
Nonetheless, it is abundantly clear from numerous other statutes and
regulations that personnel actions under Kentucky law generally refer to actions
affecting one’s pay, benefits, or general employment status including job title and
location. See, e.g., KRS 154A.080(1) (providing that Kentucky Lottery
Corporation employees “shall be subject to suspension, dismissal, reduction in pay,
demotion, transfer, or other personnel action at the discretion of the president” and
that “[s]uch personnel actions shall be exempt from the provisions of KRS Chapter
18A.”); 101 Kentucky Administrative Regulations (“KAR”) 1:335 (establishing
Personnel Board rules about Employee Actions including demotion, transfer, and
reinstatement but providing in Section 5(3)(d) that after a written reprimand is
removed from a personnel file, the removed reprimand may not be considered in a
“personnel action”); 780 KAR 6:070 (requiring use of Personnel Cabinet forms for
“personnel actions” which includes information regarding leave balances, title,
salary, transfers, and other status changes).
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Although we are unaware of any controlling case law defining a
personnel action for KWA purposes, we implicitly expressed doubt that a threat to
file a Kentucky Rules of Civil Procedure (“CR”) 11 challenge to a lawsuit came
within the general understanding of a personnel action for purposes of the KWA.
See Davidson, 152 S.W.3d at 253 (although not explicitly rejecting plaintiff’s
argument that a threat “to file CR 11 sanctions” was a personnel action, stating that
“[e]ven if this were true,” plaintiff failed to specifically plead threatened CR 11
sanctions as a retaliatory personnel action in his complaint.).
Here, Olivo has alleged retaliation from November 2017 through
November 2018 in the form of ostracism from legislators and other staffers and
through being given no media inquiries to handle or other meaningful work to do.6
Although we certainly do not condone or encourage ostracism in the workplace nor
the practice of keeping workers on the public payroll without assigning them any
duties to benefit the Commonwealth, Olivo’s allegedly being ostracized and
assigned only minor duties for about a year simply does not amount to any
personnel action. Nor does Speaker Hoover’s request that another employee
6
We are certainly aware that LRC claims that Hoover’s request to have someone else handle his
media inquiries was a reasonable reaction to his hearing allegations that Olivo was “shopping
stories” about him and that Olivo argues this request coming just one day after her meeting with
the LRC human resources director and general counsel indicates that her making disclosures to
these LRC officials prompted Hoover’s request. Nonetheless, regardless of the motivation
behind Hoover’s request, it was not a personnel action affecting pay, benefits, job title, location,
or general employment status.
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handle his media inquiries for the last few days he remained Speaker in November
2017.7 None of these actions, whatever their motivations or merits, would have
tangibly affected Olivo’s pay, benefits, title,8 or general employment status so they
could not qualify as the sort of personnel action which Olivo must prove under
KRS 61.103(3).
On the other hand, Olivo’s eventual termination after Speaker
Osborne formally took office in November 2018 is clearly a personnel action
affecting her pay, benefits, title, and general employment status. But Olivo fails to
point to any affirmative evidence that her late 2017 disclosures were contributing
factors to her being terminated upon Osborne taking office and selecting his own
staff. See KRS 61.103(3). She admitted in her deposition that she served at the
7
We are aware of evidence in the record that Olivo received an email – apparently from
someone else in a position akin to that formally filled by Wills while Hoover served as Speaker
of the House – which purportedly restored Olivo to her usual duties on November 7, 2017. But
regardless of whether this email officially restored Olivo to her usual duties, we conclude that
neither Hoover’s request for someone else to handle his media inquiries during his last days as
Speaker nor any lack of requests for Olivo’s assistance from other legislators thereafter
constituted a personnel action.
8
We are aware that Olivo claims in her brief that the November 7 email “reinstated her, in title
only, to Communications Director.” (Appellant’s brief, p. 6.) But having examined the email in
the record, there was no discussion of job title therein, but a simple statement that pursuant to
Osborne’s direction, all media inquiries be directed to Olivo until further notice. And the parties
have not directed our attention to anything in the written record which indicates that Olivo’s job
title was ever formally changed between November 2017 and her November 2018 termination.
(The November 2, 2017 email from Wills did not explicitly discuss Olivo’s job title either, but
simply advised that Hoover’s media inquiries would be handled by someone else until further
notice.)
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pleasure of the Speaker and that often those taking office would replace partisan
staffers under the former regime with their own staff. See also 101 KAR 3:050
Section 1(3) (providing that unclassified employees “shall serve at the will of the
appointing authority and shall be subject to termination without prior notice or
cause.”).
Though the specific source of such authority (other than 101 KAR
3:050 Section 1(3)) may be hard to pinpoint,9 a constitutional officer such as the
Speaker of the House is generally understood to have the power to select his/her
own unclassified staff and to be under no obligation to retain the unclassified staff
of his/her predecessor. See Martin v. Corrections Cabinet, 822 S.W.2d 858, 862
(Ky. 1991) (Reynolds, J., dissenting) (citation omitted) (“Political realities should,
at a minimum, afford an administration, new or old, an opportunity to appoint
persons in tune with current political philosophies. Political considerations have
always weighed heavily in personnel appointments.”). Given the new Speaker’s
apparent authority to select his own staff and the lack of affirmative evidence that
9
Though the trial court indicated in its summary judgment order that Speaker Osborne had a
constitutional right to select his own staff upon formally taking office, the trial court did not
identify any specific provision in the Kentucky or United States Constitution to this effect. Nor
are we aware of any specific statute or constitutional provision to this effect.
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Olivo’s 2017 disclosures were a contributing factor to Olivo being terminated upon
the new Speaker’s election,10 summary judgment was appropriate.
In short, Olivo has failed to establish a genuine issue of material fact
regarding whether her late 2017 disclosures were contributing factors to her late
2018 termination, and it appears impossible for her to prevail on a KWA claim on
her termination even construing the record in the light most favorable to her, so
LRC is entitled to judgment as a matter of law regarding her termination. CR
56.03; Steelvest, 807 S.W.2d at 480-83. The trial court reached the correct result in
granting summary judgment for LRC against Olivo.
Intervention Issue is Moot so we Decline to Address Its Merits
Olivo indicated her disagreement with the trial court’s allowing
legislators, including Hoover, to intervene in her lawsuit in her list of issues on
appeal in her prehearing statement. But because Olivo did not name the
intervenors as appellees in her notice of appeal, this Court issued an order for her
to show cause why this Court should not dismiss that part of her appeal dealing
with intervention for failure to name necessary parties.
Olivo filed a response to the show cause order, explaining that she
omitted the legislators from the notice of appeal based on her view that they had no
10
The LRC points out in its brief that Olivo did not even allege, much less come forward with
affirmative evidence that Osborne had actual or constructive knowledge of her 2017 disclosures
before her termination. Olivo did not respond to this specific assertion in her reply brief.
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standing as parties to the appeal. She also asserted that their interests were being
protected by LRC and noted that they had been voluntarily dismissed from the case
with prejudice by agreed order. A majority of this panel voted to allow Olivo to
address the intervention issue in her brief. But we also ordered the parties to
address whether Olivo waived any error by entering into the agreed order
dismissing the intervening legislators and whether the agreed order of dismissal
made the issue moot. (Order dated May 20, 2020.)
We will accept arguendo that Olivo did not waive any error or fail to
preserve the intervention issue since she objected to intervention despite ultimately
agreeing to the intervenors’ dismissal from the case. But we need not reach the
merits of the intervention ruling because the issue is simply moot contrary to
Olivo’s arguments.
Olivo argues “for a case to be moot, the circumstances of the case
must change.” And she quotes Newkirk v. Commonwealth, 505 S.W.3d 770, 774-
75 (Ky. 2016) (citing Commonwealth v. Terrell, 464 S.W.3d 495, 498-99 (Ky.
2015)): “A case becomes moot as a result of a change in circumstances which
vitiates the underlying vitality of the action.” She argues that the circumstances of
the case did not change and so the issue is not moot.
But Olivo fails to recognize that the circumstances of the case did
change when the intervenors went from being parties able to participate in the case
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to not being parties and not being able to participate in the case upon their agreed
dismissal. As LRC points out in its appellee brief, all parties entered into the
agreed order of dismissal and the trial court granted summary judgment to LRC
only after the intervenors were dismissed by agreement. And LRC argues that the
intervention issue is rendered moot because the intervenors are simply no longer in
the case. We note that Olivo’s reply brief does not respond to the LRC’s argument
on this issue.
We agree with the LRC that because the intervenors are no longer
parties to the case, the issue simply does not amount to a present controversy for
this Court to resolve. See Cabinet for Health and Family Services v. Courier-
Journal, Inc., 493 S.W.3d 375, 382 (Ky. App. 2016) (internal quotation marks and
citations omitted) (“[A]n appellate court is generally without jurisdiction to reach
the merits where no present, ongoing controversy or case in controversy exists as
the court is unable to grant meaningful relief to either party.”).
Furthermore, even assuming arguendo that the trial court erred in
allowing intervention, Olivo does not clearly identify how she suffered any
prejudice as a result – especially since the intervenors ultimately did not depose the
staffer. Instead, she generally asserts that permitting a party other than those
necessary for the litigation to intervene in a case and interfering with depositions
creates an improper burden. As she cannot specifically identify how her
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substantial rights were violated by the trial court’s handling of this issue before the
agreed order of dismissal was entered, we must conclude that any error would have
been harmless. See CR 61.01 (no relief should be given from rulings which do not
affect the parties’ substantial rights and which are not inconsistent with substantial
justice).
Despite Olivo’s argument that reversal and remand is necessary to
insure there is not future improper intervention, we are not authorized to provide
advisory opinions. Newkirk, 505 S.W.3d at 774. Nor must we conclude, sua
sponte, that this case presents a cognizable exception to our general prohibition
against ruling on moot issues. See generally Morgan v. Getter, 441 S.W.3d 94,
101-02 (Ky. 2014) (discussing recognized exceptions to prohibition against
reviewing moot issues). Olivo does not argue that any such recognized exception
to the prohibition against reviewing moot issues exists and we are not obligated to
research and construct arguments not raised by the parties. Hadley v. Citizen
Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) (citing e.g., CR
76.12(4)(c)(v)). In short, we decline to address the merits of the trial court’s ruling
on intervention since the issue is moot.
Further arguments in the parties’ briefs which are not discussed herein
have been determined to lack merit or relevancy to our resolving this appeal.
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CONCLUSION
For the foregoing reasons, we affirm the trial court’s grant of
summary judgment.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Shane C. Sidebottom Paul C. Harnice
Covington, Kentucky James D. Allen
Sarah J. Bishop
Hans G. Poppe Frankfort, Kentucky
Louisville, Kentucky
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