GEORGE A. ELLIS, JR. v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
Annotate this Case
Download PDF
RENDERED:
SEPTEMBER 8, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-001170-MR
NO. 1999-CA-001600-MR
GEORGE A. ELLIS, JR.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
CIVIL ACTION NO. 98-CI-02002
v.
LEXINGTON-FAYETTE
URBAN COUNTY GOVERNMENT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON and SCHRODER, Judges.
HUDDLESTON, Judge:
In 1994, the Lexington-Fayette Urban County
Government (LFUCG) inspected a structure located at 305 Ash Street
in Lexington.
Based on the inspection, it issued a condemnation
notice to the property’s owner, Clarence Person, pursuant to the
Lexington-Fayette
Urban
County
Government
Code
of
Ordinances
Chapter 12.
Ten months after LFUCG provided notice to Person, Person
conveyed the property to Charles E. Combs. One week later, Charles
Combs transferred title to Emma and Kelly Combs.
As required by
ordinance, the parties to each transaction completed the required
transfer of ownership forms, which indicated that the new title
holder or holders knew that LFUCG had issued a condemnation notice
for the property.
In February 1995, LFUCG attached a placard to the wall of
the structure announcing that LFUCG had condemned the structure.
At some point in time prior to the demolition of the structure, an
unknown person removed the placard.
On August 29, Director of the
Division of Code Enforcement C.J. Mallory sent a memorandum to the
LFUCG Law Department requesting a limited title search to determine
the fee owner and any other lien holders.
On October 10, 1995, Kelly and Emma Combs conveyed the
property to George Ellis.
A transfer of ownership form referring
to the condemnation notice was not completed for this conveyance.
The next day, LFUCG closed the bidding process for the demolition
of the structure on the subject property.
On October 25, LFUCG
personnel reinspected the property and sent Ellis a letter granting
an additional thirty days to repair the structure.
LFUCG sent
additional notices, including a notice prior to the demolition of
the structure. Further details about the notices will be explained
in addressing Ellis’s arguments.
To demolish the structure, LFUCG accepted the lowest bid
of $2,500.00 from Odd Jobs Wrecking Company.
canceled
its
purchase
order
after
Odd
In July 1996, LFUCG
Jobs
defaulted
on
the
contract to perform the demolition. LFUCG then awarded the project
to the second lowest bidder, Clem Wrecking Company, which had
submitted
a
bid
of
$3,650.00.
-2-
Clem
Wrecking
demolished
the
structure at the beginning of October.
On October 7, 1996, LFUCG
sent Ellis an invoice for the cost of demolition plus a $100.00
administrative fee. At the same time, LFUCG informed Ellis that it
would place a lien on the property if he did not pay the invoice
within fourteen days.
On May 7, 1997, LFUCG finally placed a lien
against the property.
On June 1, 1998, LFUCG filed the present action to
enforce the lien against Ellis’s property.
alleging:
Ellis counterclaimed
(1) an unconstitutional taking of property under the
Fifth Amendment of the United States Constitution and Section 2 of
the Kentucky Constitution by demolishing the structure on his
property without notice or adequate compensation; (2) negligence by
failing to follow the proper procedures for the demolition of a
structure;
(3)
fraud,
deceit
and
misrepresentation
by
making
material misrepresentations of fact or by concealing material facts
which it had a duty to disclose; and (4) intentional infliction of
emotional and physical distress/outrageous conduct by retaliating
against Ellis for filing a discrimination suit with the Equal
Employment Opportunity Commission and the Human Rights Commission
in February 1995.
After limited discovery, both parties moved for
summary judgment.
The circuit court entered summary judgment for
LFUCG and awarded the full amount of the lien to LFUCG.
The court
denied Ellis’s motion pursuant to Kentucky Rule of Civil Procedure
(CR) 59.05 to alter, vacate or amend the judgment.
followed.
-3-
This appeal
I.
LFUCG’S SUMMARY JUDGMENT MOTION
-4-
As we stated in Scifres v. Kraft,1 “[t]he standard of
review on appeal of a summary judgment is whether the trial court
correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as
a matter of law.”2
“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.”3
As an appellate
court reviewing a motion for summary judgment, we owe no deference
to the trial court because factual findings are not at issue.4
In his brief, Ellis claims that there are material issues
of fact in dispute.
what they are.
While he may be correct, he fails to tell us
He instead focuses on the perceived legal problems
with LFUCG’s action against him.
A.
ALLEGED UNCONSTITUTIONAL TAKING OF PROPERTY
First, Ellis avers that LFUCG’s actions amounted to an
unconstitutional taking of his property.
argument,
he
relies
on
Johnson
v.
In support of this
City
of
Paducah5
and
Washington v. City of Winchester.6
1
Ky. App., 916 S.W.2d 779 (1996).
2
Id. at 781 (citing CR 56.03).
3
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., Ky., 807
S.W.2d 476, 480 (1991) (citing Dossett v. New York Mining & Mfg.
Co., Ky., 451 S.W.2d 843 (1970); Rowland v. Miller’s Adm’r, Ky.,
307 S.W.2d 3 (1956)).
4
Goldsmith v. Allied Bldg. Components, Inc., Ky., 833 S.W.2d
378, 381 (1992).
5
Ky., 512 S.W.2d 514 (1974).
6
Ky. App., 861 S.W.2d 125 (1993).
-5-
Before the events at issue, LFUCG had adopted the 1993
version
of
the
Building
Officials
and
Code
Administrators
International, Inc., National Property Maintenance Code (BOCA Code)
and also revised sections of the code.
LFUCG codified the BOCA
Code in section 12-1 of the Lexington-Fayette Urban County Code of
Ordinances.
In order to demolish a structure, the BOCA Code
provides, in part:
PM-110.1 General:
owner
of
any
The code official shall order the
premises
upon
which
is
located
any
structure, which in the code official’s judgment is so
old, dilapidated or has become so out of repair as to be
dangerous, unsafe, unsanitary or otherwise unfit for
human habitation or occupancy, and such that it is
unreasonable to repair the structure, to raze and remove
such structure, of if such structure is capable of being
made
safe
by
repairs,
to
repair
and
make
safe
and
sanitary or to raze and remove at the owner’s option . .
. .
PM-110.2 Order: All notices and orders shall comply with
Section PM-107.0.
As amended by LFUCG, PM-110.3 provides:
Whenever the owner of a property fails to comply with a
demolition order within the time prescribed, the code
official shall cause the structure or part thereof to be
razed and removed, or otherwise disposed of, as deemed
appropriate, either through an available public agency or
-6-
by contract or arrangement with private persons, and the
cost of such razing and removal shall be charged against
the real estate upon which the structure is located and
shall be a lien upon such real estate.7
The BOCA Code also dictates how LFUCG shall provide
notice to the owner of the property.
The notice must:
1.
Be in writing;
2.
Include a description of the real estate sufficient
for identification;
3.
Include a statement of the reason or reasons why
notice is being issued; and
4. Include a correction order allowing a reasonable time
for the repairs and improvements required to bring the
dwelling unit or structure into compliance with the
provisions of [the BOCA Code].8
The BOCA Code further provides that:
Such notice shall be deemed to be properly served if a
copy thereof is (a) delivered to the owner personally; or
(b) sent by certified or registered mail addressed to the
owner at the last known address with return receipt
requested.
If the certified or registered letter is
returned showing that the letter was not delivered, a
7
Lexington-Fayette Urban County Gov’t, Code of Ordinances §
12-1(b) (1994).
8
Building Officials & Code Adm’rs Int’l, Inc., National
Property Maintenance Code PM-107.2 (1993 ed.).
-7-
copy thereof shall be posted in a conspicuous place in or
about the structure affected by such notice.
Service of
such notice in the foregoing manner upon the owner’s
agent or upon the person responsible for the structure
shall constitute service of notice upon the owner.9
Under PM-111.1:
Any person affected by a decision of the code official or
a notice or order issued under this code shall have the
right of appeal to the board of appeals, provided that a
written application for appeal is filed within 20 days
after the day the decision, notice or order was served.
To determine whether the notice requirements were met in
this case, we must examine at length the various notices from
LFUCG.
LFUCG completed an inspection of the structure on the
property on August 4, 1994, and gave the owner, Person, a field
inspection report ordering him to remove overgrown trees and brush
within fifteen days. On August 5, LFUCG sent Person a condemnation
notice directing him to repair the structure within fifteen days.
The notice informed Person of his right to appeal within twenty
days and told him whom to contact.
The notice also explained that
Person could not legally convey the property to another party
without disclosing the condemnation notice.10
9
Id. PM-107.3.
10
The BOCA Code specifically addresses changes in title.
provides:
It
(continued...)
-8-
In February 1995, LFUCG placed a placard on the front of
the property, which an unknown party removed at a later date.
After the posting of the placard, Person conveyed the property to
Charles Combs, who, one week later, conveyed the property to Emma
and Kelly Combs.
All of the subsequent title holders prior to
Ellis were informed about the status of the structure.
On October 25, 1995, LFUCG sent a reinspection notice to
Ellis, entitled the final 30-day extension to the original notice
and order.
It noted that LFUCG had previously ordered necessary
repairs on August 5, 1994.
The notice also informed Ellis of the
penalties for failing to comply and told him how to contact LFUCG.
On November 21, LFUCG sent Ellis a reinspection notice
that noted some repairs had been satisfactorily completed.
LFUCG
gave Ellis thirty days from December 4, 1995, to complete the
repairs.
Besides notifying him how he could contact LFUCG, the
notice indicated that it was an extension of the August 5, 1994,
notice and order.
10
(...continued)
It shall be unlawful for the owner of any dwelling unit or
structure who has received a compliance order or upon whom a
notice of violation has been served to sell, transfer,
mortgage, lease or otherwise dispose of to another until the
provisions of the compliance order or notice of violation have
been complied with, or until such owner shall first furnish
the grantee, transferee, mortgagee or lessee a true copy of
any compliance order or notice of violation issued by the code
official and shall furnish to the code official a signed and
notarized statement from the grantee, transferee, mortgagee or
lessee, acknowledging the receipt of such compliance order or
notice of violation and fully accepting the responsibility
without condition for making the corrections or repairs
required by such compliance order or notice of violation.
Id. PM-107.5.
-9-
On December 21, LFUCG sent a reinspection notice to
Ellis.
The notice stated that the time for an appeal had expired
and that it appeared that no improvements had been made to the
structure.
The notice requested that Ellis “[p]lease contact
[LFUCG officials]
within 3 days and make an appointment to meet
and determine a time period for satisfactory completion of repairs.
Such time can be granted in the form of an extension to the
original Notice & Order.”
The notice stated how LFUCG could be
contacted.
On January 24, 1996, LFUCG served Ellis with a notice and
order for demolition, for which he signed.
LFUCG based the notice
and order on a January 22 inspection in which it stated:
X
THE
STRUCTURE
HAS
BEEN
FOUND
TO
BE
SO
OLD,
DILAPIDATED OR SO OUT OF REPAIR THAT IT IS DANGEROUS,
UNSAFE, UNSANITARY OR UNFIT FOR HUMAN OCCUPANCY OR USE
AND AS SUCH REPAIRS ARE UNREASONABLE.
X
THE COST OF REPAIRS EXCEEDS ONE HUNDRED (100%)
PERCENT OF THE CURRENT VALUE OF THE STRUCTURE.
SUCH
REPAIRS HAVE BEEN FOUND TO BE UNREASONABLE.
LFUCG ordered him to demolish the structure within thirty days.
LFUCG also indicated that he could file an appeal within twenty
days.
The notice included a violation report that listed the
deficiencies in the structure.
Ellis did not act on the notice by
demolishing the property or contacting LFUCG.
On April 19, 1996, LFUCG filed a lis pendens against the
property.
In October, Clem Wrecking demolished the structure.
LFUCG subsequently notified Ellis of the cost of the demolition and
-10-
directed him to pay the costs within fourteen days of the notice.
He failed to do so.
Pursuant to PM-110.3, LFUCG filed a lien
against the property on May 7, 1997.
Ellis
argues
that
the
notices
were
deficient
when
compared to the technical requirements articulated in the BOCA
Code.
In addressing Ellis’s argument, we must focus on the
important issue of whether Ellis ever had notice that the structure
had to be repaired or demolished.
The clear answer is “yes.”
LFUCG sent Ellis three notices to repair the structure on his
property.
In addition, the demolition notice was hand delivered,
and Ellis signed for the notice.
All of the notices indicated how
to contact code officials, and the demolition notice indicated how
he could appeal that order.
In his deposition, Ellis admitted
under oath that he had received three notices and the demolition
notice. Ellis took no action until LFUCG filed suit to enforce the
lien.
Ellis’s reliance on Washington and Johnson to support his
argument that the notices were insufficient is misplaced.
In
Washington, we held unconstitutional an ordinance that required the
owner of a structure to demolish it when the cost of repairs
exceeded 100% of the structure’s current value.11
In reaching this
conclusion, we relied on Johnson, which had struck down on the same
grounds a Paducah ordinance that required a structure whose cost of
repairs exceeded 50% of its value to be demolished.
11
Washington, supra, n. 6, at 126.
12
Johnson, supra, n. 5, at 516.
-11-
12
In both
cases, we held that the ordinances violated Section 2 of the
Kentucky Constitution.13
This case has important distinctions from Washington and
Johnson.
First, LFUCG gave Ellis the opportunity to repair the
structure on his property and he chose not to fix it; and second,
Ellis never appealed from LFUCG’s order to demolish the property.
Washington and Johnson do not stand for the proposition that a
local government can never require the demolition of a structure;
rather, the local government must give the owner the option to
either repair the structure or demolish it within a reasonable
period of time.14
Here, LFUCG gave Ellis, the owner of the property, an
opportunity to repair the structure.
LFUCG’s
demolition
order.
When
Ellis never appealed from
Ellis
did
not
demolish
the
structure, LFUCG hired a contractor to demolish it and billed Ellis
for the demolition costs.
We find no error in those actions.
Ellis never contested LFUCG’s action to demolish the structure
until LFUCG attempted to collect on the lien on the property.
In
light of our conclusions regarding LFUCG’s cause of action, it is
13
Washington, supra, n. 6, at 126; Johnson, supra, n. 5, at
516.
14
Washington, supra, n. 6, at 126 (The owner “should have
been given the option to repair within a reasonable time,
or demolish the structure.” . . . [T]he method of compliance is
also the property owner’s decision. It’s his/her money and far be
it from the City to say how a reasonable person should spend
his/her money.”); Johnson, supra, n. 5, at 516 (“In the
circumstances presented, the owner should be afforded a reasonable
time to repair his property so as to comply with the building code
requirements if he so desires, unless there is present an imminent
and immediate threat to the safety of persons or property.”).
-12-
unnecessary to address Ellis’s counterclaims for unconstitutional
taking of property and negligence.
B.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Another
of
Ellis’s
counterclaims
is
for
intentional
infliction of emotional distress. He believes that the trial court
should not have granted summary judgment on this counterclaim.
The
Kentucky
Supreme
Court
adopted
the
tort
of
intentional infliction of emotional distress in Craft v. Rice.15
After
Craft,
“[o]ne
who
by
extreme
and
outrageous
conduct
intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress, and if
bodily harm to the other results from it, for such bodily harm.”16
The basic premise of this tort “is a right to be free of emotional
distress arising from conduct of another.”17
In this case, Ellis has failed to come forward with
evidence to support this claim.
He bases this claim solely on his
belief that LFUCG was retaliating for a claim that he filed with
the EEOC and the Human Rights Commission.
His argument is based on
the timing of LFUCG’s action to enforce the lien.
As the circuit
court noted, Ellis had ample opportunity to conduct discovery to
support
his
counterclaims.
As
this
Court
said
in
Smith
v.
Food Concepts, Inc.,18 “[m]ere allegations in a counterclaim or
15
Ky., 671 S.W.2d 247 (1984).
16
Id. at 251 (quoting Restatement (Second) of Torts § 46(1)
(1965)).
17
Id.
18
Ky. App., 758 S.W.2d 437 (1988).
-13-
answer are insufficient to resist [the opposing party]’s summary
judgment motion.”19
In light of the lack of any genuine issues of
material fact, we conclude that the circuit court did not err in
granting
summary
judgment
on
the
intentional
infliction
of
emotional distress claim.
II.
Ellis
EXHAUSTION OF ADMINISTRATIVE REMEDIES
claims
that
he
was
because
no
not
required
appropriate
to
exhaust
administrative
remedies
administrative
remedy exists.
In the alternative, he argues, LFUCG is estopped
from raising this argument because it represented to Ellis that he
had missed his opportunity to appeal.
Section 2 of the Kentucky Constitution provides that
“[a]bsolute and arbitrary power over the lives, liberty and power
of freemen exists nowhere in a republic, not even in the largest
majority.”
In
American
Beauty
Homes
Corp.
v.
Louisville
&
Jefferson County Planning & Zoning Comm.,20 Kentucky’s highest court
noted that the Kentucky Constitution prohibits the legislature from
interfering with a party’s recourse to the courts from an adverse
administrative decision.21
However, in order to obtain relief, a party must exhaust
all
administrative
remedies.
As
the
same
Goodwin v. City of Louisville:22
19
Id. at 439.
20
Ky., 379 S.W.2d 450 (1964).
21
Id. at 456, 457.
22
309 Ky. 11, 215 S.W.2d 557 (1948).
-14-
court
observed
in
Orderly procedure in cases of public administrative
law favors a preliminary sifting process, particularly
with respect to matters within the competence of the
administrative authority set up by a statute, as where
the question demands the exercise of sound administrative
discretion.
And
where
an
administrative
remedy
is
provided by the statute, relief must be sought from the
administrative body and this remedy exhausted before the
courts will take hold.
simple.
The procedure usually is quite
Ordinarily the exhaustion of that remedy is a
jurisdictional prerequisite to resort to the courts.23
Despite
this
general
rule,
courts
have
created
exceptions
including: (1) “when there are no disputed factual questions to be
resolved and the issue is confined to the validity or applicability
of a statute or ordinance”;24 (2) “the administrative proceeding
probably would be an exercise in futility”;25 or (3) attacking the
jurisdiction of the agency when “it is necessary for the judiciary
to restrain the agency in order to prevent irreparable injury.”26
23
Id. at __, 215 S.W.2d at 559 (internal citation omitted)
(citing Martin v. Board of Council of City of Danville, 275 Ky.
142, 120 S.W.2d 761, 762 (1938)).
24
Harrison’s Sanitarium, Inc. v. Commonwealth, Dep’t of
Health, Ky., 417 S.W.2d 137, 138 (1967). See also Goodwin, supra,
n. 22, 309 Ky. at __, 215 S.W.2d at 559 (“[D]irect judicial relief
is held available without exhaustion of administrative remedies
where the statute is charged to void on its face . . . .”).
25
Harrison’s Sanitarium, supra, n. 24, at 139 (citations
omitted).
26
Goodwin, supra, n. 22, 309 Ky. at __, 215 S.W.2d at 559
(citing 28 Am. Jur. Injunctions § 186).
-15-
Ellis argues that at least one of the exceptions apply in
these circumstances.
He claims that there is no appropriate
administrative remedy.
However, PM-111.1 specifically permits the
appeal
decision
of
an
adverse
to
the
Board
of
Appeals,
and
accordingly, Ellis’s reliance on Pinsly v. Thompson27 is missplaced
because the body of law involved — the BOCA Code — provides for an
appeal.
Even so, Ellis claims that it would have been futile to
appeal.
To support this argument, he criticizes LFUCG’s handling
of the demolition of the structure on his property. However, Ellis
fails to show how the Board
of Appeals would have not been
responsive to his arguments and thus made an appeal futile.
Finally, he claims that LFUCG was acting outside of its
authority under the BOCA Code.
However, LFUCG does have the power
to order the repair of a structure by its owner, and if the owner
refuses, LFUCG can order the structure demolished.
Ellis fails to
show how LFUCG acted outside of its authority.
In response to LFUCG’s claim that he could not obtain
judicial relief due to his failure to exhaust administrative
remedies, Ellis argues that LFUCG is estopped from making that
claim because LFUCF notified him that he could not appeal the
decision to condemn his property. However, this argument is flawed
in that estoppel generally does not apply to governmental units.
27
Ky., 397 S.W.2d 61 (1965).
-16-
As this Court noted in Natural Resources & Environmental
Protection Cabinet v. Kentucky Harlan Coal Co.,28 “the doctrine of
equitable estoppel may be invoked against a governmental agency
only under exceptional circumstances.”29
so
exceptional
as
to
allow
“Circumstances that are
equitable
estoppel
against
a
governmental agency . . . must include some gross inequity between
the parties.”30
In this case, we are asked to apply estoppel to a
demolition case.
However, Kentucky law is clear:
equitable
estoppel generally does not apply to governmental bodies. Thus, we
conclude that estoppel does not preclude LFUCG from raising the
issue. Although one of the notices erroneously informed Ellis that
he could no longer appeal, other notices stated the he could
appeal.
Accordingly, we conclude that Ellis had a responsibility
to appeal the administrative action.
III.
AMOUNT OF JUDGMENT FOR LFUCG
Finally, Ellis argues that the trial court erred in
awarding LFUCG the entire amount of its requested damages.
He
insists that he was entitled to provide proof that LFUCG had failed
to mitigate its damages.
28
We disagree.
Ky. App., 870 S.W.2d 421 (1993).
29
Id. at 427 (citing Urban Renewal & Community Dev. Agency
v. International Harvester Co., Ky., 455 S.W.2d 69 (1970); Cross v.
Commonwealth ex rel. Cowan, Ky. App., 795 S.W.2d 65 (1990); City of
Shelbyville ex rel. Shelbyville Mun. Water & Sewer Comm’n v.
Commonwealth, Natural Resources & Envtl. Protection Cabinet, Ky.
App., 706 S.W.2d 426 (1986)).
30
City of Shelbyville, supra, n. 29, at 430.
-17-
Ellis appears to base this argument on the amount of the
bid made by the contractor that demolished the structure on his
property.
He has failed to offer proof that LFUCG did not follow
proper bidding procedures.
Rather, he contests the use of the
second-lowest bidder in demolishing the structure on his property.
As we said earlier, “[m]ere allegations in a counterclaim
or answer are insufficient to resist [the opposing party’s] summary
judgment motion.”31
Without any proof to substantiate his claims,
we must find for LFUCG.
Thus, we conclude that the trial court did
not err in awarding judgment to LFUCG in the full amount it
requested.
IV.
CONCLUSION
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James M. Morris
Sharon K. Morris
Jason V. Reed
MORRIS & MORRIS, P.S.C.
Lexington, Kentucky
Edward W. Gardner
Maryellen B. Mynear
Lexington, Kentucky
31
Smith, supra, n. 18, at 439.
-18-
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.
