Rains v. Patrick, No. 2007-CA-000745-MR (Ky. App. 10/3/2008), No. 2007-CA-000745-MR.
| Decision Date | 03 October 2008 |
| Docket Number | No. 2007-CA-000745-MR. |
| Parties | Danny RAINS, Appellant v. Michael PATRICK, City of Williamsburg, Kentucky, by and Through its Mayor, Roddy Harrison, and its City Council Members, Being Richard Foley, Paul Estes, Laurel West, Chet Riley, Joe Early, and Donnie Witt, All in Their Official Capacity, Appellees. |
| Court | Court of Appeals of Kentucky |
David O. Smith, Marcia A. Smith, Corbin, Kentucky, Brief for Appellant.
Jane Winkler Dyche, London, Kentucky, Brief for Appellee, Michael Patrick.
Leroy A. Gilbert, Jr., Corbin, Kentucky, Brief for Appellees, City of Williamsburg, Kentucky byand Through Its Mayor, Roddy Harrison, its City Council Members, Being Richard Foley, Paul Estes, Laurel West, Chet Riley, Joe Early and Donnie Witt.
Before: COMBS, Chief Judge; NICKELL, Judge; GRAVES,1 Senior Judge.
Danny Rains ("Rains") appeals three rulings of the Whitley Circuit Court dismissing his complaint for fraud against Michael Patrick2 ("Patrick") before trial began, dismissing his claim for breach of contract against the City of Williamsburg ("City") before Rains completed his proof, and overruling his motion to alter, amend or vacate3 the order dismissing the complaint in toto. We affirm.
In 2001, the City began acquiring easements from property owners for installation of a sanitary sewer line for the school system. Rains and his partners, Ted and Barbara Bargo,4 were asked to donate an easement. Any landowner who donated an easement was given one free sewer hook-up. No one was given free sewer service. The property of four landowners who chose not to donate an easement to the City was acquired through condemnation proceedings with each landowner receiving about $4,000.00 in return for the easement. Thirty-eight easements were executed as part of the City project which was financed by a public bond. The bond debt was to be retired with monthly sewage use fees. This appeal focuses generally on the negotiations that produced the easement executed on October 11, 2001, by the City, Rains, and the Bargos, and in particular on the consideration agreed upon by the three parties for the easement.
When first approached by the City about the sewer project, Rains and the Bargos declined to donate an easement. They also refused a second inquiry. When told the new sewer line would benefit area schools, Rains and the Bargos developed a list of items they wanted in return for giving the City an easement. When Atkins was unsuccessful in securing an easement for the Rains/Bargo property directly, either he or Nighbert5 asked Patrick whether he would introduce a City representative to Rains. Patrick knew the Rains family and thought he might be able to help; so he agreed to introduce Atkins to Rains.
On an unspecified date, Patrick and Atkins met with Rains at Rains's home. Atkins did not recall what the trio discussed. Rains said he asked for a ditch to be cleaned, a road barricade to be repositioned, a free sewer hook-up and free sewer service in return for donating the easement. In contrast, Patrick said Rains requested the cleaning of a ditch and the repositioning of a road barricade, both of which Patrick approved as County Judge/Executive. The only other demand Patrick recalled Rains making was a free sewer hook-up; if Rains requested free sewer service, Patrick said he did not construe it as such. Both Rains and Patrick agreed Patrick said he would have to contact Nighbert to learn whether the City would give Rains a free sewer hook-up. According to Rains, he thought Patrick was also asking Nighbert about free sewer service since for him that was the linchpin of the consideration for the easement.
In describing what happened next, Rains stated:
A few days later [Patrick] came and tole (sic) me it was a go but they couldn't put the free service on paper because everybody else would want it too but as long as I didn't say anything the Mayor would take care of it. I said that would work for me. A few days later the road crew came out and cleaned the ditch. Truman Prewitt came out and ran sixty (60) feet of line and hooked it into the sewer and since Truman Prewitt worked for the City water I was sure the Mayor gave his okay. So I had free service for about three (3) years until they cut it off.
Rains testified via deposition that his home was hooked to the sewer line as soon as the line was completed.6 Then, in June 2005, Rains received a letter from the City water department saying he was illegally connected to the sewer system and should immediately apply for service and pay the $500.00 tap-on fee. Atkins confirmed the tap-on fee was to be waived because Rains had donated an easement to the City but Rains never applied for sewer service. Rains estimated the City cemented the sewer line to his home and terminated service about a week after he received the letter advising him he was illegally connected to the system.7
In contrast, Patrick says the only Rains demand he discussed with Nighbert was a free sewer hook-up which Nighbert approved but said would not be reflected in the written easement. After learning Rains was upset about his sewer service being terminated, Patrick asked Nighbert whether he remembered "us talking about giving free service and he said no he did not." Patrick denied talking to Rains as an agent of the City. He also denied any conduct that would have made him liable to Rains for a claim of fraud.
For its part, the City admitted giving Rains a free sewer hook-up, but denied giving him free sewer service. The City maintained Rains tapped into the system without its knowledge and then declined to apply for sewer service when a smoke test revealed the illegal connection. As a result, the City cemented the sewer line and terminated service to the Rains residence.
Besides Patrick and Atkins, Andrew Meadors ("Meadors"), a public administration specialist with the Cumberland Valley Area Development District, was the only other government official to discuss the easement with Rains. Meadors was authorized to approach landowners about donating easements, but as Rains knew, Meadors had no authority to bind the City. Rains maintained his agreement was with Patrick, not with Meadors. After meeting with Rains in September 2001, Meadors summarized their conversation in a letter dated October 11, 2001, the same day the easement was executed. Meadors was unaware Patrick had talked with Rains about the needed easement. The letter from Meadors identified six items8 demanded by Rains in return for donating the sewer easement. It mentioned waiving the sewer tap-on fee but said nothing about free sewer service. There was no proof Rains contacted Meadors to confirm the status of his alleged request for free sewer service or to ask that the letter be corrected to reflect his demand for free service. Meadors was deposed and also testified at trial. He denied discussing free sewer service with Rains. In addition to reciting Rains's demands for the easement, Meador's letter directed Rains to advise the City when he tapped on to the sewer line.
Atkins drafted the easement signed by Rains, the Bargos, and Nighbert on October 11, 2001. According to Atkins, he was never told the precise terms of the City's agreement with Rains but it was the City's intention to give one free sewer hook-up to each landowner donating an easement. The free sewer hook-up was mentioned in some, but not all, of the easements. The easement for the Rains/Bargo property stated only that it was given "for and in consideration of $1.00 and other good and valuable consideration."
On November 14, 2005, Rains filed suit against Patrick for fraud and against the City for breach of contract, by and through its mayor and members of its city council.9 The complaint alleged "Patrick negotiated free sewer service and free hook up" for Rains in return for a sewer easement that Rains signed to his detriment as a result of Patrick's false representations. The complaint further alleged the City breached its oral agreement with Rains by providing free sewer service and then three years later denying existence of any agreement and terminating service. Rains argued that if Patrick was an agent of the City, the City breached its agreement; alternatively, if Patrick was not an agent of the City, Patrick fraudulently induced Rains to sign the easement and Patrick was personally liable to him for more than $4,000.00. Rains sought compensatory and punitive damages from Patrick; compensatory damages from the City; either specific enforcement of the oral agreement for free sewer service, or an injunction requiring removal of the sewer line from his property; and a jury trial. Atkins filed a joint answer on behalf of all the defendants asking that the complaint be dismissed because it failed to state a claim upon which relief could be granted; it did not satisfy CR 9.02 because it did not describe the fraud charge against Patrick with particularity; and all the defendants were immune from suit.
Patrick and the City were ultimately represented by separate counsel but advanced many of the same arguments. In the interest of brevity we will combine these arguments where possible. Both the City and Patrick moved to amend their answers to argue Rains's claims were barred by the Statute of Frauds which requires agreements that cannot be performed within one year and contracts for the sale of real estate to be in writing. KRS 371.010 (6) and (7). While Rains had the written easement, it said nothing about free sewer service, and he had no other writing on which to rely.
Both defendants moved for summary judgment. The City claimed it did not know Rains believed he had been given free sewer service as part of the consideration for the easement. In support of its position, the City argued: Rains admitted he had never discussed the...
To continue reading
Request your trial