RENDERED: MAY 14, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1784-MR

SOUTHPOINTE PARTNERS, LLC APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE

ACTION NO. 19-CI-002529 

LOUISVILLE METRO 

GOVERNMENT; LOUISVILLE 

METRO PLANNING COMMISSION; 

VINCE JARBOE, IN HIS OFFICIAL 

CAPACITY AS A MEMBER OF THE 

LOUISVILLE METRO PLANNING 

COMMISSION AND IN HIS 

INDIVIDUAL CAPACITY; DAVID 

TOMES, IN HIS OFFICIAL 

CAPACITY AS A MEMBER OF THE 

LOUISVILLE METRO PLANNING 

COMMISSION AND IN HIS 

INDIVIDUAL CAPACITY; ROBERT 

PETERSON, IN HIS OFFICIAL 

CAPACITY AS A MEMBER OF THE 

LOUISVILLE METRO PLANNING 

COMMISSION AND IN HIS 

INDIVIDUAL CAPACITY; EMMA 

SMITH, IN HER OFFICIAL 

CAPACITY AS A MEMBER OF THE 

LOUISVILLE METRO PLANNING 

COMMISSION AND IN HER 

APPELLEES 
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INDIVIDUAL CAPACITY; LULA 

HOWARD, IN HER OFFICIAL 

CAPACITY AS A MEMBER OF THE 

LOUISVILLE METRO PLANNING 

COMMISSION AND IN HER 

INDIVIDUAL CAPACITY; MARILYN 

LEWIS, IN HER OFFICIAL 

CAPACITY AS A MEMBER OF THE 

LOUISVILLE METRO PLANNING 

COMMISSION AND IN HER 

INDIVIDUAL CAPACITY; JEFF 

BROWN, IN HIS OFFICIAL 

CAPACITY AS A MEMBER OF THE 

LOUISVILLE METRO PLANNING 

COMMISSION AND IN HIS 

INDIVIDUAL CAPACITY; RICH 

CARLSON, IN HIS OFFICIAL 

CAPACITY AS A MEMBER OF THE 

LOUISVILLE METRO PLANNING 

COMMISSION AND IN HIS 

INDIVIDUAL CAPACITY; RUTH 

DANIELS, IN HER OFFICIAL 

CAPACITY AS A MEMBER OF THE 

LOUISVILLE METRO PLANNING 

COMMISSION AND IN HER 

INDIVIDUAL CAPACITY; DONALD 

ROBINSON, IN HIS OFFICIAL 

CAPACITY AS A MEMBER OF THE 

LOUISVILLE METRO PLANNING 

COMMISSION AND IN HIS 

INDIVIDUAL CAPACITY; EMILY 

LIU, IN HER INDIVIDUAL 

CAPACITY; JOE REVERMAN, IN 

HIS INDIVIDUAL CAPACITY; JEFF 

O’BRIEN, IN HIS INDIVIDUAL 

CAPACITY; LACEY GABBARD, IN 

HER INDIVIDUAL CAPACITY; 

JODY MEIMAN, IN HIS

INDIVIDUAL CAPACITY; KELLY 

JONES, IN HIS INDIVIDUAL 
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CAPACITY; AND BETH ALLEN, IN 

HER INDIVIDUAL CAPACITY

AND NO. 2020-CA-0195-MR

SOUTHPOINTE PARTNERS, LLC APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANN BAILEY SMITH, JUDGE

ACTION NO. 19-CI-006441 

VINCE JARBOE; BETH ALLEN; 

DAVID TOMES; DONALD 

ROBINSON; EMILY LIU; EMMA 

SMITH; JEFF BROWN; JEFF 

O’BRIEN; JODY MEIMAN; JOE 

REVERMAN; KELLY JONES; 

LACEY GABBARD; LULA 

HOWARD; MARILYN LEWIS; RICH 

CARLSON; ROBERT PETERSON; 

AND RUTH DANIELS, ALL IN 

THEIR INDIVIDUAL CAPACITIES

APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.
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JONES, JUDGE: SouthPointe Partners, LLC (“Southpointe”) appeals the 

judgments of Divisions Nine and Thirteen of the Jefferson Circuit Court. 

SouthPointe originally filed suit against the Louisville Metro 

Government, the Louisville Metro Planning Commission (the “Planning 

Commission”), and its members, Vince Jarboe, David Tomes, Robert Peterson, 

Emma Smith, Lulu Howard, Marilyn Lewis, Jeff Brown, Rich Carlson, Ruth 

Daniels, and Donald Robinson in their official capacities; this action was assigned 

to Jefferson Circuit Court Division Nine. Therein, SouthPointe sought to appeal a

decision of the Planning Commission pursuant to KRS1 100.347 and asserted the 

following additional claims as against all defendants: (1) declaratory and 

injunctive relief; (2) negligence; (3) violation of 42 U.S.C.2 § 1983; and (4) a claim 

that Louisville’s Land Development Code is unconstitutionally vague. After 

finding in SouthPointe’s favor with respect to its KRS 100.347 appeal, the circuit 

court dismissed the remainder of SouthPointe’s claims and denied it leave to 

amend its complaint to add claims against each of the Planning Commission 

members in their individual capacities. 

Subsequently, SouthPointe filed a second, separate suit against the 

Planning Commission members in their individual capacities as well as against 

 

1 Kentucky Revised Statutes.

2 United States Code.
-5-

seven other advisory officials, Emily Liu, Joe Reverman, Jeff O’Brien, Lacey 

Gabbard, Jody Meiman, Kelly Jones, and Beth Allen. This suit, which was based 

on the same conduct involved in the Division Nine suit, was assigned to the 

Division Thirteen of the Jefferson Circuit Court. This suit was ultimately 

dismissed after the circuit court determined that it arose from the same common 

nucleus of operative facts as the Division Nine suit, and therefore, was an 

impermissible attempt to claims split by SouthPointe. 

On appeal, SouthPointe challenges: (1) the dismissal of its claims in 

the Division Nine suit; (2) the circuit court’s denial of its motion to amend its 

complaint in the Division Nine suit; and (3) the circuit court’s dismissal of the 

Division Thirteen suit. Having reviewed the record, and being otherwise 

sufficiently advised, we affirm as to each assignment of error. 

I. BACKGROUND

SouthePointe, a commercial developer, is currently in the process of 

constructing SouthPointe Commons, a more than $80 million development in Fern 

Creek, Jefferson County, Kentucky. The Planning Commission approved the 

development in 2010, including the name of the main street of the development, 

“SouthPointe Boulevard.” The actual construction of the development was 

delayed for several years as a result of unrelated litigation, but SouthPointe’s 

predecessor-in-interest and managing member, Bardstown Capital Corporation, 
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eventually won that litigation. Subsequently, in 2018, SouthPointe applied for the 

approval of a minor plat (“the Minor Plat”) in the development using its previously 

approved street name.

While reviewing the Minor Plat, the Planning Commission discovered 

a preexisting street named “Southpointe Boulevard” elsewhere in town. The

Planning Commission admitted that this was an oversight in its initial 2010 review

but refused to approve the Minor Plat until SouthPointe changed the duplicitous 

street name. However, the Planning Commission also rejected SouthPointe’s 

suggested alternative, “SouthPointe Commons Boulevard,” because it was 

supposedly two letters too long according to a 16-letter limitation for public street 

names found in the Land Development Code. 

Yet again, the Planning Commission asked SouthPointe to rename its 

main street. However, this time, SouthPointe refused, and the Planning 

Commission allowed SouthPointe to apply for a waiver of the 16-letter 

requirement. SouthPointe did so, and a hearing was scheduled on the matter. The 

Louisville Department of Emergency Services (“Emergency Services”) objected to 

the waiver by written letter, asserting a number of public safety concerns,3 but did 

not attend the hearing.

 

3 Emergency Services alleged that the 16-letter limitation was necessary for maximizing 

visibility of street signs for emergency responders, due to letter size and the susceptibility of long 

signs to twist or bend in heavy winds.
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On April 18, 2019, the Planning Commission held a second public 

hearing to consider SouthPointe’s waiver request. This time, an Emergency 

Services representative appeared. Six of the ten Planning Commission members, 

David Tomes, Robert Peterson, Lulu Howard, Jeff Brown, Rich Carlson, and Ruth 

Daniels, were also present. The Planning Commission voted 4-2 that it did not 

have the authority to grant the requested waiver because of the purported safety 

and welfare requirement within the Land Development Code. The present 

members of the Planning Commission acknowledged that the 16-letter requirement 

only applied to public street names but expressed their concern on the record with 

regard to proceeding against the objections of Emergency Services. The Planning 

Commission then voted 6-0 to approve the Minor Plat – on the condition that 

SouthPointe change the name of its main street to an unclaimed name conforming 

with the 16-letter limitation. 

On April 23, 2019, SouthPointe filed case No. 19-CI-002529 in 

Jefferson Circuit Court. This action was assigned to Division Nine. SouthPointe 

brought the following claims: (1) an appeal of the Planning Commission’s 

decision pursuant to KRS 100.347; (2) a claim for declaratory and injunctive relief; 

(3) a negligence claim; (4) a 42 U.S.C. § 1983 claim; and (5) a claim that 

Louisville’s Land Development Code is unconstitutionally vague. SouthPointe 

sued Louisville Metro Government, the Planning Commission, and all of the 
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Planning Commission’s members in their official capacities (collectively referred 

to as “Louisville Metro”), including those who did not attend the April 18, 2019, 

meeting. 

On June 5, 2019, SouthPointe moved for partial summary judgment 

on its KRS 100.347 appeal based upon the administrative record. On July 22, 

2019, SouthPointe appeared at the appointed time for the hearing on its motion for 

partial summary judgment; however, the County Attorney representing Louisville 

Metro did not appear until the trial court summoned him by telephone. The circuit 

court refused to grant Louisville Metro a continuance and, on July 26, 2019, 

granted SouthPointe summary judgment on its KRS 100.347 appeal, ordering 

Louisville Metro to approve the Minor Plat so that construction could move 

forward.

On August 13, 2019, Louisville Metro moved for summary judgment 

on the remaining claims against it, arguing that it was protected from paying 

monetary damages by sovereign immunity. SouthPointe disagreed, arguing that 

the Claims Against Local Government Act (CALGA) contained a statutory waiver 

of immunity, and on August 21, 2019, moved for leave to amend its complaint. 

SouthPointe’s proposed First Amended Complaint sought to name the Planning 

Commission members in their individual capacities as defendants and add six more 

defendants to SouthPointe’s negligence claim, in both their official and individual 
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capacities: Emily Liu, Joe Reverman, and Lacey Gabbard (three advisory-type 

officials with Louisville Metro Planning and Design Services), and Jody Meiman, 

Kelly Jones, and Beth Allen (three advisory officials with Louisville Metro 

Emergency Services). The proposed First Amended Complaint alleged that, 

together, the individual defendants “refused to approve” SouthPointe’s Minor Plat 

because of its 18-character street name and denied the requested waiver. 

SouthPointe alleged that the individual defendants had breached their “duty to 

perform or assist in the performance” of approving the Minor Plat in a timely 

manner and that none of these defendants was immune from liability.

On September 13, 2019, Division Nine denied SouthPointe’s motion 

to amend, explaining that amendment was futile as the claims were destined for 

dismissal:

CR[4] 15.01 states that, “. . . a party may amend his 

pleading only by leave of the court or by written consent 

of the adverse party; and leave shall be freely given when 

justice so requires.” CR 15 makes no reference to postverdict motions other than the language of CR 15.02 

which allows amendments to conform to the evidence. 

This portion of the rule is interpreted in Lawrence v. 

Marks, 355 S.W.2d 162 (Ky. 1961), wherein the Court 

stated that, “The trial court has a broad discretion in 

granting leave to amend, but the discretion is not without 

limitations. In Garrison v. Baltimore & O. R. Co., 

D.C.Pa.1957, 20 F.R.D. 190, the court indicated that 

significant factors to be considered in determining 

 

4 Kentucky Rules of Civil Procedure.
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whether to grant leave to amend are timeliness, excuse 

for delay, and prejudice to the opposite party.”

Defendants assert that, in this case, justice does not 

require leave to amend since SouthPointe has no viable 

negligence or 42 U.S.C. 1983 claims against the 

proposed defendants. They contend that none of the 

seven new defendants voted on the SouthPointe 

development and four Planning Commission Members 

did not even attend the April 18, 2019 meeting. They 

further argue that KRS 100.347 does not provide for 

monetary damages. Defendants cite the case of Robbins 

v. New Cingular Wireless, PSC, LLC, 854 F.3d 315 (6th 

Cir. 2017), in which the unsuccessful litigants in an 

administrative appeal then filed a civil action seeking 

monetary damages alleging negligence, negligence per 

se, gross negligence and nuisance. The Court concluded 

that, “[b]ecause [KRS 100.347] offers plaintiffs an 

adequate and excessive remedy (i.e. appeal to a Kentucky 

court) for grievances related to a planning board’s 

decision, a court must dismiss any collateral attack that 

seeks solely to rehash the same complaints.” 

The Robbins case deals with the dismissal and not 

with the granting of a motion to amend. However, 

recognized limitations upon amendments include 

unreasonable delay and futility of amendment. [Emphasis 

added] Shah v. American Synthetic Rubber Corp., 655 

S.W.2d 489 (Ky. 1983); First National Bank of 

Cincinnati v. Hartman, 747 S.W.2d 614 (Ky. App. 1988). 

Given the arguments of Defendants with regard to the 

propriety of SouthPointe’s claims, the Court finds that 

SouthPointe’s Motion to Amend is not warranted; even if 

permitted there are valid grounds for granting a motion to 

dismiss.

Record on Appeal (“R.”) at 191-92.
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SouthPointe subsequently filed a motion for reconsideration, which 

the circuit court denied on October 7, 2019: 

Plaintiff continues to argue that it may bring its 

tort claims in addition to its request for relief pursuant to 

KRS 100.347. This is simply not the case. Robbins v. 

New Cingular Wireless, PSC, LLC, 854 F.3d 315 (Ky. 

2017) clearly provides that KRS 100.347 is the exclusive 

remedy for one aggrieved by the actions of the Planning 

Commission. The statute does not provide for tort 

damages.

Similarly, Plaintiff once again argues that its 42 

U.S.C. § 1983 claims are not frivolous. As noted in 

Defendant’s Response, “A federal cause of action alleged 

under 42 U.S.C. § 1983 or otherwise, simply does not 

necessarily arise from every wrong which is allegedly 

committed under color of state law. Studen v. Beebe, 588 

F.2d 560 (6th Cir. 1978).” The Studen case also arises 

out of a zoning dispute. Similarly, the case of Kentner v. 

Martin County, 929 F. Supp. 1482 (S.D. Fla. 1996) held 

that the actions of the zoning authorities did not rise to 

the level of a constitutional claim. The delay alleged by 

Plaintiff certainly does not rise to that level.

While Snyder v. Owensboro, 528 S.W.2d 663 (Ky. 

1975) held that approval of a plat is a ministerial act, the 

case is distinguishable. It did not apply to a claim for 

damages against the Planning Commission and the 

application of qualified immunity. The governing law on 

the issue of qualified immunity is set forth in Yanero v. 

Davis, 65 S.W.3d 510 (Ky. 2002), in which the Court 

stated that, “when sued in their individual capacities, 

public officers and employees, enjoy only qualified 

immunity, which affords protection from damages 

liability for good faith judgment calls made in a legally 

uncertain environment. [Citation omitted]. Qualified 

official immunity applies to the negligent performance by 

a public officer or employee of (1) discretionary acts or 
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functions, i.e., those involving the exercise of discretion 

and judgment, or personal deliberation, decision, and 

judgment, [Citation omitted] (2) in good faith; and (3) 

within the scope of the employee’s authority.” Further, 

the Court noted that, “An act is not necessarily 

“discretionary” just because the officer performing it has 

some discretion with respect to the means or methods 

employed.” Conversely, a ministerial action is “one that 

requires only obedience to the orders of others, or when 

the officer’s duty is absolute, certain, and imperative, 

involving merely execution of a specific act arising from 

fixed and designated facts.” As argued by Defendant, the 

officials herein performed a discretionary function when 

they considered and voted upon the plat herein.

The elements of negligence are set forth in 

Pathways, Inc. v. Hammons, 113 S.W.3d 85 (Ky. 2003). 

In order to show negligence a plaintiff must prove (1) 

duty; (2) breach of standard of care; (3) causation; and 

(4) injury. In this case no authority has been cited to the 

Court which holds that officers who did not participate in 

the administrative hearing are responsible to a plaintiff 

aggrieved by a Planning Commission decision. Thus, 

Plaintiff is unable to establish the first element of

negligence.

The Court has no basis to vacate its previous 

Opinion and Order. Justice does not require leave to 

amend where the claims asserted are futile. Such claims 

are futile where, as here, they will be defeated by a 

properly pleaded motion to dismiss. 

R. at 234-36. 

Consequently, on October 15, 2019, SouthPointe filed a second claim, 

case No. 19-CI-006441, against the sixteen Louisville Metro officers and 

employees in their individual capacities, which was assigned to Division Thirteen 
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of the Jefferson Circuit Court. SouthPointe asserted the same negligence and 42 

U.S.C. § 1983 claims for monetary damages as well as a negligence per se claim 

based upon the same events as in its Division Nine suit. SouthPointe 

acknowledged the motion for summary judgment in case No. 19-CI-002529 

pending before Division Nine but asserted that its suit before Division Thirteen 

was the first time that claims were brought against the individual-capacity 

defendants. Louisville Metro filed a motion to consolidate the new Division 

Thirteen case with the original claim pending in Division Nine, which SouthPointe 

did not oppose. 

However, on November 4, 2019, before the claims could be 

consolidated, Division Nine granted Louisville Metro summary judgment on the 

remaining claims:

Metro is entitled to claim sovereign immunity on 

the grounds that no action may be brought against the 

state or a county without consent or waiver. Yanero v. 

Davis, 658 S.W.3d 510 (Ky. 2001). The same immunity 

is granted to consolidated local governments. Jewish 

Hosp. Healthcare Services, Inc. v. Louisville/Jefferson 

Metro Government, 270 S.W.3d 905 (Ky. App. 2008). 

Specifically, immunity has been afforded to Planning 

Commissions. Northern Area Planning Commission v. 

Cloyd, 332 S.W.3d 91 (Ky. App. 2010). Individual 

members are entitled to immunity when sued in their 

official capacities. Schwindel v. Meade County, 113 

S.W.3d 159 (Ky. 2003). Metro also contends that 

pursuant to KRS 100.347 no monetary damages are 

available. The case of Snyder v. Owensboro, 528 S.W.2d 

663 (Ky. 1975) specifically holds that failure to timely 
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consider and approve a minor plat is ministerial in nature. 

KRS 100.281 (1) provides for such approval to occur in 

90 days.

The [CALGA] states that nothing “shall be 

construed to exempt a local government from liability for 

negligence arising out of acts or omissions of its 

employees in carrying out their ministerial duties.” KRS 

65.2003. However, CALGA does not provide for a

waiver of immunity. Schwindel, supra. Such a waiver 

may only be made by the General Assembly. 

Department of Corrections v. Furr, 23 S.W.3d 615 (Ky. 

2000). KRS 100.347 provides the exclusive remedy for 

those aggrieved by actions or inactions of the Planning 

Commission . . . .

The Court finds that the Planning Commission 

and its members are immune. The Schwindel case 

specifically holds that CALGA does not act as a waiver 

of immunity for the tortious performance of ministerial 

acts. The approval of a minor plat is just such a 

ministerial act. Snyder, supra. 

IT IS HEREBY ORDERED AND ADJUDGED 

that Defendant’s motion for partial summary judgment is 

GRANTED on the grounds of sovereign immunity.

R. at 239-41. 

Thereafter, on January 30, 2020, Division Thirteen dismissed 

SouthPointe’s suit, finding that SouthPointe’s claims in the Division Thirteen suit 

arose “from the same common nucleus of operative facts as those in [the case 

before Division Nine], and constitute[d] [SouthPointe’s] attempt to impermissibly 

split its cause of action.” R. at 354-56. 
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On December 2, 2019, SouthPointe filed its notice of appeal in case 

No. 19-CI-002529, and on February 3, 2020, filed its notice of appeal in case No. 

19-CI-006441. The two cases were later consolidated for appellate purposes. 

II. STANDARD OF REVIEW

“[S]ummary judgment is to be cautiously applied and should not be 

used as a substitute for trial” unless “there is no legitimate claim under the law and 

it would be impossible to assert one given the facts.” Steelvest, Inc. v. Scansteel 

Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991); Shelton v. Kentucky Easter Seals 

Soc’y, Inc., 413 S.W.3d 901, 916 (Ky. 2013), as corrected (Nov. 25, 2013). A 

motion for summary judgment should be granted “[o]nly when it appears 

impossible for the nonmoving party to produce evidence at trial warranting a 

judgment in his favor” even when the evidence is viewed in the light most 

favorable to him. Steelvest, 807 S.W.2d at 482; Shelton, 413 S.W.3d at 905. To 

survive a properly supported summary judgment motion, the opposing party must 

have presented “at least some affirmative evidence showing that there is a genuine 

issue of material fact for trial.” Steelvest, 807 S.W.2d at 482; see also Neal v. 

Welker, 426 S.W.2d 476, 479 (Ky. 1968) (“When the moving party has presented 

evidence showing that . . . there is no genuine issue of any material fact, it becomes 

incumbent upon the adverse party to counter that evidentiary showing by some 
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form of evidentiary material reflecting that there is a genuine issue pertaining to a 

material fact.”). 

“The standard of review on appeal of a summary judgment 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.” Scifres 

v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing CR 56.03). Because there 

are no factual findings at issue, the appellate court reviews that trial court’s 

decision de novo. Shelton, 413 S.W.3d at 905. 

Likewise, we review a circuit court’s granting of a motion to dismiss 

de novo. Benningfield v. Pettit Env’t, Inc., 183 S.W.3d 567, 570 (Ky. App. 2005).

A motion to dismiss should only be granted if “it appears 

the pleading party would not be entitled to relief under 

any set of facts which could be proved in support of his 

claim.” Pari-Mutuel Clerks’ Union v. Kentucky Jockey 

Club, 551 S.W.2d 801, 803 (Ky. 1977). When ruling on 

the motion, the allegations in “the pleadings should be 

liberally construed in a light most favorable to the 

plaintiff and all allegations taken in the complaint to be 

true.” Gall v. Scroggy, 725 S.W.2d 867, 868 (Ky. App. 

1987). In making this decision, the trial court is not 

required to make any factual findings. James v. Wilson, 

95 S.W.3d 875, 884 (Ky. App. 2002). Therefore, “the 

question is purely a matter of law.” Id.

Id.

Our standard of review of a denial of leave to amend a complaint is 

whether the circuit court abused its discretion. Kenney v. Hanger Prosthetics & 
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Orthotics, Inc., 269 S.W.3d 866, 869 (Ky. App. 2007). “The test for abuse of 

discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, 

or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 

941, 945 (Ky. 1999) (citations omitted).

III. ANALYSIS

SouthPointe appeals three rulings: (1) Division Nine’s denial of

SouthPointe’s motion for leave to amend its original complaint to add the 

individual-capacity claims; (2) Division Nine’s summary judgment for Louisville 

Metro on sovereign immunity grounds; and (3) Division Thirteen’s dismissal of 

SouthPointe’s individual-capacity claims.

We first address SouthPointe’s contention that Division Nine abused 

its discretion in denying SouthPointe’s motion for leave to amend its complaint. 

More specifically, we must determine whether KRS 100.347 provides an exclusive 

remedy for claimants aggrieved by the final action of a planning commission. For 

the following reasons, we hold that Division Nine did not abuse its discretion in 

denying SouthPointe’s motion for leave to amend its complaint to include the 

seventeen individual-capacity defendants. 

KRS 100.347(2) provides:

Any person or entity claiming to be injured or aggrieved 

by any final action of the planning commission shall 

appeal from the final action to the Circuit Court of the 

county in which the property, which is the subject of the 
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commission’s action, lies. Such appeal shall be taken 

within thirty (30) days after such action. Such action 

shall not include the commission’s recommendations 

made to other governmental bodies. All final actions 

which have not been appealed within thirty (30) days 

shall not be subject to judicial review. Provided, 

however, any appeal of a planning commission action 

granting or denying a variance or conditional use permit 

authorized by KRS 100.203(5) shall be taken pursuant to 

this subsection. In such case, the thirty (30) day period 

for taking an appeal begins to run at the time the 

legislative body grants or denies the map amendment for 

the same development. The planning commission shall 

be a party in any such appeal filed in the Circuit Court.

SouthPointe maintains that “[w]hile these officials’ failure to perform 

a discretionary act may only give rise to a KRS 100.347 appeal, their failure to 

timely perform the ministerial act of approving the Minor Plat gives rise to both a 

KRS 100.347 appeal and tort claims.” Appellant’s Brief (“Br.”) at 12 (emphasis in 

original). SouthPointe provides no supporting authority for the creative contention 

that KRS 100.347 distinguishes between ministerial and discretionary acts, and we 

decline to assume that undertaking. 

SouthPointe is correct that the Planning Commission members’

approval of a minor plat is a ministerial duty. “Yanero v. Davis, 65 S.W.3d 510 

(Ky. 2001), provides the framework for deciding whether a public officer or 

employee is afforded immunity from tort liability.” Ritchie v. Turner, 559 S.W.3d 

822, 831 (Ky. 2018). “[W]hen sued in their individual capacities, public officers 

and employees enjoy only qualified official immunity, which affords protection 
-19-

from damages liability for good faith judgment calls made in a legally uncertain 

environment.” Yanero, 65 S.W.3d at 521. Under Yanero, “an officer or employee 

is afforded no immunity from tort liability for the negligent performance of a 

ministerial act, i.e., one that requires only obedience to the orders of others, or 

when the officer’s duty is absolute, certain, and imperative, involving merely 

execution of a specific act arising from fixed and designated facts.” Id. at 522. As 

explained by Snyder, 528 S.W.2d 663, it is black letter law that the approval of a 

minor plat like that of SouthPointe is a ministerial duty. Id. at 664 (“[T]he 

approval of subdivision plats is a ministerial act. That our statute so intends is 

made obvious by the provision of KRS 100.281 that the planning commission may 

delegate to its secretary or any other officer or employee the power to approve 

plats.”). 

However, SouthPointe’s reliance on Yanero for support in its 

proposition that an official’s failure to timely perform the ministerial act of 

approving a minor plat gives rise to both a KRS 100.347 appeal and tort claims is 

misplaced. In Yanero, the Kentucky Supreme Court held that a coach’s duty to 

supervise students during school-sponsored activities “was a ministerial, rather 

than a discretionary, function in that it involved only the enforcement of a known 

rule requiring that student athletes wear batting helmets during baseball batting 

practice.” Yanero, 65 S.W.3d at 529. The Yanero plaintiffs brought a variety of 
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tort claims for the failed performance of that ministerial duty; they did not bring a 

statutory claim, nor was one available to them as an exclusive remedy. See id. at 

517. Yanero does not address claims brought under Kentucky statutory law; 

therefore, the distinction between whether a statute precludes additional common 

law claims lies elsewhere. 

Under Kentucky law, “[w]here the statute both declares the unlawful 

action and specifies the civil remedy available to the aggrieved party, the aggrieved 

party is limited to the remedy provided by the statute.” Waugh v. Parker, 584 

S.W.3d 748, 753 (Ky. 2019) (citing Grzyb v. Evans, 700 S.W.3d 399, 304 (Ky. 

1985)) (other internal citations omitted); see also Hill v. Kentucky Lottery Corp., 

327 S.W.3d 412, 421 (Ky. 2010); Mendez v. University of Kentucky Board of 

Trustees, 357 S.W.3d 534, 545 (Ky. App. 2011). Likewise, under federal law, 

“where . . . ‘a statute expressly provides a remedy, courts must be especially 

reluctant to provide additional remedies.’” Sandoz Inc. v. Amgen Inc., 137 S. Ct. 

1664, 1675 (2017) (quoting Karahalios v. Federal Employees, 489 U.S. 527, 533 

(1989)).

Here, KRS 100.347 provides for a remedy, just not the remedial or 

monetary damages SouthPointe desires. Because KRS 100.347 “offers plaintiffs

an adequate and exclusive remedy (i.e., appeal to a Kentucky court) for grievances 

related to a planning board’s decision, a court must dismiss any collateral attack 
-21-

that seeks solely to rehash the same complaints.” Robbins, 854 F.3d at 321; 

Warren County Citizens for Managed Growth, Inc. v. Board of Comm’rs, 207 

S.W.3d 7, 17 (Ky. App. 2006) (citations omitted) (“Because [KRS 100.347] 

affords an adequate remedy, a separate declaratory judgment action is not 

appropriate.”).

With regard to whether a plaintiff may bring claims under KRS 

100.347 and common law to address the same alleged wrong done by a planning 

commission, we find Robbins v. New Cingular Wireless PCS, LLC, supra, to be 

persuasive.5 In that case, several Kentucky residents brought an action in state 

court against AT&T, the holder of a permit authorizing the construction of a 

cellphone tower near the residents’ homes. Id. at 318. The residents challenged 

the planning commission’s decision to grant the permit under KRS 100.347 in state 

circuit court. Id. Before the circuit court could dismiss the appeal, the residents 

filed a second, separate lawsuit against AT&T asserting claims for negligence, 

negligence per se, gross negligence, and nuisance.6 Id. at 318. The plaintiffs’ tort 

claims were dismissed for failure to state a claim, in part because the claims were 

barred by state law. Id. at 318-19. On appeal, the Robbins plaintiffs alleged that 

 

5 State courts are not bound by the decisions of lower federal courts; “[r]ather, the approach 

taken by federal courts may be viewed as persuasive but it is not binding.” U.S., ex rel. U.S. 

Attorneys ex rel. Eastern, Western Districts of Kentucky v. Kentucky Bar Ass’n, 439 S.W.3d 136, 

147 (Ky. 2014).

6 New Cingular removed the case to federal court based on diversity jurisdiction. Id. 
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their “tort claims amount to more than a second shot at appealing the 

Commission’s decision because they allege harms independent” of the 

Commission’s decision and that because KRS 100.347 “authorizes a court to 

review planning decisions, but not ‘property damages and common law tort 

damages due to an incompatible land use,’ their tort claims do not attack the 

Commission’s decision.” Id. at 322. The Sixth Circuit dismissed both arguments 

because the Robbins plaintiffs could not show that “their harms [arose] from 

anything other than the Commission’s decision.” Robbins, 854 F.3d at 321.

SouthPointe attempts to distinguish Robbins from the present case by 

arguing that, unlike the Robbins plaintiffs who lost on their KRS 100.347 appeal, 

SouthPointe won its appeal. SouthPointe argues that the Robbins plaintiffs 

impermissibly “attempted to use tort claims to collaterally attack the planning 

commission’s discretionary approval of the tower permit.” Appellant’s Br. at 13 

(Robbins, 854 F.3d at 318, 320-22). Indeed, the procedural histories of these two 

cases are different; however, ultimately, the fact that SouthPointe prevailed on its 

KRS 100.347 appeal is irrelevant because it is not the issue of collateral attack that 

bars SouthPointe’s tort and 42 U.S.C. § 1983 claims. Rather, the question of 

whether a plaintiff like SouthPointe is permitted to bring additional claims hinges

on whether a Kentucky statute provides both the unlawful action and the remedy. 

KRS 100.347 does. Like the Robbins plaintiffs, SouthPointe has not shown that its 
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harms arise from anything other than a planning commission decision and is 

therefore limited to its statutory action pursuant to KRS 100.347. See Greater 

Cincinnati Marine Service, Inc. v. City of Ludlow, 602 S.W.2d 427 (Ky. 1980) 

(holding that claims which are broader in scope than implicated within the context 

of a zoning appeal may be brought by a separate complaint). 

Consequently, SouthPointe’s proposed amendments to its complaint 

including the additional individual-capacity defendants are futile. “Although 

amendments should be freely allowed, the trial court has wide discretion and may 

consider such factors as the failure to cure deficiencies by amendment or the 

futility of the amendment itself.” First Nat’l Bank of Cincinnati v. Hartman, 747 

S.W.2d 614, 616 (Ky. App. 1988). “The decision to grant or deny leave to amend 

[a complaint] is ultimately left to the discretion of the trial court, which will not be 

disturbed absent an abuse of that discretion.” Nami Res. Co., L.L.C. v. Asher Land 

and Min., Ltd., 554 S.W.3d 323, 343 (Ky. 2018) (quoting Kenney, 269 S.W.3d at

869-70). Division Nine denied SouthPointe’s motion for leave to amend its 

complaint, recognizing that there are “limitations upon amendments including 

unreasonable delay and futility of amendment.” R. at 192. SouthPointe moved to 

amend its complaint for the sole purpose of pursuing its tort and 42 U.S.C. § 1983 
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claims – in context of this case no amendment could have made those claims 

viable in light of the exclusive remedy offered by KRS 100.347.7

Next, we address the issue of whether Division Nine erred in granting 

summary judgment on SouthPointe’s damages claims in favor of Metro and its 

official-capacity defendants on sovereign immunity grounds. While this argument 

is ultimately moot because of the exclusive remedy provided by KRS 100.347, we 

wish to provide a brief clarification regarding Louisville Metro and the Planning 

Commission’s immunity.

“Louisville Metro is a government entity” entitled to sovereign 

immunity. Louisville/Jefferson County Metro Gov’t v. Cowan, 508 S.W.3d 107, 

109 (Ky. App. 2016); see Lexington-Fayette Urban County Gov’t v. Smolcic, 142 

S.W.3d 128, 132 (Ky. 2004) (“[U]rban county governments constitute a new 

classification of county government . . . entitled to sovereign immunity”). “A 

consolidated local government shall be accorded the same sovereign immunity 

granted counties, their agencies, officers, and employees.” KRS 67C.101(2)(e). 

“Sovereign immunity affords the state absolute immunity from suit and ‘extends to 

public officials sued in their representative (official) capacities, when the state is 

the real party against which relief in such cases is sought.’” Cowan, 508 S.W.3d at 

 

7 For the same reason, SouthPointe’s damage claims against Louisville Metro and the officialcapacity defendants are precluded by KRS 100.347.
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109 (quoting Yanero, 65 S.W.3d at 517-18). A waiver of sovereign immunity may 

only be made by the General Assembly. Furr, 23 S.W.3d at 616. 

SouthPointe contends that CALGA, codified by KRS 65.200, et seq., 

waives Louisville Metro’s sovereign immunity. Specifically, SouthPointe relies 

upon KRS 65.2003, which states: 

Notwithstanding KRS 65.2001, a local government shall 

not be liable for injuries or losses resulting from:

(1) Any claim by an employee of the local government 

which is covered by the Kentucky workers’

compensation law;

(2) Any claim in connection with the assessment or 

collection of taxes;

(3) Any claim arising from the exercise of judicial, quasijudicial, legislative or quasi-legislative authority or 

others, exercise of judgment or discretion vested in the 

local government, which shall include by example, but 

not be limited to:

(a) The adoption or failure to adopt any ordinance, 

resolution, order, regulation, or rule;

(b) The failure to enforce any law;

(c) The issuance, denial, suspension, revocation of, 

or failure or refusal to issue, deny, suspend or 

revoke any permit, license, certificate, approval, 

order or similar authorization;

(d) The exercise of discretion when in the face of 

competing demands, the local government 

determines whether and how to utilize or apply 

existing resources; or
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(e) Failure to make an inspection.

Nothing contained in this subsection shall be construed 

to exempt a local government from liability for 

negligence arising out of acts or omissions of its 

employees in carrying out their ministerial duties.

(Emphasis added.)

According to SouthPointe, the final line of KRS 65.2003 functions as 

a waiver of Louisville Metro’s immunity. However, our Supreme Court previously 

addressed SouthPointe’s very argument and rejected it in Schwindel v. Meade 

County, 113 S.W.3d 159 (Ky. 2003). Our Supreme Court explained that “[p]er 

KRS 65.200(3), CALGA applies not only to counties but also to municipalities and 

taxing districts,” although, significantly, those entities enjoy different degrees of 

immunity. Id. at 164. According to the Schwindel Court:

Obviously, the General Assembly knew the difference 

between a section and a subsection and intended the last 

sentence of KRS 65.2003 (section 18 of the Act) to 

pertain only to subsection (3), which pertains only to 

municipalities which, as noted supra, are not immune 

from vicarious liability for the tortious performance of 

ministerial duties by [their] employees.

Schwindel, 113 S.W.3d at 166.

In other words, the section upon which SouthPointe mistakenly relies 

as waiving Louisville Metro’s immunity applies only to municipalities, not local 

governments and government entities. As previously mentioned, Louisville Metro 
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is a government entity, not a municipality, and has therefore not waived its 

immunity for damages suits.

8

Finally, we address whether Division Thirteen erred in holding that 

SouthPointe impermissibly split its claims. After a review of the record and 

applicable case law, we agree with the circuit court’s dismissal of SouthPointe’s 

second claim, case No. 19-CI-006441. Regardless of SouthPointe’s motivation for 

filing a second lawsuit against the individual defendants, SouthPointe may not split 

its causes of action stemming from the same nucleus of operative fact.

SouthPointe cites to Coomer v. CSX Transp. Inc., 319 S.W.3d 366, 

370 (Ky. 2010), for its contention that it may bring separate claims against the 

individual-capacity defendants. According to Coomer, for litigation to be barred 

by claim splitting, a form of claim preclusion, three elements must be present: (1) 

identity of the parties; (2) identity of the causes of action; and (3) final resolution 

on the merits. Id. at 371. However, SouthPointe fails to acknowledge the Coomer 

Court’s explanation that claim preclusion and claim splitting, although “closely 

related,” are actually separate rules. Id. According to our Supreme Court: 

 

8 Similarly, Kentucky law affords planning commissions governmental immunity. Cloyd, 332 

S.W.3d at 96. “‘[G]overnmental immunity’ is the public policy, derived from the traditional 

doctrine of sovereign immunity, that limits imposition of tort liability on a government agency.” 

Yanero, 65 S.W.3d at 519 (quoting 57 AM. JUR. 2D, Municipal, County, School and State Tort 

Liability, § 10 (2001)). Accordingly, planning commissions “can be sued for damages for the 

tortious performance of a proprietary function but not a governmental function.” Schwindel, 113 

S.W.3d at 168.
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The rule [against claim splitting], “found in Restatement 

(Second) of Judgments, §§ 24 and 26, is an equitable 

rule, limiting all causes of action arising out of a single 

‘transaction’ to a single procedure.” It rests upon the 

concept that “parties are required to bring forward their 

whole case” and may not try it piecemeal. Therefore, it 

“applies not only to the points upon which the court was 

required by the parties to form an opinion and pronounce 

judgment, but to every point which properly belonged to 

the subject of litigation, and which the parties, exercising 

reasonable diligence, might have brought forward at the 

time.” 

“The key inquiry in deciding whether the lawsuits 

concern the same controversy is whether they both arise 

from the same transactional nucleus of facts.”

Id. (citations omitted).9

 

9 The Coomer Court recognized that claim splitting is subject to a number of exceptions, none of 

which has been argued by SouthPointe. The exceptions in full are:

(a) The parties have agreed in terms or in effect that the plaintiff 

may split his claim, or the defendant has acquiesced therein; or

(b) The court in the first action has expressly reserved the 

plaintiff’s right to maintain the second action; or

(c) The plaintiff was unable to rely on a certain theory of the case 

or to seek a certain remedy or form of relief in the first action 

because of the limitations on the subject matter jurisdiction of the 

courts or restrictions on their authority to entertain multiple 

theories or demands for multiple remedies or forms of relief in a 

single action, and the plaintiff desires in the second action to rely 

on that theory or to seek that remedy or form of relief; or

(d) The judgment in the first action was plainly inconsistent with 

the fair and equitable implementation of a statutory or 

constitutional scheme, or it is the sense of the scheme that the 

plaintiff should be permitted to split his claim; or
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It is under this equitable rule that SouthPointe’s claim before Division 

Thirteen fails. SouthPointe has never disputed that its claim arose from the same 

“transaction.” Id. Accordingly, under Kentucky law, SouthPointe was required to 

bring its claim against the various defendants in a single lawsuit rather than 

piecemeal. 

IV. CONCLUSION

For the foregoing reasons, we affirm the judgments of both Division 

Nine and Division Thirteen of the Jefferson Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Christopher W. Brooker

Louisville, Kentucky 

BRIEF FOR APPELLEES:

John F. Carroll

Travis J. Fiechter

Louisville, Kentucky

 

(e) For reasons of substantive policy in a case involving a 

continuing or recurrent wrong, the plaintiff is given an option to 

sue once for the total harm, both past and prospective, or to sue 

from time to time for the damages incurred to the date of suit, and 

chooses the latter course; or

(f) It is clearly and convincingly shown that the policies favoring 

preclusion of a second action are overcome for an extraordinary 

reason, such as the apparent invalidity of a continuing restraint or 

condition having a vital relation to personal liberty or the failure of 

the prior litigation to yield a coherent disposition of the 

controversy.

RESTATEMENT (SECOND) OF JUDGMENTS § 26 (1982). SouthPointe has not relied upon any of 

these exceptions, and so our analysis stops here.