                                             RENDERED: NOVEMBER 2, 2017
                                                        TO BE PUBLISHED

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                             2015-SC-000265-DG



KEN ISAACS AND                                                    APPELLANTS
ANNETTA CORNETT


                   ON REVIEW FROM COURT OF APPEALS
v.                    CASE NO. ~013-CA-001188-MR
                  SCOTT CIRCUIT COURT NO. 12-CI-00538


JEFF CALDWELL, GREG HAMPrON, JANET                                  APPELLEES
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, 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 good-

faith 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 17 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




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