Wells v. Ky. Airmotive, Inc.
| Decision Date | 15 August 2014 |
| Docket Number | NO. 2012-CA-001894-MR,2012-CA-001894-MR |
| Parties | WOODROW WELLS, JR. AND SHIRLEY ROGERS WELLS APPELLANTS v. KENTUCKY AIRMOTIVE, INC.; MIDWEST AIRMOTIVE, INC.; HILL'S AVIATION, INC.; HILL'S FLYING SERVICE, LLC; AND MOUNT STERLING-MONTGOMERY COUNTY AIRPORT BOARD APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM MONTGOMERY CIRCUIT COURT
OPINION AFFIRMING
BEFORE: NICKELL, THOMPSON, AND VANMETER, JUDGES.
NICKELL, JUDGE: Woodrow Wells, Jr., and his wife, Shirley Rogers Wells, have appealed from the Montgomery Circuit Court's October 29, 2012, dismissal of their claims against Kentucky Airmotive, Inc., Midwest Airmotive, Inc., Hill'sAviation, Inc., Hill's Flying Service, LLC, and Mount Sterling-Montgomery County Airport Board. Following a careful review, we affirm.
The Wells own approximately 108 acres of property on Grassy Lick Road in Mount Sterling, Kentucky. The Mount Sterling Airport lies directly across Grassy Lick Road from the Wells' property, and its single, 5001 foot long runway runs in a southwesterly to northeasterly orientation perpendicular to Grassy Lick Road. According to the Wells, their property is situated less than 1000 feet from the northeastern end of the runway.
The Airport Board is a commission created pursuant to KRS1 183.132 by joint actions of the City of Mount Sterling, Kentucky, and Montgomery County, Kentucky. The Airport Board owns the airport and the real property upon which it is situated. The airport is not served by an air traffic control tower and the Airport Board does not control which planes take off and land at the airport. Kentucky Airmotive, Midwest Airmotive, Hill's Aviation, and Hill's Flying service are private businesses that operate from the airport. These businesses provide aircraft charters and rentals in addition to flight instruction lessons.
The Wells brought the instant suit asserting a nuisance claim solely against the Airport Board and trespass claims against all of the appellees. The Wells alleged they suffered damages as a result of aircraft operating at altitudes below 500 feet above their adjacent property. They sought permanent injunctive relief prohibiting the use of the first 500 feet of airspace above their property basedon their assertion of "exclusive control over and the right to possess the property, upon which their home sits, as well as the immediate reaches of the atmosphere enveloping their home." In addition, the Wells sought damages for emotional distress and diminution in value of their property. They also requested an award of punitive damages.
Each of the appellees moved the trial court to dismiss the action pursuant to CR2 12.02(f), alleging the trial court was without authority to grant the requested relief. They contended the state law claims asserted in the action were "preempted by federal law as it relates to the operation of aircraft and the relief sought would conflict with federal statutes and regulations relating to the safe operation of aircraft." Memoranda in support of the motions to dismiss were tendered to the trial court. Following a hearing, the trial court entered a brief order granting the motions and dismissing the action with prejudice. This appeal followed.
On appeal, the Wells raise five allegations of error in seeking reversal. First, they contend the trial court considered facts and evidence outside the record, thereby converting the motions to dismiss into motions for summary judgment requiring completion of discovery before being entertained. Next, they argue the trial court utilized an incorrect legal standard in ruling on the motions to dismiss. The Wells' third and fourth allegations center on the assertion their claims are not preempted by federal aviation law and the relief sought does not conflict withapplicable aviation regulations. Finally, the Wells contend that since the Airport Board's motion to dismiss failed to discuss the nuisance claim, the trial court had no basis upon which to dismiss that claim. After a careful review, we discern no merit in any of the allegations of error.
"It is well settled in this jurisdiction when considering a motion to dismiss under [Kentucky Rules of Civil Procedure (CR) 12.02], that the pleadings should be liberally construed in a light most favorable to the plaintiff and all allegations taken in the complaint to be true." Mims v. Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007) (citing Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)). In such a case, "[t]he court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim." Pari-Mutuel Clerks' Union of Kentucky, Local 541, v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977). For purposes of the motion, the facts as pleaded in the complaint are admitted; only the right to relief remains to be challenged. Huie v. Jones, 362 S.W.2d 287, 288 (Ky. 1962). "Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo." Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (citing Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009)).
The Wells first contend the trial court assumed facts set forth in the motions to dismiss were true and otherwise relied upon matters outside thepleadings when considering the motions. In so doing, they allege the trial court converted the motions to dismiss into summary judgment motions which could not be granted until the parties had a reasonable opportunity to conduct discovery, citing CR 12.02, Suter v. Mazyck, 262 S.W.3d 837 (Ky. App. 2007), and other authorities. While we agree with the legal theory presented, we disagree that it applies to the matter at bar.
In ruling on the CR 12.02 motions, the trial court had before it the allegations set forth in the amended complaint and arguments set forth in memoranda of law from all parties. Although it appears the appellees' CR 12.02 motions could arguably be construed as motions for summary judgment under Rule 56—because the trial court appears to have reviewed matters outside the pleadings in making its determination—we believe this to be inconsequential, as this appeal solely involves an interpretation of the law, and our review would, thus, be de novo in either event. See CR 12.02; Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). Further, the matters potentially considered by the trial court consisted of mathematical calculations and/or regulations promulgated by the Federal Aviation Administration (FAA) and published in the Federal Register, all of which are appropriate for judicial notice pursuant to Kentucky Rules of Evidence (KRE) 201. Nevertheless, we cannot determine from the face of the record whether the trial court did, in fact, rely on any matters outside the record as the order dismissing the Wells' complaint contained no findings of fact or other indication as to the reasoning behind its decision and none were required. TheWells' bare assertion that the trial court improperly assumed as true certain facts averred in the appellees' motions garners no support from the record. A similar argument presented in their memorandum opposing the CR 12.02 motions apparently gained no traction with the trial court. Based on the facts presented, we cannot say the trial court erred in ruling on the CR 12.02 motions without permitting completion of discovery. Thus, we are unable to conclude the trial court should have treated the motions to dismiss as motions for summary judgment.
Second, the Wells contend the trial court utilized an incorrect legal standard in making its decision. They assert the trial court only considered whether they had stated a claim for which the maximum relief sought could be granted. Rather, they aver the trial court should have considered whether any relief could be granted on the claims set forth in their amended complaint. As before, the Wells offer nothing indicating the trial court acted improperly apart from their bare assertions. They concede the trial court's order contains no findings of fact, but contend the absence of such findings requires an assumption "the Court based its decision on the arguments advanced by Appellees." It appears that rather than indicating how and where the trial court erred, the Wells have taken a single sentence from an argument advanced by Kentucky Airmotive and Midwest Airmotive in their joint motion to dismiss and have attempted to attribute the totality of the trial court's ruling to that sentence. No further support is advanced in favor of this argument other than their own self-serving statements regardingtheir beliefs regarding why the trial court ruled as it did, and our review of the record indicates no such support exists. "We will not engage in gratuitous speculation as urged upon us by appellate counsel, based on a silent record." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). In the absence of even a modicum of support for their allegation of error, the Wells' contention must necessarily fail.
Next, the Wells contend the relief they sought was not in conflict with federal aviation regulations. Similarly, they argue the trial court erred in determining their claims were wholly preempted by federal aviation law. Although advanced as two separate arguments, we have determined to dispose of both of these allegations in a single discussion as both are centered on the applicability of the doctrine of federal preemption.
Preemption occurs under Article VI of the Constitution, the Supremacy Clause, which provides that the laws of the United States 'shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' U. S. Const. art. VI, cl.2."...
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