Studor, Inc. v. Commonwealth, 2011-CA-000474-MR

Decision Date04 May 2012
Docket NumberNO. 2011-CA-000474-MR,2011-CA-000474-MR
PartiesSTUDOR, INC. APPELLANT v. COMMONWEALTH OF KENTUCKY, OFFICE OF HOUSING, BUILDINGS AND CONSTRUCTION and BOARD OF HOUSING, BUILDINGS AND CONSTRUCTION APPELLEES
CourtCourt of Appeals of Kentucky

TO BE PUBLISHED

APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE THOMAS D. WINGATE, JUDGE

ACTION NO. 08-CI-01057

OPINION

AFFIRMING

BEFORE: ACREE, MOORE AND VANMETER, JUDGES.

VANMETER, JUDGE: Studor, Inc. ("Studor") appeals from the Franklin Circuit Court's December 15, 2010, order denying its petition for a writ of mandamus and its related motion for summary judgment and granting summary judgment in favorof the Commonwealth of Kentucky's Office of Housing, Buildings and Construction and the Commonwealth of Kentucky's Board of Housing, Buildings and Construction (hereinafter collectively referred to as "Appellees"). For the following reasons, we affirm.

Studor is a Florida corporation in the business of distributing models of the Studor Air Admittance Valve ("AAV"), a plumbing device that introduces air into indoor plumbing systems to maintain the water trap seal. Since 1989, Studor has been seeking approval from Appellees for use of its AAV in Kentucky. Kentucky's current plumbing code ("the Code") permits the use of "open pipe venting" as a means of maintaining a water trap seal in plumbing systems. Open pipe venting systems utilize open vent pipes, which extend through the roof of a building and are connected to the plumbing system to allow air to enter the drainage system. An AAV, according to Studor, does not replace open pipe venting, but rather minimizes the need for vent piping, thereby minimizing the risk of water leakage through roof penetrations and mold development.

Appellees, in conjunction with the Department of Public Protection, State Plumbing Committee ("the Committee"), an entity created to serve in an advisory capacity with respect to the promulgation of plumbing regulations, have conducted numerous hearings on AAVs as alternative ventilation systems, hearing evidence presented by Studor on the efficacy and safety of AAVs, as well as noting the approval of AAVs in other states. Ultimately, Appellees elected not to promulgatea regulation or otherwise amend the Code to allow for use of Studor's AAV in Kentucky.

As a result, Studor petitioned the Franklin Circuit Court to issue a writ of mandamus ordering Appellees to amend the Code to allow for use of its AAV. Studor also moved for summary judgment, arguing that mandamus is an appropriate remedy as a matter of law based on Appellees' arbitrary and capricious refusal to amend the Code. Appellees moved for summary judgment on grounds that they have properly exercised their discretion in favoring open pipe venting over AAVs and that mandamus is not an appropriate remedy since Studor does not allege failure on their part to perform a ministerial duty. The court granted Appellees' motion and denied Studor's motion and petition by order entered December 15, 2010. The court subsequently denied Studor's motion to alter, amend or vacate that order. This appeal followed.

On appeal, Studor contends that the court erred by denying its petition for a writ of mandamus and its related motion for summary judgment, claiming that Appellees' actions were arbitrary and capricious because their determination was not supported by substantial evidence and denied Studor the minimum standards for procedural due process. Studor also claims that Appellees' determination denied it equal protection and favored special legislation. We disagree.

Kentucky law recognizes that

the function of a writ of mandamus is to compel an official to perform duties of that official where an element of discretion does not occur. It does not usurplegislative powers or invade the functions of an independent branch of government.
. . . .
Mandamus compels the performance of ministerial acts or duties only. An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion. . . . Accordingly, if the statute directs the officer to perform a particular duty which does not involve discretion, the officer is required to do so[.]

County of Harlan v. Appalachian Reg'l Healthcare, Inc., 85 S.W.3d 607, 612-13 (Ky. 2002) (internal citations omitted). In other words, a court may issue a writ of mandamus to compel a body "to exercise its discretion in passing upon the matter before it, but such order should not ordinarily coerce a particular determination." Clark v. Ardery, 310 Ky. 836, 842, 222 S.W.2d 602, 605 (1949).

In certain circumstances, mandamus is available to remedy arbitrary and capricious acts of discretion when it appears that public authorities

have acted arbitrarily in the premises and have abused the public trust reposed in them to properly and fairly administer the provisions of the [statute]. In the administration of the duties imposed upon them by such terms of the [statute], municipal authorities cannot make discriminatory use of the discretionary powers given them, by granting privileges to certain individuals and arbitrarily denying them to others applying therefor under like circumstances and conditions. Where such arbitrary exercise or abuse of the police power given a municipality is attempted, the offending authorities may be compelled by mandamus to grant the right or permit, reasonably and properly applied for by one showing himself entitled thereto.
This legal principle, compelling like and equal treatment by municipalities of all like applicants, is thus stated . . .: "Even conceding broad discretion in the public authorities, when the elements of discretionary action have been eliminated by acts of the parties, the question resolves itself into one of legal duty, which may be enforced by mandamus."

Bell Bros. Trucking Co. v. Kelley, 277 Ky. 781, 791-92, 127 S.W.2d 831, 836 (1939) (internal citations omitted).

To determine whether an agency's actions were arbitrary, Kentucky courts consider three factors: (1) whether the agency acted within the limits of its statutory authority, (2) whether the party to be affected by the agency's decision was afforded procedural due process; specifically, the opportunity to be heard, and (3) whether the actions of the agency are supported by substantial evidence. See Fin. & Admin. Cabinet, Dept. of Revenue v. Slagel, 253 S.W.3d 74, 75 (Ky. 2008) (citation omitted).

Summary judgment shall be granted only if "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR1 56.03. The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). Additionally, "a party opposing a properly supportedsummary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Id. at 482 (citations omitted).

On appeal from a granting of summary judgment, our standard of review is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Lewis B & R Corp., 56 S.W.3d 432, 436 (Ky.App. 2001) (citations omitted). Because no factual issues are involved and only legal issues are before the trial court on a motion for summary judgment, we do not defer to the trial court and our review is de novo. Hallahan v. Courier-Journal, 138 S.W.3d 699, 705 (Ky.App. 2004).

Studor does not claim that Appellees exceeded their statutory authority, therefore we will proceed to the second factor in determining if Appellees' discretionary actions were arbitrary: whether Studor was afforded procedural due process. Slagel, 253 S.W.3d at 75. Pursuant to KRS2 198B.020, the Kentucky Board of Housing, Buildings and Construction ("Board"), created within the Kentucky Department of Housing, Buildings and Construction, has the power "[t]o promulgate administrative regulations for the safe installation and operation of plumbing and plumbing fixtures." KRS 198B.040(10). Studor most recently presented its AAV to the Committee in November 2007, which declined to recommend approval, and to the Board in May 2008, which denied approval.Since 1989, Studor has presented its AAV for approval in Kentucky on at least eleven occasions.

On review, the trial court observed that Studor provided no instance or...

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