RENDERED: JULY 8, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0501-DG
RICKY YOUNG AND SANDY YOUNG APPELLANTS
ON REVIEW FROM PULASKI CIRCUIT COURT v. HONORABLE TERESA WHITAKER, JUDGE ACTION NO. 20-XX-00006
WILLIAM HOUSE AND PAULINE HOUSE APPELLEES
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: DIXON, MCNEILL, AND TAYLOR, JUDGES.
DIXON, JUDGE: Ricky and Sandy Young (collectively “the Youngs”) appeal the
Pulaski Circuit Court’s order affirming the judgment of the Pulaski District Court
finding them guilty of forcible detainer with respect to property owned by William
and Pauline House (collectively “the Houses”). After careful review of the brief,
record, and law, we reverse the opinion of the Pulaski Circuit Court and remand the matter to the Pulaski District Court for entry of an order vacating the judgment
and dismissing the complaint.
FACTS AND PROCEDURAL BACKGROUND
On September 8, 2020, the Houses filed a forcible detainer complaint
against the Youngs. A hearing was held on September 22, 2020. Due to COVID-
19 protocols, the Youngs were expected to attend remotely. Counsel for the
Youngs called his clients as witnesses; however, after an unsuccessful attempt to
reach them via the phone number provided in the record, the court denied
counsel’s request to make additional attempts, and they did not testify.
Consequently, Pauline House was the sole witness, and the facts are not in dispute.
The Houses are the owners of the property at issue, and the Youngs
have been their tenants for five years. After a prior lease expired, the Youngs
rented the property month-to-month with rent payable between the 1st and 3rd of
each month. There were no allegations of unpaid rent. Written notice to vacate
within 30 days was provided to the Youngs on August 8, 2020, but they did not
vacate the property. After the close of evidence, the court concluded that, contrary
to the Youngs’ assertion, the written notice to vacate was sufficient and adjudged
the Youngs guilty of forcible detainer.
The Youngs appealed to the Pulaski Circuit Court arguing the Houses
had provided insufficient notice. In its opinion affirming, the circuit court stated
-2- that the notice to vacate should have been provided on August 1, 2020, instead of
August 8, in order to terminate the Youngs’ lease on September 1, 2020.
However, the court found that the matter was moot because it had been more than
four months since the Houses demonstrated their intent to terminate the Youngs’
tenancy, and “the main issue of contention in this case was always a lack of time –
and not whether [the Houses] could terminate the tenancy[.]” We granted
discretionary review.
STANDARD OF REVIEW
As the Youngs’ claims involve questions of law, our review is de
novo. Pennyrile Allied Cmty. Servs., Inc. v. Rogers, 459 S.W.3d 339, 342 (Ky.
2015).
ANALYSIS
As an initial consideration, because the Youngs vacated the premises
following the denial of their direct appeal, we must determine whether this matter
is moot. A matter is moot when the judgment sought “‘cannot have any practical
legal effect upon a then existing controversy.’” Morgan v. Getter, 441 S.W.3d 94,
99 (Ky. 2014) (citing Benton v. Clay, 192 Ky. 497, 500, 233 S.W. 1041, 1042
(1921)). Despite their relocation, the Youngs claim our review is proper given that
the forcible detainer judgment has collateral consequences – for instance,
damaging their credit and negatively impacting their future ability to obtain
-3- housing, employment, and benefits. Alternatively, the Youngs argue that we
should review the matter under the public interest exception to mootness and cite
in support Shinkle v. Turner, 496 S.W.3d 418 (Ky. 2016), and Phillips v. M & M
Corbin Properties, LLC, 593 S.W.3d 525 (Ky. App. 2020). While the Youngs’
assertion of collateral consequences may have merit, we hold that the public
interest exception applies.
To meet the public interest exception, a litigant must clearly show
that: “(1) the question presented is of a public nature; (2) there is a need for an
authoritative determination for the future guidance of public officers; and (3) there
is a likelihood of future recurrence of the question.” Morgan, 441 S.W.3d at 102
(citation omitted). The Supreme Court of Kentucky has previously concluded that
“the proper and efficient application of the law pertaining to the special statutory
proceeding for forcible entry and detainer is a matter of public interest[,]”
satisfying the first criteria. Shinkle, 496 S.W.3d at 420. Additionally, as there is
no appellate guidance concerning the notice provision at issue herein, and given
the import of notice in the proper execution of these ever-prevalent causes of
action, we likewise conclude that the remaining criteria have been established.
Accordingly, we shall review the merits of the Youngs’ arguments.
The Youngs contend the court erred in affirming the judgment of guilt
where: (1) due to improper notice, the Houses did not have the right of immediate
-4- possession at the time they filed their complaint, and (2) the Youngs were denied
due process by the court’s refusal to make a second attempt to obtain their
testimony. Because we agree that the underlying action should be dismissed for
the Houses’ failure to provide adequate notice, as we will detail below, we do not
reach the merits of the Youngs’ due process claim.
Forcible detainer is a special statutory proceeding which deals
exclusively with the present right of possession of real property and is governed by
KRS1 383.200-285. Shinkle, 496 S.W.3d at 421-22. “In Kentucky, a tenant is
guilty of a forcible detainer when he refuses to vacate the premises after his right
of possession has ended.” Id. at 421; KRS 383.200(3)(a). Under the Uniform
Residential Landlord and Tenant Act (URLTA),2 codified at KRS 383.500-705, a
month-to-month tenant’s right to possession may be terminated by the landlord or
the tenant giving written notice to the other “at least thirty (30) days before the
periodic rental date specified in the notice.” KRS 383.695(2). A tenant can only
be guilty of forcible detainer if he or she remains after the notice period has
expired. Shinkle, 496 S.W.3d at 424.
1 Kentucky Revised Statutes. 2 In accordance with KRS 383.500, URLTA was enacted without amendment by Pulaski County, Ky., Ordinance No. 120.1 (Aug. 10, 1993), and is, therefore, controlling in this matter. For clarity, we will refer to KRS instead of the parallel ordinance citations.
-5- Though the proper application of KRS 383.695(2) is a matter of first
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: JULY 8, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0501-DG
RICKY YOUNG AND SANDY YOUNG APPELLANTS
ON REVIEW FROM PULASKI CIRCUIT COURT v. HONORABLE TERESA WHITAKER, JUDGE ACTION NO. 20-XX-00006
WILLIAM HOUSE AND PAULINE HOUSE APPELLEES
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: DIXON, MCNEILL, AND TAYLOR, JUDGES.
DIXON, JUDGE: Ricky and Sandy Young (collectively “the Youngs”) appeal the
Pulaski Circuit Court’s order affirming the judgment of the Pulaski District Court
finding them guilty of forcible detainer with respect to property owned by William
and Pauline House (collectively “the Houses”). After careful review of the brief,
record, and law, we reverse the opinion of the Pulaski Circuit Court and remand the matter to the Pulaski District Court for entry of an order vacating the judgment
and dismissing the complaint.
FACTS AND PROCEDURAL BACKGROUND
On September 8, 2020, the Houses filed a forcible detainer complaint
against the Youngs. A hearing was held on September 22, 2020. Due to COVID-
19 protocols, the Youngs were expected to attend remotely. Counsel for the
Youngs called his clients as witnesses; however, after an unsuccessful attempt to
reach them via the phone number provided in the record, the court denied
counsel’s request to make additional attempts, and they did not testify.
Consequently, Pauline House was the sole witness, and the facts are not in dispute.
The Houses are the owners of the property at issue, and the Youngs
have been their tenants for five years. After a prior lease expired, the Youngs
rented the property month-to-month with rent payable between the 1st and 3rd of
each month. There were no allegations of unpaid rent. Written notice to vacate
within 30 days was provided to the Youngs on August 8, 2020, but they did not
vacate the property. After the close of evidence, the court concluded that, contrary
to the Youngs’ assertion, the written notice to vacate was sufficient and adjudged
the Youngs guilty of forcible detainer.
The Youngs appealed to the Pulaski Circuit Court arguing the Houses
had provided insufficient notice. In its opinion affirming, the circuit court stated
-2- that the notice to vacate should have been provided on August 1, 2020, instead of
August 8, in order to terminate the Youngs’ lease on September 1, 2020.
However, the court found that the matter was moot because it had been more than
four months since the Houses demonstrated their intent to terminate the Youngs’
tenancy, and “the main issue of contention in this case was always a lack of time –
and not whether [the Houses] could terminate the tenancy[.]” We granted
discretionary review.
STANDARD OF REVIEW
As the Youngs’ claims involve questions of law, our review is de
novo. Pennyrile Allied Cmty. Servs., Inc. v. Rogers, 459 S.W.3d 339, 342 (Ky.
2015).
ANALYSIS
As an initial consideration, because the Youngs vacated the premises
following the denial of their direct appeal, we must determine whether this matter
is moot. A matter is moot when the judgment sought “‘cannot have any practical
legal effect upon a then existing controversy.’” Morgan v. Getter, 441 S.W.3d 94,
99 (Ky. 2014) (citing Benton v. Clay, 192 Ky. 497, 500, 233 S.W. 1041, 1042
(1921)). Despite their relocation, the Youngs claim our review is proper given that
the forcible detainer judgment has collateral consequences – for instance,
damaging their credit and negatively impacting their future ability to obtain
-3- housing, employment, and benefits. Alternatively, the Youngs argue that we
should review the matter under the public interest exception to mootness and cite
in support Shinkle v. Turner, 496 S.W.3d 418 (Ky. 2016), and Phillips v. M & M
Corbin Properties, LLC, 593 S.W.3d 525 (Ky. App. 2020). While the Youngs’
assertion of collateral consequences may have merit, we hold that the public
interest exception applies.
To meet the public interest exception, a litigant must clearly show
that: “(1) the question presented is of a public nature; (2) there is a need for an
authoritative determination for the future guidance of public officers; and (3) there
is a likelihood of future recurrence of the question.” Morgan, 441 S.W.3d at 102
(citation omitted). The Supreme Court of Kentucky has previously concluded that
“the proper and efficient application of the law pertaining to the special statutory
proceeding for forcible entry and detainer is a matter of public interest[,]”
satisfying the first criteria. Shinkle, 496 S.W.3d at 420. Additionally, as there is
no appellate guidance concerning the notice provision at issue herein, and given
the import of notice in the proper execution of these ever-prevalent causes of
action, we likewise conclude that the remaining criteria have been established.
Accordingly, we shall review the merits of the Youngs’ arguments.
The Youngs contend the court erred in affirming the judgment of guilt
where: (1) due to improper notice, the Houses did not have the right of immediate
-4- possession at the time they filed their complaint, and (2) the Youngs were denied
due process by the court’s refusal to make a second attempt to obtain their
testimony. Because we agree that the underlying action should be dismissed for
the Houses’ failure to provide adequate notice, as we will detail below, we do not
reach the merits of the Youngs’ due process claim.
Forcible detainer is a special statutory proceeding which deals
exclusively with the present right of possession of real property and is governed by
KRS1 383.200-285. Shinkle, 496 S.W.3d at 421-22. “In Kentucky, a tenant is
guilty of a forcible detainer when he refuses to vacate the premises after his right
of possession has ended.” Id. at 421; KRS 383.200(3)(a). Under the Uniform
Residential Landlord and Tenant Act (URLTA),2 codified at KRS 383.500-705, a
month-to-month tenant’s right to possession may be terminated by the landlord or
the tenant giving written notice to the other “at least thirty (30) days before the
periodic rental date specified in the notice.” KRS 383.695(2). A tenant can only
be guilty of forcible detainer if he or she remains after the notice period has
expired. Shinkle, 496 S.W.3d at 424.
1 Kentucky Revised Statutes. 2 In accordance with KRS 383.500, URLTA was enacted without amendment by Pulaski County, Ky., Ordinance No. 120.1 (Aug. 10, 1993), and is, therefore, controlling in this matter. For clarity, we will refer to KRS instead of the parallel ordinance citations.
-5- Though the proper application of KRS 383.695(2) is a matter of first
impression, the plain meaning of the statute controls. Executive Branch Ethics
Comm’n v. Stephens, 92 S.W.3d 69, 73 (Ky. 2002). KRS 383.695(2) requires not
only that notice be provided 30 days in advance but also mandates that it occur
wholly prior to a specified periodic rental date.3 4 Applying KRS 383.695(2), for
the Houses to obtain the right of immediate possession to the property, as required
by KRS 383.200(3)(a) to sustain their September 8, 2020, complaint, notice must
have been given 30 days prior to September 1, 2020, the closest periodic rental
date.5 As the evidence conclusively demonstrates that notice was provided only 23
days in advance of September 1, 2020, the district court’s conclusion that the
Youngs were afforded sufficient notice is erroneous.
Lastly, we must determine whether the circuit court, which agreed that
the notice was improper, was correct that the subsequent passage of time cured the
deficiency. As the Kentucky Supreme Court in Shinkle, 496 S.W.3d 418,
decisively rejected the concept of curing, we conclude the court erred.
3 See also RESTATEMENT (SECOND) OF PROPERTY, LAND. & TEN. § 1.5 cmt. f (1977); 3A ROBERT A. KEATS, Ky. Prac. Real Estate Transactions § 26:11 (2021). 4 In contrast, as detailed in Shinkle, in cases in which URLTA does not apply, one month’s notice, with no constraints on when in the rental period it must be given, is all that is required by KRS 383.195. 5 KRS 383.565(2) establishes that the beginning of the month is the default periodic rental date unless the parties agree otherwise.
-6- In Shinkle, the Court denounced the lower court’s attempt to cure the
premature filing of a forcible detainer complaint by delaying its finding of guilt
until after the proper time for notice had expired. Id. at 423-24. In so holding, the
Court emphasized that, “[a] forcible detainer action focuses upon and determines
which party is entitled to present possession of the property at the commencement
of the action, not at some later date.” Id. at 422 (citations omitted). Herein, while
the circuit court did not expressly attempt to circumvent the applicable notice
requirements, its conclusion that the matter is moot has the same practical effect.
Noncompliant notices are considered invalid and cannot serve to terminate a
tenant’s right of possession. Pack v. Feuchtenberger, 232 Ky. 267, 22 S.W.2d 914
(1929). Absent proper notice to the Youngs, the Houses’ forcible detainer
complaint necessarily fails for want of a cause of action and should be dismissed.
Shinkle, 496 S.W.3d at 423; Clay v. Terrill, 670 S.W.2d 492 (Ky. App. 1984).
CONCLUSION
Therefore, and for the forgoing reasons, the opinion of the Pulaski
Circuit Court is REVERSED and the matter is REMANDED to the Pulaski District
Court for entry of an order vacating the forcible detainer judgment and dismissing
the underlying action.
ALL CONCUR.
-7- BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
James Fahringer Somerset, Kentucky
Evan B. Smith Prestonsburg, Kentucky
-8-