NORMA JEAN ANGEL v. HARLAN COUNTY BOARD OF EDUCATION and HARLAN COUNTY FISCAL COURT
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RENDERED: January 14, 2000; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001724-MR
NO. 1998-CA-001942-MR
NORMA JEAN ANGEL
v.
APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
CIVIL ACTION NO. 98-CI-00288
HARLAN COUNTY BOARD OF EDUCATION and
HARLAN COUNTY FISCAL COURT
APPELLEES
ORDER AND OPINION
AFFIRMING
AND IMPOSING SANCTIONS
** ** ** ** **
BEFORE: HUDDLESTON, JOHNSON and SCHRODER, Judges.
HUDDLESTON, Judge: Norma Jean Angel appeals the decision of Harlan
Circuit Court to dismiss her personal injury action against the
Harlan County Board of Education.
The only issue presented is
whether the circuit court erred in dismissing the complaint against
the Board based on the doctrine of sovereign immunity.
Angel fell into an uncovered manhole located at the
Evarts Elementary School, which is controlled by the Board. At the
time of her fall, it was dark and Angel alleged that she could not
see the hole nor was it clearly marked.
As a result of her fall,
Angel claimed to have suffered severe injuries because of the
negligent and careless acts and omissions of the Board and Harlan
County
Fiscal
Court.
In
particular,
she
alleged
that
the
defendants failed to properly cover the manhole opening, adequately
secure the cover, or notify her of the open manhole and the danger
it presented.
The Board and the Fiscal Court moved to dismiss Angel’s
complaint in light of the Kentucky Supreme Court’s decision in
Franklin County v. Malone.1
At the hearing on the motion, Angel’s
attorney conceded that the Malone case was directly on point and
that as a result of the decision, the circuit court had to dismiss
the case against the Fiscal Court.
The court also decided to
dismiss the case against the Board based on the doctrine of
sovereign immunity.
Section 231 of the Kentucky Constitution provides that
“[t]he General Assembly may, by law, direct in what manner and in
what courts suits may be brought against the Commonwealth.”
Supreme
Court
and
this
Court
have
provision to include fiscal courts.2
read
this
The
constitutional
In Withers v. University
of Kentucky, the Kentucky Supreme Court noted:
1
Ky., 957 S.W.2d 195 (1997) (holding that a fiscal court has
sovereign immunity).
2
See Franklin County v. Malone, Ky., 957 S.W.2d 195 (1997).
-2-
The
determination
of
whether
an
entity
is
entitled to protection by the constitutional principle of
sovereign immunity is for the judiciary.
. . . .
The General Assembly has no power to extend or
limit
the
class
of
entities
entitled
to
sovereign
immunity as this determination must be made from Section
231 of the Constitution.3
In the Commonwealth, “[p]ublic education has always been
regarded as a matter of state concern . . . .”4
As a result, the
Supreme Court has recognized that school boards are entitled to
sovereign immunity. In Clevinger v. Board of Educ. of Pike County,
the
Court
noted
that
“[a]t
least
since
1941
this
Court
has
recognized that a County Board of Education is an arm of state
government, and as such enjoys state sovereign immunity against
liability and tort.”5
In that case, the Court found that sovereign
immunity protected the school board from being sued for declining
to withdraw union dues from employees’ paychecks.
3
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 342
(1997).
4
Commonwealth ex rel. Baxter v. Burnett, 237 Ky. 473, 35
S.W.2d 857, 858 (1931).
5
Ky., 789 S.W.2d 5, 10 (1990) (citing Wallace v. Laurel
County Bd. of Educ., 287 Ky. 454, 153 S.W.2d 915 (1941)). Other
cases include: Copley v. Board of Education of Hopkins County,
Ky., 466 S.W.2d 952 (1971); Carr v. Wright, Ky. 423 S.W.2d 521
(1968); Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967);
and Wood v. Board of Education of Danville, Ky., 412 S.W.2d 877
(1967).
-3-
In Cullinan v. Jefferson County,6 an individual was
injured when he stepped into a hole while playing tennis on school
grounds. He sued the school board and Jefferson County, which had
an employee supervising the activities.
In declining to find
liability against the school board and the county, the Court
explained that both were protected by sovereign immunity.
In Knott County Board of Education v. Mullins,7 this
court reached the same conclusion.
An automobile struck Mullins
while he was on his way to board a school bus on the grounds of an
elementary school.
Mullins sued the driver and owner of the car
alleging negligence.
The defendants then filed a third-party
complaint against the school district. After the claim against the
school district was filed, Mullins amended his complaint to allege
that the school district also negligently caused his injuries.
In
reversing the circuit court’s decision against the school district,
this Court noted that sovereign immunity protected the school
district and that the school district could not waive its sovereign
immunity defense.
If, as we hold, the Board is protected by sovereign
immunity, Angel argues alternatively that the Board’s participation
in an insurance trust constituted a waiver of immunity.
In
Withers, the appellant made a similar argument, which the Supreme
Court rejected.
If immunity exists, it is not lost or diminished or
affected in any manner by the purchase of liability
6
Ky., 418 S.W.2d 407 (1967).
7
Ky. App., 553 S.W.2d 852 (1977).
-4-
insurance or the establishment of an indemnity fund,
whether directed or authorized by statute or merely
undertaken without authorization, notwithstanding that
such may have been an unnecessary expenditure of funds.8
As
Withers
clearly
states,
the
Board’s
participation
in
an
insurance trust cannot constitute a waiver in this case.
In light of the cases cited herein, it is apparent that
the circuit court did not err in dismissing Angel’s claim against
the school board.
Angel also argues on appeal that the Fiscal Court is not
protected from liability by sovereign immunity.
However, Angel
waived this argument in the circuit court and, hence, did not
preserve it for appeal.9
of the argument.
Therefore, we will not address the merits
Instead, we will address Angel’s decision to
appeal against the Fiscal Court.
8
Withers, 939 S.W.2d at 346.
See also Malone, 957 S.W.2d at
203.
9
See Stucker v. Bibble, Ky., 442 S.W.2d 578, 580 (1969),
overruled on other grounds by Cooper v. Fultz, Ky., 812 S.W.2d 497
(1991) (“[I]t is incumbent upon a litigant who seeks reversal of a
trial court’s judgment to demonstrate to the appellate court that
the trial court has committed error prejudicial to the substantial
rights of the litigant and that the litigant has properly preserved
for appellate review the error or errors upon which he relies.”);
Harrel v. Yonts, 271 Ky. 783, 113 S.W.2d 426, 430 (1938) (“It is a
universal rule regulating the right of an appeal that it will not
lie in favor of a party unless it was an involuntary adverse
judgment.
If the judgment appealed from was rendered at the
instance of the complaining parties or by their consent, they will
not be permitted to complain upon an appeal”) (citing Taylor v.
Slider, 185 Ky. 756, 215 S.W. 827 (1919)); Forester v. Forester,
Ky. App., 979 S.W.2d 928, 931 (1998) (“It goes without saying that
errors to be considered for appellate review must be precisely
preserved and identified in the lower court”) (citing Skaggs v.
Assad, Ky., 712 S.W.2d 947, 950 (1986)).
-5-
Although no party has raised the issue, we believe that
Angel’s appeal against the Fiscal Court is frivolous.
Kentucky
Rule of Civil Procedure (CR) 73.02(4) provides that:
If an appellate court determines that an appeal or motion
is frivolous, it may award just damages and single or
double costs to the appellee or respondent. An appeal or
motion is frivolous if the court finds that it is so
totally lacking in merit that it appears to have been
taken in bad faith.
As noted, Angel’s attorney conceded below that the Fiscal Court had
sovereign immunity and could not be held liable for her injuries.
Despite this concession, Angel named the Fiscal Court as a party to
the appeal.
By making the Fiscal Court a party to this appeal,
Angel has forced the Fiscal Court to defend itself before this
Court and incur legal expenses.
Angel’s appeal against the Fiscal Court completely lacks
merit and, in light of her attorney’s concession to the trial
court, appears to have been taken in bad faith.
When this matter
came before the circuit court, the following exchange took place:
Judge Johnson:
Appearing for the Plaintiff is the
Honorable Otis Doan; appearing for the Defendant is [sic]
the Honorable Larry Bryson and the Honorable Johnny L.
Turner.
This is here on the motion of the Defendant, or
is it the Defendants? I guess there’s a joint motion, is
it?
Mr. Bryson:
It’s our motion to
Honor.
-6-
dismiss, Your
Judge Johnson:
Right.
To dismiss, the argument
being that the Defendants are protected by the doctrine
of sovereign immunity.
Mr. Bryson:
Your Honor, the issue is essentially
the same in both the Howard case10 and the Angel case, if
you should want to hear that.
Judge Johnson:
Yes sir.
Now, I think one of these
cases involves the Harlan Fiscal Court.
Mr. Doan:
That’s correct.
Judge Johnson:
And --
Mr. Doan:
Judge, on behalf of the Harlan Fiscal
Court I’ll concede sovereign immunity to them.
Judge Johnson:
Uh-huh (affirmative). Well, I think
the Malone case is square on that in the facts.
Mr. Doan:
That’s right.
Judge Johnson:
So in regard to the Harlan Fiscal
Court, the motion is granted as to their dismissal and
the same being for the reason that they are protected by
sovereign immunity and I think the Malone case makes that
plain and clear as to a Fiscal Court.
Mr. Doan:
Now --
I wish I could argue against the
Fiscal Court, Judge, but you are right. That Malone case
. . . .
10
Katherine Marie Howard v. Harlan Co. Bd. of Education,
Court of Appeals No. 1998-CA-001819-MR.
-7-
Considering the circumstances of this case, we believe it
is appropriate to impose sanctions pursuant to CR 73.02.
In
numerous instances, this Court has determined that the appropriate
sanction
for
a
violation
of
CR
73.02
is
the
imposition
of
attorney’s fees against the party who filed the frivolous appeal.11
Therefore, we impose the sanction of assessing against Angel the
Fiscal Court’s legal costs associated with this appeal from the
beginning to its conclusion, including the cost of preparing its
brief and reasonable attorney’s fees.
We direct the Fiscal Court
to submit within fifteen days following rendition of this decision
an affidavit detailing the costs it incurred in defending against
this appeal. Angel will have ten days thereafter to respond before
we fix the amount of the sanctions.
The judgment is affirmed.
This action shall remain on
the Court’s active docket pending imposition of sanctions.
ALL CONCUR.
ENTERED:
January 14, 2000
/s/ Joseph R. Huddleston
JUDGE, COURT OF APPEALS
11
See, e.g., Young v. Edward Tech. Group, Inc., Ky. App., 918
S.W.2d 229 (1995) (ordering the appellant to pay all of appellee’s
court costs from the beginning to the end of the appeal); Lake
Village Water Ass’n v. Sorrell, Ky. App., 815 S.W.2d 418 (1991)
(imposing court costs after a local government filed a frivolous
appeal).
-8-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
HARLAN COUNTY BOARD
OF EDUCATION:
Otis Doan, Jr.
Harlan, Kentucky
Johnnie Turner
Harlan, Kentucky
Larry G. Bryson
BLEDSOE AND BRYSON, PSC
London, Kentucky
BRIEF FOR APPELLEE
HARLAN COUNTY FISCAL COURT:
Martha L. Brown
FARMER, KELLEY, BROWN
AND WILLIAMS
London, Kentucky
-9-
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