Opinion
NO. 2011-CA-001940-MR NO. 2011-CA-002006-MR
02-01-2013
KENTUCKY POWER COMPANY APPELLANT/CROSS-APPELLEE v. CHARLES R. MCDOWELL AND PAMELA K. MCDOWELL APPELLEES/CROSS-APPELLANTS
BRIEF FOR APPELLANT/CROSS- APPELLEE: Wendell S. Roberts Donald R. Yates, II Ashland, Kentucky Marilyn McConnell Columbus, Ohio BRIEF FOR APPELLEES/CROSS- APPELLANTS: Richard W. Martin Ashland, Kentucky
NOT TO BE PUBLISHED
APPEAL AND CROSS-APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 10-CI-00481
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES. CAPERTON, JUDGE: The Appellees/Cross-appellants, Charles and Pamela McDowell (hereinafter "McDowells"), were awarded damages by the Boyd Circuit Court in a September 23, 2011, Findings of Fact, Conclusions of Law, and Judgment based upon a finding that electrical equipment erected in the right-of-way of a state highway constituted a private, permanent nuisance. The Appellant/Cross-appellee, Kentucky Power Company (hereinafter "KPC"), appeals this judgment, asserting that there was no evidence to support the trial court's finding of diminution in fair market value of the McDowell's property. The McDowells cross-appeal on the issue of whether the nuisance is of a permanent or temporary nature. Upon review of the record, the arguments of the parties, and the applicable law, we affirm in part, reverse in part, and remand this matter for a new trial solely on the issue of damages.
KPC does not appeal the finding of the trial court that the installation of the regulators constitutes a nuisance under KRS 411.550.
The McDowells are residents of 5048 Cannonsburg Road, a nine-acre parcel of land with improvements in Catlettsburg, Boyd County, Kentucky. Situated on the property are the McDowell's residence, a garage, swimming pool, pool house, pond, and barn. The property is located at the intersection of two state highways which connect U.S. Route 60 to U.S. Route 23 and handle a significant amount of traffic.
Lake Bonita Road and Cannonsburg Road.
KPC provides electric service to Boyd County residents, including the McDowells. Between 2007 and 2009, KPC designed and installed an automated loop system in its Cannonsburg District service area in Boyd County to improve reliability of service in the Cannonsburg area. The automated loop system is 17 miles long and serves numerous residential and commercial customers. KPC asserts that the automated loop system benefits its customers by significantly reducing the frequency and duration of power outages, by sensing and isolating faults in the line, and then rerouting electricity from other functioning circuits. According to KPC, the automated loop system also enables it to repair a fault and restore power more quickly by detecting the precise physical location of a fault so that KPC can dispatch a work crew to the site of the fault, repair it, and then restore electricity remotely from its dispatch office using automated equipment. KPC asserts that for the period between June 2009 and June 2011, the automated loop system prevented sustained power outages for 6,958 residential and commercial customers in Boyd County.
In February 2009, KPC installed voltage regulators at ten different sites in Boyd County as part of the automated loop system, including a bank of three voltage regulators on a two-pole platform, approximately seventy-eight feet from the McDowell's pool house, in the right-of-way of Lake Bonita Road along the rear portion of the McDowell's property. According to KPC, the voltage regulators are integral components of the automated loop system. KPC describes the voltage regulators as steel canisters that are either affixed to a utility pole, or mounted on a platform which is attached to two utility poles. KPC notes that voltage regulators are not only utilized as part of the automated loop systems but are also currently in use on a daily basis throughout KPC's service area in Kentucky in hundreds of locations. KPC states that the purpose of voltage regulators is to prevent low voltage problems from occurring when power must be transmitted over long distances.
On June 15, 2009, the automated loop system became operational. KPC asserts that the sites for the ten voltage regulator banks were specifically chosen because the regulators must be interdependent in order to maintain proper voltage levels for all customers along the power lines. KPC states that the sites for each bank of regulators were determined during the course of an 18-month design and analysis process by a KPC electrical engineer, using a computer program designed for that purpose. It also notes that with respect to "main line" regulators, such as those located near the McDowell property, there is less flexibility with respect to location because they must be on the main power circuit. KPC asserts that the actual physical location for the installation of each regulator bank must satisfy four criteria: (1) the location should not be near a curve in the road to insure the safety of the workers who install, maintain, and inspect the voltage regulators; (2) the locations should be accessible by truck; (3) the location should be in a straight stretch of power lines; and (4) the terrain of the location must be stable and sufficiently strong to support the weight of the utility poles, the voltage regulators, and the platform upon which the regulators rest.
KPC asserts that the site selected for the installation of the subject voltage regulator bank on Lake Bonita Road had to be able to support the weight of the three regulators and the two utility poles, plus the power lines, platform, and related equipment. Of the structures located on the McDowell's property, the pool house is located nearest to the bank of voltage regulators, approximately 78 feet away.
Below, the McDowells called Gregory A. Bell, the KPC distribution engineer who designed the automated loop system, which was implemented in 2008. Bell testified that there were ten locations within the system designed for the regulators. He generated a one-page handwritten document that he provided to his wife, engineering technician Paula Bell, to select the actual ground location for these regulators. Bell testified that one of those regulator installations, the bank of three 167-amp regulators, was adjacent to the McDowell's pool house "near" pole 117-B-230. Bell stated that this document was the only document given to Paula to assist her in determining the ground location for the installation, and that Bell had no further discussion with her prior to her going out in the field. The description found to establish the location of the regulators on the Bell property was "near pole #117-B-230." Gregory Bell testified that "near the pole" to him meant within a couple of pole spans. KPC had provided a diagram showing "a couple of spans" in either direction of pole #117-B-230 and the McDowells filed a photo reflecting the ground layout of the spans as an exhibit at trial. The installation of the bank of three regulators was sixty-six feet from pole #230. Gregory Bell testified that if the voltage regulators were moved to a location within 500 feet of their current placement, no additional internal analysis would be required.
Joe Pemberton, KPC engineering support manager, also testified below, and agreed that the definition of "near to pole #230" would be a distance within five to six hundred feet. Paula Bell explained that she reviewed the document concerning the location of the regulators and drove by the proposed site on November 3, 2008. She returned to the site near the McDowells' property on November 12, 2008, at which time she walked around the site, took some measurements, and determined that the best site was sixty-six feet from pole #230. Bell stated that the only other site that was considered was 300 feet from pole #230, and that it was not chosen because of lack of stability. No other sites were considered. When asked why that specific distance form pole #230 was chosen, Paula Bell responded, "I can't say specifically why I chose that, it's just a distance in that span."
The trial court also heard testimony from David Gibson, a licensed civil engineer with twenty-five years of experience, who has offices in Boyd County. Gibson conducted a physical inspection of the right of way adjacent to the McDowells' property and reviewed interrogatories and pertinent KPC documents, including a schematic drawing of pole #230. Gibson testified that from a civil engineering standpoint, it appeared to him that there were other available locations to install the two poles supporting the bank of regulators. He testified that there is not a lot of disturbance related to the installation of two poles, and that he did not find anything along the property he inspected that would result in significant increase to the cost of installation if the bank of regulators were moved. Gibson also testified that he did not find any physical aspect that would prohibit the installation of poles in any of those alternative areas. When asked if he formed an opinion as to whether or not those three regulators could be moved to a less intrusive location on Lake Bonita Road at a reasonable expense, Gibson responded, "I did look in different areas, and in my opinion, there were other locations."
Testimony was also provided by William P. Ringo, a certified industrial hygienist and safety professional. Ringo was asked to perform an environmental assessment of the McDowells' property. He stated that he visited the McDowells' property and made sound readings, and that according to the recommendations of the World Health Organization and others, and based upon his findings, the low level noise emitted by the regulators could result in sleep disturbance and nuisance issues associated with constant low level noise, such as is sometimes found in computer rooms.
Concerning the noise of the regulator, the McDowells themselves testified that they immediately realized that a humming noise was generated by the bank of regulators which they described as being constant in nature, and an interference with the enjoyment of their property. Mr. McDowell stated that his problem with the regulators comes "not [from] the loudness of it, [the humming sound], it's just the irritating hum." KPC concedes that it is a normal characteristic of voltage regulators to emit a humming sound. Mr. McDowell testified that the regulators "overwhelmed" his pool house, and that he does not like the way they look, or the color they are painted. McDowell testified that he and his family use their pool house and pool as much as they did before the regulators were installed, and that the humming sound cannot be heard in the residence when the windows are closed. McDowell testified that the humming sound does not affect the ability to hear a conversation anywhere on the property inside or outside of the house.
Mrs. McDowell testified that she feels the regulators are "enormous, ugly, and make a noise," which she described as a "hum." Mrs. McDowell conceded telling a KPC employee that she did not notice the humming sound until Mr. McDowell called her attention to it. She further testified that when the pool filter is running she cannot hear the humming sound coming from the voltage regulators. Mrs. McDowell further conceded that her complaint about the regulators has as much to do with their appearance as with the humming sound, and that the regulators bother Mr. McDowell more than they bother her.
Below, neither Mr. nor Mrs. McDowell attempted to offer an opinion as to the fair market value of their real estate either before or after the installation of the voltage regulators. The McDowells called one witness, Lynn Prichard, to testify in support of their claim that the fair market value of their real estate had been reduced as the result of the installation of the voltage regulators. Prichard conceded that he did not use the comparable sales approach to determine the value of the McDowells' property after the installation of the regulator, but instead determined what he believed to be the diminution of the fair market value by relying on jury verdicts from two other nuisance cases tried in Boyd County in 1966 and 1997. Prichard testified that the fair market value of the McDowells' property before the installation of the voltage regulators was $285,000, and that accordingly he assigned $85,000 as the amount of the reduction in the fair market value of the real estate due to the presence of the regulators.
The first case Pritchard read and relied upon was Valley Poultry Farms, Inc. v. Preece, 406 S.W.2d 413 (Ky. 1966), which involved a chicken house constructed near a residence. Therein, the jury determined that the fair market value of the real estate had been reduced by $5,000, which Prichard calculated to be approximately 25% of $19,500, which was the estimated fair market value of the property before the nuisance according to one expert in that case. The second case upon which Prichard relied was an unreported 1997 opinion by this Court concerning contamination of land by industrial pollutants in which a jury determined that the fair market value of one of the polluted parcels of real estate had been diminished by $100,000, which he calculated to be approximately 54% of $185,000, which was the estimated fair market value of the property before it was contaminated. Noting that he was using cases heard by the Court of Appeals, Prichard testified that based upon the diminution percentages from the 1966 case (25%) and the 1997 case (54%) he picked 30% as the percentage by which the fair market value of the McDowells' property had been reduced by the presence of the voltage regulators.
KPC objected to Pritchard's testimony and moved to strike it, specifically to his reliance on jury verdicts to determine the 30% reduction in fair market value. The trial court acknowledged the problems with the competency of Prichard's testimony, but deferred ruling on KPC's objection and motion to strike.
The only other evidence presented during the trial on the issue of diminution in fair market value of the McDowells' real estate due to the presence of the regulators came from KPC's expert witness, Ken Smith. Smith is a local licensed real estate appraiser and broker. Smith testified that he had appraised the McDowells' real estate in August of 2002, when they refinanced a mortgage loan, and again in February 2011, at the request of KPC. Smith prepared an appraisal report dated February 15, 2011, wherein he testified that the fair market value of the McDowells' property is $270,000 and that the presence of the voltage regulators did not reduce the fair market value of the real estate. In formulating this opinion, Smith researched comparable sales of real estate in the Boyd County area and found two prior sales that involved parcels of real estate located near electrical equipment that emitted sound which he considered comparable to the voltage regulators. Smith testified that he found that there was no loss of value with respect to either comparable property and that the marketability of the two properties was not affected. When asked on cross-examination if he knew whether the electrical equipment on the comparables had been installed prior to the building of the houses, Smith conceded that he did not. He further testified that the comparable properties he looked at did have electrical equipment which made some noise and, while having electrical equipment, did not have a bank of regulators located near the properties.
At the close of the McDowells' case, KPC moved for dismissal of the case, asserting that the McDowells had failed to present evidence showing the amount of diminution in fair market value purportedly due to the presence of the voltage regulators as required by Kentucky Revised Statutes (KRS) 411.560. KPC also moved for dismissal of the injunctive relief claim on the grounds that the trial court lacked subject matter jurisdiction to grant injunctive relief because the PSC is vested with exclusive jurisdiction over KPC's services. The trial court overruled KPC's motion for dismissal of the case due to the McDowells' failure to present evidence on the diminution in fair market value of their real estate and deferred argument on the subject matter jurisdiction challenge until the close of all evidence. KPC renewed both of its motions on the same grounds at the close of evidence and was again overruled.
Following the bench trial, the circuit court entered a findings of fact, conclusions of law, and judgment on September 23, 2011, determining that, pursuant to KRS 411.550 and KRS 411.530, the regulators constitute a private, permanent nuisance. The trial court further found that the fair market value of the McDowells' property was diminished by $35,000 as a result of the nuisance, and awarded damages to the McDowells in that amount. In making that finding, the trial court relied upon KRS 411.560, and rejected the opinion of Prichard, stating that:
[H]e resorted to a mathematical computation based upon jury verdicts in two other cases which are totally unrelated to this action. Clearly that methodology is inappropriate and the Court assigns no weight to the opinion.
The trial court also rejected the testimony of Smith, stating that, "The court having already determined that a nuisance exists, the opinion of Defendant's expert is rejected." Although Prichard and Smith were the only individuals to provide testimony as to the purported reduction in the fair market value or lack thereof, the trial court nevertheless found that the fair market value of the real estate had been diminished by the sum of $35,000 as a result of the presence of the voltage regulators.
Finally, as to the McDowells' request for an injunction, the trial court denied the claim for injunctive relief requiring KPC to relocate the voltage regulator bank and utility poles. In making this finding, the court concluded that it did have jurisdiction over the subject matter of the claim, but that the issue of injunctive relief was moot, as the regulators were a permanent nuisance. It is from this order that the parties now appeal to this Court.
As its first basis for appeal, KPC argues that the trial court's finding of a $35,000 reduction in the fair market value of the McDowells' real estate was clearly erroneous because there was no evidence to support the finding. KPC argues that the only witness who testified as to a diminution in the fair market value of the McDowells' property due to the presence of the regulators was Prichard, who reached his opinion on the basis of two jury verdicts in unrelated cases, and who did not make his determinations in accordance with what is required by KRS 411.560. Thus, KPC asserts that the trial court was correct in not giving any weight to Prichard's opinion. However, KPC argues that the court thereafter committed error in choosing to also reject the opinion of Smith, the only other witness on this issue, and subsequently by making its own independent determination as to the diminution in value of the property. While KPC concedes that the court may have correctly rejected Smith's testimony on the ground that it did not conform to the court's view that the regulator bank constituted a nuisance, it asserts that the ultimate effect of that rejection was to eliminate all evidence in the record concerning the diminution or lack thereof of the property value. KPC asserts that there was no evidence in the record to support the trial court's finding of a $35,000 reduction in fair market value.
In response, the McDowells do not directly dispute KPC's condition that Prichard's unusual methodology was properly rejected by the court. While acknowledging that there was some uncertainty as to the appropriate amount of damages, the McDowells assert that this alone should not prevent an award of damages. They argue that while the court may not have been presented with a precise methodology for determining damages, its determination was nevertheless supported by substantial evidence in the form of testimony from the McDowells, the civil engineer who believed there were other potential sites available for the register, the industrial hygienist, and Prichard's testimony in conjunction with the court's own visits to the property. Thus, the McDowells argue that while the exact amount of damages may not have been addressed by the evidence, the existence of damages was, and that the true test for recovery is not whether the amount in dispute can be ascertained with exactness or certainty, but whether the cause of the damage can, with reasonable certainty, be attributed to the breach of duty or wrongful act of the defendant.
In making this assertion, the McDowells rely upon the holding in Roadway Express, Inc. v. Don Stohlman and Assoc., Inc., 436 S.W.2d 63, 65 (Ky. 1968).
In addressing the arguments of the parties on this issue, we note that our standard of review with respect to findings of fact made by a court during a bench trial is set forth in Kentucky Rules of Civil Procedure (CR) 52.01, which provides in pertinent part:
In all actions tried upon the facts without a jury ... the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate
judgment; and in granting or refusing temporary injunctions or permanent injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action ... Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
Under Kentucky law, a factual finding is clearly erroneous if it is not supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Substantial evidence has been defined as evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men. Allen v. Woodford County Board of Adjustments, 228 S.W.3d 573, 575 (Ky. App. 2007). Certainly, we have also held that, "The evidence must be in the record to support a finding of fact; the court or jury may not supply such absent evidence by drawing upon experience aliunde, or naked speculation." Kentucky Mountain Coal Co. v. Hacker, 412 S.W.2d 581, 583 (Ky. 1967).
KRS 411.530 defines a permanent nuisance as follows:
(1) A permanent nuisance shall be any private nuisance that:
(a) Cannot be corrected or abated at reasonable expense to the owner; and(2) A permanent nuisance shall exist if and only if a defendant's use of property causes unreasonable and substantial annoyance to the occupants of the claimant's property or unreasonably interferes with the use and enjoyment of such property, and thereby causes the fair market value of the claimant's property to be materially reduced.
(b) Is relatively enduring and not likely to be abated voluntarily or by court order.
KRS 411.560(1)(a) establishes that the damages allowable for a private, permanent nuisance, "shall be measured by the reduction in the fair market value of the claimant's property caused by the nuisance, but not to exceed the fair market value of the property." Further, the term "fair market value," is defined by KRS 411.510(2) as, "the price that a person who is willing but not compelled to buy would pay and a seller who is willing but not compelled to sell would accept for property." As set forth in KRS 411.560(3), "No damages shall be awarded for annoyance, discomfort, sickness, emotional distress, or similar claims for a private nuisance."
Upon review of the record and applicable law, we are ultimately in agreement with KPC that the court acted erroneously in determining the amount of damages to be $35,000 of its own accord. While we note that the trial judge actually went to the property and observed the humming noise of the generators personally, and while the court certainly did elucidate the factors it considered in determining the amount of damages, this ultimately fails to fulfill what the law requires. Certainly we believe the court was correct in rejecting the methodology used by Prichard in reaching his determination as to the reduction in fair market value. This Court agrees that reliance upon the percentage of damages utilized in two dissimilar nuisance cases from 1966 and 1997 was not a sound or appropriate method to compute damages in this matter. Beyond the testimony of Prichard that the damages amounted to $85,000, and the testimony of Smith that there were no damages at all, there was no other evidence submitted specifically addressing a monetary amount of damages, nor to support the court's finding of $35,000 in damages, beyond the personal observations of the trial judge. This alone does not constitute substantial evidence.
Accordingly, we believe it appropriate to reverse and remand this matter to the court below for a new trial on the issue of damages alone. As we have previously stated in Adams Construction Co., Inc. v. Bentley, 335 S.W.2d 912, 915 (Ky. App. 1960), a temporary nuisance action, "The Appellant's liability has been properly proved and determined. Upon remand it is necessary only that the amount of damages be ascertained." Such is the case sub judice and, accordingly, we remand for a trial on the issue of damages, in accordance with the law as set forth herein.
As its second basis for appeal, KPC argues that the trial court's finding that it had subject matter jurisdiction to consider the McDowells' request to order KPC to move the voltage regulators was erroneous under Kentucky law.KPC asserts that by seeking injunctive relief the McDowells asked the trial court to substitute its judgment for that of KPC's engineers and technicians who are charged with the responsibility of determining the necessity for, and placement of, voltage regulators as part of the automated loop system. KPC asserts that this was in error, as the jurisdiction to determine the propriety of the configurations of a public utility company's operating system is vested exclusively in the Public Service Commission (PSC). While KPC disputes the court's subject matter jurisdiction, it nevertheless argues that the court correctly denied the McDowells' claim for injunctive relief in finding that the regulators should not be moved because of safety concerns, and for reasons concerning the design and operation of the operated loop system.
KPC asserts that it preserved this issue for review to prevent it from becoming the law of the case.
In response, the McDowells argue first, that this issue is moot, and secondly, that the court's finding of subject matter jurisdiction was not erroneous. First, they argue that the issue is moot as the trial court deemed the voltage regulators to be a permanent nuisance and awarded damages, not injunctive relief. Alternatively, the McDowells assert that the court correctly found that it had subject matter jurisdiction over this issue. They argue that the KPC misreads KRS 278.040(2), the statutory provision which grants jurisdiction to the PSC. The McDowells argue that the intent of that section is to effectively insure throughout the Commonwealth that neither excessive rates nor inadequate service is provided by a utility under the oversight of the PSC. They argue that the statute makes no mention of regulation of the location of regulators or other transmission equipment, nor is there a reasonable inference of such regulation. The McDowells assert that the General Assembly clearly intended to have one administrative agency oversee the reliability and uniformity of the level of electrical service and the charges to customers for that service. They argue that this oversight does not include ultimate responsibility for the determination of the location of the voltage regulators. The McDowells argue that pursuant to KRS 23A.010(1), the circuit court is a court of general jurisdiction, which has original jurisdiction of all justiciable cases not exclusively vested in some other court. While conceding that the PSC may have exclusive jurisdiction over questions concerning rates and services generally, when a question is particular to an individual complainant then the circuit court may assume jurisdiction and hear the matter.
Ultimately, we are in agreement with the McDowells that this issue, at least insofar as it pertains to the fact of the case herein, is moot. For reasons discussed herein, infra, we believe the court to have correctly determined the nuisance to be permanent and, thus, agree with its conclusion that it did not need to make a determination on the issuance of an injunction to move the regulators. Accordingly, we decline to address this issue further herein, and turn to the McDowells' cross-appeal.
As their first and only basis for cross-appeal, the McDowells argue that the trial court erroneously found the nuisance to be permanent rather than temporary under KRS 411.530. The McDowells assert that KRS 411.530 is a two-part test - first, whether the nuisance is of a lasting nature, and secondly, whether it could be removed at a reasonable expense - and that the court only considered the first portion of that test and not the latter. In its order addressing this issue, the court stated that:
In this action, the Court is convinced by the testimony that the equipment cannot be located on the US 60 side of the Cannonsburg Road because the scheme would not permit it to interface with the automated loop system. Furthermore, if one were to go in the opposite direction, there are significant safety issues presented with respect to installation of the pole and the equipment as well as
annual maintenance that must be performed by KPC employees. This testimony comes from persons who are highly trained and do this type of work for a living and should be in a position to know whether safety could be compromised. At any rate, this Court is unwilling to take a risk which could lead to someone being seriously injured or killed. Thus, we are dealing with a permanent nuisance.
See Findings of Fact, Conclusions of Law, and Judgment of September 23, 2011, R.A. Vol. I, 134-35.
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The McDowells argue that the court failed to consider whether the nuisance could be abated or corrected at a reasonable expense to the owner, and that in order for something to be classified as a permanent nuisance, both, and not just one part of the test, must be met. The McDowells argue that sub judice the approximately $6,000 cost of moving the regulators was a reasonable expense when compared to the $35,000 in damages awarded by the trial court. Accordingly, they assert that we should reverse the court's determination that the nuisance was permanent in nature, and remand for the entry of an appropriate order to remedy the nuisance.
In response, KPC argues that the trial court's finding that the voltage regulators constitute a permanent condition was supported by substantial evidence and was not clearly erroneous. KPC asserts that relocation of a bank of main line voltage regulators would pose several problems. First, KPC asserts that a new physical site would need to be selected that meets the four terrain criteria for the installation of regulators, and that depending on how far the existing voltage regulators were moved from their current site, installation of additional voltage regulators may also be required at other locations to maintain proper voltage levels. KPC also notes that according to the testimony of the civil engineers below, relocation could require the implementation of slope stabilization measures, as well as grading and shaping work, in addition to the expenses of moving the poles and regulators from their current location. KPC thus argues that the McDowells' contention as to the cost of moving the regulators is an oversimplification that does not take into account the problems that would be encountered during the attempt to relocate the regulators to a different site. Accordingly, KPC asserts that if a nuisance existed, the trial court correctly determined it to be a permanent condition, and urges this Court to affirm.
Upon review of the record and applicable law, we are ultimately in agreement with both KPC and the court below that the regulators constitute a permanent nuisance. KRS 411.530 states that,
"A permanent nuisance shall be any private nuisance that:The McDowells assert that the trial court failed to adequately address the question of reasonable expense. We disagree. In asserting that there were other, more suitable locations for the regulators at issue, the McDowells relied heavily upon the testimony of civil engineer David Gibson, particularly his opinion that there were other available locations to install the bank of regulators. Further, they note that Gregory Bell testified that the cost of labor for installing the regulators was $5,811.01. While this evidence was certainly part of the record, there was other evidence in the record that could establish a finding to the contrary.
(a) Cannot be corrected or abated at a reasonable expense to the owner; and
(b) Is relatively enduring and not likely to be abated voluntarily or by court order."
As we have previously stated herein, and as our courts have repeatedly held, we will only overturn findings of fact made by the circuit court if they are clearly erroneous. CR 52.01. Findings of fact are only clearly erroneous if they are manifestly against the weight of the evidence. Newton v. Newton, 365 S.W.3d 565, 568-69 (Ky. App. 2011). We do not believe that such was the case sub judice. Evidence submitted below indicated that the installation sites for the voltage regulators were not chosen at random, but were determined in the course of an 18-month design and analysis process by Gregory Bell, an electrical engineer. Optimal sites were then reviewed by a KPC distribution technician engineer, and chosen on the basis of four terrain criteria.
Moreover, testimony established that relocating the site might require slope stabilization and support, as well as potential installation of additional regulators, facts conceded by Gibson himself, who also acknowledged that he did not calculate the cost of this work. Thus, while the original cost of installing the poles may have been $5,811.01, this Court is not persuaded that the costs incurred in relocating the poles would be the same, particularly when the cost of the potential labor and equipment involved is considered. Further, and we believe importantly, the court correctly considered the safety issues involved in relocating the regulators. In light of the foregoing, we believe that the court's determination as to the permanent nature of the nuisance was not clearly erroneous because it was supported by substantial evidence, and we affirm.
Wherefore, for the foregoing reasons, we hereby affirm in part, and reverse the portion of the court's September 23, 2011, order awarding damages to the McDowells in the amount of $35,000, and remand this matter for a new trial on the issue of damages alone. DIXON, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION. TAYLOR, JUDGE, CONCURRING IN PART, AND DISSENTING IN PART: Respectfully, I concur in part and dissent in part. I concur with the majority that the judgment for damages below should be reversed as the evidence below failed to establish $35,000 in damages. However, on remand, I would direct that a judgment be entered for KPC. Regardless of whether a nuisance was actually established from the evidence presented by the McDowells, of which I have serious reservation, the McDowells, nonetheless, failed to establish their damages as required by KRS 411.150, specifically in establishing the reduction of the fair market value of the McDowells' property resulting from the alleged nuisance. As noted by the trial court, the McDowells failed to present any competent evidence regarding their damages and thus have failed in maintaining their burden of proof to support their claim, in my opinion. The trial court's assessment of damages based on personal experience, impressions, beliefs, and direct visits to the property was improper as a matter of law.
To remand for a second trial on damages only is the equivalent of giving the McDowells a "second bite at the apple," which is also improper in my opinion. I would reverse the judgment, remand and direct that a judgment be entered for KPC. BRIEF FOR APPELLANT/CROSS-
APPELLEE:
Wendell S. Roberts
Donald R. Yates, II
Ashland, Kentucky
Marilyn McConnell
Columbus, Ohio
BRIEF FOR APPELLEES/CROSS-
APPELLANTS:
Richard W. Martin
Ashland, Kentucky