Lexington-Fayette Urban Cnty. Gov't v. McGinnis

• Decision Date: 05 July 2013
• Docket Number: NO. 2012-CA-001324-MR,2012-CA-001324-MR
• Parties: LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLANT v. WILL MCGINNIS APPELLEE
• Court: Kentucky Court of Appeals

LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLANT

v.WILL MCGINNIS APPELLEE

NO. 2012-CA-001324-MR

Commonwealth of Kentucky Court of Appeals

RENDERED: JULY 5, 2013

NOT TO BE PUBLISHED

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 12-CI-01526

OPINION

AFFIRMING IN PART

AND VACATING IN PART

BEFORE: COMBS, MAZE AND NICKELL, JUDGES.

MAZE, JUDGE: The appellant, the Lexington-Fayette Urban County Government (LFUCG), appeals a decision of the Fayette Circuit Court. LFUCG avers that the circuit court erred in failing to find that the appellee, Will McGinnis, raised claims that are barred by res judicata. We agree with the circuit court's ruling on thisissue. But since the other issues were decided in LFUCG's favor and not preserved in a cross-appeal by McGinnis, the circuit court's decision on this issue would not affect the outcome of this case. LFUCG further argues that the circuit court's order discussing the constitutionality of a proposed amendment to the ordinance is an improper advisory opinion. We agree with LFUCG that this matter is purely hypothetical and was not ripe for adjudication. Hence, we affirm in part and vacate in part.

McGinnis owns and operates a taxicab in Fayette County. In 2002, the General Assembly enacted Kentucky Revised Statute(s) (KRS) 281.910, which authorized the regulation of local taxicab companies. The General Assembly also enacted KRS 281.914, which states:

If the Transportation Cabinet grants a local government regulatory authority over taxicabs under KRS 281.910, the local government shall grant an existing certificate holder a local taxicab permit for the number of vehicles the certificate holder has in effect on the date the local government is granted regulatory authority, provided the vehicles meet the safety requirements outlined in KRS 281.912. Renewal of the permit shall be subject to the local ordinance passed pursuant to KRS 281.910.

LFUCG enacted a new ordinance, Section 18A-3 of the Code of Ordinances, which requires a minimum fleet requirement of twenty-five taxicabs. Pursuant to the requirement of KRS 281.914, McGinnis was grandfathered in and received a permit for his single cab.

In 2005, McGinnis sought to increase the size of his fleet and requested permission to increase his fleet one or two at a time. Attorneysrepresenting LFUCG advised McGinnis that he could not add taxicabs to his fleet one at a time without jeopardizing the loss of his existing permit. In other words, he could operate his single cab, or he could operate under the new ordinance and maintain a fleet of twenty-five cabs or more. McGinnis could not, however, increase his fleet one at a time.

In 2006, McGinnis filed a complaint in the Fayette Circuit Court against LFUCG and LFUCG attorneys that advised him regarding the permit requirements. McGinnis alleged they acted negligently and in bad faith by interpreting the ordinance in a way that was unconstitutional. The circuit court dismissed the cause of action finding that the attorneys were immune. The court also noted that the attorneys correctly interpreted the ordinance. McGinnis filed a motion to reconsider and the circuit court denied the motion finding that the ordinance prevents him from growing his fleet one or two cabs at a time. McGinnis appealed and this court affirmed the dismissal determining that, even if they were not immune, the attorneys properly interpreted the statute and did not act negligently or in bad faith. McGinnis v. LFUCG, 2007 WL 1378447 (Ky. App. 2007).

Five years later, on March 29, 2012, McGinnis filed a second lawsuit against LFUCG. In the second complaint, McGinnis alleged that the ordinance is unconstitutional and sought a declaratory judgment addressing the following questions: (1) whether the taxicab ordinance prevents him from growing his company to a number less than twenty-five; (2) whether a grandfathered companymust comply with the twenty-five cab fleet requirement; (3) whether the twenty-five taxicab fleet requirement is constitutional; and (4) whether it would be considered special legislation for the LFUCG to amend the ordinance to allow companies with existing permits to increase their fleets by one or two cabs at a time.

McGinnis sought summary judgment focusing his argument on the unconstitutionality of the ordinance and reemphasizing his desire for the court to issue an opinion on his proffered hypothetical ordinance. LFUCG responded asserting that McGinnis's second lawsuit was barred by res judicata, and even if it was not, the ordinance is constitutional. The circuit court determined that the action was not barred by res judicata, but determined that the ordinance was constitutional, and if the hypothetical provision was added, the ordinance would not be considered "special legislation." This appeal followed, and LFUCG avers once again that the claims are barred by res judicata, that the statute is constitutional, and that the court's opinion regarding the hypothetical ordinance was an improper advisory opinion.

Kentucky Rule(s) of Civil Procedure (CR) 56.03 instructs that summary judgment is proper when "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." "An appellate court need not defer to the trial court's decision and will review the issue de novo." Price v. Yellow Cab Co., 365 S.W.3d 588, 591 (Ky. App. 2012).

LFUCG first argues that McGinnis's actions seeking an interpretation of the ordinance and his challenge to the constitutionality of the ordinance were barred by the doctrine of res...