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2015-SC-000265-DG

KEN ISAACS AND ANNETTA CORNETT



## v. ON REVIEW FROM COURT OFAPPEALS 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 ofAppeals which affirmed the order ofthe Scott Circuit Court disrnissing their appeal ofa Georgetown-Scott County Planning Commission (Planning Commission) decision. The Planning Commission had approved a plat amendmentrequested by developerJohn Tackettto remove a planned, but
asyetunconstructed, lake from the developmentplan applicable to Appellants'subdivisfon. Appellants soughtjudicial review ofthe 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 ofAppeals affirmed the circuit court's order ofdismissal. We granted discretionary review. For the reasons stated below, we affirm-the Court ofAppeals. 

### I. FACTUAL AND PROCEDURAL BACKGROUND Appellants are property owners in HarborVillage Subdivision in Scott County, Kentucky. OnJune 14, 2012, the Planning Commission approved the**~** application ofHarborVillage'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 ofthe plat upon the grounds that they had purchased their property in the subdivision relyingupon 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 ofthe subject property and applicants who initiated the proceeding shall be made parties to the appeal."

2Appellantshad until July 16, 2012, to appeal the Commission's decision byinitiating an action forjudicial review in the circuit court.I <?n that afternoon shortly before clC?sing time, in the office ofthe Scott Circuit Court

. . Clerk, Appellants' counsel filed a pleadingtitled, "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 offormal service ofprocess, which Appellants' counsel filed along with the appeal. The Bank, however, had notwaived service ofprocess 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 ofthe parties, but 

### ltdid not indicate the name and address ofthe Bank's agent for service ofprocess, and it \ did not provide theBank's street address. Consistentwith his customarypractice, 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, eitherby delivering the summons

1 KRS 100.347(2) requires thatthe appealbe filed within thirty days; however, the thirtieth day, July 14, 2012, was a Saturday. By operation ofCR 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 ofits members in their official capacities. The members named are Jeff · Caldwell, John Shirley, Jimmy Richardson, MelissaWaite, Greg Hampton, Frank Wiseman, JanetHolland, Horace Wynn and Rob Jones. The Planning Commission and its members are referred to collectively as "the Planning Commission." 3himselfor having it done by the sheriffor an authorized constable.a That plan went awry when the deputy clerkrefused to issue the summons without having

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

nothave that information with him, although itwas available at his office, which was a shortwalking-distance away. Although he disagreed with the deputy clerk's interpretation ofher 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 clerkwaited, possibly pastthe clerk's office's usual closing time, the attorney left the clerk's office with the summons unissued. He walked to the office ofthe Bank's attorney to hand-deliver a copy ofthe Appeal, hoping to secure the Bank's waiver ofservice of**process~** The office ofthe Bank's attorney had already closed for the day. Consequently, the Appeal was filed in the final fe\Y minutes ofthe limitations period·, butthe summons for the Bankwas 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 clerkissued the summons for the Bank
as originally tendered by counsel, without.the Bank's address orits registered agent information. Pursuantto counsel's directive, the clerkreturned the

3 Ourreference to this fact should not be construed as our conclusion thatthe plaintiffs attorneyis authorized to personally serve the summons issued to commence a civil action. Unlike the service ofa subpoenain an existing action, we are aware of no rule or statute that allows for in-state service ofthe initialprocess, the summons, by an attorney. See KRS 454.140; KRS 454.145; KRS 70.050; CR4.01; and CR4.04.

4summons form to counsel as provided by CR 4.0l(c). Counsel again visited the Bank's attorney hoping to have him either accept service ofprocess on behalfof I the Bank orwaive service ofprocess. The Bank declined. About three weeks later, Tackett moved for dismissal ofthe action, asserting that the_ circuit courtlackedjurisdiction over the case because the Bank, a statutorily-required party, had not been properlyincluded 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 ofthe summons and the initial pleading**(~he** Appeal) by handing it to a Bank teller who was not the Bank's registered agent for service ofprocess.4 The Bank then entered a special appearance to challenge the circuit court'sjurisdiction to proceed in the absence ofvalid service on the Bank. After an evidentiary hearing on the motions ofthe Bank and Tackett to dismiss, the circuit court concluded that it lackedjurisdiction because Appellants had not strictly complied with the provisions ofKRS 100.347 by taking their appeal within the statutorily-allotted time period. Central to the circuit court's analysis was its application ofCivil Rule 3.01, which states: "A civil action is commenced by the filing ofa complaint with the court and the issuance ofa summons orwarning order thereon in

4 Whether this constitutedproper service ofthe summons on the Bankis not an issue before us inthis case. There is inthe recordbefore us no indication thatthe Bankwas ever servedby any other means.5good faith." The circuit courtreasoned 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 ofthe 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 ofthe statutory limitations period, leaving the courtwithoutjurisdiction to grantreliefto Appellants. A divided Court of Appeals affirmed the circuit court's decision.
II. ANALYSIS We begin our analysis with the general rules applicable tojudicial review ofadministrative agency actions, including local planning commissions. In 

### AmericanBeautyHomes Corporation v. Louisville andJefferson County Planning andZoning Commission, our predecessor Courtrecognized an "inherentright of appeal from orders ofadministrative agencies where constitutional rights are involved, and section (2) ofthe [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 thatjudicial review for "arbitrariness" induded (1) administrative actions in excess ofgranted powers, (2) ·failure ofthe agency to provide procedural due process, and (3) the absence ofsubstantial evidentiary support for agency findings. Id. Subject to those constitutional constraints, we acknowledge the authority ofthe General Assembly to prescribe by statute the procedures for seeking and securingjudicialreview ofan administrative ruling. Out of 6deference 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 ofappeal [from an administrative agency's ruling]

... is codified as a statutoryprocedure, as it is in KRS 100.347, then the parties are required to strictlyfollow those**procedures.~).** Based upon these principles, to obtainjudicial review ofthe Planning Commission's approval of Tackett's proposed plat amendment, Appellants had to strictly complywith all relevant statutory requirements for bringingits action in the circuit court. KRS 100.347(2) provides that anyone claimingto be injured or aggrieved by a final action ofa planning commission may take an appeal ofthat action in the circuit court ofthe**~ounty** in which the affected property lies. The statute requires that 

### "such appealshall be takenwithin 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 tojudicial review." To determine whetherAppellants 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 shallnot constitute an appeal butan original action." (Emphasis added.) We construe that language as a legislative directive that thejudicialreview ofadministrative actions shall be governed by the same procedural rules ofthe courts applicable 7to original actions. Thejudicialreview 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 ofAppeals .recognized that "[a]n appeal to the circuit court from an order ofan 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 ofan administrative action has been taken. CR 3.01 provides that "[a] civil action is commenced by the filing ofa complaintwith the court and the issuance ofa 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 ofthe first summons orprocess issued in good faith from the court havingjurisdiction ofthe cause ofaction." Furthermore, "[i]fthe action is commenced by the filing ofthe petition.and the issuance ofsummons, and only one time period is specified, it must follow that both actions [thatis, the

### filing ofthe petition or otherinitial pleading and the

' 

### issuance ofthe summons] must be taken within the period oftime provided in the statute." 

### Metro Medical Imaging, LLC v. Commonwealth, 173 S.W.3d 916, 918 (Ky. App. 2005). ·

8. I
CR4.01(1) provides that "[u]pon the filing ofthe complaint (or other initiating document) the clerk 

### shall forthwith issue the required summons and, atthe direction ofthe initiatingparty, either [(a)
... (b)
... or] (c) At the request_ ofthe initiatingparty, return the summons and [the initiating document] with necessary copies, to thafparty for service." (Emphasis added.) The record plainly establishes thatAppellants' counsel filed the Appeal before the expiration ofthe 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 "initiatingparty") 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 ofthe summons bywhatever means he could arrange. The lack ofan address for service on the



## . Bank afforded the clerk nojustification for refusing to issue the summons "forthwith." Nothing in the civil rules or statutes governing the initiation ofa civil action in circuit courtpermits the clerkto withhold issuance ofthe
summons simply because the defendant's**addre~s** is not stated thereon.

\ Accordingly, the instructional guide prepared for circuit clerks by the Administrative.Office ofthe Courts, Kentucky Circuit Court Clerks' Manual
. (Manual), Section 18.1, states "The Clerk is required under CR 4.01(1) to issue
a summons 

### immediatelyupon the filing ofthe complaint or petition." (Emphasis added.) Nothing in the Manual directs or authorizes the clerk to withhold issuance ofthe summons pending receipt ofa defendant's address.
9"[I]t is the official duty ofthe clerk to issue the summons in accordance with law, and itis not incumbentupon the plaintiffto see that he issues itin accordance with law." Nanny v. Smith, 260 S.W.3d 815, 817 (Ky. 2008) (quoting Louisville & N.R. Co. v. Smith'sAdm'r, 9 S.W. 493, 495 (Ky. 1888)). Appellants rely upon Nannyto supporttheir contention that the imperfections attending the filing oftheir appeal in the circuit court should not be fatal to their effort to securejudicialreview ofthe Planning Commission's decision. We agree that Nannyprovides equitable principles that mitigate sonie ofthe procedural problems they face; but it does not entirely solve Appellants' problem. In Nanny, actingwithout the help ofa lawyer and with the applicable statute oflimitations closing in, the plaintiff (Nanny) presented her complaint to the clerk, leaving itwith the expectation that the clerkwould 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 immediatelyfile 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 ofAppeals affirmed the dismissal. On discretionar.Y review, we recognized that Nanny had complied with the rules for the filing ofher complaint, and "should not be punished for the clerk's failure to promptly perform official duties mandated by statute and court rule." 10Accordingly, 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 enduringprinciple that equityregards as done thatwhich 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 ofthe applicable**lim~tations** period. Appellants' counsel had done all that was required by law to secure the 

### issuanceofthe summons, and he did nothing to cause the delay. "There is no reason why thatwhich was intended and ought to have been done then should not now be considered as having been done." Id. The application ofthis principle in these circumstances does no violence to our policy ofstrict compliance with the legislative mandate forjudicialreview ofadministrative agency actions. As previously noted herein, KRS 23A.010(4) directs thatjudicial_review ofadministrative 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 seekingjudicialreview ofa planning commission action. Therefore, we regard the summons for the Bank to have been issued contemporaneouslywith the filing ofthe Appeal before the expiration ofthe time limitation. 11The timely 

### issuance ofthe summons, however, does not mean that Appellants' action 

### commencedwithin the statutory limitation period. CR 3.01 requires not simply "the issuance ofthe summons;" itrequires "the issuanceof the summons 

### in goodfaith." (Emphasis added.) The good faith essential for the commencement ofthe action has longbeen construed to require a contemporaneous intention on the part ofthe initiating partyto diligently attend to the service ofthe summons. Our predecessor Court explained in 

### Louisville & 

### N.R. Co. 

### v. Little: All the authorities are to the effect that the cause ofaction 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 orproceeded on presently orin due course orwithout abandonment. Action and intention combined constitutes the commencement of thesuit, because a summons filled outand signedwithno intention ofhaving it served is 

### altogether inoperative.
. . . Buta summons simply filled up and lying in the office of an attorney would not constitute an issuing of the summons asprovided for in the [applicable statute]. 95 S.W.2d 293, 255 (Ky. 1936) (internal citations omitted, emphasis added). "The issuance ofa 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 thisjurisdiction that in the absence ofa showing ofa valid excuse for the delay, a summons issued by the clerkand delivered to the plaintiffor his attorney is not deemed to have beenissued in good faith until it is given to the sheriffor other proper officer to be served." 

### Wooton v. Begley, 305 S.W.2d 270, 271 (Ky. 1957). 12We 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 ofprocess, counsel's effort was devoted toward getting the Bankto waive the service ofthe summons. We do not equate the effort to secure the waiver ofservice with a good faith effort to have the summons served. Instead ofacting diligently with a substantial effort to secure service ofthe summons upon the Bank, Appellants' counsel made only a modest attempt in a different direction to obtain a waiver ofservice, 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 ofthe constable, who left the summons and the initial pleadingwith a teller at one ofthe Bank's Scott County brariches, thus prompting the Bank's special appearance and motion to dismiss for improper service ofprocess, the propriety ofwhich is not before this Court and upon which we express no opinion. Appellants have the burden ofdemonstrating a bona fide, unequivocal ', intention to have the summons served on the**B~nk,** presently or indue course after the filing ofthe Appeal, and without abandonment. A summons form, filled out and signed, butwith no presentintention ofhaving it served is

5 As previouslynoted, we do not suggest that ourrules or statutes authorize the in-state service ofthe summons bythe attorneywho filed the complaint. See footnote 3. 13altogether 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 ofthe
summons was explained only by counsel's preference to obtain the Bank's waiver ofservice ofprocess. 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 of2012," more than three weeks after the expiration of the time for commencing the action. The trial court's finding offact on this issue is supported by substantial evidence and so is bindingin our review. CR 52.01.**Appel~ants** direct our attention to 

### Rucker'sAdm'rv. RoadwayExpress, Inc., 131 S.W.2d 840 (Ky. 1939), which holds that an action may be commenced in good faith even ifthe attorney does not immediately serve the
summons on: a party so long as the delayunder the circumstances is not sufficiently lengthy to negate good faith. I:n 

### Rucker'sAdm'r, ourpredecessor Courtheld that a delay ofsixweeks in serving a party could show**neglige~ce,** but not necessarilybad faith, dependingupon the reason for the delay. During this interval, the attorneywas 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, butthat "the circumstances shown in this particular case are not such as to negate a lack ofgood faith at the time

14the summons was 'issued·or to indicate abandonment ofintention to have it· executed in due course." Id. at 843. The circumstances that confronted the trial courtin this case are distinguishable from 

### Rucker'sAdm'r, where the delay resulted from the confluence ofseveral extraordinary events. No similar factors were presented here. After failing in his attempt to get the Bankto waive service ofprocess, counsel did nothing to advance the service upon the Bankfor three weeks, when he engaged the constable shortlybefore the Bankmoved for dismissal. In stark contrast to 

### Rucker'sAdm'r, Appellants offer no compelling explanation for the delay other than counsel's preference for securing a waiver ofservice of process. We agree with the circuit court and the Court ofAppeals that the Appellants have failed to complywith the "good faith" elementin the issuance ofthe summons. Consequently, we cannotregard the action as having been commenced before the expiration ofthe time allotted by KRS 100.347(2).

, . . III. CONCLUSION For the foregoing reasons, the decision ofthe Court ofAppeals is affirmed. All sitting. Minton, C.J.; Hughes, Keller, and VanMeter, JJ., concur. Wright, J., concurs in part and dissents inpartby separate opinion in which Cunningham, J.,joins. WRIGHT, J., CONCURRING IN PART AND DISSENTING IN PART: I
concurwith the majority's excellent analysis and determination that "we regard 

### 15the**~ummons** for the Bankto have been issued contemporaneouslywith the filing ofthe appeal before the expiration ofthe time limitation.". The majority correctly states that good faith requires the party tC?. diligently attend to the

'· service ofthe summons. However, I disagree thatAppellants 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 ofa summons ... in good faith." In orderto determine whether the summons was issued in good faith, we must examine the circumstances and the actions ofAppellants' attorney, Mr. Higdon. Higdon had contacted two ofthe Appellees and.obtained waivers of service from them prior to filing the complaint. The deputy circuit courtclerk who filed the action improperlyrefused to issue the summons for the Bank, the onlyremaining party. Unable to obtain a summons from the clerk, Higdon personally carried the complaintto the**~ffices** ofthe 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 ofservice before the expiration oftime 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 improperlyrefused to issue the summons when the appeal was filed
.. Therefore, equitable.tollingwould require that the summons be considered as

16issued contemporaneouslywith the filing ofthe appeal-just as the majority holds.Higdon was unable to take any action to servethe summons until the deputy clerk actually issued itthe 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 himselforvia the constable for a smaller fee than the sheriffs office. Mr. Higdon then testified he attempted to serve the summons to Mr. Lankford (on behalfofTown 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 Bankuntil he retained Constable BobbyTownsend, 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 ofgood-faith intent to serve the summons. Since the trial courtfound that Mr. Higdon did attempt to serve the summons, the question before the courtwas 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 courtfound that Higdon retained Constable BobbyTownsend to serve the summons and·based it's ruling on when the constable served the Bank.on August 10, 2012. The trial court's orderwas erroneously based on the court's determination that "Appellantfailed to issue a summons in good faith
...." The trial courtbased 17it's ruling on the August 10 date ofservice, which occurred, as the majority points out, more than threeweeks after issuance of.the summons. The trial court should not have used this August 10 date in its evaluation ofwhether 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 ofthe summons. As previously noted, Higdon attempted to serve the summons personally. When that failed, he eventually gave up on either obtaining.a waiver ofservice
or personally serving the_Bank and retained Constable BobbyTownsend
.. Delivery ofthe summons to the constable for**servi~e** demonstrates a continuing good-faith effort at service. Therefore, the· period oftime 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 ofthe summons to the constable. This ruling caused confusion in the Court ofAppeals, as demonstrated in that court's majority opinion whiCh stated "[t]wo days after receivingTackett'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 ofTacketfs motion to dismiss. The Court ofAppeals' 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

18ofthe sequence ofevents and time periods involved is repeated throughout the Court ofAppeals' majority and concurring opinions. The delay in this case is less than the delay allowed in 

### Rucker'sAdm'rv. RoadwayExpress, Inc., 131 S.W.2d 840. In the 

### Rucker's case, there was a delay ofsixweeks between issuance ofthe 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 ifwe deduct the three weeks the attorney's wife was in the hospital and allow a day for the re-issuance ofthe summons, the attorney in that case still had a 20-day delay. Our predecessor courtheld that delay was insufficient to demonstrate abandonment ofgood-faith intentto serve the summons. In the current case, the date between the issuance ofthe summons and Higdon giving it to the constable for service was 1 7 days ot less. Is that-delay so egregious thatwe 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 thatbecause the summonses in question

were delivered to the sheriffs office, the suitwas commenced in good faith. It had no bearing on the court's decision that the sheriffdid not serve all ofthe
summonses. The mere fact that theywere 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, theywere acting in good faith. 19The timeline is extremelyimportant in determining good faith in this
case. Higdon took the following actions demonstrating his good faith: he obtained waivers ofservice from two ofthe 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 ofservice; after a different deputy circuit court clerkissued the summons, Higdon attempted to personally serve the summons; he held the summons for less than 17 days in hopes ofpersonally servingit or obtaining a waiver ofservice; and Higdon retained a constable to serve the summons. Then, four days after Higdon's retention ofthe constable, Tackettfiled a motion to dismiss. Finally, three days later, the constable served the summons. In conclusion, the question before the Courtis whether Appellants abandoned good-faith service ofthe summons. The time period that mustbe considered in resolving this question is thatbetween Higdon's attempt to personally serve the summons and his delivery ofthe summons to the constable for service. The trial court erroneously based its rulingupon the

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

both the Court ofAppeals and the majority opinion ofthis Court. Therefore, the Court ofAppeals' opinion should be reversed and the matter remanded to
I the trial court to determine whether there was abandonment ofgood faith to
serve the summons**betwe~n** Higdon's attempt to serve the summons and delivery ofthe summons to the constable for service. Cunningham, J.,joins. 

### 20COUNSEL FORAPPELLANTS KEN ISAACS AND ANNETA CORNETT: W. Henry Graddy IV DorothyThomps Rush W.H. Graddy & Associates Randal Alan Strabo Strabo Barkley, PLLC COUNSEL FORAPPELLEES 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 FORAPPELLEE TOWN AND COUNTRY BANK: R. Bruce Lankford Lankford & Lankford COUNSEL FORAPPELLEE JOHN TACKETT: Harold 

### F
.. Simms 112 North Court Street Georgetown, KY .40324

21