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Cary v. Pulaski County Fiscal Court

Court of Appeals of Kentucky

June 7, 2013

RONNIE CARY AND GRACE CARY, APPELLANTS
v.
PULASKI COUNTY FISCAL COURT; LINUS KEENEY; FREDA KEENEY; BETTY JANE SMITH; MARY ELIZABETH STEVENSON; CHARLES ALLEN STEVENSON; NOEL GENE STEVENSON; GAYLE DAVIS; LORA ELLEN O'BROHTA; ANTHONY CORAL STEVENSON; WARREN SHANNON THOMPSON; WARREN COOK THOMPSON; and JAMES P. THOMPSON, APPELLEES AND DON COOPER AND CATHY COOPER, APPELLANTS
v.
PULASKI COUNTY FISCAL COURT; JOHN BRUNER; and BETH BRUNER, APPELLEES AND RONNIE CARY AND GRACE CARY, APPELLANTS
v.
PULASKI COUNTY FISCAL COURT; LINUS KEENEY; FREDA KEENEY; BETTY JANE SMITH; MARY ELIZABETH STEVENSON; CHARLES ALLEN STEVENSON; NOEL GENE STEVENSON; GAYLE DAVIS; LORA ELLEN O'BROHTA; ANTHONY CORAL STEVENSON; WARREN SHANNON THOMPSON; WARREN COOK THOMPSON; and JAMES P. THOMPSON, APPELLEES AND MARY ELIZABETH STEVENSON; CHARLES ALLEN STEVENSON; WARREN COOK THOMPSON; WARREN SHANNON THOMPSON; and JAMES P. THOMPSON, CROSS-APPELLANTS
v.
RONNIE CARY AND GRACE CARY, CROSS-APPELLEES

Page 501

[Copyrighted Material Omitted]

Page 502

[Copyrighted Material Omitted]

Page 503

APPEAL FROM PULASKI CIRCUIT COURT. HONORABLE DAVID A. TAPP, JUDGE. ACTION NO. 08-CI-01349, HONORABLE JEFFREY T. BURDETTE, JUDGE. ACTION NO. 09-CI-01301.

BRIEF FOR APPELLANTS, DON AND CATHY COOPER, AND APPELLANTS/CROSS-APPELLEES RONNIE AND GRACE CARY: Matthew J. Baker, Bowling Green, Kentucky.

BRIEF FOR APPELLEE, PULASKI COUNTY FISCAL COURT: Martin L. Hatfield, Marcus L. Vanover, Somerset, Kentucky.

BRIEF FOR APPELLEES, JOHN AND BETH BRUNER: Scott T. Foster, Somerset, Kentucky.

BRIEF FOR APPELLEES/CROSS-APPELLANTS WARREN SHANNON THOMPSON, WARREN COOK THOMPSON, JAMES P. THOMPSON, MARY STEVENSON AND CHARLES STEVENSON: John T. Mandt, Somerset, Kentucky.

BEFORE: CLAYTON, MAZE, AND MOORE, JUDGES. ALL CONCUR.

OPINION

Page 504

REVERSING AND REMANDING AS TO APPEAL NO. 2011-CA-002274-MR; AFFIRMING AS TO APPEAL NOS. 2011-CA-002272-MR; 2012-CA-000187-MR; AND CROSS-APPEAL NO. 2012-CA-000226-MR

MOORE, JUDGE

These consolidated appeals each concern roads situated in rural Pulaski County, Kentucky, and disputes between abutting owners of those roads and the Pulaski County Fiscal Court as to whether the roads are properly categorized as either private passways, or " county roads." As defined in Kentucky Revised Statute (KRS) 178.010(1)(b), " county roads" are

public roads which have been formally accepted by the fiscal court of the county as a part of the county road system, or private roads, streets, or highways which have been acquired by the county pursuant to subsection (3) of this section or KRS 178.405 to 178.425. " County roads" includes necessary bridges, culverts, sluices, drains, ditches, waterways, embankments or retaining walls[.]

These appeals originated as declaratory actions in Pulaski Circuit Court. In each the circuit court granted summary judgment, ruling that the roads in question constituted county roads rather than private passways. For the reasons detailed below, we reverse and remand the appeal of the matter designated 2011-CA-002274, but affirm those matters designated 2011-CA-002272, 2012-CA-000187, and 2012-CA-000226.

APPEAL NO. 2011-CA-002274-MR

I. Factual and Procedural History

The road that is the subject of this appeal is generally known as " Edward Meece Road." It passes through and is bounded on both sides by property owned by Don and Cathy Cooper, and, aside from providing access to the Coopers' property, it only provides access to property owned by appellees John and Beth Bruner. On September 8, 2009, the Coopers filed an action in Pulaski Circuit Court asking for Edward Meece Road to be declared their own private passway. The Bruners responded by contending that Edward Meece Road was a public road, and, as indicated, the Pulaski Fiscal Court also responded by arguing that Edward Meece Road was a county road.

In support of its claim that Edward Meece Road was a county road, the Fiscal Court produced 1) an aerial photograph from the Pulaski property valuation administrator's office depicting the road in question and labeling it " Edward Meece Road" ; 2) records from the Pulaski department of road maintenance describing the purchase of materials between April and May of 2000, in the amount of $3,429, for the construction of a small concrete bridge on Edward Meece Road; 3) a lined sheet of paper containing a handwritten notation that a Pulaski road crew had chipped and sealed " Edward Meece" on " 9-20-05" at a cost of $5,401; 4) one additional record from the Pulaski department of road maintenance indicating that a road crew had mowed the grass alongside the roadway on or about July 3, 2007; and 5) a page from the Fiscal Court's order book, dated June 30, 1976, providing in relevant part:

Sherman Taylor appeared concerning the Union-Science Hill Road. He request [sic] the courts [sic] permission to move this road. Motion was made by

Page 505

Magistrate Langdon seconded by Magistrate Huff to accept the Union-Science Hill Road for County maintenance. All Court in favor.

Furthermore, the Fiscal Court produced another one-page document, presumably from its records, stating:

10/27/00
In early 1970's there was a road where it is today and it had a gate across it at the entrance. Sherman Taylor owned the property where the gate was on the road. The Cooper's [sic] and Bertha Brumley went to court and the Judge declared the road a public passway and ordered the gate removed. In June 1976 Bill Langdon was magistrate and the road was taken into the system and was called Union Rd. A bridge was already in place at the time and graders came in and repaired the road. Ed Meece bought the property in 1976 and has been using the road since then. This information came from Edward Meece phone 423-[omitted].
Dennis Wilson

What purports to be Dennis Wilson's handwritten signature appears below where his name is typed in this document. Below that, different handwriting recites:

The above statement concerns a bridge built in 2000 on the Ed Meece Road being questioned by Don Cooper.
Rocky Hurt
10/27/00

As discovery progressed in the case in the circuit court, the Fiscal Court responded in several interrogatories and requests for admissions that it did not have any Kentucky Department of Transportation Road Series maps[1] or road surveys documenting the location of its county roads. It was unaware of and could not produce any instrument, deed, resolution, or order in its records describing Edward Meece Road. Aside from its aforementioned maintenance records, it had no records relating to Edward Meece Road. Its knowledge of the beginning and termination points of Edward Meece Road was based upon the previously-mentioned photograph of Edward Meece Road from the Pulaski property valuation administrator. It did not know when Edward Meece Road had been taken into Pulaski's county road system. It was unaware of and could not produce any instrument or deed in its records describing the location of " Union-Science Hill Road." Moreover, it could not provide any county road maintenance records from 1914 to the present regarding Union-Science

Page 506

Hill Road in Pulaski County, Kentucky.

The Coopers moved for partial summary judgment regarding the Fiscal Court's claim that Edward Meece Road was a county road. In their motion they pointed out that, in light of what was produced during discovery, the Fiscal Court had failed to demonstrate that it had ever " established" Edward Meece Road as a county road pursuant to KRS 178.080 or 178.115 or otherwise formally accepted Edward Meece Road into its system of maintenance.

The Fiscal Court responded with its own motion for summary judgment in which it argued that all of its proceedings were entitled to a " presumption of regularity," and that it was therefore the Coopers' burden to prove that Edward Meece Road was not a county road. As such, the Fiscal Court reasoned that Edward Meece Road must be a county road because the Coopers had adduced no evidence disproving that it was a county road. After considering these respective summary judgment motions, the circuit court agreed that the proceedings of the Fiscal Court were entitled to a presumption of regularity and, pursuant to an October 28, 2011 order of summary judgment, determined that Edward Meece Road was a county road. This appeal followed.

II. Standard of Review

Summary judgment serves to terminate litigation where " 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." Kentucky Rule of Civil Procedure (CR) 56.03. Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). Summary judgment " is proper where the movant shows that the adverse party could not prevail under any circumstances." Id. (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky.1985)).

On appeal, we must consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 43 1 Ky. L. Summary 17 (Ky.App.1996). Because summary judgment involves only questions of law and not the resolution of disputed material facts, an appellate court does not defer to the circuit court's decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378, 39 7 Ky. L. Summary 24 (Ky. 1992). Likewise, we review the circuit court's interpretations of law de novo. Cumberland Valley Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).

III. Analysis

Perhaps the best place to begin is with a brief overview of the " presumption of regularity" as it relates to fiscal courts and the establishment of " county roads" in the Commonwealth. Generally speaking, it is proper to presume that public officers have taken required procedural steps and have performed certain ministerial duties unless the record establishes otherwise. See Hennessy v. Bischoff, 240 S.W.2d 71, 73 (Ky. 1951); see also Shanks v. Northcutt, 223 Ky. 138, 3 S.W.2d 208, 209 (1928). This presumption has been applied in the context of county road cases when the exclusive jurisdiction to open, close, and maintain county roads rested with the county court. See Tarter v. Wilson, 207 Ky. 535, 269 S.W. 715

Page 507

(1925). And because the exclusive jurisdiction to open, close, and maintain county roads is now entirely vested by statute in fiscal courts, see, e.g., KRS 67.080(2)(b) and KRS 178.010 et seq., it can reasonably be assumed that the same presumption now works in favor of fiscal courts.

Historically, the presumption of regularity has operated to shield a judgment relating to the establishment of a county road from a collateral attack[2] in the face of an allegation that it was void for failing to follow statutory provisions relating to public notice in county road proceedings. See Tarter v. Wilson, 207 Ky. 535, 269 S.W. 715 (1925). One unpublished opinion has utilized it to presume that, in the absence of a showing to the contrary, the two individuals assigned to view a road and report whether the road should be discontinued, per KRS 178.070, were adequately " disinterested." Prichard v. Carter Fiscal Court, No. 2010-CA-001008-MR, 2011 WL 2937299 at * 2 (Ky. App. July 22, 2011).[3] And, a particularly old decision utilized it to presume that the two viewers mentioned in a predecessor statute to KRS 178.080 took an appropriate oath. Wood v. Campbell, 14 B.Mon. 422, 53 Ky. 339, 1854 WL 3778 (1854).

The presumption of regularity, however, may be rebutted by actual proof that a duty was not performed. Shanks, 3 S.W.2d at 209. Moreover,

[t]he general presumption that a duty has been performed by an official is subject to many qualifications. The presumption cannot be used as a substitute for proof of a definite or material fact or as a basis in presuming irregularity in another act by the same or a different officer; nor will it ...

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