source: Caselaw Access Project

author: Justice WINTERSHEIMER. Justice KELLER.

license: Public Domain

text:
    TRIAD DEVELOPMENT/ALTA GLYNE, INC.; Dominion Homes, Inc.; Dominion Homes of Kentucky, GP, LLC; Dominion Homes of Kentucky, Ltd.; Louisville and Jefferson County Planning Commission; Louisville and Jefferson County Department of Public Works; and the Louisville and Jefferson County Metropolitan Sewer District Appellants/Cross-Appellees, v. Rita C. GELLHAUS; Winston L. Shelton; and Laura S. Hall Appellees/Cross-Appellants.
    No. 2002-SC-0733-DG, 2003-SC-0398-DG.
    Supreme Court of Kentucky.
    Sept. 23, 2004.
    As Modified on Denial of Rehearing Dec. 16, 2004.

      Dustin E. Meek, Brian F. Haara, Ta-chau Maddox Hovious & Dickens PLC, Paul B. Whitty, J. Mark Grundy, Ann Toni Kereiakes, Greenebaum Doll & McDonald PLLC, B. Frank Radmacher III, Asst. Jefferson County Attorney, Deborah A Bilitski, Office of Jefferson County Attorney, John H. Dwyer, Jr., Nancy J. Schook, Laurence Zielke, Pedley Zielke & Gordinier PLLC, Louisville, Counsel for Appellant/Cross-Appellees.
    Patricia A. Abell, Richard M. Trautwein, Trautwein & Associates, Louisville, Counsel for Appellees/Cross-Appellants.
    Marshall P. Eldred, Jr., Rebecca Anne Wood, Frost Brown Todd LLC, Louisville, Counsel for Amicus Curiae: the Home-builders Ass’n of Louiville, Inc.
   Opinion of the Court by

Justice WINTERSHEIMER.

This appeal and cross-appeal are from an opinion of the Court of Appeals which affirms in part and reverses and remands in part a circuit court decision that dismissed an appeal from the Jefferson County Planning Commission and a civil complaint on the constitutionality of that decision.

The principal issues are whether the statutory appeal was properly dismissed because it was not timely, and whether the so-called constitutional appeal was properly dismissed.

The controversy in this matter involves a 117-acre tract of land located near Bill-town Road and the Gene Snyder Freeway. Triad Development has made numerous attempts to obtain approval of a subdivision plan through the Planning Commission, however, neighboring landowners have been protesting all of those plans. The litigation concerning the property began in 1994 and has continued until this time.

Gellhaus and her associates are adjacent property owners who contend that their real estate will be adversely affected by the subdivision development in that it will have an adverse environmental impact on their properties because runoff from the development will flow onto their properties and into their lakes and streams. They also argue that they have a constitutional right to an appeal based on due process principles.

In 1992, Triad submitted an “innovative” subdivision plan to the Planning Commission which was approved on April 21,1994. The adjacent landowners appealed to circuit court within 30 days from the Planning Commission’s approval of this “innovative” plan although it was conditioned upon various binding elements. In July 1999, Triad conditionally sold the property to Dominion Homes and proposed a substitute development plan which was a “standard” plan rather than the “innovative” plan. The Commission approved the standard plan on August 19, 1999 by a vote. Gellhaus and her associates did not appeal the approval of that voted plan within the thirty days provided by KRS 100.347(2).

The development of the land could not begin until the Metropolitan Sewer District approved a soil and sedimentation control plan and until the County Works Director approved the construction plan. MSD approved the plan on May 11, 2000, and the County Works Director approved the construction plan on May 18, 2000. Gellhaus and others filed their appeal and civil complaint in the Jefferson Circuit Court on June 17, 2000. The appeal and civil complaint alleged that the final approval of the construction plan was arbitrary and that they had been denied due process of law.

The developers sought to dismiss the appeal and civil complaint for lack of jurisdiction pursuant to CR 12.02(a). The developers argued that the circuit court did not have jurisdiction to hear the appeal because it was not filed within 30 days of August 19, 1999, the date the Planning Commission approved the subdivision. In addition, the developers maintained that the civil complaint was indistinguishable from the appeal because it claimed arbitrary approval of the construction plan and a denial of due process, issues which had been raised in the appeal of the administrative decision. After a hearing, the circuit judge granted the motion to dismiss by the developers. The circuit judge stated that he was without jurisdiction to consider the appeal and that the civil complaint stated the same grounds as the appeal. Gellhaus and others appealed to the Court of Appeals.

A panel of the Court of Appeals was sharply divided with Judge Buckingham writing a lead opinion which was joined by Judge Schroder who concurred in result only. Judge Knopf agreed with the lead opinion that the latest complaint by the neighbors was simply untimely and properly dismissed. He dissented from the decision, however, on the grounds that there was no statutory authority for the civil complaint. Judge Knopf believed that any possible relief would have been through a declaratory judgment action. In essence, the decision by the Court of Appeals was that the trial judge properly dismissed as untimely the statutory appeal, but he erred by dismissing the constitutional appeal. This Court accepted discretionary review.

I. Final Action

We have considered in great detail all the legal authorities submitted by the parties. We will cite only those cases that are directly pertinent to the questions at hand.

KRS 100.347(2) states in pertinent part that “All final actions which have not been appealed within thirty (30) days shall not be subject to judicial review.” KRS 100.347(5) states in relevant part that “For purposes of this chapter, final action shall be deemed to have occurred on the calendar date when the vote is taken to approve or disapprove the matter pending before the body.” See also Leslie v. City of Henderson, Ky.App., 797 S.W.2d 718 (1990).

We must agree with the Court of Appeals that KRS 100.347(5) applies to actions of the Planning Commission as well as legislative bodies. The word “body” as used in the statute refers to the Planning Commission, as well as to legislative bodies, including county and city governments. Consequently, KRS 100.347(5) relates to KRS 100.347(2), as well as KRS 100.347(3).

Gellhaus and others argue vigorously that the Commission only conditionally voted to approve the plan and then referred it to MSD and the Works Department. They assert that these agencies were required to return the plans to the Commission for additional final approval.

We must acknowledge that there is an initial problem with the nomenclature used by the Planning Commission and with the labeling of particular actions taken by it. A simple reading of the statute would indicate that there is nothing to suggest that the Commission’s final approval would be conditional. However, the statute is clear that final action is deemed to occur when a vote is taken on the subdivision plat, conditional, preliminary or otherwise. We must take notice that in practice, all plats, when initially submitted, are referred to as preliminary. If such a plat is preliminarily approved, the developer can then seek to proceed with the development which, again, includes the submission of plans to all relevant agencies to demonstrate compliance with the conditions placed on the approval of the preliminary plat. The so-called preliminary plat is crucial in the process because the final plat must comply with it.

The final approval of the amended subdivision plan is a reasonably foreseeable consequence of granting the so-called tentative approval. Certainly, there cannot be two final actions for the purposes of KRS 100.347. Consequently, the right to review or appeal must accrue in relation to the first date when the vote is taken. Any other interpretation would permit an aggrieved party to take no action while the builder and the community proceed in reliance of the original approval, and then later, seek appeal of the granting of the so-called final approval.

Here, the final action occurred on August 19, 1999, the date when the vote was taken to approve the subdivision plan. The matter was not subject to judicial review because Gellhaus and others did not appeal within the thirty days from that date as provided by the statute. Only one vote was taken by the Planning Commission and that was on August 19, 1999. The Planning Commission approved the plan subject to certain conditions. It delegated to the MSD and the County Works Department the responsibility for evaluating the drainage and construction plans. On May 11, 2000, MSD approved the compliance with the plans and on May 18, the County Works Department did likewise. No subsequent vote was taken by the Planning Commission.

We can find no authority that supports the argument that ministerial approval of construction plans during and after the voted approval of a subdivision plan tolls or extends the appeal time provided in KRS 100.347(2). In fact, the holding in Spainhoward v. Henderson, Henderson County Bd. of Zoning Adjustment, Ky.App., 7 S.W.3d 396 (1999), is that the vote of the administrative body is the final action from which an appeal must be taken. City of Lyndon v. Proud, KyApp., 898 S.W.2d 534 (1995), holds that final action was taken on the date a resolution was passed by a vote and not on the date when a subsequent ministerial action was completed. We conclude that the holdings of these cases are correct and we reaffirm them.

II. Right of Appeal

The approval by the Planning Commission of the plat in this case was based on the satisfaction of conditions set out in its initial approval. That decision required ministerial approval by MSD of a soil and sedimentation plan and the approval by the County Public Works Director of a construction plan. Both agencies satisfied that requirement. The Planning Commission did not undertake an independent review of these findings, rather it deferred to the expertise of these agencies to ensure compliance with its conditions.

It could be argued that there is an apparent division in the law regarding the inherent right to review orders from administrative agencies. It has been held that there is an inherent right of appeal from orders of administrative agencies regardless of whether there is an explicit right to appeal because an agency is prohibited by Section Two of the Kentucky Constitution from acting arbitrarily. See American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Comm’n, Ky., 379 S.W.2d 450 (1964).

On the other hand, it has been repeatedly held that an appeal from an administrative decision is a matter of legislative grace and not a right. Thus, the failure to follow the statutory guidelines for such an appeal is fatal. A person seeking review of administrative decisions must strictly follow the applicable procedures. See Taylor v. Duke, Ky.App., 896 S.W.2d 618 (1995).

American Beauty Homes Corp., supra, does not recognize a constitutional appeal or an independent claim resulting from administrative actions in addition to a statutory appeal. Instead, that case simply recognized that the courts of Kentucky have inherent jurisdiction to review decisions of administrative agencies and legislative bodies for arbitrariness. However, when the right of appeal or the trial court’s jurisdiction is codified as a statutory procedure, as it is in KRS 100.347, then the parties are required to strictly follow those procedures. Here, Gellhaus and others did not strictly comply with the statute and the circuit judge properly dismissed their appeal.

Individuals and others who may be aggrieved by the subordinate ministerial decisions cannot appeal pursuant to the Planning Commission statute, KRS 100.347. A careful examination of the statutes does not indicate any authority for an appeal from the decisions of entities such as the MSD or the Public Works Director. Apparently, the only relief available may be through a declaratory judgment action authorized by KRS 418.040 which allows a party to seek a declaration of rights when an actual or judicable controversy exists. Cf. Greater Cincinnati Marine Service, Inc. v. City of Ludlow, Ky., 602 S.W.2d 427 (1980). The parties here did not seek a declaratory judgment.

It is of interest to note that KRS 76.180(2) authorizes the MSD to conduct procedures for the hearing, review and resolution of complaints by citizens and other grievances. Decisions by the Hearing Officer may be accepted or rejected by the Board of MSD. However, the approval of a drainage plan is not the type of action by which the statute allows review.

Section 115 of the Kentucky Constitution provides in pertinent part that in all civil and criminal cases, there shall be allowed as a matter of right, at least one appeal to another court. Here, that concept has been fully satisfied because the aggrieved parties have litigated this matter from circuit court to the Court of Appeals and now to the Supreme Court. The requirement of the constitution has been exhausted.

It is the decision of this Court that the opinion of the Court of Appeals is affirmed insofar as it denies judicial review and is reversed in regard to the constitutional claim of an inherent right of appeal. The final action of a planning commission in this situation is determined on the date of the vote to approve the development plan. An appeal must be taken within thirty days from that date. Subsequent ministerial actions taken pursuant to the vote approval do not extend the statute of limitations.

All concur except KELLER, J., who dissents by separate opinion.

Dissenting opinion by

Justice KELLER.

Rita C. Gellhaus, Winston Shelton, and Laura Hall (“Homeowners”) want to challenge by appeal to the circuit court the soil and sedimentation control plan for the Bill-town Farms subdivision in Jefferson County as finally approved by the Louisville and Jefferson County Planning Commission (“Planning Commission” or “Commission”). KRS 100.347(2) requires that this challenge be made within thirty days of the Planning Commission’s “final action.” The majority opinion believes that the “final action” from which the Homeowners should have appealed occurred on August 19, 1999 when the Planning Commission approved the standard subdivision plan, subject to fifteen conditions. Because one of those conditions was that the Louisville and Jefferson County Metropolitan Sewer District (“MSD”) devise a soil and sedimentation control plan (“Soil Plan”) for the Commission’s approval and because MSD’s Soil Plan was later approved by the Director of the Louisville and Jefferson County Department of Public Works (“Director”) on behalf of the Commission, I dissent for the reason that I believe the appropriate “final action” from which this appeal should have been taken occurred on May 18, 2000, when the Director, on behalf of the Commission, approved MSD’s Soil Plan — to hold otherwise denies the Homeowners due process of law.

The majority opinion creates a catch-22 for the Homeowners by denying them the right to appeal the actions by MSD and the Director (when the contents of the Soil Plan are known and the Homeowners have a claim) and by requiring them instead to appeal from the Commission’s first approval of the subdivision plan (when the Soil Plan does not exist and the claim is not ripe). In effect, the majority prevents judicial review of the Soil Plan.

The majority relies on the 1988 amendment to KRS 100.347 where the words “final action” were defined as the “date when the vote is taken to approve or disapprove the matter before the body.” In using the words “final action,” the Legislature was primarily concerned with preventing premature challenges that would or could be extinguished by subsequent changes or actions by the body. But the majority rejects the characterization of the Director’s approval as a “final action” because it is not a “vote.”

In adopting this strict interpretation, the majority is in effect insulating the Planning Commission’s decisions from judicial review by preventing the Homeowners from challenging any delegable action, regardless of the impact or magnitude, which occurred after the approval of the initial plan on August 19, 1999. Time and again, this Court and its predecessor have refused to adopt a strict literal construction of a statute if it would lead to an unreasonable or absurd result. Requiring a party to appeal before the matter is final is unreasonable, absurd, and clearly contrary to KRS 100.347(2) whose primary purpose is to prevent premature appeals of the Planning Commission’s interlocutory decisions.

One point where I do agree with the majority is that “there cannot be two final actions for the purpose of KRS 100.347.” But I believe the “final action” depends on the particular matter being appealed. In this situation, I had hoped the members of this Court would have recognized the problem created by requiring appeals from the Planning Commission’s August 19, 1999 approval — one could appeal from this approval of the initial plan, only to find the matter had been satisfactorily resolved after MSD and the Director became involved. And since the subdivision plan approved in August contained fifteen conditions (items that were not final or even developed at that time), the opposite also holds true — one who did not appeal the initial plan would find that the final plan contained objectionable items but that the time to appeal had run before the appeal-able matter had become part of the subdivision plan. The majority’s interpretation works if all “subordinate ministerial decisions” are made within thirty days of the Commission’s initial approval, thus theoretically allowing time for appeal. But in this case, the “subordinate ministerial decisions” from which the Homeowners appeal occurred almost a year later.

I would also point out that neither the initial plan nor the final plan has been filed in the record, despite the Homeowners’ request to the Planning Commission. And I am hesitant to join the majority without comparing the specifications on soil and sedimentation control in the initial subdivision plan approved on August 19, 1999 with the final subdivision/construction plan approved on May 18, 2000. Without the benefit of the “before” and “after” subdivision plans and because the case is before us on an appeal of a motion to dismiss, I believe that the appropriate appellate review requires the Court to make an evaluation that assumes the allegations in the Homeowners’ complaint are true.

According to the complaint, the initial plan approved by the Planning Commission on August 19, 1999 did not describe a soil and sedimentation control plan, but assigned the task to MSD through conditions nine and fourteen:

9. A soil erosion and sedimentation control plan shall be developed and implemented in accordance with the Metropolitan Sewer District and the USDA Soil Conservation Service recommendations. Documentation of the Metropolitan Sewer District’s approval of the plan shall be submitted to the Planning Commission prior to grading and construction activities.
14. The Woolpert Report entitled “Erosion Prevention and Sediment Control for the Alta Glyne Development, Jeffersontown, Kentucky” dated August 1998 and originally submitted for Docket 10-46-92 and resubmitted for 10-20-99 shall be updated to reflect the current approved plan and executed according to its recommendations. A copy of the revised report shall be submitted to MSD prior to construction plan approval.

In accordance with condition nine, MSD devised (by out-sourcing the job to PDR Engineers, Inc.) and approved a soil and sedimentation control plan, which the Director approved on behalf of the Planning Commission through his delegated power — the Metropolitan Subdivision Regulations provide that once MSD approves the plan, “the Director of Works shall take action on behalf of the Commission” to approve or disapprove the plan. I believe that the Director’s approval was the “final action” by the Planning Commission and that the Homeowners filed a timely appeal; thus I would reverse the Court of Appeals and remand the case to the circuit court for resolution on the merits.

      . KRS 100.347(5).

      . Leslie v. City of Henderson, Ky.App., 797 S.W.2d 718, 720 (1990) ("Accordingly, we hold that the ‘final action' in the present case was on October 11, 1988, when the ordinance was given its second reading and final passage. Hence appellant's appeal to the circuit court was timely. With regard to judicial economy, interpreting the statute otherwise could lead to an unsound result. It is possible that one could appeal from the initial zoning change decision and have the matter heard, only to find that the ordinance effecting the change did not pass, rendering the circuit court's action for naught. We do not believe the legislature intended such a result.”).

        .See, e.g., Commonwealth v. White, Ky., 3 S.W.3d 353 (1999); McElroy v. Taylor, Ky., 977 S.W.2d 929 (1998); Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984); Ky. Mountain Coal Co. v. Witt, Ky., 358 S.W.2d 517 (1962); Dept, of Revenue v. Greyhound, Ky., 321 S.W.2d 60 (1959).

      . Triad Development/Alta Glyne, Inc. v. Gellhaus, Ky., 150 S.W.3d 43, 46, 2004 WL 2127277 (2004).

      . La Vielle v. Seay, Ky., 412 S.W.2d 587 (1966); James v. Wilson, Ky.App., 95 S.W.3d 875 (2002).

      . Although it is questionable whether the Planning Commission may properly delegate to the Director such unrestricted authority, this issue is not before us. If such delegation is not proper, then after MSD and the Director recommended or approved a soil erosion and sedimentation control plan, the plan would properly go back before the Planning Commission for its final approval and vote.


author: Justice LAMBERT.

text:
    Elizabeth JONES, Administratrix of the Estate of Stephen Allen Camp, Appellant, v. Scott LATHRAM, Appellee.
    No. 2002-SC-0590-DG.
    Supreme Court of Kentucky.
    Sept. 23, 2004.
    As Amended Sept. 27, 2004.
    Rehearing Denied Dec. 16, 2004.
    As Amended Jan. 31, 2005.

      Charles Wayne Brien, Prince and Brien, Benton, Counsel for Appellant.
    Michael K. Bishop, Harlan E. Judd, III, Michael K. Bishop & Associates, P.S.C., Bowling Green, Counsel for Appellee.
   Opinion of the Court by

Justice LAMBERT.

This case arose from a fatal automobile collision that occurred when State Police Trooper Scott Lathram and the decedent, Stephen Camp, collided in a blind intersection while Trooper Lathram was responding to an emergency call. The trial court granted summary judgment in favor of Trooper Lathram based on qualified official immunity because he was responding to a call when the collision occurred. The Court of Appeals affirmed. The issue presented here is whether a law enforcement officer in such circumstances is entitled to qualified official immunity.

Appellee, Trooper Lathram, received a call for assistance from a Graves County Deputy Sheriff. The end of the call was an excited exclamation by the deputy sheriff, “I said get back in the car!” There was no further communication by the deputy, so Trooper Lathram illuminated his blue lights, turned on his siren, and proceeded to the scene. Upon entering into a “blind” intersection, Trooper Lathram collided with a truck driven by Mr. Stephen Camp. Mr. Camp was fatally injured, and Ms. Elizabeth Jones, his Administratrix, commenced legal actions against the Commonwealth of Kentucky, Justice Cabinet, Department of State Police, and against Trooper Lathram in his individual capacity.

The trial court dismissed the wrongful death claim against the Commonwealth and the other governmental entities based on sovereign immunity. The trial court then granted summary judgment in favor of Trooper Lathram relying solely on Franklin County v. Malone. The Court of Appeals affirmed the trial court and Appellant sought discretionary review in this Court. We granted discretionary review, but remanded the case to the Court of Appeals to apply the then newly decided case, Yanero v. Davis, which overruled Franklin County v. Malone. The Court of Appeals again affirmed the trial court in favor of Trooper Lathram. Once more, Appellant sought discretionary review in this Court and her motion was granted. We now reverse the decision of the Court of Appeals and remand to the trial court.

Appellant argues that Trooper Lathram is not entitled to immunity based on case law analyzing the rights and duties of emergency vehicle operators. She contends that precedent mandates that emergency driving be treated as a ministerial function for which the public employee is not afforded qualified immunity. Appellant cites Fayette County v. Hill, Happy v. Erwin, City of Louisville v. Chapman, Myers v. Able, Page v. Dodds, City of Louisville v. Maresz, and Speck v. Bowling in support of her contention that under Kentucky law, police officers are not entitled to immunity for the ministerial action of driving while responding to emergency situations.

Appellee, Lathram, responds that under Yanero v. Davis his actions constituted a discretionary act for which he is entitled to immunity. This argument is based on the discretion granted to state troopers in the performance of their daily duties. Trooper Lathram argues that ministerial acts are those that are precisely prescribed leaving nothing to the discretion of the actor. He further contends that he had to make a subjective decision based on the radio exchange, and then had to make another determination regarding how he would respond to the call without additional information and without guidance from a superior. Trooper Lathram also relies on a distinction between emergency driving and routine travel between points of destination. He argues that emergency driving is a discretionary act that authorizes personal judgment by a trained police officer.

The cases cited by Appellant support her argument that a police officer’s driving in response to an emergency call does not confer immunity on the driver. Case law does not definitively answer the question posed in this case. To fully address the question we must examine Yanero v. Davis, the controlling case on qualified immunity. Yanero dealt with a school board, an athletics director, coaches and others being sued by a teenager who suffered a head injury when he was hit by a pitch during batting drills at baseball practice. Overruling some previous Kentucky decisions, Yanero set forth a test for determining whether a public actor’s actions are discretionary or ministerial and therefore whether qualified immunity attaches. Yanero describes discretionary acts which require official immunity and ministerial acts where there is not immunity as follows:

[W]hen sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment. Qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts of functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee’s authority. An act is not necessarily “discretionary” just because the officer [or employee] performing it has some discretion with respect to the means or method to be employed.
Conversely, an officer or employee is afforded no immunity for tort liability for the negligent performance of a ministerial act, i.e., one that requires only obedience to the orders of others, or when the officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts. “ ‘That a necessity may exist for the ascertainment of those facts does not operate to convert the act into one discretionary in nature.’ ”

In the case at bar, Trooper La-thram undertook a ministerial act in responding to an emergency call for assistance from a fellow officer. Responding, he assessed the facts based on his training as a police officer and upon other applicable standards. After undertaking the act of an emergency automobile response, Trooper Lathram was required to constantly reassess his position on the road and make reactive decisions based on his assessment of roadway danger. While decisions were required in the course of driving, there were no decisions that would appear to be truly discretionary acts. We recognize that Lathram independently assessed the situation and responded in a manner that he determined to be appropriate. However, the act of safely driving a police cruiser, even in an emergency, is not an act that typically requires any deliberation or the exercise of judgment. Rather, driving a police cruiser requires reactive decisions based on duty, training, and overall consideration of public safety. In our view, Lathram’s duty is comparable to the duty of the coaches in Yanero where we held that the duty to enforce the rule requiring batting helmets was ministerial. Upon the foregoing analysis, we conclude that whether Trooper Lathram was negligent in operating his police cruiser, with due regard being given to all the facts and circumstances, is a question for resolution by the trier of fact. As such; summary judgment was inappropriate and this cause is remanded to the trial court for further consistent proceedings.

For the foregoing reasons, the Court of Appeals is reversed and this cause is remanded to the Graves Circuit Court for further consistent proceedings.

COOPER, GRAVES, JOHNSTONE, KELLER, STUMBO, and WINTERSHEIMER, JJ., concur.

      . Ky., 957 S.W.2d 195 (1997), overruled in part by Yanero v. Davis, Ky., 65 S.W.3d 510 (2001).

      . Ky., 65 S.W.3d 510 (2001).

      . Ky., 957 S.W.2d 195.

      . 304 Ky. 621, 201 S.W.2d 886 (1947) (upholding assessment of liability against a police officer who was responding to a call and collided with a bus).

      . Ky., 330 S.W.2d 412 (1959) (holding a statute unconstitutional to the extent that it exempted public officers and employees from personal liability, thereby allowing possible recovery against a public officer for negligence committed while responding to an emergency).

      . Ky., 413 S.W.2d 74 (1967) (upholding a claim against a police officer resulting from an automobile collision).

      . Ky., 417 S.W.2d 235 (1967) (holding that the statute allowing the right of way for emergency vehicles does not create absolute immunity and that the public employee could be held liable for damages).

      . Ky., 433 S.W.2d 656 (1968) (holding that the question of the liability of the driver who collided with an emergency vehicle while its siren was sounding and its lights were flashing is a jury question, because emergency vehicles are not entitled to absolute immunity).

      . Ky.App., 835 S.W.2d 889 (1992) (upholding a jury award for damages against a police officer who collided with driver and caused injuries).

      . Ky.App., 892 S.W.2d 309 (1995) (holding that law enforcement is not free to negligently operate a vehicle and that operation of such emergency vehicle was a ministerial duty).

      . Ky., 65 S.W.3d 510.

      . Id.

      . Id. at 522 (citations omitted).

      . Id.


author: LAMBERT, Chief Justice.

text:
    INQUIRY COMMISSION, Complainant, v. Nicholas G. HAWKINS, KBA Member No. 87412, Respondent.
    No. 2004-SC-0753-KB.
    Supreme Court of Kentucky.
    Nov. 18, 2004.
   OPINION AND ORDER

LAMBERT, Chief Justice.

Pursuant to SCR 3.165(1), the Inquiry Commission has petitioned this Court to enter an order temporarily suspending Respondent, Nicholas G. Hawkins, from the practice of law in the Commonwealth of Kentucky. The Inquiry Commission asserts that there is probable cause to believe that: (1) Respondent has misappropriated funds held for others to his own use or has been otherwise improperly dealing with said funds; and (2) Respondent is addicted to intoxicants or drugs such that probable cause exists to believe that he does not have the physical or mental fitness to continue to practice law.

In its petition, the Inquiry Commission states that it received information from Max J. Goldsmith, the managing member of Respondent’s former law firm, accusing Respondent of receiving and negotiating several settlement checks made payable to Respondent’s clients and/or the law firm. The Inquiry Commission has submitted a sworn affidavit from Goldsmith detailing three such incidents. Goldsmith stated that on June 29, 2004, Respondent admitted to him that after procuring a client’s endorsement on a settlement check, Respondent personally cashed the check and retained all of the proceeds. Goldsmith also stated that on July 22, 2004, Respondent admitted to personally cashing a series of checks and retaining the proceeds from a settlement for a second client. Further, Goldsmith stated that Respondent received a settlement check for a prior client on July 31, 2003, that Respondent personally cashed the check, and that the chent never received its portion of the settlement proceeds. Along with his affidavit, Goldsmith submitted supporting documentation, including the cancelled checks endorsed by Respondent and agreements providing the details of the above settlements. In his answer, Respondent claims that temporary suspension based on these allegations is unwarranted, but he submits no facts or documentation in support of this claim, other than the statement that he does not currently possess client funds and the vague assertion that “any monies owed, due or belonging to any existing or former client, in connection with Respondent’s representation of that client has [sic] been turned over, paid, or otherwise conveyed to [said clients].”

In support of its second assertion, the Inquiry Commission has set forth three incidents in which Respondent appeared to be publicly intoxicated. First, on June 20, 2004, Respondent was arrested and charged with operating a motor vehicle while under the influence of alcohol/drugs. According to the uniform citation, Respondent told the arresting officer that he had taken the prescription drug Hydrocodone and that he had consumed a few cocktails. The arresting officer found an empty prescription bottle in Respondent’s car. Results from a breathalyzer test showed Respondent’s blood alcohol level as .240. Second, on June 26, 2004, Respondent was again arrested and charged with operating a motor vehicle under the influence of alcohol/drugs. According to the uniform citation and court records, Respondent refused a breathalyzer and field sobriety test, but the arresting officer noted that Respondent smelled of alcohol, was unsteady on his feet, and told the officer that he had consumed five beers. The record does not reflect whether Respondent was convicted of either of the above charges. Third, the Inquiry Commission has submitted an affidavit from Nick Nasier, a Jefferson County Sheriff’s Deputy. Nasier states that on July 8, 2004, while Nasier was serving as a bailiff in Jefferson District Court, Respondent appeared on behalf of a client while exhibiting a strong smell of alcohol.

For his part, Respondent denies that he is addicted to intoxicants or drugs and states his willingness to submit to a physical or mental examination by a Court-appointed physician. Respondent avers that on July 22, 2004, he admitted himself to a six-week treatment program for alcohol abuse at Baptist Hospital East (BHE), and that he has successfully completed this program. According to Respondent, he also continues to participate in a post-treatment program at BHE, attends over six meetings of Alcoholics Anonymous (AA) per week, works with an AA sponsor weekly, and has abstained and continues to abstain from all intoxicants.

Accordingly, upon an examination of the Inquiry Commission’s petition, the supporting documents attached to said petition, and the response, this Court finds probable cause, as set forth in SCR 3.165(l)(a), to believe that Respondent has misappropriated client funds to his own use or has otherwise improperly dealt with such funds. This Court also finds probable cause, under SCR 3.165(l)(b), to believe that Respondent’s prior misappropriations pose “a substantial threat of harm to his clients or to the public.” Because of Respondent’s rehabilitation efforts, however, this Court makes no finding with regard to the charge that he lacks the mental fitness to continue to practice law due to a drug or alcohol addiction.

It is hereby ordered that:

1. Respondent, Nicholas G. HawMns, is temporarily suspended from the practice of law in the Commonwealth of Kentucky effective the date of this order and until superseded by subsequent order of this Court.
2. The Inquiry Commission shall commence disciplinary proceedings against Respondent pursuant to SCR 3.160, unless already begun or unless Respondent resigns under terms of disbarment.
3. Pursuant to SCR 3.165(5), Respondent shall, within twenty days from the date of the entry of this order, notify all clients in writing of his inability to continue to represent them and shall furnish copies of such notification letters to the Director of the Kentucky Bar Association.
4. Pursuant to SCR 3.165(6), Respondent shall immediately, to the extent reasonably possible, cancel and cease any advertising activities in which he is engaged.

All concur.

ENTERED: November 18, 2004.

/s/ Joseph E. Lambert Chief Justice


text:
    In re Susan M. TEEL.
    No. 2004-SC-0436-CF.
    Supreme Court of Kentucky.
    Nov. 18, 2004.
    COOPER, JOHNSTONE, KELLER, STUMBO and WINTERSHEIMER, JJ., concur.
    GRAVES, J., dissents by separate opinion and is joined by LAMBERT, C.J.
   ORDER DENYING MOTION FOR RECONSIDERATION, AS CORRECTED

The motion for reconsideration of the Board of Bar Examiners’ determination is DENIED.

ENTERED: November 18, 2004.

/s/ Joseph E. Lambert CHIEF JUSTICE

GRAVES, Justice,

dissenting.

Because this matter demonstrates that each state, not the Federal Government or the American Bar Association (ABA), should exercise control over the requirements for admission to the state bar, I reiterate the reasons given in my dissent, In Re: Troy L. Brooks, Ky., 11 S.W.3d 25 (2000).

Applicant, Susan M. Teel, is an attorney licensed to practice law in the State of California, is in good standing with the California Bar Association, and is an “AV” (highest rating) lawyer under the Martin-dale-Hubbell national attorney rating system. After passing the rigorous California Bar Examination (arguably the most difficult Bar Examination in the country), she was admitted to practice in California on December 1, 1981, more than twenty-two (22) years ago. She obtained an LL.M. degree in Taxation from Golden Gate University, an ABA-accredited law school in 1989. The Board of Bar Examiners found her unqualified to sit for the Kentucky Bar Examination merely because she obtained her J.D. degree from San Francisco Law School, a non ABA-accredited law school.

Notwithstanding her graduation from a non ABA-accredited law school, she has been qualified as an instructor with the California Continuing Education of the Bar since 1999, and has been an Adjunct Faculty Member of the Masters in Taxation Program at Golden Gate University. She is certified as a specialist in Estate Planning Trust and Probate by the State Bar of California, which requires an additional rigorous course of study for qualification, as well as to remain certified, and passage of an all-day examination administered by the State Bar of California for Specialists, after the applicant has submitted evidence of course work, client experience and recommendations of other specialists. She has passed every test she has encountered and demonstrated her mastery of the realities of lawyering.

The Board of Bar Examiners cavalierly, perhaps enviously, and summarily dismisses these impressive credentials. While recognizing that Applicant was a successful attorney in California and appears very competent, the Board feels this is in spite of the quality of her legal education and not because of it. Such a preordained and directed review is exclusively selective and does not fairly evaluate her entire legal career.

Can a student at a given law school— albeit a small institution with fewer financial resources, and less grandiose physical facilities than most ABA-accredited law schools require, obtain a basic legal education which will afford them the fundamental tools with which to become sufficiently competent to take the Kentucky Bar Examination — or any other state Bar Examination? We will never know because of artificial impediments erected by the ABA. Primary focus should be whether the bar applicant possesses the requisite knowledge base and practice skills from the non ABA-accredited law school so as to pass the bar examination. Law schools are made of teachers and students, not of bricks and mortar.

The word “educate” is derived from the Latin term educare which means to lead out. All education is ultimately self-education, and good teachers merely point one in the right direction.

If the purpose of requiring aspiring lawyers to pass a bar exam is to protect the public from incompetence, it is a laudable goal and should be pursued with great vigor. The first step in doing so should be to identify the core competencies that lawyers should have and the minimum level of knowledge required to be judged competent in those subjects. The next step should be to test the applicant as objectively as possible. This testing phase should be the mission of the bar exam. When graded by standards meant to protect the applicant and the public, the bar exam should be a powerful tool for delivering competent legal practitioners to the public. If the bar exam is properly designed, administered, and graded, it should not make any difference how applicants acquired their knowledge. Other than institutional self-preservation, there is no logical reason to require applicants to have attended ABA-accredited law schools.

Typically, law schools require students to take a few courses: Civil Procedure, Evidence, Constitutional Law, Contracts, Criminal Law, Research and Writing, Property, Torts, and Professional Responsibility. But other subjects most important in the practice of law today are seldom required, negotiation, mediation, factual investigation, and witness interviewing to name just a few. The public has a right to expect that their lawyers be at least acquainted with the legal marketplace, and bar exams should test candidates on them.

When it comes to whether or not a law school’s graduates are eligible to take bar examinations upon graduation or shortly afterwards, in approximately 40 states the quality of the school does not count, the ability of its graduates does not count, and whether the school has gone further than most in remedying long-recognized shortcomings in legal education does not count. In about 40 states, all that counts is whether the school is accredited by the ABA. This is fundamentally unfair and unjust.

The injustice is only the greater because the graduate of a poor quality school approved by the ABA can take the bar examination everywhere upon graduation, but the intelligent and well-educated graduates of a high quality school not accredited by the ABA can take the bar examination only in a few places upon graduation. Having the LL.M. in tax law is sufficient to meet the legal education requirements prescribed in SCR 2.014.

Even though Kentucky has many lawyers, we still need good competent ones. Applicant has ably demonstrated her ability in the highly competitive marketplace. I would not hesitate to seek tax advice from her. Denying her admission is also unfair to Kentuckians needing competent tax advice.

LAMBERT, C.J., joins this dissent.


author: EMBERTON, Chief Judge.

text:
    William S. PATTERSON; Nelson Radwan and The Estate of Perry L. Greer, Appellants, v. ESTATE OF Hilary J. BOONE, Appellee.
    No. 2002-CA-001912-DG.
    Court of Appeals of Kentucky.
    Dec. 5, 2003.
    Discretionary Review Denied by Supreme Court Dec. 8, 2004.

      Karen J. Greenwell, Mark T. MacDonald, Wyatt, Tarrant & Combs, LLP, Robert W. Fleming, Woodward, Hobson & Fulton, LLP, Lexington, KY, for appellants.
    Phillip D. Scott, Brian M. Johnson, Greenbaum, Doll & McDonald, PLLC, Lexington, KY, for appellees.
    Before EMBERTON, Chief Judge; JOHNSON and KNOPF, Judges.
   OPINION

EMBERTON, Chief Judge.

This case involves an interpretation of KRS 396.055, pertaining to the allowance and disallowance of claims by the personal representative of an estate. The Fayette District Court held that the personal representatives could not disallow a claim after having allowed sixteen months to pass and having taken no action as to allowance or disallowance of the claim. The circuit court reversed, holding that the representatives could disallow the claim anytime prior to payment, and that the trial court abused its discretion in finding insufficient cause to disallow the claim. The circuit court remanded the case to the district court for a decision on the merits. We agree with the circuit court in part and reverse in part.

Hilary J. Boone, III, died testate on April 25, 1997. On May 21, 1997, the estate was opened in the Fayette District Court, Probate Division and Caroline Boone and the National City Bank, Kentucky, were appointed as co-executors.

On October 21, 1997, William Patterson, Nelson A. Radwan and Perry L. Greer timely filed a statement of claim against the estate asserting contingent liability relating to Hilary’s guaranty of certain financial obligations of Reclamation Surety Holding Company, Inc. Specifically, the statement of claim alleges that Hilary was a co-guarantor with Patterson, Radwan, and Greer of a contingent obligation for the payment of:

(a) up to $4,728,384.97, exclusive of interest, owed by Reclamation Surety Holding Company, Inc., to PNC Bank, Kentucky, Inc., in its capacity as Successor Trustee of a trust created by Cumberland Surety Insurance Company, Inc. fik/a Reclamation Surety Insurance Company, Inc., by that certain Master Trust Agreement II dated May 18, 1987 as amended (“PNC Trust Guarantees”); (b) up to $715,757.89, exclusive of interest, owed by Reclamation Surety Holding company, Inc., to PNC Bank, Kentucky, Inc. (“PNC Guaranty”); and (c) up to $323,130.73, exclusive of interest, owed by Reclamation Surety Holding Company, Inc., to Fifth Third Bancorp Bank, Kentucky (“Fifth Third Guaranty”).

Attached to the claim was a “Release and Amended Guaranty Agreement” allegedly creating the PNC Trust Guaranties. The copy was not signed by Hilary. Confronted with the claim, the estate began to investigate whether Hilary had ever signed the document. The claimants contend that after they executed the document, a copy was forwarded to Hilary’s counsel for signature and they assumed the signed copy was located in counsel’s office.

Sixty days since the filing of the statement of claim passed without action by the estate. The estate asserts that thereafter it continued to investigate the claim and finally determined that the amendment was never signed by Hilary and in February 1999, petitioned the court to permit the estate to disallow the claim. Following a hearing, the district court denied the petition. The circuit court reversed and this appeal followed.

Our decision rests in part on the interpretation of KRS 396.055(1), which provides in its entirety:

As to claims presented in the manner described in KRS 396.015 within the time limit prescribed in KRS 396.011, the personal representative may mail a notice to any claimant stating that the claim has been allowed or disallowed. If, after allowing or disallowing a claim, the personal representative changes his decision concerning the claim, he shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to commence an action on the claim has run and the claim has been barred. Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant commences an action against the personal representative not later than sixty (60) days after the mailing of the notice or disallowance of partial allowance if the notice warns the claimant of the impending bar. Failure of the personal representative to mail notice to a claimant of action on his claim for sixty (60) days after the time for original presentation of the claim has expired has the effect of a notice of allowance, except that upon petition of the personal representative and upon notice to the claimant, the court at any time before payment of such claim may for cause shown permit the personal representative to disallow such claim.

Our review of issues of law is de novo. The estate maintains that at any time before payment of the claim, the personal representative can disallow a claim that has been allowed by reason of the failure of the estate to act on the claim. In support of this contention, the estate cites numerous cases from three sister jurisdictions which have held that under their respective probate codes, a personal representative can disallow a previously allowed claim at any time and for any reason. Our review of the applicable statutes in those states and of the uniform probate code, however, reveals that our statute contains a significant distinction. In Nebraska, Colorado and Maine the statutes follow the identical language of the uniform probate code. Under those statutes after a claim is allowed or disallowed by notice to the claimant or by the personal representative’s inaction, the personal representative may change his decision by notifying the claimant. Finding that the personal representative’s ability to change a decision is unconditional, the court in In re: Estate of Krichau, reasoned:

If the statute is interpreted to cause the personal representative to irrevocably allow the claim by not giving notice of disallowance within 60 days of its filing, personal representatives will be forced to deny all claims except those claims that are unquestionably good. If the personal representative can change his or her mind and disallow a claim that was once allowed, the worst that could happen is that the claimant would be in a state of uncertainty. If certainty is an important element to a claimant, that claimant can always petition the court to allow the claim. In this regard, the claimant would be in no greater state of uncertainty than any other litigant doing business with a dilatory party and would suffer no greater disadvantage than a claimant who has received notice of allowance when the personal representative still has the power to disallow the claim.

Our legislature, in contrast, has specifically placed a limitation on the discretion of a personal representative to disallow a claim previously allowed by reason of inaction. We agree with the estate that the only time-limitation on the discretion to disallow the claim is that it must be done before payment. However, the legislature later provided that when the claim has been allowed by the personal representative’s inaction, in order to later disallow the claim the representative is required to petition the court and to “show cause.” Obviously, the legislature rejected the absolute right to disallow a claim previously allowed by the representative’s inaction.

The term “cause” is not defined in KRS 396.055. Nor does the statute explicitly state whether the showing of cause relates to the reason that the representative did not act on the claim before the expiration of sixty days, or to the merits of the claim itself. We find that when read in the context of the entire statute, the “cause” referred to in KRS 396.055(1) refers to a reasonable cause for not responding to the claim within the sixty-day period and not to the merits of the claim.

During the initial sixty days, a personal representative may, without court approval, disallow a claim by simply notifying the claimant. The claimant then has sixty days to commence an action against the personal representative and have the court consider the merits of the claim. If the claim is allowed, after the expiration of the appropriate time specified, the claimant can petition the court for payment. We can find no language in the statutes precluding the claimant from seeking the exact same remedy if the court permits the estate to disallow a claim previously allowed by the estate’s failure to take action. Under either circumstance, the claimant has the same recourse. Without reaching the merits of the claim, once the court concludes that the representative has shown cause for not taking action, the claim is then deemed disallowed, and the claimant is required to file a claim for a decision on the merits.

We now turn to the factual basis for the estate’s failure to allow or disallow the claim within the sixty-day period. The statute is discretionary providing that the court “may for cause shown” permit the claim to be disallowed. As with all discretionary powers of a lower court, the appellate courts cannot set aside the lower court’s finding unless there is a clear abuse of discretion.

The estate was presented with a claim for a considerable amount. Although the statement of claim states that Hilary was a co-guarantor, the “Release and Amended Guaranty Agreement” filed in support of its claim was not signed by Hilary. The estate then began its investigation as to the validity of the claim. It appears from the record that Hilary’s financial dealings were complex, and various documents were needed to be accumulated and reviewed before the estate could make an informed decision as to whether to allow or disallow the claim. We agree with the circuit court and find that the district court abused its discretion in finding the estate’s reason for the delay in seeking a disallowance was insufficient to establish cause.

The circuit court remanded the action to the district court to “make a finding on the substantive merits of the estate’s petition to disallow the claim.” This is erroneous. Once it is found, as we have, that there is sufficient cause to excuse the estate’s inaction in allowing or disallowing the claim, without regard to the merits, the estate may disallow the claim. The claimant can then commence an action within sixty days of the disallowance.

The order of the circuit court is affirmed in that it holds that the trial court abused its discretion in not permitting the disal-lowance of the claim. The claim is deemed disallowed and no remand is required.

ALL CONCUR.

      . Kentucky Revised Statutes.

        . Hardin County Schools v. Foster, Ky., 40 S.W.3d 865, 868 (2001).

      . See In re: Estate of Krichau, 1 Neb.App. 398, 501 N.W.2d 722 (1992); Estate of Roddy, 784 P.2d 841, 844 (Colo.App.1989); Swett v. Estate of Wakem, 490 A.2d 679 (Me.1985).

      . 1 Neb.App. 398, 501 N.W.2d 722, 726 (1992).

      . KRS 396.055(1).

      . KRS 396.075(1).

      .There is disagreement between the parties whether the district court found the claim barred as a matter of law because the estate failed to act within sixty days or, whether on the facts, it refused the petition because of the failure to show cause. The district court order recites that the personal representative failed to show cause. Additionally, it held a hearing at which proof was presented as to the reason for the delay. The district court’s order clearly contained a finding of fact and we, as was the circuit court, are bound by the abuse of discretion standard.

      . Farmland Mut. Ins. Co. v. Johnson, Ky., 36 S.W.3d 368, 378 (2000).


author: JOHNSON, Judge. SARAW. COMBS, Judge,

text:
    Robert L. PACE; Dorothy Pace Morton; Lena Pace Morris; Fagan Pace Sr.; and Betty Pace Turner, Appellants, v. Samuel L. BURKE, Executor of the Estate of Rosemary Pace, Appellee.
    No. 2003-CA-000251-MR.
    Court of Appeals of Kentucky.
    Feb. 20, 2004.
    Discretionary Review Denied by Supreme Court Dec. 8, 2004.

      Kenneth R. Haggard, Hopkinsville, KY, for appellant.
    J. Daniel Kemp, Jason E. Holland, Hop-kinsville, KY, for appellee.
    Before COMBS, JOHNSON and MINTON, Judges.
   OPINION

JOHNSON, Judge.

Robert L. Pace, Dorothy Pace Morton, Lena Pace Morris, Fagan Pace, Sr., and Betty Pace Turner (appellants) have appealed from an order of the Christian Circuit Court entered on January 30, 2003, which granted Rosemary M. Pace’s motion for summary judgment. Having concluded that the trial court erred as a matter of law by determining that the agreement in question was not binding due to a lack of mutuality of obligation, we reverse and remand for further proceedings.

R.E. Pace, Sr. and Rosemary were married in 1954. Both R.E. and Rosemary had children from previous marriages. The appellants herein are R.E.’s natural children from his prior marriage. On July 1, 1957, R.E. and Rosemary purchased a farm from J.P. Pace and his wife, Maggie. The deed of conveyance specifically stated that R.E. and Rosemary received title to the farm “equally and jointly for life with the remainder to the survivor of them in fee simple.... ”

On July 10, 1957, the same day the deed of conveyance was recorded in the Christian County Court Clerk’s Office, R.E. and Rosemary entered into an agreement which provided in pertinent part as follows:

It is mutually agreed between these parties that the survivor shall have the use of the [farm] until his or her death and at that time, by will the property, shall be devised one half to the children of R.E. Pace Sr. and one half to the children of Rosemary M. Pace.

Approximately two years later, on August 25, 1959, R.E. executed his last will and testament. R.E.’s will stated in relevant part as follows:

The remainder of my estate, both personal and real of every kind and description, wherever the same may be situated, owned by me at the time of my death I devise and bequeath share and share alike to my six children, to wit: R.E. Pace, Jr., Fagan W. Pace, Robert L. Pace, Dorothy Dell Pace Morton, Betty Stone Pace Turner and Lena Rivers Pace Morris.

On August 27, 1979, R.E. died and his will was admitted to probate. Pursuant to the survivorship clause in the deed of conveyance, Rosemary took sole title to the farm.

Approximately 22 years later, on November 28, 2001, the appellants filed a petition for declaratory judgment in Christian Circuit Court. The appellants noted that Rosemary had “expressed her refusal to honor” the agreement requiring her, as the survivor of R.E. and Rosemary, to devise one-half of the farm to R.E.’s children and one-half of the farm to Rosemary’s children. The appellants asked the trial court to determine whether Rosemary was bound by the terms of the agreement.

On January 6, 2003, Rosemary filed a motion for summary judgment, arguing that she was entitled to rescind the agreement on the grounds that R.E. had failed to perform his obligations under the agreement. Specifically, Rosemary argued that since R.E.’s will did not provide for the farm to be devised in accordance with the couple’s agreement, she was not bound by the terms of the agreement. On January 30, 2003, after a hearing was held on the matter, the trial court entered an order granting Rosemary’s motion for summary judgment. The trial court ruled that the agreement was not binding on Rosemary due to a “lack of mutuality” of obligation. This appeal followed.

Summary judgment is only proper “where the movant shows that the adverse party could not prevail under any circumstances.” The trial 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.” This Court has previously stated that “[t]he standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. There is no requirement that the appellate court defer to the trial court since factual findings are not at issue” [citations omitted].

The appellants’ sole argument on appeal is that the trial court erred as a matter of law by determining that the agreement was not binding upon Rosemary due to a lack of mutuality of obligation. We agree.

A valid contract to make a will is binding upon the parties to the agreement. For an agreement to be deemed valid and enforceable, there must be a mutuality of obligation between the contracting parties. As the former Court of Appeals noted in David Roth’s Sons, Inc. v. Wright & Taylor, Inc., the concept of mutuality of obligation is “closely related to the theory of consideration in the law of contracts.” The Court explained that “[w]here an agreement is founded solely upon reciprocal promises, unless each party has assumed some legal obligation to the other the contract is wanting in consideration and is lacking in mutuality.”

As we mentioned previously, R.E. and Rosemary agreed that “the survivor shall have use of the [farm] until his or her death and at that time, by will the property, shall be devised one half to the children of R.E. Pace Sr. and one half to the children of Rosemary M. Pace” [emphasis added]. We interpret the plain and ordinary meaning of this contractual language to require the survivor of R.E. and Rosemary to devise the farm under his or her will in accordance with the couple’s agreement. Thus, the agreement between R.E. and Rosemary does not fail for want of mutuality of obligation. As evidenced by the aforementioned deed of conveyance, R.E. and Rosemary held title to the farm as joint tenants with the right of survivor-ship. This form of ownership simply meant that both R.E. and Rosemary had the right to use and enjoy the farm during their lives, and that the surviving spouse would become the sole owner in fee simple following the other spouse’s death. A fee simple ownership interest includes the right to dispose of the property by will as the owner desires.

However, the couple’s agreement limited the surviving spouse’s ability to dispose of the farm by will. R.E. agreed that if he survived Rosemary, he would execute a will devising one-half of the farm to his children, and one-half of the farm to Rosemary’s children. Similarly, Rosemary agreed that if she survived R.E., she would execute a will devising one-half of the farm to her children, and one-half of the farm to R.E.’s children.

Therefore, following the execution of the agreement in question, both R.E. and Rosemary were legally obligated to execute a will in accordance with that agreement, in the event he or she survived the other spouse. In exchange for each spouses promise to devise one-half of the farm to the other spouses children, R.E. and Rosemary were assured that his or her children would receive one-half of the farm in the event he or she predeceased the other spouse. Hence, both spouses received reciprocal benefits and burdens under the terms of their agreement, and there was thus a mutuality of obligation between the parties. Accordingly, the trial court erred as a matter of law by determining that the contract failed for a lack of mutuality of obligation.

Rosemary’s estate takes the position that since R.E.’s will did not contain a provision devising the farm in accordance with the couple’s agreement, he breached the agreement and Rosemary was free to consider the contract abandoned. We disagree. While it is true that as a general rule, one party’s total failure to perform his obligations under a contract justifies the non-breaching party in treating the contract as abandoned and suspending his own performance, we hold that R.E.’s will did not constitute a failure to perform his obligations under the couple’s agreement.

At the time R.E. executed his will in 1959, Rosemary was still alive. Under the express terms of the couple’s agreement, the obligation to execute a will in accordance with the terms of that agreement did not arise until either R.E. or Rosemary died. Furthermore, even though R.E.’s will provided that all of his real property was to be divided equally among his six children, this provision did not contradict the terms of the agreement. R.E. and Rosemary owned the farm as joint tenants with the right of survivorship, which meant that R.E.’s ownership interest in the farm was not affected by the terms of his will, and instead passed immediately to Rosemary upon his death. If Rosemary had predeceased R.E., he would have become obligated to execute a will in accordance with the terms of the agreement. However, since R.E. executed his will when Rosemary was still alive, this will did not constitute a breach of the couple’s agreement. Accordingly, Rosemary remained bound by the terms of the agreement and was not entitled to treat the agreement as abandoned.

Based on the foregoing, the order of the Christian Circuit Court is reversed, and this matter is remanded for further proceedings consistent with this Opinion.

MINTON, Judge, concurs.

SARA W. COMBS, Judge, dissents and files separate opinion.

SARAW. COMBS, Judge,

dissenting.

I respectfully dissent from the majority opinion. When R.E. failed to draft his will in accordance with his promise, he breached his agreement with Rosemary. There can be no other reasonable interpretation of his conduct or of its legal implications. His only obligation under their agreement was to draft his will as the reciprocal counterpart of the will that Rosemary promised to execute.

The majority opinion reasons that the terms of their agreement “did not arise until either R.E. or Rosemary died.” I disagree. The obligation arose immediately. The passage of time alone delayed its execution but did not vitiate or alter its binding nature. In failing to keep his promise, R.E. released Rosemary from her obligation to do so. The promise simply cannot be finessed away under the inescapably clear and simple terms of the agreement.

Breach of the agreement for lack of mutuality is the only possible conclusion that the trial court could have reached. It reasoned correctly. Therefore, I would affirm the court’s entry of summary judgment in this case.

      . Subsequent to the entry of the trial court's order below, Rosemary died on March 5, 2003. On June 16, 2003, this Court entered an order granting the appellants’ motion to substitute Samuel L. Burke, the executor of Rosemary's estate, as appellee.

        . Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991) (citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985)).

      . Steelvest, supra, (citing Dossett v. New York Mining & Manufacturing Co., Ky., 451 S.W.2d 843 (1970)).

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

      . Farmers National Bank of Danville, Kentucky v. Young, 297 Ky. 95, 101, 179 S.W.2d 229, 233 (1944).

      . Ford v. McGregor, 314 Ky. 116, 118, 234 S.W.2d 493, 494 (1950)(stating that "[a] contract which is not mutually obligatory on the parties is void and cannot be specifically enforced”).

      . Ky., 343 S.W.2d 389, 390 (1961).

      . Id.

      . Nationwide Mutual Insurance Co. v. Nolan, Ky., 10 S.W.3d 129, 131 (1999).

      . See Sanderson v. Saxon, Ky., 834 S.W.2d 676, 678 (1992)(describing a joint tenancy with the right of survivorship).

      . David Roth’s Sons, 343 S.W.2d at 391 (holding that “[i]f both parties are bound by mutual obligations for even a short period of time, the contract cannot be avoided by either party on this ground”).

      . See Phillips v. Phillips, 294 Ky. 323, 335, 171 S.W.2d 458, 464 (1943)(defining consideration as " ‘[a] benefit to the party promising, or a loss or detriment to the party to whom the promise is made. "Benefit,” as thus employed, means that the promisor has, in return for his promise, acquired some legal right to which he would not otherwise have been entitled. And “detriment” means that the promisee has, in return for the promise, forborne some legal right which he otherwise would have been entitled to exercise' ”)(quoting Luigart v. Federal Parquatry Manufacturing Co., 194 Ky. 213, 238 S.W. 758, 760 (1922)).

      . Dalton v. Mullins, Ky., 293 S.W.2d 470, 476 (1956)(holding that where one party refused to perform the contract as written, the non-breaching party "had the right to treat this action as a breach, to abandon the contract, and to depart from further performance on his own part and finally demand damages”).

      . The obligation to actually execute a will in accordance with the terms of the agreement should not be confused with each spouse’s promise to execute a will in the event he or she survived the other. While the former was an obligation that would ultimately fall on only one spouse, the latter was a mutual obligation undertaken by both spouses as a result of their reciprocal promises.

      . See Sanderson, 834 S.W.2d at 678 (noting that at the death of one joint tenant, his interest passes to the survivors).


author: BUCKINGHAM, Judge. KNOPF, Judge,

text:
    Connie KINGREY, Appellant, v. James R. WHITLOW, Appellee.
    No. 2003-CA-000328-DG.
    Court of Appeals of Kentucky.
    Feb. 20, 2004.
    Discretionary Review Denied by Supreme Court Dec. 8, 2004.

      Lisa A. Beran, Kentucky Domestic Violence Association, Frankfort, KY, for Appellant.
    Morris Lowe, Bowling Green, KY, for Appellee.
    Before EMBERTON, Chief Judge; BUCKINGHAM and KNOPF, Judges.
   OPINION

BUCKINGHAM, Judge.

This case presents an issue of first impression concerning whether a domestic violence order (DVO) issued pursuant to KRS 403.750 may be reissued in the absence of proof that domestic violence or abuse occurred during the prior period the order was effective. Contrary to the circuit court, we conclude that such an order may be reissued. Thus, we reverse and remand.

The petitioner/appellant, Connie Kin-grey, and the respondent/appellee, James R. Whitlow, were married for approximately 27 years. They are now divorced. On June 25, 1997, the Allen District Court issued a DVO directed against Whitlow. The order stated that it was effective until July 1,1998.

Whitlow was arrested in May 1998 for violating the terms of the order. On June 3, 1998, the district court extended the terms of the order for one year. Whitlow was later convicted for violating the terms of the order.

Near the end of the second one-year period, the district court reissued the order for an additional three years to May 15, 2002. On April 10, 2002, shortly before the expiration of the extension, the district court reissued the order for an additional three years until March 1, 2005. Pursuant to the terms of the orders, Whitlow was not to have firearms in his possession. In fact, he had turned 21 firearms over to the Allen County Sheriff to hold pursuant to directions in the orders.

Prior to the reissuance of the order for an additional three-year period, a hearing was held in the Allen District Court. Kin-grey was present but was not represented by counsel at the hearing. Whitlow was present and was represented by counsel. Kingrey admitted that during the previous three-year period Whitlow had not contacted her or made any threats against her. However, she testified that she continued to be afraid of him. Whitlow testified that he had not made any threats against Kin-grey, had not contacted or tried to contact her, and did not know where she lived. The district court reissued the DVO for an additional three years without making specific findings.

Whitlow appealed the amended order to the Allen Circuit Court. The circuit court reversed the district court’s order and directed that Whitlow’s firearms be returned to him. The circuit court stated that “[i]n order for the appellee [Kingrey] to have a domestic violence order in place the appellant [Whitlow] must be found to have committed an act or acts of domestic violence and abuse subsequent to May 19,1999 [the date of the amended order reissuing the original order for an additional three years]. There is no evidence that he has done so.” Further, in interpreting the applicable statute, the circuit court stated that “[a] reasonable inference is that reis-suance of a domestic violence order, the same as original issuance of such an order, must be predicated on the findings required by KRS 403.750(1).”

Following the circuit court’s opinion and order, Kingrey petitioned this court to grant discretionary review. We accepted this case and also granted Kingrey’s motion for intermediate relief. Pursuant to our order, the district court reissued the DVO.

KRS 403.750(1) provides that the district court may enter a domestic violence order “if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur[.]” “Domestic violence and abuse,” as defined in the statutes, includes “physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[J” KRS 403.720(1). A DVO may restrain the adverse party from certain conduct, including contacting or communicating with the victim, committing further acts of domestic violence and abuse, and disposing of or damaging any of the parties’ property. KRS 403.750(l)(a)-(c).

KRS 403.750(2) provides for the reissuance of a DVO. It states as follows:

Any order entered pursuant to this section shall be effective for a period of time, fixed by the court, not to exceed three (3) years and may be reissued upon expiration for an additional period of up to three (3) years. The number of times an order may be reissued shall not be limited. With respect to whether an order should be reissued, any party may present to the court testimony relating to the importance of the fact that acts of domestic violence or abuse have not occurred during the pendency of the order.

KRS 403.750(2).

Kingrey argues that the circuit court erred in its order reversing the district court when it concluded that in order for a DVO to be reissued upon expiration, the respondent must have committed an additional act or acts or domestic violence and abuse subsequent to the issuance of the earlier DVO. We agree. The statute provides that a DVO may be reissued upon expiration for an additional period up to three years. Furthermore, the statute clearly states that the number of times a DVO may be reissued “shall not be limited.” KRS 403.750(2).

The statute does not state the conditions under which a DVO may be reissued. However, it does state that any party may present testimony concerning the importance of the fact that domestic violence or abuse may not have occurred during the pendency of the previous order. KRS 403.750(2). Contrary to the circuit court’s interpretation, we do not read the statute as requiring proof of additional acts of domestic violence or abuse during the pri- or period before a DVO may be reissued. Rather, the statute makes it clear that testimony that such acts did not occur may be presented for the court’s consideration in determining whether or not to reissue the order.

Whitlow argues that it would be illogical for a DVO to be reissued in the absence of proof that domestic violence or abuse had occurred during the prior period. He asserts that it was common sense for the legislature to put a three-year limitation period in the statute and that persons should not be required to live continuously under the “shackles” of a DVO. On the other hand, Kingrey argues with equal fervency that the circuit court’s interpretation of the statute was illogical. She maintains that if subsequent acts of domestic violence or abuse were required to be proven before the reissuance of a DVO, then there would be no need to reissue a DVO since the victim could simply file a new petition alleging new acts. In addressing these arguments we note that the Kentucky Supreme Court has continuously held “that statutes should not be interpreted so as to bring about absurd or unreasonable results.” Estes v. Commonwealth, Ky., 952 S.W.2d 701, 703 (1997).

KRS 446.080(1) provides in part that “[a]U statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature!)]” In addition to the language in the statute itself, we conclude it is logical to believe that the legislature intended to give the district courts authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period. The domestic violence and abuse statutes are to be interpreted by the courts to allow victims to obtain protection against further violence and abuse. See KRS 403.715(1). If a DVO has been effective in giving protection to a victim of domestic violence and abuse, then the district court should not be required to reject a request to extend the effective period of the DVO simply because no additional acts have occurred. In other words, the fact that a DVO has been effective in preventing acts of domestic violence and abuse is not a reason to require the court to remove the protection that had previously been afforded to the victim. Rather, it is merely a factor for the court to consider when faced with a request to reissue the DVO.

The opinion and order of the Allen Circuit Court is reversed, and the amended DVO by the Allen District Court is reinstated.

EMBERTON, Chief Judge, Concurs.

KNOPF, Judge, Concurs and Files Separate Opinion.

KNOPF, Judge,

concurring.

I fully agree with the majority that KRS 403.750(2) does not require proof of additional acts of domestic violence during the prior period before a domestic violence order (DVO) may be renewed. However, I write separately to clarify the grounds necessary to support renewal of a DVO. It is important to remember that a person subject to a DVO is placed under significant restrictions. Consequently, a DVO should not be renewed merely at the request of the petitioning party. Rather, there must be some showing of a continuing need for the DVO.

Under KRS 403.750(1), a court may issue a DVO “if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur .... ” (Emphasis added). In making the decision to renew a DVO, “the fact that acts of domestic violence or abuse have not occurred during the pendency of the order,” KRS 403.750(2), is a relevant, but not a controlling factor in making such a determination. The critical issue is whether the court finds that future acts of domestic violence remain a reasonable probability. There may be other conduct or circumstances, not amounting to a violation of the prior DVO, which may nonetheless be relevant to considering the continuing need for the DVO. The trial court may also consider the nature, extent and severity of the original acts of domestic violence. In short, a court considering a motion to renew a DVO may consider the totality of the facts and circumstances in finding that acts of domestic violence and abuse may again occur if the DVO is allowed to expire.

In this case, there was no evidence of any additional acts of domestic violence while the most recent DVO was in effect. The circuit court noted that the thrust of Kingrey’s testimony “was that she continues to be afraid of [Whitlow] and that it has been reported to her by others that he has made some inquiries concerning the price which she obtained from timber cut on land which she now owns as a result of property division in their divorce action. She admits that [Whitlow] has not contacted her, has not come around her, and has not made any threats.” The court also pointed out Whitlow’s testimony stating that he has not contacted Kingrey, has not made any current threats, and does not know where she presently lives. However, the original acts of domestic violence which precipitated the entry of the prior DVO were ongoing and severe. Furthermore, Whitlow had repeatedly violated the terms of an earlier DVO. Indeed, the circuit court recognized that Kingrey’s fear of Whitlow was “sincere and perhaps well founded.”

Under the circumstances, the evidence was not so compelling that the district court was required to renew the DVO in 2001. Nonetheless, there was sufficient evidence to support the district court’s conclusions that the DVO had been effective in preventing additional acts of domestic violence, and that the need for the DVO was continuing. Therefore, I agree with the majority opinion reversing the circuit court’s order and reinstating the amended DVO issued by the Allen District Court.

      . Kentucky Revised Statutes.


author: McANULTY, Judge.

text:
    Leonard GRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-CA-002182-MR.
    Court of Appeals of Kentucky.
    March 5, 2004.
    Discretionary Review Denied by Supreme Court Dec. 8, 2004.

      David T. Eucker, Frankfort, KY, for appellant.
    Albert B. Chandler III, Attorney General of Kentucky, Matthew D. Nelson, Assistant Attorney General, Frankfort, KY, for appellee.
    Before McANULTY, MINTON, and SCHRODER, Judges.
   OPINION

McANULTY, Judge.

Leonard Gray (hereinafter appellant) appeals an order of the Christian Circuit Court denying his motion to suppress cocaine evidence and his statement. Appellant entered a conditional guilty plea to one count of possession of a controlled substance in the first degree and one count of being a persistent felony offender (PFO) in the first degree. The Court imposed a sentence of five years for possession of a controlled substance in the first degree, enhanced to ten years by the PFO conviction; however, he was granted probation.

Appellant argues that the officers did not possess reasonable suspicion that he was, or was about to be, engaged in criminal activity in order to justify stopping him at the abandoned house. See Terry v. State of Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant believes that the officers relied merely on appellant’s presence at the scene of suspected criminal activity, which standing alone is not sufficient to provide reasonable suspicion, citing Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Appellant further contends that the detention continued longer than was constitutionally permissible without the existence of probable cause.

The Commonwealth’s response on appeal is that the trial court failed to enter required findings of fact in this case so as to enable review. RCr 9.78 states that following an evidentiary hearing on a motion to suppress, the trial court “shall enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling. If supported by substantial evidence the factual findings of the trial court shall be conclusive.” The court denied the suppression motion from the bench by stating that appellant was properly informed of his rights and the statement was admissible. A review of the record reveals that the court made a written entry regarding the suppression motion on the docket on August 23, 2002, the date of the hearing. The court’s docket records the motion to suppress, after which it is handwritten: “Denied; statement was voluntary and not coerced. Officers were justified in investigating circumstances of A’s [defendant’s] presence @ house.”

We conclude that this entry resolved the “essential issues of fact” necessary to the ruling on the motion to suppress, and was sufficient to afford review of the various Fourth Amendment issues implicated in the stop. The standard of review for an appeal of an order denying suppression is whether the factual findings of the trial court were “clearly erroneous.” Commonwealth v. Banks, Ky., 68 S.W.3d 347, 349 (2001). The presence or absence of “reasonable suspicion” is determined on appeal under a de novo standard of review. Kotila v. Commonwealth, Ky., 114 S.W.3d 226, 232 (2003) citing Ornelas v. United States, 517 U.S. 690, 698-99, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996) and Banks, 68 S.W.3d at 349.

Police officers may briefly detain an individual on the street, even though there is no probable cause to arrest him, if there is a reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 20-23, 88 S.Ct. at 1878-81; Taylor v. Commonwealth, Ky., 987 S.W.2d 302 (1998), cert. denied, 528 U.S. 901, 120 S.Ct. 239, 145 L.Ed.2d 200 (1999). “[WJhenever a police officer accosts an individual and restrains his freedom to walk away; he has ‘seized’ that person.” Terry, 392 U.S. at 16, 88 S.Ct. at 1877, 20 L.Ed.2d 889. The scope and duration of police activities permitted during an investigative stop depends largely on the purposes intended to be served by the stop. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). Under Terry, we determine whether the officer’s action “was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879; Baker v. Commonwealth, Ky., 5 S.W.3d 142, 145 (1999).

Appellant argues that the stop was not justified in the first place because there was no reasonable suspicion provided by his “mere presence at the scene of a property under ‘extra watch.’ ” We disagree. The police officer observed appellant backing his vehicle into the yard of an abandoned property. Appellant was in reality trespassing on property belonging to another. The owner had placed it under “extra watch” because of problems he had had with people coming onto and using the property. Appellant was observed committing a violation of law that the police had been asked to anticipate. Trespassing and loitering, being minor criminal activity, alone provide sufficient reasonable suspicion for an officer to stop and question a subject. Simpson v. Commonwealth, Ky.App., 834 S.W.2d 686, 688 (1992).

Appellant next argues that further questioning that goes beyond the original purpose of the stop must be supported by additional reasonable suspicion. He asserts that the officer’s stop of the defendant had to end once Sharrard Kendrick, who had joined appellant at the vehicle, indicated that appellant was only there to bring him food. We do not agree, however, that it is clear that the purpose of the stop had been fulfilled at that point — that the officer’s suspicions had been dispelled or his investigation completed such that appellant should have been released. Appellant was still evidently trespassing. The officer was justified in examining appellant’s identification and checking for warrants to investigate his presence at the scene. Appellant has not persuaded us that an officer may not conduct these checks as part of his initial investigatory stop based on reasonable suspicion, as in this case. See Simpson, 834 S.W.2d at 687. Therefore, we conclude that the officer’s warrant check was reasonably related in scope to the circumstances that justified the stop in the first place.

While the officer was waiting for the warrant check to be completed, the backup officer discovered the package of cocaine on the ground. Since we have determined that there was no Fourth Amendment violation prior to that time, we find no error. Furthermore, the trial court properly found there was no basis for suppressing appellant’s statement to police. We conclude that the trial court’s findings of fact were supported by substantial evidence and the stop was justified by reasonable suspicion.

For the foregoing reasons, we affirm the order of the Christian Circuit Court denying suppression, and we affirm appellant’s conviction.

ALL CONCUR.

      . Appellant also argues on appeal that the police did not have a reasonable belief that he was armed in order to justify frisking him for weapons. However, appellant did not challenge the frisk for weapons in the trial court, and so we conclude this issue was not preserved for appellate review.