Asher v. Bd. of Educ.

1

DENNIS ASHER; (RETIRED) JUDGE LINDA ROBERTS SIBLEY; ALMA FINLEY; ANNA KAUFMAN; BARBARA ANN FINLEY; BETTY J. FINGER; C. JERRY MERIDA-MCCALL; CECIL RAY MARTIN; CHIEF MASTER SERGEANT DILLARD BURNS, JR.; CHRISTINA ROLFES; CLINT MERIDA, JR.; CONNIE ASHER WEBB; DANIELLE SMITH; DEBORAH BRAY; EARL LEWIS; EMMA HOMGREN; ETHEL SENTERS ASHER; EVELYN LEWIS REYNOLDS; GORDON MILLER; HAROLD ASHER; HESTER MARTIN BRINKLEY; JESSE ROBINSON; JILL HARRIS MORRIS; JOYCE A. MILLER; KATHY JAMISON; KIMBERLY ASHER HOLT; LEWIS ASHER, JR.; LINDSEY KRAUSE; LYN HACKER; MALVERY ROBERTS BEGLEY; MARGARET ANN SIZEMORE BUTTRAM; MARGARET ASHER PERRY; MOLLY SIZEMORE; NANCY FETSKO; PAMELA HOSKINS; PAMELA KAY (ASHER) MCCLELLAN; PATRICIA ASHER; PATRICIA GOODRUM; PAUL BRAY; POLLY BROOKS; RACHEL ASHER FALL; RHONDA ASHER EDLIN; RICHARD ASHER; ROBERTKRAUSE; ROMA ASHER; RONALD WAYNE MILLER; RONDA DEAN WHITE; ROSEANN TERRILL; SHAWN SMITH; SHERRY BAKER; TERRY LEGEL; TJ FINLEY; AND VICKIE NUNN CADLE APPELLANTS v. CLAY COUNTY BOARD OF EDUCATION (CCBOE); ANTHONY LOVETT (IN HIS OFFICIAL CAPACITY AS A CCBOE MEMBER); LEEWOOD CORNETT (IN HIS OFFICIAL CAPACITY AS A CCBOE MEMBER); MARK HOSKINS (IN HIS OFFICIAL CAPACITY AS A CCBOE MEMBER); ROBIN COMBS (IN HER OFFICIAL CAPACITY AS A CCBOE MEMBER); AND ROY GLENN ALLEN (IN HIS OFFICIAL CAPACITY AS A CCBOE MEMBER) APPELLEES

No. 2022-CA-0973-MR

Court of Appeals of Kentucky

September 1, 2023

NOT TO BE PUBLISHED

APPEAL FROM CLAY CIRCUIT COURT HONORABLE OSCAR G. HOUSE, JUDGE ACTION NO. 22-CI-00052

BRIEFS FOR APPELLANTS: Stella B. House Manchester, Kentucky

BRIEF FOR APPELLEE CLAY COUNTY BOARD OF EDUCATION: Elizabeth A Deener Lexington, Kentucky

BEFORE: DIXON, GOODWINE, AND KAREM, JUDGES.

OPINION

DIXON JUDGE

Appellants appeal from the order granting Appellees' motion to dismiss entered by the Clay Circuit Court on June 3, 2022 and the order denying their motion to alter, amend, or vacate that order entered on July 8, 2022. Following a careful review of the record, briefs, and law, we affirm.

BACKGROUND FACTS AND PROCEDURAL HISTORY

In 2008, the Clay County Board of Education (CCBOE) purchased approximately five acres of property near its schools. The property included a private cemetery - the Hoskins cemetery - with roughly 60 marked graves and some unmarked graves.^[1] The deed specifically provided:

THERE IS ALSO CONVEYED WITH THIS PARCEL A 12-FOOT EASEMENT FOR ACCESS TO THE HOSKINS CEMETERY ALTHOUGH THIS EASEMENT DESCRIPTION IS DESCRIBED ALONG THE CENTER OF AN EXISTING ROUTE TO HOSKINS CEMETERY IT IS NOT A PERMANENT EASEMENT AND THE BOARD OF EDUCATION RESERVE THE RIGHT TO MOVE SAID EASEMENT UPON ANY SITE IMPROVEMENTS OR TRANSFERMENT OF HOSKINS CEMETERY.

(Emphasis added.)

In 2021, the CCBOE published at least eight notices over a two-month period in a local newspaper of its intent to relocate graves in the Hoskins cemetery. Afterward, the CCBOE applied to the Clay County Fiscal Court (the Fiscal Court) for authorization to relocate the graves. The Fiscal Court passed, adopted, and filed its Resolution authorizing the relocation.

The CCBOE applied to the Commonwealth of Kentucky, Cabinet for Health and Family Services, Department of Health, Office of Vital Statistics, for disinterment and reinterment permits for the known and unknown graves in Hoskins cemetery. These permits were issued on July 20, 2021.

Three days later, Appellants - descendants of some of those buried in the Hoskins cemetery - filed a complaint against Appellees in the United States (U.S.) District Court for the Eastern District of Kentucky. Therein, Appellants alleged Appellees had committed conversion, violations of KRS^[2] 171.3801, and violations of Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.^[3]

On February 11, 2022, the U.S. District Court dismissed Appellants' federal claims with prejudice. Of interest is the U.S. District Court's discussion of Appellants' Equal Protection and Due Process arguments. Appellants alleged Kentucky's statute pertaining to cemeteries within city limits, KRS 381.690, offers greater protection and process to those cemeteries than those located outside city limits under KRS 381.755. The U.S. District Court found:

[Appellants'] claims are insufficient conclusory statements. [Appellants] wholly fail to explain how the procedures provided by Kentucky law are insufficient for cemeteries located outside city boundaries, and for this reason alone, their claim fails. Further, nowhere do [Appellants] allege that the [Appellees] failed to comply with the process as proscribed by state law for moving the graves, and indeed they reference the entire process in their Second Amended Complaint without any procedural complaint. The record indisputably demonstrates that the [Appellees] fully complied with the process set forth by the Commonwealth of Kentucky. The [Appellees] timely published [their] notice of intent in the local newspaper; the [Appellees] filed an application with the Fiscal Court; and the Fiscal Court approved the relocation through its Resolution. The record is clear that [Appellants] received all the process that Kentucky law provides. That [Appellants] think relocation of the graves is not "in the best interest of Clay County, KY" is not a grievance this Court or the constitution can remedy. [Appellants] fail to state a claim under the Equal Protection or Due Process Clauses, and these claims are dismissed.

Asher v. Clay Cnty. Bd. of Educ., 585 F.Supp.3d 947, 972-73 (E.D. Ky. 2022) (citations omitted). The U.S. District Court declined supplemental jurisdiction over pendant state law claims and dismissed them without prejudice. Appellants did not appeal from the decision of the U.S. District Court.

Shortly thereafter, Appellants filed the case herein against Appellees and others with Kentucky's Clay County Circuit Court. Their complaint consists of counts for: (1) violations of KRS 381.755, (2) conversion, (3) right of access to the cemetery, (4) dedication of cemetery occurs by operation of law, (5) rights to the remains of the deceased, (6) violations of KRS 171.3801, and (7) violations of KRS Chapter 164, et seq., the Kentucky Antiquities Act.

Appellees moved the circuit court to dismiss the complaint pursuant to CR^[4] 12.02(f) and CR 12.03. After the matter was fully briefed and oral arguments heard, the circuit court entered its order dismissing Appellants' claims with prejudice. Appellants moved the circuit court to alter, amend, or vacate its order, but their request was denied. This appeal followed.

STANDARD OF REVIEW

Under CR 12.03, "any party to a lawsuit may move for a judgment on the pleadings." City of Pioneer Vill. v. Bullitt Cnty., 104 S.W.3d 757, 759 (Ky. 2003). A judgment on the pleadings "should be granted if it appears beyond doubt that the nonmoving party cannot prove any set of facts that would entitle him/her to relief." Id. The trial court is "not required to make any factual determination; rather, the question is purely a matter of law." James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002). We review a judgment on the pleadings de novo. Schultz v. Gen. Elec. Healthcare Fin. Servs., Inc., 360 S.W.3d 171, 177 (Ky. 2012).

Even so, CR 12.03 requires that a motion in which matters outside the pleadings are considered be treated as a motion for summary judgment. Craft v. Simmons, 777 S.W.2d 618 (Ky. App .1989). See Cabinet for Human Res. v. Women's Health Servs., Inc., 878 S.W.2d 806 (Ky. App. 1994) (motion to dismiss treated as a motion for summary judgment because the court considered an affidavit in support of the motion). In the case herein, affidavits and other documents beyond public records were provided to the circuit court.

Summary judgment is appropriate "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." CR 56.03. "[T]he proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991).

An appellate court's role in reviewing an award of summary judgment is to determine whether the trial court erred in finding no genuine issue of material fact exists, and the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty. Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12 S.W.3d 698 (Ky. App. 2000)).

Here, we review the facts in a light most favorable to the Appellants and resolve all doubts in their favor. Applying the Steelvest standard, and based on the record, we agree with the trial court that there was no genuine issue of material fact. Therefore, we conclude that a judgment on the pleadings or summary judgment was proper.

LEGAL ANALYSIS

On appeal, Appellants argue the circuit court improperly granted Appellees' motion to dismiss based on immunity and failure to state a claim upon which relief can be granted. Sovereign immunity is broad, protecting the state not only from the imposition of money damages but also from the burden of defending a lawsuit. Meinhart v. Louisville Metro Gov't, 627 S.W.3d 824, 830 (Ky. 2021); Lexington-Fayette Urban Cnty. Gov't v. Smolcic 142 S.W.3d 128, 135 (Ky. 2004) ("Immunity from suit includes protection against the 'cost[s] of trial' and the ...