CROSBY (JO ANN), ET AL. VS. MASON COUNTY FISCAL COURT, ET AL.
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RENDERED: JANUARY 21, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000940-MR
JO ANN CROSBY
AND FAY TAYLOR
v.
APPELLANTS
APPEAL FROM MASON FAMILY COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 07-CI-00282
MASON COUNTY FISCAL COURT;
JAMES L. GALLENSTEIN, JUDGE EXECUTIVE;
WILLIAM O. RICE; BOB BRADFORD; AND
KELLY BRADFORD
APPELLEES
OPINION AND ORDER
AFFIRMING
AND DISMISSING
KELLY BRADFORD
** ** ** ** **
BEFORE: MOORE AND THOMPSON, JUDGES; WHITE,1 SENIOR JUDGE.
THOMPSON, JUDGE: Jo Ann Crosby and Fay Taylor, sisters, appeal from the
summary judgment of the Mason Circuit Court finding that they did not exhaust
1
Senior Judge Edwin White sitting as Special Judge by assignment of the Chief Justice pursuant
to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
their administrative remedies. For the reasons stated, we affirm and further
dismiss Kelly Bradford as a party to this appeal.
On or about February 6, 2006, William O. Rice, a Mason County
employee, mailed a notice of nuisance abatement to Crosby. A copy of a certified
mailing receipt evidenced that Shauna Crosby, Crosby’s daughter, signed for the
envelope containing the notice. A second letter was then mailed to Crosby, and
she received and signed for it in May 2006. Further, notice of nuisance abatement
was physically posted on the subject property on two occasions. Despite these
facts, Crosby maintained that she did not receive any of these written notices. On
October 6, 2006, Taylor was sent notice to her last-known address.
Containing a citation to Ordinance Number 02-03, the notice of
February 6, 2006, provided the following:
[W]e have determined that a nuisance exists on your
property due to the existence of one or a number of the
following conditions:
1. Rubbish, garbage or construction debris located on the
property.
2. An unfit and unsafe structure or mobile home(s).
3. Excessive growth of grass, trees, vines or underbrush.
…
This letter serves as notice to you to abate the nuisance
within thirty (30) days of the date hereof. Should you
fail to do so, the Mason Fiscal Court intends to abate
the nuisance….
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Taylor’s notice contained an additional nuisance item, listed as “[i]noperable or
unregistered vehicles,” and old auto parts or unused equipment and appliances.
At some point after the October notice, Mason County and its agents
demolished mobile homes and removed scrap from the property. Subsequently,
Mason County filed a lien against the appellants’ property for $4,108.51, the costs
associated with the demolition and removal of items from appellants’ property.
On August 10, 2007, appellants filed a complaint against the Mason
Fiscal Court, Mason County Judge Executive James L. Gallenstein, William O.
Rice, and Kelly and Bob Bradford, and several others who are not parties to this
appeal. Appellants alleged that Mason County or its agents trespassed on their
property, violated their due process rights, destroyed their personal property,
committed gender discrimination, and violated KRS 381.770(5).
On August 31, 2007, the Mason Fiscal Court and Judge Executive
Gallenstein filed an answer and counterclaim. The parties requested $4,108.51 in
damages, resulting from the cleanup of appellants’ property. Later, the Mason
Fiscal Court filed a motion for summary judgment on behalf of itself and its
employees. As grounds for the dismissal of appellants’ case and for their claim for
monetary damages, the Mason Fiscal Court argued that it was entitled to demolish
the property pursuant to local ordinance, that appellants failed to exhaust their
administrative remedies, and that it was entitled to governmental immunity.
On April 22, 2009, the trial court issued an order granting
summary judgment in favor of the Mason Fiscal Court and its agents. The trial
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court ruled that county officials properly followed the applicable ordinance and
that the appellants had failed to exercise or exhaust their administrative remedies.
The trial court then awarded the Mason Fiscal Court $4,108.51 in damages, plus
interest at a rate of twelve percent from the date of the filing of the property lien.
As an initial procedural matter, we note that appellants did not name
Kelly Bradford as an appellee in their notice of appeal filed on May 14, 2009. If a
party is not specifically named as an appellant or appellee in a notice of appeal, the
party is not considered a party to the appeal and must be dismissed. Richardson v.
Rees, 283 S.W.3d 257, 261-62 (Ky.App. 2009). Consequently, we conclude that
Kelly Bradford must be dismissed from this appeal because he was not specifically
named in appellants’ notice of appeal. Id. Having resolved this procedural issue,
we now will address the arguments presented by appellants.
Appellants argue that the applicable ordinance does not comply with
KRS 82.710(2) and (3). We disagree.
The standard of review applicable to an appeal of a summary
judgment is well-established. An appellate court must decide whether the trial
court correctly ruled that there was no genuine issue as to any material fact and that
the moving party was entitled to a judgment as a matter of law. Barnette v.
Hospital of Louisa, Inc., 64 S.W.3d 828, 829 (Ky.App. 2002). “Summary
judgment is proper ‘if the pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the affidavits, if any, show that
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there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”’ Id., quoting CR 56.03.
Summary judgment should only be granted when it appears that it
would be impossible for the non-moving party to produce sufficient evidence to
succeed at trial. Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985).
Because there are no disputed facts involved with summary judgments, we review
the decision of the trial court without deference. Kreate v. Disabled American
Veterans, 33 S.W.3d 176, 178 (Ky.App. 2000).
Establishing the requirements for local nuisance codes, KRS
82.710(2) and (3) provide that local governments electing to enact a nuisance code
and enforce violations of this code as a civil violation must enact ordinances that
“establish reasonable standards and procedures for the enforcement of the nuisance
code,” and establish a hearing board and officers and the procedures to be followed
by the hearing board and hearing officers.
After reviewing the record, we conclude that Mason County’s
nuisance code, Ordinance No. 02-03, complies with KRS 82.710(2) and (3). In
Section I, the ordinance provides that a “public nuisance” is any “condition or use
of premises which is detrimental to the property of others, the use and enjoyment
thereof, or the value of other property in the immediate vicinity in which such
premises are located.” The ordinance then contains a listing of many possible
nuisances, including rubbish, garbage, building debris, and construction waste.
The listing further includes unfit or unsafe structures and property covered by
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grass, trees, vines, underbrush or other forms of vegetation in such a manner and
extent that the subject property may reasonably become inhabited by rodents,
mosquitoes or other vermin or animals that may cause the transmission of disease.
In Section III of the ordinance, the nuisance abatement notice process
is explained in detail. It provides that a notice shall be sent to the property owner
of the offending property describing the nuisance and demanding that the nuisance
be abated within thirty days of the date of the notice. The notice must contain a
statement that the Fiscal Court may abate the nuisance if the property owner does
not resolve the nuisance. The notice must also contain a statement that a lien will
be placed on the property for the cost of the nuisance abatement.
In Section V of the ordinance, the nuisance abatement appeals
process is established. The ordinance provides that any owner or aggrieved person
may appeal the decision regarding “the prohibited act or abatement thereof,”
within thirty days of the mailing of the notice. Upon the filing of an appeal, all
matters relating to the abatement are stayed pending a Fiscal Court hearing. The
aggrieved party must be given at least ten-days’ notice and the party has a right to
testify, to cross-examine witnesses, call witnesses, and introduce evidence. If the
decision of the Fiscal Court is unsatisfactory, the aggrieved party can appeal to the
Mason Circuit Court within thirty days of the decision.
Having reviewed the record, we conclude that the ordinance complies
with KRS 82.710(2) and (3). The ordinance contains reasonable standards and
procedures and created a hearing board and hearing officers. There is a process in
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which an aggrieved party can present evidence and challenge her party-opponent.
Accordingly, we conclude that the ordinance is not statutorily invalid.
Appellants next argue that the applicable ordinance is vague and
defective because the ordinance does not define “cleanup.” Appellants further
argue that the ordinance does not list many of the items found on their property and
disposed of by county official or their agents. We disagree.
“As long as an ordinance or statute can be reasonably understood by
those affected by the ordinance and they can reasonably understand what the
statute requires of them, it is not unconstitutionally vague.” Lexington Fayette
County Food and Beverage Association v. Lexington-Fayette Urban County
Government, 131 S.W.3d 745, 753 (Ky. 2004). If an ordinance provides “‘fair
warning’” to the public and has “‘explicit standards’” for officials who apply the
law, the ordinance is not vague and, thus, passes constitutional muster. Id. citing,
Hardin v. Commonwealth, 573 S.W.2d 657 (Ky. 1978).
An ordinance does not have to specifically list every single improper
nuisance by name at the risk of being void for vagueness. Rather, the standard is
whether the ordinance fairly warns individuals of what the law is and provides an
express standard for an arbiter to reasonably determine a violation. Id. Here,
appellants were informed that their property contained an unfit and unsafe structure
or mobile home and needed to be cleaned up. Clearly, individuals can reasonably
understand that an unfit and unsafe mobile home needed to be made safe and fit.
Accordingly, we conclude that the ordinance is not unconstitutionally vague.
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Appellants argue that their notices did not inform them that the county
would demolish and remove their property. They argue that they had the right to
demolish their own property pursuant to KRS 381.775.2 We disagree.
The notices provided that specific nuisances existed on appellants’
property and that they were required to abate these occurrences. One of these
nuisances was the existence of unsafe and unfit structures on their property. The
notices provided that county officials would conduct a follow-up inspection after
the nuisances were resolved. However, if the nuisances were not resolved, the
notices provided that the county would resolve the matter at the property owner’s
expense. Thus, we conclude that demolition and removal of the unfit and unsafe
structures were reasonably within the scope of the notices provided.
Moreover, KRS 381.775(2) provides that “[a] county may enter into a
voluntary agreement with a property owner for the demolition or removal of a
dilapidated building.” While this is an option for counties and property owners,
the plain language of the statute places this decision in the hands of the parties.
The county and a property owner may enter into a voluntary agreement to demolish
and remove a building. Because they had no right to require the county to enter
into an agreement, appellants’ argument regarding KRS 381.775(2) fails.
Appellants next argue that they received defective notice regarding
the nuisance abatement because they were not fully informed of their rights.
However, appellants failed to cite to the record where this issue was preserved as
2
Here, appellants’ argument is identical to their argument in Section E of their brief. Thus, our
resolution of this argument will resolve appellants’ argument contained in Section E as well.
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required by CR 76.12(4)(c)(iv) and (v). Accordingly, this issue is unpreserved for
appellate review. Craig & Bishop, Inc. v. Piles, 247 S.W.3d 897, 905 (Ky. 2008).
Appellants argue that the trial court should have granted them relief
from the conduct of the Mason Fiscal Court and its agents for the vindictive and
discriminatory action taken against them. They argue that they established
negligence and, thus, were entitled to continue their case. We disagree.
In this case, the trial court determined that appellants failed to exhaust
their administrative remedies before filing their court action. “Exhaustion of
administrative remedies is a well-settled rule of judicial administration that has
long been applied in this state.” Kentucky Retirement Systems v. Lewis, 163
S.W.3d 1, 3 (Ky. 2005). If a party’s administrative remedies are not exhausted as
in this case, this failure is fatal to her ability to pursue a court action. Id. at 4.
Appellants argue that the Mason Fiscal Court exceeded its authority in
such a way to deny them any viable administrative remedy. Thus, they contend
that they should be relieved from having to exhaust their administrative remedies.
We disagree.
In this case, appellants could have stayed the nuisance abatement
proceedings had they filed an appeal to the Mason Fiscal Court. The parties
received notices from February 2006 until October 2006. On multiple occasions,
notices were posted at the property subject to the nuisance notice. Subsequently,
appellants learned of the demolition on their property in January 2007. They then
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filed an action against the county and its agents in August 2007. Considering these
facts, we conclude that the trial court’s ruling against them was not erroneous.
For the foregoing reasons, the Mason Circuit Court’s granting of
summary judgment in favor of the Mason Fiscal Court and its agents is affirmed.
Further, it is ORDERED that we DISMISS Kelly Bradford from being
a party to this appeal.
ALL CONCUR.
ENTERED: January 21, 2011
/s/ Kelly Thompson
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Jo Ann Crosby, Pro Se
Maysville, Kentucky
Phillip Bruce Leslie
Greenup, Kentucky
Fay Taylor, Pro Se
Tollesboro, Kentucky
John F. Estill
Mason County Attorney
Maysville, Kentucky
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