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Commonwealth v. Harmon

Court of Appeals of Kentucky

May 10, 2019

COMMONWEALTH OF KENTUCKY, ENERGY AND ENVIRONMENT CABINET, DEPARTMENT FOR NATURAL RESOURCES APPELLANT APPEAL FROM PIKE CIRCUIT COURT
v.
HAROLD AND DORIS HARMON; RONALD ADKINS; BEVERLY ADKINS; HAROLD DEAN THACKER; GLORIA THACKER; ERVIN THACKER; KATHY THACKER; DONNIE ROWE; DONNA ROWE; KENNETH SHADRICK; CAROLYN SHADRICK; JOHN JONES; BETTY JONES; DONNA RODRIGUEZ; RONNIE G. THACKER; TERESA THACKER; BONNIE THACKER; LESTER "BO" SAYERS; EARL MEADOWS; BARBARA MEADOWS; JIMMY ONEY; WILMA ONEY; SHARON KEEN; PHILLIP R. SPEARS; BEATRICE G. SPEARS; HAROLD DWAYNE THACKER; FREDA THACKER; LARRY BLAIR; MARSHA BLAIR; WANDA THACKER; THOMAS G. THACKER; JOEY DAMRON; CLEARCY JANE DAMRON; LARRY A. EPLING; KATHY G. EPLING; TROY DAMRON; JOYCE DAMRON; ANDY THACKER; IRIS THACKER;MARVIN SELLARDS; ROBERT CAUDILL; JANIE CAUDILL; RONALD RAY BLAIR; ELIZABETH BLAIR; PHILLIP THACKER; GEORGE JUSTICE; LORI JUSTICE; LARRY CRAIG RAY; DONNA RAY; MARTHA ADKINS; LONNIE MATNEY; RHONDA MATNEY; J.D. ADKINS; BERTHA ADKINS; JAMES WAYNE BLACKBURN; RITA BLACKBURN; GAYNELL MEADOWS; ELIZABETH SELLARDS; TERRY RAYE ADKINS; CARTER BLANKENSHIP; BETTY BLANKENSHIP; CHRISTOPHER ROBINETTE; ELSTER GENE MORTON; STEVE ADKINS; TAMMY ADKINS; SHARON GALE JUSTICE; ROBERT FARMER; BRENDA FARMER; SHERRY JUSTICE;SHIRLEY THACKER; MICHAEL DAMRON; CINDY DAMRON; MICHAEL RILEY; DIANA RILEY; MIKE RYAN; BEVERLY RYAN; THOMAS THACKER; INGRID THACKER; MICHAEL BRANDON SPEARS; SHERRY SPEARS; AGNES BEECHIE; LENA RAE ROWE; SHARON KEEN AS ADMINISTRATRIX OF THE ESTATE OF EMIT THACKER, MYRNA L. SPEARS; LAYTON SAWYERS, JR.; TERRY RILEY; MARY RILEY; RONNIE D. THACKER; RUTH ANN THACKER; PATRICIA THACKER; GERALD MARTIN; GLADYS MARTIN; BETHANY L. STEPHENS; PATSY HILTON; JUDY IRICK; FRED BLAIR; DARYL DENISE TAYLOR; BEVERLY MEADE; DOUGLAS SAYERS; VICTORIA SAYERS; ERVIN FARMER; CHARLEEN FARMER; BRITTANY JUSTICE; RANDALL HILL; WENDELL ROWE; NORMA ROWE; BRIAN BLANKENSHIP; JESSICA BLANKENSHIP; NADINE MCCOY; STEPHEN COLEMAN; GARY A. SPEARS; KATHY SPEARS; DEWEY MCCOY; GEORGE KENNETH MCCOY, JR.; TIMOTHY MCCOY; TAMMY THACKER; DONALD HAMILTON; ANITA HAMILTON; JOYCE ANN BLANKENSHIP; AND LILLIAN DAMRON APPELLEES

          APPEAL FROM PIKE CIRCUIT COURT HONORABLE STEVEN D. COMBS, JUDGE ACTION NO. 15-CI-01190

          BRIEFS AND ORAL ARGUMENT FOR APPELLANT: Lance C. Huffman Frankfort, Kentucky

          BRIEF FOR APPELLEES: Joe F. Childers Bethany Baxter Lexington, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEES: Ned Pillersdorf Prestonsburg, Kentucky

          BEFORE: ACREE, MAZE, AND NICKELL, JUDGES.

          OPINION

          ACREE, JUDGE.

         The Kentucky Board of Claims[1] dismissed the Appellees' tort claims against the Energy and Environment Cabinet, Department of Natural Resources (the Cabinet) as barred by the one-year limitation contained in KRS[2] 44.110. The Pike Circuit Court reversed the Board's decision, finding the Appellees' claims were properly before the Board because of Kentucky's "savings statute," KRS 413.270, and remanded the case to the Board for appropriate proceedings. We reverse the circuit court and reinstate the Board's order dismissing.

         FACTS AND PROCEDURE

         Appellees are residents of the Harless Creek community of Pike County, Kentucky. On July 17, 2010, that community experienced torrential rainfall and flooding. The flood caused Appellees significant losses of personal and real property.

         Around the time of the flood, a mining company was operating in the Harless Creek watershed above Appellees' homes. Appellees filed suit against the mining company alleging the mining company's failure to undertake proper reclamation above and around the Harless Creek community contributed to the flooding and resulting damage. Adkins Plaintiffs v. Stapleton, No. 2015-CA-001248-MR, 2017 WL 2332686, at *1 (Ky. App. May 26, 2017). The complaint was later amended to add the individual mining inspectors as defendants. Id. at *2.

         On May 31, 2012, after resolving their claims against the mining company, Appellees filed suit in circuit court against the Cabinet seeking monetary damages and a writ of mandamus. They alleged the Cabinet's failure to enforce applicable mining laws at a nearby surface mine contributed to, and played a substantial role in, causing the property damage they suffered in the 2010 flood. After mediation, the parties reached an agreement regarding the mandamus action.

         The Cabinet then moved to dismiss the damages claim. One ground for the Cabinet's motion was governmental immunity. The circuit court denied the motion and the Cabinet appealed.

         By opinion rendered October 4, 2013, this Court reversed the circuit court, finding the Cabinet was engaged in a governmental function, entitling it to governmental immunity. Dep't of Nat. Resources, Kentucky Energy & Envtl. Cabinet v. Adkins, No. 2012-CA-001310-MR, 2013 WL 5524138, at *1 (Ky. App. Oct. 4, 2013). By order entered December 17, 2013, the circuit court dismissed Appellees' complaint, as directed by this Court.

         On March 14 and 17, 2014, Appellees filed negligence claims against the Cabinet in the Board of Claims.[3] The Cabinet moved to dismiss the claims, arguing the Appellees failed to file their claims within the one-year limit set by KRS 44.110. The Board referred the motion to a hearing officer. Citing KRS 413.270 and persuaded by Appellees' interpretation of Nelson County Bd. of Educ. v. Forte, 337 S.W.3d 617 (Ky. 2011), the hearing officer recommended denying the Cabinet's motion because Appellees filed their claims with the Board within ninety days of the circuit court's dismissal. The hearing officer explained:

The Respondent Cabinet's argument that the [Appellees] did not comply with KRS 44.110 statute of limitations in filing with Pike Circuit Court is somewhat bizarre -statutes of limitations in the Board of Claims Act have no bearing on what takes place in Pike Circuit Court. The [Appellees'] Sur-Reply to [the Cabinet's] Reply stated it best: "It defies logic to impose upon [Appellees] the ability to predict that their action in circuit court would be dismissed, that it would then be filed with this Board, and therefore they should have filed their original action using a statute of limitations of an administrative agency who at that time did not have jurisdiction over this case."

(R. 20-21.)

         The Board rejected the recommendation. It reasoned that, for KRS 413.270 to save Appellees' claims, those claims had to be filed in the circuit court within the KRS 44.110 time limit. It further stated:

As the actions in Pike Circuit Court were not filed until May 31, 2012, well beyond one (1) year from the time the claim for relief accrued, which as claimed was on July 17, 2010, the statute asked to be tolled had already expired. . . . To construe that a filing commenced in due time, as provided in KRS 413.270, in any other court beyond any applicable limitations period would permit any potentially time-barred filing to be commenced in circuit court first, regardless of the existence of a jurisdictional question, only to save it from being dismissed for want of timely filing in the Board of Claims.

(R. 26.) The Board found Forte of little value and, instead, relied heavily on cases from ...


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