APPEAL FROM JESSAMINE CIRCUIT COURT HONORABLE C. HUNTER DAUGHERTY, JUDGE ACTION NO. 10-CI-00421
The opinion of the court was delivered by: Nickell, Judge:
RENDERED: JANUARY 11, 2013; 10:00 A.M.
BEFORE: COMBS, MOORE, AND NICKELL, JUDGES.
Hal Snowden, Jr. appeals from three orders of the Jessamine Circuit Court denying a motion to recuse the trial judge, dismissing his complaint with prejudice, and denying a motion to reconsider the dismissal. The crux of this appeal is whether the City of Wilmore ("City"), through its City Attorney, Robert L. Gullette, Jr., or its Mayor, Harold L. Rainwater, promised to amend its planned unit development (PUD) regulations in exchange for Snowden's dismissal of two pending lawsuits. Snowden claims Gullette made oral representations to him binding the City to not only refer a PUD amendment to the Jessamine County/City of Wilmore Joint Planning Commission ("Commission") for consideration and a recommendation, but to fully support and pass the amendment regardless of the Commission's recommendation. As it happened, the City referred Snowden's proposed amendment to the Commission; Snowden signed agreed orders dismissing the pending litigation; and upon receiving a negative recommendation from the Commission, the City rejected Snowden's proposed amendment, thereby thwarting his plan to develop a "New Urbanism" residential community.*fn1
Snowden now claims the City breached its agreement with him and seeks compensatory and punitive damages as well as passage of the amendment. Having reviewed the record, the law and the briefs, we affirm.
Snowden owns a parcel of land in Jessamine County named Roseglade Farm. In the 1990's, the land was annexed by the City and rezoned for residential use but never developed. Now, to develop the property as he envisions, Snowden needs the City to amend its zoning ordinance to allow use of the "New Urbanism" design concept.
The owners of Forest Creek, a nearby piece of unincorporated Jessamine
County property, also plan on developing a residential community along
with a golf course but no other commercial ventures. Forest Creek was
situated about a mile outside the City limits and therefore was not
contiguous. Since a city may annex only contiguous land,*fn2
Snowden believes the City set about annexing a narrow
mile-long corridor of useless property from landowners who favored the
Forest Creek development just to achieve contiguity and permit the
streamlined annexation process described in KRS 81A.412.*fn3 The
City annexed the now-contiguous Forest Creek in January of
Snowden filed lawsuits against the City and its officials in 2006 and
again in 2007 challenging the annexation of Forest Creek.*fn4
Both lawsuits were dismissed with prejudice on February 6,
2009, pursuant to two agreed orders executed by Snowden; his attorney,
John Reynolds; Gullette, on behalf of the City; the attorney for the
Commission; and, the attorney for Forest Creek, LLC and Kelley
Upon learning the City would not adopt his proposed PUD amendment, Snowden filed a complaint against the City, its officers and Gullette alleging breach of contract and several torts. After the trial court granted the City's/Gullette's motion to dismiss, Snowden filed this appeal claiming he was duped into dismissing the pending litigation because the City never intended to amend its PUD ordinance. The specific questions before us are whether the trial court properly dismissed the current complaint upon finding there was no written contract obliging the City to amend its PUD ordinance, and whether the trial court should have recused from the case due to a professional relationship with Gullette.
The records of the 2006 and 2007 litigation are not before us and no discovery has occurred. Therefore, our recitation of the facts is taken from the pleadings filed in this case, four hearings and the appellate briefs. We rely heavily upon Snowden's complaint alleging that in February 2007, Gullette, on behalf of the City, attempted to settle the dispute with Snowden over the annexation of Forest Creek without success. A few months later, in June 2007, Gullette again tried to settle the dispute-this time approaching Snowden on behalf of the owners of Forest Creek. Snowden alleged that after lengthy talks with Gullette, it was agreed that: (a) Snowden would not oppose the Forest Creek development; (b) Snowden would develop Roseglade Farm without opposition from Forest Creek and with the City's support; and (c) "in exchange, Snowden would dismiss both the 2006 Litigation and the 2007 Litigation." The complaint further alleged:
At all relevant times, Defendant Gullette was representing and acting on behalf of both Forest Creek and the governmental-related Defendants in the 2006 Litigation and the 2007 Litigation, and he further represented to Snowden and his counsel that Snowden would have the unanimous support of the Defendants for the PUD Amendment (as defined herein).
In August 2007, Snowden and the Forest Creek developers executed a written settlement agreement contingent upon Snowden reaching a separate settlement agreement with the City regarding the pending lawsuits. The City was not a party to Snowden's agreement with Forest Creek and Gullette maintained a separate settlement agreement between Snowden and the City was necessary, but no formal contract was ever executed. Based upon Gullette's oral representations alone, Snowden arranged for a development plan to be drawn for Roseglade Farm and an amendment to the City's PUD ordinance to be drafted.*fn5
According to the complaint, on January 9, 2009, Gullette met with Snowden and his attorney and Gullette represented to Snowden, in order to induce Snowden to dismiss the 2006 Litigation and 2007 Litigation, that [the City], the Council and the Councilmembers would effectuate the passage of an amendment to the [City] Zoning Ordinance that would permit Planned Unit Development such that Roseglade Farm could be developed as previously agreed (the "PUD Amendment"). Such representations were made by Gullette both in his capacity as counsel for and on behalf of and as agent for [the City], the Council and the Councilmembers.
At this point, Snowden had nothing in writing from the City, only alleged oral representations from Gullette, and there is no evidence or suggestion that Snowden had spoken directly to Mayor Rainwater, the council as a whole, or any of the councilmembers*fn6 to get a commitment to pass the PUD amendment from any of them.
Thereafter, a series of four letters was written by various authors to different recipients that Snowden maintains constituted an agreement between himself and the City in which the City agreed to pass the PUD amendment and then failed to do so. He argues these four letters contained an offer and acceptance, partial performance by the City and full performance by Snowden. Being integral to this appeal, we set forth the text of each letter in full, separated by our comments about its import.
Mr. Peter Beatty, Chairman Joint Planning Commission North Main Street Nicholasville, Ky. 40356 IN RE: Proposed Amendment to Wilmore Zoning Ordinance for New Urbanism Development within P.U.D.
The Wilmore City Council has taken official action this date to request that the Jessamine County/City of Wilmore Joint Planning Commission consider the attached draft legislation as an amendment to the Wilmore Zoning Ordinance. This proposed amendment is intended to allow for "New Urbanism" development within the City's existing
I would appreciate it if you could set this matter for a public hearing during the March, 2009 regular meeting of the Planning Commission. At the conclusion of the Commission's consideration of this proposed amendment, please forward a ...