Sheronda Bailey, as Mother and Next Friend of Katlin Edwards ("k.E.") v. Christopher Collins

• Court: Court of Appeals of Kentucky
• Decided: December 1, 2022
• Docket: 2021 CA 000485
• Status: Unknown

Opinion

RENDERED: DECEMBER 2, 2022; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0485-MR

SHERONDA BAILEY, AS MOTHER AND NEXT FRIEND OF KATLIN EDWARDS APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MITCH PERRY, JUDGE ACTION NO. 17-CI-002515

CHRISTOPHER COLLINS; FLOYD ALEXANDER; AND JEFFERSON COUNTY BOARD OF EDUCATION APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, LAMBERT, AND MAZE, JUDGES.

MAZE, JUDGE: Sheronda Bailey, as mother and next friend of Katlin Edwards

(Bailey), appeals from summary judgments of the Jefferson Circuit Court

dismissing her statutory, negligence, and battery claims against the Jefferson County Board of Education (Board), Assistant Principal Christopher Collins (A.P.

Collins), and Floyd Alexander (Alexander). First, we conclude that this appeal

should not be dismissed for failure to name an indispensable party. We next

conclude that Bailey’s statutory appeal from the Board’s action is moot. We

further agree with the trial court that A.P. Collins and Alexander were acting

within the scope of their discretionary duties and that Bailey failed to show that

they were acting in bad faith. Finally, in the absence of a showing of bad faith or

malice, Bailey was not entitled to proceed on the battery claims against A.P.

Collins and Alexander. Hence, we affirm the summary judgments.

The claims in this case arise out of incidents which occurred at

Iroquois High School on January 27, 2017. While the parties disagree about the

details of those incidents, the basic outline of those events are as follows. At the

time, Katlin Edwards (Edwards) was in eleventh grade at Iroquois High School,

which is part of the Jefferson County Public Schools (JCPS) system. Following a

pep rally, multiple fights broke out among the students. Edwards was in the

auditorium waiting for her bus. Along with numerous other students, she

attempted to exit the auditorium into the lobby.

As Edwards was attempting to leave, she was walking behind A.P.

Collins. A.P. Collins testified that he felt a student push him forward from behind.

He turned around and yelled at Edwards, “Pushing an A.P. is six days”; a threat of

-2- a six-day suspension from school. A.P. Collins states that he told Edwards to stop

pushing and sit back down. Edwards did not initially believe that A.P. Collins was

addressing her. In response to A.P. Collins’ statement, Edwards stepped aside but

continued through the doorway.

Edwards denies ever pushing A.P. Collins, while A.P. Collins states

that Edwards pushed him two more times. In any event, a scuffle ensued, during

which A.P. Collins attempted to restrain Edwards. Security Guard Alexander

arrived and assisted A.P. Collins in pinning Edwards against a wall. Edwards

alleges that she suffered injuries as a result of the restraint used by both A.P.

Collins and Alexander.

Following this incident, Edwards was escorted to the Iroquois school

offices, where she was met by her mother, Bailey, and the principal, Clay

Holbrook. Later that day, Bailey and Edwards were advised that Principal

Holbrook had imposed a ten-day suspension on Edwards. Edwards filed an appeal

of the action as provided by the JCPS Handbook, but her appeals were denied at

each level.

On May 19, 2017, Bailey, on behalf of Edwards, filed a complaint

naming the Board, A.P. Collins, and Alexander. The complaint asserted claims

for: (1) judicial review pursuant to KRS1 13B.150 of the final order affirming the

1 Kentucky Revised Statutes.

-3- suspension; (2) negligence by A.P. Collins and Alexander in their use of force to

restrain Edwards; and (3) battery by A.P. Collins and Alexander in their use of

force to restrain Edwards.

On April 27, 2020, Bailey filed a motion for summary judgment on

the claim against the Board under KRS Chapter 13B. Bailey argued she was

entitled to a judgment on that claim due to the Board’s failure to file the

administrative record, as required by KRS 13B.140(3). The Board filed a reply

and a cross-motion for summary judgment, arguing that an informal hearing

resulting in a suspension was not subject to judicial review under KRS Chapter

13B. On September 29, 2020, the trial court denied Bailey’s motion and granted

the Board’s motion for summary judgment. The trial court agreed with the Board

that the suspension procedures do not fall under the scope of a formal

administrative hearing as defined by KRS 13B.010(2).

Thereafter, A.P. Collins and Alexander filed a motion for summary

judgment, arguing that the claims based on negligence and battery were barred by

qualified immunity. They argued that their actions to restrain Edwards were

discretionary duties made in good faith. Bailey responded that their use of force

was a ministerial function not subject to qualified immunity. In an order entered

on April 7, 2021, the trial court agreed with A.P. Collins and Alexander and

-4- dismissed the remaining claims. This appeal followed. Additional facts will be set

forth below as necessary.

As an initial matter, the Appellees have moved to dismiss this appeal

for failure to join an indispensable party. On May 19, 2017, the original complaint

in this action was filed, naming as plaintiff “Sheronda Bailey, Individually and as

mother and Next Friend of [Katlin Edwards].” At the time the complaint was filed,

Edwards was still a minor. On April 27, 2020, Bailey filed a motion pursuant to

CR2 15.01 to file an amended complaint substituting Edwards as the plaintiff. The

motion stated that Edwards had reached the age of majority.

The trial court heard the motion on June 15, 2020. However, no order

appears in the record granting the motion to substitute parties. Nevertheless, the

Board, A.P. Collins, and Alexander filed an answer to the amended complaint.

Edwards was listed as plaintiff in the parties’ subsequent pleadings, but Bailey

continued to be listed as plaintiff in the trial court’s orders. The notice of appeal

named Bailey, individually and in her capacity as mother and next friend of

Edwards, as Appellant.

The Appellees argue that the notice of appeal was defective because

Bailey ceased to be the plaintiff or real party in interest. As a result, they contend

2 Kentucky Rules of Civil Procedure.

-5- that this Court lacks jurisdiction to consider the merits of the appeal. Under the

circumstances presented in this case, we disagree.

“[T]he notice of appeal is the means by which an appellant invokes

the appellate court’s jurisdiction.” Nelson County Bd. of Educ. v. Forte, 337

S.W.3d 617, 626 (Ky. 2011) (citation omitted); CR 73.03. An appellant’s “failure

to name an indispensable party in the notice of appeal is a jurisdictional defect that

cannot be remedied.” Forte, 337 S.W.3d at 626 (internal quotation marks and

citation omitted). “An indispensable party is one whose absence prevents the

Court from granting complete relief among those already parties . . . [or] one

whose interest would be divested by an adverse judgment.” Liquor Outlet, LLC v.

Alcoholic Beverage Control Bd., 141 S.W.3d 378, 387 (Ky. App. 2004) (citations

omitted). Accordingly, absent any indispensable party, we lack jurisdiction to hear

the appeal. Forte, 337 S.W.3d at 626.

But as noted above, the trial court never entered an order granting

Edwards’ motion to substitute as a party. Circuit courts speak “only through

written orders entered upon the official record.” Kindred Nursing Centers Ltd.

Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010). See also Oakley v.

Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012). Furthermore, a reviewing court

“cannot infer rulings not made explicit by the trial court.” Erie Ins. Exchange v.

Johnson, 647 S.W.3d 198, 202 (Ky. 2022). In the absence of an order substituting

-6- Edwards as plaintiff, Bailey remained the only plaintiff before the trial court, as

well as the only party who could have filed a notice of appeal. Therefore, Edwards

was not an indispensable party to this appeal.

Turning to the merits, Bailey argues that the Board, A.P. Collins, and

Alexander were not entitled to summary judgment. “[T]he proper function of

summary judgment is to terminate litigation when, as a matter of law, it appears

that it would be impossible for the respondent to produce evidence at the trial

warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Service Center,

Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, stipulations, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

law.” 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, 807 S.W.2d at 480. The trial court must examine the evidence,

not to decide any issue of fact, but to discover if a real issue exists. Id. Since a

summary judgment involves no fact-finding, this Court’s review is de novo, in the

sense that we owe no deference to the conclusions of the trial court. Scifres v.

Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

-7- The first issue concerns the trial court’s dismissal of Bailey’s appeal

of Edwards’ suspension pursuant to KRS Chapter 13B. The trial court found that

an informal adjudicatory proceeding resulting in a suspension is not an

“administrative hearing” subject to an appeal under that Chapter. Bailey notes that

Section 2 of the Kentucky Constitution bars governmental agencies from arbitrary

action. Bailey argues that due process requires an opportunity for judicial review

of the Board’s action in suspending Edwards, even if it is characterized as an

informal proceeding.

However, we must conclude that any appeal arising under KRS

Chapter 13B has become moot. “A ‘moot case’ is one which seeks to get a

judgment . . . upon some matter which, when rendered, for any reason, cannot have

any practical legal effect upon a then existing controversy.” Morgan v. Getter, 441

S.W.3d 94, 98-99 (Ky. 2014) (emphasis in original) (quoting Benton v. Clay, 192

Ky. 497, 233 S.W. 1041, 1042 (1921)). In general, an appellate court is without

jurisdiction to reach the merits of a moot appeal as the judicial power extends only

to justiciable controversies. Kentucky High School Athletics Ass’n v. Runyon, 920

S.W.2d 525 (Ky. 1996).

Here, it is undisputed that Edwards already served the suspension, and

she is no longer a student in the JCPS system. Edwards is no longer subject to the

Board’s authority and there is no allegation that she will suffer any future

-8- consequences from the suspension. Consequently, neither this Court nor the trial

court could grant either Bailey or Edwards any meaningful relief within the scope

of KRS Chapter 13B.

We recognize that a technically moot case may nonetheless be

adjudicated on its merits where the nature of the controversy is such that “the

challenged action is too short in duration to be fully litigated prior to its cessation

or expiration and . . . there is a reasonable expectation that the same complaining

party would be subject to the same action again.” Bolton v. Irvin, 373 S.W.3d 432,

434 (Ky. 2012) (quoting Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992)).

Second, we may review the matter under the public interest exception set out by

the Kentucky Supreme Court in Morgan, supra. A court may review an otherwise

moot case when “(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.” 441 S.W.3d at 102

(citation omitted). We conclude that neither exception is applicable.

In the case of the first exception, Edwards is no longer a student in the

JCPS system, so there is no reasonable expectation that Edwards would be subject

to the same type of action again. As to the second exception, we agree that the

question presented is of a public nature. But there is no showing of a need for an

authoritative determination or a likelihood of future recurrence of the question.

-9- And if the question should again arise, it may be addressed in the appropriate case.

Therefore, we decline to address this matter further.

Bailey next argues that the trial court erred by dismissing her claims

against A.P. Collins and Alexander based on qualified immunity. As discussed

above, we are obligated to view the facts in the light most favorable to the party

opposing the motion for summary judgment. Steelvest, 807 S.W.2d at 480.

However, the application of immunity is a question of law, which this Court

reviews de novo. Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006); and

Patton v. Bickford, 529 S.W.3d 717, 723 (Ky. 2016), as modified on denial of

reh’g (Aug. 24, 2017).

Generally, qualified official immunity is “immunity from tort liability

afforded to public officers and employees for acts performed in the exercise of

their discretionary functions.” Patton, 529 S.W.3d at 723 (quoting Yanero v.

Davis, 65 S.W.3d 510, 521 (Ky. 2001)). “Qualified immunity applies only to the

negligent performance of duties that are discretionary in nature.” Id. at 723-24. In

contrast, qualified immunity is not provided for the negligent performance of a

ministerial act. Id. at 724.

The Court in Patton further explained that a ministerial duty is one

that “requires only obedience to the orders of others.” Id. (citations omitted). In

other words, a duty is ministerial “when the officer’s duty is absolute, certain, and

-10- imperative, involving merely execution of a specific act arising from fixed and

designated facts.” Id. “The point is that a government official performing a

ministerial duty does so without particular concern for his own judgment” or,

stated another way, “the act is ministerial ‘if the employee has no choice but to do

the act.’” Id. (quoting Marson v. Thomason, 438 S.W.3d 292, 297 (Ky. 2014)).

In contrast, discretionary acts are “good faith judgment calls made in a

legally uncertain environment” and involve “personal deliberation, decision, and

judgment[.]” Yanero, 65 S.W.3d at 522. Particularly pertinent to the issues in this

appeal is Yanero’s explanation of the proper application of the doctrine of qualified

immunity:

But when sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment. 63C Am. Jur. 2d, Public Officers and Employees, § 309 (1997). 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, id. § 322; (2) in good faith; and (3) within the scope of the employee’s authority. Id. § 309; Restatement (Second) Torts, supra, § 895D cmt. g. 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.

-11- In this case, the trial court concluded that A.P. Collins and Alexander

acted within the scope of their discretionary authority when they restrained

Edwards. The court found, unlike in Yanero, their decision to restrain Edwards did

not involve enforcement of a known rule about when and how to apply restraint.

Bailey disagrees, noting that the general supervision of students is usually regarded

as ministerial in nature, “as it requires enforcement of known rules.” Patton, 529

S.W.3d at 727 (quoting Marson, 438 S.W.3d at 301). Bailey argues that school

staff’s decisions on when and how to employ physical restraint of students are

likewise subject to known rules. Thus, Bailey takes the position that those duties

are inherently ministerial, rather than discretionary.

We agree with Bailey that there are rules and protocols on when

physical restraint may be used on a student in public school. 704 KAR3 7:160 §

3(3)(a) provides that physical restraint may only be used if “[t]he student’s

behavior poses an imminent danger of physical harm to self or others[.]”

Moreover, physical restraint may only be used if “[l]ess restrictive behavioral

interventions have been ineffective in stopping the imminent danger of physical

harm to self or others, except in the case of a clearly unavoidable emergency

situation posing imminent danger of physical harm to self or others[.]” 704 KAR

7:160 § 3(3)(d). Finally, physical restraint may only be used if the school

3 Kentucky Administrative Regulations.

-12- personnel implementing the restraint is “appropriately trained as required by

Section 6(3) of [the] regulation, except to the extent necessary to prevent physical

harm to self or others in clearly unavoidable emergency circumstances where other

school personnel intervene and summon trained school personnel as soon as

possible.” 704 KAR 7:160 § 3(3)(e).

“A ministerial duty may involve ascertainment of . . . facts, and an

officer may be permitted some discretion with respect to the means or method to

be employed[.]” Patton, 529 S.W.3d at 724 (internal quotation marks and citations

omitted). But the focus is whether a government official performing a ministerial

duty does so without particular concern for his own judgment. Id. In contrast, a

duty is discretionary because it is “so situation specific, and because it requires

judgment rather than a fixed, routine performance[.]” Marson, 438 S.W.3d at 299.

Here, the decisions by A.P. Collins and Alexander to use physical

restraint against Edwards involved an exercise of their judgment within the scope

of the established policies within a very specific situation. Their actions were the

result of the personal deliberation, decision, and judgment that are the hallmarks of

a discretionary series of actions. Therefore, we agree with the trial court that their

actions were discretionary in nature.

At that point, the burden then shifted to Bailey to prove that A.P.

Collins and Alexander acted in bad faith. See Rowan County, 201 S.W.3d at 475-

-13- 76. Here, Bailey made no such showing. As a result, the trial court properly

dismissed her negligence claims against A.P. Collins and Alexander.

Bailey separately argues that the trial court erred by dismissing the

battery claims based on qualified immunity. Battery is “any unlawful touching of

the person of another, either by the aggressor himself, or by any substance set in

motion by him[.]” Vitale v. Henchey, 24 S.W.3d 651, 657 (Ky. 2000). Moreover,

battery is “an intentional tort; it is not committed by a negligent act.” Id. at 656

(citation omitted). Qualified immunity is typically not available for intentional

torts for which malice or bad faith is an element. Martin v. O’Daniel, 507 S.W.3d

1, 5-6 (Ky. 2016).

But as discussed above, Bailey had the burden of showing that A.P.

Collins and Alexander acted with malice or in bad faith while using physical

restraint against Edwards. Here, there is no such showing, nor does Bailey point to

any evidence of record that their touching of Edwards was otherwise unlawful.

Acting with malice and acting in good faith are mutually exclusive. Id. For this

reason, the trial court properly granted summary judgment on the battery claim.

Accordingly, we affirm the summary judgments of the Jefferson

Circuit Court.

ALL CONCUR.

-14- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:

Teddy B. Gordon Byron E. Leet Andrew E. Mize John W. Woodard, Jr. Louisville, Kentucky Julie Laemmle Watts Marianna J. Michael Louisville, Kentucky

-15-