Opinion
2023-CA-1374-MR
09-13-2024
DOUG POWERS, KAYE POWERS, AND DAVID LEE POWERS APPELLANTS v. TWO CREEKS HUNTING CAMP, INC. AND BRECKINRIDGE COUNTY FISCAL COURT APPELLEES
BRIEF FOR APPELLANTS: Robert L. Gullette, Jr. Nicholasville, Kentucky BRIEF FOR APPELLEE TWO CREEKS HUNTING CAMP: Ryan F. Quick Elizabethtown, Kentucky BRIEF FOR APPELLEE BRECKINRIDGE COUNTY FISCAL COURT: Carol Schureck Petitt Connor E. Sturgill Pewee Valley, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BRECKINRIDGE CIRCUIT COURT HONORABLE KENNETH H. GOFF, II, JUDGE ACTION NO. 21-CI-00236
BRIEF FOR APPELLANTS:
Robert L. Gullette, Jr.
Nicholasville, Kentucky
BRIEF FOR APPELLEE TWO CREEKS HUNTING CAMP:
Ryan F. Quick
Elizabethtown, Kentucky
BRIEF FOR APPELLEE
BRECKINRIDGE COUNTY FISCAL COURT:
Carol Schureck Petitt
Connor E. Sturgill
Pewee Valley, Kentucky
BEFORE: CETRULO, L. JONES, AND McNEILL, JUDGES.
OPINION
CETRULO, JUDGE:
Appellants Doug Powers, Kaye Powers, and David Lee Powers (collectively the "Landowners") appeal a Breckinridge Circuit Court Order granting summary judgment in favor of Appellees Two Creeks Hunting Camp, Inc. ("Two Creeks") and Breckinridge County Fiscal Court ("the County") and dismissing their claims.
BACKGROUND
Marcus Whittler Lane sits in Breckinridge County, Kentucky. The County classifies Marcus Whittler Lane as a county road. In November 2008, the Landowners purchased real property that abuts Marcus Whittler Lane, and Two Creeks owns the only other property that abuts Marcus Whittler Lane. Marcus Whittler Lane separates the properties.
Throughout the pleadings and record, Marcus Whittler Lane is referred to by different names and spelling variations. For the sake of clarity, we refer to it as Marcus Whittler Lane.
The County claims that Marcus Whittler Lane was graded at its direction in 2012, but the Landowners claim that they were unaware of that occurrence. At some point, a gate was erected on Marcus Whittler Lane, but the parties dispute when the gate was erected.
On December 28, 2020, a county attorney sent a letter to the Landowners informing them that Two Creeks had a right to use Marcus Whittler Lane and that the Landowners had no right to block access to it. Shortly thereafter, the County directed the removal of the gate. On September 8, 2021, the County paid to "rock" Marcus Whittler Lane and have it graded again.
On December 22, 2021, the Landowners filed a complaint against the appellees and several individually named county personnel claiming that (1) the County abandoned Marcus Whittler Lane and, under Kentucky Revised Statute ("KRS") 178.116, it was automatically discontinued; (2) the Landowners detrimentally relied on the County's assurances that it abandoned Marcus Whittler Lane; and (3) Two Creeks and its agents trespassed on the Landowners' private property by using Marcus Whittler Lane. The Landowners sought a declaration that the County discontinue Marcus Whittler Lane as a county road and that Marcus Whittler Lane be deemed their private property, as well as damages.
On January 27, 2022, the County filed a motion to dismiss for failure to state a claim. The circuit court denied the County's motion, but it dismissed individually named County personnel. On September 1, 2022, the Landowners filed a motion for default judgment against Two Creeks for failure to answer. At the November 2022 default judgment hearing, the court granted Two Creeks a time extension. In January 2023, Two Creeks answered and filed a counterclaim. Shortly thereafter, the County filed its answer to the Landowners' complaint.
From February 2023 through May 2023, the parties exchanged written discovery. In their discovery answers, the Landowners listed seven potential witnesses and claimed to be in possession of documents and drone videos that supported their claims, but the Landowners did not produce the documents and did not produce any affidavits of the named witnesses. Conversely, the County produced documents that showed that it classified Marcus Whittler Lane as a county road and that it had maintenance performed on it in September 2021.
On May 31, 2023, the County filed a motion for summary judgment. The County argued that it had Marcus Whittler Lane graded and rocked within the last three years, and, therefore, the County could not informally discontinue it pursuant to KRS 178.116(1)(c). The Landowners responded to the motion on June 20, 2023, and the circuit court held a hearing on the motion the following day. At the hearing, and within its response, the Landowners argued that summary judgment would be premature and that a genuine issue of material fact remained. On September 28, 2023, the circuit court granted the motion for summary judgment pursuant to KRS 178.116(c), and this appeal followed.
The parties made arguments below, and in their briefs, regarding whether Marcus Whittler Lane provided necessary access to Two Creeks. These arguments were made because KRS 178.116(1)(b) prevents the informal discontinuation of a "county road, or road formerly maintained by the county or state, . . . [that] provides a necessary access for a private person[.]" Because the circuit court granted summary judgment on the basis that the evidence establishes that Marcus Whittler Lane falls under KRS 178.116(1)(c), we do not need to address the substance of the KRS 178.116(1)(b) arguments.
The Landowners' claim against Two Creeks was for trespass, and in light of the circuit court's decision that the County was entitled to summary judgment, and the road determined to be a county road, the claim against Two Creeks for trespass necessarily failed as a matter of law.
STANDARD OF REVIEW
Questions of statutory interpretation are questions of law, which we review de novo, "with no deference to the analysis of the lower courts." Seeger v. Lanham, 542 S.W.3d 286, 290 (Ky. 2018). We interpret statutes according to the "plain meaning" of their language, which "is presumed to be what the legislature intended[.]" Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005) (internal quotation marks and citation omitted). Unless it "would produce an injustice or ridiculous result[,]" we do not "ignore the plain meaning of a statute." Id. Further, we will not interpret a statutory "provision in a manner that brings about an absurd or unreasonable result." Schoenbachler v. Minyar, 110 S.W.3d 776, 783 (Ky. 2003).
Kentucky Rule of Civil Procedure ("CR") 56.03 authorizes the circuit court to grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The court must view the record "in a light most favorable" to the nonmoving party. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation omitted). Whether summary judgment should be granted is a question of law, and "an appellate court always reviews the substance of a trial court's summary judgment ruling de novo[.]" Blankenship v. Collier, 302 S.W.3d 665, 667 (Ky. 2010).
However, the Kentucky Supreme Court cautions "trial courts not to take up [summary judgment] motions prematurely and to consider [them] 'only after the opposing party has been given ample opportunity to complete discovery.'" Id. (quoting Pendleton Bros. Vending, Inc. v. Commonwealth Finance & Admin. Cabinet, 758 S.W.2d 24, 29 (Ky. 1988)). When an appellate court must analyze whether the circuit court allowed "a sufficient amount of time" for discovery before it ruled on a motion for summary judgment, the "ruling is reviewed for an abuse of discretion." Id.
ANALYSIS
The circuit court granted the motion for summary judgment based on KRS 178.116(c). On appeal, the Landowners assert that (1) the circuit court incorrectly applied KRS 178.116(1)(c); (2) there is a genuine issue of material fact; and (3) granting the motion for summary judgment was premature.
A. KRS 178.116
The Landowners argue that if the County does not police or maintain a county road during any three-year period, then KRS 178.116(1)(c) automatically reverts ownership of the property where the road sits to whomever owned the land before the county road came into existence. The County and Two Creeks disagree and argue that the three-year period in KRS 178.116(1)(c) refers to the three years immediately preceding an action brought under the statute.
KRS 178.020 provides that county roads shall continue as such until properly discontinued. The conditions upon which a county road may be informally discontinued by law are set forth in KRS 178.116(1) which provides:
Any county road, or road formerly maintained by the county or state, shall be deemed discontinued and possession shall revert to the owner or owners of the tract of land to which it originally belonged unless at least one (1) of the following conditions exists:
(a) A public need is served by the road;
(b) The road provides a necessary access for a private person;
(c) The road has been maintained and policed by the county or state within a three (3) year period.KRS 178.116(1) (emphasis added). The circuit court granted the County's motion for summary judgment based on KRS 178.116(1)(c), concluding that Marcus Whittler Lane was a county road, and that the County had maintained Marcus Whittler Lane by paying for it to be rocked and graded just three months before the Landowners filed their complaint.
Additionally, while the Landowners contend that the County abandoned Marcus Whittler Lane in 1989, in their discovery answers to the County, the Landowners infer that the County maintained the Marcus Whittler Lane prior to the alleged abandonment. Therefore, even if the County did not presently classify Marcus Whittler Lane as a "county road," pursuant to KRS 178.116(1), it would still be a "formally maintained road" and fall under the statute.
The Landowners insist that the County failed to maintain and police the Marcus Whittler Lane during several three-year periods since 1989. In short, they are arguing that any three-year period will suffice, and that if such a period did occur, then the ownership of Marcus Whittler Lane should revert to them. A plain reading of the statute does not suggest that courts need to examine decades of county road maintenance to establish discontinuance of a road. See Revenue Cabinet, 153 S.W.3d at 819.
KRS 178.116 does provide an avenue for informal discontinuance of a county road when a fiscal court fails to follow procedures set forth in KRS 178.070. However, before a court can informally discontinue such a road, it must determine if any of the three conditions listed in KRS 178.116(1) exist. KRS 178.116(1)(c) specifically precludes discontinuance if the road has been "maintained and policed by the county or state within a three (3) year period." While not explicitly stated in KRS 178.116, a plain reading of the statute confirms that this time period can only refer to the three years prior to when a litigant brings an action pursuant to the statute because the court must identify if any of the KRS 178.116(1) conditions exist. To hold otherwise would produce an absurd result. See Schoenbachler, 110 S.W.3d at 783. A landowner could wait for the county to invest funds in maintaining the road and then come forward and assert that since the road was not maintained over some distant three-year period, decades before, he is entitled to ownership. This appears to be exactly what the Landowners did herein.
County roads may also be discontinued by vote of the fiscal court. KRS 178.070 procedures include placing "notices . . . at three (3) prominent and visible public places within one (1) mile of the road[,]" and having two disinterested witnesses generate written reports detailing "what inconvenience would result from the discontinuance." After the reports are presented to the fiscal court, the road may be discontinued.
Although our most relevant precedent is factually distinct, we are not left without direction and guidance. The relevant authorities support a reading of KRS 178.116(1)(c) that requires some form of official determination before informally discontinuing a road pursuant to the statute.
The Kentucky Supreme Court stated that KRS 178.116 "governs the process by which a county road or a road formerly maintained by the county or the state shall be deemed discontinued and its possession reverted to the owners of the tract to which it originally belonged." See Kentucky Properties Holding LLC v. Sproul, 507 S.W.3d 563, 569 (Ky. 2016) (emphasis added). Additionally, the Supreme Court has noted that KRS 178.116 goes into effect "after a county decide s to discontinue maintenance on a road." See Bailey v. Preserve Rural Roads of Madison County, Inc., 394 S.W.3d 350, 359 (Ky. 2011) (emphasis added). Further, this Court has stated that "KRS 178.116(1) requires formal action to discontinue" a road and, when referring specifically to KRS 178.116(1)(c), that "the preceding three years" are the relevant statutory period. See Blankenship v. Acton, 159 S.W.3d 330, 334 (Ky. App. 2004) (emphasis in original); see also Greene v. Greenup County, 530 S.W.3d 463, 464-65 (Ky. App. 2015) (emphasis added).
Here, Breckinridge County did not to decide to discontinue maintenance on Marcus Whittler Lane, and still lists it as a county road.
These cases, and a plain reading of the statute, reveal that before a county road can be deemed discontinued, a court must make an official determination regarding whether any KRS 178.116(1) conditions exist. The three-year period can only refer to the three years preceding the commencement of the action that gives rise to the court's official determination.
Thus, the circuit court did not err when it found that the relevant three-year period was the three years before the Landowners' filed their complaint. We hold that the three-year period in KRS 178.116(1)(c) refers to the three years preceding the commencement of an action brought pursuant to the statute. Here, the County listed Marcus Whittler Lane as a county road and, a mere three months before the commencement of the Landowners' action, the County maintained Marcus Whittler Lane. Therefore, Marcus Whittler Lane was not discontinued pursuant to KRS 178.116(1)(c).
B. No Remaining Genuine Issue of Material Fact
Next, the Landowners argue that summary judgment was improper because the gate existed on Marcus Whittler Lane at one time, prior County personnel allegedly reassured the Landowners that Marcus Whittler Lane was discontinued, and Two Creeks used equipment to clear part of Marcus Whittler Lane at some point. The Landowners argue that these assertions created a genuine issue of material fact regarding whether the County maintained and policed Marcus Whittler Lane. The county road list and maintenance records produced by the County made it impossible for the Landowners to succeed in an action brought under KRS 178.116 because: (1) the Landowners did not produce affirmative evidence to rebut the County's evidence; (2) the record further revealed that the County exerted its authority over Marcus Whittler Lane at least as far back as December 2020; and (3) in light of the County's evidence and evidence in the record, the Landowners' assertions are non-material.
After the moving party "convince[s] the court" that no genuine issue of material fact exists, the burden shifts, and the "party opposing a properly supported summary judgment motion . . . [must] present[] at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Steelvest, Inc., 807 S.W.2d at 482. "An issue of nonmaterial fact will not preclude the granting of a summary judgment." Isaacs v. Smith, 5 S.W.3d 500, 503 (Ky. 1999), as modified on denial of reh'g (Dec. 16, 1999).
To defeat a summary judgment motion, the non-moving party cannot merely rely on its "subjective beliefs about the nature of the evidence[.]" Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007) (citing Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990)). The non-moving party "may not rely upon [its] pleadings alone to make an issue of fact, but is required . . . to make some showing to offset the impact of the matters presented in support of the motion." Hartford Ins. Grp. v. Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628, 631 (Ky. App. 1979) (internal quotation marks and citation omitted).
Here, after the parties exchanged discovery, the County filed its motion for summary judgment. It supported its motion with documents it produced in response to the Landowners' requests for production of documents: (1) the active county road list that included Marcus Whittler Lane; and (2) receipts that showed that rocking and grading was performed on the Marcus Whittler Lane at the direction of the County in September of 2021.
The production of the county road list and the 2021 receipts brought Marcus Whittler Lane under the umbrella of KRS 178.116(1)(c). Additionally, the record reveals that almost a year before maintenance occurred on Marcus Whittler Lane, the County exercised its authority over it when a county attorney sent a letter to the Landowners. Then, the County removed the gate from Marcus Whittler Lane, in effect "policing" it within the past three years. Even when considering the facts in the light most favorable to the Landowners, as a matter of law the Landowners' claims against appellees could not succeed at trial pursuant to KRS 178.116(c). Thus, the burden shifted to the Landowners to produce "some affirmative evidence showing that there is a genuine issue of material fact[,]" disputing that Marcus Whittler Lane "ha[d] been maintained and policed by the county or state within a three (3) year period." See Steelvest, Inc., 807 S.W.2d at 482 (emphasis added); see also KRS 178.116(1)(c).
The Landowners did not meet their burden. In their response to the County's motion for summary judgment, and their appeal to this Court, the Landowners primarily argue that the gate was present during most of the past 30 years, and that they "were repeatedly assured by past County judges and other elected officials and county employees, that the road was discontinued." These "facts" may be disputed; however, they are "nonmaterial" factual disputes in light of the evidence that the County produced. Isaacs, 5 S.W.3d at 503; KRS 178.116(1)(c).
Although the Landowners claim throughout their pleadings that they have owned the property for 30 years, their own interrogatory response states that they only purchased the property in 2008.
The Landowners did not present any affirmative evidence to dispute the County's road list, rocking receipts, the letter the county attorney sent them, or the fact that the County had removed the gate. In fact, the Landowners aver in their complaint that the County removed the gate in early 2021. The Landowners failed to present any "affirmative evidence showing that there is a genuine issue of material fact" and, instead "relied upon [their] pleadings" and "subjective beliefs about the nature of the evidence[.]" See Steelvest, Inc., 807 S.W.2d at 482; see also Hartford Ins. Group, 579 S.W.2d at 631(internal quotation marks and citation omitted); Haugh, 242 S.W.3d at 686 (citing Humana of Kentucky, Inc., 796 S.W.2d at 3).
The Landowners also assert that there is a genuine issue of material fact because, at some point, Two Creeks used its equipment to clear a portion of Marcus Whittler Lane. Even if Two Creeks did this, it does not change the fact that the County classified Marcus Whittler Lane as a county road and, within the year preceding the Landowners' complaint, the County exerted its authority over Marcus Whittler Lane and directed maintenance to be performed it. Thus, whether Two Creeks used its equipment to clear a portion of Marcus Whittler Lane does not affect whether it falls under the umbrella of KRS 178.116(1)(c), rendering the fact "nonmaterial[.]" Isaacs, 5 S.W.3d at 503.
Accordingly, we hold that, even when viewing the facts in the light most favorable to the Landowners, no evidence existed in the record to create a genuine issue of material fact.
C. The Circuit Court Allowed Enough Time for Discovery
Finally, the Landowners argue that we should reverse the circuit court's decision because its judgment was premature. "A summary judgment is a final order and, therefore, should not be entered 'as a form of penalty for failure of the plaintiff to prove his case quickly enough.'" Suter v. Mazyck, 226 S.W.3d 837, 841 (Ky. App. 2007) (quoting Conley v. Hall, 395 S.W.2d 575, 580 (Ky. 1965)). Thus, Kentucky courts must give the parties an "ample opportunity" to conduct discovery before granting a motion for summary judgment. Id. (citing Pendleton Bros. Vending, Inc., 758 S.W.2d at 29).
However, "[t]he question is not whether the nonmoving party 'has actually completed discovery' - rather, the question is whether the nonmoving party 'has had an opportunity to do so.'" Bowlin Grp., LLC v. Rebennack, 626 S.W.3d 177, 188 (Ky. App. 2020) (quoting Hartford Ins. Grp., 579 S.W.2d at 630); see also O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) ("Foregoing the opportunity to take a deposition of a witness could hardly be considered to support an argument opposing a motion for summary judgment."). Therefore, when a circuit court gives a party sufficient time to conduct discovery, but that party fails to conduct that discovery, we will not find that the circuit court abused its discretion by granting summary judgment.
For example, when a party fails to produce affidavits of its own witnesses or to review and produce documents in the party's possession.
Here, the circuit court gave the Landowners ample time for discovery, but the Landowners were unable to produce sufficient evidence to overcome summary judgment. At the latest, on December 28, 2020, when the county attorney sent the letter ordering the Landowners to give Two Creeks access to Marcus Whittler Lane, it put the Landowners on notice that the County and Two Creeks considered Marcus Whittler Lane to be a county road. Nearly one year later, the Landowners filed their complaint. In the complaint, the Landowners refer to unnamed "government" personnel that assured them over a period of approximately 30 years that the County discontinued Marcus Whittler Lane, but they produced no corroborating evidence. At no time did the Landowners present any testimony or an affidavit of such witnesses to respond to summary judgment as required by CR 56. The Landowners claimed they were still reviewing their own documents but never supplemented with, nor produced any documents or drone footage that supported their positions.
The Landowners attempt to analogize this case to Suter, where this Court remanded a matter when the appellants had less than five months to review thousands of documents before the circuit court granted a motion for summary judgment. 226 S.W.3d at 844. However, unlike the appellants in Suter, these documents were presumably always in the Landowners' possession or available to them. Additionally, the Landowners had nearly two years to review and produce evidence that supported their position.
Therefore, we find that the Breckinridge Circuit Court did not abuse its discretion when it granted summary judgment in favor of the Appellees.
CONCLUSION
For all the foregoing reasons, we AFFIRM the Breckinridge Circuit Court order granting summary judgment in favor of the County and Two Creeks.
ALL CONCUR.