BETTY HUNSAKER AND PEGGY GREER v. COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS
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RENDERED:
DECEMBER 2, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-002130-MR
BETTY HUNSAKER AND
PEGGY GREER
APPELLANTS
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE STEVEN D. COMBS, JUDGE
ACTION NO. 93-CI-00325
v.
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND HENRY, JUDGES; POTTER, SENIOR JUDGE. 1
HENRY, JUDGE:
Betty Hunsaker and Peggy Greer (hereinafter
“Appellants”) appeal from an order and judgment of the Letcher
Circuit Court requiring them to refund and pay over to the
Commonwealth of Kentucky Transportation Cabinet, Department of
Highways (hereinafter “the Commonwealth”) the sum of $356,782.50
1
Senior Judge John Woods Potter, sitting as Special Judge by Assignment of
Chief Justice pursuant to Section 110 (5)(b) of the Kentucky Constitution and
KRS 21.580.
plus interest following a jury verdict in a property
condemnation action.
Upon review, we affirm.
The chronology of events in this case is as follows:
This matter originated in the Letcher Circuit Court on October
20, 1993 as a highway condemnation action brought by the
Commonwealth against Mildred Hunsaker and the Bank of
Whitesburg.
The action was brought pursuant to KRS 2 416.540
through 416.670 and KRS 117.081 to obtain a right of way for the
construction of the U.S. Highway 23 Jenkins Bypass.
On November 22, 1993, the trial court entered an order
appointing commissioners to assess the amount of compensation
that should be paid Hunsaker and the bank for the condemnation.
On December 1, 1993, these commissioners filed a report finding
that Mildred and the bank should be paid $115,000.00 for the
acquisition.
The Commonwealth subsequently deposited this
amount with the trial court on May 18, 1994.
On September 8, 1994, due to a revision in plans, the
Commonwealth filed an amended petition whereby the size of the
requested acquisition was increased from .24 of an acre to .67
of an acre.
On January 18, 1995, the trial court entered an
order to disburse the $115,000.00 that had been in its
possession to Mildred and the bank, with $40,000.00 going to the
former and $75,000.00 to the latter.
2
Kentucky Revised Statutes.
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On May 23, 1995, in apparent response to the
Commonwealth’s amended petition, the trial court entered an
order reappointing commissioners.
After a report was filed
indicating that the new property value was unable to be
determined because of an error in the description of the
property in the amended petition, the Commonwealth filed another
amended petition on December 4, 1995 to correct this error.
On
February 15, 1996, the trial court again entered an order
appointing commissioners, and on March 7, 1996, these
commissioners entered a report valuing the property in question
at $691,350.00.
On May 20, 1996, the trial court entered an order
revising the commissioners’ report so as to set the property
value at $656,782.50, along with an interlocutory order and
judgment granting possession of the condemned property to the
Commonwealth upon its payment of $541,782.50 to the Letcher
Circuit Clerk. 3
The trial court also entered an order allowing
Mildred to withdraw this amount once it was paid to the court.
The Commonwealth deposited the aforementioned amount with the
circuit clerk on May 23, 1996, and on May 30, 1996, the clerk
disbursed the additional $541,782.50 to Mildred.
The
Commonwealth subsequently filed exceptions to the commissioners’
3
As previously noted, $115,000.00 had already been paid to Hunsaker and the
bank, explaining the discrepancy between the trial court’s valuation and the
amount ordered to be paid to the clerk.
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award on June 17, 1996 on the grounds of excessiveness, and the
matter continued to be litigated.
Numerous trial dates were set
and then postponed for various reasons.
On May 17, 2001, Appellants filed a motion to
substitute themselves into the action as parties in place of
Mildred Hunsaker.
The motion advised the trial court that
Mildred had conveyed her interest in the subject property to
them (via deed on July 3, 1999), and that they were the “real
parties in interest” as a result.
Mildred had apparently died
on March 26, 2001 after conveying her interest in the property
to Appellants.
On November 8, 2001, an agreed order was entered
allowing Appellants to be substituted for Mildred in the action.
On December 19, 2002, the case finally proceeded to
trial, where Appellants asked the jury for an award of $1.2
million for the condemned property.
The jury, however, returned
a verdict setting damages at only $300,000.00—substantially less
than the amount that had already been paid by the Commonwealth.
The trial court entered an order and judgment in accordance with
this verdict on March 10, 2003, and ordered Appellants to refund
and pay over to the Commonwealth the sum of $356,782.50 plus 6%
interest from May 30, 1996 until paid (pursuant to KRS
416.620(5)). 4
This amount represented the difference between the
4
KRS 416.620 deals with jury trials and compensation in eminent domain
condemnation cases. KRS 416.620(5), which is of particular note here,
provides:
-4-
$656,782.50 that had previously been paid to Mildred Hunsaker
and the $300,000.00 that was awarded by the jury.
Appellants’
post-trial motions were ultimately denied by the trial court on
November 10, 2004.
This appeal followed.
On appeal, Appellants argue that they should not be
obligated to repay the $356,782.50 plus interest to the
Commonwealth because they never received any of the money paid
to Mildred Hunsaker and because she received this money more
than three years before she deeded the property to them and
before they became parties to the action.
However, we believe
that this argument must necessarily be rejected pursuant to
Citizens Bank & Trust Co. v. McEuen, 281 Ky. 113, 134 S.W.2d
1012 (1939), in which it was held that when a party is
substituted in the place of another party in a pending action,
“[t]he substituted party, as a general rule, takes up the
litigation with all of its benefits and with all of its burdens
If the condemnor takes possession of the property condemned and the
amount of compensation is thereafter increased over that awarded by the
commissioners, the condemnor shall pay interest to the owner at the rate of
six percent (6%) per annum upon the amount of such increase from the date the
condemnor took possession of the property. If the condemnor takes possession
of the property condemned and the amount of compensation is thereafter
decreased below that awarded by the commissioners, the condemnor shall be
entitled to a personal judgment against the owner for the amount of the
decrease plus interest at the rate of six percent (6%) per annum from the
date the owner accepted the amount of compensation the condemnor paid into
court or to the owner. If the owner at all times refuses to accept the
payment tendered by the condemnor, no interest shall be allowed in the
judgment against the owner for the amount of the decrease.
(Emphasis added).
-5-
just where the predecessor dropped it[.]”
1014 (Citations omitted).
McEuen, 134 S.W.2d at
The record reflects that Appellants
sought to be substituted into this action in place of Mildred
Hunsaker on the basis that they had become the “real parties in
interest.”
Accordingly, we fail to see how McEuen is not
applicable here, and Appellants have presented no substantive
authority setting forth why it should not be.
Appellants do cite to a federal case, Coalition for
Health Concern v. LWD, 834 F. Supp. 953 (W.D.Ky. 1993), for the
argument that they lack liability for any repayment because no
privity between Mildred Hunsaker and Appellants has been shown
by the Commonwealth.
However, our review of the record
presented on appeal finds that this particular argument was not
raised before the trial court.
“An appellate court will not
consider a theory unless it has been raised before the trial
court and that court has been given an opportunity to consider
the merits of the theory.”
Shelton v. Commonwealth, 992 S.W.2d
849, 852 (Ky. App. 1998), citing Hopewell v. Commonwealth, 641
S.W.2d 744, 745 (Ky. 1982).
Indeed, the only argument we can
find in the record pertaining to the issues in this appeal is
Appellants’ cursory contention in their motion to alter, amend
and vacate that they “never received any of the money ordered
repaid and therefore cannot be ordered to pay the same.”
-6-
Accordingly, we decline to consider this specific argument any
further.
Appellants also take issue in their brief with the
fact that the Commonwealth “has never named the Estate of
Mildred Hunsaker in this action or attempted in any way to seek
the return of the $356,782.50 from Ms. Hunsaker’s estate.”
However, we are of the opinion that if Appellants had concerns
about being responsible for any repayment to the Commonwealth
pursuant to KRS 416.620(5) or about the estate of Mildred
Hunsaker being liable in their stead for any repayment, these
concerns should have been raised before the trial court and
dealt with there before Appellants were substituted as parties.
As, from our review of the record, it appears that they were
not, we shall not consider them any further here.
The order and judgment of the Letcher Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Angela Hatton Mullins
Whitesburg, Kentucky
Phillip K. Wicker
Elizabethtown, Kentucky
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