A.R., by Her Next Friends, M.R. and W.R.; and M.R. and W.R., on their own behalf v. Fayette County Board of Education, et al.

A.R., by her next friends M.R. and W.R., and
M.R. and W.R., on their own behalf (collectively "A.R."), have appealed from the order of the Fayette Circuit Court entered on
July 22, 2004, which dismissed all claims against the appellees,
the Fayette County Public Schools (FCPS), the Board of Education
of Fayette County (the Board), Michael Brady, and Earl Stivers.3
Having concluded that the circuit court abused its discretion by
refusing to allow A.R. to amend the complaint and by dismissing
Brady and Stivers as defendants, we reverse and remand.

A.R. was born on August 30, 1987, and was a minor at
the time she filed this suit.4 On August 27, 1991, A.R. was
identified by FCPC at an Admissions and Release Committee (ARC)
meeting to be a student with a disability under the Individuals
with Disabilities Education Act (IDEA). In 2000 A.R. was a
student at Tates Creek Middle School in Fayette County and in
the special education program. Michael Brady was A.R.'s
teacher, case manager, and in charge of supervising her at the
time the alleged incident that is central to this case occurred.

One day at school in late 2000, while the class was
watching a movie, A.R. was sexually assaulted by another student
in the classroom.6 At the time, Brady was sitting at his desk
playing a computer game, which diverted his attention from the
students in his classroom. After the abuse occurred, A.R.
attempted to inform Brady of the incident; however, Brady told
A.R. to "be quiet or there would be consequences." The student
who assaulted A.R. later pled guilty to assault in the Fayette
District Court.

Brady had been assigned as A.R.'s case manager, but at
the time of the assault, he had failed to read her file as
required. A.R.'s file reflected that she had poor communication
skills, and it was recommended that teachers explore with her
what she meant to communicate whenever she attempted to speak.

After the assault incident, school personnel refused
to transfer the offending student to another school so that A.R.
might avoid contact with the offender. Subsequently, A.R. and
the offending student were actually placed in one class
together. Further, instead of limiting the offending student's
extracurricular activities, the school advised A.R.'s parents
that A.R. should not attend after-school activities, where the
offender might possibly be present.

Since the procedural history of this case is very
pertinent to this appeal, we will review it in detail. A.R.'s
parents, as her next friends and in their own behalf, filed a
complaint in the Fayette Circuit Court on December 21, 2001,
alleging violations of Federal and State law. A.R. raised
claims under both Title IX of the Education Amendments of 1972,
which provides in pertinent part that a person cannot "be
subjected to discrimination under any education program or
activity receiving Federal financial assistance," and Kentucky
Civil Rights Act, KRS Chapter 344, which has the purpose of
safeguarding all individuals within the state from
discrimination because of sex, or because of the person's status
as a qualified individual with a disability, and to protect
their interest in personal dignity and freedom from humiliation,
and to preserve the public safety, health, and general welfare
and to further the interest, rights and privileges of
individuals within the state.7

A.R. alleged in the complaint that beginning in 2000,
and continuing thereafter, she experienced a pattern of sexual
harassment at school by other students and the harassment was
repeated and pervasive within her educational environment. On
January 24, 2002, the appellees filed a petition for removal to the United States District Court for the Eastern District of
Kentucky, Lexington Division.8 On December 8, 2003, during a
pretrial conference in Federal Court, A.R. made a motion to
amend the complaint in order to allow a negligent supervision
claim.

On December 30, 2003, the Federal Court entered
summary judgment in favor of the appellees and ruled that the
appellees' actions did not rise to a level sufficient to violate
Title IX of the Education Amendments of 1972 and Title VI of the
Civil Rights Act. Further, the Federal Court ruled that A.R.
had not exhausted all the administrative remedies under Section
504 of the Rehabilitation Act. The Federal Court remanded the
case to Fayette Circuit Court to consider the "state law
claims," and due to the impending trial date, it denied A.R.'s
request to amend the complaint to allow the negligent
supervision claim.

Upon remand of the case to the Fayette Circuit Court,
the appellees filed a motion to dismiss on March 11, 2004. In
support of their motion, the appellees argued the doctrine of
res judicata, stating that the dismissal of the federal civil
rights claim required dismissal of the state civil rights claims
under KRS Chapter 344. A.R. conceded that the claims against the individual defendants, Brady and Stivers, would not be
allowed under KRS Chapter 344, but argued that the claim against
the Board was not barred by res judicata. A.R. argued that (1)
the Board had not appealed the Federal Court's order remanding,
and (2) that state law allowed for consideration of damages on
the claims not allowed under the federal act. Pursuant to CR9
15, A.R. then requested leave to amend the complaint in state
court to allege the claim for negligent supervision, arguing
that there could be no prejudice to the appellees since no trial
date had been set at the state court level.

On July 22, 2004, the circuit court entered an order
dismissing the case. The circuit court ruled that since KRS
Chapter 344 actions could not be pursued against the individual
appellees, Brady and Stivers would have to be dismissed from the
case. The circuit court further ruled that regardless of the
fact that A.R.'s motion to amend the complaint pursuant to CR 15
was properly and timely filed, and even though all parties were
properly before the court upon remand from Federal Court, the
complaint against the individual appellees, Brady and Stivers,
could not be amended to assert the negligent supervision claim.
On July 30, 2004, A.R. filed a motion to alter, amend, or vacate, which the circuit court denied on October 18, 2004.
This appeal followed.10

CR 15.01 states that after a responsive pleading has
been filed, "a party may amend his pleading only by leave of
court or by written consent of the adverse party; and leave
shall be freely given when justice so requires." The test for
determining whether such relief should be granted is whether the
adverse party would be prejudiced by such relief, and this
includes a period up to the conclusion of the evidence.11
Kentucky Practice,12 states as follows:

Absent a showing of significant
prejudice to the opponent, an amendment to a
complaint should be liberally granted
[footnote omitted].

Rule 15 provides that leave to amend
should be freely given when justice so
requires. Rule 15 reinforces the principle
that cases should be tried on their merits
rather than on the technicalities of
pleadings. No longer is the pleading
practice a game of skill in which one
misstep by an attorney will be decisive to
the outcome. The decision as to whether
justice requires the amendment is committed
to the court's sound discretion. Abuse of
discretion occurs when a court fails to
state the basis for its denial or fails to
consider the competing interest of the parties and the likelihood of prejudice to
the opponent [footnotes omitted].

In this case, A.R. argues that the appellees would not
have been prejudiced by the amendment because the case had just
been remanded back to the circuit court, all parties' discovery
was complete, no trial date had been set, and the KRS Chapter
344 issues still remained before the circuit court. Further,
A.R. contends there was no indication that there was an attempt
to cause delay.

A.R. concedes that the Federal Court did not abuse its
discretion in denying the same motion, because when the request
was made less than one month remained before trial.13 However,
A.R. asserts that procedurally the state court claims differ
from the federal case, and argues, "[s]urely it cannot be
reasonably argued that a procedural ruling there controls all
the case and directed [sic] the [circuit] court of its power
under Kentucky law."

A.R. contends the circuit court had no grounds to
determine the amendment would significantly prejudice the
appellees.14 A.R. states that the facts alleged to support a
negligent supervision claim are the same facts as those originally pled and those which had already been subject to
discovery by the appellees. A.R. asserts that the only possible
prejudice to the appellees might be the need to take additional
discovery.15

A.R. points out that if the circuit court had
initially sustained the motion to amend the complaint pursuant
to CR 15, then Brady and Stivers would not have been dismissed
as parties

What the appellees and the [circuit] court
have not reasoned through is that the
Federal Court, although it could have
addressed the state law claims, did not and
remanded the state law claims along with the
parties back to the [ ] circuit court. All
the parties were then before the [circuit]
court and all motions had been timely and
properly filed.

A.R. also relies upon Whittaker v. Cecil,16 wherein our
Supreme Court acknowledged that the doctrine of res judicata
does not act as a bar in a subsequent proceeding if the issues
or questions of law are different. A.R. argues that "the
question of whether the [d]efendant caused humiliation, personal
indignity and other intangible injuries from the delay of one
month in separating A.R. from the individual who sexually assaulted her was not an issue in the Federal Court proceedings.
The Federal Court sent the case back for a determination on the
issue that applies under state law but does not apply under the
federal law." A.R. also asserts the right under Section 14 of
the Kentucky Constitution to present the case in state court.17

The appellees respond by arguing that the circuit
court's basis for dismissing A.R.'s claims was not CR 15.01, but
rather the failure and inability to meet the requirements of CR
15.03. The circuit court stated in its final order and judgment
entered on July 22, 2004, as follows:

The Court overrules [A.R.'s] [m]otion
to [a]mend the [c]omplaint. The Court finds
that since it has dismissed the claims under
KRS Chapter 344 as to the individual
[d]efendants, there is no cause of action
remaining to assert [in] the [a]mended
[c]omplaint. This Court finds that the
individually named [d]efendants, Brady and
Stivers, are not properly before the Court
on the KRS Chapter 344 claim, and because
the Court has dismissed the only currently
pending claim against the [d]efendant Board
of Education, there is no [d]efendant or
claim currently before the Court to which
any newly plead claim could "relate back"
under CR 15.03.
17 Section 14 of the Kentucky Constitution states that "[a]ll courts shall be
open, and every person for an injury done him in his lands, goods, person or
reputation, shall have remedy by due course of law, and right and justice
administered without sale, denial or delay."

At the time the circuit court dismissed A.R.'s claims, it was
conceded that based upon Conner v. Patton,18 there was no cause
of action against Brady and Stivers; thus, they were not before
the circuit court at the time that it considered A.R.'s request
for leave to amend the complaint.

Further, the appellees argue that A.R. could not
maintain a common law negligence claim against the Board of
Education based upon the law of Grayson Co. Board of Education
v. Casey.19 Thus, under CR 15.03, there was no existing claim
against Brady and Stivers for the negligence claim to "relate
back" to.20

Brady and Stivers also argue that they would have been
prejudiced by the amendment:

In a tort action for negligence, there is
the availability of comparative fault, and
the ability to bring in a third party who is
partly or wholly responsible for any damages
caused. There is no such ability where the
cause of action is a statutory
discrimination claim. Had a negligence
claim been timely filed against individual
[a]ppellees Brady and Stivers, they could
have sought the inclusion of the student who
allegedly assaulted A.R. as a necessary party, or sought to file a third-party
action against that student who caused all
or most of the injury alleged. . . . The
inability to effectively provide for their
own defense due to this staleness of
evidence and possible inability to seek the
inclusion as another party one who
contributed to any alleged tortious injury
unfairly prejudices individual [a]ppellees
Brady and Stivers, and the amendment, even
if it complied with CR 15.03 would be
properly denied under CR 15.01.

Further, the appellees argue that even though no trial
date had been set in the circuit court, a trial was imminent as
there was no additional discovery necessary. Further, they
argue that Shah, is distinguishable from this case. In their
brief, the appellees state, "[a]n amendment to add an implied
contract term to a breach of contract action is truly an
‘embroiderment' on the breach of contract claim, as too is an
amendment to add an additional false accusation to an existing
defamation claim. A common law negligence claim is not an
‘embroiderment' on a statutory discrimination claim - in fact it
is an entirely different cause of action with different
elements, different defenses, and different strategies for
defense, e.g. discrimination in an intentional, malicious act
while negligence entails neither intent nor malice."

We conclude that the circuit court abused its
discretion by not allowing A.R. leave to amend the complaint
against Brady and Stivers while they were still defendants. The appellees have failed to show how they will be prejudiced by the
amendment. The circuit court has constructed a catch-22 by
dismissing Brady and Stivers as defendants because there is no
claim against them, and at the same time refusing to allow A.R.
to amend the complaint to allege a claim against Brady and
Stivers because they are no longer defendants. We have
considered the appellees' numerous alternative arguments and
reject them.

Accordingly, the motion to identify A.R. by name is
denied, the final judgment of the Fayette Circuit Court is
reversed, and this matter is remanded for further proceedings
consistent with this Opinion.

ALL CONCUR.

Accordingly, the motion to identify A.R. by name is
denied, the final judgment of the Fayette Circuit Court is
reversed, and this matter is remanded for further proceedings
consistent with this Opinion.