text:
    2009 Ark. 322
    Joy Danielle DACHS and Joshua Allen Dachs, individually; and Joy Danielle Dachs, as Special Representative of the Estate of Elizabeth Anne Dachs, Deceased, Appellants, v. Barry D. HENDRIX, M.D.; Family Practice Clinic; Hendrix Medical Services, PLLC; Paragould Physicians Management, LLC; Rebecca Fisher, L.P.N.; Cynthia A. Bartholomew, R.N.; Arkansas Methodist Hospital Corporation d/b/a Arkansas Methodist Hospital, and d/b/a Arkansas Methodist Medical Center; and Continental Casualty Company, Appellees.
    No. 08-1191.
    Supreme Court of Arkansas.
    May 28, 2009.

      Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellants.
    Womack, Landis, Phelps & McNeill, Jonesboro, by: Paul McNeill and Jeff Scri-ber, for appellees Rebecca Fisher, L.P.N., Cynthia A. Bartholomew, R.N., Arkansas Methodist Hospital Corp., and Continental Casualty Co.
    Friday, Eldredge & Clark, LLP, Little Rock, by: Laura Hensley Smith and J. Adam Wells, for appellees Barry D. Hendrix, M.D., Family Practice Clinic, Hendrix Medical Services, PLLC, and Para-gould Physicians Management, LLC.
   PER CURIAM.

| ^Appellants, Joy Danielle Dachs, individually and as special representative of the estate of Elizabeth Anne Dachs, deceased, and Joshua Allen Dachs, individually, petitioned this court for review of a decision of the court of appeals, which affirmed the Greene County Circuit Court’s order granting summary judgment to Appellees, Barry D. Hendrix, M.D.; 2Family Practice Clinic; Hendrix Medical Services, PLLC; Paragould Physicians Management, LLC (hereinafter referred to collectively as “the physician defendants”); and Rebecca Fisher, L.P.N.; Cynthia A. Bartholomew, R.N.; Arkansas Methodist Hospital Corporation d/b/a/ Arkansas Methodist Hospital, and d/b/a Arkansas Methodist Medical Center; and Continental Casualty Company (hereinafter referred to collectively as “the hospital defendants”). Dachs v. Hendrix, 103 Ark. App. 184, 287 S.W.3d 627 (2008). When we grant a petition for review of a decision by the court of appeals, we consider the appeal as though it had originally been filed in this court. Skallerup v. City of Hot Springs, 2009 Ark. 276, 309 S.W.3d 196 (2009).

We granted review to address two issues of first impression: whether an amended complaint asserting survival and wrongful-death claims that were time-barred can relate back to a timely filed original complaint that alleged individual claims in addition to the survival and wrongful-death claims asserted by an improper party, and whether the death of a minor removes the minority-tolling provision of the Medical Malpractice Act. We are precluded from reaching these two issues, however, because Appellants failed to include in the addendum the hospital defendants’ brief in support of their first motion for summary judgment. The hospital defendants’ second motion for summary judgment states that they “incorporate the previous summary judgment motion and brief herein by reference.”

|sThis missing brief in support of the summary judgment motion is “essential to an understanding of the case” as required by Ark. Sup.Ct. R. 4-2(a)(8), because it contains argument and citations to authority advanced by the hospital defendants on the issues of Appellants’ standing or lack thereof and whether the original complaint was therefore a nullity, which is one of the very issues Appellants challenge on appeal and upon which we granted review. Moreover, we have recently stated that “an order of a circuit court cannot be reviewed for error when the addendum fails to include the documents on which the order was based.” Bryan v. City of Cotter, 2009 Ark. 172, 303 S.W.3d 64 (2009) (per curiam). The trial court’s order granting summary judgment in this case clearly states that “the motions for summary judgment by all defendants” were before the court and that the court considered “the pleadings of record, the applicable law and the arguments of counsel.”

We stated in Bryan that “[w]e have always shown a preference for a bright-line rule with an objective standard, requiring the inclusion of pleadings and motions that led to the order being appealed, over the subjective test advocated by the dissent.” Id. at 5, 303 S.W.3d at 67. It is because of this preference for a bright-line rule, as well as a preference for consistently applying our rules, that we order re-briefing in this case. See, e.g., Meyer v. CDI Contractors, LLC, 2009 Ark. 115, 313 S.W.3d 519 (2009) (per curiam) (rebriefing ordered for failure to include in record and addendum brief in support of response to motion for summary judgment); see also Meyer v. GDI Contractors, LLC, 2009 Ark. 304, 4318 S.W.3d 87 (2009) (per curiam) (affirming for failure to include in substituted addendum brief in support of response to motion for summary judgment following order to rebrief).

It is Appellants’ burden to provide us with a record, abstract, addendum, and brief that allows us to understand issues presented on appeal. Meyer, 2009 Ark. 304, 318 S.W.3d 87 (2009). Appellant’s failure to include the missing brief in support of the hospital defendants’ motion for summary judgment is a failure to comply with Ark. Sup.Ct. R. 4-2(a)(8) and precludes our review of the issues presented. Pursuant to Ark. Sup.Ct. R. 4-2(b), we order Appellants to file a substituted addendum in the case within fifteen days from the entry of this order. We encourage appellate counsel, prior to filing the substituted addendum, to review our rules and the substituted addendum to ensure that no additional deficiencies are present. Roberts v. Roberts, 2009 Ark. 306, 319 S.W.3d 234 (2009) (per curiam).

Rebriefing ordered.

GUNTER, J., not participating.


source: Caselaw Access Project

author: M. MICHAEL KINARD, Judge.

license: Public Domain

text:
    2009 Ark. App. 435
    Kirby BUTLER, Jr., Appellant, v. Betty DIKE; Estate of Rosebud Nicholson, Deceased, Appellees.
    No. CA 08-1242.
    Court of Appeals of Arkansas.
    May 27, 2009.

      Benny Park Eldridge, Jr., Gillett, for appellant.
    Molock Law Firm, P.A., by: Dennis R. Molock, Stuttgart, for appellee.
   M. MICHAEL KINARD, Judge.

This is a probate case in which 2.5 acres of real property located in Arkansas County are in dispute. Appellant, Kirby Butler, Jr., contends that he is the owner of the property at issue pursuant to a family settlement agreement and a court order closing Fairlee Butler’s estate. We affirm.

The facts underlying the case are these. Fairlee Butler was the owner of 2.5 acres of real property in the Southern District of Arkansas County, Arkansas. In her will dated October 10,1972, Fairlee Butler provided:

I give and devise to my beloved daughter, Rosebud Nicholson, my residence located on approximately 2 1/2 acres of land in Arkansas County, Arkansas. I make this devise with the limitation that she will permit Calvin Butler to live in the house if he needs it for a home and elects to actually use it for a residence. In the event the death of Rosebud Nicholson occurs prior to the death of Calvin Butler, I give and devise the residence property referred to above |2to Calvin Butler for and during the period of his lifetime and at his death to my son, Kirby Butler, for and during the period of his lifetime and at his death to my grandson, Kirby Butler, Jr.

Butler’s will also appointed Rosebud Nicholson executrix of the estate. The validity of this will is uncontested. Fairlee Butler died on January 9, 1976. Rosebud Nicholson, as executrix of the estate of Fairlee Butler, provided the probate court with an accounting, which provides, in pertinent part:

In accordance with the terms of the Last Will and Testament of Fairlee Butler and in accordance with the laws of descent of the State of Arkansas, with regard to deceased beneficiaries, assets of the estate of Fairlee Butler were delivered as follows:
A part of Lot 4 of SW1/4 Sec. 7, T5S, R1W, containing 2.5 acres, as more particularly described in a deed recorded in Book P-8, Page 376, delivered to Rosebud Nicholson for her lifetime; thence to Calvin Butler for his lifetime; thence to Kirby Butler, Jr., in fee, per terms of Item 2 of the Will of Fairlee Butler[.]

Family members, including Rosebud Nicholson and appellant, signed a “Receipt for Assets of Estate” on August 12, 1976. In this receipt, they acknowledged that they had examined the final accounting filed on behalf of the Executrix (Nicholson), acknowledged receipt of all the assets of the said estate belonging to them, waived the notice of hearing on the final settlement, and agreed that the settlement might be approved by the Court. Appellant argues that this final accounting, agreed to as shown by the signed receipt, constitutes a family settlement agreement.

| sIn an order filed December 23, 1976, the probate court approved the accounting (referred to by the court as the “final settlement”) and released Nicholson from her duties as executrix. The court wrote:

The Court finds that the executrix has filed a full and complete settlement showing all receipts and disbursements; that all disbursements were made in accordance with the claims filed, the orders of this Court, the terms of the Will, or the Statutes of the State of Arkansas; that the distributees and beneficiaries under the Will have received all the benefits to which they are entitled under the terms of the said Will or the laws of the State of Arkansas[.]

The current appeal arises in the context of the distribution of Rosebud Nicholson’s estate. Nicholson died testate on March 25, 2005. Following a will contest, the holographic will of Rosebud Nicholson dated October 18, 2004, was admitted to probate by an order entered on March 8, 2006. In her will, Nicholson left everything to Betty Dike and named Dike executrix of her estate. On March 5, 2008, appellee Betty Dike, as executrix of the Estate of Rosebud Nicholson, filed a petition seeking an order of final distribution. This petition included a request that the court authorize appellee, as executrix, to “execute and deliver to the above named heir [appellee] an Executor’s Deed, conveying to the said heir the real property contained in the estate.” Appellant objected to the distribution of the real property in question to appellee, claiming in his response to the petition that Nicholson had only a life estate in the property and that the property passed to him in fee simple absolute upon her death.

A hearing was conducted in this matter on May 14, 2008, after which the circuit court concluded that “the purported distribution of the property did not constitute a Ufamily settlement agreement which altered the terms of Fairlee Butler’s will.” The court based its decision on the language in the accounting stating that the distribution of the real property was “[in] accordance with the Last Will and Testament of Fairlee Butler.... ” Because the distribution was “clearly not in accord with the terms of the will,” the court concluded that the purported distribution set out in the accounting was the result of a mutual mistake in construing the terms of the will. Further undermining appellant’s claim was the court’s holding that the subject property never became an asset of the estate in the hands of Nicholson as personal representative of the Fairlee Butler estate. Thus, the court found that the real property in question was an asset of the estate of Rosebud Nicholson and, pursuant to Nicholson’s will, passed to appellee in fee simple absolute.

Probate cases are reviewed de novo on appeal, and the appellate court will not reverse unless the findings of the probate judge are clearly erroneous. Wells v. Estate of Wells, 325 Ark. 16, 18, 922 S.W.2d 715, 716 (1996).

Appellant argues on appeal that the 2.5 acres of real property is owned by him and was not a part of the estate of Rosebud Nicholson, as Ms. Nicholson executed a family settlement agreement taking a life estate in the property. Appellant cites to relevant case law on “family settlement agreements.” He is correct in stating that, “as favored by the law, the court strictly adheres to family settlement agreements absent fraud or mistake.” See Green v. McAuley, 59 Ark.App. 114, 953 S.W.2d 66 (1997). 5Nonetheless, we agree with the trial court’s conclusion that the purported distribution of the property did not constitute a family settlement agreement that altered the terms of Fairlee Butler’s will. The accounting contained inconsistent provisions: it purported to distribute property in accordance with the terms of Fairlee Butler’s will; yet it provided for the distribution of the 2.5 acres of real property in a manner not provided for in the will. As such, we find that there was no “meeting of the minds” or mutual assent necessary to form a family settlement agreement.

The real property in question was not governed by a family settlement agreement, and title to real property generally does not pass through the probate estate. Real property is an asset in the hands of the personal representative only when so directed by the will or when the court finds that the property is necessary to pay claims, debts, etc. Ark.Code Ann. § 28-49-101 (Repl.2004). If a will does not postpone the vesting of title, title to real property vests in the devisee immediately upon the testator’s death. Monk v. Griffin, 92 Ark.App. 820, 213 S.W.3d 651 (2005). Here, defeasible fee title vested in Rosebud Nicholson, subject to being defeated in the event she did not survive Calvin Butler. When Nicholson survived Calvin Butler, her title became indefeasible, and she owned the property in fee simple absolute.

Appellant’s second point on appeal is that a final order was issued by the court on December 23, 1976, accepting him as the property’s owner upon the expiration of the life estate of Rosebud Nicholson. As previously discussed, the real property did not pass | ¡¡through the estate; it vested immediately upon Ms. Butler’s death. Thus, we affirm on this point.

For his final argument, appellant asserts that appellee is an “improper party to question the distribution of the Property from the Estate of Fairlee Butler.” This argument has no merit. The court properly looked to the terms of the Fairlee Butler will to determine who was the owner of the property in question. We conclude that the trial court was correct in determining that the 2.5 acres of real property vested in the appellee at the death of Rosebud Nicholson.

Affirmed.

HART and GLADWIN, JJ., agree.


author: ROBERT J. GLADWIN, Judge.

text:
    2009 Ark. App. 451
    Rosemary BLAKES, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 09-16.
    Court of Appeals of Arkansas.
    June 3, 2009.
    Bart Ziegenhorn, West Memphis, for appellant.
    Dustin McDaniel, Att’y Gen., by Christian Harris, Ass’t Att’y Gen., for appellee.
   ROBERT J. GLADWIN, Judge.

|,Appellant Rosemary Blakes appeals from the Crittenden County Circuit Court’s revocation of her suspended sentence. On June 9, 2008, appellant’s suspended sentence was revoked, and she was sentenced to six years’ imprisonment for breaking and entering and twelve years’ imprisonment for her conviction on each of two counts of forgery, said sentences to run concurrently. She contends on appeal that the lower court erred in revoking her suspended sentence because the State failed to produce sufficient evidence to support the revocation petition. We disagree and affirm the revocation.

_[2Statement of Facts

On September 29, 2006, appellant was sentenced to a six-year suspended sentence for breaking and entering. On May 30, 2007, appellant pled guilty to two counts of forgery and received a ten-year suspended sentence. The State filed a petition for revocation of the suspended imposition of sentence on March 18, 2008, alleging that appellant had violated the terms and conditions of her suspended sentence.

At the revocation hearing, the evidence was that appellant had been arrested while she was a passenger in a car driven by a friend. Her cousin was standing beside the driver’s side window, and when police pulled up behind the car, appellant’s cousin tossed something into the window. The driver was then seen stuffing what police believed to be crack cocaine into her sock. When the driver was searched, crack cocaine was found in her sock and marijuana was found in her waist band.

Appellant was observed by one police officer as having her hand down beside her right leg, between the door and the passenger seat. A search of the vehicle revealed a small amount of crack cocaine in the floorboard located between the passenger seat and the car |sdoor. Appellant testified that she was only receiving a ride from her cousin and his friend and was unaware that they were involved with crack cocaine. However, she also testified that she knew her cousin was a felon, that the neighborhood she was in had a reputation as a drug neighborhood, and that she did not leave the car when she had the chance to leave.

The trial court found that appellant was in violation of the terms and conditions of her suspended sentence. Specifically, the trial court found that the State had shown by the greater weight of the evidence that appellant associated with persons she knew to be involved in committing a crime and that she had reason to believe had been convicted of crimes. Appellant filed a timely notice of appeal, and this appeal followed.

Standard of Review

In a hearing to revoke a probation or suspended imposition of sentence, the State must prove its case by a preponderance of the evidence. Haley v. State, 96 Ark.App. 256, 240 S.W.3d 615 (2006). To revoke probation or a suspension, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Ark.Code Ann. § 5-4-309 (Repl.2006); Haley, supra. The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Id. When appealing a revocation, the appellant has the burden of showing that the trial court’s findings are clearly against the preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the | ^evocation of probation or suspended sentence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge’s superior position. Id.

Discussion

Appellant claims that the trial court erred in revoking her suspended imposition of sentence because the State failed to produce sufficient evidence to support the revocation petition. The State alleged that appellant possessed cocaine, associated with other felons, and associated with others violating criminal laws. The trial court revoked the suspended sentence based upon appellant’s association with others committing crimes and others she had reason to believe had been convicted of a crime. Appellant argues that by not finding that appellant had constructive possession of the crack cocaine found in the car, the trial court could only rely upon the fact that she knew the other individuals were committing a crime and that she was associating with other felons. She claims that there was no proof that she was aware that the parties were in possession of drugs until they were arrested. Also, she claims that she believed that she was going to visit her cousin’s mother in the hospital. She argues that the mere fact that her cousin is a felon and they were together should not be sufficient to revoke.

The State maintains that the trial court’s revocation is supported by a preponderance of the evidence. The testimony before the trial court included that appellant accepted a ride | ¡¡from her cousin, a felon, and his friend, whom appellant knew to be involved in the drug trade. Further, appellant had been out with these people the night before the arrest. On the day of the arrest, appellant’s cousin was seen by police throwing something to the driver of the car that appellant was riding in. A search of the driver led to police finding a package of cocaine in her sock and marijuana in her waistband. Appellant was seen moving her hand between the passenger seat and the door. "When the car was searched, police found a rock of crack cocaine where appellant’s hand had been. We hold that sufficient evidence supports the circuit court’s ruling that appellant was guilty of associating with other felons and associating with others violating criminal laws.

Affirmed.

GRUBER and GLOVER, JJ„ agree.

      . Appellant's brief does not comply with the Rules of the Arkansas Supreme Court and Court of Appeals, Rule 4 — 2(a)(8) (2004), in that the addendum lacks the conditions of the suspended imposition of sentence. Under Rule 4-2(b)(3), "If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case ... the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies.” We are mindful of our supreme court's recent per curiam, Roberts v. Roberts, 2009 Ark. 306, 319 S.W.3d 234; however, we do not consider the deficiency herein to be such that this court cannot reach the merits of the case pursuant to Rule 4-2(b)(3). See McGehee v. State, 344 Ark. 602, 43 S.W.3d 125 (2001). Thus, we need not as is allowed by Rule 4-2(b)(3).


author: Justice ABRAMSON.

text:
    RACING INVESTMENT FUND 2000, LLC, Appellant, v. CLAY WARD AGENCY, INC., Appellee.
    No. 2009-SC-000007-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
    As Corrected Sept. 24, 2010.
    Richard A. Getty, Jessica K. Case, Getty & Childers, PLLC, Lexington, KY, Counsel for Appellant.
    James Burke Cooper, Boehl, Stopher & Graves, David T. Royse, Stoll Keenon Ogden PLLC, Lexington, KY, Counsel for Appellee.
   Opinion of the Court by

Justice ABRAMSON.

Racing Investment Fund 2000, LLC is a limited liability company created in August 2000, to purchase, train and race thoroughbred horses. In May, 2004, Racing Investment entered into an agreed judgment with its former equine insurance firm, Clay Ward Agency, Inc., for past-due insurance premiums. Shortly thereafter, Racing Investment partially paid the judgment by tendering all of the remaining assets of the then-defunct limited liability company. When Racing Investment failed to pay the remainder of the amount owed, Clay Ward succeeded in having Racing Investment held in contempt of court for its failure to pay the entire judgment amount. Specifically, the trial court ruled that a provision in Racing Investment’s Operating Agreement which allowed the limited liability company’s Manager to call for additional capital contributions, as needed, from all members on a pro rata basis for “operating, administrative or other business expenses” provided a means of satisfying the Clay Ward judgment. The trial court ordered that Racing Investment “act accordingly to satisfy the Judgment within a reasonable period of time” or face other sanctions. After the Court of Appeals affirmed, this Court granted discretionary review to consider whether the capital call provision can be invoked by a court to obtain funds from the limited liability company’s members in order to satisfy a judgment against the limited liability company. Having concluded that KRS 275.150 provides for immunity from personal liability for a limited liability company’s debts unless a member agrees otherwise and, further, that members of Racing Investment did not, by signing an operating agreement allowing for periodic capital calls from the Manager, subject themselves to personal liability, we reverse.

RELEVANT FACTS

As noted, Racing Investment was formed as a limited liability company in August 2000 to engage in thoroughbred horse racing. The Operating Agreement provided for fifty units to be sold for an initial capital contribution of $100,000 per unit and allowed the Manager on an as-needed basis, subject to some limitations, to call for additional capital from the members in order to pay operating, administrative or other business expenses. The Manager of Racing Investment was Gaines-Gentry Thoroughbreds, LLC, which, as it name suggests, is a limited liability company in its own right.

Gaines-Gentry was the manager of a number of thoroughbred racing limited liability companies which, for several years, purchased equine insurance coverage through Clay Ward. Gaines-Gentry eventually brought suit against Clay Ward for breach of contract, fraud and negligence claims arising out of the alleged mishandling of the insurance of a foal and a stallion, neither of which was owned by Racing Investment. During the course of Gaines-Gentry’s dispute with Clay Ward, Racing Investment did not pay certain insurance premiums it owed for coverage of its horses. In the course of the Gaines-Gentry litigation, Clay Ward eventually moved for summary judgment on its counterclaims against Racing Investment for the unpaid insurance premiums, a motion which Racing Investment did not oppose. After the matter of the prejudgment interest was resolved between the parties, Clay Ward and Racing Investment entered into an agreed judgment on May 27, 2004 for $69,858.96, of which $12,719.28 was paid shortly thereafter.

As referenced supra, Clay Ward succeeded in its efforts to have Racing Investment held in contempt for failure to pay the outstanding balance of $57,139.68 as well as any post-judgment interest. The trial court and the Court of Appeals concluded that a provision in Racing Investment’s Operating Agreement which allows the Manager to make additional capital calls provided a means for obtaining funds to satisfy the Clay Ward judgment, ie., a capital call should issue to each member of the LLC for his, her or its pro rata share of the balance owed on the judgment. The trial court also concluded that Racing Investment was in contempt of court for failing to have called for additional capital from its members, a position which the Court of Appeals affirmed as properly within the trial court’s discretion. Having granted discretionary review, we turn first to Kentucky Revised Statutes (KRS) Chapter 275 and general principles governing limited liability companies, and then the specific provisions of the Operating Agreement.

ANALYSIS

In 1994, Kentucky joined a growing national trend by recognizing limited liability companies (LLCs) through the adoption of the “Kentucky Limited Liability Company Act” codified at KRS Chapter 275. As early commentators noted, the hallmark of this new form of business entity is its combination of the income tax advantages of a partnership with the business advantages of a corporation. Thomas Rutledge and Lady Booth, The Limited Liability Company Act: Understanding Kentucky’s New Organizational Option, 83 Ky. L.J. 1 (1994-95). The “centerpiece” of a limited liability company is its “provision for limited liability of its members and managers in regard to the debts and obligations of the LLC.... ” Id. at 6. See also Charles Fassler, Kentucky Limited Liability Company § 1.7 (2009) (“The most important feature of an LLC is its limited liability protection.... It is this limited liability that makes an LLC such a valuable entity”) One indicia of the strength of that limited liability protection is the Internal Revenue Service’s recognition that federal employment tax liabilities incurred by an LLC cannot be collected from the LLC’s members. Id. citing Rev. Rul.2004-41, 2004-1 C.B. 845.

Kentucky codified the limited liability feature of a limited liability company at KRS 275.150 — “Immunity from personal liability”:

(1) Except as provided in subsection (2) of this section or as otherwise specifically set forth in other sections in this chapter, no member, manager, employee, or agent of a limited liability company, including a professional limited liability company, shall be personally liable by reason of being a member, manager, employee, or agent of the limited liability company, under a judgment, decree, or order of a court, agency, or tribunal of any type, or in any other manner, in this or any other state, or on any other basis, for a debt, obligation, or liability of the limited liability company, whether arising in contract, tort, or otherwise. The status of a person as a member, manager, employee, or agent of a limited liability company, including a professional limited liability company, shall not subject the person to personal liability for the acts or omissions, including any negligence, wrongful act, or actionable misconduct, of any other member, manager, agent, or employee of the limited liability company.
(2) Notwithstanding the provisions of subsection (1) of this section, under a written operating agreement or under another written agreement, a member or manager may agree to be obligated personally for any of the debts, obligations, and liabilities of the limited liability company.

Notably, the statute contains a strong, detailed declaration of personal immunity followed by recognition in subsection (2) that a member or members may agree in writing to be personally liable for the LLC’s debts, obligations and liabilities. As one national commentator has noted, “[sjince most LLCs are created for the purpose of obtaining limited liability, few LLCs take advantage of the opportunity to allow their members to waive limited liability under the act.” Steven C. Alberty, Limited Liability Companies: A Planning and Drafting Guide § 3.06(b)(2) (2003).

Following the filing of articles of organization, KRS 275.020, the business of a limited liability company is typically conducted in accordance with an operating agreement, an agreement that has been analogized to a partnership agreement or even the articles of incorporation, by-laws and shareholders’ agreement of a corporation. Fassler at § 1.5. KRS 275.015(20) defines an “operating agreement” in relevant part as “any agreement, written or oral, among all of the members, as to the conduct of the business and affairs of a limited liability company.” If the members of a particular LLC do not adopt a written operating agreement or adopt one which is silent on certain matters, KRS Chapter 275 contains default provisions that will govern the conduct of the entity’s business and affairs.

One of the matters inevitably addressed in an operating agreement is the capitalization of the LLC. Initial capital contributions are detailed as well as any obligation for future capital infusion because “[a]n LLC may need capital in addition to that contributed at the time it is organized.” Alberty at § 4.02(b)(1). Consequently, the members’ commitments, if any, to make future capital contributions are also “typically set forth in the LLC’s operating agreement.” Id. See also Fassler at § 5.8.

In addition to the aforementioned principles of limited liability and capitalization, also relevant to the matter before us, given Racing Investment’s cessation of business, is KRS 275.285 regarding dissolution of a limited liability company. That statute provides that an LLC shall be dissolved and its affairs wound up upon the happening of the first of a series of events. The one particularly relevant here is subsection (1) which provides in pertinent part for dissolution “upon the occurrence of events specified in the articles of organization or a written operating agreement.” As for the effect of dissolution, KRS 275.300(2) provides:

A dissolved limited liability company shall continue its existence but shall not carry on any business except that appropriate to wind up and liquidate its business and affairs, including:
(a) Collecting its assets;
(b) Disposing of its properties that will not be distributed in kind to its members;
(c) Discharging or making provision for discharging its liabilities;
(d) Distributing its remaining property among its members according to their interests; and
(e) Doing every other act necessary to wind up and liquidate its business and affairs.

Thus, dissolved limited liability companies continue their existence throughout the process of winding up and liquidating the business.

Before turning to Racing Investment’s Operating Agreement and the particular facts before us, we note that our standard of review as to interpretation of the provisions of both KRS Chapter 275 and the Operating Agreement is de novo. Cumberland Valley Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky.2007) (“interpretation and legal effect of contract” and statutory construction are matters of law, subject to de novo review). Accordingly, the legal conclusions of the trial court and Court of Appeals, while carefully considered, are entitled to no deference. Id.

Racing Investment first contends that upon tendering the last of its assets to Clay Ward it dissolved pursuant to Section 11.1(a) of the Operating Agreement. More specifically, sub-subsection (ii) of that agreement provides for Racing Investment’s dissolution “[u]pon the sale or other disposition of all, or substantially all, of the assets of the Company....” Under KRS 275.285(1) quoted above, this occurrence, specifically identified in the Operating Agreement, clearly triggered dissolution of Racing Investment. However, as Clay Ward notes, KRS 275.300(2) provides that a dissolved LLC remains in existence to wind up and liquidate the business and that process includes specifically “discharging or making provision for discharging its liabilities.” Racing Investment counters with the fact that the limited liability company had ceased business, wound up its affairs by distributing all of its assets and was thus terminated pursuant to the following language, again in Section 11.1 of the Operating Agreement:

Dissolution of the Company shall be effective upon the date on which the event giving rise to the dissolution occurs, but the Company shall not terminate until the assets of the Company shall have been distributed as provided in Section 11.3 Notwithstanding dissolution of the Company, prior to the liquidation and termination of the Company, the business of the company and the affairs of the Members (including, but not limited to, the Investor Assignees), as such, shall continue to be governed by the Agreement.

(emphasis in original). While this termination argument appears to have some merit, it is difficult from the record before us to conclude definitively that indeed Racing Investment has terminated its existence. Racing Investment points to no evidence of record but relies on arguments of counsel regarding the status of Racing Investment as an entity whose existence has factually and legally terminated. With Racing Investment having failed to meet its burden of proof regarding the termination of the LLC, we turn to the larger question of the effect of the periodic capital call provision.

Section 4.3(a) of the Racing Investment Operating Agreement, entitled “Additional Capital Contributions” provides:

The Investor Members (including, but not limited to, any Investor Assignees) shall be obligated to contribute to the capital of the Company, on a prorata basis in accordance with their respective Percentage Interests, such amounts as may be reasonably deemed advisable by the Manager from time to time in order to pay operating, administrative, or other business expenses of the Company which have been incurred, or which the Manager reasonably anticipates will be incurred, by the Company. Except under unusual circumstances, such additional capital contributions (“Additional Capital Contributions”) shall not be required more often than quarterly and shall be due and payable by each Investor Member (including, but not limited to, each Investor Assignee) within fifteen (15) days after such Investor Member receives written notice from the Company of the amount due (a “Quarterly Bill”), The Manager shall not be required to make any additional capital contributions.

(emphasis in original). This is the provision relied upon by Clay Ward in contending that Racing Investment was in contempt of court for not having paid the agreed judgment in full. Under Clay Ward’s interpretation, Racing Investment incurred a legitimate business expense for the equine insurance premiums prior to its dissolution and the members of the LLC, by agreeing to the periodic capital contribution provision, are subject to a “last call” to satisfy the outstanding balance on the judgment. In accepting this construction, the trial court and Court of Appeals essentially concluded that, by agreeing to make periodic capital contributions pursuant to Section 4.3(a), individual members of Racing Investment are legally responsible for their pro rata share of the entity’s business debt. Indeed, under this theory, any outstanding debt that remains unpaid by the LLC can be satisfied through application for a court-ordered capital call. We reject this construction as contrary to the plain terms of the Operating Agreement and the letter and spirit of the Kentucky Limited Liability Company Act.

As discussed above, an operating agreement providing for future capital contributions by the LLC’s members is neither “unique” as suggested by Clay Ward nor “atypical” as described by the Court of Appeals. Many businesses choosing the limited liability company form have circumstances that require periodic capital infusion. See Alberty at § 4.02(b) (“Often, an LLC will need financing in stages, and staggered contributions by members will be anticipated at the time the LLC is organized.... Both anticipated and unanticipated later capital contributions should be addressed in an LLC’s organizational documents.”) Section 4.8(a) is a provision designed to assure members will contribute additional capital, as deemed necessary by the Manager, to advance Racing Investment’s thoroughbred racing venture. While Clay Ward’s insurance premiums were indeed a legitimate business expense for which the Manager could have made a capital call, that premise alone does not lead a fortiori to the relief ordered by the trial court. Simply put, Section 4.3(a) is a not-uncommon, on-going capital infusion provision, not a debt-collection mechanism by which a court can order a capital call and, by doing so, impose personal liability on the LLC’s members for the entity’s outstanding debt. Clay Ward insists that its quest to be paid is not about individual member liability, but there is no other way to construe what occurs when a court orders a capital call be made to pay for a particular LLC debt. From any viewpoint, the shield of limited liability has been lifted and the LLC’s members have been held individually liable for its debt.

KRS 275.150 emphatically rejects personal liability for an LLC’s debt unless the member or members, as the case may be, have agreed through the operating agreement or another written agreement to assume personal liability. Any such assumption of personal liability, which is contrary to the very business advantage reflected in the name “limited liability company”, must be stated clearly in unequivocal language which leaves no room for doubt about the parties’ intent. Section 4.3(a) of Racing Investment’s Operating Agreement does not begin to meet this standard. A provision designed to provide on-going capital infusion as necessary, at the Manager’s discretion, for the conduct of the entity’s business affairs is simply not an agreement “to be obligated personally for any of the debts, obligations and liabilities of the limited liability company.” KRS 275.150(2). To reiterate, assumption of personal liability by a member of an LLC is so antithetical to the purpose of a limited liability company that any such assumption must be stated in unequivocal terms leaving no doubt that the member or members intended to forego a principal advantage of this form of business entity. On this score, Section 4.3(a) simply does not qualify.

As noted by both parties, the immediately following section of the Operating Agreement, Section 4.4, provides “[e]xcept as otherwise specifically provided in the [Kentucky Limited Liability Company] Act, no Member shall have any personal liability for the obligations of the Company.” This provision underscores the fundamental premise of a limited liability company. However, this provision continues by stating that, “except .... as to Additional Capital Contributions ... no Member shall be obligated to contribute additional funds or loan money to the Company.” While Clay Ward views this exception as approval of its theory regarding a last capital call, the additional capital contributions under Section 4.3(a) are, again, those periodic capital contributions which the Manager concludes are necessary to meet Racing Investment’s on-going expenses. Section 4.3(a) is not a post-judgment collection device by which any legitimate business debt of the LLC can be transferred to individual members by a court-ordered capital call. A judgment creditor of a limited liability company has available all legal means for collection as against the entity itself but no means of securing relief from the LLC’s individual members absent the unequivocal assumption of personal liability provided for in KRS 275.150(2).

Having concluded that Section 4.3 of the Operating Agreement does not allow the unpaid portion of the agreed judgment against Racing Investment to be satisfied through a court-ordered capital call, we reverse the opinion of the Court of Appeals. We also remand this matter to Fayette Circuit Court for additional proceedings, if any, consistent with this opinion.

MINTON, C.J.; CUNNINGHAM, SCHRODER, SCOTT, and VENTERS, JJ., concur.

NOBLE, J., not sitting.

      . Kentucky has made exceptions, however, for state taxes owed by an LLC: there can be personal liability on the part of members for sales taxes, payroll taxes and other state taxes. See Fassler at § 1.8.

      . KRS 275.200(5) does contain an exception for a creditor of a limited liability company “who extends credit or otherwise acts in reliance on the obligation [of a member to contribute to the LLC] after the member executes a writing which reflects that obligation and before the compromise [of the obligation by the unanimous consent of all members].... ” A creditor who has so relied may "enforce the original obligation.” Id. This provision has no application to a future capital contribution provision, such as the one before the Court, which is not for an amount certain but rather provides discretion to the manager of the LLC to call for capital from members, on an as-needed basis, to meet expenses.
      Nor is there before us any issue as to whether an LLC's limited liability veil may be pierced. See, e.g., Naples v. Keystone Bldg. & Development Corp., 295 Conn. 214, 990 A.2d 326, 339-342 (2010) (addressing piercing of LLC veil but declining to do so on facts presented).


text:
    The PUBLIC SERVICE COMMISSION OF KENTUCKY, Appellant, v. COMMONWEALTH of Kentucky, and Duke Energy Kentucky, Inc., f/k/a The Union Light, Heat and Power Company, Appellees. and Kentucky Cabinet for Economic Development, Real Party in Interest. The Union Light, Heat and Power Company (n/k/a Duke Energy Kentucky, Inc.), Appellant, v. Commonwealth of Kentucky, and The Public Service Commission of Kentucky, Appellees. and Atmos Energy Corporation, et al., Real Parties in Interest.
    Nos. 2008-SC-000483-DG, 2008-SC-000489-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      David Shawn Samford, Richard G. Raff, Gerald Edward Wuetcher, Frankfort, KY, for Appellant/Appellee, The Public Service Commission of Kentucky.
    Sheryl G. Snyder, M. Holliday Hopkins, Jason Patrick Renzelmann, Frost Brown Todd, LLC, Louisville, KY, for Duke Energy Kentucky, Inc., f/k/a The Union Light, Heat and Power Company, The Union Light, Heat and Power Company, n/k/a Duke Energy Kentucky, Inc.
    Jack Conway, Attorney General, David Edward Spenard, Assistant Attorney General, Office of Rate Intervention, Frankfort, KY, for Appellee, Commonwealth of Kentucky.

      Catherine C. Staib, Holland B. Spade, Janine Rene’ Coy-Geeslin, Cabinet for Economic Development, Frankfort, KY, for Amicus Curiae, Kentucky Cabinet for Economic Development.
    Kendrick Riggs, Deborah Tully Ever-sole, William Duncan Crosby, III, Stoll Keenon Ogden PLLC, Allyson Kay Sturgeon, E. On U.S. LLC, Louisville, KY, for Amicus Curiae, Atmos Energy Corporation; Big Rivers Electric Corporation; Columbia Gas of Kentucky, Inc.; Delta Natural Gas Company; East Kentucky Power Cooperative; Jackson Energy Cooperative Corporation; Kenergy Corporation; Kentucky Association of Electric Cooperatives, Inc.; Kentucky Rural Water Association, Inc.; Kentucky Utilities Company; Louisville Gas and Electric Company; Taylor County Rural Electric Cooperative Corporation.
    John Newton Hughes, Frankfort, KY, Mark R. Hutchinson, Wilson, Hutchinson & Poteat, Owensboro, KY, for Amicus Curiae, Atmos Energy Corporation.
    James M. Miller, Sullivan, Mountjoy, Stainback & Miller, PSC, Owensboro, KY, for Amicus Curiae, Big Rivers Electric Corporation.
    Richard S. Taylor, Frankfort, EY, for Amicus Curiae, Columbia Gas of Kentucky, Inc.
    Robert M. Watt, III, Stoll Keenon Ogden PLLC, Lexington, ICY, for Amicus Curiae, Delta Natural Gas Company.
    Roger R. Cowden, Lexington, KY, David Arthur Smart, Winchester, KY, for Amicus Curiae, East Kentucky Power Cooperative.
    Clayton Otis Oswald, Taylor, Keller, Dunaway & Tooms, PLLC, London, ICY, for Amicus Curiae, Jackson Energy Cooperative Corporation.
    Frank N. King, Jr., Dorsey, King, Gray, Norment & Hopgood, Henderson, KY, for Amicus Curiae, Kenergy Corporation.
    Daniel T. Yates, Governmental Affairs and Member Counsel, Kentucky Association of Electric Cooperative, Inc., Louisville, KY, for Amicus Curiae, Kentucky Association of Electric Cooperatives, Inc.
    Damon R. Talley, Hodgenville, KY, for Amicus Curiae, Kentucky Rural Water Association, Inc.
    Robert M. Spragens, Jr., Spragens & Higdon, PSC, Lebanon, KY, for Amicus Curiae, Taylor County Rural Electric Cooperative Corporation.
   Opinion of the Court by

Justice ABRAMSON.

For over twenty years, the Kentucky Public Service Commission (PSC) has allowed utilities operating in Kentucky to offer economic development rates (EDRs) to qualifying customers. These reduced gas and electric rates, as the name implies, are intended to promote economic development by encouraging both existing and potential commercial and industrial customers to invest capital in the Commonwealth, thereby creating jobs and stimulating Kentucky’s economy. In recent years, EDRs have been implemented by a utility company negotiating a contract with a qualifying customer and then submitting that contract to the PSC for its approval.

In the mid-2000s, The Union Light, Heat and Power Company n/k/a Duke Energy Kentucky, Inc., determined that it was at an economic disadvantage when competing for large commercial and industrial customers with utilities in several surrounding states because in those jurisdictions similarly discounted rates were included in the various utilities’ posted tariffs. While Duke Energy Kentucky could offer competitive EDRs, that fact was not readily apparent from its publicly-filed tariff. To address this situation, Duke Energy Kentucky initiated a proceeding before the PSC in June 2004, seeking to include two general EDR rates as “riders” to its general schedule of rates. The PSC eventually approved two EDR riders which essentially allow Duke Energy Kentucky to make a standing offer to qualifying customers but, as always, the EDR customer must still enter into an individual contract with Duke Energy Kentucky which the PSC must then approve before the parties go forward.

The Kentucky Attorney General intervened in the PSC proceeding initiated by Duke Energy Kentucky to challenge the proposed EDR riders. He alleged that EDRs are unlawful under Kentucky Revised Statute (KRS) 278.170 because the recipients of the reduced rates are not authorized to receive reduced rate service and, further, that they are unlawful under KRS 278.030 and .170 because the classifications employed and the resulting rates are unjust and unreasonable. After the PSC approved Duke Energy Kentucky’s EDR riders, the Attorney General appealed to Franklin Circuit Court. The circuit court examined the relevant provisions of KRS Chapter 278, determined that the EDR riders are lawful and reasonable, and then affirmed the PSC. On appeal, the Court of Appeals reversed, having concluded that reduced rates are not available in Kentucky to any class of utility customer not specifically identified in KRS 278.170(2) and (3). This Court granted discretionary review at the request of both the PSC and Duke Energy Kentucky and, having carefully reviewed controlling statutes and longstanding administrative construction of those statutes by the PSC, reverses.

RELEVANT FACTS

The PSC first recognized an EDR in a 1988 case involving the Louisville Gas and Electric Company. See In the Matter of: Adjustment of Gas and Electric Rates of Louisville Gas and Electric Company, PSC Case No. 10064 (Ky. PSC July 1, 1988). Shortly thereafter, the PSC initiated its own investigation regarding the implementation of EDRs by gas and electric utilities generally, focusing particularly on the feasibility, design and implementation of these special rates. Various gas and electric utilities operating in the Commonwealth were made parties to the proceeding and several other parties, including the Kentucky Attorney General, were allowed to intervene. The PSC conducted a June 22, 1989 hearing which included testimony, then considered post-hearing briefs and ultimately issued a detailed 29-page order which outlined the ground rules for the use of EDRs in Kentucky. See In the Matter of: An Investigation into the Implementation of Economic Development Rates by Electric and Gas Utilities, Admin. Case No. 327 (Ky. PSC Sept. 24, 1990). The PSC concluded that EDRs would “provide important incentives to new large commercial and industrial customers to locate facilities in Kentucky and to existing large commercial and industrial customers to expand their operations, thereby bringing much needed jobs and capital investment into Kentucky.” Id. at p. 25. The 1990 Order provided the foundation for the use of EDRs by utilities over the ensuing years and apparently provoked no real controversy until the Attorney General intervened in the 2004 proceeding initiated by Duke Energy Kentucky.

The EDR riders proposed by Duke Energy Kentucky are twofold: (1) a Development Incentive Rider which includes an Economic Development Program and an Urban Redevelopment Program and (2) a Brownfield Redevelopment Rider. The Economic Development Program is available to a qualifying customer which employs a minimum of 25 full-time employees and makes a capital investment of $1 million per 1000 kW of new load while the Urban Redevelopment Program is applicable to a customer with a minimum load of 500 kW which locates in a building, 25,000 square feet or larger, that has been unoccupied for at least two years. Customers qualifying for these programs in the Development Incentive Rider receive discounted service for up to twelve months but are obligated to continue service for at least two years following the expiration of the incentive period. The Brownfield Redevelopment Rider applies to customers who locate in an area that qualifies as a brownfield site under state or federal law and provides for a declining percentage reduction in their demand charge for up to five years but, again, the customer must continue taking service after the incentive period expires, in this case for at least three years.

The Attorney General argued before the PSC that the only customers eligible for reduced utility rates are those specifically identified in KRS 278.170(2) and (3). Those subsections allow preferential rates to active, retired or disabled utility officers and employees; the United States; charitable institutions and persons engaged in charitable work; customers affected by disasters such as a flood or epidemic; and governmental units or fire protection districts engaged in firefighting and firefighter training. The PSC rejected this argument in its April 19, 2005 Order, noting specifically that a utility is expressly authorized by KRS 278.030(B) to:

employ in the conduct of its business suitable and reasonable classifications of its service, patrons and rates. The classifications may, in any proper case, take into account the nature of the use, the quality used, the quantity used, the time when used, the purpose for which used, and any other reasonable consideration.

The PSC found nothing illegal or unreasonable about offering reduced rates to customers who satisfy minimum job creation and capital investment levels or to customers willing to locate in abandoned urban properties or brownfields. The PSC found these considerations to fit within the “reasonable consideration” language appearing at the close of KRS 278.030(3).

The Franklin Circuit Court deemed the Attorney General’s position similarly unpersuasive, citing not only KRS 278.030(3) but also KRS 278.170(1). The latter statute prohibits a utility giving an “unreasonable preference or advantage to any person” or establishing any “unreasonable difference ... between classes of service for doing a like and contemporaneous service under the same or substantially the same conditions.” The circuit court concluded that this language allowed for reasonable differences in rates and that the riders in question were not unreasonable in light of the EDR contract restrictions and the voluntary nature of the programs. Consequently, the circuit court affirmed the PSC’s order.

The Court of Appeals reversed, as noted, because it read KRS 278.170(2) and (3) as a comprehensive list of all utility customers who can receive any form of preferential rate treatment. In so holding, that court essentially found no legal basis for EDRs or any other type of reduced rate which the Kentucky General Assembly has not specifically legislated. Finding this construction to be contrary to the language of KRS 278.170 as a whole, to other provisions of KRS Chapter 278 and to longstanding administrative interpretation of those statutes, we reverse.

ANALYSIS

The matter before us initially revolves around the proper construction of the statutes which create the PSC and define its responsibilities and powers. Whether the PSC is authorized to approve EDRs is a question of law and this Court, while mindful of the legal conclusions of the lower courts, reviews the matter de novo. Cumberland Valley Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky.2007) (statutory construction is matter of law subject to de novo review). Because we conclude that KRS Chapter 278 does permit the PSC to authorize EDRs, a second issue to be addressed is whether the Attorney General has established that the specific EDRs proposed by Duke Energy Kentucky are unreasonable. See KRS 278.430 (party challenging order must establish by “clear and satisfactory evidence” that the order is “unreasonable or unlawful”). The PSC order approving the EDRs is unreasonable only if the party challenging it establishes that the. order “is not supported by substantial evidence and the evidence leaves no room for a difference of opinion among reasonable minds.” National-Southwire Aluminum Co. v. Big Rivers Elec. Corp., 785 S.W.2d 503, 510 (Ky.App.1990). As developed infra, we conclude that the Attorney General has not met this burden.

I. Economic Development Rates Are Allowable Pursuant to KRS Chapter 278

The PSC, established to “regulate utilities and enforce the provisions” of KRS Chapter 278, has “exclusive jurisdiction over the regulation of rates and services of utilities”. KRS 278.040(1) and (2). It is empowered to adopt regulations to implement KRS Chapter 278 and “investigate the methods and practices of utilities to require them to conform to the laws of this state, and to all reasonable rules, regulations and orders of the commission not contrary to law.” KRS 278.040(3). This Court has long recognized the expansive reach of the PSC’s authority, concluding that jurisdiction is “exclusively and primarily” in the commission to “fix rates [and] establish reasonable regulation of service,” subject to the judicial review provided in the statute. Smith v. Southern Bell Telephone & Telegraph Co., 268 Ky. 421, 104 S.W.2d 961, 963 (1937). While the PSC is a “creature of statute” and has only those powers granted by the General Assembly, it has “such powers as are conferred expressly or by necessity or fair implication.” Boone County Water and Sewer Dist. v. PSC, 949 S.W.2d 588, 591 (Ky.1997). With these general principles in mind, we turn to the relevant provisions of KRS Chapter 278.

Two statutes are of particular significance in resolving whether the PSC may condone the EDRs sought by Duke Energy Kentucky. First, KRS 278.030(1) recognizes the general principle that utility rates must be “fair, just and reasonable”, but then qualifies this general principle with express recognition of the fact that “fair, just and reasonable” is not inconsistent with appropriate classifications that distinguish among customers, service and rates. Thus, as noted above, subsection

(3)of KRS 278.030 provides:

Every utility may employ in the conduct of its business suitable and reasonable classifications of its service, patrons and rates. The classifications may, in any proper case, take into account the nature of the use, the quality used, the quantity used, the time when used, the purpose for which used, and any other reasonable consideration.

The second relevant statute, KRS 278.170, is the one upon which the Court of Appeals focused its attention. Because this statute is central to construction of the PSC’s authority in this matter, we quote KRS 278.170 in its entirety:

(1) No utility shall, as to rates or service, give any unreasonable preference or advantage to any person or subject any person to any unreasonable prejudice or disadvantage, or establish or maintain any unreasonable difference between localities or between classes of service for doing a like and contemporaneous service under the same or substantially the same conditions.
(2) Any utility may grant free or reduced rate service to its officers, agents, or employees, and may exchange free or reduced rate service with other utilities for the benefit of the officers, agents, and employees of both utilities. Any utility may grant free or reduced rate service to the United States, to charitable and eleemosynary institutions, and to persons engaged in charitable and eleemosynary work, and may grant free or reduced rate service for the purpose of providing relief in case of flood, epidemic, pestilence, or other calamity. The terms “officers” and “employees,” as used in this subsection, include furloughed, pensioned, and superannuated officers and employees, and persons who have become disabled or infirm in the service of the utility. Notice must be given to the commission and its agreement obtained for such reduced rate service except in case of an emergency, in which case the commission shall be notified at least five (5) days after the service is rendered.
(3) Upon obtaining commission approval of a tariff setting forth terms and conditions of service the commission deems necessary, a utility as defined in KRS 278.010(3)(d) may grant free or reduced rate service for the purpose of fighting fires or training firefighters to any city, county, urban-county, charter county, fire protection district, or volunteer fire protection district. Any tariff under this section shall require the water user to maintain estimates of the amount of water used for fire protection and training, and to report this water usage to the utility on a regular basis.
(4)The commission may determine any question of fact arising under this section.

Focusing on subsections (2) and (3), the Court of Appeals concluded that the legislature had identified “the entities which may receive discounts” and that entities engaged in either economic development or brownfield development were not permissible recipients of reduced utility rates. In that court’s view, approval of an EDR would entail the PSC adding to a statute something that the General Assembly, whether deliberately or otherwise, had not included. As both the PSC and Duke Energy Kentucky aptly note, the Court of Appeals first indicated that it was following the “plain language of the statute [KRS 278.170]” but it then invoked, albeit not by name, the principle of statutory construction known by the oft-used Latin maxim “expressio unius est exclusio alter-ius ”, ie., “to express or include one thing implies the exclusion of the other, or of the alternative.” Black’s Law Dictionary, p. 602 (7th ed.1999). As this Court recently stated in Fox v. Grayson, 317 S.W.3d 1 (Ky.2010), this canon of statutory construction is resorted to only when the relevant language is ambiguous and “only as an aid in arriving at [legislative] intention, and not to defeat it.” Id. at 9, citing Jefferson Co. v. Gray, 198 Ky. 600, 249 S.W. 771, 772 (1923). Because KRS 278.170 standing alone, and when read in conjunction with KRS 278.030, is not ambiguous, the statutory construction canon of “expressio uni-us ” is simply not applicable. The Kentucky General Assembly has used plain language which, logically interpreted, leaves no doubt that while utilities are statutorily entitled to offer reduced rates to the persons and entities identified in KRS 278.170(2) and (3), those utilities may also offer other customers reduced rates subject to PSC approval and compliance with general statutory guidelines regarding reasonableness.

Particularly pertinent to our conclusion is the opening subsection of KRS 278.010, a provision which the Court of Appeals essentially “read out” of the statute. KRS 278.170(1) prohibits any “unreasonable preference or advantage”, any “unreasonable prejudice or disadvantage” or any “unreasonable difference” for “doing a like and contemporaneous service under the same or substantially the same conditions.” The qualifier “unreasonable” clearly points to the conclusion that reasonable distinctions between recipients of utility services, “classes of service” or utility rates are legally appropriate. See also National-Southwire Aluminum Co., 785 S.W.2d at 514 (“Even if some discrimination actually exists, Kentucky law does not prohibit it per se. According to KRS 278.170(1), we only prohibit ‘unreasonable prejudice or disadvantage’ or an ‘unreasonable difference.’ ”). This logical interpretation is reinforced by KRS 278.030(3), quoted supra, which allows a utility to employ “suitable and reasonable classifications of its service, patrons and rates.” Both statutes expressly recognize the propriety of a utility drawing distinctions in its rates and making classifications among its customers subject always to the touchstone of reasonableness. The overseer of each utility’s compliance with the statutory mandate is the PSC subject, of course, to appropriate judicial review.

The Attorney General counters that subsection (1) of KRS 278.170 simply states the general principle of reasonableness which governs the reduced rates offered to the particular authorized recipients identified in subsections (2) and (3). This constrained construction not only ignores the broad recognition of a utility’s right to make “suitable and reasonable classifications” in KRS 278.030(3) but it begs an obvious question: if the General Assembly simply wanted to clarify that the reduced rates available to utility employees, the United States, charitable institutions and others identified in subsections (2) and (3) of the statute must be reasonable, would they not have merely inserted the word “reasonable” in the appropriate places in those two subsections? Subsection (1) of KRS 278.170 has more significance than the constricted meaning which the Attorney General currently advances.

Moreover, the two subsections of KRS 278.170 focused on by the Court of Appeals contain no language which would undermine our conclusion that the PSC may authorize a utility to offer EDRs to qualifying customers. Subsections (2) and (3) identify categories of customers to which a utility “may grant free or reduced rate service” but there is nothing which expressly or impliedly limits reduced rate service to officers, agents or employees of the utility, charitable institutions, or any of the other handful of categories of utility users specifically identified. Again, if our General Assembly had intended for those recipients in subsections (2) and (3) to be exclusive, it could have employed limiting language indicating reduced rates are available “only to the following authorized customers” or stating that “no reduced rates shall be offered except as authorized in this statute.” No such language of limitation or exclusivity appears.

The most obvious construction of KRS 278.170, again, is that the listed customers in KRS 278.170(2) and (3) may receive reduced utility rates [subject only to the reasonableness standard] but nothing suggests that they, and only they, may be the subject of the “suitable and reasonable classifications of ... rates” specifically provided for in KRS 278.030(3). To conclude otherwise would involve rendering both KRS 278.170(1) and KRS 278.030 largely meaningless. The courts will not interpret a portion of a statute in a way that would render other parts of the same statute or the larger statutory scheme meaningless. Lewis v. Jackson Energy Cooperative Corporation, 189 S.W.3d 87 (Ky.2005); Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky.2000). This is precisely the result of any construction which holds that KRS 278.170(2) and (3) reflect the exclusive recipients or circumstances for any distinction or classification in utility rates. Simply stated, EDRs generally are lawful under KRS 278.170(1) and KRS 278.030 and a particular EDR is sustainable provided the PSC determines that the rate is reasonable and that determination withstands the appropriate scrutiny on judicial review.

Before turning to the issue of the reasonableness of Duke Energy Kentucky’s EDR riders, we note that our construction of the PSC statutory provisions comports with the interpretation employed by the PSC itself over the last twenty years. If a statute is ambiguous, the courts grant deference to any permissible construction of that statute by the administrative agency charged with implementing it. See Bd. of Trustees of the Judicial Form Retirement Sys. v. Attorney General, 132 S.W.3d 770, 786-87 (Ky.2003) citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Although we do not find the statutes at issue ambiguous, if we were to construe them as susceptible to more than one meaning then the oft-cited Chevron deference principle would apply. The PSC’s conclusion that reasonable EDRs are authorized by Kentucky statute has been evident at least since issuance of the 1990 Investigation into the Implementation of Economic Development Rates and that administrative construction, which underscores our own reading of KRS 278.030 and KRS 278.170, is entitled to deference. Thus, even if we found ambiguity in KRS 278.170, we still would conclude that EDRs are allowed under Kentucky law.

II. The Attorney General Has Not Proved That the Duke Energy Kentucky Economic Development Rates Are Unreasonable

Finally, we reach the issue of reasonableness and, more specifically, whether the Attorney General has shown by “clear and satisfactory evidence”, KRS 278.430, that there is not substantial evidence supporting the PSC’s determination that the specific Duke Energy Kentucky EDR riders are reasonable. See National-Southwire Aluminum, 785 S.W.2d at 510 citing Energy Regulatory Comm’n v. Ky. Power Co., 605 S.W.2d 46 (Ky.App.1980). No effort has been made to shoulder this burden of proof because the Attorney General has rested his case solely' on the legal interpretation of the relevant statutes, insisting that the PSC’s “lack of power” to approve EDRs “renders moot any present or prospective issues pertaining to reasonableness .... ” Even in the circuit court, the Attorney General maintained that the Duke Energy Kentucky EDRs were both “unfair and unreasonable” and “unjust and unreasonable” based on a particular construction of KRS 278.170 which would disallow EDRs altogether as a matter of law (a construction which we have just rejected), rather than on proof that a particular aspect of the challenged EDRs was unjust, unfair or unreasonable. In essence, this case has been a challenge to the legality of EDRs generally as opposed to a challenge to the specifics of the EDRs approved by the PSC. Thus, while reasonableness of the Duke Energy Kentucky EDRs would ordinarily be our next focus, this issue is not properly before us, there being neither evidence of record nor argument contesting the specifics of the Development Incentive Rider or the Brownfield Redevelopment Rider. In short, where the party challenging a PSC order has not attempted to address the dictates of KRS 278.430, that order will stand without further scrutiny by this Court.

CONCLUSION

The PSC properly construed its enabling statutes, most particularly KRS 278.030 and KRS 278.170, as allowing for the use of economic development rates to be offered by utilities to qualifying customers subject to specific approval of those EDRs by the PSC. While utility rates must always be fair, just and reasonable, the Attorney General has raised no issue with the Duke Energy Kentucky EDRs beyond his general challenge to the legality of such reduced rates under any circumstance. Having concluded that EDRs are legally authorized by statute and having no other issue properly before us, we reverse the Court of Appeals opinion in this matter and thereby reinstate the PSC Order approving Duke Energy Kentucky’s Development Incentive Rider and Brownfield Redevelopment Rider.

All sitting. All concur.

      . A "brownfield site” is defined in KRS 65.680(4) as "real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.”

      . We note that this statutory interpretation, urged by the Attorney General when it intervened in the 2004 proceeding, differs from the Attorney General's position in the 1990 Investigation into the Implementation of Economic Development Rates, where the focus was on the issues of reasonableness, implementation and other specifics rather than any question regarding the legality of an EDR under Kentucky law.

      . KRS 278.430 provides in its entirety:
      In all trials, actions or proceedings arising under the preceding provisions of this chapter or growing out of the commission's exercise of the authority or powers granted to it, the party seeking to set aside any determination, requirement, direction or order of the commission shall have the burden of proof to show by clear and satisfactory evidence that the determination, requirement, direction or order is unreasonable or unlawful.


text:
    C. Wesley COLLINS, Appellant, v. Honorable Sara COMBS, Chief Judge, Kentucky Court of Appeals, Appellee.
    No. 2010-SC-000151-OA.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      C. Wesley Collins, Winchester, KY, pro se.
    Chief Judge Sara Walter Combs, Ann Price Swain, Chief Staff Attorney, Kentucky Court of Appeals, Frankfort, KY, Counsel for Appellee.
   MEMORANDUM OPINION OF THE COURT

Petitioner, C. Wesley Collins, filed this action in March 2010, seeking relief from a Court of Appeals Order signed by Respondent, Sara W. Combs, the former Chief Judge of the Kentucky Court of Appeals. The Order prohibits Collins from physically “entering the Central Office of the Court of Appeals or any of the Court of Appeals Field Offices until such time as this order may be rescinded by a subsequent order of this Court.” The Order further states that the Court will accommodate Collins’s need to conduct legitimate business. To facilitate Collins’s transactions with the Court, the Order instructs the Clerk of the Court of Appeals to accept pleadings from Collins by mail, fax, or e-mail.

Collins filed the instant action in this Court, arguing that Respondent lacked jurisdiction or authority to enter the Order and that the Order, itself, was arbitrary and irrational. Collins seeks a declaration that Chief Judge Combs was without jurisdiction and authority to enter the Order; a declaration that the prohibition of Collins’s entry into the Court of Appeals Offices is arbitrary, irrational and unenforceable; a permanent injunction preventing enforcement of the Order and a writ of mandamus compelling Respondent to rescind the Order. Chief Judge Combs filed a response, which Collins moved to strike. This Court passed the motion to the merits of this action and Collins filed a motion to reconsider. We deny the motion to reconsider as moot, and for the reasons stated hereinafter, we decline to strike the response.

Because Respondent possesses inherent authority to place reasonable restrictions upon the manner in which litigants may access the courts, particularly when safety concerns are implicated, and because the facts giving rise to Respondent’s safety concerns in this case are well documented, we reject Collins’s claim for relief. Although the Court of Justice recognizes a duty to accommodate litigants and strives to do so, it is also incumbent upon the Court of Justice to respond promptly to situations that create concern for the safety of court personnel. As such, the courts are vested with inherent authority to employ reasonable means to address safety concerns. Although such authority should be employed sparingly, the instant case presents the rare situation where that authority was appropriately exercised. As Collins’s requested remedies of declaratory relief, injunctive relief and mandamus are interdependent, our resolution of the substantive authority issue in Respondent’s favor precludes all of Collins’s requested relief.

RELEVANT FACTS

On November 5, 2007, Respondent entered the following Order:

IN RE C. WESLEY COLLINS
ORDER CONCERNING FILINGS
Having considered Mr. Collins’s pattern of improper ex parte contacts with Judges of this Court, his history of harassing communications both in this Court and in the Supreme Court of Kentucky, and his recent arrest while in the possession of numerous firearms, the Court has concluded that Mr. Collins represents a substantial threat to the safety of all personnel of the Court of Appeals. Accordingly, the Court ORDERS that from and after the date of entry of this order, Mr. Collins SHALL BE PROHIBITED from entering the Central Office of the Court of Appeals or any of the Court of Appeals Field Offices until such time as this order may be rescinded by a subsequent order of this Court.
This Court will accommodate Mr. Collins’s need to conduct legitimate business. During this period of prohibition, the Clerk of this Court is DIRECTED to ACCEPT pleadings from Mr. Collins by mail, fax, or e-mail for filing in accordance with the rules of appellate procedure.
ENTERED: 11/05/07 /s Sara Combs Chief Judge, Court of Appeals

Collins instituted the instant action, seeking to prohibit enforcement of the Order. In response, Chief Judge Combs refers this Court to prior opinions of the Court of Appeals and to an opinion of the United States District Court for the Eastern District of Kentucky, as well as to the recusal order entered by a certain judge, all of which document Collins’s disrespectful, harassing and otherwise inappropriate pattern of behavior concerning judges and court personnel referred to in the Order.

Collins’s interactions with the Court of Justice began when controversies arose between Collins and his former spouse, Peggy Rice, particularly concerning the couple’s time-sharing agreement with respect to their son. When Rice filed a contempt action against Collins, alleging Collins’s violation of the time-sharing order entered by Fayette Family Court and expressing concern for their son’s safety in light of Collins’s “bizarre actions,” the Fayette Family Court ordered Collins to a domestic violence assessment by Comprehensive Care of Lexington. The court suspended Collins’s time-sharing privileges until the assessment was completed. As a result of the assessment, Comprehensive Care recommended that Collins attend its Domestic Violence Treatment Program and undergo a psychiatric evaluation. However, Collins was soon discharged from the treatment program for his failure to follow through with treatment recommendations and he did not comply with the order to undergo a psychiatric evaluation. In its opinion addressing Collins’s appeals of several of the family court’s post-decree orders, the Court of Appeals explained that the several domestic violence orders and emergency protective orders present in that record were sufficient to sustain the family court’s order suspending Collins’s visitation with his son pending his submission to a psychiatric evaluation. Collins v. Collins, 2006 WL 3371891 (Ky.App.2006) (unpublished).

In that same decision, the Court of Appeals detailed Collins’s behavior in the Court of Justice as follows:

Wes embarked upon a course of conduct which the trial court ultimately deemed to be vexatious and harassing, by filing a series of motions, affidavits, petitions for injunctive relief, complaints and writs seeking to bar enforcement of the trial judge’s order, to restore visitation with his son, to change custody and to obtain an award of maintenance. Although the trial judge refused to consider any of Wes’s pleadings until he complied with the order to undergo a psychiatric evaluation, the barrage of filings continued and even increased. The magnitude of Wes’s filings in the family court, this Court and the Supreme Court was such that Peggy reached the point that she could no longer afford to pay her counsel to respond to them. Counsel was permitted to withdraw without filing a brief in these appeals.
As was the case with his unsuccessful attempt to obtain relief by writ in the Supreme Court of Kentucky, Wes’s assertions in these appeals consist only of vague and unsupported allegations that the trial judge and attorneys engaged in fraud, conspiracy and misconduct all calculated to deprive him of an alleged “vested liberty interest” as a parent to his minor child.

Id. at pp. 1-2.

Further, a recent Court of Appeals opinion addressed the dismissal of claims brought by Collins against the trial judge, his former spouse’s attorney, the former Chief Justice of this Court, two assistant county attorneys, the Kentucky Bar Association and the Judicial Conduct Commission. Collins v. Brown, 2010 WL 686174 (Ky.App.2010) (unpublished). Collins’s complaint in that case alleged that the defendants were part of a wide-ranging “Mixed War conspiracy” against him. In affirming the dismissal, the Court of Appeals reiterated Collins’s actions as set out in its previous opinion and added:

After our [previous] opinion was rendered, but before the Supreme Court had denied discretionary review, Wes filed the instant complaint. Therein, Wes again contended the trial judge, two assistant county attorneys, and his ex-wife’s attorney committed misdeeds against him during the divorce action. Like his prior filings, the complaint contained numerous vague and unsupported allegations of a grand conspiracy involving fraud and misconduct calculated to harm him and improperly benefit his ex-spouse. He also alleged bad acts against the Chief Justice of the Supreme Court of Kentucky, the KBA, and the JCC, apparently under some theory of vicarious liability, complicity, or negligent supervision, although it is difficult, if not impossible, to ascertain from the complaint the basis or applicability of any such theory. Most, if not all, of the issues raised in the civil complaint had been previously asserted in earlier litigation.

Id. at p. 2 (footnotes omitted).

In the midst of Collins’s baseless and often irrational claims before the Kentucky Court of Justice, Collins also filed suit in federal court against then-Chief Justice of the Kentucky Supreme Court, Joseph E. Lambert. Collins v. Lambert, 2007 WL 293876 (E.D.Ky.2007) (unpublished). In dismissing this action, the United States District Court for the Eastern District of Kentucky reiterated the facts set out in the Kentucky Court of Appeals opinion. The federal court quoted Collins’s most concise allegation against Chief Justice Lambert as follows:

He has turned a blind eye to the Plaintiffs contentions and evidence in support of his claims. Apparently he is setting the example of the policy of bad faith conduct under color of law, showing to be wantonly tolerant of it, and thus far remaining silent and nonfeas-ant.

Id. at p. 2. The federal court noted that Collins’s apparent support for his allegation consisted merely of copies of one-sentence orders entered by the Chief Justice denying Collins’s claims for injunctive relief.

In her response before this Court, Chief Judge Combs explains that all three opinions demonstrate Collins’s baseless and irrational perception that the judicial system is engaged in an ongoing conspiracy to injure him. Chief Judge Combs also refers this Court to Collins’s repeated improper ex parte contacts with judges, the most egregious of which is well documented in a judge’s recusal order, which stated:

The appellant [Collins] has been instructed several times that attempts to contact the judge are improper and that any material to be submitted to the Court must be filed in the office of the clerk. In spite of repeated warnings, the appellant has continued to contact the presiding judge by e-mail, by fax, and by telephone. The appellant has also made contact with members of the judge’s family and has caused a “pleading” to be inserted into the newspaper delivered to the judge’s home.

It was the culmination of all of these events, along with Collins’s recent arrest for violating 18 U.S.C. § 922(g)(1) (possession of firearm by a convicted felon), that led to the entry of the Order prohibiting Collins from physically entering the Court of Appeals Offices.

Collins alleges that Chief Judge Combs was without jurisdiction or authority to enter the Order and that the Order is arbitrary, irrational, and unenforceable. We address each argument in turn.

ANALYSIS

I. Standard of Review

Collins seeks declaratory, injunc-tive and mandamus relief in this Court. Regardless of the characterization of the type of relief sought, Collins’s request, fundamentally, is that this Court compels Respondent to rescind the subject Order and/or prohibit Respondent from enforcing the Order. Ordinarily, original proceedings are not appropriate in this Court except in very limited circumstances. However, because of the unique nature of the Order that Collins challenges, we agree that Collins is entitled to invoke the original jurisdiction of this Court to seek a writ, whether it be characterized as a writ of mandamus or a writ of prohibition. In Russell County, Kentucky Hosp. Dist. Health Facilities Corp. v. Ephraim McDowell Health, Inc., 152 S.W.3d 230 (Ky.2004), this Court explained that original writ proceedings are available in the Supreme Court to challenge an interlocutory order of the Court of Appeals.

Nevertheless, writs of mandamus or prohibition are extraordinary remedies and are appropriately considered only where the lower court is acting beyond its jurisdiction or where the lower court is acting erroneously, although within its jurisdiction, but no adequate remedy by appeal or otherwise exists and failure to grant the writ will result in great and irreparable injury. Kentucky Farm Bureau Mut. Ins. Co. v. Wright, 136 S.W.3d 455 (Ky.2004). In this instance, Collins explicitly claims entitlement to relief on the first ground, i.e., that Respondent was without jurisdiction to enter the order. Furthermore, we construe Collins’s additional challenge of the order as “arbitrary, irrational, and unenforceable,” as implicating the second ground as well, and therefore address each contention in turn.

II. Chief Judge Combs Was Not Without Jurisdiction or Authority to Issue the Order Prohibiting Collins From Physically Entering the Court of Appeals Offices

Collins asserts that Chief Judge Combs usurped this Court’s exclusive authority over the administration of the Court of Justice. He also argues that Chief Judge Combs was without jurisdiction to enter the subject Order because it was not associated with a particular ease and, therefore, cannot be said to be an order aiding in the Court’s appellate jurisdiction.

Concerning his assertion that Chief Judge Combs usurped this Court’s authority, Collins correctly points out that SCR 1.010 states, “The policymaking and administrative authority of the Court of Justice is vested in the Supreme Court and the Chief Justice.” Further, SCR 1.030(6)(b) provides, “In addition to the powers and duties imposed by these rules, the chief judge [of the Court of Appeals] shall have such other powers and duties as the Supreme Court by rule or special order shall direct.” However, Collins overlooks decisional law that confirms the inherent authority of any court to manage its affairs and to assist the administration of justice. Specifically, “it has generally been recognized that courts (even without express authority given by the constitution, statute, or rule of a supreme court of a state) have inherent power to prescribe rules to regulate their proceedings and to facilitate the administration of justice.” Wright, 136 S.W.3d at 459 (quoting Craft v. Commonwealth, 343 S.W.2d 150, 151 (Ky.1961)).

For example, in Craft, our predecessor Court addressed whether Jessamine Circuit Court had the authority to adopt a particular rule of practice in its court. In validating the court’s authority, the Court quoted Warfield Natural Gas Co. v. Allen, 236 Ky. 358, 33 S.W.2d 34 (1930), as follows:

To accomplish the above ends, and as an aid in the orderly dispatch of litigation, courts are vested with the right to adopt and promulgate reasonable rules for the guidance of litigants and their counsel and which they are as much under duty to observe as if the rules had been created by statutory enactment in the form of a Code of Practice. Such right of adoption and promulgation inheres to an appellate court the same as it does to a trial court.

Craft, 343 S.W.2d at 151.

While Craft involved a particular court’s authority to promulgate rules of practice binding on all litigants and attorneys appearing before it, Wright involved a trial court’s authority to enter an order that was specific to the parties in a certain case. Although no Kentucky decision appears to have addressed an order similar in nature to the Order entered here, the foregoing cases confirm a court’s inherent authority to do so, provided that the order is substantively reasonable.

As to Collins’s claim that Respondent was without jurisdiction to enter the Order because it was not associated with a particular case, a similar argument was rejected by the United States Court of Appeals for the Seventh Circuit. In In re Chapman, 328 F.3d 903 (7th Cir.2003), an executive committee of the U.S. District Court entered an order imposing restrictions on Chapman’s filings of civil suits in the district court. The order was entered in response to Chapman’s prolific and often frivolous filings in the district court. In substance, the order was a regulatory injunction that subjected all of Chapman’s future pleadings to a screening process prior to forwarding to the clerk for filing. Answering Chapman’s jurisdictional chai-lenge based on the order’s lack of association with any particular case, the Seventh Circuit Court of Appeals stated:

Indeed, the Committee’s action, rather than being a new civil lawsuit commenced against Mr. Chapman, is nothing but an extension of one of his numerous civil suits (which subjected him to the personal jurisdiction of the court) and an exercise of the court Committee’s inherent power to manage and control the litigation coming before the district court. The Executive Committee, like an individual district judge, has the power to enter judicial orders, such as injunctions. We hold that the Committee was acting within its power to impose filing restrictions against Mr. Chapman, and his challenge to the Committee’s jurisdiction is without merit.

Id. at 905 (citations omitted). We agree with the sound reasoning utilized by the Seventh Circuit Court of Appeals. Accordingly, Collins’s claim that Respondent did not have jurisdiction to enter the Order is without merit.

III. The Order Prohibiting Collins From Physically Entering the Court of Appeals Offices Was Not Arbitrary or Irrational

Although we have established that Respondent had inherent authority to enter the Order, we must now address whether that authority was properly exercised in this case. Collins asserts that the Order is unenforceable because it is arbitrary and irrational. Because there is ample documentation in public records, as set out above, to support entry of the Order, we reject Collins’s contention.

Several federal courts have approved of prospective substantive restrictions on a particular litigant’s right to access the courts in the form of subjecting the litigant’s pleadings to a screening process, or even imposing a complete bar to future filings related to a particular case. See e.g., Chapman, 328 F.3d 903 (subjecting future pleadings to screening process); Stimac v. U.S. Dep’t of Justice, 917 F.2d 1306 (7th Cir.1990) (prohibiting further filings without court’s permission); and Sassower v. Abrams, 833 F.Supp. 253 (S.D.N.Y.1993) (issuing injunction allowing other federal district courts to summarily dismiss lawsuits filed in, or removed to, federal court if such lawsuits involved the subject matters enumerated in the injunction).

The Order concerning Collins is even less restrictive because it does not impose substantive restrictions on his ability to file pleadings. And, in fact, the standard filing procedures have been relaxed such that Collins is permitted to submit filings via fax or e-mail. The only restriction imposed by the Order is a restriction on Collins’s physical entry into the Court of Appeals Offices. A nearly identical restriction was upheld by a federal court in In re Prewitt, 280 F.Supp.2d 548 (N.D.Miss.2003), where Prewitt, an attorney, was banned from entering the court house. In imposing the restriction, the court stated:

Prewitt has become adept at punishing those with whom he has a personal conflict by filing and pursuing frivolous lawsuits against them.
* * ⅜ * ⅜ ⅜
Prewitt has filed numerous frivolous and malicious actions in this and other courts, has made a nuisance of himself in the Greenville courthouse itself and has set forth in writing his belief that he is carrying on a holy war against several judicial officers of this court. As a sanction for these actions the court hereby bars Prewitt from entering the third floor of the federal courthouse in Green-ville, Mississippi.... The fact that Prewitt poses a security risk favors a complete and permanent ban from the courthouse. However, the fact that Prewitt is an attorney would seem to require some relaxation of that requirement because he may, at some point, be required to attend a trial or hearing in federal court. Should Prewitt wish to file pleadings or other papers with this court, he must do so by U.S. Mail or private courier. Should Prewitt wish to conduct legal research, he must do so in some other location. The court may, however, for good cause shown, permit Prewitt to attend hearings for which his presence is required in one of the courthouses in this district. Should Prewitt’s presence at the courthouse be so required, a United States Marshal shall escort him to and from the hearing and accompany him at all times when he is in the courthouse.

Id. at 551, 564. Significantly, the Prewitt Court also stated, “This court has a duty to the employees, litigants, attorneys and other rightful users of the Federal Courts in the Northern District of Mississippi to ensure their safety and to maintain appropriate decorum.” Id. at 563.

Likewise, the Kentucky Court of Justice has a duty to ensure the safety of court personnel. In discharging that duty, Respondent entered the subject Order against Collins. Given Collins’s history of improper contacts with the judiciary despite repeated warnings to refrain from such activities as well as Collins’s seemingly irrational animus towards the judiciary, which is well documented in prior court opinions, Respondent appropriately exercised her authority in banning Collins from the Court of Appeals Offices. Further, Respondent tempered the effects of the ban by expanding the methods Collins may utilize for the submission of any future pleadings. Respondent notes that Collins has taken advantage of these methods and has filed several pleadings since the date of the Order, demonstrating that Collins’ ability to conduct legitimate business with the Court of Appeals has not been hampered by the Order.

Furthermore, we note that the subject Order is effective “until such time as [it] may be rescinded by a subsequent order of this Court.” Significantly, Collins does not present us -with a situation where his presence is warranted in the Court of Appeals for an oral argument, hearing, or other proceeding that a party-litigant is legally required or entitled to attend. Presumably, if such an instance arises where an order sets an oral argument or other hearing which Collins would be entitled to attend, appropriate arrangements would be made to allow Collins’s physical attendance. Indeed, the Order, by its own terms, assures that “This Court will accommodate Mr. Collins’s need to conduct legitimate business.”

In sum, Collins has not demonstrated that Respondent acted erroneously in issuing the Order. Collins’s failure in this regard is fatal to his claim for relief regardless of any professed irreparable injury or the availability of alternate adequate remedies. Therefore, we need not conduct a separate analysis of these two additional requirements for obtaining a writ.

IV. Chief Judge Combs’s Response is Proper for Our Consideration

Collins seeks to have Chief Judge Combs’s response stricken. He first argues that Respondent erroneously characterizes his claim as a writ of prohibition when, in fact, it is an original proceeding. However, as outlined above, under these circumstances, a writ is an appropriate original action in this Court; thus, the two characterizations are not inconsistent. Moreover, CR 76.36 explicitly permits the filing of a response to any petition for relief that is filed as an original action in an appellate court.

He next argues that this Court may not take judicial notice of the facts referenced in the response. However, the response simply cites to the Court of Appeals’ own prior opinions, one federal court opinion, as well as to a recusal order, all of which are public records and appropriate subjects of judicial notice. KRE 201, enacted in 1990 provides in pertinent part:

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is ... (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

The rule also provides that a court may take judicial notice sua sponte, at any time during the proceedings. KRE 201(c) and (f). We recognize that earlier decisional law limited judicial notice of court records to those in the same court, involving the same parties and issues, or records in the current proceeding. See, e.g., Maynard v. Allen, 276 Ky. 485, 124 S.W.2d 765 (1939); Jones v. Bell, 304 Ky. 827, 202 S.W.2d 641 (1947). However, KRE 201 expands the prior rule.

For example, in Doe v. Golden & Walters, PLLC, 173 S.W.3d 260 (Ky.App.2005), the Kentucky Court of Appeals took judicial notice of an opinion rendered by the U.S. Court of Appeals for the Sixth Circuit, involving the same parties and subject matter. The Court of Appeals stated, “ [although not yet final, the fact of the Sixth Circuit’s opinion in Doe v. LFUCG[, 407 F.3d 755 (6th Cir.2005) ] and its contents cannot reasonably be questioned. Moreover, this information is capable of ready determination as the opinion is available from the Sixth Circuit, the Federal Reporter, and Westlaw.” Id. at 265-66 (footnotes omitted). Likewise, the opinions referenced in this matter are readily available from the Kentucky Court of Appeals or the U.S. District Court for the Eastern District of Kentucky and on West-law. Additionally, the recusal order referenced in this matter was entered in one of Collins’s previous appeals in the Court of Appeals. Thus, these opinions and order, and their contents, are appropriate for this Court to judicially notice. Thomas v. Judicial Conduct Commission, 77 S.W.3d 578 (Ky.2002), is also instructive. In Thomas, this Court approved of the Judicial Conduct Commission’s decision to take judicial notice of its own prior rulings concerning Thomas’s disciplinary history in evaluating the appropriate sanction for the new charges against Thomas. As we have determined that the Court of Appeals Order concerning Collins is merely an extension of his previous, numerous appeals, Thomas lends support for this Court to judicially notice the referenced opinions and order.

Finally, Collins asserts that Chief Judge Combs’s response should be stricken because it is signed by Ann Swain, the chief staff attorney for the Court of Appeals. Collins is correct that SCR 1.030(5) prohibits officers and employees of the Court of Appeals from practicing law. However, Collins misconstrues the role of officers and employees. As the Order being challenged was an order entered by Chief Judge Combs in her official capacity and on behalf of the Kentucky Court of Appeals, defending the Order is an appropriate function of an officer or employee of the Court of Appeals. Thus, Collins’s contention is without merit.

CONCLUSION

Because the evidence supporting entry of the Order was appropriate for judicial notice by this Court, we decline to strike Chief Judge Combs’s response. Collins’s motion to reconsider this Court’s previous order passing his motion to strike for consideration with the merits of this case is denied as moot. Furthermore, Chief Judge Combs had both jurisdiction and inherent authority to enter the subject Order, banning Collins from the Court of Appeals Offices, and she appropriately exercised that authority. Not only was the Order justified by legitimate safety concerns, it was tailored appropriately to ensure Collins’s continued ability to conduct legitimate business with the Court of Appeals. Accordingly, Collins is hot entitled to relief from this Court.

MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, SCOTT, and VENTERS, JJ„ concur. SCHRODER, J., not sitting.