author: Justice SCOTT.

text:
    Antwan Ladale HAYES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000087-MR.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
    As Corrected Sept. 14, 2010.

      Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appel-lee.
   Opinion of the Court by

Justice SCOTT.

Appellant, Antwan Ladale Hayes, was sentenced to twenty years’ imprisonment after he was convicted in the Hardin Circuit Court of second-degree manslaughter and first-degree criminal abuse. He appeals that conviction to this Court as a matter of right. Ky. Const. § 110(2)(b). For reasons explained below, we affirm the Hardin Circuit Court.

I. Background

Because Appellant seeks relief from three rulings detached from the facts of this case — one concerning voir dire and one concerning a motion to suppress the fruits of a search warrant — we find a full recitation of the events giving rise to this appeal unnecessary. However, for further clarity of the issues below, we elaborate on the events surrounding the rulings complained of by Appellant.

On August 6, 2008, one day before trial, Appellant moved the trial court to suppress the fruits of a search warrant issued to search his home, alleging that the affidavit supporting the warrant contained intentionally or recklessly false statements and that the affidavit omitted a material fact. The trial court denied the motion.

The next day, the court’s assigned panel of seventy-six prospective jurors appeared for trial. Out of those, thirty-six were drawn as the initial panel for voir dire. The following day, the trial court informed the parties that an additional ten jurors had just completed service in another division of the Hardin Circuit Court, and would be added to the court’s panel. Appellant objected. In overruling the objection, the trial court noted that the ten jurors had been properly selected and qualified. The judge then decided to hold them out of the full panel temporarily, but seated them in the courtroom, in an attempt to “avoid the issue” reasoning that the ten jurors might not be needed if the jury was completed before exhausting the court’s full beginning panel. Appellant objected again, arguing that the exposure and atmosphere for these ten jurors would not be the same because voir dire had already begun. The judge overruled this objection.

Ultimately, however, the ten were required as the trial court exhausted its original panel. At that point, the trial court informed the parties that it would add the ten jurors. Appellant objected, this time arguing that his right to a randomly selected jury would be affected and that such a process would be a substantial deviation from the prescribed jury selection process in this Commonwealth. In overruling the objection, the trial court found that the ten jurors had been randomly selected by the Administrative Office of the Courts (AOC), that they were a part of the total court pool, and that the only thing not random was holding them out until the full beginning panel had been exhausted. The judge also noted that there was no manipulation because “nobody did this on purpose.” Ultimately, Appellee exercised a peremptory challenge on one of the ten jurors.

In addition, before these jurors were added, Appellant had moved to strike another juror, V.S., for cause, reasoning that because she had been “beat” by her sister on at least two occasions, she had suffered a crime too similar to that for which Appellant was accused and she was therefore unqualified to serve. This challenge was denied. Appellant again moved to strike V.S. for cause when she revealed that she was a relative of someone allegedly murdered by followers of Charles Manson. This challenge was also denied and V.S. was seated on the jury.

Following the rendering of a guilty verdict, Appellant was sentenced to twenty years’ imprisonment. This appeal followed.

II. Analysis

A. The Venire

Appellant first argues that his right to a randomly selected jury was compromised by the addition of the ten additional jurors to the court’s panel. He further argues that by adding these ten jurors, the trial court substantially deviated from the jury selection process controlled by the statutes and the Rules of Criminal Procedure in this Commonwealth. In essence, Appellant suggests that the trial should have been continued and extra jurors selected and summoned anew from the master list in court. RCr 9.30(l)(e); Administrative Procedures of the Court of Justice, Part II, Section 3.

1. Substantial Deviation

We first address Appellant’s argument that the trial court deviated from procedures governing the jury selection process. The selection and regulation of jurors is controlled in part by RCr 9.30 which provides:

(l)(a) In a jury trial in circuit court the clerk, in open court, shall draw from the jury box sufficient names of the persons selected and summoned for jury service to compose a jury as required by law. If one or more of them is challenged, the clerk shall draw from the box as many more as are necessary to complete the jury.
(b) If there is an irregularity in drawing from the jury box, the names of the jurors so drawn shall be returned to the box.
(c) When it appears that the names in the jury box are about to become exhausted, the judge may obtain additional jurors by drawing from the drum, or, with the consent of the parties, by ordering the sheriff or a bailiff appointed by the court to summon any number of qualified persons.
(2) The jury-selection process shall be conducted in accordance with Part Two (2) of the Administrative Procedures of the Court of Justice.

However, KRS 29A.060 also reflects on the appropriate use of jurors, providing in pertinent part:

(2) Any petit juror assigned to a judge of Circuit or District Court may be used by any other judge of any other branch or division of Circuit or district Court when jurors are needed.

This statutory provision is echoed in Part II, Section 10(5) of Administrative Procedures of the Court of Justice (Section 10(5)), which reads:

In the event that all of the cards [the jurors] are exhausted before a jury is chosen, the judge shall ascertain whether jurors who have been assigned to another courtroom are available. Jurors assigned to any district or circuit court may be used in any other division when jurors are needed.

Admittedly, over the years, we have allowed RCr 9.30 and applicable statutes and our Administrative Rules of Procedure regarding jury selection to drift apart by the insertion and use of differing language. However, interpreting RCr 9.30, and other statutes regulating the selection of juries in this Commonwealth, we have held that when a court, over the objection of any party, substantially deviates from these procedures, it commits a structural error deserving appellate correction. Robertson v. Commonwealth, 597 S.W.2d 864, 865 (Ky.1980). We corrected such an error in Robertson v. Commonwealth, where the trial court called jurors during voir dire in order of their assigned number, and replaced each stricken juror with the next juror in line, sequentially. Id; see also Allen v. Commonwealth, 587 S.W.2d 264 (Ky.App.1979) (where the Kentucky Court of Appeals corrected an identical error to that in Robertson, supra). We found the Robertson procedure to be a substantial deviation from the then established procedures because it equipped the parties with the ability to manipulate their strikes to obtain a particular person. Id. Our predecessor Court, interpreting KRS 29.280(1), also found a substantial deviation requiring reversal where the trial court turned to that statute’s alternate jury selection process before completing its primary steps. Conner v. Denney, 521 S.W.2d 514 (Ky.1975).

In any event, we find this case more analogous to cases where we found no deviation, rather than where we have. In Copley v. Commonwealth, we found no deviation where an existing pool of prospective jury members was merged with more members the day before trial, holding that there is no requirement that the initial pool be exhausted before adding prospective jury members to the pool. 854 S.W.2d 748, 750 (Ky.1993) (emphasis added). We have also approved of the Kentucky Court of Appeals’ opinion in Asher v. Commonwealth, where it found no error in a trial court’s refusal to wait for the addition of jurors deliberating on another case before commencing voir dire in a new trial. Copley, 854 S.W.2d at 750 (citing Asher v. Commonwealth, 614 S.W.2d 249 (Ky.App.1980)). Moreover, in our most recent decision on the issue, we found no error where a trial court “added” a venireman to the panel after he was inadvertently left out of the selection process, even though voir dire had already begun. Campbell v. Commonwealth, 260 S.W.3d 792 (Ky.2008).

With these guiding principles in mind, we turn to the question of whether the trial court substantially deviated from the prescribed jury selection procedures when it added the ten jurors from another division of the same circuit to its panel. In answering this question in the negative, we consider the jury panel contemplated by RCr 9.30 to encompass the entire jury pool for the trial courts of a particular jurisdiction, not just the members of one panel assigned for operational and management purposes to a particular court. Thus, because the jurors added during the trial below were at all times part of one jury pool subject to the use of a unified court system in Hardin County, we find that no deviation occurred. James v. James, No. 2008-SC-000163-DG, 2010 WL 2016520, *4 (Ky. May 20, 2010) (holding the judicial system in this Commonwealth is one system designed to operate efficiently in the attainment of fairness and justice). See generally Baze v. Commonwealth, 276 S.W.3d 761, 767 (Ky.2008).

Our holding that a trial court does not deviate from the prescribed jury selection procedures when it adds jurors from another division to its jury panel derives from a review of RCr 9.30 as a whole, as well, as the instruction RCr 9.30(l)(c) provides to a court facing a nearly exhausted panel, which reads in pertinent part:

(l)(c) When it appears that the names in the jury box are about to become exhausted, the judge may obtain additional jurors by drawing from the drum, or, with the consent of the parties, by ordering the sheriff or a bailiff appointed by the court to summon any number of qualified persons.

RCr 9.30(l)(c). RCr 9.30 in its instructions, is referring to the summoned and available jury pool, which from day to day in a multi-faceted court system varies depending upon the needs of the several trial courts. It contemplates more than the exhaustion of one trial court’s operating panel. It would be an odd rule indeed if it required one court to summon new jurors while there remain available for use other jurors in the pool who are not the at the time in service with another trial court of the county. That is clearly not the intent of the rule.

The initial separation of the jury pool and subsequent assignment to a certain division of one court is for operational management purposes only, so that each division or court may draw from a panel without waiting for another to complete its selection from an at-large pool. This does not mean that a court cannot utilize those other jurors when available.

Indeed, we recognize that court divisions are created for operational and management purposes. Thus, we conclude that when the citizens are summoned for jury service, they are for a county’s court system as one judicial system and not just for one division or court. Therefore, simply because the ten jurors were active beforehand in another division does not mean that they cannot properly be added to the panel used by a different court or division of the same jurisdiction. Accordingly, we hold that a jury pool remains one pool for each trial court jurisdiction not just for one judge or court.

Having concluded that the ten jurors who were “added” to the initial panel were at all times a part of its jurisdiction’s jury pool, we hold that the trial court did not deviate from RCr 9.30 by adding them.

2. Randomness

Appellant also claims that the trial court affected the randomness of the jury selection process by holding the ten members back until needed, so that their names would be drawn from last. The Commonwealth responds that because these prospective jury members were a part of the randomly selected pool the randomness is not affected.

At first blush, Appellant’s argument seems to have merit. By holding out the ten potential jurors so that their names were drawn upon last, it seems the trial court somewhat altered the randomness of the selection process. Indeed, we have considered the intentional nature of similar actions, particularly where a class of people has been purposefully excluded. See Partee v. Commonwealth, 652 S.W.2d 89 (Ky.1983). We also considered whether the trial court’s behavior was intentional in Campbell, where we held that a prospective jury member inadvertently left out of the selection process may be added back to the panel, having been persuaded by the fact that there was no evidence that his name was left out as a result of “an intentional act to reserve him for last.” 260 S.W.3d at 798. Here, the trial court left the ten jurors out of the selection process until it exhausted its initial panel. Yet, given the meaning of the term “randomness,” we conclude it was not affected in this instance.

In Williams v. Commonwealth, the Kentucky Court of Appeals defined randomness to mean “at no time at all, will anyone involved be able to know in advance, or manipulate, the list of names who will eventually compose the empanelled jury.” 734 S.W.2d 810, 812 (Ky.App.1987). We have previously endorsed that rule, and apply it here. See Hodge v. Commonwealth, 17 S.W.3d 824, 840 (Ky.2000); Wagers v. Commonwealth, No. 2001-SC-0807-MR, 2003 WL 21357605, *1 (Ky. June 12, 2003).

However, by later adding the ten names to the panel when it needed them, the trial court did not create a situation where anyone would be able to know the names of the members that would eventually compose the jury. Those specific names were not pre-selected by the trial court. The ten jurors added near the end of the selection process had been randomly selected by the AOC, and had been previously serving on another jury panel with the other division of the circuit court. And once added, they were subsequently subjected to voir dire like all the other members.

Far from analyzing this case based on statistics, we note that the court’s actions did not give those ten jurors any better chance to serve on the panel than it would for additionally new jurors summoned as per RCr 9.30(l)(c)’s alternative methods of jury selection. Indeed, all of the ten members could have been stricken for cause, and may have never taken their seat on this jury had there been appropriate reasons.

It appears to us that under normal circumstances where a trial court deliberately segregates a portion of the jury pool so as to intentionally manipulate the composition of the jury panel, such an action would give rise to error. However, we do not have that here. The motive behind the trial court’s act of holding these jurors until they were actually needed was in response to Appellant’s objection and on the chance that they would never be needed, not to intentionally alter the composition of the jury.

For the abovementioned reasons, we hold that there was no reversible error in the jury selection process in this case.

3. Juror Y.S.

Appellant next argues that the trial court erred by not striking juror V.S. on two separate occasions: first, when V.S. notified the court that her sister had “beat” her when the two were around the age of fifteen to seventeen; and, second, when V.S. notified the court that she was related to someone allegedly murdered by followers of Charles Manson.

The Commonwealth asserts that the trial court did not abuse its discretion because V.S. stated that the two incidents would not affect her judgment in this case.

Under RCr 9.36(1) a motion to strike for cause must be granted where there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence. This Court will not disturb a trial court’s ruling on this issue unless that court abuses its discretion. Ratliff v. Commonwealth, 194 S.W.3d 258, 265 (Ky.2006). In determining whether a court abuses its discretion we consider whether that court’s decision is arbitrary or capricious under the circumstances. Kentucky Nat’l Park Com’n v. Russell, 301 Ky. 187, 191 S.W.2d 214 (1945). And where a trial court makes findings of facts regarding a juror, that decision is reviewed under a clearly erroneous standard. See Shane, 243 S.W.3d at 338. Applying these rules, we have held that the mere fact that a potential juror has been the victim of a similar crime alone is insufficient to warrant removal for cause. Bowling v. Commonwealth, 942 S.W.2d 293, 299 (Ky.1997); Richardson v. Commonwealth, 161 S.W.3d 327, 330 (Ky.2005).

Here, Appellant argues that V.S. was not qualified to sit as a juror because she did not “unequivocally” state that she would not be affected by the “fight” with her sister. Relying on our holding in Richardson, Appellant argues that an unequivocal statement is required before a trial court can determine that a victim who has suffered a similar crime may serve as a juror.

The Commonwealth responds by arguing that the trial court’s decision was not an abuse of discretion where V.S. testified that neither the fight nor the murder of her relative would affect how V.S. would evaluate the evidence or how she would judge this case. We agree.

Appellant’s reliance on Richardson is misplaced. In Richardson, we dealt with the issue of whether a juror could sit in a case where the defendant is charged with a crime similar to that previously suffered by the subject juror. In answering the question in the affirmative, we noted that the subject juror never “made [any] statements indicating that she had any bias or preconceived opinions of Appellant’s case.” Id. at 331-332. And while it is true that we were influenced by the fact that the juror in that case “unequivocally stated” that she could impartially decide the case, we also reiterated the longstanding rule that the trial court is in the best position to evaluate a juror’s demean- or and answers during voir dire. Bowling, 942 S.W.2d at 300; see also Whalen v. Commonwealth, 891 S.W.2d 86 (Ky.App.1995) overruled on other grounds by Moore v. Commonwealth, 990 S.W.2d 618 (Ky.1999). Thus, even though we found the unequivocal statement influential in Richardson, we never concluded it to control as determinative. We did not mean there, nor do we hold here that a juror must utter magic words before a trial court can determine the probability of bias or prejudice. Richardson, 161 S.W.3d at 330. We reiterate that “[i]t is the probability of bias or prejudice that is determinative in a ruling on a challenge for cause,” and we will not disturb a trial court’s ruling on this issue absent an abuse of its discretion. Id. (emphasis added).

Turning to the case at bar, we observe that V.S. never made any statements indicating that she had any bias or preconceived opinions about this case. She in fact stated that neither the altercation she had with her sister nor the fact that her relative was allegedly killed by a member of the Manson “family” would influence her ability to serve. And even if we were to take V.S.’s statement that she “didn’t think” she would be affected by her previous altercation with her sister in a vacuum, the trial court’s ultimate interpretation of that statement controls unless clearly erroneous. See Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.2007) (issues of fact are reviewed under a clearly erroneous standard). Here, having the best view of V.S.’s demeanor, the trial court found that the two subject instances would not affect V.S.’s ability to serve distinguishing the altercation with her sister and the murder of her relative from the case being tried. We cannot say under the facts of this case that the trial court abused its discretion.

B. Search Warrant

Appellant last argues that the trial court committed reversible error by refusing to suppress evidence procured via an unconstitutional search warrant. He urges this Court to find that the affidavit used to support the warrant contained a material omission or intentionally or recklessly false statements.

The Commonwealth responds by noting that Appellant failed to meet its burden at the suppression hearing in the court below and has failed to meet that burden here. We agree with the Commonwealth.

When a defendant attacks the fruit of a search warrant based on the premise that the information supplied to the issuing magistrate is inaccurate, he must move the trial court to suppress the evidence in a hearing required by RCr 9.78. At that hearing, the defendant is required to show that: (1) the affidavit contains intentionally or recklessly false statements, and (2) the affidavit, purged of its falsities, would not be sufficient to support a finding of probable cause. See Commonwealth v. Smith, 898 S.W.2d 496, 503 (Ky.1995) (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). The defendant must carry the same burden where he asserts that the information supplied to the magistrate omitted material facts. Smith, 898 S.W.2d at 503. An appellate court in this Commonwealth will review the trial court’s findings of fact on appeal, and affirm them where they are supported by substantial evidence. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002).

Appellant complains that the affidavit provided to the judge issuing the search warrant in this case produced an unconstitutional warrant because (1) the affidavit contained the intentionally and recklessly false statement that “Social Services had an open case on [Appellant] for physical abuse on the same victim child from three months ago;” and (2) the police intentionally omitted from it the fact that Social Services did not have a currently open case on Appellant.

Appellant argued before the trial court that there was not an open case with Social Services when the affidavit was sworn and that the police recklessly or intentionally led the issuing judge to the opposite conclusion by using the phrase “had an open case.” In that same vein, Appellant also argued that the police omitted the fact that there was not an open case at the time the affidavit was sworn. The trial court disagreed, reasoning that the statement “says pretty clearly that the case was from three months ago,” and found that the statement did not lead the issuing judge to believe that there was an open case at the time the affidavit was sworn. We now address the correctness of that decision.

Appellant urges us to find that the phrase “had an open case” led the issuing judge to believe that there was a current, active and presently open case on Antwan Hayes. Appellant further asks us to hold that by not informing the judge that the ease on him was closed, the police intentionally omitted a material fact. We find these inquiries superfluous and refuse to address them because we are unable to determine whether there was an open case on Appellant at the time the affidavit was sworn and thus we cannot first determine, as we must, whether that statement was false. Therefore, even if we assumed, ar-guendo, that the statement “had an open case” led the issuing magistrate to believe there was indeed an open case on Appellant, the record reveals no evidence of the falsity of that statement. Appellant has not met his burden. See State v. Smith, 397 So.2d 1326 (La.1981).

We refuse to agree with Appellant on the issue of whether “had an open case” produced an unconstitutional warrant since we are provided with no evidence regarding the accuracy of that statement. Conjecture without evidence -will not be considered, especially where it is not first presented to the trial court and subsequently provided to us on appeal. Piper v. Piper, No. 2008-CA-000588-MR, 2009 WL 2408377, *6 (Ky.App. Aug. 7, 2009). Having found that Appellant has not demonstrated that the affidavit contained false statements, our analysis of whether the trial court erred by not suppressing the evidence is ended. We find no error.

Conclusion

For the aforementioned reasons, we affirm the Hardin Circuit Court.

All sitting. All concur.

      . In Robertson, the Court addressed RCr 9.30(l)(a) and KRS 29A.060, a now superseded statute, which provided in pertinent part:
      (2) To select a grand jury or a petit jury in circuit court, the clerk shall:
      (a) Draw forty (40) names at random from the jury wheel;
      (b) List the names, in the order drawn, from one (1) to forty (40);
      (c) Place forty (40) numbered balls in a box and shake the box;
      (d) Draw the required number of balls, dependent on the number of jurors required plus alternates, from the box and record the number of each ball as it is drawn.

      (4)The names corresponding to the numbers on the balls which have been drawn shall constitute the petit jury. When alternate jurors are permitted the last ball or balls drawn, as the case may be, will represent the alternate jurors.
      (5) As jurors are excused and new jurors are required additional balls shall be drawn from the box, one (1) for each juror required, until all of the balls in the box have been exhausted.
      (6) In the event that all of the balls in the box have been exhausted the box shall be refilled utilizing the process required by subsection (1) to (4) of this section.

      . Using the Robertson procedure, the trial court seated jurors 1 through 13. Where any of the 13 were stricken their replacement was provided by the next in line, number 14. After that, any subsequent juror stricken was replaced with juror number 15 and so on, sequentially.

      . KRS 29.280(1), a now superseded statute, but one similar to the rule in RCr 9.30 provided in pertinent part:
      "At the time of selecting the petit juries from the list of names drawn from the drum for that purpose, if there fail to attend or be excused by the court for good cause, such a number as will not leave the number of jurors required, the judge shall draw from the drum, in open court, double the number of names to supply the places of those excused and those failing to attend, and the jurors so drawn shall be summoned by the sheriff. If any of those so drawn and summoned are likewise excused or fail to attend, the judge shall again draw from the drum, in open court, double the number of names to supply their places, and so on until the requisite number is obtained. If at any time during the term it becomes necessary to supply one or more jurors, double the number of names necessary for supplying their places shall be drawn from the drum and summoned by the sheriff. If the number of vacancies does not exceed three (3), the judge may direct the sheriff to summon bystanders to supply the vacancies, instead of drawing additional names from the drum.”

        Conner v. Denney, 521 S.W.2d at 515.

      . Under RCr 9.30(l)(c) a court that is about to exhaust its panel must turn to unsum-moned individuals by either drawing from the drum (which included only unsummoned individuals) or, with the agreement of the party, by ordering the sheriff or a bailiff appointed by the court to summon qualified persons (again, unsummoned individuals).

      . This is not a substantial deviation from the rules and statutes governing jury selection. It is such as was intended.

      .We do not mean to say that the new jurors added to the panel after voir dire has begun should not be subjected to the same questioning as those already empanelled. We take this opportunity to instruct trials courts to subject new jurors, who are added after voir dire has commenced, to such questioning as experienced by those already empanelled — as the parties, or either of them, desire.

      . Appellant was convicted of second-degree manslaughter and first-degree criminal abuse after being charged in die death of six year old M.L., the child of Appellant’s girlfriend.


source: Caselaw Access Project

author: TAYLOR, Judge.

license: Public Domain

text:
    James W. HUTCHERSON; and Sharon A. Hutcherson, Appellants, v. Glen HICKS, M.D., Appellee.
    No. 2009-CA-000370-MR.
    Court of Appeals of Kentucky.
    May 14, 2010.

      Jeffrey T. Sampson, Louisville, KY, for Appellants.
    Andrew N. Clooney, Louisville, KY, for Appellee.
    Before VANMETER, Acting Chief Judge; STUMBO and TAYLOR, Judges.
   OPINION

TAYLOR, Judge.

James and Sharon Hutcherson bring this appeal from a February 16, 2009, judgment of the Jefferson Circuit Court dismissing the Hutchersons’ medical malpractice action against Dr. Glen Hicks upon a jury verdict in his favor. We reverse and remand.

On May 18, 2000, the Hutchersons filed a complaint against, inter alios, Dr. Hicks and Cypress Medical Associates, P.S.C., alleging medical malpractice. At the time of the alleged malpractice, Dr. Hicks was employed by Cypress Medical. Although duly served with summons and a copy of the complaint, Dr. Hicks failed to file a responsive pleading, enter an appearance, or in any way respond thereto.

Almost three years later, on March 14, 2003, the Hutchersons filed a motion for default judgment pursuant to Kentucky Rules of Civil Procedure (CR) 55.01. By default judgment entered March 27, 2003, the circuit court granted a default judgment against Dr. Hicks as to liability only. A hearing was thereafter scheduled on June 24, 2003, to assess the amount of damages. A copy of the notice of hearing was sent to Dr. Hicks at his last known address, which was also his work address. Dr. Hicks failed to appear at the hearing to determine damages. By judgment entered July 17, 2003, the circuit court awarded the Hutchersons $211,953.39 in damages against Dr. Hicks. No appeal was taken from this judgment.

Some four years after the filing of the complaint and over a year and a half after entry of the default judgment, Dr. Hicks filed a motion to set aside the default judgment and the judgment for damages on November 10, 2004. Dr. Hicks admitted receiving proper and timely notice of the malpractice action by service of the summons and complaint on May 19, 2000. In a deposition, Dr. Hicks testified that he gave the notice to Dr. Anthony Remson, medical director of Cypress Medical, who responded that “I know who needs to know about this.” Thereafter, Dr. Hicks admitted that he took no further action in relation to the medical malpractice action. At the time, Dr. Hicks related that his medical malpractice insurance carrier was “Reliance” and that Reliance “had gone insolvent” sometime in 2001. In an attempt to obtain new malpractice coverage in 2002, Dr. Hicks further related that he asked the manager of his office to inquire about the status of the medical malpractice action and was told by the office manager that the action was “settled” and “in abeyance.” Dr. Hicks stated that he took no further action as to the medical malpractice action until he received notice in August 2004 of a cross-claim filed against him by Cypress Medical at which time he contacted an attorney.

In January 2005, the circuit court denied Dr. Hicks’ motion to set aside the default judgment. After reconsideration, on March 16, 2005, the circuit court entered an order to set aside the judgment as to damages and further held that Dr. Hicks would be permitted to participate in a damages hearing. The default judgment for liability was not set aside. Subsequently, the circuit court conducted another damages hearing in 2005 and then a jury trial in 2009 upon the sole issue of damages. The jury was instructed that Dr. Hicks was legally liable and was only instructed to determine the proper amount of damages. The jury returned a verdict of “0” as to damages. A final judgment reflecting the jury verdict and dismissing this action was entered February 16, 2009. This appeal follows.

The Hutchersons contend that the circuit court erred by setting aside the judgment awarding $211,953.39 in damages and by proceeding with a hearing on damages before the jury. Simply stated, the Hutch-ersons argue that the circuit court abused its discretion in setting aside the judgment assessing damages against Dr. Hicks. For the reasons hereinafter stated, we agree.

Generally, default judgments are disfavored in this Commonwealth, and the circuit court is vested with broad discretion to set aside such judgments. Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329 (Ky.2007). To set aside a default judgment, a party must show good cause, which includes:

(1) [A] valid excuse for the default; (2) a meritorious defense to the claim; and (3) absence of prejudice to the non-defaulting party.

PNC Bank, NA. v. Citizens Bank of N. Ky., Inc., 139 S.W.3d 527, 531 (Ky.App.2003)(quoting Sunrise Turquoise, Inc. v. Chemical Design Co., 899 S.W.2d 856, 859 (Ky.App.1995)).

In its opinion and order entered May 20, 2005, on a motion to alter, amend, or vacate the court’s April 4, 2005, opinion and order, the circuit court outlined its reasons for setting aside the judgment awarding damages:

This Court has based its decision on this issue on the authority contained in Howard v. Fountain, Ky.App., 749 S.W.2d 690 (1988). The Court therein stated that “fundamental fairness requires that a defaulting party be given notice of a damage assessment hearing where he has entered an appearance in the action prior to the hearing.” [M] at 693. The conduct which constitutes an appearance has been liberally construed. In Smith v. Gadd, Ky., 280 S.W.2d 495 (1955), an appearance is defined as where, “the defendant has voluntarily taken a step in the main action that shows or from which it may be inferred that he has the intention of making some defense.” [M] at 498.
First, Defendant Hicks asserts that he received no notice of that [damages] hearing. Second, upon receiving notice he attempted to have the default judgment and the damages award set aside, thus entering his appearance. While this Court has repeatedly declined to set aside the default judgment of liability, it has, in reliance upon the fundamental fairness language of Howard determined that a damages hearing is appropriate.

Essentially, in setting aside the judgment as to damages, the circuit court concomitantly relied upon the holding of Howard v. Fountain, 749 S.W.2d 690 (Ky.App.1988), and the fact the Dr. Hicks “assert[ed] that he received no notice of the hearing” on damages. We believe the circuit court was mistaken in its application of Howard and thus erred in setting aside the judgment assessing damages against Dr. Hicks.

In Howard, a default judgment of liability was entered against a party; thereafter, the circuit court scheduled a hearing to assess damages without requiring notice to be sent to the defaulting party. Id. In the meantime, the defaulting party filed a late answer which was not accompanied by a motion for enlargement of time under CR 6.02. Id. Even though the defaulting party had filed a late answer, the circuit court conducted an ex parte damage hearing and awarded damages to the plaintiff. Id. The Howard Court held that a defaulting party should be given notice of the damage assessment hearing where such party had entered an appearance and should also be permitted to participate in such a hearing. Id.; see also CR 55.01. The Court in Howard viewed the defaulting party’s filing of a late answer, which occurred before the damage assessment hearing, as an “appearance;” thus, the Court concluded that the defaulting party was entitled to notice of the damage assessment hearing. Id.

By contrast, it is uncontroverted that Dr. Hicks did not enter an “appearance” before the date of the damage hearing. Nevertheless, the record clearly reveals that the Hutchersons made a good faith attempt to serve Dr. Hicks with notice of the damage assessment hearing. On June 4, 2003, the Hutchersons served a hearing notice on Dr. Hicks by mailing a copy to Dr. Hicks’ last known address, this being the same address where Dr. Hicks was served with the complaint by certified mail in 2000. A copy of the judgment was also mailed by the circuit clerk to Dr. Hicks at this address. After having served the summons and complaint on Dr. Hicks, it was not the duty of the Hutchersons or the circuit clerk to keep track of Dr. Hicks’ whereabouts. As a party, he was duty bound to inform the clerk of his correct address. The fact that Dr. Hicks believed he had turned the matter over to his insurance company does not absolve him of the responsibility for staying abreast of the status of the litigation. The desirability of finality in judgments of any court requires this. Com., Dept. of Highways v. Hatcher, 386 S.W.2d 262 (Ky.1965).

In consideration of the factors necessary to establish good cause to set aside a default judgment, we believe that Dr. Hicks failed to demonstrate a valid excuse for his default or establish the absence of prejudice to the Hutchersons. See PNC Bank, 139 S.W.3d 527. It is undisputed and the record clearly reflects that Dr. Hicks received proper notice of the filing of the malpractice action on May 23, 2000. While he admits to receiving such notice, he did not respond to the action for over four years. Dr. Hicks’ reasons for waiting four years are wholly inadequate and are simply incredulous. After admittedly receiving proper notice of the medical malpractice action, Dr. Hicks’ only action in response was to inform the director of Cypress Medical, Dr. Remson, of such notice. For over four years, he incredibly never contacted any attorney or attempted to follow up with his malpractice insurance carrier. Further, Dr. Hicks failed to contact the Jefferson Circuit Court, the Hutchersons’ attorney, nor any other party to the action to ascertain the status of the case. This conduct is hard to conceive, especially since Cypress Medical was a named defendant in the medical malpractice action, who vigorously defended the action, and was also insured by the same malpractice insurance carrier (Reliance) as Dr. Hicks.

In Dr. Hicks’ affidavit filed in support of his motion to set aside the judgment, he asserts that he learned that the action was still active when he received a registered letter from Cypress Medical on August 4, 2004. Yet, his motion to set aside the judgment was not filed until November 10, 2004. This additional delay is inexplicable and otherwise is a reflection of the cavalier disregard of this lawsuit that Dr. Hicks exhibited throughout this proceeding. In this case, Dr. Hicks’ actions, that culminated in the default, were unreasonable and grossly dilatory. As such, we cannot say that Dr. Hicks set forth a valid excuse for his default. See Jacobs v. Bell, 441 S.W.2d 448 (Ky.1969).

Additionally, the record clearly reflects that the Hutchersons have been greatly prejudiced by setting aside the default judgment awarding damages. The Hutch-ersons filed this malpractice action on May 18, 2000, for a claim that arose in 1999. However, because of Dr. Hicks’ conduct that resulted in the default and a significant delay in the case, a jury trial to assess damages did not occur for almost nine years thereafter, in February 2009. A delay of almost nine years certainly put the Hutchersons at a disadvantage in preserving and presenting evidence to support their case at the jury trial in 2009, again for a claim that actually arose in 1999. Additionally, a judgment in favor of the Hutchersons in the amount of $211,953.39 for damages proven at an evidentiary hearing in 2003 was set aside and ultimately reduced to “0.” A second extensive damages hearing was conducted by the circuit court on October 31, 2005, but no ruling was subsequently made thereon. The circuit court concluded that a jury trial was necessary to apportion damages in accordance with KRS 411.182. Curiously, at the jury trial in 2009, no apportionment instruction was given to the jury. The necessity of a jury trial led in part to an additional three and one-half year delay in the case, for which this Court is most puzzled by since CR 55.01 plainly states that a party in default waives his right to a jury trial in any subsequent damage hearing. The totality of these circumstances established that the Hutchersons were prejudiced in having to prove their claim in court not once, but three times. Unfortunately, on the third bite at the apple, Dr. Hicks prevailed in a jury trial which he was not entitled to.

In review of a lower court’s decision to set aside a default judgment, an appellate court will not overturn a trial court’s decision “absent a showing that the trial court abused its discretion.” PNC Bank, 139 S.W.3d at 530 (citing Howard v. Fountain, 749 S.W.2d 690, 692 (Ky.App.1988)). In this case, we are of the opinion that the circuit court abused its discretion in setting aside the July 17, 2003, judgment assessing $211,953.39 in damages against Dr. Hicks. Dr. Hicks failed to establish good cause to warrant setting aside the judgment. The judgment in favor of the Hutchersons entered on July 17, 2003, shall be reinstated upon remand.

For the foregoing reasons, the judgment of the Jefferson Circuit Court is reversed and this cause is remanded for proceedings consistent with this opinion.

ALL CONCUR.

      . Unbeknownst to James W. Hutcherson and Sharon A. Hutcherson, Dr. Glen Hicks was no longer employed at Cypress Medical Associates, P.S.C., in June 2003.

      . The April 4, 2005, opinion and order affirmed the circuit court's order of March 16, 2005, which set aside the judgment awarding damages to the Hutchersons.

      . This opinion does not address any claims that Dr. Hicks may have against Reliance or Cypress Medical, nor are those claims relevant to the disposition of the issues raised in this appeal.

      . The March 16, 2005, order setting aside the Hutchersons’ judgment for damages stated that the trial court would conduct the hearing on damages, which it apparently did on October 31, 2005, without entering a judgment. The court then ordered a new jury trial, notwithstanding that Dr. Hicks had waived his right to a jury trial on the damages claim.


author: WHITE, Senior Judge.

text:
    Elbert Steve ILES, Appellant, v. COMMONWEALTH of Kentucky, Energy and Environment Cabinet, Appellee.
    No. 2009-CA-000240-MR.
    Court of Appeals of Kentucky.
    May 14, 2010.
    Case Ordered Published by Court of Appeals Aug. 13, 2010.

      Elbert Steve lies, pro se, California, KY, for appellant.
    Josh W. Nacey, Office of General Counsel, Energy and Environment Cabinet, Frankfort, KY, for appellee.
    Before LAMBERT and STUMBO, Judges; WHITE, Senior Judge.

      . Senior Judge Edwin M. White sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

WHITE, Senior Judge.

Elbert Steve lies appeals from an opinion and order of the Franklin Circuit Court which affirmed a final order of the Energy and Environment Cabinet following an administrative hearing. We affirm.

The Energy and Environment Cabinet filed a petition against lies and his wife, Jo Ann lies, on September 4, 2007, alleging that they had violated KRS 224.40-100 and KRS 224.40-305. These statutes prohibit the disposal of waste at any site without a permit. KRS 224.40-305 provides that:

No person shall establish, construct, operate, maintain, or permit the use of a waste site or facility without first having obtained a permit from the cabinet pursuant to this chapter and administrative regulations adopted by the cabinet.

KRS 224.40-100 provides that:

(1) No person shall transport to or dispose of waste at any site or facility other than a site or facility for which a permit for waste disposal has been issued by the cabinet. Upon request, any transporter of waste shall receive from the cabinet a current list of permitted waste disposal sites or facilities and shall be subsequently notified of any new permits or changes in the status of permits for waste disposal sites and facilities in the Commonwealth.
(2) The use of open dumps is prohibited except in the case of an open dump which is under a timetable or schedule for compliance approved by the cabinet. The cabinet may enjoin the operation of any open dump which does not have a timetable or schedule of compliance approved by the cabinet.
(3) The cabinet may require any person who violates this section or KRS 224.40-305 to take appropriate response actions to close and reclaim or upgrade open dumps to comply with applicable administrative regulations adopted by the cabinet. If a demand for response action is not implemented within a time period specified in a demand or timetable or schedule for compliance issued or approved by the cabinet, the cabinet may enjoin the operation of the open dump and restore the site.
(4) Except as provided in KRS 224.43-020, the cabinet may assess any person who violates this section by failing to take appropriate actions to close and reclaim or upgrade open dumps, damages in an amount equal to the cost of closure as estimated by the cabinet. The money collected shall be placed in the agency account established under KRS 224.40-650(4) to be used for the site closure and restoration. Any money remaining after site closure and restoration from the amount assessed shall be returned to the person against whom any assessment was made.

Ray Prather, an inspector from the Kentucky Division of Waste Management (DWM), had observed and photographed various kinds of solid waste scattered about the Ileses’ property, including rimless tires, vehicle parts, discarded batteries, scrap metal, and household trash. The Cabinet petition was filed after the Ileses failed to comply with notices of violation served on them by the DWM, which directed them to remove and properly dispose of the waste.

A hearing on the Cabinet’s petition was held on March 13 and May 8, 2008. The hearing officer submitted his Report and Recommended Secretary’s Final Order, which was adopted and incorporated by reference in the Secretary’s Final Order. The Final Order found that the Ileses had violated the cited statutes. They were ordered to pay a civil penalty, correct all violations listed in the notices within thirty days of entry of the order, properly dispose of the waste at the site, and submit receipts for the disposal to the DWM.

The Ileses filed an appeal of the Final Order in the Franklin Circuit Court. The circuit court affirmed the order, and this appeal followed.

The purpose of judicial review of an appeal from the decision of an administrative agency is to ensure that the agency did not act arbitrarily. Baesler v. Lexington-Fayette Urban County Gov’t, 237 S.W.3d 209, 212 (Ky.App.2007). If the Court concludes that the agency applied the correct rule of law to the facts supported by substantial evidence, the final order of the agency must be affirmed. Bowling v. Natural Res. and Envtl. Prot. Cabinet, 891 S.W.2d 406, 410 (Ky.App.1994).

lies raises the following argument in this appeal: (1) the Cabinet’s action against him was barred by the doctrines of res judicata and equitable estoppel; (2) the Cabinet’s complaint failed to state a claim; (3) the administrative tribunal erred in not ruling on or granting his motion for summary judgment; (4) the hearing officer’s determination that the Ileses had violated KRS 224.40-100 and KRS 224.40-305 was unconstitutional because it was outside the scope of authority of the agency and denied the Ileses their due process rights; (4) the pertinent statute, KRS 224.40-100, does not give the Cabinet authority over private citizens.

First, lies argues that an earlier complaint filed by the Kentucky Department of Transportation (DOT) should have precluded the Cabinet from filing its complaint in this case. The DOT complaint, which was filed in the Campbell Circuit Court in 2005, alleged that the Ileses were maintaining an automobile junkyard without a permit and without proper artificial or natural screening. lies contends that, by not joining in the DOT complaint, the Cabinet waived its right to bring an action, because the Campbell Circuit Court judgment was conclusive not only on all matters which actually were litigated, but on all matters which could have been litigated.

The rule of res judicata is an affirmative defense which operates to bar repetitious suits involving the same cause of action. The doctrine of res judicata is formed by two subparts: 1) claim preclusion and 2) issue preclusion. Claim preclusion bars a party from relitigating a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action. Issue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action. The’ issues in the former and latter actions must be identical.

Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464-65 (Ky.1998) (footnote and citations omitted).

lies has not specified whether he is invoking claim preclusion, issue preclusion or both. We will address each in turn.

For claim preclusion to bar further litigation, there must be identity of the parties, identity of the causes of action, and the action must have been resolved on the merits. Id. at 465. In the DOT action, the action was brought by the Department of Highways division of the DOT to enforce provisions of the so-called “Junkyard Act.” See KRS 177.905 to 177.950; Dawson v. Commonwealth, Dept. of Transp., Bureau of Highways, 622 S.W.2d 212, 212 (Ky.1981). Only the Department of Highways is empowered by statute to promulgate and enforce these statutes; the Cabinet could not therefore have been a party to that action. See KRS 177.935 (setting forth the powers of the Department to enforce KRS 177.905 to 177.950). Therefore, claim preclusion could not apply because there was no identity of parties, or causes of action, because the DOT action involved a different state agency seeking enforcement of different statutes.

For issue preclusion to operate as a bar to further litigation, the issue in the second case must be the same as the issue in the first case, and the issue must have been actually litigated and decided in the earlier action. Yeoman, 983 S.W.2d at 465. The DOT action alleged violations of completely different statutes than those invoked by the Cabinet. The DOT action sought to enforce KRS 177.910 and KRS 177.915, which forbid operation of a recycling establishment within one thousand feet of a right of way without proper screening. Issue preclusion did not apply in this case.

lies also argues that the Franklin Circuit Court judge failed to apply the doctrine of equitable estoppel. Equitable estoppel cannot be invoked against a governmental entity, except in unique circumstances where the court finds exceptional and extraordinary equities involved. Weiand v. Bd. of Trustees of Kentucky Ret. Sys., 25 S.W.3d 88, 91 (Ky.2000). To prevail upon a claim of equitable estoppel, the claimant must demonstrate:

(1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts. And, broadly speaking, as related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice.

Elec. & Water Plant Bd. of City of Frankfort v. Suburban Acres Dev., Inc., 513 S.W.2d 489, 491 (Ky.1974) (citations omitted).

lies has made no claim of any concealment or misrepresentation of material fact by the Cabinet, nor any claim that he relied on any such concealment or misrepresentation to his detriment. We can find no evidence in the record, nor has lies brought any to our attention, which would support a finding of the elements of equitable estoppel.

Iles’s second argument is that the court erred in failing to dismiss the Cabinet’s complaint for failure to state a claim. Specifically, he argues that the Cabinet’s complaint did not establish a cause of action because it failed to show that the Ileses were “in the business of transporting waste” or “in the business of establishing, constructing, operating, or maintaining a waste site or facility!,]” pursuant to KRS 224.40-100(l)(3), KRS 224.40-305, and KRS 224.40-310. lies argues that the statutes grant jurisdiction to the Cabinet only over persons who are “in the business” of transporting waste or operating waste facilities. But lies also quotes directly from KRS 224.40-100(1), which states that “[n]o person shall transport to or dispose of waste at any site or facility other than a site or facility for which a permit for waste disposal has been issued by the cabinet.” (Emphasis supplied.) In this case, the Cabinet’s allegation that the Ileses were disposing of waste or maintaining an open dump on their property but had no permit to do so was well within the scope of the statutes. Indeed, using Iles’s logic, any person could maintain a dump or operate a waste facility on his or her property and avoid Cabinet regulation simply by not obtaining a permit.

lies next argues that the hearing officer erred in not ruling on their motion for summary judgment, which was based on the argument that the Cabinet had failed to provide any evidence that the Ileses were in the business of using their property as a waste site or facility. On March 5, 2008, the hearing officer issued an order in which he stated that the motion would be addressed “after the taking of proof.” He explained that he was “not satisfied that the respondents had met the factual requirements for summary judgment.” After the hearing, the motion was denied. The denial of a motion for summary judgment is generally not appealable. Transp. Cabinet, Bureau of Highways, Com. of Ky. v. Leneave, 751 S.W.2d 36, 37 (Ky.App.1988). There is, however, an exception to this general rule which applies where: “(1) the facts are not in dispute, (2) the only basis of the ruling is a matter of law, (3) there is a denial of the motion, and (4) there is an entry of a final judgment with an appeal therefrom.” Id. As we have already determined that the Cabinet did not err as a matter of law in ruling that KRS 224.40-100 and KRS 224.40-305 applied to the Ileses’ property, there was also no error in the denial of the summary judgment motion.

In a related argument, lies contends that the hearing officer’s determination that they were in the business of establishing, constructing, operating, maintaining, or permitting the use of their property as a waste site or facility was unconstitutional as being outside the scope of the agency’s authority and violated their due process rights under Section 2 of the Constitution of Kentucky which states that “[a]bsolute and arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority.” He argues that the Cabinet had failed to establish that they were in the business of establishing, constructing, operating, maintaining, or permitting the use of their property as a waste site or facility. We agree with the Cabinet that the pertinent statutes do not distinguish between open dumps that are commercially owned, and operated as businesses, and those that are privately owned. We also agree with the Cabinet that the purpose of the statutes is not to regulate the “business” of waste disposal but to prevent the improper, unsafe, or environmentally harmful disposal of waste by anyone — businesses or private individuals. The Cabinet did not have to prove that the Ileses were commercially involved in waste disposal to pursue this action against them.

lies next argues that KRS 224.40-100(1) does not give the Cabinet the authority to determine when property owned by a private citizen becomes “waste” that must be “disposed of.” Inspector Ray Prather testified that the items he observed on the property appeared to be “disposed of’ or “discarded.” lies contends that Prather had no firsthand knowledge that he (lies) or anyone else had discarded anything on the property, nor was he able to give any legal authority to support his determination that the property was discarded. The hearing officer’s determination that the items on the property were discarded is a finding of fact which is entitled to considerable deference by the reviewing court.

On factual issues[ ], a circuit court in reviewing the agency’s decision is confined to the record of proceedings held before the administrative body and is bound by the administrative decision if it is supported by substantial evidence. If there is any substantial evidence to support the action of the administrative agency, it cannot be found to be arbitrary and will be sustained. Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.
In weighing the substantiality of the evidence supporting an agency’s decision, a reviewing court must hold fast to the guiding principle that the trier of facts is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses appearing before it.

Bowling, 891 S.W.2d at 409-10 (Ky.App.1994) (citations and quotation marks omitted.)

Prather’s testimony, based on eighteen years of employment and training as an inspector for the Cabinet, and the photographs of the property he provided, were substantial evidence supporting the Cabinet’s finding that the items on the property were waste that had been “disposed of.” lies argues that the Cabinet does not have the authority to determine when one’s property becomes “disposed of’ or “discarded” such that it becomes waste, and that such a determination constitutes a violation of Section 2 of the Kentucky Constitution. “In order to pass constitutional muster in this regard, a statute must be rationally related to a legitimate state objective.” Commonwealth v. Louisville Atlantis Community/Adapt, Inc., 971 S.W.2d 810, 816 (Ky.App.1997). The purpose of the environmental protection statutes was set forth by our legislature in KRS 224.43-010:

(1) It is hereby declared to be the policy of this Commonwealth and the purpose of this chapter to provide for the management of solid waste, including reduction, collection, transportation, and disposal in a manner that will protect the public health and welfare, prevent the spread of disease and creation of nuisances, conserve our natural resources, and enhance the beauty and quality of our environment.

In order to fulfill this statutory directive to protect public health and preserve our environment, the Cabinet must make determinations regarding the presence of waste on private and commercial property. Indeed, citizens are empowered to report public officers and employees who fail to enforce the provisions of the statutes which regulate environmental protection. See KRS 224.01-050. The Cabinet’s determination that the items on the Ileses’ property were discarded is rationally related to the legitimate state objective of environmental protection and was not therefore an arbitrary exercise of state power.

lies also argues that there was no specific statutory or regulatory authority to deem certain specific items on his property as “discarded.” Prather testified that there were a couple of batteries and some tires out in the open which were improperly stored or needed to be discarded. lies points to KRS 224.50-410, which regulates the disposal of lead acid batteries, and argues that Prather did not present any facts that lies had knowingly violated that statute. As to the tires, he argues that his land is agricultural and that the waste tire program (KRS 224.50-856) does not apply to it. But the Ileses were not cited for violations of the waste tire or lead acid battery laws, only for maintaining an open dump. Batteries or tires may constitute waste under the open dump laws. There is no requirement that a property owner must also violate the lead acid battery and waste tire laws in order to be cited for maintaining an open dump if these items are present on the property.

Finally, lies argues that if Inspector Prather had performed his due diligence, he would have discovered that when lies decided to dispose of items, lies would have contacted Rumpke, a waste and recycling company, to haul them away. We agree with the hearing officer that if such logic was employed, no one could ever be cited for maintaining an open dump.

We affirm the opinion and order of the Franklin Circuit Court.

ALL CONCUR.

      . The appellee was named in the notice of appeal as the Energy and Environmental Cabinet. The proper title is the Energy and Environment Cabinet, which is what is used in this opinion.

      . Jo Ann lies was dismissed as a party to this appeal by an order entered June 5, 2009.


author: COMBS, Judge:

text:
    Sarah HOLZKNECHT, Mother and Next Friend of Meghan Holzknecht, Appellant, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
    No. 2009-CA-001022-MR.
    Court of Appeals of Kentucky.
    Aug. 13, 2010.

      Matthew C. Hess, Elizabethtown, KY, for Appellant.
    Beth A. Lochmiller, Jonathan A. Rabi-nowitz, Elizabethtown, KY, for Appellee.
    Before TAYLOR, Chief Judge; COMBS and NICKELL, Judges.
   OPINION

COMBS, Judge:

This case involves a dispute as to coverage under a homeowner’s insurance policy. Sarah Holzknecht, as mother and next friend of Meghan Holzknecht, appeals from a summary judgment entered by the Hardin Circuit Court in favor of Kentucky Farm Bureau Mutual Insurance Company (Farm Bureau). The trial court held that the policy was unambiguous in excluding coverage for injury arising out of an insured’s “business pursuit.” The court concluded that the exclusion applied to bar coverage under the circumstances of this case, a result challenged by Holzknecht on appeal. In the alternative, Holzknecht contends that the exclusion clause is subject to the policy’s severability provision. After our review of counsels’ arguments and the pertinent law, we affirm.

On January 23, 2008, Sarah Holzknecht filed a complaint against Sherri May, John David May, and Farm Bureau, the Mays’ homeowner’s insurance carrier. Hol-zknecht alleged that the Mays were liable for injuries sustained by her daughter at a home-based child care business operated by the Mays. A dog kept at the Mays’ day care attacked and mauled Meghan. Hol-zknecht claimed that the Mays failed to exercise ordinary care for the safety of her child; additionally, she asserted liability under the provisions of Kentucky Revised Statute(s)(KRS) 258.235(4), which provides that the keeper of a dog shall be responsible for the damage that it causes. Farm Bureau defended the action under a reservation of rights.

After the Mays were deposed, Farm Bureau filed a petition for declaration of rights pursuant to KRS 418.040. Farm Bureau alleged that it was under no obligation to defend or to indemnify the Mays with respect to the underlying tort action because: (1) the homeowners had declared to Farm Bureau that no business enterprise would be undertaken at the home and (2) their policy specifically excluded coverage for personal liability arising out of or in connection with a business pursuit. Farm Bureau next filed a motion for summary judgment.

In its memorandum in support of the motion for summary judgment, Farm Bureau argued that the clear and unambiguous language of the homeowner’s policy put the Mays on notice that coverage was excluded with respect to any injuries arising out of or in connection with the home-based day care service. Holzknecht responded to the motion, arguing that the facts and circumstances underlying the tort action against the Mays compelled coverage pursuant to the terms of the policy.

The trial court concluded that the Mays’ misrepresentation concerning the operation of a day care business would — in and of itself — disqualify them from coverage. Additionally, the trial court concluded that the policy specifically and unambiguously excluded coverage for personal liability arising from the business. Holzknecht argued that the policy should nevertheless provide coverage since a dog mauling is the type of event that might have occurred regardless of a business activity conducted at the Mays’ home. The court disagreed. It also rejected Holzknecht’s argument in the alternative that the exclusion clause could and should be severed with respect to John David, entitling him to coverage since he did not operate the day care business. The court entered summary judgment in favor of Farm Bureau. This appeal followed.

On appeal, Holzknecht presents two issues for our review. First, she contends that the trial court erred by concluding that the policy’s “business pursuits” exclusion was unambiguous and bars coverage for the tort claim. Next, Holzknecht contends that the trial court erred by failing to conclude that the exclusion clause was severable as to the coverage available to John David May. We shall address these issues in the order in which they were presented by the parties’ briefs.

Summary judgment serves to terminate litigation where “the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Kentucky Rule[s] of Civil Procedure 56.03. Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). Summary judgment “is proper where the movant shows that the adverse party could not prevail under any circumstances.” Id., citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky.1985).

On appeal, we must consider whether the trial court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky.App.1996). Since summary judgment involves only questions of law and not the resolution of disputed material facts, an appellate court does not defer to the trial court’s decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky.1992). Our review is de novo.

The interpretation of an insurance policy often presents a pure question of law, rendering it appropriate for summary judgment. See Stone v. Kentucky Farm Bureau Mut. Ins. Co., 34 S.W.3d 809 (Ky.App.2000). Terms of a policy will be given their plain and ordinary meaning. City of Louisville v. McDonald, 819 S.W.2d 319 (Ky.App.1991). Where the terms of the policy are clear and unambiguous, they must be enforced as drafted. Osborne v. Unigard Indem. Co., 719 S.W.2d 737 (Ky.App.1986).

Holzknecht argues .first that the trial court erred by granting summary judgment in favor of Farm Bureau based on the business pursuits exclusion of the homeowner’s policy. She argues that the exclusion is inapplicable under the facts and circumstances of this case.

The policy language at issue provides as follows:

SECTION II — EXCLUSIONS
1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to “bodily injury” or “property damage”:
⅜: ⅜ ⅜ ⅜ ⅜
b. Arising out of or in connection with a “business” engaged in by an “insured.” This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstances, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the “business”;
* * * * *
n. Arising out of the home day care business. If an insured regularly provides home day care services to a person or persons other than insured and receives monetary or other compensation for such services, that enterprise is a business pursuit.... Therefore, with respect to a home day care enterprise which is considered to be a business pursuit, this policy:
(1) Does not provide SECTION II — LIABILITY COVERAGES because business pursuits of an insured are excluded under exclusion l.b. of Section II Coverages — Exclusions;
This home day care business exclusion does not constitute a reduction of coverage.

Homeowner Policy at 24 — 28. The policy includes the following definitions:

2. “Business” includes trade, profession or occupation.
3. “Insured” means you and residents of your household who are:
a. Your relatives; or
b. Other persons under the age of 21 and in the care of any person named above. (All emphases original.)

It is undisputed that a home day care business was being operated from the insured premises but that the Mays had informed Farm Bureau that there would be no business pursuits conducted on the premises. Because they had had previous experience with securing a home day care coverage endorsement, the Mays were aware that their homeowner’s policy lacked such an endorsement to secure added coverage for their business.

Holzknecht contends that summary judgment was improper because the policy’s business pursuits exclusion is either inapplicable under the circumstances or ambiguous as drafted. She argues that the dog that mauled her child was not directly involved in the day care business and the child’s injuries did not arise out of any act, omission, or duty of the Mays related to the day care business. It was, she contends, an occurrence incident to non-business pursuits; i.e., the keeping of the dog was not part of the business but part of the home itself.

Farm Bureau responds that summary judgment was proper because the policy expressly excludes coverage for injuries “arising out of or in connection with” a business — specifically a home-based day care business — engaged in by an insured. The company argues that but for the day care business, the child would not have been on the premises and the tort claim would not have arisen. Additionally, the company relies on the concealment or fraud provisions of the policy to deny coverage. We agree with Farm Bureau. The terms of the policy are unambiguous and specifically exclude the coverage that Hol-zknecht seeks.

In support of her argument, Holzknecht points out that the Mays’ liability for the dog mauling did not “arise from duties or services owed because of the day care business” but from their statutory duty as keepers of a dog. Appellant’s brief at 7. It is true that the Mays’ liability did arise from their statutory duty as keepers of a dog. However, the policy expressly provides that the business pursuits exclusion is not limited to injuries resulting from an act or omission “involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business(.)” Instead, the policy exclusion is much more broadly drafted to encompass injuries “arising out of or in connection with a business engaged in by an insured.” We agree with the trial court’s observation as follows:

It should not be discounted that Hol-zknecht would not have been on this property and therefore not bitten by the dog were it not for the conduct of the day care business on the property. It is the increased risk associated with conducting such a business, including the presence of a number of children that calls for a specific rider or endorsement to provide appropriate commercial coverage.

Summary Declaratory Judgment at 5. The Mays’ liability arose because the child was on the premises (where she undoubtedly had a right to be) when she was mauled, and her presence on the premises was plainly attributable to and connected with the business.

Holzknecht observes that there are no Kentucky cases dealing with a dog bite in the context of a business-pursuits exclusion clause. She contends that the business pursuits exclusion should be held to apply only if the dog was “involved in the business and kept on the premises for the purpose of earning a profit for or protecting the business.” Appellant’s brief at 8. Holzknecht cites Wiley v. Travelers Ins. Co., 534 P.2d 1293 (Okla.1974), and Ratner v. Canadian Universal Ins. Co., 359 Mass. 375, 269 N.E.2d 227 (1971), in support of her position.

The dispute in Wiley centered on whether the tortfeasor’s dog-breeding operation qualified as a business pursuit or was merely a hobby. The court’s resolution of the issue did not depend on the fact that the dog that caused the injury was an integral part of the business but focused on the fact that the policy at issue contained an exception to the exclusion. No such exception exists in the policy involved in this appeal.

Although a dog bite gave rise to the claim in Ratner, the type of insurance coverage at issue in that case was commercial rather than that of a homeowner. The court found that there was coverage by way of a business endorsement because the dog was kept by the tortfeasors on their property for security purposes. Because the dog was on the premises primarily in a business capacity, the dog bite was covered under the business endorsement. The court analogized the injury from the dog bite to a gun wound sustained where a gun was kept on the premises for protection.

Wiley and Ratner involve circumstances wholly distinguishable from the case before us and offer no guidance in our review of the court’s judgment in this case. There is no dispute that the Mays’ home was the site of an established and profitable day care business and that the exclusion clause contained in their policy broadly excluded coverage for injuries “arising out of or in connection with a business engaged in by an insured.” The dog was on premises where a business was being conducted, and the dog bite clearly fell under the expansive language of the exclusion clause, withholding coverage for operation of a business.

Holzknecht also relies on this court’s decision in Foster v. Allstate Ins. Co., 637 S.W.2d 655 (Ky.App.1982), in support of her argument that summary judgment in favor of Farm Bureau was improper. In Foster, this Court examined a business-pursuits exclusion clause in a homeowner’s insurance policy. The policy provided that the liability protection afforded by Section II of the policy did not apply:

(d) to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits....

Id. at 656. (Emphasis added). For purposes of its opinion, the Court assumed that the homeowner’s baby-sitting enterprise was a business pursuit and focused exclusively on the exception to the exclusion. The Court examined the decisions of other jurisdictions and concluded that the exception provision contained in the exclusion “leaves some doubt as to its meaning, and it is clearly susceptible to two reasonable interpretations.... ” Id. at 657. Because of the ambiguity in the exception, the Court applied the rule contra proferen-tem, properly interpreting the contract more strictly against its drafter, and construed the exclusion as not precluding coverage. Id. Again, there is no similar exception to the exclusion clause in the Mays’ policy. Nor is there any ambiguity in the exclusion clause itself. Consequently, the literal language of the exclusion must apply to preclude coverage in this case.

As an alternative to her argument that the business pursuits, exclusion does not apply in this case, Holzknecht contends that the clause is subject to the policy’s severability provision. She argues that the policy should be construed so as to apply coverage to each insured separately and to preserve coverage for John David May since he was not engaged in the day care business. In support of her argument, Holzknecht relies on our decision in K.M.R. v. Foremost Ins. Group, 171 S.W.3d 751 (Ky.App.2005). However, that case does not support her argument.

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In Foremost, this Court examined the provision of a homeowner’s policy excluding coverage to its insureds for bodily injury caused by intentional acts. The underlying tort action concerned Tommy Conrad’s sexual molestation of K.M.R. The trial court concluded that the intentional nature of Tommy’s acts absolved Foremost of any duty to defend or to indemnify Tommy or his wife, Elizabeth. K.M.R. appealed, contending that the allegations in her complaint against Elizabeth focused on Elizabeth’s “unintentional, negligent omissions to protect the child.” K.M.R. argued that the severability clause rendered the policy ambiguous as to coverage for Elizabeth.

After carefully examining the language of the exclusion clause contained in the Foremost policy, we rejected KM.R.’s argument. We held that Foremost’s policy which excluded coverage for bodily injuries “[rjesulting from any act or omission that is intended by any of you to cause any harm or that any of you could reasonably expect to cause harm” was carefully and precisely drawn to exclude coverage for both of the Conrads. We observed that a clearly worded exclusion is not treated as ambiguous or rendered unclear by the mere existence of a severability provision. Foremost, supra, citing National Ins. Underwriters v. Lexington Flying Club, Inc., 603 S.W.2d 490 (Ky.App.1980). We held that the policy’s severability clause did not preserve coverage for Elizabeth since the policy plainly “denies protection to an innocent actor who is tainted by association with an intentional wrongdoer.” Id. at 754.

Holzknecht contends that Farm Bureau “has offered no exclusion that would apply to defeat coverage other than Sherri May’s operation of a day care business.” Appellant’s brief at 14. Farm Bureau’s policy excludes coverage where “an insured” is engaged in a business pursuit as opposed to “any insured.” Accordingly, based on that distinction between the article “an” versus the adjective “any,” Holzknecht argues that John David May’s coverage should be preserved.

In its response, Farm Bureau rejects Holzknecht’s characterization of John David May as an “innocent actor,” paraphrasing the language of our holding in Foremost, supra. Farm Bureau points to statements included in the Mays’ depositions that indicate that John David was actively involved as a keeper of the dog and that he was also involved (albeit arguably minimally) in the day care business. Additionally, Farm Bureau observes that John David May was aware that the business was being conducted in his home and that he consented to its continued operation. Presumably, he benefitted financially from the enterprise as well. Farm Bureau cites Argent v. Brady, 386 N.J.Super. 343, 901 A.2d 419 (2006), in support of its contention that John David May is also excluded from the policy’s coverage under these circumstances.

In Argent, supra, the Court considered whether the business pursuits exclusion of a homeowner’s insurance policy applied to the resident son of the named insureds. Linda Brady, a named insured, operated a day care business from her home. Linda’s son, Michael, kept a dog on the premises. When an infant in Linda’s care was bitten in the face by Michael’s dog, the victim’s mother filed a tort action against Linda Brady, her husband, and Michael Brady. There was no evidence that the injury arose out of a business engaged in by Michael. Nonetheless, the Bradys’ insurer denied coverage based on the policy’s business pursuits exclusion. In granting summary judgment in favor of the victim, the trial court concluded that Michael was an insured, reasoning that the severability clause of the homeowner’s insurance policy operated to remove him from the applicability of the exclusion clause — -noting as well an ambiguity as to the applicability of the exclusion.

On appeal, the court reversed. The appellate court rejected the Bradys’ contention that the insurer’s use of “any insured” rather than “an insured” created an ambiguity that triggered the severability clause. “That the use of the word ‘any1 could be perceived by some as making the exclusion clearer does not make the language that was chosen ambiguous.” Argent v. Brady, 901 A.2d at 425. The court concluded that the severability clause did not affect the clearly worded exclusion clause. It reasoned as follows:

[T]he severability clause is not denominated a “coverage provision,” and it would be unreasonable to find that it operated independently in that capacity to increase the insurance afforded under the insuring provisions of the policy, or to partially nullify existing coverage exclusions.

Id. at 427.

Finally, the Court noted that the availability of a business-risk insurance endorsement was an option specifically intended to provide coverage under the very kind of circumstances of the case before us. The Court reasoned as follows:

[Tjhose business pursuits conducted in the home such as day care are foresee-ably subject to risks created by family members other than the business proprietor, such as the risk of injury from a pet owned by another family member, as here. In this circumstance, it would be unreasonable to utilize a purported policy ambiguity as a means of establishing coverage, since no coverage could reasonably have been anticipated to exist in the first instance. To employ the doctrine of ambiguity to create coverage here would thus be contrary to the reasonable expectations doctrine, and would stand that doctrine on its head. Alleged • ambiguities cannot be construed in favor of an insured if the only result is to create unexpected coverage. (Emphasis added.)

Id. In summary, rather than attempting to infer ambiguity from a severability provision, an insured’s proper resolution of such a risk would be to opt for a business-risk endorsement.

We agree with the reasoning of the New Jersey appellate court in all respects, and we find it particularly applicable in this case. John David May plainly falls within the scope of the policy’s business-pursuits exclusion because it appears that he was involved in the enterprise. We agree that the policy exclusion is unambiguous and broad enough to encompass him. Since severability clauses are not drafted to negate policy exclusions, the existence of that clause in Farm Bureau’s policy does not render the exclusion ambiguous. We conclude that the availability of a business-risk endorsement was the only clear and unambiguous protection to the Mays. Tortured constructions of clauses in an attempt to create an aura of ambiguity are unavailing to create coverage.

We affirm the judgment of the Hardin Circuit Court.

ALL CONCUR.

      . The appellee's brief cites this case as Whi-ley. The correct spelling as reported in Pacific 2d is Wiley.

      . The policy provides as follows:
      SECTION I — CONDITIONS
      2. Severability of Insurance. This insurance applies separately to each "insured.”
      This condition will not increase our limit of liability for any one "occurrence.”