RENDERED: NOVEMBER 2, 2017 

TO BE PUBLISHED 

~upmut ~foud nf ~1FtMNJ ~ l 

2015-SC-000265-DG 

KEN ISAACS AND 

ANNETTA CORNETT 

v. 

ON REVIEW FROM COURT OF APPEALS 

CASE NO. ~013-CA-001188-MR 

SCOTT CIRCUIT COURT NO. 12-CI-00538 

JEFF CALDWELL, GREG HAMPrON, JANET 

HOLLAND, ROB JONES, JIMMY 

RICHARDSON, JOHN SHIRLEY, MELISSA 

WAITE, FRANK WISEMAN, HORACE WYNN, 

GEORGETOWN-SCOTT COUNTY PLANNING 

COMMISSION MEMBERS; TOWN AND 

COUNTRY BANK; AND JOHN TACKETT 

OPINION OF THE COURT BY JUSTICE VENTERS 

AFFIRMING 

APPELLANTS 

APPELLEES 

Appellants, Ken Isaacs and Annetta Cornett, appeal from a decision of 

the Court of Appeals which affirmed the order of the Scott Circuit Court 

disrnissing their appeal of a Georgetown-Scott County Planning Commission 

(Planning Commission) decision. The Planning Commission had approved a 

plat amendment requested by developer John Tackett to remove a planned, but 

as yet unconstructed, lake from the development plan applicable to Appellants' 
subdivisfon. Appellants sought judicial review of the Commission's action by 

filing an appeal in the Scott Circuit Cqurt. 

The circuit court dismissed the appeal after concluding that it lacked 

jurisdiction over the matter because Appellants had not properly commenced 

their action within the applicable statutory time period. The Court of Appeals 

affirmed the circuit court's order of dismissal. We granted discretionary review. 

For the reasons stated below, we affirm-the Court of Appeals. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

Appellants are property owners in Harbor Village Subdivision in Scott 

County, Kentucky. On June 14, 2012, the Planning Commission approved the 

~ 

application of Harbor Village's.developer, John Tackett, to amend the 

subdivision development. plat so that he. could eliminate a proposed lake 

featured on the current development plat. Appellants opposed the amendment 

of the plat upon the grounds that they had purchased their property in the 

subdivision relying upon the enhanced aesthetic and economic value that 

would be provided by the lake. Town and Country Bank (the Bank) owns the 

property upon which the lake was to be situated and is therefore a necessary 

party to the appeal. KRS 100.347(4) states: "The owner of the subject property 

and applicants who initiated the proceeding shall be made parties to the 

appeal." 

2 
Appellants had until July 16, 2012, to appeal the Commission's decision 

by initiating an action for judicial review in the circuit court.I <?n that 

afternoon shortly before clC?sing time, in the office of the Scott Circuit Court 

. . 

Clerk, Appellants' counsel filed a pleading titled, "Appeal from Decisions of 

Scott County Planning Commission" (the Appeal), naming in the caption as 

"Defendants/ Appellees," Tackett, the Bank, and the Planning Commission and 

its individual members.2 

Tackett and the Planning Commission had executed a waiver of formal 

service of process, which Appellants' counsel filed along with the appeal. The 

Bank, however, had not waived service of process and so Appellants presented 

the circuit clerk's office with a summons form for the Bank. The summons 

form correctly styled the case with the names of the parties, but lt did not 

indicate the name and address of the Bank's agent for service of process, and it 

\ 

did not provide the Bank's street address. 

Consistent with his customary practice, Appellants' counsel requested 

the deputy clerk on duty to formally issue the summons and return it to him so 

that he could arrange to have it served, either by delivering the summons 

1 KRS 100.347(2) requires that the appeal be filed within thirty days; however, 

the thirtieth day, July 14, 2012, was a Saturday. By operation of CR 6.01 the filing 

deadline then became MoJ:?.day, July 16, 2012. 

2 The Appellants named as parties to the appeal the Planning Commission itself 

and all of its members in their official capacities. The members named are Jeff · 

Caldwell, John Shirley, Jimmy Richardson, Melissa Waite, Greg Hampton, Frank 

Wiseman, Janet Holland, Horace Wynn and Rob Jones. The Planning Commission 

and its members are referred to collectively as "the Planning Commission." 

3 
himself or having it done by the sheriff or an authorized constable.a That plan 

went awry when the deputy clerk refused to issue the summons without having 

· the Bank'.s address and Sel"\Tice of process information added to it. Counsel did 

not have that information with him, although it was available at his office, 

which was a short walking-distance away. 

Although he disagreed with the deputy clerk's interpretation of her duty 

regarding the need to fill in the Bank's address before issuing the summons, 

rather than retrieving the .information at his office while the clerk waited, 

possibly past the clerk's office's usual closing time, the attorney left the clerk's 

office with the summons unissued. He walked to the office of the Bank's 

attorney to hand-deliver a copy of the Appeal, hoping to secure the Bank's 

waiver of service of process~ The office of the Bank's attorney had already 

closed for the day. Consequently, the Appeal was filed in the final fe\Y minutes 

of the limitations period·, but the summons for the Bank was not issued by the 

clerk. 

The next day, one day after the filing deadline, counsel returned to the 

~lerk's office where a different deputy clerk issued the summons for the Bank 

as originally tendered by counsel, without .the Bank's address or its registered 

agent information. Pursuant to counsel's directive, the clerk returned the 

3 Our reference to this fact should not be construed as our conclusion that the 

plaintiffs attorney is authorized to personally serve the summons issued to commence 

a civil action. Unlike the service of a subpoena in an existing action, we are aware of 

no rule or statute that allows for in-state service of the initial process, the summons, 

by an attorney. See KRS 454.140; KRS 454.145; KRS 70.050; CR 4.01; and CR 4.04. 

4 
summons form to counsel as provided by CR 4.0l(c). Counsel again visited the 

Bank's attorney hoping to have him either accept service of process on behalf of 

I 

the Bank or waive service of process. The Bank declined. 

About three weeks later, Tackett moved for dismissal of the action, 

asserting that the_ circuit court lacked jurisdiction over the case because the 

Bank, a statutorily-required party, had not been properly included in the 

action within the applicable limitations period. Appellants' counsel had 

retained a constable to serv~ the summons on the Bank. ·The constable 

proceeded to attempt service of the summons and the initial pleading (~he 

Appeal) by handing it to a Bank teller who was not the Bank's registered agent 

for service of process.4 

The Bank then entered a special appearance to challenge the circuit 

court's jurisdiction to proceed in the absence of valid service on the Bank. 

After an evidentiary hearing on the motions of the Bank and Tackett to 

dismiss, the circuit court concluded that it lacked jurisdiction because 

Appellants had not strictly complied with the provisions of KRS 100.347 by 

taking their appeal within the statutorily-allotted time period. 

Central to the circuit court's analysis was its application of Civil Rule 

3.01, which states: "A civil action is commenced by the filing of a complaint 

with the court and the issuance of a summons or warning order thereon in 

4 Whether this constituted proper service of the summons on the Bank is not an 

issue before us in this case. There is in the record before us no indication that the 

Bank was ever served by any other means. 

5 
good faith." The circuit court reasoned that the action was not timely 

commenced because, although the Appeal was filed within the allotted time 

period, counsel's failure to diligently effectuate service of the summons on the 

Bank, an indispensable party, established that the B_ank's summons was not 

issued in good faith. Consequently, the. court determined, the action was not 

commenced before expiration of the statutory limitations period, leaving the 

court without jurisdiction to grant relief to Appellants. A divided Court of 

Appeals affirmed the circuit court's decision. 

II. ANALYSIS 

We begin our analysis with the general rules applicable to judicial review 

of administrative agency actions, including local planning commissions. In 

American Beauty Homes Corporation v. Louisville and Jefferson County Planning 

and Zoning Commission, our predecessor Court recognized an "inherent right of 

appeal from orders of administrative agencies where constitutional rights are 

involved, and section (2) of the [Kentucky] Constitution prohibits the exercise of 

arbitrary power." 379 S.W.2d 450, 456 (Ky. 1964) (internal citations and 

footnote omitted). The Court further noted that judicial review for 

"arbitrariness" induded (1) administrative actions in excess of granted powers, 

(2) ·failure of the agency to provide procedural due process, and (3) the absence 

of substantial evidentiary support for agency findings. Id. 

Subject to those constitutional constraints, we acknowledge the 

authority of the General Assembly to prescribe by statute the procedures for 

seeking and securing judicial review of an administrative ruling. Out of 

6 
deference to that authority, we require strict compliance with the statutory 

procedures. Triad Development/ Alta Glyne, Inc. v. Gellhaus, 150 S.W.3d 43, 47 

(Ky. 2004) ("[W]hen the right of appeal [from an administrative agency's ruling] 

... is codified as a statutory procedure, as it is in KRS 100.347, then the 

parties are required to strictly follow those procedures.~). Based upon these 

principles, to obtain judicial review of the Planning Commission's approval of 

Tackett's proposed plat amendment, Appellants had to strictly comply with all 

relevant statutory requirements for bringing its action in the circuit court. 

KRS 100.347(2) provides that anyone claiming to be injured or aggrieved 

by a final action of a planning commission may take an appeal of that action in 

the circuit court of the ~ounty in which the affected property lies. The statute 

requires that "such appeal shall be taken within thirty (30) days after such 

action." (Emphasis added.) The statute further directs: "All final actions which 

have not been appealed within thirty (30) days shall not be subject to judicial 

review." 

To determine whether Appellants strictly complied with the time 

limitations provided in KRS 100.347(2), we must parse what is meant by the 

phrase "such appeal shall be taken." KRS 23A.010(4) provides that ~[t]he 

Circuit Court may be authorized by law to review the actions or decisions.of 

ad~inistrative agencies, special districts or boards. Such review shall not 

constitute an appeal but an original action." (Emphasis added.) We construe 

that language as a legislative directive that the judicial review of administrative 

actions shall be governed by the same procedural rules of the courts applicable 

7 
to original actions. The judicial review authorized by KRS 100.347(2) falls 

squarely within that mandate. 

In Transportation Cabinet, Department of Highways v. City of 

Campbellsville, 740 S.W.2d 162, 164 (Ky. App. 1987), the Court of Appeals 

.recognized that "[a]n appeal to the circuit court from an order of an 

administrative agency is not a true appeal but rather an original action." It 

logically follo~s that the procedural steps required to "take" an appeal from an 

administrative agency action are precisely the same steps required to 

commence any other original action in the circuit court. The. rules that 

determine when a civil action commences, therefore, determine when an appeal 

of an administrative action has been taken. 

CR 3.01 provides that "[a] civil action is commenced by the filing of a 

complaint with the court and the issuance of a summons or .warning order 

thereon in good faith." Similarly, KRS 413.250 provides that "[a civil] action 

shall be deemed to commence on the date of the first summons or process 

issued in good faith from the court having jurisdiction of the cause of action." 

Furthermore, "[i]f the action is commenced by the filing of the petition .and the 

issuance of summons, and only one time period is specified, it must follow that 

both actions [that is, the filing of the petition or other initial pleading and the 

' 

issuance of the summons] must be taken within the period of time provided in 

the statute." Metro Medical Imaging, LLC v. Commonwealth, 173 S.W.3d 916, 

918 (Ky. App. 2005). · 

8 
. I 

CR 4.01(1) provides that "[u]pon the filing of the complaint (or other 

initiating document) the clerk shall forthwith issue the required summons and, 

at the direction of the initiating party, either [(a) ... (b) ... or] (c) At the request_ 

of the initiating party, return the summons and [the initiating document] with 

necessary copies, to thaf party for service." (Emphasis added.) 

The record plainly establishes that Appellants' counsel filed the Appeal 

before the expiration of the time prescribed by KRS 100.347(2) and that he 

simultaneously tendered a summons form which the clerk refused to issue 

"forthwith." Counsel for Appellants (the "initiating party") exercised the 

prerogative contained' in CR 4.0l(l)(c) and directed the clerk to return the 

issued summons to him so that he could arrange for its service. By choosing 

that option, counsel assumed the responsibility for the service of the summons 

by whatever means he could arrange. The lack of an address for service on the 

. Bank afforded the clerk no justification for refusing to issue the summons 

"forthwith." Nothing in the civil rules or statutes governing the initiation of a 

civil action in circuit court permits the clerk to withhold issuance of the 

summons simply because the defendant's addre~s is not stated thereon. 

\ 

Accordingly, the instructional guide prepared for circuit clerks by the 

Administrative .Office of the Courts, Kentucky Circuit Court Clerks' Manual . 

(Manual), Section 18.1, states "The Clerk is required under CR 4.01(1) to issue 

a summons immediately upon the filing of the complaint or petition." 

(Emphasis added.) Nothing in the Manual directs or authorizes the clerk to 

withhold issuance of the summons pending receipt of a defendant's address. 

9 
"[I]t is the official duty of the clerk to issue the summons in accordance with 

law, and it is not incumbent upon the plaintiff to see that he issues it in 

accordance with law." Nanny v. Smith, 260 S.W.3d 815, 817 (Ky. 2008) 

(quoting Louisville & N.R. Co. v. Smith's Adm'r, 9 S.W. 493, 495 (Ky. 1888)). 

Appellants rely upon Nanny to support their contention that the 

imperfections attending the filing of their appeal in the circuit court should not 

be fatal to their effort to secure judicial review of the Planning Commission's 

decision. We agree that Nanny provides equitable principles that mitigate sonie 

of the procedural problems they face; but it does not entirely solve Appellants' 

problem. 

In Nanny, acting without the help of a lawyer and with the applicable 

statute of limitations closing in, the plaintiff (Nanny) presented her complaint 

to the clerk, leaving it with the expectation that the clerk would prepare and 

issue the summons to be served upon tl:te defendant as set forth in CR 

4.0l(l)(a). However, the clerk's office did not immediately file the complaint 

and issue the summons. Instead, the clerk's office set aside Nanny's papers 

and left them unattended for two days, and then the clerk finally filed the 

complaint and issued the summons. By that time, however, the statute of 

limitations had expired. The circuit court dismissed the complrunt as 

untimely; the Court of Appeals affirmed the dismissal. 

On discretionar.Y review, we recognized that Nanny had complied with the 

rules for the filing of her complaint, and "should not be punished for the clerk's 

failure to promptly perform official duties mandated by statute and court rule." 

10 
Accordingly, we applied the equitable principle of "deeming done what.should 

have been done per CR 4.01." 260 S~W.3d at 818 (citing Robertson v. 

Commonwealth, 177 S.W.3d 789 (Ky. 2005) (holding that equitable tolling is 

appropriate in circumstances that are beyond the party's control when the 

party has exercised due diligence and is clearly prejudiced)). "It is an ancient 

but enduring principle that equity regards as done that which ought to have 

been done." Johnson v. Potter, 433 S.W.2d 358, 362 (Ky. 1968). 

We have no hesitation in concluding that the summons to be served on 

the Bank should have been issued by the clerk and returned to Appellants' 

counsel when the Appeal was filed in the waning moments of the applicable 

lim~tations period. Appellants' counsel had done all that was required by law 

to secure the issuance of the summons, and he did nothing to cause the delay. 

"There is no reason why that which was intended and ought to have been done 

then should not now be considered as having been done." Id. 

The application of this principle in these circumstances does no violence 

to our policy of strict compliance with the legislative mandate for judicial review 

of administrative agency actions. As previously noted herein, KRS 23A.010(4) 

directs that judicial_ review of administrative agency actions or deci~ions 

constitute "original action[s]" in the circuit court. Equitable principles 

applicable to original civil actions are equally applicable to original actions 

seeking judicial review of a planning commission action. Therefore, we regard 

the summons for the Bank to have been issued contemporaneously with the 

filing of the Appeal before the expiration of the time limitation. 

11 
The timely issuance of the summons, however, does not mean that 

Appellants' action commenced within the statutory limitation period. CR 3.01 

requires not simply "the issuance of the summons;" it requires "the issuance of 

the summons in good faith." (Emphasis added.) The good faith essential for 

the commencement of the action has long been construed to require a 

contemporaneous intention on the part of the initiating party to diligently 

attend to the service of the summons. Our predecessor Court explained in 

Louisville & N.R. Co. v. Little: 

All the authorities are to the effect that the cause of action is not 

commenced until there is a bona fide intention to have the 

summons filled out and signed by the clerk, accompanied by bona 

fide, unequivocal intention to have it served or proceeded on 

presently or in due course or without abandonment. Action and 

intention combined constitutes the commencement of the suit, 

because a summons filled out and signed with no intention of having 

it served is altogether inoperative. . . . But a summons simply filled 

up and lying in the office of an attorney would not constitute an 

issuing of the summons as provided for in the [applicable statute]. 

95 S.W.2d 293, 255 (Ky. 1936) (internal citations omitted, emphasis added). 

"The issuance of a summons does not commence an action unless 

accompanied by an intent that the summons be served in due course." 

Whittinghill v. Smith, 562 S.W.2d 649, 650 (Ky. App. 1977). Similarly, "[t]he 

rule seems to be firmly established in this jurisdiction that in the absence of a 

showing of a valid excuse for the delay, a summons issued by the clerk and 

delivered to the plaintiff or his attorney is not deemed to have been issued in 

good faith until it is given to the sheriff or other proper officer to be served." 

Wooton v. Begley, 305 S.W.2d 270, 271 (Ky. 1957). 

12 
We disagree with the dissent's view that good faith was demonstrated 

because Appellants' counsel "personally tried to serve the summons shortly 

after the deputy circuit court clerk issued it."5 Rather than securing the 

service of process, counsel's effort was devoted toward getting the Bank to 

waive the service of the summons. We do not equate the effort to secure the 

waiver of service with a good faith effort to have the summons served. Instead 

of acting diligently with a substantial effort to secure service of the summons 

upon the Bank, Appellants' counsel made only a modest attempt in a different 

direction to obtain a waiver of service, which the Bank declined to provide. 

Thereafter, counsel apparently did nothing to effectuate service for three weeks, 

and then Tackett moved to dismiss the case. The final effort at serving the 

summons was the employment of the constable, who left the summons and the 

initial pleading with a teller at one of the Bank's Scott County brariches, thus 

prompting the Bank's special appearance and motion to dismiss for improper 

service of process, the propriety of which is not before this Court and upon 

which we express no opinion. 

Appellants have the burden of demonstrating a bona fide, unequivocal 

', 

intention to have the summons served on the B~nk, presently or in due course 

after the filing of the Appeal, and without abandonment. A summons form, 

filled out and signed, but with no present intention of having it served is 

5 As previously noted, we do not suggest that our rules or statutes authorize the 

in-state service of the summons by the attorney who filed the complaint. See footnote 

3. 

13 
altogether inoperative. Little, 95 S.W.2d 253; Wooton, 305 S.W.2d 270; Gibson 

v. EP!Corporation, 940 S.W.2d 912 (Ky. App. 1997). The delay in service of the 

summons was explained only by counsel's preference to obtain the Bank's 

waiver of service of process. The trial court considered all the foregoing events 

and determined that ~Appellant[s] failed to issue a summons in good faith 

when [counsel] made no diligent effort to hire a servicer, or to personally serve 

[the Bank] until August of 2012," more than three weeks after the expiration of 

the time for commencing the action. The trial court's finding of fact on this 

issue is supported by substantial evidence and so is binding in our review. CR 

52.01. 

Appel~ants direct our attention to Rucker's Adm'r v. Roadway Express, 

Inc., 131 S.W.2d 840 (Ky. 1939), which holds that an action may be 

commenced in good faith even if the attorney does not immediately serve the 

summons on: a party so long as the delay under the circumstances is not 

sufficiently lengthy to negate good faith. I:n Rucker's Adm'r, our predecessor 

Court held that a delay of six weeks in serving a party could show neglige~ce, 

but not necessarily bad faith, depending upon the reason for the delay. During 

this interval, the attorney was attempting to determine the proper agent to 

serve, his wife was ill for three weeks, and the summons was misfiled, 

requiring him to obtain another one. The Court explained that the attorney's 

actions likely amounted to negligence, but that "the circumstances shown in 

this particular case are not such as to negate a lack of good faith at the time 

14 
the summons was 'issued ·or to indicate abandonment of intention to have it· 

executed in due course." Id. at 843. 

The circumstances that confronted the trial court in this case are 

distinguishable from Rucker's Adm'r, where the delay resulted from the 

confluence of several extraordinary events. No similar factors were presented 

here. After failing in his attempt to get the Bank to waive service of process, 

counsel did nothing to advance the service upon the Bank for three weeks, 

when he engaged the constable shortly before the Bank moved for dismissal. 

In stark contrast to Rucker's Adm'r, Appellants offer no compelling explanation 

for the delay other than counsel's preference for securing a waiver of service of 

process. 

We agree with the circuit court and the Court of Appeals that the 

Appellants have failed to comply with the "good faith" element in the issuance 

of the summons. Consequently, we cannot regard the action as having been 

commenced before the expiration of the time allotted by KRS 100.347(2). , . . 

III. CONCLUSION 

For the foregoing reasons, the decision of the Court of Appeals is 

affirmed. 

All sitting. Minton, C.J.; Hughes, Keller, and VanMeter, JJ., concur. 

Wright, J., concurs in part and dissents in part by separate opinion in which 

Cunningham, J., joins. 

WRIGHT, J., CONCURRING IN PART AND DISSENTING IN PART: I 

concur with the majority's excellent analysis and determination that "we regard 

15 
the ~ummons for the Bank to have been issued contemporaneously with the 

filing of the appeal before the expiration of the time limitation.". The majority 

correctly states that good faith requires the party tC?. diligently attend to the 

'· 

service of the summons. However, I disagree that Appellants failed to comply 

with the "good faith" element. In holding otherwise, both lower courts and the 

majority all consider the wrong time period. Therefore, I dissent in part. 

CR 3.01 requires "the issuance of a summons ... in good faith." In 

order to determine whether the summons was issued in good faith, we must 

examine the circumstances and the actions of Appellants' attorney, Mr. 

Higdon. Higdon had contacted two of the Appellees and.obtained waivers of 

service from them prior to filing the complaint. The deputy circuit court clerk 

who filed the action improperly refused to issue the summons for the Bank, the 

only remaining party. Unable to obtain a summons from the clerk, Higdon 

personally carried the complaint to the ~ffices of the Bank's local counsel. 

Unfortunately, the office was closed. Improperly denied a summons by the 

deputy circuit court clerk, Higdon tried to obtain a waiver of service before the 

expiration of time in which to file the case. 

The next day (a day after the period for filing the case had expired), 

Higdon returned to the circuit court clerk's office and a different deputy clerk 

issued the summons. I agree with the majority that the deputy clerk 

improperly refused to issue the summons when the appeal was filed .. 

Therefore, equitable.tolling would require that the summons be considered as 

16 
issued contemporaneously with the filing of the appeal-just as the majority 

holds. 

Higdon was unable to take any action to serve the summons until the 

deputy clerk actually issued it the day after Higdon filed the appeal. The trial 

court found that: 

Mr. Higdon testified that he sought to retain the summons so he . 

could serve it himself or via the constable for a smaller fee than the 

sheriffs office. Mr. Higdon then testified he attempted to serve the 

summons to Mr. Lankford (on behalf of Town and Country Bank) 

at his office only once. On that occasfon the door was locked. Mr. 

Higdon never again attempted formal service on [Town] and 

Country Bank until he retained Constable Bobby Townsend, who 

successfully served Town and Country Bank on August 10, 2012. 

The trial court found that Higdon, personally tried to serve the summons on 

the Bank after the summons was issued. The summons was issued in good 

faith since Higdon personally tried to serve the summons shortly after the 

deputy circuit court clerk issued it. The question that now confronts us is 

whether Higdon's delay in taking additional steps constitutes an abandonment 

of good-faith intent to serve the summons. 

Since the trial court found that Mr. Higdon did attempt to serve the 

summons, the question before the court was whether he abandoned good-faith 

service due to the delay between his attempt to serve the summons and 

' 

·retaining the constable to serve the summons. The trial court found that 

Higdon retained Constable Bobby Townsend to serve the summons and·based 

it's ruling on when the constable served the Bank. on August 10, 2012. The 

trial court's order was erroneously based on the court's determination that 

"Appellant failed to issue a summons in good faith .... " The trial court based 

17 
it's ruling on the August 10 date of service, which occurred, as the majority 

points out, more than three weeks after issuance of.the summons. The trial 

court should not have used this August 10 date in its evaluation of whether 

Higdon abandoned the good-faith effort to serve the summons. Rather, the 

trial court should have considered that Higdon made an additional effort 

between the issuance and the service of the summons. 

As previously noted, Higdon attempted to serve the summons personally. 

When that failed, he eventually gave up on either obtaining. a waiver of service 

or personally serving the_ Bank and retained Constable Bobby Townsend .. 

Delivery of the summons to the constable for servi~e demonstrates a 

continuing good-faith effort at service. Therefore, the· period of time the court 

should have considered in determining whether there was a continuing goodfaith effort is the time bet'Ween Higdon's attempt at personal service and his 

delivery of the summons to the constable. 

This ruling caused confusion in the Court of Appeals, as demonstrated in 

that court's majority opinion whiCh stated "[t]wo days after receiving Tackett's 

motion to dismiss, Appellants' attorney retained a constable to serve the 

summons on the Bank." In .actuality, Higdon retained the constable to serve 

the summons four days prior to the filing of Tacketfs motion to dismiss. The 

Court of Appeals' majority opinion also stated "[i]n addition, counsel waited for 

three more weeks to. retain a constable to ·effect service on the Bank, and even 

then, only in response to Tackett's motion to dismiss." This misunderstanding 

18 
of the sequence of events and time periods involved is repeated throughout the 

Court of Appeals' majority and concurring opinions. 

The delay in this case is less than the delay allowed in Rucker's Adm'r v. 

Roadway Express, Inc., 131 S.W.2d 840. In the Rucker's case, there was a 

delay of six weeks between issuance of the summons and service. The excuse 

presented by the attorney in that case was that his wife, was in the hospital for 

three weeks, and then he misfiled the summons, and had to obtain anpther. 

Even if we deduct the three weeks the attorney's wife was in the hospital and 

allow a day for the re-issuance of the summons, the attorney in that case still 

had a 20-day delay. Our predecessor court held that delay was insufficient to 

demonstrate abandonment of good-faith intent to serve the summons. In the 

current case, the date between the issuance of the summons and Higdon giving 

it to the constable for service was 1 7 days ot less. Is that -delay so egregious 

that we will abandon the precedent set in Rucker's and bar the parties from 

having their case resolved on its merits? 

In another case, Title Ins. & Tr. Co. v. City of Paducah, 275 Ky. 392 

· (1938), this Court's predecessor held that because the summonses in question 

were delivered to the sheriffs office, the suit was commenced in good faith. It 

had no bearing on the court's decision that the sheriff did not serve all of the 

summonses. The mere fact that they were conveyed to the 'sheriffs office was 

enough to substantiate good faith. The same should hold true here. Once 

Appellants conveyed the Bank's summons to the constable, they were acting in 

good faith. 

19 
The timeline is extremely important in determining good faith in this 

case. Higdon took the following actions demonstrating his good faith: he 

obtained waivers of service from two of the parties prior to filing the complaint; 

when the deputy circuit court clerk refused to issue the summons, Higdon 

attempted to deliver the appeal to the Bank's attorney seeki;ng waiver of service; 

after a different deputy circuit court clerk issued the summons, Higdon 

attempted to personally serve the summons; he held the summons for less 

than 17 days in hopes of personally serving it or obtaining a waiver of service; 

and Higdon retained a constable to serve the summons. Then, four days after 

Higdon's retention of the constable, Tackett filed a motion to dismiss. Finally, 

three days later, the constable served the summons. 

In conclusion, the question before the Court is whether Appellants 

abandoned good-faith service of the summons. The time period that must be 

considered in resolving this question is that between Higdon's attempt to 

personally serve the summons and his delivery of the summons to the 

constable for service. The trial court erroneously based its ruling upon the 

. time period between filing of the appeal and service of the summons-as do 

both the Court of Appeals and the majority opinion of this Court. Therefore, 

the Court of Appeals' opinion should be reversed and the matter remanded to 

I 

the trial court to determine whether there was abandonment of good faith to 

serve the summons betwe~n Higdon's attempt to serve the summons and 

delivery of the summons to the constable for service. 

Cunningham, J., joins. 

20 
COUNSEL FOR APPELLANTS KEN ISAACS AND ANNETA CORNETT: 

W. Henry Graddy IV 

Dorothy Thomps Rush 

W.H. Graddy & Associates 

Randal Alan Strabo 

Strabo Barkley, PLLC 

COUNSEL FOR APPELLEES JEFF CALDWELL; GREG HAMPTON; JANET 

HOLLAND; ROB JONES; JIMMY RICHARDSON; JOHN SHIRLEY; MELISSA 

WAITE; FRANK WISEMAN; AND HORACE WYNN, MEMBERS OF 

GEORGETOWN-SCOTT COUNTY PLANNING COMMISSION: 

Charle·s Perkins 

209 East Main Street 

Georgetown, KY 40324 

COUNSEL FOR APPELLEE TOWN AND COUNTRY BANK: 

R. Bruce Lankford 

Lankford & Lankford 

COUNSEL FOR APPELLEE JOHN TACKETT: 

Harold F .. Simms 

112 North Court Street 

Georgetown, KY .40324 

21