author: NICKELL, Judge:

text:
    Stephen LEEDS, Individually and d/b/a Economy Suites Motel; Albert J. Dialto and Marjorie Dialto, Individually and d/b/a Margie’s Ceramics, Appellants, v. CITY OF MULDRAUGH, Kentucky, Appellee. and Stephen Leeds, Albert J. Dialto and Marjorie Dialto, Appellants, v. City of Muldraugh, Kentucky, Appellee.
    Nos. 2008-CA-000110-MR, 2009-CA-000427-MR.
    Court of Appeals of Kentucky.
    Oct. 1, 2010.
    Case Ordered Published by Court of Appeals Nov. 19, 2010.

      C. Thomas Hectus, Louisville, KY, for appellants.
    Greg N. Stivers, Scott D. Laufenberg, Bowling Green, KY, for appellee.
    Before NICKELL, THOMPSON, and VANMETER, Judges.
   OPINION

NICKELL, Judge:

Appellants, Steven Leeds, individually and d/b/a Economy Suites Motel, and Albert J. Dialto and Marjorie Dialto, individually and d/b/a Margie’s Ceramics, appeal from a summary judgment in favor of the City of Muldraugh on their claims relating to arbitrary ordinance enforcement and utility collection. Appellants argue: (1) summary judgment was granted in error because there are genuine issues of material fact; (2) the enforcement of parking ordinances constitutes an unlawful taking; (3) res judicata does not bar Leeds’s claims; and (4) the trial court erred by denying their motion for relief pursuant to CR 60.02. We affirm.

Leeds operates an Embassy Suites Motel in the City of Muldraugh, which is located in Meade County, Kentucky. The Dialtos operate Margie’s Ceramics in Muldraugh. Appellants utilized a portion of Supplemental Road KY 868 for parking in front of their businesses. The City has owned KY 868 since 1992 by virtue of a quitclaim deed from the Commonwealth. Appellants allege that since 2003 the City has engaged in a system of arbitrary and capricious ordinance making and enforcement relating to zoning, utility collection, and parking. Specifically, they allege: (1) they acquired the right to allow parking on municipal property; (2) the City unilaterally rezoned their properties from commercial to residential; and (3) the utility collection fees are unconstitutional because they are unrelated to the usage and nature of the businesses.

Prior to the filing of the present action, Leeds and three other citizens filed suit against the City in the United States District Court for the Western District of Kentucky. Leeds alleged civil rights violations under 42 U.S.C. § 1983 as well as violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. Specifically, Leeds alleged the City violated RICO because city officials used their positions for personal benefit through the use of wire and mail fraud. Leeds also alleged civil rights violations through: (1) enforcement of ordinances in violation of his equal protection rights; (2) mismanagement of city funds in violation of state law; and (3) implementation of an unfair and unequal tax system. The district court dismissed the complaint for failure to state a claim upon which relief could be granted. Leeds v. City of Muldraugh, No. 3:03CV-728-H (W.D.Ky. Nov. 17, 2004). The United States Court of Appeals for the Sixth Circuit affirmed the dismissal and granted the City’s motion for sanctions for taking a frivolous appeal. Leeds v. City of Muldraugh, 2006 WL 773033 (2006). Contemporaneous with the federal action, Leeds and three different plaintiffs filed two additional suits in the Meade Circuit Court challenging the City’s occupational license fee. The court consolidated the cases and dismissed the claims. Leeds v. City of Muldraugh, 04-CI-00233.

Subsequently, Leeds and the Dialtos filed the present action in the Meade Circuit Court. The trial court granted summary judgment in favor of the City and dismissed Leeds’s claims on the grounds of res judicata. Because the Dialtos were not parties to the prior actions, the trial court addressed their claims on the merits. The court granted summary judgment in favor of the City on the Dialtos’ claims relating to the business license fee, city parking, rezoning, and city utilities. Following the entry of summary judgment, Leeds and the Dialtos filed a motion to hold their appeal of the summary judgment in abeyance pending the outcome of their motion to vacate the judgment pursuant to CR 60.02. The trial court denied the requested relief. Leeds and the Dial-tos appealed the denial of their motion for relief pursuant to CR 60.02. This Court ordered that the appeal from the summary judgment and the appeal from the denial of the CR 60.02 motion would be heard together.

Appellants first argue that summary judgment was granted in error because there were genuine issues of material fact and that summary judgment was granted prematurely. We disagree.

Appellants correctly note that it is improper to grant summary judgment when there are genuine issues of material fact. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). However, Appellants do not mention, much less cite, any specific facts from the record supporting their position. “[A] party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Id. at 482.

Next, Appellants argue that summary judgment was granted prematurely because discovery was incomplete. A party “cannot complain of the lack of a complete factual record when it can be shown that the respondent has had an adequate opportunity to undertake discovery.” Cargill v. Greater Salem Baptist Church, 215 S.W.3d 63, 69 (Ky.App.2006). “It is not necessary to show that the respondent has actually completed discovei’y, but only that respondent has had an opportunity to do so.” Hartford Ins. Group v. Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628, 630 (Ky.App.1979) (six months between filing of complaint and granting motion for summary judgment was sufficient opportunity to complete discovery).

Appellants attribute the lengthy delay in their prosecution of this case to the failings of prior counsel. This case was filed on September 9, 2004. Appellants obtained new counsel on February 21, 2007. The trial court granted summary judgment on December 18, 2007. Thus, Appellants had three years to develop proof, and their new counsel had ten months to develop discovery before summary judgment was granted. Moreover, Appellants do not identify any specific evidence, which they sought to obtain, but simply state more discovery was required. There was no order restricting the discovery procqss in any way. Appellants fail to cite to the record where they requested additional time for discovery. Regardless, from our review of the record, the trial court made no ruling on any discovery issue. Without more, reversal is unwarranted.

Next, Appellants argue the enactment and enforcement of the City’s parking ordinances constituted an unlawful taking. Appellants seem to assert a property interest in the public street outside their businesses which they used for parking. They argue they have used the street for parking without incident for over fifteen years. Appellants cite no authority in support of their position except the Eminent Domain Act of Kentucky, KRS 416.570, which sets forth the requirements for the condemnation of private property.

It is undisputed that the parking area in question is a public street owned by the City. “Adverse possession does not run against a city.” City of Louisville v. Louisville Scrap Material Co., 932 S.W.2d 352, 357 (Ky.1996). The law of prescriptive easements is derived from the law of adverse possession. Cole v. Gilvin, 59 S.W.3d 468, 475 (Ky.App.2001). Therefore, Appellants cannot acquire the parking area through prescriptive easement. Moreover, cities have the exclusive right to control the use of its streets, and private citizens’ use of any street for parking is a privilege, not a right. Allsmiller v. Johnson, 309 Ky. 695, 218 S.W.2d 28, 29 (1949). In light of the foregoing, the City’s enactment and enforcement of the parking ordinances did not constitute an unlawful taking and the trial court’s grant of summary judgment was proper.

Finally, Appellants argue the trial court erred by dismissing Leeds’s claims on the grounds of res judicata. Appellants argue the federal court action did not involve the state law claims presented here and, therefore, the application of res judi-cata was inappropriate. We disagree.

In Dennis v. Fiscal Court of Bullitt County, 784 S.W.2d 608 (Ky.App.1990), this Court held that a federal court’s dismissal of a 42 U.S.C. § 1983 action precluded a state court proceeding, which was identical to the federal action except for reliance upon 42 U.S.C. § 1983. In determining whether federal and state law claims are identical for res judicata purposes, this Court stated:

The present trend is to see (sic) claim in factual terms and to make it conterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split.

Id. at 610 (quoting Restatement (Second) of Judgments § 24, comment a). In Dennis, the plaintiff filed a § 1983 action in federal court asserting violations of his civil rights. Id. at 609. The federal court dismissed the complaint finding it was barred by limitations. Id. The plaintiff subsequently filed a state court action, which mirrored his federal claims. Id. This Court further stated:

[I]t is abundantly clear that appellant intended to litigate all his claims, those arising under both federal as well as state law, in 'federal court. When the federal court dismissed his action in its entirety “with prejudice,” it is assumed that the federal court exercised pendent jurisdiction over appellant’s state law claims and dismissed them as well as dismissing the section 1983 claims.

Id. at 611. In reaching a similar conclusion in Yeoman v. Com., Health Policy Bd., 983 S.W.2d 459, 464-65 (Ky.1998), the Supreme Court of Kentucky explained:

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 re-litigating 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. The key inquiry in deciding whether the lawsuits concern the same controversy is whether they both arise from the same transactional nucleus of facts. If the two suits concern the same controversy, then the previous suit is deemed to have adjudicated every matter which was or could have been brought in support of the cause of action.

(Emphasis added)(internal citations omitted).

As pertains to the present case, Leeds’s federal suit contained several state law claims against the City. The district court stated “[mjany of Plaintiffs’ § 1983 claims suggest that Defendants have failed to comply with various state statutes or obligations ... Other of the § 1983 claims appear to assert state claims through the Fourteenth Amendment.” Leeds v. City of Muldraugh, No. 3:03CV-728-H, slip op. at 8 (W.D.Ky. Nov. 17, 2004). As stated above, the district court dismissed Leeds’s complaint with prejudice in its entirety. The Court of Appeals for the Sixth Circuit affirmed the dismissal. Therefore, to the extent any of Leeds’s § 1983 claims were repackaged as state law claims in the present case, they are precluded by res judicata. Dennis, supra.

Leeds also argues some of his claims were not available to pursue at the time of the federal suit. However, even if Leeds’s argument is true, the trial court found that these claims were available to pursue in his previous state court action in which he attacked the constitutionality of the City’s business and occupational tax system. Leeds has not challenged this finding on appeal. Pursuant to Yeoman, the previous suit is determinative of every issue which was or could have been adjudicated. Therefore, the trial court did not err in dismissing Leeds’s claims on the grounds of res judicata.

Finally, Appellants argue the trial court erred by denying their motion for a new trial. Appellants argue newly discovered evidence entitles them to a new trial. We disagree.

Appellants filed a motion for relief pursuant to CR 60.02 alleging they discovered new evidence demonstrating that the City did not actually own the property at issue. The trial court held an evidentiary hearing. Appellants presented a 1939 deed, a 1989 deed, an order from the Transportation Cabinet, and a survey, completed in 2008 at their behest, in support of them motion. Following the hearing, the trial court found the Appellants failed to exercise due diligence to discover the newly submitted evidence because it was based upon public records.

Whether to grant a CR 60.02 motion is left to the sound discretion of the trial court. Bethlehem Minerals Co. v. Church and Mullins Corp., 887 S.W.2d 327, 329 (Ky.1994). CR 60.02 states:

On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds (... b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02[.]

In Nelson v. Gregory, 262 Ky. 740, 91 S.W.2d 29, 31 (1936), the former Court of Appeals affirmed the denial of a motion for a new trial where the newly discovered evidence consisted of documents in the public record. The Court stated:

[Fjacts are not alleged showing that proper diligence was exercised to discover the evidence before the trial. It was discovered after the trial by examining a public record, and an exercise of reasonable diligence before the trial would have led to its discovery then.

Id.

The documents relied upon by Appellants were in the public record and could have been located by an exercise of reasonable diligence. Under Nelson, we cannot conclude that the trial court abused its discretion. Additionally, the 2008 survey does not provide any basis for relief because “‘newly discovered evidence’ is limited to evidence in existence at the time of trial and does not extend to evidence arising after trial.” Alliant Hosps., Inc. v. Benham, 105 S.W.3d 473, 478-79 (Ky.App.2003). Based on the foregoing, the trial court did not abuse its discretion.

Accordingly, the judgment of the Meade Circuit Court is affirmed.

ALL CONCUR.

      . Sue Cummings, Douglas Williams, and Kenneth Tolar were the other plaintiffs in the federal action. They are not parties to this appeal. The Dialtos were not parties to the federal action.


source: Caselaw Access Project

author: MOORE, Judge:

license: Public Domain

text:
    KINDRED NURSING CENTERS LIMITED PARTNERSHIP d/b/a Harrodsburg Health Care Center; Kindred Healthcare Operating, Inc., Kindred Healthcare, Inc.; and Kindred Hospitals Limited Partnership, Appellant, v. Lynne SLOAN, as Ancillary Administrator of the Estate of Gladys B. Reed, Deceased, Appellee.
    No. 2009-CA-001629-MR.
    Court of Appeals of Kentucky.
    Dec. 3, 2010.
    Donald P. Moloney, II, J. Peter Cassidy, III, Lexington, KY, for Appellants.
    Stephen M. O’Brien, III, Lexington, KY, for Appellee.
    Before MOORE and THOMPSON, Judges; LAMBERT, Senior Judge.

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

   OPINION

MOORE, Judge:

Kindred Nursing Centers Limited Partnership d/b/a Harrodsburg Health Care Center, Kindred Healthcare Operating, Inc., Kindred Healthcare, Inc., and Kindred Hospitals Limited Partnership (Kindred) appeal from an August 13, 2009 order of the Mercer Circuit Court which denied Kindred’s motion to compel arbitration. We vacate and remand.

Gladys Reed was a resident of Kindred’s facility, Harrodsburg Health Care Center. Reed died on August 28, 2007. Lynne Sloan, her daughter, was appointed ancillary administrator of her estate.

Sloan, in her capacity as ancillary administrator, individually, and on behalf of other beneficiaries, filed an action against Kindred alleging negligence and violations of statutory duties in the death of Reed. However, Kindred alleged that Reed had signed an arbitration agreement encompassing these claims, and Kindred filed a motion, pursuant to the Kentucky Uniform Arbitration Act, Kentucky Revised Statutes (KRS) 417.045^17.240 (KUAA) and the Federal Arbitration Act, 9 U.S.C. §§ 1-16(FAA), to compel arbitration and either dismiss or stay this action. By order entered August 13, 2009, the circuit court denied Kindred’s motion to compel arbitration. This appeal followed.

Kindred argues that the circuit court erred by denying its motion to compel arbitration, maintaining that the arbitration agreement constituted a binding and enforceable contract and that the evidence established that Reed signed the agreement through a valid power of attorney.

Under KRS 417.060, a person may seek a judicial order to compel arbitration upon a showing that a valid arbitration agreement exists and that the opposing party refuses to arbitrate. If the opposing party challenges the existence of a valid arbitration agreement, the circuit court “shall proceed summarily to the determination of the issue so raised.” KRS 417.060(1).

Appellate review of an otherwise unap-pealable interlocutory order arises under KRS 417.220(l)(a). The standard of review by our Court from appeals arising under this statute was discussed in Conseco Finance Servicing Corp. v. Wilder, 47 S.W.3d 335, 340 (Ky.App.2001) as follows:

It may also be well to note that our review of a trial court’s ruling in a KRS 417.060 proceeding is according to usual appellate standards. That is, we defer to the trial court’s factual findings, upsetting them only if clearly erroneous or if unsupported by substantial evidence, but we review without deference the trial court’s identification and application of legal principles....

Here, the circuit court made no factual findings nor can we determine whether the circuit court’s ruling was based upon the application of legal principles justifying a de novo review by this Court. The circuit court’s order does indicate that the court “considered the record” and “heard arguments of counsel.” Under the circumstances presented in this case, in reliance upon Conseco, we believe the circuit court is bound by Kentucky Rules of Civil Procedure (CR) 52.01, which mandates that a court set forth specific findings of fact and separate conclusions of law in its order or judgment.

As such, the circuit court erred when it entered its August 13, 2009 order denying arbitration because, in that order, it merely stated that Kindred’s motion to compel arbitration was denied; it did not contain any findings of fact or conclusions of law. In the absence of such findings and conclusions, we cannot discern the basis of the circuit court’s decision and there can be no meaningful review of this case. See Brown v. Shelton, 156 S.W.3d 319 (Ky.App.2004).

We remind the circuit court that it speaks only through written orders entered upon the official record. See Midland Guardian Acceptance Corp. of Cincinnati, Ohio v. Britt, 439 S.W.2d 313 (Ky.1968); Com. v. Wilson, 280 Ky. 61, 132 S.W.2d 522 (1939). Thus, any findings of fact and conclusions of law made orally by the circuit court at an evidentiary hearing cannot be considered by this Court on appeal unless specifically incorporated into a written and properly entered order.

Upon remand, the circuit court shall reconsider Kindred’s motion to compel arbitration in accordance with KRS 417.050, KRS 417.060, and 9 U.S.C. §§ 1-16, and shall render an order that sets forth specific findings of fact and separate conclusions of law as required by CR 52.01. We view Kindred’s remaining contentions of error to be moot.

For the foregoing reasons, the order of the Mercer Circuit Court is vacated and this cause remanded for proceedings consistent with this opinion.

ALL CONCUR.

      . In her brief, the appellee refers to herself as "Lynne Slone." However, we refer to her as "Lynne Sloan ” because this is the way her name is spelled in the notice of appeal.

      . We cannot determine from review of the circuit court's order whether the court found the existence of a valid arbitration agreement which must be resolved first under KRS 417.050 or 9 U.S.C. § 2.

      .This is distinguished from a case where the circuit court makes inadequate findings of fact. In such a case, a parly is bound to make a request for more definite findings under CR 52.04 before reversal may be predicated upon such error.


author: ACREE, Judge:

text:
    Dwight WINKLER, Appellant, v. Jeanette GERMANN, Appellee.
    No. 2009-CA-001684-MR.
    Court of Appeals of Kentucky.
    Dec. 3, 2010.

      Michael R. Eaves, Jason M. Colyer, Richmond, KY, for Appellant.
    Christopher K. Herron, Danville, KY, for Appellee.
    Before ACREE, VANMETER and WINE, Judges.

      . The parties disagree as to the spelling of the appellee’s last name. We have adopted the spelling used by the circuit court.

   OPINION

ACREE, Judge:

Dwight Winkler appeals the August 18, 2009 order of the Boyle Circuit Court finding Winkler waived venue of the action brought by appellee Jeanette Germann, based in part on the conclusion that the action was governed by the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692a-1692o, and ordering Winkler to respond to Germann’s post-judgment interrogatories following a default judgment. Because Boyle Circuit Court was an improper venue, and because venue was never waived, the default judgment is void. Therefore we must reverse and remand the case for entry of an order dismissing the complaint.

The following facts are not disputed and are clearly supported by the record.

• At all times relevant to this action, Winkler was a resident of Madison County, Kentucky, and Germann was a resident of and conducted business in Boyle County;

• The parties entered into a contract by which Winkler leased land in Jessamine County;

• By the terms of the contract, Winkler was permitted to “use the Premises only for raising sod, hay and tobacco.”

• Germann brought suit against Winkler in Boyle County where Germann resided;

• Winkler was served in Madison County with summons to appear in Boyle Circuit Court to answer the complaint;

• Winkler did not obey the summons or file an answer to the complaint;

• Boyle Circuit Court entered a default judgment against Winkler;

• Germann served Winkler with post-judgment discovery in aid of execution on the default judgment;

• Winkler did not respond to the discovery request;

• Germann filed a motion asking Boyle Circuit Court to issue an order for Winkler to show cause why he should not be held in contempt for failure to respond to post-judgment discovery; ■

• Winkler responded for the first time asserting that the default, judgment was void because venue was improper in Boyle Circuit Court;

• On August 18, 2009, the Boyle Circuit Court held:

“1. That the Defendant [Winkler] has waived the issue of venue;

2. That this transaction appears to fall within the Federal Fair Debt Collections Act.

3. That venue is proper in Boyle County, Kentucky.

4. That the Defendant is to answer the Plaintiffs Post-Judgment Interrogatories within 30 days from July 9, 2009.”

Winkler took his appeal from this August 18, 2009 order.

Relying on Cash v. E’Town Furniture Co., 363 S.W.2d 102 (Ky.1962), Winkler argues that he never waived his right to object to venue. In Cash,

The issue of law presented is whether a judgment by default may be rendered against a defendant in a transitory action where the defendant is not a resident of the county in which the action was brought, nor was he served with summons in that county, nor did he make defense to the action before judgment was entered.

Cash, 363 S.W.2d at 102. Our highest court concluded that such a judgment is void, based on the following reasoning, which we excerpt and adopt here.

[P]rior to the adoption of the Civil Rules of Procedure, a default judgment entered under circumstances recited above would be void. See Caywood v. Williams, 218 Ky. 282, 291 S.W. 377 [ (1927) ], and Gover v. Wheeler, 296 Ky. 734, 178 S.W.2d 404 [ (1944) ]. But CR 12.08 provides that a pai’ty waives all defenses and objections, with certain exceptions, which he does not present either by motion or by answer. That Rule is identical to the Federal Rule 12(h) which was construed in Zwerling v. New York & Cuba Mail S.S. Co., D.C. 33 F.Supp. 721 [ (1940) ], and Clover Leaf Freight Lines v. Pacific Coast Wholesalers Association, 7 Cir., 166 F.2d 626 [ (1948) ], in which there was a quotation from the opinion in Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 49 S.Ct. 98, 73 L.Ed. 252 [ (1929) ]. The substance of those Federal Court decisions is that the defense is waived by failure to make timely objection. Because the question had not been considered by this Court since adoption of the Civil Rules, the [circuit court] followed the reasoning of the Federal cases.

However, the sections of the Civil Code upon which the earlier [Kentucky] decisions were founded were transferred to the Statutes at the time the Civil Rules were adopted. What were Sections 78 and 79 of the Civil Code are now KRS 452.480 and 452.485, which provide:

“KRS 452.480[C.C. 78]. An action which is not required by the foregoing provisions of KRS 452.400 to 452.475 be brought in some other county may be brought in any county in which the defendant, or in which one of several defendants, who may be properly joined as such in the action, resides or is summoned.”
“KRS 452.485[C.C. 79], In action brought pursuant to KRS 452.480, against a single defendant, there shall be no judgment against him, unless he be summoned in the county wherein the action is brought; or, unless he reside in such county when the action is brought and be summoned elsewhere in this state; or, unless he make defense to the action before objecting to the jurisdiction of the court.”
Unless CR 12 overrides those sections of the Statutes there is no question but that the judgment taken herein is void. See Gover v. Wheeler, supra. Had it been intended that the Civil Code Sections have no effect, they would not have been transferred to the Statutes. The Civil Rules were not intended to fix or affect jurisdiction or venue. CR 82 provides that: “These rules shall not be construed to extend or limit the jurisdiction of any court of this Commonwealth or the venue of actions therein.” Consequently, we are of the opinion that a judgment which is taken in violation of the provisions of KRS 452.485 is void.

Cash, 363 S.W.2d at 102-03.

The statutes and rules cited in Cash have not changed since that case was rendered. Unless we can find a distinction between Cash and the case before this Court now, we can reach only one conclusion — that the default judgment is void.

Germann proposes a few ways to distinguish this case. First, she argues that KRS 452.480 uses permissive rather than compulsory language (“may” rather than “must”), leaving open the possibility that venue is proper in other counties, specifically where the plaintiff resides. However, even if we accepted this argument, we cannot ignore the compulsory language of KRS 452.485 that “there shall be no judgment against” a single defendant who is not summoned under circumstance prescribed in that statute.

Furthermore, “an objection to venue is a personal privilege of the defendant. ...” 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3826 (3d ed. 2010). “In most instances, the purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial.” Leroy v. Great Western United Corp., 443 U.S. 173, 184, 99 S.Ct. 2710, 2716-17, 61 L.Ed.2d 464 (1979) (emphasis in original) (citations omitted). That is the clear purpose of Kentucky’s venue statutes and that purpose runs contrary to Germann’s argument that use of the word “may” in KRS 452.480 permits the filing of the complaint in the county of the plaintiffs residence.

Germann’s second argument is, essentially, that the objection to venue was not timely. However, this argument, which is fully resolved in Winkler’s favor- by Cash, is also without merit since the cases upon which Germann relies are those involving tardy motions for changes of venue.

Germann also argues that because this case is brought under the FDCPA, venue was proper in Boyle County. We disagree for several reasons.

The sole authority Germann cites is an unpublished opinion in which this Court stated that “[n]otwithstanding our conclusion that the [venue] issue is moot, we note that KRS 452.480 is inconsistent with the venue provision of the FDCPA (15 U.S.C.A. § 1692i)[.]” Compton v. Instant Auto Credit, Inc., 2005 WL 326973, *3 (Ky.App.2005) (2003-CA-001021-MR). While CR 76.28(4)(c) authorizes citation to unpublished opinions in very specific and limited circumstances, this is not one of them. The legal point for which Germann cites Compton is, by its own acknowledgment, dicta and has no persuasive authority-

Furthermore, if applicable, the FDCPA establishes that venue for the collection of a consumer debt is proper only in the proper court of the Kentucky county “(A) in which such consumer signed the contract sued upon; or (B) in which such consumer resides at the commencement of the action.” 15 U.S.C.A. § 1692L The record shows that Winkler resided in Madison County at the commencement of the action; therefore, subsection (B) does not make Boyle County the proper venue. We cannot conclude that subsection (A) applies because we find nothing in the record (and Germann refers us to no evidence) that supports even a reasonable inference that Winkler signed the contract in Boyle County. While Germann says in her brief that Winkler “was determined by the [circuit] court to have signed in Boyle County[,]” the circuit court actually made no such finding. Venue, therefore, cannot be premised upon subsection (A).

Finally, we conclude that the debt created under this contract was not a consumer debt, and therefore the FDCPA and its venue provision are not factors in the analysis. Germann is not a debt collector. “[T]he case law is well-settled on this point: a creditor is not a debt collector for the purposes of the FDCPA[,] and creditors are not subject to the FDCPA when collecting their accounts.” Stafford v. Cross Country Bank, 262 F.Supp.2d 776, 794 (W.D.Ky.2003) (citations omitted). Furthermore, this is not a consumer debt because Winkler is not a “consumer” in this transaction, as defined by the FDCPA. The collection of this purely business-related debt is not governed by the FDCPA. See 15 U.S.C. § 1692a(5) (defining “debt” as “any obligation ... of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes[.]”); see also Bank of Boston Intern. of Miami v. Arguello Tefel, 644 F.Supp. 1423, 1430 (E.D.N.Y.1986)(business debt is not a consumer debt governed by FDCPA). Wink-ler did not acquire the Jessamine County property in order to live there; he continued to reside in Madison County. Ger-mann specifically limited Winkler’s use of the property to “raising sod, hay and tobacco.” The meeting of the minds here was obviously the lease of land for a business-related or commercial purpose. Therefore, neither FDCPA nor its venue provision applies.

Because this case is effectively indistinguishable from Cash v. E’Town Furniture, we are compelled to find that the default judgment in this case is void, as is the circuit court’s order of August 18, 2009.

For the foregoing reasons, we reverse and remand this case to the Boyle Circuit Court for entry of an order dismissing the complaint for improper venue.

ALL CONCUR.

      . All counties hereinafter are in Kentucky unless otherwise noted.


text:
    Carolyn J. HUTCHISON, Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION; and Jefferson County Board Of Education, Appellees.
    No. 2010-CA-000032-MR.
    Court of Appeals of Kentucky.
    Dec. 3, 2010.

      Thomas J. Schulz, Don Meade, Louisville, KY, for Appellant.
    Clay J. Lamb, Frankfort, KY, for Appel-lee Kentucky Unemployment Insurance Commission.
    Byron E. Leet, Kristie Alfred Daugherty, Louisville, KY, for Appellee Jefferson County Board of Education.
    Before ACREE, Judge; HENRY and ISAAC, Senior Judges.

      . Senior Judges Michael L. Henry and Sheila R. Isaac sitting as Special Judges by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS) 21.580.

   OPINION

ACREE, Judge:

Carolyn Hutchison appeals the December 3, 2009 opinion of the Jefferson Circuit Court affirming the administrative denial of unemployment benefits. Finding the circuit court properly applied the law, we affirm.

Facts and procedure

Hutchison began employment with the Jefferson County Board of Education (School Board) in 1996 as a teacher. Her employment continued until she was discharged on November 7, 2007. The employer informed Hutchison her employment was terminated because she had engaged in conduct which rendered her unable to be a role model for her students.

Hutchison filed for unemployment benefits, and her request was denied. She appealed the initial determination to a referee.

The parties presented to the referee evidence which was largely undisputed, including that on April 15, 2007, Hutchison was arrested for third-degree terroristic threatening and two counts of fourth-degree assault (all misdemeanors), in addition to first-degree burglary (a felony). These charges arose from Hutchison’s behavior following the breakup of a sixteen-year romantic relationship. The School Board relieved Hutchison of her instructional duties and reassigned her to a production and materials position.

The undisputed evidence was also that Hutchison entered a guilty plea on May 7, 2007, and the charges were reduced to four misdemeanors. It appears from the record that a Domestic Violence Order (DVO) was entered as a result of Hutchison’s convictions.

The parties agree that Hutchison was arrested again only a week after entry of her guilty plea and that the conduct which led to this arrest was also related to the breakup of the romantic relationship. This time Hutchison was charged with violation of a DVO, carrying a concealed deadly weapon, first-degree stalking, and failure to illuminate the headlights on her vehicle. On September 26, 2007, Hutchi-son pleaded guilty to second-degree stalking and violation of a DVO; the other charges were dismissed. Again, all of these facts were' undisputed before the referee.

Hutchison received notice of her discharge on November 7, 2007. The parties agree the employer’s stated reason for terminating Hutchison’s employment was that “[her] convictions for these violent crimes seriously inhibits [sic][her] ability to serve as a positive role model for [her] students.”

The referee affirmed the initial determination denying Hutchison unemployment benefits. The denial was based on the referee’s conclusion that Hutchison knowingly violated a reasonable and uniformly enforced rule of the School Board, that rule being codified in KRS 161.790(l)(b) and prohibiting conduct unbecoming a teacher.

The Commission affirmed and adopted the referee’s findings as its own. On appeal, the circuit court affirmed, finding the order was based upon substantial evidence and the correct rule of law.

Standard of review

As the circuit court correctly noted, an administrative agency’s findings of fact are reviewed for clear error, and its conclusions of law are reviewed de novo. “The judicial standard of review of an unemployment benefit decision is whether the [Commission’s] findings of fact were supported by substantial evidence and whether the agency correctly applied the law to the facts.” Thompson v. Kentucky Unemployment Insurance Commission, 85 S.W.3d 621, 624 (Ky.App.2002) (citations omitted).

Relationship between, the claimant’s conduct and her employment

Hutchison first contends on appeal that the circuit court’s legal conclusion that the misconduct was connected to the work, for purposes of disqualification from unemployment benefits, was erroneous. More specifically, Hutchison alleges it was error for the circuit court to determine that such a connection was demonstrated, “as a matter of law, [by] guilty pleas to misdemeanors arising out of the break up of a long-term domestic relationship^]” (Appellant’s brief, p. 5).

Hutchison also insists on appeal that she did not engage in conduct unbecoming a teacher under the statutory standard, again, because there was no connection between her criminal behavior and her employment.

While Hutchison attempts to distinguish these two arguments, our inquiry is the same for both. The key to both is whether, as a matter of law, there was a nexus between her employment as a teacher and the conduct for which she was discharged. Accordingly, we analyze them together.

KRS Chapter 341 governs unemployment disputes. An employee is disqualified from receiving unemployment benefits if she was discharged for misconduct related to her employment. KRS 341.370(l)(b).

An employee has been discharged for misconduct when she was fired for a “knowing violation of a reasonable and uniformly enforced rule of an employer[.]” KRS 341.370(6). The referee concluded Hutchi-son had committed misconduct connected with the work because she had violated the employer’s rule against conduct unbecoming a teacher and accordingly disqualified her from receiving benefits.

The employer’s rule against conduct unbecoming a teacher is codified in KRS 161.790(l)(b). Pursuant to that statute, a teacher’s employment contract may be terminated when that teacher has demonstrated “[i]mmoral character or conduct unbecoming a teacher[.]” KRS 161.790(l)(b). However, “the conduct, when it occurs in a context other than professional competency in the classroom should have some nexus to the teacher’s occupation^]” Board of Education of Hopkins County v. Wood, 717 S.W.2d 837, 840 (Ky.1986).

The undisputed evidence before the referee was that Hutchison committed a series of misdemeanors in a relatively short period of time. Hutchison maintains the lack of a direct connection between those misdemeanors and her employment means the requisite nexus between the two is missing.

In the past, Kentucky courts have found conduct unbecoming a teacher had a sufficient nexus with the employment when the conduct was committed outside the workplace in certain limited contexts. These situations have involved improper contact with students or falsely reporting the reason for an absence from work. Wood, 717 S.W.2d at 840 (A sufficient nexus existed when two teachers smoked marijuana with two students in the teachers’ apartment); Board of Education of Laurel County v. McCollum, 721 S.W.2d 703, 704-05 (Ky.1986) (teacher falsely called in sick to work for the school board and instead drove a coal truck for another employer). There are no such circumstances here. Hutchi-son did not engage in criminal behavior while performing her duties as a teacher; nor did her criminal conduct involve students or her fellow faculty members.

However, there is a heightened standard of conduct for teachers, and KRS 161.790(l)(b) reflects that.

The purpose of teacher tenure laws is to promote good order in the school system by preventing the arbitrary removal of capable and experienced teachers by political or personal whim. It is not to protect those who violate the criminal law. A teacher is held to a standard of personal conduct which does not permit the commission of immoral or criminal acts because of the harmful impression made on the students. The school teacher has traditionally been regarded as a moral example for the students.

Wood, 717 S.W.2d at 839 (Ky.1986) (citing Gover v. Stovall, 237 Ky. 172, 35 S.W.2d 24 (1931)); see also McCollum, 721 S.W.2d at 705 (using nearly identical language).

Given the heightened standard of conduct, paired with Hutchison’s repeated failure to conform her behavior to the requirements of the law and the violent and threatening nature of her offenses, the conduct had a sufficient nexus to her employment and therefore constituted conduct unbecoming a teacher. It is of no consequence that no student or faculty member actually knew of this conduct. When a teacher engages in behavior which seriously compromises her ability to be an “example to the school community,” there is a sufficient nexus between the employment and the conduct to warrant disqualification for employment benefits. Wood, 717 S.W.2d at 840. The circuit court properly affirmed the Commission’s application of the law to the facts before the referee.

Neither this opinion nor those we cite stand for the proposition that any and all criminal convictions are necessarily connected to the employment of a teacher. In the instant case, it is the quantity of the convictions (six), their nature (violent, threatening, in defiance of a DYO), and their timing (occurring in a very brief span), that justify the employer’s decision to terminate Hutchison.

Burden of proof

Hutchison’s last argument is that the circuit court’s affirmation of the referee and Commission decisions amounts to a finding that pleading guilty to violent misdemeanor crimes is presumptively conduct unbecoming a teacher. Hutchison believes this impermissibly shifts the burden of proof to the claimant.

Hutchison is correct that it is the employer’s burden to demonstrate the employee committed misconduct connected with the employment. Brown Hotel Co. v. Edwards, 365 S.W.2d 299, 301 (Ky.1963). In this case, that burden was imposed upon the employer and was not shifted to Hutchison. Both parties were permitted to present evidence and make legal arguments to the referee, who simply found the employer’s position more compelling in light of the evidence. The circuit court, applying the appropriate standards of review, affirmed because the employer had demonstrated Hutchison committed misconduct connected to the employment.

The circuit court’s ruling that the evidence of Hutchison’s conduct demonstrated a sufficient connection with the employment does not amount to burden shifting; rather, it is a correct conclusion of law based on the relevant facts.

Conclusion

The circuit court properly affirmed the Commission’s determination that Hutchi-son was disqualified from receiving unemployment benefits because she was discharged for misconduct connected to the employment. We affirm.

ALL CONCUR.

      . Hutchison pleaded guilty to first-degree criminal trespass, two counts of fourth-degree assault, and one count of third-degree terror-istic threatening.


author: LAMBERT, Judge:

text:
    Shawn MILLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-002027-MR.
    Court of Appeals of Kentucky.
    Dec. 10, 2010.
    Robert Yang, Assistant Public Advocate, Frankfort, KY, for appellant.
    Jack Conway, Attorney General, Joshua D. Farley, Assistant Attorney General, Frankfort, KY, for appellee.
    Before TAYLOR, Chief Judge; LAMBERT, Judge; HENRY, Senior Judge.

      . Senior Judge Michael L. Henry 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

LAMBERT, Judge:

Shawn Miller appeals from an order of the Madison Circuit Court revoking his probation. For the following reasons, we affirm.

On May 20, 2009, Miller pled guilty to driving a motor vehicle while license suspended for driving under the influence, third offense. He received a three-year sentence that was set aside for a three-year probationary period. On June 29, 2009, approximately a month after Miller was probated, the Commonwealth moved to revoke his probation on the grounds that he violated the terms and conditions of his probation. The trial court conducted a hearing on September 17, 2009. During this hearing, the Commonwealth presented proof that Miller was probated on May 20, 2009, and within one month was arrested for trafficking in marijuana.

Miller stated to the court that he was charged with trafficking in marijuana, had entered a plea of guilty to the new charge, and stipulated to the violation. Miller stated that he knew he had “done wrong” but asked for another chance because he had a child on the way. The trial court then stated, “[tjhat’s not the problem. The problem is that you committed an offense within one month of being out [on probation].” The trial court then explained that Miller had committed an offense equally bad or worse than his initial offense within one month of being probated and, accordingly, the tidal court was revoking his probation. The trial court issued a brief order revoking Miller’s probation, which did not make specific findings of fact supporting the decision to revoke probation. Miller now appeals as a matter of right.

On appeal, Miller contends that the trial court violated his due process rights by revoking his probation. In particular, he argues that the trial court was required to set forth a written statement for the grounds for revocation as set forth in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and KRS 533.050(2).

The Commonwealth counters that the trial court properly exercised its discretion in revoking Miller’s probation and that the court’s findings were sufficient pursuant to Commonwealth v. Alleman, 306 S.W.3d 484 (Ky.2010). As stated herein, we agree with the Commonwealth and thus affirm the trial court.

Probation revocation hearings “must be conducted in accordance with minimum requirements of due process of law.” Rasdon v. Commonwealth, 701 S.W.2d 716, 718 (Ky.App.1986) (citing Gagnon, supra). KRS 533.050(2) provides that “the court may not revoke or modify the conditions of a sentence of probation or conditional discharge except after a hearing with defendant represented by counsel and following a written notice of the grounds for revocation or modification.”

“Probation revocation is not dependent upon a probationer’s conviction of a criminal offense.” Commonwealth v. Lopez, 292 S.W.3d 878, 881 (Ky.2009) (internal citations omitted). “Instead, the Commonwealth need only prove by a preponderance of the evidence that a probationer has violated the terms of probation.” Id. (citing Rasdon, 701 S.W.2d at 719). The appellate standard of review of a decision to revoke a defendant’s probation is whether the trial court abused its discretion. Lopez, 292 S.W.3d at 881.

In the instant case, in accordance with KRS 533.050(2), the trial court gave notice of and conducted a probation revocation hearing, at which Miller and his counsel were present and were afforded an opportunity to be heard and cross-examine any witnesses. However, Miller argues that the trial court’s written findings are lacking because they did not set forth the specific grounds for revocation. In Alleman, 306 S.W.3d at 484-85, the Kentucky Supreme Court held:

We conclude that oral findings and reasons for revocation as stated by the trial court from the bench at the conclusion of a revocation hearing satisfy a probationer’s due process rights, presuming the findings and reasons support the revocation, when they are preserved by a reliable means sufficiently complete to allow the parties and reviewing courts to determine the facts relied on and the reasons for revoking probation.

Similarly, in the case at bar the trial court’s oral findings and reasons for revoking Miller’s probation provided a reliable means for meaningful review by this and other courts. Miller openly admitted he was guilty of trafficking marijuana and, thus, the trial court did not need to enumerate the specific factual allegations supporting the charge. The trial court did not abuse its discretion in revoking Miller’s probation one month after his initial sentence, when he openly admitted before the court that he committed another offense, and no constitutional violations occurred.

Therefore, based on the foregoing, we hereby affirm the September 21, 2009, order of the Madison Circuit Court setting aside Miller’s sentence of probation and imposing a sentence of imprisonment.

HENRY, Senior Judge, concurs.

TAYLOR, Chief Judge, concurs in result only.


text:
    B.H., A Child, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2010-CA-000259-ME.
    Court of Appeals of Kentucky.
    Dec. 17, 2010.

      Gail Robinson, Assistant Public Advocate, Frankfort, KY, for appellant.
    Jack Conway, Attorney General, Erin E. Burns, Special Assistant Attorney General, Lexington, KY, for appellee.
    Before CAPERTON, MOORE, and VANMETER, Judges.
   OPINION

MOORE, Judge:

B.H., a child, appeals the order of the Fayette Family Court finding that he violated KRS 630.020(3), and committing him to the Cabinet for Families and Children (Cabinet) as a status offender. After a careful review of the record, we vacate the court’s order because the court did not have jurisdiction over the matter; we remand with instructions for the court to dismiss the action from its docket.

I. FACTUAL AND PROCEDURAL BACKGROUND

The record in this case reveals that the complaint filed against B.H. in the present case by the Court Designated Worker (CDW) alleged that B.H. was a status offender because he was a habitual truant, in violation of KRS 630.020(3). The CDW contended in the complaint that during an approximately four-month period, B.H. had “accumulated 19.64 unexcused absences and 3 unexcused tardies for [the] 2007-2008 academic school year according to the DPP [Director of Pupil Personnel] report.” The CDW’s Juvenile Truancy Referral Checklist that was filed the same day as the complaint stated only B.H.’s name, the school he attended, and the number of unexcused absences and unexcused tardies that B.H. had accumulated. This checklist stated “N/A,” presumably for “not applicable,” in regard to the following: B.H.’s history of truancy; mediation; whether a compulsory education violation had been filed on B.H.’s parent; whether B.H. had participated in any truancy intervention program; and whether a home visit, face-to-face, or telephone contact had been conducted by the DPP, a school social worker, a school counselor, or a school administrator.

Six days before filing the complaint in the family court in this action, the CDW filled out a “Preliminary Inquiry Formal/Informal Processing Criteria and Recommendations” form. That form stated that “[a] preliminary inquiry was conducted” on that day, and the people present at the inquiry were: B.H., his mother, his stepfather, and the CDW. The only other information the form contained was that B.H. had “accumulated over [eleven] unexcused days” and, based on that criteria, the CDW checked a box stating that the case was not appropriate for informal processing. Preprinted language on the form then stated that because the case was not appropriate for informal processing, it was recommended that the “case be referred to court for a formal hearing or an informal adjustment.”

Five days later, a docket sheet with the court’s signature was filed. Notes that were handwritten on that docket sheet stated: “IOC; appt DPA; stip to HT; VCO; CAP orders.” Another handwritten note stated that a review of the case would be held several weeks later. We assume that the term “stip to HT” meant that the court found that B.H. had stipulated to the status offense charge of habitual truancy. Orders were then entered directing B.H. and his mother to submit to drug testing at the Community Alternative Program (CAP) and appointing a public defender for B.H. Additionally, a Juvenile Status Offender Order (JSOO) was entered finding B.H. to be a status offender relating to habitual truancy, pursuant to KRS 600.020(28). Preprinted language on the JSOO stated that the court found the child was subject to the court’s jurisdiction pursuant to KRS 630.020. Additionally, the JSOO ordered B.H. to: obey all rules of his home; attend all school sessions on time, have no unexcused absences and no behavior problems at school; not consume, use or possess any alcoholic beverages, tobacco product or illegal drugs; submit to random drug testing; and comply with drug testing orders.

Following the next in-court review, B.H. was ordered to enroll and participate in summer school, and he was referred to the Truancy Assessment Center (TAC). He was also ordered to cooperate with TAC and follow TAC’s recommendations. A TAC Assessment and Recommendation report was filed concerning B.H., stating that he had accumulated a total of thirty-four unexcused absences, three tardies and two days suspended for the 2007-08 school year. B.H. had been suspended on those two occasions for skipping class and disruptive behavior. However, the report stated that since his last court review a little over a month before the report date, B.H. had accumulated zero absences, two unexcused tardies and four days suspended (due to disobeying staff and using profanity or vulgarity). The TAC report also provided that B.H. was failing six of his seven classes in high school. It reported that, according to his mother, B.H. had been diagnosed with depression, anger and anxiety, as well as “Crohn’s disease (causes inflammation of the digestive tract) and Costochondritis (causes chest pain).” The TAC recommendations were for B.H. to attend and participate in summer school and complete twenty hours of community service.

At a later court review, the court ordered that B.H. not be withdrawn from school; that he “file for homebound” if his doctor thought it was necessary; and that B.H. bring his grades and “point sheet” to his next court appearance.

Subsequently, B.H. was placed on Cabinet supervision; the family court entered an order granting temporary custody of B.H. to his grandmother; B.H. was ordered to continue to work with the Cabinet and diversion, and to have “no UA/UT/Behavior,” which we assume means that he was to have no unexcused absences, unexcused tardies, or behavioral problems at school. The court also entered an order allowing B.H. to withdraw from school to pursue his GED.

A predispositional report was later prepared and filed by the Cabinet. In it, the Cabinet noted that B.H. had “made little effort and no progress in working toward or obtaining his GED,” and that “Diversion and Impact Services have exhausted their efforts to assist” B.H. The report stated that “IMPACT plus [was] the fourth consecutive in-home intervention for [the] family,” and that “IMPACT ha[d] made the decision to exit services with [the] family due to the lack of progress and the high level of noncompliance with both [B.H. and his custodial grandmother].” The Cabinet’s report recommended:

1. [B.H.] be drug dropped today to identify any type of drug use and if results are positive:
A. [B.H.] be assessed by the Ridge for possible drug treatment and follow all recommendations.
B. [B.H.] remain in the custody of his guardian, [his grandmother].
2. [B.H.] be drug dropped today to identify any type of drug use and if results are negative:
A. [B.H.] be given FCO’s by the court.
B. [B.H.] remain in the custody of his guardian, [his grandmother].

The family court reviewed the Cabinet’s report and adopted its recommendations as orders of the court.

The Cabinet prepared another predispo-sitional report prior to a subsequent court hearing. The Cabinet reported, inter alia, that B.H. had “made little effort and no progress in working toward or obtaining his GED” and that B.H. had “failed to follow through with orders of the court.” The report’s recommendations were for B.H. to be committed to the Cabinet as a status offender with the following court orders[:]

1. [B.H.] cooperate with placement.
2. [B.H.] will follow recommendations of service providers.
3. Family will cooperate with [the Cabinet, including] monthly home visits and case planning.
4. Family will follow recommendations of placement providers in order to ensure [B.H.’s] success in placement.

The family court then entered an order finding that B.H. had violated KRS 630.020(3). The court noted that it had received recommendations pursuant to KRS 610.100 regarding the case, that reasonable efforts had been made to prevent B.H.’s removal from the home, and that continuation in the home was “contrary to the welfare of the child or removal from the home [was] in the best interest of the child.” The court adopted the recommendations set forth in the dispositional report and committed B.H. to the Cabinet as a status offender.

B.H. now appeals, contending that: (a) his due process rights were violated when the trial court assumed jurisdiction over the status offense petition despite the Commonwealth’s failure to affirmatively establish compliance with the express mandates and purpose of Kentucky’s Unified Juvenile Code; (b) the truancy petition must be dismissed due to the failure to comply with KRS 630.060(2) and KRS 159.140; (c) the finding of guilt must be set aside because there was no admission and no plea colloquy; and (d) the court committed reversible error by committing B.H. to the Cabinet based on violations of a JSOO.

II. ANALYSIS

A. CLAIM THAT DUE PROCESS RIGHTS WERE VIOLATED WHEN COURT ASSUMED JURISDICTION

B.H. first alleges that his due process rights were violated when the family court assumed jurisdiction over the status offense petition despite the Commonwealth’s failure to affirmatively establish compliance with the express mandates and purpose of Kentucky’s Unified Juvenile Code. Specifically, B.H. contends that the Commonwealth did not comply with KRS 630.050. That statute provides as follows:

Before commencing any judicial proceedings on any complaint alleging the commission of a status offense, the party or parties seeking such court action shall meet for a conference with a court-designated worker for the express purpose of determining whether or not:
(1) To refer the matter to the court by assisting in the filing of a petition under KRS 610.020;
(2) To refer the child and his family to a public or private social service agency. The court-designated worker shall make reasonable efforts to refer the child and his family to an agency before referring the matter to court; or
(3) To enter into a diversionary agreement.

B.H. acknowledges that this claim is not preserved for appellate review. However, he contends that this issue is one concerning subject matter jurisdiction. We note that “defects in subject matter jurisdiction may be raised by the parties or the court at any time and cannot be waived.” Commonwealth Health Corp. v. Croslin, 920 S.W.2d 46, 47 (Ky.1996).

In the present case, we found no evidence in the record to show that the Commonwealth complied with the provisions of KRS 630.050 before commencing judicial proceedings in the family court, although B.H. apparently did begin receiving assistance from social services and working with diversion at some point. It appears that, because the statute’s language requires compliance before commencing any judicial proceeding, the legislature’s intent was to make the requirements of KRS 630.050 a matter of subject matter jurisdiction. See T.D. v. Commonwealth, 165 S.W.3d 480, 482 (Ky.App.2005) (discussing another statute under the Unified Juvenile Code concerning status offenders, ie., KRS 630.060, and stating that “because the language of the statute requires compliance before a complaint may be received, the legislature intended to make these requirements a matter of subject matter jurisdiction.”). Therefore, the family court did not have subject matter jurisdiction over this case.

B. CLAIM REGARDING NONCOMPLIANCE WITH KRS 630.060(2) AND KRS 159.140

Alternatively, B.H. contends that the truancy petition must be dismissed due to the Commonwealth’s failure to comply with KRS 630.060(2) and KRS 159.140. Specifically, B.H. asserts that the truancy petition that was filed in this case contained insufficient information because it simply alleged

habitual truancy by B.H. due to unexcused absences and tardies “according to the DPP report.” That report is apparently the “CDW Juvenile Truancy Referral Checklist.” The form is nearly blank, basically including only B.H.’s name, high school and number of unexcused absences/tardies. The sections dealing with possible participation in a truancy intervention program, home visit, face to face or home contact are all marked “N/A” for being inapplicable. And the form is not signed. The only other document provided by the school was the “student profile attendance report” which simply listed attendance information. These documents starkly reveal the inadequacy of the school’s efforts on behalf of B.H. Because the Board of Education and the CDW did not comply with KRS 630.060(2) and KRS 159.140 the finding that appellant was guilty of habitual truancy must be reversed and the charge dismissed or the case remanded to family court for further proceedings.

(B.H.’s appellate brief, p. 9) (internal citations omitted). B.H. acknowledges that this claim is not preserved for appellate review, but he contends that it is an issue of subject matter jurisdiction, which cannot be waived. See Commonwealth Health Corp., 920 S.W.2d at 47. Alternatively, he asks this Court to review this claim for palpable error under RCr10.26.

Kentucky Revised Statute 630.060(2) provides: “No complaint shall be received by the court designated worker alleging habitual truancy unless an adequate assessment of the child has been performed pursuant to KRS 159.140(l)(c), (d), and (f), unless it can be shown that the assessment could not be performed due to the child’s failure to participate.”

In the present case, the Commonwealth did not show that an assessment could not be performed due to B.H.’s failure to participate. Therefore, before the CDW received the complaint alleging that B.H. was a habitual truant, an adequate assessment of B.H. pursuant to KRS 159.140(l)(e), (d), and (f) was required to be performed. In pertinent part, KRS 159.140(1) provides as follows:

The director of pupil personnel, or an assistant appointed under KRS 159.080, shall:
(c) Acquaint the school with the home conditions of a habitual truant as described in KRS 159.150(3), and the home with the work and advantages of the school;
(d) Ascertain the causes of irregular attendance and truancy, through documented contact with the custodian of the student, and seek the elimination of these causes;
(f) Attempt to visit the homes of students who are reported to be in need of books, clothing, or parental care.

The Commonwealth failed to present any evidence showing that the required assessment under KRS 159.140(1) was performed before the complaint was received by the CDW. In T.D., 165 S.W.3d at 482, this Court held that the director of pupil personnel is required to perform the goals set forth in KRS 159.140(l)(c), (d), and (f) before a complaint may be received by a CDW and before a child may be brought before the court, and that these requirements are a matter of subject matter jurisdiction. Thus, because no evidence was presented in the present case to show that the assessment was performed by the DPP before the CDW received the complaint, the CDW should not have received the complaint under KRS 630.060(2) and, according to the T.D. case, the family court should not have assumed jurisdiction over this matter because there was a lack of subject matter jurisdiction.

C. CLAIM THAT FINDING OF GUILT MUST BE SET ASIDE

Although we found, supra, that the court lacked subject matter jurisdiction over the habitual truancy petition in this case, we nevertheless will address B.H.’s remaining claims to the extent they may arise again during family court adjudications.

B.H. next asserts that the finding of guilt must be set aside because there was no admission and no plea colloquy. He alleges that counsel was appointed for him and counsel advised the court “that B.H. was willing to stipulate to habitual truancy,” but “B.H. did not admit to habitual truancy nor was there a Boykin v. Alabama, 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274] (1969) colloquy.” B.H. acknowledges that this claim is not preserved for appellate review, but he asks this Court to review this claim for palpable error under RCr 10.26.

Kentucky Rule of Criminal Procedure 10.26 provides as follows: “A palpable error which affects the substantial rights of a party may be considered ... by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.”

As applied and analyzed in J.D. v. Commonwealth, 211 S.W.3d 60, 61-62 (Ky.App.2006),

Boykin is the seminal case in the arena of the validity of a guilty plea. In Boy-kin, the U.S. Supreme Court stated that “[sjeveral federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.... We cannot presume a waiver of these [] important federal rights from a silent record.” [Boykin,] 395 U.S. at 243, 89 S.Ct. 1709. The Supreme Court ultimately held that the trial court committed error when it “accept[ed] petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” Id. at 242, 89 S.Ct. 1709. In D.R. [v. Commonwealth, 64 S.W.3d 292 (Ky.App.2001) ], this Court stated that “it [is] beyond controversy that Boykin [ ] applies to juvenile adjudications.” 64 S.W.3d at 294, FN2. The D.R. court went on to state that:
The validity of a guilty plea must be determined not from specific key words uttered at the time the plea was taken, but from considering the totality of circumstances surrounding the plea.... These circumstances include the accused’s demeanor, background and experience, and whether the record reveals that the plea was voluntarily made. Id. at 294.
The Sixth Circuit Court of Appeals has also weighed in on this issue in a federal case arising out of the Western District of Kentucky, for which the juvenile had counsel. In Laswell v. Frey, 45 F.3d 1011, 1015 (6th Cir.1995), the court stated:
Upon review, this Court notes that an adjudication demands a determination of the truth or falsity of the allegations, and that a determination of the truth requires more than the simple verbal admission at the detention hearing at issue in the instant case. The Court is persuaded that, because no inquiry was made of the veracity of the charges or admission, because no inquiry was made to determine if “the plea” was voluntarily made, and because no inquiry was made as to the nature of the charges, that the proceedings cannot later be transformed from a determination of probable cause for detention into an acceptance of a valid guilty plea.
Our review of the record reveals that the district court explained J.D.’s Boy-kin rights to him only during the August detention hearing related to the terroristic threatening charge. However, the district court did not specifically review these rights in the context of his decision to admit to both the terroristic threatening and assault charges the following month. In fact, J.D. had never been apprised of his Boykin rights in relation to either the assault or beyond control charges. Thus, there is no evidence in the record to establish that his admission to the charges was voluntary and intelligent at the time it was entered. The situation in this case is quite similar to those of D.R. and Laswell, although J.D. was represented by counsel, unlike D.R. in his case.
The record in the present case shows that under any test, the bare minimum for compliance with Boykin was not met. We recognize that juvenile proceedings are by nature less formal than adult proceedings; and we are aware of the great number of cases most district judges handle. However, juvenile adjudication proceedings must meet constitutional muster, and this one does not. There was no colloquy whatsoever; and from the record it appears that the juvenile’s attorney responded to the district judge’s questions at the adjudication. Under KRS 610.080(1), “[t]he adjudication shall determine the truth or falsity of the allegations in the petition and shall be made on the basis of an admission or confession of the child to the court or by the taking of evidence.” (Emphasis added).
Based upon binding precedent, we must hold that the district court improperly accepted J.D.’s admission of guilt without first informing him of his Boy-kin rights at the time it accepted the plea, a step necessary to establishing that his plea was voluntary and intelligent. Accordingly, the district court should have granted J.D.’s motion to set aside the adjudication and disposition. The circuit court, in turn, committed reversible error in affirming the district court’s ruling.

(Underline added; internal notes omitted).

Upon reviewing the video record from the March 31, 2008 hearing, it is apparent that counsel was appointed to represent B.H., and counsel then stipulated to the charge of habitual truancy. However, B.H. never personally admitted his guilt; therefore, we are not certain that he actually did admit to the status offense charged. Regardless, even if we were to assume that counsel’s stipulation qualified as an admission of guilt, the court never conducted the required Boyldn colloquy and counsel’s stipulation to the charge, without the appropriate colloquy, does not pass constitutional muster under J.D. Nonetheless, on the same day as the hearing, the court entered a JSOO, finding B.H. was a status offender because he was a habitual truant pursuant to KRS 600.020(28), and ordering him to obey the rules of his home; attend school on time, with no unexcused absences and no behavior problems at school; not consume, use or possess any alcoholic beverages, tobacco products or illegal drugs; and submit to random drug testing.

There was no evidence that B.H. had any previous experience with the court system. Further, because the court did not conduct the required colloquy with B.H. and did not inform him of the constitutional rights he was purportedly waiving, B.H.’s guilty plea was not made knowingly and intelligently. See D.R., 64 S.W.3d at 295-96. We find this error by the family court amounts to palpable error, requiring reversal of B.H.’s guilty plea.

D. CLAIM REGARDING B.H.’S COMMISSION TO THE CABINET

Finally, B.H. alleges that the court committed reversible error by committing B.H. to the Cabinet based on violations of a JSOO. Specifically, B.H. contends that the

only consequence for violation of the order of which [he] was given notice [was] that he could be held in contempt “which could result in a fine and/or [his] being placed in secure detention or other alternative placement.” KRS 630.120(1) states that any child violating a JSOO “may be subject to the provisions of KRS 630.080(4)” which deals with secure detention for contempt. B.H. was never advised at the disposition hearing or thereafter that he faced possible commitment to the Cabinet if he violated the JSOO and commitment was thus not an option for the court.

Again, B.H. acknowledges that this claim was not preserved for appellate review, but he asks us to review it for palpable error under RCr 10.26.

B.H. admits in his brief that the court informed him he “could be held in contempt ‘which could result in a fine and/or [his] being placed in secure detention or other alternative placement.’ ” (Emphasis added). Therefore, because he was warned that he could be placed somewhere else if he was held in contempt, he was given notice of the consequences for violating the court’s order. However, our review of this issue is futile because, as discussed supra, the family court did not have subject matter jurisdiction over the habitual truancy petition from the start. Moreover, even if the court had subject matter jurisdiction, B.H.’s guilty plea would have to be reversed because it was not entered voluntarily and intelligently and, thus, the JSOO was an invalid court order and B.H. could not be held in contempt for violating an order that was not valid.

Accordingly, the order of the Fayette Family Court is vacated, and the case is remanded with instructions for the court to dismiss the action from its docket.

ALL CONCUR.

      . Kentucky Revised Statute(s).

      . This was the first indication in the record that B.H. was working with diversion.

      . This was the first indication in the record that B.H. had been receiving any social services assistance.

      .No explanation was provided for what “FCO” means.

      . Kentucky Rule(s) of Criminal Procedure.