Opinion
NO. 2016-CA-001711-MR NO. 2016-CA-001712-MR NO. 2016-CA-001713-MR NO. 2016-CA-001714-MR NO. 2016-CA-001715-MR NO. 2016-CA-001716-MR NO. 2016-CA-001717-MR NO. 2016-CA-001718-MR NO. 2016-CA-001733-MR NO. 2016-CA-001734-MR
01-17-2020
NANCY A. BARONE APPELLANT v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE ROBERT AND KAREN JOHNSON APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE DANIEL AND CONNIE HEEB APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE DOROTHY SAUERBECK AND REGINA MURPHY APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE KENNETH STUDER APPELLANT v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE KEITH AND AMY NELTNER APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE ALONZA AND PAMELA GRAY APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE KENNETH AND ELISSA PLATTNER APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE JOHN AND JOANNE FELDMANN APPELLANTS v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE ANNA M. ZINKHON APPELLANT v. SANITATION DISTRICT NO. 1, A KENTUCKY CORPORATION APPELLEE
BRIEFS FOR APPELLANTS, NANCY A. BARONE; ROBERT AND KAREN JOHNSON; DANIEL AND CONNIE HEEB; DOROTHY SAUERBECK AND REGINA MURPHY; KENNETH STUDER; KEITH AND AMY NELTNER; ALONZA AND PAMELA GRAY; AND KENNETH AND ELISSA PLATTNER: Robert E. Blau Cold Spring, Kentucky BRIEF FOR APPELLANTS, JOHN AND JOANNE FELDMANN: Carl E. Knochelmann, Jr. Covington, Kentucky BRIEF FOR APPELLANT, ANNA M. ZINKHON: Brandon N. Voelker Fort Mitchell, Kentucky BRIEF FOR APPELLEE: Scott M. Guenther Thomas A. Sweeney Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 15-CI-01070 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 15-CI-01070 AND 15-CI-01077 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 15-CI-01070 AND 15-CI-01175 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 15-CI-01070 AND 15-CI-01181 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 15-CI-01070 AND 15-CI-01245 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 15-CI-01070 AND 15-CI-01253 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 15-CI-01070 AND 16-CI-00015 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 15-CI-01070 AND 16-CI-00091 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 15-CI-01070 AND 15-CI-01243 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 15-CI-01070 AND 16-CI-00090 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. CLAYTON, CHIEF JUDGE: Appellants/property owners appeal from orders of the Campbell Circuit Court granting temporary and permanent easements to install sewer lines across their properties in favor of Appellee/Sanitation District No. 1, a Kentucky corporation (SD1). For the following reasons, we affirm.
This matter involves ten cases. The trial court consolidated the cases for hearing below. Likewise, this Court consolidated the cases to the extent that they would be heard by the same panel considering the merits of the appeals. Although the property owners raise different issues in their briefs, they all challenge the trial court's order allowing SD1 to take their properties for the easements and, therefore, we will address them collectively.
At the trial court level, twelve cases were consolidated. After the trial court held that SD1 had the right to take the properties to install the sewer lines, one property owner settled and another property owner chose not to appeal, which left ten cases.
The property owners own properties in Northern Kentucky along a proposed sewer line route. SD1 is a public sanitation department serving Northern Kentucky. SD1 seeks to install a sewer line from Ash Street in Silver Grove, Kentucky, to the Riley Road pump station in Alexandria, Kentucky.
As background, Northern Kentucky's wastewater collection system is comprised of two types of sewers: separate sanitary sewers and combined sewers. A sanitary sewer system carries sewage from underground pipes to a wastewater treatment facility to be treated before ending up in nearby waterways, like creeks or rivers. Sanitary sewers originate from bathrooms, sinks, or other such plumbing sources. Meanwhile, the combined sewer system carries both sewage and stormwater, like rain or melting snow. During dry weather conditions, the combined sewer system mostly contains sewage from homes and businesses, which is then treated at a wastewater treatment facility. During wet weather conditions, however, the capacity of the combined sewer can overflow because of excess stormwater. This results in excess flow discharged from the system. This is called combined sewer overflows (CSOs). Likewise, the sanitary sewers can exceed their capacity during wet weather conditions because, for example, the rain water may flow into the sanitary sewer pipes through improper connections. This is called sanitary sewer overflows (SSOs).
SD1 is responsible for the management, collection, transmission, and treatment of sanitary wastewater, as well as the stormwater. In 2007, SD1 reached an agreement with the United States Environmental Protection Agency (EPA) and the Kentucky Environmental and Public Protection Cabinet, as set forth in a Federal Court Order Consent Decree. See The Commonwealth of Kentucky, et al. v. Sanitation District No. 1 of Northern Kentucky, Civil Action No. 05-CV-199-WOB (E.D. Ky. April 18, 2007). The purpose of this Consent Decree was to improve the quality of the area's waterways and rivers to comply with the Clean Water Act, 33 U.S.C. § 1342. Under this Consent Decree, SD1's cleanup of CSOs and SSOs would help alleviate health hazards, such as raw sewage leaked into the environment before being treated.
To comply with the Consent Decree, SD1 planned certain projects to address the overflows. SD1's proposed construction of the Ash Street Pump Station and Ash Street Force Main (the "Project") is at issue in this matter. This Project includes five miles of pipe and construction of a pump station and is estimated to cost $22 million.
To complete the Project, SD1 needed easements from forty-seven property owners. SD1 obtained easements from all but twelve of these property owners.
SD1 made monetary offers to the twelve remaining property owners for the easements on their properties. Some of the property owners tried to negotiate with SD1, while others rejected the offers.
After the twelve property owners did not grant SD1 the easements, SD1 filed petitions for condemnation against them in Campbell Circuit Court beginning in October 2015. SD1 filed the petitions pursuant to Kentucky Revised Statutes (KRS) 220.010-.520 to exercise their right of eminent domain. SD1's petitions claimed that permanent easements were needed to install, operate, repair, and maintain the sewer lines, and temporary easements were needed to construct and install the sewer lines. Attached to the petitions were descriptions and drawings/plats of where the sewer lines would be located on each property.
After SD1 filed the petitions, the trial court appointed three commissioners, pursuant to KRS 416.580, to award the property owners the difference in fair market value of their lands before and after the taking of the easements, as well as to award the property owners the rental value for the temporary easements. After the commissioners filed their reports and listed the awards, the clerk issued summons against the property owners to show cause why SD1 did not have the right to condemn the properties.
The property owners answered SD1's petitions, contesting SD1's right to condemn. In addition, they argued alternative routes, not running through their properties, existed for the sewer lines.
SD1 agreed that the property owners could challenge the right to take their properties but requested an expedited evidentiary hearing on this issue because KRS 416.610(4) requires such challenges to be heard "forthwith." In addition, SD1's petitions were placed on the trial court's economical litigation docket. This docket is used in Campbell Circuit Court to promote prompt and inexpensive discovery in certain cases, such as property rights cases. See Kentucky Rule of Civil Procedure (CR) 93.04. The rules contemplate these cases will go to trial within several months. See CR 89(1)(d).
Accordingly, the trial court scheduled a right-to-take hearing for June 1, 2016. Leading up to the hearing, the parties filed various motions and pleadings, such as the property owners' petition for declaration of rights arguing that KRS 416.610(4) is unconstitutional, motions to compel, motions in limine, motions to set a jury trial, motions to continue the trial date, motions to declare SD1 a public agency, motions for an order to obtain soil samples, motions to set aside the commissioners' awards, motions to dismiss, motion to extend discovery deadlines, and motions for summary judgment.
Before the hearing, the trial court consolidated the cases into Sanitation District No. 1, a Kentucky Corporation v. Nancy Barone, Case No. 15-CI-01070. The trial court also bifurcated the issue of damages from the right-to-take hearing.
On the property owners' motion, the trial court continued the June 1, 2016 hearing to June 20, 2016. However, the trial court denied a subsequent motion by the property owners to continue, and the right-to-take hearing took place on June 20-21, 2016.
During the hearing, SD1 called four witnesses: Joseph Henry, Jeffrey Abshire, Ralph Johnstone, and Greg Larison. Mr. Henry is an engineer employed by GRW Engineer, Inc. He was hired to design a force main to mitigate the CSOs and the SSOs in the area. He testified regarding why the route was chosen and how studies were performed regarding the need for the Project by Hazen and Sawyer, an environmental engineering firm. Mr. Henry personally observed the raw sewage overflow. Jeffrey Abshire, the chief financial officer for the Kentucky Infrastructure Authority (KIA), testified that KIA agreed to lend SD1 up to $19,000,000 to fund the Project. Ralph Johnstone, the director of design and construction manager for SD1, testified regarding his work on the Project. He testified that SD1 considered different locations for the pump stations and different routes for the force main line, but the location chosen was the most constructible, effective, and cost-effective. Greg Larison, a surveyor with Viox & Viox, Inc., a civil engineering and surveying firm, testified regarding the proposed easements.
On behalf of the property owners, Teresa Cunningham, an engineer who used to work with the Kentucky Department of Environmental Protection, testified that there is a public need to fix the raw sewage overflow, but she did not agree with SD1's proposed fix. Several property owners also testified, including: Alonza Gray, Kevin Neltner, Regina Murphy, Daniel Heeb, Ken Studer, Robert Johnson, Elissa Plattner, Anna Zinkhon, and Anthony Vogel.
The trial court's order refers to this witness as Teresa Cunningham, but the property owners' briefs refer to her as Sarah Cunningham.
The trial court had to decide if SD1's taking claims: (1) were necessary or in furtherance of a valid public purpose, Proffitt v. Louisville and Jefferson County Metropolitan Sewer Dist., 850 S.W.2d 852 (Ky. 1993); (2) were undertaken arbitrarily and capriciously indicating a "clear and gross abuse of discretion," Com., Dept. of Highways v. Vandertoll, 388 S.W.2d 358 (Ky. 1964); or (3) constituted "manifest fraud." Commonwealth v. Cooksey, 948 S.W.2d 122 (Ky. App. 1997).
On October 7, 2016, the trial court concluded that SD1 had the right to condemn each property. In its findings of fact and conclusions of law, the trial court held that SD1 had the right of eminent domain, which it may exercise without prior authorization from any other agency; the proposed condemnation was for a public use and necessary; SD1 negotiated in good faith to purchase the easements; there was reasonable assurance the Project would come to pass; and KRS 416.610(4) was constitutional. The trial court did modify the language in the easements to reflect each party's rights and responsibilities for the easements. The October 7, 2016 judgment was twice amended to attach assessments and plats to the original judgment and to correct clerical errors.
The trial court dismissed SD1's claims against Neltner Farms, LLC for improper service. Neltner Farms, LLC is not part of this appeal, although Keith and Amy Neltner are parties.
The October 24, 2016 order references "the Court's Final Judgment entered on October 6, 2016." While the order appears to have been signed on October 6, 2016, it was entered by the Campbell Circuit Court Clerk on October 7, 2016.
To prevent execution of the judgment, the property owners moved to stay the October 7, 2016 order, which the trial court temporarily granted on November 4, 2016, pending a hearing on an appropriate supersedeas bond. The property owners also moved to stay pending these appeals.
In their appeals, the property owners assert various claims, which are outlined below:
1) nine appellants argue that KRS 416.610(4) is unconstitutional because it violates the separation of powers doctrine, fails to provide for a jury trial, and fails to provide for an appeal by right;
2) nine appellants argue that SD1 is a public agency and, thus, the Finance and Administration Cabinet must exercise the right to eminent domain against them;
3) three appellants argue that SD1's condemnation was for a private purpose instead of a public use;
4) five appellants argue that SD1 did not negotiate in good faith;
5) nine appellants raise discovery or evidentiary issues, such as:
a) the trial court erred in allowing SD1 to call Surveyor Greg Larison as a witness;
b) the trial court erred in telling SD1 to prove that the project will "come to pass";
c) the trial court did not allow sufficient time for discovery;
d) the trial court erred in denying the property owners' request to inspect the pump location and take soil samples;
e) the trial court's ruling that SD1's use of Kentucky Infrastructure Authority Funds is appropriate; and
f) SD1 did not comply with Kentucky State Clearinghouse requirements; and
6) nine appellants argue that a supersedeas bond should not be required when appealing the right to take.
All but Zinkhon make this argument.
All but Zinkhon make this argument.
Johnson, Sauerbeck/Murphy, and Feldmann make this argument.
Heeb, Sauerbeck/Murphy, Gray, Plattner, and Zinkhon make this argument.
Barone, Heeb, Studer, Neltner, and Plattner make this argument.
Barone, Heeb, Studer, Neltner, and Plattner make this argument.
Barone, Johnson, Studer, Neltner, Gray, and Feldmann make this argument.
Studer makes this argument.
Gray makes this argument.
Gray makes this argument.
All but Zinkhon make this argument.
For these consolidated appeals, the property owners filed separate briefs raising the above issues. In their briefs, excluding Zinkhon's, they state that they could not argue all issues in their individual briefs due to page limitations and, therefore, incorporate by reference the arguments made in the other property owners' briefs. However, the property owners fail to identify which argument or arguments they are "incorporating by reference." This is frustrating because SD1 moved to consolidate the cases for appeal, but the property owners objected claiming they had "issues that are separate and distinct from other property owners." Yet, their briefs provide no roadmap to the Court regarding who is raising which argument or why.
While incorporating an argument by reference can be useful, it is not to be used as a catchall. Litigants should specify which argument they are incorporating. Our federal court brethren allow incorporation of co-party briefing in consolidated cases, but litigants cannot use such incorporation by reference to exceed word count limit. See Fed. R. App. P. 28(i). The incorporated material counts against the litigants' words in the same manner as if it had been expressly included in the brief. Microsoft Corp. v. DataTern, Inc. 755 F.3d 899, 910 (Fed. Cir. 2014). Although we could limit the arguments of each property owner to only those raised in their individual briefs, we will not do so given the overall issue is SD1's right to take. The litigants should be mindful, however, that the purpose of consolidation and co-party briefing is to advance the convenience of the Court and the parties, and to avoid unnecessary expense or delay. The trial court appropriately consolidated the underlying cases to determine whether SD1 had the right to take, which is the issue before us now.
Since this case was tried before the trial court without a jury, we review that court's factual findings under a clearly erroneous standard and the legal issues de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001) and CR 52.01. Factual findings are not clearly erroneous if they are supported by substantial evidence. Id. "Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Natural Resources & Environmental Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994). As the fact-finder, the trial court has the province to determine the credibility of witnesses and the weight to be given to the evidence. God's Center Foundation, Inc. v. Lexington Fayette Urban County Government, 125 S.W.3d 295, 300 (Ky. App. 2002).
Compliance with CR 76.12
As a preliminary matter, we address SD1's argument that the property owners failed to comply with CR 76.12(4)(c)(v) and, therefore, those briefs should be stricken or the Court should review them only for manifest injustice. Namely, SD1 complains that those briefs contain "sparse" citations to the record and fail to state whether issues were properly preserved for appellate review. The property owners provide no response to this argument.
Pursuant to CR 76.12(4)(c)(v), a brief is required to contain an argument "with ample supportive references to the record," as well as "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." This rule allows a meaningful and efficient review because the Court is directed to the most important aspects of the appeal, such as "what facts are important and where they can be found in the record; what legal reasoning supports the argument and where it can be found in jurisprudence; and where in the record the preceding court had an opportunity to correct its own error before the reviewing court considers the error itself." Hallis v. Hallis, 328 S.W.3d 694, 696-97 (Ky. App. 2010). When an appellate advocate fails to abide by this rule, the Court's options are to: (1) ignore the deficiency and proceed with the review; (2) strike the brief or its offending portions; or (3) review the issues raised in the brief for manifest injustice only. Id. at 696.
Here, SD1 does not identify when the property owners failed to reference the record or which argument was improperly preserved for review to demonstrate that the briefs fail to comply with CR 76.12. Based on our review, the complained-of briefs lack some references to the record, especially with regard to alleged facts. As a whole, however, the property owners cite specific orders, transcripts, and pages of the appellate record and their briefs identify how issues were preserved below in compliance with CR 76.12. Because SD1 failed to specifically identify deficiencies in the property owners' briefs, the Court will proceed with its review unless otherwise noted below.
SD1 does argue that the property owners' challenge to the constitutionality of KRS 416.610(4) was not properly preserved for review. However, that argument is based on the property owners' alleged failure to notify the Attorney General, which will be addressed separately, and not because they failed to identify how they preserved an issue at trial.
Constitutional challenge of KRS 416.610(4)
The property owners, excluding Zinkhon, argue that KRS 416.610(4) is unconstitutional because it violates the separation of powers doctrine, fails to provide for a jury trial, and fails to provide for an appeal by right. Before addressing this argument, however, SD1 claims the Attorney General was not properly notified of the constitutional challenge and, thus, the issue should not be reviewed on appeal. Specifically, SD1 contends that the property owners (excluding Zinkhon, who did not raise this argument) did not serve the Attorney General with "the documents which initiated this appeal," pursuant to KRS 418.075(2). And, the property owners violated CR 76.03(5) by failing to serve a copy of their prehearing statements upon the Attorney General.
In response, the property owners claim they sent a summons to the Attorney General when they filed their answers and counterclaims for declaratory relief challenging the constitutionality of KRS 416.610(4). They allege the Attorney General declined to participate but cite no evidence to prove this. The property owners further claim they served the Attorney General with their prehearing statements, pursuant to CR 76.03(5), and, thus, the Attorney General was given notice and had an opportunity to be heard.
The Feldmanns did not file a reply brief and, therefore, offer no response to SD1's argument that they did not preserve their challenge to the constitutionality of KRS 416.610(4).
In a pleading below (SD1's response to Barone's motion to hold Eminent Domain Act of Kentucky unconstitutional and motion for jury trial), SD1 alleged its attorney spoke with a representative from the Attorney General's office. Although the Attorney General had not been served with summons in any declaration of rights action filed by Attorney Robert Blau (who represents eight of the ten appellants in this consolidated appeal), the Attorney General received a response to the verified petition in the Vogel case. And, the Attorney General declined to enter an appearance in Vogel, which also challenged the constitutionality of KRS 416.610. (R. 442-48.) The Anthony and Donna Vogel v. SD1 case is not part of this consolidated appeal, although it was part of the underlying consolidated action.
SD1 is correct. When a statute's constitutionality is challenged, the Attorney General is to be notified. The Attorney General must be given an opportunity to defend the constitutionality of a statute because a declaration regarding its constitutionality affects all the citizens of the Commonwealth. Jacobs v. Commonwealth, 947 S.W.2d 416, 419 (Ky. App. 1997). It is "the right of the people, by the chief law officer, to be heard on matters affecting the validity of duly enacted statutes." Maney v. Mary Chiles Hosp., 785 S.W.2d 480, 481 (Ky. 1990) (citing KRS 15.020)). The Attorney General notice requirements are set forth in CR 24.03, KRS 418.075(1) and (2), and CR 76.03(5), which provide that notice is to be given to the Attorney General at the petition stage and at the appellate stage (with the filing of the initiating appeal documents, as well as the filing of a party's prehearing statement).
First, CR 24.03 provides, in relevant part: "When the constitutionality of an act of the General Assembly affecting the public interest is drawn into question in any action, the movant shall serve a copy of the pleading, motion or other paper first raising the challenge upon the Attorney General." This rule allows the Attorney General to intervene in a lawsuit challenging a statute's constitutionality.
Second, KRS 418.075(1) and (2) provide:
(1) 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.So, subsection (1) of KRS 418.075 covers the petition stage, while subsection (2) covers the appellate stage of notifying the Attorney General.
(2) In any appeal to the Kentucky Court of Appeals or Supreme Court or the federal appellate courts in any forum which involves the constitutional validity of a statute, the Attorney General shall, before the filing of the appellant's brief, be served with a copy of the pleading, paper, or other documents which initiate the appeal in the appellate forum. This notice shall specify the challenged statute and the nature of the alleged constitutional defect.
Finally, CR 76.03(5) instructs parties to notify the Attorney General by service of a party's appellate prehearing statement. This rule states, in relevant part:
In any civil case . . . in which the constitutionality of a statute is challenged by any party as an issue in the appeal, a copy of the prehearing statement shall be served upon the Attorney General. The Attorney General may file within 10 days of the filing of the prehearing statement an entry of appearance.
Applying these rules and statute, the Attorney General was properly notified at the trial court level, as evidenced by the May 13, 2016 summons issued by the Campbell Circuit Court Clerk to the Attorney General, as well as the May 20, 2016 returned proof of service card signed by the Attorney General's office. This satisfied the notice requirement at the trial level. Notice to the Attorney General at the appellate level, however, is more problematic for the property owners.
The property owners filed their notices of appeal on November 4, 2016. The Attorney General is not listed on the certificate of service of those notices. The property owners cite no evidence to prove the Attorney General received notice of these appeals. Although the property owners attached a third amended notice of appeal, which lists the Attorney General on the June 17, 2019 certificate of service, to their reply briefs, the Court denied the property owners' motion for leave to file this third amended notice of appeal. Thus, this pleading is not part of the record and, even if it were, this would not comply with the strict requirements of KRS 418.075(2). The statute requires the Attorney General be served with the notice of appeal before the filing of the appellate briefs. Maney, 785 S.W.2d at 482. This allows the Attorney General to be part of the appeal. If the property owners served the Attorney General with the unfiled third amended notice of appeal, this still happened after the briefs were filed in this Court. This two-and-one-half-year-old delay in notification did not give the Attorney General an opportunity to defend the constitutionality of KRS 416.610(4) in this Court.
Yet, the Attorney General may have been notified of the constitutional challenge to KRS 416.610(4) before the briefs were filed through service of the prehearing statement. The property owners filed their prehearing statement on March 8, 2017. While the Attorney General is not listed on the certificate of service of that prehearing statement, about one year later, on March 14, 2018, the property owners filed an amended prehearing statement, which did list the Attorney General on the certificate of service.
The amended prehearing statement attached at Tab 1 to the property owners' reply briefs is not filed-stamped but lists the date of October 25, 2017, on the certificate of service. According to the appellate record, the property owners moved for leave to file this amended prehearing statement on November 3, 2017, to add additional orders issued by the trial court regarding the supersedeas bond. SD1 did not object to the motion for leave to file this amended prehearing statement. Accordingly, the Court granted the property owners' motion on March 14, 2018.
Although CR 76.03(5) does not specify that the initial, as opposed to the amended, prehearing statement must be served on the Attorney General, that is the intent of the rule, especially when read in conjunction with KRS 418.075(2). Again, the purpose of the notification provisions is to allow the Attorney General to intervene and defend a constitutional challenge to the statute. Moreover, "strict compliance with the notification provisions of KRS 418.075 is mandatory" and the property owners did not comply. Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky. 2008). Kentucky courts have refused to address arguments that a statute is unconstitutional unless the notice provisions of KRS 418.075 have been fully satisfied. Id. In keeping with this case law and noting the property owners failed to present any proof that the Attorney General was, indeed, notified of this appeal, we decline to address the constitutionality of KRS 416.610(4).
With that said, we also note that the Court already denied the property owners' challenge to KRS 416.610(4) in our March 14, 2018 order. Furthermore, this is not a new challenge in Kentucky jurisprudence. The constitutionality of KRS 416.610(4) has been evaluated and upheld before. See Ratliff v. Fiscal Court of Caldwell County, Kentucky, 617 S.W.2d 36 (Ky. 1981) (holding condemnee had right to appeal from interlocutory judgment finding condemnor had the right to condemn); Cooksey, 948 S.W.2d 122 (holding the right to take is question for court and issue of damages is for jury); Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff, 248 S.W.3d 533, 537 (Ky. 2007) (holding the right to jury trial under either Section 7 or Section 242 of the Kentucky Constitution is "fundamental, but neither is more so than the other").
In their response to SD1's motion to consolidate and advance the appeal, the property owners moved the Court to declare KRS 416.610(4) unconstitutional. The Court treated that portion of the property owners' response as a separate substantive motion and subsequently denied it on March 14, 2018.
Is SD1 a public agency?
Next, the property owners, except for Zinkhon, argue that SD1 is a public agency and, as such, either Campbell County or the Finance and Administration Cabinet (Cabinet) should have initiated the condemnation proceedings against them instead of SD1. Essentially, the property owners argue that, pursuant to KRS 416.560(2) and (3), a political body should be accountable for taking someone's property.
Subsection (2) of KRS 416.560 provides that a department, instrumentality, or agency of a city, county, or urban-county government shall exercise its right of eminent domain by requesting the governing body of the city, county, or urban-county to institute condemnation proceedings on its behalf. Meanwhile, subsection (3) of KRS 416.560 provides that an agent of the Commonwealth of Kentucky can only exercise its right of eminent domain by requesting the Finance and Administration Cabinet institute condemnation proceedings on its behalf. Thus, the property owners argue that SD1 is an agent of either the county or the Commonwealth and, as such, either Campbell County or the Cabinet should have instituted the condemnation proceedings against them instead of SD1.
In response, SD1 argues it is an autonomous political subdivision, which is neither an agent of the county nor an agent of the Commonwealth. Rather, SD1 is a statutorily created "special district" with the right to take. We agree.
The Kentucky Supreme Court settled this issue in Coppage, holding that SD1, as a sanitation district, is a political subdivision or municipal corporation. Coppage Construction Company, Inc. v. Sanitation District No. 1, 459 S.W.3d 855, 860 (Ky. 2015); KRS 220.110-170. As such, a sanitation district is a form of "special district," which is "any agency, authority, or political subdivision of the state which exercises less than statewide jurisdiction and which is organized for the purpose of performing governmental or other prescribed functions within limited boundaries." KRS 65.005(2)(a). And, special districts specifically include sanitation districts. Coppage Construction Company, Inc., 459 S.W.3d at 860. Sewer districts are established as special districts "to carry out a limited public purpose in a local area," and perform "services similar to a private corporation." Id. at 862-63 (quoting Calvert Investments, Inc. v. Louisville & Jefferson County Metropolitan Sewer Dist., 805 S.W.2d 133, 135-38 (Ky. 1991)).
Accordingly, the trial court properly held that SD1 is not a public agency and does not need Campbell County or the Cabinet to initiate such proceedings on its behalf. SD1 has the right to initiate condemnation proceedings on its own behalf against the property owners.
Is SD1's taking for a public use?
The property owners next argue SD1 did not prove that it was taking their properties for a public use. They allege the taking will benefit a private meat processing plant instead of the public because the sewer overflows will only be mitigated, not eliminated.
In response, SD1 argues they presented substantial evidence to prove the Project was for the public benefit and that raw sewage will be significantly reduced. Moreover, SD1 claims the property owners presented no evidence that the chosen route for the sewer line is for the benefit of the meat processing plant and, even if a private corporation may incidentally benefit, that does not negate the public necessity for the Project.
Under Kentucky's Constitution, the authority to condemn property through the power of eminent domain is subject to the restriction that the taking be for "public use" and the condemnee receive "just compensation." Ky. Const. § 13, 242; KRS 416.540-680. However, SD1 enjoys a presumption that the taking of private property is for a public use when it declares that the taking is necessary. See McGee v. City of Williamstown, 308 S.W.2d 795, 797 (Ky. 1957). The property owners bear the burden of showing that the taking was not necessary or for a public use. Jefferson County v. Clausen, 297 Ky. 414, 419, 180 S.W.2d 297, 300 (1944). While the courts will review SD1's taking "for arbitrariness or action in excess of its authority," SD1's determination that the taking was necessary "is ordinarily conclusive." God's Center Foundation, Inc., 125 S.W.3d at 299-300.
Here, the trial court found SD1's taking for the Project was necessary and held the property owners' lands were being taken for a public use. While the property owners argued that SD1 intended to condemn their properties for a private purpose - to address a chloride problem at the meat processing plant - their allegations were unsupported by the record. They attempted to have Ms. Cunningham, an expert with sanitation experience, testify the Project was designed to benefit the meat processing plant. Yet, Ms. Cunningham could only testify that it was "just hard for (her) to imagine" why SD1 chose the pump station location unless it was for the benefit of the meat processing plant. Because she had no basis in fact to support her opinions, SD1 challenged Ms. Cunningham's testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and the trial court correctly excluded Ms. Cunningham's opinion testimony.
Meanwhile, Mr. Henry and Mr. Johnstone both personally observed evidence of raw sewage in Silver Grove and testified they believed this sewage was a health hazard. They testified the Project would eliminate 25 million gallons of raw sewage in a high-water year and 2.4 million gallons in a low-water year. Mr. Johnstone also testified that the Project was not being constructed to resolve a chloride problem as SD1 already resolved this issue. And, even Ms. Cunningham, the property owners' witness, agreed that containing the raw sewage overflow was a public need. She just disagreed with the proposed fix to the problem.
According to the evidence, the EPA is requiring SD1 to mitigate the sewage overflow in that area. To comply, SD1 considered several ways to resolve the sewage overflow problem, including alternative routes for the sewer main route and pump station. Mr. Henry testified that, based on his experience as an engineer, the chosen route was the best route because it was the most constructible and had the lowest cost. Mr. Johnstone agreed that the best route for the Project was through the property owners' properties.
"Although the factors of necessity and public use associated with condemnation are ultimately legal issues, resolution of those issues encompasses factual matters subject to deferential review on appeal." God's Center Foundation, Inc., 125 S.W.3d at 300. Considering this standard of review and the presumption that SD1's taking is for a public use, we affirm the trial court's finding that SD1 had the right to take the property owners' properties for this Project. This area has problems with its sewer systems. Understandably, the property owners do not want sewer lines running through their properties, especially since they cannot access the lines for their own purposes free of charge. However, this does not defeat the presumption that condemning the properties is for a public use. Accordingly, we agree with the trial court's decision.
Did SD1 negotiate in good faith?
The property owners (Heebs, Sauerbeck/Murphy, Grays, Plattners, and Zinkhon) next dispute the trial court's finding that SD1 engaged in good faith negotiations to purchase the easements before filing the eminent domain petitions. SD1 agrees that a condemnor has a duty to negotiate in good faith before seeking condemnation. However, SD1 claims it is not required to haggle and, when it made offers based on appraisals to the property owners, SD1 satisfied its duty to negotiate in good faith. Coke v. Com. Dept. of Finance, 502 S.W.2d 57, 59 (Ky. 1973).
For the Heebs, SD1 initially offered $11,900 for the easement on their property after SD1 obtained an appraisal from Schoepf Associates, Inc., an appraisal firm. In response, Mr. Heeb requested SD1 to inspect his water well, as he worried the sewer line construction may contaminate his drinking water. Mr. Heeb testified that SD1 never inspected his well and when he refused to sign based on his concerns, SD1 reduced its offer to $4,250. The court-appointed commissioners subsequently awarded the Heebs $11,500. Because SD1 reduced its offer, the Heebs claim SD1 acted in bad faith and tried to coerce the property owners into agreeing to the easements. However, at the hearing, Mr. Heeb testified that he did not care about the money. He just did not want the sewer line through his property.
For the mother and daughter property owners, Ms. Sauerbeck and Ms. Murphy, SD1 initially offered $6,092. Ms. Murphy had concerns regarding the proposed easement, like the preservation of topsoil and trees on her property. She sent proposed changes to SD1 and testified regarding her negotiations with SD1 on how to protect the property. She subsequently received an offer of $8,725. Then, SD1 lowered the offer to $3,120. This last offer omitted all the conditions she had been negotiating with SD1 about. The court-appointed commissioners subsequently awarded Ms. Murphy and Ms. Sauerbeck $6,900. At the hearing, Ms. Murphy testified that she never contacted SD1 after receiving the $3,120 offer "because it was never a question about the amount of money. It was always a question about protecting the land."
For the Grays, SD1 initially offered $2,380. Mr. Gray expressed concerns about, for example, the size and pressure of the forced main. SD1 then lowered its offer to $700. The court-appointed commissioners awarded the Grays $1,500. At the hearing, Mr. Gray testified he was not interested in granting the easement even before he received the $700 offer.
For the Plattners, SD1 initially offered $2,500. They asked SD1 if they could tap into the proposed sewer line but were told they could not because it would cause a reversal of sewage into their home or business. Ms. Plattner testified that her husband met with SD1 engineer, Mr. Henry, to discuss how a large grove of trees on their property may be affected by the easement. Mr. Henry suggested they get an arborist to estimate the cost of replacing the trees. After obtaining an arborist report and estimate of $63,000, Mr. Henry did not respond. The Plattners did receive a second offer of $23,600 with SD1's notice of intent to condemn. The court-appointed commissioners subsequently awarded the Plattners $8,000. At the right-to-take hearing, Ms. Plattner testified that she did not try to negotiate a different price after receiving the $23,600 offer because she found SD1's notice letter "dismissive."
For Zinkhon, she is only appealing the good faith negotiations issue. According to the trial court's order, Ms. Zinkhon testified that, in 2010, she learned SD1 was considering sewer improvements in Camp Springs and requested a community meeting. At the meeting, SD1 presented its plans for the Project. When a resident asked what benefits they would receive from the forced main lines, SD1 told them they would receive no direct benefit. Residents were angry and told SD1 about their septic problems. SD1 agreed to look at these issues. In November 2010, Ms. Zinkhon received the proposed easement on her property and an offer. When she spoke to Kyle Boyle at SD1, he told her SD1 did not need to talk with her because it had the necessary signatures to move forward with the Project. Ms. Zinkhon then learned all she could about the Project and attended SD1 Board meetings. Although Ms. Zinkhon spoke with Viox and Viox, the civil engineering and surveying firm, after first receiving the proposed easement and offer, she "set aside the offer and did not pursue making any changes" when she got involved with the Project process. She testified her offers never really changed and she and SD1 became deadlocked.
We agree that SD1 had a legal obligation to negotiate in good faith to acquire the easements from the property owners before proceeding with condemnation. Indeed, good faith negotiations have been deemed a condition precedent to any judicial condemnation proceeding. McGee, 308 S.W.2d at 798. We also note that this obligation is not cursory. "A single take-it-or-leave-it offer of a manifestly inadequate amount could well evidence a failure to make a reasonable effort to acquire the land by contract of private sale." Eaton Asphalt Paving Co., Inc. v. CSX Transp., Inc., 8 S.W.3d 878, 883 (Ky. App. 1999) (citation omitted). Here, SD1 made offers of settlement to each property owner based on appraisals, which the trial court concluded were not take-it-or-leave-it offers. Some property owners rejected the offers, while others were more concerned about protecting their land or their personal responsibility if the sewer pipes failed than the offer amounts. The trial court found the property owners were acting as a group and, unless all of them agreed to the sewer line, none of them would agree. Therefore, any further negotiations would have been futile. These findings were supported by the evidence and, thus, the trial court's ruling was not clearly erroneous.
As to Ms. Zinkhon's corresponding argument that SD1's failure to negotiate in good faith is evidenced by the trial court changing the language in the easements when issuing its order, this is not proof of bad faith. The trial court modified the easement language to reflect each party's rights and responsibilities. Those changes do not affect the conclusion that SD1 negotiated in good faith and had the right to take.
Did the trial court err in allowing SD1 to call Surveyor Larison?
The property owners (Barone, Heeb, Studer, Neltner, and Plattner) next complain that SD1 should not have been allowed to call Surveyor Greg Larison to testify regarding the survey boundaries of the easements because he was not listed as an expert witness in compliance with CR 93.04, which requires an exchange of information. The property owners imply that the trial court may have granted them a directed verdict if Surveyor Larison had not testified because the easements were overbroad. The property owners also imply that the overbroad easements did not give them notice of what property was being taken.
Based on our review of the record, we disagree. At the hearing, SD1 asked the trial court to take judicial notice of the proposed easements/plats, which were attached to its condemnation petitions. The property owners objected to the trial court taking judicial notice, although they had no objection to the admission of the proposed easements themselves. Their objection was to the scope of the easements being sought by SD1, which is a question of damages not relevant to the right-to-take hearing. During the hearing, the trial court questioned whether SD1 even needed a witness to testify regarding the proposed easements. Yet, when the property owners continued to object, the trial court ruled that SD1 could call a surveyor to testify to the metes and bounds descriptions in the easements.
The next day, to comply with the trial court's ruling, SD1 recalled Mr. Johnstone to testify. When the property owners objected to Mr. Johnstone's ability to testify regarding the proposed easements, SD1 then called Surveyor Larison. SD1 introduced the plats into evidence through Surveyor Larison because he prepared the legal descriptions and plats.
The trial court did not err in allowing SD1 to call Surveyor Larison to testify regarding the easements. The issue of whether a surveyor was even needed to testify to the metes and bounds descriptions of the easements was discussed at length in the hearing. SD1 argued it did not need a surveyor to testify since the property owners were not disputing the accuracy of the surveys. The trial court acknowledged that, with ordinary eminent domain petitions, if the property owner does not object, the courts use the legal descriptions in those petitions without testimony to grant the right to take. Here, however, because the property owners (with the exception of Zinkhon and Feldmann) refused to stipulate to the easement descriptions, the trial court requested a witness be called unless the parties could cite a case holding a survey is admissible without testimony from its creator. SD1 did subsequently cite Bates v. Bates, 399 S.W.2d 716 (Ky. 1965), for this proposition, but SD1 did not provide a copy of the case at the hearing and Surveyor Larison was already present, so the trial court allowed him to be called as a witness.
After hearing Surveyor Larison's testimony, the trial court admitted the easements into evidence as exhibits. Pursuant to KRS 416.570(2), a petition must contain "a particular description of the property . . . sought to be condemned[.]" The trial court reasoned that the easement descriptions were provided to counsel at the beginning of the case in the form of the condemnation petitions. Therefore, allowing Surveyor Larison to "regurgitate mostly what is already in the documents that were provided" is not prejudicial to the property owners. The trial court further held that, although no testimony may have been needed, Surveyor Larison's testimony was relevant and made the record clear.
The trial court was correct that Surveyor Larison's testimony was not even required. Under Bates v. Bates, a survey is admissible even though it was not introduced by its maker when a person familiar with the survey testifies to their familiarity with the map and their reliance upon it. Bates, 399 S.W.2d at 718-19. Here, the trial court did not abuse its discretion by allowing Surveyor Larison to testify regarding the easements.
Did the trial court err by "telling" SD1 to prove "come to pass"?
The property owners (Barone, Heeb, Studer, Neltner, and Plattner) next argue the trial court abused its discretion, in the May 31, 2016 hearing, by telling SD1 to prove the Project would come to pass. Specifically, the property owners allege the trial court told SD1 it needed to prove the permits and funding for the Project had been obtained to establish that the Project had a reasonable probability to come to pass.
This argument misrepresents the record. In the May 31, 2016 hearing, the trial court went over its rulings on various issues. At no time did the trial court "instruct" SD1 that it needed to prove permits and funding for the Project. Indeed, the record reveals the following discussion:
The Court: I think permits and funding I think was something that SD1 took off the table, meaning something they were going to present to me; is that correct? Permits and funding, I think it was something the other day that you said that you were going to present some evidence for that?(May 31, 2016 hearing, pp. 21-22.) This discussion does not equate to the trial court instructing SD1 on what proof to present.
Male speaker: That's correct.
The Court: Okay. So that's not anything I need to address right now.
In its brief, SD1 explains that it previously filed a motion in limine to exclude evidence regarding permits and funding of the Project as irrelevant. At some point before the May 31, 2016 hearing, however, SD1 communicated to the trial court that this portion of its motion in limine was moot. Thus, the trial court's statement that SD1 took this issue "off the table" meant SD1 changed its mind and intended to withdraw that part of its motion in limine and introduce evidence of permits and funding at the right-to-take hearing. The May 31, 2016 hearing transcript is consistent with that explanation, while the property owners' argument in this regard is not.
Lumped in with this argument is the property owners' complaint that SD1 failed to gain the needed permits and funding to prove the Project would come to pass. The "come to pass" standard was articulated in Northern Kentucky Port Authority, Inc. v. Cornett:
The test cannot be whether it is possible, whether it is conceivable that the project would fail. The test must be whether there is a reasonable assurance that the intended use will come to pass. If there is reasonable probability that the public utility will comply with all applicable standards, will meet all requirements for the issuance of necessary permits, and will not otherwise fail or be unable to prosecute its undertaking to completion, there is a right of condemnation.625 S.W.2d 104, 105 (Ky. 1981) (quoting Falkner v. Northern States Power Co., 75 Wis.2d 116, 248 N.W.2d 885, 893 (1977)). As the Kentucky Supreme Court stated in that case, "[i]t is not conceivable that all phases of the development . . . be completed simultaneously or completed within a reasonable time . . . before condemnation proceedings may be instituted." Id. at 105.
In its order, the trial court detailed SD1's evidence that permits and funding were in place. The trial court did not abuse its discretion in ruling that, based on substantial evidence of reasonable assurances, the Project will come to pass to grant SD1's right to take.
Along with the "come to pass" argument, the property owners/the Grays additionally argue that SD1 did not comply with all the Kentucky State Clearinghouse requirements and that SD1's funding violates Kentucky law. Specifically, the Grays claim that the permits needed by SD1 have already expired, and that SD1 cannot use federal funds to construct the Project because that would violate KRS 220.310 and KRS 220.322(3).
Once again, we conclude that the trial court did not violate its discretion in ruling the Project would come to pass. In its order, the trial court detailed the substantial evidence supporting the reasonable probability of the necessary permits being issued:
Based on the evidence presented, the Court believe [sic] that the Project will come to pass. Ralph Johnstone testified that Kentucky has a clearinghouse which recommends what agencies' information has to be submitted to in order to move forward with the Project. SD1 complied with all requests. SD1 has permits from the United States Army Corp of Engineers, Kentucky Division of Water, and the Kentucky Transportation Cabinet. The Energy and Environment Cabinet issued a FONSI letter on June 20, 2014, in which they determined that the Project will have no significant negative impact on the environment. Once all easements are obtained, SD1 will be required to get a building permit, electrical permit, and a stream erosion permit, which he believed SD1 would acquire. He further testified that funding for the Project is in place. Joe Henry testified that he believed all the necessary permits to move forward had been obtained. Jeffrey Abshire, the chief financial officer for KIA, testified that KIA has agreed to fund the Project up to $19,000,000.00. He further testified that additional money could be requested and KIA could fully fund the Project. Although there is some evidence that the Kentucky Clearinghouse endorsement would expire on February 2, 2013, unless a renewal was requested and that a flood permit may still need to be obtained, the Court has no reason to believe that the flood permit and the Kentucky State Clearinghouse endorsement would not be obtained.Although the Grays are correct that the Kentucky Clearinghouse permit may have expired, after hearing all the evidence, the trial court properly exercised its discretion in concluding the necessary permits would be obtained.
As to the Grays' contention that SD1 cannot use federal funding under KRS 220.310 and KRS 220.322(3), they did not properly preserve this argument. The Grays reference a June 7, 2016 ruling in which the trial court purportedly denied their motion to declare that SD1 obtained funding in violation of KRS 220.310. However, the Grays failed to provide a citation to the appellate record for either their motion or the trial court's ruling. The Court will not hunt through the record on their behalf. Requiring an appellate brief to contain citations to the record of where an issue was preserved for review and in what manner is important to the firmly established rule that the trial court be given the opportunity to rule on questions before they are presented for appellate review. See Smothers v. Baptist Hospital East, 468 S.W.3d 878, 881 (Ky. App. 2015) (citing Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990)).
Did the trial court allow a sufficient amount of time for discovery?
The property owners (Barone, Johnson, Studer, Neltner, Gray, and Feldmann) argue they were not allowed a sufficient amount of time for discovery. In response, SD1 argues that significant discovery occurred with SD1 producing thousands of pages of documents. Also, seven months elapsed between the filing of the condemnation petitions and the June 20-21, 2016 right-to-take hearing, which is consistent with the economical litigation docket timeline to which this case was assigned. Moreover, SD1 notes the trial court granted the property owners a previous continuance.
Here, the property owners fail to demonstrate how they were prejudiced by the time allowed for discovery. Therefore, any alleged error of not granting another continuance was harmless. In addition, trial courts are required to immediately decide eminent domain proceedings. Ratliff, 617 S.W.2d at 38. SD1's right to an immediate hearing on the right to take should be balanced with the property owners' right to discovery. We conclude that the trial court did not abuse its discretion in denying the property owners' second motion for a continuance when they had over six months to conduct discovery.
Did the trial court err by denying the property owners' motion to inspect?
The property owners (Studer) argue the trial court erred when it denied their motion to enter the Ash Street Pump site to conduct drilling tests and obtain soil samples. They claim this evidence is relevant to determining whether SD1 acted arbitrarily or capriciously in choosing the selected route for the Project. The property owners allegedly filed their motion to enter/inspect on May 12, 2016, and the trial court denied the motion on June 17, 2016. However, the property owners provide no reference to the appellate record for either.
SD1 claims the trial court, indeed, granted the property owners a continuance to give the property owners an opportunity to inspect the site, and only denied the property owners' motion to conduct drilling tests after finding such a request irrelevant to the issue of SD1's right to take. Furthermore, SD1 notes that Mr. Henry testified that, even though the site was previously used as a landfill, it is a constructible site and much of the debris will be removed in the construction of the Project. Moreover, he testified that no hazardous material is at the site, and the Kentucky Energy and Environment Cabinet issued a Finding of No Significant Impact (FONSI) letter confirming the Project will not significantly impact the environment.
As stated, under God's Center Foundation, Inc., a condemning body, like SD1, has broad discretion in exercising its eminent domain authority. 125 S.W.3d at 299. And, its determination that the taking is necessary is "ordinarily conclusive, but the courts will review the condemning body's exercise of discretion for arbitrariness or action in excess of its authority." Id. at 299-300 (footnote omitted). Here, the trial court concluded that drilling tests were irrelevant to SD1's right to take. The trial court repeatedly reminded the property owners that its job was to determine whether SD1 had the right to take, not whether an alternative or better route existed for the Project. Moreover, the trial court did consider testimony that soil samples were evaluated and found to contain various materials, including plastic, steel, etc. The trial court had the discretion to determine whether to grant the property owners' request to conduct drilling tests at the site, and we conclude the trial court did not abuse that discretion.
Was a supersedeas bond required?
The property owners, excluding Zinkhon, argue that the trial court erred by requiring them to post a supersedeas bond because SD1 only obtained property easements, not monetary judgments. If they lose their appeal, the property owners claim no money judgment will need to be satisfied and, thus, the bond serves no purpose.
SD1, on the other hand, argues that CR 62.03 and CR 73.04 require the property owners to post a supersedeas bond to stay enforcement of a judgment pending appeal. Otherwise, SD1 argues it will not be guaranteed its recovery of costs, interest, and damages resulting from the delay of an appeal.
Here, the property owners filed a motion to stay enforcement of the judgment, while their appeal, pursuant to Ratliff, is pending. In its November 4, 2016 ruling on the motion to stay, the trial court noted that Ratliff is silent as to whether a supersedeas bond must be posted, but CR 62.03 states that a judgment, other than an injunction judgment, may be stayed from enforcement by posting a bond. Thus, the trial court held the property owners had to post a supersedeas bond to stay the judgment and then temporarily granted their motion to stay pending a hearing to determine the amount of the bonds. Almost one year later, the trial court conducted the bond hearing. In its September 25, 2017 order, the trial court determined that SD1's "loss is the loss of interest accruing on the money it has deposited in the clerk's office" and to remedy this, the property owners were ordered to post a bond in the amount of the award deposited for them in the clerk's office. Presumably, the property owners posted bonds in compliance with that order.
The parties cite no law requiring a supersedeas bond to be posted while an appeal of an interlocutory judgment that a condemnor has the right to take is pending. Instead, the property owners cite Karam v. Greentree Corp., 783 S.W.2d 78, 81 (Ky. App. 1990), overruled on other grounds by Capital Holding Corp. v. Bailey, 873 S.W.2d 187 (Ky. 1994), which held a supersedeas bond was not required because appellant was not appealing from a monetary judgment. They also cite a procedural order from this Court, Jent v. Kentucky Utilities Co., Nos. 2008-CA-001565-MR, 2008-CA-001566-MR, and 2008-CA-001667-MR (Ky. App. May 6, 2009), which determined an injunction bond should be posted to maintain the status quo while an appeal was pending pursuant to Ratliff.
First, Karam is distinguishable because that case involved a redemption period for foreclosure on property and is not applicable to the appeal of a right-to-take decision. Second, the Jent order is not binding precedent and, even if it were, that order supports SD1's position, not the property owners' position. In the Jent order, the Court granted the property owners' motion to stay enforcement of a judgment granting Kentucky Utilities (KU) the right to an easement over their properties, while also requiring them to post a supersedeas bond. The bond was required to compensate KU for the delay occasioned by the appeal should the property owners prove unsuccessful.
The property owners are not required to post a supersedeas bond to file their appeal. However, they are required to post a supersedeas bond to stay enforcement of the judgment against them while they appeal. Pursuant to CR 62.03 and CR 73.04, an appellant must post an adequate supersedeas bond to stay enforcement of a judgment pending appeal. This guarantees the appellee's recovery of "costs, interest and damages for delay[.]" CR 73.04(1). The trial court did not err by requiring the property owners to post supersedeas bonds to stay enforcement of the judgment.
CONCLUSION
For the foregoing reasons, we affirm the trial court's orders granting SD1 the right to take.
ALL CONCUR. BRIEFS FOR APPELLANTS,
NANCY A. BARONE;
ROBERT AND KAREN JOHNSON;
DANIEL AND CONNIE HEEB;
DOROTHY SAUERBECK AND
REGINA MURPHY;
KENNETH STUDER;
KEITH AND AMY NELTNER;
ALONZA AND PAMELA GRAY;
AND KENNETH AND ELISSA
PLATTNER: Robert E. Blau
Cold Spring, Kentucky BRIEF FOR APPELLANTS,
JOHN AND JOANNE FELDMANN: Carl E. Knochelmann, Jr.
Covington, Kentucky BRIEF FOR APPELLANT,
ANNA M. ZINKHON: Brandon N. Voelker
Fort Mitchell, Kentucky BRIEF FOR APPELLEE: Scott M. Guenther
Thomas A. Sweeney
Covington, Kentucky