author: PER CURIAM.

text:
    2009 Ark. 345
    Don GENTRY, County Judge, and Phillips County, Arkansas, Appellants, v. Christine ROBINSON, Appellee.
    No. 08-1452.
    Supreme Court of Arkansas.
    June 4, 2009.
    C. Burt Newell, Hot Springs, for appellants.
    Don R. Etherly, Helena, for appellee.
   PER CURIAM.

11 This is an interlocutory appeal from an order of the Phillips County Circuit Court granting in part and denying in part appellant Don Gentry’s motion for summary judgment on statutory immunity grounds. Gentry is the elected County Judge of Phillips County. On January 30, 2003, appellee Christine Robinson filed a complaint against Gentry and Phillips County, alleging that she had been raped by a jailer, Jimmy Ward, while she was an inmate at the Phillips County Jail. Her complaint contended that Ward’s actions violated her rights protected by the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-106 (Repl.2006). She further maintained that the County owed a duty to protect her while she was incarcerated in a county facility, and that the County “failed to properly screen and hire employees of its jail [and] failed to conduct a proper background check of Jimmy Ward, |2which would have revealed he had engaged in similar acts in the past.” She further alleged that Ward was “negligently hired and retained by Phillips County,” and that Ward’s actions violated the Arkansas Civil Rights Act.

Gentry and the County answered on February 20, 2003, asserting that Robinson’s complaint faded to state a cause of action upon which relief could be granted. The defendants subsequently moved for summary judgment on October 12, 2004, arguing that the pleadings and discovery documents, including deposition transcripts, revealed that there were no material facts in dispute. Gentry contended that Robinson’s complaint should be “dismissed as a matter of law since there is no basis for liability as asserted by the plaintiff in her complaint based upon the undisputed facts in the record.” In support of his summary-judgment motion, Gentry attached transcripts of depositions from Robinson, Sheriff T.L. Green, and jail administrator Oscar Hoskins. Both Green and Hoskins averred that it was the County’s policy to conduct background checks on all potential employees.

In a brief accompanying his summary-judgment motion, Gentry argued that, at all times relevant to the suit, it was the policy of the Phillips County Sheriffs Office to do background checks on new employees, including jail staff. He also asserted that it was the jail’s policy to never allow a male staff member to have contact with a female inmate unless there was a female matron present. Gentry further argued that the County’s liability in a civil-rights action could only be established by showing that Robinson’s rights were violated |sby an action pursuant to official municipal policy or misconduct so pervasive among non-policy-making County employees “as to constitute a custom or usage with the force of law.” Moreover, citing Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), Gentry argued that there could be no official-capacity liability based upon theories of respon-deat superior.

Gentry also noted that Robinson’s claims of constitutional violations stemmed from the County’s alleged negligent hiring of Ward. Pointing out that the County enjoyed statutory immunity from tort actions, see Ark.Code Ann. § 21-9-301 (Repl.2004), Gentry urged that no tort action — such as Robinson’s negligent-hiring claim — could lie against the County because of the actions of its agents or employees. Gentry argued that, to the extent that this “negligent hiring” could be considered a constitutional violation that could be maintained under the Civil Rights Act, then Robinson could not prevail “because Phillips County had a policy of performing background checks on applicants such as Jimmy Ward and, in fact, did a background check prior to his hire.” Therefore, Gentry concluded that Robinson had failed to raise a genuine issue of material fact concerning the existence of a pattern of unconstitutional misconduct or deliberate indifference to or tacit authorization of such conduct by the County.

Robinson replied to Gentry’s motion for summary judgment on November 12, 2004. In her accompanying brief, she pointed to Hoskins’s deposition testimony that he did not Rrecall the actual hiring of Jimmy Ward; further, although he said that the general process involved gathering the criminal records of an applicant to determine if he or she was fit to work in the jail, Hoskins said that he never reviewed NCIC records for any potential employee for the jail. Robinson also pointed to Green’s deposition testimony, wherein he stated that he never participated in criminal background checks for jail employees.

Based on these depositions, Robinson alleged that it was “clear that Phillips County either had no policies in place to protect the plaintiff or it chose to ignore or disregard the existing policies.” Robinson urged that there were disputed issues of fact that precluded granting Gentry’s motion for summary judgment.

After a hearing on November 13, 2008, the circuit court entered an order in which it granted Gentry’s motion for summary judgment in part and dismissed Robinson’s tort claims. However, the court denied the motion relative to Robinson’s claims that Gentry and the County had violated the Arkansas Civil Rights Act. Gentry filed a timely notice of appeal, and he now urges this court to conclude that Robinson’s complaint should have been dismissed in its entirety.

We are unable to reach the merits of Gentry’s arguments, however, because he has failed to comply with Arkansas Supreme Court Rule 4-2(a)(5). Rule 4-2(a)(5) provides, in pertinent part, as follows:

|5The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision. Depositions shall be abstracted in a similar fashion.

The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Ark. Sup.Ct. R. 4 — 2(b)(3):

Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4 — 2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

In this case, although Gentry’s motion for summary judgment and Robinson’s response thereto relied heavily on the transcripts of the depositions given by Hoskins and Green, Gentry failed to abstract material parts of those documents. While he did provide one page of Hoskins’s deposition in his addendum, that sole page does not touch on Hoskins’s testimony concerning the County’s policies regarding background checks on ^prospective employees. No portions of Green’s deposition were abstracted or included in the addendum.

Accordingly, pursuant to Ark. Sup.Ct. R. 4-2, we order Gentry to file a substituted brief, abstract, and addendum that abstracts the relevant portions of Hoskins’s and Green’s deposition testimony, along with any other portions of depositions that are determined to be necessary to an understanding of all questions presented to this court for decision. See Meyer v. CDI Contractors, LLC, 2009 Ark. 115, 313 S.W.3d 519 (per curiam) (failure to abstract depositions that supported a motion for summary judgment necessitated re-briefing). The substituted brief, abstract, and addendum shall be submitted within fifteen days from the date of entry of this order. We encourage appellate counsel, prior to filing the substituted brief, to review our rules and the substituted abstract and addendum to ensure that no additional deficiencies are present. See Dachs v. Hendrix, 2009 Ark. 322, 320 S.W.3d 645 (per curiam); Roberts v. Roberts, 2009 Ark. 306, 319 S.W.3d 234 (per curiam). If Gentry fails to do so within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted abstract, brief, and addendum, Robinson shall have an opportunity to revise or supplement her brief in the time prescribed by the court.

Rebriefing ordered.


source: Caselaw Access Project

author: JOSEPHINE LINKER HART, Judge.

license: Public Domain

text:
    2009 Ark. App. 405
    ALLIANCE STEEL, INC., Appellant, v. TNT CONSTRUCTION, INC., and Tillman Adkins, Appellees.
    No. CA 08-986.
    Court of Appeals of Arkansas.
    May 20, 2009.
    Hardin Jesson & Terry, PLC, by: J. Leslie Evitts III, Fort Smith; and McAfee & Taft, A Professional Corporation, by: Ross A. Plourde, Oklahoma, OK, for appellant.

      Osmon & Ethredge, P.A., by: David L. Ethredge and Johnnie A. Copeland, Mountain Home, for appellees.
   JOSEPHINE LINKER HART, Judge.

| Appellant, Alliance Steel, Inc. (Alliance), appeals from the circuit court’s judgment rejecting both its fraud and negligence claims against appellee Tillman Adkins, but awarding it judgment against appellee TNT Construction, Inc. (TNT) on Alliance’s contract claim against TNT. On appeal, Alliance asserts that the court erred in rejecting the fraud and negligence claims. We affirm the circuit court’s decision.

On June 10, 2002, TNT contracted with the Omaha School District to construct a metal building for the sum of $168,000. Also on June 10, 2002, TNT executed a contract with Alliance for the purchase of a metal building for the sum of $83,611. The contract was signed by Tillman Adkins, as president of TNT, and subsequent change orders were made to the contract increasing the price to $83,655.

|2Before executing the contract with TNT, Alliance prepared and required TNT to complete a document entitled “Jobsite Information Sheet,” which in part asked, “Is the project bonded?” The question was answered, “Yes.” The document further provided, “If yes, attach a copy of the bond.” A bond, however, was not attached. In fact, no payment bond was ever applied for or issued.

Alliance completed manufacture of the building and delivered it to TNT. The Omaha School District paid TNT as agreed, but Alliance was not fully paid by TNT. Alliance brought a cause of action against TNT alleging breach of contract. Alliance also sought recovery from TNT and Adkins, alleging that “[pjrior to Alliance entering into the contract, and to induce Alliance to enter into the contract, Adkins expressly represented to Alliance that TNT had obtained a payment bond to assure all amounts that may become due to Alliance under the contract,” that “Alliance reasonably relied on Adkins’s representation by entering into the contract,” that “Alliance would not have entered into the contract but for Adkins’s representation,” that “contrary to Adkins’s express representation, TNT did not obtain a payment bond,” and that Alliance suffered damages “[a]s a direct consequence of Adkins’s misrepresentation.” Further, Alliance sought recovery against Adkins, alleging that Adkins “undertook the obligation and duty to obtain a payment bond,” Lthat Adkins “represented to Alliance that he had obtained a payment bond to assure all amounts that may become due and payable to Alliance under the contract,” that “Adkins failed and neglected to actually obtain the payment bond in breach of his duty to Alliance,” and that “[a]s a result of the negligence of Adkins in failing to obtain a payment bond,” Alliance suffered damages.

Following a hearing, the circuit court found in favor of Alliance on its breach-of-contract claim. On the claim of fraud, the circuit court found that the representation in the Jobsite Information Sheet that there was a payment bond was false. The court noted, however, that no bond was attached as requested. The court opined that, to claim fraud or constructive fraud, one has an affirmative duty to make further inquiry into conflicting information, and Alliance’s failure to require a copy of the bond before entering into the contract precluded Alliance from claiming fraud or constructive fraud. On the negligence claim, the court concluded that Adkins “merely failed to obtain the bond,” and that this was “nonfeasance which will not give rise to a tort claim against him.”

On appeal from the circuit court’s decision, Alliance raises two points. First, Alliance asserts that the court erred in rejecting its fraud claim against Adkins. Specifically, Alliance argues that the circuit court “imposed on Alliance a duty to investigate the truth of Adkins’s representation” when “[n]o such duty exists.” Second, Alliance asserts that the court erred in rejecting Alliance’s negligence claim against Adkins. It argues that Adkins, “as the party acting on behalf of TNT, owed a duty to subcontractors and materialmen like Alliance to obtain a bond, that it negligently breached that duty, and that Alliance suffered damages |4as a result of that breach.” Alliance cites to Ark.Code Ann. § 18-44-508(a) (Repl.2003), as requiring TNT to post a bond.

The statute cited by Alliance provides in part that “[n]o contract in any sum exceeding twenty thousand dollars ($20,000) providing for the repair, alteration, or erection of any public building, public structure, or public improvement shall be entered into by ... any ... school district ... unless the contractor shall furnish to the party letting the contract a bond in a sum equal to the amount of the contract.” Ark.Code Ann. § 18-44-503(a). Further, “[bjefore any work is performed under the contract, the bond shall be filed with the clerk of the circuit court of the county in which the repairs, alterations, or erection of any building, structure, or improvements are made.” ArlcCode Ann. § 18-44-507 (Repl.2003).

The effect of these statutes was discussed in Beebe School District v. National Supply Co., 280 Ark. 340, 658 S.W.2d 372 (1983). There, a school district contracted with a contractor to supply materials and perform labor in connection with work on a school gymnasium. The contractor neither furnished nor filed a contractor’s bond as required by the statutes. The contractor purchased building supplies from a materialman, but after the school district paid the contractor, the contractor failed to fully pay the materialman for the materials purchased and used in the gymnasium. After the project was completed, the materialman discovered that no bond existed and that the contractor was insolvent.

|fiThe Arkansas Supreme Court reversed the chancellor’s imposition of an equitable lien on the gymnasium, and further, found no merit in the materialman’s allegations of constructive fraud and unjust enrichment. The court stated, “Although the statute does require a contractor’s bond, we have placed the burden on materialmen dealing with a contractor to check the public records to verify the fact that such a bond has been obtained before selling supplies to the contractor.” 280 Ark. at 343, 658 S.W.2d at 374. Further, it stated that the “duty was clearly on the [materialman] to ascertain whether a contractor’s bond was filed.” 280 Ark. at 344, 658 S.W.2d at 374.

Thus, Beebe School District answers both issues raised by Alliance. While Alliance argues that it had no duty to investigate the truth of Adkins’s representations, in Beebe School District, the Arkansas Supreme Court rejected a claim of constructive fraud and squarely placed the burden on the materialman to check public records to determine if there was a bond filed of record. Thus, contrary to Alliance’s assertion, it cannot make out a claim of fraud, as it did not determine that there was not a bond until after it had provided supplies to Alliance. As for Alliance’s assertion that Adkins owed a duty to Alliance to obtain a bond, again, the Arkansas Supreme Court in Beebe School District indicated that it was instead Alliance’s duty to determine whether a bond was filed. Thus, as Alliance had a duty to determine whether a bond was filed, Alliance cannot make out a claim of negligence based on its assertion that TNT and Adkins had a duty to obtain a bond. Accordingly, we |fiaffirm the circuit court’s decision.

Affirmed.

ROBBINS and BAKER, JJ., agree.

      . We may affirm the trial court where it is correct, but states wrong reason for its ruling. See, e.g., Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988).


author: CAPERTON, Judge:

text:
    Gregory VALENTINE, Appellant, v. PERSONNEL CABINET, COMMONWEALTH of Kentucky; and Department of Corrections, Appellees.
    No. 2008-CA-001947-MR.
    Court of Appeals of Kentucky.
    July 30, 2010.
    Gregory Valentine, Fredonia, KY, pro se.
    Wesley W. Duke, Frankfort, KY, for appellees.
    Before CAPERTON and STUMBO, Judges; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert 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

CAPERTON, Judge:

Gregory Valentine appeals from the Franklin Circuit Court’s Opinion and Order entered September 19, 2008, wherein the court determined that Valentine’s request under the Kentucky Open Records Act for the personnel file of the prosecuting attorney in his criminal case would amount to a “clearly unwarranted invasion of personal privacy” under the exclusion in KRS 61.878(l)(a). Accordingly, the court reversed the Attorney General’s opinion stating that Valentine was entitled to said records, and dismissed Valentine’s complaint. After a thorough review of the parties’ arguments, the record and the applicable law, we find no error and, accordingly, affirm the opinion and order of the circuit court.

Valentine submitted a request under the Kentucky Open Records Act for the personnel file of the prosecuting attorney in his criminal case to the Personnel Cabinet. In response to relevant caselaw, the Cabinet contacted said prosecutor for the opportunity to make an objection. In response, she objected to the release of personal details. The Cabinet informed Valentine that his request was denied and he appealed to the Attorney General.

In 07-ORD-175, the Office of the Attorney General determined that KRS 61.878(l)(a) required the Cabinet to remove social security number, home address, telephone number, marital status, date of birth, medical records, evaluations, and those documents unrelated to job qualifications or performance. However, the opinion further held that the personnel file of a public employee is otherwise subject to inspection and that to hold otherwise would violate the Open Records Act. Thus, the Attorney General determined that the Cabinet could redact the excepted material and make the non-excepted material available to Valentine.

The Attorney General then determined that the Cabinet had wrongfully relied upon KRS 197.025 when it told Valentine that “the Department of Corrections is not required to comply with a request for any record from any inmate ... unless the request is for a record that contains a specific reference to that individual.” The Cabinet then appealed the Attorney General’s decision to the Franklin Circuit Court.

In its opinion and order entered September 19, 2008, the court first undertook a review of the record and noted that it had several cases pending from Valentine involving open records requests. The court took judicial notice that Valentine had requested the personnel records for several prosecuting attorneys, multiple judges, and one of his sexual assault victims. The court noted that it had previously affirmed the denial of his open records request for information regarding the records of his victim. After reviewing the records, the trial court found that much of the same reasoning applied to Valentine’s current case.

The court then undertook an analysis of the law and its application to Valentine’s appeal. The court noted that the interests to be weighed in determining whether an open records request should be denied under KRS 61.878(l)(a) are the public’s interest in knowing whether its agencies are properly executing their statutory functions and an individual’s interest in privacy. The court found that it is of paramount importance to note that the policy of disclosure is purposed to serve the public interest and not to satisfy the public’s curiosity.

After so stating, the court determined that Valentine’s request would serve no valid public interest and appeared to be motivated only by personal curiosity. The court found this particularly alarming, as Valentine sought to discover the personal details of everyone involved in his criminal conviction.

The court acknowledged that KRS 61.878(4) discusses the possibility of redacting exempted information where a requested record contains both personal information exempt from disclosure and information not sufficiently personal to meet the exemption. However, in the case sub judice, the court reviewed the record and surrounding circumstances and reached the conclusion that, under the facts as presented, releasing any of the information requested would amount to a “clearly unwarranted invasion of personal privacy” under the exclusion in KRS 61.878(l)(a).

This determination by the court is akin to a finding of fact that no information other than personal information could be found in the personnel record which, by statute, is exempt from disclosure. Thus, the court reversed the Attorney General’s determination that Valentine was entitled to the personnel records of his prosecuting attorney. It is from this order that Valentine now appeals.

On appeal, Valentine argues that the order of the court sustaining the blanket denial of his open records requests for portions of the personnel files of certain present and former employees of the Jefferson County Commonwealth’s Attorney’s Office was clearly erroneous. The Cabinet disagrees and argues that the court correctly determined that Valentine’s request would amount to a clearly unwarranted invasion of personal privacy under the exclusion set out in KRS 61.878(l)(a). With these arguments in mind we turn to our applicable law.

In Medley v. Board of Educ., Shelby County, 168 S.W.3d 398, 402 (Ky.App.2004), this Court set out the appropriate appellate standard of review of an open records request:

We note at the outset that the circuit court’s review of an Attorney General’s opinion is de novo. As such, we review the circuit court’s opinion as we would the decision of a trial court. Questions of law are reviewed anew by this Court. When there are questions of fact, or mixed questions of law and fact, we review the circuit court’s decision pursuant to the clearly erroneous standard. Under this standard, this Court will only set aside the findings of fact of the circuit court if those findings are clearly erroneous. The dispositive question is whether the findings are supported by “substantial evidence.” “Substantial evidence” is evidence “that a reasonable mind would accept as adequate to support a conclusion,” and evidence that, when “taken alone or in the light of all the evidence ... has sufficient probative value to induce conviction in the minds of reasonable men.”

Medley at 402 (internal citations omitted).

In so reviewing, we must bear in mind that the “government entity seeking to withhold a record from disclosure under the open records act bears the burden of proving the exempt status of the record.” Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government, 297 S.W.3d 579, 583 (Ky.App.2009). Moreover, this Court is not bound by the Attorney General’s opinions, but such opinions are highly persuasive. Id. quoting Medley, supra.

The Kentucky Open Records Act is codified in KRS Chapter 61. KRS 61.878 sets out the exclusions to the act, including, KRS 61.878(l)(a) which excludes, “Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]” To determine if the clearly unwarranted invasion of personal privacy exclusion applies,

[O]ur Court must initially determine whether such record or information contained therein is of a “personal nature.” Palmer v. Driggers, 60 S.W.3d 591 (Ky.App.2001). If the record or information is of a personal natui'e, we must then determine “whether public disclosure ‘would constitute a clearly unwarranted invasion of personal privacy.’ ” Zink v. Com., 902 S.W.2d 825, 828 (Ky.App.1994)(quoting Ky. Bd. of Exam’rs, 826 S.W.2d at 326). To so determine, our Court must engage in a “comparative weighing of the antagonistic interests” as discussed in the case of Kentucky Board of Examiners [at 327-328]:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is “clearly unwarranted” is intrinsically situational, and can only be determined within a specific context.

Lexington H-L Services, Inc., at 584.

In the case sub judice, we agree with the trial court that the record sought contains information of a personal nature. See id. In weighing the antagonistic interests of the public’s right to know versus the privacy interest, we must bear in mind that, “The public’s ‘right to know’ under the Open Records Act is premised upon the public’s right to expect its agencies properly to execute their statutory functions.” Kentucky Bd. of Examiners of Psychologists and Div. of Occupations and Professions, Dept. for Admin. v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky.1992).

In the case sub judice, the information sought by Valentine serves no valid public interest. When balanced against the invasion of privacy sought by Valentine’s request to obtain the personnel records of his prosecuting attorney, the balance must tip in favor of privacy. Moreover, we are unaware, nor has Valentine enlightened us, how such a request would advance the public’s interest in assuring that the agency in question was properly performing its function. As such, we agree with the court that releasing any of the information requested would amount to a clearly unwarranted invasion of personal privacy under the exclusion in KRS 61.878(l)(a). Accordingly, the trial court did not err in its determination.

In light of the aforementioned, we affirm.

ALL CONCUR.


author: CLAYTON, Judge.

text:
    James Henry BERRY v. COMMONWEALTH of Kentucky.
    No. 2009-CA-000951-MR.
    Court of Appeals of Kentucky.
    Sept. 17, 2010.

      Mark G. Hall, Louisville, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Frankfort, KY, for appellee.
    Before TAYLOR, Chief Judge; CLAYTON and THOMPSON, Judges.
   OPINION

CLAYTON, Judge.

James Henry Berry appeals from the Jefferson Circuit Court’s denial of his fourth collateral motion for a new trial pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We affirm.

In 1987, James Berry was tried and convicted of murder and of being a persistent felony offender (“PFO”), in the first degree. Berry was sentenced to life for the murder conviction, which was enhanced to two hundred years pursuant to the PFO charge. On direct appeal, the PFO conviction was vacated with directions that Berry be resentenced to life imprisonment. See Berry v. Com., 782 S.W.2d 625 (Ky.1990). The Supreme Court also held that it was not error to fail to disclose an oral statement of a witness in discovery as oral statements did not fall within the meaning or intent of Kentucky Rules of Criminal Procedure (RCr) 7.24.

In 1995, Berry filed a combined CR 60.02 and RCr 11.42 motion, primarily arguing that his indictment and trial on murder as a Class A felony violated a number of his protections under the United States and Kentucky constitutions. Berry further argued that to resentence him under the Kentucky Supreme Court’s mandate would be a denial of his constitutional rights. The Jefferson Circuit Court denied this motion and this Court affirmed. See unpublished, opinion, Berry v. Com., (No.1995-CA-000403-MR)(Ky.App. Sep. 6, 1996).

In 1999, Berry filed a second CR 60.02 motion, asserting that because his offense was not a Class A felony and was not treated as a capital offense, the maximum sentence he could receive was twenty years for a Class B felony. The Jefferson Circuit Court denied this motion, and this Court affirmed the denial. See unpublished opinion, Berry v. Com., (No. 2000-CA-001121-MR)(Ky.App. June 1, 2001).

In 2006, Berry filed a third CR 60.02 motion, requesting a new sentencing hearing. Again, the Jefferson Circuit Court denied this motion, and this Court affirmed that decision. See unpublished opinion, Berry v. Com., (No. 2007-CA-001094-MR), 2008 WL 612457 (Ky.App. Mar. 7, 2008) (with discretionary review denied on Sept. 10, 2008, noting that it was controlled by the law of the case and the holding in Gross v. Com., 648 S.W.2d 853 (Ky.1983)).

On December 30, 2008, Berry filed this fourth collateral CR 60.02 motion seeking a new trial based upon the case of Chestnut v. Com., 250 S.W.3d 288 (Ky.2008), which reversed the legal precedent from his direct appeal that limited discovery to written or recorded statements. The Jefferson Circuit Court summarily denied this motion. Berry then filed this appeal of the circuit court’s decision.

The issue, therefore, on appeal is whether the trial court erred in denying Berry’s CR 60.02 motion for a new trial based upon the Supreme Court’s decision in Chestnut, supra. Berry asserts that he should be granted a new trial based on the recent Kentucky Supreme Court decision in Chestnut, which reversed the legal precedent from his direct appeal that limited discovery to written or recorded statements.

In light of the aforementioned arguments, we now turn to our established jurisprudence.

STANDARD OF REVIEW

We review the denial of a CR 60.02 motion under an abuse of discretion standard. White v. Com., 32 S.W.3d 83, 86 (Ky.App.2000); Brown v. Com., 932 S.W.2d 359, 361 (Ky.1996). The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Com. v. English, 993 S.W.2d 941, 945 (Ky.1999). Therefore, we affirm the lower court’s decision unless there is a showing of some “flagrant miscarriage of justice.” Gross v. Com., 648 S.W.2d 853, 858 (Ky.1983).

DISCUSSION

After a thorough examination of the entire record and trial transcripts we affirm the decision of the Jefferson Circuit Court that denied Berry’s motion for relief. This is not a case involving a “flagrant miscarriage of justice.” There was enough convincing evidence aside from the testimony of Beverly Parham that allowed the jury to return a guilty verdict. A second witness identified Berry and Berry’s hands showed traces of gunshot residue a few short hours after the shooting occurred. We are convinced that Berry received a fair trial and his sentence should not be set aside. Berry has received significant direct and collateral review since his conviction over twenty years ago. There was certainly not a “flagrant miscarriage of justice” warranting a new trial.

Berry argues in his brief that the recent change in law in Chestnut should retroactively apply to his particular case. Berry is seeking remediation of a legal decision that was correct under the case law in existence at the time of his trial. This is an improper use of a CR 60.02 motion. A change in the law simply is not grounds for CR 60.02 relief except in “aggravated cases where there are strong equities.” Reed v. Reed, 484 S.W.2d 844, 847 (Ky.1972). That is not the case here.

In Chestnut, the Supreme Court held that the trial court had committed reversible error in failing to grant a mistrial when it allowed the introduction of testimony made by a witness at trial that was not disclosed to the defendant prior to trial as required by RCr 7.24(1) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Berry asserts that similarly, during his trial, counsel made very specific objections to the statements made by the witness; however, the statements were admitted and considered by the jury. Further, Berry alleges that the change in witness testimony was never disclosed to the defense prior to trial, resulting in a violation of the Commonwealth’s duty to provide open file discovery. RCr 7.24.

The proscription against “applying new rules retroactively once a judgment is final on direct review makes sense, given the interest in finality of judgments.” Leonard v. Com., 279 S.W.3d 151 (Ky.2009). To permit a retroactive application of the Chestnut decision in Berry’s case would wholly vitiate the finality of judgments in that each change in the law would allow or require relitigation of the facts and the law of every case.

In the present action, the Supreme Court has already heard Berry’s argument in Berry, 782 S.W.2d 625. The Court specifically denied his request for relief from his judgment on this issue. This is the law of the case, and the circuit court in no way abused its discretion in denying Berry’s CR 60.02 motion on the same issue.

Thus, Berry is not entitled to CR 60.02 relief and the circuit court did not err in denying Berry’s motion requesting that his conviction be set aside and remanded for a new trial. For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.

ALL CONCUR.


author: TAYLOR, Chief Judge: HENRY, Senior Judge,

text:
    Rocky HAMBLEN, by and through Guardian, Yulonger BYARS, Appellant, v. KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; Kentucky Department for Mental Health and Mental Retardation Services; Central State Hospital ICF/MR; John L. Kiesel, M.D.; and T. Richelle Jones, Appellees.
    No. 2009-CA-000369-MR.
    Court of Appeals of Kentucky.
    Sept. 17, 2010.

      Oliver H. Barber, Jr., Louisville, KY, for appellant.
    D. Brent Irvin, Frankfort, KY, for ap-pellees, Kentucky Cabinet for Health and Family Services; Kentucky Department for Mental Health and Mental Retardation Services; Central State Hospital ICF/MR; and T. Richelle Jones.
    W. Gregory King, Seth A. Gladstein, Louisville, KY, for appellee, John L. Kies-el, M.D.
    Before TAYLOR, Chief Judge; COMBS, Judge; HENRY, Senior Judge.

      . Senior Judge Michael L. Henry silting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes 21.580.

   OPINION

TAYLOR, Chief Judge:

Rocky Hamblen, by and through his Guardian, Yulonger Byars, brings this appeal from a November 12, 2008, summary judgment of the Jefferson Circuit Court dismissing the complaint in its entirety. We affirm in part, vacate in part, and remand.

Rocky Hamblen suffers from profound mental retardation and has been a resident of Central State Hospital ICF/MR since 1977. While Hamblen is approximately 61 years old, he has an “adaptive age equivalent of one year and three months” and requires full-time assistance to meet his daily living needs. Complaint at 2. Ham-blen also has been diagnosed with the following physical ailments: mild dsyphagia, retinitis pigmentosa, hypothyroidism, os-teopenia, chronic hyponatremia, chronic constipation, hepatitis B antigen positive, tardive dyskinesia, and Kienboch’s disease (avascular necrosis lunate).

Hamblen, through his guardian, Yulon-ger Byars, (referred to as appellant) filed a complaint against Kentucky Cabinet for Health and Family Services (Cabinet), Kentucky Department for Mental Health and Mental Retardation Services (Department), Central State Hospital ICF/MR (Central State), John L. Kiesel, M.D., and T. Richelle Jones (collectively referred to as “appellees”). The complaint was filed “to redress injuries sustained by ... Ham-blen, during the term of his care, custody and control while a resident at Central State ... and to compel [appellees] to provide proper and appropriate treatment to ... Hamblen.” Complaint at 2. Appellant alleged that Hamblen was subjected to physical abuse, verbal abuse, and neglect by Central State staff. The abuse and neglect resulted in eye bruises, ear bruises, face fractures, head injuries, and lacerations. Appellant claimed that appel-lees violated sundry duties under Kentucky Revised Statutes (KRS) 202A.191, KRS 202B.050, KRS 202B.060 and 908 Kentucky Administrative Regulations (KAR) 3:010. Appellant sought both monetary damages and prospective injunctive relief.

Appellees answered and subsequently filed a notice of removal to the United States District Court. In support thereof, appellees argued that appellant raised claims for relief under 42 U.S.C. § 1983. The action was removed to the United States District Court. Appellant then filed a motion to remand the action to Jefferson Circuit Court. In the motion, appellant argued that he only raised state law claims and did not raise any claims under 42 U.S.C. § 1983. The United States District Court ordered the action remanded to the Jefferson Circuit Court and concluded that “no claims for relief under [42 U.S.C.] Section 1983 were set out by” appellant.

After remand to the circuit court, appel-lees filed a motion for summary judgment. In the motion, appellees argued they were immune from suit under both sovereign immunity and governmental immunity. By summary judgment, the circuit court dismissed appellant’s complaint in its entirety upon the basis of governmental immunity. This appeal follows.

Appellant contends that the circuit court erred by rendering summary judgment in favor of appellees and dismissing his complaint upon the basis of governmental immunity. Summary judgment is proper where there exists no material issue of fact and movant is entitled to judgment as a matter of law. Kentucky Rules of Civil Procedure 56; Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). In rendering summary judgment, the circuit court concluded that appellant’s claims for monetary damages and for prospective injunctive relief were barred by the doctrine of governmental immunity and specifically held:

Hamblen’s Complaint seeks a judgment against the Defendants, an order compelling the Defendants to perform their respective duties according to the applicable statutes and regulations, compensatory damages for physical and emotion[alj damages sustained by Ham-blen and Byars,....
There is no doubt that the state agencies are entitled to governmental immunity. Yanero v. Davis, 65 S.W.3d 510, 519 (Ky.2001). Therefore, Hamblen’s [sic] and Byars’s [sic] claims for compensatory damages against them must fail. Hamblen’s Complaint names the two remaining Defendants, Dr. Kiesel and Jones in their official capacities as medical director and director, respectively. When an officer or employee is sued in his/her representative capacity, such as here, the officer’s or employee’s actions are entitled to the same immunity as the agency is entitled. Id. at 522. Thus, Dr. Kiesel and Jones enjoy the same protection of governmental immunity as their agency employers. Hamblen’s [sic] and Byars’s [sic] claims for compensatory damages against them must fail.
The same is true of Hamblen’s [sic] and Byars’s [sic] claims for prospective injunctive relief. The doctrine of sovereign immunity precludes maintaining any suit against the state without the state’s express consent or express waiver of that immunity. Yanero v. Davis, 65 S.W.3d 510 (Ky.2001). The Commonwealth has not waived its immunity in this instance. The claims for prospective injunctive relief must fail.

Resolution of this appeal is not dependent upon disputed factual issues but rather centers upon a question of law — whether the circuit court erred by determining that appellant’s claims for monetary damages and for prospective injunctive relief were barred by governmental immunity. To answer this question, we examine the law of immunity as it pertains to appellant’s claims.

In this Commonwealth, our Supreme Court has recognized that governmental immunity shields a state agency from civil liability when performing a governmental function. Yanero v. Davis, 65 S.W.3d 510 (Ky.2001); Autry v. W. Ky. Univ., 219 S.W.3d 713 (Ky.2007). This governmental immunity generally operates as a complete bar to claims for both monetary damages and injunctive relief.

Appellant claims entitlement to both monetary damages and prospective injunctive relief based upon appellees’ violation of sundry state laws (KRS 202A.191, KRS 202B.050, KRS 202B.060, and 908 KAR 3:010). Appellees are divided into two categories — state agencies and individuals sued in their official capacities. As state agencies or officials sued in their official capacities, each would be entitled to governmental immunity if performing a governmental function as opposed to a proprietary function. Yanero, 65 S.W.3d 510. A governmental function is generally a function that is integral to state government. Bd. of Trs. of Ky. Ret. Sys. v. Com., Bd. of Claims, 251 S.W.3d 334 (Ky.App.2008). Thus, appellees would be clothed with governmental immunity if performing a governmental as opposed to a proprietary function.

From the record, it is apparent that appellees were performing the functions of. administering programs for individuals with mental illnesses and providing services for the treatment of mentally impaired individuals. KRS 12.020; KRS 194A.010; KRS 194A.030. These functions were undoubtedly vital functions carried out under the direct auspices of state government and were functions integral to state government. Indeed, the Department, the Cabinet, and Central State are funded by the state. See Autry v. W. Ky. Univ., 219 S.W.3d 713 (Ky.2007). As appellees were clearly performing governmental functions, we, thus, conclude that appellees are entitled to assert the defense of governmental immunity. Appellant, however, maintains that an exception to the defense of immunity permits his claim for prospective injunctive relief against ap-pellees to proceed and cites to the Ex parte Young exception.

The Ex parte Young exception is a limited exception to the immunity defense. This exception was first expressed over a century ago in the United States Supreme Court case of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and has since enjoyed wide-spread contemporary acceptance. The Kentucky Supreme Court has also approvingly recognized the Ex parte Young exception. See Bd. of Trs. of the Univ. of Ky. v. Hayse, 782 S.W.2d 609 (Ky.1989) (overruled on other grounds by Yanero v. Davis, 65 S.W.3d 510 (Ky.2001)).

Under the Ex parte Young exception to immunity, a court may grant prospective injunctive relief against a state officer to compel compliance with federal law. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). It is said that immunity does not bar such an action because a state officer could not be given authority to violate federal law so that the suit is not against the state authority itself. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441; Am. Bank and Trust Co. of Opelousas v. Dent, 982 F.2d 917 (5th Cir.1993). The Ex parte Young exception is recognized as a necessary legal fiction utilized to maintain the supremacy of federal law. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997); Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006).

To trigger the Ex parte Young exception, a party must name a state officer and must seek prospective injunctive relief against said officer for compliance with federal law or a federal constitutional provision. The Ex parte Young exception does not permit an action directly against the state or state agency but only against a state officer. And, the Ex parte Young exception cannot be utilized to compel a state officer to comply with state law. Pennhurst State School & Hosp., 465 U.S. 89, 104 S.Ct. 900; Frew, 540 U.S. 431, 124 S.Ct. 899. We now undertake an analysis of appellant’s claims against appellees based upon the law as recited above.

Per the Ex parte Young exception to immunity, it was incumbent upon appellant to have named a state officer in his complaint and to have sought prospective in-junctive relief against the named officer for compliance with federal law or federal constitutional provision. Herein, appellant only set forth alleged violations of sundry state statutes and regulations in his complaint; he did not raise a single claim for relief under either federal law or federal constitutional provision. Even though appellant argues that he did assert federal claims under 42 U.S.C. § 1983, the record clearly refutes this argument.

When appellees remoyed this case to federal district court, appellant filed a motion to remand to Jefferson Circuit Court and argued that he asserted only state law claims. In fact, appellant specifically disavowed asserting any claims under 42 U.S.C. § 1983 in the federal district court action. Also, in the Jefferson Circuit Court’s summary judgment dismissing appellant’s complaint, the circuit court did not address any claims under 42 U.S.C. § 1983. Therefore, we do not believe appellant properly raised a claim for relief under 42 U.S.C. § 1983 or any other claim arising under federal law. For this reason, we conclude that the Ex parte Young exception is inapplicable. However, our inquiry does not end here. A remedy is available to compel a public officer to comply with state law — the writ of mandamus.

From time immemorial, a writ of mandamus has been available to compel a public officer to perform a ministerial duty, and, in this Commonwealth, the writ has been widely utilized for over 150 years in such fashion. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803); and City of Louisville v. Kean, 57 Ky. 9, 18 B. Mon. 9 (1857); Crawford v. Lewis, 170 Ky. 589, 186 S.W. 492 (1916); County of Harlan v. Appalachian Reg’l Healthcare, Inc., 85 S.W.3d 607 (Ky.2002). To properly invoke mandamus relief, a petitioner must name a public officer and seek to compel that officer to perform a ministerial act. Appalachian Reg’l Healthcare, 85 S.W.3d 607. As more thoroughly explained:

The office of mandamus is to compel the performance of a duty resting on the person to whom it is sent. Mandamus is, therefore, in substance a personal action that rests on the averred and assumed fact that the defendant has neglected or refused to perform a personal duty. (Footnotes omitted.)

55 C.J.S. Mandamus § 6 (2009).

Mandamus is directed toward the individual public officer and not the officer’s office. Indeed, the writ of man damus is only effective to compel performance of a ministerial act if there exist “some officer or officers in being who have the power and whose duty it is to perform the act.” 52 Am.Jur.2d Mandamus § 92 (2000). The writ of mandamus is quintessentially injunctive in nature and only operates prospectively. 52 Am.Jur.2d Mandamus § 451 (2000). And, it constitutes an extraordinary remedy that will only lie in the absence of another adequate legal remedy. Hoskins v. Maricle, 150 S.W.3d 1 (Ky.2004).

Some may argue that sovereign/governmental immunity or qualified official immunity operates as a bar to mandamus relief. This argument simply represents a fundamental misunderstanding of the writ of mandamus.

In the seminal case of Marbury v. Madison, 5 U.S. 137, 150, 1 Cranch 137, 2 L.Ed. 60 (1803), the United States Supreme Court explained that the writ of mandamus is essential to a well-ordered democracy where no public officer “should be above the compulsion of law.” The Supreme Court elaborated that “[t]he government of the United States has been emphatically termed a government of laws, and not of men.” Id. at 163. Wherefore, any person who holds public office must be held amenable to judicial process to compel performance of ministerial duties. Id. So, the writ of mandamus was recognized as the appropriate remedy to compel such performance of ministerial duties. Marbury, 5 U.S. 137. Without the writ of mandamus, no viable legal remedy would exist to command performance of such ministerial duties by public officers. It is said that mandamus was devised “to prevent disorder from a failure of justice.” Labette County Com’rs v. U.S., 112 U.S. 217, 5 S.Ct. 108, 28 L.Ed. 698 (1884).

Accordingly, the very essence of the writ of mandamus eludes the defense of immunity. It is a creature conceived centuries ago out of legal necessity and adopted in this Country and in this Commonwealth to fulfill the promises of democracy. Indeed, the caselaw in this Commonwealth also recognizes that immunity is no bar to the writ of mandamus. City of Louisville v. Martin, 284 Ky. 490, 144 S.W.2d 1034 (Ky.App.1940); Watkins v. Dept. of Highways of Com. of Ky., 290 S.W.2d 28 (Ky.1956) overruled on other grounds by Foley Const. Co. v. Ward, 375 S.W.2d 392 (Ky.1963). In short, the continued validity of the writ of mandamus to compel performance of ministerial duties by public officers is simply beyond cavil.

In this case, appellant named two public officers — John L. Kiesel, M.D., and T. Ric-helle Jones — in his complaint. Therein, appellant alleged that these officers failed to perform ministerial duties as set forth in sundry state statutes and regulations. Statutes and regulations may, of course, impose ministerial duties upon public officers. Bd. of Educ. of Floyd Co. v. Moore, 264 S.W.2d 292 (Ky.1954); Appalachian Reg’l Healthcare, 85 S.W.3d 607. It, thus, appears that appellant has raised the necessary allegations for mandamus relief.

As hereinbefore set forth, immunity is no bar to mandamus relief. Hence, we conclude that the circuit court prematurely rendered summary judgment dismissing appellant’s claim for mandamus relief (prospective injunctive relief). See City of Catlettsburg v. Davis’ Adm’r, 262 Ky. 726, 91 S.W.2d 56 (1936); Young v. Jefferson Co. Election Com’n, 304 Ky. 81, 200 S.W.2d 111 (1947). Upon remand, the circuit court should determine whether appellant is entitled to mandamus relief in accordance with the principles of law outlined herein. As to all other claims, we are of the opinion that the circuit court properly rendered summary judgment dismissing same.

We view appellant’s remaining contentions as either meritless or moot.

For the foregoing reasons, the summary judgment of the Jefferson Circuit Court is affirmed in part, vacated in part, and remanded for proceedings consistent with this opinion.

COMBS, Judge, concurs.

HENRY, Senior Judge, dissents in part, concurs in part, and files separate opinion.

HENRY, Senior Judge,

dissenting in part and concurring in part:

I respectfully dissent from so much of the majority opinion as would vacate the judgment and opinion of the trial court granting summary judgment in favor of Dr. Kiesel and remand for consideration of mandamus relief. While I agree with the majority’s well-written explanation of the application of the writ, I am of the opinion that in this particular case the appellant’s claims relating to such relief are purely speculative, simply restate the alleged retrospective harms, and do not rise to the extraordinary level necessary to justify the issuance of a writ. Accordingly, I would affirm the opinion and judgment of the trial court in its entirety.

      . The circuit court held that Rocky Hamblen, by and through his Guardian, Yulonger Byars, named John L. Kiesel, M.D., and T. Richelle Jones in their respective official capacities only and not in their individual capacities. This holding is not challenged on appeal.

      . It is well established that a state officer who is sued in his official capacity is afforded the same immunity as the pertinent governmental entity. Yanero v. Davis, 65 S.W.3d 510 (Ky.2001).

      . See Ray v. Atl. Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002); League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir.2008); 1 Ronald D. Rotunda & John E. Nowak, Treatise on Const. L. § 2.12(b)(xii) (4th ed.2007).

      . It is reasoned that the Eleventh Amendment to the United States Constitution was never intended “to subvert the supremacy clause by granting immunity to the states or their officials from judicial orders to comply with federal law." 1 Ronald D. Rotunda & John E. Nowak, Treatise on Const. L. § 2.12(b)(xii) (4th ed.2007).

        . In the federal realm, 28 U.S.C. § 1361 lias presently conferred jurisdiction to the federal district court to issue a writ of mandamus against a federal officer or agency for performance of a duty to petitioner. 52 Am. Jur.2d Mandamus § 10 (2000).

      . Broadly speaking, a ministerial duty or act is generally "one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act.” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky.2001). A discretionary duty or act is one "involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment.” Id. And, our caselaw is replete with cases distinguishing between a ministerial act and a discretionary act, so we need not delve into this overly saturated area of law. See Rowan County v. Sloas, 201 S.W.3d 469 (Ky.2006); Collins v. Com. of Ky. Natural Res. and Envtl. Prot. Cabinet, 10 S.W.3d 122 (Ky.1999); Yanero, 65 S.W.3d 510; Autry v. W. Ky. Univ., 219 S.W.3d 713 (Ky.2007).

        . Louisville Gas & Elec. Co. v. Bosworth, Auditor, 169 Ky. 824, 185 S.W. 125 (1916) (holding that a writ of mandamus only compels performance of a ministerial duty by a public officer and may not be utilized to compel performance by state or state entity). See also Bruner v. City of Danville, 394 S.W.2d 939 (Ky.1965); 52 Am.Jur.2d Mandamus § 92 (2000); but see, City of Louisville v. Martin, 284 Ky. 490, 144 S.W.2d 1034 (1940) (recognizing that the writ of mandamus may be utilized against both public officers and public agencies.)

      . In Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803), the United States Supreme Court observed that the writ of mandamus was available in England and was issued by the Court of the King's bench.


author: HARRIS, Senior Judge.

text:
    John L. SCHELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-001502-MR.
    Court of Appeals of Kentucky.
    Sept. 17, 2010.
    Rachelle N. Howell, Assistant Public Advocate, Frankfort, KY, for appellant.
    Jack Conway, Attorney General of Kentucky, M. Brandon Roberts, Assistant Attorney General, Frankfort, KY, for appel-lee.
    Before KELLER and THOMPSON, Judges; HARRIS, Senior Judge.

      . Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Ken-lucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

HARRIS, Senior Judge.

John Schell appeals from a Laurel Circuit Court order, entered on July 16, 2009, denying his motion for post-conviction relief under the Kentucky Rules of Criminal Procedure (RCr) 11.42. The sole issue for our review is whether a defense attorney revealing that his client is a convicted felon during voir dire constitutes ineffective assistance of counsel. Apparently, this is an issue of first impression in Kentucky. Based upon the totality of the circumstances of this case, we conclude that defense counsel’s conduct does not meet the high standards required for relief under RCr 11.42. Therefore, we affirm the Laurel Circuit Court order.

On February 17, 2006, a Laurel County grand jury indicted Schell for first-degree trafficking in a controlled substance and being a first-degree persistent felony offender. The charges stemmed from a narcotics transaction that occurred on January 18, 2006. On that date, Schell sold six oxycodone pills to an informant working with the Laurel County Sheriff’s Department. The drug transaction was recorded by both audio and video evidence.

During voir dire, defense counsel informed the venire that Schell was a convicted felon. The record reflects that counsel specifically stated:

My last question to you today is that Mr. Schell has been convicted of a felony previously. Does anyone have a problem with that? Now this is not today’s case. You have to prove where he did this crime. Does anybody have a problem? I’m telling you that up front here and letting you know the facts up front, that he had a felony previously. Is there anyone here sitting unlikely to be fair to him because he is a convicted felon? Either in the guilt/innocence phase or maybe later on if you found him guilty in the sentencing phase. Do you think that would be a problem to anybody?

During the Commonwealth’s case in chief, the audio and video record of the transaction was presented. Further, two witnesses testified that they had witnessed the transaction. Schell argued a defense of entrapment. Through his counsel’s arguments and cross-examinations, Schell maintained that he had had an affair with one of the Commonwealth’s witnesses, who had threatened to expose the affair unless he did not sell drugs to her. Schell did not testify.

Schell was convicted on both counts. He was sentenced to ten years for first-degree trafficking in a controlled substance, which was enhanced to twenty years by the first-degree persistent felony offender conviction. Schell appealed his conviction to the Kentucky Supreme Court. In an unpublished opinion rendered on January 24, 2008, the Court affirmed the conviction.

On January 26, 2008, Schell moved the trial court for post-conviction relief under RCr 11.42. In his motion, Schell claimed that he received ineffective assistance of counsel based upon defense counsel’s disclosure of his prior felony conviction during voir dire. The court ordered an evi-dentiary hearing on the motion.

During the hearing, defense counsel testified that the evidence against Schell was overwhelming. Defense counsel believed that entrapment could only be a viable defense if Schell took the stand. He claimed that during voir dire, he was still unsure if Schell would testify. Because he believed that a guilty verdict was inevitable, counsel claimed that he strategically revealed Schell’s prior felony conviction in order to exclude any jurors who would treat Schell harshly during the truth-in-sentencing portion of the trial. He testified that he had tried many cases where the jury was informed of the defendant’s felony convictions during the guilt phase, yet still found the defendant not guilty.

Schell also testified during the evidentia-ry hearing. He claimed that defense counsel knew that he never intended to testify during the trial.

On July 16, 2009, the trial court entered an order denying Schell’s RCr 11.42 motion for post-conviction relief. In the order, the trial court provided:

[Defense counsel’s belief that the elimination of any juror who had a tendency to weigh a prior felony heavily against [Schell] prompted him to insure the best jury panel not only for the trial phase, but also any possible sentencing phase of [Schell]’s case. The Court finds such a belief and the implementation of the strategy by [Defense Counsel] was the best trial strategy [Schell] could have asked for.

This appeal follows.

In order to receive post-conviction relief based upon ineffective assistance of counsel, Schell must meet two requirements. First, Schell must show that defense counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Deficient representation is outside of the wide range of professionally competent assistance. Id., 466 U.S. at 691, 104 S.Ct. at 2066. We must, therefore, examine counsel’s conduct in light of professional norms based on a standard of reasonableness. Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky.2001). Second, Schell must show that counsel’s deficient representation prejudiced his defense.

Defense counsel’s voir dire questioning was risky. The strategy, however, was neither unreasonable nor incompetent. His decision to reveal Schell’s prior felony was planned and analyzed in light of the overwhelming evidence of guilt which he knew was forthcoming. Because counsel was confident that Schell would be convicted, he used the otherwise inadmissible information in an effort at damage control.

We recognize that in Osborne v. Commonwealth, 867 S.W.2d 484 (Ky.App.1993), our Court held that the introduction of prior and subsequent DUI convictions during the trial of a vehicular manslaughter indictment violated the defendant’s right to a fair trial. Id. at 492. In Osborne, we concluded that counsel’s failure to object to evidence of the DUI convictions constituted error requiring reversal. Id. But in the present case trial counsel’s disclosure of Schell’s felony conviction was specifically intended as a means to ferret out those jurors who might be particularly harsh at the sentencing phase, which he believed was imminent.

Although criminal defendants are entitled to effective representation, there is no right to perfect representation. Our Court will not undertake the task of critiquing defense strategies. Despite the bold nature of counsel’s statements, we decline to find that the statements amounted to deficient representation. We do not reach the prejudice issue.

Accordingly, we affirm the July 16, 2009, order of the Laurel Circuit Court.

ALL CONCUR.

      . 2006-SC-0662-MR.


author: MARY R. RUSSELL, Judge.

text:
    Jay PURCELL, Appellant, v. CAPE GIRARDEAU COUNTY COMMISSION, Respondent.
    No. SC 90383.
    Supreme Court of Missouri, En Banc.
    April 6, 2010.
    John P. Clubb, Clubb Law Firm LLC, Cape Girardeau, for Appellant.
    Thomas Ludwig, Ludwig & Boner LC, Jackson, for Respondent.
   MARY R. RUSSELL, Judge.

At issue in this case is whether county commissioner Jay Purcell is entitled to a judgment declaring that he and his fellow commissioners violated the Sunshine Law during a closed meeting. This Court affirms the trial court’s judgment in favor of the defendant Cape Girardeau County Commission, as the trial court correctly concluded that Purcell was not entitled to declaratory or injunctive relief.

I. Background

Purcell was one of three commissioners on the Cape Girardeau County Commission who met in closed session on April 17, 2008. The commission’s notice for the meeting indicated that it planned an “Executive Session.” The session was described as follows:

(The County Commission may, as part of a regular or special County Commission meeting, hold a closed session to discuss legislation or litigation, leasing, purchasing, sale of real estate, or personnel matters). Authority is Section 610.025.8 and 610.025.1, [RSMo], as amended.

During the commission’s meeting, Purcell moved that the commission go into closed session to discuss the “county auditor issue” and the “McBryde easement issue.” The commission’s closed session discussions later were disclosed publicly when Purcell revealed that he had recorded the closed session using a recording device carried inside his jacket. The commission’s closed session included discussions about whether it could fire, discharge, or discipline the county auditor, an elected official, as well as about the easement issue. Purcell led or participated in the discussions on these matters.

Despite his participation, Purcell later filed suit alleging that the auditor and easement closed session discussions violated the Sunshine Law. His petition requested an order declaring that the commission’s auditor and easements discussions at the April 17, 2008, closed session violated the Sunshine Law and requested an injunction ordering the commission to comply with the Sunshine Law in the future. Purcell argued that the commission’s meeting notice failed to comply with the Sunshine Law. -He also attested that the commission’s closed session discussions lacked justification under section 610.021, RSMo Supp.2009, the portion of the Sunshine Law detailing exceptions to the law’s disclosure requirements for public governmental bodies.

The commission moved for dismissal of Purcell’s suit, and the trial court treated the motion as a motion for summary judgment. Purcell also moved for summary judgment, and a hearing was held on the parties’ motions. The trial court overruled Purcell’s motion for summary judgment but entered summary judgment in favor of the commission. In refusing to grant Purcell’s requests for declaratory and injunc-tive relief, the trial court found that the commission’s notice for the April 17, 2008, closed session complied with the Sunshine Law, and that the commission had properly voted to go into closed session. The trial court concluded there had been no knowing or purposeful violation of the Sunshine Law.

Purcell appeals, arguing that the trial court erred in entering summary judgment in favor of the commission and in failing to declare a Sunshine Law violation.

II. Standard of Review

An appeal from the grant of summary judgment is reviewed de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In re Estate of Blodgett, 95 S.W.3d 79, 81 (Mo. banc 2003); Rule 74.04. Summary judgment can be entered in the defendant’s favor where there are no genuine disputes as to the existence of each of the facts necessary to support one of the defendant’s properly pleaded affirmative defenses. See ITT, 854 S.W.2d at 381.

Purcell and the commission do not contest the trial court’s determination that there are no genuine issues of material fact in this case. Instead, the issue in this case is whether the trial court erred in determining that the commission was entitled to judgment as a matter of law.

III. The Commission Was Entitled to Summary Judgment

The commission’s affirmative defenses included that Purcell was not entitled to summary judgment because he acted with unclean hands in this case. A litigant with unclean hands generally is not entitled to equitable relief such as an injunction or declaratory judgment. City of St. Joseph v. Lake Contrary Sewer Dist., 251 S.W.3d 362, 369 (Mo.App.2008). This rule reflects that the law strives to prevent opportunistic behavior. See id. “A party who participates in inequitable activity regarding the very issue for which it seeks relief will be barred by its own misconduct from receiving relief.” Id. (internal quotation omitted).

The record in Purcell’s case supports the commission’s allegations that Purcell is not entitled to declaratory relief because he acted with “unclean hands” in this matter. The commission rarely met in closed session, having met in closed session only two or three times during Purcell’s more than three years as a commissioner. But before the commission’s April 17, 2008, meeting, Purcell made plans to record closed session discussions at that meeting.

Purcell himself moved for the commission to enter into the April 17, 2008, closed session to discuss the “county auditor issue” and the “McBryde easement issue.” Yet these are the precise topics that Purcell now claims were discussed in closed session in violation of the Sunshine Law.

Purcell recorded the closed session with a recording device he placed in his jacket, and at no point during the closed session discussions did he object to being in closed session. Purcell does not dispute the trial court’s finding that he “fully and completely led or participated in all the actions that he now alleges were in violation of Chapter 610.”

Considering Purcell’s actions and statements at the commission’s April 17, 2008, meeting, the doctrine of unclean hands was invoked appropriately by the commission in arguing that Purcell was not entitled to the declaratory and injunctive relief that he sought. Purcell instigated the closed session and led discussions that he now complains were unlawful. This is not to say that a member of a public governmental body cannot bring an action under the Sunshine Law. A county commissioner who protested the closing of a meeting at the time it was closed would be a very different kind of plaintiff than Purcell. A county commissioner who declined to participate in an unlawful closed session also would be a different kind of plaintiff than Purcell. But under the circumstances here, Purcell, as a matter of law, was not entitled to relief; the trial court did not err in sustaining the commission’s motion for summary judgment.

IV. Conclusion

Purcell’s suit sought declaratory and in-junctive relief, not a specific statutory remedy provided under the Sunshine Law. This Court’s determination that Purcell was not entitled to equitable relief because he acted with unclean hands is dispositive of this matter. As such, there is no need for this Court to address the arguments on appeal regarding whether the commission’s meeting notice or discussions violated the Sunshine Law. There is also no need to address the issue of whether Purcell was required to name the commissioners individually as defendants rather than naming the Cape Girardeau County Commission.

Because summary judgment was appropriate, the trial court’s judgment is affirmed.

All concur.

      . This Court took transfer of this case after its disposition by the court of appeals. Jurisdiction is vested in this Court pursuant to article V, section 10 of the Missouri Constitution.

      . The Sunshine Law is found in chapter 610, RSMo 2000, and, where amended, RSMo Supp.2009.

      . The amendments made to the version of section 610.021 applicable in April 2008 do not apply in this matter.

      . Although the trial court found for the commission on different grounds, its judgment may be affirmed under any theory supported by the record. In re Estate of Blodgett, 95 S.W.3d 79, 81 (Mo. banc 2003). The trial court's reasoning in reaching its judgment is immaterial because it concluded correctly that die commission was entitled to summary judgment. See, e.g., Reinecke v. Kleinheider, 804 S.W.2d 838, 841 (Mo.App.1991) ("On appeal from a judge-tried case, the appellate court is concerned with the correctness of the result, not with the route taken to reach that result.").


author: WILLIAM RAY PRICE, JR., Chief Justice.

text:
    STATE ex rel. KANSAS CITY POWER & LIGHT CO., Relator, v. The Honorable Gerald D. McBETH, Respondent. State ex rel. Lisa Pope, in her official capacity as Platte County Assessor, Relator, v. The Honorable Gerald D. McBeth, Respondent.
    Nos. SC 90693, SC 90694.
    Supreme Court of Missouri, En Banc.
    Sept. 21, 2010.

      Todd P. Graves and Edward D. Greim, Graves Bartle Marcus & Garrett PC, Kansas City, James W. Farley, Law Office of James W. Farley, Platte City, William G. Riggins and Heather Humphrey, Kansas City Power & Light Co., Kansas City, for KCPL.
    John R. Shank and Ryan J. Springer, Gunn, Shank & Stover PC, Kansas City, for assessor.
    Edward D. Robertson Jr., Mary D. Winter and Anthony L. DeWitt, Bartimus, Frickleton, Robertson & Gorny PC, Jefferson City, and Gary L. Myers, Law Offices of Gary L. Myers, St. Joseph, for the school district and taxpayers.
   WILLIAM RAY PRICE, JR., Chief Justice.

I. Introduction

West Platte R-2 School District and two individual taxpayers in Platte County (collectively “plaintiffs”) filed suit against the Platte County assessor, Lisa Pope, over her property tax assessment of two power plants owned by Kansas City Power & Light Co. (“KCPL”). KCPL intervened, and the assessor and KCPL filed motions to dismiss, arguing that the plaintiffs lacked standing to challenge the valuation of another’s property. The Honorable Gerald D. McBeth (“respondent”) overruled both motions. The assessor and KCPL applied to this Court to prohibit the respondent from proceeding, and preliminary writs in prohibition issued.

The preliminary writs of prohibition are made permanent.

II. Facts and Procedural History

In 2006, KCPL began an environmental retrofit of a coal-fired electricity generating plant known as latan I. The same year, KCPL began construction of a second facility known as latan II. latan I was temporarily offline due to the retrofit from fall 2008 until spring 2009. latan II is projected to be in service in fall 2010. Both plants are located in Platte County. In the underlying lawsuit, the school district and two taxpayers brought suit seeking a declaratory judgment as to the laws applicable to the ad valorem tax assessment of the two plants and a writ of mandamus compelling the Platte County assessor to comply with the applicable law.

Missouri law requires KCPL, as a public utility, to file a report with the county assessor describing its local property situated in the county and the “true value in money thereof.” The required form contains three columns to be completed: one for the taxpayer to provide the “company’s original cost”; a second for the assessor to provide an estimate of the “market value” of the property; and a third for the assessor to provide an “assessment” value on which the tax is levied. Pursuant to the statute, KCPL completed the required form by filling in the original cost column, which consisted mainly of KCPL’s construction costs for the two plants. It attested that “the foregoing is a true, full and complete description and valuation of the property.” The assessor estimated the market value at approximately 50 percent of the sum total of the original construction costs reported by KCPL. The latan I property was categorized as “distributable property,” which is taxed for the benefit of all Missouri counties in which KCPL owns property, rather than as “local property,” which is taxed for local benefit only.

The plaintiffs disputed the assessment and filed suit, claiming a loss in tax revenue due to the assessor’s undervaluation of the KCPL property. In counts I and II, the plaintiffs alleged that the assessor violated a ministerial duty by failing to assess KCPL’s reported construction costs as the “true value in money” of its property and to apply that figure when calculating the tax due. In counts III and IV, they alleged that the assessor violated a ministerial duty by failing to assess the entire latan I plant as “local property” for the benefit of the local school district because the plant was not generating electricity during the period it was offline due to the retrofit.

After KCPL intervened, the assessor and KCPL filed motions to dismiss, which were overruled by the respondent. They then filed petitions for a writ of prohibition to prevent further proceedings against them. Preliminary writs issued. These writ petitions are the subject of the current proceeding.

III. Standard of Review

This Court has jurisdiction to issue original remedial writs. Mo. Const, art. V, § 4. “Prohibition is a discretionary writ that may be issued to prevent an abuse of judicial discretion [or] to avoid irreparable harm to a party.” State ex rel. Broadway-Washington Assoc. v. Manners, 186 S.W.3d 272, 274 (Mo. banc 2006). For example, “prohibition may be appropriate to prevent unnecessary, inconvenient, and expensive litigation.” State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001). Prohibition will lie if the plaintiffs petition “does not state a viable theory of recovery, and relator was entitled to be dismissed from the suit as a matter of law.” State ex rel. Barthelette v. Sanders, 756 S.W.2d 536, 539 (Mo. banc 1988).

IV. Analysis

In support of their petitions, KCPL and the assessor argue, in pertinent part, that (1) the plaintiffs lack standing to challenge the valuation or assessment of another’s property; (2) an assessor is not under a ministerial duty to value property according to a company’s reported costs; and (3) an assessor is not under a ministerial duty to assess a temporarily offline power plant as “local property.”

A. Standing

In their first point, KCPL and the assessor argue that the plaintiffs lack standing to challenge the valuation or assessment of another’s property. The question of whether a party has standing is a threshold issue that this Court reviews de novo. Comm. for Educ. Equality v. State, 294 S.W.3d 477, 484 (Mo. banc 2009).

1. Standing for Declaratory Judgment

The longstanding rule in Missouri is that individual taxpayer plaintiffs lack standing to challenge other taxpayers’ property tax assessments, as they are not injured personally by others’ assessment calculations. Id.) see also W.R. Grace & Co. v. Hughlett, 729 S.W.2d 203, 206-7 (Mo. banc 1987) (finding that a plaintiff did not have standing to challenge excused tax obligations of others). Furthermore, neither a city nor a school district has standing to appeal or seek review of another’s assessment by a county board of equalization. City of Richmond Heights v. Bd. of Equalization, 586 S.W.2d 338, 341-42 (Mo. banc 1979); State ex rel. St. Francois County Sch. Dist. v. Lalumondier, 518 S.W.2d 638, 643 (Mo.1975); see also Bartlett v. Ross, 891 S.W.2d 114, 116-17 (Mo. banc 1995) (holding, following Lalumondier, that just as school districts may not appeal an administrative decision, they may not appeal a refund judgment, absent a statute); State ex rel. Brentwood Sch. Dist. v. State Tax Comm’n, 589 S.W.2d 613, 614 (Mo. banc 1979) (holding that school districts do not have sufficient standing to appeal a tax assessment, following Lalumondier, and that they have no right to intervene in such an appeal because the county in which such districts are located represents whatever interests or rights the school districts may have).

In counts I and III of their petition, which seek declaratory relief, the plaintiffs allege that the assessor failed to comply with her legal duty to calculate the true value in money of KCPL’s property and to assess the entire latan I plant as local property. These allegations- — and extensive argument on this issue in the plaintiffs’ briefs — reveal that the request for declaratory relief is, at least in part, a challenge to the past assessment of KCPL’s property. To the extent that the declaratory judgment action constitutes a challenge to past assessments, the plaintiffs lack standing. Whether the taxpaying property owner is a corporation or a next-door neighbor (and the plaintiff a school district or an individual taxpayer), the principle that a third party is not permitted to challenge another’s property tax assessment applies equally.

However, to the extent that the plaintiffs merely seek a declaration of their rights and the assessor’s duties under the utility taxation statutes, they do have standing. By statute, Missouri courts “have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” § 527.010. A declaratory judgment is open to any person “whose rights, status, or other legal relations are affected by a statute.” § 527.020. Moreover, the declaratory judgment statutes are “to be liberally construed,” § 527.120, and administered to “terminate the controversy or remove an uncertainty.” § 527.050. Rule 87 reinforces the provisions of the declaratory judgment statutes, providing that “anyone may obtain such relief in any instance in which it will terminate a controversy or remove an uncertainty.” Rule 87.02(d).

In the context of an action for declaratory judgment, Missouri courts require the plaintiff to have a legally protect-able interest at stake in the outcome of the litigation. Ste. Genevieve Sch. Dist. R-II v. Bd. of Aldermen, 66 S.W.3d 6, 10 (Mo. banc 2002). A legally protectable interest exists if the plaintiff is directly and adversely affected by the action in question or if the plaintiffs interest is conferred by statute. Id. Under Missouri law, school districts threatened with imminent unlawful deprivation of their funding have standing to seek declaratory judgment regarding a statutory interpretation that would lead to the deprivation. State ex rel. Sch. Dist. of Independence v. Jones, 653 S.W.2d 178, 189 (Mo. banc 1983). Moreover, the school district has an interest in the methodology used by the assessor for future utility property assessments, particularly in relation to the assessment of local property, which is subject to the local school district tax levy. The individual taxpayers also have an interest, though attenuated, due to their status as taxpayers in the school district and the fact that the alleged failure of the assessor to comply with the utility taxation statutes, if true, would cost the district future tax revenue. See Ste. Genevieve Sch. Dist., 66 S.W.3d at 10-11 (finding that a taxpayer has standing to seek a declaratory judgment challenging an alleged expenditure of public funds because of his status as a taxpayer of the city and school district and because the redevelopment project would cost the district and city future tax revenue). The plaintiffs have a sufficient interest to seek a declaratory judgment as to the assessor’s duties under the utility taxation statutes.

2. Standing for Mandamus Action

In counts II and IV, the plaintiffs seek a writ of mandamus. The issue of whether a plaintiff has standing in a mandamus action requires a different analysis than in a declaratory judgment action. “A narrow window exists by which even a member of the general public may seek mandamus against a public official.” State ex rel. City of Cabool v. Texas County Bd. of Equalization, 850 S.W.2d 102, 105 (Mo. banc 1993). “The principle at the heart of [the writ of mandamus] is that public officers are required to perform ministerial duties without any request or demand, and the entire public has the right to that performance.” State ex rel. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo. banc 1992). As such, where the duty sought to be enforced is a simple, definite ministerial duty imposed by law, the threshold for standing is extremely low. City of Cabool, 850 S.W.2d at 105. If the assessor has a ministerial duty to value and assess the property in the manner alleged, then the plaintiffs have standing to bring a mandamus action.

B. True Value in Money

In their second point, KCPL and the assessor argue that an assessor is not under a ministerial duty to value property according to a company’s reported costs. As stated above, the plaintiffs have standing to maintain the declaratory judgment action to the extent that they seek a declaration as to the assessor’s duties under the utility taxation statutes. However, they have standing to bring an action for mandamus compelling the assessor to perform her legal duties only if she has a ministerial duty to value and assess the property in the manner they allege. In counts I and II, the plaintiffs allege that the assessor had a ministerial duty to apply the “company’s original cost” for the latan plants, as reported by KCPL, as the “true value in money” of those properties for assessment purposes, and that she breached that duty by valuing the property at approximately half that amount. KCPL and the assessor oppose this interpretation of the law and argue that an assessor has discretion in valuing property. The issue, then, is whether the duty sought to be enforced is a ministerial duty imposed by law or a discretionary duty requiring independent judgment.

A ministerial duty is “of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.” Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo. banc 1984). In contrast, a discretionary duty “necessarily requires the exercise of reason in the adoption of means to an end, and discretion in determining how or whether an act should be done or a course pursued.” Id.

The county assessor derives a property tax assessment from the report filed by the public utility company pursuant to section 151.110. The assessor is required by section 137.115 to assess the property at a given percentage of its “true value in money.” Although “true value in money” is not defined by statute, Missouri case law defines “true value” as an estimate of the fair market value on the valuation date. Hermel, Inc. v. State Tax Comm’n, 564 S.W.2d 888, 897 (Mo. banc 1978). This definition has not changed from case to case. Id. However, the methods used and factors considered in determining a property’s “true value” are subject to change depending on the circumstances of the valuation. Id. The methods employed and factors weighed by the utility company in completing its report are likely to vary from those considered by the assessor. It is expected that the assessor form an individual opinion as to the value of the property in light of the circumstances as a whole, as in this case where the property being valued was still under construction. The utility company’s report of its costs merely aids the assessor in determining the appropriate valuation and does not dictate the “true value in money.”

Moreover, several statutory provisions suggest the discretionary nature of the assessor’s duty to value and assess property. Every assessor must take an oath of office specifically agreeing “to assess all of the real and tangible personal property in the county in which [s]he assesses at what [s]he believes to be the actual cash value.” § 53.030 (emphasis added). In addition, section 151.110.1 provides that the utility company’s report listing its costs is to be filed “for the benefit of’ the assessor. The assessor then is given 20 days to fill out the remaining portions of the report, including the columns titled “Market Value” and “Assessment.” § 151.110.2. According to the statute, the document furnished to the state tax commission by the company shall list “the true value in money of all local property as derived by the county assessor.” § 151.110.3 (emphasis added). The fact that the assessor “derives” the true value in money further suggests that she has discretion to make her own estimates.

Finally, the regulations promulgated by the state tax commission expressly state that “each assessor in the state shall estimate on Form 30, Schedule 14 the market value of property owned by ... public utility corporations ... doing business within [her] jurisdiction.” 12 CSR 30-2.011(1) (emphasis added). An assessor exercises discretion when valuing property and is not under a ministerial duty to value property according to a company’s reported costs. Therefore, the plaintiffs do not have standing to bring a mandamus action.

C. Local or Distributable Property

In their third point, KCPL and the assessor argue that an asséssor is not under a ministerial duty to assess a temporarily offline power plant as “local property.” The plaintiffs alleged in counts III and IV that the assessor had a ministerial duty to assess the entire latan I plant as “local” property subject to the school district’s tax levy because the plant was not generating electricity while it was offline during the retrofit period and that she violated that duty.

Missouri statutes regarding the taxation of railroads and utilities classify such property as local or distributable for purposes of taxation. State ex rel. Hatten v. Kansas City Power & Light Co., 365 Mo. 296, 281 S.W.2d 784, 786 (1955). “Local property” is assessed by the county and taxed on the individual levy of a school district, while “distributable property” is assessed by the state tax commission and taxed according to the average rates of all school districts within the county. Southwestern Bell Telephone Co. v. Bond, 595 S.W.2d 365, 367 (Mo.App.1980). For taxation of an electric company, the term “distributable property” is defined as “all the real or tangible personal property which is used directly in the generation and distribution of electric power.” § 153.034.1. The term “local property,” on the other hand, is defined as “all real and tangible personal property ... not used directly in the generation and distribution of power.” § 153.034.2. The definition of “distributable property” expressly excludes “property held for purposes other than generation and distribution of electricity.” § 153.034.1 (emphasis added).

According to the plaintiffs, the latan I plant was offline on January 1 (the relevant date for valuation in a given year ) and, therefore, should have been assessed as “local property” because it was not being used to generate or distribute power at that time. However, the dispositive factor for making this determination is the purpose for which the property at issue is held, not its operational status on a particular date. It is clear that a coal-fired power plant is the type of property that is held for the purpose of generating and distributing electrical power and, therefore, would fall into the category of “distributable property” regardless of whether it is temporarily offline for purposes of an environmental retrofit. Accordingly, the assessor did not have a ministerial duty to assess the temporarily offline latan I power plant as “local property.”

V. Conclusion

The plaintiffs have no standing to seek review of an alleged underassessment by a county assessor, but they do have standing to pursue a declaratory judgment action regarding the assessor’s duties under the utility taxation statutes. A county assessor has discretion to exercise independent judgment when valuing and assessing property under those statutes. Because the assessor in this case did not violate any definite, ministerial duty, the plaintiffs lack standing for purposes of mandamus. The plaintiffs have no further available legal remedy, and KCPL and the assessor’s motions to dismiss should have been granted. The plaintiffs are not without remedy, however. Elected officials such as county assessors are accountable to the voters, who may use the remedy of election if dissatisfied with the assessor’s exercise of discretion.

The preliminary writs of prohibition are made permanent.

TEITELMAN, RUSSELL, WOLFF, FISCHER and STITH, JJ., and HAYES, Sp.J., concur. BRECKENRIDGE, J„ not participating.

      .Section 151.110 provides that an authorized officer of the railroad company shall "furnish to each county assessor in this state, wherever any local property owned or controlled by such company may be located, a separate report, under oath for the benefit of county and other local assessors, specifically describing all lands ... situated in such county, and ... owned or controlled by such company, on the first day of January in each year, and the true value in money thereof." § 151.110.1, RSMo 2000. For purposes of ad valorem taxes, electric utilities are taxed under the same rules as railroad companies and are required to render reports of their property in the same maimer required of railroad companies. § 153.030.2-3. All statutory references are to RSMo 2000 unless otherwise indicated.

      . A copy of the form is attached on pages 15 and 16.

      . KCPL estimated the property value of construction work in progress at latan I and latan II by providing the costs of construction.

      . In count I, the plaintiffs sought a declaratory judgment as to whether reported construction costs should be assessed as the "true value in money.” In count II, they sought a writ of mandamus compelling the assessor to assess KCPL’s property at the “true value in money.”

      . In count III, the plaintiffs sought a declaratory judgment as to whether a temporarily offline power plant should be assessed as "local property.” In count IV, they sought a writ of mandamus compelling the assessor to assess the entire latan I plant as local property-

      . Like Jones, the present case may be distinguished from Lalumondier in its treatment of standing on the ground that the school district purports to seek declaratory relief (here, regarding the assessor's statutory duties) rather than appeal from or direct review of a past assessment. The plaintiffs here are entitled to standing solely on the basis of this narrow distinction.

      . "[T]he assessor shall annually assess all personal property at thirty-three and one-third percent of its true value in money as of January first of each calendar year. The assessor shall annually assess all real property, including any new construction and improvements to real property and possessory interests in real property at the percent of its true value in money set in subsection 5 of this section.” § 137.115 (Supp.2009) (emphasis added).

      . The record contains a letter issued by an agent of the state tax commission explaining that it is common practice in Missouri counties to estimate the market value of a construction work in process at approximately half the construction costs, because assets are not worth their total invested dollars at an incomplete stage.

      . Although section 151.110 requires the company to "specifically describ[e]" all lands owned or controlled by the company "and the true value in money thereof,” the standardized form supplied by the state tax commission does not provide an opportunity for the company to actually attest to the "true value in money” of the property. On the form, the first column, titled "Company's Original Cost,” is to be filled out by the utility company's authorized agent, who then signs under oath that "the foregoing is a full, true and complete description and valuation of the property of said company.” Once the report is furnished to the assessor, the second column titled "Market Value” and the third column titled "Assessment” then are completed entirely by the assessor. In filling out the required form, at no point did KCPL attest to the "true value in money” or market value of its property; in fact, three different terms are used, each of which may be different from the other.

      . Because the duties at issue are discretionary, not only do plaintiffs lack standing for mandamus, but they also fail to state a viable theory of recovery.

      . Section 137.115 requires the assessor to annually assess all property “as of January first of each calendar year.”