RENDERED: JULY 28, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1071-MR

NATHAN TORIAN, INDIVIDUALLY, 

AND AS A REPRESENTATIVE OF A 

CLASS OF SIMILARLY SITUATED 

PERSONS COMPRISING THE 

UNINCORPORATED LABOR 

ORGANIZATION, THE 

INTERNATIONAL ASSOCIATION 

OF FIRE FIGHTERS, LOCAL 168 APPELLANT 

v. 

APPEAL FROM MCCRACKEN CIRCUIT COURT

HONORABLE WILLIAM ANTHONY KITCHEN, JUDGE

ACTION NO. 21-CI-00490

CITY OF PADUCAH, KY; CAROL C. 

GAULT, IN HER OFFICIAL 

CAPACITY AS CITY 

COMMISSIONER; DAVID GUESS, IN 

HIS OFFICIAL CAPACITY AS CITY 

COMMISSIONER; GEORGE P. 

BRAY, IN HIS OFFICIAL CAPACITY 

AS MAYOR, PADUCAH, KY; 

PADUCAH CITY COMMISSION; 

RAYNARLDO HENDERSON, IN HIS 

OFFICIAL CAPACITY AS CITY 

COMMISSIONER; SANDRA 

WILSON, IN HER OFFICIAL 

CAPACITY AS CITY 

COMMISSIONER AND MAYOR 

PRO-TEM; AND STEVE KYLE, IN 
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HIS OFFICIAL CAPACITY AS FIRE 

CHIEF APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; GOODWINE AND TAYLOR, 

JUDGES.

THOMPSON, CHIEF JUDGE: Nathan Torian, individually, and as a 

representative of a class of similarly situated persons comprising the 

unincorporated labor organization, the International Association of Fire Fighters, 

Local 168 (“Appellant”), appeals from an order of the McCracken Circuit Court 

granting summary judgment in favor of City of Paducah, et al. (“Appellees”). 

Appellant argues that the circuit court erred in failing to conclude that Kentucky 

Revised Statutes (“KRS”) 311A.027(1) preempts a local ordinance requiring 

Paducah firefighters to live in McCracken County or within 45 minutes of Station 

4. After careful review, we find no error and affirm the order on appeal.

FACTS AND PROCEDURAL HISTORY

Paducah Ordinance §2-304 (“the ordinance”) requires that as a 

condition of their employment, all members of the City of Paducah fire department 

hired after October 1, 1998, shall reside within McCracken County or within 45

minutes of Station 4 as measured by a recognized mapping program. Appellant is 
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a City of Paducah firefighter and representative of the International Association of 

Fire Fighters, Local 168. 

On July 2, 2021, Appellant filed the instant action in McCracken 

Circuit Court against Appellees, i.e., the City of Paducah, the Mayor, various 

Commissioners, and the Fire Chief, seeking a declaration of rights and an 

injunction barring enforcement of the ordinance. Specifically, Appellant asserted 

that KRS 311A.027(1), which provides that no “emergency medical service first 

response provider” may have an employee residency requirement, preempts the 

ordinance establishing a residency requirement for Paducah fire department 

employees. Appellant argued that City of Paducah firefighters qualify as 

employees of an emergency medical service first response provider because the 

firefighters are required to be certified and/or licensed by the Kentucky Board of 

Emergency Medical Services as emergency medical services personnel. Being so 

qualified, Appellant argued that KRS 311A.027(1) preempts the ordinance.

The matter proceeded in McCracken Circuit Court, and Appellees 

filed a motion for summary judgment on September 10, 2021. On August 22, 

2022, the McCracken Circuit Court entered an order granting Appellees’ motion. 

In support of the order, the circuit court determined that KRS Chapter 311A, titled

“Emergency Medical Services,” deals entirely – and exclusively – with emergency 

medical services. The court found that City of Paducah firefighters are not 
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emergency medical services personnel subject to KRS Chapter 311A. Rather, the 

court determined that City of Paducah firefighters’ primary role is fighting fires, 

with any medical training or certification being ancillary to their primary duties. 

The court went on to find that the statutory requirements governing fire 

departments and firefighters are found exclusively in KRS Chapter 95, titled “City 

Police and Fire Departments.” This Chapter, the court found, contains no 

prohibition against residency requirements for police officers or firefighters. The 

court rejected Appellant’s argument that City of Paducah firefighters fall within the 

class of persons subject to KRS Chapter 311A, and sustained Appellees’ motion 

for summary judgment. This appeal followed.

STANDARD OF REVIEW

Summary judgment “shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, stipulations, and admissions on file, 

together with the affidavits, of 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 Rules of Civil Procedure (“CR”) 56.03. “The record must be 

viewed 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 Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary 

judgment should be granted only if it appears impossible that the nonmoving party 
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will be able to produce evidence at trial warranting a judgment in his favor. Id. 

“Even though a trial court may believe the party opposing the motion may not 

succeed at trial, it should not render a summary judgment if there is any issue of 

material fact.” Id. Finally, “[t]he 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).

ARGUMENTS AND ANALYSIS

Appellant now argues that the McCracken Circuit Court erred in 

granting Appellees’ motion for summary judgment. While acknowledging that the 

phrase “publicly funded emergency medical service first response provider” is not 

defined in KRS Chapter 311A, Appellant asserts that the Paducah Fire Department 

is such a provider because every Paducah firefighter is required to have some level 

of medical training and/or certification. Since, in his view, the Paducah Fire 

Department is subject to KRS 311A.027(1) as a medical service first response 

provider, it follows that the statute’s language barring residency requirements 

preempts the residency requirements for firefighters set out in the ordinance. 

Appellant argues that the circuit court improperly interpreted KRS 311A.027(1) by 

implicitly adding limiting language not found in the statute. Instead, Appellant 

contends that the court should have interpreted the statutory language on its plain 
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terms, and found that the Paducah Fire Department is a medical service first 

response provider subject to the terms of KRS Chapter 311A. Appellant requests 

an opinion reversing the order on appeal and remanding the matter for further 

proceedings.

KRS 311.027 states, 

(1) No public agency, tax district, or other publicly 

funded emergency medical service first response 

provider or licensed ambulance service shall have a 

residence requirement for an employee of or volunteer 

for the organization.

(2) The provisions of subsection (1) of this section shall 

not preclude an employer or agency specified in 

subsection (1) of this section from having a requirement 

for response to a specified location within a specified 

time limit for an employee or volunteer who is off duty 

but who is on call to respond for work.

The first question for our consideration is whether the McCracken 

Circuit Court properly determined that the Paducah Fire Department is not a 

“public agency, tax district, or other publicly funded emergency medical service 

first response provider or licensed ambulance service[.]” Id. The parties agree that 

the Paducah Fire Department is not a public agency, tax district, or licensed 

ambulance service. As to whether the Paducah Fire Department is a “publicly 

funded emergency medical service response provider,” we find persuasive the 

circuit court’s reasoning that the primary duty of Paducah firefighters is not 

emergency medical service, but rather fighting fires. This conclusion is supported 
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by the record. While testimony was adduced that many runs made by Paducah 

firefighters involve automobile accidents or other incidents involving personal

injury, and though Paducah firefighters have some level of medical training or 

certification in addition to their firefighting training, the record supports the circuit 

court’s conclusion that the Paducah Fire Department is a firefighting department 

and not a medical service response provider per KRSA 311A.027(1). This 

conclusion is bolstered by the Legislature’s enactment of KRS Chapter 95, titled 

“City Police and Fire Departments,” which contains no prohibition against 

residency requirements for fire departments.

The second issue raised by Appellant is whether Paducah firefighters 

are “on call to respond for work” within the meaning of KRS 311A.027(2). As 

noted above, this subsection provides that the prohibition against residency 

requirements for employees or volunteers of an emergency medical service does 

not apply to employees or volunteers who are on call to respond to work while off 

duty. Appellant argues that Paducah firefighters are not on call to respond to work 

while off duty; therefore, they are not persons excluded from KRS 311A.027(1) by 

subsection (2).

In its order granting summary judgment, the McCracken Circuit Court

expressly determined that it would not consider this issue because the Paducah Fire 

Department was not subject to the provisions of KRS 311A.027(1). “The Court of 
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Appeals is without authority to review issues not raised in or decided by the trial 

court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989)

(citations omitted). Though the issue of Paducah firefighters’ on call status was 

raised and extensively argued below, but the circuit court did not decide this issue

because it was rendered moot when the court found that Paducah firefighters were 

not subject to KRS 311A.027(1). Per Tackett, this leaves us nothing to review on 

this issue.

Lastly, Appellant argues that the circuit court erred in allowing 

Appellees to amend their Answer after the summary judgment motion was briefed. 

Appellant contends that this amendment occurred too late in the proceedings and 

constituted an abuse of discretion.

CR 15.01 states, 

A party may amend his pleading once as a matter of 

course at any time before a responsive pleading is served 

or, if the pleading is one to which no responsive pleading 

is permitted and the action has not been placed upon the 

trial calendar, he may so amend it at any time within 20 

days after it is served. Otherwise a party may amend his 

pleading only by leave of court or by written consent of 

the adverse party; and leave shall be freely given when 

justice so requires. 

“The trial court has a broad discretion in granting leave to amend, but the 

discretion is not without limitations.” Lawrence v. Marks, 355 S.W.2d 162, 164 

(Ky. 1961). The party seeking amendment must act in good faith and the court 
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should consider the motion’s “timeliness, excuse for delay, and prejudice to the 

oppos[ing] party.” Id. Discretion allows a court “to make a decision – of its

choosing – that falls within a range of permissible decisions.” Miller v. Eldridge, 

146 S.W.3d 909, 915 (Ky. 2004) (internal quotation marks, footnote, and citation

omitted) (emphasis in original). An abuse of discretion occurs if the trial court’s 

ruling is “arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). 

The order granting Appellees’ motion to amend their Answer was 

entered on January 26, 2022. Subsequent pleadings filed by both parties centered 

on the question of whether the Amended Answer withdrew Appellees’ prior 

alleged judicial admission that Paducah firefighters were subject to voluntary,

rather than mandatory, call backs per KRS 311A.027(2). Having determined that 

the application of KRS 311A.027(2) is moot, we conclude that the McCracken 

Circuit Court did not abuse its discretion in granting leave to file an Amended 

Answer. In other words, while the Amended Answer may have raised a new issue 

on the question of call backs, that issue became moot when the circuit court later 

determined that KRS 311A.027(1) did not apply to Paducah firefighters. The 

filing of the Amended Answer did not prejudice Appellant. We find no basis for 
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concluding that the McCracken Circuit Court abused its discretion in granting 

leave to file an Amended Answer, and thus no error.1

CONCLUSION

When viewing the record in a light most favorable to Appellant and 

resolving all doubts in his favor, Steelvest, Inc., supra, we conclude that the trial 

court correctly found that there were no genuine issues as to any material fact and 

that Appellees were entitled to judgment as a matter of law. Scifres, supra. For 

these reasons, we affirm the order of the McCracken Circuit Court.

GOODWINE, JUDGE, CONCURS.

TAYLOR, JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANT:

Peter J. Jannace 

Louisville, Kentucky

BRIEF FOR APPELLEE:

Stacey A. Blankenship

Kristen N. Worak

Paducah, Kentucky

1 Appellant also seeks to rebut an argument raised by Appellees before the circuit court, to wit, 

that Appellant’s interpretation of KRS 311A.027(1) would lead to an absurd result. This 

argument was not addressed by the McCracken Circuit Court in its order granting summary 

judgment.