Cary v. Pulaski Cnty. Fiscal Court, s. 2011–CA–002272–MR, 2011–CA–002274–MR, 2012–CA–000187–MR, 2012–CA–000226–MR.
| Decision Date | 16 January 2014 |
| Docket Number | Nos. 2011–CA–002272–MR, 2011–CA–002274–MR, 2012–CA–000187–MR, 2012–CA–000226–MR.,s. 2011–CA–002272–MR, 2011–CA–002274–MR, 2012–CA–000187–MR, 2012–CA–000226–MR. |
| Citation | 420 S.W.3d 500 |
| Court | Kentucky Court of Appeals |
| Parties | 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. |
OPINION TEXT STARTS HERE
Matthew J. Baker, Bowling Green, KY, for Appellants, Don and Cathy Cooper, and Appellants/Cross–Appellees Ronnie and Grace Cary.
Martin L. Hatfield, Marcus L. Vanover, Somerset, KY, for Appellee, Pulaski County Fiscal Court.
Scott T. Foster, Somerset, KY, for Appellees, John and Beth Bruner.
John T. Mandt, Somerset, KY, for Appellees/Cross–Appellants Warren Shannon Thompson, Warren Cook Thompson, James P. Thompson, Mary Stevenson and Charles Stevenson.
Before CLAYTON, MAZE, and MOORE, Judges.
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.
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 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].
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.
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–ScienceHill 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.
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 (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 (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).
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...
To continue reading
Request your trial
-
Ellington v. Becraft
...for maintenance of a road which happens to become public through a process over which it has no control." Cary v. Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 508 (Ky. App. 2013) (citing Sarver, 582 S.W.2d at 41 ).Both parties stipulated that the first one-tenth of a mile on Smokey Hollow Ro......
-
Becraft v. Ellington
...proof consisting of an official order, resolution or ordinance of the fiscal court that appears of record." Cary v. Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 507-08 (Ky. App. 2013); see also Illinois Cent. R. Co. v. Hopkins County, 369 S.W.2d 116 (Ky. 1963). In this case, it is undisputed......
-
Bretagne, LLC v. Multi-Cnty. Recreational Bd., Inc.
...consisting of an official order, resolution or ordinance of the fiscal court that appears of record." Cary v. Pulaski County Fiscal Court , 420 S.W.3d 500, 507-08 (Ky. Ct. App. 2013). The Cary Court noted that if the fiscal court failed to produce a formal order it was unnecessary to delve ......
-
Mosley v. Brock
...procedural steps and have performed certain ministerial duties unless the record establishes otherwise." Cary v. Pulaski Cty. Fiscal Court, 420 S.W.3d 500, 506 (Ky. App. 2013). As Brock was relying on prior actions of the Commonwealth and the Bell County Fiscal Court in coming to his belief......