Opinion
NO. 2012-CA-001324-MR
07-05-2013
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLANT v. WILL MCGINNIS APPELLEE
BRIEF FOR APPELLANT: Michael S. Cravens Lexington, Kentucky Glenda H. George Lexington, Kentucky Michael Keith Horn Lexington, Kentucky BRIEF FOR APPELLEE: Will McGinnis, pro se Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 12-CI-01526
OPINION
AFFIRMING IN PART
AND VACATING IN PART
BEFORE: COMBS, MAZE AND NICKELL, JUDGES. MAZE, JUDGE: The appellant, the Lexington-Fayette Urban County Government (LFUCG), appeals a decision of the Fayette Circuit Court. LFUCG avers that the circuit court erred in failing to find that the appellee, Will McGinnis, raised claims that are barred by res judicata. We agree with the circuit court's ruling on this issue. But since the other issues were decided in LFUCG's favor and not preserved in a cross-appeal by McGinnis, the circuit court's decision on this issue would not affect the outcome of this case. LFUCG further argues that the circuit court's order discussing the constitutionality of a proposed amendment to the ordinance is an improper advisory opinion. We agree with LFUCG that this matter is purely hypothetical and was not ripe for adjudication. Hence, we affirm in part and vacate in part.
McGinnis owns and operates a taxicab in Fayette County. In 2002, the General Assembly enacted Kentucky Revised Statute(s) (KRS) 281.910, which authorized the regulation of local taxicab companies. The General Assembly also enacted KRS 281.914, which states:
If the Transportation Cabinet grants a local government regulatory authority over taxicabs under KRS 281.910, the local government shall grant an existing certificate holder a local taxicab permit for the number of vehicles the certificate holder has in effect on the date the local government is granted regulatory authority, provided the vehicles meet the safety requirements outlined in KRS 281.912. Renewal of the permit shall be subject to the local ordinance passed pursuant to KRS 281.910.
LFUCG enacted a new ordinance, Section 18A-3 of the Code of Ordinances, which requires a minimum fleet requirement of twenty-five taxicabs. Pursuant to the requirement of KRS 281.914, McGinnis was grandfathered in and received a permit for his single cab.
In 2005, McGinnis sought to increase the size of his fleet and requested permission to increase his fleet one or two at a time. Attorneys representing LFUCG advised McGinnis that he could not add taxicabs to his fleet one at a time without jeopardizing the loss of his existing permit. In other words, he could operate his single cab, or he could operate under the new ordinance and maintain a fleet of twenty-five cabs or more. McGinnis could not, however, increase his fleet one at a time.
In 2006, McGinnis filed a complaint in the Fayette Circuit Court against LFUCG and LFUCG attorneys that advised him regarding the permit requirements. McGinnis alleged they acted negligently and in bad faith by interpreting the ordinance in a way that was unconstitutional. The circuit court dismissed the cause of action finding that the attorneys were immune. The court also noted that the attorneys correctly interpreted the ordinance. McGinnis filed a motion to reconsider and the circuit court denied the motion finding that the ordinance prevents him from growing his fleet one or two cabs at a time. McGinnis appealed and this court affirmed the dismissal determining that, even if they were not immune, the attorneys properly interpreted the statute and did not act negligently or in bad faith. McGinnis v. LFUCG, 2007 WL 1378447 (Ky. App. 2007).
Five years later, on March 29, 2012, McGinnis filed a second lawsuit against LFUCG. In the second complaint, McGinnis alleged that the ordinance is unconstitutional and sought a declaratory judgment addressing the following questions: (1) whether the taxicab ordinance prevents him from growing his company to a number less than twenty-five; (2) whether a grandfathered company must comply with the twenty-five cab fleet requirement; (3) whether the twenty-five taxicab fleet requirement is constitutional; and (4) whether it would be considered special legislation for the LFUCG to amend the ordinance to allow companies with existing permits to increase their fleets by one or two cabs at a time.
McGinnis sought summary judgment focusing his argument on the unconstitutionality of the ordinance and reemphasizing his desire for the court to issue an opinion on his proffered hypothetical ordinance. LFUCG responded asserting that McGinnis's second lawsuit was barred by res judicata, and even if it was not, the ordinance is constitutional. The circuit court determined that the action was not barred by res judicata, but determined that the ordinance was constitutional, and if the hypothetical provision was added, the ordinance would not be considered "special legislation." This appeal followed, and LFUCG avers once again that the claims are barred by res judicata, that the statute is constitutional, and that the court's opinion regarding the hypothetical ordinance was an improper advisory opinion.
Kentucky Rule(s) of Civil Procedure (CR) 56.03 instructs that summary judgment is proper when "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." "An appellate court need not defer to the trial court's decision and will review the issue de novo." Price v. Yellow Cab Co., 365 S.W.3d 588, 591 (Ky. App. 2012).
LFUCG first argues that McGinnis's actions seeking an interpretation of the ordinance and his challenge to the constitutionality of the ordinance were barred by the doctrine of res judicata. The trial court found that res judicata did not bar these claims, but ultimately found in favor of LFUCG on these issues. Furthermore, McGinnis has not filed a cross-appeal challenging the trial court's rulings on these issues. Thus, even if we found for LFUCG on the issue of res judicata, reversal on that ground would be no effect or benefit to LFUCG. Nevertheless, we agree with the trial court's conclusion that res judicata did not bar McGinnis's claims regarding the interpretation and constitutionality of the ordinance. The doctrine of res judicata provides that an existing final judgment rendered upon the merits is conclusive of causes of action and of facts or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. Yeoman v. Commonwealth, 983 S.W.2d 459, 464 (Ky. 1998). However, any discussion of issues which were not necessary to the holding of the prior action is dicta and is not binding on a subsequent court. See H.R. ex rel. Taylor v. Revlett, 998 S.W.2d 778 (Ky. App. 1999).
The prior action turned on the issues of McGinnis's standing to assert professional negligence claims against LFUCG's attorneys and their immunity from liability for negligence arising out of the performance of their official duties. Once the trial court found for LFUCG on these issues and this Court affirmed those holdings, no other issues remained before the court. Therefore, any additional discussion of these issues in the prior action did not bar McGinnis from bringing his current action.
Thus, the only remaining issue preserved for appeal concerns the court's decision regarding the hypothetical ordinance. McGinnis sought declaratory judgment from the circuit court and asked them to determine if a change in the ordinance would amount to "special legislation" and be unconstitutional. Essentially, McGinnis seeks an addition to the ordinance that would allow individuals who were grandfathered in with a fleet less than twenty-five to increase their fleet piecemeal without meeting the minimum fleet requirement.
However, the amendment proposed by McGinnis has never been adopted or even submitted for adoption. Questions that may never arise or are purely advisory or hypothetical do not establish a justiciable controversy. Because an unripe claim is not justiciable, the circuit court has no subject matter jurisdiction over it. Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 269 (Ky. App. 2005). In the absence of an actual case or controversy, the trial court lacked jurisdiction to give an advisory opinion about the constitutionality of a proposed amendment to the ordinance. Therefore, the trial court's ruling on this issue must be set aside.
For the foregoing reasons, the judgment of the Fayette Circuit Court is vacated as it relates to the hypothetical ordinance. In all other respects, the judgment is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Michael S. Cravens
Lexington, Kentucky
Glenda H. George
Lexington, Kentucky
Michael Keith Horn
Lexington, Kentucky
BRIEF FOR APPELLEE: Will McGinnis, pro se
Lexington, Kentucky