WILLIAM MAYNARD v. COMMONWEALTH OF KENTUCKY, NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET
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OCTOBER 20, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002709-MR
WILLIAM MAYNARD
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 02-CI-01164
COMMONWEALTH OF KENTUCKY,
NATURAL RESOURCES AND ENVIRONMENTAL
PROTECTION CABINET
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
William Maynard has appealed from the October
21, 2003, opinion and order of the Franklin Circuit Court which
granted summary judgment in favor of the Natural Resources and
Environmental Protection Cabinet, now known as the Environmental
and Public Protection Cabinet, (the Cabinet) and ordered Maynard
to comply with the Cabinet Secretary’s order previously entered
on June 24, 2002.
Having concluded that it was proper for the
circuit court to grant the Cabinet’s summary judgment motion, as
there was no genuine issue as to any material fact, and that the
civil penalties against Maynard survived his death, we affirm.
On February 5, 1999, Maynard was notified by the
Cabinet’s Division of Waste Management (DWM)1 of his violations
of Kentucky law for disposal, without a permit, of human waste,
restaurant grease waste, and other hazardous waste in three
unlined pits, each measuring 40 feet by 30 feet, at the rear of
Maynard’s junkyard in Lawrence County, Kentucky.
The Cabinet
also notified Maynard that he must characterize the contents of
each of the three pits, conduct corrective action pursuant to
KRS2 224.01-400 in order to protect human health and the
environment, and submit a groundwater protection plan.
Maynard
did not respond to this notification from the Cabinet.
On September 11, 1998, Maynard was indicted by a
Lawrence County grand jury on two Class D felonies arising from
the conditions on the Lawrence County property.3
Count One
stated as follows:
From the fall of 1994 until at least May 13,
1998, in Lawrence County, Kentucky, and
before the finding of the indictment herein
[Maynard] created an open dump when he
knowingly transported septic tank and
1
For convenience, we will refer to all divisions of the Cabinet, including
the DWM, as “the Cabinet” throughout this Opinion.
2
Kentucky Revised Statutes.
3
Maynard states in his brief that this case was initiated by the Cabinet.
While not disputed by the Cabinet, there is no evidence in the record
verifying this statement.
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restaurant grease waste from throughout the
Big Sandy area, and knowingly disposed of
such waste in unapproved and unlicensed open
dump pits, without a permit at his Lawrence
County junk yard near the intersection of US
23 and Ky 581.4
Count Two stated that “[f]rom the fall of 1994 until at least
May 13, 1998, in Lawrence County, Kentucky, and before the
finding of the indictment herein, [Maynard] knowingly operated a
waste site without a permit.”5
Maynard pled guilty in the Lawrence Circuit Court
criminal action to an amended criminal charge of failure to be a
licensed septage hauler.
The final judgment and sentence on
probation was entered in this case on February 10, 2001,6 which
ordered Maynard to pay restitution in the amount of $20,000.00,
and to have the site characterized by a licensed environmental
remediation firm and to develop and to execute a plan, approved
by the Cabinet, to clean out the pits.7
Maynard was also
sentenced to a period of unsupervised probation for two years.
Maynard was to comply with the remediation in full by January
25, 2002, and to have paid the restitution in full by December
31, 2002.
4
KRS 224.40-100 and KRS 224.99-010.
5
KRS 224.40-305 and KRS 224.99-010.
6
Maynard filed a copy of the final judgment and sentence on probation with
his answer to the Cabinet’s complaint pending before the Franklin Circuit
Court.
7
Maynard was to pay the cost of all cleanup.
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During a site visit in April 1999, the Cabinet
discovered that Maynard had filled in two of the three waste
pits without leave of the Cabinet to do so and without
characterizing their contents.
Further, Maynard did not produce
proof of proper disposal of the contents of the pits.
In
response to citizens’ complaints, on April 10, 2000, the Cabinet
conducted an inspection of two sites in Martin County owned by
Maynard, located at Blacklog Hollow and at Sweetwater Hollow.
The Cabinet found at both sites the disposal of various solid
waste and other hazardous waste, household garbage, lead acid
batteries, and underground storage tanks containing human waste
and used oil.
The Cabinet issued Notices of Violations (NOVs),
dated April 14, 2000, and May 15, 2000, to Maynard for these two
sites and ordered Maynard to cease disposing of waste at the
sites, to remove all waste and to dispose of it properly, and to
submit receipts for such disposal.
The Cabinet’s subsequent
inspections revealed that only some of the waste had been
removed.
On September 7, 2000, the Cabinet filed an
administrative complaint against Maynard,8 alleging that Maynard
had engaged in operations that violated environmental laws
concerning disposal of waste and had operated waste sites
8
File No. DWM-31249-043.
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without a permit in both Martin County and Lawrence County.9
Although Maynard entered an appearance in the administrative
proceeding through counsel, he did not file an answer to the
administrative complaint, nor did he participate in the formal
administrative hearing held on January 8, 2002, regarding the
violations.
At the hearing, the Cabinet presented proof through
the testimony of witnesses and the introduction of exhibits in
support of its case.
On May 23, 2002, the Hearing Officer filed her report
and recommended order, finding that Maynard had failed to report
a release, had engaged in the improper operation of a waste
facility, and had disposed of waste without a permit.
recommended a civil penalty of $365,000.00.
She
On June 24, 2002,
the Secretary entered a final order adopting the Hearing
Officer’s report and recommended order.
The Secretary found
that Maynard had violated the cited statutes and regulations and
ordered Maynard to pay a civil penalty in the amount of
$365,000.00 and to remediate10 the sites in Lawrence County and
Martin County within 30 days of entry of the final order.
9
At this time, Maynard had not provided the Cabinet with receipts for the
proper disposal of the waste that had been removed.
10
The NOVs issued to Maynard on April 14, 2000, and May 15, 2000, set out the
remedial measures required by KRS Chapter 224 and 401 Kentucky Administrative
Regulations (KAR) 47:030 and 47:100. The pertinent remedial measures ordered
were as follows:
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Pursuant to KRS 224.10-470, Maynard had 30 days from the
date of entry of the Secretary’s final order to appeal to the
Franklin Circuit Court.
Maynard failed to do so, and the order
then became final and not appealable on July 25, 2002.
Subsequently, Maynard failed to pay the ordered civil penalty
and failed to complete the remedial measures as required by the
final order.
Consequently, on September 3, 2002, the Cabinet
filed its complaint in the Franklin Circuit Court seeking to
enforce the Secretary’s final order, pursuant to KRS 224.99010(9).
Further, the Cabinet sought injunctive relief to enjoin
and to order Maynard to cease all improper waste disposal.
Maynard filed an answer to the complaint on November 27, 2002,
which included the defenses of estoppel, res judicata, and
accord and satisfaction.
1.
2.
3.
4.
5.
6.
Dispose of all waste currently on site at a
permitted solid waste facility (transfer station
or contained landfill);
Remove all visibly contaminated soil from the
site and dispose of it at a permitted facility;
Collect soil samples immediately following the
excavation to confirm that all contamination has
been removed;
Dispose of all lead acid batteries on site (by
one of five enumerated means);
Submit all disposal receipts and laboratory
analyses to the Hazard Regional Office;
Submit to the Hazard Regional Office a written
statement proving that you currently have garbage
collection service and that all future waste will
be disposed of through garbage collection or a
permitted solid waste facility.
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On March 21, 2003, the Cabinet filed a motion pursuant to
CR11 12.0312 for judgment on the pleadings and Maynard filed a
response opposing the motion.
After considering the parties’
arguments and reviewing the record, memoranda, and applicable
law, the trial court entered an order on August 7, 2003, wherein
it stated that it would treat the Cabinet’s motion as one for
summary judgment under CR 56, and it gave both parties an
opportunity to present additional support for the positions
in their motions.
The trial court stated as follows:
Judgment on the pleadings can be
granted only if it appears clear that the
non-movant can prove no set of facts which
would entitle him to judgment.13 The motion
should not be granted if any defense is
sufficient.14 Whether or not a material
issue of fact exists should be determined
solely on the pleadings.15 In determining
whether factual disputes exist, this Court
must keep in mind that notice pleading is
sufficient.16 In short, it is a heavy burden
11
Kentucky Rules of Civil Procedure.
12
CR 12.03 provides as follows:
After the pleadings are closed but within such
time as not to delay the trial, any party may move
for judgment on the pleadings. If, on such motion,
matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided
for in Rule 56, and all parties shall be given
reasonable opportunity to present all materials made
pertinent to such a motion by Rule 56.
13
Spencer v. Woods, 282 S.W.2d 851, 853 (Ky. 1955).
14
Bennett v. Bennett, 477 S.W.2d 799 (Ky. 1972).
15
Archer v. Citizens Fidelity Bank & Trust Co., 365 S.W.2d 727 (Ky. 1963).
16
LaVielle v. Seay, 412 S.W.2d 587 (Ky.App. 1967).
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to establish that judgment on the pleadings
is warranted in any case.
Here, Maynard has specifically denied
the Cabinet’s allegation he has not complied
with the Secretary’s Final Order. In
response, the Cabinet has attempted to
present evidence tending to show that
Maynard has neither paid the fine nor
remediated the waste sites. However, such
evidence is outside the pleadings and this
Court, pursuant to the language of Rule
12.03, shall treat the motion as one for
summary judgment. Both sides shall be given
a reasonable opportunity to present evidence
relevant to the motion for summary judgment.
The parties supplemented the record and on October 21, 2003, the
Court entered an order granting the Cabinet’s motion for summary
judgment.
On October 29, 2003, Maynard filed a motion to alter,
amend, or vacate the judgment pursuant to CR 59.05.
On November
19, 2003, the trial court entered an order denying Maynard’s
motion.
This appeal followed.
On appeal, Maynard raises two issues.
First, he
argues that the trial court erred by granting the Cabinet
summary judgment.
CR 56.03 provides that summary judgment may
be rendered “if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file, together
with the affidavits, if any, show that 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.”
Summary judgment is improper
unless it would be “impossible for the respondent to produce
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evidence at trial warranting a judgment in his favor and against
the movant.”17
“The inquiry should be whether, from the evidence
of record, facts exist which would make it possible for the nonmoving party to prevail.
In the analysis, the focus should be
on what is of record rather than what might be presented at
trial.”18
The Cabinet, as the moving party, had the burden of
proving its entitlement to summary judgment,19 which included
establishing that there was no genuine issue as to any material
fact,20 and showing entitlement to summary judgment with such
clarity that there is no room left for controversy.21
The trial
court must view the record in a light most favorable to the
party opposing the motion and all doubts are to be resolved in
his favor.22
If there is a genuine issue as to any material
fact, the trial court should not render a summary judgment,
regardless of its belief as to the opposing party’s chance of
17
Steelevest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483
(Ky. 1991).
18
Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724, 730 (Ky. 1999).
See also Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985)(noting
that summary judgment is proper only where the movant shows that the adverse
party cannot prevail under any circumstances).
19
Christie v. First American Bank, 908 S.W.2d 679 (Ky.App. 1995).
20
White v. Rainbo Baking Co., 765 S.W.2d 26 (Ky.App. 1988).
21
Williams v. City of Hillview, 831 S.W.2d 181 (Ky. 1992).
22
Dossett v. New York Mining & Manufacturing Co., 451 S.W.2d 843 (Ky. 1970).
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success at trial.23
When faced with a motion for summary
judgment, the role of the trial court is not to decide issues of
fact, but instead it must be determined whether a real issue
exists.24
Because a summary judgment does not involve factual
findings, the appellate court is to review the circuit court’s
decision de novo.25
In the case before us, the Cabinet argues that in an
action to enforce an agency’s final order, the sole material
fact at issue is whether or not the order has been fully
complied with, which in this case included (1) whether Maynard
had paid the civil penalty imposed by the final order and (2)
whether Maynard had completed the remedial measures required by
the final order.
In response to the Cabinet’s summary judgment
motion, Maynard filed the affidavit of his daughter, Denise
Newsome,26 with evidentiary items attached, which stated in
relevant part as follows:
3.
23
The Lawrence County site was the subject
of an amended charge and conviction of
my father, [ ] Maynard, for “failure to
Puckett v. Elsner, 303 S.W.2d 250 (Ky. 1957).
24
Commonwealth, Transportation Cabinet, Dept. of Highways v. R.J. Corman
Railroad Co./Memphis Line, 116 S.W.3d 488 (Ky. 2003).
25
3D Enterprises Contracting Corp. v. Louisville & Jefferson Co. Metropolitan
Sewer District, 174 S.W.3d 440, 445 (Ky. 2005).
26
The affidavit stated that Newsome was currently in charge of and managing
Maynard’s business, A-plus Septic Tank Services, because of Maynard’s poor
health. Newsome further stated that she had been involved in and had
personal knowledge of the matters relating to the remediation/cleanup of the
three sites relevant to this action.
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be a licensed septage hauler”. . .
[emphasis original].
4.
The restitution of $20,000.00 in the
Lawrence County case has been paid in
full. On the remedial measures, an
engineering firm has taken soil samples
and prepared a cleanup plan, which has
been approved by the State. A copy of
said approval is attached hereto and
made a part hereof by reference as
Exhibit 2. Remedial measures will
proceed per the plan in Lawrence Circuit
Court.
5.
The Blacklog Hollow site in Martin
County has been cleaned up. On this
site were car batteries, household
waste, tires and storage tanks.
Attached hereto and made a part hereof
by reference as Exhibit 3 are receipts
for disposal of material. No soil
samples were required to be taken and I
believe that we are entitled to an
abatement of the violations on this site
since remedial measures have been fully
accomplished [emphasis original].
6.
The Sweetwater Hollow site in Martin
County has been cleaned up. On this
site were underground storage tanks,
construction and demolition debris,
vehicle parts and ash from burned solid
waste. Soil samples were taken prior to
and after cleanup at points agreed to
with the Cabinet[ ] . . . . Attached
hereto and made a part hereof by
reference as Exhibit 4 are the analyses
of the samples taken, which have been
furnished to the Cabinet. I believe
that we are entitled to an abatement of
the violations on this site since
remedial measures have been fully
accomplished [emphasis original].
Maynard argues that the statements made in this
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affidavit present genuine issues as to material facts regarding
the question of remediation.
Further, Maynard argues that the
remediation of the Lawrence County site was dealt with through
the criminal case in the Lawrence Circuit Court, which was
initiated by the Cabinet, and that the Franklin Circuit Court
should not have entered judgment regarding this site because it
superseded the Lawrence County judgment.27
As to all three
sites, Maynard argues that there was evidence that showed that
there was a genuine issue as to a material fact as to whether
remediation had been completed.
Maynard further states as
follows:
Even if the huge civil penalty had not yet
been paid, the Cabinet would only be
entitled to partial summary judgment
pursuant to CR 56.04, the matter allowed to
proceed to trial on the disputed issues
[sic]. Any non-payment of civil penalties
would not be dispositive of the issue of
remedial measures. Thus, to hold that the
Cabinet is entitled to complete summary
judgment on the basis that the Secretary’s
Order has not been fully complied with was
erroneous.28
In response, the Cabinet states that it provided
affidavits to the trial court prior to its ruling on the summary
judgment that negated Newsome’s statements in her affidavit.
27
As
See Commonwealth v. Crider & Rogers, Inc., 929 S.W.2d 179 (Ky. 1996).
28
Maynard offers as justification of this argument that “[t]he importance of
this distinction is because the Cabinet could seek to have [Maynard] held in
contempt and incarcerated for failure to comply with the Court’s directive to
remediate the sites while [Maynard] cannot be deprived of liberty for failure
to pay the civil penalty to the Cabinet.”
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to the Lawrence County site, the Cabinet acknowledges that
Maynard was ordered, both in the criminal case in 2001 and
through the administrative case in 2002, to submit a site
characterization and remediation plan for the waste pits.
Maynard did not submit the required plan until on or about March
10, 2003, almost seven months after it was supposed to have been
completed according to the Secretary’s final order.
However,
even then, the plan submitted did not contain all the
information required.
In support of Maynard’s argument of
compliance, he attached a letter to Newsome’s affidavit dated
June 9, 2003, from Charles W. Ritchie, a Cabinet employee.
The
letter clearly stated that the plan submitted had not at that
time been accepted and, rather, the letter set out in great
detail further information needed by the Cabinet to complete
review of the proposed remediation plan.
In the letter, Ritchie
requested that Maynard submit a site plan, provide information
about “bio-solve”, and provide information about where the
material originated that Maynard used to cover the waste pits.
Further, the June 9, 2003, letter from Ritchie to Maynard
notified Maynard of the requirement that he record a notice with
the property deed in the Lawrence County property records that
would notify any potential purchaser of the property of the
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location and time period of the operation of the illegal
facility.29
The Cabinet also filed an affidavit signed by Jeffrey
Cummins that established as of September 8, 2003, Maynard had
not paid the civil penalty or any part of it,30 that he had still
not submitted the site map, “bio-solve” information or
information about where the material used by Maynard to cover
the three waste pits originated, and that he had not placed the
required notice in the Lawrence County property records, all as
requested by the June 9, 2003, letter.
The Cabinet argues that
this letter and Newsome’s admission in her affidavit that
“[r]emedial measures will proceed per the plan in Lawrence
Circuit Court,” clearly show that Maynard had not completed
remediation of the waste pits.
As of the date of the Cabinet’s
brief, Maynard had not complied with any of the requirements of
the Secretary’s final order.
The Cummins affidavit, filed by the Cabinet, also
established that, as of September 8, 2003, the following
remedial measures had not been completed for one or both of the
Martin County sites, located at Backlog Hollow and Sweetwater
Hollow:
29
See 401 KAR 47:080 § 6 and 401 KAR 48:090 § 13.
30
Newsome’s affidavit stated that the restitution ordered in the Lawrence
County criminal action had been paid, but Newsome made no claim that
Maynard’s civil penalties ordered by the Cabinet had been paid.
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1.
Submi[ssion] of receipts documenting
proper disposal of used car batteries;
2.
Submi[ssion] of receipts documenting
proper disposal of household garbage and
used car parts;
3.
Submi[ssion] of receipts documenting
proper disposal of oil-contaminated soil
and soil contaminated by burning of
solid waste at the Sweetwater Hollow
site;
4.
Submi[ssion] of receipts documenting
proper disposal of tanks containing
septic waste which were formerly located
at both sites;
5.
Submi[ssion] of separate receipts
documenting proper disposal of the tanks
containing petroleum products and of the
tanks, themselves, formerly located at
the Blacklog Hollow site.31
Further, the Cabinet notes in its brief that Maynard did not
submit proof that he had contracted for garbage collection
service.
In reviewing the record, we conclude there is no
question that Maynard has not fully complied with the
Secretary’s final order, and the expiration date had passed for
his compliance with the final order at the time the Cabinet
31
The Cabinet acknowledges that Maynard attached to the affidavit of Newsome
copies of two receipts, one for disposal of tires and one for disposal of
automobile batteries, both from the Blacklog Hollow site only, but offered no
proof of proper disposal of the waste at Blacklog Hollow and no proof of any
of the waste at Sweetwater Hollow. The Cabinet argues that Maynard would no
doubt characterize failure to submit the required receipts as mere
“administrative” or “paperwork” violations; however, “without receipts
documenting that the waste was disposed of at a licensed, permitted facility
the Cabinet has no proof that the waste was, in fact, properly disposed of
and not simply buried deeper on site or thrown over the next hill.”
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filed its complaint.
Thus, short of that compliance, there was
no genuine issue as to any material fact, or conclusions to be
drawn from the facts of the case32 for the trial court to decide.
The circuit court’s November 19, 2003, opinion, entered on
Maynard’s motion to alter, amend, or vacate the circuit court’s
October 21, 2003, opinion and order, awarding the Cabinet
summary judgment, stated as follows:
The Order of this Court neither supersedes
nor conflicts with the order of the Lawrence
Circuit Court. Further, in addition to
having failed to pay the civil penalty
ordered by the Secretary’s Final Order,
documents filed by [Maynard], himself-for
example, the June 9, 2003[,] Review Summary
letter from the Division of Waste Management
to [ ] Maynard, and affidavits of both
parties make it unequivocal that there is no
issue of fact as to whether [Maynard] has
failed to complete the remedial measures.
Again, [Maynard] argues that complying with
only some of the remedial measures defeats
the [Cabinet’s] entitlement to summary
judgment. It does not.33
For the foregoing reasons, we agree and affirm the circuit
court’s award of summary judgment to the Cabinet.
32
Maynard cites in his reply brief the case of Commonwealth v. Thomas Heavy
Hauling, Inc., 889 S.W.2d 807 (Ky. 1994) for the proposition that even if
there was no dispute as to the facts, that there was a dispute as to the
conclusions to be drawn from the facts. In reviewing the record, we see no
merit as to this argument.
33
The circuit court gave Maynard 60 days from the entry of its opinion and
order entered October 20, 2003, to complete all remedial measures and to pay
the civil penalty of $365,000.00.
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On February 3, 2004, during the pendency of his
appeal, Maynard died.34
On January 6, 2006, Maynard, through his
personal representative, filed a motion to include in his brief
to this Court, an argument raising the issue of whether the
Cabinet’s claim for civil penalties owed by Maynard were
extinguished by his death.35
The proposed argument is set out as
Argument II in Maynard’s brief to this Court that was filed
after his death.
Subsequently on March 6, 2006, the Cabinet
filed a response to the motion, asking this Court to allow the
Cabinet to supplement its brief and to respond to Maynard’s
Argument II, if this Court granted Maynard’s motion.
Then on April 5, 2006, the Cabinet filed a second
response to Maynard’s motion and argued that Maynard’s motion
should be denied and that Argument II of Maynard’s brief should
be stricken.
On March 16, 2006, Maynard, through his personal
representative, filed a response stating no opposition to the
Cabinet’s request to be allowed an opportunity to respond to
Argument II, but she stated that Maynard’s personal
representative should be allowed a period of time to reply to
34
Suggestion of Death was filed on January 6, 2006, with an attached
affidavit of Maynard’s wife, Martha Ann Maynard, who also became the personal
representative of his estate. Attached to the document was a certified copy
of Maynard’s death certificate. Prior to Maynard’s death, he had filed his
notice of appeal on December 17, 2003, and his pre-hearing statement on
January 6, 2004.
35
CR 76.24 allows for proceedings to proceed as the court may direct upon the
death of a party during the pendency of the appeals process.
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the Cabinet’s supplemental response brief once it is filed.
This Court by Order entered on August 9, 2006, granted Maynard’s
personal representative’s motion to submit Argument II and
denied the Cabinet’s motion to dismiss the motion and to strike
the argument.
This Court also gave the Cabinet an opportunity
to supplement its brief and to respond and it gave Maynard’s
personal representative an opportunity to reply.
Both have done
so and, thus, this issue is ready for our review.
Maynard’s personal administrator argues that the
Cabinet’s claim of a civil penalty of $365,000.00 ceased or died
at Maynard’s death.
Further, she argues as follows:
The term “civil penalty” by its very nature
is punitive rather than pecuniary. It is
imposed as a punishment of the defendant for
his offense. In that respect, civil
penalties are akin to fines in criminal
cases. . . . Likewise, the penalty
calculation of the Hearing Officer
demonstrates that the civil penalties are
for punishment and have no relationship to
damages for injury.
KRS 411.140 relates to survival of actions and
enumerates certain actions which did not survive at common law,
but which by that statute are made to survive.36
KRS 411.140
states as follows:
No right of action for personal injury
or for injury to real or personal property
shall cease or die with the person injuring
36
Galvin v. Shafer, 130 Ky. 563, 113 S.W. 485 (Ky. 1908). KRS 411.140 is the
successor to Section 10 Kentucky Statutes referred to in Galvin.
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or injured, except actions for slander,
libel, criminal conversation, and so much of
the action for malicious prosecution as is
intended to recover for the personal injury.
For any other injury an action may be
brought or revived by the personal
representative, or against the personal
representative, heir or devisee, in the same
manner as causes of action founded on
contract.
Actions enumerated in KRS 411.140 that are not
extinguished by the death of a party are those that relate to
“personal injury”, “injury to real or personal property” and
“other injury.”
Maynard’s personal administrator argues that
these are the only actions to survive as specified in KRS
411.140.
She further argues that it is a primary rule of
statutory construction that the enumeration of particular items
excludes other items that are not specifically mentioned.37
While we agree that Maynard’s personal administrator correctly
states this rule of statutory construction, we disagree that KRS
411.140 does not set out other causes of action that survive.
The second sentence of the statute unambiguously states that
“[f]or any other injury . . . an action may be brought or
revived . . . in the same manner as causes of action founded on
contract.”
Thus, we are not persuaded that KRS 411.140 omits
all other causes of action based on the rules of statutory
construction.
37
See Commonwealth of Kentucky, Board of Claims v. Harris, 59 S.W.3d 896, 900
(Ky. 2001) (citing Smith v. Wedding, 303 S.W.2d 322 (Ky. 1957).
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Maynard’s representative also argues that this case
should be analogized to the one presented in Crooker v. United
States,38 which dealt with the extinguishment of a criminal fine
as the result of the death of the defendant.
The Court in
Crooker stated as follows:
A fine is not something to which the
United States is entitled by way of
compensation or damages, but only as a
matter of punishment being thereby meted
upon the defendant. “It was imposed as a
punishment of the defendant for his offense.
If, while he lived, it had been collected,
he would have been punished by the
deprivation of that amount from his estate;
but upon his death, there is no justice in
punishing his family for his offenses”
[citation omitted].39
Maynard’s personal executor argues that because civil penalties
are like criminal fines, as they are both punitive in nature,
this Court should find Crooker persuasive and should abate the
penalty portion of the judgment.40
The Cabinet argues that KRS 411.140 is not applicable
to this case for the following reasons:
The Cabinet did not have a “right of
action” pending against [Maynard] at the
time of his death; the Cabinet had a final,
enforceable judgment against [Maynard] for a
civil penalty and remediation. The
38
325 F.2d 318 (8th Cir. 1963).
39
Crooker, 325 F.2d at 321.
40
The civil penalties imposed against Maynard are contained in KRS 224.99101, the “Penalty” section of the statute under which the Cabinet proceeded
against Maynard.
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Cabinet’s action against [Maynard] for
violations of environmental laws had already
been adjudicated in the administrative forum
and a Final Order entered before [Maynard]
died. . . . [Maynard] did not appeal the
administrative Final Order within thirty
days and so it became final and unappealable
by operation of law. KRS 224.10-470. The
Cabinet’s action in the circuit court did
not seek an award of civil penalties but,
rather, sought affirmance of the Final Order
and an order that [Maynard] comply with it.
The court’s Opinion and Order affirming the
Final Order and ordering [Maynard] to comply
with it was entered and final before
[Maynard’s] death . . . in fact, the Cabinet
had already perfected the statutory lien
created by the circuit court judgment by
filing the requisite notice of judgment
lien41 in the real property records.
In the alternative, the Cabinet argues that even if KRS 411.140
were deemed to be applicable, it would in fact support survival
of [the Cabinet’s] action against [Maynard] for penalties for
violations of environmental protection statutes, based on the
second sentence of the statute.
We agree with the Cabinet that KRS 411.140 is not
applicable in this case, and because “[t]he death of a party
does not abate a judgment for money or one which involves
personal property[,]”42 “even where the judgment is based on a
cause of action that would not have survived had the party died
41
KRS 426.720 “Final judgment to act as lien on realty[.]”
42
Peoples State Bank & Trust Co. v. Hardy, 243 S.W.2d 480, 482 (Ky. 1951).
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before judgment,”43 we hold that the Cabinet’s judgment remains
enforceable in its entirety.
We find the holding by the Sixth
Circuit in Howard v. Wilbur,44 persuasive, where it stated as
follows:
Although the rule in criminal cases is that
the death of a defendant pending appeal
abates the appeal . . . the general rule
with respect to civil actions is that the
death of a party subsequent to the entry of
a judgment in favor of the plaintiff in the
lower court and pending a review proceeding
does not abate the appeal. . . . In such
cases the cause of action has been merged
into the judgment, even though it would not
have survived if death had occurred prior to
judgment.
“With the exception of certain excepted cases, under our
statutes, all actions for money or breach of contract or duty
survive and may be prosecuted against the personal
representative of the deceased.”45
Even if we determined that
KRS 411.140 did apply and this was in fact an issue of whether a
“right of action” survived Maynard’s death, we agree with the
Commonwealth that “that statute is a survival of actions
statute, not a denial of survival of statue,” and, further,
43
1 Am.Jur.2d Abatement, Survival, and Revival § 58 (2006).
44
166 F.2d 884, 885 (6th Cir. 1948).
45
Prescott v. Grimes, 143 Ky. 191, 136 S.W. 206, 207 (Ky. 1911).
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“[u]nless survival of the action is specifically precluded,” the
action survives the death of the defendant.46
Further, we reject Maynard’s personal representative’s
argument that the assessment of civil penalties against Maynard
should be analogized to criminal penalties and cease at
Maynard’s death.
While civil penalties assessed by the Cabinet
do have a punitive effect, they serve other purposes, such as
preventing violators from being unjustly enriched through
commercial advantage, and serving remedial purposes.
It is
important to also note that under KRS 224.99-010 the Cabinet is
allowed to assess both criminal and civil penalties, and in this
case the penalties were civil.
Thus, we find Maynard’s reliance
on the criminal case of Crooker to be unpersuasive.
Having concluded that summary judgment was proper in
this case, and that the civil penalties assessed against Maynard
survived his death, the order of the Franklin Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEFS AND ORAL ARGUMENT FOR
APPELLEE:
Donald Duff
Frankfort, Kentucky
Mary Stephens
Frankfort, Kentucky
46
Ohio Casualty Insurance Co. v. Atherton, 656 S.W.2d 724, 726 (Ky. 1983).
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