RENDERED: JULY 22, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0475-MR
PARKING AUTHORITY OF RIVER
CITY, INC. APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 07-CI-004289 AND 08-CI-001063
TODD K. BOLUS AND L. STANLEY
CHAUVIN, III APPELLEES
OPINION
AND ORDER DISMISSING1
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
LAMBERT, JUDGE: Parking Authority of River City, Inc. (PARC) appeals the
Jefferson Circuit Court’s April 13, 2021, order denying PARC’s motion for
summary judgment on the issue of governmental immunity. We dismiss.
1
When final disposition of an appeal is made by an “Opinion and Order,” as in this case, the
party adversely affected may move for reconsideration as provided by Kentucky Rules of Civil
Procedure (CR) 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized.
CR 76.32(1).
This case has a lengthy and complicated history, dating back to 2007,
when a class action was filed against (among other parties) Louisville/Jefferson
County Metro Government (Metro) and PARC regarding the enforcement of
parking violations. Most recently, Metro’s motion for summary judgment was
granted (and it was dismissed as a party) after the Jefferson Circuit Court
determined that Metro was entitled to sovereign immunity protection. PARC’s
similar motion was denied. This interlocutory appeal by PARC followed.2
The matter before us is rather simple: Did the circuit court err in
ruling that there were factual issues surrounding PARC’s claim that it provided
governmental functions?
We begin our analysis with a recitation of the applicable standard of
review. “The standard of review on appeal when a trial court grants a motion for
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.’” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.
App. 2001) (citing Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Palmer
v. International Ass’n of Machinists & Aerospace Workers, AFL-CIO, 882 S.W.2d
117, 120 (Ky. 1994); CR 56.03). “Because summary judgment involves only legal
2
The appellees do not appeal the finding that Metro was entitled to sovereign immunity;
therefore, that holding will not be addressed.
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questions and the existence of any disputed material issues of fact, an appellate
court need not defer to the trial court’s decision and will review the issue de novo.”
Lewis, 56 S.W.3d at 436 (citing Scifres, 916 S.W.2d at 781; Estate of Wheeler v.
Veal Realtors and Auctioneers, Inc., 997 S.W.2d 497, 498 (Ky. App. 1999);
Morton v. Bank of the Bluegrass and Trust Co., 18 S.W.3d 353, 358 (Ky. App.
1999)).
Our Supreme Court’s opinion in Yanero v. Davis, 65 S.W.3d 510 (Ky.
2001), is the seminal case on sovereign immunity in the Commonwealth. “[A]
state agency is entitled to immunity from tort liability to the extent that it is
performing a governmental, as opposed to a proprietary, function.” Id. at 519.
And “an order denying a substantial claim of absolute immunity is immediately
appealable even in the absence of a final judgment.” Breathitt County Bd. of Educ.
v. Prater, 292 S.W.3d 883, 887 (Ky. 2009) (citing to Mitchell v. Forsyth, 472 U.S.
511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)).
The Kentucky Supreme Court has recently revisited the issue of what
constitutes a “substantial claim of absolute immunity” in Upper Pond Creek
Volunteer Fire Department, Inc. v. Kinser, 617 S.W.3d 328, 333-34 (Ky. 2020),
reh’g denied (Feb. 18, 2021) (footnote omitted):
However, a trial court’s order is not immediately
appealable simply because immunity is at issue. If the
trial court’s decision leaves the immunity question
unresolved, that order is not immediately appealable. For
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example, the Court of Appeals held in Chen v. Lowe[,
521 S.W.3d 587 (Ky. App. 2017),] that a trial court’s
denial of a motion for summary judgment was not subject
to immediate appellate review, even though immunity
served as the basis for the motion. 521 S.W.3d at 591.
In that case, a former law student of the University of
Louisville’s Brandeis School of Law sued the University
and the law school’s former dean, in both his individual
and official capacities. The dean filed a motion to
dismiss on the basis of qualified official immunity. Id. at
590. The trial court denied the motion to dismiss the
claims against the dean in his individual capacity, finding
that genuine issues of material fact remained regarding
the dean’s entitlement to qualified immunity. Id.
In dismissing that appeal, the Court of Appeals
acknowledged that “if we were to determine that the
circuit court actually denied [the dean’s] claim of
immunity, we would have jurisdiction to hear his
appeal.” 521 S.W.3d at 590. The Court of Appeals
explained,
“[i]n denying [the dean’s] motion to dismiss,
however, the circuit court did not make a
final ruling on the issue of qualified
immunity. Rather, the court found that there
were disputed issues of material fact
regarding [the dean’s] entitlement to
qualified immunity. Therefore, the issue of
[the dean’s] immunity remains unresolved,
and the order denying his motion to dismiss
is not immediately appealable.
Id. at 590-91 (citing Broughton v. Russell, No. 2009-CA-
001753-MR, 2010 WL 4320436, at *2 (Ky. App. Oct. 29,
2010); Hyden-Leslie Water Dist. v. Hoskins, No. 2010-
CA-000599-MR, 2011 WL 919818, at *2 (Ky. App. Mar.
18, 2011); Adair Cty. v. Stearman, No. 2010-CA-
001953-MR, 2011 WL 4103137, at *2 (Ky. App. Sept.
16, 2011)).
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The Court of Appeals therefore dismissed the
appeal. In doing so, it explained that it had reviewed the
record and agreed with the circuit court’s finding that
factual issues remained unresolved. Id. at 591. Thus, the
Court of Appeals stated, “We will not overstep our
bounds by attempting to make findings of fact on those
issues so we can determine an immunity question that the
circuit court has not yet fully addressed.” Id.
The three unpublished cases cited by the Court of
Appeals reflect similar analyses.
The Kinser Court went on to state:
In this case, we adopt a similar analysis. The trial court
did not make a final ruling on the issue of immunity.
Rather, the trial court concluded that additional factual
development was necessary to determine if governmental
immunity applied to the claims of intentional or negligent
training, supervision, hiring, and retention. The trial
court also declined to dismiss the claims against the
unknown employees because additional facts were
needed to determine if they qualified for official
immunity. Stated another way, the trial court left these
questions of immunity unresolved.
617 S.W.3d at 334.
Such is the case here, where the Jefferson Circuit Court held open the
issue of PARC’s claim of immunity, holding that “there are multiple issues of
material fact and summary judgment is not appropriate.” Thus, “we agree that
additional factual development is necessary to answer these questions. We will not
undertake a fact-finding mission to resolve questions that the circuit court has not
yet fully addressed.” Kinser, 617 S.W.3d at 335. “We will not overstep our
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bounds by attempting to make findings of fact on those issues so we can determine
an immunity question that the circuit court has not yet fully addressed.” Chen, 521
S.W.3d at 591.
Accordingly, the appeal must be, and hereby is, DISMISSED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Michael J. O’Connell David B. Mour
Jefferson County Attorney Joseph C. Souza
Louisville, Kentucky
John F. Carroll
Peter F. Ervin
David A. Sexton
Assistant Jefferson County Attorneys
Louisville, Kentucky
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