source: Caselaw Access Project

license: Public Domain

text:
    BILLY BAKER PAINTING Appellant, v. Daniel BARRY, Hon. Bonnie C. Kittinger, Administrative Law Judge; and Workers’ Compensation Board Appellees.
    No. 2005-SC-0029-WC.
    Supreme Court of Kentucky.
    Sept. 22, 2005.
    Rehearing Denied Jan. 19, 2006.
    .Douglas A. U’Sellis, U’Sellis & Kitchen, PSC, Louisville, Counsel for Appellant.

      Christopher P. Evensen, Tamara Cotton & Associates, Louisville, Counsel for Ap-pellee.
   OPINION OF THE COURT

The defendant-employer failed to include a “payment adjustment end date,”' when notifying the Department of Workers’ Claims that it was terminating voluntary temporary total disability (TTD) benefits due to the claimant’s return to work. For that reason, the Department did not notify the claimant of his right to file an application for benefits and of the applicable period of limitations. An Administra1 five Law Judge (ALJ) determined subsequently that the employer failed to comply adequately with KRS 842.040(1); therefore, the period of limitations was tolled when the claimant filed his application. The employer maintains that it complied with KRS 342.040(1), that it was unnecessary for the claimant to be informed of the date when benefits were terminated, and that it was the Department that failed to comply with KRS 342.040(1). We affirm.

The claimant was born in 1951 and has an eleventh-grade education. In 1995, he began working for the defendant-employer as a painter. On July 19, 1997, he injured his right knee while working. He underwent arthroscopic surgery on the knee in September, 1997, and was released to return to work in November of that year. The employer paid TTD benefits through November 16, 1997, when the claimant returned to his usual work. He testified subsequently that he continued to have problems with his knee and that the employer terminated him in April, 2001, without giving a reason. Although his knee worsened thereafter, he did not seek medical treatment until sometime in 2002. He stated that his subsequent employer laid-him off on November 21, 2002. He had not worked since then because he continued to have problems with his knee. Also, his symptoms had worsened.

The claimant filed an application for benefits on December 17, 2002. Moving to dismiss the claim, the employer asserted that it had properly filed an electronic Form IA-2 in which it notified the Department that TTD benefits were last paid on November 16, 1997; therefore, the claim was barred by limitations. The claimant' responded that he did not receive a Termination of Benefits (WC-3) letter from the Department. Attached to the pleading was a January 15, 2003, affidavit by Larry Greathouse, the Department’s commissioner. It certified that on November 21, 1997, the Department received an electronic Subsequent Report of Injury (IA-2) regarding the claimant’s knee injury. It also certified that the Department’s database did not reveal the filing of an IA-2 that reflected the Adjustment End Date; therefore, the Department had not generated a WC-3 letter. On that basis, the ALJ overruled the motion to dismiss but later granted a motion to bifurcate the limitations issue.

The. employer introduced depositions from two Department employees. In May, 2003, Joe Peters, the Supervisor in the Agreements Section at the Department, testified that his section was responsible for processing letters to workers regarding the statute of limitations. He stated that, the Department’s electronic data system produced letters based on information that employers submitted. Addressing the present claim, he explained that the Department received an electronic First Report of Injury (IA-1); a Subsequent Report of Injury (IA-2), which indicated that the employer initiated TTD payments; and a second IA-2, which indicated that the claimant returned to work on November 16, 1997, and that the employer suspended or terminated payments. He explained that, normally, an IA-2 regarding the suspension or termination of benefits would have triggered a letter, notifying the claimant of the date that benefits were terminated and of the applicable period of limitations. In this case, the system produced a letter, but the termination date could not be verified. This occurred because the employer’s second IA-2 did not include the mandatory payment adjustment end date, ie., the date of the last TTD payment. Peters explained that the Department’s policy at that time was not to mail a letter in which the date of the last TTD payment could not be verified. The policy was later revised.

As an exhibit to Mr. Peters’ deposition, the claimant introduced a copy of a November 14, 2000, letter from Walter W. Turner, a former commissioner of the Department. The letter involved a similar situation in another claim. It addressed the Department’s policy of discarding WC-3 letters that were produced from data that did not contain a payment adjustment end date and, therefore, did not contain a termination date. In the letter, Mr. Turner characterized the date as being a mandatory field in an employer’s notification that benefits have been suspended or terminated. He stated that as of March 3, 1998, no system was in place to notify an employer that data was missing from an IA-2 filing or that a WC-3 letter would not be sent to the injured worker. He explained that the rationale for discarding letters that were produced from data that did not include a payment adjustment end date was that such letters did not correctly state the date of the last voluntary payment from which the two-year period of limitations would run. He stated that, in his opinion, a better policy would have been to reject the deficient IA-2 or to inform the employer that a letter regarding the statute of limitations would not be sent to the worker.

Deborah Wingate, Director of the Department’s Information and Research Division, was deposed on July 14, 2003. Her description of the Department’s policy in 1997 verified those of Messrs. Peters and Turner. She stated that, to her knowledge, the Department did not reject incomplete filings in 1997. Nor did it notify the employer, carrier, or adjuster who made the filing that a WC-3 letter would not be sent. She testified that the policy was changed in 1998, after which the Department attempted to identify cases in which no WC-3 letter had been mailed under the previous policy and to inform employers. Nonetheless, she continued to maintain that the reason no WC-3 letter was mailed in the pre-1998 cases, such as the claimant’s, was the employer’s failure to include the payment adjustment end date, a date considered to be mandatory when reporting a termination of benefits.

When deposed on July 14, 2003, Ms. Mary Margaret Sutherland, Claims Manager at Ladegast & Heffner Claims Service, testified that the claimant was paid TTD benefits from July 29, 1997, through November 16, 1997. Ladegast & Heffner then filed an electronic IA-2 report. She verified that although the filing contained a return to work date of November 16, 1997, it contained nothing in the field for the payment adjustment end date. Nonetheless, Ladegast & Heffner received an acknowledgement from the Department that the filing was accepted on November 21, 1997. At no time was it informed that the filing was deficient or that the deficiency would prevent a WC-3 letter from being mailed. Her understanding was that Department procedure changed subsequently so that the Department mailed WC-3 letters upon receipt of IA-2 which indicated that payment was suspended or terminated, regardless of whether it included the payment adjustment end date. Although she conceded that the adjustment end date was mandatory when reporting a termination of benefits in 1997 and although she conceded that Ladegast & Heffner failed to report an end date on the IA-2 it filed regarding the claimant’s termination of benefits, she would not agree that the filing was deficient.

Ms. Sutherland testified that in December, 1999, she received a letter from Ms. Wingate. It contained a list of claims for lost time injuries that did not reflect a return to work date or a subsequent report. from the carrier. She stated that the list did not include the claimant’s name. It • appears from the transcript, however, that she was not asked- whether the Department also sent a list of claims that failed to reflect a payment adjustment end date or if she requested such a list.

The ALJ determined from the evidence that the employer’s failure to include a payment adjustment end date when filing the second Form IA-2 was the reason that the claimant did not receive the letter to which he was entitled. Although acknowledging that it was unfortunate that the letter was not mailed and that the carrier was not informed of its error or of its effect, the ALJ pointed out that an injured worker is not required to bear the consequence of a mistake that is in no way his fault. Ingersoll-Rand Co. v. Whittaker, 883 S.W.2d 514 (Ky.App.1994). Concluding that the period of limitations was tolled regarding the claimant’s injury, the ALJ ordered the claim to proceed.

The employer continues to maintain that it complied with KRS 342.040(1) by informing the Department of the date' that the claimant returned to work and of the fact that benefits were terminated. It asserts that any failure to comply with KRS 342.040(1) resulted from the Department’s decision not to mail WC-3 letters in which the date that benefits were terminated could not be verified. Furthermore, it argues that workers know the date when their benefits cease and are capable of calculating the date when their claims expire.

At the time of the claimant’s injury, KRS 342.185 provided, in pertinent part, as follows:

(1) Except as provided in subsection (2) of this section, no proceeding under this chapter for compensation for an -injury or death shall be maintained unless . an application for adjustment of claim for compensation with respect to the injury shall have been made with the department within two (2) years after the date of the accident .... If payments of income benefits have been made, the filing of an application for adjustment of claim with the department within the period shall not be- required, but shall become requisite within two (2) years following the suspension of payments or within two (2) years of the date of the accident, whichever is later, (emphasis added).
KRS 342.040 provided, in pertinent part: (1) Except as provided in KRS 342.020, no income benefits shall be payable for the first seven (7) days of disability unless disability continues for a period of more than two (2) weeks, in which case income benefits shall be allowed from the first day of disability. All income benefits* shall be payable on the regular payday of the' employer, commencing with the first regular payday after seven (7) days after'the injury - In no event shall income benefits be instituted later than the fifteenth day after the employer has knowledge of the disability or death: Income benefits shall be due and payable not less often than semimonthly. If the employer’s insurance carrier or other party responsible for the payment of workers’ compensation benefits should terminate or fail to make payments when due, that party shall notify the commissioner of the termination or failure to make payments and the commissioner shaE, in writing, advise the employee or known dependent of right to prosecute a claim under this chapter, (emphasis added).

As adopted effective December 7, 1995, 803 ICAR 25:170, § 2(2) provided, in pertinent part:

Beginning with work-related injuries and occupational diseases reported to employers on or after January 1, 1996, each insurance company writing workers’ compensation insurance pohcies in the Commonwealth of Kentucky, each group of self-insurers holding a valid certificate issued by the commissioner (or its third-party administrator), and each individual employer carrying its own risk and holding a valid certificate issued by the commissioner shall file the information required on the Form IA-2 with a data collection agent or a value added network designated by the Department of Workers’ Claims, in electronic format, every sixty (60) days for as long as the disabEity of an employee continues and whenever payments to an employee are commenced, terminated, changed, or resumed, (emphasis added).

It has long been recognized by the courts that KRS 342.185(1) operates in tandem with KRS 342.040(1) to prevent an injured worker from being lulled into a false sense of security by the payment of voluntary benefits and fading to file a timely claim. J & V Coal Co. v. Hall, 62 S.W.3d 392, 395 (Ky.2001). Absent extraordinary circumstances such as were present in Newberg v. Hudson, 838 S.W.2d 384, 389 (Ky.1992), an employer’s faüure to comply strictly with KRS 342.040(1) and the applicable regulations has tolled the period of limitations, without regard to whether the faEure is attributable to bad faith or misconduct. See H.E. Neumann v. Lee, 975 S.W.2d 917 (Ky.1998); Colt Management v. Carter, 907 S.W.2d 169 (Ky.App.1995); Ingersoll-Rand Co. v. Whittaker, supra. As the party raising a limitations defense, the burden was on the employer to prove that such circumstances existed.

Reading the statutes and regulation in concert, it is apparent that KRS 342.185(1) runs the period of limitations for two years after the last payment of voluntary income benefits. KRS 342.040(1) requires an employer to inform the Department that voluntary benefits have been terminated and then requires the Department to notify the injured worker of the right to prosecute a claim. 803 KAR 25:170, § 2 specifies that employers must notify the Department of a suspension or termination of benefits by filing a Form IA-2. Furthermore, it is undisputed that the payment adjustment end date (i.e., the date that benefits were terminated) is a mandatory field when completing an IA-2 to report a suspension or termination of benefits. As implied in former Commissioner Turner’s letter, the date that an individual is released to return to work or the date that he does so is not necessarily the date when benefits were terminated. The regulation and Form IA-2 help to effectuate the purpose of KRS 342.185(1) and KRS 342.040(1) by requiring an employer to specify the date that voluntary benefits were suspended or terminated.

In the present case, Ladegast & Heffner filed a Form IA-2 on the employer’s behalf, informing the Department that it had terminated benefits and that the claimant returned to work on November 16, 1997, but it faEed to include the date that benefits were terminated. For that reason, the Department did not mail a WC-3 letter, and the claimant did not receive one. Although the carrier continues to assert that the IA-2 it filed was not deficient, the fact remains that the form did not include a date that it concedes was mandatory. Although it is unfortunate that the carrier was not informed of the omission on its IA-2 and given an opportunity to rectify the matter, we are not convinced that the ALJ erred by concluding that the equities favored the claimant.

The decision of the Court of Appeals is affirmed.

All concur.


author: MINTON, Judge.

text:
    Richard E. HUGHES, Appellant, v. KENTUCKY HORSE RACING AUTHORITY, Successor to the Kentucky Racing Commission, and Kentucky Personnel Board, Appellees.
    No. 2002-CA-002580-MR.
    Court of Appeals of Kentucky.
    April 23, 2004.

      Herbert L. Segal, Everett C. Hoffman, Segal Stewart Cutler Lindsay Janes & Berry, PLLC, Louisville, KY, for appellant.
    J. Bruce Miller, J. Bruce Miller Law Group, Louisville, KY, for appellee Kentucky Horse Racing Authority.
    No Brief for appellee Kentucky Personnel Board.
    Before MINTON and SCHRODER, Judges; MILLER, Senior Judge.

      . The Kentucky Racing Commission was abolished, re-created, restructured, and renamed the Kentucky Horse Racing Authority by Executive Order 2004-030, dated January 6, 2004.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS) 21.580.

   OPINION

MINTON, Judge.

Richard E. Hughes appeals the decision of the Franklin Circuit Court that reversed the order of the state Personnel Board. The Personnel Board found the Kentucky Racing Commission’s (KRC) termination of Hughes’s employment for misconduct to be excessive and modified punishment to a thirty-day suspension without pay. The circuit court disagreed, ruling that the Personnel Board had acted arbitrarily. We reverse the circuit court.

Until his termination by KRC, Hughes was an employee of that agency holding the full-time merit position of Racing License Inspector. At that time, he was a sixty-nine-year-old African-American man, who described himself as having worked around thoroughbred horse racing for more than fifty years.

KRC notified Hughes by letter dated August 17, 2000, that he had been placed on special leave with pay effective August 18, 2000, pending an investigation of charges that he had engaged in terroristic threatening while working at Ellis Park, a thoroughbred track located in Henderson, Kentucky, and that he had brought a firearm to work at Ellis Park. In a second letter dated August 31, 2000, KRC notified Hughes of its intention to dismiss him effective September 19, 2000, for these charges. The letter stated that KRC found probable cause to believe that he had threatened the life of Gerard O’Brien, a trainer at Ellis Park, in a parking lot at Ellis Park on August 6, 2000. The letter further stated that on August 9, 2000, Hughes had repeated this death threat to David Paulus, another horse trainer at Ellis Park. According to the letter, these threats violated 101 Kentucky Administrative Regulations (KAR) 1:345, Section l, and 101 KAR 2:095, Section 9. In addition, on August 9, 2000, Hughes brought a gun onto Ellis Park property in violation of Ellis Park’s rules and 810 KAR 1:025, Section 3(12)(a). Darrell Williams, head of security at Ellis Park, located a loaded handgun in the passenger compartment of Hughes’s car following an interview with Hughes on August 9, 2000, in which Hughes confirmed to Williams that he had threatened to kill O’Brien and that he had a gun with him at the track.

KRC’s letter further stated that Hughes’s racing license, which permitted him to perform his job duties at the various thoroughbred tracks around the state, had been suspended at a hearing by the Ellis Park Stewards on August 23, 2000. In addition, Ellis Park management had ejected him from the track and refused to allow him further access. The suspension of the license and the ejection barred Hughes from Ellis Park; and this bar would also be recognized and enforced by the other Kentucky tracks, which meant that Hughes would not be able to perform his job at any track in Kentucky.

By agreement between Hughes and KRC, the termination was held in abeyance pending an evidentiary hearing on the license suspension by a KRC hearing officer on October 9, 2000. KRC formally terminated Hughes effective October 13, 2000.

As a classified state employee with status, Hughes appealed the termination to the Personnel Board on December 12, 2000. On February 13, 2001, the Hearing Officer for the Personnel Board conducted an administrative hearing in accordance with KRS Chapter 13B. The Hearing Officer rendered his “Findings of Fact, Conclusions of Law and Recommended Order” on February 21, 2001. By way of background, the Hearing Officer recited verbatim KRC’s findings. However, the Hearing Officer’s findings of fact diverged significantly from those made by KRC. The Hearing Officer found that even though Hughes admitted threatening to kill O’Brien on August 6, 2000, he actually found no evidence of intent on Hughes’s part to follow through with the threat. Furthermore, the Hearing Officer found that a “wounded” Hughes delivered the death threat in reaction to a racially charged retort that O’Brien had aimed at Hughes at the track about two hours before the parking lot encounter on August 6, 2000. The Hearing Officer found that O’Brien said, “Pm not going to be any nigger’s Cheshire cat.” Further differing from KRC’s charges, the Hearing Officer did not believe from the evidence that Hughes repeated the threat on O’Brien’s life to Paulus or Williams on August 9, 2000. As for the presence of the gun in Hughes’s car at Ellis Park on August 9, 2000, the Hearing Officer dismissed it as an inadvertent coincidence. The Hearing Officer believed Hughes’s testimony that he had a permit to carry a concealed weapon, that he customarily carried the weapon with him as he traveled about the state, and that he had simply failed to stop by the motel to leave his weapon before coming to the track on the morning of August 9, 2000.

The Hearing Officer agreed that KRC had grounds to discipline Hughes for misconduct associated with the work, stating

(1) Hughes was guilty of misconduct, as that term is defined by 101 KAR 1:345, Section 1, in his use of language during his angry outburst on August 6 which communicated a threat to do physical violence to O’Brien.
(2) Hughes violated 810 KAR 1:[025], Section 3(12), by possession of a firearm on association grounds.

However, the Hearing Officer’s conclusions then departed from KRC’s in that he concluded that

(3) Hughes did not violate the state’s workplace violence policy [101 KAR 2:095, Section 9](l)(b). Although his words make out a prima facie case of terroristic threatening, the evidence failed to establish that the angry remarks, uttered in the context of the parking lot exchange between O’Brien and Hughes, caused O’Brien to have a reasonable belief that his health or safety was at risk. The situation strongly implies that O’Brien understood that these were angry words from a black man who had been offended by the use of the word “nigger.” O’Brien did not want the situation to go any further, but he registered the remark with the track steward merely as a defensive posture should Hughes continue to protest. The subsequent recitation of the same words, first to Paulus, then to Williams, were out of context. It was here that Hughes made his most serious error by confirming his intention to Williams as a means of underscoring his anger. Yet the Hearing Officer is persuaded he meant nothing more than to communicate the depth of his feeling to Williams, whom he trusted as an old friend who would understand. He seriously miscalculated the position that Williams would be in, as director of security, in hearing the threatening words repeated and confirmed.
(4) The Hearing Officer finds the penalty of termination excessive and erroneous under the circumstances. There are mitigating factors which powerfully influence the evaluation of the seriousness of the offense and the appropriateness of the penalty. Hughesfs] situation is examined under KRS 18A, a statute that requires a just and proper cause.
(5) Grave sanctions should not be applied to the kind of verbal threat that expresses transitory anger rather than a settled purpose to carry out the threat. While it must be recognized that the increasing incidence of workplace violence requires vigilance by any employer, the principles of fairness and just cause cannot be sacrificed because of the challenges facing management in enforcing policies against aggressive behavior.
(6) On the charges of misconduct, as grounds for termination, the Hearing Officer finds that the penalty of forfeiture of his job is inappropriate for the utterance of angry words to O’Brien in reaction to a racial slur and additional rude conduct during their parking lot conversation. Although Hughes’[s] subsequent handling of the situation magnified the original problem, these complications occurred independent of the original threat and do not convert it into a dischargeable offense.
(7) The possession of a handgun was the result of an oversight. Although [Ellis Park’s Chief Security Officer] Williams testified that there have been other occasions of ejecting people from the Park for possession of firearms, there is no evidence to lead the Hearing Officer to believe that such ejections arose from similar circumstances to finding a firearm, sealed in a pouch, in a locked car in the parking lot. While Hughes violated both the KAR regulation and Ellis Park rules, this infraction would not warrant termination of his employment.
(8) The KRC also advocates that discharge is warranted because Hughes has lost the ability to fulfill his job requirements. The ejection from Ellis Park results in being barred from not only that track, but other tracks in the state. This was compounded by the suspension of Hughes’[s] license by the stewards, which also prohibited him from being on the premises, independent of the Ellis Park ejection. Either of these circumstances results in Hughes being unable to perform the duties of the license inspector. There are no other administrative jobs available on the relatively small staff of the KRC.
(9) The Hearing Officer concludes that these complications in the ability of Hughes to perform his job do not constitute independent grounds for dismissal. The ejection from Ellis Park is not irrevocable. Although Williams testified that he would not support setting it aside under the present circumstances, he is not the decision-maker. Hughes has made no application to have his ejection lifted and his privilege to return to the track reinstated. The Hearing Officer considers Williams’[s] opinion as simple conjecture. If Ellis Park would reinstate Hughes, he would be able to perform his normal duties. Similarly, as of the writing of these recommendations, suspension of Hughes’[s] license has not been finalized by the KRC. If that Commission were to act in Hughes’[s] favor, another impediment to performing his normal duties would be removed. Even if the suspension is upheld, Hughes may apply for a new license for 2001. This application would have to be reviewed by a panel, who would make recommendations to the KRC. The KRC could well determine that the suspension of Hughesf’s] license during 2000 was a sufficient penalty, and permit him to be licensed for 2001. Such a result may be suggested by the stewards[’s] failure to recommend that Hughes’[s] license be suspended for 2001. The testimony at the hearing clearly established that the stewards have such authority and have exercised it in the past.
(11) It is recommended that Hughes’[s] termination be converted to a thirty (80) day suspension. Such a penalty should clearly communicate to Hughes that his conduct was inappropriate and that it cannot be justified by his sense of personal offense. There was no evidence that Hughes’[s] job performance was in any other way unsatisfactory, or that he is not capable of improving his conduct and learning the lessons that this wrenching episode impose.

The Hearing Officer concluded that following the thirty-day suspension, Hughes should be immediately reinstated to his former position, or to a position of like status and pay, and otherwise be made whole. KRC filed exceptions to the hearing officer’s recommended order, but the Personnel Board adopted all of the hearing officer’s findings and recommendations in a final order dated May 15,2001.

KRC appealed to the Franklin Circuit Court. In an order entered November 22, 2002, the circuit court found a lack of substantial evidence in the whole record to support over-turning the dismissal and concluded, therefore, that the Personnel Board’s action was arbitrary. In so doing, the circuit court found:

The record reflects that Mr. Hughes threatened the life of a co-worker while at work on the Ellis Park premises. There is also credible evidence in the record that he repeated this threat to another co-worker and demonstrated his ability to carry out this threat by showing the loaded weapon concealed in his car. The safety of the workplace is of paramount importance in such circumstances.

The circuit court reversed the Personnel Board and ordered that the KRC’s decision be reinstated. Hughes then appealed to this Court,

On appeal to this Court, KRC urges us to affirm the circuit court by arguing that its decision to terminate Hughes trumps the conflicting decision by the state’s Personnel Board because the General Assembly’s grant of authority to regulate horse racing confers on KRC an “over-arching responsibility [] to protect the public’s interest by continuing and maintaining the integrity, honesty and the orderly conduct of thoroughbred racing.” According to KRC, this “over-arching responsibility” exempts KRC from the provisions of the state’s merit system. We recognize that KRC is an agency of state government created to regulate the conduct of horse racing and pari-mutuel wagering on horse racing within the Commonwealth. In matters relating to the state’s system of personnel administration, however, the General Assembly has made KRC subject to the same statutory provisions as other state agencies, specifically the merit system provided in KRS 18A.005 to KRS 18A.200. Had the legislature intended to exempt KRC from the state merit system, it could easily have done so ' as it did for other entities of state government in KRS 18A.010(3). From the outset of this case, KRC more realistically acknowledged Hughes’s right of appeal to the Personnel Board under KRS 18A.095. It said so when it terminated him. Accordingly, we reject KRC’s preemption argument.

When reviewing the action of an administrative agency, a court is concerned with whether the agency’s action was arbitrary, which is defined as “clearly erroneous”; clearly erroneous means not supported by substantial evidence. “Substantial evidence” is evidence which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the minds of reasonable persons.

In reviewing whether an agency’s decision is supported by substantial evidence, the reviewing court must adhere to the principle that the agency, as fact finder, is afforded great latitude in its evaluation of the evidence heard and the credibility of the witnesses appearing before it. In addition to the principles established by case law, the judicial review process of Kentucky’s administrative procedures act at KRS 13B.150(2) circumscribe the scope of judicial review' of factual determinations made in an agency’s due process hearing, as follows: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” What constitutes cause for dismissing a merit employee is a fact question for determination by the Personnel Board.

In the case at hand, the Personnel Board properly placed the burden of proof and the ultimate burden of persuasion on KRC to demonstrate by a preponderance of the evidence the propriety of the penalty it had imposed for Hughes’s misconduct. Since the Personnel Board found that KRC produced sufficient evidence to sustain a finding of misconduct by Hughes, but found that KRC did not sustain its burden of proving that termination was the appropriate penalty, the issue on appeal is whether the evidence favoring termination was so compelling that no reasonable person could have found facts as the Personnel Board did. Although we might have reached a different result, we cannot say from our review of the record that the evidence compelled different findings.

An administrative agency’s interpretation of its own regulations is entitled to substantial deference. A reviewing court is not free to substitute its judgment as to the proper interpretation of the agency’s regulations as long as that interpretation is compatible and consistent with the statute under which it was promulgated and is not otherwise defective as arbitrary or capricious. With that standard in mind, we address KRC’s argument on appeal that the Personnel Board misconstrued the state’s workplace violence policy regulations as promulgated by the Secretary of the Personnel Cabinet, 101 KAR 2:095, Section 9(l)(a) and (b) and (2)(a) and (c), which provide:

(1) Workplace violence shall be prohibited and include:
(a) The attempted, threatened, or actual conduct of a person who endangers or is likely to endanger the health and safety of state employees or the general public; or
(b) A threatening statement, harassment or behavior that gives a state employee or member of the general public reasonable cause to believe that his health or safety is at risk.
(2) Examples of prohibited workplace violence shall include:
(a) Threats of harm;
(c) Intimidating, threatening, or directing abusive language toward another person, either verbally, in writing or by gesture....

In an obvious reference to KRS 508.080(l)(a), the Hearing Officer concluded that Hughes’s threat “[made] out a prima facie case of terroristic threatening.” The offense of making a terroristic threat may be complete without evidence that the accused intended to carry out the threat and without evidence that the victim was placed in reasonable apprehension of immediate injury. By comparison, when concluding that Hughes’s “terroristic threat” did not violate Subparagraph (l)(b), the Hearing Officer found that Hughes’s threat was an expression of “transitory anger” lacking intent on his part to follow through with the act threatened. In further comparison, the Hearing Officer found that the threat did not “cause[ ] O’Brien to have a reasonable belief that his health or safety was at risk.” Since the language of Subparagraph (l)(b) differs substantially from that of the ter-roristic threatening statute by specifically adding the requirement that the threatening statement or behavior “give[ ] a state employee or member of the general public reasonable cause to believe that his health or safety is at risk,” we cannot say that the Hearing Officer misconstrued the actual language of Subparagraph (l)(b) when he concluded that Hughes had not violated this regulation because the threat did not actually make O’Brien apprehensive for his own safety at any time. In upholding the Personnel Board’s interpretation of its own regulation here, we are not endorsing an interpretation of the regulation that would require evidence of the state of mind of the author of a threatening statement that the author actually intends to carry out the threat or even that the author intends to frighten the victims. It is sufficient that the threatening statement is made causing the victim reasonable apprehension. We do not address the possible applicability of Subparagraph (l)(a) because KRC did not present that argument to the Personnel Board for its consideration.

In the final analysis, KRS 18A.095(23)(c) vests the Personnel Board with the exclusive authority, if “[it] finds that the action taken by the appointing authority was excessive or erroneous in view of all the surrounding circumstances,” to direct the appointing authority to alter, modify, or rescind the disciplinary action. The Board here found just cause existed to discipline Hughes for misconduct, but further found that a thirty-day suspension was more appropriate than termination based on all the circumstances. The Personnel Board exercised its statutory prerogative to alter or modify Hughes’s penalty as excessive. Again, we might have imposed a different penalty, but under the facts as found by the Personnel Board, we cannot say that the decision was arbitrary, capricious, or an abuse of discretion.

In accordance with the foregoing, the order of the Franklin Circuit Court is reversed and the final order of the Personnel Board is reinstated.

ALL CONCUR.

      . Appointing authorities may discipline employees for lack of good behavior or the unsatisfactory performance of duties.

      . State Workplace Violence Policy, infra.

      . The commission in its discretion may refuse to issue a license to an applicant, or may suspend or revoke a license issued, or order other disciplinary measures, on the following grounds:
      (12) Possession on association grounds, without written permission from the commission or stewards, of:
      (a) Firearms[.]

      . KRS 230.310 authorizes KRC to control horse racing in the Commonwealth through the issuance of racing licenses for participants. Virtually everyone who works at thoroughbred race tracks during a race meeting, including racing officials employed by KRC, must carry a valid license for access to the facility and grounds. See 810 KAR 1:025, Section 5(8)(a) and Section 8. KRS 230.320 authorizes KRC to deny, revoke, or suspend the license for anyone who violates any statute, administrative regulation, or condition of KRC. See 810 KAR 1:025, Section 3. License disputes are typically dealt with summarily and informally by track stewards, but the licensee has the right to a full administrative appeal to KRC. See 810 KAR 1:025, Section 1(2).

      . On August 23, 2000, the three Racing Stewards at Ellis Park ordered that Hughes's racing license be suspended for misconduct for the remainder of the 2000 calendar year. A KRC hearing officer conducted an evidentiary hearing concerning the stewards' order on October 9, 2000, and in an order dated December 27, 2000, recommended that the stewards’ order be affirmed by KRC. That suspension is the subject of a separate appeal to the Franklin Circuit Court.

      . KRC recognizes in 810 KAR 1:025, Section 7, the independent "common law rights of associations to eject or exclude persons, licensed or unlicensed, from association grounds.” See also James v. Churchill Downs, Inc., Ky.App., 620 S.W.2d 323 (1981) (recognizing the common law right to exclude persons from the track).

      . KRS 18A.095(2).

      . KRS 18A.095(18).

      . KRS 13B.140 and KRS 18A.100.

      . KRS 13B.160.

      . KRS 230.225(1).

      . Kentucky Bd. of Nursing v. Ward, Ky.App., 890 S.W.2d 641, 642 (1994).

      . Bowling v. Natural Resources and Environmental Protection Cabinet, Ky.App., 891 S.W.2d 406, 409 (1994).

      . Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 308 (1972).

      . Perkins v. Stewart, Ky.App., 799 S.W.2d 48, 51 (1990).

      . KRS 13B.090(7); Commonwealth, Transportation Cabinet v. Woodall, Ky.App., 735 S.W.2d 335 (1987).

      . See Bourbon County Board of Adjustment v. Currans, Ky.App., 873 S.W.2d 836, 838 (1994).

      . Camera Center, Inc. v. Revenue Cabinet, Ky., 34 S.W.3d 39 (2000).

      . City of Louisville By and Through Kuster v. Milligan, Ky., 798 S.W.2d 454, 458 (1990).

      . [A] person is guilty of terroristic threatening in the third degree when:
      (a) He threatens to commit any crime likely to result in death or serious physical injury to another person....

      . Thomas v. Commonwealth, Ky.App., 574 S.W.2d 903, 908-910 (1978).

      . See Wilson v. Bureau of State Police, Ky.App., 669 S.W.2d 18, 21-22 (1984) (interpreting similar language in a prior version of KRS 18A.095) (reversed on other grounds in Howard v. Transportation Cabinet, Ky., 878 S.W.2d 14 (1994)).


author: HUDDLESTON, Senior Judge (Assigned).

text:
    Thomas BLACK and Evelyn Black, Appellants, v. Donald K. BIRNER, Appellee.
    No. 2003-CA-002760-MR.
    Court of Appeals of Kentucky.
    March 11, 2005.
    Discretionary Review Denied by Supreme Court Jan. 11, 2006.

      W.E. Rogers, III, Hopkinsville, KY, for appellant.
    James R. Redd, III, Fletcher and Redd, Hopkinsville, KY, for appellee.
    Before JOHNSON and McANULTY, 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 VACATING

HUDDLESTON, Senior Judge (Assigned).

Thomas and Evelyn Black appeal from a Trigg Circuit Court summary judgment and an order granting injunctive relief to Donald K. Birner. Birner sued the Blacks claiming that a building they had constructed on their property in a subdivision in Cadiz violated various restrictive covenants. The circuit court agreed with Bir-ner, granted his motion for summary judgment and ordered that the structure be removed. On the Blacks’ motion, the court suspended injunctive relief pending the outcome of this appeal.

The question presented is whether restrictive covenants, ostensibly created by a majority of lot owners in a subdivision, that purport to revive restrictions created by the original developer, are enforceable against all lot owners in the subdivision. Because we agree with the Blacks that they are not, we reverse the judgment and vacate the injunction.

The subdivision in question, Canton Heights Estates Section I, was created in 1965. In that year, the developer, Russell R. Smith, President of the Cedar Bluff Land Company, filed a series of restrictions (“the original restrictions”) at the Trigg County Clerk’s office. In addition to imposing various restrictions on the types of buildings that would be permitted in the subdivision, the document stated that the duration of the restrictive covenants was to be twenty years, with an opportunity after ten years had passed for a majority of landowners to alter them. The original restrictions provided, in relevant part, as follows:

The Cedar Bluff Land Company, Inc. does furthermore establish the following covenants which shall bind it and each of the purchasers of the lots in said subdivisions, which restrictive covenants shall run with the lands described in said plats and shall be binding on the undersigned and all persons claiming under them:
1. These covenants are to run with the land and shall be binding on all persons and parties claiming under them until January 1st 1975, at which time said covenants shall be automatically extended in force and effect for an additional period of ten years, unless by a majority of the owners of the lots it be agreed to change said covenants in whole or in part.
2. For violation of any of the covenants herein set forth any party hereto may prosecute appropriate proceedings under the law of the State of Kentucky, such as for damages or for abatement of a nuisance, or, in case of attempted violation, for prevention and restraint.
3. All lots in said Subdivision shall be residential, and shall be so known and designated and described, except those lots designated as commercial on the plot map.
5. No buildings shall be constructed with any siding material other than finished wood, brick, stone or metal alloys, except for contilever [sic] type construction, foundations will be continuous around the entire periphery of the structure, except for spaces for doors and windows if such are used.
8. No building shall be erected, placed or permitted to remain on a lot other than a single family dwelling, with a garage and boathouse (if such garage and/or boathouse be desired by owner), such garage and boathouse to conform, as to materials, to the requirements for the dwelling.
(Emphasis supplied.)

The parties to this appeal, and the circuit court, agree that these restrictions lapsed in 1985 under their own terms.

On August 19, 1988, a group of homeowners in the subdivision republished and restated the original restrictions, with the amendment that they were now to run in perpetuity. The document they filed (“the 1988 restrictions”) provides, in relevant part, that:

WHEREAS, certain restrictions have existed for the above Subdivision since its initial development, which restrictions are of record in the Trigg County Court Clerk’s Office in Mise. Book 2, page 561, and also in Mise. Book 12, page 397, and
WHEREAS, the majority of the lot owners of Canton Heights Estates Section I have agreed to republish, restate, and amend the restrictions as set out hereafter and as evidenced by the consent forms held in the Neighborhood Association files,
NOW, THEREFORE, the following are set out as Restrictions for Canton Heights Estates, Section I, which shall bind all owners and purchasers of the lots in said subdivision, which restrictions and restrictive covenants shall run with the land described in the respective plat and/or deeds of lots in this subdivision:
1. These covenants are to run with the land and shall be binding on all persons and parties claiming under them in perpetuity.

This document was signed by “Gabe A. Payne, Chairman,” and attested to by “Maybelle Payne, Secretary.” An attorney, C.A. Woodall III, certified that he had prepared the instrument. There is no indication in the record as to who constituted the majority of lot owners, when or how the Neighborhood Association was formed, or whether it still exists.

The Blacks purchased five adjoining lots in the Canton Heights Estates subdivision on November 6, 2001. The deed conveying the property states, in relevant part, that:

This conveyance is subject to all restrictions and easements of record which affect the subject property, and specifically [the original restrictions].

No specific reference was made in their deed to the 1988 restrictions. A little over a year later, the Blacks began building a large shed that straddles two of their lots, neither of which is improved with a single-family residence. The shed is made of metal with open doors at both ends and measures about 40 by 60 feet. Birner, a homeowner in the subdivision, filed a pro se complaint seeking injunctive relief on January 23, 2003. He claimed that the structure violated the 1988 restrictions because of its location and composition. Bir-ner argued that the language in the Blacks’ deed had put them on notice that their land was encumbered by restrictive covenants. The Blacks responded that the 1988 restrictions were void and unenforceable because they were not created by the original developer, but were arbitrarily imposed by a group of unidentified homeowners on all the lots in the subdivision. Both parties moved for summary judgment.

In granting summary judgment to Bir-ner, and ordering the shed removed, the circuit court agreed with Birner that the Blacks’ deed had provided them with sufficient notice of the 1988 restrictions. The court disagreed with the Blacks’ argument regarding the validity of the 1988 restrictions, stating that it had reviewed the 1988 restrictions and found that there was nothing on the face of the instrument that appeared to be either irregular or illegal. The court also noted that the Blacks had failed to challenge the validity of the restrictions until an attempt was made to enforce them. Finally, the court stressed that it was acting in equity on behalf of the majority of the lot owners to preserve the upscale, residential character of the subdivision.

Summary judgment “shall be rendered forthwith 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.” The circuit court must view the record “in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” On appeal, we are to determine “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” “Interpretation or construction of restrictive covenants is a question of law. Therefore, we review this matter de novo.”

We turn now to the substantive issues in this appeal. The Blacks do not dispute that their shed is in contravention of the terms of the 1988 restrictions. They challenge the inherent validity of those restrictions. They contend that the 1988 restrictions are void and unenforceable because they were executed by an unspecified majority of subdivision lot owners and were recorded well after the original restrictions had expired. They maintain that the restrictions do not therefore “affect” their property under the language of their deed.

Although the parties do not cite and we have not found any Kentucky ease law that directly addresses the question of whether a majority of lot owners may act together to create restrictions that are enforceable against every lot owner in a subdivision, a survey of relevant cases from other jurisdictions, as well as the secondary literature regarding the creation of valid covenants, supports the view that the 1988 restrictions were not validly created and are, therefore, unenforceable against the Blacks.

While it is true, as Birner has noted, that Kentucky law has grown more favorable toward the enforcement of restrictive covenants, this greater willingness to enforce such restrictions is premised on the assumption that the covenants to be enforced are valid.

In the classic case of Korn v. Campbell, the Court of Appeals of New York, that state’s highest court, grouped restrictive covenants into three broad categories: (1) those created by a developer at the time the land in question is being subdivided; (2) those imposed by a grantor when selling a portion of his or her land; and (8) those agreed upon by owners of adjoining lands for their mutual benefit. The 1988 restrictions fail to meet the standards of any of these categories.

The first class consists of those “which are entered into with the design to carry out a general scheme for the improvement or development of real property.” In this class, “an owner of a large plot or tract of land divides it into building lots, to be sold to different purchasers for separate occupancy, by deeds which contain uniform covenants restricting the use which the several grantees may make of their premises.”

More recently, developers have adopted the practice of setting out the covenants in a single declaration that is recorded against the lots in the development before any conveyances are made. The declaration is then incorporated by reference in subsequent deeds to various lots.

Such covenants are entered into by the grantees for their mutual protection and benefit, and the consideration therefore lies in the fact that the diminution in the value of a lot burdened with restrictions is partly or wholly offset by the enhancement in its value due to similar restrictions upon all the other lots in the same tract.

“In such cases the covenant is enforceable by any grantee as against any other, upon the theory that there is a mutuality of covenant and consideration, which binds each and gives to each the appropriate remedy.” This type of covenant is enforceable by and against subsequent purchasers.

The original restrictions filed by the developer, Russell R. Smith, in 1965 fall into this first category. But these covenants expired by their own terms in 1985. Although Birner has argued that no statement was made in the original restrictions that they could not be “renewed” or that further restrictions could not be filed after 1985, the original restrictions clearly stated that they would expire in twenty years, and did not provide any means or mechanism whereby they could be perpetuated or revived. “[A]s a matter of judicial construction the court may not substitute what the grantor may have intended to say for the plain import of what he said.”

The second class [of covenants] embraces those cases in which the grantor exacts the covenant from his grantee, presumptively or actually, for the benefit and protection of contiguous or neighboring lands which the former retains. In such cases the grantees, if there are more than one, cannot enforce the covenant as against each other, although the grantor and his assigns of the property benefited may enforce it against either or all of the grantees of the property burdened with the covenant.

This is clearly not the situation here. The original grantor did not retain any contiguous or neighboring lands; and the restrictions in this case are meant to be mutually enforceable by all the lot owners against each other.

Finally, “there is a third class, where there are mutual covenants between owners of adjoining lands, in which the restrictions placed upon each produce a corresponding benefit to the other, and in such a case, of course, either party or his assigns may invoke equitable aid to restrain a violation of the covenant.”

The 1988 restrictions fall within this third category wherein adjoining landowners create covenants for their mutual benefit. The barrier to their enforcement is precisely their lack of mutuality. They were created by an unspecified majority of lot owners, yet in order to be effective must bind all lot owners in the subdivision. Birner insists that it was not necessary to gain the consent of all the lot owners in order to make the restrictions binding. He argues that they were filed without any objections, that the original restrictions evinced an intent that the will of the majority should prevail, and that requiring unanimity is neither “practical, feasible, reasonable or fair.” We disagree.

In a factually analogous case, Brand-wein v. Serrano, a common grantor had created a development around a courtyard. The restrictions on the development stated that property owners were not permitted to fence their separate parcels, as this would obstruct the courtyard. The original declaration of restriction lapsed. Several months later, 62 of the 73 owners of the parcels on the block executed and recorded an “Extension Agreement” that provided for an extension of the courtyard restrictions found in the original declaration. Two lot owners subsequently fenced their properties; other lot owners sued to enforce the covenants against them. The Supreme Court of Queen’s County, New York, held that the covenants were not enforceable, explaining that:

Adjoining landowners may mutually covenant to bind their respective properties for their reciprocal benefit. The restrictions placed upon each produce a corresponding benefit to the other. An agreement imposing a burden on property may be executed only by one who holds title to the property. Non-consenting landowners are thus not bound by restrictions imposed and easements granted by the other landowners.

Concluding, the court said that:

It is in consideration of the whole common court that the parties to the Extension Agreement agreed to burden their parcels. The burdens they sought to extend were universal burdens. The parties could not accomplish their reim-position without the consent of all the landowners. The benefit they sought to preserve was the continued existence of the common mall, the usage of which they had benefited from since 1925. They could not achieve this benefit without the consent of all the landowners. For the agreement to be effective for the accomplishment of the intended result, the continuation of the neighborhood scheme, it was essential that all of the then owners of property within the block consent to the reimposition of the restrictions and easements. Accordingly, the court holds that the lack of assent on the part of some of the then owners of property on the block prevented the ‘Extension Agreement’ from ever attaining validity as a binding restriction upon the property of those persons who did properly sign it.

Similarly, in this case the 1988 restrictions were not signed by all the lot owners, yet the restrictions are “universal” in the sense that they require the consent of all lot owners to be effective, that is, to preserve the residential character of the subdivision.

Under Kentucky law,

“[t]he criteria for determining whether a covenant runs with the land or is merely personal between the grantor and the grantee include the intent of the parties, whether the covenant must affect or concern the land with which it runs, and whether privity of estate exists between the party claiming the benefit and the party who rests under the burden.”

The essential element of privity is lacking in the case of the 1988 restrictions. To be valid, the restrictions would have to have been imposed on the land in perpetuity by the original developer, by an agreement of all the lot owners, or by a valid neighborhood association created by the developer.

Birner has raised two further arguments in defense of the 1988 restrictions. First, he points to the fact that a single grantor may place restrictions on property before conveying it, and that by accepting a deed, the grantees become bound by the restrictions. Birner argues that the language in the Blacks’ deed stating that “[t]his conveyance is subject to all restrictions and easements of record which affect the subject property” signified that their individual grantor was placing the 1988 restrictions on the property. It is a well-established principle, however, that such language in a deed is not sufficient in and of itself to make the restrictions enforceable.

In Wiley v. Schorr, the Texas Court of Civil Appeals was confronted with three different “Agreements as to Restrictions,” each of which had been signed by some but not all the lot owners in a subdivision. The Court explained that “[t]he three Agreements as to Restrictions, by their very terms, purported to restrict the entire subdivision. Since the plan was not joined in by all the lot owners, the Agreements did not create enforceable restrictions.” Further,

[the appellee’s] deed contained the phrase “subject to all of the restrictions now in force.” Appellant’s contention that this phrase encumbered the lots with restrictions is without merit. Recitals of this type are designed to protect a grantor in the event there are any restrictions on property in effect at the time of a conveyance. Thus, the insertion of such recitals in deeds is merely precautionary. They do not create restrictions if none existed at the time of the conveyance.

This principle was succinctly stated in an earlier Texas case: “While conveyances ‘subject to’ restrictions give notice that such restrictions are of record, they are not an acknowledgment of the validity of such restrictions.”

In a similar case, the Supreme Court of Arizona interpreted the “subject to” language in the same manner:

The point is that reference to restrictions in a ‘subject to’ clause will not, without more, make such restrictions applicable to the deeded property if, as a matter of fact, they are otherwise inapplicable. Here, the ... restrictions are by their very terms inapplicable to [the] lot ... and we hold that they cannot be carried over to apply to this lot merely by reference thereto in a ‘subject to’ clause.

Birner also argues, and the circuit court’s opinion implied, that the 1988 restrictions were validated in some manner because the Blacks had received sufficient notice of them. Although we agree that the language in the Blacks’ deed and other indications may have been sufficient to put them on notice of the restrictions, this is irrelevant if the covenants themselves are invalid. Recording and notice do not of themselves render the restrictions valid and enforceable. As the Kentucky Supreme Court has said:

“[T]he grantee is charged with notice of an encumbrance upon property created by an instrument which is of record, notwithstanding the fact that it may exist only collaterally in the chain of title.” However, such an encumbrance must be enforceable in order to bind the grantee.

The circuit court erred in granting summary judgment to Birner because, as a matter of law, the 1988 restrictions are not enforceable against the Blacks. We reverse the judgment and vacate the injunction and remand this case to Trigg Circuit Court with directions that summary judgment be granted to the Blacks.

ALL CONCUR.

      . Ky. R. Civ. Proc. (CR) 56.03

      . Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991) (citations omitted).

      . Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996).

      . Colliver v. Stonewall Equestrian Estates Assoc., Inc., 139 S.W.3d 521, 523 (Ky.App.2004).

      . See, e. g., Colliver, id. at 523, where this Court observed that, since the 1950s, "Kentucky has approached restrictive covenants from the viewpoint that they are to be regarded more as a protection to the property owner and the public rather than as a restriction on the use of property[.]”

      . 192 N.Y. 490, 85 N.E. 687 (1908).

      . Id. at 689.

      . Id.

      . Id.

      . See Gerald Korngold, PRIVATE LAND USE ARRANGEMENTS: EASEMENTS, REAL COVENANTS, AND EQUITABLE SER-VITUDES § 9.03, p. 268 (1990).

      . Korn, supra, note 9, at 689.

      . Id.

      . La Vielle v. Seay, 412 S.W.2d 587, 592 (Ky.1966).

      . Korn, supra, note 9, at 689.

      . Birner has invoked the doctrine of implied reciprocal covenants although he acknowledges that it was not raised before the circuit court. This doctrine generally applies to covenants in this second category when a grantor retains some land and conveys the rest subject to restrictions. Under the doctrine of implied reciprocal covenants, the land remaining with the grantor may also be subject to the restrictions if a general plan attaches to all of the lots.

      . Korn, supra, note 9, at 689.

      . 72 Misc.2d 95, 338 N.Y.S.2d 192 (N.Y.Sup.Ct.1972).

      . Id. at 195 (emphasis supplied) (citations omitted).

      . Id. at 196.

      . Oliver v. Schultz, 885 S.W.2d 699, 700 (Ky.1994)(quoting Bishop v. Rueff, 619 S.W.2d 718 (Ky.App.1981)).

      .The "necessary nexus between the enforcer, the benefited land, and the covenant exists because the association is acting as the agent of the lot owners.” Korngold, supra, note 13, at § 9.14, p. 330. No such agency relationship existed in this case.

      . 594 S.W.2d 484 (Tex.Civ.App.1979)

      . Id. at 487.

      . Id. at 487 (citations omitted).

      . Stout v. Rhodes, 373 S.W.2d 94, 95 (Tex.Civ.App.1963).

      . Smith v. Second Church of Christ, Scientist, 87 Ariz. 400, 351 P.2d 1104, 1109 (1960).

      . Oliver, supra at 700. (emphasis supplied).


author: COMBS, Chief Judge.

text:
    Terron D. JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-CA-001375-MR.
    Court of Appeals of Kentucky.
    June 17, 2005.
    Discretionary Review Denied by Supreme Court Dec. 14, 2005.
    Case Ordered Published by Supreme Court Dec. 14, 2005.

      Kim Brooks Tandy, Covington, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Todd D. Ferguson, Assistant Attorney General, Frankfort, KY, for ap-pellee.
    Before COMBS, Chief Judge; HENRY and TACKETT, Judges.
   OPINION

COMBS, Chief Judge.

Terrón Johnson appeals from an order of the Henderson Circuit Court following his conditional plea of guilty to one count each of first-degree possession of a controlled substance (cocaine) and possession of marijuana. Prior to pleading guilty, Johnson unsuccessfully filed a motion to suppress the introduction of evidence discovered during a police search of his automobile. He now appeals the order that denied his motion to suppress. After our review of the record, we affirm both the order denying the motion to suppress and the judgment entered upon the guilty plea.

At the suppression hearing conducted by the trial court, Officer Chris Roush of the Henderson City Police Department testified that he was driving routine patrol in the vicinity of Cherry Street on the evening of November 8, 2003. The police had recently increased their protection of that area at the request of residents. Shortly after midnight, Officer Roush observed an occupied automobile parked in front of an apartment building on Cherry Street. Because several of the apartments in the building had been confirmed as high drug-traffic areas, Roush became suspicious. Roush circled the city block and observed the car pull away from the curb as he approached.

In less than two minutes, Roush saw the driver make a right-turn without giving a proper signal and noticed that the vehicle’s license plate was not properly illuminated. Officer Roush activated his lights and initiated a routine traffic stop. Roush also noticed that the vehicle’s registration appeared to have expired. He radioed dispatch for more information. Dispatch confirmed that the registration had indeed expired. Roush then radioed for a canine unit.

Roush exited his patrol car and approached the stopped car. He advised the driver, Terrón Johnson, of his reason for the stop. At Roush’s request, Johnson provided a valid driver’s license and registration but refused to consent to a search of his car.

Roush returned immediately to his patrol car to prepare a citation for the expired registration. Before Roush completed the paperwork, the requested canine unit arrived at the scene. Roush again exited his patrol car and asked Johnson to step out of his car for his own safety. Between five and seven minutes had elapsed since Roush had initiated the traffic stop.

Argo, the drug-sniffer dog, alerted immediately and aggressively to the driver’s side door. Once inside the car, he alerted aggressively to the cushion of a child’s safety seat. Roush discovered cocaine and marijuana hidden in the child’s safety seat. Johnson was arrested and transported to the county jail. According to Roush, the entire incident lasted approximately fifteen minutes.

On January 6, 2004, Johnson was indicted on charges of first-degree possession of a controlled substance, possession of marijuana, and expired registration plates. On March 17, 2004, he filed a motion to suppress the evidence seized from the search of his automobile. As a basis for the motion, Johnson argued that the canine sweep constituted an unlawful search lacking probable cause and that the detention was otherwise unduly long and intrusive in light of the nature of the stop.

After considering the evidence presented, the trial court concluded that the traffic stop was properly , supported by probable cause and that it was valid. The trial court also addressed the time involved in the officer’s interaction with Johnson to determine whether the stop had been prolonged beyond the time reasonably required to investigate, prepare, and issue a citation based on the traffic violation. The court rejected Johnson’s contention that Officer Roush had improperly extended the duration of the stop to enable the dog sniff to occur. Additionally, “[t]he brief delay while the dog sniffed the exterior of the car did not make the length of the stop unreasonable.” Opinion at 4. We find no error in the trial court’s denial of the motion to suppress.

It is well settled that an investigative stop of an automobile is constitutional as long as law enforcement officials have a reasonable suspicion — supported by specific and articulable facts — that the occupant of the vehicle has committed, is committing, or is about to commit an offense. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Collins v. Commonwealth, 142 S.W.3d 113 (Ky.2004). In addition to the requirement that the stop be justified at its inception, the police officer’s subsequent actions must be reasonably related in scope to the circumstances that gave credence to the initial stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238 (1983).

Johnson concedes that the initial traffic stop was justified based upon his violation of traffic laws. However, Johnson contends that the detention lasted longer than necessary to effectuate its purpose and that it was improperly prolonged for the purpose of conducting a drug investigation, thus rendering it illegal. Johnson relies in part on the reasoning of the Fifth Circuit Court of Appeals in United States v. Dortch, 199 F.3d 193 (5th Cir.1999).

In Dortch, two highway patrol officers stopped the defendant, who was driving a rental car too close to a tractor-trailer. Dortch provided his license and the rental car papers, and one of the officers ran a computer check to search for any outstanding warrants and to determine whether the car was stolen. The officers told Dortch that he would be free to leave after they completed their warrants check but that they had to detain his car until they had performed an exterior canine search of it. Twenty minutes later, the canine unit arrived and completed an exterior dog sniff of the vehicle. The dog alerted to the driver’s side door and seat, but a subsequent search of the car revealed no contraband. However, the officers then conducted a pat-down search of Dortch and found drugs on his person.

Dortch moved to suppress the drug evidence on the basis that the officers had unlawfully detained him by forcing him to wait for them to conduct the canine search. The court agreed, concluding that the officers lacked a reasonable suspicion that Dortch was trafficking in drugs and that the extended detention that followed the computer check exceeded the scope of the intrusion permitted by Terry.

The use of a well-trained narcotics-detection dog during a lawful traffic stop generally does not violate legitimate privacy interests. See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). The Supreme Court of the United States recently addressed this issue again in Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), dealing with facts similar to the case before us. In Caballes, an Illinois State Trooper stopped the defendant for speeding. When the trooper radioed dispatch to report the stop, a second trooper — a member of the state police drug interdiction team — overheard the transmission and headed for the scene with his drug-sniffer dog.

When the second trooper and his dog arrived, the defendant’s car was parked on the shoulder of the road and the defendant was seated in the patrol car. While the first trooper was writing the defendant a warning ticket, the second trooper walked his dog around the defendant’s car. The dog alerted to the trunk. Based on the alert, the officers searched the trunk, discovered marijuana, and arrested the defendant. The encounter lasted less than ten minutes.

The defendant’s motion to suppress the evidence collected from his trunk was denied, and he was convicted of a narcotics offense at trial. However, the Illinois Supreme Court reversed the conviction, holding that since the canine sniff was performed without any specific and articulable facts to suggest drug activity, the use of the dog “unjustifiably enlarg[ed] the scope of a routine traffic stop into a drug investigation.”

The Supreme Court disagreed. The Court observed that the initial seizure of the defendant had been based on probable cause and was lawful and that the seizure had not been prolonged beyond the time reasonably necessary to prepare the warning citation. It concluded that the defendant had not been unlawfully detained and that the dog sniff had not otherwise infringed upon any constitutional rights.

In this appeal, Johnson has acknowledged that the initial stop of his automobile and a limited portion of the detention were lawful. He objects to the scope and duration of the detention that allowed for the dog sniff.

During the suppression hearing, the Commonwealth gave a precise accounting for the few minutes that Johnson had been detained before the canine unit arrived at the scene. The trial court was persuaded by the testimony that Officer Roush had not pretextually or impermissibly stalled the stop in order to allow for the canine unit to arrive. The court concluded that the brief period of detention lasted no longer than was necessary to achieve the purpose of the stop.

We have examined the record and find nothing to indicate that the duration of Johnson’s detention was so prolonged as to be unjustified. Officer Roush appears to have pursued his investigation in a diligent and reasonable manner. He made a radio transmission to dispatch, awaited information, then contacted the canine unit. His encounter with Johnson was focused and immediate, and he set out directly to complete the paperwork involved in issuing a citation. The purpose of the initial stop had not been completed before the canine unit arrived at the scene, and the dog sniff did not prolong the stop to any unreasonable extent. The dog sniff occurred while Johnson was being lawfully detained by Roush. After the dog alerted to the presence of narcotics, the officers undoubtedly had probable cause to search the vehicle. Consequently, the trial court did not err' by denying Johnson’s motion to suppress the evidence recovered from his car.

The judgment is affirmed.

ALL CONCUR.


author: HENRY, Judge.

text:
    Jerry SEYMOUR, Appellant, v. Kathleen D. COLEBANK, M.ED., NCPSYA; Dr. Robert Klinglesmith; and Kentucky Department of Corrections, Appellees.
    No. 2004-CA-001942-MR.
    Court of Appeals of Kentucky.
    July 29, 2005.
    Discretionary Review Denied by Supreme Court Jan. 11, 2006.

      Jerry Seymour LaGrange, KY, for Appellant.
    Michael D. Triplett Frankfort, KY, for Appellee.

      Before HENRY, McANULTY, and MINTON, Judges.
   OPINION

HENRY, Judge.

Jerry Seymour appeals from a July 28, 2004, order of the Oldham Circuit Court dismissing his petition for declaratory judgment. On review, we affirm.

Seymour is an inmate incarcerated for a sex offense at the Kentucky State Reformatory (“KSR”) in LaGrange, Kentucky. Pursuant to Kentucky law, specifically KRS 197.045(4), Seymour is only eligible for good time credit or parole once he completes the Sex Offender Treatment Program (“SOTP”). Upon arriving at KSR, Seymour enrolled in the eight-week Assessment and Orientation module of the SOTP, which is used to determine if an inmate is qualified to participate in and successfully complete the full program. Following completion of this module, Seymour’s progress was characterized as follows:

Upon completion of that 8-week module, you continued to deny major elements of your current offense, you refused to discuss any information related to the previous sexual offense for which you were charged and convicted, and you continued to blame the victims of your offenses for your current difficulties.
It was your responsibility to move toward a position of ownership. The treatment team of the SOTP made every attempt to assist you, and continuously were met with your argumentative attitude, refusal to take responsibility, and continued denial of the harm you caused to the victims of your sexual crimes.

As a result of this evaluation, Seymour was found to be a “non-admitter” by the DOC and was denied admission to the full SOTP.

On April 19, 2004, Seymour filed a Petition for Declaration of Rights and for Temporary and Permanent Injunctive Relief with the Oldham Circuit Court against the Appellees asking for a ruling that he was entitled to attend the SOTP. The Ap-pellees responded to this petition with a motion to dismiss. This motion was granted by the circuit court in an order entered on July 28, 2004. A subsequent CR 59.05 motion filed by Seymour was denied in an August 6, 2004, order. This appeal followed.

On appeal, Seymour raises a number of contentions. The first is that the DOC, because of personal bias and prejudice, refused to design an individualized treatment program for him, once he was denied acceptance to the full SOTP, that would help him overcome -the “denial” issues that led to his not being admitted. Seymour argues that such a program is required by KRS 197.420(2)(b), which defines “treatment services” as including “individualized treatment plans.”

KRS 197.400 to KRS 197.440 require that the DOC operate a “specialized treatment program for sexual offenders.” To comply with these provisions, the DOC created the SOTP. A sex offender is considered “eligible” for admittance to the SOTP when the sentencing court, the DOC, or both, determine that the individual its a “mental, emotional, or behavioral disorder” absent active psychosis or mental retardation and “[i]s likely to benefit from the program.” KRS 197.410(2)(a) and (b). KRS 197.420(1) grants the DOC “the sole authority and responsibility for establishing by regulation the design of the specialized program created in KRS 197.400 to 197.440.”

The makeup of the SOTP is set forth in Kentucky Corrections Policies and Procedures (“CPP”) 13.6, which is entitled “Sex Offender Treatment Program,” and which describes as its purpose, “[t]o provide a specialized treatment program for sexual offenders.” CPP 13.6(11). As noted above, prior to acceptance into the SOTP, a sex offender must participate in an eight-week Assessment and Orientation group so that his or her ability to successfully participate in and complete the SOTP can be evaluated. Those offenders deemed unlikely to benefit from the SOTP are not accepted into the full program. These offenders specifically include those persons defined as “non-admitters” under CPP 13.6(IV)(3), which encompasses people “who do[ ] not admit guilt or responsibility for committing the sexual offense.” CPP 13.6(VI)(B)(2). All rejected non-admitters, without exception, are permitted to reapply for admission into the full SOTP after 180 days, and they may be accepted into the program “if [they are] willing to admit guilt or responsibility for [their] sexually assaultive offense.” CPP 13.6(VI)(B)(3).

KRS 197.420(2) requires that the SOTP “shall include diagnostic and treatment services in both inpatient and outpatient environments.” KRS 197.420(2)(b), which defines “treatment services” and is specifically relied upon by Seymour in his argument, reads as follows:

“Treatment services” shall include individualized treatment plans to include individual, group, marital, and family counseling; psychoeducational courses to include sex education and victim personalization; and social skills development to include assertiveness training, stress management, and aggression management....

Seymour contends that this definition’s inclusion of “individualized treatment plans” somehow requires the DOC to offer him individual treatment beyond the eight-week Assessment and Orientation module that will assist him in being able to qualify for admission into the SOTP. We fail to see the merit in this contention.

“The interpretation of a statute is a matter of law.” Commonwealth v. Gaitherwright, 70 S.W.3d 411, 413 (Ky.2002). “As with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly. We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used.” Beckham v. Board of Education, 873 S.W.2d 575, 577 (Ky.1994), citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky.1962). Nothing within the statutory scheme setting forth the foundation for the SOTP makes any mention of the requirement espoused by Seymour, nor is there any language therein suggesting that the DOC is obligated in any way to assist a sex offender in becoming eligible for the program. Indeed, the language of KRS 197.410(2) and (2)(b) clearly indicates that the General Assembly 'anticipated that some sex offenders would not become eligible for the program, notably where a person is found unlikely to benefit from it, a determination left to the discretion of the sentencing court or the DOC. We believe that a situation such as the one presented here, where a sex offender refuses to accept responsibility for his actions, would certainly allow for a determination that said offender would be unlikely to benefit from the program. We also note, as mentioned above, that the General Assembly gave the DOC “the sole authority and responsibility for establishing by regulation the design” of the SOTP. KRS 197.420(1). Consequently, we cannot say that a failure to provide an individualized treatment plan to enable a sex offender to qualify for the SOTP is in derogation of this considerable leeway afforded the DOC or of anything else set forth in KRS 197.400 to 197.440.

We have also not been presented with anything of substance in the record that would reflect any sort of “personal bias or prejudice” towards Seymour. His failure to be approved for admittance within the SOTP appears to have been based solely upon his failure to take responsibility for his actions, a determination that is consistent with CPP 13.6 and KRS 197.410(2). Accordingly, we must conclude that Seymour’s contentions in this respect are without merit.

For similar reasons we must reject Seymour’s argument that CPP 13.6(VI)(B)(2) — which reads: “A sex offender who does not admit guilt or responsibility for his sexually assaultive offense shall not be accepted in the Sex Offender Treatment Program, after the initial assessment phase” — is null, void, and unenforceable as it violates KRS 13A.120(2)(f) and (i). Those provisions provide that an administrative body shall not promulgate administrative regulations “[w]hen a statute sets forth a comprehensive scheme of regulation of the particular matter” or “[wjhich modify or vitiate a statute or its intent.” For reasons noted above, we do not believe that CPP 13.6 modifies or vitiates KRS 197.400 to 197.440 or their intent; instead, it is fully consistent with those statutes. Moreover, the General Assembly, via KRS 197.420(1), explicitly instructed the DOC to set forth the design of the SOTP via regulation, which it did in CPP 13.6. Consequently, Seymour’s argument in this respect is also without merit.

Seymour next argues that the Ap-pellees have denied him his statutorily created liberty interests under the 5th and 14th Amendments to the United States Constitution and under Sections 2 and 11 of the Kentucky Constitution by wrongfully refusing to admit him into the SOTP. Seymour particularly points to the fact that, without completing the program, he cannot qualify for parole. Again, we find that this argument is without merit.

KRS 439.340(11) states that “[n]o eligible sexual offender within the meaning of KRS 197.400 to 197.440 shall be granted parole unless he has successfully completed the Sexual Offender Treatment Program.” Seymour argues that by being prevented from participating in this program, he is being deprived of his right to parole. However, our courts have long held that parole is not a right, but is instead a privilege that is “a matter of grace or gift to persons deemed eligible.” Stewart v. Commonwealth, 153 S.W.3d 789, 793 (Ky.2005), citing Lynch v. Wingo, 425 S.W.2d 573 (Ky.1968); see also Pappas v. Kentucky Parole Board, 156 S.W.3d 303, 305 (Ky.App.2004), citing Belcher v. Kentucky Parole Board, 917 S.W.2d 584, 587 (Ky.App.1996); KRS 439.340(1) (“The board may release on parole persons confined in any adult state penal or correctional institution of Kentucky or sentenced felons incarcerated in county jails eligible for parole.”) (Emphasis added). Consequently, “ ‘[tjhere is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.... [T]he conviction, with all its procedural safeguards, has extinguished that liberty right.’ ” Belcher, 917 S.W.2d at 586, quoting Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979). Therefore, Seymour’s failure to be admitted into the SOTP does not violate any protected liberty interest as to parole.

KRS 197.045 generally deals with credits for good conduct for persons convicted and sentenced to a state penal institution. Subsection (4) of this statute specifically addresses what is required of a person convicted of a crime under KRS Chapter 510, KRS 530.020, KRS 530.064, KRS 531.310, or KRS 531.320 before he or she is entitled to any “good time” credits. It reads as follows:

(4) Until successful completion of the sex offender treatment program, a sex offender may earn good time. However, the good time shall not be credited to the sex offender’s sentence. Upon the successful completion of the sex offender treatment program, as determined by the program director, the offender shall be eligible for all good time earned but not otherwise forfeited under administrative regulations promulgated by the Department of Corrections. After successful completion of the sex offender treatment program, a sex offender may continue to earn good time in the manner provided by administrative regulations promulgated by the Department of Corrections. Any sex offender, as defined in KRS 197.410, who has not successfully completed the sex offender treatment program as determined by the program director shall not be entitled to the benefit of any credit on his sentence. A sex offender who does not complete the sex offender treatment program for any reason shall serve his entire sentence without benefit of good time, parole, or other form of early release. The provisions of this section shall not apply to any sex offender convicted before July 15, 1998, or to any mentally retarded sex offender.

The case law is clear that Seymour has no vested right or reasonable entitlement to good time credit, whether it be the noneducational good time credit set forth by KRS 197.045(1) or the meritorious good time credit set forth by KRS 197.045(3). Rather, it is a privilege that must be earned. Martin v. Chandler, 122 S.W.3d 540, 542 (Ky.2003); see also Fowler v. Black, 364 S.W.2d 164, 164-65 (Ky.1963); Anderson v. Parker, 964 S.W.2d 809, 810 (Ky.App.1997). Moreover, our courts have made clear that the “loss of the mere opportunity to earn good-time credit does not constitute a cognizable liberty interest.” Marksberry v. Chandler, 126 S.W.3d 747, 753 (Ky.App.2003), citing Luken v. Scott, 71 F.3d 192, 193 (5th Cir.1995); Abed v. Armstrong, 209 F.3d 63, 67 (2d Cir.2000). Our Supreme Court has further held that “so long as the conditions or the degree of confinement to which the prisoner is subjected do not exceed the sentence which was imposed and are not otherwise in violation of the Constitution, the due process clause of the Fourteenth Amendment does not subject an inmate’s treatment by prison authorities to judicial oversight.” Mahoney v. Carter, 938 S.W.2d 575, 576 (Ky.1997), citing Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 869-70, 74 L.Ed.2d 675 (1983). We also note that a prisoner is not even entitled to a hearing on the denial or forfeiture of good time credits. McGuffin v. Cowan, 505 S.W.2d 773, 773 (Ky.1974). Accordingly, we fail to see how due process concerns are implicated here, and we must consequently reject Seymour’s contention.

Seymour finally offers a general contention that the appellees’ refusal to allow him admittance into the SOTP constitutes cruel and unusual punishment prohibited by the 8th Amendment to the United States Constitution and Section 17 of the Kentucky Constitution because it has effectively prevented him from qualifying for parole or for good time credit. Given the law and facts previously set forth, however, we cannot fathom how the DOC’s refusal to accept Seymour into the SOTP would constitute cruel and unusual punishment, nor has he directed us to any case law of substance that would support his position. The DOC’s refusal to admit Seymour into the SOTP does not add additional years to the sentence that he is required to serve pursuant to his conviction. Moreover, he is allowed to reapply for admission to the program 180 days after rejection. Accordingly, we must reject Seymour’s contention as being utterly without merit.

The judgment of the Oldham Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes.

      . The only exception to this rule is the mandatory sixty-day educational good time credit set forth in KRS 197.045, which the Department of Corrections "shall provide” when a prisoner successfully receives a GED, high school diploma, two or four-year college degree, certification in applied sciences, or a technical education diploma as provided and defined by the Department. KRS 197.045(1); Martin, 122 S.W.3d at 543 & 543 n. 8. However, a denial of this type of credit has not been put into issue here by Seymour, and there is nothing within the record to suggest that he is entitled to this sort of credit. Accordingly, we will not consider the applicability of any "right” to said credit here.

      . Seymour adamantly insists that he is not asserting an equal protection claim even though some of the language in his brief could be construed as relating to such a claim. Accordingly, we will not consider the merits of an equal protection argument here.


author: PER CURIAM.

text:
    STATE ex rel. Eldon K. BUGG, Relator, v. The Honorable Ellen S. ROPER, Respondent.
    No. SC 86645.
    Supreme Court of Missouri, En Banc.
    Dec. 20, 2005.
    Eldon K. Bugg, Boonville, pro se.
    Jason P. Osteen, Robert D. Kingsland, Kansas City, for Respondent.
   PER CURIAM.

Eldon Bugg, a resident of Boone County, purchased a motorized home from residents of Jackson County. The home did not perform as Bugg expected and required significant engine repairs. He filed suit in Boone County, alleging breach of the sales agreement, negligent representation of the engine, and fraudulent misrepresentation of the condition of the engine. The defendants, who were served in Jackson County, filed a motion to dismiss on the basis of improper venue. Bugg then served defendants his first amended petition. The respondent held a hearing on the motion to dismiss, declined to permit the filing of the first amended petition, and sustained the motion to dismiss. Bugg sought relief in this Court, contesting the dismissal and the failure to permit the filing of his amended petition. This Court issued its alternative writ, which, as modified, is now made peremptory.

Rule 55.33(a) provides, in pertinent part, that a pleading may be amended once as a matter of course at any time before a responsive pleading is served. As defendants did not file a responsive pleading, but merely a motion, Bugg was entitled to amend his pleading as a matter of course. The amended petition should have been filed. Once an amended pleading is filed, any prior pleadings not referred to or incorporated into the new pleading are considered abandoned and receive no further consideration in the case for any purpose. Scott v. Clanton, 113 S.W.3d 207, 213 (Mo.App.2003). In his amended petition, Bugg does not refer to or incorporate any prior pleading. Therefore, in this case, the issue of venue is to be determined on the basis of the amended petition.

Moreover, defendants’ motion to dismiss is not a correct motion. Section 476.410, RSMo 2000, provides, “The division of a circuit court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the case to any division or circuit in which it could have been brought.” In conjunction with this statute, questions concerning venue are to be raised by motion to transfer to a correct venue under Rule 51.045. Although denominated a “Motion to Dismiss for Improper Venue,” the respondent was entitled to treat the motion as one to transfer to a correct venue under the rule. The misleading caption is not fatal where defendants expressly request relief in a motion based upon improper venue. See State ex rel. Heistand v. McGuire, 701 S.W.2d 419, 420 (Mo. banc 1985).

A peremptory writ is directed to issue directing respondent to order the amended petition filed. Defendants may be granted leave to file an amended motion under Rule 51.045.

All concur.

      . Such a conclusion is not contrary to State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820, 823 (Mo. banc 1994), which holds that “by the terms of the statute, venue is determined as the case stands when brought, not when a motion challenging venue is decided.” As explained in State ex rel. Breckenridge v. Sweeney, 920 S.W.2d 901 (Mo. banc 1996), “This passage from DePaul is not on point. The venue statute and, in turn, the Court’s reference to the statute in DePaul pertain to the residence of parties defendant to a lawsuit, not the condition of the pleadings.” It is noted that the statute on which DePaul is based was amended in the last legislative session to eliminate reference to where suit is brought. See section 508.010, 2005 Mo. Laws 644.