CITY OF LOUISVILLE, KENTUCKY v. SCOTT A. LEHMAN, SR.
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RENDERED: April 23, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000354-MR
CITY OF LOUISVILLE, KENTUCKY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ERNEST A. JASMIN, JUDGE
ACTION NO. 97-CI-006389
SCOTT A. LEHMAN, SR.
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: GUIDUGLI, HUDDLESTON AND McANULTY, JUDGES.
GUIDUGLI, JUDGE.
The appellant, City of Louisville, appeals
from a decision of the Jefferson Circuit Court granting summary
judgment in favor of the appellee on January 8, 1998.
After
reviewing the record and the applicable law, we vacate and
remand.
On October 18, 1996, appellee was promoted from the
rank of police officer to the rank of police sergeant.
This
promotion was subject to a twelve-month probationary period.
On
or about October 15, 1997, the appellee was demoted from the rank
of police sergeant back to his former rank of police officer.
Thereafter, the appellee requested a hearing on the matter and it
was denied.
On November 5, 1997, the appellee filed an action in
the Jefferson Circuit Court alleging that the appellant had
demoted him for disciplinary reasons and that he was entitled to
a hearing pursuant to KRS 15.520.
The appellant filed a motion to dismiss for failure to
state a claim upon which relief could be granted.
In its motion
the appellant argued that the appellee had been a probationary
employee and as such, he was not entitled to a hearing regarding
the demotion pursuant to KRS 90.190.
The trial court converted
the appellant’s motion to dismiss into a motion for summary
judgment and in its order of January 8, 1998, granted summary
judgment in favor of the non-movant/appellee.
The appellant
filed a notice of appeal on February 6, 1998.
The trial court properly treated the appellant’s motion
to dismiss as a motion for summary judgment in this case.
A
trial court may treat a motion to dismiss as a motion for summary
judgment and dispose of it pursuant to CR 56 where “matters
outside the pleading are presented to and not excluded by the
court... .”
CR 12.02; Whisler v. Allen, Ky. App., 380 S.W.2d 70
(1964); McCray v. City of Lake Louisville, Ky., 332 S.W.2d 837
(1960).
Both the appellant and the appellee in this case
attached exhibits outside of the pleadings to their respective
motion and response.
Therefore, the trial court properly treated
the motion to dismiss as a motion for summary judgment.
However, we feel that the trial court’s decision to
grant summary judgment in favor of the non-movant/appellee was
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improper and denied the appellant its opportunity to present a
defense.
While there appears to be some authority that would
allow a trial court to grant summary judgment in favor of the
non-moving party, this authority is limited to those situations
where: 1) a motion for summary judgment has been made by some
party to the action, 2) the judge has all of the pertinent issues
before him at the time the case is submitted, and 3) overruling
the movant’s motion for summary judgment necessarily would
require a determination that the non-moving party was entitled to
the relief requested.
Storer Communications of Jefferson County,
Inc. v. Oldham County Bd. of Educ., Ky. App., 850 S.W.2d 340
(1993).
Furthermore, the Court in Storer noted that the
“rationale for not requiring a formal motion for summary judgment
in these limited situations is that there is no prejudice to the
party against whom the summary judgment is granted.”
Id. at 342.
In the present case we do not feel that the trial court
had all of the pertinent facts before it at the time it granted
summary judgment in favor of the appellee nor do we feel that
denying the appellant’s motion to dismiss/motion for summary
judgment necessarily required a determination that the appellee
was entitled to the relief requested.
Under CR 56.03, summary
judgment is only proper when there are not issues of material
fact and the movant is entitled to judgment is a matter of law.
In the oft-cited case of Steelvest, Inc. v. Scansteel Service
Center, Inc, Ky., 807 S.W.2d 476, 480 (1991), the Kentucky
Supreme Court stated that:
[T]he proper function of summary judgment is
to terminate litigation when, as a matter of
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law, it appears that it would be impossible
for the respondent to produce evidence at the
trial warranting a judgment in his favor.
...[A] judgment is only proper where the
movant shows that the adverse party could not
prevail under any circumstances... .
...
[T]he rule [CR 56.03] is to be cautiously
applied. The record must be viewed in a
light most favorable to the party opposing
the motion for summary judgment and all
doubts are to be resolved in his favor. Even
though a trial court may believe the party
opposing the motion may not succeed at trial,
it should not render a summary judgment if
there is any issue of material fact.
In the present case, once the trial court decided to
convert the appellant’s motion to dismiss into a motion for
summary judgment on behalf of the appellee, it was required to
view the record in a light most favorable to the appellant.
However, at that time, the record merely consisted of the
complaint, the motion to dismiss with memorandum and the response
to the motion to dismiss with memorandum.
For purposes of its
motion, the appellant had been willing to accept the allegations
contained in the complaint as true and thus had not filed an
answer.
Upon converting the appellant’s motion to dismiss into a
motion for summary judgment for the appellee, the trial court
could not have had all the pertinent facts before it to determine
whether or not any issue of material fact existed.
The record at
the time contained only one set of bare bone allegations.
There
were no facts in the record at that time that could be construed
in a light most favorable to the appellant because the appellant
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had not yet put its facts into the record and effectively was
denied that opportunity.
Moreover, we do not feel that in ruling on the
appellant’s motion to dismiss the trial court was necessarily
required to determine that the appellee was entitled to the
relief requested.
The appellant’s sole issue in its motion to
dismiss revolved around which statute applied to the appellee’s
set of facts and whether or not that statute granted the relief
sought by the appellee.
In determining that KRS 15.520 rather
than KRS 90.190 applied to this set of facts, the trial court was
not required to determine that the appellee was entitled to a
hearing.
In the trial court’s opinion and judgment of January 8,
1998, the trial court noted that the language of KRS 15.520
“implies that a hearing may not be necessary in all
circumstances.”
(emphasis added).
Thus, the determination that
KRS 15.520 rather than KRS 90.190 applied to this set of facts
did not necessarily require the determination that the appellee
was entitled to a hearing.
Therefore, the appellant was
prejudiced by the trial court’s granting of summary judgment in
favor of the appellee.
Having determined that the trial court abused its
discretion by improperly granting summary judgment to the
appellee, we find that the trial court should have either
dismissed the action, granted summary judgment in favor of the
appellant or denied the motion and allowed appellant to file its
answer and the case to proceed.
It appears that the trial court
ignored the fact that the appellee was a probationary employee
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and focused on the appellee’s allegation in his complaint that he
was demoted on the basis of misconduct.
The appellee does not
allege and it does not appear from the record that appellant ever
charged the appellee with misconduct or took any disciplinary
action against him that would entitle him to a hearing pursuant
to KRS 15.520.
Instead, the record indicates appellant merely demoted
the appellee from the rank of police sergeant to his former rank
of police officer during the twelve-month probationary period.
The demotion of probationary employees is governed by KRS 90.190.
We find the appellant’s arguments in this regard persuasive.
Only those employees holding regular appointments are
entitled to a hearing concerning a demotion according to KRS
90.190, which states:
...employees holding probationary
appointments may be dismissed without the
appointing authority being required to
furnish either the board or the suspended, or
dismissed, or demoted employee with a written
statement of the reasons for such suspension,
dismissal or demotion. Any employee who has
been suspended in excess of ten (10) days,
dismissed or demoted holding a regular
appointment, shall be entitled, upon written
demand, to a public hearing by the Board, at
which time he shall have the right to
introduce evidence on his own behalf, and to
be represented by counsel.
KRS 90.190(1).
A “regular appointment” is defined by KRS
90.180(1) as that which is given after the probationary period to
those probationary employees deemed satisfactory.
The appellee
held a “probationary appointment” at the time of his demotion and
thus was not entitled to a hearing concerning the demotion.
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The Kentucky Supreme Court reviewed KRS 90.190 in
Louisville Professional Firefighters Ass’n. v. City of
Louisville, Ky., 508 S.W.2d 42 (1974), and held that the statute
was constitutional and that the promotion is based on privilege,
not right.
In Louisville Professional Firefighters, a city
firefighter was demoted from the probationary appointment of
captain to his former rank.
given a hearing.
He was neither told the reason nor
In upholding the circuit court’s granting of
summary judgment to the city, the Court stated that “[t]he
essence of probationary appointment is that the employer have
unfettered discretion in deciding whether to retain a
probationary employee.”
Id. at 43.
In the present case, appellant argues: (1) that
appellee had not yet completed the probationary period governing
the probationary appointment at the time he was demoted; (2) that
during this probationary period, the appellant had unfettered
discretion in deciding whether to retain the appellee as police
sergeant; (3) that since he received a probationary appointment,
appellee was not entitled to a hearing regarding his demotion
pursuant to KRS 90.190; and (4) that he was not entitled to a
hearing pursuant to KRS 15.520 because he was not charged with
misconduct nor was any other disciplinary action taken against
him.
On remand the trial court will have to decide if appellee
can overcome these persuasive arguments.
For the foregoing reasons, the decision of the trial
court is hereby vacated and this case is remanded to the trial
court for proceedings in accordance with this opinion.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William C. Stone
Director of Law
Mark L. Miller
Louisville, KY
Lynne A. Fleming
Assistant Director of Law
Louisville, KY
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