TRI-COUNTY ANIMAL SHELTER AND NORA GRUBB v. RANDY SKAGGS AND TRIXIE FOUNDATION
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RENDERED: DECEMBER 6, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-001097-MR (DIRECT)
NO. 2001-CA-001197-MR (CROSS)
TRI-COUNTY ANIMAL SHELTER AND
NORA GRUBB
v.
APPELLANTS/CROSS-APPELLEES
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 00-CI-00550
RANDY SKAGGS AND
TRIXIE FOUNDATION
APPELLEES/CROSS-APPELLANTS
OPINION
AFFIRMING DIRECT APPEAL
VACATING IN PART - REVERSING IN PART AND REMANDING CROSS-APPEAL
** ** ** ** **
BEFORE: GUIDUGLI, HUDDLESTON AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE.
Tri-County Animal Shelter and Nora Grubb
(hereinafter “the Shelter”) have appealed from the February 28,
and April 25, 2001, orders of the Greenup Circuit Court
dismissing their Petition for Declaration of Rights as untimely
filed and denying their motion to vacate, alter or amend.
Randy
Skaggs and The Trixie Foundation (hereinafter “Skaggs”) have
cross-appealed from the April 25, 2001, order denying their
motion to amend, alter or extend and requiring them to bring a
copy machine and paper to make copies of the requested documents.
Having determined that the circuit court properly dismissed the
action as untimely, we affirm on direct appeal, and vacate in
part and reverse in part and remand on cross-appeal.
On July 31, 2000, Skaggs, the founder and authorized
agent of The Trixie Foundation, presented a written application
for records pursuant to the Kentucky Open Records Act1 seeking
documents from the Shelter.
When the requested documents were
not provided, Skaggs initiated an open records appeal with the
Office of the Attorney General (hereinafter “OAG”) on August 14,
The OAG issued a decision2 on September 13, 2000, finding
2000.
that the Shelter was a public agency pursuant to KRS 61.870(1)(h)
and that documents relating to eleven of thirteen categories of
records requested must be mailed to Skaggs upon the prepayment of
reasonable copying and postage charges.
The last paragraph
indicated that a party aggrieved by the decision could appeal it
pursuant to KRS 61.880(5) and KRS 61.882, which provide that an
aggrieved party has thirty days to initiate an action in the
appropriate circuit court.
During that thirty-day period for filing an action in
the circuit court, Skaggs filed a subsequent open records appeal
with the OAG on October 9, 2000, due to the Shelter’s failure to
respond to his September 18, 2000, open records request.
The OAG
issued a decision3 on November 9, 2000, directing the Shelter to
release the requested documents.
1
KRS 61.870 through 61.884.
2
00-ORD-175
3
00-ORD-212
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On November 14, 2000, the Shelter filed a Petition for
Declaration of Rights regarding the September 13, 2000, open
records ruling by the OAG.
Copies of the August 14, 2000, letter
and the September 13, 2000, OAG opinion were attached to the
Petition, which did not reference or have attached to it the
November 9, 2000, OAG decision.
Skaggs filed an answer and a
counter-claim on December 6, 2000, arguing that the petition was
not timely filed and requesting fees, costs, and penalties for
the willful withholding of the requested documents.
The circuit
court allowed the parties to file briefs on the issue of
timeliness and issued an order on February 28, 2001, finding that
the Shelter should have appealed within 30 days of the September
13, 2000, OAG decision and that the November 14, 2000, petition
was not timely filed.
Additionally, the circuit court ordered
the Shelter to comply with the September 13, 2000, OAG opinion.4
Skaggs filed a motion to amend, alter or extend the
order, requesting that the circuit court assess costs, fees, and
penalties against the Shelter for failing to allow for the
inspection or copying of the records.
Likewise, the Shelter
filed a motion to vacate, alter or amend, arguing that Skaggs had
sought a modification of the September 13, 2000, OAG decision,
which thereby tolled the time for taking an appeal and made the
November 14, 2000, petition timely.
On April 25, 2001, the
circuit court entered an order denying both motions.
4
In an
Although the circuit court noted in the order that Skaggs’s
motion for default was sustained, we note that the circuit court
previously denied the motion for default judgment on the counterclaim on January 25, 2001. Therefore, we shall construe that
ruling as a dismissal of the action as untimely.
-3-
effort to resolve the copying problem, the circuit court also
ordered Skaggs to bring his own copy machine and paper to the
Shelter to make copies and ordered the Shelter to provide the
electricity for the copy machine.
The Shelter has appealed from
both the February 28, and April 25, 2001, orders, and Skaggs has
cross-appealed from the latter order.
DIRECT APPEAL
The Shelter’s direct appeal is limited to whether the
Petition for Declaration of Rights was timely filed with the
circuit court.
The Shelter argues that it was timely filed as
the action taken by Skaggs in filing a second open records appeal
with the OAG served to toll the time for seeking relief from the
circuit court.
In essence, the Shelter argues that Skaggs sought
to amend the September 13, 2000, OAG opinion during the thirtyday period, likening this action to the filing of a CR 59 motion
to alter, amend or vacate, which would toll the time to appeal.
Skaggs disagrees, arguing that the second open records appeal,
decided on November 9, 2000, was a separate and discrete action
and that its filing did not toll the time for filing an appeal
with the circuit court.
Pursuant to KRS 61.880(5), an aggrieved party has
thirty days from the rendition of the OAG’s opinion to seek an
appeal.
In particular, KRS 61.880(5)(b) provides that “[i]f an
appeal is not filed within the thirty (30) day time limit, the
Attorney General’s decision shall have the force and effect of
law . . . .”
Here, the Shelter was required to file an appeal
with the circuit court on or before thirty days from September
13, 2000.
The declaration of rights action was not filed until
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November 14, 2000, well past the thirty-day deadline.
The fact
that Skaggs filed a separate open records appeal with the OAG
neither changed the date nor tolled the time for filing an appeal
from the September 13, 2000, decision.
Additionally, the Court
notes that the Shelter did not reference or attach a copy of the
second OAG opinion to its petition, negating its claims that the
September 13, 2000, OAG opinion was not properly appealable upon
its rendition.
Therefore, the circuit court properly dismissed the
Petition for Declaration of Rights as untimely.
CROSS-APPEAL
On cross-appeal, Skaggs argues that the circuit court
erred in requiring him to take his copy machine and paper to the
Shelter in order to make copies of the requested documents.
Additionally, he argues that the circuit court erred in failing
to consider awarding fees, costs, and penalties against the
Shelter.
The Shelter did not file a responsive brief to the
cross-appeal.
As to the copying issue, KRS 61.872(3)(b) provides that
“[t]he public agency shall mail copies of the public records to a
person whose residence or principal place of business is outside
the county in which the public records are located after he
precisely describes the public records which are readily
available within the public agency.”
If requested, the records
custodian is to mail the copies once the fees and cost of mailing
are received.
Although we appreciate the circuit court’s attempt
to resolve the matter, we note that the statute specifically
provides the method for copying and distributing the requested
-5-
documents.
However, because we have already determined that the
Shelter’s Petition for Declaration of Rights was untimely filed,
the circuit court lacked jurisdiction to enter its ruling
regarding the method by which the document copies would be
provided.
We must therefore vacate the portion of the April 25,
2001, order requiring Skaggs to bring a copy machine and paper to
the Shelter and the Shelter to provide electricity and the
parties should hereinafter comply with the statutory requirements
of KRS 61.872(3)(b).
As to the issue of the circuit court’s failure to
consider awarding fees, costs and penalties, we agree with Skaggs
that the circuit court erred in not properly reviewing this
matter.
KRS 61.882(5) provides that:
Any person who prevails against any agency in
any action in the courts regarding a
violation of KRS 61.870 to 61.884 may, upon a
finding that the records were willfully
withheld in violation of KRS 61.870 to
61.884, be awarded costs, including
reasonable attorney’s fees, incurred in
connection with the legal action. . . . In
addition, it shall be within the discretion
of the court to award the person an amount
not to exceed twenty-five dollars ($25) for
each day that he was denied the right to
inspect or copy said public record.
Attorney’s fees, costs, and awards under this
subsection shall be paid by the agency that
the court determines is responsible for the
violation.
Here, Skaggs prevailed before the circuit court as the Shelter’s
petition was dismissed, and Skaggs clearly requested fees, costs
and penalties throughout the action.
However, the circuit court
did not make any findings as to whether the Shelter’s withholding
of the records was willful or whether the award of sanctions was
appropriate.
Therefore, we reverse the portion of the April 25,
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2001, order denying Skaggs’s motion to amend, alter or vacate and
remand the matter for a hearing as to whether the Shelter was
willful in its withholding of the records and whether the
imposition of any further penalty is appropriate.
CONCLUSION
For the foregoing reasons, the February 28, 2001, order
dismissing the Petition for Declaration of Rights is affirmed,
the portion of the April 25, 2001, order regarding the copying
directions is vacated, and the portion of the April 25, 2001,
order denying Skaggs’s motion to amend, alter or extend is
reversed and this case is remanded for further proceedings
consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES/CROSSAPPELLANTS:
James W. Lyon, Jr.
Greenup, KY
Robert L. Caummisar
Grayson, KY
No Brief Filed by CrossAppellees
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