Commonwealth of Kentucky Court of Appeals

Transcription

1 RENDERED: APRIL 27, 2018; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR UNIVERSITY OF LOUISVILLE APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE ACTION NO. 12-CI CHRISTOPHER M. GRANDE APPELLEE AND NO CA MR CHRISTOPHER M. GRANDE, M.D., M.P.H. APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE OLU A. STEVENS, JUDGE ACTION NO. 13-CI UNIVERSITY OF LOUISVILLE APPELLEE

2 AND 2015-CA MR CHRISTOPHER M. GRANDE, M.D., M.P.H. APPELLANT APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 10-CI UNIVERSITY OF LOUISVILLE APPELLEE OPINION AND ORDER 1 ** ** ** ** ** BEFORE: J. LAMBERT, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: These consolidated appeals arise from a series of administrative and disciplinary actions taken by the University of Louisville ( U of L ) against former student, Christopher M. Grande, M.D., M.P.H. ( Dr. Grande ). Dr. Grande filed a series of suits in Franklin and Jefferson Circuit Courts challenging U of L procedures he perceived violated Kentucky s Open Meetings Act and Open Records Act, a belief bolstered by a single favorable ruling from the Kentucky Office of the Attorney General. His success below prompted the filing 1 When final disposition of an appeal is made by an Opinion and Order, as in these cases, the party adversely affected may move for reconsideration as provided by Kentucky Rules of Civil Procedure (CR) 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1). -2-

3 of an additional appeal by U of L. Of the six appeals involving these parties to have made their way to this Court, three have been dismissed for failure to prosecute in substantial compliance with the civil rules. For the following reasons, the remaining three appeals must now be dismissed for failure to timely revive them in accordance with the mandates of KRS and CR 25.01(1). In a separate and unrelated case, a pleading was filed leading this Court to become aware Dr. Grande passed away on January 1, However, no notice of his death was filed in any of the instant appeals. On February 2, 2018, an order was entered directing the parties to show cause why these appeals should not be dismissed for failing to revive them in the one-year time limit allowed by KRS and substitute proper parties as required by CR Counsel for Dr. Grande was also ordered to show cause why sanctions should not be imposed for his failure to notify the Court of his client s death as required by CR 25.01(1). In response, counsel for Dr. Grande advised this Court the Administratrix of Dr. Grande s estate did not desire to proceed further with the pending appeals. Counsel offered no explanation for the failure to revive the actions nor did he raise any challenge to dismissal of the actions. The response indicated a preference the appeals be dismissed. In contrast, U of L responded and urged this Court not to dismiss its appeal, arguing it was a matter of great interest and consequence for the University, as it has the potential to affect the manner in which a number of entities 2 Kentucky Revised Statutes. -3-

4 within the University conduct their meetings. Further, relying on Thiesen v. Estate of Wilson, 226 S.W.3d 59 (Ky. 2007), U of L contended revival was not required because the matters were fully briefed and submitted for rulings prior to Dr. Grande s death, leaving no further action to be taken. When a party to an action pending in a Kentucky court dies, the action is abated, unless and until the action is revived by substituting the decedent s representative. The personal representative does not automatically inherit the suit; he or she must raise it from limbo and become a party to it. Hardin County v. Wilkerson, 255 S.W.3d 923, 927 (Ky. 2008). The revival laws permit an action to remain only as a placeholder for the revived suit in the name of the personal representative of the estate. Id. at 926. KRS states [a]n application to revive an action in the name of the representative or successor of a plaintiff, or against the representative or successor of a defendant, shall be made within one (1) year after the death of a deceased party. (Emphasis added.) Further, CR 25.01(1) provides [i]f a party dies during the pendency of an action and the claim is not thereby extinguished, the court, within the period allowed by law, may order substitution of the proper parties. If substitution is not so made the action may be dismissed as to the deceased party. The motion for substitution may be made by the successors or representatives of the deceased party or by any party, and, together with the notice of hearing, shall be served on the parties as provided in Rule 5, and upon persons not parties as provided in Rule 4 for the service of summons. Upon becoming aware of a party s death, the attorney(s) of record for that party, as soon as practicable, shall file a notice of such death on the -4-

5 record and serve a copy of such notice in the same manner provided herein for service of the motion for substitution. (Emphasis added.) The provisions of CR and KRS must be read in tandem. Thus, if within one year of a litigant s death an action is not revived against the administrator of a decedent s estate and the administrator substituted as the real party in interest, then the suit must be dismissed. Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky. App. 1989). The record is devoid of any pleadings filed in any court under either KRS or CR Therefore, it is clear neither Dr. Grande s personal representative nor U of L have satisfied the requirements to revive any of the pending actions within the one-year statute of limitations period set forth in KRS and they must consequently be dismissed. U of L urges this Court to permit its appeal to continue despite its failure to comply with the aforementioned mandates. It argues no further steps are required in the action it filed apart from a ruling by this Court, thereby rendering revival unnecessary. We disagree. [W]hen a judgment of a trial court is attacked as void, the real parties in interest must be brought before the court. Id. at 72 (Ky. App. 1989) (citing Morris v. Morris, 299 Ky. 235, 185 S.W.2d 244 (1945)). In Theisen, 226 S.W.3d at 62, the Supreme Court of Kentucky held [i]t is well established that if a party dies after a case has been submitted for ruling, revival is not required unless further steps are to be taken in the case. (Citations omitted.) Contrary to U of L s -5-

6 position, its attack on the trial court s judgment, if successful, would require In each and every case where an appellate court reverses the lower court, some act must perforce be performed by the lower court, to comply with the directive of the mandate. The same is true when the appellate court affirms, but places some obligation to modify or change the original judgment. We hold that in those cases where an appellate court has ordered some corrective action to be taken, the litigation is not complete until the action is formally taken in the appropriate lower court..... In those cases where the appellate court affirms the judgment of the lower court, without any modification, that judgment becomes effective when the mandate is filed in the lower court. In such cases, the mandate of the appellate court directs that such judgments are, in effect, its judgment and the mandate, when filed, reinvests the jurisdiction of the lower court vis-a-vis its original judgment. To this extent, we hold that such a mandate is self-executing. Begley v. Vogler, 612 S.W.2d 339, (Ky. 1981). In the appeal prosecuted by U of L, both parties seek relief requiring additional actions to be taken in the trial court. U of L urges reversal of the trial court s decision requiring entry of an amended judgment. Dr. Grande, while asking us to affirm the trial court s ruling, requests remand with instructions to permit completion of additional discovery and further litigation of his claims U of L willfully violated the Open Meetings Act. Dr. Grande also seeks reconsideration of his request for attorneys fees. Regardless of how we were to decide the merits additional actions to be taken in this matter as our decision would not be selfexecuting. -6-

7 of U of L s appeal, our decision would not be self-executing and additional steps would have to be taken by the trial court. Accordingly, U of L s reliance on Theisen is misplaced. Revival and substitution of parties were necessary. Failure to properly comply with KRS and CR requires dismissal. Finally, we note counsel for Dr. Grande offered no explanation for his failure to comply with the notice requirements of CR 25.01(1), nor did he mention same in his response to the order to show cause. Compliance with the civil rules is mandatory. Although we would be well within our discretion to impose sanctions for counsel s noncompliance, we have chosen not to do so under the specific circumstances presented. Counsel is cautioned such latitude is unlikely to be extended in the future. For the foregoing reasons, these appeals must be and hereby are, DISMISSED. ALL CONCUR. ENTERED: /s/ C. Shea Nickell JUDGE, KENTUCKY COURT OF APPEALS -7-

8 BRIEFS FOR APPELLANT/APPELLEE, UNIVERSITY OF LOUISVILLE: Deborah H. Patterson Allison L. Brown Amanda Warford Edge Louisville, Kentucky BRIEFS FOR APPELLEE/APPELLANT, CHRISTOPHER M. GRANDE, M.D., M.P.H.: J. Fox Demoisey Louisville, Kentucky Donna King Perry Alina Klimkina Vanessa N. Rogers Louisville, Kentucky -8-