Opinion
NO. 2018-CA-001382-MR
04-10-2020
GENE NETTLES, NANCY NETTLES, MAX WILSON, LUCY BONDURANT WILSON, BARRY SHARP, SHIRLEY SHARP, JENNY VARDEN, BILL FENWICK, LARRY LEWIS, MARY JO LEWIS, PAUL BECK, KATIE BECK, TERRY POWELL, JAMEY POWELL, TERESA MCMULLIN, AND JERRY THOMPSON APPELLANTS v. COMMONWEALTH OF KENTUCKY, ENERGY AND ENVIRONMENT CABINET APPELLEE
BRIEFS FOR APPELLANTS: W. Henry Graddy, IV Versailles, Kentucky BRIEF FOR APPELLEE: John S. West Chris Fitzpatrick J. Michael West Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 14-CI-00042 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES. DIXON, JUDGE: Gene Nettles, Nancy Nettles, Max Wilson, Lucy Bondurant Wilson, Barry Sharp, Shirley Sharp, Jenny Varden, Bill Fenwick, Larry Lewis, Mary Jo Lewis, Paul Beck, Katie Beck, Terry Powell, Jamey Powell, Teresa McMullin, and Jerry Thompson (collectively, "Appellants") appeal the August 17, 2018, order of the Hickman Circuit Court denying their motion to alter, amend, or vacate its order granting the Commonwealth of Kentucky, Energy and Environment Cabinet ("Cabinet") summary judgment, entered on November 7, 2017. After careful review of the record, briefs, and law, we affirm.
The procedural history of this case is complex; therefore, we will only discuss the pertinent portions herein. The Cabinet previously appealed the decision of the Franklin Circuit Court involving Kentucky No-Discharge Operational Permits (KNDOP) issued to nine large-scale industrial hog farmers operating farms near Appellants in the case herein. Commonwealth, Energy and Env't Cabinet v. Sharp, No. 2009-CA-002283-MR, 2012 WL 1889307 (Ky. App. May 25, 2012), as modified (Nov. 30, 2012), opinion not to be published. In Sharp, another panel of our Court upheld the validity of these KNDOPs. The case herein was brought by Appellants against the Cabinet in Franklin Circuit Court alleging odor and air toxins produced by hog farms near their properties have been permitted by the Cabinet and, therefore, constitute a governmental taking due to the diminished value to their properties. The Franklin Circuit Court, however, transferred the case to the Hickman Circuit Court.
Kentucky Rules of Civil Procedure (CR) 76.28(4)(c) provides: "Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state[.]" However, this case is being cited as binding authority since it concerns the same parties and the same permits at issue in the case herein. See Penco, Inc. v. Detrex Chem. Indus., Inc., 672 S.W.2d 948 (Ky. App. 1984) (General contractor brought action against company which allegedly gave negligent advice to painting subcontractor. A prior, unpublished Court of Appeals opinion determined general contractor's negligent action against subcontractor and another advisor was barred under doctrine of res judicata. Previous judgment in original breach of contract action by general contractor against subcontractor and advisors was binding in that action, despite rule that unpublished opinions cannot be used as authority in any "other case." The prior opinion arose from an earlier appeal involving the same parties and same issues.).
Kentucky Revised Statutes (KRS) 452.400 provides actions arising out of disputes over real property "must be brought in the county in which the subject of the action, or some part thereof, is situated[.]" However, when this case was transferred to Hickman Circuit Court, it contained Appellants whose real property was in Marshall County. Consequently, those claims were later voluntarily dismissed without prejudice.
After the case herein was transferred, the Cabinet moved for summary judgment. Its motion was initially denied by the trial court to allow Appellants to gather evidence in support of their claims. The Cabinet later renewed its motion for summary judgment. Appellants also filed for summary judgment. After arguments, the trial court granted summary judgment to the Cabinet. Appellants moved the trial court to alter, amend, or vacate its order granting summary judgment, but their motion was denied. This appeal followed.
As an initial matter, CR 76.12(4)(c)(iv) requires "ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings . . . supporting each of the statements narrated in the summary." The statement of the case in Appellants' brief contains not even a single citation to the record.
We further note that neither Appellants' nor the Cabinet's briefs comply with CR 76.12(4)(c)(vii), which provides that the index "shall set forth where the documents may be found in the record." The purpose of this rule is to ensure only items in the record are appended to the brief and considered by our court during review.
We have three options: "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only, Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)." Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Because these errors were made by counsel, we will not punish the clients. We will review the alleged deficiencies but will not search the record on appeal for evidence to support Appellants' position. Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). However, we stress that this Court may not be as lenient in future appeals.
Summary judgment is appropriate "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." CR 56.03. An appellate court's role in reviewing a summary judgment is to determine whether the trial court erred in finding no genuine issue of material fact exists and the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de novo because factual findings are not at issue. Pinkston v. Audubon Area Community Serv., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006).
It is well-established that a party responding to a properly supported summary judgment motion cannot merely rest on the allegations in his pleadings. Continental Casualty Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955). "[S]peculation and supposition are insufficient to justify a submission of a case to the jury, and . . . the question should be taken from the jury when the evidence is so unsatisfactory as to require a resort to surmise and speculation." O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citation omitted). Furthermore, the party opposing summary judgment "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 481 (Ky. 1991) (internal quotation marks and citations omitted). "[T]he proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Id. at 480.
The first issue Appellants raise on appeal concerns setbacks of the hog barns from the real property and residences of Appellants, which they contend constitutes a "taking" of their property. Yet, this issue was specifically ceded in the trial court, as admitted by counsel for Appellants on November 2, 2016. Therefore, as this issue was previously abandoned in the trial court, it is improper for Appellants to raise on appeal. This claim was clearly not presented to the trial court for consideration. "The Court of Appeals is without authority to review issues not raised in or decided by the trial court." Regional Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (citations omitted).
Next, Appellants argue that the trial court should have required the Cabinet to apply air toxic regulation 401 KAR 63:020. This matter was previously addressed in Sharp. "Indeed, if data regarding air emissions from animal feeding operations to justify requiring compliance with 401 KAR 63:020 is presented, the Cabinet retains the authority to require compliance with this provision at any time." 2012 WL 1889307, at *16 n.54. The trial court found that Appellants produced no data concerning air toxic emissions in Hickman County. Without air toxic emissions data to support their claims, the trial court properly dismissed these claims as a matter of law.
Kentucky Administrative Regulations.
The only air toxic emissions data proffered by Appellants was from Marshall County. Appellants had over a decade to collect this data. The trial court denied the first motion for summary judgment for the express purpose of allowing Appellants additional time to collect such data; however, none was produced.
Appellants next maintain that the trial court failed to conduct a "takings" analysis. "A taking is generally defined as the entering upon private property and devoting it to public use so as to deprive the owner of all beneficial enjoyment." Commonwealth, Nat. Resources and Envtl. Protection Cabinet v. Stearns Coal and Lumber Co., 678 S.W.2d 378, 381 (Ky. 1984). Appellants argue they have experienced "inverse" taking or condemnation. "Inverse condemnation is the term applied to a suit against a government to recover the fair market value of property which has in effect been taken and appropriated by the activities of the government when no eminent domain proceedings are used." Id.
However, the trial court correctly applied Murr v. Wisconsin, 137 S.Ct. 1933, 1947, 198 L.Ed.2d 497 (2017) (citations omitted), in which the United States Supreme Court held "reasonable land-use regulations do not work a taking." There is no dispute the permits at issue were found to be legally valid and reasonable in Sharp.
Moreover, the Court of Federal Claims has held:
When an economic injury is not the result of the Government's direct regulation of a plaintiff's property, but rather is derivative of Government regulation of some other party or property, there is no viable claim for a regulatory taking.Lone Star Industries, Inc. v. United States, 109 Fed. Cl. 746, 759 (2013). The case herein concerns regulation of hog farms not situated on Appellants' real property; thus, they have no viable takings claims. Cf., Stearns, 678 S.W.2d at 381 (finding neither a taking or inverse taking when the Wild Rivers Act, which was codified as KRS 146.210 et seq., placed restrictions on landowner's use of property); United States v. Causby, 328 U.S. 256, 266, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206 (1946) (concluding treatment under takings law is appropriate as to government operation of aircraft when "[f]lights over private land . . . are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land"); Griggs v. Allegheny County, Pa., 369 U.S. 84, 87-90, 82 S.Ct. 531, 533-34, 7 L.Ed.2d 585 (1962) (determining a taking when "[r]egular and almost continuous daily flights . . . directly over and very, very close to [the] plaintiff's residence" made conversations and sleep in the residence difficult, rattled windows, caused plaster to fall from walls and ceilings, and negatively impacted residents' health); and Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 131, 98 S.Ct. 2646, 2662-63, 57 L.Ed.2d 631 (1978) (holding "decisions sustaining other land- use regulations . . . uniformly reject the proposition that diminution in property value, standing alone, can establish a 'taking'").
Appellants argue that the trial court erred in granting summary judgment. As previously discussed, however, Appellants failed to present any emissions data to support their claims. More than mere allegations are required to defeat a properly presented motion for summary judgment. Continental Casualty Co., 281 S.W.2d at 916. There were no genuine issues of material fact which precluded the trial court's grant of summary judgment. Therefore, the grant was proper.
Next, Appellants claim the trial court erred when it concluded they were inviting the court to "create new law." Appellants urged the trial court—and now urge our Court—to find and conclude the "flowage easement" line of cases is parallel to the "odor easement" they claim the Cabinet granted to the hog barns over Appellants' property.
Nevertheless, the primary case Appellants cite in this argument does not support such a finding or conclusion at all.
Plaintiffs point to no case where the government incurred takings liability based on inaction. Takings liability must be premised on affirmative government acts. The failure of the government to properly maintain the [Mississippi River Gulf Outlet] channel or to modify the channel cannot be the basis of takings liability. Plaintiffs' sole remedy for these inactions, if any, lies in tort.St. Bernard Parish Gov't v. United States, 887 F.3d 1354, 1362 (Fed. Cir. 2018), cert. denied sub nom., 139 S.Ct. 796, 202 L.Ed.2d 571 (2019) (footnote omitted). Similarly, the failure of the Cabinet to further regulate the hog farms cannot be the basis of takings liability.
Moreover, the flowage easement cases naturally differ somewhat from this odor easement case. In the flowage easement cases, the plaintiffs were required to "present evidence comparing the flood damage that actually occurred to the flood damage that would have occurred if there had been no government action at all." Id. at 1363 (footnote omitted). In the case herein, Appellants failed to collect and present air quality data to support their claims concerning causation, which is a necessary element to establish before a court can address the issue of damages, if any. Appellants presented no evidence of an odor violation or the presence of toxins in the air above their real properties situated in Hickman County. Simple "sensory observations," such as the Appellants' deposition testimony, is insufficient to establish a violation. Appellants were required to have compliant air quality data collected pursuant to 401 KAR 63:020. Their failure to do so is fatal to their claim.
The trial court acknowledged that the Cabinet documented one odor violation near the hog farms at issue in this case, noting that inspection occurred on February 25, 2008.
Next, Appellants argue that the trial court erred when it concluded Appellants were required to bring a separate action to compel the Cabinet's enforcement of its air toxic regulation rather than address such failure in this action. In its order, the trial court informed Appellants they have a remedy pursuant to KRS 224.1-050 if the Cabinet fails to enforce the law.
Appellants contend they reported objectionable odors to the Department of Air Quality and "the Cabinet did nothing in response when an air quality regulation was violated." Appellants presented no evidence supporting this contention. The Cabinet, however, documented one odor violation near the hog farms at issue. It is unknown what actions, if any, the Cabinet took in response to that violation. Nevertheless, the trial court was correct in determining that any concerns regarding the Cabinet's action in response to that violation should be addressed pursuant to KRS 224.1-050, which provides in pertinent part:
Any citizen of this Commonwealth having knowledge that any of the provisions of this chapter or regulations adopted thereunder are willfully and deliberately not being enforced by any public officer or employee, whose duty it is to enforce such provisions of this chapter and regulations thereunder, may bring such failure to enforce the law to the attention of such public officer or employee. To provide against unreasonable and irresponsible demands being made, all such demands to enforce the law must be in writing, under oath, with facts set forth specifically stating the nature of the failure to enforce the law.Appellants presented no evidence of such a demand.
Appellants further contend the Cabinet now has "actual evidence of the nature and volume of the toxic air emissions from the Tosh Farms Standard Hog Barns." However, Appellants fail to explain what comprises such evidence. We are left to assume this information consists of data collected following Appellants' report of only one complaint rising to the level of an odor violation. We do not know the location where the odor violation occurred—we are only told it was "near the hog farms at issue here." This alone is insufficient to force Cabinet action as contemplated by Sharp. "Indeed, if data regarding air emissions from animal feeding operations to justify requiring compliance with 401 KAR 63:020 is presented, the Cabinet retains the authority to require compliance with this provision at any time." 2012 WL 1889307, at *16 n.54.
Next, Appellants argue the trial court erred when it failed to certify this action as a class. Yet, Appellants offer essentially no argument or support for these allegations. We will not search the record to construct Appellants' argument for them, nor will we go on a fishing expedition to find support for underdeveloped arguments. "Even when briefs have been filed, a reviewing court will generally confine itself to errors pointed out in the briefs and will not search the record for errors." Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979) (citation omitted).
Lastly, Appellants maintain that the trial court erred when it required them to provide proof that the Cabinet violated the law to pursue their claims of a partial taking. This argument clearly misconstrues the trial court's order. Once again, Appellants offer little support for these allegations. The only case cited in support of this argument is a Calloway Circuit Court order, which is "that of a trial court having no precedential value[.]" Courier-Journal v. Jones, 895 S.W.2d 6, 7 (Ky. App. 1995). Consequently, we will not address its application herein further. Again, it is not our role to search the record to construct Appellants' argument.
Therefore, and for the foregoing reasons, the order entered by the Hickman Circuit Court is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANTS: W. Henry Graddy, IV
Versailles, Kentucky BRIEF FOR APPELLEE: John S. West
Chris Fitzpatrick
J. Michael West
Frankfort, Kentucky