FROM JEFFERSON CIRCUIT COURT HONORABLE ANGELA MCCORMICK
BISIG, JUDGE ACTION NO. 16-CI-002850
AND ORAL ARGUMENTS FOR APPELLANT: Timothy McCarthy
FOR APPELLEE: Deborah H. Patterson Amanda Warford Edge
ARGUMENTS FOR APPELLEE: Amanda Warford Edge Louisville,
BEFORE: JOHNSON, JONES, AND KRAMER, JUDGES.
Devon Skeens ("Skeens") appeals from an order of
the Jefferson Circuit Court granting the University of
Louisville's ("Uof L") Motion to Dismiss
pursuant to Kentucky Rules of Civil Procedure
("CR") 12.02 for failure to state a claim upon
which relief can be granted.
case revolves around the question of whether a stepchild
qualifies as a "child" under Kentucky Revised
Statutes ("KRS") 164.2841 which grants "[f]ree
tuition at state-supported school[s] for survivor[s] of
… firefighter[s] killed in [the] line of duty[.]"
Joseph Scott Northup, Sr. ("Northup") was a
firefighter in Jessamine County, Kentucky. Northup married
Skeens's mother in 1997 when Skeens was six years old.
The family lived together in Northup's residence until
Northup's death in 2004 with Northup acting as
Skeens's father throughout this time via providing
emotional and monetary support. Northup claimed Skeens as a
taxable dependent from the time of his 1997 marriage to
Skeens's mother until his death in 2004.
completion of high school, Skeens attended and graduated from
Northern Kentucky University ("NKU"). The Kentucky
Fire Commission determined that Skeens was eligible for a
tuition waiver pursuant to KRS 164.2841. Skeens applied for
the tuition waiver, and the tuition waiver was granted by NKU
for the entire four years he attended that institution. After
graduating, Skeens worked for two years before making the
decision to pursue a law degree. He applied and was accepted
into the law school at Uof L. Uof L, in contrast to NKU,
informed Skeens that his status as Northup's stepchild
precluded him from a tuition waiver pursuant to KRS 164.2841.
Skeens sued Uof L in Jefferson Circuit Court, the court
granted Uof L's Motion to Dismiss, and this appeal
Kentucky Supreme Court has stated the appellate standard of
review in a Motion to Dismiss case such as this is as
A motion to dismiss for failure to state a claim upon which
relief may be granted admits as true the material facts of
the complaint. So a court should not grant such a motion
unless it appears the pleading party would not be entitled to
relief under any set of facts which could be proved . . . .
Stated another way, the court must ask if the facts alleged
in the complaint can be proved, would the plaintiff be
entitled to relief? Since a motion to dismiss for failure to
state a claim upon which relief may be granted is a pure
question of ...