Stewart v. William H. Jolly Plumbing Co., 87-CA-1312-MR

• Decision Date: 15 January 1988
• Docket Number: No. 87-CA-1312-MR,87-CA-1312-MR
• Citation: 743 S.W.2d 861
• Parties: Delbert STEWART and Mary Stewart, Appellants, v. WILLIAM H. JOLLY PLUMBING CO., Appellees.
• Court: Kentucky Court of Appeals

Page 861

743 S.W.2d 861

Delbert STEWART and Mary Stewart, Appellants, v. WILLIAM H. JOLLY PLUMBING CO., Appellees.

No. 87-CA-1312-MR.

Court of Appeals of Kentucky.

Jan. 15, 1988.

Kenneth E. Dunn, Robert E. Barnett, III, Louisville, for appellants.

William P. Swain, John W. Phillips, Boehl, Stopher, Graves & Deindoerfer, Konrad Poth, Louisville, for appellees.

Before CLAYTON, McDONALD and MILLER, JJ.

OPINION AND ORDER

McDONALD, Judge:

This is a negligence action commenced by the appellants, Delbert and Mary Stewart, for damage to their property resulting from a fire. They alleged the fire, which occurred in their home in September, 1985, to have been caused by the negligent installation of the plumbing and appliances, including a hot water heater in 1980 by the appellee, William H. Jolly Plumbing Company. The suit was commenced in October, 1986, 13 months after the fire. The trial court dismissed the complaint in May, 1987, on the basis that the claim was barred by the one-year limitation period in KRS 413.135(2).

In Tabler v. Wallace, Ky., 704 S.W.2d 179 (1985), our Supreme Court declared the former version of KRS 413.135 to be unconstitutional. That statute granted immunity from suit to any person engaged in the "design, planning, supervision, inspection or construction of any improvement to real property" after five years from the "substantial completion" of the improvement. The court determined that immunity for architects, builders, engineers and the like was arbitrary and violative of Section 59 of the Kentucky Constitution, entitled, "Local and special legislation." In response, the legislature reenacted the statute effective July 15, 1986. Subsection (1) of the new statute is nearly identical except that it provides that suit can be brought for damages caused by construction defects within seven years of substantial completion instead of five years. KRS 413.135(2) was reenacted verbatim and as such is nonsensical. ¹

The trial court granted the appellee's motion to dismiss determining that KRS 413.135(2) required appellants to bring the suit for property damage within one year of the injury instead of the five years as provided in KRS 413.120, the ordinary property damage statute. In doing so the court noted that KRS 413.135(1) was unconstitutional for the same reasons as set forth in Tabler, supra, but found no constitutional or other impairment with KRS 413.135(2). The attorney general was not notified of the constitutional attack on the reenacted statute while the matter was pending in the trial court but was named in, and served with, the notice of appeal.

The appellee has moved this Court to dismiss the appeal solely because the appellants did not comply with that portion of KRS 418.075 requiring notice to the attorney general, or CR 24.03, likewise providing for such notice. The appellants have not filed a response to the motion. The appellee asserts that this Court and the Supreme Court "have consistently and repeatedly held that the notification provisions of KRS 413.075 [418.075] and CR 24.03 are mandatory" to entertain appellate review of such matters. We disagree both with the contention that such consistency exists and that the appellee is entitled to a dismissal of the appeal, it being jurisdictionally flawed. ²

There is considerable confusion regarding notification to the attorney general when a statute is alleged to be unconstitutional, particularly in regard to the consequences of failing to notify the attorney general. Thus, we have taken this opportunity to examine both the applicable statute and rule.

CR 24.03 provides in part:

When the constitutionality of an act of the General Assembly affecting the public interest is drawn in question in any action to which the State or an officer, agency, or employe thereof is not a party, the movant shall serve notice of the motion upon the Attorney-General.

KRS 418.075 provides in part:

In any proceeding which involves the validity of a statute, the attorney general of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard, and if the ordinance or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the petition and be entitled to be heard.

The purpose for the notification to the attorney general is not to limit or define the parameters of the subject matter jurisdiction of our trial or appellate courts. Nor is it designed as another hurdle for an aggrieved litigant to overcome in order to secure appellate review. It is obvious that the purpose for both the statute, which is included under the Declaratory Judgment Act, and the rule, which pertains to intervention, is to ensure that the attorney general has notice to enable him to exercise his right to intervene, on behalf of the citizens of the Commonwealth, in those cases attacking our statutes. See Commonwealth Ex Rel. Hancock v. Paxton, Ky. 516 S.W.2d 865 (1974). However, while the attorney general is a proper party to such a case, he is not an indispensable party. While neither the rule nor the statute indicates the penalty for failure to comply with the notification provisions, we do not believe they contemplate the ultimate sanction suggested by the appellee, that is, dismissal of one's lawsuit or appeal.

Any confusion in this regard is attributable in part to the ambivalent treatment of the issue by the courts. In Tabler v. Wallace, supra, which as stated before dealt with the constitutionality of the same statute at issue here, this Court disposed of the notification issue, as well as other unrelated issues pertaining to preservation, in a footnote, finding such arguments "unpersuasive." The Supreme Court noted our ruling, also in a footnote, and declined to express any opinion on the issue. 704 S.W.2d at 181, n. 3. However, compare the dissent for full impact of the problem. Id. at 188-189. On the other hand, in Smith v. Rogers, Ky., 702 S.W.2d 425, 428 (1986), and Blake v. Woodford Bank & Trust Co., Ky.App., 555 S.W.2d 589 (1977), the appellate Court treated the lack of compliance with the notification requirements as essential to the preservation of the issue for review. ³ In other cases, such as McCoy v. Western Baptist Hospital, Ky.App., 628 S.W.2d 634 (1982), and Hummeldorf v. Hummeldorf, Ky.App., 616 S.W.2d 794 (1981), this Court notified the attorney general of the constitutional challenge who was then given the opportunity to intervene in the proceedings on the appellate level. ⁴

Part of the confusion, too, stems from the variance between the rule and the statute concerning when and who is to give notice to the attorney general. The rule does not provide when notice must be given and the statute merely provides that it must be given "before judgment is entered." Although the rule provides the "movant" to serve notice, the statute is silent but indicates service to be a function of the court. In Miles v. Shauntee, Ky., 664 S.W.2d 512 (1984), which involved an attack on the Uniform Residential Landlord and Tenant Act, the trial court sent a copy of its memorandum opinion which held the statute unconstitutional to the attorney general and gave him an...