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Isaacs v. Caldwell

Supreme Court of Kentucky

November 2, 2017

KEN ISAACS AND ANNETTA CORNETT APPELLANTS
v.
JEFF CALDWELL, GREG HAMPTON, JANET HOLLAND, ROB JONES, JIMMY RICHARDSON, JOHN SHIRLEY, MELISSA WAITE, FRANK WISEMAN, HORACE WYNN, GEORGETOWN-SCOTT COUNTY PLANNING COMMISSION MEMBERS; TOWN AND COUNTRY BANK; AND JOHN TACKETT APPELLEES

         ON 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.

          OPINION

          VENTERS JUSTICE.

         Appellants, Ken Isaacs and Annetta Cornett, appeal from a decision of the Court of Appeals which affirmed the order of the Scott Circuit Court dismissing their appeal of a Georgetown-Scott County Planning Commission (Planning Commission) decision. The Planning Commission had approved a plat amendment requested by developer John Tackett to remove a planned, but as yet unconstructed, lake from the development plan applicable to Appellants' subdivision. Appellants sought judicial review of the Commission's action by filing an appeal in the Scott Circuit Court.

         The 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Appellants are property owners in Harbor Village Subdivision in Scott County, Kentucky. On June 14, 2012, the Planning Commission approved the application of Harbor Village's developer, John Tackett, to amend the subdivision development, plat so that he could eliminate a proposed lake featured on the current development plat. Appellants opposed the amendment 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 appeal."

         Appellants had until July 16, 2012, to appeal the Commission's decision by initiating an action for judicial review in the circuit court.[1] 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 individual members.[2]

         Tackett 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.

         Consistent 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.[3] 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 walking-distance away.

         Although 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.

         The 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.

         About 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 process.[4]

         The 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.

         Central 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.

         II. ...


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