Nathan Torian, Individually, and as a Representative of a Class of Similarly Situated Persons Comprising the Unincorporated Labor Organization, the International Association of Fire Fighters, Local 168 v. City of Paducah, Kentucky

RENDERED: JULY 28, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1071-MR
NATHAN TORIAN, INDIVIDUALLY,
AND AS A REPRESENTATIVE OF A
CLASS OF SIMILARLY SITUATED
PERSONS COMPRISING THE
UNINCORPORATED LABOR
ORGANIZATION, THE
INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, LOCAL 168 APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE WILLIAM ANTHONY KITCHEN, JUDGE
ACTION NO. 21-CI-00490
CITY OF PADUCAH, KY; CAROL C.
GAULT, IN HER OFFICIAL
CAPACITY AS CITY
COMMISSIONER; DAVID GUESS, IN
HIS OFFICIAL CAPACITY AS CITY
COMMISSIONER; GEORGE P.
BRAY, IN HIS OFFICIAL CAPACITY
AS MAYOR, PADUCAH, KY;
PADUCAH CITY COMMISSION;
RAYNARLDO HENDERSON, IN HIS
OFFICIAL CAPACITY AS CITY
COMMISSIONER; SANDRA
WILSON, IN HER OFFICIAL
CAPACITY AS CITY
COMMISSIONER AND MAYOR
PRO-TEM; AND STEVE KYLE, IN
HIS OFFICIAL CAPACITY AS FIRE
CHIEF APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; GOODWINE AND TAYLOR,
JUDGES.
THOMPSON, CHIEF JUDGE: Nathan Torian, individually, and as a
representative of a class of similarly situated persons comprising the
unincorporated labor organization, the International Association of Fire Fighters,
Local 168 (“Appellant”), appeals from an order of the McCracken Circuit Court
granting summary judgment in favor of City of Paducah, et al. (“Appellees”).
Appellant argues that the circuit court erred in failing to conclude that Kentucky
Revised Statutes (“KRS”) 311A.027(1) preempts a local ordinance requiring
Paducah firefighters to live in McCracken County or within 45 minutes of Station
4. After careful review, we find no error and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
Paducah Ordinance §2-304 (“the ordinance”) requires that as a
condition of their employment, all members of the City of Paducah fire department
hired after October 1, 1998, shall reside within McCracken County or within 45
minutes of Station 4 as measured by a recognized mapping program. Appellant is
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a City of Paducah firefighter and representative of the International Association of
Fire Fighters, Local 168.
On July 2, 2021, Appellant filed the instant action in McCracken
Circuit Court against Appellees, i.e., the City of Paducah, the Mayor, various
Commissioners, and the Fire Chief, seeking a declaration of rights and an
injunction barring enforcement of the ordinance. Specifically, Appellant asserted
that KRS 311A.027(1), which provides that no “emergency medical service first
response provider” may have an employee residency requirement, preempts the
ordinance establishing a residency requirement for Paducah fire department
employees. Appellant argued that City of Paducah firefighters qualify as
employees of an emergency medical service first response provider because the
firefighters are required to be certified and/or licensed by the Kentucky Board of
Emergency Medical Services as emergency medical services personnel. Being so
qualified, Appellant argued that KRS 311A.027(1) preempts the ordinance.
The matter proceeded in McCracken Circuit Court, and Appellees
filed a motion for summary judgment on September 10, 2021. On August 22,
2022, the McCracken Circuit Court entered an order granting Appellees’ motion.
In support of the order, the circuit court determined that KRS Chapter 311A, titled
“Emergency Medical Services,” deals entirely – and exclusively – with emergency
medical services. The court found that City of Paducah firefighters are not
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emergency medical services personnel subject to KRS Chapter 311A. Rather, the
court determined that City of Paducah firefighters’ primary role is fighting fires,
with any medical training or certification being ancillary to their primary duties.
The court went on to find that the statutory requirements governing fire
departments and firefighters are found exclusively in KRS Chapter 95, titled “City
Police and Fire Departments.” This Chapter, the court found, contains no
prohibition against residency requirements for police officers or firefighters. The
court rejected Appellant’s argument that City of Paducah firefighters fall within the
class of persons subject to KRS Chapter 311A, and sustained Appellees’ motion
for summary judgment. This appeal followed.
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, of any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Kentucky Rules of Civil Procedure (“CR”) 56.03. “The record must be
viewed in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary
judgment should be granted only if it appears impossible that the nonmoving party
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will be able to produce evidence at trial warranting a judgment in his favor. Id.“Even though a trial court may believe the party opposing the motion may not
succeed at trial, it should not render a summary judgment if there is any issue of
material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
ARGUMENTS AND ANALYSIS
Appellant now argues that the McCracken Circuit Court erred in
granting Appellees’ motion for summary judgment. While acknowledging that the
phrase “publicly funded emergency medical service first response provider” is not
defined in KRS Chapter 311A, Appellant asserts that the Paducah Fire Department
is such a provider because every Paducah firefighter is required to have some level
of medical training and/or certification. Since, in his view, the Paducah Fire
Department is subject to KRS 311A.027(1) as a medical service first response
provider, it follows that the statute’s language barring residency requirements
preempts the residency requirements for firefighters set out in the ordinance.
Appellant argues that the circuit court improperly interpreted KRS 311A.027(1) by
implicitly adding limiting language not found in the statute. Instead, Appellant
contends that the court should have interpreted the statutory language on its plain
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terms, and found that the Paducah Fire Department is a medical service first
response provider subject to the terms of KRS Chapter 311A. Appellant requests
an opinion reversing the order on appeal and remanding the matter for further
proceedings.
KRS 311.027 states,
(1) No public agency, tax district, or other publicly
funded emergency medical service first response
provider or licensed ambulance service shall have a
residence requirement for an employee of or volunteer
for the organization.
(2) The provisions of subsection (1) of this section shall
not preclude an employer or agency specified in
subsection (1) of this section from having a requirement
for response to a specified location within a specified
time limit for an employee or volunteer who is off duty
but who is on call to respond for work.
The first question for our consideration is whether the McCracken
Circuit Court properly determined that the Paducah Fire Department is not a
“public agency, tax district, or other publicly funded emergency medical service
first response provider or licensed ambulance service[.]” Id. The parties agree that
the Paducah Fire Department is not a public agency, tax district, or licensed
ambulance service. As to whether the Paducah Fire Department is a “publicly
funded emergency medical service response provider,” we find persuasive the
circuit court’s reasoning that the primary duty of Paducah firefighters is not
emergency medical service, but rather fighting fires. This conclusion is supported
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by the record. While testimony was adduced that many runs made by Paducah
firefighters involve automobile accidents or other incidents involving personal
injury, and though Paducah firefighters have some level of medical training or
certification in addition to their firefighting training, the record supports the circuit
court’s conclusion that the Paducah Fire Department is a firefighting department
and not a medical service response provider per KRSA 311A.027(1). This
conclusion is bolstered by the Legislature’s enactment of KRS Chapter 95, titled
“City Police and Fire Departments,” which contains no prohibition against
residency requirements for fire departments.
The second issue raised by Appellant is whether Paducah firefighters
are “on call to respond for work” within the meaning of KRS 311A.027(2). As
noted above, this subsection provides that the prohibition against residency
requirements for employees or volunteers of an emergency medical service does
not apply to employees or volunteers who are on call to respond to work while off
duty. Appellant argues that Paducah firefighters are not on call to respond to work
while off duty; therefore, they are not persons excluded from KRS 311A.027(1) by
subsection (2).
In its order granting summary judgment, the McCracken Circuit Court
expressly determined that it would not consider this issue because the Paducah Fire
Department was not subject to the provisions of KRS 311A.027(1). “The Court of
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Appeals is without authority to review issues not raised in or decided by the trial
court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989)
(citations omitted). Though the issue of Paducah firefighters’ on call status was
raised and extensively argued below, but the circuit court did not decide this issue
because it was rendered moot when the court found that Paducah firefighters were
not subject to KRS 311A.027(1). Per Tackett, this leaves us nothing to review on
this issue.
Lastly, Appellant argues that the circuit court erred in allowing
Appellees to amend their Answer after the summary judgment motion was briefed.
Appellant contends that this amendment occurred too late in the proceedings and
constituted an abuse of discretion.
CR 15.01 states,
A party may amend his pleading once as a matter of
course at any time before a responsive pleading is served
or, if the pleading is one to which no responsive pleading
is permitted and the action has not been placed upon the
trial calendar, he may so amend it at any time within 20
days after it is served. Otherwise a party may amend his
pleading only by leave of court or by written consent of
the adverse party; and leave shall be freely given when
justice so requires.
“The trial court has a broad discretion in granting leave to amend, but the
discretion is not without limitations.” Lawrence v. Marks, 355 S.W.2d 162, 164
(Ky. 1961). The party seeking amendment must act in good faith and the court
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should consider the motion’s “timeliness, excuse for delay, and prejudice to the
oppos[ing] party.” Id. Discretion allows a court “to make a decision – of its
choosing – that falls within a range of permissible decisions.” Miller v. Eldridge,
146 S.W.3d 909, 915 (Ky. 2004) (internal quotation marks, footnote, and citation
omitted) (emphasis in original). An abuse of discretion occurs if the trial court’s
ruling is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The order granting Appellees’ motion to amend their Answer was
entered on January 26, 2022. Subsequent pleadings filed by both parties centered
on the question of whether the Amended Answer withdrew Appellees’ prior
alleged judicial admission that Paducah firefighters were subject to voluntary,
rather than mandatory, call backs per KRS 311A.027(2). Having determined that
the application of KRS 311A.027(2) is moot, we conclude that the McCracken
Circuit Court did not abuse its discretion in granting leave to file an Amended
Answer. In other words, while the Amended Answer may have raised a new issue
on the question of call backs, that issue became moot when the circuit court later
determined that KRS 311A.027(1) did not apply to Paducah firefighters. The
filing of the Amended Answer did not prejudice Appellant. We find no basis for
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concluding that the McCracken Circuit Court abused its discretion in granting
leave to file an Amended Answer, and thus no error.1
CONCLUSION
When viewing the record in a light most favorable to Appellant and
resolving all doubts in his favor, Steelvest, Inc., supra, we conclude that the trial
court correctly found that there were no genuine issues as to any material fact and
that Appellees were entitled to judgment as a matter of law. Scifres, supra. For
these reasons, we affirm the order of the McCracken Circuit Court.
GOODWINE, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Peter J. Jannace Stacey A. Blankenship
Louisville, Kentucky Kristen N. Worak
Paducah, Kentucky
1
Appellant also seeks to rebut an argument raised by Appellees before the circuit court, to wit,
that Appellant’s interpretation of KRS 311A.027(1) would lead to an absurd result. This
argument was not addressed by the McCracken Circuit Court in its order granting summary
judgment.
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