August Properties, LLC v. Commonwealth of Kentucky, Transportation Cabinet ( 2021 )

RENDERED: APRIL 30, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0298-MR
AUGUST PROPERTIES, LLC APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE BRIAN K. PRIVETT, JUDGE
ACTION NO. 15-CI-00204
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
MAZE, JUDGE: August Properties, LLC, challenges the propriety of the
summary dismissal of its claims for injunctive relief to require the Commonwealth
of Kentucky, Transportation Cabinet to abate ongoing traffic hazards resulting
from heavy traffic backup and ponding water on U.S. Highway 25 South. August
Properties also predicates error on the denial of its claim for inverse condemnation
stemming from the Cabinet’s placement of improvements on its right-of-way
without compensation. Having reviewed the record in light of August Properties’
arguments for reversal, we affirm the judgment of the Scott Circuit Court.
August Properties owns a parcel of land in Georgetown, Kentucky,
upon which it operates an office and shopping plaza and a self-storage rental
facility. In March 2015, August Properties filed a complaint in Scott Circuit Court
alleging that a left-turn lane from U.S. Highway 25 North onto U.S. 460 Bypass
West backs up during periods of heavy traffic preventing customers from having
ingress to and egress from its businesses. August Properties also complained that
the Cabinet’s failure to correct this situation creates a continuing traffic hazard
endangering the safety of vehicles using the roadways and unreasonably interfering
with its businesses. In addition, the complaint alleged that the Cabinet improperly
installed a storm water drainage system which overflows during periods of heavy
rainfall, causing ponding of water on U.S. 25 and creating a danger to motorists
and an unreasonable impediment to the customers of its businesses. Finally, the
complaint alleged that the Cabinet placed improvements upon August Properties’
right-of-way for which it was never compensated.
In August 2017, the Scott Circuit Court granted the Cabinet’s motion
for summary judgment concluding that there were no genuine issues of material
fact and that the Cabinet was entitled to judgment as a matter of law. By order
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entered January 24, 2018, the circuit court granted the Cabinet’s motion to alter or
amend the August 2017 judgment by correcting a mistake in the final paragraph
stating that the summary judgment motion was denied in part and granted in part.
The circuit court concluded that it was obvious from the record and a reading of
the August 2017 judgment that the court had intended to grant the Cabinet’s
summary judgment motion on all claims against it. This appeal followed.
August Properties advances three primary arguments in support of its
contention that summary judgment was improvidently granted: 1) that the circuit
court erred in concluding that no affirmative evidence supported its claim that the
Cabinet’s removal of a dedicated turn lane into its property constituted a taking for
which it is entitled to just compensation; 2) that the circuit court erred in
concluding that it failed to offer any statutory enactments or mandatory caselaw
imposing a duty on the Cabinet to resolve chronic traffic backup issues; and 3) that
the circuit court erred in concluding that it failed to assert a claim distinct from that
suffered by the general public regarding the ponding of water on U.S. 25. In
particular, August Properties asserts that genuine issues of material fact precluded
summary disposition and that the Cabinet was not entitled to judgment as a matter
of law.
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We commence our discussion of these issues by reiterating the
familiar and well-established standard by which appellate courts review a grant of
summary judgment:
The standard of review on appeal of a summary
judgment is whether the trial court correctly found that
there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a
matter of law. Kentucky Rules of Civil Procedure (CR)
56.03. There is no requirement that the appellate court
defer to the trial court since factual findings are not at
issue. Goldsmith v. Allied Building Components, Inc.,
Ky., 833 S.W.2d 378, 381 (1992). “The record must be
viewed in a light most favorable to the party opposing the
motion for summary judgment and all doubts are to be
resolved in his favor.” Steelvest, Inc. v. Scansteel Service
Center, Inc., Ky., 807 S.W.2d 476, 480 (1991).
Summary “judgment is only proper where the movant
shows that the adverse party could not prevail under any
circumstances.” Steelvest, 807 S.W.2d at 480, citing
Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255(1985). Consequently, summary judgment must be
granted “[o]nly when it appears impossible for the
nonmoving party to produce evidence at trial warranting
a judgment in his favor . . .” Huddleston v. Hughes, Ky.
App., 843 S.W.2d 901, 903 (1992), citing Steelvest,
supra (citations omitted).
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
We first examine the entry of summary judgment on August
Properties’ inverse condemnation claim. “Inverse condemnation is the term
applied to a suit against a government to recover the fair market value of property
which has in effect been taken and appropriated by the activities of the government
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when no eminent domain proceedings are used.” Commonwealth, Natural
Resources and Environmental Protection Cabinet v. Stearns Coal and Lumber
Company, 678 S.W.2d 378, 381 (Ky. 1984). The Supreme Court in Stearns
emphasized that governmental activity constitutes an inverse taking of private
property only when it “involve[s] acts which completely frustrate the landowner’s
rights and deprive him of the use of his property.” Id. at 382. Thus, actions for
inverse condemnation action are directed at recovering from the government the
fair market value of property which has been appropriated.
Here, the complaint alleged only that the Cabinet had placed
improvements on August Properties’ right-of-way. In granting summary judgment
on this claim, the circuit court properly concluded that in order to defeat the
Cabinet’s motion on the issue of inverse condemnation, August Properties bore the
burden of presenting “at least some affirmative evidence showing that there is a
genuine issue of material fact for trial.” Steelvest, 807 S.W.2d at 482. Concluding
that August Properties failed to satisfy this burden, the circuit court specifically
found that August Properties failed to establish that it even owned the property for
which it sought compensation. Rather, August Properties’ response to the
Cabinet’s motion for summary judgment consisted only of an allegation that it had
sent the Cabinet specific information that the property consisted of a 50 by 200-
foot strip of land and that the Cabinet had granted a permit to construct a turn lane
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at a cost of $70,000. August Properties’ sole support for these assertions was a
photograph of an unidentified roadway and a copy of an email from counsel to the
Cabinet indicating that August Properties valued the property at $100,000.
Because our review of the record confirms the circuit court’s finding that August
Properties failed to provide a copy of a deed or other document supporting its
claim of ownership of the property, a copy of the alleged turn-lane permit, or even
a more specific identification of the property allegedly taken and/or the nature of
the Cabinet’s “improvements” it claims constituted a taking, we perceive no error
in the circuit court’s conclusion that the failure to adduce “some affirmative
evidence” to counter the Cabinet’s motion warranted summary dismissal of the
inverse condemnation claim.
Next, August Properties argues that the circuit court erred in
summarily dismissing its claims predicated upon the Cabinet’s failure to abate
chronic traffic problems and the pooling of water on the roadway near its property.
The complaint sought an order directing the Cabinet “to take any and all measures
to correct” traffic backup due to the existence of improper turn lanes and the
pooling of water caused by the Cabinet’s installation of an improper drainage
system. Like the circuit court, we are convinced that the Cabinet is entitled to
judgment as a matter of law on these claims.
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The “clearly established rule in this jurisdiction is that a private
citizen is not entitled to injunctive relief to abate a nuisance in a street, such as is
here charged to exist, unless he can show an injury distinct from that suffered by
the general public.” York v. Chesapeake & Ohio Railway Company, 240 Ky. 114,
41 S.W.2d 668, 670 (1931). In attempting to establish a distinct injury on its
traffic backup claim, August Properties asserted in its complaint that the turn lane
traffic backs up past the main entrance to its property “preventing customers . . .
from having ingress and egress access to [its] businesses.” However, the circuit
court ultimately granted the Cabinet’s motion for summary judgment on the basis
that August Properties had failed to cite any statutory authority or mandatory
caselaw imposing a duty on the Cabinet to resolve chronic traffic backups.
In Collins v. Commonwealth, Transportation Cabinet, Department of
Highways, 516 S.W.3d 320 (Ky. 2017), the Supreme Court addressed a similar
question in the context of the Cabinet’s common law duty to keep the roadway in a
reasonably safe condition:
Encompassed within the Department of Highways’
duty to keep our highways in a reasonably safe condition
is the duty to conduct maintenance and remove dangers
that were known or should have been known. See
Commonwealth, Transportation Cabinet, Bureau of
Highways v. Roof, 913 S.W.2d 322 (Ky. 1996)(duty to
construct and maintain guardrails); [Commonwealth of
Kentucky, Transportation Cabinet, Department of
Highways v.] Guffey, 244 S.W.3d 79 [(Ky. 2008)] (duty
to remove a cable stretched across a roadway);
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Commonwealth of Kentucky, Department of Highways v.
Automobile Club Insurance Company, 467 S.W.2d 326(Ky. 1971) (duty to erect warning signs and maintain
barriers or guardrails at dangerous places on the
highway); Dillingham v. Department of Highways, 253
S.W.2d 256 (Ky. 1952) (no duty to “keep highway
shoulders in reasonably safe condition for travel, except
as to defects which are obscured [and] inherently
dangerous . . . .”).
Based on the aforementioned guiding case law, we
cannot conclude that the Department of Highways’
common law duty extends to ensuring compliance with
the size restrictions of KRS 189.221. The key inquiry
into the Department of Highways’ common law duty
is reasonableness. It is reasonable to expect the
Department of Highways to remove a deadly cable
stretched across the highway, or to place guardrails on
dangerous curves. On the other hand, it would be
unreasonable to confer a duty upon the Department
of Highways to enforce all traffic laws and to forestall
the negligence of third party drivers.
516 S.W.3d at 323-24 (emphases added). Pertinent to the question before us, the
Supreme Court ultimately concluded that the appellant in Collins “failed to
demonstrate, by way of statute, regulation, or common law, that the Department of
Highways had a duty to enforce compliance with the motor vehicle laws of the
Commonwealth.” Id. at 324. Based upon the rationale set out in Collins, we
concur in the circuit court’s assessment that August Properties’ claim is precluded
by its failure to identify a statute, regulation, or common law imposing upon the
Cabinet an affirmative duty to prevent traffic backup.
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Concerning the water-ponding claim, the circuit court concluded that
not only had August Properties failed to establish a claim distinct from that
suffered by the general public, but it also failed to allege any injury on its own
behalf. Count II of August Properties’ complaint states:
11. During construction of improvements to U.S. 25
Highway South by the Transportation Cabinet, the work
included placement of a drain for storm water drainoff.
12. During periods of heavy rainfall, the water drain
overflows, creating ponding of water onto the lanes of
U.S. 25. The Georgetown Police Department has on
several occasions had to direct motorists around the
hazard.
13. The ponding of water creates a danger to motorists,
as well as a danger and an unreasonable impediment to
the customers of the Plaintiff’s businesses.
14. The Plaintiff has placed the Defendants on notice of
the danger created by the improper water drainage
system. To date, there has been no response indicating
the hazard will be corrected or repaired.
We again return to the rule set out in York, supra, “that a private citizen is not
entitled to injunctive relief to abate a nuisance in a street . . . unless he can show an
injury distinct from that suffered by the general public.” 41 S.W.2d at 670.
August Properties’ assertion that the ponding of water creates an “unreasonable
impediment” to its customers does not satisfy that standard.
Rather, it appears that August Properties’ complaints concerning
dangerous conditions caused by traffic backup and ponding water are intended to
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remedy a defect in its claims of unreasonable interference with its business
interests. By couching its complaint in terms of claims for injunctive relief
concerning dangerous conditions, August Properties avoids the application of a
long line of cases holding that business losses are not compensable in
condemnation actions. For example, in Commonwealth, Department of Highways
v. Rogers, our then-highest court unequivocally stated, “We have, of course, held
time and time again that business losses resulting from condemnation are not
compensable.” 399 S.W.2d 706, 707 (Ky. 1965). In Commonwealth, Department
of Highways v. Carlisle, 442 S.W.2d 294, 296 (Ky. 1969), the Court explicitly held
that “loss of access is not a compensable factor if the property owner retains
reasonable means of ingress and egress[.]” Finally, in Commonwealth,
Department of Highways v. Cammack, 408 S.W.2d 615, 617 (Ky. 1966), it was
established that “‘inconvenience’ is not compensable in eminent domain cases.”
(Citation omitted.)
This brings us back to the question of whether August Properties has
properly articulated a duty to abate the ponding water on an adjacent roadway
which at times impedes access to its premises. In other words, does the occasional
ponding of water during periods of heavy rain constitute an unreasonably
dangerous condition that the Cabinet was bound to remedy? We are convinced
that it does not.
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As the Supreme Court explained in Commonwealth, Transportation
Cabinet Department of Highways v. Shadrick:
An obstruction in plain view of passing motorists simply
does not constitute “a condition not reasonably safe.”
We decline to extend the law to the point of guaranteeing
that every right-of-way will be completely free of all
obstructions, whether permanent or transitory, for
motorists who operate their vehicles into that area of the
roadway.
956 S.W.2d 898, 901 (Ky. 1997) (citation omitted). This is not to say that in a
proper case the Cabinet might not be liable for injuries sustained by its failure to
remedy the ponding water or warn motorists of its existence when it occurs. Our
holding is simply that the Cabinet cannot be enjoined to take steps to remediate
ponding water which may occasionally constitute an unreasonable impediment to
customers seeking access to August Properties’ businesses.
Because we are convinced that the circuit court correctly determined
that August Properties’ claims against the Cabinet fail as a matter of law, we affirm
the grant of summary judgment in this case.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Noel Mark Botts William H. Fogle
Harrodsburg, Kentucky Frankfort, Kentucky
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