ENERGY AND ENVIRONMENT CABINET; AND CHARLES G. SNAVELY, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE ENERGY AND ENVIRONMENT CABINET APPELLANTS
CONCERNED CITIZENS OF ESTILL COUNTY, INC.; TOM BONNY; AND ROBERT W. SHAFFER APPELLEE
FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP J. SHEPHERD,
JUDGE ACTION NO. 16-CI-00974
AND ORAL ARGUMENT FOR APPELLANT: Timothy J. Mayer Daniel
Clark Cleveland Frankfort, Kentucky
AND ORAL ARGUMENT FOR APPELLEE: Mary Varson Cromer
BEFORE: ACREE, COMBS AND MAZE, JUDGES.
OPINION AND ORDER
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.
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).
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
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.
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.
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.
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
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.
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
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 ...