author: MINTON, Judge.

text:
    COMMONWEALTH of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES (Formerly Cabinet for Families and Children), Appellant, v. Honorable Joan BYER, Judge, Jefferson Family Court; D.A.; Bryan Gatewood; K.A.; L.M.; and Irv Maze, Jefferson County Attorney, Appellees.
    No. 2003-CA-002677-ME.
    Court of Appeals of Kentucky.
    Aug. 26, 2005.
    G. Thomas Mercer, Louisville, KY, for Appellant.
    No Brief Filed, for Appellee.
    Before GUIDUGLI, JOHNSON, and MINTON, Judges.
   OPINION

MINTON, Judge.

The Cabinet for Health and Family Services (“the Cabinet”) appeals an order of the Jefferson Family Court that required it to pay the court-appointed expert’s fees in a dependency action in which custody became a contested issue. We hold that the family court abused its discretion when it appointed the expert -without first adopting the show cause procedure required by KRE 706. Therefore, we reverse the family court’s order.

The Cabinet filed a dependency action alleging that D.A., a minor child, was an abused or neglected child within the meaning of KRS 600.020(1). According to the petition, D.A.’s mother, K.A., was not properly feeding and caring for her child. As a result of the petition, temporary custody of D.A. was given to her maternal grandmother. At the hearing on the petition, K.A. stipulated that D.A. was indeed abused and neglected. K.A. further agreed not to contest the child’s temporary placement with the maternal grandmother.

A few months later, the court determined following a hearing that neither K.A. nor the maternal grandmother was a proper custodian; so the court removed the child from the maternal grandmother and placed her temporarily with the Cabinet. The following day, the court sustained the Cabinet’s motion to release custody from the Cabinet to L.M., a non-relative who had been D.A.’s caregiver since birth.

Several months later, K.A. moved for custody of D.A. to be returned to her or for increased visitation; L.M. then moved for permanent custody of D.A. A complete hearing on these motions was postponed several times as K.A., L.M., and the Cabinet reached an agreement acceptable to the court for expanded visitation by K.A. Eventually, a hearing on the pending custody motions was held on October 9, 2003. The Cabinet’s representative, Carlanda Fields, failed to appear at the hearing because she was involved in an automobile accident earlier that day. Despite the Cabinet’s absence, the court proceeded to appoint its own expert, Dr. Ronda Luttrell, to perform an assessment of the level of bonding between the child and the custody contestants and to report back to the court. The court further ordered the Cabinet in its absence to provide the funding for the expert.

The Cabinet immediately moved to alter, amend or vacate the order. The motion was based on the Cabinet’s claim that it was not a party to the action and had not been served with legal notice of a request for imposition of costs. The Cabinet also argued that the order violated the constitutional separation of powers doctrine and statutory law.

At the hearing on this motion, the court stated it was forced to appoint its own expert witness to perform the custodial evaluations because none of the evaluators in Louisville under contract with the Cabinet was “competent” to perform a “bonding assessment.” The court acknowledged that there was a capable evaluator under contract with the Cabinet in Lexington; but because the Cabinet’s representative failed to attend the October 9, 2003, hearing, the availability of that evaluator was not brought to the court’s attention. Therefore, the court stated it had no choice but to order the contestants to meet with Dr. Luttrell, an evaluator who, in the court’s opinion, was competent to perform a bonding assessment. Citing its right to hire its own experts, the court denied the Cabinet’s motion and ordered the Cabinet to pay Dr. Luttrell’s fees in the amount of $1,500. This appeal follows.

Because this appeal involves an issue of law, our standard of review is limited to whether the family court abused its discretion. “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”

As an initial matter, the Cabinet argues that “once the trial court removed [D.A.] from the Cabinet’s custody the Cabinet in essence became a nominal party to the custody contest between the appellees, [L.M.] and [K.A.].” Because of its status as a “nominal party,” the Cabinet claims it “should not have been ordered to pay costs associated with the contest.”

We disagree with this assertion, in part. In Cabinet for Human Resources v. Howard, we said that when the Cabinet files a dependency action, “the Cabinet is in fact the ‘plaintiff[.]’” The current custody dispute started in court with the Cabinet’s initial filing of a dependency action; therefore, we believe the Cabinet remains the plaintiff in this case. Although the Cabinet is not D.A.’s custodian, it has continued to play a significant role throughout these proceedings. The Cabinet is required to have a representative at the custody hearings, to monitor D.A.’s environment, to assess L.M.’s and K.A.’s parenting skills, and to report to the court on the parties’ progress. So we reject the Cabinet’s contention that it is merely a “nominal party” here.

But we do agree with the Cabinet that it was improperly assessed the fees for the custodial evaluation. Our conclusion is based not on the Cabinet’s status as a party, but rather on the family court’s failure to follow KRE 706(a). That rule reads:

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may require the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. (Emphasis added.)

There is no reported case in our jurisdiction interpreting KRE 706(a). But the procedural safeguard in the rule seems clear: without impinging on the court’s inherent authority to make the final selection, the court must first adopt a show cause procedure for the appointment of experts. This guarantees that the parties will have notice that the process is in motion and an opportunity to advise the trial court and to comment on the selection of the court-appointed expert.

The Cabinet argues that given notice and an opportunity to be heard, it could have nominated competent evaluators who were under contract with the Cabinet. Unfortunately, the record does not contain a transcript or videotape of the October 9, 2003, hearing. But from what we can glean from the record, the court acted upon its own motion in ordering the evaluation by Dr. Luttrell. An order was entered to that effect, and the contestants proceeded with the custodial evaluation. No show cause order process preeéded the appointment of the expert, nor was the Cabinet notified of the court’s appointment until after the evaluations were complete. The Cabinet received the court’s order and the bill for the custodial evaluation several days after the evaluation had occurred.

The family court failed to observe the procedural safeguards of KRE 706(a) by neglecting to issue a show cause order before appointing its own expert. We believe this resulted in a decision that was “arbitrary, unreasonable, unfair, [and] unsupported by sound legal principles.” And because the court abused its discretion, we must reverse the order requiring the Cabinet to pay the fees of the court-appointed expert.

ALL CONCUR.

      . Kentucky Rules of Evidence.

      . Kentucky Revised Statutes.

      . Although the court initially blamed the Cabinet's representative for her absence on the day of the hearing, it was quickly brought to the court's attention that the representative’s absence was unintentional and due to her involvement in a car accident.

      . Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).

      . 705 S.W.2d 935, 937 (Ky.App.1985).

      . Goodyear at 5 81.


source: Caselaw Access Project

author: GUIDUGLI, Judge.

license: Public Domain

text:
    Kenneth JAMES, in his Official Capacity as Superintendent of the Fayette County Public Schools; and Board of Education of Fayette County, Kentucky, Appellants, v. Janice SEVRE-DUSZYNSKA; Gene Wilhoit, in his Official Capacity as Chief State School Officer; and Martha Boyd, Thomas Lynch, and Lilly Sullivan, in their Official Capacities as Members of the Hearing Tribunal, Appellees, and Janice Sevre-Duszynska, Cross-Appellant, v. Board of Education of Fayette County, Kentucky; and Kenneth James, in his Official Capacity as Superintendent of Fayette County Public Schools, Cross-Appellees.
    Nos. 2003-CA-002166-MR, 2003-CA-002235-MR.
    Court of Appeals of Kentucky.
    Aug. 26, 2005.

      Robert L. Chenoweth, John C. Fogle, III, Frankfort, KY, for Appellants/Cross-Appellees.
    Mary W. Ruble, Lexington, KY, for Ap-pellee/Cross-Appellant, Janice Sevre-Duszynska.
    No Brief for Appellees, Gene Wilhoit, Martha Boyd, Thomas Lynch and Lilly Sullivan.
    Before COMBS, Chief Judge; GUIDUGLI and McANULTY, Judges.
   OPINION

GUIDUGLI, Judge.

Kenneth James, in his official capacity as Superintendent of the Fayette County Public Schools and the Board of Education of Fayette County, Kentucky (hereinafter, collectively, “the Board”) have appealed from the Fayette Circuit Court’s Final Judgment entered September 13, 2003, upholding the administrative tribunal’s decision to reinstate Janice Sevre-Duszynska to her teaching position and to impose no sanction upon her for insubordination. Sevre-Duszynska has perfected a cross-appeal on the limited issue of the proof necessary to support a charge of insubordination. We affirm on the direct appeal, but reverse and remand on the cross-appeal.

While the facts underlying this appeal are not disputed, a recitation of those facts is necessary for a full understanding of the case. Sevre-Duszynska began teaching English as a Second Language for Fayette County Public Schools at Henry Clay High School in 1990, and began working under a continuing contract at the beginning of the 1994-1996 school year. By all accounts, she has been an excellent and dedicated teacher. Sevre-Duszynska became involved with a religious-based political organization called School of the Americas Watch, which organized protests at Ft. Benning, Georgia. On November 18, 2001, Sevre-Duszynska participated in one of the protests by leading a prayer group at Ft. Benning, and was arrested when she “crossed the line” onto federal property. As a first-time offender, she received a “ban and bar” letter, which she believed would be the only punishment imposed on her. She returned to her teaching position in Kentucky, and in the spring of 2002, learned that she was going to be prosecuted for trespass. Following her July 8 through July 12, 2002, trial, Sevre-Dusz-ynska was convicted, and she received a ninety-day sentence and $500 fine. As before, she returned to Kentucky and her teaching position following the trial. She received a message on August 15 from a probation officer that she was to report to the federal women’s prison camp in Lexington on September 10 to begin service of the ninety-day sentence. Sevre-Duszyns-ka notified the school principal the next day.

On August 19, she received a letter from Interim Superintendent, Dr. L. Duane Tennant, suspending her with pay for twenty workdays so that he could investigate the facts surrounding her federal conviction and prison sentence. She was escorted from the building. Sevre-Dusz-ynska responded in an undated letter on or about August 24 indicating that she would need a leave of absence from September 10 through December 10 to serve her prison sentence. Dr. Tennant replied to her letter on September 5, 2002, denying her request for leave. Sevre-Dusz-ynska reported for her prison sentence on September 10, and was released on December 6, 2002. The following day, she picked up a certified letter from Dr. Ten-nant dated December 4, 2002. In the letter, Dr. Tennant terminated her contract as a teacher with Fayette County Public Schools based upon charges of insubordination and conduct unbecoming a teacher, as well as upon her violation of the Professional Code of Ethics for Kentucky School Certified Personnel. As grounds for her termination, Dr. Tennant cited her absence from work without leave beginning on September 10, which he stated constituted a material breach of her contract. In addition to terminating her contract, Dr. Tennant also suspended her without pay pending any appeal she might pursue.

Sevre-Duszynska obtained an attorney and initiated an appeal of her termination by letter dated December 9, 2002. She also requested a hearing pursuant to KRS 161.790 and KRS Chapter 13B. The matter was then assigned to a hearing officer, and a hearing was scheduled for January 23 and 24, 2003. Prior to the hearing, Sevre-Duszynska moved to dismiss the charges against her, citing Dr. Tennant’s failure to follow the terms of the statute when he did not forward her request for leave to the Board of Education, the lack of a written record of teacher performance to support the insubordination charge, as well as the lack of a specific ethics code violation. In the prehearing conference order, the hearing officer denied the motion to dismiss, determining, in part, that statutes, regulations, local board policies and teacher contracts can provide the teacher with the written notice of the performance expected as contemplated by the statute.

At the hearing, the three-member tribunal heard testimony from Dr. Tennant and Sevre-Duszynska, as well as from other teachers at Henry Clay High School, a former student, and a teacher from Washington who is also involved in the School of the Americas Watch organization. On January 31, 2003, the tribunal issued its Final Order, rejecting Dr. Tennant’s sanction. While it determined that Sevre-Duszynska did not violate the Code of Ethics or engage in conduct unbecoming a teacher, the tribunal agreed with the Board that she was technically insubordinate because she was absent without leave. However, the tribunal concluded:

[B]ut she did not intend to defy a direct order of the state, the Schools, or Dr. Tennant. She reasonably expected not to be prosecuted for her participation in the special demonstration, and she did nothing during that demonstration to change what she expected would happen. Although the Tribunal cannot know what the Fayette County School Board would have done about Ms. Sevre-Duszynska’s leave request had the Board addressed it, the fact that Ms. Sevre-Duszynska did not have leave during her incarceration was, in fact, a result of the Superintendent failing to put the matter before the Board.

The tribunal then determined, by a majority, that Sevre-Duszynska should be reinstated with full back pay to the date of her termination. In looking at the context of the charges as to the appropriate penalty, the tribunal stated:

10. Whenever a teacher cannot teach and has not been granted leave from teaching duties, there are competing considerations for a school system. School systems should consider the circumstances that render a teacher unable to teach. Schools should also consider the expected length of the absence and the inconvenience to the school district. And schools should consider the teacher’s performance record within the school system.[ ] Although previous bad conduct by the teacher should be dealt with on its own merits, if the teacher is effective, the Schools should consider whether retaining the teacher will benefit the students. The Schools improperly failed to consider the circumstances of Ms. Sevre-Duszynska’s absence from teaching. And the Schools argued that Ms. Sevre-Duszynska’s past teaching record was irrelevant. To the contrary, all the Tribunal members believe a teacher’s teaching record should be one factor considered in deciding the appropriate sanction for any violation.
11. The majority of the Tribunal believes that the Superintendent acted improperly in thwarting Ms. Sevre-Dusz-ynska’s attempt to obtain leave from the Board, that he ignored her record as a valuable member of the Henry Clay faculty, and that he did not treat her as a part of an education family. Instead, the Superintendent treated her in a manner that impugned her character and caused her to suffer unnecessary embarrassment and expense. The majority believes the Schools should have learned more about the circumstances of her incarceration, and that it should have responded more compassionately to one of its own who had the courage to face prison for her convictions. The majority of the Tribunal believes Ms. Sevre-Duszynska should be reinstated with back pay to rectify the needless harm the Schools inflicted on her.

The Final Order read: “Based upon the foregoing findings of fact and conclusions of law, the Tribunal ORDERS that the Fayette County Schools reinstate Ms. Sevre-Duszynska with back pay to the date of her termination.”

The Board filed a Complaint in Fayette Circuit Court from the tribunal’s Final Order, solely on the insubordination charge. In the complaint, the Board alleged that the tribunal’s conclusions of law were inconsistent with its findings of fact, making its reinstatement of Sevre-Dusz-ynska arbitrary and capricious under § 2 of the Kentucky Constitution, that the decision to impose no sanction was an abuse of discretion and constituted arbitrary action, that the tribunal had no authority to excuse her breach of contract, that the tribunal exceeded its statutory authority to excuse her act of abandonment or resignation of employment, that Dr. Tennant’s decision to terminate her was supported by substantial evidence, and that the tribunal could not substitute its judgment for that of Dr. Tennant. The complaint also named Gene Wilhoit, as the Chief State School Officer, and the three tribunal members as defendants. These defendants deferred to the real parties in interest for the active litigation of the appeal. Sevre-Duszynska filed an answer to the complaint, and also filed a counter-claim, alleging that her due process rights were violated when her teaching contract was effectively terminated on September 17, 2002, without notice, entitling her to additional back pay during her incarceration, and that there was no written record of teacher performance documenting and supporting the insubordination charge.

Following briefing on the issues from the claim and counter-claim as well as oral argument, the circuit court entered an Opinion and Order on August 28, 2003, solely on the Board’s appeal. After determining that the tribunal’s findings and conclusions to impose no sanction were supported by substantial evidence, the cir-euit court affirmed the tribunal’s Final Order. The circuit court then entered a Final Opinion and Order/Judgment on September 15, 2003, on the remaining issues, incorporating the earlier Opinion and Order. The circuit court declined to rule on Sevre-Duszynska’s argument that the tribunal was erroneously instructed on the proof necessary to support an insubordination charge, determining that the issue was moot in light of its earlier ruling. The circuit court then denied Sevre-Dusz-ynska’s claim for back pay while she was incarcerated. This appeal and cross-appeal followed.

On appeal, the Board argues that the circuit court erred in upholding the tribunal’s decision to excuse Sevre-Duszynska’s breach of contract for her failure to perform under her teaching contract, and for failing to conclude that her absence from teaching without leave constituted an act of abandonment or resignation. In her cross-appeal, Sevre-Duszynska asserts that the tribunal was erroneously instructed on the proof necessary to support an insubordination charge.

In Fankhauser v. Cobb, the Supreme Court of Kentucky recently enunciated the standard of review applicable in an appeal from a tribunal’s decision:

The standard of review of the tribunal’s decision when appealed by the board of education, is whether the decision was arbitrary. Administrative action, such as that of the tribunal, is arbitrary if it is not supported by substantial evidence. “ ‘Substantial evidence’ means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.”

During the oral argument in this matter, the Board presented the unique argument that KRS 161.790 does not apply to this case, as the facts of this case actually present a common law breach of contract claim not arising under the statute. We disagree with this assertion, and hold, as Sevre-Duszynska argued, that KRS 161.790 does indeed apply and is the sole avenue available to the Board to terminate a teacher under a continuing contract. We also agree with Sevre-Duszynska’s statement at oral argument that the causes for termination listed in KRS 161.790 are in effect a codification of various breaches of contract. In its brief, the Board posited that the circuit court was incorrect when it determined that Sevre-Duszynska’s failure to teach without having obtained a leave of absence did not constitute an abandonment or resignation of her employment, citing common law contract cases to support its argument. However, the Board itself chose to invoke KRS 161.790 when it charged Sevre-Duszynska with insubordination and conduct unbecoming a teacher. Furthermore, pursuant to her continuing contract, any resignation by a teacher must be in writing. The record is clear that Sevre-Duszynska never submitted a written resignation or ever intended to resign her position. We perceive no error.

Because we have determined that our ruling on the cross-appeal is determinative of the case, we shall now move on to Sevre-Duszynska’s cross-appeal regarding what constitutes a “written record of teacher performance” sufficient to support a charge of insubordination. We note that the circuit court declined to rule on this issue, instead deeming the issue moot in light of its decision on the Board’s appeal. We disagree that just because Sevre-Duszynska will not be penalized through a suspension or termination of her contract, that the issue is moot. She still has a right to argue that she should not have been subject to the charge at all because of a lack of necessary support for it, as she claims is required by the statute. Furthermore, if this Court were to ultimately decide the issue in her favor, the charge of insubordination would necessarily be removed from her record. Although we would have preferred that the circuit court review this issue at that level, because this is an issue of law and the circuit court in this instance has the same role as a reviewing court as this court does, we shall review this issue of first impression.

The appropriate instruction regarding the proof necessary to establish an insubordination charge was the subject of much discussion before the hearing officer both prior to and during the tribunal hearing. KRS 161.790 details the procedure for the termination of a teacher’s contract. KRS 161.790(1) provides that a contract may only be terminated for insubordination, immoral character or conduct unbecoming a teacher, physical or mental disability, or inefficiency, incompetency, or neglect of duty. KRS 161.790(l)(a) defines insubordination as “including but not limited to violation of the school laws of the state or administrative regulations adopted by the Kentucky Board of Education, the Education Professional Standards Board, or lawful rules and regulations established by the local board of education for the operation of schools.... ” KRS 161.790(2) provides, in pertinent part, that a charge of insubordination under KRS 161.790(l)(a) “shall be supported by a written record of teacher performance by the superintendent, principal, or other supervisory personnel of the district.” Sevre-Duszynska maintained below and to both the circuit court and this Court that because the insubordination charge was not supported by a written record of teacher performance by an appropriate person, the tribunal was improperly instructed on the proof necessary to establish the charge of insubordination and the charge should be dismissed. Both the Board and the hearing officer agreed that Sevre-Duszynska’s proposed reading of the statute was too restrictive. Rather, the hearing officer ruled, in his prehearing conference order, and again during the hearing, that “statutes, regulations, local Board policies, or contracts with the teacher can provide that teacher with the written notice of performance expected of the teacher that the statute contemplates.” We agree with Sevre-Duszynska’s interpretation.

In Manning v. Kentucky Board of Dentistry, this Court made it clear that “[t]he Court’s function in the interpretation of statutes is to construe the language so as to give effect to the intent of the legislature. ... Where words in a statute are clear and unambiguous and express the legislative intent, there is no room for construction and the statute must be accepted as it is written.” But we are also mindful of the Supreme Court of Kentucky’s statement in Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities Co. that “[a] statute should not be interpreted so as to bring about an absurd or unreasonable result. The policy and purpose of the statute must be considered in determining the meaning of the words used.” In the present case, the statute is clear and unambiguous. The question, then, is whether a literal application of the statute would lead to an absurd result.

In her brief, Sevre-Duszynska posited that a “written record” would “be created by an administrator in response to specific instances of an individual teacher’s performance. Such a record must necessarily be unique to the teacher who is charged and must logically document prior instances of insubordination or other acts that led to and support the charge.” She argues that the plain language of the statute requires this, and that the “written record” goes beyond employment contracts, statutes, regulations and board policies because the requirement is dispensed with if a recommendation that a charge should be brought is made under KRS 158.6455.

On the other hand, the Board argues that interpreting the statute as Sevre-Duszynska suggests would lead to an absurd result. In particular, the Board relies upon two Supreme Court decisions, rendered the same day, which addressed the former requirement that a charge of conduct unbecoming a teacher be supported by a written record of teacher performance. In Wood, two brothers, who were tenured teachers, were suspended and then terminated from their positions for acts committed during off-duty hours, during the summer, and in their own apartment. The charges of immoral character and conduct unbecoming a teacher stemmed from testimony that they smoked marijuana with two 15-year old girls. In McCollum, the teacher took sick leave from his school job to drive a coal truck. Based upon these decisions, the General Assembly removed the requirement of a written record of teacher performance from charges of conduct unbecoming a teacher. The Supreme Court stated in Wood that:

Conduct unbecoming a teacher or immoral conduct, unless limited to behavior occurring on the school premises during school hours, could not possibly be documented by a record of school supervisory personnel in a manner that is probative or appropriate as contemplated by the statute. Such records relate to in-school professional performance, not off-school activities. Therefore to give the statute an absolutely literal interpretation leads to a patently absurd result. We must construe statutes of this nature in accordance with their purpose which means making an exception to the literal language in the present statute to avoid an absurd and unworkable result.[]

Despite the decisions in Wood and McCollum and the subsequent amendment to the statute, the General Assembly did not alter the requirement that a charge of insubordination be supported by a written record of teacher performance. We cannot agree with the Board’s assertion that requiring such written notice would lead to any absurd result or allow the teacher one free bite of the apple. We first note that the offense for which Sevre-Duszynska was charged, being absent from her teaching position without leave, could easily be documented by school administrators. Furthermore, Sevre-Duszynska effectively countered each of the Board’s arguments addressing the alleged absurdities in her reply brief. We also agree that a superintendent is not required to bring a charge of insubordination, especially if there is no written record to support the charge, as there are other options available to terminate a teacher’s contract. Two of those charges, immoral character or conduct unbecoming a teacher and the presence of a physical or mental disability, do not require a written record of teacher performance. In the present case, Sevre-Dusz-ynska was, of course, charged with conduct unbecoming a teacher, a charge that was reversed by the tribunal and not appealed to either the circuit court or this Court. As Sevre-Duszynska argued below, there was no reason that Dr. Tennant could not have notified her that her continued absence without leave could lead to her termination. Dr. Tennant could have notified her of this after she missed her first day of school without leave when she began her prison sentence, or during their meeting while she was incarcerated, at which point she indicated that she was willing and wanted to return to work upon her release. Such a notification would clearly have met the “written notice of teacher performance” requirement, because she would have been informed that her continued absence without leave could lead to her termination.

In conclusion, we hold that a charge of insubordination must be supported by a “written record of teacher performance”, which cannot be based solely on statutes, regulations, local Board policies, or teacher contracts, but must be specific to the individual teacher and the circumstances leading up to the charge. Because the tribunal was improperly instructed and the record does not reflect that the charge was supported by the required written record of teacher performance, the insubordination charge against Sevre-Duszynska must be dismissed.

Finally, in light of the holding above, we shall briefly address the Board’s argument that the circuit court erred in upholding the tribunal’s decision to impose no sanction on Sevre-Duszynska for insubordination. At the oral argument in this matter, the Board argued that the Supreme Court’s recent opinion in Cobb is not dispositive here for two reasons: 1) Cobb deals with quality of performance, while this case relates to a failure of performance, or breach, and 2) Cobb only allows the tribunal to impose a lesser sanction, but does not hold that the tribunal has the discretion to impose no sanction at all. We disagree with both of these assertions. As we have stated hereinabove, this case does not present a common law contract claim, but arises, as it must, under KRS 161.790. The Board chose to base its charge of insubordination on Sevre-Dusz-ynska’s failure to comply with the terms of her contract, which required her to report to work. So we must review the tribunal’s decision in light of the statutory and case law regarding insubordination and the termination of a teacher’s contract.

Regarding the Board’s second assertion that Cobb is not dispositive, as it only allows a tribunal to impose a lesser sanction as opposed to no sanction, we also disagree. While it is accurate that the Supreme Court upheld the tribunal’s decision to reject the superintendent’s recommendation to terminate Cobb, and impose the lesser sanction of a reprimand and a suspension without pay, the holding is certainly not limited to such situations. To permit the tribunal to impose no sanction at all is a natural extension of Cobb’s holding. As the Supreme Court clearly held, the tribunal has the ultimate authority as the fact finder to determine whether to accept, reject, or modify the penalty recommended by the superintendent:

[T]he current version of KRS 161.790 allows the superintendent to allege facts constituting charges of “cause” against teachers and to impose sanctions in conformity with those charges. But once the teacher chooses to challenge the charges and sanctions, the superintendent is limited to presenting evidence of the charges and recommending a sanction, much like a prosecutor in a criminal case, and the decision both as to the facts of the charges and the appropriate sanction is vested wholly in the tribunal. The tribunal has the discretion to accept or reject the sanction proposed by the superintendent and the discretion to impose an alternative or less severe sanction! J

In the present matter, the tribunal rejected Dr. Tennant’s termination of Sevre-Duszynska and provided a basis for this decision using substantial evidence of record. The tribunal indicated in its Final Order that although Sevre-Duszynska was technically insubordinate, she did not intend to defy a direct order and Dr. Ten-nant had failed to pass along her leave request to the Board of Education. The tribunal then properly looked to the circumstances surrounding her absence from school as well as Sevre-Duszynska’s past teaching record in determining an appropriate sanction. Because the tribunal considered all of the relevant circumstances contained within the record, its decision to reject Dr. Tennant’s suggested penalty and reinstate Sevre-Duszynska with full back pay is supported by substantial evidence and, accordingly, is not arbitrary. Therefore, the circuit court properly affirmed the tribunal’s decision in this respect.

For the foregoing reasons, the Fayette Circuit Court’s judgment is affirmed on the Board’s direct appeal, reversed on Sevre-Duszynska’s cross-appeal, and remanded for a dismissal of the insubordination charge.

ALL CONCUR.

      . The current superintendent of Fayette County Public Schools is Kenneth James, who, in his official capacity, is properly listed as an appellant and a cross-appellee in the caption of this opinion. This action was originally pursued against Dr. Tennant in his official capacity as interim superintendent of Fayette County Public Schools.

      . Obviously, the circuit court upheld Sevre-Duszynska’s award of back pay from the date of her termination. Sevre-Duszynska did not appeal the circuit court's decision not to award her back pay while she was incarcerated.

      . Fankhauser v. Cobb, 163 S.W.3d 389, 400 (Ky.2005).

      . Reis v. Campbell Co. Bd. of Education, 938 S.W.2d 880, 887 (Ky.1996). The tribunal's enabling statute only provides that "[t]he teacher shall have the right to make an appeal to the circuit court ... in accordance with KRS Chapter 13B.” KRS 161.790(9). KRS 13B.140 provides: "All final orders of an agency shall be subject to judicial review in accordance with the provisions of this chapter. A party shall institute an appeal by filing a petition in the Circuit Court of venue, as provided in the agency's enabling statutes, within thirty days after the final order of the agency is mailed or delivered by personal service.” (Emphasis added.) The tribunal’s enabling statute seems only to allow for an appeal by the teacher. But as we held in Reis, the statute’s failure to provide for an appeal by the affected agency does not abrogate the right to appeal an arbitrary decision. Reis, 938 S.W.2d at 887. (Footnote 30 in original.)

      . American Beauty Homes Corp. v. Louisville and Jefferson Co. Planning and Zoning, 379 S.W.2d 450, 456 (Ky.1964). (Footnote 31 in original.)

      . Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998). (Footnote 32 in original.)

      . 657 S.W.2d 584, 587 (Ky.App.1983).

      . 983 S.W.2d 493, 500 (Ky.1998).

      . KRS 158.6455 addresses school accountability.

        . Board of Education of Hopkins County v. Wood, 717 S.W.2d 837 (Ky.1986), and Board of Education of Laurel County v. McCollum, 721 S.W.2d 703 (Ky.1986).

      . Wood, 717 S.W.2d at 839.

      . Cobb, 163 S.W.3d at 400.


text:
    John DOE # 1-77; Jane Doe # 1-19, and all other Similarly-Situated, but as yet Unknown John Doe and Jane Doe Victims, as a Class, Appellants, v. GOLDEN & WALTERS, PLLC; J. Dale Golden; Eugene Goss; Mark David Goss; Fernandez Friedman Grossman & Kohn, PLLC; David A. Friedman; Robert E. Reeves; Reeves & Associates; Barry Lynn Demus, Jr.; Octavius Gillis; Christopher Andre Williams; Craig Johnson; David T. Jones; and John Doe Nos. 1-16, Appellees.
    No. 2004-CA-000639-MR.
    Court of Appeals of Kentucky.
    Sept. 9, 2005.
    See also 407 F.3d 755.

      James M. Morris, Lexington, ICY, for Appellant.
    Guy R. Colson, Ellen Arvin Kennedy, Lexington, KY, for Appellees Golden & Walters, PLLC, and J. Dale Golden.
    Calvin R. Fulkerson, Melanie S. Marrs, Lexington, KY, for Appellees Eugene Goss and Mark David Goss.
    John M. Famularo, Alex L. Scutchfield, Lexington, KY, for Appellees Fernandez Friedman Grossman & Kohn, PLLC, and David A. Friedman.
    Linda B. Sullivan, Lexington, KY, for Appellee Craig Johnson.
    Before HENRY and MINTON, Judges; HUDDLESTON, Senior Judge.

      . Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

MINTON, Judge.

I. INTRODUCTION.

This case arises out of a series of federal class actions filed in the United States District Court for the Eastern District of Kentucky: Guy v. Lexington-Fayette Urban County Government (Guy); Doe # 1-9 v. Miller (Doe I); Doe # 1-33 v. Lexington-Fayette Urban County Government (Doe II); Doe # 1-⅛⅛ v. Lexington-Fay-ette Urban County Government (Doe III); and Doe v. Miller, Each was filed on behalf of the same class of plaintiffs, discussed below, and alleged civil rights violations by the Lexington-Fayette Urban County Government (LFUCG). The instant case was filed as a class action case in Fayette Circuit Court, ostensibly by some or all of the named plaintiffs of Doe II and Doe III. The Appellants allege that they are members of the class of plaintiffs on whose behalf Guy and Doe I were filed. They brought this suit against the named plaintiffs of Guy and Doe I, the named plaintiffs’ attorneys, and the attorneys’ corresponding law firms after the Appellants’ claims against LFUCG were dismissed as time-barred in Doe II and Doe III. The Appellants allege that they would not have lost the opportunity to pursue their otherwise viable claims against LFUCG if not for certain acts and omissions committed by the Appellees during the litigation of Guy and Doe I. The Appellants have asserted claims for attorney malpractice (breach of duty based on attorney-client relationship), breach of fiduciary duty, and fraudulent misrepresentation.

The Appellants appeal from two orders of the trial court that had the combined effect of granting summary judgment in favor of each of the Appellees on all claims. After these summary judgment orders were issued and this appeal was filed, the United States Court of Appeals for the Sixth Circuit issued an opinion on May 5, 2005, in Doe v. Lexington-Fayette Urban County Government (Doe v. LFUCG), a consolidated appeal of Guy, Doe I, Doe II, Doe III, and Doe v. Miller. Therefore, we also must consider the effect of this federal consolidated appeal on this matter.

We hold that the Fayette Circuit Court lacked subject matter jurisdiction of the instant case because it was filed prematurely before any of the causes of action asserted ever accrued. Accordingly, we reverse the trial court’s summary judgment orders, which dismissed all of the claims against the Appellees, with prejudice; and we remand with instructions to dismiss these unripe claims, without prejudice. The Sixth Circuit’s opinion in the consolidated appeal, Doe v. LFUCG, 407 F.3d 755 (C.A.6 2005) has no effect on our holding as it could not and did not resolve the Fayette Circuit Court’s lack of subject matter jurisdiction in the instant case.

II. BACKGROUND.

A. Judicial Notice.

Any attempt to address the case at hand must begin with an understanding of the underlying federal class actions. However, the record before us is incomplete with regard to the procedural history of these federal cases. So, in the interest of judicial economy, we must resort to judicial notice to fill in the gaps in the chronology of the federal litigation.

The concept of judicial notice has been codified in Kentucky Rules of Evidence (KRE) 201. A court may take judicial notice sua sponte. Moreover, “[j judicial notice may be taken at any stage of the proceeding.” In his highly respected treatise on Kentucky evidence law, Professor Robert G. Lawson notes that this provision merely codified the common law of Kentucky which recognized the authority of an appellate court to take judicial notice of an appropriate fact. This is consistent with language in the Kentucky Rules of Civil Procedure (CR) concerning what information must be included in the appendix of an appellate brief. CR 76.12(4)(c)(vii) creates an exception for “matters of which the appellate court may take judicial notice” to the general rule that materials and documents not in the record may not be introduced or used as exhibits in an appendix in support of an appellate brief. But Lawson warns that judicial notice should be used cautiously on appeal so as not to subvert the rules concerning preservation of error.

KRE 201(b) states in relevant part that “[a] judicially noticed fact must be one not subject to reasonable dispute....” One type of judicially noticed fact that is not subject to reasonable dispute is a fact “[cjapable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Lawson provides helpful guidance regarding how KRE 201 should be interpreted with respect to taking judicial notice of court records. He writes that the critical inquiry is focused not “upon the general notice-ability of court records” but, rather, “upon the notieeability of indisputable facts that happen to be verified by court records.” Lawson elaborates as follows:

The propriety of taking notice in a given situation would depend first of all upon whether the fact in question is indisputable and secondly upon whether the fact is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” It is not critical that that fact is contained in a court record, but rather that it is capable of verification by resort to a readily available and accurate source of information (which just happens to be court records).

We take judicial notice of the content of the federal clerk’s docket sheets for Guy, Doe I, Doe II, and Doe III. All of the information contained in these docket sheets is available through the Public Access to Court Electronic Records (PACER) database, which may be accessed via the internet. Specifically, we take judicial notice of the chronology of dates of case events, the nature of these events, and the case status for each of these four federal cases as contained in the docket sheets.

We are cognizant that judicial notice should be used cautiously on appeal, but the noticed information is necessary to determine whether the Fayette Circuit Court had subject matter jurisdiction in the instant case. The noticed information is capable of accurate and ready determination through PACER or by obtaining the information from the federal clerk. And because the information in the docket sheets concerning the procedural history of Guy, Doe I, Doe II, and Doe III is controlled by the clerk of the United States District Court for the Eastern District of Kentucky, the accuracy of the information provided, such as the date a particular motion was filed or the date the federal district court denied certification, cannot reasonably be questioned. Therefore, the information contained in the docket sheets is a proper subject for judicial notice.

The Court also takes judicial notice of the opinion issued on May 5, 2005, by the Sixth Circuit in Doe v. LFUCG, a consolidated appeal of Guy, Doe I, Doe II, Doe III, and Doe v. Miller. Because this federal appeal was decided after the trial court entered the summary judgments in the instant case, the parties had no opportunity to include it in the record. As is explained in detail below, the opinion in Doe v. LFUCG was not yet final as of the date this opinion was written. Ordinarily this would preclude us from citing this opinion. Nevertheless, we take judicial notice of it to consider whether its effect or potential effect on the four underlying federal class actions has any bearing on the ripeness of the claims in the instant case and the question of whether the trial court had subject matter jurisdiction over the instant case. We do not seek to take notice of the propriety or correctness of the Sixth Circuit’s decision but, rather, to take notice of the court’s judicial act. Although not yet final, the fact of the Sixth Circuit’s opinion in Doe v. LFUCG and its contents cannot reasonably be questioned. Moreover, this information is capable of ready determination as the opinion is available from the Sixth Circuit, the Federal Reporter, and Westlaw.

B. Procedural History.

1. Guy.

Guy was filed on October 15, 1998, by four named plaintiffs on behalf of themselves and a class of similarly-situated persons who were allegedly sexually abused as minors by Ron Berry through their involvement with Micro-City Government. Berry was the director of Micro-City Government, a nonprofit, community service program for disadvantaged youth that was sponsored and funded, in part, by LFUCG. The action alleged that LFUCG violated the plaintiffs’ civil rights because it continued to fund Micro-City Government, despite having knowledge that Berry was a sexual predator.

Before any ruling had been made on the issue of class certification, the named plaintiffs of Guy filed a joint motion with LFUCG to enter an agreed order of dismissal based on a tentative settlement agreement making no provisions for putative class members. Craig Johnson and David Jones, who were not named plaintiffs, then moved to be allowed to represent the putative class of plaintiffs. They also filed a motion seeking to require the district court to issue notice to the putative class members of any settlement or denial of certification. They later filed a motion to intervene and an intervening complaint.

On February 4, 2000, the district court entered an order approving the settlement of three of the four named plaintiffs with LFUCG and dismissing their claims against LFUCG, with prejudice. The district court denied the joint motion of Johnson and Jones to intervene but noted that the statute of limitations remained tolled for them and for all putative class members of Guy until the denial of class certification or the dismissal of the case. After a hearing, the district court entered an order on February 28, 2000, rejecting a pro se motion by the fourth named plaintiff to disapprove the settlement. The order approved the settlement between LFUCG and the fourth named plaintiff and dismissed his claims against LFUCG.

Although there was no party left in the case to urge class certification, the district court ruled on that issue in an April 4, 2000, order. The district court found that the fact that additional putative class members had not presented themselves since the suit was filed in October 1998, despite considerable publicity surrounding the case, indicated that the class was likely not so numerous that joinder was impracticable, one of the prerequisites of a federal class action. Further, the court ruled that notice to putative class members was not warranted because the class failed to meet the prerequisites for certification.

2. DoeL

A second class action, Doe I, was filed on May 3, 2000, by a group of named plaintiffs, which ostensibly included Johnson and Jones, who had been unable to intervene in Guy. Filed on behalf of the same class as Guy, Doe I also raised essentially the same civil rights claims against LFUCG. Before the district court had ruled on the issue of certification in Doe I, the named plaintiffs entered into a tentative settlement agreement with LFUCG making no provision for the putative class members. This agreement was expressly contingent on the denial of class certification. And on June 28, 2002, the trial court entered an order denying class certification, approving the settlement agreement, and dismissing the case. No notice was given to the putative class members of the denial of certification or of the settlement.

3. Doe II.

The third class action, Doe II, was filed on September 25, 2002, by a group of named plaintiffs on behalf of the same class as Guy and Doe I. Doe II also raised civil rights claims against LFUCG. The district court denied class certification, holding that the plaintiffs of Doe II were collaterally estopped from relitigating the merits of class certification based on the denial of certification in Doe I. On April 25, 2003, the district court dismissed as time-barred all the claims of all of the named plaintiffs except for one Doe II plaintiff. Some of the claims of the remaining named Doe II plaintiff were also dismissed at that time as time-barred. Ultimately, the remaining claims of the remaining plaintiffs were dismissed as time-barred on August 22, 2003.

4. Doe III.

Doe III was filed against LFUCG on January 13, 2003, by a group of named plaintiffs on behalf of the same class as the three previous cases. On November 21, 2003, the federal district court ruled that the plaintiffs’ claims in Doe III were time-barred.

5.Doe v. Miller.

According to the Sixth Circuit’s opinion in Doe v. LFUCG, the named Appellants of Doe III also filed another related case: Doe v. Miller. Doe v. Miller is slightly different in focus from the earlier cases. The plaintiffs of Doe v. Miller sought to intervene in Guy and Doe I under Fed. R.Civ.P. 60(b)(4), alleging that the lack of notice to the putative class members of those cases violated due process and rendered those judgments void. These claims were purportedly rejected by the district court in an October 7, 2002, order.

6.The Instant Case.

The instant case was filed as a class action in Fayette Circuit Court on June 27, 2003, after most of the claims in Doe II had been dismissed by the federal district court as time-barred but before the claims in Doe III were dismissed. Before the trial court could address the issue of certification, it ruled on the motions that resulted in the summary judgments now on appeal.

On February 24, 2004, the trial court granted the joint motion of Attorney Ap-pellees Mark David Goss and Eugene Goss for summary judgment. The trial court ruled that any duty owed by Mark David Goss to the putative class ceased to exist when he was permitted to withdraw as counsel of record for the class. It further held that Eugene Goss never owed a duty to the putative class members because his only role in either Guy or Doe I was representing the interest of a single plaintiff in Doe I, John Doe # 18. Eugene Goss never purported to represent the class.

On March 1, 2004, the trial court granted the motions of each of the remaining Attorney Appellees to dismiss the claims against them for failure to state a claim upon which relief may be granted. In the absence of any clear precedent, the trial court expressed a reluctance to extend the concept of an attorney-client relationship to include a relationship between the attorneys filing a class action and the putative class members that exists before certification of the class or after the denial of certification. But the trial court also ruled that the Appellants could not make a claim for attorney malpractice because, even absent the Appellees’ alleged malpractice, the Appellants would not have prevailed in the underlying actions. The trial court based this decision, in part, on the federal district court’s rulings in Guy, Doe I, Doe II, and Doe III. Because the trial court considered evidence beyond the pleadings in rendering its decision, this decision must be considered a summary judgment.

The March 1, 2004, order also granted the motion of Plaintiff Appellee Craig Johnson for a judgment on the pleadings on the ground that any fiduciary duty that he might have owed to the putative class members ceased when the federal district court denied certification. None of the other Plaintiff Appellees, none of whom are represented by counsel, filed a motion for judgment on the pleadings. Nevertheless, the trial court granted judgment on the pleadings to each of the remaining Plaintiff Appellees because it found that the ruling regarding Johnson also extended to these Appellees as a matter of law. The trial court considered evidence outside of the pleadings in rendering its decisions with regard to the remaining Attorney Ap-pellees and Plaintiff Appellee Johnson and the other Plaintiff Appellees. For the reasons noted above, we must consider that the trial court actually granted summary judgment in favor of each of these Appel-lees, notwithstanding the terminology used by the trial court. The Appellants filed a timely appeal of both the March 1, 2004, order and the February 24, 2004, order.

7. Doe v. LFUCG.

On May 5, 2005, the United States Court of Appeals for the Sixth Circuit issued its opinion in Doe v. LFUCG, which addressed the outstanding appeals of Guy, Doe I, Doe II, Doe III, and the attempt by some or all of the Appellants to intervene in Guy and Doe I. These cases were before the Sixth Circuit in various procedural postures; some involved direct appeals, while others involved appeals from orders denying post-judgment motions for relief. One of the matters addressed was whether the judgments in Guy and Doe I should be vacated under Fed.R.Civ.P. 60(b)(4). The Sixth Circuit held that the district court had abused its discretion in both cases by failing to notify putative class members of the denial of certification because, under the specific circumstances, the putative class members were likely to be prejudiced. Nevertheless, the Sixth Circuit declined to vacate the judgment in Doe I because the settlement agreement between the named plaintiffs and LFUCG was expressly contingent on the dismissal of the class action. But the settlement agreement in Guy was not contingent on the dismissal of the class action. The Sixth Circuit vacated the district court’s order in Guy that had dismissed the class action and approved the settlement agreement. This allowed the Sixth Circuit to reach “the equitable result of allowing the [putative class members] to go forward with their case while preserving the settlement reached by the Doe I parties.” The court also made it clear that upon remand, the district court must decide anew the issue of class certification in Guy on the merits. On May 19, 2005, petitions were filed with the Sixth Circuit for an en banc rehearing in Guy, Doe I, Doe II, and Doe III. These petitions were denied on August 12, 2005. But as of the date this opinion was written, the mandate had not yet been issued; and Doe v. LFUCG was not yet final.

Because the opinion of Doe v. LFUCG was filed after the deadline for appellate briefing in the case at hand, the parties were granted the opportunity to file supplemental briefs to address the effect of the opinion in the consolidated federal appeal on this appeal. The parties also had the opportunity to address Doe v. LFUCG at oral argument.

III. ANALYSIS.

A. Nature of Damages.

The Appellants have asserted that the Appellees committed the following acts or omissions during the litigation of Guy and Doe I: falsely representing that they would protect the interests of the putative class members, entering into settlement agreements with LFUCG that benefited only the named plaintiffs, failing to push for certification or acquiescing with LFUCG’s motion to deny certification, and failing to give notice to the putative class members of the denial of certification. The Appellants have asserted three causes of action against the Appellees: legal malpractice (based on breach of attorney-client relationship), breach of fiduciary duty, and fraudulent misrepresentation. Each of these causes of action is predicated on the existence of cognizable damages or injury. And for each of the causes of action raised in the instant case, the same damages are asserted by the Appellants. The Appellants allege that they were injured because the Appellees’ acts and omissions rendered the Appellants unable to participate in Guy and Doe I, leaving the Appellants without a remedy for their otherwise viable claims against LFUCG when these claims later were deemed time-barred in Doe II and Doe III. The injury asserted by the Appellants is the lost opportunity to pursue their otherwise viable claims.

B. Ripeness.

The issue of ripeness was never raised by the parties or the trial court. But ripeness is an element of a justiciable claim. Section 112(5) of the Kentucky Constitution states in relevant part that “[t]he Circuit Court shall have original jurisdiction of all justiciable causes not vested in some other court.” Questions that may never arise or are purely advisory or hypothetical do not establish a justiciable controversy. Because an unripe claim is not justiciable, the circuit court has no subject matter jurisdiction over it. It is well-established that the issue of subject matter jurisdiction can be raised at any time, even sua sponte, as it cannot be acquired by waiver, consent, or estoppel.

As discussed below, the ripeness of the Appellants’ claims depends on whether their damages asserted are fixed and non-speculative. Because the Appellants have asserted the same damages for all three causes of action, these damages would become fixed and non-speculative for all three causes of action at the same time. The damages asserted by the Appellants supporting all of their claims — the lost opportunity to pursue their otherwise viable claims against LFUCG — are the type of damages commonly asserted in legal malpractice actions. So we will analyze the ripeness issue as it relates to the Appellants’ legal malpractice claim for the sake of convenience. But if the Appellants’ legal malpractice claim is unripe because the damages are not fixed, this would also apply to the Appellants’ claims for breach of fiduciary duty and fraudulent misrepresentation that rest on the same damages.

C. Accrual of Cause of Action for Legal Malpractice.

Because statutes of limitations are based on the accrual of a cause of action, they begin to run from the time the cause of action comes into existence. To determine when or if a cause of action for legal malpractice accrued in the instant case, we look to the relevant statute of limitations, KRS 413.245. KRS 413.245 states, in relevant part, that an action for professional services negligence “shall be brought within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured.” This statute has been construed as establishing “actually two separate statutes of limitations: one, a statute limiting to ‘one year from the date of occurrence,’ and then a second statute providing a limit of ‘one year ... from the date when the cause of action was, or reasonably should have been, discovered by the party injured,’ if that date is later in time.”

“Occurrence” has been construed as synonymous with “cause of action” in KRS 413.245 based on the statutory language. Moreover, the Kentucky Supreme Court has cited, with approval, the following statutory construction by a federal court: “ ‘[T]he use of the word “occurrence” in KRS 413.245 indicates a legislative policy that there should be some definable, readily ascertainable event which triggers the statute.’ ” This triggering event is “the date of ‘irrevocable non-speculative injury.’ ” The statute of limitations for legal malpractice does not begin to run “[u]ntil the legal harm [becomes] fixed and non-speculative[.]”

The discovery provision of KRS 413.245 does not come into play if a suit for legal malpractice was filed within one year from the date of occurrence. Logically, a party may not “discover” a cause of action that does not yet exist. Any other interpretation of KRS 413.245 would allow the statute of limitations to begin running and possibly even expire before a cause of action for legal malpractice has accrued, which is the function of a statute of repose not a statute of limitations.

This raises the question of when the damages for legal malpractice become fixed and non-speculative. One type of negligent conduct on which a legal malpractice claim might be based is litigation negligence, which has been described as “the attorney’s negligence in the preparation and presentation of a litigated claim resulting in the failure of an otherwise valid claim[.]” When a claim for legal malpractice is based on litigation negligence, whether the attorney’s negligence has caused any injury or damages necessarily is contingent on the final outcome of the underlying case. Any alleged injury is merely speculative until the result of the appeal of the underlying litigation is final and the trial court’s judgment becomes “the unalterable law of the case.” A panel of this Court has even held that any damages allegedly suffered as a result of a legal malpractice claim did not become fixed and non-speculative until the Kentucky Supreme Court denied discretionary review of the underlying case in which the malpractice allegedly occurred. But a post-judgment motion for relief under Rule 60.02 of the Kentucky Rules for Civil Procedure (CR) does not affect the finality of an appeal. The fact that a client may have learned of the attorney’s allegedly negligent conduct before the final adverse determination of the underlying claim on appeal cannot trigger the running of the statute of limitations until the cause of action has accrued. And without legally cognizable damages, there is no ripe claim for legal malpractice.

KRS 413.245 seems to demonstrate the public policy balancing the interest in protecting persons who have been injured by attorney malpractice with the interest in allowing parties an opportunity to seek mitigation of damages in the underlying claim and leaving the malpractice claim open until that underlying claim is resolved. This is especially important because it is theoretically possible in a claim for attorney malpractice for a party to be fully restored to the position that he occupied before the negligent act or omission. In such a case, the malpractice claim would fail for lack of damages.

D. Finality of Sixth Circuit Opinion.

Because the cases on which the Appellants’ claims for damages are based are federal cases, we must consider when an appeal before the Sixth Circuit is final. It is final when the mandate is issued. As explained by the Sixth Circuit Internal Operating Procedures (6th Cir. I.O.P.) 41(a), “[t]he mandate is the document by which this Court relinquishes jurisdiction and authorizes the originating district court ... to enforce the judgment of this Court.” Ordinarily the mandate would issue 21 days after the entry of a judgment by the Sixth Circuit. But the timely filing of a petition for rehearing en banc “stays the mandate until disposition of the petition or motion, unless the court orders otherwise.” If the petition for rehearing en banc is denied, the mandate would normally issue seven days after the order denying the petition. However, according to Fed.R.Civ.P. 60(b), filing a post-judgment motion for relief based on that provision “does not affect the finality of a judgment or suspend its operation.”

E. Accrual of the Appellants’ Cause of Action for Malpractice.

The alleged acts or omissions of the Attorney Appellees’ on which the Appellants’ legal malpractice claims are based occurred in the litigation of Guy and Doe I: falsely representing that they would protect the interests of the putative class members; entering into settlement agreements with LFUCG that benefited only the named plaintiffs; failing to push for class certification or acquiescing to LFUCG’s motion to deny certification; and fading to give notice to the putative class members of the denial of certification. Although these are perhaps atypical of the types of negligent acts or omissions on which most legal malpractice claims are based, they, nevertheless, fall within the category of litigation negligence.

The instant case presents a unique issue. The Appellants allege that the Appellees’ negligent acts or omissions occurred during the litigation of Guy and Doe I. But nothing occurring in these suits necessarily foreclosed the Appellants’ claims against LFUCG or harmed the Appellants in any way. It was only after the Appellants learned in Doe II and Doe III, respectively, that their causes of action against LFUCG were deemed time-barred that the Appellants’ lost their opportunity to pursue these claims that they allege were otherwise valid. This is the injury on which the Appellants’ malpractice claim is based.

The named plaintiffs of Doe II filed an appeal on September 18, 2003, of multiple orders, including the district court’s orders denying class certification and granting summary judgment against most of the named plaintiffs on the ground that their claims were time-barred. And the named plaintiffs of Doe III filed an appeal on December 4, 2003, of the order which granted summary judgment against them on the ground that their claims were time-barred. A legal malpractice claim by the Appellants who were involved in Doe II based on their lost ability to pursue their claims against LFUCG could not have accrued until the appellate court affirmed the dismissal of those claims as time-barred. Similarly, the legal malpractice claim by the Appellants whose claims were dismissed as time-barred in Doe III could not have accrued until the appellate court affirmed the dismissal of their claims. Until these appeals were final and the dismissal of the Appellants’ claims against LFUCG was the unalterable law of the case, the Appellants’ damages for the alleged legal malpractice were speculative. The mere knowledge or belief by the Appellants that the Appellees’ acted negligently is not enough to trigger the running of the statute of limitations for legal malpractice until the damages are fixed and non-speculative.

Two of the matters before the Sixth Circuit in Doe v. LFUCG were the direct appeals of the orders dismissing the claims in Doe II and Doe III, respectively, as time-barred. The Sixth Circuit’s opinion in Doe v. LFUCG was not issued until May 5, 2005; and the case is still not final because the mandate has not been issued.

The instant case was filed on June 27, 2003, long before the direct appeals of Doe II or Doe III were final. The injury on which the Appellants’ legal malpractice claim is based is the Appellants’ lost opportunity to pursue their otherwise valid claims against LFUCG after these claims were deemed time-barred in Doe II and Doe III. Until the Sixth Circuit issued a final opinion or opinions affirming the district court’s orders dismissing the named plaintiffs’ claims in Doe II and Doe III, the Appellants’ damages were merely speculative. The Appellants had not definitively lost their rights to pursue their claims against LFUCG. Therefore, no cause of action for legal malpractice had accrued at the time the instant case was filed in the Fayette Circuit Court.

The previous analysis has addressed the accrual of the cause of action for the Appellants’ legal malpractice claim only. But, as previously noted, damages are an element of each of the three claims asserted by the Appellants. And the Appellants asserted the same damages for each of their causes of action. Therefore, if the Appellants’ cause of action for legal malpractice had not accrued when the instant case was filed because the damages were not yet fixed and non-speeulative, then the Appellants’ causes of action for breach of fiduciary duty and fraudulent misrepresentation also must not have accrued for the same reason. None of the claims asserted by the Appellants could accrue before Doe II and Doe III were affirmed on appeal. Yet the Appellants filed the instant case long before that occurred. Notably, when the trial court issued the summary judgments on appeal, the causes of action still had not accrued.

F. Prematurely Filed Cause of Action.

We are faced with the question of what to do with a case which was filed before any cause of action accrued. We note that this is not simply a prematurely filed appeal. Instead, this is a case in which the very complaint was filed before the asserted causes of action accrued.

In Lilly v. O’Brien, Kentucky’s highest court was faced with an election contest case that was filed before the final action of the county board of election commissioners, the event triggering the statutory right to contest an election. The right to contest an election is purely a creation of statute. Therefore, the statute must be strictly followed because it grants the court subject matter jurisdiction where it otherwise has none

The cause of action eventually accrued when the county board of election commissioners took its final action, which occurred after the action was filed but before the trial court ruled on the case. An amended petition was filed after the cause of action accrued. The premature filing of the action was not raised at the trial court level. The appellate court had to address whether the failure to raise the issue below waived it, whether any jurisdictional defect in the prematurely filed case was cured by the subsequent accrual of the cause of action before the trial court ruled on the issue, or whether the amended petition which was filed after the cause of action accrued related back to the original complaint, curing any jurisdictional defect in the premature filing.

The Court held in Lilly that the fact “that no cause of action had accrued or existed when the suit was commenced cannot be aided by amendment, or waived by delay in calling attention to it.” It also rejected the idea that the subsequent accrual of the cause of action before the trial court ruled on the case could cure the defect of a complaint filed before a cause of action ever accrues and before subject matter jurisdiction attached. The Court stated that “the nonexistence of a cause of action when the suit was started is a fatal defect[.]” The Lilly Court ultimately ruled that the prematurely-filed case should be dismissed without prejudice.

Two other Kentucky cases have reached a different conclusion on whether the issue of prematurity can be waived: Farmers National Bank of Danville v. First Colored Baptist Church of Danville and Skinner v. Morrow, which followed the holding of Farmers National Bank of Danville. In both cases, the creditor of a decedent filed suit to settle the estate before six months had elapsed from the time of the personal representative’s appointment, despite the fact that by statute, only the personal representative is authorized to file such a suit during that time period. The Court held in Farmers National Bank of Danville that the issue of prematurity was waived because it was not raised before the trial court. Moreover, the Court held that only the representative could raise the issue.

We find these two cases involving the premature filing of claim against the estate by someone other than a personal representative to be distinguishable from Lilly in that these two cases, unlike Lilly, do not involve subject matter jurisdiction. The rule regarding when a claim can be filed against the estate by someone other than a personal representative appears to be procedural in nature, akin to a statute of limitations. It does not convey the right to bring a claim against the estate since that right already exists. It merely restricts when that right may be exercised.

The instant case involves a question of subject matter jurisdiction as in Lilly. The circuit court has jurisdiction over justiciable claims. An unripe claim is not justiciable. Because the Appellants’ claims were filed before they were ripe, the circuit court has no jurisdiction over the instant case. Following the precedent established in Lilly, the Appellants’ claims should have been dismissed, without prejudice, for lack of subject matter jurisdiction.

IV. DISPOSITION.

For the reasons discussed in this opinion, we reverse the summary judgment orders; and we remand this case to the Fayette Circuit Court with direction to dismiss the case, without prejudice.

ALL CONCUR.

      . Case no. 98-00431, filed October 15, 1998.

      . Case no. 00-00166, filed May 3, 2000.

      . Case no. 02-00439, filed September 25, 2002.

      . Case no. 03-00012, filed January 13, 2003.

      . Case no. 00-00166. This shared case number suggests that this case was consolidated with Doe I, but this is not clear from the record. It is also unclear when Doe v. Miller was filed.

      . Some of the later federal class actions named additional defendants and additional causes of action, but the exact identity of these defendants or causes of action is not relevant for the purposes of this opinion.

      . In this opinion, the phrase "named plaintiffs” is used to distinguish any plaintiffs who are specifically identified in the pleadings as parties, even if only by a pseudonym, from the putative class members. All of the named plaintiffs in the instant case actually filed using John Doe or Jane Doe pseudonyms, as did the named plaintiffs in Doe I, Doe II, and Doe III.

        . See Doe v. LFUCG, 407 F.3d 755, 759-760 (6th Cir.2005), filed May 5, 2005, petition for reh’g en banc filed May 19, 2005, reh’g en banc denied August 12, 2005. As of the writing of this opinion, the mandate had not been issued, meaning that Doe v. LFUCG was not yet final. See infra for details on how and why we have taken judicial notice of this opinion. We cannot independently verify whether the Appellants in the instant case are the named plaintiffs of Doe II and Doe III because of the use of pseudonyms. See supra n. 7.

      . This group of Appellees will be referred to as "the Plaintiff Appellees” when necessary to distinguish them from the other Appellees.

      . This group of Appellees will be referred to as "the Attorney Appellees” when necessary to distinguish them from the other Appellees.

      . The law firms appear to be included solely on the theory of respondeat superior based on the actions of the attorneys affiliated with these law firms. Because of our holding, we need not address the law firms separately.

      . See KRE 201(c) (stating that "[a] court may take judicial notice, whether requested or not.”)

      . KRE 201(f).

      . Robert G. Lawson, The Kentucky Evidence Law Handbook, § 1.00[5][d], at 19 (4th ed.2003) (citing as examples of this case law Parkrite Auto Park, Inc. v. Shea, 314 Ky. 520, 235 S.W.2d 986 (1950), and White v. Crouch, 280 Ky. 637, 133 S.W.2d 753 (1939)).

      . Lawson, § 1.00[5][d], at 19-20.

      . KRE 201(b)(2).

      . Lawson, § 1.00[4][b], at 15.

      . Id. (parentheses in original) (footnote omitted).

      . PACER "is an electronic public access service that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts and from the U.S. Party/Case Index.” http://pacer.psc.usc-ourts.gov/pacerdesc.html (last visited on August 16, 2005). PACER is a service of the United States Judiciary and is operated by the Administrative Office of the United States Court. Id. However, each federal court maintains its own database with case information. Id. Access to the United States District Court for the Eastern District of Kentucky may be accessed by clicking a link at http://pa-cer.psc.uscourts.gov/cgi-bin/ links.pl# DCCTS (last visited on August 16, 2005) or by going directly to that Court’s homepage for access to its electronic case filing (ECF)/PACER website at https://ecf.kyed.uscourts.gov/cgi-bin/login.pl (last visited August 16, 2005).

        . Cf. Hooker v. Fisher, 590 S.W.2d 342, 343 n. 1 (Ky.App.1979) (taking judicial notice of an opinion of the Kentucky Court of Appeals in another case because it stated a fact which was controlling in the matter before the Court, despite the fact that that case was unpublished and could not be cited).

      . 407 F.3d 755.

      . See Berry v. Commonwealth, 84 S.W.3d 82, 84-85 (Ky.App.2001).

      . See Federal Rules of Civil Procedure (Fed. R.Civ.P.) 23(a).

        .See Doe v. LFUCG, 407 F.3d at 759. We cannot independently confirm that Johnson and Jones were among the named plaintiffs filing Doe I, however, because all of the named plaintiffs filed under pseudonyms.

        .See id. at 760; see id. at n. 6.

        .Id.

        .Id.

      . CR 12.03.

      . 407 F.3d 755.

      . Id. at 761.

      . Id. at 763-764. The Court noted that prejudice was likely in Guy and Doe I because there was reason to believe that there were a large number of absent or putative potential class members. It also noted that the notoriety of these cases made it more likely that a putative class member might have heard about the class action and suit and relied upon it to protect his rights. Id.

      . Id. at 765.

      . Id. at 764 (italics in original).

      . Id. at 767.

      . See infra for an explanation of the role of the mandate as it relates to the finality of a decision by the Sixth Circuit.

      . Marrs v. Kelly, 95 S.W.3d 856, 860 (Ky.2003) (stating as one of the elements of a claim for legal malpractice that the client has suffered an injury proximately caused by the attorney’s negligent conduct); Sparks v. Re/ Max Allstar Realty, Inc., 55 S.W.3d 343, 348 n. 15 (Ky.App.2000) (setting forth as an element of a claim for breach of fiduciary duty the requirement that the plaintiff has suffered an injury caused by the breach of duty); Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357, 359 (Ky.App.1978) (stating as an element of a claim of fraudulent misrepresentation that the misrepresentation has caused injury).

      . Curry v. Coyne, 992 S.W.2d 858, 860 (Ky. App.1998).

      . See id.

      . See Ky. Const. § 112(5). Cf. Anderson v. Cabinet for Human Resources, 917 S.W.2d 581, 583-584 (Ky.App.1996) (reversing a decision of the circuit court that held that the appellant’s right to judicial review of a decision by the Cabinet had expired and remanding the case back to the Cabinet for further administrative proceedings on the ground that the appellant’s right to judicial review "has never ripened into justiciability” because the Cabinet had never given the appellant notice of his right to appeal its decision as specifically required by an administrative regulation).

      . Commonwealth Health Corp. v. Croslin, 920 S.W.2d 46, 47 (Ky.1996).

      . Id., Duncan v. O’Nan, 451 S.W.2d 626, 631 (Ky.1970).

      . Caudill v. Arnett, 481 S.W.2d 668, 669 (Ky.1972).

      . Michels v. Sklavos, 869 S.W.2d 728, 730 (Ky.1994) (internal quotations, including ellipsis, as in original).

      . Id.

      . Id. (quoting Northwestern National Insurance Co. v. Osborne, 610 F.Supp. 126, 128 (D.C.Ky. [E.D. Ky.] 1985)) (quotation as in Michels, including internal quotation marks and brackets).

      . Id. (quoting Osborne, 610 F.Supp. at 128).

      . Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121, 125-126 (Ky.1994).

      . Michels, 869 S.W.2d at 730.

      . Hibbard v. Taylor, 837 S.W.2d 500, 501 (Ky.1992). Cf. Stephens v. Denison, 64 S.W.3d 297, 299-300 (Ky.App.2001).

      . Michels, 869 S.W.2d at 730.

      . Id.

      . Michels, 869 S.W.2d at 730; Hibbard, 837 S.W.2d at 501-502.

      . Hibbard, 837 S.W.2d at 502. This holding of Hibbard was reaffirmed in Michels, 869 S.W.2d at 733.

      . Barker v. Miller, 918 S.W.2d 749, 751 (Ky.App.1996).

      . Faris v. Stone, 103 S.W.3d 1, 4-5 (Ky.2003)

      . Michels, 869 S.W.2d at 731.

      . Meade County Bank v. Wheatley, 910 S.W.2d 233, 234-235 (Ky.1995).

      . See, e.g., Mitchell v. Transamerica Insurance Co., 551 S.W.2d 586 (Ky.App.1977) (holding that Appellants, who settled a personal injury claim filed in federal court in Indiana, failed to establish any damages in a malpractice claim against their original attorney who had earlier let the Kentucky statute of limitations expire on this personal injury claim because they could not show that they received less damages than if they had been allowed to pursue their claim in a Kentucky court). But see, e.g., Goff v. Justice, 120 S.W.3d 716 (Ky.App.2002) (holding that ultimate settlement of Appellants' medical malpractice claim after attorney's withdrawal from action did not bar Appellants’ legal malpractice claim against attorney where the attorney’s allegedly negligent actions had resulted in court orders severely limiting the clients’ presentation of expert witness testimony and had resulted in the dismissal of two defendants from the medical malpractice case). The fact pattern of the instant case illustrates the very harm sought to be avoided by requiring finality of the underlying case before recognizing a cause of action for legal malpractice based on litigation negligence. Because of the lack of subject matter jurisdiction, we take no position on whether the Sixth Circuit's reopening of Guy places the Appellants back in the same situation that they would have been in if not for the alleged negligence of the Appellees, as in Mitchell, or if they still suffered some injury, as in Goff. But it appears that the reopening of Guy would certainly affect the damages potentially recoverable by the Appellants if they proved to have any otherwise viable claims.

      . Mitchell, 551 S.W.2d at 588.

      . 6th Cir. I.O.P. 41(a).

      . Federal Rules of Appellate Procedure (Fed. R.App.P.) 41(d)(1).

      . Fed.R.App.P. 41(b), 6 Cir. I.O.P. 41(b).

      . We take no position on whether these acts can rise to negligence because this depends, in part, on whether the Appellees owed any duty of care to the Appellants, a question which we do not address in this opinion.

      . Cf. Stephens, 64 S.W.3d at 300 (holding that despite the fact that malpractice allegation based on failure to communicate a plea offer "does not fit precisely within the definition of 'litigation negligence' as defined in Michels, nevertheless, it is inescapable that the same principle applies.” (quotation marks and italics in original)).

      . Hibbard, 837 S.W.2d at 502.

      . Michels, 869 S.W.2d at 731.

      . See 6th Cir. I.O.P. 41(a). The mandate was stayed most recently by the filing on August 19, 2005, of a petition to stay its issuance.

      . See supra n. 37.

      . Hibbard, 837 S.W.2d at 502.

      . 224 Ky. 474, 6 S.W.2d 715 (Ky.1928).

      . Mat 717-718.

      . Id.

      . Id. at 718.

      . Id.

      . Id.

      . Id. at 719.

      . Id. at 718-719.

      . Id. at 719 (citations omitted).

      . Id.

      . Id. See also Broyles v. Commonwealth, 309 Ky. 837, 219 S.W.2d 52, 54 (Ky.1949) (holding that case for usurpation of office should be dismissed, without prejudice, because it was filed before the alleged-usurped ever assumed office and "[t]he later assumption of the office and the amendment of the petition thereafter could not give life to the premature petition”).

      . 277 Ky. 521, 126 S.W.2d 1130 (Ky.1939).

      . 318 S.W.2d 419 (Ky.1958). Although decided after Lilly, the Court made no reference to Lilly in this opinion.

      . Farmers National Bank of Danville, 126 S.W.2d at 1132. The relevant statute at this time was Section 428 of the Civil Code of Practice. Id.; Skinner, 318 S.W.2d at 423-424. The relevant statute at this time was KRS 395.510. Id. at 424.

      . 126 S.W.2d at 1132-1133.

      . Id., Skinner, 318 S.W.2d at 424.

      . Ky. Const. § 112(5).

      . Curry, 992 S.W.2d at 860.