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Energy and Environment Cabinet v. Concerned Citizens of Estill County, Inc.

Court of Appeals of Kentucky

April 26, 2019

ENERGY AND ENVIRONMENT CABINET; AND CHARLES G. SNAVELY, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE ENERGY AND ENVIRONMENT CABINET APPELLANTS
v.
CONCERNED CITIZENS OF ESTILL COUNTY, INC.; TOM BONNY; AND ROBERT W. SHAFFER APPELLEE

          APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 16-CI-00974

          BRIEF AND ORAL ARGUMENT FOR APPELLANT: Timothy J. Mayer Daniel Clark Cleveland Frankfort, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEE: Mary Varson Cromer Whitesburg, Kentucky

          BEFORE: ACREE, COMBS AND MAZE, JUDGES.

          OPINION AND ORDER

          MAZE, JUDGE

         The Commonwealth of Kentucky, Energy and Environmental Protection Cabinet (EEC) appeals from an order of the Franklin Circuit Court which granted summary judgment to Concerned Citizens of Estill County, Inc. (CCEC) on its Open Records Act claims. Because we conclude that the orders appealed were not final and appealable, we are compelled to dismiss the appeal.

         The relevant facts of this matter are as follows. CCEC sought records from several state agencies, including the EEC, regarding a notice of violation issued to a landfill in Estill County. The EEC denied the request, stating that the records were still preliminary. CCEC filed two separate actions with the Office of the Attorney General (OAG), seeking review of those denials. In August 2016, the OAG issued two opinions upholding the EEC's denial of the requests because the actions against the landfill were still pending. Ky. Op. Att'y Gen. 16-ORD-180 (2016) and Ky. Op. Att'y Gen. 16-ORD-180 (2016).

         Thereafter, on September 13, 2016, CCEC filed an appeal from these opinions pursuant to KRS 61.882. By amended complaints, CCEC added claims for attorney fees and costs pursuant to KRS[1] 61.882(5). In a second amended complaint filed on May 10, 2017, CCEC brought an additional claim challenging the EEC's denial of a subsequent request for records.

         After some narrowing of the issues, the matter proceeded to cross-motions for summary judgment. In an opinion and order entered on November 6, 2017, the circuit court granted CCEC's motion for summary judgment and ordered the EEC to produce the disputed records. Thereafter, the EEC filed a "Motion for Clarification," noting that the trial court was unclear which records were to be produced and when it would be required to produce them. In an order entered on November 20, 2017, the trial court specified that the EEC was required to produce the disputed records by November 29, 2017. On November 27, CCEC filed a motion and supporting affidavit for attorney fees and costs. The EEC filed its notice of appeal the following day, November 28, 2017.

         As an initial matter, CCEC moves to dismiss the EEC's appeal as being taken from a non-final order. CCEC notes that the circuit court did not designate November 6 or November 20 orders as final and appealable. Furthermore, CCEC notes that its claim for attorney fees and costs was still pending at the time the EEC filed its notice of appeal. In the absence of a finality recitation, CCEC argues that the EEC's appeal is not taken from a final and appealable order.

         The EEC first responds that CCEC's motion for attorney fees was filed more than ten days after the November 6 order, leaving the circuit court without jurisdiction to rule on the question. However, the EEC's "Motion for Clarification" dated November 15, 2017, was essentially a motion to alter, amend or vacate a judgment pursuant to CR[2] 59.05. Even if the November 6 order was final and appealable, the EEC's filing of the motion stayed finality until the motion was ruled upon. Guillion v. Guillion, 163 S.W.3d 888, 891 (Ky. 2005) (citing Kurtsinger v. Bd. of Trustees of Ky. Ret. Sys., 90 S.W.3d 454 (Ky. 2002)). Thus, finality did not attach until the court entered the November 20 order. CCEC's November 27 motion for attorney fees and costs would have been timely.

         Moreover, we disagree with the EEC that the November 6 or the November 20 orders were final. Although the circuit court orally stated that it believed those orders to be final, it is well-established that the court speaks through its "written orders entered upon the official record." Oakley v. Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012) (citing Kindred Nursing Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010)). Even though the circuit court may have believed those orders resolved all pending issues, its written orders do not reflect that understanding.

         Rather, this Court must determine on its own whether the order appealed from lacks finality. Francis v. Crounse Corp., 98 S.W.3d 62, 64 (Ky. App. 2002) (citing Huff v. Wood Mosaic Corp., 454 S.W.2d 705, 706 (Ky. 1970)). CR 54.01 defines a final and appealable order as one which adjudicates the rights of all of the parties. As pertinent here, CR 54.02(1) provides that:

When more than one claim for relief is presented in an action, . . . the court may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay. The judgment shall recite such determination and shall recite that the judgment is final. In the absence of such recital, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is ...

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