RENDERED: MARCH 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-0623-MR
SKYLER GHENT, BY HIS NEXT FRIEND AND PARENT, JESSICA COLLINS APPELLANT
APPEAL FROM CLAY CIRCUIT COURT v. HONORABLE OSCAR G. HOUSE, JUDGE ACTION NO. 2023-CI-00027
CLAY COUNTY BOARD OF EDUCATION; WILLIAM SEXTON, IN HIS INDIVIDUAL CAPACITY AND HIS OFFICIAL CAPACITY AS SUPERINTENDENT AND/OR EMPLOYEE OF THE CLAY COUNTY BOARD OF EDUCATION/THE CLAY COUNTY PUBLIC SCHOOLS; STEVEN BIRCHFIELD, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS PRINCIPAL AND/ OR EMPLOYEE OF THE CLAY COUNTY MIDDLE SCHOOL AND/ OR THE CLAY COUNTY BOARD OF EDUCATION/THE CLAY COUNTY PUBLIC SCHOOLS; JIMMY DEZARN, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT PRINCIPAL AND/OR EMPLOYEE OF THE CLAY COUNTY MIDDLE SCHOOL AND/OR THE CLAY COUNTY BOARD OF EDUCATION /CLAY COUNTY PUBLIC SCHOOLS; AND UNKNOWN ADMINISTRATORS/STAFF/ TEACHERS/AIDES WORKING AT CLAY COUNTY MIDDLE SCHOOL AND/OR FOR THE CLAY COUNTY BOARD OF EDUCATION ON OR ABOUT FEBRUARY 16, 2022, IN THEIR INDIVIDUAL CAPACITY IN THEIR OFFICIAL CAPACITY AS AN EMPLOYEE OF THE CLAY COUNTY MIDDLE SCHOOL AND/ OR THE CLAY COUNTY BOARD OF EDUCATION/THE CLAY COUNTY PUBLIC SCHOOLS APPELLEES
OPINION AND ORDER DISMISSING
** ** ** ** **
BEFORE: EASTON, KAREM, AND TAYLOR, JUDGES.
KAREM, JUDGE: Skyler Ghent, by his next friend and parent, Jessica Collins
(“Ghent”), appeals from an order of the Clay Circuit Court dismissing his
complaint against the Clay County Board of Education, its Superintendent, and the
Principal and Assistant Principal of Clay County Middle School. Because the
order is interlocutory, this appeal must be dismissed for lack of jurisdiction.
-2- According to the allegations of the complaint, Ghent was a special
needs student at the Clay County Middle School. As such, he was subject to
individual monitoring, educational services, and collaborative planning. On
February 16, 2022, a student named T.S. physically assaulted Ghent as they exited
the school cafeteria. The complaint states that “[t]he Clay County Middle School
ostensibly employs a surveillance/camera system. This surveillance/camera
system ostensibly captured the assault in question. Administrators, staff, teachers,
and/or aides failed to monitor this surveillance/camera system . . . [and] [a]s a
result of the conduct detailed above, Skyler Ghent suffered permanent and severe
physical, mental, and emotional injuries.”
The complaint named as defendants the Clay County Board of
Education; the Superintendent, William Sexton, in his individual capacity and his
official capacity; the Principal of the Clay County Middle School, Steven
Burchfield,1 in his individual capacity and his official capacity; the Assistant
Principal, Jimmy Dezarn, in his individual capacity and his official capacity; and
unknown administrators/staff/teachers/aides working at the Middle School or for
the Board of Education at the time of the incident, in their individual and official
capacities.
1 The appellant spelled the name “Birchfield” in his complaint and in subsequent filings. The appellee corrected the spelling to Burchfield and that is the spelling we have adopted in this Opinion.
-3- The complaint contained the following counts: (1) common law
negligence; (2) violation of a special relationship created by Kentucky Revised
Statutes (KRS) 159.010, which mandates compulsory school attendance for
minors; (3) violation of the safe school mandate/policies contained in KRS
158.440(1); (4) violation of Restatement (Second) of Torts § 314A; (5) violation of
§§ 1, 2 and 3 of the Kentucky Constitution; and (6) negligent hiring, training,
supervision, and retention.
On March 27, 2023, Principal Burchfield, and Assistant Principal
Dezarn, in their individual and official capacities, filed an answer and notice that
they had served their first set of interrogatories and request for the production of
documents on Ghent.
On April 5, 2023, the Board of Education and Superintendent Sexton,
in his individual and official capacity, filed a motion to dismiss pursuant to
Kentucky Rules of Civil Procedure (CR) 12.02(f). On April 24, 2023, Principal
Burchfield, and Assistant Principal Dezarn, in their individual and official
capacities, also filed a motion to dismiss.
On April 27, 2023, Ghent filed notice that the plaintiff had served the
answers to the interrogatories and responses to the requests for the production of
documents.
-4- On May 3, 2023, Ghent filed a response to the motions to dismiss. On
the same day, the Board of Education and Superintendent Sexton filed a reply.
The trial court held a hearing on the following day, May 4, 2023, at
the conclusion of which it granted the motions to dismiss. On May 12, 2023, it
entered a written order of dismissal, ruling that the Board of Education was entitled
to governmental immunity as to all claims asserted against it; that Superintendent
Sexton, Principal Burchfield, and Assistant Principal Dezarn were entitled to
governmental immunity as to all claims asserted against them in their official
capacities; and that Superintendent Sexton, Principal Burchfield and Assistant
Principal Dezarn were entitled to qualified immunity as to all claims asserted
against them in their individual capacities. The trial court also dismissed the
specific claims in the complaint alleging violations of the Kentucky Constitution;
all claims asserted under KRS 159.010 or KRS 158.440(1)-(2); and all claims
brought pursuant to Restatement (Second) of Torts § 314A.
The order concludes by stating that the “motions of the Board of
Education and William Sexton in his individual and official capacity and Steven
Burchfield and Jimmy Dezarn in their individual and official capacities are hereby
GRANTED.” It further states that “[t]he claims of the Plaintiff against Clay
County Board of Education, William Sexton in his official and individual capacity,
and Jimmy Dezarn in his official and individual capacity are hereby DISMISSED,
-5- with prejudice, each party to bear their own costs.” The order concludes with the
statement that “[t]his order is final and appealable.”
The order makes no mention of the “unknown administrators/staff/
teachers/aides working at the Middle School or for the Board of Education,”
designated as defendants in the complaint. The record before us is silent as to any
attempts to identify, serve, or dispose of the claims against these unknown
defendants.
“Generally, our appellate jurisdiction is restricted to final judgments.”
Steffan v. Smyzer by and through Rankins, 540 S.W.3d 387, 390 (Ky. App. 2018).
Although the parties did not raise the issue of jurisdiction in their briefs, “we are
the guardians of our jurisdiction and thus are obligated to raise a jurisdictional
issue sua sponte if the underlying order appears to lack finality.” Padgett v.
Steinbrecher, 355 S.W.3d 457, 459-60 (Ky. App. 2011).
“A final or appealable judgment” is defined as “a final order
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RENDERED: MARCH 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-0623-MR
SKYLER GHENT, BY HIS NEXT FRIEND AND PARENT, JESSICA COLLINS APPELLANT
APPEAL FROM CLAY CIRCUIT COURT v. HONORABLE OSCAR G. HOUSE, JUDGE ACTION NO. 2023-CI-00027
CLAY COUNTY BOARD OF EDUCATION; WILLIAM SEXTON, IN HIS INDIVIDUAL CAPACITY AND HIS OFFICIAL CAPACITY AS SUPERINTENDENT AND/OR EMPLOYEE OF THE CLAY COUNTY BOARD OF EDUCATION/THE CLAY COUNTY PUBLIC SCHOOLS; STEVEN BIRCHFIELD, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS PRINCIPAL AND/ OR EMPLOYEE OF THE CLAY COUNTY MIDDLE SCHOOL AND/ OR THE CLAY COUNTY BOARD OF EDUCATION/THE CLAY COUNTY PUBLIC SCHOOLS; JIMMY DEZARN, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS ASSISTANT PRINCIPAL AND/OR EMPLOYEE OF THE CLAY COUNTY MIDDLE SCHOOL AND/OR THE CLAY COUNTY BOARD OF EDUCATION /CLAY COUNTY PUBLIC SCHOOLS; AND UNKNOWN ADMINISTRATORS/STAFF/ TEACHERS/AIDES WORKING AT CLAY COUNTY MIDDLE SCHOOL AND/OR FOR THE CLAY COUNTY BOARD OF EDUCATION ON OR ABOUT FEBRUARY 16, 2022, IN THEIR INDIVIDUAL CAPACITY IN THEIR OFFICIAL CAPACITY AS AN EMPLOYEE OF THE CLAY COUNTY MIDDLE SCHOOL AND/ OR THE CLAY COUNTY BOARD OF EDUCATION/THE CLAY COUNTY PUBLIC SCHOOLS APPELLEES
OPINION AND ORDER DISMISSING
** ** ** ** **
BEFORE: EASTON, KAREM, AND TAYLOR, JUDGES.
KAREM, JUDGE: Skyler Ghent, by his next friend and parent, Jessica Collins
(“Ghent”), appeals from an order of the Clay Circuit Court dismissing his
complaint against the Clay County Board of Education, its Superintendent, and the
Principal and Assistant Principal of Clay County Middle School. Because the
order is interlocutory, this appeal must be dismissed for lack of jurisdiction.
-2- According to the allegations of the complaint, Ghent was a special
needs student at the Clay County Middle School. As such, he was subject to
individual monitoring, educational services, and collaborative planning. On
February 16, 2022, a student named T.S. physically assaulted Ghent as they exited
the school cafeteria. The complaint states that “[t]he Clay County Middle School
ostensibly employs a surveillance/camera system. This surveillance/camera
system ostensibly captured the assault in question. Administrators, staff, teachers,
and/or aides failed to monitor this surveillance/camera system . . . [and] [a]s a
result of the conduct detailed above, Skyler Ghent suffered permanent and severe
physical, mental, and emotional injuries.”
The complaint named as defendants the Clay County Board of
Education; the Superintendent, William Sexton, in his individual capacity and his
official capacity; the Principal of the Clay County Middle School, Steven
Burchfield,1 in his individual capacity and his official capacity; the Assistant
Principal, Jimmy Dezarn, in his individual capacity and his official capacity; and
unknown administrators/staff/teachers/aides working at the Middle School or for
the Board of Education at the time of the incident, in their individual and official
capacities.
1 The appellant spelled the name “Birchfield” in his complaint and in subsequent filings. The appellee corrected the spelling to Burchfield and that is the spelling we have adopted in this Opinion.
-3- The complaint contained the following counts: (1) common law
negligence; (2) violation of a special relationship created by Kentucky Revised
Statutes (KRS) 159.010, which mandates compulsory school attendance for
minors; (3) violation of the safe school mandate/policies contained in KRS
158.440(1); (4) violation of Restatement (Second) of Torts § 314A; (5) violation of
§§ 1, 2 and 3 of the Kentucky Constitution; and (6) negligent hiring, training,
supervision, and retention.
On March 27, 2023, Principal Burchfield, and Assistant Principal
Dezarn, in their individual and official capacities, filed an answer and notice that
they had served their first set of interrogatories and request for the production of
documents on Ghent.
On April 5, 2023, the Board of Education and Superintendent Sexton,
in his individual and official capacity, filed a motion to dismiss pursuant to
Kentucky Rules of Civil Procedure (CR) 12.02(f). On April 24, 2023, Principal
Burchfield, and Assistant Principal Dezarn, in their individual and official
capacities, also filed a motion to dismiss.
On April 27, 2023, Ghent filed notice that the plaintiff had served the
answers to the interrogatories and responses to the requests for the production of
documents.
-4- On May 3, 2023, Ghent filed a response to the motions to dismiss. On
the same day, the Board of Education and Superintendent Sexton filed a reply.
The trial court held a hearing on the following day, May 4, 2023, at
the conclusion of which it granted the motions to dismiss. On May 12, 2023, it
entered a written order of dismissal, ruling that the Board of Education was entitled
to governmental immunity as to all claims asserted against it; that Superintendent
Sexton, Principal Burchfield, and Assistant Principal Dezarn were entitled to
governmental immunity as to all claims asserted against them in their official
capacities; and that Superintendent Sexton, Principal Burchfield and Assistant
Principal Dezarn were entitled to qualified immunity as to all claims asserted
against them in their individual capacities. The trial court also dismissed the
specific claims in the complaint alleging violations of the Kentucky Constitution;
all claims asserted under KRS 159.010 or KRS 158.440(1)-(2); and all claims
brought pursuant to Restatement (Second) of Torts § 314A.
The order concludes by stating that the “motions of the Board of
Education and William Sexton in his individual and official capacity and Steven
Burchfield and Jimmy Dezarn in their individual and official capacities are hereby
GRANTED.” It further states that “[t]he claims of the Plaintiff against Clay
County Board of Education, William Sexton in his official and individual capacity,
and Jimmy Dezarn in his official and individual capacity are hereby DISMISSED,
-5- with prejudice, each party to bear their own costs.” The order concludes with the
statement that “[t]his order is final and appealable.”
The order makes no mention of the “unknown administrators/staff/
teachers/aides working at the Middle School or for the Board of Education,”
designated as defendants in the complaint. The record before us is silent as to any
attempts to identify, serve, or dispose of the claims against these unknown
defendants.
“Generally, our appellate jurisdiction is restricted to final judgments.”
Steffan v. Smyzer by and through Rankins, 540 S.W.3d 387, 390 (Ky. App. 2018).
Although the parties did not raise the issue of jurisdiction in their briefs, “we are
the guardians of our jurisdiction and thus are obligated to raise a jurisdictional
issue sua sponte if the underlying order appears to lack finality.” Padgett v.
Steinbrecher, 355 S.W.3d 457, 459-60 (Ky. App. 2011).
“A final or appealable judgment” is defined as “a final order
adjudicating all the rights of all the parties in an action or proceeding[.]” CR
54.01. The final order in this case is interlocutory because it does not adjudicate
all the rights of all the parties. An interlocutory judgment may nonetheless be
made final and appealable under CR 54.02, which states in relevant part
When more than one claim for relief is presented in an action . . . or when multiple parties are involved, the court may grant a final judgment upon one or more but less than all of the claims or parties only upon a
-6- determination that there is no just reason for delay. The judgment shall recite such determination and shall recite that the judgment is final. In the absence of such recital, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is interlocutory[.]
CR 54.02(1); CR 54.01.
Thus, “an interlocutory order may only be made final and appealable
if the order includes both recitations – (1) that there is no just cause for delay, and
(2) the decision is final. Strict compliance with the rule is required.” Vorherr v.
Coldiron, 525 S.W.3d 532, 540 (Ky. App. 2017) (citation omitted). “A trial
court’s failure to conclude both recitations in a judgment renders it interlocutory
and nonappealable.” Id. The trial court’s order in this case does not include the
recitation that “there is no just reason for delay.” Consequently, we have no
alternative but to dismiss this appeal for lack of jurisdiction.
For the foregoing reasons, this appeal is hereby DISMISSED.
ENTERED: March 15, 2024____ JUDGE, COURT OF APPEALS
ALL CONCUR.
-7- BRIEF FOR APPELLANT: BRIEF FOR APPELLEES CLAY COUNTY BOARD OF EDUCATION Wm. Jacob Roberts AND WILLIAM SEXTON: Manchester, Kentucky Elizabeth Deener Dr. Kenneth J. Henry Lexington, Kentucky Louisville, Kentucky BRIEF FOR APPELLEES STEVEN BURCHFIELD AND JIMMY DEZARN:
Melissa Thompson Richardson Thomas Wright Lexington, Kentucky
-8-