Ky. Horse Racing Comm'n v. Motion

KENTUCKY HORSE RACING COMMISSION APPELLANT v. H. GRAHAM MOTION AND GEORGE STRAWBRIDGE, JR. APPELLEES

NO. 2017-CA-001458-MR

Commonwealth of Kentucky Court of Appeals

OPINION OF DECEMBER 21, 2018, WITHDRAWN

MARCH 29, 2018

TO BE PUBLISHED

APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE THOMAS D. WINGATE, JUDGE

ACTION NO. 16-CI-01195

OPINION

AFFIRMING IN PART, REVERSING IN PART AND REMANDING

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BEFORE: COMBS AND L. THOMPSON, JUDGES; HENRY, SPECIAL JUDGE.¹

L. THOMPSON, JUDGE:

The Kentucky Horse Racing Commission (hereinafter referred to as the Commission) appeals from an order of the Franklin Circuit Court which overturned penalties imposed upon H. Graham Motion and George Strawbridge, Jr. The circuit court held that certain regulations propounded by the Commission were unconstitutional and that the Commission acted arbitrarily when it imposed the sanctions against Appellees. In its appeal, the Commission argues that the regulations were constitutional and properly applied. The Commission also claims that the circuit court was without jurisdiction to hear Appellees' appeal because they failed to perfect said appeal. We find that the circuit court's ruling as to jurisdiction was proper and affirm, but the court's rulings as to the regulations were erroneous and we reverse as to those issues.

On April 24, 2015, Kitten's Point, a thoroughbred filly trained by Motion and owned by Strawbridge, won the Bewitch Stakes at Keeneland. The horse won a purse of $90,000. After the race, all participating horses underwent drug screening. The drug screening on Kitten's Point indicated that the horse had 2.9 nanograms per milliliter (ng/ml) of methocarbamol in its blood. This drug is known to help with muscle cramping. By regulations, the Commission permits no more than 1 ng/ml to be in a horse's blood at the time of a race. It is undisputed that Appellees had given methocarbamol to Kitten's Point for months prior to therace, but had stopped giving the medication to the horse at least seven days prior to the race.

After Kitten's Point's positive test for methocarbamol, the Commission Stewards entered an order finding that Appellees had violated two provisions of the Kentucky Administrative Regulations (KAR): 810 KAR 1:018, Section 2(2)(c) and 810 KAR 1:018, Section 2(3). Both of these sections concern drugs or medications being found in a horse's system during a race. A hearing was held on the violations, and, as herein, Appellees argued that the 1.0 ng/ml threshold was arbitrarily low, there was no scientific basis for having the methocarbamol threshold at that low level, and that it was likely the methocarbamol entered Kitten's Point's blood through environmental contamination. Multiple witnesses testified, including veterinarians and experts knowledgeable of the interaction of medications in horses.

The hearing officer ultimately held that Appellees had violated the regulations set forth by the Stewards and recommended that the Commission suspend Motion's trainer's license for five days, fine Motion $500, disqualify Kitten's Point, and order Strawbridge to forfeit the $90,000 purse. The Commission adopted the hearing officer's recommended findings of fact, conclusions of law and order, but declined to suspend Motion's trainer's license.

Appellees then appealed to the circuit court. The circuit court held that a lack of scientific evidence evincing the propriety of the 1.0 ng/ml threshold made the regulations at issue unconstitutionally arbitrary and that the Commission acted in an arbitrary and capricious manner in finding Appellees violated the regulations. This appeal followed.

We will first address the Commission's argument that Appellees' appeal to the circuit court should have been dismissed. A party aggrieved by a final order of the Commission "may appeal to the Franklin Circuit Court in accordance with [Kentucky Revised Statute (KRS)] Chapter 13B." KRS 230.330. KRS 13B.140(1) states:

All final orders of an agency shall be subject to judicial review in accordance with the provisions of this chapter. A party shall institute an appeal by filing a petition in the Circuit Court of venue, as provided in the agency's enabling statutes, within thirty (30) days after the final order of the agency is mailed or delivered by personal service. If venue for appeal is not stated in the enabling statutes, a party may appeal to Franklin Circuit Court or the Circuit Court of the county in which the appealing party resides or operates a place of business. Copies of the petition shall be served by the petitioner upon the agency and all parties of record. The petition shall include the names and addresses of all parties to the proceeding and the agency involved, and a statement of the grounds on which the review is requested. The petition shall be accompanied by a copy of the final order.

It is undisputed that Appellees filed their petition for appeal with the circuit court before the 30-day deadline set forth above. It is also undisputed that Appellees served a copy of the petition on Marc Guilfoil, the Commission's Executive Director; the Attorney General of Kentucky; and Steven Loy and Robert Watt, the Commission's counsel in the administrative proceeding. Summons was also issued in the names of Loy and Watt, but they were never served.

The Commission eventually moved to dismiss the action because they claimed Appellees had failed to perfect their appeal within the 30-day timeframe having failed to have a summons issued in the name of the Attorney General pursuant to Kentucky Rule of Civil Procedure (CR) 4.04(6). Appellees argued that they were not required to issue or serve a summons on anyone because KRS 13B.140(1) sets forth the appeal requirements and does not mention the issuance of a summons. Appellees also served a summons on the Attorney General after the Commission had filed its motion to dismiss. The circuit court denied the Commission's motion, finding that Appellees commenced the action in good faith.

Jurisdictional issues are questions of law and reviewed de novo. Appalachian Reg'l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 54 (Ky. 2007). We agree with the circuit court as to this issue. Appellees continue to argue that a summons was not required because it is not mentioned in KRS 13B.140; however, we disagree. CR 1(2) states that the civil rules "govern procedure and practice inall actions of a civil nature in the Court of Justice except for special statutory proceedings, in which the procedural requirements of the statute shall prevail over any inconsistent procedures set forth in the Rules."

In Transportation Cabinet, Department of Highways v. City of Campbellsville, 740 S.W.2d 162, 164 (Ky. App. 1987), the Court of Appeals recognized that "[a]n appeal to the circuit court from an order of an administrative agency is not a true appeal but rather an original action." It logically follows that the procedural steps required to "take" an appeal from an administrative agency action are precisely the same steps required to commence any other original action in the circuit court. The rules that determine when a civil action commences, therefore, determine when an appeal of an administrative action has been taken.

CR 3.01 provides that "[a] civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith." Similarly, KRS 413.250 provides that "[a civil] action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action." Furthermore, "[i]f the action is commenced by the filing of the petition and the issuance of summons, and only one time period is specified, it must follow that both actions [that is, the filing of the petition or other initial pleading and the issuance of the summons] must be taken within the period of time provided in the statute." Metro Medical Imaging, LLC v. Commonwealth, 173 S.W.3d 916, 918 (Ky. App. 2005).

Isaacs v. Caldwell, 530 S.W.3d 449, 454 (Ky. 2017) (emphasis in original).

We find that even though KRS 13B.140 does not mention summonses, the summons requirement set forth in the civil rules is not inconsistentwith the statutory procedures and is required to commence an action in the circuit court. This Court could find no published case law dealing with summonses and KRS 13B.140; however, we did find a number of unpublished cases that hold as we do in this case. See Guardian Angel Staffing Agency, Inc. v. Commonwealth, No. 2014-CA-001387-MR, 2015 WL 8528344 (Ky. App. Dec. 11, 2015); Dixon v. Bd. of Educ. of Harlan Cty., No. 2009-CA-000941-MR, 2011 WL 43230 (Ky. App. Jan. 7, 2011); Davenport v. Norsworthy, No. 2002-CA-000903-MR, 2003 WL 21714085 (Ky. App. July 25, 2003); Adkins v. Justice Cabinet, No. 2002-CA-000766-MR, 2003 WL 2004504 (Ky. App. May 2, 2003).

Even though we have rejected Appellees' argument that a summons was not required, we still find that the circuit court correctly allowed the case to proceed because the case was commenced in good faith. The Commission is correct that Appellees should have served a summons upon the Attorney General. CR 4.04(6) requires that "[s]ervice shall be made upon the Commonwealth or any agency thereof by serving the attorney general or any assistant attorney general." However, CR 3.01 does not require a summons be flawlessly issued, only that it be issued in good faith. This means that errors or flaws in the issuance and service of a summons are not fatal to a cause of action. See Arlinghaus Builders, Inc. v. Kentucky Pub. Serv. Comm'n, 142 S.W.3d 693 (Ky. App. 2003).

Here, the Commission's final order was entered on October 11, 2016. Appellees filed their appeal with the circuit court on November 4, 2016, and summonses were issued, but never served on the Commission's counsel. A copy of the appeal was sent to the Attorney General and the Commission's Executive Director on November 7, 2016. The...