ROBERT M. BLAKE, M.D. v. FLEMING MASON RURAL ELECTRIC COOPERATIVE CORPORATION
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RENDERED: April 4, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-0754-MR
ROBERT M. BLAKE, M.D.
and LARRY JACKSON
v.
APPELLANTS
APPEAL FROM FLEMING CIRCUIT COURT
HONORABLE ROBERT I. GALLENSTEIN, JUDGE
CIVIL ACTION NO. 95-CI-000124
FLEMING MASON RURAL
ELECTRIC COOPERATIVE
CORPORATION
APPELLEES
OPINION
REVERSING AND REMANDING
* * * * *
BEFORE:
GUIDUGLI, KNOPF and SCHRODER, Judges.
GUIDUGLI, JUDGE.
This appeal is from a judgment dismissing,
under CR 12.02, claims against Fleming-Mason Rural Electric
Cooperative Corporation for permitting "stray electricity" to
escape its system allegedly damaging appellants' farm and dairy
cattle.
Appellants also appeal the trial court's denial of a
motion under CR 15.01 to amend their complaint prior to
dismissal.
On October 30, 1995, appellants filed a complaint with
jury demand in Fleming Circuit Court alleging negligence against
the appellees as well as asserting claims of strict liability for
unreasonably dangerous activity and strict product liability.
Appellants sought compensatory and punitive damages.
Appellees
did not immediately answer the complaint.
Instead, on November 15, 1995, appellees moved to
dismiss the complaint under CR 12.02 alleging that it failed to
state a claim upon which relief could be granted.
Appellees
argued below that appellants did not have a cause of action in
strict liability or strict product liability and alleged the
negligence claim was barred by the applicable one year statute of
limitations, KRS 413.140(1)(b).
On January 9, 1996, appellants moved the court under
CR 15.01 for leave to file an amended complaint.
This motion was
noticed to be heard simultaneously with the appellees' motion to
dismiss on January 12, 1996.
January 11, 1996.
The amended complaint was tendered
The amended complaint incorporated the
original complaint by reference and contained additional counts
alleging trespass and nuisance.
At the hearing on January 12, 1996, the court requested
memoranda on whether appellants should be allowed to amend the
complaint.
Both parties filed memoranda addressing the issues.
Appellees also filed an answer to the original complaint.
On February 9, 1996, the Fleming Circuit Court, without
stating any reasons, entered an order denying appellants' motion
to amend the complaint.
By order entered February 14, 1996, the
trial court dismissed appellants' complaint.
No findings of fact
or conclusions of law are required for decisions on Rule 12
motions.
This appeal followed.
-2-
Appellees assert that denying the motion to amend was
appropriate because of the "futility" of the amendment.
Appellees assert that no matter what causes of action appellants
sought to include in their amended pleading, "all were barred by
the one-year statute of limitations" citing, KRS 413.140(1)(b);
Carr v. Texas Eastern Transmission Corp., Ky., 344 S.W.2d 619,
620 (1961).
KRS 413.140(1)(b) states that "An action for injuries
to persons, cattle, or other livestock by railroads or other
corporations..." shall be commenced within one (1) year after the
cause of action accrues.
But KRS 413.140(1)(b) does not apply to appellants'
causes of action for continuing trespass and temporary/permanent
private nuisance which allege, inter alia, a diminution of value
of their farm real estate; damages to the milking parlor,
equipment and soil; lost profits, etc.
The statute of
limitations for these causes of action is five years.
KRS
413.120; West Kentucky Coal Co. v. Rudd, Ky., 328 S.W.2d 156
(1959); Kentucky West Virginia Gas Co. v. McIntosh, 278 Ky. 797,
129 S.W.2d 522 (1939).
CR 15.01 states the following:
A party may amend his pleading once as a
matter of course at any time before a
responsive pleading is served,...A party
shall plead in response to the original
pleading or within ten days after service of
the amended pleading, whichever period may be
longer, unless the court otherwise orders.
(emphasis added).
-3-
Appellees responded to appellants' complaint by filing
a CR 12.02 motion to dismiss rather than an answer.
dismiss is not a responsive pleading.
CR 7.01.
A motion to
Because no
responsive pleading had been filed at the time the motion was
filed, appellants should have been permitted to amend their
complaint "once as a matter of course" in accordance with
CR 15.01.
This is especially true considering the fact the
amended complaint contained new causes of action for trespass and
nuisance.
The judgment of the Fleming Circuit Court is reversed
and remanded for further proceedings consistent with this
opinion.
ALL CONCUR.
-4-
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
W. Kelly Caudill
Royse, Zweigart, Kirk &
Brammer
Maysville, KY
Kurt W. Maier
English, Lucas, Priest &
Owsley
Bowling Green, KY
-5-
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