REVIEW FROM COURT OF APPEALS CASE NO. 2013-CA-001188-MR SCOTT
CIRCUIT COURT NO. 12-CI-00538
COUNSEL FOR APPELLANTS KEN ISAACS AND ANNETA CORNETT: W.
Henry Graddy IV Dorothy Thomps Rush W.H. Graddy &
Associates Randal Alan Strobo Strobo Barkley, PLLC.
COUNSEL FOR APPELLEES JEFF CALDWELL; GREG HAMPTON; JANET
HOLLAND; ROB JONES; JIMMY RICHARDSON; JOHN SHIRLEY; MELISSA
WAITE; FRANK WISEMAN; AND HORACE WYNN, MEMBERS OF
GEORGETOWN-SCOTT COUNTY PLANNING COMMISSION: Charles Perkins.
COUNSEL FOR APPELLEE TOWN AND COUNTRY BANK: R. Bruce Lankford
Lankford & Lankford.
COUNSEL FOR APPELLEE JOHN TACKETT: Harold F. Simms.
Ken Isaacs and Annetta Cornett, appeal from a decision of the
Court of Appeals which affirmed the order of the Scott
Circuit Court dismissing their appeal of a Georgetown-Scott
County Planning Commission (Planning Commission) decision.
The Planning Commission had approved a plat amendment
requested by developer John Tackett to remove a planned, but
as yet unconstructed, lake from the development plan
applicable to Appellants' subdivision. Appellants sought
judicial review of the Commission's action by filing an
appeal in the Scott Circuit Court.
circuit court dismissed the appeal after concluding that it
lacked jurisdiction over the matter because Appellants had
not properly commenced their action within the applicable
statutory time period. The Court of Appeals affirmed the
circuit court's order of dismissal. We granted
discretionary review. For the reasons stated below, we affirm
the Court of Appeals.
FACTUAL AND PROCEDURAL BACKGROUND
are property owners in Harbor Village Subdivision in Scott
County, Kentucky. On June 14, 2012, the Planning Commission
approved the application of Harbor Village's developer,
John Tackett, to amend the subdivision development, plat so
that he could eliminate a proposed lake featured on the
current development plat. Appellants opposed the amendment of
the plat upon the grounds that they had purchased their
property in the subdivision relying upon the enhanced
aesthetic and economic value that would be provided by the
lake. Town and Country Bank (the Bank) owns the property upon
which the lake was to be situated and is therefore a
necessary party to the appeal. KRS 100.347(4) states:
"The owner of the subject property and applicants who
initiated the proceeding shall be made parties to the
had until July 16, 2012, to appeal the Commission's
decision by initiating an action for judicial review in the
circuit court. On that afternoon shortly before closing
time, in the office of the Scott Circuit Court Clerk,
Appellants' counsel filed a pleading titled, "Appeal
from Decisions of Scott County Planning Commission" (the
Appeal), naming in the caption as "Defendants/Appellees,
" Tackett, the Bank, and the Planning Commission and its
and the Planning Commission had executed a waiver of formal
service of process, which Appellants' counsel filed along
with the appeal. The Bank, however, had not waived service of
process and so Appellants presented the circuit clerk's
office with a summons form for the Bank. The summons form
correctly styled the case with the names of the parties, but
it did not indicate the name and address of the Bank's
agent for service of process, and it did not provide the
Bank's street address.
with his customary practice, Appellants' counsel
requested the deputy clerk on duty to formally issue the
summons and return it to him so that he could arrange to have
it served, either by delivering the summons himself or having
it done by the sheriff or an authorized
constable. That plan went awry when the deputy clerk
refused to issue the summons without having the Bank's
address and service of process information added to it.
Counsel did not have that information with him, although it
was available at his office, which was a short
he disagreed with the deputy clerk's interpretation of
her duty regarding the need to fill in the Bank's address
before issuing the summons, rather than retrieving the
information at his office while the clerk waited, possibly
past the clerk's office's usual closing time, the
attorney left the clerk's office with the summons
unissued. He walked to the office of the Bank's attorney
to hand-deliver a copy of the Appeal, hoping to secure the
Bank's waiver of service of process. The office of the
Bank's attorney had already closed for the day.
Consequently, the Appeal was filed in the final few minutes
of the limitations period', but the summons for the Bank
was not issued by the clerk.
next day, one day after the filing deadline, counsel returned
to the clerk's office where a different deputy clerk
issued the summons for the Bank as originally tendered by
counsel, without the Bank's address or its registered
agent information. Pursuant to counsel's directive, the
clerk returned the summons form to counsel as provided by CR
4.01(c). Counsel again visited the Bank's attorney hoping
to have him either accept service of process on behalf of the
Bank or waive service of process. The Bank declined.
three weeks later, Tackett moved for dismissal of the action,
asserting that the circuit court lacked jurisdiction over the
case because the Bank, a statutorily-required party, had not
been properly included in the action within the applicable
limitations period. Appellants' counsel had retained a
constable to serve the summons on the Bank. The constable
proceeded to attempt service of the summons and the initial
pleading (the Appeal) by handing it to a Bank teller who was
not the Bank's registered agent for service of
Bank then entered a special appearance to challenge the
circuit court's jurisdiction to proceed in the absence of
valid service on the Bank. After an evidentiary hearing on
the motions of the Bank and Tackett to dismiss, the circuit
court concluded that it lacked jurisdiction because
Appellants had not strictly complied with the provisions of
KRS 100.347 by taking their appeal within the
statutorily-allotted time period.
to the circuit court's analysis was its application of
Civil Rule 3.01, which states: "A civil action is
commenced by the filing of a complaint with the court and the
issuance of a summons or warning order thereon in good
faith." The circuit court reasoned that the action was
not timely commenced because, although the Appeal was filed
within the allotted time period, counsel's failure to
diligently effectuate service of the summons on the Bank, an
indispensable parly, established that the Bank's summons
was not issued in good faith. Consequently, the court
determined, the action was not commenced before expiration of
the statutory limitations period, leaving the court without
jurisdiction to grant relief to Appellants. A divided Court
of Appeals affirmed the circuit court's decision.