NOT TO BE PUBLISHED
Melissa Gail Simpson, as personal representative for the Estate of Charles Fancher (the "Estate") appeals from the Metcalfe Circuit Court's order of summary judgment dismissing the Estate's negligence claims against the above-captioned appellees. Finding no error, we affirm.
PROCEDURAL AND FACTUAL HISTORY
This matter was originally filed in Metcalfe Circuit Court on March 7, 2008, as a Kentucky negligence action.
Finally, after the circuit court dismissed the two consolidated actions through a single order of summary judgment, the appellants filed two notices of appeal (one for each of the consolidated actions). Each notice named as the sole appellant "Melissa Gail Simpson, as Personal Representative of the Estate of Charles David Fancher," and, as appellees, "Kevin Thompson, Rondal Shirley, Scott Gordon, Jimmy Shive, and Greg Wilson."
With that said, the parties agree that the Federal Court's order of summary judgment in Simpson, 2010 WL 4365573, accurately summarized the relevant facts of this case:
Id. at *1-2.
At both the federal and state level, the Estate argued that the manner in which Fancher was restrained was a substantial factor in causing Fancher's death. To that end, the Estate produced the opinion of Dr. Karl Williams, who believed that the method of Fancher's restraint, in conjunction with his intoxication, possible exhaustion from arrest, and what the medical examiner had discovered was Fancher's enlarged heart had resulted in Fancher's "accidental" death from "positional asphyxiation." The Estate also produced an opinion from a private investigator, Eddie Railey, stating Railey's belief that the method used to restrain Fancher was, under the circumstances, a breach of the applicable standard of care.
As noted previously, the Estate's suit began as a Kentucky negligence action, but evolved into a federal suit alleging both a Kentucky negligence claim and a 42 U.S.C. § 1983 based upon excessive force and deliberate indifference to medical needs. When the Federal Court dismissed the Estate's action, it dismissed the § 1983 claims with prejudice on the basis of sovereign immunity (to the extent they were asserted against Metcalfe County and its sheriff's office) and qualified immunity (to the extent they were asserted against Thompson, Shirley, Gordon, and Shive in their individual capacities).
When the Estate re-filed its Kentucky negligence action in Metcalfe Circuit Court, the appellees raised the same defenses of sovereign and qualified immunity, along with a defense of res judicata, and moved for summary judgment on those bases. Thereafter, the circuit court granted summary judgment in favor of the appellees, but its final order of summary judgment essentially stated nothing more than that (i.e., it specified no basis). This appeal followed.
STANDARD OF REVIEW
Summary judgment serves to terminate litigation where "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." Kentucky Rule(s) of Civil Procedure (CR) 56.03. It is well established that a party responding to a properly supported summary judgment motion cannot merely rest on the allegations in his pleadings. Continental Casualty Co. v. Belknap Hardware & Manufacturing Co., 281 S.W.2d 914 (Ky. 1955). "[S]peculation and supposition are insufficient to justify a submission of a case to the jury, and . . . the question should be taken from the jury when the evidence is so unsatisfactory as to resort to surmise and speculation." O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citing Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). "`Belief' is not evidence and does not create an issue of material fact." Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990); see also Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007) ("A party's subjective beliefs about the nature of the evidence is not the sort of affirmative proof required to avoid summary judgment.") Furthermore, the party opposing summary judgment "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 481 (Ky. 1991) (internal citations and quotations omitted).
On appeal, we must consider the evidence of record in the light most favorable to the non-movant and must further consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (footnote omitted).
The Estate's prehearing statement limits the "issues proposed to be raised on appeal, including jurisdictional challenges, and any question of first impression" to the following: "The Trial Court's wrongful grant of Summary Judgment on an unspecified basis." To this effect, the Estate asserts that it was reversible error for the circuit court to dismiss the balance of its claims through an order of summary judgment that included no factual findings or conclusions of law. However, the circuit court's order "was a summary judgment order, and pursuant to CR 52.01, specific findings and conclusions of law are not required with summary judgments." Blue Movies, Inc. v. Louisville/Jefferson County Metro Government, 317 S.W.3d 23, 39 (Ky. 2010) (citing Wilson v. Southward Inv. Co. No. 1, 675 S.W.2d 10 (Ky. App. 1984)). Thus, it would appear that the sole issue raised in the Estate's prehearing statement has no merit.
The Estate's appellate brief, on the other hand, notes that the appellees raised arguments of res judicata and immunity as defenses below; it reasons that the circuit court must have based its summary judgment upon one or both of those issues; and, the Estate's brief raises two additional arguments of error relating to those issues. CR 76.03(8) would ordinarily prohibit this Court from considering issues not raised in a prehearing statement or submitted upon timely motion. See, e.g., American General Home Equity, Inc. v. Kestel, 253 S.W.3d 543, 549 (Ky. 2008); see also Sallee v. Sallee, 142 S.W.3d 697, 698 (Ky. App. 2004) (refusing to reach appellant's argument to reverse trial court's judgment on ground not among issues raised in prehearing statement or by timely motion under CR 76.03(8)). Nevertheless, CR 76.03(8) poses no obstacle to our review of the Estate's arguments relating to res judicata and immunity because the appellees have also raised res judicata and immunity in their own prehearing statement, have extensively briefed those issues, and have thus negated any reason for the Estate to have filed a motion, per CR 76.03(8), to add these as issues on appeal.
That said, the Estate is correct that in the absence of any specificity we will presume that the circuit court's threadbare order incorporates and is based upon each of the grounds asserted by the motion for summary judgment submitted by the appellees in this matter (i.e., res judicata and immunity). See, e.g., Sword v. Scott, 293 Ky. 630, 169 S.W.2d 825, 827 (1943) ("In the absence of the court's specifying the ground or grounds for his dismissal of the petition, it will be assumed that it was upon any or all of the grounds which the proof sufficiently established.") And, because res judicata and immunity presented alternative grounds for dismissal, the Estate has the burden of demonstrating on appeal that both grounds are erroneous in order to justify reversing the circuit court's judgment. See Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979) ("the trial court's determination of those issues not briefed upon appeal is ordinarily affirmed."); see also id. at 729 ("When a judgment is based upon alternative grounds, the judgment must be affirmed on appeal unless both grounds are erroneous.")
Therefore, we will begin with the Estate's argument relating to immunity. As noted previously, the defense of sovereign immunity was asserted by Metcalfe County, Shirley (in his official capacity as Metcalfe County Sheriff), Shive (in his official capacity as Metcalfe County Jailer), and Thompson and Gordon (in their official capacities as Deputy Sheriffs). In their individual capacities, Shirley, Shive, Thompson and Gordon each asserted defenses of qualified immunity.
The entirety of the Estate's argument is founded exclusively upon Kentucky Revised Statute(s) (KRS) 70.040:
It is true that KRS 70.040 represents a waiver of the official immunity enjoyed by the office of Metcalfe County Sheriff; thus, in the context of an "official capacity" suit, it would be relevant. But, the statute has no bearing upon the liability of the individual holding the office of Metcalfe County Sheriff, nor any defense of qualified immunity that could be asserted by such an individual or his deputies, and it is thus irrelevant in the context of a "personal capacity" suit.
473 U.S. at 165-66, 105 S.Ct. at 3105 (footnote omitted).
473 U.S. at 167-68, 105 S.Ct. at 3106.
Therefore, if the Estate has failed to join Shirley, Shive, Thompson, or Gordon (in their official capacities), or Metcalfe County or the office of Metcalfe County Sheriff in this appeal, the Estate has failed to join any governmental entity. And, if no governmental entity is present in this appeal, KRS 70.040 does not apply in any way to this matter.
Here, the Estate's complaint specifically named as defendants Shirley, Shive, Thompson, and Gordon (in their individual and official capacities), along with Metcalfe County. But, only those parties named in a notice of appeal are placed within our appellate jurisdiction. City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990). And, a review of the two notices of appeal filed by the Estate in this matter discloses that the only parties the Estate named in this appeal, aside from itself, are "Kevin Thompson, Rondal Shirley, Scott Gordon, Jimmy Shive, and Greg Wilson." It excludes any mention of their official capacities and any mention of Metcalfe County or its sheriff's office. We do not presume that merely listing the name of a government official, in and of itself, implicates his official capacity. See, e.g., McCollum v. Garrett, 880 S.W.2d 530, 532-3 (Ky. 1994). Nor, for that matter, may we presume that the Estate's general designation of the appellees as "Kevin Thompson, et al." in the caption of its notices of appeal operated as a remedy: CR 73.03(1) expressly prohibits specifying the names of parties as "et al." in a notice of appeal; moreover, the use of "et al." in the caption of a notice of appeal does not make those parties to the action not specifically named in the caption parties to the appeal. Schulz v. Chadwell, 548 S.W.2d 181, 184 (Ky. App. 1977).
In short, any further discussion of KRS 70.040 within the context of this case is a moot point: the only function of that statute would have been to impute civil liability upon the Metcalfe County sheriff's office. We have no jurisdiction to reverse any part of the circuit court's order relating to the Metcalfe County sheriff's office because neither it, nor Metcalfe County, are parties to this appeal.
That is not to say that Metcalfe County and its sheriff's office were indispensable parties to this appeal, or that their absence mandates dismissal. Under our appellate rules, parties are only "indispensable" to an appeal if their "interest would be divested by an adverse judgment," or if their "absence prevents the Court from granting complete relief among those already parties." Watkins v. Fannin, 278 S.W.3d 637, 640 (Ky. App. 2009) (citations omitted). Having failed to appeal that part of the circuit court's order relating to its claims against Metcalfe County and its sheriff's office, the Estate has waived any review in that regard. And, in any event, neither entity would be prejudiced by a determination that Shirley, Shive, Thompson, and Gordon could be individually liable to the Estate. See Graham, 473 U.S. at 167-68, 105 S.Ct. at 3106 ("A victory in a personal-capacity action is a victory against the individual defendant, rather than against the entity that employs him.").
We are left, then, to address the claims of qualified official immunity asserted by Shirley, Shive, Thompson, and Gordon in their individual capacities. As a general matter, "qualified official immunity" immunizes public officers or employees from liability for negligence, provided that the negligence in question arises from "(1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee's authority." James v. Wilson, 95 S.W.3d 875, 905 (Ky. App. 2002) (internal citations omitted). "Once the officer or employee has shown prima facie that the act was performed within the scope of his/her discretionary authority, the burden shifts to the plaintiff to establish by direct or circumstantial evidence that the discretionary act [was in bad faith]." Rowan County v. Sloas, 201 S.W.3d 469, 476 (Ky. 2006) (citing Yanero v. Davis, 65 S.W.3d 510, 523 (Ky. 2001)).
In the case at bar, it cannot be disputed that when the officers arrested and restrained Fancher, they were performing a discretionary act within the scope of their authority. As stated in Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007),
Because the officers have demonstrated prima facie that their acts in question (the arrest and restraint of Fancher) were performed within the scope of their discretionary authority, the burden shifted to the Estate to establish by direct or circumstantial evidence that the officers performed their discretionary acts in bad faith. Haugh provides further guidance in this regard:
In the case at bar, the Estate generally alleges that the officers' treatment of Fancher was negligent, but it does not cite affirmative evidence of record or supporting case law demonstrating that the officers took any action against Fancher with any of the above-described intentions evincing bad faith. If a party does not cite authority for an argument, we are not required to address the argument; therefore, we would be justified in affirming the circuit court's summary dismissal of the Estate's claims against the individual officers on this basis alone. See CR 76.12(4)(c)(v); Cherry v. Augustus, 245 S.W.3d 766, 781 (Ky. App. 2006).
Nevertheless, we deem it more expeditious to adopt the well-reasoned opinion of the United States District Court as it applies to this issue.
Simpson, 2010 WL 4365573 at *5-6.
For the reasons stated above, the judgment of the Metcalfe Circuit Court is affirmed.
We find little if any prejudice to Maynard's heirs caused by the Commonwealth's error in naming the proper party to this matter. The attorney representing Appellee in this appeal is the same attorney that represented Maynard's estate at the forfeiture hearing attended by Maynard's heirs. Moreover, the heirs have all been appointed executors of Maynard's estate and thus, their interest in the real property has been actively and vigorously litigated at all stages of this litigation, including this appeal. Nevertheless, we are bound by prior Supreme Court case law, including case law set forth by prior panels of this Court in the absence of an en banc sitting.
Thus, to the extent that the Estate now seeks review of the circuit court's summary dismissal of its claims against Metcalfe County or the Metcalfe County Sheriff's Office in this appeal, we are precluded from granting it for the reasons stated above. See, e.g., Watkins v. Fannin, 278 S.W.3d 637, 643 (Ky. App. 2009) ("[W]e note as irrelevant the fact that the Cabinet, which defended this appeal, has not raised this issue; an appellate court may not acquire jurisdiction through waiver.") (citing Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005)).
However, because the Estate failed to cite any evidence of bad faith, the distinction is irrelevant in this case.