Opinion
NO. 2018-CA-001386-MR
05-15-2020
MARY MCCULLEY APPELLANT v. CITY OF OWENSBORO (ERRONEOUSLY SERVED AND SUED AS DAVIESS COUNTY FISCAL COURT); TOM WATSON, LARRY CONDER, JAY VELOTTA, STEVE LYNN, BOB GLENN, AND PAMELA SMITH-WRIGHT, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE OWENSBORO BOARD OF COMMISSIONERS; OWENSBORO METROPOLITAN PLANNING COMMISSION; LARRY BOS WELL, LARRY MOORE, LEWIS JEAN, FRED REEVES, MIKE EDGE, MANUEL BALL, JOHN KASLAUSKAS, BEVERLY MCENROE, IRVIN RODGERS, AND ANGELA HARDAWAY, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE OWENSBORO METROPOLITAN PLANNING COMMISSION; WBW PROPERTIES, LLC; AND R. DAVID WEAVER APPELLEES
BRIEFS FOR APPELLANT Mary McCulley, Pro Se Owensboro, Kentucky BRIEF FOR APPELLEES, CITY OF OWENSBORO AND OWENSBORO BOARD OF COMMISSIONERS: Stephen C. Pace Owensboro, Kentucky BRIEF FOR APPELLEE, OWENSBORO METROPOLITAN PLANNING COMMISSION: Terra W. Knight Owensboro, Kentucky BRIEF FOR APPELLEES, WBW PROPERTIES, LLC and R. DAVID WEAVER: John David Meyer Owensboro, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 18-CI-00701 OPINION
AFFIRMING
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BEFORE: ACREE, LAMBERT, AND MAZE, JUDGES. LAMBERT, JUDGE: Mary McCulley has appealed from the order of the Daviess Circuit Court dismissing her administrative appeal of a zoning map amendment. We affirm.
McCulley is a resident of Owensboro, Kentucky, and she owns a house on Phillips Court that is on the Historic Register. One of the seven houses on the street was sold in foreclosure in November 2017 and was transferred to WBW Properties, LLC (WBW) in March 2018. WBW, through R. David Weaver, filed an application for a zoning map amendment with the Owensboro Metropolitan Planning Commission (the Planning Commission) seeking to change the zoning from residential to professional/service. McCulley and other residents of the street received notice of the proposed zoning change via registered mail. They appeared at the Planning Commission's April 12, 2018, meeting to voice their concerns, but the Planning Commission recommended granting the amendment by an 8-1 vote. Following that vote, McCulley filed a request for a legislative body to decide the issue pursuant to Kentucky Revised Statutes (KRS) 100.2111(1). The City of Owensboro via the Owensboro Board of Commissioners (collectively, "the City of Owensboro") considered McCulley's request and approved the zoning map amendment at its June 12, 2018, meeting.
On July 11, 2018, McCulley and other homeowners (collectively, "McCulley") filed a complaint with the Daviess Circuit Court seeking judicial review pursuant to KRS 100.347(3). The complaint named Daviess County Fiscal Court as a defendant rather than the City of Owensboro, the legislative body that approved the zoning map amendment. The defendants filed motions to dismiss the complaint pursuant to Kentucky Rules of Civil Procedure (CR) 12.02 for failure to join an indispensable party, namely, the City of Owensboro. CR 19.01 required the City of Owensboro to be joined because it was the legislative body that approved the zoning map amendment, and as such was required to be named in the complaint pursuant to KRS 100.347(3). Because of this failure, the complaint was time barred because it was not filed against the City of Owensboro within the 30-day period for seeking judicial review. We note that in the City of Owensboro's motion to dismiss the complaint, it indicated that the filing of the motion did "not operate as a waiver of improper service upon them, and that the Movants are not waiving their lack of jurisdiction argument by defending against the Plaintiffs' claims."
Daviess County Fiscal Court moved to be dismissed as a party, which the circuit court granted on August 6, 2018. --------
On August 2, 2018, McCulley moved to file an amended complaint, this time naming the City of Owensboro. She later filed a response to the motions to dismiss, conceding that "a mistake was made in misnaming the parties-defendant." However, she argued that they timely filed an amended complaint within twenty days of the filing of the original complaint pursuant to CR 15.01, which cured the deficiency. McCulley also argued that a "misnomer or misidentification" theory applied in this case, as the amended complaint merely corrected the misnomer in the original complaint. In reply, defendants argued that McCulley was statutorily required to properly file her appeal naming the necessary parties within thirty days and therefore did not comply with KRS 100.347. Therefore, the circuit court lacked jurisdiction to hear the case.
The court heard arguments on August 6, 2018, when the parties discussed the jurisdictional issues, including naming the wrong party and problems with service of summons. The court permitted the parties to further brief the issue. After considering these arguments, the circuit court dismissed the complaint with prejudice by order entered August 22, 2018. The court agreed with the defendants that the complaint needed to be filed within 30 days of June 12, 2018, when the City of Owensboro approved the zoning map amendment. McCulley conceded that she had failed to name the correct legislative body. Therefore, the court concluded that McCulley failed to perfect her appeal, and it lacked jurisdiction over the action. The court also held that the amended complaint could not save the case pursuant to CR 15.01 and CR 15.03 because the civil rules do not apply to the appeals of administrative actions until the appeal has been perfected, which is when jurisdiction would attach. Because McCulley failed to perfect her administrative appeal within the 30-day period, the amended complaint could not change the result.
McCulley, at that point proceeding without an attorney, moved to vacate the circuit court's order on September 13, 2018, pursuant to CR 59.05 and CR 60.02, arguing that the City of Owensboro had been put on notice of the action and that her attorney made a mistake with the caption. The next day, September 14, 2018, McCulley filed a motion for a temporary injunction and a notice of appeal from the August 22, 2018, dismissal order. The circuit court denied the motions to vacate and for a temporary injunction by order entered September 20, 2018, stating that it did not have jurisdiction to decide the motions because McCulley had filed a notice of appeal.
On appeal, McCulley argues that the circuit court erred in dismissing her action with prejudice, while the appellees argue that the circuit court lacked jurisdiction to hear her case because McCulley failed to timely perfect her appeal below.
Our standard of review is set forth in Littleton v. Plybon, 395 S.W.3d 505, 507 (Ky. App. 2012):
"It is well settled in this jurisdiction when considering a motion to dismiss under [Kentucky Rules of Civil Procedure (CR) 12.02], that the pleadings should be liberally construed in a light most favorable to the plaintiff and all allegations taken in the complaint to be true." Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007) (citing Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)). "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (citing Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009)).(Footnote omitted.) CR 12.02, in turn, provides:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (a) lack of jurisdiction over the subject matter, (b) lack of jurisdiction over the person, (c) improper venue, (d) insufficiency of process, (e) insufficiency of service of process, (f) failure to state a claim upon which relief can be granted, and (g) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more defenses or objections in a responsive pleading or motion.
The present case turns on whether McCulley timely perfected her action in the circuit court. She brought the action under KRS 100.347, which provides for an appeal from a board of adjustment, planning commission, or legislative body:
(1) Any person or entity claiming to be injured or aggrieved by any final action of the board of adjustment shall appeal from the action to the Circuit Court of the county in which the property, which is the subject of the action of the board of adjustment, lies. Such appeal shall be taken within thirty (30) days after the final action of the board. All final actions which have not been appealed within thirty (30) days shall not be subject to judicial review. The board of adjustment shall be a party in any such appeal filed in the Circuit Court.
(2) Any person or entity claiming to be injured or aggrieved by any final action of the planning commission shall appeal from the final action to the Circuit Court of the county in which the property, which is the subject of the commission's action, lies. Such appeal shall be taken within thirty (30) days after such action. Such action shall not include the commission's recommendations made to other governmental bodies. All final actions which have not been appealed within thirty (30) days shall not be subject to judicial review. Provided, however, any appeal of a planning commission action granting or denying a variance or conditional use permit authorized by KRS 100.203(5) shall be taken pursuant to this subsection. In such case, the thirty (30) day period for taking an appeal begins to run at the time the legislative body grants or denies the map amendment for the same development. The planning commission shall be a party in any such appeal filed in the Circuit Court.
(3) Any person or entity claiming to be injured or aggrieved by any final action of the legislative body of
any city, county, consolidated local government, or urban-county government, relating to a map amendment shall appeal from the action to the Circuit Court of the county in which the property, which is the subject of the map amendment, lies. Such appeal shall be taken within thirty (30) days after the final action of the legislative body. All final actions which have not been appealed within thirty (30) days shall not be subject to judicial review. The legislative body shall be a party in any such appeal filed in the Circuit Court.This action arose under KRS 100.347(3) as the decision at issue was made by a legislative body, the City of Owensboro. That subsection requires any circuit court appeal to be taken within 30 days of the final action by the legislative body and that the legislative body be named.
(4) The owner of the subject property and applicants who initiated the proceeding shall be made parties to the appeal. Other persons speaking at the public hearing are not required to be made parties to such appeal.
(5) For purposes of this chapter, final action shall be deemed to have occurred on the calendar date when the vote is taken to approve or disapprove the matter pending before the body.
Kentucky courts have consistently held that strict compliance is necessary in administrative appeals:
This Court has often emphasized that one seeking review of administrative decisions must strictly follow the applicable procedures. [Burns v. Peavler, 721 S.W.2d 715, 717 (Ky. App. 1986)]; Musser v. Leon Coal Processing Co., Ky.App., 560 S.W.2d 833 (1978) [overruled on other grounds by Fiscal Court of Jefferson County v. Don Ridge Land Developing Co., Inc., 669
S.W.2d 922 (Ky. 1984)]. Since an appeal from an administrative decision is a matter of legislative grace and not a right, the failure to follow the statutory guidelines for an appeal is fatal. The cases interpreting KRS 100.347 are clear that aggrieved parties must bring their grievances to the appropriate appeals panel, administrative or judicial, in a timely fashion.Taylor v. Duke, 896 S.W.2d 618, 621 (Ky. App. 1995). The Supreme Court previously held:
There is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy.Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978) (citing Kentucky Utilities Co. v. Farmers Rural Electric Corporative Cooperation, 361 S.W.2d 300 (Ky. 1962); Roberts v. Watts, 258 S.W.2d 513 (Ky. 1953)). The Court went on to state:
It is as plain as a billboard that the legislature has granted to persons aggrieved by the final action of the board of adjustments the grace of appeal to the circuit court provided they perfect that appeal by filing it in the circuit court, including the planning commission as a party, within thirty days. Here the appeal was filed within the thirty-day limitation, but no effort was made to include the Commission as a party until sixty-eight days after the final action of the Board. Consequently, one of the conditions precedent to the exercise of judicial power by the circuit court was not met and it was required to
dismiss the appeal for want of jurisdiction. Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corporation, supra. Cf. City of Danville v. Wilson, Ky., 395 S.W.2d 583 (1965); Howell v. Haney, Ky., 330 S.W.2d 941 (1960).Flood, 581 S.W.2d at 2.
McCulley relies upon the Supreme Court of Kentucky's opinion in Isaacs v. Caldwell, 530 S.W.3d 449 (Ky. 2017), to argue that she had filed the complaint within the requisite time period. However, Isaacs had more to do with the issuance of summons and supports the circuit court's decision. The Court stated:
[W]e acknowledge the authority of the General Assembly to prescribe by statute the procedures for seeking and securing judicial review of an administrative ruling. Out of deference to that authority, we require strict compliance with the statutory procedures. Triad Development/Alta Glyne, Inc. v. Gellhaus, 150 S.W.3d 43, 47 (Ky. 2004) ("[W]hen the right of appeal [from an administrative agency's ruling] . . . is codified as a statutory procedure, as it is in KRS 100.347, then the parties are required to strictly follow those procedures.").Isaacs, 530 S.W.3d at 453.
Turning back to the present case, we must hold that, while the judicial action was filed within 30 days, McCulley failed to strictly comply with KRS 100.347(3) by naming the City of Owensboro as she was statutorily required to do. This is fatal to her circuit court action, and the circuit court had no choice but to dismiss her case as a matter of law.
We also agree that CR 15 cannot save McCulley's action because "[t]he civil rules do not apply in this type of litigation until after the appeal has been perfected." Flood, 581 S.W.2d at 2. Nor do we find any merit in McCulley's argument that the mistake in failing to name the City of Owensboro was merely a misnomer and that her amended complaint should permit relation back. Finally, we disagree that the City of Owensboro waived any jurisdictional defect by appearing before the circuit court. It specifically provided notice in its motion to dismiss that it was not waiving any jurisdictional or service challenge. This final argument was raised in McCulley's reply brief and is the subject of a motion to strike by the City of Owensboro that was passed to the merits panel to decide. Based upon our holding, we shall deny this motion by separate order entered this day.
For the foregoing reasons, the order of the Daviess Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT Mary McCulley, Pro Se
Owensboro, Kentucky BRIEF FOR APPELLEES, CITY OF
OWENSBORO AND OWENSBORO
BOARD OF COMMISSIONERS: Stephen C. Pace
Owensboro, Kentucky BRIEF FOR APPELLEE,
OWENSBORO METROPOLITAN
PLANNING COMMISSION: Terra W. Knight
Owensboro, Kentucky BRIEF FOR APPELLEES, WBW
PROPERTIES, LLC and R. DAVID
WEAVER: John David Meyer
Owensboro, Kentucky