RENDERED: DECEMBER 2, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0485-MR
SHERONDA BAILEY, AS MOTHER
AND NEXT FRIEND OF
KATLIN EDWARDS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCH PERRY, JUDGE
ACTION NO. 17-CI-002515
CHRISTOPHER COLLINS; FLOYD
ALEXANDER; AND JEFFERSON
COUNTY BOARD OF EDUCATION APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND MAZE, JUDGES.
MAZE, JUDGE: Sheronda Bailey, as mother and next friend of Katlin Edwards
(Bailey), appeals from summary judgments of the Jefferson Circuit Court
dismissing her statutory, negligence, and battery claims against the Jefferson
County Board of Education (Board), Assistant Principal Christopher Collins (A.P.
Collins), and Floyd Alexander (Alexander). First, we conclude that this appeal
should not be dismissed for failure to name an indispensable party. We next
conclude that Bailey’s statutory appeal from the Board’s action is moot. We
further agree with the trial court that A.P. Collins and Alexander were acting
within the scope of their discretionary duties and that Bailey failed to show that
they were acting in bad faith. Finally, in the absence of a showing of bad faith or
malice, Bailey was not entitled to proceed on the battery claims against A.P.
Collins and Alexander. Hence, we affirm the summary judgments.
The claims in this case arise out of incidents which occurred at
Iroquois High School on January 27, 2017. While the parties disagree about the
details of those incidents, the basic outline of those events are as follows. At the
time, Katlin Edwards (Edwards) was in eleventh grade at Iroquois High School,
which is part of the Jefferson County Public Schools (JCPS) system. Following a
pep rally, multiple fights broke out among the students. Edwards was in the
auditorium waiting for her bus. Along with numerous other students, she
attempted to exit the auditorium into the lobby.
As Edwards was attempting to leave, she was walking behind A.P.
Collins. A.P. Collins testified that he felt a student push him forward from behind.
He turned around and yelled at Edwards, “Pushing an A.P. is six days”; a threat of
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a six-day suspension from school. A.P. Collins states that he told Edwards to stop
pushing and sit back down. Edwards did not initially believe that A.P. Collins was
addressing her. In response to A.P. Collins’ statement, Edwards stepped aside but
continued through the doorway.
Edwards denies ever pushing A.P. Collins, while A.P. Collins states
that Edwards pushed him two more times. In any event, a scuffle ensued, during
which A.P. Collins attempted to restrain Edwards. Security Guard Alexander
arrived and assisted A.P. Collins in pinning Edwards against a wall. Edwards
alleges that she suffered injuries as a result of the restraint used by both A.P.
Collins and Alexander.
Following this incident, Edwards was escorted to the Iroquois school
offices, where she was met by her mother, Bailey, and the principal, Clay
Holbrook. Later that day, Bailey and Edwards were advised that Principal
Holbrook had imposed a ten-day suspension on Edwards. Edwards filed an appeal
of the action as provided by the JCPS Handbook, but her appeals were denied at
each level.
On May 19, 2017, Bailey, on behalf of Edwards, filed a complaint
naming the Board, A.P. Collins, and Alexander. The complaint asserted claims
for: (1) judicial review pursuant to KRS1 13B.150 of the final order affirming the
1
Kentucky Revised Statutes.
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suspension; (2) negligence by A.P. Collins and Alexander in their use of force to
restrain Edwards; and (3) battery by A.P. Collins and Alexander in their use of
force to restrain Edwards.
On April 27, 2020, Bailey filed a motion for summary judgment on
the claim against the Board under KRS Chapter 13B. Bailey argued she was
entitled to a judgment on that claim due to the Board’s failure to file the
administrative record, as required by KRS 13B.140(3). The Board filed a reply
and a cross-motion for summary judgment, arguing that an informal hearing
resulting in a suspension was not subject to judicial review under KRS Chapter
13B. On September 29, 2020, the trial court denied Bailey’s motion and granted
the Board’s motion for summary judgment. The trial court agreed with the Board
that the suspension procedures do not fall under the scope of a formal
administrative hearing as defined by KRS 13B.010(2).
Thereafter, A.P. Collins and Alexander filed a motion for summary
judgment, arguing that the claims based on negligence and battery were barred by
qualified immunity. They argued that their actions to restrain Edwards were
discretionary duties made in good faith. Bailey responded that their use of force
was a ministerial function not subject to qualified immunity. In an order entered
on April 7, 2021, the trial court agreed with A.P. Collins and Alexander and
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dismissed the remaining claims. This appeal followed. Additional facts will be set
forth below as necessary.
As an initial matter, the Appellees have moved to dismiss this appeal
for failure to join an indispensable party. On May 19, 2017, the original complaint
in this action was filed, naming as plaintiff “Sheronda Bailey, Individually and as
mother and Next Friend of [Katlin Edwards].” At the time the complaint was filed,
Edwards was still a minor. On April 27, 2020, Bailey filed a motion pursuant to
CR2 15.01 to file an amended complaint substituting Edwards as the plaintiff. The
motion stated that Edwards had reached the age of majority.
The trial court heard the motion on June 15, 2020. However, no order
appears in the record granting the motion to substitute parties. Nevertheless, the
Board, A.P. Collins, and Alexander filed an answer to the amended complaint.
Edwards was listed as plaintiff in the parties’ subsequent pleadings, but Bailey
continued to be listed as plaintiff in the trial court’s orders. The notice of appeal
named Bailey, individually and in her capacity as mother and next friend of
Edwards, as Appellant.
The Appellees argue that the notice of appeal was defective because
Bailey ceased to be the plaintiff or real party in interest. As a result, they contend
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Kentucky Rules of Civil Procedure.
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that this Court lacks jurisdiction to consider the merits of the appeal. Under the
circumstances presented in this case, we disagree.
“[T]he notice of appeal is the means by which an appellant invokes
the appellate court’s jurisdiction.” Nelson County Bd. of Educ. v. Forte, 337
S.W.3d 617, 626 (Ky. 2011) (citation omitted); CR 73.03. An appellant’s “failure
to name an indispensable party in the notice of appeal is a jurisdictional defect that
cannot be remedied.” Forte, 337 S.W.3d at 626 (internal quotation marks and
citation omitted). “An indispensable party is one whose absence prevents the
Court from granting complete relief among those already parties . . . [or] one
whose interest would be divested by an adverse judgment.” Liquor Outlet, LLC v.
Alcoholic Beverage Control Bd., 141 S.W.3d 378, 387 (Ky. App. 2004) (citations
omitted). Accordingly, absent any indispensable party, we lack jurisdiction to hear
the appeal. Forte, 337 S.W.3d at 626.
But as noted above, the trial court never entered an order granting
Edwards’ motion to substitute as a party. Circuit courts speak “only through
written orders entered upon the official record.” Kindred Nursing Centers Ltd.
Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010). See also Oakley v.
Oakley, 391 S.W.3d 377, 378 (Ky. App. 2012). Furthermore, a reviewing court
“cannot infer rulings not made explicit by the trial court.” Erie Ins. Exchange v.
Johnson, 647 S.W.3d 198, 202 (Ky. 2022). In the absence of an order substituting
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Edwards as plaintiff, Bailey remained the only plaintiff before the trial court, as
well as the only party who could have filed a notice of appeal. Therefore, Edwards
was not an indispensable party to this appeal.
Turning to the merits, Bailey argues that the Board, A.P. Collins, and
Alexander were not entitled to summary judgment. “[T]he proper function of
summary judgment is to terminate litigation when, as a matter of law, it appears
that it would be impossible for the respondent to produce evidence at the trial
warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Service Center,
Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, stipulations, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor. Steelvest, 807 S.W.2d at 480. The trial court must examine the evidence,
not to decide any issue of fact, but to discover if a real issue exists. Id. Since a
summary judgment involves no fact-finding, this Court’s review is de novo, in the
sense that we owe no deference to the conclusions of the trial court. Scifres v.
Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
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The first issue concerns the trial court’s dismissal of Bailey’s appeal
of Edwards’ suspension pursuant to KRS Chapter 13B. The trial court found that
an informal adjudicatory proceeding resulting in a suspension is not an
“administrative hearing” subject to an appeal under that Chapter. Bailey notes that
Section 2 of the Kentucky Constitution bars governmental agencies from arbitrary
action. Bailey argues that due process requires an opportunity for judicial review
of the Board’s action in suspending Edwards, even if it is characterized as an
informal proceeding.
However, we must conclude that any appeal arising under KRS
Chapter 13B has become moot. “A ‘moot case’ is one which seeks to get a
judgment . . . upon some matter which, when rendered, for any reason, cannot have
any practical legal effect upon a then existing controversy.” Morgan v. Getter, 441
S.W.3d 94, 98-99 (Ky. 2014) (emphasis in original) (quoting Benton v. Clay, 192
Ky. 497, 233 S.W. 1041, 1042 (1921)). In general, an appellate court is without
jurisdiction to reach the merits of a moot appeal as the judicial power extends only
to justiciable controversies. Kentucky High School Athletics Ass’n v. Runyon, 920
S.W.2d 525 (Ky. 1996).
Here, it is undisputed that Edwards already served the suspension, and
she is no longer a student in the JCPS system. Edwards is no longer subject to the
Board’s authority and there is no allegation that she will suffer any future
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consequences from the suspension. Consequently, neither this Court nor the trial
court could grant either Bailey or Edwards any meaningful relief within the scope
of KRS Chapter 13B.
We recognize that a technically moot case may nonetheless be
adjudicated on its merits where the nature of the controversy is such that “the
challenged action is too short in duration to be fully litigated prior to its cessation
or expiration and . . . there is a reasonable expectation that the same complaining
party would be subject to the same action again.” Bolton v. Irvin, 373 S.W.3d 432,
434 (Ky. 2012) (quoting Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992)).
Second, we may review the matter under the public interest exception set out by
the Kentucky Supreme Court in Morgan, supra. A court may review an otherwise
moot case when “(1) the question presented is of a public nature; (2) there is a need
for an authoritative determination for the future guidance of public officers; and (3)
there is a likelihood of future recurrence of the question.” 441 S.W.3d at 102
(citation omitted). We conclude that neither exception is applicable.
In the case of the first exception, Edwards is no longer a student in the
JCPS system, so there is no reasonable expectation that Edwards would be subject
to the same type of action again. As to the second exception, we agree that the
question presented is of a public nature. But there is no showing of a need for an
authoritative determination or a likelihood of future recurrence of the question.
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And if the question should again arise, it may be addressed in the appropriate case.
Therefore, we decline to address this matter further.
Bailey next argues that the trial court erred by dismissing her claims
against A.P. Collins and Alexander based on qualified immunity. As discussed
above, we are obligated to view the facts in the light most favorable to the party
opposing the motion for summary judgment. Steelvest, 807 S.W.2d at 480.
However, the application of immunity is a question of law, which this Court
reviews de novo. Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006); and
Patton v. Bickford, 529 S.W.3d 717, 723 (Ky. 2016), as modified on denial of
reh’g (Aug. 24, 2017).
Generally, qualified official immunity is “immunity from tort liability
afforded to public officers and employees for acts performed in the exercise of
their discretionary functions.” Patton, 529 S.W.3d at 723 (quoting Yanero v.
Davis, 65 S.W.3d 510, 521 (Ky. 2001)). “Qualified immunity applies only to the
negligent performance of duties that are discretionary in nature.” Id. at 723-24. In
contrast, qualified immunity is not provided for the negligent performance of a
ministerial act. Id. at 724.
The Court in Patton further explained that a ministerial duty is one
that “requires only obedience to the orders of others.” Id. (citations omitted). In
other words, a duty is ministerial “when the officer’s duty is absolute, certain, and
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imperative, involving merely execution of a specific act arising from fixed and
designated facts.” Id. “The point is that a government official performing a
ministerial duty does so without particular concern for his own judgment” or,
stated another way, “the act is ministerial ‘if the employee has no choice but to do
the act.’” Id. (quoting Marson v. Thomason, 438 S.W.3d 292, 297 (Ky. 2014)).
In contrast, discretionary acts are “good faith judgment calls made in a
legally uncertain environment” and involve “personal deliberation, decision, and
judgment[.]” Yanero, 65 S.W.3d at 522. Particularly pertinent to the issues in this
appeal is Yanero’s explanation of the proper application of the doctrine of qualified
immunity:
But when sued in their individual capacities, public
officers and employees enjoy only qualified official
immunity, which affords protection from damages
liability for good faith judgment calls made in a legally
uncertain environment. 63C Am. Jur. 2d, Public Officers
and Employees, § 309 (1997). Qualified official
immunity applies to the negligent performance by a
public officer or employee of (1) discretionary acts or
functions, i.e., those involving the exercise of discretion
and judgment, or personal deliberation, decision, and
judgment, id. § 322; (2) in good faith; and (3) within the
scope of the employee’s authority. Id. § 309;
Restatement (Second) Torts, supra, § 895D cmt. g. An
act is not necessarily “discretionary” just because the
officer performing it has some discretion with respect to
the means or method to be employed.
Id.
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In this case, the trial court concluded that A.P. Collins and Alexander
acted within the scope of their discretionary authority when they restrained
Edwards. The court found, unlike in Yanero, their decision to restrain Edwards did
not involve enforcement of a known rule about when and how to apply restraint.
Bailey disagrees, noting that the general supervision of students is usually regarded
as ministerial in nature, “as it requires enforcement of known rules.” Patton, 529
S.W.3d at 727 (quoting Marson, 438 S.W.3d at 301). Bailey argues that school
staff’s decisions on when and how to employ physical restraint of students are
likewise subject to known rules. Thus, Bailey takes the position that those duties
are inherently ministerial, rather than discretionary.
We agree with Bailey that there are rules and protocols on when
physical restraint may be used on a student in public school. 704 KAR3 7:160 §
3(3)(a) provides that physical restraint may only be used if “[t]he student’s
behavior poses an imminent danger of physical harm to self or others[.]”
Moreover, physical restraint may only be used if “[l]ess restrictive behavioral
interventions have been ineffective in stopping the imminent danger of physical
harm to self or others, except in the case of a clearly unavoidable emergency
situation posing imminent danger of physical harm to self or others[.]” 704 KAR
7:160 § 3(3)(d). Finally, physical restraint may only be used if the school
3
Kentucky Administrative Regulations.
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personnel implementing the restraint is “appropriately trained as required by
Section 6(3) of [the] regulation, except to the extent necessary to prevent physical
harm to self or others in clearly unavoidable emergency circumstances where other
school personnel intervene and summon trained school personnel as soon as
possible.” 704 KAR 7:160 § 3(3)(e).
“A ministerial duty may involve ascertainment of . . . facts, and an
officer may be permitted some discretion with respect to the means or method to
be employed[.]” Patton, 529 S.W.3d at 724 (internal quotation marks and citations
omitted). But the focus is whether a government official performing a ministerial
duty does so without particular concern for his own judgment. Id. In contrast, a
duty is discretionary because it is “so situation specific, and because it requires
judgment rather than a fixed, routine performance[.]” Marson, 438 S.W.3d at 299.
Here, the decisions by A.P. Collins and Alexander to use physical
restraint against Edwards involved an exercise of their judgment within the scope
of the established policies within a very specific situation. Their actions were the
result of the personal deliberation, decision, and judgment that are the hallmarks of
a discretionary series of actions. Therefore, we agree with the trial court that their
actions were discretionary in nature.
At that point, the burden then shifted to Bailey to prove that A.P.
Collins and Alexander acted in bad faith. See Rowan County, 201 S.W.3d at 475-
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76. Here, Bailey made no such showing. As a result, the trial court properly
dismissed her negligence claims against A.P. Collins and Alexander.
Bailey separately argues that the trial court erred by dismissing the
battery claims based on qualified immunity. Battery is “any unlawful touching of
the person of another, either by the aggressor himself, or by any substance set in
motion by him[.]” Vitale v. Henchey, 24 S.W.3d 651, 657 (Ky. 2000). Moreover,
battery is “an intentional tort; it is not committed by a negligent act.” Id. at 656
(citation omitted). Qualified immunity is typically not available for intentional
torts for which malice or bad faith is an element. Martin v. O’Daniel, 507 S.W.3d
1, 5-6 (Ky. 2016).
But as discussed above, Bailey had the burden of showing that A.P.
Collins and Alexander acted with malice or in bad faith while using physical
restraint against Edwards. Here, there is no such showing, nor does Bailey point to
any evidence of record that their touching of Edwards was otherwise unlawful.
Acting with malice and acting in good faith are mutually exclusive. Id. For this
reason, the trial court properly granted summary judgment on the battery claim.
Accordingly, we affirm the summary judgments of the Jefferson
Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Teddy B. Gordon Byron E. Leet
Andrew E. Mize John W. Woodard, Jr.
Louisville, Kentucky Julie Laemmle Watts
Marianna J. Michael
Louisville, Kentucky
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