Opinion
NO. 2016-CA-001020-MR NO. 2016-CA-001099-MR
10-05-2018
CHARLES MOSLEY & ROSEMARY MOSLEY APPELLANTS/CROSS-APPELLEES v. ALBEY BROCK & BRUCE NUNN APPELLEES/CROSS-APPELLANTS
BRIEFS FOR APPELLANTS/CROSS- APPELLEES: R. Aaron Hostettler London, Kentucky BRIEFS FOR APPELLEES/CROSS- APPELLANTS: Martha L. Brown London, Kentucky
NOT TO BE PUBLISHED APPEAL & CROSS-APPEAL FROM BELL CIRCUIT COURT
HONORABLE ROBERT V. COSTANZO, JUDGE
ACTION NO. 12-CI-00022 OPINION
AFFIRMING IN PART, REVERSING IN PART, & REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; JONES AND J. LAMBERT, JUDGES. JONES, JUDGE: At the heart of this case is a road in Bell County. As part of a previous appeal, this Court determined that the road in question was a private drive and, therefore, had been improperly classified as a county road. Thereafter, Appellants, Charles and Rosemary Mosley, brought claims against Appellees, Albey Brock and Bruce Nunn, for trespass to real property, trespass to chattel, outrage, malicious prosecution, wrongful use of civil proceedings, and punitive damages. The circuit court granted summary judgment in favor of Appellees as to the malicious prosecution and wrongful use of civil proceedings claims; summary judgment was denied as to all other claims against Appellees. Following the circuit court's designation of its partial grant of summary judgment as a final and appealable order, Appellants appealed to this Court. Appellees bring a cross-appeal, pursuant to Breathitt Cty. Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009), challenging the circuit court's determination that they are not immune from suit under the doctrine of qualified immunity. Following a review of the record and applicable legal authority, we affirm in part, reverse in part, and remand.
I. BACKGROUND
Charles and Rosemary Mosley (the "Mosleys") own a piece of real property located at 34 Charles Mosley Road, Bell County, Kentucky. As Charles Mosley Road (the "Road") was a dead-end road giving access solely to their property, the Mosleys always believed that the road was a private drive. In July of 2010, a county bridge that allowed access to abutting property was destroyed. This property, owned by Ron and Terry Blevins, had never been accessed by the Road before. With the bridge destroyed, however, the Blevinses had no practical means of accessing their property. County officials requested permission from the Mosleys to extend the Road to give the Blevinses access to their property. This request was denied. The County, however, believed that the Road was a part of the county road system. This belief was based on the fact that the road map completed for Bell County by the Kentucky Transportation Cabinet in July of 1999 indicated that the Road was part of the county road system and designated it as road number 1310E. Further, the Road had been adopted into the county road system by the Bell County Fiscal Court in 1999. Therefore, despite the fact that the Mosleys had objected to the Blevinses' using the Road, the County accessed the Mosley property and began working on extending the road to the Blevinses' property.
Because of the Mosleys' objections, the Bell County Fiscal Court filed an action seeking a declaratory judgment that the Road was a county road and to prevent the Mosleys from obstructing access to the Road (the "2010 Action"). The Mosleys counterclaimed against the Fiscal Court and its members, in their official capacities, asserting claims of tortious conduct and property damage resulting from the illegal taking of their property. On cross motions for summary judgment, the trial court found that the Fiscal Court had adopted the Road into the county road system in 1999. Additionally, the trial court found that the Mosleys' counterclaims were barred due to improper service of process, as no summons had been issued to the Fiscal Court Members, and that the Fiscal Court and its members were entitled to sovereign immunity. By separate order, the trial court found that CSX Transportation, Inc.—which owned property next to the Mosleys' property and had been added as a defendant to the declaratory judgment action—was entitled to summary judgment as any road on its property was private.
The Mosleys filed a notice of appeal of the 2010 Action on January 3, 2012. On January 18, 2012, the Mosleys filed a civil complaint in Bell Circuit Court against County Judge Executive Albey Brock in his individual capacity. The complaint asserted numerous allegations against Brock, including that: he had abused his elective power; had disrupted the Mosleys' quiet enjoyment of their home; inflicted emotional distress on the Mosleys, destroyed the Mosleys property; caused continual trespass on the Mosleys' property; attempted to interfere with the Mosleys' contractual relationships; and caused wrongful civil proceedings to be filed against the Mosleys for his personal benefit. Following Brock's filing an answer to the complaint, the action was held in abeyance pending resolution of the Mosleys' appeal to this Court.
Immediately following the trial court's ruling that the CSX Transportation property was private, the Mosleys' former attorney wrote them a letter indicating that they could erect a fence at the boundary line of the Mosley property and the CSX Transportation property. Mr. Mosley did so. This effectively cut off the Blevinses' access to their property, as they were able to traverse only a short distance up the Road before being cut off. Unbeknownst to the Mosleys, however, Bell County entered into a lease with CSX Transportation on March 7, 2012, to use the portion of its property that allowed access to the Blevinses' property. This lease was not recorded. On March 13, 2012, Bell County Road Foreman Bruce Nunn was made aware that the Mosleys had erected a fence at the border of their property and the CSX Transportation property by Brock and Bell County Attorney Neil Ward. At Ward's direction, Nunn signed a criminal complaint against Mr. Mosley, which had been prepared by Ward's staff. That same day, an arrest warrant was issued for Mr. Mosley. Nunn and the sheriff went to the Mosley property where Nunn removed the chain to the gate, opened it, and tied it back to allow full access to the Road. Mr. Mosley was then arrested for obstructing a public highway and taken to jail.
By opinion rendered August 9, 2013, this Court held that the "trial court erred as a matter of law by concluding that [the Road] was properly adopted by the Fiscal Court as a county road" and reversed as to that portion of the judgment. This Court also concluded that the trial court erred in ruling that the Mosleys' counterclaims were barred due to improper service of process, as all named parties had waived the defect in service by filing answers. However, the Court held that the trial court was correct in its determination that the Mosleys' counterclaims against the Fiscal Court, Brock, and the Magistrates were barred by sovereign immunity. The Kentucky Supreme Court denied discretionary review and all criminal charges against Mr. Mosley were subsequently dropped.
See Mosley v. Bell Cty. Fiscal Court, No. 2012-CA-000016-MR, 2013 WL 4040054 (Ky. App. Aug. 9, 2013).
With this Court's determination that the Road was, in fact, a private road, the Mosleys moved the trial court to amend their complaint to add the individuals involved in Mr. Mosley's wrongful arrest as defendants. The trial court consolidated the civil action filed by Mr. Mosley with the 2010 Action, now on remand, and allowed the Mosleys to amend their complaint to add Nunn, in his individual capacity, as a defendant. Following additional discovery, the Mosleys filed a notice of clarification on March 10, 2016. Therein, the Mosleys clarified that they were withdrawing their claim for conversion, but asserting the following claims against the defendants: trespass to land; trespass to chattels; tort of outrage; tort of wrongful use of civil proceedings; tort of malicious prosecution; and punitive damages, attorney fees, litigation expenses, and costs. The Mosleys later amended the clarification to include a claim for false imprisonment.
On March 16, 2016, Brock and Nunn filed a joint motion and memorandum for summary judgment. In their memorandum, Brock and Nunn contended that all claims against them must be dismissed based on the doctrine of qualified official immunity. Additionally, they contended that the claims against Brock were barred by res judicata, as all of the claims asserted against him had occurred by the time the counterclaim and amended counterclaim had been filed in the 2010 Action. As to the Mosleys' claims for wrongful use of civil proceedings and malicious prosecution, Brock and Nunn contented that the Mosleys were unable to successfully assert all required elements of those actions. The Mosleys filed a response to the motion on April 5, 2016. Therein, they argued that Brock and Nunn were not entitled to qualified official immunity, as not only is the construction and maintenance of public roads a ministerial duty, but Brock and Nunn had performed those duties in bad faith. Additionally, the Mosleys argued that their claims against Brock were not barred by res judicata, and that genuine issues of material fact existed regarding their claims for malicious prosecution and wrongful use of civil proceedings.
The trial court entered an order granting summary judgment in part and denying summary judgment in part on May 11, 2016. The court found that Brock and Nunn could not claim the protection of qualified official immunity, as the trial court interpreted Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), as extending qualified official immunity only to claims sounding in negligence. Additionally, the trial court found that res judicata and issue preclusion did not bar the Mosleys' claims against Brock. As to the Mosleys' claims for wrongful use of civil proceedings and malicious prosecution, the trial court agreed with Brock and Nunn that the Mosleys could not make a showing of all elements required to successfully assert the claims and, therefore, dismissed them. Specifically, the trial court noted that the Mosleys could not show a want or lack of probable cause or malice in the institution of the proceedings for either claim. Additionally, the trial court granted summary judgment in favor of Brock and Nunn as to the Mosleys' claim for punitive damages, finding that the Mosleys had presented no evidence of fraud, oppression, malice, or reckless disregard sufficient to justify punitive damages.
On May 23, 2016, the Mosleys moved to partially alter, amend, or vacate the trial court's order, only to the extent that the trial court granted summary judgment in favor of Brock and Nunn on the Mosleys' claim for punitive damages. Brock and Nunn filed a response to the Mosleys' motion that same day. In addition to arguing against the Mosleys' motion, Brock and Nunn argued that the trial court should consider dismissing the Mosleys' claim for intentional infliction of emotional distress and should reconsider its denial of summary judgment on Brock and Nunn's entitlement to qualified official immunity. On June 1, 2016, the Mosleys moved the trial court to make its May 11, 2016, order final and appealable.
The trial court entered an order on the pending motions on July 6, 2016, by which it made its May 11, 2016, order final and appealable under CR 54.02, granted the Mosleys' motion to partially alter, amend, or vacate the portion of its order granting summary judgment on the claim for punitive damages, and denied Brock and Nunn's motion to reconsider their claim of qualified official immunity and the Mosleys' claim for intentional infliction of emotional distress. The Mosleys then filed their notice of appeal and Brock and Nunn filed a notice of cross-appeal, challenging the trial court's ruling on qualified official immunity.
Kentucky Rules of Civil Procedure.
II. STANDARD OF REVIEW
"The proper standard of review on appeal when a trial judge grants a motion for summary judgment is whether the trial judge correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." First Fed. Sav. Bank v. McCubbins, 217 S.W.3d 201, 203 (Ky. 2006) (citing CR 56.03). "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citing Dossett v. New York Mining and Mfg. Co., 451 S.W.2d 843 (Ky. 1970)). "Summary judgments play an especially important role when dealing with immunities, as we also view qualified official immunity as an immunity from suit, that is, from the burdens of defending the action, not merely just an immunity from liability." Rowan Cty. v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed. 2d 411 (1985)). "Because summary judgments involve no fact finding, this Court will review the circuit court's decision de novo." 3D Enters. Contracting Corp. v. Louisville & Jefferson Cty. Metro. Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005) (citing Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000)).
III. ANALYSIS
On appeal, the Mosleys challenge the trial court's grant of summary judgment in favor of Brock and Nunn on their claims of malicious prosecution and wrongful use of civil proceedings. Brock and Nunn contend that they are, in fact, immune from suit under the doctrine of qualified official immunity. We address each argument in turn below.
A. Malicious Prosecution
The tort of malicious prosecution is generally disfavored, under the belief that "all persons [should] be able to freely resort to the courts for redress of a wrong[.]" Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981), abrogated by Martin v. O'Daniel, 507 S.W.3d 1 (Ky. 2016). Accordingly, to prevail on a claim for malicious prosecution the claimant must fully comply with all requirements of the tort. Davis v. Brady, 218 Ky. 384, 291 S.W. 412, 413 (1927). To make a prima facie case of malicious prosecution, the claimant must show that:
1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff;
2) the defendant acted without probable cause;Martin, 507 S.W.3d at 11-12.
3) the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based;
4) the proceeding, except in ex parte civil actions, terminated in favor of the person against whom it was brought; and
5) the plaintiff suffered damages as a result of the proceeding.
In the instant case, the trial court found that the Mosleys could not show two of the required elements: want or lack of probable cause for the proceedings and malice in the institution of the proceedings. Additionally, the trial court found that Nunn had acted upon the advice of Ward, the Bell County Attorney. Our analysis focuses on these elements, as their absence was the basis of the trial court's dismissal of the Mosleys' claim on summary judgment.
"Probable cause is that which 'would induce a man of ordinary prudence to believe that the person prosecuted had committed the crime charged.'" Garcia v. Whitaker, 400 S.W.3d 270, 274 (Ky. 2013) (quoting Louisville & N.R. Co. v. Sharp, 140 S.W.2d 383, 385 (Ky. 1940)). The offense with which Mr. Mosley was charged, obstruction of a public highway, is proscribed in KRS 525.140. In pertinent part, that statute provides that: "A person is guilty of obstructing a highway or other public passage when having no legal privilege to do so he . . . intentionally or wantonly renders any highway or public passage impassable without unreasonable inconvenience or hazard." Id. Of course, subsequent to Mr. Mosley's arrest it was determined that he did, in fact, have a legal privilege to obstruct the Road, as it was his private property. However, "[t]he question of probable cause is to be determined in the light of those facts that the accuser knows or reasonably believes to exist at the time when he acts." RESTATEMENT (SECOND) OF TORTS § 662(c) cmt. (f).
Kentucky Revised Statutes. --------
In his deposition, Nunn testified to the facts surrounding his procurement of the criminal complaint against Mr. Mosley. Nunn indicated that he was made aware of the fact that the Mosleys had erected a gate on the Road by either Brock or Ward. He stated that he did not personally see Mr. Mosley erect the gate, and was unaware of whether Brock or Ward had seen Mr. Mosley do so. After he learned that the gate had been erected, however, he did personally travel to the Road to view it. Nunn admitted that he did not consult any provision of the Kentucky Revised Statutes to determine that the Road was a county road. From his experience as Bell County Road Foreman, however, Nunn was under the impression that the Road was considered a county road—he testified that he had maintained the road on several instances and that he was aware of the fact that the county road map, prepared by the Kentucky Transportation Department with his assistance, included the Road as a county road. While he was unaware of the March 7, 2012, lease between Bell County and CSX Transportation, Nunn stated that he had always been under the impression that the county was free to use the portion of the Road located on the property owned by CSX Transportation. Nunn indicated that a member of Ward's staff prepared the criminal complaint, but Ward asked Nunn to sign it as he was the Road Foreman.
In his deposition, Ward likewise indicated that he had contacted Nunn, at the beginning of the dispute over the Road, to confirm whether the Road was a county road. Even after receiving Nunn's supported opinion that the Road was part of the county, Ward decided to file the declaratory action to encourage Mr. Mosley to stop obstructing the Road, rather than instigate a criminal complaint. Following the circuit court's determination that the Road was a part of the county system, Ward received several telephone calls from the sheriff department. Those calls indicated that deputies had been out to the Mosley property and requested Mr. Mosley to take the gate down, but Mr. Mosley had refused. Therefore, Ward asked Nunn to sign the criminal complaint as Ward believed him to be in the best position to testify as to the most important elements from a criminal standpoint—that the Road was a county road and that it had been obstructed.
The trial court found that these facts were sufficient to constitute probable cause that Mr. Mosley had committed the offense, especially considering the fact that Nunn had relied on Ward and his office in the preparation of the criminal complaint. "Advice of counsel is a defense to malicious prosecution, but only if there is 'a full and fair disclosure of all material facts to the attorney advising prosecution.'" Massey v. McKinley, 690 S.W.2d 131, 134-35 (Ky. App. 1985) (quoting Reid v. True, 302 S.W.2d 846, 847 (Ky. 1957)). "[T]he advice of counsel defense is in actual effect another method of proving probable cause." Garcia, 400 S.W.3d at 275 (citing Flynn v. Songer, 399 S.W.2d 491 (Ky. 1966)).
The Mosleys contend that Nunn did not actually rely on Ward's advice in filing the criminal complaint, a contention that they believe is evinced by portions of Nunn's testimony indicating that Ward had asked him on multiple occasions whether he believed that the Road was a county road. We do not find that Ward asking Nunn, based on his experience as a road foreman, whether the Road was a county or private road makes the advice of counsel defense unavailable to Nunn. While Ward could have perhaps been more cautious and consulted statutory authority to double-check the Road's status, his reliance on Nunn's professional opinion, on the county road map, and on the circuit court's judgment declaring the Road to be a part of the county system was not misplaced. Further, Ward did not contact Nunn to receive legal advice. Ward advised Nunn on the fact that Mr. Mosley's actions constituted a criminal offense and Ward helped Nunn prepare the criminal complaint. Ward, not Nunn, "determined the appropriate criminal charge; and it was the judge, not [Nunn], who determined the existence of probable cause and issued the arrest warrant." Id.
While maintaining their position that Nunn never sought the advice of counsel, the Mosleys additionally contend that Nunn cannot claim the defense because Ward cannot be considered "disinterested counsel" and because Nunn blatantly concealed material facts from Ward. The Mosleys contend that Ward cannot be considered disinterested because it was Ward whom represented Bell County Fiscal Court in the 2010 Action. We disagree. The interest that would disqualify an attorney for purposes of malicious prosecution actions "should grow out of the fact that he was financially interested in the outcome, or that he was related to the parties, or that he was so biased because of enmity against the accused, or some other equally substantial reason, from giving good faith advice." Kroger Grocery & Baking Co. v. Hamlin, 235 S.W. 4, 7 (Ky. 1921). The Mosleys have made no showing demonstrating any of those factors. The fact that Ward was doing his job in advising the county in a declaratory action is insufficient to make a showing that Ward had a bias against the Mosleys, such that he was incapable of giving good faith legal advice.
Additionally, the Mosleys contend that—assuming Nunn did seek Ward's advice before signing the criminal complaint—Nunn failed to disclose material facts to Ward. Specifically, the Mosleys contend that Nunn "concealed the fact that there were no witnesses as to who actually erected the gate at issue," and that "Nunn failed to disclose that the lease between the County and CSX [Transportation] was not recorded and that the Mosleys had no knowledge of the lease." These contentions of nondisclosure on Nunn's part are unsupported. Nunn specifically testified to the fact that he was unaware of the lease between Bell County and CSX Transportation; he cannot be accused of failing to disclose that of which he had no knowledge. Additionally, there is no indication that Nunn "failed to disclose" to Ward that there were no witnesses to verify that Mr. Mosley actually erected the gate. Again, Nunn indicated that he was unaware who, if anyone, saw Mr. Mosley erect the gate. There is no indication that he tried to hide this fact from Ward. In fact, it appears from the record that, at the time Ward contacted Nunn about the gate, Ward had already spoken with at least one other individual complaining that the Mosleys had erected a gate on the Road. Should Ward have determined whether there was a witness to Mr. Mosley constructing the gate on the Road before consulting Nunn about drafting the criminal complaint? Perhaps. However, any error that Ward may have committed does not bear on Nunn's asserted "advice of counsel" defense. The Mosleys are unable to show that Nunn acted without probable cause in signing the criminal complaint against Mr. Mosley because Nunn's actions were taken on the advice of Ward and the judge determined that there was probable cause sufficient to issue a warrant for Mr. Mosley's arrest. See Garcia, 400 S.W.3d at 275. As we have determined that the Mosleys are unable to show that Nunn lacked probable cause in signing the criminal complaint, we find no error in the trial court's dismissal of the malicious prosecution claim on summary judgment.
B. Wrongful Institution of Civil Proceedings
The Mosleys next contend that the trial court erred in dismissing their wrongful use of civil proceedings claim against Brock. Like claims for malicious prosecution, claims for wrongful use of civil proceedings are generally disfavored, and "one must strictly comply with the prerequisites of maintaining an action for wrongful use of civil proceedings." D'Angelo v. Mussler, 290 S.W.3d 75, 79 (Ky. App. 2009). The elements required to maintain the claim are virtually identical to those required to maintain a malicious prosecution action, stated supra p. 11. See id. As in the malicious prosecution claim, the trial judge found that the Mosleys could not maintain their claim against Brock because they could not show the required elements of want of probable cause and malice in institution of the proceedings.
In support of their claim that Brock lacked probable cause to bring the declaratory action, the Mosleys argue extensively as to why the Road should have never been considered a county road—a point litigated and affirmed by this Court in the 2010 Action. While the law of this case indicates that the Mosleys were correct in their assertion that the Road has always been "private," the fact remains that numerous people and entities disagreed on that point at the time the 2010 Action was brought. As noted previously: the Road was included on the map designed by the Department of Transportation, the Road had officially been adopted into the county system by the Bell County Fiscal Court in 1999, and the Bell County Circuit Court found that the Road was a county road. "Generally speaking, it is proper to presume that public officers have taken required procedural steps and have performed certain ministerial duties unless the record establishes otherwise." Cary v. Pulaski Cty. Fiscal Court, 420 S.W.3d 500, 506 (Ky. App. 2013).
As Brock was relying on prior actions of the Commonwealth and the Bell County Fiscal Court in coming to his belief that the Road was a county road, we cannot say that he was without probable cause when he filed the declaratory action. The Mosleys contend that Brock should have researched the statutory authority on county roads, which would have enabled him to conclude that the Road should be considered private. However, Brock is not an attorney. "Although proof that an attorney initiated civil proceedings when he was ignorant of the law and failed to research it would be evidence bearing on lack of probable cause, here it must be said that, even if mistaken, [Brock's] views of the law were not arbitrary and unreasonable." Prewitt v. Sexton, 777 S.W.2d 891, 897 (Ky. 1989).
C. Immunity
On cross-appeal, Brock and Nunn both contend that the trial court erred in holding that they were not entitled to qualified official immunity based on the fact that the accusations against them did not sound in negligence. We agree that the trial court's reasoning was in error. The trial court based its conclusion that qualified immunity is only applicable in negligence actions on text from the oft-quoted case on qualified immunity, Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001). In Yanero, the Kentucky Supreme Court stated that:
Qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment (2) in good faith; and (3) within the scope of the employee's authority.Id. at 522 (internal citations omitted). Based on the phrasing above—that "qualified official immunity applies to the negligent performance . . ."—the trial court and the Mosleys reason that qualified official immunity applies only to negligence actions. One cannot reach this conclusion without reading in extra language. Yanero was a case dealing with negligent supervision of a child during extracurricular activities; therefore, the Court discussed qualified official immunity as it applied to negligence actions. It was not meant to limit the defense to negligence actions. In fact, this premise has been expressly rejected by the Kentucky Supreme Court in Martin v. O'Daniel, wherein the Court stated that "qualified official immunity is not limited to negligence actions." 507 S.W.3d 1, 6 (Ky. 2016).
When sued in their individual capacities, "public officers and employees enjoy . . . qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment." Yanero, 65 S.W.3d at 522. Qualified immunity applies to discretionary acts or functions. See id. Discretionary acts are "those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment[.]" Id. "An act is not necessarily 'discretionary' just because the officer performing it has some discretion with respect to the means or method to be employed." Id. (quoting Franklin Cty. v. Malone, 957 S.W.2d 195, 201 (Ky. 1997), overruled by Yanero, 65 S.W.3d 510). In contrast, no protection is afforded for the performance of a ministerial duty. Id. Ministerial acts include acts "that require[] only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Id. (citing Malone, 957 S.W.2d at 201).
Alternative to their argument that qualified official immunity applies only to negligence actions, the Mosleys contend that all actions of Brock and Nunn were ministerial in nature. The Mosleys direct our attention to KRS 67.080(2)(b), which states that the "fiscal court shall: . . . [a]s needed, cause the construction, operation, and maintenance of all county buildings and other structures, grounds, roads, and other property[.]" Both Brock and Nunn are employees of the Bell County Fiscal Court. All of the Mosleys allegations against them rise out of Brock and Nunn's maintenance and extension of the Road when it was believed to be a county road. Therefore, the Mosleys contend, all relevant acts of Brock and Nunn were ministerial acts. The Mosleys acknowledge that Brock and Nunn were required to make certain decisions in executing those duties. However, they note that "an act is not necessarily taken out of the class styled 'ministerial' because the officer performing it is vested with a discretion respecting the means or method to be employed." Shearer v. Hall, 399 S.W.2d 701, 704 (Ky. 1965) (quoting Upchurch v. Clinton Cty., 330 S.W.2d 428, 430 (Ky. 1959)).
The trial court's erroneous conclusion regarding the applicability of qualified immunity to the non-negligence claims prevented it from considering whether the acts at were issue were ministerial or discretionary; and, if discretionary whether they were undertaken in bad faith. We should not review these issues where the trial court has not first had an opportunity to consider them. Accordingly, we remand the remaining claims for a determination with respect to the availability of qualified immunity.
IV. CONCLUSION
Based on the foregoing, we affirm in part, reverse in part, and remand.
ALL CONCUR. BRIEFS FOR APPELLANTS/CROSS-
APPELLEES: R. Aaron Hostettler
London, Kentucky BRIEFS FOR APPELLEES/CROSS-
APPELLANTS: Martha L. Brown
London, Kentucky