Supreme Court of Kentucky
2020-SC-0091-MR
LOUISVILLE/JEFFERSON COUNTY METRO APPELLANTS
GOVERNMENT AND PARKING AUTHORITY
OF RIVER CITY, INC.
ON APPEAL FROM COURT OF APPEALS
V. NO. 2019-CA-1681
JEFFERSON CIRCUIT COURT
NOS. 07-CI-004289 & 08-CI-001063
HONORABLE OLU A. STEVENS, JUDGE, APPELLEE
JEFFERSON CIRCUIT COURT,
DIVISION SIX (6)
AND
TODD BOLUS AND L. STANLEY
CHAUVIN, III REAL PARTIES IN INTEREST
OPINION AND ORDER
Arguing immunity from suit, Louisville Metro Government (LMG) and
Parking Authority of River City, Inc. (PARC) (collectively Metro), filed a matter of
right appeal from the Kentucky Court of Appeals’ denial of a petition for a writ
of mandamus directing Jefferson Circuit Court Judge Olu A. Stevens to rule on
a summary judgment motion filed on May 22, 2017. During the pendency of
this expedited appeal, Judge Stevens issued an order on April 13, 2021,
granting summary judgment to LMG and dismissing with prejudice all claims
against it based on sovereign immunity. However, PARC’s claim of
governmental immunity was rejected based on multiple issues of material fact
culminating in denial of its request for summary judgment. PARC may now
seek an immediate interlocutory appeal under Breathitt County Bd. of Educ. v.
Prater, 292 S.W.3d 883, 887 (Ky. 2009).
Metro’s sole purpose in petitioning for a writ, which the appellate panel
denied when reviewing the matter as an original appeal under Kentucky Rules
of Civil Procedure (CR) 76.36, was securing a ruling on a nearly four-year-old
summary judgment motion. Metro’s purpose was fulfilled when Judge Stevens
ruled—granting partial summary judgment, dismissing LMG and clearing the
way for PARC to pursue an interlocutory appeal. Thus, we have no option but
to dismiss the appeal as moot as urged by the real parties in interest and
subsequently by Metro.
Assertion of immunity is a threshold issue which must be determined
before a case may proceed. An entity cloaked in immunity is protected against
the costs of trial, including broad discovery, which may disrupt and distract
government. Lexington-Fayette Urban County Government v. Smolcic, 142
S.W.3d 128, 135 (Ky. 2004) (citation omitted). Immunity exists not to insulate
the government, but “for the benefit of the public.” Pierson v. Ray, 386 U.S.
547, 554 (1967).
Metro began its quest for a ruling on claims of immunity in December
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2017 when it filed its first of three AOC-280’s 1 alerting the trial court a
summary judgment motion had been fully briefed and was ready for final
adjudication. Granting summary judgment to LMG has ended its participation
in this class action litigation about enforcement of parking tickets initially filed
in federal court in 2007. 2 In contrast, having been denied summary judgment,
PARC may now file an immediate interlocutory appeal under Prater. Without a
ruling from the Jefferson Circuit Court, however, the case was in limbo leaving
Metro nothing to appeal to a higher court but having to defend the case despite
claims of immunity.
In January 2020, the Court of Appeals denied the writ petition believing
Metro had an adequate remedy by appeal—a condition precedent to issuance of
a writ. Cox v. Braden, 266 S.W.3d 792, 797 (Ky. 2008). From the appellate
panel’s perspective, Judge Stevens was to hear the motion on March 12, 2020,
and a trial was to begin on June 23, 2020, providing ample time in between for
an interlocutory appeal to run its course if Judge Stevens denied a claim of
immunity. Because Metro did not challenge the trial court’s jurisdiction to act,
1 AOC-280 is a statewide form. In Jefferson County it serves as a means of
docket control to prevent cases from being overlooked. The process is reflected in
Supreme Court Rule (SCR) 1.050(8) and Kentucky Revised Statutes 454.350. When a
case is ready for submission, Jefferson Rules of Practice 401 requires a written
summary judgment motion be filed—using Form AOC-280—coupled with a
memorandum of authority. Said motion shall not be noticed for motion hour but oral
argument may be requested.
2 Oberhausen v. Louisville-Jefferson County Metro Government, 527 F.Supp.2d
713 (W.D. Ky. 2007). All federal constitutional claims were dismissed, and all
remaining claims were remanded to state court. Oberhausen did not challenge the
federal court’s resolution, prompting Metro to argue adequacy of windshield notice is
now the law of the case and bars further litigation. Yeoman v. Commonwealth, Health
Policy Bd., 983 S.W.2d 459, 464-65 (Ky. 1998).
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issuance of a writ required Metro to demonstrate both an inadequate appellate
remedy and that it would suffer great and irreparable harm if forced to proceed.
Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). The panel found Metro had
an adequate remedy by appeal or otherwise and denied the petition. Metro
filed a matter of right appeal in this Court.
On the surface, it may have appeared Metro had an adequate remedy by
appeal. Goldstein v. Feeley, 299 S.W.3d 549, 554 (Ky. 2009), the basis of the
panel’s six-page order denying the petition, says a hearing is “itself an available
remedy.” But, as Metro argued, Judge Stevens’ setting of a hearing date was
merely “illusory”—many hearing dates were set in this case and delayed. There
is no indication the Court of Appeals considered the basis of Metro’s summary
judgment motion—the threshold issue of immunity—unnecessarily delaying
Metro’s ability to pursue an immediate interlocutory appeal under Prater by
another year. Moreover, Metro’s request was for a ruling, not a hearing.
We wrote in Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006),
“[s]ummary judgments play an especially important role when dealing with
immunities,” and immunity entitles its possessor to be free “from the burdens
of defending the action, not merely . . . from liability.” (citations omitted). More
than cursory review of a writ petition is required to ensure resolution of an
immunity claim is not unreasonably delayed. Judge Stevens’ delayed ruling, at
least as to LMG, has required Metro to defend against a class action lawsuit—
demanding $3.9 million in damages—for nearly four extra years. Quantifying
when a matter becomes stale is fact-dependent, but, based on the information
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before us, this nearly four-year delay caused the public treasury to bear an
unreasonable expenditure of time and money.
Nevertheless, the real parties in interest have moved to dismiss this
appeal as moot. On August 14, 2020, that motion was passed for
consideration with the merits. On May 4, 2021, Metro moved to dismiss this
appeal as moot. Having now issued his ruling, Judge Stevens has dismissed
all claims against LMG and cleared the path for PARC to pursue an immediate
interlocutory appeal. Metro’s request for a ruling on its summary judgment
motion having been issued, the need for a writ of mandamus no longer exists.
Therefore, the motions to DISMISS this appeal as MOOT are hereby
GRANTED.
All sitting. All concur.
ENTERED: June 17, 2021.
_______________________________________
CHIEF JUSTICE
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