NICKELL, Judge:
Hal Snowden, Jr. appeals from three orders of the Jessamine Circuit Court denying a motion to recuse the trial judge, dismissing his complaint with prejudice, and denying a motion to reconsider the dismissal. The crux of this appeal is whether the City of Wilmore ("City"), through its City Attorney, Robert L. Gullette, Jr., or its Mayor, Harold L. Rainwater, promised to amend its planned unit development (PUD) regulations in exchange for Snowden's dismissal of two pending lawsuits. Snowden claims Gullette made oral representations to him binding the City to not only refer a PUD amendment to the Jessamine County/City of Wilmore Joint Planning Commission ("Commission") for consideration and a recommendation, but to fully support and pass the amendment regardless of the Commission's recommendation. As it happened, the City referred Snowden's proposed amendment to the Commission; Snowden signed agreed orders dismissing the pending litigation; and upon receiving a negative recommendation from the Commission, the City rejected Snowden's proposed amendment, thereby thwarting his plan to develop a "New Urbanism" residential community.
Snowden owns a parcel of land in Jessamine County named Roseglade Farm. In the 1990's, the land was annexed by the City and rezoned for residential use but never developed. Now, to develop the property as he envisions, Snowden needs the City to amend its zoning ordinance to allow use of the "New Urbanism" design concept.
The owners of Forest Creek, a nearby piece of unincorporated Jessamine County property, also plan on developing a residential community along with a golf course but no other commercial ventures. Forest Creek was situated about a mile outside the City limits and therefore was not contiguous. Since a city may annex only contiguous
Snowden filed lawsuits against the City and its officials in 2006 and again in 2007 challenging the annexation of Forest Creek.
Upon learning the City would not adopt his proposed PUD amendment, Snowden filed a complaint against the City, its officers and Gullette alleging breach of contract and several torts. After the trial court granted the City's/Gullette's motion to dismiss, Snowden filed this appeal claiming he was duped into dismissing the pending litigation because the City never intended to amend its PUD ordinance. The specific questions before us are whether the trial court properly dismissed the current complaint upon finding there was no written contract obliging the City to amend its PUD ordinance, and whether the trial court should have recused from the case due to a professional relationship with Gullette.
The records of the 2006 and 2007 litigation are not before us and no discovery has occurred. Therefore, our recitation of the facts is taken from the pleadings filed in this case, four hearings and the appellate briefs. We rely heavily upon Snowden's complaint alleging that in February 2007, Gullette, on behalf of the City, attempted
In August 2007, Snowden and the Forest Creek developers executed a written settlement agreement contingent upon Snowden reaching a separate settlement agreement with the City regarding the pending lawsuits. The City was not a party to Snowden's agreement with Forest Creek and Gullette maintained a separate settlement agreement between Snowden and the City was necessary, but no formal contract was ever executed. Based upon Gullette's oral representations alone, Snowden arranged for a development plan to be drawn for Roseglade Farm and an amendment to the City's PUD ordinance to be drafted.
According to the complaint, on January 9, 2009, Gullette met with Snowden and his attorney and
At this point, Snowden had nothing in writing from the City, only alleged oral representations from Gullette, and there is no evidence or suggestion that Snowden had spoken directly to Mayor Rainwater, the council as a whole, or any of the councilmembers
Thereafter, a series of four letters was written by various authors to different recipients that Snowden maintains constituted an agreement between himself and the City in which the City agreed to pass the PUD amendment and then failed to do so. He argues these four letters contained an offer and acceptance, partial performance by the City and full performance by Snowden. Being integral to this appeal, we set forth the text of each letter in full, separated by our comments about its import.
(Emphasis added). The foregoing letter was sent to the Commission after the Council voted to authorize Mayor Rainwater to do so. It was not addressed or copied to Snowden, did not reference Snowden, and merely referred a proposed amendment of the City's existing PUD ordinance to the Commission for consideration and a recommendation. It did not in any way suggest the City would adopt the proposed amendment regardless of the Commission's recommendation. In his complaint, Snowden alleges this letter constituted the City's partial performance of its obligations under the settlement agreement. As noted previously, there is no formal contract or settlement agreement between Snowden and the City. Therefore, any alleged written settlement agreement between the parties must be found within the four corners of these four letters. Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky.App.2002).
(Emphasis added). In the opening paragraph of this, the third letter, Gullette clearly states Snowden offered to dismiss the 2006 and 2007 lawsuits if the City would refer his proposed amendment to the Commission. Overtly missing from this letter is any mention of passage of the PUD amendment as a condition for dismissal of the pending litigation. The City referred the amendment to the Commission, as evidenced by the letter signed by Mayor Rainwater, and thus it appears the City satisfied any obligation it may have undertaken. Snowden has produced no writing correcting Gullette's statement of the terms of the agreement or otherwise clarifying that his dismissal of the pending lawsuits was in exchange for not only the Commission's consideration of the PUD amendment, but the City's actual passage of the PUD amendment. Snowden argues this letter is critical because Gullette used the word "offer" and "demanded" that Snowden dismiss the pending litigation, which Snowden did, thus accepting the City's offer and thereby providing two essential elements of a valid contract — offer
(Emphasis added). The fourth letter, from Snowden's attorney to Gullette, was a cover letter by which Snowden returned the signed agreed orders of dismissal. Again, there is no mention of dismissal of the lawsuits being predicated upon the City's passage of the PUD amendment, an event that had not occurred when Snowden signed the agreed orders of dismissal. In fact, the letter specifically states the pending litigation is being dismissed "[i]n response to the terms set forth" in Gullette's letter of February 4, 2009. The only term mentioned in that letter was "all litigation [would be dropped immediately] if the City of Wilmore would refer ... the `New Urbanism' amendment ... to the... Commission."
Based upon these four letters, the only writings under consideration, Snowden's legal challenges to the annexation of Forest Creek were dismissed with prejudice following the tendering of agreed orders Snowden signed seeking that specific result. Because the City never adopted the PUD amendment, Snowden filed the current complaint on April 8, 2010, alleging breach of contract and tort claims. Specifically, Snowden claims the City, City Council, its mayor and all councilmembers, breached their contract with him, both actual and implied; caused Snowden to detrimentally rely upon their promise to pass the PUD amendment (promissory estoppel); breached their implied duty of good faith and fair dealing; and, violated Snowden's due process rights by exerting arbitrary power. He also alleged that all defendants committed promissory fraud and/or fraudulent inducement. He then included two counts against Gullette alone for tortious interference with contract claiming he allegedly advised the City to reject the PUD amendment; and negligent misrepresentation claiming he allegedly gave Snowden the impression he was authorized to settle the 2006 and 2007 lawsuits and assured him the City would amend the PUD ordinance.
On May 12, 2010, Snowden moved for a temporary restraining order (TRO) to maintain the status quo. That motion was heard on May 13, 2010. At that hearing, Gullette tried to give context to a discussion
In late May, 2010, all defendants moved to dismiss
The trial court additionally stated the City Council speaks through its minutes and actions, and for it to act, a motion, second, and passing vote were needed — none of which paved the way for the City's passage of the PUD amendment. Furthermore, no one, not the mayor and not the city attorney, could bind the council to take future legislative action because only the council could bind itself. See KRS 83A.130.
The trial court also stated that while Gullette was authorized to negotiate on the City's behalf, Snowden participated in those discussions at his own peril. While Snowden may have relied on Gullette's representations, he could not legally and justifiably do so. Noting that dealing with the public sector differs from dealing with the private sector, the trial court stated it was Snowden's responsibility to know the extent of Gullette's authority. Lastly, the trial court found the only guarantee of the
Following an additional hearing, the trial court stated its decision to dismiss the complaint would stand. A motion to reconsider, set aside or vacate that order was denied on August 23, 2010. This appeal followed.
As a preliminary matter, we begin with Snowden's claim that the trial judge should have recused from the case because he appeared to have "a close professional relationship" with Gullette "who has served as sole City Attorney for the City of Wilmore (located in Jessamine County) for at least 27 years and as an Assistant Jessamine County Attorney for at least 4 years." After contacting the Judicial Ethics Commission for advice, the trial judge denied the motion to recuse stating that if he had any reservations about issuing a fair ruling in the case he would step aside, but having no such reservations he would deny the motion to recuse. For the following reasons, we affirm.
The rule on recusal is that "[a] trial judge should disqualify himself in any proceeding where he has knowledge of any circumstances in which his impartiality might reasonably be questioned." Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995). KRS 26A.015(2) requires recusal when a judge has "personal bias or prejudice concerning a party ..." or "has knowledge of any other circumstances in which his impartiality might reasonably be questioned." KRS 26A.015(2)(a) and (e); see also Rules of the Supreme Court (SCR) 4.300, Canon 3C(1). "The burden of proof required for recusal of a trial judge is an onerous one." Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky.2001). "There must be a showing of facts `of a character calculated seriously to impair the judge's impartiality and sway his judgment.'" Id. (quoting Foster v. Commonwealth, 348 S.W.2d 759, 760 (Ky.1961), cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530 (1962)); see also Johnson v. Ducobu, 258 S.W.2d 509 (Ky.1953). "A party's mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds to require recusal." Webb, 904 S.W.2d at 230.
Snowden did not allege actual bias. He argued recusal was necessary only because Gullette often appears before the trial judge and over the years the two had developed a close professional relationship. Such an allegation is insufficient to require recusal. If it did, taken to its illogical conclusion, a judge would have to remove himself from every criminal case filed in his jurisdiction because the prosecutor's and the public defender's frequent appearances in his courtroom would create disqualifying relationships. The same would be true in counties with particularly small bars where the same private attorneys routinely appear before the sole circuit judge. Such is an untenable requirement and clearly not the intent of the cited caselaw, statute and rule. Here, where there is no evidence and not even an allegation of actual bias, we discern no abuse of discretion and therefore, affirm. See Sommers v. Commonwealth, 843 S.W.2d 879, 882 (Ky.1992).
We turn now to the heart of this appeal — whether the trial court erred in granting a motion to dismiss with prejudice upon finding letters authored by the mayor and the city attorney did not bind the City to amend its PUD ordinance. We begin with a statement of applicable law.
Mitchell v. Coldstream Laboratories, Inc., 337 S.W.3d 642, 644-45 (Ky.App.2010). The ultimate question then is if the facts alleged in the complaint can be proved, is the complainant entitled to relief? James, 95 S.W.3d at 884. For the following reasons, the answer is no.
The City of Wilmore is classified as a city of the fourth class. KRS 81.010(4). Organized under the mayor-council plan,
KRS 83A.130(8). Thus, all municipal contracts must be written and signed by the mayor. City of Greenup v. Public Service Commission, 182 S.W.3d 535, 540 (Ky. App.2005).
While executive authority is vested in the mayor, KRS 83A.130(3), he does not act alone. Legislative power is vested in a council, KRS 83A.130(11), which adopts ordinances the mayor may sign into law or veto subject to council override. KRS 83A.130(6). Any delegation of mayoral authority to a subordinate officer or employee occurs by executive order only. KRS 83A.130(7).
Failure to adhere to the procedures outlined in KRS Chapter 83A.130 may be fatal to a municipal contract. As explained in City of Princeton v. Princeton Electric Light & Power Co., 166 Ky. 730, 179 S.W. 1074, 1079 (Ky.1915):
Finally,
15B Am.Jur.2d Compromise and Settlement § 7 (internal citations omitted).
With the foregoing in mind, we analyze the writings before us. First, a city attorney may negotiate on behalf of a municipality, but he lacks authority to bind the City Council. Louisville Civil Service Board v. Blair, 711 S.W.2d 181, 184 (Ky. 1986); Ashland Lumber Co. v. Williams, 411 S.W.2d 909, 910-11 (Ky.1966). Any terms that may have been orally agreed upon by Gullette and Snowden had to then be agreed to by a majority of the City Council before becoming the foundation of a written contract that would ultimately be signed by Mayor Rainwater to become effective.
Those who seek to contract with the government are deemed to know how government works — specifically — who is authorized to bind the municipality and how. City of Greenup, 182 S.W.3d at 539-40. "[O]ne contracting with a political subdivision does so at his peril, unless the contract is executed in the manner provided by statute." Diehl, 246 S.W.2d at 586. Furthermore, those "who contract with municipal corporations must, at their peril, know the rights and powers of the officers of such municipalities to make contracts and the manner in which they must make them." City of Princeton, 179 S.W. at 1079. Here, to have a valid contract with the City for passage of the PUD amendment, Snowden needed approval by the City Council and a written contract signed by Mayor Rainwater — he had neither. Snowden claims the City wrongly used KRS 83A.130(8) as a sword to claim lack of a written contract, but we deem it as nothing more than requiring Snowden to comply with the requirements of the statute.
Although Snowden does not allege Mayor Rainwater personally promised the City Council would pass the PUD amendment, any such allegation would be for naught because a mayor, acting alone, cannot "enter into a compromise agreement settling litigation against the city." 3 McQuillin Mun. Corp. § 12:73 (3d ed.). KRS 83A.130 clearly establishes a two-part system under which the council enacts ordinances and the mayor enforces them, subject to the power of veto. The mayor alone could not decide to amend the City's PUD ordinance. In fact, he would not have cast a vote on the issue unless his vote was needed to break a tie among the other councilmembers. KRS 83A.130(5).
Second, there is no writing in which the City agrees to pass the PUD amendment. KRS 83A.130(8) requires such a writing. Without one, Snowden's claim must fail. The most that has been alleged and supported by writings is the City's referral of the PUD amendment to the Commission in exchange for dismissal of pending litigation. We are hesitant to call the Mayor's letter of February 2, 2009, a contract because we do not believe there was an offer and acceptance, consideration, intent to be bound and a meeting of the minds — the essential components of a valid contract. Cantrell, 94 S.W.3d at 385. But, assuming for the sake of argument that a contract existed, its terms were completed because the amendment was referred to the Commission and in return Snowden dismissed
That should end our discussion, but Snowden claims he bargained for more than referral of the PUD amendment to the Commission. He claims Gullette guaranteed him passage of the amendment by the Council — a fact Gullette disputes. The only writings submitted for our de novo consideration are the four letters set out previously — none of which mentions anything about passage of the PUD amendment. Snowden would have us read that requirement into the letters, but we cannot.
Our duty is to carry out the expressed intentions of the parties. When those intentions are clearly stated in a written document, we have no authority to add terms not included by the parties. Hoheimer v. Hoheimer, 30 S.W.3d 176, 178 (Ky.2000) ("The intention of parties to a written instrument must be gathered from the four corners of that instrument."). Thus, our interpretation of any agreement between Snowden and the City must come solely from the four letters.
If Snowden's dismissal of the two lawsuits was based on more than the terms stated in Gullette's letters, he should have said so when given the opportunity. Instead, the letter from Snowden's attorney accompanying the signed agreed orders of dismissal states the litigation is being dismissed "[i]n response to the terms set forth [in Gullette's letter of February 4, 2009.]" The only term mentioned in that letter is referral of the PUD amendment to the Commission. Thus, from our reading of the correspondence, there is no proof of a written contract in which the City ever promised to do anything but refer the PUD amendment to the Commission, which it did. Lack of a written contract signed by Mayor Rainwater in which the City agrees to adopt Snowden's PUD amendment is fatal to the complaint, just as the trial court concluded.
We comment now upon additional points raised in the appeal. Snowden claims the trial court based its dismissal of the complaint on a factual finding that no contract existed between Snowden and the City. He claims this was error because a motion to dismiss is "purely a matter of law." James, 95 S.W.3d at 884. While Snowden correctly states the standard, we disagree with its application to these facts. "Generally, the interpretation of a contract, including determining whether a contract is ambiguous, is a question of law for the courts and is subject to de novo review." Cantrell, 94 S.W.3d at 385 (internal citations omitted). The trial court interpreted the only writings before it and concluded the only action promised by the City was referral of the PUD amendment in exchange for dismissal of the pending lawsuits. There being no assertion of a writing in which the City bound itself to pass the PUD amendment, there was no scenario under which Snowden could prevail and, therefore, dismissal was appropriate. James, 95 S.W.3d at 884.
A city council acts only through its formal records which "constitute the only legal evidence of all that was done and that nothing more was done." Louisville & Jefferson County Metropolitan Sewer Dist. v. General Distillers Corp. of Kentucky, 251 S.W.2d 543, 547 (Ky.1953). Thus, it cannot be bound by an implied promise. No council minutes have been included in the appellate record and Snowden did not allege the City Council took any formal action regarding the proposed PUD amendment other than directing Mayor Rainwater to refer it to the Commission for consideration and a recommendation.
We turn now to the claims against Gullette for promissory fraud and/or fraudulent inducement,
Regardless of Snowden's inferences or beliefs, Gullette's words, as City Attorney, could not bind the City to take particular action and any reliance thereon by Snowden was unjustified. Blair, 711 S.W.2d at 184. Finally, there being no written contract between the City and Snowden for passage of the PUD amendment, there was no scenario upon which Gullette could have been found liable for tortious interference with a contract.
If Snowden truly believed he bargained with Gullette for guaranteed passage of the PUD amendment by the City, he should have taken steps to clarify the full extent of his demands rather than endorsing Gullette's recitation of the agreement as referral of the PUD amendment in exchange for dismissal of two pending lawsuits. Having failed to do so, he cannot ask this Court to add terms to a contract that the parties did not choose to express themselves. For the foregoing reasons, we affirm the trial court's dismissal of the complaint with prejudice as well as its decision not to recuse from the case.
ALL CONCUR.
