Opinion · Kylaw Kentucky
TABLER v. WALLACE, 704 S.W.2d 179 (Ky. 1985)
704 S.W.2d 179
- Type
- Opinion
- Court
- Kylaw Kentucky
- Jurisdiction
- Kylaw
- Date
- 1985-11-21
- Topic
- general
TABLER v. WALLACE, 704 S.W.2d 179 (Ky. 1985) William B. TABLER, Architect and Dover Elevator Company, Movants, v. MaryL. WALLACE, Administratrix of the Estate of William Wallace, and Mary L.Wallace, Individually, Respondents. and GENERAL ELECTRIC COMPANY,Arkwright-Boston Manufacturers, Mutual Insurance Company, and IndustrialRisk Insurers, Appellants, v.
Citator
UpLaw has not yet analyzed TABLER v. WALLACE, 704 S.W.2d 179 (Ky. 1985). The absence of a flag is not a finding that it is good law.
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TABLER v. WALLACE,704 S.W.2d 179(Ky. 1985)
William B. TABLER, Architect and Dover Elevator Company, Movants, v. Mary
L. WALLACE, Administratrix of the Estate of William Wallace, and Mary L.
Wallace, Individually, Respondents. and GENERAL ELECTRIC COMPANY,
Arkwright-Boston Manufacturers, Mutual Insurance Company, and Industrial
Risk Insurers, Appellants, v. NUCOR CORPORATION, Harman Conway, Inc.,
Jacob A. Harman, Polk Conway, and Garst-Receveur Construction Company,
Inc., Appellees.
Supreme Court of Kentucky.
November 21, 1985.
As Modified on Denial of Rehearing February 27, 1986.
Peter Perlman, Lexington, for respondents, Mary L. Wallace, et al.
W. Terry McBrayer, Jo Ann Alexander, Lexington, for amicus curaie, Ky. Home Builders Assn.
Sheryl G. Snyder, Francis J. Mellen, Jr., Virginia H. Snell, Louisville, for appellants, General Elec., et al.
Ronald V. Simpson, Louisville, for appellees, Harman Conway, Jacob Harman, and Polk Conway.
Robert H. Measle, Judge B. Wilson, II, Lexington, for movant, Dover Elev.
Laurence J. Zielke, A. Neal Herrington, Frank G. Simpson, III, Louisville, for amicus curiae, PRC Engineering, Inc.:
Winfrey P. Blackburn, Jr., W. Kennedy Simpson, William A. Miller, Sr., Louisville, for appellees, Nurcor Corp.
Victor W. Ewen, Campbell Ewen, Louisville, for appellee, Garst-Receveur.
In the first case,Tabler v. Wallace, a maintenance man sustained fatal injury while servicing an elevator in the Harley Hotel in Lexington, Kentucky. He was crushed between the top of the elevator and the roof of the elevator shaft. The Estate's complaint charges that the overall design of the elevator and shaft was negligent and unreasonably dangerous because the clearance between the two was deficient and inadequate in terms of industry codes and safety standards. The Estate sued Dover Elevator Company, whose predecessor sold and installed the elevator and designed the shaft, and Tabler, the architect who approved the design of the shaft in which the elevator was housed.
In the second case,General Electric v. Nucor, the loss occurred because of the collapse of the roof of a warehouse of the General Electric Company in Louisville, Kentucky. The collapse occurred because four steel beams, or trusses, intended to support the roof, failed to do so. Nucor had designed the roof and its components, including the trusses, to comply with specifications provided to it. After the designPage 181process was completed, Nucor used a standardized computer program to determine which trusses to manufacture. A Nucor employee admitted that he erred in recording a load number specified in the design on the shop list utilized to prepare the trusses. The result was that the trusses were fabricated to only one half the strength required by the design. On July 13, 1977, one of the defective trusses failed, tearing the roof and causing extensive damages. Four weeks later another defective truss collapsed causing further extensive damage to the warehouse and to inventory.
Garst-Receveur Construction Company was the builder employed by General Electric to construct the warehouse. Harmon and Conway, Inc. was the manufacturer's representative for Nucor in the Louisville area. Garst-Receveur entered into a purchase order contract with Harmon and Conway which required Harmon and Conway to "furnish all steel joint and joist girders," including the trusses which failed. Harmon and Conway then entered a standard purchase order with Nucor. Garst-Receveur, the builder, and Harmon and Conway, the supplier, were sued along with Nucor.2
The litigation in bothTabler v. WallaceandGeneral Electricv. Nucorfollowed a similar course. In neither did the defendants attempt to plead KRS413.135, the architects and builders "no action" statute, in response to the original complaint. Initially, in both cases, the defendants assumed that the statute was unconstitutional because our decision inSaylor v. Hall, Ky.,497 S.W.2d 218(1973) held that it violated Sections 14, 54 and 241 of the Kentucky Constitution, which restricts legislative power to abolish or limit causes of action predating the Constitution.
In bothTabler v. WallaceandGeneral Electric v. Nucor, the defendants were permitted to amend their answers years after the litigation commenced and shortly before trial, at the "eleventh hour," based upon a perceived change in the constitutional status of KRS413.135announced in December 1982 inCarney v. Moody, Ky.,646 S.W.2d 40(1982). Once the defendants were permitted to amend, in both cases the trial court then granted the defendants summary judgment on grounds thatCarney v. Moodyrevitalized the "no action statute" because the claims were not filed within five years of completion of construction.
InTabler v. Wallacethe Kentucky Court of Appeals reversed the summary judgment on grounds that KRS413.135violates the equal protection provisions of both the constitution of Kentucky and the constitution of the United States. BothSaylorv. Hall, supra, andCarney v. Moody, supra, considered and analyzed KRS413.135"only" under Sections 14, 54 and 241 of the Kentucky Constitution prohibiting the abolition of legal remedies for wrongful death, personal injury, property damages or defamation, but left the question of equal protection an open matter. 497 S.W.2d at 223. The Court of Appeals considered the equal protection and special legislation arguments and concluded that this statute was nothing more than a grant of immunity, arbitrary in nature, with no reasonable basis for a separate classification.
Because of the importance of this constitutional question, we granted discretionary review.3The Court of Appeals then asked that we accept transfer ofGeneral Electric v. Nucor, involving the same constitutional question, pending before the Court of Appeals. We granted transfer and consolidated the cases for argument and consideration.
KRS413.135derives from legislation commencing in the mid-1960's drafted andPage 182promoted by three groups engaged in the construction industry: architects, engineers, and builders. These groups were the American Institute of Architects, the National Society of Professional Engineers, and The Associated General Contractors.See Smith, "Recent Statutory Developments Concerning the Limitations of Actions Against Architects, Engineers and Builders." 60 Ky.L.J. 462 (1971-72). Within a relatively short period of time these groups succeeded in having similar legislation enacted in almost every state. The reaction has been a multitude of cases challenging the constitutionality of this legislation on equal protection grounds. In all, we have been cited to cases from thirty-one sister states4and several federal jurisdictions, all addressing a constitutional challenge on equal protection grounds to this type of statute. If nothing else, the large number of cases illustrates the magnitude of the problem.
Many of these cases from foreign jurisdictions uphold the constitutionality of this legislation against the challenge on equal protection grounds, but turn on the language of the particular state constitution involved. A lesser number of cases, but a growing number, hold to the contrary. In general, the cases holding the statute unconstitutional have followed the reasoning of the first case to do so,Skinner v. Anderson,38 Ill.2d 455,231 N.E.2d 588(1967):
"[T]he statute singles out the architect and the contractor, and grants them immunity. It is not at all inconceivable that the owner or person in control of such an improvement might be held liable for damage or injury that results from a defective condition for which the architect or contractor is in fact [primarily] responsible. . . . the statute takes away [the owner's] action for indemnity against the architect or contractor.
The arbitrary quality of the statute clearly appears when we consider that architects and contractors are not the only persons whose negligence in the construction of a building or other improvement may cause damage to property or injury to persons. If, for example, four years after a building is completed the cornice should fall because the adhesive used was defective, the manufacturer of the adhesive is granted no immunity. And so it is with all others who furnished materials used in constructingPage 183the improvement. But if the cornice fell because of defective design or construction for which an architect or contractor was responsible, immunity is granted. It cannot be said that one event is more likely than the other to occur. . . ." 231 N.E.2d at 591.
Defendants claim that insofar as the challenge to constitutionality under the equal protection clause of the Fourteenth Amendment to the United States Constitution, the United States Supreme Court's denial of certiorari inCarter v. Hartenstein,248 Ark. 1172,455 S.W.2d 918(1970), appeal dismissed,401 U.S. 901,91 S.Ct. 868,27 L.Ed.2d 800(1971), is decisive. However, dismissal for lack of a substantial federal question is a summary disposition and not conclusive precedent, to be accorded "appropriate, but not necessarily conclusive, weight."Mandel v. Bradley,432 U.S. 173,180,97 S.Ct. 2238,2242,53 L.Ed.2d 199(1977).
Before considering the federal constitutional challenge, a threshold question is whether the statute is unconstitutional under a different and narrower provision of the Kentucky constitution.See Fannin v. Williams, Ky.,655 S.W.2d 480(1983). We have decided that KRS413.135violates Section 59(5) of the Kentucky Constitution, which is much more detailed and specific than the equal protection clause of the Federal Constitution. We declare the statute unconstitutional on state grounds, and do not reach the federal question.
The Kentucky Constitution, Section 59, is entitled "Local and special legislation." It provides:
"The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely:
. . . .
Fifth: To regulate the limitation of civil or criminal causes."
When considered against its historical background, it is evident that Section 59 is more than simply another way of restating the generalized language of the equal protection clause of the Fourteenth Amendment to the United States Constitution. Indeed, Sections 1, 2 and 3 of the Kentucky Constitution which provide that the General Assembly is denied arbitrary power and shall treat all persons equally, suffice to embrace the equal protection clause of the Fourteenth Amendment.
But the debates of the Kentucky Constitutional Convention of 1890 and its detailed list particularizing twenty-nine different subjects where the "General Assembly shall not pass local or special acts" provide convincing evidence of the reasons for Section 59, prohibiting local and special legislation.SeeDebates, Constitutional Convention of 1890, 4 Vol.
The history of the times and the nature of the problem becomes clear when one reads the debates. Unbridled legislative power had become the captive of special interest groups. Concern for limiting the powers of the legislature in general, and with cutting off special and local legislation in particular, was the primary motivating force behind enactment of the new Kentucky Constitution of 1891.
Limitations of time and space prevent restating the proceedings in detail. A few excerpts will suffice:
Delegate Mackoy:
". . . now, if there is any one evil more than another which the people of this State have earnestly demanded should be corrected by this Convention, it was that local and special legislation should be rooted up entirely. . . ." Vol. 3, p. 4019.
Delegate Young:
". . . no special provisions for anybody, no exemptions, but all to have the same protection and all live under the same law, and no special benefits to anybody. . . ." Vol. 3, p. 3996-97.
Delegate Knox:
". . . look at the ponderous volumes of private acts passed our Legislature within the last few years, and enumerate the horde of railroad and other corporations which have been exempted from taxation, and allowed a varietyPage 184of other special privileges, while battening like vampires upon the substance of the people. . . ." Vol. 1, p. 466.
Delegate Carroll:
". . . except for the vicious legislation and the local and special laws of all kinds and character passed by the Legislatures that have met in Kentucky for the last twenty years, that no proposition to call a Constitutional Convention could ever have received a majority of the votes of the people of Kentucky." Vol. 1, p. 1482.City of Louisville v. Kuntz,104 Ky. 584,47 S.W. 592(1898) followed with the new constitution fresh in mind. Our Court struck down as special legislation an act of the General Assembly providing a shorter statute of limitations for cities than existed for other claims for personal injury or property damage. The Court stated:
"Section 59 of the Constitution expressly prohibits the legislature from passing a local or special act relating to limitation, and this case clearly illustrates the wisdom of the provision."
Attempted justification for a special protected classification for cities in 1898 would be more easily understood than the attempt to justify a special classification for architects, engineers and builders in 1965. Nevertheless, such special classification could not withstand constitutional challenge.
Other cases invalidating special statutes of limitations under Section 59(5) of the Kentucky Constitution includeCommonwealth v. McCoun, Ky.,313 S.W.2d 585(1958);City ofLouisville v. Louisville Taxicab Transfer Co., Ky.,238 S.W.2d 121(1951); andGorley v. City of Louisville,104 Ky. 372,47 S.W. 263(1898).
InCity of Louisville v. Klusmeyer, Ky.,324 S.W.2d 831(1959), our Court struck down a statute seeking to protect city government by imposing primary liability upon the abutting property owner for injuries caused by defects in the sidewalk in cities of the first-class. Although our Constitution permits special legislation made local to a particular class of city where it pertains to organization and government, it prohibits other legislation made applicable to a single class "not based upon a natural, real or substantial distinction inhering in the subject matter." 324 S.W.2d at 834.
In contrast to the extensive history of our present constitution, the absence of any legislative history for KRS413.135is equally revealing. We know who initiated and lobbied for the legislation, but we know of no committee meetings or legislative debate discussing its purpose. The only legislative "history," as such, for KRS413.135, is that contained in the title to the act:
"An Act relating to the Statutes of Limitations governing the bringing of certain types of actions for wrongful death, personal injuries or damage to real or personal property, and creating a new section of Kentucky Revised Statutes, Chapter 413." Ky. Acts, Ch. 246 (1966).
This title serves more to conceal than to reveal the nature of the act. It is an act which denies the right to sue for any cause (not just "wrongful death, personal injuries or damage to . . . property") five years following the substantial completion of construction. It does not function as a statute of limitations, but only to cut off claims which have not accrued within that period. It specifically provides that it does not supplant or extend existing limitations of actions pertaining to the same subject matter, such as one year after the cause of action accrues for personal injury or wrongful death (KRS413.140) and five years after the cause of action accrues for property damage (KRS413.120). Instead, KRS413.135functions as a one-way ticket to "Topsy-Turvy Land," a place described by Judge Jerome Frank inDincher v. Marlin FirearmsCo.,198 F.2d 821,823(2d Cir. 1952), where you "die before you are conceived, or be divorced before ever you marry, or harvest a crop never planted, or burn down a house never built, or miss a train running on a nonexistent railroad."Page 185
The argument is that the act is called a "statute of limitations" but its purpose is not to limit the time in which to bring causes of action which have accrued but to extinguish causes of action which have not yet accrued, and that, whereas the title to the act is generalized, the contents of the act refer to a narrowly defined and exclusively protected class. The Alabama Supreme Court has invalidated a similar architects and builders immunity statute under that state's counterpart to Section 51 of the Kentucky Constitution. We need not decide the constitutional challenge presented by Section 51, since we have decided this case under Section 59(5). However, the arguably deceptive nature of the title of this act re-enforces the perception that it was enacted in response to a lobbying effort rather than because of reasonable, natural and justifiable distinctions between the protected group and others.
The fundamental question is whether the General Assembly had a reasonable basis for this legislation sufficient to justify creating a separate classification for certain persons engaged in the construction of improvements to real property, granting these persons a special immunity. cf.Miles v. Shauntee, Ky.,664 S.W.2d 512(1984);Board of Education of Jefferson Countyv. Board of Education of Louisville, Ky.,472 S.W.2d 496(1971). The South Carolina court stated inBroome v. Truluck,270 S.C. 227,241 S.E.2d 739(1978):
"While it is broadly stated that a vital distinction exists between architects, engineers and contractors on the one hand and owners and manufacturers on the other, such vital distinction is no where pointed out such as to justify granting immunity to one group and not to the other."Id.241 S.E.2d at 740.
A number of different reasons have been suggested by the defendants and those filing amicus curiae briefs on their behalf for creating a separate classification for these groups. But these are offered only as possible reasons that could have existed, not as reasons that did in fact exist. The justifications offered are largely self-contradictory. For instance, one brief argues that the justification for the statute is to prevent the protected class from being inundated by law suits; another that ninety percent or more the cases of this type involved damages or injuries occurring within five years of construction and the statute addresses very few stale claims that present a disproportionate and excessive burden on the building industry.
One brief argues that it is reasonable to protect architects and builders and not product manufacturers and suppliers because product manufacturers and suppliers can utilize factory control and pretesting procedures and thus control their negligence in a way not available to architects and builders; another that the public does not need the same protection from architects and builders that it needs from product manufacturers and suppliers, because architects and builders have inspectors constantly looking over their shoulders and because no building can be occupied until after it has been thoroughly inspected.
The same evidentiary difficulties that confront builders and architects confront every litigant involved in an injury arising from the construction of an improvement to real property. As stated inOverland Construction Co. v. Sirmons,369 So.2d 572(Fla. 1979):
"Undoubtedly, the passage of time does aggravate the difficulty of producing reliable evidence. . . . The impact of these problems, however, is felt by all litigants. Moreover, the difficulties of proof would seem to fall at least as heavily on injured plaintiffs, who must generally carry the initial burden of establishing that the defendant was negligent."Id.at 574.
One defendant conceded that the justifications offered were self-contradictory, but argued that their contradictory nature was immaterial so long as one or the other of the reasons is not irrational. The creative abilities of lawyers suggesting possible reasons after the fact does not suffice to provide the kind of justification that is required for special legislation to bePage 186valid under Section 59 of the Kentucky Constitution.
Defense counsels' arguments throughout have been to the effect that any reason however imaginative thatcouldhave existed requires us to uphold otherwise discriminatory legislation. On the contrary, there must be a substantial and justifiable reason apparent from legislative history, from the statute's title, preamble or subject matter, or from some other authoritative source.
One of the principal arguments offered in support of special protection for architects and builders as contrasted with product manufacturers and suppliers is the supposed distinction between providing goods and services. To explore this argument requires some brief historical reflection.
There has never been any distinction under a negligence theory of liability between the treatment of goods and services. Following a landmark English case decided in 1842,Winterbottom v. Wright, 10 M. W. 109, 152 Eng.Rep. 402 (1842), whichin fact"held only that the obligation of a contract could give no right of action to one who was not a contracting party (Prosser,Law of Torts, 4th Ed. 1971)," American courts erroneously applied to tort cases the contract doctrine of privity. They held that there must be a contractual relationship between the parties as a prerequisite to tort liability. This error was exposed and corrected for negligence cases by Justice Benjamin Cardozo in the landmark case ofMacPherson v. Buick Motor Co.,217 N.Y. 382,111 N.E. 1050(1916). Following the demise of the erroneous defense of privity in negligence cases, there was a growing number of suits against architects and builders based on defects in construction.SeeSmith,Recent Statutory DevelopmentsConcerning the Limitations of Actions Against Architects,Engineers, and Builders, supra.It was this growing number of suits, not any distinction in negligence law between goods and services, that caused certain professional groups to lobby for special legislation. For similar reasons the railroads and others had sought and obtained special privileges from the General Assembly during the 1880's and thus precipitated a constitutional convention.
Nothing in this set of circumstances provided a constitutionally acceptable reason to discriminate between goods and services. InIn re Beverly Hills Fire Litigation, Ky.,672 S.W.2d 922(1984), we pointed out that this statute excluded materialmen for no well considered "reason," but because they were not "among the pressure groups initiating the legislation." 672 S.W.2d at 925. Landowners are similarly excluded from this protection. Thus, whatever the statutory objective, it was achieved by this statute in a discriminatory fashion. The express purpose of Section 59(5) of the Constitution is to prevent those who have sufficient political power or who can afford a persuasive lobbyist from achieving immunity from accountability to the law that governs others.See Phillips v. ABC Builders,611 P.2d 821(Wyo. 1980), invalidating an architects and builders immunity statute under a constitutional provision substantially identical to our Kentucky Constitution Section 59(5).
In the last twenty years anadditionaltheory of liability labeled "strict liability in tort" has developed against products manufacturers and suppliers who fall within the class described in Section 402A of theRestatement (Second) Torts.But there has never been any distinction under a negligence theory between the treatment of goods and services.Tort Law in America, An Intellectual History, by Prof. G. Edward White of the University of Virginia Law School, traces the growth and development of tort law from the common law writ system to the negligence theory during the last half of the last century and the early part of this one. The treatment of the concept of negligence as expressing a universal duty is a hundred years old.
"The growth of negligence from the omission of a preexisting, specific duty owed to a limited class of persons to thePage 187violation of a generalized standard of care owed to all ensured the emergence of Torts as an independent branch of law." G.E. White,Tort Law inAmerica, An Intellectual History, 18 (1980).
The concept of negligence preexisted the Kentucky Constitution. The question debated inSaylor v. Hall, supra, andCarney v. Moody, supra, was whether the privity requirement was part of the negligence concept in the period before the 1891 Constitution. A 1905 case,Simons v. Gregory,120 Ky. 116,85 S.W. 751(1905), is cited for the proposition that it was. However, this reads more intoSimons v. Gregorythan the language of the opinion provides.Carney v. Moodyreached an opposite result fromSaylor v. Hallwhile conceding there was no "factual distinction" and without overruling it.
We need not write Chapter Three toSaylor v. HallandCarneyv. Moody.The inquiry has shifted from whether the statute is arbitrary and discriminatory, to constitutional issues not discussed in those opinions, equal protection and special legislation. With this the issue, constitutionality does not turn on deciphering the status of the cause of action "prior to the adoption of the Constitution (Carney v. Moody, supra, 646 S.W.2d at 41)," but on whether the General Assembly had a rational justification for creating a special class and conferring special privileges and immunity on that class at the time the statute in question was enacted. No substantial reason has been presented to us.
The only apparent basis for the present legislation is that a special class, builders, architects and engineers involved in construction, faced with a growing exposure to litigation, lobbied for a statute limiting their liability. There is no social or economic basis presented to justify a special class, only their own self-interest. Other groups similarly situated do not share in their legislative windfall. Their subjective reasons will not withstand public policy analysis.
The general public is exposed to injury, death and property damage from the collapse of a building. As in the recent catastrophe involving the collapse of the overhead walkway in the Hyatt Regency Hotel in Kansas City, many people from all walks of life may be injured in one catastrophe caused by faulty construction. The protection of the general public is sacrificed to the interest of a special group. This is the essence of the constitutional evil addressed by Section 59, the prohibition against local and special legislation.
Where to draw the line as to what constitutes a "reasonable basis" for otherwise discriminatory legislation is a difficult matter. We do not do so here beyond stating that imaginative reasons thatcouldexist, without anything of a positive nature to suggest that theydidexist, do not suffice.In re Beverly Hills Fire Litigation, supra, held that KRS413.135had no application to the manufacturers of aluminum wire used in the electrical circuits in the Beverly Hills Supper Club. We concluded that the statute was not intended to cover products manufacturers, suppliers and materialmen, based on the express language of the statute, the history of its development, and the constitutionally impermissible arbitrariness of attempting a distinction between products utilized as component parts in a building and the same other products not so utilized. One of the principal arguments between the parties in the present case is whether or not certain of the defendants should be classified as products manufacturers and suppliers, not including within the terms of KRS413.135. Both sides rely on theBeverly Hills FireLitigationcase in support of their arguments.
InTabler v. Wallace, one of the principal defendants is Dover Elevator Co. which, through its predecessor, manufactured and supplied the elevator and also assisted in the design and construction of the portion of the building which housed it. If there is liability it is based upon a combination of the elevator which is a product, and the shaft which is not, and Dover Elevator Co. had a hand in both items.Page 188
InGeneral Electric Co. v. Nucor, General Electric makes a plausible argument that the gravamen of the action is not the design or construction of the roof, or even the trusses, but an admitted error in what is a standardized process for manufacturing girders which are essentially uniform in nature. So viewed, Nucor is a products manufacturer and Harman Conway, Inc. is a products supplier.
We need not attempt to unravel the dilemma which occurs in both of these cases in attempting a rational distinction between the role of products manufacturers or suppliers on the one hand, and design and construction on the other. It suffices that the argument highlights the arbitrariness of providing an immunity to those engaged in design and construction of a real estate improvement which does not extend to others similarly situated. It was this type of arbitrariness that Kentucky Constitution Section 59 in general, and Subsection 5 in particular, was designed to prevent.
The continuing viability of Section 59 of the Kentucky Constitution has been recently expounded inMiles v. Shauntee,supra, and inBoard of Education of Jefferson County v. Boardof Education of Louisville, supra. Commonwealth v. O'Harrah, Ky.,262 S.W.2d 385,389(1953) states our duty to support both the "letter and spirit" of the Constitution. We "may not countenance an evasion or even an unintentional avoidance of our fundamental law."Id.KRS413.135is in fundamental conflict with Kentucky Constitution Section 59(5) and its historical development.
The decision of the Court of Appeals inTabler v. Wallaceis affirmed. The decision of the trial court inGeneral Electricv. Nucoris reversed. Both cases are remanded to the trial courts for further proceedings consistent with this opinion.
STEPHENS, C.J., and AKER, GANT and LEIBSON, JJ., concur in both cases.
VANCE, J., concurs inGeneral Electric v. Nucor, but dissents inTabler v. Wallace.
STEPHENSON, J., dissents in both cases by separate dissenting opinion.
WINTERSHEIMER, J., dissents in both cases.
The issue upon which this case was decided by the Court of Appeals and this court was not presented to the trial court; thus, it was not preserved for appellate review. In reversing the trial court, the Court of Appeals carefully avoided saying that the trial court was in error. Instead, in an obscure footnote, the Court of Appeals refers to arguments about non-preservation, etc., and concludes the arguments are not persuasive. This elevates judicial obfuscation to new heights. The record is clear that the issue was not presented to the trial court. Wallace does not argue otherwise. Apparently, considering that an obscure footnote is a proper judicial burial place for a well-established rule of law, the majority opinion, by footnote, observes that the Court of Appeals ruled adversely to the claim that the constitutional issue was not preserved; then, like Pontius Pilate, the majority washes its hands of the issue by saying we express no opinion on the preservation.
I daresay the reader of the majority opinion would discern through the judicial fog that there was some issue about preservation in the Court of Appeals, and it was not worthy of further comment.
Towards the end of the majority opinion, it is stated: "We may not countenance an evasion or even an unintentional avoidance of our fundamental law." This is a lofty sentiment about the constitution and should apply equally to a rule of law on preservation of issues for appellate review.
This noble sentiment will be small comfort to those members of the bar who havePage 189lost in this court and the Court of Appeals for the reason that an issue was not preserved.
The language "not preserved for appellate review" is to be found in a multitude of opinions but, apparently now and in the future, we will be treated to a selective system of application of the rule. When it feels good, the rule can be ignored in an obscure footnote.
In this court, the lawyer for Wallace makes the strange argument that somehow this issue could not be presented to the trial court until after judgment (the issue was not presented after judgment either). InGeneral Electric v. Nucor, the issue was presented to the trial court, thus preserving it.
Manifest injustice is also argued, but not why we should invoke this principle. Presumably, Wallace will feel distressed, but this is not enough. Wallace's lawyer should have raised the issue if he wanted us to consider it.
Another facet of the nonpreservation issue is the deliberate flaunting of a legislative mandate. Having more than a passing interest in maintaining the validity of legislative enactments, the Legislature enacted KRS418.075, the relevant portion of which provides:
. . . In any proceeding which involves the validity of a statute, the attorney general of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard, and if the ordinance or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the petition and be entitled to be heard.
Thus, the Legislature has dictated that the Attorney General shall have a right to be heardbefore judgmentwhen there is an attack upon the constitutionality of a statute. This seems reasonable to me, and this court has consistently required compliance with the statute,Revis v. Daugherty,215 Ky. 823,287 S.W. 28(1926);Jefferson Fiscal Court v. Trager,300 Ky. 606,189 S.W.2d 955(1945); andDewey v. Allinder, Ky.,469 S.W.2d 548(1971).
Also, this court decided that the proposition was important enough to be incorporated into our Rules. Thus, CR 24.03 provides in relevant part:
. . . When the constitutionality of an act of the General Assembly affecting the public interest is drawn in question in any action to which the State or an officer, agency, or employee thereof is not a party, the movant shall serve notice of the motion upon the Attorney-General.
There is no pretense in Tabler that there was compliance with either statute or rule. The Attorney General was notified after judgment and after the notice of appeal to the Court of Appeals was filed. Understandably, he declined to intervene. No doubt he made the quaint assumption that the Court of Appeals would follow the statute, the cases based thereon, and our rules. For some strange reason, the Court of Appeals was not persuaded that the matter was unpreserved. The majority opinion does not even consider this proposition worthy of a footnote. Undoubtedly, this passing over of a failure to follow the statute or the rule in the trial court is due to the fact that there cannot be any reasonable explanation why the proposition can be considered by this court. If the majority believes we should be perfectly flexible and choosey in preservation of arguments, it should so state. The record is there for anyone to see.
In matters of this importance, the reasons for not following the rule on preservation should be spelled out so that the bar will have some indication of the circumstances in which this rule will be applied in the future. The trial court had no opportunity to rule on the issue. The judgment of the trial court should be affirmed and the Court of Appeals reversed.
Accordingly, I dissent from the holding inTabler v. Wallace.
VANCE and WINTERSHEIMER, JJ., join in this dissent.Page 190
Architects, builders, etc., comprise a large enough class with particular problems to take it out of the "special legislation" category.
WINTERSHEIMER, J., joins in this dissent.
- These cases involve multiple parties, and their roles are reversed from one case to the other. To simplify we will refer to the cases asTabler v. WallaceandGeneral Electric v.Nucor, and to the parties in their roles as plaintiff and defendants. ↩
- The warehouse roof collapsed in two stages. General Electric claimed that KRS413.135is not applicable to Nucor's alleged fraudulent concealment of the defect after the first partial collapse. Because of the decision of the unconstitutionality of the statute it is unnecessary that we address this further issue. ↩
- The Court of Appeals ruled adversely to defendants' claim that the constitutional issue was not preserved. The constitutional issue was the reason we granted discretionary review. We express no opinion on the preservation issue. ↩
- CONSTITUTIONAL:Carter v. Hartenstein,248 Ark. 1172,455 S.W.2d 918(1970),appeal dismissed,401 U.S. 901,91 S.Ct. 868,27 L.Ed.2d 800(1971);Salinero v. Pon,124 Cal.App.3d 120,177 Cal.Rptr. 204(Cal. 1981);Yarbro v. Hilton HotelsCorp.,655 P.2d 822(Colo. 1982);Cheswold Volunteer Fire Co.v. Lambertson Construction Co.,462 A.2d 416(Del.Supr. 1983);Mullis v. Southern Company Services,250 Ga. 90,296 S.E.2d 579(1982);Twin Falls Clinic Hospital Building Corp. v. Hamill,103 Idaho 19,644 P.2d 341(1982);Matayka v. Melia,119 Ill. App.3d 221, 74 Ill.Dec. 851,456 N.E.2d 353(1983);Beecher v.White,447 N.E.2d 622(Ind.App. 1983);Burmaster v. GravityDrainage District No. 2,366 So.2d 1381(La. 1978);Klein v.Catalano,386 Mass. 701,437 N.E.2d 514(1982);O'Brien v.Hazelet Erdal,410 Mich. 1,299 N.W.2d 336(1980);Calder v.City of Crystal,318 N.W.2d 838(Minn. 1982);Anderson v. FredWagner Roy Anderson, Jr., Inc.,402 So.2d 320(Miss. 1981);Reeves v. Ille Electric Co.,170 Mont. 104,551 P.2d 647(1976);Rosenberg v. Town of North Bergen,61 N.J. 190,293 A.2d 662(N.J. 1972);Howell v. Burk,90 N.M. 688,568 P.2d 214(1977);Lamb v. Wedgewood South Corp.,308 N.C. 419,302 S.E.2d 868(N.C. 1983);Hartford Fire Insurance Co. v. Lawrence,Dykes, Goddenberger, Bower Clancy,740 F.2d 1362, (6th Cir. 1984);Freezer Storage, Inc. v. Armstrong Cork Co.,476 Pa. 270,382 A.2d 715(1978);McMacken v. South Dakota,320 N.W.2d 131(S.D. 1982);Harmon v. Angus R. Jessup Assoc.,619 S.W.2d 522(Tenn. 1981);Sowders v. M.W. Kellogg Co.,663 S.W.2d 644(Tex.App. 1 Dist. 1983);Good v. Christensen,527 P.2d 223(Utah 1974);Yakima Fruit Cold Storage Co. v.Central Heating Plumbing Co.,81 Wn.2d 528,503 P.2d 108(1972).
UNCONSTITUTIONAL:Shibuya v. Architects Hawaii Ltd.,65 Haw. 26,647 P.2d 276(1982);Skinner v. Anderson, 38 111.2d 455,231 N.E.2d 588(1967);Pacific Indemnity Co. v.Thompson-Yaeger, Inc.,260 N.W.2d 548(Minn. 1977);State FarmFire and Casualty Co. v. All Electric, Inc.,660 P.2d 995(Nev. 1983);Henderson Clay Products, Inc. v. Edgar Wood Assoc.,122 N.H. 800,451 A.2d 174(1982);Loyal Order of Moose, Lodge1785 v. Cavaness,563 P.2d 143(Okla. 1977);Broome v. Truluck,270 S.C. 227,241 S.E.2d 739(1978);Kallas Millwork Corp. v.Square D Co.,66 Wis.2d 382,225 N.W.2d 454(1975);Phillips v.ABC Builders, Inc.,611 P.2d 821(Wyo. 1980). ↩