COBLIN, PORTER & ASSOCIATES, ARCHITECTS v. BOARD OF EDUCATION OF FRANKLIN COUNTY, KENTUCKY AND BOARD OF EDUCATION OF FRANKLIN COUNTY, KENTUCKY v. COBLIN, PORTER AND ASSOCIATES, ARCHITECTS; ALLIANCE CORPORATION; AND RIVER CITY DEVELOPMENT CORPORATION
Annotate this Case
Download PDF
RENDERED: October 1, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001856-MR
COBLIN, PORTER &
ASSOCIATES, ARCHITECTS
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
ACTION NO. 97-CI-00532
v.
BOARD OF EDUCATION
OF FRANKLIN COUNTY, KENTUCKY
AND:
APPELLEE
NO. 1998-CA-001943-MR
BOARD OF EDUCATION OF
FRANKLIN COUNTY, KENTUCKY
CROSS-APPELLANT
CROSS-APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
ACTION NO. 97-CI-00532
v.
COBLIN, PORTER AND ASSOCIATES,
ARCHITECTS;
ALLIANCE CORPORATION; AND
RIVER CITY DEVELOPMENT CORPORATION
CROSS-APPELLEES
OPINION
VACATING IN PART AND REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE: This is an appeal by Coblin, Porter & Associates
(CPA) from an order of the Franklin Circuit Court entered July 1,
1998, denying its motion for summary judgment based upon the
statute of limitations.
In addition, the Appellee, Board of
Education of Franklin County, Kentucky (the Board), cross-appeals
from the order of the Franklin Circuit Court entered July 1,
1998, denying its motion for partial summary judgment and
declaratory relief and requiring the Board to submit to binding
arbitration.
We vacate in part and reverse and remand in part.
The facts of the case are not in dispute.
The Board
constructed Western Hills High School (Western), which included
the school building and gymnasium in the late 1970's and early
1980's.
CPA did the design work for both the school and the
gymnasium.
The Board has had full use of the school and
gymnasium since 1982.
On or about July 1, 1995, the Board
entered into a Management Agreement with Marriott Management
Services Corporation (Marriott), whereby Marriott would undertake
the responsibilities of managing the facilities owned by the
Board in Franklin County.
Robert Joseph Barley (Barley) was
named Director of maintenance for Marriott pursuant to the
agreement.
Barley reported to the Board through Assistant
Superintendent Joe McCorkle (McCorkle), who had been Assistant
Superintendent in charge of Maintenance for the Board for
seventeen years.
On March 13, 1996, Barley observed structural damage in
the gymnasium walls of Western.
Barley testified during his
deposition that he observed the conduit cracking outwards in the
walls around the gymnasium at Western.
He further noted that the
whole section of block wall had moved one-half inch outside the
-2-
building and shattered.
Barley prepared a memorandum to McCorkle
dated March 15, 1996, regarding the structural damage he observed
at Western, which reads in pertinent part:
This is to inform you that on Wednesday,
March 13, 1996, I observed some deterioration
in the walls of the gym at Western Hills High
School that I believe to be structural
damage. There are six to seven blocks on the
second tier level that appear to be cracked
or crushed. The structural bars themselves
are bending in and out. I believe it to be
more that freeze and throw [sic]. I suggest
that we have a certified engineer look at it.
Please let me know who you would like for me
to contact.
McCorkle confirmed during his deposition that he had
received the memorandum from Barley concerning the structural
damage at the Western gymnasium.
He further stated that he was
aware that Barley had performed some emergency remedial repairs
to the gymnasium walls between March 13, 1996 and March 29, 1996,
because of safety issues with regard to the students.
The Board
“officially” met on April 3, 1996, and discussed the issue of
structural damage at the Western gymnasium.
The Board filed the lawsuit in question on March 31,
1997.
CPA moved for summary judgment based upon the one-year
statute of limitations relating to professional services found in
KRS 413.245.
The trial court ruled that the filing was timely in
that the statute of limitations had not began to run until the
Board “officially” met on April 3, 1996.
This appeal followed.
Other necessary facts will be referred to as needed.
Initially, we must note that under CR 56.03 the denial
of a motion for summary judgment is not generally appealable
because of its interlocutory nature.
-3-
Transportation Cabinet,
Bureau of Highways, Commonwealth of Ky. V. Leneave, Ky. App., 751
S.W.2d (1988).
However, an exception to the general rule exists
where: “(1) the facts are not in dispute, (2) the only basis of
the ruling is a matter of law, (3) there is denial of the motion,
and (4) there is an entry of a final judgment with an appeal
therefrom.” Id. 37.
judice.
This exception applies to the case sub
Both parties admits that the facts are not in dispute.
The trial court denied a motion for summary judgment, which was
based solely on a matter of law.
Finally, the trial court
entered a final judgment denying the motion for summary judgment
from which CPA appealed.
CPA’s sole argument on appeal is that the one-year
statute of limitations for professional services found at KRS
413.245 began to run on March 15, 1996, the date of the
memorandum notifying McCorkle of the structural damage at
Western.
Thus CPA contends the Board’s lawsuit filed on March
31, 1997, is time barred.
We agree.
The purpose of any statute
of limitations period is to restrict the time period, otherwise
unlimited, in which a lawsuit may be filed.
Bowling v.
Commonwealth of Ky., Ky., 964 S.W.2d 803 (1998).
The statute of
limitations period for professional services is found at KRS
413.245, which reads:
Notwithstanding any other prescribed
limitations of actions which might otherwise
appear applicable, except those provided in
KRS 413.140, a civil action, whether brought
in tort or contract, arising out of any act
or omission in rendering or failing to
render, professional services for others
shall be brought within one (1) year from the
date of the occurrence or from the date when
the cause of action was, or reasonably should
-4-
have been, discovered by the party injured.
Time shall not commence against a party under
legal disability until removal of the
disability.
“Professional services” are defined by KRS 413,243 as “any
service rendered in a profession required to be licensed,
administered and regulated as professions in the Commonwealth of
Kentucky...”
An architect is a professional within the meaning
of this statute.
See Old Mason’s Home of Kentucky, Inc., v.
Mitchell, Ky. App., 892 S.W.2d 304 (1995).
CPA argues that the one (1) year statute of limitations
period began to run on March 15, 1996, when Barley, Director of
Maintenance for Marriott, the firm contractually responsible for
managing Western, notified McCorkle, Assistant Superintendent in
charge of Maintenance for the Board, by memorandum of the
structural damage at the Western gymnasium.
The Board, however,
argues that it, the “party injured”, was not unaware of the
situation until April 3, 1996, when the Board “officially” met
and discussed the structural damage at Western gymnasium.
Therefore, the Board argues the statute of limitations period did
not begin to run until April 3, 1996, and, thus, its filing was
timely.
This appears to be an issue of first impression in the
Commonwealth.
Neither party has cited to any statute or case-law
directly on point and our research has not produced any direct
authority that clearly answers the question at bar: did the
statute of limitations begin to run when McCorkle was notified of
the structural damage or did the statute of limitations begin to
run when the Board officially convened and discussed the
-5-
structural damage.
However, we believe that agency/principal
rules apply to this situation.
Based upon agency rules the
statute of limitations commenced on March 15, 1996, when McCorkle
became aware of the structural damage at the Western gymnasium.
As Assistant Superintendent in charge of Maintenance
for the Board, McCorkle was the Board’s agent in charge of
matters relating to maintenance.
“It is well settled that the
principal is chargeable with, and bound by, the knowledge of or
notice to his agent received while the agent is acting as such
within the scope of his authority and in reference to a matter
over which his authority extends.”
Brown v. Physicians Mut. Ins.
Co., Ky. App., 679 S.W.2d 836 (1984); United Fuel Gas Co. v.
Jude, Ky., 355 S.W.2d 664 (1962).
There is no doubt that the
structural damage at the Western gymnasium was a matter over
which McCorkle’s authority extended.
Further, there is no
question that McCorkle was acting within his scope of authority
when he received the memorandum from Barley notifying him of the
situation at the Western gymnasium.
Therefore, the party
injured, the Board, is charged with the knowledge of the
structural damage that its agent, McCorkle, received on March 15,
1996.
The Board argues that it is not bound by the knowledge
of its agent because individual action by the board members is
ineffective to bind the Board.
The Board cites supporting case
authority for this contention.
However, the Board misunderstands
the central issue in this appeal, which is not action but notice.
The action of any of the board members and its power to bind the
-6-
Board is not in dispute, but rather the knowledge of the Board’s
agent and the Board’s constructive notice of the structural
damage is a key factor.
thus misguided.
The Board’s argument in this regard is
The Board further argues that the statute of
limitations must be strictly construed in favor of the sovereign
where the government is plaintiff and refers us to general
language contained in Corpus Juris Secundum and American
Jurisprudence Second to support this argument.
However, without
citing specific, controlling authority, we find this argument
unpersuasive.
The discovery rule contained in KRS 413.245 commences
the running of the statute of limitations at such time as the
injury is discovered.
“The ‘discovery rule’ as applied to civil
actions filed in a court of law, tolls the running of the statute
of limitations in situations where the cause of action is not
reasonably discoverable until the plaintiff knows, or in the
exercise of reasonable care should know, that the injury has
occurred.”
Gray v. Comm,. Trans. Cabinet, Dept. Of Highways, Ky.
App., 973 S.W.2d 61 (1997) (citations omitted).
We find that the
Board became constructively aware of the structural damage at the
Western gymnasium through its agent in charge of maintenance on
March 15, 1996.
Therefore, the lawsuit filed by the Board on
March 31, 1997, is time barred.
We note that the Board cross-appealed in this lawsuit
based upon the trial court’s decision to enforce the arbitration
clause contained in the contract between it and CPA.
However,
when the statute of limitations has run, the trial court lacks
-7-
jurisdiction to hear that matter.
Bluegrass Concrete
Construction Company, Inc., v. Com., Ky. App., 664 S.W.2d 936
(1983).
As such, any decision rendered by the trial court in
this matter is vacated.
Moreover, because we find that this
lawsuit is time barred, the issue raised on the cross-appeal is
moot.
For the forgoing reasons, we reverse the decision of
the trial court on the issue of the statute of limitations,
vacate its decision to enforce the arbitration clause, and remand
this case to the trial court with instructions to dismiss the
action because it was filed outside the applicable statute of
limitations period.
ALL CONCUR.
-8-
BRIEF AND ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE,
COBLIN, PORTER AND ASSOCIATES,
ARCHITECTS:
ORAL ARGUMENT FOR
APPELLEE/CROSS-APPELLANT,
BOARD OF EDUCATION OF FRANKLIN
COUNTY, KENTUCKY:
James D. Ishmael, Jr.
Lexington, KY
Robert L. Chenoweth
Frankfort, KY
BRIEF AND ORAL ARGUMENT FOR
CROSS-APPELLEE, ALLIANCE
CORPORATION:
BRIEF FOR APPELLEE/CROSSAPPELLANT, BOARD OF EDUCATION
OF FRANKLIN COUNTY, KENTUCKY:
Brian K. Pack
Glasgow, KY
Robert L. Chenoweth
Frankfort, KY
J. Gary Bale
Frankfort, KY
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
