MURRAY – The Kentucky Court of Appeals has rejected an appeal from the Calloway County Fiscal Court regarding a lawsuit filed by the Western Shores Property Owners Association, stating that former Judge-Executive Larry Elkins and current and past magistrates named in the suit are not immune from being sued as individuals over unfinished roads in the subdivision.

Western Shores Property Owners Association’s (WSPOA) legal representation, the Louisville firm Wyatt, Tarrant, and Combs, filed a $1.6 million lawsuit in Calloway Circuit Court on Sept. 14, 2018, against the subdivision’s developer, Kentucky Land Partners, and various elected county officials that have served since the planning for the subdivision began in 2005. The suit claims that KLP failed to fulfill its promise to finish the roads according to county standards and that the county government failed to enforce its subdivision regulations to make sure that work was complete.

In addition to KLP, the list of defendants includes: former Calloway County Judge-Executive Larry Elkins; former magistrate and current Judge-Executive Kenny Imes; District 1 Magistrate Eddie Clyde Hale; former District 2 Magistrate Tim Todd; District 3 Magistrate Don Cherry; former District 4 Magistrate Johnny Gingles; former magistrate Steve Lax; former magistrate Bobby Stubblefield; former Western Shores Property Owners Association President John Oliphant; former Western Shores POA Secretary Amy Pudvar Smith; and former Western Shores POA Treasurer Timothy Smith.

Because Cherry is listed as a defendant in the suit and is Calloway Circuit Judge James T. Jameson’s father-in-law, Jameson recused himself, and McCracken Circuit Judge Tim Kaltenbach became the special judge overseeing the case. Stacey Blankenship of Paducah’s Keuler, Kelly, Hutchins, Blankenship & Sigler law firm is representing the county on this case and told the Ledger & Times in September that she filed a motion to dismiss the suit, claiming Calloway County’s government officials have qualified offical immunity. According to court documents, Kaltenbach denied the motion to dismiss the claims against the defendants in their capacities as individuals – as opposed to their official capacities – on Aug. 16, 2019, and again on Jan. 21, 2020 after he was asked to reconsider the motion.

“Local governments are subject to immunity for certain types of things, and that was our argument in the lower court, that this particular type of conduct subjected the county to immunity,” Blankenship told the Ledger & Times in September. “The court disagreed with us, so we have asked the Court of Appeals to look into the issue.”

The Kentucky Court of Appeals issued a ruling on Friday rejecting the defendants’ appeal and affirming Kaltenbach’s previous denials of their motions.

The county defendants moved on Oct. 23, 2018, that the trial court dismiss WSPOA’s claims against them, asserting they are entitled to “absolute legislative immunity, sovereign immunity and qualified official immunity.” The attorneys also argued the complaint was barred by the Claims Against Local Governments Act, that WSPOA lacked standing to sue upon the bond, and that a writ of mandamus was an inappropriate remedy. On Feb. 7, 2019, the defendants filed a supplemental memorandum of law in support of their motion to dismiss, asserting WSPOA’s claims were barred by the statute of limitations.

After a hearing on Aug. 16, 2019, the trial court entered a memorandum and order concerning the defendants’ motion to dismiss, and the court dismissed the negligence claims against the county defendants in their official capacities as barred by sovereign immunity. However, the court did not dismiss the negligence claims against the defendants in their individual capacities, finding they were not entitled to qualified official immunity. The court also found the claims for declaratory judgment and mandamus against the defendants were not barred by sovereign immunity.

The trial court found that the defendants were not entitled to qualified official immunity because their actions were ministerial rather than discretionary. Citing the 2003 case Williams v. Kentucky Department of Education, the court wrote, “Promulgation of rules is a discretionary function; enforcement of those rules is a ministerial function.”

The defendants argued that the language of the county’s subdivision regulations reveals the discretionary nature of their actions because of the use of the word “may” in the ordinance, which states in part: “If it is determined by the Fiscal Court that improvements have not been installed as planned or that the improvements are not properly guaranteed, then the Fiscal Court may take action to secure installation of the improvements, including, but not limited to, civil actions for injunctive relief, damages, and/or foreclosure against the developer and such providers of the guarantees.” KRS 446.010(26) and (39) provide that “may” is permissive, and “shall” is mandatory.

However, the Court of Appeals noted the use of “shall” in other parts of the ordinance, including, “With regard to street, road or right of way construction, the guarantee shall contain the further condition that, should the subdivider fail to complete all work and improvements required to be done by him within twenty-four (24) calendar months of the date of approval of the final plat, or within a mutually agreed upon extension, but never to exceed twelve (12) consecutive calendar months, that [sic] the Fiscal Court shall cause all the work to be done and improvements constructed …”

The Court of Appeals said that if an action is mandatory, its performance is ministerial, not discretionary.

“These provisions and their use of the word ‘shall’ further support the trial court’s finding that County Defendants’ performance of their duties concerning approval of the plat and bond were ministerial rather than discretionary,” the Court of Appeals ruling stated. “Further, Section 6.1 only allows acceptance of guarantees compliant with the Regulations, and as previously noted, the guarantees herein did not contain the language required by Section 6.2. Therefore, County Defendants are not afforded qualified official immunity, and the trial court did not err in its determination to that effect. … Therefore, and for the foregoing reasons, the orders entered by the Calloway Circuit Court are AFFIRMED.”

The Ledger & Times attempted to reach Blankenship by phone on Monday, but she did not respond to a message left at the firm. An attempt was also made to reach attorney Daniel P. Reed with Wyatt, Tarrant, and Combs, but he did not return a message left for him on his voicemail.

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