Clark County- Winchester Heritage Commission v. Thomas Norton

RENDERED: JUNE 4, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2017-CA-1172-MR
CLARK COUNTY-WINCHESTER
HERITAGE COMMISSION AND
HARRY ENOCH APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 08-CI-06061
THOMAS NORTON; BRENDA
WHITE; CARL NORTON; CLYDE
WILCOXEN; GEORGE NORTON;
GESS FAMILY PARTNERSHIP, LTD;
IRENE GERDEMAN, AS TRUSTEE
OF THE IRENE GERDEMAN LIVING
TRUST; JANE GRAVES
BLACKFORD; JEFFREY R.
WALKER, TRUSTEE OF THE J.H.
GRAVES TRUST UNDER WILL FOR
BENEFIT OF JANE GRAVES
BLACKFORD; LARRY WHITE;
MARY LOUIS BRATTON
QUERTERMOUS; PATSY A.
BRATTON; TROY THOMPSON; AND
WAYNE QUERTERMOUS APPELLEES
AND
NO. 2017-CA-1206-MR
CLARE SIPPLE AND VANESSA
ZEOLI APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 08-CI-06061
CLARK COUNTY-WINCHESTER
HERITAGE COMMISSION; BRENDA
WHITE; CARL NORTON; CLARK
COUNTY FISCAL COURT; CLYDE
WILCOXSON; GEORGE NORTON;
GESS FAMILY PARTNERSHIP, LTD;
HARRY ENOCH; IRENE
GERDEMAN AS TRUSTEE OF THE
IRENE GERDEMAN LIVING TRUST;
KENTUCKY HERITAGE COUNCIL;
LARRY WHITE; MARK DENNEN;
MARTY PERRY; MARY LOUIS
BRATTON QUERTERMOUS; PATSY
A. BRATTON; THOMAS NORTON;
TROY THOMPSON; UNIVERSITY
OF KENTUCKY; AND WAYNE
QUERTERMOUS APPELLEES
AND
NO. 2017-CA-1207-MR
CLARK COUNTY FISCAL COURT APPELLANT
-2-
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 08-CI-06061
THOMAS NORTON; BRENDA
WHITE; CARL NORTON; CLYDE
WILCOXEN; GEORGE NORTON;
GESS FAMILY PARTNERSHIP, LTD;
IRENE GERDEMAN, AS TRUSTEE
OF THE IRENE GERDEMAN LIVING
TRUST; JANE GRAVES
BLACKFORD; JEFFREY R.
WALKER, TRUSTEE OF THE J.H.
GRAVES TRUST UNDER WILL FOR
BENEFIT OF JANE GRAVES
BLACKFORD; LARRY WHITE;
MARY LOUIS BRATTON
QUERTERMOUS; PATSY A.
BRATTON; TROY THOMPSON; AND
WAYNE QUERTERMOUS APPELLEES
AND
NO. 2017-CA-1208-MR
MARTY PERRY, NATIONAL
REGISTER COORDINATOR FOR
THE KENTUCKY HERITAGE
COUNCIL AND THE STATE
HISTORIC PRESERVATION OFFICE;
COMMONWEALTH OF KENTUCKY,
COMMERCE CABINET, KENTUCKY
HERITAGE COUNCIL, STATE
HISTORIC PRESERVATION OFFICE;
AND MARK DENNEN, ACTING
-3-
EXECUTIVE DIRECTOR,
KENTUCKY HERITAGE COUNCIL
AND STATE HISTORIC
PRESERVATION OFFICER APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 08-CI-06061
THOMAS NORTON; BRENDA
WHITE; CARL NORTON; CLYDE
WILCOXEN; GEORGE NORTON;
GESS FAMILY PARTNERSHIP, LTD;
IRENE GERDEMAN, AS TRUSTEE
OF THE IRENE GERDEMAN LIVING
TRUST; JANE GRAVES
BLACKFORD; JEFFREY R.
WALKER, TRUSTEE OF THE J.H.
GRAVES TRUST UNDER WILL FOR
BENEFIT OF JANE GRAVES
BLACKFORD; LARRY WHITE;
MARY LOUIS BRATTON
QUERTERMOUS; PATSY A.
BRATTON; TROY THOMPSON; AND
WAYNE QUERTERMOUS APPELLEES
AND
NO. 2017-CA-1209-MR
THOMAS NORTON; GEORGE
NORTON; BRENDA WHITE; CARL
NORTON; CLYDE WILCOXEN;
GESS FAMILY PARTNERSHIP, LTD;
IRENE GERDEMAN, AS TRUSTEE
OF THE IRENE GERDEMAN LIVING
-4-
TRUST; JANE GRAVES
BLACKFORD; JEFFREY R.
WALKER, AS TRUSTEE OF THE J.H.
GRAVES TRUST UNDER WILL FOR
BENEFIT OF JANE GRAVES
BLACKFORD; LARRY WHITE;
MARY LOUIS BRATTON
QUERTERMOUS; MARY LOUISE
BRATTON; PATSY A. BRATTON;
TROY THOMPSON; AND WAYNE
QUERTERMOUS CROSS-APPELLANTS
CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 08-CI-06061
CLARE SIPPLE; CLARK COUNTY
FISCAL COURT; CLARK COUNTY-
WINCHESTER HERITAGE
COMMISSION; HARRY ENOCH;
KENTUCKY HERITAGE COUNCIL,
STATE HISTORIC PRESERVATION
OFFICE, COMMONWEALTH OF
KENTUCKY, COMMERCE
CABINET; MARK DENNEN, ACTING
EXECUTIVE DIRECTOR,
KENTUCKY HERITAGE COUNCIL
AND STATE HISTORIC
PRESERVATION OFFICER; MARTY
PERRY, NATIONAL REGISTER
COORDINATOR FOR THE
KENTUCKY HERITAGE COUNCIL
AND THE STATE HISTORIC
PRESERVATION OFFICE; AND
VANESSA ZEOLI CROSS-APPELLEES
-5-
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
JONES, JUDGE: These appeals and the related cross-appeal arise out of a series
of orders entered by the Fayette Circuit Court (“circuit court”) on May 15, 2017,
and made final and appealable by the circuit court’s order of June 13, 2017.
Because the appeals arise out of the same orders, share a common set of facts, and
raise identical or substantially similar issues, we have elected to consider the
appeals in a single opinion for the sake of consistency and clarity.
The Appellees/Cross-Appellants (hereinafter referred to as
“Plaintiffs”) are a group of individuals who own real property in an area known as
the Upper Reaches of Boone Creek (“Upper Reaches”).1 The Appellants/Cross-
Appellees (hereinafter collectively referred to as “Defendants”) are: the Clark
County Fiscal Court; the Clark County Winchester Heritage Commission and three
of its employees/agents, Clare Sipple, Vanessa Zeoli, and Harry Enoch; and the
Kentucky Heritage Council, its Director, Mark Dennen, and its National Register
Coordinator, Marty Perry. The litigation concerns the actions Defendants took in
1
The Upper Reaches is comprised of approximately 10,000 acres of land; it spans parts of
Fayette and Clark Counties. Not all the Upper Reaches property owners are part of this
litigation.
-6-
connection with having the Upper Reaches listed as a historic district on the
National Register of Historic Places (“National Register”).
As part of the orders on appeal, the circuit court: (1) granted Plaintiffs
summary judgment on their due process claim against Defendants; (2) determined
Defendants were not entitled to sovereign, governmental and/or qualified official
immunity with respect to the due process claim; (3) awarded Plaintiffs a judgment
against each defendant jointly and severally for recovery of attorneys’ fees in the
amount of $206,465.60 and costs in the amount of $13,465.43 pursuant to 54
U.S.C.2 § 307105; and (4) denied Plaintiffs’ request for additional recompense for
the time and expenses they personally invested in the litigation.
Following entry of the circuit court’s orders, the parties filed a series
of appeals with this Court: (1) Appeal No. 2017-CA-1172; (2) Appeal No. 2017-
CA-1206; (3) Appeal No. 2017-CA-1207; (4) Appeal No. 2017-CA-1208; and (5)
Appeal No. 2017-CA-1209.
(1) Appeal No. 2017-CA-1172 was filed by the Clark County
Winchester Heritage Commission (“CCH Commission”) and Harry Enoch, the
CCH Commission’s Chairman during the relevant time period. The CCH
Commission asserts that the circuit court wrongly concluded that it was not entitled
to sovereign immunity, and Enoch claims that the circuit court likewise wrongly
2
United States Code.
-7-
denied his claim for qualified official immunity. Additionally, like Defendants in
the other appeals detailed below, the CCH Commission and Enoch assert the
circuit court erroneously granted summary judgment against them on Plaintiffs’
due process claim, and further erred in awarding Plaintiffs attorneys’ fees pursuant
to 54 U.S.C. § 307105.
(2) Appeal No. 2017-CA-1206, was filed by Clare Sipple and Vanessa
Zeoli. Sipple and Zeoli assert that the circuit court erroneously rejected their
motions for dismissal based on sovereign and/or qualified official immunity. They
also assert the circuit court failed to include in its orders of May 15, 2017, that
Sipple and Zeoli are entitled to indemnification by the CCH Commission, and
Zeoli likewise contends that the circuit court should have included her right to
indemnification from the University of Kentucky. Zeoli and Sipple also maintain
that the circuit court wrongfully granted summary judgment to Plaintiffs on their
abuse-of-process cross-claims. Finally, Zeoli contends the circuit court erred in
failing to dismiss Plaintiffs’ claims against her for lack of personal jurisdiction and
improper service of process.
(3) Appeal No. 2017-CA-1207 was filed by the Clark County Fiscal
Court. The Clark County Fiscal Court’s primary assignment of error is that the
circuit court should have dismissed it from this suit based on its claim of sovereign
immunity. Alternatively, the Clark County Fiscal Court maintains that the circuit
-8-
court erroneously awarded attorneys’ fees and costs to Plaintiffs based on a
misplaced finding that it violated Plaintiffs’ due process rights.
(4) Appeal No. 2017-CA-1208 was filed by the Kentucky Heritage
Council, State Historic Preservation Office and two of its employees/officers,
Marty Perry and Mark Dennen. Together, they argue the circuit court erred in
failing to find that they were entitled to governmental and/or qualified official
immunity. They additionally assert that the circuit court erred in finding that they
were liable for violating Plaintiffs’ due process rights; and alternatively, that the
circuit court erred in awarding Plaintiffs their costs and attorneys’ fees pursuant to
54 U.S.C. § 307105.
(5) Appeal No. 2017-CA-1209 is a cross-appeal filed by Plaintiffs.
Plaintiffs’ cross-appeal is focused on the circuit court’s refusal to award Plaintiffs
certain “additional recompense” pursuant to 54 U.S.C. § 307105. The additional
recompense sought by Plaintiffs represents the time and expenses, apart from
attorneys’ fees, the individual Plaintiffs incurred in preparing for and attending
various meetings concerning this litigation and the time they spent locating other
property owners.
Having extensively reviewed the very lengthy record and being
otherwise sufficiently advised, we affirm in part, reverse in part, and remand for
entry of a modified judgment and further proceedings consistent with this Opinion.
-9-
I. NATIONAL REGISTER OF HISTORIC PLACES
Before delving into the factual and procedural nuances of this
particular litigation, it is important to understand the process used to include a
property on the National Register and the role played by local, state, and federal
agencies and officials in the process.
The National Historic Preservation Act (“NHPA”), now codified at 54
U.S.C. § 300101, was originally enacted by Congress in 1966.3 The overarching
purpose of the NHPA is to “foster conditions under which our modern society and
our historic property can exist in productive harmony[.]” 54 U.S.C. § 300101(1).
To further this objective, the NHPA authorizes the Secretary of the Interior to
“expand and maintain a National Register of Historic Places composed of districts,
sites, buildings, structures, and objects significant in American history,
architecture, archeology, engineering, and culture.” 54 U.S.C. § 302101. Owner
participation in the nomination process is required by statute. Specifically, 54
U.S.C. § 302105 provides:
(a) Regulations.--The Secretary shall promulgate
regulations requiring that before any property may be
included on the National Register or designated as a
National Historic Landmark, the owner of the property,
3
The NHPA was formerly codified at 16 U.S.C. § 470 et seq. During the course of this
litigation, the former section was repealed. See Pub. L. No. 113-287, § 7, 128 Stat. 3094 (2014).
It was later recodified, as modified. Pub. L. No. 113–287, § 3, 128. Stat. 3094 (2014). We cite
to the current version of the statute because none of the provisions at issue are materially
different.
-10-
or a majority of the owners of the individual properties
within a district in the case of a historic district, shall be
given the opportunity (including a reasonable period of
time) to concur in, or object to, the nomination of the
property for inclusion or designation. The regulations
shall include provisions to carry out this section in the
case of multiple ownership of a single property.
(b) When property shall not be included on National
Register or designated as National Historic Landmark.--If
the owner of any privately-owned property, or a majority
of the owners of privately owned properties within the
district in the case of a historic district, object to
inclusion or designation, the property shall not be
included on the National Register or designated as a
National Historic Landmark until the objection is
withdrawn.
(c) Review by Secretary.--The Secretary shall review the
nomination of the property when an objection has been
made and shall determine whether or not the property is
eligible for inclusion or designation. If the Secretary
determines that the property is eligible for inclusion or
designation, the Secretary shall inform the Advisory
Council on Historic Preservation, the appropriate State
Historic Preservation Officer, the appropriate chief
elected local official, and the owner or owners of the
property of the Secretary’s determination.
Id. (emphasis added).
The NHPA requires the Secretary of the Interior “in consultation with
national historical and archeological associations” to establish criteria for
properties to be included on the National Register and:
(2) promulgate regulations for--
-11-
(A) nominating properties for inclusion on, and removal
from, the National Register and the recommendation of
properties by certified local governments;
(B) designating properties as National Historic
Landmarks and removing that designation;
(C) considering appeals from recommendations,
nominations, removals, and designations (or any failure
or refusal by a nominating authority to nominate or
designate);
(D) nominating historic property for inclusion in the
World Heritage List in accordance with the World
Heritage Convention;
(E) making determinations of eligibility of properties for
inclusion on the National Register; and
(F) notifying the owner of a property, any appropriate
local governments, and the general public, when the
property is being considered for inclusion on the National
Register, for designation as a National Historic
Landmark, or for nomination to the World Heritage List.
54 U.S.C. § 302103.
The regulations required by 54 U.S.C. § 302103, which are at the
heart of these appeals, are contained in 36 C.F.R.4 Part 60. “The National Park
Service is the bureau of the Department of Interior to which the Secretary of
Interior has delegated the authority and responsibility for administering the
National Register program.” 36 C.F.R. § 60.3(h). In turn, the National Park
4
Code of Federal Regulations.
-12-
Service has delegated the authority to list properties and determine their eligibility
for the National Register to the Keeper. 36 C.F.R. § 60.3.
The regulations provide several methods for nomination of properties
to the National Register, including, “[n]ominations prepared under approved State
Historic Preservation Programs, submitted by the State Historic Preservation
Officer and approved by the NPS,” as occurred in this case. 36 C.F.R. §
60.1(b)(3). The regulations are very detailed with respect to how the State Historic
Preservation Officer (“SHPO”) is to identify, consider, and nominate properties to
the National Register. 36 C.F.R. § 60.6(c). After a property has been identified
and selected, the SHPO must provide written notice to property owners5 of the
State’s intent to bring the nomination before the State Review Board. The notice
must be sent “at least 30 but not more than 75 days before the State Review Board
meeting.” Id. “The notice shall give the owner(s) at least 30 but not more than 75
days to submit written comments and concur in or object in writing to the
nomination of such property.” Id. Individual written notice is not required for a
nomination with more than fifty property owners. 36 C.F.R. § 60.6(d). In such
cases, written notice must be provided to the chief elected local officials of the
5
The regulations define “owner(s)” as: “those individuals, partnerships, corporations or public
agencies holding fee simple title to property. Owner or owners does not include individuals,
partnerships, corporations or public agencies holding easements or less than fee interests
(including leaseholds) of any nature.” 36 C.F.R. § 60.3(k).
-13-
county in which the property or district6 is located and a general notice published.
Id. However, nothing precludes a state from providing individual notice in
districts containing more than fifty property owners if it so chooses. Id.Property owners who wish to object must comply with 36 C.F.R. §
60.6(g), which provides:
Upon notification, any owner or owners of a private
property who wish to object shall submit to the State
Historic Preservation Officer a notarized statement
certifying that the party is the sole or partial owner of the
private property, as appropriate, and objects to the listing.
In nominations with multiple ownership of a single
private property or of districts, the property will not be
listed if a majority of the owners object to listing. Upon
receipt of notarized objections respecting a district or
single private property with multiple owners, it is the
responsibility of the State Historic Preservation Officer to
ascertain whether a majority of owners of private
property have objected. If an owner whose name did not
appear on the list certifies in a written notarized
statement that the party is the sole or partial owner of a
nominated private property such owner shall be counted
by the State Historic Preservation Officer in determining
whether a majority of owners has objected. Each owner
of private property in a district has one vote regardless of
how many properties or what part of one property that
party owns and regardless of whether the property
contributes to the significance of the district.
6
“A district is a geographically definable area, urban or rural, possessing a significant
concentration, linkage, or continuity of sites, buildings, structures, or objects united by past
events or aesthetically by plan or physical development. A district may also comprise individual
elements separated geographically but linked by association or history.” 36 C.F.R. § 60.3(d).
-14-
Id. “If the owner of a private property or the majority of such owners for a district
or single property with multiple owners have objected to the nomination prior to
the submittal of a nomination, the State Historic Preservation Officer shall submit
the nomination to the Keeper only for a determination of eligibility pursuant to
subsection (s) of this section.” 36 C.F.R. § 60.6(n). This is in accord with 54
U.S.C. § 302105(b) which provides that the Keeper shall not list a property on the
National Register where the owner or “a majority of the owners of privately owned
properties within the district in the case of a historic district, object to inclusion or
designation[.]” Id.If the SHPO determines that a property meets the National Register
criteria for evaluation, he/she must sign a form certifying that: “(1) All procedural
requirements have been met; (2) The nomination form is adequately documented;
(3) The nomination form is technically and professionally correct and sufficient;
(4) In the opinion of the State Historic Preservation Officer, the property meets the
National Register criteria for evaluation.” 36 C.F.R. § 60.6(o). After receipt of the
nomination, notice is given by publication in the Federal Register that the
nominated property is being considered for listing in the National Register. 36
C.F.R. § 60.6(q). Following publication of the notice in the Federal Register,
another period opens for objections or withdrawals by owners and comments by
other persons. 36 C.F.R. § 60.6(q)-(t). “If the owner of private property (or the
-15-
majority of such owners for a district or single property with multiple owners) has
objected to the nomination by notarized statement prior to listing, the Keeper shall
review the nomination and make a determination of eligibility within 45 days of
receipt, unless an appeal is filed.” 36 C.F.R. § 60.6(s). “The Keeper shall list such
properties determined eligible in the National Register upon receipt of notarized
statements from the owner(s) of private property that the owner(s) no longer object
to listing.” Id.Ultimately, the authority to decide whether a nominated property
should be listed on the National Register rests with the Keeper, “even where a
nomination initially comes through a state preservation program.” Moody Hill
Farms Ltd. Partnership v. U.S. Dep’t of the Interior, National Parks Serv., 205
F.3d 554, 558 (2d Cir. 1999). Specifically, the Keeper has a duty to independently
verify the accuracy of the list of property owners and the objections related thereto.
See Sierra Club v. Salazar, 177 F. Supp. 3d 512, 538 (D.D.C. 2016).
Once a property is listed on the National Register, the NHPA and its
implementing regulations require federal agencies to consider the impact of federal
undertakings and federally funded projects on the property. See 54 U.S.C. §
306101; 36 C.F.R. § 800.1. The NHPA “is a procedural statute requiring [federal]
government agencies to stop, look, and listen before proceeding when their action
will affect national historical assets.” Presidio Historical Ass’n v. Presidio Trust,
-16-
811 F.3d 1154, 1169 (9th Cir. 2016) (internal quotation marks and citation
omitted). The listing also makes owners eligible for certain grants and tax credits;
however, in very limited circumstances, mostly involving surface minerals, the
listing may interfere with an owner’s rights to use his property as he desires
without first securing approval.7
Once listed, a property cannot be removed from the National Register
except by way of a petition filed with the Keeper. The grounds for removal set
forth in 36 C.F.R. § 60.15(a), include “[p]rejudicial procedural error in the
nomination or listing process.” 36 C.F.R. § 60.15(a)(4). “Any person or
organization may petition in writing for removal of a property from the National
Register[.]” 36 C.F.R. § 60.15(c). Once the Keeper acts on a removal petition, it
concludes the administrative review process.
II. FACTUAL AND PROCEDURAL BACKGROUND
Clare Sipple works for the CCH Commission. Around 2005, the CCH
Commission was encouraged to add more rural land to the National Register.
Sometime thereafter, Sipple made an application to the Clark County Community
Foundation to secure additional funds to pay for an intern to assist the CCH
Commission with various tasks, including identifying and surveying rural
7
The Surface Mining and Control Act of 1977 requires consideration of a property’s historic
values in determining whether to issue a surface coal mining permit. 30 U.S.C. § 1201.
-17-
properties for possible inclusion on the National Register. Sipple hired Vanessa
Zeoli, a graduate student at the University of Kentucky, for the intern position.
Zeoli began her work by surveying the resources in three watersheds in Clark
County: Boone Creek, Jouett Creek, and Lower Howard’s Creek. Ultimately,
however, Zeoli and Sipple decided Zeoli should concentrate her work on the Upper
Reaches of Boone Creek because the lower and middle parts of that watershed had
already been added to the National Register. Zeoli worked as an intern surveying
the Upper Reaches throughout the summer of 2006.8
After Zeoli completed her internship, she decided that she wanted to
make the Upper Reaches the focus of her master’s thesis in conjunction with her
coursework at the University of Kentucky. Sometime in the fall of 2007, the CCH
Commission and Zeoli agreed that Zeoli would prepare the nomination package for
the Upper Reaches to be included on the National Register. Zeoli was to be
compensated for her work by the CCH Commission;9 however, it appears that
Zeoli worked primarily with Marty Perry, Kentucky’s SHPO, and not with anyone
at the CCH Commission as she prepared the nomination package paperwork.
8
Plaintiffs have alleged that Zeoli trespassed on their property in conjunction with her work in
surveying the Upper Reaches. The trespass claim is still pending before the circuit court, and
nothing in this Opinion should be construed as making any determination with respect to that
claim.
9
With respect to her preparation of the nomination package, Zeoli described herself as a
“freelance employee” of the CCH Commission.
-18-
Zeoli completed the nomination package, and by letter dated August
27, 2008, the Kentucky Heritage Council notified affected property owners that the
Upper Reaches was being considered for inclusion on the National Register. The
letter sent to property owners states:
We are pleased to inform you that the district named
above, which includes your property at ADDRESS,
CITY, STATE, ZIP, as a contributing resource will be
considered by the Kentucky Historic Preservation
Review Board for nomination to the National Register of
Historic Places. You are invited to attend the Review
Board Meeting, which will be held on Wednesday,
August 27, 2008, at 10:00 a.m., central time, at the
Knights of Pythias Hall, South Fifth and Morgan Streets,
Russellville, Kentucky. Enclosed is an information sheet
describing the results of the National Register listing.
You are invited to attend a public meeting to learn about
this process. On Thursday, August 14, 2008, Marty
Perry, the Kentucky Heritage Council’s National Register
Coordinator, will lead a public information meeting at
Boone’s Creek Baptist Church, 185 North Cleveland
Road, Lexington, Kentucky 40509, at 6:30 p.m. He will
answer questions about what the National Register listing
means to property owners.
You are invited to comment in writing on whether your
property should be nominated to the National Register.
If you support the nomination, a written response is not
required. Should you wish to object to the nomination,
you must submit a notarized letter of objection. Please
read the attached information sheet for information to aid
your decision of support for or objection to the
nomination.
Comments must be received before the State Review
Board considers this nomination on August 27, 2008. A
-19-
copy of the nomination and the criteria under which
properties are evaluated are on file in the State Historic
Preservation Office and will be made available upon
request according to 36 CFR 60.6.
If you have any questions, please contact Marty Perry,
National Register Coordinator at (502) 564-7005
extension 132.
Record (“R.”) at 56. General notice was also posted in local newspapers.
The number of property owners was initially determined through
publicly-available tax records. However, Plaintiffs have alleged that certain
irregularities occurred with respect to the number of owners eligible to vote/object.
Plaintiffs maintain that Defendants claimed, without sufficient support, that trusts,
limited liability companies, and corporate entities received only one vote per
parcel, while individual owners (natural persons) each received a vote no matter
how the property was titled to them. Plaintiffs provide the example that a husband
and wife jointly owning a single parcel of property could submit two votes, while a
similarly-situated limited liability company with two or more members received
only one vote. Plaintiffs additionally allege that proponents of the nomination
engaged in “certain chicanery” such as actually purchasing real property owned by
an opponent of the nomination to change that vote. Plaintiffs further allege that the
number of property owners claimed by Defendants continued to fluctuate
throughout the process such that the number of parcels and objections was an ever-
changing and fluctuating target.
-20-
Perry led the August 14, 2008, informational meeting at Boone Creek
Church. Perry explained to the property owners that, unless 50% of the owners
objected by way of written, notarized objection letters, the Upper Reaches would
be listed. Plaintiffs contend that Perry also attempted to discourage owners from
submitting objections by informing them that it would not do any good because the
property would be listed anyway. Perry has denied making such statements.
Following the informational meeting, the nomination of the Upper
Reaches was placed on the agenda for review and a vote at the State Review Board
meeting. The meeting took place in Russellville, Kentucky, which is
approximately three hours from the Upper Reaches. Plaintiffs have alleged that the
meeting was scheduled so far away to dissuade property owners from objection;
Defendants have disavowed any such purpose. A number of property owners
objected at or immediately before the meeting, and the atmosphere grew quite
tense.10 The nomination was passed, and no official action was taken at the
meeting. A second informational meeting was held, and a final State Review
Board meeting to consider the nomination was scheduled for December 9, 2008.
10
Sipple was present at the State Review Board meeting. Plaintiffs have alleged that Sipple
defamed them in conjunction with certain statements she made at the meeting. The defamation
claim is still pending before the circuit court, and nothing in this Opinion should be construed as
making any determination with respect to that claim.
-21-
The second State Review Board meeting did not take place in
December as scheduled because prior to the meeting, on November 26, 2008,
Plaintiffs commenced this litigation by filing a complaint in Fayette Circuit Court.
Plaintiffs alleged that Defendants violated their constitutional rights and committed
other tortious acts in conjunction with their efforts to have Plaintiffs’ property
listed on the National Register.11
Along with their complaint, Plaintiffs filed a motion for a temporary
restraining order and injunction mandating that Defendants cease their efforts and
activities associated with having the Upper Reaches listed on the National
Register. On December 5, 2008, the circuit court issued an order granting
Plaintiffs a temporary restraining order and temporary injunction, which stopped
the December 2008 State Review Board meeting from taking place.
Next, Defendants moved the circuit court to dismiss Plaintiffs’ claims
against them on various grounds. These motions remained pending for a
substantial period of time, during which the case existed in a kind of limbo, with
Plaintiffs seeking to take discovery and Defendants objecting on the basis that
there were motions to dismiss pending before the circuit court with respect to
whether the court had jurisdiction.
11
Harry Enoch was not named as a defendant in the original suit. He was added as a defendant
as part of Plaintiffs’ first amended complaint.
-22-
While the motions to dismiss were pending, the circuit court set aside
the temporary injunction/restraining order it had issued earlier in the case.
Essentially, this allowed the nomination process to move forward. The nomination
was placed on the State Review Board’s agenda for May 12, 2009. Plaintiffs
maintain that objections were submitted at the meeting, and that a clear majority of
the owners had submitted written objections by this date. Plaintiffs further
complain that the list of property owners eligible to vote continued to fluctuate,
and that Defendants’ methods for determining which owners were eligible to vote
and the counting of the objections was arbitrary. On or about June 19, 2009, Perry
and Mark Dennen, the executive director of the Kentucky Heritage Council,
notified the circuit court that the nomination package had been submitted to the
Keeper. However, due to this litigation, the nomination was withdrawn and
returned by the Keeper on or about July 7, 2009. It was ultimately resubmitted a
short time later.
In September of 2009, the circuit court held a hearing on the motions
to dismiss. At the hearing, Plaintiffs pointed to several alleged problems, flaws,
and irregularities with the procedures used by Defendants to notify the property
owners located in the Upper Reaches, to identify and count the property owners, to
determine which property owners were allowed to vote/object, and the location
established by the Kentucky Heritage Commission for review of the nomination by
-23-
the Kentucky Historic Preservation Review Board. The circuit court made various
statements at the hearing regarding the regulations and the process used to
nominate properties to the National Register. However the court expressed doubts
about its jurisdiction. No written order was entered immediately following this
hearing.
By Order entered November 3, 2009, the circuit court dismissed all
Plaintiffs’ claims with prejudice:
[T]he Court having determined that there is nothing
further to be done and that there is a fundamental issue of
jurisdiction, the case is DISMISSED with PREJUDICE.
Nevertheless, the Court expresses due process concern
with respect to the federal regulations as depriving
landowners of property rights “to be left alone” and the
“right not to have your property designated as something
that you object to under the process.” The Court further
states that the process is fundamentally flawed as being
arbitrary and unclear in the manner in which it deals with
objections to listing in a National Register Historic
District and the counting of those objections. Having
found no error with the administration of the regulation
by the Defendants and in light of jurisdictional issues, the
Court hereby dismisses this action with respect to all
Defendants.
R. at 909. Around this same time, on November 27, 2009, the Upper Reaches was
listed on the National Register, following the Keeper’s receipt of the Kentucky
State Review Board’s nomination.
After the circuit court denied Plaintiffs’ motion to alter, amend, or
vacate its order of dismissal, the parties appealed to this Court. Norton v. Perry,
-24-
No. 2009-CA-2343-MR, 2013 WL 310159, at *1 (Ky. App. Jan. 11, 2013)
(ordered not to be published by the Kentucky Supreme Court) (hereinafter referred
to as “Norton I”). Following our review, we held that the circuit court erred in
dismissing the action, reversed the dismissal and remanded the matter to the circuit
court for “appropriate discovery and further proceedings.” Id. at *17. The
Kentucky Supreme Court denied discretionary review.
Following this Court’s remand in Norton I, additional discovery was
taken by the parties, including several depositions. Thereafter, Plaintiffs filed a
motion for partial summary judgment on liability with respect to their due process
claim. On September 13, 2016, the circuit court issued an Opinion and Order
addressing Plaintiffs’ motion. With respect to the due process claim, the circuit
court concluded that it had to grant Plaintiffs’ motion because our holdings in
Norton I conclusively established a due process violation that it was required to
follow based on the law-of-the-case doctrine.
Subsequently, Plaintiffs filed a motion for attorneys’ fees, a motion
for additional recompense for out-of-pocket expenses, and a motion to order
Defendants to take all steps necessary to delist/remove the Upper Reaches from the
National Register.12 The circuit court conducted a hearing on January 30 and 31,
12
Thereafter, this litigation took a short and ill-fated detour when Defendants removed the
matter to federal district court pursuant to 28 U.S.C. § 1441. Norton v. Perry, No. CV 5:16-438-
DCR, 2017 WL 29336, at *1 (E.D. Ky. Jan. 3, 2017). The federal district court remanded the
-25-
2017. At the conclusion of the hearing, the circuit court stated on the record that it
was inclined to award Plaintiffs their attorneys’ fees but not any additional
recompense. It further indicated that as related to due process, it did not believe
Defendants were entitled to immunity from suit. The circuit court requested the
parties to submit findings of fact and conclusions of law memorializing its oral
pronouncements for its consideration. As directed, both sides tendered proposed
findings of fact and conclusions of law.
On May 15, 2017, the circuit court entered an Opinion and Order,
which provides:
This matter is before the Court for entry of appropriate
Orders arising from the hearing conducted on January
30-31, 2017. The Court has received and reviewed the
“competing” Orders submitted by both Plaintiffs’
Counsel and Defendants’ Counsel.
Based upon that review, the Court has determined that
actually both Orders fairly reflect the Court’s oral rulings
at the aforesaid hearings. The Order submitted by
Defendants’ Counsel is a fair recital of the Court’s actual
words (in all of its rambling and colloquialisms to the
embarrassment of the Court) whereas the Order
submitted by Plaintiffs’ Counsel is a fair recital of the
Court’s thinking and oral rulings without the ramblings
and extra verbiage.
Having considered both tendered Orders, it is the Court’s
opinion both Orders should be signed by the Court to
reflect essentially the same result but from slightly
case to the Fayette Circuit Court after determining that it was improperly removed by
Defendants. Id. at *4.
-26-
different perspectives and language. Accordingly, the
Court has signed both tendered Orders and incorporates
them both in this general Order as if set out at length
herein. The Order reflecting the January 23, 2017,
hearing has been signed and will be entered separately.
R. at 3878.
As noted, the court’s order incorporated the two competing orders
tendered by the parties: (1) the May 15, 2017 Findings of Fact and Conclusions of
Law and Order as submitted by Plaintiffs; and (2) the May 15, 2017 Order and
Judgment as submitted by Defendants. R. at 3885-3910. Hereinafter, we will refer
to the three orders as the “Combined General Order of May 15, 2017.” Therein,
the circuit court determined that the law of the case, as established by this Court in
Norton I, dictated a conclusion that Defendants violated Plaintiffs’ due process
rights in conjunction with having the Upper Reaches listed on National Register.
With respect to compensation, the circuit court relied on a section of the NHPA, 54
U.S.C. § 307105,13 to conclude that because Plaintiffs had substantially prevailed
on their due process claims, it had the discretion to award them attorneys’ fees,
expert witness fees, and other costs of participating in the civil action. Citing
Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161 (1946), and other cases along
that vein, the circuit court found that Defendants could not rely on sovereign
immunity to shield them from a suit alleging a violation of Plaintiffs’ due process
13
Formerly cited as 16 USCA § 470w-4.
-27-
rights. Alternatively, the circuit court concluded that an agency’s work in
arranging for state property to be listed on the National Register is not an integral
part of state government that would provide immunity from a due process suit.
The circuit court declined to consider whether Defendants were entitled to
immunity from suit and/or damages with respect to any of Plaintiffs’ other causes
of action.
Also on May 15, 2017, the circuit court entered an order on Plaintiffs’
motion to order delisting and to reinstate the injunction as permanent. That order
provides:
Plaintiffs have moved the Court to enter an order
requiring and directing the Defendants to take all steps
necessary to de-list the property from the National
Register of Historic Places and to reinstate the injunction
as permanent. . . .
IT IS HEREBY ORDERED AND ADJUDGED that
based upon the findings and conclusions of the Court as
set forth on the Record during the hearing which are
incorporated herein, Plaintiffs’ Motion is Sustained and
Defendants are ordered to delist the properties.[14]
Defendants are FURTHER ORDERED to make edits to
the Letter of Transmittal prior to its mailing today as
addressed during the hearing to include something
substantially similar to: “pursuant to the regulation it is
our understanding that the Keeper will respond to our
14
While the circuit court had jurisdiction to order Defendants to petition the Keeper to delist the
Upper Reaches, as explained at the outset of this Opinion, only the Keeper has the authority to
order a property delisted. 36 C.F.R. § 60.15. Since the Keeper was not a party to this action, the
circuit court did not actually have the jurisdiction to order delisting.
-28-
Petition within 45 days. By reason of the foregoing, the
SHPO sees no reason why the subject property should
not be removed from the National Historic Register.”
The Plaintiffs’ request for a permanent injunction is
continued.
R. at 3880-81.
Approximately a month later, the Kentucky SHPO submitted a
petition prepared by Plaintiffs’ counsel to the Keeper requesting removal of the
Upper Reaches from the National Register pursuant to 36 C.F.R. § 60.15(a)(4).
Upon review, the Keeper disagreed with the circuit court’s conclusion, which was
based on this Court’s opinion in Norton I, and denied the petition to delist the
Property from the National Register on March 13, 2017.15
Next, the parties filed a series of motions seeking to alter, amend or
vacate the circuit court’s Combined General Order of May 15, 2017. The circuit
court conducted a hearing as related to the motions. Thereafter, on June 13, 2017,
15
On August 23, 2017, Plaintiffs filed suit in federal district court seeking review of the
Keeper’s denial of the petition to delist the Property under the Administrative Procedure Act
(APA), 5 U.S.C. § 702. See Norton v. Loether, No. CV 5:17-351-DCR, 2018 WL 1352152, at
*2 (E.D. Ky. Mar. 15, 2018). Relying on the state court holdings as articulated by this Court and
the circuit court, Plaintiffs alleged that the process used to include the Upper Reaches violated
their due process rights. Id. at *4. The Keeper moved to dismiss Plaintiffs’ claims pursuant to
Fed. R. Civ. P. 12(b)(6). The federal district court denied the motion to dismiss as related to the
APA and due process claims. Id. The federal litigation is ongoing and is pending before the
federal district court on Plaintiffs’ motion for summary judgment, which was submitted for
decision in November of 2019. See United States District Court for the Eastern District of
Kentucky, Civil Docket No. 5:17-CV-00351-CHB. We take judicial notice of the federal case
for the purpose of providing a complete and accurate summary of the status of the delisting. See
Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 265 (Ky. App. 2005) (taking judicial notice
of federal docket sheets on the federal court’s Public Access to Court Electronic Records
website).
-29-
it entered an order denying all motions to alter, amend, or vacate, and certified that
there was no just reason for delay with respect to the Combined General Order of
May 15, 2017, making it final and appealable pursuant to CR16 54.02. R. at 4024-
25.
These appeals by Defendants and Plaintiffs’ related cross-appeal
followed.
III. SCOPE OF REVIEW
As is apparent from the lengthy procedural history recited above,
these appeals are factually, legally, and procedurally complicated. The litigation
has been ongoing for over a decade; during that time, the case has bounced back
and forth between federal district court, the Fayette Circuit Court, and this Court.
In an effort to achieve resolution, the parties have raised a number of issues for us
to consider as part of these appeals. While we appreciate the parties’ desire to
achieve finality on as many issues and claims as possible, we have an independent
duty to assess jurisdiction for ourselves. See Wilson v. Russell, 162 S.W.3d 911,
913 (Ky. 2005).
Typically, only final judgments are appealable. Under CR 54.01, “[a]
final or appealable judgment is a final order adjudicating all the rights of all the
parties in an action or proceeding[.]” However, pursuant to CR 54.02(1), “[w]hen
16
Kentucky Rules of Civil Procedure.
-30-
more than one claim for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim, or when multiple parties are
involved, the court may grant a final judgment upon one or more but less than all
of the claims or parties only upon a determination that there is no just reason for
delay.” In its June 13, 2017 order the circuit court certified that there was no just
reason for delay making the Combined General Order of May 15, 2017, final and
appealable. R. at 4024-25. In relevant part, the June 13 order provides:
The matters and issues addressed by the Court through
the Order and Judgment entered on May 15, 2017, the
Findings of Fact and Conclusions of Law and Order
entered May 15, 2017, and the Opinion and Order
entered May 15, 2017, and under CR 54.02 are final and
appealable and there is no just cause for delay.
Id.Because the circuit court fully disposed of the due process claim with
respect to all Defendants as part of its Combined General Order of May 15, 2017,
we conclude that its CR 54.02 designation was proper allowing us to review the
circuit court’s summary judgment in favor of Plaintiffs on the due process claim,
including its award of attorneys’ fees and costs and denial of Plaintiffs’ motion for
additional recompense.
Additionally, an immediate appeal lies from the denial of sovereign,
governmental, and/or qualified official immunity, even if the order is interlocutory.
Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009);
-31-
Commonwealth v. Ky. Ret. Sys., 396 S.W.3d 833 (Ky. 2013); Univ. of Louisville v.
Rothstein, 532 S.W.3d 644 (Ky. 2017); Baker v. Fields, 543 S.W.3d 575 (Ky.
2018). However, a trial court’s order is not immediately appealable simply
because immunity is at issue. If the trial court determines that disputed issues of
material fact exist or concludes that additional discovery is necessary to resolve the
immunity question, leaving the question of immunity unresolved, the order is not
immediately appealable. Chen v. Lowe, 521 S.W.3d 587, 590 (Ky. App. 2017).
In this case, with respect to the various immunity issues raised by the
parties, the circuit court concluded that there was no immunity of state actors for
due process violations. As such, the circuit court declined to address any other
issues related to whether the state actors were entitled to immunity from suit and/or
damages with respect to Plaintiffs’ other claims, including Plaintiffs’ claims for
permanent injunctive relief, unconstitutional takings, conversion, trespass, and
defamation. And, in previous orders, the circuit court had in fact stated that there
were disputed issues of fact remaining with respect to the immunity question.
Therefore, at this juncture, we conclude that we have jurisdiction only
to review the circuit court’s denial of immunity with respect to the due process
claim and the judgment finding Defendants jointly and severally liable for
Plaintiffs’ attorneys’ fees and costs and the circuit court’s denial of additional
recompense sought by Plaintiffs. Specifically, we do not have jurisdiction to and
-32-
will not review immunity with respect Plaintiffs’ other claims as the circuit court
has expressly stated that it was reserving judgment on immunity on those claims.
Likewise, we do not have jurisdiction to and will not review decisions that have
not been certified as final and appealable by the circuit court, i.e., decisions not
included as part of the Combined General Order of May 15, 2017.
In Appeal No. 2017-CA-1206, Sipple and Zeoli assert that the circuit
court wrongfully granted summary judgment to Plaintiffs and dismissed Sipple’s
and Zeoli’s abuse-of-process counterclaims against Defendants.17 The circuit
court’s decision granting Plaintiffs’ summary judgment on the abuse-of-process
claims was included in an opinion and order entered on September 13, 2016. That
opinion and order does not contain a CR 54.02 recitation of finality, and the June
13, 2017 Order referenced above does not mention any intent to make the
September 13, 2016 Opinion and Order final and appealable. “If the trial court
grants a final judgment upon one or more but less than all of the claims or parties,
that decision remains interlocutory unless the trial court makes a separate
determination that “there is no just reason for delay.” Watson v. Best Financial
Services, Inc., 245 S.W.3d 722, 726 (Ky. 2008). Since the trial court did not make
a determination that its September 13, 2016 Opinion and Order should be made
17
In 2015, Sipple and Zeoli filed an amended counterclaim asserting abuse of process against
Defendants.
-33-
final and appealable with no just reason for delay, it remains interlocutory, and
beyond our jurisdiction to review at this juncture. The same rationale applies to
any decisions (or lack thereof) made with respect to Sipple and Zeoli’s claims for
indemnification against the University of Kentucky and/or the CCH Commission.18
Dixie Transport Co. v. Reed, 386 S.W.2d 735, 738 (Ky. 1964) (“The question of
what disposition shall be made of Gehring’s cross-claim against Mr. Reed for
indemnity is not before us, because the judgment, which was a partial one under
CR 54.02, did not dispose of the cross-claim.”). For the same reasons, we will also
not entertain Zeoli’s jurisdictional and process-related arguments.19
IV. IMMUNITY
Violations of due process occur only when state action is at issue.
Riley v. Flagstar Bank, FSB, 316 S.W.3d 884, 890 (Ky. App. 2009). Immunizing
the Commonwealth, its agencies, and its actors from suit for a constitutional
violation would allow the government to act without redress, an untenable
18
It does not appear that the circuit court expressly considered and rejected Sipple and Zeoli’s
claims for indemnification from the CCH Commission. While the circuit court did rule on
Zeoli’s claim for indemnification against the University of Kentucky, and dismissed it as party,
the circuit court’s June 2015 amended order of dismissal specifically states that the order “is
interlocutory and non-final.”
19
We note that this Court previously discussed and rejected Zeoli’s jurisdictional challenges in
Norton I. Norton I, 2013 WL 310159, at *10-15. And, with respect to service, the record reveals
that Zeoli was personally served with process in Fayette County when she appeared for her
deposition mooting any issues regarding prior improper service by mail via the Secretary of
State.
-34-
proposition. “The fundamental right of due process cannot be trumped by
sovereign immunity.” Miller v. Administrative Office of Courts, 361 S.W.3d 867,
876 (Ky. 2011). This does not mean, however, that a litigant is entitled to recover
a money judgment from the state based on a due process or other alleged
constitutional violation. Our Supreme Court has held that there is no “tort cause of
action in Kentucky to provide money damages for constitutional violations.” St.
Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 537 (Ky. 2011).20 “Due process
affords only prospective relief against the state.” Miller, 361 S.W.3d at 876.
Based on the above, we agree with the circuit court that Defendants
were not entitled to dismissal of Plaintiffs’ due process claim against them based
on immunity. Our case law is clear that the state, its agencies, and its
officers/employees are not immune from suits alleging violations of constitutional
rights. And, because Kentucky permits only prospective relief against the state
and/or its agencies for due process violations, we need not consider the various
arguments regarding immunity from damages for due process violations.21
20
Obviously, monetary compensation is an appropriate remedy for takings claims since the right
itself is founded on just compensation. See KY. CONST. § 13 or § 242.
21
Additionally, because we have concluded that the circuit court did not have the authority to
award attorneys’ fees and costs pursuant to 54 U.S.C. § 307105, see infra, Section VI p. 46-53,
we need not address whether such an award violates sovereign, governmental or qualified
official capacity immunity.
-35-
V. LIABILITY WITH RESPECT TO PLAINTIFFS’ DUE PROCESS CLAIM
Rather than analyzing whether any of the named Defendants was
individually liable for violating Plaintiffs’ due process rights, the circuit court
concluded that we held in Norton I that “the constitutional rights and due process
rights of Plaintiffs had been violated in this process,” R. at 3901, and then
proceeded to hold the Defendants jointly and severally liable for Plaintiffs’ costs
and attorneys’ fees. Specifically, the circuit court opined that based on the law-of-
the-case doctrine, Defendants’ liability with respect to the due process claim was
conclusively established.
The law-of-the-case doctrine is “an iron rule, universally recognized,
that an opinion or decision of an appellate court in the same cause is the law of the
case for a subsequent trial or appeal however erroneous the opinion or decision
may have been.” B.S.S. v. K.S., 599 S.W.3d 858, 862 (Ky. 2020) (quoting Union
Light, Heat & Power Co. v. Blackwell’s Adm’r, 291 S.W.2d 539, 542 (Ky. 1956)).
“[O]n remand from a higher court a lower court must obey and give effect to the
higher court’s express or necessarily implied holdings and instructions.” Brown v.
Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010). Proper application of the law-
of-the-case doctrine “is a question of law to be reviewed de novo.” University
Medical Center, Inc. v. Beglin, 432 S.W.3d 175, 178 (Ky. App. 2014).
-36-
In St. Clair v. Commonwealth, 455 S.W.3d 869 (Ky. 2015), our
Supreme Court explained:
Under the law-of-the-case doctrine, an appellate court, on
a subsequent appeal, is bound by a prior decision on a
former appeal in the same court. The rule means that
issues decided in earlier appeals should not be revisited
in subsequent ones.
Id. at 887 (citations and internal quotation marks omitted). The law-of-the-case
doctrine “applies to the determination of questions of law and not questions of
fact.” Hardaway Management Co. v. Southerland, 977 S.W.2d 910, 915 (Ky.
1998) (citing Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 1982)).
Whether an issue was conclusively established as part of a prior
appeal, however, necessarily requires consideration of the procedural and
evidentiary posture of the case during the first appeal vis-à-vis the procedural and
evidentiary posture of the case after remand. See Lake v. Smith, 467 S.W.2d 118(Ky. 1971). “Where multiple appeals occur in the course of litigation, the law-of-
the-case doctrine provides that issues decided in earlier appeals should not be
revisited in subsequent ones when the evidence is substantially the same.” Wright
v. Carroll, 452 S.W.3d 127, 130 (Ky. 2014). “The crucial requirement is that the
appellate court enters a final decision on the question rather than merely
commenting on the issue.” H.R. ex rel. Taylor v. Revlett, 998 S.W.2d 778, 780
(Ky. App. 1999).
-37-
Additionally, the doctrine is subject to very limited exceptions. Doyle
v. Doyle, 549 S.W.3d 450, 455 (Ky. 2018) (citing Brown, 313 S.W.3d at 610). The
doctrine is “prudential in nature and serves to direct a court’s decision, not limit its
power.” Doe v. Coleman, 497 S.W.3d 740, 747 (Ky. 2016) (quoting Wright, 452
S.W.3d at 130). It will not be applied when “the former decision [appears] to be
clearly and palpably erroneous.” Blackwell’s Adm’r, 291 S.W.2d at 542.
However, “the mere existence of conflict between the law of a case and other
decisions does not guarantee the application of an exception.” Brooks v.
Lexington-Fayette Urban County Housing Authority, 244 S.W.3d 747, 753 (Ky.
App. 2007). “[T]he appellate court [may] admit and correct an error made in the
previous decision where substantial injustice might otherwise result and the former
decision is clearly and palpably erroneous.” Wilson v. Commonwealth, 975
S.W.2d 901, 904 (Ky. 1998) (quoting Gossett v. Commonwealth, 441 S.W.2d 117,
118 (Ky. 1969)).
To properly consider how the law-of-the-case doctrine applies in this
instance we must consider both (1) this Court’s statements in Norton I; and (2) the
posture of the litigation as it existed at the time we made those statements. We
begin our analysis with the second point, because it is vitally important to consider
our prior statements within the proper procedural context. Norton I came to us
following the circuit court’s dismissal of all Plaintiffs’ claims on jurisdictional
-38-
grounds. Despite dismissing the case with prejudice for lack of jurisdiction, the
circuit court included in its dismissal that it had “concerns” with “respect to the
federal regulations as depriving landowners of property rights ‘to be left alone’ and
the ‘right not to have your property designated as something that you object to
under the process.’” R. at 909. It went on to express similar concerns that the
process established by the federal regulations regarding objections was
“fundamentally flawed as being arbitrary and unclear in the manner in which it
deals with objections to listing in a National Register Historic District and the
counting of those objections.” Id. Additionally, notwithstanding the fact that the
matter was before the circuit court on a motion to dismiss, the circuit court stated
that it “found no error with the administration of the regulations by the
Defendants” and dismissed the action in light of that finding in conjunction with
the jurisdictional issues. Id.Plaintiffs appealed the dismissal to our Court. In their Norton I
appellate brief, Plaintiffs argued that the circuit court wrongly decided the
jurisdictional issues, and dismissal was inappropriate because they had stated
claims on which relief could be granted. They further asked this Court “to affirm
the Trial Court’s findings of fact and conclusion of law with instructions to enforce
its prior rulings that the [Defendants’] actions violate the rights of the [Plaintiffs].”
R. at 1330. This request was somewhat perplexing given Plaintiffs argued the
-39-
appeal in the context of a motion to dismiss standard noting that it was improper in
such a context for the trial court to have given any consideration to whether
Plaintiffs would ultimately prevail on their claims against any Defendants. R. at
1332.
At the outset of Norton I we noted that in addition to requesting that
we reverse the circuit court’s dismissal, Plaintiffs were requesting us to direct the
circuit court “to enter an order that [Defendants] violated [Plaintiffs’] due process
rights in accordance with the trial court’s oral statements at the September 9, 2009,
hearing.” Norton I, 2013 WL 310159, at *1. However, we did not accept this
invitation; instead, after concluding that the trial court wrongly dismissed the
action, we simply reversed the dismissal and remanded the matter to the circuit
court “for further proceedings.”
In our analysis section of Norton I, we summarized Plaintiffs’
arguments as being: “(1) the trial court erred in dismissing the complaint; and (2)
that both the circuit court and this Court have subject matter jurisdiction.” Norton
I, 2013 WL 310159, at *4. We summarized Defendants’ arguments as being:
(1) the applicable standard of review supports the circuit
court’s dismissal of this action; (2) Appellants’ claims
were properly dismissed against all Appellees as barred
by the applicable sovereign, governmental, absolute,
statutory, qualified and/or qualified official immunity; (3)
although the circuit court correctly dismissed the action
for lack of jurisdiction, in the alternative the court had
jurisdiction to dismiss the Appellants’ complaint for
-40-
failure to state claims upon which relief could be granted
since no procedural errors occurred in the nomination or
listing of the Upper Reaches; this action did not involve
an unconstitutional taking and the action did not involve
deprivation of property rights; (4) the circuit court
correctly dismissed this action because it lacked both
subject matter and personal jurisdiction. In support of
this fourth argument, the Appellees contend that: (1) the
circuit court correctly held that it lacked jurisdiction; (2)
Appellants failed to exhaust their administrative
remedies; (3) Appellants’ claims are moot; (4) the case
raises federal issues requiring exclusive jurisdiction of
federal courts; and (5) lack of personal jurisdiction over
Appellees.
Norton I, 2013 WL 310159, at *5.
Considering the two sets of arguments together, we
summarized/condensed the issues before us as falling into four categories:
(1) jurisdictional issues including personal jurisdiction
and subject matter jurisdiction, as well as the concurrent
jurisdiction of state and federal courts to hear their
claims; and whether the doctrines of mootness and failure
to exhaust administrative remedies apply; (2)
constitutional issues including unconstitutional taking
and due process violations, both substantive and
procedurally; (3) governmental immunity; and (4)
common law claims including trespass and defamation.
Id. (emphasis added).
Our analysis and statements with respect to the second category forms
the basis of the present dispute with respect to the law-of-the-case doctrine.
However, one statement we made in analyzing the jurisdictional issue is
profoundly important in understanding our later statements with respect to due
-41-
process. Specifically, in discussing the jurisdictional issues, we noted “if
[Plaintiffs] sought to have a court of this Commonwealth determine if procedural
irregularities occurred in the nomination process in order to provide a ground for
removal when petitioning the Keeper under 36 C.F.R. § 60.15(a)(4), then
exhaustion of administrative remedies would not be required.” Norton I, 2013 WL
310159 at *10.
We began our analysis of Plaintiffs’ due process claim by discussing
the difference between substantive and procedural due process. Id. at *15. We
then stated that:
[W]e agree with the trial court that the process used by
[Defendants] to assess the number of property owners
and the corresponding number of objections is
fundamentally flawed. It is arbitrary and unclear because
there is no fixed time at which the number and names of
the landowners are determined at a reasonable time prior
to the hearing, thus leading to a continual fluctuation in
the number of landowners and required objections.
Id. We also concluded that the regulations as interpreted and applied by the
Keeper were arbitrary insomuch as they did not “enumerate that trusts, estates,
LLCs, and LPs are only entitled to a single vote while, in contrast, a husband and
wife each have a vote regardless of how the title is held.” Id. at *16. Nevertheless,
based on the record before us we agreed with the circuit court that “the
[Defendants] did not misapply the administration of the regulations.” Id. We
concluded our discussion of due process by stating:
-42-
We simply find said regulations to be inadequate by their
failure to address the counting of votes concerning trusts,
estates, LPs, and LLCs and the fixing of a definite time
for designation of the number of parcels of land and the
landowners entitled to participate. Thus, we reverse and
remand this matter for further proceedings.
Id.“[P]rocedural due process, which requires the government to follow
known and established procedures, and not to act arbitrarily or unfairly in
regulating life, liberty or property.” Miller v. Johnson Controls, Inc., 296 S.W.3d
392, 397 (Ky. 2009). Thus, the plain implication of Norton I is that we determined
that the regulations at issue were arbitrary such that they deprived Plaintiffs of
procedural due process. While the matter was before us on a motion to dismiss,
one of Plaintiffs’ claims sought a declaratory judgment that the actions alleged in
their complaint (including application of the federal regulations) constituted
violations of Plaintiffs’ constitutional rights. It is clear that in analyzing whether
the circuit court correctly dismissed that claim, we determined as a matter of law
that the regulations concerning when and how to determine the number of property
owners and the counting of their objections as interpreted by the Keeper and as
applied in this case were arbitrary and capricious.
We agree with Defendants that our prior analysis of the due process
issue was not overly in depth; however, we disagree that our statements concerning
the regulations were mere dicta or not properly before us. We also cannot
-43-
conclude that our holding that the regulations are arbitrary and capricious is so
“clearly and palpably erroneous” that we should not apply the law-of-the-case
doctrine. Wilson, 975 S.W.2d at 904. To this end, we note that at least one other
state court has held the regulations to be violative of due process for similar
reasons as we articulated in Norton I. See Brown v. Parks and Recreation
Department by and through State Historic Preservation Office, 443 P.3d 1170,
1176 (Or. App. 2019).
We do believe the circuit court erred, however, to the extent it
determined that each of the named Defendants was liable for the due process
violation based on the law-of-case doctrine, and to the extent it assessed liability
on each of the Defendants without considering the role each played in interpreting
and administering the regulations with respect to identifying the property owners
and counting their votes.
The regulations are clear that property ownership and objections are to
be determined at the state level by the SHPO in conjunction with a certified state
historic preservation program. The Kentucky Heritage Council was established for
this purpose. See KRS22 171.3801. During the relevant time period, Defendant
Dennen served as the Executive Director of the Kentucky Heritage Council, and
Defendant Perry served as the SHPO. The record irrefutably establishes that they
22
Kentucky Revised Statutes.
-44-
were charged with identifying the property owners, providing notice to the
property owners, calculating the total number of property owners and tabulating
the objections for the purpose of ascertaining whether a majority of the owners had
objected thereby preventing listing on the National Register. The processes these
Defendants employed were in consultation with the Keeper based on the Keeper’s
interpretation of the regulations. To the extent we previously held that the
regulations as applied in this case were violative of Plaintiffs’ due process rights,
these are the Defendants who were directly involved in applying the regulations
related to property owner identification and vote counting at the state level.
Therefore, based on our prior holding, it was not error for the circuit court to
conclude that Plaintiffs’ due process rights at the state level were violated by the
Kentucky Heritage Council, Dennen, and Perry in association with their
application of the regulations as interpreted by the Keeper.23
The same cannot be said for the other Defendants. The sole allegation
against the Clark County Fiscal Court is that it authorized creation of the CCH
Commission. It played no direct role in the nomination process, and it is not
charged with applying the regulations. While the CCH Commission and Sipple
23
As we did in our prior opinion, we reiterate that these Defendants did not do anything outside
of the regulations or the Keeper’s interpretation thereof. The due process conclusion with
respect to the Kentucky Heritage Council, Dennen, and Perry is based entirely on their
application of the regulations and the Keeper’s interpretation of them.
-45-
identified the Upper Reaches for possible inclusion on the National Register and
Sipple oversaw Zeoli’s work in surveying the property, neither the CCH
Commission nor Sipple was involved in administering the regulations concerning
property owner identification and vote counting. Likewise, while Zeoli was
engaged by the CCH Commission to prepare the nomination paperwork, she did
not oversee or direct the notification, and she did not participate directly in the
notification process or the objection counting. Lastly, Plaintiffs’ allegations
against Enoch appear to be based on a letter he sent the Keeper in his personal
capacity urging approval of the nomination and inclusion of the Upper Reaches on
the National Register. Plaintiffs’ Amended Complaint did not allege that Enoch
played any role whatsoever in the actual nomination process and nothing in the
record establishes that he was involved in administering the regulations we found
to be arbitrary and capricious. Accordingly, we reverse the circuit court’s
judgment to the extent it adjudged that the Clark County Fiscal Court, the Clark
County Winchester Heritage Commission, Clare Sipple, Vanessa Zeoli, and Harry
Enoch violated Plaintiffs’ due process rights.
VI. AWARD OF ATTORNEYS’ FEES
We now turn to the circuit court’s award of attorneys’ fees and costs.
“[W]ithout a sound basis in contract or statute, a trial court may not award
attorneys’ fees.” Seeger v. Lanham, 542 S.W.3d 286, 295 (Ky. 2018). The
-46-
attorneys’ fee provision relied on by Plaintiffs, 54 U.S.C. § 307105, is contained in
the NHPA. It provides:
In any civil action brought in any United States district
court by any interested person to enforce this division, if
the person substantially prevails in the action, the court
may award attorney’s fees, expert witness fees, and other
costs of participating in the civil action, as the court
considers reasonable.
54 U.S.C. § 307105.24As a primary matter, Defendants assert that this provision is
inapplicable because this action was not brought “in any United States district
court.” Plaintiffs counter that the federal courts have expanded the statute in such
a way as to include actions initiated in other judicial forums, including state court
actions.
The one case cited by Plaintiffs to support their contention that a state
court has the authority to award attorneys’ fees pursuant to 54 U.S.C. § 307105,
Morris County Trust for Historic Preservation v. Pierce, 730 F.2d 94 (3d Cir.
1983), is inapposite. The issue in Morris County was whether the NHPA’s
attorneys’ fee provision was broad enough to cover “an award of appellate
attorneys’ fees and costs.” Id. at 95. The Third Circuit held that the statute’s
language “merely identifies the action in which fees for services are authorized,
24
Formerly cited as 16 U.S.C. § 470w-4.
-47-
viz., actions initiated in a United States district court.” Id. at 96 (emphasis added).
The Third Circuit explained that it did not believe that Congress intended to
confine awards of attorneys’ fees to fees incurred in federal district court when the
district court action resulted in an appeal. Id. It held that the statute’s language
was broad enough to cover attorneys’ fees incurred on appeal so long as the action
itself began in federal district court, and further that a federal circuit court of
appeals had the authority to award fees for services rendered in that court where
the matter was appealed from federal district court. Id. However, we can find
nothing in Morris County, or any other federal or state court case, to suggest that
Congress intended to permit state courts to award attorneys’ fees under the NHPA,
especially in cases such as this, where the suit was not initiated in federal court in
the first instance.
Because courts “are not at liberty to add or subtract from the
legislative enactment nor discover meaning not reasonably ascertainable from the
language used,” we are bound by the clear language in the statute. Merritt v.
Catholic Health Initiatives, Inc., 612 S.W.3d 822, 829 (Ky. 2020) (quoting Dep’t
of Revenue, Fin. and Admin. Cabinet v. Wyrick, 323 S.W.3d 710, 713 (Ky. 2010)).
The statute at issue plainly states that it applies to “any civil action brought in any
United States district court.” 54 U.S.C. § 307105. Plaintiffs brought this action in
Fayette Circuit Court, a state court; it was decidedly not “brought in any United
-48-
States district court.” Accordingly, we must agree with Defendants that the circuit
court did not have the authority to award attorneys’ fees to Plaintiffs pursuant to 54
U.S.C. § 307105.
Additionally, we conclude that attorneys’ fees would not be available
against these Defendants even if a state court had the ability to award them. The
NHPA is directed at federal agencies. “[I]t provides no toehold to seek redress
against a state agency[.]” Narragansett Indian Tribe by and through Narragansett
Indian Tribal Historic Preservation Office v. Rhode Island Department of
Transportation, 903 F.3d 26, 31 (1st Cir. 2018). For this reason, “[n]on-federal
agencies” are not liable for violations of the NHPA,” and attorneys’ fees cannot be
assessed against state actors and/or agencies pursuant to 54 U.S.C. § 307105.
Preservation Coalition of Erie County v. Federal Transit Admin., 356 F.3d 444,
455 (2d Cir. 2004).
Plaintiffs contend that Preservation Coalition should not apply to this
case because it is undisputed that Defendants actions were taken in concert with
and reliance on the federal regulations and in consultation with the Keeper, a
federal employee. A federal district court considered and then rejected a similar
argument in Old Town Neighborhood Ass’n, Inc. v. Kauffman, No. 1:02 CV 1505
DFH, 2004 WL 2278748, (S.D. Ind. Aug. 20, 2004). The Old Town court
explained:
-49-
Plaintiffs argue that they are the prevailing parties
because they obtained the permanent injunction against
the City and the Indiana Department of Transportation,
and because the injunction prevents the intended swap of
Third Street for U.S. Highway 33 that would have
violated the National Historic Preservation Act (NHPA).
...
The City contends that the NHPA does not authorize a
fee award against state and local defendants, but only
against federal agencies. The Second Circuit recently
agreed with that view in Preservation Coalition of Erie
County v. Federal Transit Admin., 356 F.3d 444, 455 (2d
Cir. 2004) (affirming historic preservation group’s right
to recover fees under NHPA from federal agency, but
vacating fee award against state agencies). This court
agrees, and that findings bars plaintiffs’ fee petition.
Drawing on authority under 42 U.S.C. § 1988, plaintiffs
contend that the City and the Indiana Department of
Transportation should be held liable for fees because
they acted jointly with federal officials to violate the
NHPA. This court has not stated a final conclusion as to
whether such joint action to violate the NHPA occurred
here. However, the Second Circuit faced such joint
action in Preservation Coalition of Erie County, and the
court held squarely that the NHPA authorized a fee
award only against the federal agency. See 356 F.3d at
447-49 (describing joint efforts of federal, state, and local
officials to develop harbor project).
Id. at *6-8 (emphasis added).
Like the Second Circuit, we hold that the attorneys’ fee provision of
the NHPA does not permit the imposition of attorneys’ fees on state actors and
agencies, like those involved in this case. This holding is supported by a long line
of cases recognizing that attorneys’ fee provisions allowing for recovery against
-50-
state and federal agencies/actors are an abrogation of sovereign immunity.
Ardestani v. I.N.S., 502 U.S. 129, 137, 112 S. Ct. 515, 520, 116 L. Ed. 2d 496(1991). “Congress can abrogate state sovereign immunity only when it legislates
to enforce the Fourteenth Amendment.” College Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 671, 119 S. Ct. 2219, 2224, 144
L. Ed. 2d 605 (1999). And, even in such a case, “Congress must make its intention
to alter the constitutional balance between the States and the Federal Government
unmistakably clear in a statute’s language.” Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 58, 109 S. Ct. 2304, 2306, 105 L. Ed. 2d 45 (1989). Although
Plaintiffs’ due process claim arises out of the Fourteenth Amendment, the
attorneys’ fee provision is contained in the NHPA. The NHPA was not enacted to
enforce the Fourteenth Amendment, and it certainly does not contain unmistakably
clear language with respect to allowing the imposition of attorneys’ fees on non-
federal agencies.
In a last-ditch effort to salvage their attorneys’ fee award, Plaintiffs
contend that even if the NHPA’s attorneys’ fee provision is not applicable, we
should affirm the award as a valid exercise of the circuit court’s inherent equitable
authority to provide them a remedy. Without such relief, Plaintiffs maintain any
finding in their favor on their due process claim would be meaningless. We
disagree on both counts.
-51-
“The courts of the Commonwealth were previously empowered to
award attorneys’ fees as an equitable measure, when, within the discretion of the
court, it was deemed appropriate.” Seeger, 542 S.W.3d at 294. This is no longer
the law. In Bell v. Commonwealth, 423 S.W.3d 742, 750 (Ky. 2014), the Kentucky
Supreme Court held that an equitable award of attorneys’ fees was not authorized.
In the absence of a statute or valid contractual provision allowing for the recovery
of attorneys’ fees, a trial court’s authority to impose attorneys’ fees on a party is
limited to situations where the fees are imposed as a sanction for undermining the
court’s authority during the course of the litigation. Id. at 749. “In these instances
where attorney’s fees are appropriate as a sanction, it is not for the benefit of the
individual plaintiff, but because there has been an intrusion on the very power of
the court.” Id.Despite Plaintiffs’ efforts to do so, Bell cannot be distinguished in a
way that would allow the imposition of attorneys’ fees in this case. There is no
contractual provision allowing for attorneys’ fees, and the only statute cited by
Plaintiffs to support imposition of attorneys’ fees, 54 U.S.C. § 307105, is not
applicable where Plaintiffs did not bring suit under the NHPA in a federal district
court and Defendants are not federal actors.
Not all judicial determinations are “predicated on whether associated
future consequential relief may be requested.” University of Kentucky v. Moore,
-52-
599 S.W.3d 798, 812 (Ky. 2019). Even though Plaintiffs are not entitled to either
consequential relief or attorneys’ fees, we cannot agree with them that their success
in proving a due process violation is entirely meaningless. The circuit court
instructed Defendants to petition the Keeper to remove the property based on the
procedural due process violation. Even though the Keeper ultimately decided not
to delist the property, that action completed the administrative review process.
That in turn enabled the Plaintiffs to file suit against the Keeper in federal district
court. This was the process we envisioned and articulated in Norton I. Norton I ,
2013 WL 310159 at *10 (“[I]f [Plaintiffs] sought to have a court of this
Commonwealth determine if procedural irregularities occurred in the nomination
process in order to provide a ground for removal when petitioning the Keeper
under 36 C.F.R. § 60.15(a)(4), then exhaustion of administrative remedies would
not be required.”).
VII. PLAINTIFFS’ CROSS-APPEAL FOR ADDITIONAL RECOMPENSE
Our conclusion that the circuit court was not authorized to award
Plaintiffs attorneys’ fees and costs under the NHPA, essentially moots Plaintiffs’
assignment of error regarding the circuit court’s failure to award them additional
recompense under the NHPA; nevertheless, in the interest of finality, we will
briefly address the cross-appeal.
-53-
The expenses referred to in the NHPA are limited to “paralegal
expenses as well as any other out-of-pocket expenses which would normally be
charged to a fee paying client.” National Tr. for Historic Preservation v. Corps of
Engineers, 570 F. Supp. 465, 469 (S.D. Ohio 1983) (emphasis added). In this case,
Plaintiffs claim additional recompense for the time they personally spent preparing
for and attending meetings and locating other property owners. These are actions
Plaintiffs undertook of their own volition; they are not activities that an attorney
would normally charge to a fee-paying client; therefore, they are not compensable
under the NHPA as an attorney fee, expert witness fee, or cost. See Skehan v.
Board of Trustees of Bloomsburg State College, 436 F. Supp. 657, 667 (M.D. Pa.
1977), aff’d and remanded, 590 F.2d 470 (3d Cir. 1978) (disallowing recovery of
expenses plaintiff incurred while personally aiding his attorneys in the preparation
of his case).
VIII. CONCLUSION
In conclusion, for the reasons set forth above: (1) we affirm the
circuit court’s conclusion that Defendants are not immune from suit with respect to
Plaintiffs’ due process claim; (2) we hold that we lack jurisdiction to consider the
parties’ arguments regarding sovereign, governmental and/or qualified official
immunity with respect to Plaintiffs’ other claims as the circuit court specifically
reserved judgment on Defendants’ immunity defenses with respect to the other
-54-
claims; (3) we affirm the circuit court’s judgment finding the Kentucky Heritage
Council, its director, Mark Dennen, and its National Register Coordinator, Marty
Perry, liable for violating Plaintiffs’ due process rights insomuch as they applied
the regulations and the Keeper’s interpretation thereof at the state level in
conjunction with nominating the Upper Reaches for inclusion on the National
Register, identifying property owners eligible to vote and tabulating the objections;
(4) we reverse the circuit court’s judgment finding the Clark County Fiscal Court,
the Clark County Winchester Heritage Commission, Clare Sipple, Vanessa Zeoli,
and Harry Enoch liable for violating Plaintiffs’ due process rights; (5) we reverse
the circuit court’s award of attorneys’ fees and costs; (6) we affirm the circuit
court’s denial of Plaintiffs’ claim for additional recompense; (7) we hold that we
lack jurisdiction to consider the other assignments of error as those issues were not
contained in the Combined General Order of May 15, 2017, as made final and
appealable with no just reason for delay, by the circuit court’s order of June 13,
2017; and (8) we remand this matter for further proceedings and entry of a
modified judgment in conformance with this Opinion.
ACREE, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN PART, AND DISSENTS
IN PART, AND FILES SEPARATE OPINION.
THOMPSON, K., JUDGE: In general, I concur with the majority
opinion. While I consider it unfortunate that there is no basis upon which the
-55-
circuit court’s substantial award of attorney fees to the prevailing plaintiffs can be
affirmed, I dissent as to the wholesale reversal of costs.
The majority opinion notes that the circuit court awarded attorney
fees, expert witness fees, and other costs pursuant to 54 U.S.C. § 307105. It then
states in section VI “[w]e now turn to the circuit court’s award of attorneys’ fees
and costs” but then proceeds to only address attorney fees in the first sentence of
section VII it concludes “the circuit court was not authorized to award Plaintiffs
attorneys’ fees and costs under NHPA[.]” In section VIII(5) it reverses the award
of attorney fees and costs.
While 54 U.S.C. § 307105 provides for “attorney’s fees, expert
witness fees, and other costs” and I agree it is not applicable here, that does not
mean that there are no mechanisms to recover costs, including nominal amounts
for witnesses, pursuant to our statutes. I believe the majority opinion errs by
failing to address whether costs are otherwise available to the plaintiffs.
KRS 453.040(1)(a) provides in relevant part regarding costs: “The
successful party in any action shall recover his costs, unless otherwise provided by
law.” As stated in KRS 453.050:
The bill of costs of the successful party shall include, in
addition to other costs taxed, the tax on law process and
official seals, all fees of officers with which the party is
chargeable in the case, postage on depositions, the cost of
copy of any pleading or exhibit obtained, the cost of any
copies made exhibits and the allowance to witnesses,
-56-
which the court may by order confine to not more than
two (2) witnesses to any one (1) point.
In Bryan v. CorrectCare-Integrated Health, Inc., 420 S.W.3d 520, 526 (Ky.App.
2013), the Court examined what was intended in KRS 453.050 regarding an
“allowance to witnesses” as basically being a per diem which the trial court had the
discretion to award to more than two witnesses so long as it was calculated with
specificity.
Kentucky Rules of Civil Procedure (CR) 54.04 further clarifies how
and which costs can be recovered:
(1) Costs shall be allowed as of course to the prevailing
party unless the court otherwise directs; but costs
against the Commonwealth, its officers and agencies
shall be imposed only to the extent permitted by law.
In the event of a partial judgment or a judgment in
which neither party prevails entirely against the other,
costs shall be borne as directed by the trial court.
(2) A party entitled to recover costs shall prepare and
serve upon the party liable therefor a bill itemizing
the costs incurred by him in the action, including
filing fees, fees incident to service of process and
summoning of witnesses, jury fees, warning order
attorney, and guardian ad litem fees, costs of the
originals of any depositions (whether taken
stenographically or by other than stenographic
means), fees for extraordinary services ordered to be
paid by the court, and such other costs as are
ordinarily recoverable by the successful party. If
within five days after such service no exceptions to
the bill are served on the prevailing party, the clerk
shall endorse on the face of the judgment the total
amount of costs recoverable as a part of the judgment.
-57-
Exceptions shall be heard and resolved by the trial
court in the form of a supplemental judgment.
The circuit court ruled that the Plaintiffs substantially prevailed and,
so, it was entitled to award costs of the type listed in KRS 453.050 and CR 54.04.25
This could include the per diem type expenses of witnesses. It would be
appropriate to vacate the circuit court’s cost award of $13,465.43 pursuant to 54
U.S.C. § 307105 and instruct the circuit court to consider what costs may properly
be awarded under Kentucky law. I express no opinion as to whether the previous
award amount was appropriate or should be higher or lower.
Accordingly, I concur in part and dissent in part.
25
I note that pursuant to KRS 453.060 as the prevailing parties below, the circuit court could
award the Plaintiffs’ attorney fees of $5.00.
-58-
BRIEF FOR APPELLANTS/CROSS- BRIEF FOR APPELLEES/CROSS-
APPELLEES CLARE ZIPPLE AND APPELLANTS:
VANESSA ZEOLI:
Carroll M. Redford, III
W. Henry Grady IV Elizabeth C. Woodford
Versailles, Kentucky Lexington, Kentucky
Randal A. Strobol BRIEF FOR APPELLEE THE
Louisville, Kentucky UNIVERSITY OF KENTUCKY:
BRIEF FOR APPELLANTS/CROSS- Joshua M. Salsburey
APPELLEES CLARK COUNTY- Donald M. Morgan
WINCHESTER HERITAGE William E. Thro
COMMISSION AND HARRY Lexington, Kentucky
ENOCH:
Erica K. Mack
Lexington, Kentucky
BRIEF FOR APPELLANT/CROSS-
APPELLEE CLARK COUNTY
FISCAL COURT:
Bruce E. Smith
Harry E. Smith
Nicholasville, Kentucky
Brian N. Thomas
Winchester, Kentucky
BRIEF FOR APPELLANTS/CROSS-
APPELLEES KENTUCKY
HERITAGE COUNCIL, MARTY
PERRY, AND MARK DENNEN:
William H. Adams II
Jean W. Bird
Lexington, Kentucky
-59-