Taylor v. Barlow

378 S.W.3d 322, 2012 WL 4038434, 2012 Ky. App. LEXIS 170
CourtCourt of Appeals of Kentucky
DecidedSeptember 14, 2012
DocketNo. 2011-CA-001779-MR
StatusPublished
Cited by6 cases

This text of 378 S.W.3d 322 (Taylor v. Barlow) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taylor v. Barlow, 378 S.W.3d 322, 2012 WL 4038434, 2012 Ky. App. LEXIS 170 (Ky. Ct. App. 2012).

Opinion

OPINION

MAZE, Judge:

Appellant, Chester Taylor, appeals the Monroe Circuit Court’s sua sponte dismissal of his suit seeking records requested from the Appellee, Monroe County Sheriff and seeking damages pursuant to Kentucky’s Open Records Act (“KORA”) for that agency’s failure to disclose the documents in a timely manner. We reverse and remand, finding that the trial court erred in dismissing Taylor’s case for lack of standing and in finding that Taylor was engaged in the unauthorized practice of law.

We first note that Appellee has not submitted a brief on appeal. Pursuant to Civil Rule (“CR”) 76.12(8), when a party does not submit a brief within the time allowed, this Court may, among other options, accept Appellant’s statement of the facts and issues as correct. Under the circumstances presented in this case, we elect to do so.

In January of 2011, Michael Wayne Du-nagan, a citizen of Tennessee, executed a Limited Power of Attorney authorizing Chester Taylor (“Taylor”) to act in his name for the purpose of pursuing information pertaining to his 2009 arrest and treatment while in the custody of the Monroe County Sheriffs Department (“Sheriff’). Seven days after the execution of that document, Taylor filed a written Open Records Request with the Sheriffs office. Taylor signed the request form, listing himself as the requester and describing himself and as “a lawful representative of Michael Wayne Dunagan.” (“Request to Inspect Public Records” at 1). The Sheriff failed to respond to Taylor’s request and, as a result, Taylor filed an Open Records Appeal with the Attorney General’s Office, pursuant to KRS 61.880. The Sheriff did not respond. The Attorney General’s Office issued its decision in favor of Taylor on March 15, 2011, stating that the Sheriffs failure to release the requested documents constituted “a clear violation of KRS 61.880(1)” and requiring the Sheriff to remit “copies of any existing records in its custody which are responsive to [Tay[324]*324lor’s] request” unless they met an exception under KORA. ll-ORD-038 at 3. The Sheriff did not appeal the Attorney General’s decision, instead deciding to disclose some, but not all, of the documents Taylor originally requested. Pursuant to KRS 61.880(5)(b), the Attorney General’s decision took on the force and effect of law on April 14, 2011. On May 2, 2011, believing he still had not received all documents, and seeking damages for the Sheriff’s lack of compliance with KORA, Taylor filed suit in Monroe Circuit Court.

Taylor’s suit followed the normal preliminary steps of litigation until August 5, 2011, when the trial court issued a sua sponte order for a hearing to address the issue of Taylor’s standing. At the hearing, of paramount interest to the court was (1) that Taylor was not a licensed attorney, yet he was prosecuting a case on behalf of Mr. Dunagan; and (2) that the records Taylor sought did not pertain to him, but to Mr. Dunagan only, calling into question Taylor’s standing to sue. Taylor expressly denied that he was practicing law and further argued that, as the person requesting the information, he was the proper party in interest and was entitled to sue for the requested documents pursuant to KORA. After argument concluded, the trial court dismissed Taylor’s suit. As basis for the dismissal, the court cited Taylor’s lack of standing and the court’s belief that Taylor was engaged in the unauthorized practice of law under Frazee v. Citizens Fidelity Bank & Trust, 393 S.W.2d 778, 782 (Ky. 1965). This appeal followed.

On appeal, Taylor contends that the trial court erred in dismissing his suit. He argues that he is a pro se litigant and not engaged in the unauthorized practice of law. Taylor further asserts that, as the party requesting the records, he has standing to sue and is entitled, as a matter of law, to the records he is seeking pursuant to KORA. Additionally, Taylor argues that the court’s sua sponte dismissal of his suit violated his due process rights and that the court failed to follow the correct standard in dismissing his case. In reviewing the court’s decision, Taylor suggests that we apply the “clearly erroneous” standard. However, because the trial court is not required to make factual findings when ruling on a motion to dismiss, the determination is purely a matter of law; consequently, the Court of Appeals reviews the decision of the trial court de novo. Mitchell v. Coldstream Laboratories, Inc., 337 S.W.3d 642 (Ky.App.2010) (citing James v. Wilson, 95 S.W.3d 875 (Ky.App.2002) and Revenue Cabinet v. Hubbard, 37 S.W.3d 717 (Ky.2000)).

We begin with the court’s sua sponte dismissal of Taylor’s case on the basis that he lacked standing to sue under KORA. The Supreme Court of Kentucky has recognized that the “absence of specific authorization in the Civil Rules does not mean that a trial court is left without its inherent power and discretion to dismiss, sua sponte, ... when it is necessary to an orderly disposition of cases pending before it.” City of Hazard v. Baker, 419 S.W.2d 535 (Ky.1967). However, the Court has also stated that “[t]he trial court does not have unlimited discretion to dismiss with or without prejudice, and the basic criterion is whether the opposing party will suffer some substantial injustice or be substantially prejudiced.” Sublett v. Hall, 589 S.W.2d 888 (Ky.1979). The essential question becomes does KORA grant Taylor standing in the present case and did the trial court’s dismissal of his case for lack of standing cause him to “suffer some substantial injustice or be substantially prejudiced?” Id.

Because our primary concern is standing, it is unnecessary to provide the lengthy procedural steps established in [325]*325KORA for requesting and acquiring public records. It is enough to say that Taylor did not receive a response from the Sheriff within the time period required under KORA. Meanwhile, Taylor followed, nearly to the letter, the procedures set out in KORA, both for his initial request for records and his appeal of the Sheriffs failure to release those records, which culminated in this suit, his standing for which we now review.

In general, for a party to have standing, the interest of the party must be a present or substantial interest, as distinguished from a mere expectancy. Williams v. Phelps, 961 S.W.2d 40, 41 (Ky.App.1998) (citing Winn v. First Bank of Irvington, 581 S.W.2d 21, 23 (Ky.App. 1978)). A party must have a real, direct, present and substantial right in the subject matter of the controversy. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
378 S.W.3d 322, 2012 WL 4038434, 2012 Ky. App. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-barlow-kyctapp-2012.