Louisville/ Jefferson County Metro Government v. Hon Olu A. Stevens, Judge, Jefferson Circuit Court, Division Six (6)

• Court: Kentucky Supreme Court
• Decided: June 16, 2021
• Docket: 2020 SC 0091
• Status: Unknown

Opinion

Supreme Court of Kentucky 2020-SC-0091-MR

LOUISVILLE/JEFFERSON COUNTY METRO APPELLANTS GOVERNMENT AND PARKING AUTHORITY OF RIVER CITY, INC.

ON APPEAL FROM COURT OF APPEALS V. NO. 2019-CA-1681 JEFFERSON CIRCUIT COURT NOS. 07-CI-004289 & 08-CI-001063

HONORABLE OLU A. STEVENS, JUDGE, APPELLEE JEFFERSON CIRCUIT COURT, DIVISION SIX (6)

AND

TODD BOLUS AND L. STANLEY CHAUVIN, III REAL PARTIES IN INTEREST

OPINION AND ORDER

Arguing immunity from suit, Louisville Metro Government (LMG) and

Parking Authority of River City, Inc. (PARC) (collectively Metro), filed a matter of

right appeal from the Kentucky Court of Appeals’ denial of a petition for a writ

of mandamus directing Jefferson Circuit Court Judge Olu A. Stevens to rule on

a summary judgment motion filed on May 22, 2017. During the pendency of

this expedited appeal, Judge Stevens issued an order on April 13, 2021,

granting summary judgment to LMG and dismissing with prejudice all claims

against it based on sovereign immunity. However, PARC’s claim of governmental immunity was rejected based on multiple issues of material fact

culminating in denial of its request for summary judgment. PARC may now

seek an immediate interlocutory appeal under Breathitt County Bd. of Educ. v.

Prater, 292 S.W.3d 883, 887 (Ky. 2009).

Metro’s sole purpose in petitioning for a writ, which the appellate panel

denied when reviewing the matter as an original appeal under Kentucky Rules

of Civil Procedure (CR) 76.36, was securing a ruling on a nearly four-year-old

summary judgment motion. Metro’s purpose was fulfilled when Judge Stevens

ruled—granting partial summary judgment, dismissing LMG and clearing the

way for PARC to pursue an interlocutory appeal. Thus, we have no option but

to dismiss the appeal as moot as urged by the real parties in interest and

subsequently by Metro.

Assertion of immunity is a threshold issue which must be determined

before a case may proceed. An entity cloaked in immunity is protected against

the costs of trial, including broad discovery, which may disrupt and distract

government. Lexington-Fayette Urban County Government v. Smolcic, 142

S.W.3d 128, 135 (Ky. 2004) (citation omitted). Immunity exists not to insulate

the government, but “for the benefit of the public.” Pierson v. Ray, 386 U.S.

547, 554 (1967).

Metro began its quest for a ruling on claims of immunity in December

2 2017 when it filed its first of three AOC-280’s 1 alerting the trial court a

summary judgment motion had been fully briefed and was ready for final

adjudication. Granting summary judgment to LMG has ended its participation

in this class action litigation about enforcement of parking tickets initially filed

in federal court in 2007. 2 In contrast, having been denied summary judgment,

PARC may now file an immediate interlocutory appeal under Prater. Without a

ruling from the Jefferson Circuit Court, however, the case was in limbo leaving

Metro nothing to appeal to a higher court but having to defend the case despite

claims of immunity.

In January 2020, the Court of Appeals denied the writ petition believing

Metro had an adequate remedy by appeal—a condition precedent to issuance of

a writ. Cox v. Braden, 266 S.W.3d 792, 797 (Ky. 2008). From the appellate

panel’s perspective, Judge Stevens was to hear the motion on March 12, 2020,

and a trial was to begin on June 23, 2020, providing ample time in between for

an interlocutory appeal to run its course if Judge Stevens denied a claim of

immunity. Because Metro did not challenge the trial court’s jurisdiction to act,

1 AOC-280 is a statewide form. In Jefferson County it serves as a means of docket control to prevent cases from being overlooked. The process is reflected in Supreme Court Rule (SCR) 1.050(8) and Kentucky Revised Statutes 454.350. When a case is ready for submission, Jefferson Rules of Practice 401 requires a written summary judgment motion be filed—using Form AOC-280—coupled with a memorandum of authority. Said motion shall not be noticed for motion hour but oral argument may be requested. 2 Oberhausen v. Louisville-Jefferson County Metro Government, 527 F.Supp.2d 713 (W.D. Ky. 2007). All federal constitutional claims were dismissed, and all remaining claims were remanded to state court. Oberhausen did not challenge the federal court’s resolution, prompting Metro to argue adequacy of windshield notice is now the law of the case and bars further litigation. Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464-65 (Ky. 1998). 3 issuance of a writ required Metro to demonstrate both an inadequate appellate

remedy and that it would suffer great and irreparable harm if forced to proceed.

Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). The panel found Metro had

an adequate remedy by appeal or otherwise and denied the petition. Metro

filed a matter of right appeal in this Court.

On the surface, it may have appeared Metro had an adequate remedy by

appeal. Goldstein v. Feeley, 299 S.W.3d 549, 554 (Ky. 2009), the basis of the

panel’s six-page order denying the petition, says a hearing is “itself an available

remedy.” But, as Metro argued, Judge Stevens’ setting of a hearing date was

merely “illusory”—many hearing dates were set in this case and delayed. There

is no indication the Court of Appeals considered the basis of Metro’s summary

judgment motion—the threshold issue of immunity—unnecessarily delaying

Metro’s ability to pursue an immediate interlocutory appeal under Prater by

another year. Moreover, Metro’s request was for a ruling, not a hearing.

We wrote in Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006),

“[s]ummary judgments play an especially important role when dealing with

immunities,” and immunity entitles its possessor to be free “from the burdens

of defending the action, not merely . . . from liability.” (citations omitted). More

than cursory review of a writ petition is required to ensure resolution of an

immunity claim is not unreasonably delayed. Judge Stevens’ delayed ruling, at

least as to LMG, has required Metro to defend against a class action lawsuit—

demanding $3.9 million in damages—for nearly four extra years. Quantifying

when a matter becomes stale is fact-dependent, but, based on the information

4 before us, this nearly four-year delay caused the public treasury to bear an

unreasonable expenditure of time and money.

Nevertheless, the real parties in interest have moved to dismiss this

appeal as moot. On August 14, 2020, that motion was passed for

consideration with the merits. On May 4, 2021, Metro moved to dismiss this

appeal as moot. Having now issued his ruling, Judge Stevens has dismissed

all claims against LMG and cleared the path for PARC to pursue an immediate

interlocutory appeal. Metro’s request for a ruling on its summary judgment

motion having been issued, the need for a writ of mandamus no longer exists.

Therefore, the motions to DISMISS this appeal as MOOT are hereby

GRANTED.

All sitting. All concur.

ENTERED: June 17, 2021.

_______________________________________ CHIEF JUSTICE