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Pinnacle Development II, LLC v. RML Construction, LLP

Court of Appeals of Kentucky

August 30, 2013

PINNACLE DEVELOPMENT II, LLC, APPELLANT/CROSS-APPELLEE
v.
RML CONSTRUCTION, LLP, APPELLEE/CROSS-APPELLANT

APPEAL AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE PAMELA GOODWINE, JUDGE ACTION No. 10-CI-01908.

BRIEF AND ORAL ARGUMENT FOR APPELLANT/CROSS- APPELLEE: Nick Wallingford Lexington, Kentucky.

BRIEF FOR APPELLEE/CROSS-APPELLANT: William M. Lear, Jr. Rena Wiseman Lexington, Kentucky.

ORAL ARGUMENT FOR APPELLEE/CROSS-APPELLANT: William M. Lear, Jr. Lexington, Kentucky.

BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND MOORE, JUDGES.

OPINION

MOORE, JUDGE:

Pinnacle Development II, LLC (Pinnacle) appeals a judgment of the Fayette Circuit Court awarding it $5, 049.29, rather than its prayed-for amount of $48, 946.59, in its breach of contract action against RML Construction, LLP (RML). RML cross-appeals arguing that the circuit court erred in failing to dismiss Pinnacle's action as time-barred. Upon review, we agree that Pinnacle's action was indeed time-barred and we reverse the circuit court's decision to the contrary.

FACTUAL AND PROCEDURAL HISTORY

On March 20, 2007, the Lexington-Fayette Urban County Government promulgated Ordinance No. 41-97, entitled

AN ORDINANCE ESTABLISHING AND ADOPTING A PRIVILEGE FEE FOR CONNECTION TO AND USE OF THE SEWER FACILITIES SERVING BENEFITED PROPERTIES IN THE WEST HICKMAN NO. 1 OUTER PERIMETER SEWER PROJECT AREA; AND AUTHORIZING AND DIRECTING THE MAYOR, ON BEHALF OF THE URBAN COUNTY GOVERNMENT, TO EXECUTE THE WEST HICKMAN NO. 1 PRIVILEGE FEE AGREEMENT.

This ordinance touches upon the history of this case and provides a measure of context. In relevant part, it provides:

WHEREAS, the Government owns and operates a system of sanitary sewer collection and treatment for the benefit of its citizens and taxpayers; and
WHEREAS, the sanitary sewer trunk line identified as the West Hickman No. 1 Project is recommended for construction in the implementation plan for construction of the Outer Perimeter Sewer Systems-1986; and
WHEREAS, the West Hickman No. 1 Project facilities will facilitate development, serve existing developed properties, and enhance environmental conditions in the water shed area; and
WHEREAS, owners of property to be ultimately benefited by the West Hickman No. 1 facilities have been provided written notice, by certified mail, of a description of the proposed project and the shares of costs to be borne by each property along with notice of an opportunity to attend an informational meeting concerning the project and notice of an opportunity to be heard concerning the project at a special meeting of the Urban County Council held on February 25, 1997; and
WHEREAS, it is in the best interests of the Government and the owners of benefited property, their heirs, successors and assigns, that they be ultimately responsible for a pro rata portion of the cost of constructing facilities as hereinafter provided, calculated and based on the acreage of their property and the cost of providing sewer availability for such property, with ...

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