Ken Isaacs v. Jeff Caldwell Member of Georgetown-Scott County Planning Commission
530 S.W.3d 449
| Ky. | 2017Background
- Harbor Village homeowners Ken Isaacs and Annetta Cornett appealed a Scott County Planning Commission approval of a developer’s plat amendment removing a proposed (unbuilt) lake.
- KRS 100.347(2) required any appeal be "taken" within 30 days; Appellants filed the initiating pleading on the last permissible day but the clerk refused to issue a summons for the Bank (owner of the lake parcel) because the clerk said the Bank’s address/agent information was missing.
- Appellants’ counsel left without a clerk-issued summons, tried to obtain a waiver from the Bank’s counsel (office closed), and returned the next day when a different deputy clerk issued the summons and returned it to counsel under CR 4.01(1)(c).
- Counsel attempted personal delivery and then waited roughly three weeks before hiring a constable; the constable left the papers with a bank teller (not the registered agent), and the Bank special-appeared to challenge jurisdiction for lack of timely service on a statutorily required party.
- The circuit court held the action was not "commenced" within the statutory 30 days because CR 3.01 requires issuance of a summons "in good faith," and the court found counsel did not make a diligent, contemporaneous effort to effectuate service; the Court of Appeals affirmed. The Supreme Court of Kentucky granted review and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal was "taken" within KRS 100.347(2)’s 30‑day period when the pleading was filed but the Bank’s summons was not issued forthwith by the clerk | Filing of the appeal complied with the statute; clerk improperly refused to issue the summons so filing should be treated as timely | A statutorily required party (the Bank) was not properly brought into the suit within 30 days, depriving court of jurisdiction | The Court deemed the clerk should have issued the summons contemporaneously with filing (equitable tolling applies to issuance) but that does not resolve the good‑faith/service issue; issuance is treated as timely for filing purposes |
| Whether issuance of a summons must be "in good faith" (CR 3.01) — i.e., whether counsel’s post‑filing conduct evidenced a bona fide intent to serve within the period | Counsel attempted to obtain waivers and personally attempted service; later retained a constable, showing intent | Counsel failed to diligently pursue service (preferred waiver, then long delay), so summons issuance was not in good faith | Held that CR 3.01 requires a contemporaneous, bona fide intent and diligence to effect service; trial court’s finding that counsel did not act in good faith is supported by substantial evidence and is binding |
| Whether equitable principles from Nanny v. Smith excuse clerk delay and save the appeal | Nanny supports treating clerk inaction as "deemed done" so issuance can be retroactively treated as timely | N/A (court applied Nanny to excuse clerk error but distinguished remaining good‑faith requirement) | Court applied Nanny to treat the summons as issued when the pleading was filed, but equitable tolling did not cure lack of good‑faith service efforts |
| Whether attempts to obtain a waiver of service suffice as a good‑faith effort to serve | Seeking waiver is a legitimate, good‑faith step toward bringing the required party into the case | Reliance on waiver, without parallel diligent service efforts, does not show the necessary bona fide intent to serve in due course | Court: Attempting to secure waiver is not equivalent to diligent efforts to effectuate service; counsel’s preference for waiver and ensuing delay undermined good faith |
Key Cases Cited
- American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Comm’n, 379 S.W.2d 450 (Ky. 1964) (judicial review available where constitutional rights implicated; review for arbitrariness)
- Triad Dev./Alta Glyne, Inc. v. Gellhaus, 150 S.W.3d 43 (Ky. 2004) (statutory procedures for administrative appeals require strict compliance)
- Nanny v. Smith, 260 S.W.3d 815 (Ky. 2008) (equitable principle "deeming done what should have been done" applies when clerk fails to perform mandated duties)
- Metro Medical Imaging, LLC v. Commonwealth, 173 S.W.3d 916 (Ky. App. 2005) (when filing and issuance of summons are the means of commencement, both must occur within the statutory period)
- Transportation Cabinet v. City of Campbellsville, 740 S.W.2d 162 (Ky. App. 1987) (appeal from administrative agency is an original action)
- Wooton v. Begley, 305 S.W.2d 270 (Ky. 1957) (summons delivered to plaintiff’s attorney is not ‘‘in good faith’’ until given to proper officer for service absent valid excuse)
- Rucker’s Adm’r v. Roadway Express, Inc., 131 S.W.2d 840 (Ky. 1939) (delay between issuance and service may be negligence but not necessarily bad faith depending on circumstances)
- Louisville & N.R. Co. v. Little, 95 S.W.2d 253 (Ky. 1936) (commencement requires bona fide intent to have summons served; mere filling out is insufficient)
- Title Ins. & Trust Co. v. City of Paducah, 121 S.W.2d 932 (Ky. 1938) (delivery of summonses to sheriff supports finding of good‑faith commencement)