Lincoln Trail Grain Growers Association v. Meade County Fiscal Court ( 2021 )

RENDERED: AUGUST 6, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0892-MR
LINCOLN TRAIL GRAIN GROWERS
ASSOCIATION, INC.; NICHOLAS HARDESTY;
DON BEWLEY; EDELEN FARMS, LLC;
RYAN HAGER; BEN SHEERAN;
AND DAVID PADGETT APPELLANTS
APPEAL FROM MEADE CIRCUIT COURT
v. HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 20-CI-00001
MEADE COUNTY FISCAL COURT;
CITY OF BRANDENBURG; MEADE
COUNTY RIVERPORT AUTHORITY;
MEADE COUNTY-BRANDENBURG
INDUSTRIAL DEVELOPMENT AUTHORITY;
BILL CORUM; BRYAN CLAYCOMB;
CONSOLIDATED GRAIN & BARGE CO.;
GREENLAND ACQUISITION COMPANY, INC.;
AND NUCOR CORPORATION APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.
MAZE, JUDGE: Lincoln Trail Grain Growers Association, Inc. and individual
members (collectively Lincoln Trail), along with Nicholas Hardesty and Don
Bewley, appeal from an order of the Meade Circuit Court dismissing their claims
alleging violations of the Open Meetings Act. The trial court dismissed their
complaint, concluding that none of the appellants had established constitutional
standing to bring the claims. We conclude that all of the appellants have alleged
personal injuries fairly traceable to the defendants’ allegedly unlawful conduct and
likely to be redressed by the requested relief. Therefore, the trial court erred by
dismissing the complaint for lack of standing. Hence, we vacate the order
dismissing and remand for additional proceedings on the merits of those claims.
For purposes of this appeal, the following facts are relevant: The
Meade County Riverport Authority (the Riverport Authority) is a public board
established under KRS1 65.510, et seq. The Meade County-Brandenburg Industrial
Development Authority (the Industrial Authority) is a public board established
pursuant to KRS 154.50-301, et seq. The Meade County Fiscal Court (Fiscal
Court) serves as the legislative body for Meade County and is established pursuant
to Kentucky Constitution, Section 144 and KRS 67.040, et seq.
1
Kentucky Revised Statutes.
-2-
In 2003, the Riverport Authority leased 50 acres (the Riverport
Property) along the Ohio River in Brandenburg, Kentucky. In 2010, the Industrial
Authority purchased a 550-acre tract from Arch Chemical, Inc., which included the
Riverport Property leased by the Riverport Authority. An amended ground lease
established the Industrial Authority as the lessor of the Riverport Property, and the
Riverport Authority as the lessee.
Shortly thereafter, the Riverport Authority entered into a lease with
Consolidated Grain & Barge Co. (CGB). Under the agreement, CGB agreed to
construct and operate a grain elevator on a 15-acre portion of the Riverport
Property. The lease provided for a ten-year term from completion of the grain
elevator. In late 2014, the grain elevator was completed and opened for business.
Beginning in early 2019, the Fiscal Court and the Industrial Authority
engaged in negotiations with Nucor Corporation (Nucor) to build a steel mill on
the Riverport Property. As part of these negotiations, Greenland Acquisition
Company, Inc. (Greenland) entered into an option to purchase most of the former
Arch Chemical property from the Industrial Authority. Nucor took the position
that the operation of its steel mill would be incompatible with the continued
operation of the grain elevator. By September 2019, Nucor, CGB, the Fiscal
Court, and the Industrial Authority drafted a lease termination agreement. The
agreement required Nucor to pay CGB the sum of $12,000,000 in exchange for
-3-
termination of its lease agreement and cessation of operation of the grain elevator
by March 31, 2020.
However, the termination agreement required the approval of the
Riverport Authority, which was a party to the lease with CGB. The Fiscal Court
held a special meeting on October 1, 2019. The agenda for the meeting included
the general item, “Riverport,” with no other detail about the action to be taken.
During the meeting, the Fiscal Court voted to replace two members of the
Riverport Authority, Nicholas Hardesty and Don Bewley, on the stated grounds
that their terms had expired. The Fiscal Court appointed two new members, Bill
Corum and Bryan Claycomb, to those positions on the Riverport Authority.2
Immediately following the Fiscal Court meeting, the Riverport
Authority, including the two newly-appointed members, met and voted to approve
the lease termination agreement. On December 13, 2019, the lease termination
agreement was formally executed by all parties, namely: the Riverport Authority,
the Industrial Authority, the Fiscal Court, CGB, and Greenland on behalf of Nucor.
On June 1, 2020, Lincoln Trail filed this action on behalf of grain
farmers in Meade County who were affected by the closure of the grain elevator.
Edelen Farms, LLC, Ryan Hager, Ben Sheeran, and David Padget are members of
2
The minutes of the specially-called meeting of the Fiscal Court reflect that the only Riverport
item discussed was the appointment of the two new members to the Riverport Authority.
-4-
Lincoln Trail. Lincoln Trail and its members alleged that the votes by the Fiscal
Court and the Riverport Authority were conducted in violation of the Open
Meetings Act, KRS 61.800 et. seq., and that the vote of the Riverport Authority
was conducted without a quorum of proper members. Finally, Lincoln Trail
alleges that the Riverport Property is held in trust for the public and that the Meade
County defendants lacked legal authority to sell the property. Consequently,
Lincoln Trail sought declaratory relief holding the lease termination agreement
void, and injunctive relief preventing CGB from ceasing operation of the grain
elevator.
Hardesty and Bewley joined the action through an amended
complaint, which challenged their removal from the Riverport Authority. In
addition to the Open Meetings Act violations, Hardesty and Bewley allege that
their prior terms had automatically renewed and that they were not subject to
replacement by the Fiscal Court. In the alternative, Hardesty and Bewley allege
the terms of the other members of the Riverport Authority had also expired but
those members were not replaced. Hardesty and Bewley allege that the Fiscal
Court arbitrarily removed them from the Riverport Authority based on their stated
opposition to the lease termination agreement. Hardesty and Bewley sought
declaratory relief setting aside their removal and replacement as members of the
Riverport Authority.
-5-
In lieu of an answer, the Meade County defendants and Nucor filed a
motion to dismiss pursuant to CR3 12.02. They argued that Lincoln Trail and its
members lack constitutional standing to assert the claims. Following briefing and
arguments of counsel, the trial court granted the motion. The court concluded that
none of the plaintiffs, including Hardesty and Bewley, had asserted any concrete
interest in the subject matter of the actions by the Fiscal Court or the Riverport
Authority. Consequently, the trial court dismissed the complaints. This appeal
followed. Additional facts will be set forth below as necessary.
CR 12.02 sets out defenses which may be asserted without filing a
responsive pleading, including “(f) failure to state a claim upon which relief can be
granted[.]” A motion to dismiss for failure to state a claim upon which relief may
be granted “admits as true the material facts of the complaint.” Upchurch v.
Clinton County, 330 S.W.2d 428, 429-30 (Ky. 1959). A trial court should not
grant such a motion “unless it appears the pleading party would not be entitled to
relief under any set of facts which could be proved . . . .” Pari-Mutuel Clerks’
Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551
S.W.2d 801, 803 (Ky. 1977). Whether a court should dismiss an action pursuant to
CR 12.02 is a question of law. James v. Wilson, 95 S.W.3d 875, 884 (Ky. App.
3
Kentucky Rules of Civil Procedure.
-6-
2002). Consequently, we conduct a de novo review of the trial court’s order
dismissing the action. Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009).
The sole question on appeal concerns the application of the doctrine
of “constitutional standing,” as adopted by the Kentucky Supreme Court in
Commonwealth, Cabinet for Health and Family Services, Department for
Medicaid Services v. Sexton by and through Appalachian Regional Healthcare,
Inc., 566 S.W.3d 185 (Ky. 2018). The facts in Sexton involved a Medicaid patient
who was admitted to the hospital for observation, but her Medicaid provider denied
her request for additional hospitalization and a cardiology consultation. Despite
the denial, the hospital provided the services. Thereafter, the patient and the
hospital sought a hearing with the Cabinet for Health and Human Services to
challenge the denial. The Cabinet dismissed the proceeding, concluding that
neither the patient nor the hospital had standing because neither would be entitled
to recover even if the denial were improper. Id. at 188.
On further appeal, the Kentucky Supreme Court affirmed the
dismissal based on the doctrine of constitutional standing. The Court adopted the
analysis for the doctrine from the United States Supreme Court analysis in Lujan v
Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d
351 (1992). The doctrine establishes standing as a prerequisite to the existence of
a justiciable cause of action. “In essence the question of standing is whether the
-7-
litigant is entitled to have the court decide the merits of the dispute or of particular
issues.” Sexton, 566 S.W.3d at 193 (quoting Warth v. Seldin, 422 U.S. 490, 498,
95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)). In the absence of a showing of such
standing, a court lacks original jurisdiction over a case to decide its merits because
the case is nonjusticiable due to the plaintiff’s failure to satisfy the constitutional
standing requirement. Id. at 196-97.
The Court in Sexton recognized that Lujan and its line of cases deal
with standing requirements in the context of the limit on federal judicial power, not
state judicial power. Id. at 193. Furthermore, Kentucky typically recognizes the
issue of standing as an affirmative defense which may be waived unless properly
pleaded. Id. at 191 (citing Harrison v. Leach, 323 S.W.3d 702, 703 (Ky. 2010)).
Nevertheless, the Court formally adopted the Lujan test as an integral component
of the “‘justiciable cause” requirement in Kentucky Constitution, Section 112(5)
underlying the trial court’s jurisdiction. Id. at 195-96.
So, at bottom, for a party to sue in Kentucky, the
initiating party must have the requisite constitutional
standing to do so, defined by three requirements: (1)
injury, (2) causation, and (3) redressability. In other
words, “A plaintiff must allege personal injury fairly
traceable to the defendant’s allegedly unlawful conduct
and likely to be redressed by the requested relief.” “[A]
litigant must demonstrate that it has suffered a concrete
and particularized injury that is either actual or imminent
. . . .” “The injury must be . . . ‘distinct and palpable,’
and not ‘abstract’ or ‘conjectural’ or ‘hypothetical.’”
“The injury must be ‘fairly’ traceable to the challenged
-8-
action, and relief from the injury must be ‘likely’ to
follow from a favorable decision.”
Id. at 196 (footnotes omitted).
The Court in Sexton went on to explain that, while the legislature may
create a statutory cause of action, a court cannot entertain original jurisdiction over
such action unless the plaintiff satisfies the constitutional standing requirement. Id.
Consequently, the existence of statutory standing does not necessarily confer
constitutional standing upon a plaintiff. Rather, a court exercising original
jurisdiction must always conduct the constitutional standing analysis. Id.
Pursuant to this analysis, the Court recognized that the legislature had
created a statutory right to challenge the provider’s denial of service under KRS
Chapter 13B. However, the Court concluded that the legislature could not grant
standing to a party who had no direct interest in the outcome of the proceeding. Id.
at 198. The Medicaid rules prevented the patient from being held liable for the
costs of the services. Furthermore, at the time of the appeal in Sexton, the hospital
had no right to reimbursement of the services which it provided. Id. Therefore,
the Court concluded that neither the patient nor the hospital had suffered a
redressable injury. Id. at 198-99.
The Kentucky Supreme Court again addressed constitutional standing
in Overstreet v. Mayberry, 603 S.W.3d 244 (Ky. 2020). In that case, eight
members of the Kentucky Retirement System’s defined-benefit retirement plan
-9-
brought an action against eleven Retirement Systems trustees and officers and
against third parties who did business with the Retirement Systems. The members
alleged that the trustees and officers engaged in a pattern of reckless investment
which jeopardized the retirement plans. They also alleged that the third parties
sold high-risk investments to the Retirement Systems in exchange for excessive
fees. Id. at 250-51.
After discussing the elements set out in Sexton, the Court concluded
that the plaintiffs failed to establish constitutional standing. The Court focused on
the plaintiffs’ failure to allege an injury-in-fact. Id. at 252-53. The Court noted
that the plaintiffs had not alleged that their benefits or right to receive benefits had
been affected by the alleged misconduct by the Retirement Systems trustees or the
third parties. The Court also noted that the state is required to cover any pension
shortfalls for vested beneficiaries. Id. at 253-54. Consequently, the Court held that
the plaintiffs’ allegation of an increased risk of not receiving pension benefits in
the future was too speculative to show an actual injury. Id. at 254-56.
Turning to the current case, we must first point out that there are two
distinct groups of plaintiffs: Hardesty and Bewley, who are challenging their
removal and replacement as members of the Riverport Authority; and the Lincoln
Trail parties, who are challenging the actions of the Riverport Authority and the
Fiscal Court approving the lease termination agreement. In the case of the first
-10-
group, we conclude that the trial court clearly erred in finding that Hardesty and
Bewley lack constitutional standing to bring this action.
As previously mentioned, Hardesty and Bewley allege that the Fiscal
Court violated the Open Meetings Act by conducting a vote to replace them
without notice of the action to be taken provided on the agenda prior to the
meeting. KRS 61.823.4 Hardesty and Bewley further allege that their terms of
4
In pertinent part, KRS 61.823 sets out the following requirements for notice of a special
meeting by a public agency:
(3) The public agency shall provide written notice of the special
meeting. The notice shall consist of the date, time, and place of the
special meeting and the agenda. Discussions and action at the
meeting shall be limited to items listed on the agenda in the notice.
(4) (a) As soon as possible, written notice shall be delivered
personally, transmitted by facsimile machine, or mailed to
every member of the public agency as well as each media
organization which has filed a written request, including a
mailing address, to receive notice of special meetings.
The notice shall be calculated so that it shall be received at
least twenty-four (24) hours before the special meeting.
The public agency may periodically, but no more often
than once in a calendar year, inform media organizations
that they will have to submit a new written request or no
longer receive written notice of special meetings until a
new written request is filed.
(b) A public agency may satisfy the requirements of
paragraph (a) of this subsection by transmitting the written
notice by electronic mail to public agency members and
media organizations that have filed a written request with
the public agency indicating their preference to receive
electronic mail notification in lieu of notice by personal
delivery, facsimile machine, or mail. The written request
shall include the electronic mail address or addresses of
the agency member or media organization.
-11-
office as members of the Riverport Authority automatically renewed because the
Fiscal Court failed to appoint successors within 60 days from the expiration of
their prior terms. KRS 65.008(2).5 Finally, Hardesty and Bewley contend that the
Fiscal Court’s action was arbitrary because the terms of the other members of the
Riverport Authority had also expired but those members were not subject to either
replacement or reappointment.
For purposes of this appeal, we do not consider the merits of the
claims brought by Hardesty and Bewley or any available defenses. However, we
are required to consider their well-pleaded allegations in the complaint as true.
City of Pioneer Vill. v. Bullitt Cty. ex rel. Bullitt Fiscal Ct., 104 S.W.3d 757, 759
(Ky. 2003). Under these circumstances, they have clearly asserted a direct injury
caused by the allegedly illegal actions of the Fiscal Court. Indeed, it is well
(c) As soon as possible, written notice shall also be posted in
a conspicuous place in the building where the special
meeting will take place and in a conspicuous place in the
building which houses the headquarters of the agency.
The notice shall be calculated so that it shall be posted at
least twenty-four (24) hours before the special meeting.
5
KRS 65.008(2) provides:
Unless otherwise provided by law, appointed members of district
governing bodies shall serve until their successors are appointed
and qualified. The failure of an appointing authority to appoint a
successor or, if the appointing authority’s appointment is subject to
the approval of a legislative body, to nominate a successor within
sixty (60) days of the expiration of the term of office of a member
of a district governing body shall constitute the reappointment of
that member for another term of office.
-12-
established that a public officer has standing to challenge the improper usurpation
of his or her office. See Jenkins v. Congleton, 242 Ky. 46, 45 S.W.2d 456, 456
(1932). See also KRS 415.030. Furthermore, any action taken by the Fiscal Court
in violation of the Open Meetings Act is voidable pursuant to KRS 61.848(5).
In their separate briefs, CGB and the Meade County public entities
argue that Hardesty and Bewley failed to object to their removal from the
Riverport Authority at the time of the Fiscal Court meeting. They also argue that
the automatic re-appointment provisions of KRS 65.008(2) do not apply because
the Riverport Authority failed to notify the Fiscal Court of the impending
expiration of terms, as required by KRS 65.008(1). And finally, they contend that
Hardesty and Bewley do not have standing to challenge the adoption of the lease
termination agreement. But these are issues which go to the merits of their claims,
not the issue of constitutional standing.
We conclude that Hardesty and Bewley have constitutional standing
to raise the violations of the Open Meetings Act with respect to the Fiscal Court’s
action in removing them as members of the Riverport Authority and the
subsequent action by the Riverport Authority approving the lease termination
agreement. Hardesty and Bewley have clearly alleged distinct and palpable
injuries caused by the actions of the Fiscal Court and the Riverport Authority for
which they would be entitled to a remedy under the Open Meetings Act. Indeed,
-13-
they were directly affected by the actions of the Fiscal Court which are alleged to
be in violation of the Open Meetings Act. Consequently, the courts have the
authority to redress the allegedly improper action by voiding the actions taken in
violation of the Open Meetings Act. If proven, the remedy for the illegal actions
by the Fiscal Court would include reinstatement to their positions on the Riverport
Authority. Of course, Hardesty and Bewley bear the burden of proof on these
claims as well as the appropriate remedies.
The Lincoln Trail plaintiffs are in a somewhat different position, but
the same analysis applies. The trial court concluded that Lincoln Trail and its
members
do not have the right to force a private business to stay in
business. The Plaintiffs have no legally protected interest
in the grain elevator, the real estate on which it stands, or
the contractual agreements applicable thereto. The
Plaintiffs are neither party to, nor intended third-party
beneficiaries, of the CGB lease and, thus have no legally
protectable interest in the CGB lease.
The trial court’s analysis overlooks the fact that Lincoln Trail
challenges the legality of the actions by the Riverport Authority and the Fiscal
Court under the Open Meetings Act. As previously discussed, the mere existence
of a statutory right to bring an action does not confer constitutional standing.
However, the existence of a statutory cause of action is clearly relevant to a
determination of such standing.
-14-
Contrary to the argument by CGB, the holding in Sexton did not
abolish the concept of statutory standing. The Court held that the legislature
cannot erase constitutional standing requirements by statutorily granting the right
to sue to a plaintiff who would not otherwise have standing. Sexton, 566 S.W.3d at
198 (citing Summers v. Earth Island Inst., 555 U.S. 488, 496, 129 S. Ct. 1142,
1151, 173 L. Ed. 2d 1 (2009)). In the case of a statutory cause of action, such as
the Open Meetings Act, the legislature must define a concrete interest that is
affected by the deprivation of a statutory right – the deprivation of a mere
procedural right in vacuo is not sufficient. Id.The trial court cited to Summers, supra, for the proposition that
deprivation of a procedural right under the Open Meetings Act is not actionable
without some concrete interest affected by that deprivation. But in Summers, the
petitioners claimed that they were deprived of their rights under the Forest Service
Decisionmaking and Appeals Reform Act. While that Act permits the public to
file comments on the proposed action by the Forest Service, 16 U.S.C.6 § 1612, the
standards and procedures adopted under the Act govern only the conduct of Forest
Service officials engaged in project planning. Summers, 555 U.S. at 493, 129 S.
Ct. at 1149. Consequently, the United States Supreme Court held that the
petitioners had no separate standing to assert an injury for alleged violations of
6
United States Code.
-15-
those procedures. As a result, the plaintiffs in Summers had to show that they had
some individualized interest in the subject matter of the agency action. Id. at 493-
94, 129 S. Ct. at 1149.
In contrast, the General Assembly has explicitly declared that
“formation of public policy is public business and shall not be conducted in
secret[.]” KRS 61.800. To that end, KRS 61.810(1) provides that “[a]ll meetings
of a quorum of the members of any public agency at which any public business is
discussed or at which any action is taken by the agency, shall be public meetings,
open to the public at all times[.]” “The Circuit Court of the county where the
public agency has its principal place of business or where the alleged violation
occurred shall have jurisdiction to enforce the provisions of KRS 61.805 to 61.850,
as they pertain to that public agency, by injunction or other appropriate order on
application of any person.” KRS 61.848(1) (emphasis added). Although
exceptions to the open meeting requirements are provided by the provisions of
KRS 61.810, the Act provides that the exceptions are to be “strictly construed.”
KRS 61.800.
In essence, the General Assembly declared that all citizens have a
direct interest in public agencies’ compliance with the requirements of the Open
Meetings Act. The particularized injury arises from the agency’s violation of the
Act itself, not specifically from the action taken. By its express terms, the Act
-16-
accords standing regardless of whether the person bringing the action has an
interest in the subject matter of the action taken. See Taylor v. Barlow, 378
S.W.3d 322, 325 (Ky. App. 2012) (addressing standing based on similar language
in the Open Records Act). Unlike in Summers, the rights accorded under the Act
are not merely procedural but also grant the public at large a direct interest in its
enforcement. In other words, the violation of the Act itself constitutes the direct
and personal injury. To hold otherwise would mean that no member of the public
would have standing to challenge a violation of the Open Meetings Act without a
showing of direct injury caused by the agency’s unlawful action. That result is at
odds with the plain language of the Act.
The trial court also found that Lincoln Trail’s claims fail for lack of
redressability because the court “does not have the power to order a privately-
owned grain elevator to halt its de-construction and to continue operations.” The
trial court focused narrowly on the result of the actions of the Fiscal Court and the
Riverport Authority, rather than their alleged violations of the Open Meetings Act.
As previously noted, “[a]ny rule, resolution, regulation, ordinance, or other formal
action of a public agency without substantial compliance with the requirements of
[the Act] shall be voidable by a court of competent jurisdiction.” KRS 61.848(5).
The Act also allows a plaintiff to recover costs, including reasonable attorney fees,
incurred while enforcing an agency’s willful violation. KRS 61.848(6). Because
-17-
the Act creates a concrete remedy, we conclude that Lincoln Trail has asserted a
redressable injury.
As discussed with the claims brought by Hardesty and Bewley, we do
not need to reach the merits of the underlying claim at this juncture. However,
Lincoln Trail alleges that the vote by the Fiscal Court to appoint new members to
the Riverport Authority and the subsequent vote by the Riverport Authority to join
in the lease termination agreement were conducted in violation of the Act. The
enforcement of a public contract, the appointment of individuals to public office,
and most significantly, the sale of publicly-owned property to private entities, are
clearly matters which must be conducted publicly and with prior notice unless a
specific exception is shown.
If the Appellants show that they are entitled to relief, the trial court
may require the Fiscal Court and the Riverport Authority to recommence their
approval of the lease termination agreement at the point when the illegal conduct
occurred. Reed v. City of Richmond, 602 S.W.2d 183, 184 (Ky. App. 1980). We
recognize that the procedural posture of this case presents some issues with the
remedies available to Lincoln Trail. When an agency takes action that is not in
“substantial compliance” with the Act, that action “shall be voidable by a court.”
KRS 61.848(5). “A ‘voidable’ action is an action that is valid until it is annulled.”
-18-
Carter v. Smith, 366 S.W.3d 414, 424 (Ky. 2012) (citing BLACK’S LAW
DICTIONARY 1709 (9th ed. 2009)).
Because actions taken in violation of the Open Meetings Act are not
void ab initio, third parties who were not involved in the allegedly unlawful
conduct may be entitled to rely on the validity of the agreement executed by the
Fiscal Court and the Riverport Authority. Thus, CGB would not be required to
rebuild the grain elevator, nor would Nucor be required to vacate the premises
formerly leased to CGB. However, it is for the trial court to determine the
appropriate remedies available to Lincoln Trail and the equities among the various
parties. Even if no other remedies are available, the Act permits Lincoln Trail to
recover its attorney fees and costs incurred in bringing the action. KRS 61.848(6).
The availability of this remedy meets the redressability requirement for
constitutional standing. Therefore, we conclude that Lincoln Trail and its members
have constitutional standing to bring this action.
Finally, Nucor contends that the Appellants’ claims are moot because
CGB has removed the grain elevator. “A ‘moot case’ is one which seeks to get a
judgment . . . upon some matter which, when rendered, for any reason, cannot have
any practical legal effect upon a then existing controversy.” Morgan v. Getter, 441
S.W.3d 94, 98-99 (Ky. 2014) (quoting Benton v. Clay, 192 Ky. 497, 233 S.W.
1041, 1042 (1921)). The removal of the grain elevator may affect the remedies
-19-
available on remand. But as discussed above, the Act provides for other remedies
which may be appropriate. Therefore, this matter is not moot.
Accordingly, we vacate the order of the Meade Circuit Court and
remand this matter for further proceedings on the merits of the Appellants’
complaint.
ALL CONCUR.
-20-
BRIEFS FOR APPELLANTS: BRIEF AND ORAL ARGUMENT
FOR APPELLEES MEADE
Michael C. Merrick COUNTY FISCAL COURT; MEADE
Charity S. Bird COUNTY RIVERPORT
Louisville, Kentucky AUTHORITY; MEADE COUNTY-
BRANDENBURG INDUSTRIAL
ORAL ARGUMENT FOR DEVELOPMENT AUTHORITY:
APPELLANTS:
R. Keith Bond
Michael C. Merrick Elizabethtown, Kentucky
Louisville, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEE CONSOLIDATED
GRAIN & BARGE CO.:
Anthony G. Raluy
Louisville, Kentucky
BRIEF FOR APPELLEES
NUCOR CORPORATION AND
GREENLAND ACQUISITION
COMPANY, INC.:
Douglas C. Ballentine
Christopher E. Schaefer
Lindsey L. Howard
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEE NUCOR
CORPORATION:
Douglas C. Ballentine
Louisville, Kentucky
-21-