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Hornsby v. Housing Authority of Dry Ridge

Court of Appeals of Kentucky

December 14, 2018

CHASITY HORNSBY; AND M.H., B.H. AND H.H, MINOR CHILDREN, THROUGH THEIR MOTHER APPELLANTS
v.
HOUSING AUTHORITY OF DRY RIDGE APPELLEE

          ON DISCRETIONARY REVIEW FROM GRANT CIRCUIT COURT HONORABLE R. LESLIE KNIGHT, JUDGE ACTION NO. 17-XX-00001

          BRIEFS FOR APPELLANT: Peter C. Nienaber Terry M. Cannon Covington, Kentucky

          BRIEF FOR APPELLEE: Peter W. Whaley Williamstown, Kentucky

          BEFORE: ACREE, DIXON, AND THOMPSON, JUDGES.

          OPINION REVERSING AND REMANDING

          DIXON, JUDGE

         This Court granted Appellants', Chasity Hornsby, M.H., B.H., and H.H. (collectively "Hornsby"), motion for discretionary review of an order of the Grant Circuit Court affirming the Grant District Court's order of eviction. For the reasons set forth herein, we reverse the trial court and remand this matter for further proceedings.

         On December 28, 2016, Appellee, the Dry Ridge Housing Authority, filed a forcible detainer complaint against Hornsby in the Grant District Court. The complaint made a number of allegations that Hornsby had breached her lease agreement. The complaint was prepared and signed by Dione Kinman, Executive Director of the Housing Authority.

         On January 10, 2017, the district court held a forcible detainer hearing. Both Hornsby and Kinman appeared. At the beginning of the hearing, Hornsby requested that the action be dismissed because Kinman, who is not an attorney, was appearing for the Housing Authority. [1] Kinman responded, "we're a housing authority, we're allowed."[2] The district court denied Hornsby's request and the hearing proceeded. Kinman then testified and provided documentary evidence regarding the allegations in the complaint. In addition, two other housing authority employees testified, both corroborating the allegations contained in the complaint. At the close of the hearing, the district court found that Hornsby had violated the lease in multiple respects and entered a judgment granting the eviction.

         On January 17, 2017, Hornsby filed a notice of appeal in the Grant Circuit Court. Hornsby thereafter filed a statement of appeal arguing that the district court's judgment should be vacated because Kinman engaged in the unauthorized practice of law by filing the forcible detainer complaint and representing the Housing Authority in her role as Executive Director despite not having a law license. The Housing Authority, through counsel, filed a counterstatement. On March 27, 2017, the circuit court entered an order affirming the district court. Therein, the circuit court found that "KRS 80.050 specifically vests the power to 'sue and be sued' to the . . . housing authority. Therefore, Dione Kinman was not engaged in the unauthorized practice of law." The circuit court also affirmed the district court on other grounds not challenged herein. Hornsby then filed a motion for discretionary review in this Court, which was granted by order entered September 25, 2017.

         We note that during pendency of the appellate process, Hornsby vacated the premises. Arguably, the issue presented herein could be regarded as moot and, in fact, the Housing Authority filed a motion in this Court to dismiss on such grounds. Nonetheless, we are persuaded by the language of our Supreme Court's recent opinion in Shinkle v. Turner,

As we noted in Morgan v. Getter, "The general rule is . . . that 'where, pending an appeal, an event occurs which makes a determination of the question unnecessary or which would render the judgment that might be pronounced ineffectual, the appeal should be dismissed.'" 441 S.W.3d 94, 99 (Ky. 2014) (citations omitted). As methodically explained in Morgan, we recognize and may apply a "public interest" exception to that general rule when the following three elements are present: (1) a question of law that is of a public nature; (2) a need for an authoritative determination for the future guidance of public officers; and (3) a likelihood of future recurrence of the question. Id. at 102.
All three of those are elements present in this matter. First, the proper and efficient application of the law pertaining to the special statutory proceeding for forcible entry and detainer is a matter of public interest. . . . Second, the statutory process for the adjudication of forcible entry and detainer cases is difficult to apply in the modem court system. The dearth of reported appellate opinions addressing those difficulties leaves our district courts to improvise on their own with little guidance from the appellate courts, leading to inconsistent application of the same statutory standards. Third, the factual situation presented by this case is a recurrent event in modern life that very often arises under circumstances in which appellate review is highly unlikely. Consequently, we are satisfied that all three elements of the "public interest" exception to the mootness doctrine are present here, and our duty lies in resolving the issue for the benefit of those whose lives and property are affected by it.

496 S.W.3d 418, 420-21 (Ky. 2016).

         Shinkle concerned the general statutory scheme governing forcible detainer actions set forth in KRS 383.200-.285. However, we believe that the issue of whether a housing authority's executive director can act as the legal representative in a forcible detainer action also satisfies the elements of the "public interest" exception to the mootness doctrine and thus, "our duty lies in resolving the ...


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