Ken Isaacs v. Jeff Caldwell Member of Georgetown-Scott County Planning Commission

RENDERED: NOVEMBER 2, 2017
. TO BE PUBLISHED
2015-SC-000265-DG
KEN ISAACS AND APPELLANTS
ANNETTA CORNETT
ON REVIEW FROM COURT OF APPEALS
v. CASE NO. 2013-CA-001188-MR
SCOTT CIRCUIT.COURT NO. 12-CI-00538
JEFF CALDWELL, GREG HAMPTON, JANET APPELLEES
HOLLAND, ROB JONES, JIMMY
RICHARDSON, JOHN SHIRLEY, MELISSA
WAITE, FRANK WISEMAN, HORACE WYNN,
GEORGETOWN-SCOTT COUNTY PLANNING
COMMISSI9~ MEMBERS; TOWN AND
COUNTRY BANK; AND JOHN TACKETT
.OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING
Appellants, Ken Isaacs and Annetta Cornett, appeal from a decision of
the Court of Appeals which affirmed the order of the Scott :Circuit Court
dismissing their appeal of a Georgetown-Scott County Planning Commission
(Planning Commission) decision. The Planning Commission had approved a
plat amendment requested by developer John Tackett to remove a planned, but
as yet unconstructed, lake from the development plan applicable to Appellants'
subdivisfon. Appellants sought judicial review of the Commission's action by
filing an appeal in the Scott Circuit Cqurt.
The circuit court dismissed the appeal after concluding that it lacked .
jurisdiction over the matter because Appellants h.ad not properly commenced
their action within the applicable statutory time period. The Court of Appeals
affirmed the circuit court's order of dismissal. We granted discretionary review.
For the reasons stated below, we affirm~the Court of Appeals.
I. FACTUA~ AND PROCEDURAL BACKGROUND
Appellants are property owners in Harbor Village Subdivision in Scott
County, Kentucky. On June 14, 2012, the Planning Commission approved the
\
application of Harbor Village's ·developer, John Tackett, to amend the
subdivision development. plat so that he. could eliminate a proposed lake
featured on the current development plat. Appellants opposed the amendment
o~ the plat upon the grounds that they had purchased their property in the
subdivision relying upon the enhanced aesthetic and economic value that
would be provided by the lake. Town and Country Bank (the Bank) owns the
property upon which the lake was to be situated and is therefore a necessary
party to the appeal. KRS 100.347(4.) states: "The owner of the subject property
and applicants who initiated the proceeding shall be made parties to the
appeal."
2
Appellants had until July 16, 2012, to appeal the Commission's decision
by initiating an action for judicial review in the circuit court. 1 C?n that
afternoon shortly before cl379 S.W.2d 450, 456 (Ky. 1964) (internal citations and
footnote omitted). Th~ Court further noted that judicial review for
"arbitrariness" included (1) administrative actions in excess of granted powers,
(2) -failure of the agency to provide procedural due process, and (3) the absence
of substantial evidentiary support for agency findings. Id.
Subject to those constitutional constraints, we acknowledge the
authority of the General Assembly to prescribe by statute the procedures for
seeking and securing judicial review of an administrative ruling. Out of
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deference to that authority, we require strict compliance with the statutory
procedures. Triad Development/Alta Glyne, Inc. v. Gellhaus, 150 S.W.3d 43, 47
(Ky. 2004) ("[W]hen the right of appeal [from an administrative agency's ruling]
... is codified as a statutory procedure, as it is in KRS 100.347, then the
parties are required to strictly follow those procedures.~). Based upon these
principles, to obtain judicial review of the Planning Commission's approval of
Tackett's proposed plat amendment, Appellants had to strictly comply with all
relevant statutory requirements for bringing its action in the circuit court.
KRS 100.347(2) provides that anyone claiming to be injured or aggrieved
by a final action of a planning commission may take an appeal of that action in
the circuit court of the ~ounty in which the affected property lies. The statute
requires that "such appeal shall be taken within thirty (30) days after such
action." (Emphasis added.) The statute further directs: "All final actions which
have not been appealed within thirty (30) days shall not be subject to judicial
review."
To determine whether Appellants strictly complied with the time
limitations provided in KRS 100.347(2), we must parse what is meant by the
phrase "such appeal shall be taken." KRS 23A.010(4) provides that "[t]he
Circuit Court may be authorized by law to review the actions or decisions of
administrative agencies, special districts or boards. Such review shall not
constitute an appeal but an original action." (Emphasis added.) We construe
that language as a legislative directive that the judicial review of administrative
actions shall be governed by the same procedural rules of the courts applicable
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to original actions. The judicial review authorized by KRS 100.347(2) falls
squarely within that mandate.
In Transportatfon Cabinet, Department of Highways v. City of
Campbellsville, 740 S.W.2d 162, 164 (Ky. App. 1987), the Court of Appeals
.recognized that "[a]n appeal to the circuit court from an order of an
administrative agency is not a true appeal but rather an original action." It
logically follo~s that the procedural steps required to "take" an appeal from an
administrative agency action are precisely the same steps required to
commence any other original action in the circuit court. The.rules that
determine when a civil action. commences, therefore, determine when an appeal
of an administrative action has been taken.
CR 3.01 provides that "[a] civil action is commenced by the filing of a
complaint with the court and the issuance of a summons or warning order
thereon in good faith." Similarly, KRS 413.250 provides that "[a civil] action
shall be deemed to commence on the date of the first summons or process
issued in good faith from the court having jurisdiction of the cause of action."
Furthermore, "[i]f the action is commenced by the filing of the petition and the
issuance of summons, and only one time period is specified, it must follow that
both actions [that is, the filing of the petition or other initial pleading and the
issuance of the summons] must be taken within the period of time provided in
the statute." Metro Medical Imaging, LLC v. Commonwealth, 173 S.W.3d 916,
918 (Ky. App. 2005). ·
8
CR 4.01(1) provides that "[u]pon the filing of the complaint (or other
initiating document) the clerk shallforthwith issue the required summons and,
at the direction of the initiating party, either [(a) ... (b) ... or] (c) At the request
of the initiating party, return the summons and [the initiating document] with
necessary copies, to that party for service." (Emphasis added.)
The record plainly establishes that Appellants' counsel filed the Appeal
before the expiration of the time prescribed by KRS 100.347(2) and that he
simultaneously tendered a summons form which the clerk refused to issue
"forthwith." Counsel for Appellants (the "initiating party") exercised the
prerogative contained in CR 4.0l(l)(c) and directed.the clerk to return the
issued summons to him so that he could arrange for its service. By choosing
that option, counsel assumed the responsibility for the service of the summons
by whatever means he could arrange. The lack of an address for service on the
'
Bank afforded the clerk no justification for refusing to issue the summons
"forthwith." Nothing in the civil rules or statutes governing the initiation of a
civil action in circuit court permits the clerk to withhold issuance of the
summons simply because the defendant's address is not stated thereon .
•
Accordingly, the instructional guide prepared for circuit clerks by the
Administrative .Office of the Courts, Kentucky Circuit Court Clerks' Manual .
(Manual), Section 18.1, states "The Clerk is required under CR 4.01(1) to issue
a summons immediately upon the filing of the complaint or petition."
(Emphasis added.) Nothing in the Manual directs or authorizes the clerk to
withhold issuance of the summons pending receipt of a defendant's address.
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"[I]t is the official duty of the clerk to issue the summons in accordance with
law, -and it is not incumbent upon the plaintiff to see that h~ issues it in
accordance with law." Nanny v. Smith, 260 S.W,3d 815, 817 (Ky. 2008)
(quoting Louisville & N.R. Co. v. Smith's Adm'r, 9 S.W. 493, 495 (Ky. 1888)).
Appellants rely upon Nanny to support their contention that the
imperfections attending the filing of their appeal in the circuit court should not
be fatal to their effort to secure judicial review of the Planning Commission's
decision. We agree that Nanny provides equitable principles that mitigate sonie
of the procedural problems they face; but it does not entirely solve Appellants'
problem.
In NanrJ,y, acting without the help of a lawyer and with the applicable
statute of limitations closing in, the plaintiff (Nanny) presented her complaint
to the clerk, leaving it with the expectation that the clerk would prepare and
issue the summons to be served upon tJ::ie defendant as set forth in CR
4.0l(l)(a). However, the clerk's office did not immediately file the complaint
and issue the summons. Instead, the clerk's office set aside Nanny's papers
and left them unattended for two days, and then the clerk finally filed the
complaint and issued the summons. By that time, however, the statute of
limitations had expired. The circuit court dismissed the complaint as
untimely; the Court of Appeals affirmed the dismissal.
On discretionary review, we recognized that Nanny had complied with the
rules for the filing of her complaint, and "should not be punished for the clerk's
failure to promptly perform official duties mandated by statute and court rule."
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Accordingly, we applied the equitable principle of "deeming done what should
have been done per CR 4.01." 260 S.W.3d at 818 (citing Robertson v.
Commonwealth, 177 S.W.3d 789 (Ky. 2005) (holding that equitable tolling is
appropriate in circumstances that are beyond the party's control when the
party has exercised due diligence and is clearly prejudiced)). "It is an ancient
but enduring principle that equity regards as done that which ought to have
been done." Johnson v. Potter, 433 S.W.2d 358, 362 (Ky. 1968).
We have no hesitation in concluding that the summons to be served on
the Bank should have been issued by the clerk and returned to Appellants'
counsel when the Appeal was filed in the waning moments of the applicable
lim~tations period. Appellants' counsel had done all that was required by law
to secure the issuance of the summons, and he did nothing to cause the delay.
"There is no reason why that which was intended and ought to have been done
then should not now be considered as having been done." Id.
The application of this principle in these circumstances does no violence
to our policy of strict compliance with the legislative mandate for judicial review
of administrative agency actions. As previously noted herein, KRS 23A.010(4)
directs that judicial_ review of administrative agency actions or decisions
constitute "original action[s]" in the circuit court. Equitable principles
applicable to original civil actions are equally applicable to original actions
seeking judicial review of a planning commission action. Therefore, we regard
the summons for the Bank to have been issued contemporaneously with the
filing of the Appeal before the expiration of the time limitation.
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The timely issuance of the summons, however, does not mean that
Appellants' action commenced within the statutory limitation period. CR 3.01
requires not simply "the issuance of the summons;" it requires "the issuance of
the summons in good faith." (Emphasis added.) The good faith essential for
the commencement of the action has long been construed to require a
contemporaneous intention on the part of the initiating party to diligently
attend to the service of the summons. Our predecessor Court explained in·
Louisville & N.R. Co. v. Little:
All the authorities are to the effect that the cause of action is not
commenced until there is a bona fide intention to have the
summons filled out and signed by the clerk, accompanied by bona
fide, unequivocal intention to have it served or proceeded on
presently or in due course or without abandonment. Action and
intention combined constitutes the commencement of the suit,
because a summons filled out and signed with no intention of having
it served is altogether inoperative. . . . But a summons simply filled
up and lying in the office of an attorney would not constitute an
issuing of the summons as provided for in the [applicable statute].
95 S.W.2d 293, 255 (Ky. 1936) (internal citations omitted, emphasis added).
"The issuance of a summons does not commerice an action unless
accompanied by an intent that the summons be served in due course."
Whittinghill v. Smith, 562 S.W.2d 649, 650 (Ky. App. 1977). Similarly, "[t]he
rule seems to be firmly established in this jurisdiction that in the absence of a
showing of a valid excuse for the delay, a summons issued by the clerk and
delivered to the plaintiff or his attorney is not deemed to have been issued in
good faith until it is given to the sheriff or other proper officer to be served."
Wooton v. Begley, 305 S.W.2d 270, 271 (Ky. 1957).
12
We disagree with the dissent's view that good faith was demonstrated
because Appellants' counsel "personally tried to serve the summons shortly
after the deputy circuit court clerk issued it. "5 Rather than securing the
service of process, counsel's effort was devoted toward getting the Bank to
waive the service of the summons. We do not equate the effort to secure the
waiver of service with a good faith effort to have the summons served. Instead
of acting diligently with a substantial effort to s~cure service of the summons
upon the Bank, Appellants' counsel made only a modest attempt in a different
direction to obtain a waiver of service, which the Bank declined to provide.
Thereafter, counsel apparently did nothing to effectuate service for three weeks,
and then Tackett moved to dismiss the case. The final effort at serving the
summons was the employment of the constable, who left the summons and the
initial pleading with a teller at one of the Bank's Scott County brariches, thus
prompting the Bank's special appearance and motion to dismiss for improper
service of process, the propriety of whiCh is not before this Court and upon
which we express no opinion.
Appellants have the burden of demonstrating a bona fide, unequivocal
intention to have the summons served on the B~nk, presently or in due course
after the filing of the Appeal, and without abandonment. A summons form,
filled out and signed, but with no present intention of having it served is
s As previously noted, we do not suggest that our rules or statutes authorize the
in-state service of the summons by the attorney who filed the complaint. See footnote
3.
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altogether inoperative. Little, 95 S.W.2d 253; Wooton, 305 S.W.2d 270; Gibson
v. EPICorporation, 940 S.W.2d 912 (Ky. App. 1997). The delay in service of the
summons was explained only by counsel's preference to obtain the Bank's
waiver of service of process. The trial court considered all the foregoing events
and determined that "Appellant[s] failed to issue a summons in good faith
when [counsel] made no diligent effort to hire a servicer, or to personally serire
[the Bank] until August of 2012," more than three weeks after the expiration of
the time for commencing the action. The trial court's finding of fact on this
issue is supported by substantial evidence and so is binding in our review. CR
52.01.
Appellants direct our attention to Rucker's Adm'r v. Roadway Express,
Inc., 131 S.W.2d 840 (Ky. 1939), which holds that an action may be
commenced in good faith even if the attorney does not immediately serve the
summons on a party so long as the delay under the circumstances is not
sufficiently lengthy to negate good faith. In Rucker's Adm'r, our predecessor
Court held that a delay of six weeks in serving a party could show negligence,
but not necessarily bad faith, depending upon the reason for the delay. During
this interval, the attorney was attempting to determine the proper agent to
serve, his wife was ill for three weeks, and the summons was misfiled,
requiring him to obtain another one. The Court explained that the attorney's
actions likely amounted to negligence, but that "the circumstances shown in
this particular case are not such as to negate a lack of good faith at the time
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III. CONCLUSION
For the foregoing reasons, the decision of the Court of Appeals is
affirmed.
All sitting. Minton, C.J.; Hughes, Keller, and VanMeter, JJ., concur.
Wright, J., concurs irt part and dissents in part by separate opinion in which
Cunningham, J., joins.
WRIGHT, J., CONCURRING IN PART AND DISSENTING IN PART: I
concur with the majority's excellent analysis and determination that "we regard
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the summons for the Bank to have been issued contemporaneously with the
filing of the appeal before the expiration of the time limitation.". The majority
correctly states that good faith requires the party t~ diligently attend to the
•.
service of the summons. However, I disagree that Appellants failed to comply
with the "good faith" element. In holding otherwise, both lower courts and the
majority all consider the wrong time period. Therefore, I dissent in part.
CR 3.01 requires "the issuance of a summons ... in good faith." In
order to determine whether the summons was issued in good faith, we must
examine the circumstances and the actions of Appellants' attorney, Mr.
Higdon. Higdon had contacted two of the Appellees and.obtained waivers of
service from them prior to filing the complaint. The deputy circuit court derk
who filed the action improperly refused to issue the summons for the Bank, the
only remaining party. Unable to obtain a summons from the clerk, Higdon
personally carried the complaint to the offices of the Bank's local counsel.
Unfortunately, the office was closed. Improperly denied a summons by the
deputy circuit court clerk, Higdon tried to obtain a waiver of service before the
expiration of time in which to file the case.
The next day (a day after the period for filing the case had expired),
Higdon returned to the circuit court clerk's office and a-different deputy clerk
issued the summons. I agree with the majority that the deputy clerk
improperly refused to issue the summons when the appeal was filed ..
Therefore, equitable tolling would require that the summons be considered as
16
issued contemporaneously with the filing of the appeal-just as the majority
holds.
Higdon was unable to take any action to serve the summons until the
deputy clerk actually issued it the day after Higdon filed the appeal. The trial
court found that:
Mr. Higdon testified that he sought to retain the summons so he .
could serve it himself or via the constable for a smaller fee than the
sheriffs office. Mr. Higdon then testified he attempted to serve the
summons to Mr. Lankford (on behalf of Town and Country Bank)
at his office only once. On that occasion the door was locked. Mr.
Higdon never again attempted formal service on [Town] and
Country Bank until he retained Constable Bobby Townsend, who
successfully served Town and Country Bank on August 10, 2012.
The trial court found that Higdon, personally tried to serve the summons on
the Bank after the summons was issued. The summons was issued in good
faith since Higdon personally tried to serve the summons shortly after the
deputy circuit court clerk issued. it. The question that now confronts us is
whether Higdon's delay in taking additional steps constitutes an abandonment
of good-faith intent to serve the summons.
Since the trial court found that Mr. Higdon did attempt to serve the
summons, the question before the court was whether he abandoned good-faith
service due to the delay between his attempt to serve the summons and
·retaining the constable to serve the summons. The trial court found that
Higdon retained Constable Bobby Townsend to serve the summons and·based
it's ruling on when the constable served the Bank. on August 10, 2012. The
trial court's order was erroneously based on the court's determination that
"Appellant failed to issue a summons in good faith .... " The trial court based
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it's ruling on the August 10 date of service, which occurred, as the majority
points out, more than three weeks after issuance of.the summons. The trial
court should not have used this August 10 date in its evaluation of whether
Higdon abandoned the good-faith effort to serve the summons. Rather, the
trial court should have considered that Higdon made an additional effort
between the issuance and the service of the summons.
As previously noted, Higdon attempted to serve the summons personally.
When that failed, he eventually gave up on either obtaining. a waiver of service
or personally serving the_ Bank and retained Constable Bobby Townsend .. ·
Delivery of the summons to the
.
constable for service
.
demonstrates a
continuing good-faith effort at service. Therefore, the period of time the court
should have considered in determining whether there was a continuing good-
.,
faith effort is the time between Higdon's attempt at personal service and his
delivery of the summons to the constable .
. This ruling caused confusion in the Court of Appeals, as demonstrated in
that court's majority opinion which stated "[t]wo days after receiving Tackett's
motion to dismiss, Appellants' attorney retained a constable to serve the
summons on the Bank." In actuality, Higdon retained the constable to serve
the summons four days prior to the filing of Tacketfs motion to dismiss. The
Court of Appeals' majority opinion also stated "[i]n addition, counsel waited for
three more weeks to retain a constable to ·effect service on the Bank, and even
then, only in response to Tackett's motion to dismiss." This misunderstanding
18
of the sequence of events and time periods involved is repeated throughout the
Court of Appeals' majority and concurring opinions.
The delay in this case is less than the delay allowed in Rucker's Adm'r v.
Roadway Express, Inc., 131 S.W.2d 840. In the Rucker's case, there was a
delay of six weeks between issuance of the summons and service. The excuse
presented by the attorney in that case was that his wife. was in the hospital for
three weeks, and then he misfiled the summons, and had to obtain anpther.
Even if we deduct the three weeks the attorney's wife was in the hospital and
allow a day for the re-issuance of the summons, the attorney in that case still
had a 20-day delay. Our predecessor court held that delay was insufficient to
demonstrate abandonment of good-faith intent to serve the summons. In the
current case, the date between the issuance of the summons and Higdon giving
it to the constable for service was 17 days ot less. Is that delay so egregious
that we will abandon the precedent set in Rucker's and bar the parties from
having their case resolved on its merits?
In another case, Title Ins. & Tr. Co. v. City of Paducah, 275 Ky. 392
. . .
(1938), this Court's predecessor held that because the summonses in question
were delivered to the sheriffs office, the suit was commenced irt good faith. It
had no bearing on the court's decision that the sheriff did not serve all of the
summonses. The mere fact that they were conveyed to the 'sheriffs office was
enough to substantiate good faith. The same should hold true here. Once
Appellants conveyed the Bank's summons to the constable, they were acting in
good faith.
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The timeline is extremely important in determining good faith in this
case. Higdon took the following actions demonstrating his good faith: he
obtained waivers of service from two of the parties prior to filing the complaint;
when the deputy circuit court clerk refused to issue the summons, Higdon
attempted to deliver the appeal to the Bank's attorney seeking waiver of service;
after a different deputy circuit court clerk issued the summons, Higdon
attempted to personally serve the summons; he held the summons for less
than 17 days in hopes of personally serving it or obtaining a waiver of service;
and Higdon retained a constable to serve the summons. Then, four days after
Higdon's retention of the constable, Tackett filed a motion to dismiss.· Finally,
three days later, the constable served the summons.
In conclusion, the question before the Court is whether Appellants
abandoned good-faith service of the summons. The time period that must be
considered in resolving this question is that between Higdon's attempt to
personally serve the summons and his delivery of the summons to the
constable for service. The trial court erroneously based its ruling upon the
. time period between filing of the appeal and service of the summons-as do
both the Court of Appeals and the majority opinion of this Court. Therefore,
the Court of Appeals' opinion should be reversed and the matter remanded to
I
the trial court to determine whether there was abandonment of good faith to
serve the summons between Higdon's attempt to serve the summons and
delivery of the summons to the constable for service.
Cunningham, J., joins.
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COUNSEL FOR APPELLANTS KEN ISAACS AND ANNETA CORNETT:
W. Henry Graddy IV
Dorothy Thomps Rush
W .H. Graddy & Associa~es
·~
Randal Alan Strobo
Strobo Barkley, PLLC
COUNSEL FOR APPELLEES JEFF CALDWELL; GREG HAMPTON; JANET
HOLLAND; ROB JONES; JIMMY RICHARDSON; JOHN SHIRLEY; MELISSA
WAITE; FRANK WISEMAN; AND HORACE WYNN, MEMBERS OF .
GEORGETOWN-SCOTT COUNTY PLANNING COMMISSION:
Charle·s Perkins
209 East Main Street
Georgetown, KY 40324
COUNSEL FOR APPELLEE TOWN AND COUNTRY BANK:
R. Bruce Lankford
Lankford & Lankford
COUNSEL FOR APPELLEE JOHN TACKETT:
Harold F.. Simms
112 North Court Street
Georgetown, KY 40324
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