NOT TO BE PUBLISHED
OPINION
VANMETER, Judge.
Wyatt Moody appeals from the order of the Shelby Circuit Court granting Renee Blair and the North Central District Health Department's ("NCDHD") motion for summary judgment against him. For the following reasons, we affirm.
Moody was employed by NCDHD from 2001 until his termination in January 2010. During that time, Blair was the director of NCDHD. Moody was first suspended in 2009, but the suspension was overturned on appeal, on grounds that NCDHD failed to follow the disciplinary protocol required by 902 KAR1 8:110.
Once Moody returned to work, he was asked to sign a list of directives indicating how he should perform certain job duties and warning that he could be suspended or dismissed for failure to abide by these directives. After signing the directives, Moody was reprimanded three times for failing to perform certain job duties. In July 2009, Moody was notified that NCDHD intended to suspend him for failure to comply with NCDHD policies and procedures. A pre-disciplinary hearing was held, and Moody again appealed his suspension, but this time the suspension was upheld.
Moody was notified on December 3, 2009 that NCDHD intended to dismiss him from his employment. A third pre-disciplinary hearing was held, and Moody's employment was terminated on January 29, 2010. Moody appealed and was granted a hearing by the Health Services Administrative Hearings Branch. On May 21, 2010, a Findings of Fact, Conclusions of Law and Recommended Decision upholding Moody's dismissal was issued. The final order upholding Moody's dismissal was issued on August 9, 2010. The final order noted Moody's right to appeal the final order and the time frame for doing so as set forth in KRS2 13B.140(1). Moody did not appeal the final order.
Instead, Moody filed a § 1983 action in Shelby Circuit Court against NCDHD and Blair. The action was removed to the United States District Court, Eastern District of Kentucky. In this suit, Moody claimed that his termination from NCDHD was in retaliation for exercising his right to petition the government for a redress of his grievances as guaranteed by the First Amendment of the U.S. Constitution. After Moody filed his suit, but before judgment, the Supreme Court issued the opinion in Borough of Duryea v. Guarnieri, ___ U.S. ___, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011), which requires that a claim brought under the petition clause of the First Amendment implicate a matter of public concern in order to be viable. The U.S. District Court found that Moody's facts did not implicate a matter of public concern, granted summary judgment in favor of NCDHD and Blair, and dismissed Moody's complaint with prejudice. Moody did not appeal the U.S. District Court's decision.
On April 12, 2012, Moody filed the current action against NCDHD and Blair in Shelby Circuit Court. Moody alleged that the NCDHD and Blair: (1) violated his right to avail himself of the employee grievance procedure set forth in KRS 211.1755(3)(a)(6); (2) violated his right to be free of absolute and arbitrary power over his property as guaranteed by § 2 of the Kentucky Constitution; and (3) violated his right to petition the government to redress his grievances as guaranteed by § 1(6) of the Kentucky Constitution.
On October 12, 2012, the Shelby Circuit Court granted summary judgment in favor of NCDHD and Blair. The court held that the judicial review process provided in KRS 13B.140(1) was the appropriate avenue for Moody to address any violations of § 2 of the Kentucky Constitution or KRS 211.1755. Therefore, Moody should have raised those issues by timely appealing the August 9, 2010, termination decision. Additionally, the court held that the doctrine of res judicata barred Moody from relitigating his claim under § 1(6) of the Kentucky Constitution, since Moody could have raised this issue in his first lawsuit in U.S. District Court. Moody now appeals from the order granting summary judgment in favor of NCDHD and Blair.
On appeal, Moody first argues that the trial court could have interpreted the petition clause of § 1(6) of the Kentucky Constitution to provide a broader protection than the petition clause of the U.S. Constitution. Further, he argues that this claim falls within an exception to the rule against splitting causes of action and is thus not barred by the doctrine of res judicata. Moody also argues that the trial court denied him any means of redress for his grievances by holding that his arguments under § 2 of the Kentucky Constitution and KRS 211.1755 should have been brought through the appeals process outlined in KRS 13B.140(1).
CR3 56.03 provides that summary judgment is appropriate when no genuine issue of material fact exists and the moving party is therefore entitled to judgment as a matter of law. Summary judgment may be granted when "as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Steelvest, Inc. v. Scansteel Serv. Ctr., 807 S.W.2d 476, 483 (Ky. 1991) (internal quotations omitted). Whether summary judgment is appropriate is a legal question involving no factual findings, so a trial court's grant of summary judgment is reviewed de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370-71 (Ky. 2010).
The first issue we must address is whether Moody's claims are barred by the doctrine of res judicata.
The doctrine of res judicata "stands for the principle that once the rights of the parties have been finally determined, litigation should end." "It is an affirmative defense which operates to bar repetitious suits involving the same cause of action." The doctrine is comprised of two subparts: claim preclusion and issue preclusion.
Id. at 371 (internal citations omitted). Claim preclusion "prohibits the relitigation of claims that "were litigated or could have been litigated between the same parties in a prior action." Miller v. Admin. Office of Courts, 361 S.W.3d 867, 871 (Ky. 2011). Issue preclusion, also known as collateral estoppel, "allows the use of an earlier judgment by one not a party to the original action to preclude relitigation of matters litigated in the earlier action." Id.
In its opinion, the trial court applied the doctrine of issue preclusion. Yet, "[t]he doctrine of issue preclusion is properly asserted by `a person who was not a party to the former action nor in privity with such a party.'" Id. at 872, (citation omitted). Conversely, "claim preclusion is applicable to the same parties to the prior litigation or appeal." Id. Here, we have the same parties in both the federal and present cases. Hence, the claim preclusion standard is the appropriate analysis in this case.
In claim preclusion, "[t]hree elements must be met for the rule to apply: (1) there must be an identity of parties between the two actions; (2) there must be an identity of the two causes of action; and (3) the prior action must have been decided on the merits." Id. Here, no party disputes the identity of parties between the two actions. Further, Moody's complaint in the U.S. District Court action was dismissed with prejudice by the court when it granted NCDHD and Blair's motion for summary judgment. FRCP4 41(b) states:
Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.
Kentucky's CR 41.02 similarly considers such a dismissal an adjudication on the merits. Therefore, the only issue is whether identity of the two causes of action exists, or whether the two suits involve the same controversy.
The court in Yeoman v. Commonwealth, 983 S.W.2d 459, 465 (Ky. 1998) noted:
The key inquiry in deciding whether the lawsuits concern the same controversy is whether they both arise from the same transactional nucleus of facts. If the two suits concern the same controversy, then the previous suit is deemed to have adjudicated every matter which was or could have been brought in support of the cause of action.
(emphasis added). Moody admits that the previous federal lawsuit involved the same facts as the present suit. Consequently, all three elements required for claim preclusion to apply have been met. The doctrine of claim preclusion includes a rule against splitting causes of action, thereby "`limiting all causes of action arising out of a single "transaction" to a single procedure.'" Coomer, 319 S.W.3d at 371 (citation omitted). In Coomer, the court explained:
It rests upon the concept that "parties are required to bring forward their whole case" and may not try it piecemeal. Therefore, it "applies not only to the points upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
Id. (internal citations omitted). Therefore, the federal suit should be deemed to have adjudicated all matters which could have been brought in support of Moody's cause of action.
Nonetheless, Moody contends that claim preclusion should not apply to the present case because his claim falls within an exception to the claim preclusion rule against splitting causes of action. Moody claims that the right to petition the government for redress of grievances contained in § 1(6) of the Kentucky Constitution could be interpreted to provide broader protections than those afforded by the First Amendment to the U.S. Constitution. Moody argues this claim fits the exception in which:
The judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme, or it is the sense of the scheme that the plaintiff should be permitted to split his claim[.]
Restatement (Second) of Judgments § 26(1)(d) (1982). However, we do not find that the U.S. District Court's judgment was inconsistent with Kentucky's constitutional scheme. We agree with the trial court's finding that no case law supports Moody's argument that the Kentucky Constitution provides a broader ground for his claim.
Next, Moody asserts that this case fits the exception which arises when identical facts support two successive lawsuits, but the second lawsuit's cause of action does not arise until after the filing of the first lawsuit. See Coomer, 319 S.W.3d at 373 (holding that "the rule against splitting causes of action does not apply to claims that have not yet accrued."). Moody contends that when he filed his federal lawsuit, he had no need to invoke the Kentucky Constitution since he could not have predicted that his claim under the U.S. Constitution would be preempted by the opinion in Duryea. Still, this argument fails. Moody's cause of action under the Kentucky Constitution had arisen at the time he filed his federal suit. Nothing prevented Moody from arguing in the federal suit that he was denied his right to have his grievances redressed as required by the Kentucky Constitution's § 1(6) as well as by the U.S. Constitution's First Amendment. Moody simply chose not to present that claim at that time. Thus, Moody's case does not fit this, or any other exception to the rule against splitting causes of action, and his claim is precluded by the doctrine of res judicata.
Lastly, we agree with the trial court that Moody's arguments under § 2 of the Kentucky Constitution and KRS 211.1755 should have been brought via the judicial review process outlined in KRS 13B.140(1). This process exists to ensure that Kentucky citizens are afforded fair procedures in administrative adjudications. Moody has provided no evidence of any deficiency in the process that denied him due process or a fair hearing. Moody should have appealed the final order of the agency's decision if he felt the decision was arbitrary or denied him due process.
The opinion and order of the Shelby Circuit Court is affirmed.
ALL CONCUR.
