Mark Stonex v. Cailtlin Higinbotham

Opinion

RENDERED: JUNE 3, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0724-MR

MARK STONEX AND MICHELLE SHANKLIN APPELLANTS

APPEAL FROM CUMBERLAND CIRCUIT COURT v. HONORABLE GREGORY A. LAY, SPECIAL JUDGE ACTION NO. 19-CI-00092

CAITLIN HIGINBOTHAM APPELLEE

AND NO. 2020-CA-0725-MR

JONATHAN HALL APPELLANT

APPEAL FROM CUMBERLAND CIRCUIT COURT v. HONORABLE GREGORY A. LAY, SPECIAL JUDGE ACTION NO. 19-CI-00092

CAITLIN HIGINBOTHAM APPELLEE

OPINION

DISMISSING APPEAL NO. 2020-CA-0724-MR AND AFFIRMING APPEAL NO. 2020-CA-0725-MR

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BEFORE: CALDWELL, DIXON, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Appellee, Caitlin Higinbotham (Caitlin), filed a complaint in

Cumberland Circuit Court on November 14, 2019, against Probation and Parole

Officer Tyler Young, and others. Therein, Caitlin alleged, inter alia, that Officer

Young was liable for assault, battery, negligence, gross negligence, and intentional

infliction of emotional distress arising from acts committed by Officer Young

while Caitlin was reporting to her probation and parole office. According to

paragraph ten of her complaint, those acts include mistreatment, harassment,

molestation, and sexual abuse.

Also named as individual defendants were Jonathan Hall, Mark

Stonex, and Michelle Shanklin (collectively referred to as “Appellants”). To be

clear, the only allegations raised against Appellants in the complaint include

negligent supervision, training, and care, based on their supervisory roles.1 Each

Appellant is identified in the complaint as follows: Hall (former Director of

Probation and Parole); Stonex (Probation and Parole Western Branch Manager);

and Shanklin (Assistant Supervisor of Warren County Probation and Parole). On

1 Count I therein also alleges that Appellants’ conduct constituted gross negligence, etc.

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April 29, 2020, Special Judge Gregory Lay granted Appellants’ motion to dismiss

with respect to all claims asserted against them in their official capacities, and

denied their motion to dismiss with respect to those claims asserted against them in

their individual capacities. See CR2 12.02(f). Appellants appealed to this Court as

a matter of right. See Breathitt v. Prater, 292 S.W.3d 883 (Ky. 2009). Our

standard of review was summarized in Fox v. Grayson:

A motion to dismiss for failure to state a claim upon which relief may be granted “admits as true the material facts of the complaint.” So a court should not grant such a motion “unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved . . . .” Accordingly, “the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true.” This exacting standard of review eliminates any need by the trial court to make findings of fact; “rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?” 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.

317 S.W.3d 1, 7 (Ky. 2010) (footnotes omitted).

Before we address the merits of the present issue, we must address a

procedural matter. The notice of appeal provides that Stonex and Shanklin

2 Kentucky Rules of Civil Procedure.

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appealed from the April 29 order “in their individual capacities.” They did not pay

the filing fee, but the circuit court clerk docketed their notice of appeal on May 29,

2020. However, Appellant Hall did pay the filing fee for his appeal. On June 9,

2020, this Court ordered Stonex and Shanklin to show cause why their appeal

should not be dismissed based on their failure to pay the filing fee. Stonex and

Shanklin filed a response on June 29, 2020. They rely on KRS3 12.200 et seq.,

stating: “The clear intent is that persons sue [sic] for acts or omissions in the

course and scope of their employment with the Commonwealth not be burdened

with legal costs except under narrow circumstances.” Appellants do not cite any

case law in support of their interpretation of the statutes. KRS 12.211 provides:

Upon request of an employee or former employee, the Attorney General may provide for the defense of any civil action brought against such employee in his official or individual capacity, or both, on account of an act or omission made in the scope and course of his employment as an employee of the Commonwealth and any of its agencies, except that neither the state, state employee, nor former state employee shall be subject to an action arising from discretionary acts or decisions pertaining to the design or construction of public highways, bridges, or buildings.

Pursuant to KRS 12.213:

The Governor shall provide by regulation for the defense of employees or former employees of the Commonwealth pursuant to KRS 12.211 to 12.215 by one (1) or more of the following methods:

3 Kentucky Revised Statutes.

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(1) By the Attorney General;

(2) By employing other counsel for this purpose as provided for in KRS 12.210;

(3) By authorizing the purchase of insurance which requires that the insurer provide or underwrite the cost of the defense; or

(4) By authorizing defense by counsel assigned to or employed by the department, agency, board, commission, bureau, or authority which employed the person requesting the defense.

Stonex and Shanklin are presently represented by the counsel for the Justice and

Public Safety Cabinet, which appears to fall within KRS 12.213(4). As to the costs

of the defense, KRS 12.215 provides:

The expenses incurred by the Attorney General in defending state employees and former state employees shall not be charged against the regular budget of the Attorney General but shall be paid by the secretary of the Finance and Administration Cabinet from unappropriated general funds surplus in the State Treasury as a necessary governmental expense on vouchers submitted by the Attorney General and approved by the secretary. The expenses to be so paid include but are not limited to the cost of the time spent by salaried attorneys of the Attorney General’s office, contract attorneys, court reporters, and the cost of trial preparation and investigation.

(Emphasis added.) The applicable administrative regulations likewise state:

Section 7. Cost of Administration. The Attorney General shall be reimbursed for the cost to his or her office for the administration of KRS 12.211 to 12.215 upon vouchers submitted by the Attorney General and

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approved by the Secretary of the Finance and Administration Cabinet.

10 KAR4 1:011. The statutes and regulations do not expressly state whether the

filing fees are waived. The provisions stating the Attorney General can be

reimbursed for “expenses to be [] paid” supports the conclusion that Appellants

were required to pay the filing fee.

Considering generally whether the Commonwealth must pay filing

fees, KRS 453.010 provides:

No judgment for costs shall be rendered against the Commonwealth in any action prosecuted by or against the Commonwealth in its own right, unless specifically provided by statute; provided, however, that in any civil action filed in any court of competent jurisdiction by or against the Commonwealth of Kentucky, the costs may be paid by the Commonwealth when such costs are approved and allowed by the judge of the court in which the case was filed. Costs shall not exceed the fees allowed for similar services in other civil actions.

In Commonwealth v. Pelfrey, No. 2001-CA-001048-MR, 2003 WL

1254293 (Ky. App. Feb. 7, 2003), the circuit court dismissed the Transportation

Cabinet’s petition for review of a Board of Claims decision in the Pelfreys’ favor.

This Court held dismissal of the petition was correct because “the Cabinet failed to

ensure that the Pelfreys were served with process as mandated by the unambiguous

terms of CR 3 and 4.” Id. at *4. The Court held the issue of whether the petition

4 Kentucky Administrative Regulations.

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should have been dismissed for failure to comply with CR 3.02 (payment of circuit

court filing fees) was moot. In dicta, the Court then stated:

While the statute [KRS 453.010] does expressly vest the circuit court with authority to assess costs against the Commonwealth at the conclusion of an action when deemed appropriate, such authority is permissive rather than mandatory. That being the case, the court is not empowered to dismiss an action initiated by a state agency (the Cabinet) for failure to pay the filing fee as was the case here, since the agency had no way of knowing in advance if the court would exercise its authority and, therefore, could not be held accountable for paying a fee that had not been assessed. Such a result would not only be inconsistent with the plain language of the statute, it offends common sense. Assessing a filing fee against the Commonwealth is the equivalent of ordering the Commonwealth to transfer money from one pocket to another.

Id. at *5.

The present case involves an appeal taken by individuals, not by the

Commonwealth or a state agency. Appellants won on the issue of liability in their

“official capacities,” and their appeal pertains to whether the plaintiff may proceed

against them individually. The Kentucky Circuit Court Clerks’ Accounting

Manual5 provides that only the Commonwealth and state agencies are exempt from

payment of the filing fee. It would also be inequitable to permit Stonex and

Shanklin to avoid the fee, while Hall paid the fee, because the three individuals are

5 https://kycourts.gov/Courts/County-Information/Documents/CCCAcctManual.pdf (last visited Jun. 1, 2022).

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similarly situated. We addressed a similar issue in Bruner v. Sullivan

University System, Inc., as follows:

In short, if a notice of appeal is tendered to a clerk within the time permitted by the Civil Rules, but is unaccompanied by the requisite filing fee, there could be two very different results: (1) As in Hurley,6 the clerk might violate his or her oath of office by accepting the notice of appeal anyway, in which case the ensuing appeal will not be subject to automatic dismissal as untimely; or (2) as in Excel,7 the clerk might refuse to file the notice of appeal until the filing fee is received, in which case – assuming the filing fee is paid on a date outside the appellate window – the ensuing appeal will be subject to automatic dismissal as untimely.

544 S.W.3d 669, 672 (Ky. App. 2018). Based on Bruner, the present case is not

subject to automatic dismissal. As previously stated, however, Stonex and

Shanklin were provided an opportunity to show cause as to why their appeal

should not be dismissed. They filed a one paragraph response with no citation to

any specific legal or factual basis that would negate dismissal. Therefore, Stonex

6 Norwest Bank Minn., N.A. v. Hurley, 103 S.W.3d 21 (Ky. 2003) (holding notice of appeal was validly filed, even where appellant tendered an unsigned check with the notice, because the circuit court clerk had docketed the notice the day it was filed). 7 Excel Energy, Inc. v. Commonwealth Institutional Securities, Inc., 37 S.W.3d 713 (Ky. 2000), as modified on denial of reh’g (Mar. 22, 2001) (notice of appeal held untimely where appellant placed it in the drop box on the last day for filing without tendering the filing fee; circuit court clerk refused to note on the docket sheet that the notice had been filed until the payment was made the next day).

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and Shanklin’s appeal is hereby DISMISSED. We now turn to the merits of

Appellant Hall’s case.

Within his general argument that the trial court erred, Hall argues that

Caitlin has failed to make any allegations relevant to whether Hall’s alleged acts or

omissions were carried out as either discretionary or ministerial functions – i.e.,

whether Hall is entitled to qualified immunity. The defense of qualified official

immunity applies generally as follows:

[T]o the negligent performance 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.” [Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001)] (internal citation omitted). It does not apply to “the negligent performance of a ministerial act, i.e., one that requires 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 Franklin Cty. v. Malone, 957 S.W.2d 195, 201 (Ky. 1997)).

Ritchie v. Turner, 559 S.W.3d 822, 831 (Ky. 2018). Moreover, “[a]n act is not

necessarily discretionary just because the officer performing it has some discretion

with respect to the means or method to be employed.” Yanero, 65 S.W.3d at 522.

As Caitlin correctly cites in her brief, CR 8.01 requires that pleadings

must contain “a short and plain statement of the claim showing that the pleader is

entitled to relief . . . .” “It is not necessary to state a claim with technical precision

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under this rule, as long as a complaint gives a defendant fair notice and identifies

the claim. This principle fully applies to negligent supervision claims . . . .”

Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 844 (Ky.

2005) (internal quotation marks and citation omitted). Immunity is not an element

of Caitlin’s proof. Rather, “[q]ualified official immunity is an affirmative defense

that must be specifically pled[,]” by the party invoking the defense. Yanero, 65

S.W.3d at 522 (emphasis added) (citation omitted). Having reviewed the

complaint and the arguments presented herein, we believe that dismissal at this

juncture would be inappropriate. For the foregoing reasons, we dismiss Appeal

No. 2020-CA-0724-MR. As to Appeal No. 2020-CA-0725-MR, we affirm the

circuit court’s order entered on April 29, 2020, and remand for additional

proceedings consistent with this Opinion.

ALL CONCUR.

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BRIEFS FOR APPELLANT BRIEFS FOR APPELLEE: JONATHAN HALL:

Lee Whittenberg

Chris J. Gadansky Monticello, Kentucky Louisville, Kentucky

Luke Morgan Lexington, Kentucky

BRIEF FOR APPELLANTS MARK STONEX AND MICHELLE SHANKLIN:

Edward A. Baylous II Frankfort, Kentucky