Southpointe Partners, LLC v. Louisville Metro Government

RENDERED: MAY 14, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2019-CA-1784-MR

SOUTHPOINTE PARTNERS, LLC APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 19-CI-002529

LOUISVILLE METRO APPELLEES
GOVERNMENT; LOUISVILLE
METRO PLANNING COMMISSION;
VINCE JARBOE, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
LOUISVILLE METRO PLANNING
COMMISSION AND IN HIS
INDIVIDUAL CAPACITY; DAVID
TOMES, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
LOUISVILLE METRO PLANNING
COMMISSION AND IN HIS
INDIVIDUAL CAPACITY; ROBERT
PETERSON, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
LOUISVILLE METRO PLANNING
COMMISSION AND IN HIS
INDIVIDUAL CAPACITY; EMMA
SMITH, IN HER OFFICIAL
CAPACITY AS A MEMBER OF THE
LOUISVILLE METRO PLANNING
COMMISSION AND IN HER
INDIVIDUAL CAPACITY; LULA
HOWARD, IN HER OFFICIAL
CAPACITY AS A MEMBER OF THE
LOUISVILLE METRO PLANNING
COMMISSION AND IN HER
INDIVIDUAL CAPACITY; MARILYN
LEWIS, IN HER OFFICIAL
CAPACITY AS A MEMBER OF THE
LOUISVILLE METRO PLANNING
COMMISSION AND IN HER
INDIVIDUAL CAPACITY; JEFF
BROWN, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
LOUISVILLE METRO PLANNING
COMMISSION AND IN HIS
INDIVIDUAL CAPACITY; RICH
CARLSON, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
LOUISVILLE METRO PLANNING
COMMISSION AND IN HIS
INDIVIDUAL CAPACITY; RUTH
DANIELS, IN HER OFFICIAL
CAPACITY AS A MEMBER OF THE
LOUISVILLE METRO PLANNING
COMMISSION AND IN HER
INDIVIDUAL CAPACITY; DONALD
ROBINSON, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
LOUISVILLE METRO PLANNING
COMMISSION AND IN HIS
INDIVIDUAL CAPACITY; EMILY
LIU, IN HER INDIVIDUAL
CAPACITY; JOE REVERMAN, IN
HIS INDIVIDUAL CAPACITY; JEFF
O’BRIEN, IN HIS INDIVIDUAL
CAPACITY; LACEY GABBARD, IN
HER INDIVIDUAL CAPACITY;
JODY MEIMAN, IN HIS
INDIVIDUAL CAPACITY; KELLY
JONES, IN HIS INDIVIDUAL

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CAPACITY; AND BETH ALLEN, IN
HER INDIVIDUAL CAPACITY

AND NO. 2020-CA-0195-MR

SOUTHPOINTE PARTNERS, LLC APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 19-CI-006441

VINCE JARBOE; BETH ALLEN; APPELLEES
DAVID TOMES; DONALD
ROBINSON; EMILY LIU; EMMA
SMITH; JEFF BROWN; JEFF
O’BRIEN; JODY MEIMAN; JOE
REVERMAN; KELLY JONES;
LACEY GABBARD; LULA
HOWARD; MARILYN LEWIS; RICH
CARLSON; ROBERT PETERSON;
AND RUTH DANIELS, ALL IN
THEIR INDIVIDUAL CAPACITIES

OPINION
AFFIRMING

** ** ** ** **

BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.

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JONES, JUDGE: SouthPointe Partners, LLC (“Southpointe”) appeals the

judgments of Divisions Nine and Thirteen of the Jefferson Circuit Court.

SouthPointe originally filed suit against the Louisville Metro

Government, the Louisville Metro Planning Commission (the “Planning

Commission”), and its members, Vince Jarboe, David Tomes, Robert Peterson,

Emma Smith, Lulu Howard, Marilyn Lewis, Jeff Brown, Rich Carlson, Ruth

Daniels, and Donald Robinson in their official capacities; this action was assigned

to Jefferson Circuit Court Division Nine. Therein, SouthPointe sought to appeal a

decision of the Planning Commission pursuant to KRS1 100.347 and asserted the

following additional claims as against all defendants: (1) declaratory and

injunctive relief; (2) negligence; (3) violation of 42 U.S.C.2 § 1983; and (4) a claim

that Louisville’s Land Development Code is unconstitutionally vague. After

finding in SouthPointe’s favor with respect to its KRS 100.347 appeal, the circuit

court dismissed the remainder of SouthPointe’s claims and denied it leave to

amend its complaint to add claims against each of the Planning Commission

members in their individual capacities.

Subsequently, SouthPointe filed a second, separate suit against the

Planning Commission members in their individual capacities as well as against

1
Kentucky Revised Statutes.
2
United States Code.

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seven other advisory officials, Emily Liu, Joe Reverman, Jeff O’Brien, Lacey

Gabbard, Jody Meiman, Kelly Jones, and Beth Allen. This suit, which was based

on the same conduct involved in the Division Nine suit, was assigned to the

Division Thirteen of the Jefferson Circuit Court. This suit was ultimately

dismissed after the circuit court determined that it arose from the same common

nucleus of operative facts as the Division Nine suit, and therefore, was an

impermissible attempt to claims split by SouthPointe.

On appeal, SouthPointe challenges: (1) the dismissal of its claims in

the Division Nine suit; (2) the circuit court’s denial of its motion to amend its

complaint in the Division Nine suit; and (3) the circuit court’s dismissal of the

Division Thirteen suit. Having reviewed the record, and being otherwise

sufficiently advised, we affirm as to each assignment of error.

I. BACKGROUND

SouthePointe, a commercial developer, is currently in the process of

constructing SouthPointe Commons, a more than $80 million development in Fern

Creek, Jefferson County, Kentucky. The Planning Commission approved the

development in 2010, including the name of the main street of the development,

“SouthPointe Boulevard.” The actual construction of the development was

delayed for several years as a result of unrelated litigation, but SouthPointe’s

predecessor-in-interest and managing member, Bardstown Capital Corporation,

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eventually won that litigation. Subsequently, in 2018, SouthPointe applied for the

approval of a minor plat (“the Minor Plat”) in the development using its previously

approved street name.

While reviewing the Minor Plat, the Planning Commission discovered

a preexisting street named “Southpointe Boulevard” elsewhere in town. The

Planning Commission admitted that this was an oversight in its initial 2010 review

but refused to approve the Minor Plat until SouthPointe changed the duplicitous

street name. However, the Planning Commission also rejected SouthPointe’s

suggested alternative, “SouthPointe Commons Boulevard,” because it was

supposedly two letters too long according to a 16-letter limitation for public street

names found in the Land Development Code.

Yet again, the Planning Commission asked SouthPointe to rename its

main street. However, this time, SouthPointe refused, and the Planning

Commission allowed SouthPointe to apply for a waiver of the 16-letter

requirement. SouthPointe did so, and a hearing was scheduled on the matter. The

Louisville Department of Emergency Services (“Emergency Services”) objected to

the waiver by written letter, asserting a number of public safety concerns,3 but did

not attend the hearing.

3
Emergency Services alleged that the 16-letter limitation was necessary for maximizing
visibility of street signs for emergency responders, due to letter size and the susceptibility of long
signs to twist or bend in heavy winds.

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 On April 18, 2019, the Planning Commission held a second public

hearing to consider SouthPointe’s waiver request. This time, an Emergency

Services representative appeared. Six of the ten Planning Commission members,

David Tomes, Robert Peterson, Lulu Howard, Jeff Brown, Rich Carlson, and Ruth

Daniels, were also present. The Planning Commission voted 4-2 that it did not

have the authority to grant the requested waiver because of the purported safety

and welfare requirement within the Land Development Code. The present

members of the Planning Commission acknowledged that the 16-letter requirement

only applied to public street names but expressed their concern on the record with

regard to proceeding against the objections of Emergency Services. The Planning

Commission then voted 6-0 to approve the Minor Plat – on the condition that

SouthPointe change the name of its main street to an unclaimed name conforming

with the 16-letter limitation.

On April 23, 2019, SouthPointe filed case No. 19-CI-002529 in

Jefferson Circuit Court. This action was assigned to Division Nine. SouthPointe

brought the following claims: (1) an appeal of the Planning Commission’s

decision pursuant to KRS 100.347; (2) a claim for declaratory and injunctive relief;

(3) a negligence claim; (4) a 42 U.S.C. § 1983 claim; and (5) a claim that

Louisville’s Land Development Code is unconstitutionally vague. SouthPointe

sued Louisville Metro Government, the Planning Commission, and all of the

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Planning Commission’s members in their official capacities (collectively referred

to as “Louisville Metro”), including those who did not attend the April 18, 2019,

meeting.

On June 5, 2019, SouthPointe moved for partial summary judgment

on its KRS 100.347 appeal based upon the administrative record. On July 22,

2019, SouthPointe appeared at the appointed time for the hearing on its motion for

partial summary judgment; however, the County Attorney representing Louisville

Metro did not appear until the trial court summoned him by telephone. The circuit

court refused to grant Louisville Metro a continuance and, on July 26, 2019,

granted SouthPointe summary judgment on its KRS 100.347 appeal, ordering

Louisville Metro to approve the Minor Plat so that construction could move

forward.

On August 13, 2019, Louisville Metro moved for summary judgment

on the remaining claims against it, arguing that it was protected from paying

monetary damages by sovereign immunity. SouthPointe disagreed, arguing that

the Claims Against Local Government Act (CALGA) contained a statutory waiver

of immunity, and on August 21, 2019, moved for leave to amend its complaint.

SouthPointe’s proposed First Amended Complaint sought to name the Planning

Commission members in their individual capacities as defendants and add six more

defendants to SouthPointe’s negligence claim, in both their official and individual

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capacities: Emily Liu, Joe Reverman, and Lacey Gabbard (three advisory-type

officials with Louisville Metro Planning and Design Services), and Jody Meiman,

Kelly Jones, and Beth Allen (three advisory officials with Louisville Metro

Emergency Services). The proposed First Amended Complaint alleged that,

together, the individual defendants “refused to approve” SouthPointe’s Minor Plat

because of its 18-character street name and denied the requested waiver.

SouthPointe alleged that the individual defendants had breached their “duty to

perform or assist in the performance” of approving the Minor Plat in a timely

manner and that none of these defendants was immune from liability.

On September 13, 2019, Division Nine denied SouthPointe’s motion

to amend, explaining that amendment was futile as the claims were destined for

dismissal:

CR[4] 15.01 states that, “. . . a party may amend his
pleading only by leave of the court or by written consent
of the adverse party; and leave shall be freely given when
justice so requires.” CR 15 makes no reference to post-
verdict motions other than the language of CR 15.02
which allows amendments to conform to the evidence.
This portion of the rule is interpreted in Lawrence v.
Marks, 355 S.W.2d 162 (Ky. 1961), wherein the Court
stated that, “The trial court has a broad discretion in
granting leave to amend, but the discretion is not without
limitations. In Garrison v. Baltimore & O. R. Co.,
D.C.Pa.1957, 20 F.R.D. 190, the court indicated that
significant factors to be considered in determining

4
Kentucky Rules of Civil Procedure.

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 whether to grant leave to amend are timeliness, excuse
for delay, and prejudice to the opposite party.”

Defendants assert that, in this case, justice does not
require leave to amend since SouthPointe has no viable
negligence or 42 U.S.C. 1983 claims against the
proposed defendants. They contend that none of the
seven new defendants voted on the SouthPointe
development and four Planning Commission Members
did not even attend the April 18, 2019 meeting. They
further argue that KRS 100.347 does not provide for
monetary damages. Defendants cite the case of Robbins
v. New Cingular Wireless, PSC, LLC, 854 F.3d 315 (6th
Cir. 2017), in which the unsuccessful litigants in an
administrative appeal then filed a civil action seeking
monetary damages alleging negligence, negligence per
se, gross negligence and nuisance. The Court concluded
that, “[b]ecause [KRS 100.347] offers plaintiffs an
adequate and excessive remedy (i.e. appeal to a Kentucky
court) for grievances related to a planning board’s
decision, a court must dismiss any collateral attack that
seeks solely to rehash the same complaints.”

The Robbins case deals with the dismissal and not
with the granting of a motion to amend. However,
recognized limitations upon amendments include
unreasonable delay and futility of amendment. [Emphasis
added] Shah v. American Synthetic Rubber Corp., 655
S.W.2d 489 (Ky. 1983); First National Bank of
Cincinnati v. Hartman, 747 S.W.2d 614 (Ky. App. 1988).
Given the arguments of Defendants with regard to the
propriety of SouthPointe’s claims, the Court finds that
SouthPointe’s Motion to Amend is not warranted; even if
permitted there are valid grounds for granting a motion to
dismiss.

Record on Appeal (“R.”) at 191-92.

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 SouthPointe subsequently filed a motion for reconsideration, which

the circuit court denied on October 7, 2019:

Plaintiff continues to argue that it may bring its
tort claims in addition to its request for relief pursuant to
KRS 100.347. This is simply not the case. Robbins v.
New Cingular Wireless, PSC, LLC, 854 F.3d 315 (Ky.
2017) clearly provides that KRS 100.347 is the exclusive
remedy for one aggrieved by the actions of the Planning
Commission. The statute does not provide for tort
damages.

Similarly, Plaintiff once again argues that its 42
U.S.C. § 1983 claims are not frivolous. As noted in
Defendant’s Response, “A federal cause of action alleged
under 42 U.S.C. § 1983 or otherwise, simply does not
necessarily arise from every wrong which is allegedly
committed under color of state law. Studen v. Beebe, 588
F.2d 560 (6th Cir. 1978).” The Studen case also arises
out of a zoning dispute. Similarly, the case of Kentner v.
Martin County, 929 F. Supp. 1482 (S.D. Fla. 1996) held
that the actions of the zoning authorities did not rise to
the level of a constitutional claim. The delay alleged by
Plaintiff certainly does not rise to that level.

While Snyder v. Owensboro, 528 S.W.2d 663 (Ky.
1975) held that approval of a plat is a ministerial act, the
case is distinguishable. It did not apply to a claim for
damages against the Planning Commission and the
application of qualified immunity. The governing law on
the issue of qualified immunity is set forth in Yanero v.
Davis, 65 S.W.3d 510 (Ky. 2002), in which the Court
stated that, “when sued in their individual capacities,
public officers and employees, enjoy only qualified
immunity, which affords protection from damages
liability for good faith judgment calls made in a legally
uncertain environment. [Citation omitted]. Qualified
official immunity applies to the negligent performance by
a public officer or employee of (1) discretionary acts or

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 functions, i.e., those involving the exercise of discretion
and judgment, or personal deliberation, decision, and
judgment, [Citation omitted] (2) in good faith; and (3)
within the scope of the employee’s authority.” Further,
the Court noted that, “An act is not necessarily
“discretionary” just because the officer performing it has
some discretion with respect to the means or methods
employed.” Conversely, a ministerial action is “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.” As argued by Defendant, the
officials herein performed a discretionary function when
they considered and voted upon the plat herein.

The elements of negligence are set forth in
Pathways, Inc. v. Hammons, 113 S.W.3d 85 (Ky. 2003).
In order to show negligence a plaintiff must prove (1)
duty; (2) breach of standard of care; (3) causation; and
(4) injury. In this case no authority has been cited to the
Court which holds that officers who did not participate in
the administrative hearing are responsible to a plaintiff
aggrieved by a Planning Commission decision. Thus,
Plaintiff is unable to establish the first element of
negligence.

The Court has no basis to vacate its previous
Opinion and Order. Justice does not require leave to
amend where the claims asserted are futile. Such claims
are futile where, as here, they will be defeated by a
properly pleaded motion to dismiss.

R. at 234-36.

Consequently, on October 15, 2019, SouthPointe filed a second claim,

case No. 19-CI-006441, against the sixteen Louisville Metro officers and

employees in their individual capacities, which was assigned to Division Thirteen

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of the Jefferson Circuit Court. SouthPointe asserted the same negligence and 42

U.S.C. § 1983 claims for monetary damages as well as a negligence per se claim

based upon the same events as in its Division Nine suit. SouthPointe

acknowledged the motion for summary judgment in case No. 19-CI-002529

pending before Division Nine but asserted that its suit before Division Thirteen

was the first time that claims were brought against the individual-capacity

defendants. Louisville Metro filed a motion to consolidate the new Division

Thirteen case with the original claim pending in Division Nine, which SouthPointe

did not oppose.

However, on November 4, 2019, before the claims could be

consolidated, Division Nine granted Louisville Metro summary judgment on the

remaining claims:

Metro is entitled to claim sovereign immunity on
the grounds that no action may be brought against the
state or a county without consent or waiver. Yanero v.
Davis, 658 S.W.3d 510 (Ky. 2001). The same immunity
is granted to consolidated local governments. Jewish
Hosp. Healthcare Services, Inc. v. Louisville/Jefferson
Metro Government, 270 S.W.3d 905 (Ky. App. 2008).
Specifically, immunity has been afforded to Planning
Commissions. Northern Area Planning Commission v.
Cloyd, 332 S.W.3d 91 (Ky. App. 2010). Individual
members are entitled to immunity when sued in their
official capacities. Schwindel v. Meade County, 113
S.W.3d 159 (Ky. 2003). Metro also contends that
pursuant to KRS 100.347 no monetary damages are
available. The case of Snyder v. Owensboro, 528 S.W.2d
663 (Ky. 1975) specifically holds that failure to timely

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 consider and approve a minor plat is ministerial in nature.
KRS 100.281 (1) provides for such approval to occur in
90 days.

The [CALGA] states that nothing “shall be
construed to exempt a local government from liability for
negligence arising out of acts or omissions of its
employees in carrying out their ministerial duties.” KRS
65.2003. However, CALGA does not provide for a
waiver of immunity. Schwindel, supra. Such a waiver
may only be made by the General Assembly.
Department of Corrections v. Furr, 23 S.W.3d 615 (Ky.
2000). KRS 100.347 provides the exclusive remedy for
those aggrieved by actions or inactions of the Planning
Commission . . . .

The Court finds that the Planning Commission
and its members are immune. The Schwindel case
specifically holds that CALGA does not act as a waiver
of immunity for the tortious performance of ministerial
acts. The approval of a minor plat is just such a
ministerial act. Snyder, supra.

IT IS HEREBY ORDERED AND ADJUDGED
that Defendant’s motion for partial summary judgment is
GRANTED on the grounds of sovereign immunity.

R. at 239-41.

Thereafter, on January 30, 2020, Division Thirteen dismissed

SouthPointe’s suit, finding that SouthPointe’s claims in the Division Thirteen suit

arose “from the same common nucleus of operative facts as those in [the case

before Division Nine], and constitute[d] [SouthPointe’s] attempt to impermissibly

split its cause of action.” R. at 354-56.

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 On December 2, 2019, SouthPointe filed its notice of appeal in case

No. 19-CI-002529, and on February 3, 2020, filed its notice of appeal in case No.

19-CI-006441. The two cases were later consolidated for appellate purposes.

II. STANDARD OF REVIEW

“[S]ummary judgment is to be cautiously applied and should not be

used as a substitute for trial” unless “there is no legitimate claim under the law and

it would be impossible to assert one given the facts.” Steelvest, Inc. v. Scansteel

Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991); Shelton v. Kentucky Easter Seals

Soc’y, Inc., 413 S.W.3d 901, 916 (Ky. 2013), as corrected (Nov. 25, 2013). A

motion for summary judgment should be granted “[o]nly when it appears

impossible for the nonmoving party to produce evidence at trial warranting a

judgment in his favor” even when the evidence is viewed in the light most

favorable to him. Steelvest, 807 S.W.2d at 482; Shelton, 413 S.W.3d at 905. To

survive a properly supported summary judgment motion, the opposing party must

have presented “at least some affirmative evidence showing that there is a genuine

issue of material fact for trial.” Steelvest, 807 S.W.2d at 482; see also Neal v.

Welker, 426 S.W.2d 476, 479 (Ky. 1968) (“When the moving party has presented

evidence showing that . . . there is no genuine issue of any material fact, it becomes

incumbent upon the adverse party to counter that evidentiary showing by some

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form of evidentiary material reflecting that there is a genuine issue pertaining to a

material fact.”).

“The standard of review on appeal of a summary judgment is whether

the trial court correctly found that there were no genuine issues as to any material

fact and that the moving party was entitled to judgment as a matter of law.” Scifres

v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing CR 56.03). Because there

are no factual findings at issue, the appellate court reviews that trial court’s

decision de novo. Shelton, 413 S.W.3d at 905.

Likewise, we review a circuit court’s granting of a motion to dismiss

de novo. Benningfield v. Pettit Env’t, Inc., 183 S.W.3d 567, 570 (Ky. App. 2005).

A motion to dismiss should only be granted if “it appears
the pleading party would not be entitled to relief under
any set of facts which could be proved in support of his
claim.” Pari-Mutuel Clerks’ Union v. Kentucky Jockey
Club, 551 S.W.2d 801, 803 (Ky. 1977). When ruling on
the motion, the allegations in “the pleadings should be
liberally construed in a light most favorable to the
plaintiff and all allegations taken in the complaint to be
true.” Gall v. Scroggy, 725 S.W.2d 867, 868 (Ky. App.
1987). In making this decision, the trial court is not
required to make any factual findings. James v. Wilson,
95 S.W.3d 875, 884 (Ky. App. 2002). Therefore, “the
question is purely a matter of law.” Id.

Id.

Our standard of review of a denial of leave to amend a complaint is

whether the circuit court abused its discretion. Kenney v. Hanger Prosthetics &

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Orthotics, Inc., 269 S.W.3d 866, 869 (Ky. App. 2007). “The test for abuse of

discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,

or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999) (citations omitted).

III. ANALYSIS

SouthPointe appeals three rulings: (1) Division Nine’s denial of

SouthPointe’s motion for leave to amend its original complaint to add the

individual-capacity claims; (2) Division Nine’s summary judgment for Louisville

Metro on sovereign immunity grounds; and (3) Division Thirteen’s dismissal of

SouthPointe’s individual-capacity claims.

We first address SouthPointe’s contention that Division Nine abused

its discretion in denying SouthPointe’s motion for leave to amend its complaint.

More specifically, we must determine whether KRS 100.347 provides an exclusive

remedy for claimants aggrieved by the final action of a planning commission. For

the following reasons, we hold that Division Nine did not abuse its discretion in

denying SouthPointe’s motion for leave to amend its complaint to include the

seventeen individual-capacity defendants.

KRS 100.347(2) provides:

Any person or entity claiming to be injured or aggrieved
by any final action of the planning commission shall
appeal from the final action to the Circuit Court of the
county in which the property, which is the subject of the

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 commission’s action, lies. Such appeal shall be taken
within thirty (30) days after such action. Such action
shall not include the commission’s recommendations
made to other governmental bodies. All final actions
which have not been appealed within thirty (30) days
shall not be subject to judicial review. Provided,
however, any appeal of a planning commission action
granting or denying a variance or conditional use permit
authorized by KRS 100.203(5) shall be taken pursuant to
this subsection. In such case, the thirty (30) day period
for taking an appeal begins to run at the time the
legislative body grants or denies the map amendment for
the same development. The planning commission shall
be a party in any such appeal filed in the Circuit Court.

SouthPointe maintains that “[w]hile these officials’ failure to perform

a discretionary act may only give rise to a KRS 100.347 appeal, their failure to

timely perform the ministerial act of approving the Minor Plat gives rise to both a

KRS 100.347 appeal and tort claims.” Appellant’s Brief (“Br.”) at 12 (emphasis in

original). SouthPointe provides no supporting authority for the creative contention

that KRS 100.347 distinguishes between ministerial and discretionary acts, and we

decline to assume that undertaking.

SouthPointe is correct that the Planning Commission members’

approval of a minor plat is a ministerial duty. “Yanero v. Davis, 65 S.W.3d 510

(Ky. 2001), provides the framework for deciding whether a public officer or

employee is afforded immunity from tort liability.” Ritchie v. Turner, 559 S.W.3d

822, 831 (Ky. 2018). “[W]hen sued in their individual capacities, public officers

and employees enjoy only qualified official immunity, which affords protection

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from damages liability for good faith judgment calls made in a legally uncertain

environment.” Yanero, 65 S.W.3d at 521. Under Yanero, “an officer or employee

is afforded no immunity from tort liability for 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. at 522. As

explained by Snyder, 528 S.W.2d 663, it is black letter law that the approval of a

minor plat like that of SouthPointe is a ministerial duty. Id. at 664 (“[T]he

approval of subdivision plats is a ministerial act. That our statute so intends is

made obvious by the provision of KRS 100.281 that the planning commission may

delegate to its secretary or any other officer or employee the power to approve

plats.”).

However, SouthPointe’s reliance on Yanero for support in its

proposition that an official’s failure to timely perform the ministerial act of

approving a minor plat gives rise to both a KRS 100.347 appeal and tort claims is

misplaced. In Yanero, the Kentucky Supreme Court held that a coach’s duty to

supervise students during school-sponsored activities “was a ministerial, rather

than a discretionary, function in that it involved only the enforcement of a known

rule requiring that student athletes wear batting helmets during baseball batting

practice.” Yanero, 65 S.W.3d at 529. The Yanero plaintiffs brought a variety of

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tort claims for the failed performance of that ministerial duty; they did not bring a

statutory claim, nor was one available to them as an exclusive remedy. See id. at

517. Yanero does not address claims brought under Kentucky statutory law;

therefore, the distinction between whether a statute precludes additional common

law claims lies elsewhere.

Under Kentucky law, “[w]here the statute both declares the unlawful

action and specifies the civil remedy available to the aggrieved party, the aggrieved

party is limited to the remedy provided by the statute.” Waugh v. Parker, 584

S.W.3d 748, 753 (Ky. 2019) (citing Grzyb v. Evans, 700 S.W.3d 399, 304 (Ky.

1985)) (other internal citations omitted); see also Hill v. Kentucky Lottery Corp.,

327 S.W.3d 412, 421 (Ky. 2010); Mendez v. University of Kentucky Board of

Trustees, 357 S.W.3d 534, 545 (Ky. App. 2011). Likewise, under federal law,

“where . . . ‘a statute expressly provides a remedy, courts must be especially

reluctant to provide additional remedies.’” Sandoz Inc. v. Amgen Inc., 137 S. Ct.

1664, 1675 (2017) (quoting Karahalios v. Federal Employees, 489 U.S. 527, 533

(1989)).

Here, KRS 100.347 provides for a remedy, just not the remedial or

monetary damages SouthPointe desires. Because KRS 100.347 “offers plaintiffs

an adequate and exclusive remedy (i.e., appeal to a Kentucky court) for grievances

related to a planning board’s decision, a court must dismiss any collateral attack

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that seeks solely to rehash the same complaints.” Robbins, 854 F.3d at 321;

Warren County Citizens for Managed Growth, Inc. v. Board of Comm’rs, 207

S.W.3d 7, 17 (Ky. App. 2006) (citations omitted) (“Because [KRS 100.347]

affords an adequate remedy, a separate declaratory judgment action is not

appropriate.”).

With regard to whether a plaintiff may bring claims under KRS

100.347 and common law to address the same alleged wrong done by a planning

commission, we find Robbins v. New Cingular Wireless PCS, LLC, supra, to be

persuasive.5 In that case, several Kentucky residents brought an action in state

court against AT&T, the holder of a permit authorizing the construction of a

cellphone tower near the residents’ homes. Id. at 318. The residents challenged

the planning commission’s decision to grant the permit under KRS 100.347 in state

circuit court. Id. Before the circuit court could dismiss the appeal, the residents

filed a second, separate lawsuit against AT&T asserting claims for negligence,

negligence per se, gross negligence, and nuisance.6 Id. at 318. The plaintiffs’ tort

claims were dismissed for failure to state a claim, in part because the claims were

barred by state law. Id. at 318-19. On appeal, the Robbins plaintiffs alleged that

5
State courts are not bound by the decisions of lower federal courts; “[r]ather, the approach
taken by federal courts may be viewed as persuasive but it is not binding.” U.S., ex rel. U.S.
Attorneys ex rel. Eastern, Western Districts of Kentucky v. Kentucky Bar Ass’n, 439 S.W.3d 136,
147 (Ky. 2014).
6
New Cingular removed the case to federal court based on diversity jurisdiction. Id.

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their “tort claims amount to more than a second shot at appealing the

Commission’s decision because they allege harms independent” of the

Commission’s decision and that because KRS 100.347 “authorizes a court to

review planning decisions, but not ‘property damages and common law tort

damages due to an incompatible land use,’ their tort claims do not attack the

Commission’s decision.” Id. at 322. The Sixth Circuit dismissed both arguments

because the Robbins plaintiffs could not show that “their harms [arose] from

anything other than the Commission’s decision.” Robbins, 854 F.3d at 321.

SouthPointe attempts to distinguish Robbins from the present case by

arguing that, unlike the Robbins plaintiffs who lost on their KRS 100.347 appeal,

SouthPointe won its appeal. SouthPointe argues that the Robbins plaintiffs

impermissibly “attempted to use tort claims to collaterally attack the planning

commission’s discretionary approval of the tower permit.” Appellant’s Br. at 13

(Robbins, 854 F.3d at 318, 320-22). Indeed, the procedural histories of these two

cases are different; however, ultimately, the fact that SouthPointe prevailed on its

KRS 100.347 appeal is irrelevant because it is not the issue of collateral attack that

bars SouthPointe’s tort and 42 U.S.C. § 1983 claims. Rather, the question of

whether a plaintiff like SouthPointe is permitted to bring additional claims hinges

on whether a Kentucky statute provides both the unlawful action and the remedy.

KRS 100.347 does. Like the Robbins plaintiffs, SouthPointe has not shown that its

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harms arise from anything other than a planning commission decision and is

therefore limited to its statutory action pursuant to KRS 100.347. See Greater

Cincinnati Marine Service, Inc. v. City of Ludlow, 602 S.W.2d 427 (Ky. 1980)

(holding that claims which are broader in scope than implicated within the context

of a zoning appeal may be brought by a separate complaint).

Consequently, SouthPointe’s proposed amendments to its complaint

including the additional individual-capacity defendants are futile. “Although

amendments should be freely allowed, the trial court has wide discretion and may

consider such factors as the failure to cure deficiencies by amendment or the

futility of the amendment itself.” First Nat’l Bank of Cincinnati v. Hartman, 747

S.W.2d 614, 616 (Ky. App. 1988). “The decision to grant or deny leave to amend

[a complaint] is ultimately left to the discretion of the trial court, which will not be

disturbed absent an abuse of that discretion.” Nami Res. Co., L.L.C. v. Asher Land

and Min., Ltd., 554 S.W.3d 323, 343 (Ky. 2018) (quoting Kenney, 269 S.W.3d at

869-70). Division Nine denied SouthPointe’s motion for leave to amend its

complaint, recognizing that there are “limitations upon amendments including

unreasonable delay and futility of amendment.” R. at 192. SouthPointe moved to

amend its complaint for the sole purpose of pursuing its tort and 42 U.S.C. § 1983

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claims – in context of this case no amendment could have made those claims

viable in light of the exclusive remedy offered by KRS 100.347.7

Next, we address the issue of whether Division Nine erred in granting

summary judgment on SouthPointe’s damages claims in favor of Metro and its

official-capacity defendants on sovereign immunity grounds. While this argument

is ultimately moot because of the exclusive remedy provided by KRS 100.347, we

wish to provide a brief clarification regarding Louisville Metro and the Planning

Commission’s immunity.

“Louisville Metro is a government entity” entitled to sovereign

immunity. Louisville/Jefferson County Metro Gov’t v. Cowan, 508 S.W.3d 107,

109 (Ky. App. 2016); see Lexington-Fayette Urban County Gov’t v. Smolcic, 142

S.W.3d 128, 132 (Ky. 2004) (“[U]rban county governments constitute a new

classification of county government . . . entitled to sovereign immunity”). “A

consolidated local government shall be accorded the same sovereign immunity

granted counties, their agencies, officers, and employees.” KRS 67C.101(2)(e).

“Sovereign immunity affords the state absolute immunity from suit and ‘extends to

public officials sued in their representative (official) capacities, when the state is

the real party against which relief in such cases is sought.’” Cowan, 508 S.W.3d at

7
For the same reason, SouthPointe’s damage claims against Louisville Metro and the official-
capacity defendants are precluded by KRS 100.347.

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109 (quoting Yanero, 65 S.W.3d at 517-18). A waiver of sovereign immunity may

only be made by the General Assembly. Furr, 23 S.W.3d at 616.

SouthPointe contends that CALGA, codified by KRS 65.200, et seq.,

waives Louisville Metro’s sovereign immunity. Specifically, SouthPointe relies

upon KRS 65.2003, which states:

Notwithstanding KRS 65.2001, a local government shall
not be liable for injuries or losses resulting from:

(1) Any claim by an employee of the local government
which is covered by the Kentucky workers’
compensation law;

(2) Any claim in connection with the assessment or
collection of taxes;

(3) Any claim arising from the exercise of judicial, quasi-
judicial, legislative or quasi-legislative authority or
others, exercise of judgment or discretion vested in the
local government, which shall include by example, but
not be limited to:

(a) The adoption or failure to adopt any ordinance,
resolution, order, regulation, or rule;

(b) The failure to enforce any law;

(c) The issuance, denial, suspension, revocation of,
or failure or refusal to issue, deny, suspend or
revoke any permit, license, certificate, approval,
order or similar authorization;

(d) The exercise of discretion when in the face of
competing demands, the local government
determines whether and how to utilize or apply
existing resources; or

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 (e) Failure to make an inspection.

Nothing contained in this subsection shall be construed
to exempt a local government from liability for
negligence arising out of acts or omissions of its
employees in carrying out their ministerial duties.

(Emphasis added.)

According to SouthPointe, the final line of KRS 65.2003 functions as

a waiver of Louisville Metro’s immunity. However, our Supreme Court previously

addressed SouthPointe’s very argument and rejected it in Schwindel v. Meade

County, 113 S.W.3d 159 (Ky. 2003). Our Supreme Court explained that “[p]er

KRS 65.200(3), CALGA applies not only to counties but also to municipalities and

taxing districts,” although, significantly, those entities enjoy different degrees of

immunity. Id. at 164. According to the Schwindel Court:

Obviously, the General Assembly knew the difference
between a section and a subsection and intended the last
sentence of KRS 65.2003 (section 18 of the Act) to
pertain only to subsection (3), which pertains only to
municipalities which, as noted supra, are not immune
from vicarious liability for the tortious performance of
ministerial duties by [their] employees.

Schwindel, 113 S.W.3d at 166.

In other words, the section upon which SouthPointe mistakenly relies

as waiving Louisville Metro’s immunity applies only to municipalities, not local

governments and government entities. As previously mentioned, Louisville Metro

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is a government entity, not a municipality, and has therefore not waived its

immunity for damages suits.8

Finally, we address whether Division Thirteen erred in holding that

SouthPointe impermissibly split its claims. After a review of the record and

applicable case law, we agree with the circuit court’s dismissal of SouthPointe’s

second claim, case No. 19-CI-006441. Regardless of SouthPointe’s motivation for

filing a second lawsuit against the individual defendants, SouthPointe may not split

its causes of action stemming from the same nucleus of operative fact.

SouthPointe cites to Coomer v. CSX Transp. Inc., 319 S.W.3d 366,

370 (Ky. 2010), for its contention that it may bring separate claims against the

individual-capacity defendants. According to Coomer, for litigation to be barred

by claim splitting, a form of claim preclusion, three elements must be present: (1)

identity of the parties; (2) identity of the causes of action; and (3) final resolution

on the merits. Id. at 371. However, SouthPointe fails to acknowledge the Coomer

Court’s explanation that claim preclusion and claim splitting, although “closely

related,” are actually separate rules. Id. According to our Supreme Court:

8
Similarly, Kentucky law affords planning commissions governmental immunity. Cloyd, 332
S.W.3d at 96. “‘[G]overnmental immunity’ is the public policy, derived from the traditional
doctrine of sovereign immunity, that limits imposition of tort liability on a government agency.”
Yanero, 65 S.W.3d at 519 (quoting 57 AM. JUR. 2D, Municipal, County, School and State Tort
Liability, § 10 (2001)). Accordingly, planning commissions “can be sued for damages for the
tortious performance of a proprietary function but not a governmental function.” Schwindel, 113
S.W.3d at 168.

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 The rule [against claim splitting], “found in Restatement
(Second) of Judgments, §§ 24 and 26, is an equitable
rule, limiting all causes of action arising out of a single
‘transaction’ to a single procedure.” It rests upon the
concept that “parties are required to bring forward their
whole case” and may not try it piecemeal. Therefore, it
“applies not only to the points upon which the court was
required by the parties to form an opinion and pronounce
judgment, but to every point which properly belonged to
the subject of litigation, and which the parties, exercising
reasonable diligence, might have brought forward at the
time.”

“The key inquiry in deciding whether the lawsuits
concern the same controversy is whether they both arise
from the same transactional nucleus of facts.”

Id. (citations omitted).9

9
The Coomer Court recognized that claim splitting is subject to a number of exceptions, none of
which has been argued by SouthPointe. The exceptions in full are:

(a) The parties have agreed in terms or in effect that the plaintiff
may split his claim, or the defendant has acquiesced therein; or

(b) The court in the first action has expressly reserved the
plaintiff’s right to maintain the second action; or

(c) The plaintiff was unable to rely on a certain theory of the case
or to seek a certain remedy or form of relief in the first action
because of the limitations on the subject matter jurisdiction of the
courts or restrictions on their authority to entertain multiple
theories or demands for multiple remedies or forms of relief in a
single action, and the plaintiff desires in the second action to rely
on that theory or to seek that remedy or form of relief; or

(d) The judgment in the first action was plainly inconsistent with
the fair and equitable implementation of a statutory or
constitutional scheme, or it is the sense of the scheme that the
plaintiff should be permitted to split his claim; or

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 It is under this equitable rule that SouthPointe’s claim before Division

Thirteen fails. SouthPointe has never disputed that its claim arose from the same

“transaction.” Id. Accordingly, under Kentucky law, SouthPointe was required to

bring its claim against the various defendants in a single lawsuit rather than

piecemeal.

IV. CONCLUSION

For the foregoing reasons, we affirm the judgments of both Division

Nine and Division Thirteen of the Jefferson Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:

Christopher W. Brooker John F. Carroll
Louisville, Kentucky Travis J. Fiechter
Louisville, Kentucky

(e) For reasons of substantive policy in a case involving a
continuing or recurrent wrong, the plaintiff is given an option to
sue once for the total harm, both past and prospective, or to sue
from time to time for the damages incurred to the date of suit, and
chooses the latter course; or

(f) It is clearly and convincingly shown that the policies favoring
preclusion of a second action are overcome for an extraordinary
reason, such as the apparent invalidity of a continuing restraint or
condition having a vital relation to personal liberty or the failure of
the prior litigation to yield a coherent disposition of the
controversy.

RESTATEMENT (SECOND) OF JUDGMENTS § 26 (1982). SouthPointe has not relied upon any of
these exceptions, and so our analysis stops here.

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