Shinkle v. Turner, 2015-SC-000039-DG

496 S.W.3d 418

Lesley D. Shinkle, Appellant

v.Bobby D. Turner, Appellee

2015-SC-000039-DG

Supreme Court of Kentucky.

AUGUST 25, 2016

COUNSEL FOR APPELLANT: Glenda Harrison, Peter C. Nienaber, Legal Aid of the Bluegrass, 104 E Seventh Street, Covington, KY 41011.

COUNSEL FOR APPELLEE: Bobby D. Turner, 3053 Front Street, PO Box 108, Petersburg, KY 41080.

OPINION OF THE COURT BY JUSTICE VENTERS

Appellant, Lesley D. Shinkle, appeals from the Boone Circuit Court's opinion and order affirming the judgment of the Boone District Court finding him guilty of forcible detainer with respect to property owned by Appellee, Bobby D. Turner. For the reasons stated below, we reverse the opinion of the Boone Circuit Court and vacate the forcible detainer judgment entered in the Boone District Court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 10, 2014, Landlord Bobby D. Turner provided his tenant, Lesley D. Shinkle, with written notice to vacate the premises. Eight days later, on February 18, 2014, Turner filed a forcible detainer complaint against Shinkle in the Boone District Court.¹ When the matter came before the district court on February 27, 2014, for the “inquisition” required by KRS 383.220, Shinkle moved to dismiss the complaint because Turner had failed to provide the one month's notice required by KRS 383.195 for terminating the tenancy.

In recognition of the statutory deficiency, the district court deferred its consideration of Shinkle's motion and continued the inquisition until March 13, thus allowing one month to elapse from the date Shinkle first received the written notice to vacate. In the interim, Shinkle filed a formal written motion to dismiss arguing that Turner had no statutory right to commence a forcible detainer action prior to the expiration of the one-month statutory notice provision. At the March 13 inquisition, the district court denied Shinkle's motion to dismiss, reasoning that the one month statutory notice period had by then been satisfied. The court entered its verdict and judgment finding Shinkle guilty of forcible detainer.

Shinkle appealed to the Boone Circuit Court, which affirmed the district court. The Court of Appeals denied Shinkle's motion for discretionary review. We granted discretionary review to consider whether the filing of a forcible detainer complaint prior to the expiration of the one month notice provision complies with the special statutory requirements for a forcible entry and detainer action. Being a question of statutory interpretation and a matter of law, we conduct a de novo review. Pennyrile Allied Community Services, Inc. v. Rogers, 459 S.W.3d 339, 342 (Ky.2015) (citation omitted).

II. THE “PUBLIC INTEREST” EXCEPTION TO THE MOOTNESS DOCTRINE APPLIES HERE

We begin our review with the observation that during pendency of the appellate process, Shinkle vacated the premises. Arguably, the issue could be regarded as moot although Turner has not raised that issue. In fact, apparently content after regaining possession of his property, Turner has not filed responses to any of Shinkle's appellate pleadings. As we noted in Morgan v. Getter, “The general rule is ... that ‘where, pending an appeal, an event occurs which makes a determination of the question unnecessary or which would render the judgment that might be pronounced ineffectual, the appeal should be dismissed.’ ” 441 S.W.3d 94, 99 (Ky.2014) (citations omitted). As methodically explained in Morgan, we recognize and may apply a “public interest” exception to that general rule when the following three elements are present: (1) a question of law that is of a public nature; (2) a need for an authoritative determination for the future guidance of public officers; and (3) a likelihood of future recurrence of the question. Id. at 102.

All three of those are elements present in this matter. First, the proper and efficient application of the law pertaining to the special statutory proceeding for forcible entry and detainer is a matter of public interest. The general statutory scheme established for such proceedings, KRS 383.200 -280, although re-codified from time to time, is at least a hundred years old and arguably is now ill-suited to the reality of modem landlord-tenant relations. Second, the statutory process for the adjudication of forcible entry and detainer cases is difficult to apply in the modem court system. The dearth of reported appellate opinions addressing those difficulties leaves our district courts to improvise on their own with little guidance from the appellate courts, leading to inconsistent application of the same statutory standards.² Third, the factual situation presented by this case is a recurrent event in modern life that very often arises under circumstances in which appellate review is highly unlikely. Consequently, we are satisfied that all three elements of the “public interest” exception to the mootness doctrine are present here, and our duty lies in resolving the issue for the benefit of those whose lives and property are affected by it.

III. ANALYSIS

“The remedy of forcible entry and detainer was evolved from an English criminal proceeding and is not strictly a common law action. It is regarded as a statutory action at law to recover possession of real property ....” McHugh v. Knippert, 243 S.W.2d 654, 655 (Ky.1951). As a special statutory proceeding, KRS 383.200 -285 governs the eviction process with its own unique procedural requirements which “shall prevail over any inconsistent procedures set forth in the Rules [of Civil Procedure].” CR 1 ; See Baker v. Ryan, 967 S.W.2d 591, 592 (Ky.App.1997) (Holding that “the [forcible entry and detainer] statutes set up an exclusive procedure, complete unto itself, which implicitly rules out discovery.”)

Historically, causes of action to remedy a forcible entry or detainer were created by statute and exist today as a special statutory proceeding under KRS 383.200 -285. Unlike their English antecedents, our statutes for forcible entry and detainer do not limit their application to instances in which actual physical force was used to enter upon land or to detain it against the rightful possessor.³

In Kentucky, a tenant is guilty of a forcible detainer when he refuses to vacate the premises after his right of possession has ended. KRS 383.200(a) provides: “A forcible detainer is ... [t]he refusal of a tenant to give possession to his landlord after the expiration of his term; or of a tenant at will⁴ or by sufferance⁵ to give possession to the landlord after the determination of his will.”⁶ For cases which, like the instant action, are unaffected by the Uniform Residential Landlord and Tenant Act,⁷ KRS 383.195 prescribes the means by which a landlord must communicate the “determination of his will” to end the tenancy: a landlord may terminate “a tenancy at will or by sufferance [by] giving one (1) month's notice, in writing, to the tenant requiring him to remove.” Therefore, by operation of KRS 383.195, Shinkle's tenancy and right of possession, did not terminate until one month after being notified to remove himself from the premises. It follows that he could not be guilty of forcible detainer until after his right of possession ended.

KRS 383.210(1) creates a statutory cause of action for “a person aggrieved by a forcible entry or detainer.” To assert a valid claim for forcible detainer, the plaintiff must allege a current and immediate right to possession of the premises; otherwise, he is not “aggrieved by a forcible detainer.” This principle is aptly reflected in the form published by the Administrative Office of the Courts for use in forcible entry and detainer proceedings.

Turner filed his complaint using “Forcible Detainer Complaint” form (AOC-216; Rev. 10-08). The preprinted portion of the form, which was sworn to by Turner, expressly stated: “[Turner] alleges [Shinkle] unlawfully and forcibly detain[s] the premises, and demand(s) possession of the premises be delivered to Plaintiff.” The corresponding summons form (AOC-S-215; Rev 7-99), in turn, informed Shinkle that “[Turner] has filed a complaint ... claiming the Defendant [Shinkle] on the 18 day of February, 20 14 forcibly detained, and now forcibly detains from [Turner] the above-described property which [Shinkle], tenant of [Turner], now holds against [Turner].”

These allegations were obviously inaccurate when made because Shinkle's one-month period to vacate had not yet expired, and thus his right of possession had not yet ended. Because Turner did not yet have the right to possession of the premises, he was manifestly not “a person aggrieved by a forcible entry or detainer.” He had no statutory right at that time to commence the action asserting the claim.

A forcible detainer action focuses upon and determines which party is entitled to present possession of the property at the commencement of the action, not at some later date. Bledsoe v. Leonhart, 305 Ky. 707, 205 S.W.2d 483, 484 (1947) (“The question for decision was whether or not appellant was guilty of forcible detainer at the time the [forcible detainer] warrant was issued. ”) (emphasis added); see Belcher v. Howard, 212 Ky. 816, 280 S.W. 131, 131 (1926) (“On a warrant for forcible entry the only question is the possession at the time the entry was made. ”)(emphasis added); Hall's Ex'rs v. Robinson, 291 Ky. 631, 165 S.W.2d 163, 166 (1942) (Appellants clearly “had no right to maintain the [forcible detainer] action” where they failed to establish the right of possession.); see also Engle v. Tennis Coal Co., 125 Ky. 239, 101 S.W. 309, 310 (1907) (“[O]nly the naked right of possession is involved in the forcible detainer proceeding ....).⁸

Reading KRS 383.200(a) and KRS 383.195 together leads to the inescapable conclusion that a tenant, at will or by sufferance, lawfully retains possession of the premises until one month after the written notice to vacate. This one month period may aptly be regarded as a “grace period” imposed by the...