LARRY DALE CARTER; AND MYRTLE KIRBY v. COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS
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RENDERED: DECEMBER 20, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001372-MR
LARRY DALE CARTER; AND
MYRTLE KIRBY
APPELLANTS
APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 94-CI-00214
v.
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Larry Dale Carter and Myrtle Kirby have appealed
from a summary judgment entered by the Rockcastle Circuit Court
on March 9, 2001, which ruled that a billboard that they had
erected was in violation of KRS1 177.830-177.890 and that it
should be immediately removed.
Having concluded that there is no
genuine issue as to any material fact and that the Commonwealth
was entitled to summary judgment as a matter of law, we affirm.
1
Kentucky Revised Statutes.
On December 27, 1994, the Transportation Cabinet of the
Commonwealth of Kentucky filed a complaint against Carter and
Kirby alleging that they had erected and maintained a billboard
advertising device on Interstate 75 in Rockcastle County,
Kentucky, near mile post 69.1, in violation of KRS 177.830177.890 and applicable regulations.
The sign was more than 660
feet from the right of way of Interstate 75 and was visible and
readable from the highway.
Carter was the owner of the billboard
and Kirby owned the land upon which the billboard had been
erected.
After discovery was completed, this matter was
originally set for a bench trial on June 21, 2000.
The trial,
which was continued three times, was finally scheduled for
December 5, 2000.
On December 4, 2000, and December 19, 2000,
the trial court entered orders which provided that the parties
had “reached an agreement” that “there are no material issues of
fact in this matter” and that “this matter should be submitted on
a summary judgment basis[.]”
On March 9, 2001, the trial court
ruled in favor of the Transportation Cabinet and ordered that the
billboard be immediately removed.
This appeal followed.
Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, stipulations, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
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the moving party is entitled to a judgment as a matter of law.”2
In Paintsville Hospital Co. v. Rose,3 our Supreme Court held that
for summary judgment to be proper the movant must show that the
adverse party cannot prevail under any circumstances.
The Court
has also stated that “the proper function of summary judgment is
to terminate litigation when, as a matter of law, it appears that
it would be impossible for the respondent to produce evidence at
the trial warranting a judgment in his favor.”4
The standard of
review on appeal of a summary judgment is whether the trial court
correctly found that there was no genuine issue as to any
material fact and that the moving party was entitled to judgment
as a matter of law.5
There is no requirement that the appellate
court defer to the trial court since factual findings are not at
issue.6
“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.”7
On appeal, Carter and Kirby argue that a factual issue
exists as to whether the sign was located on or within a
commercially active area.
In their brief, they stated:
2
Kentucky Rules of Civil Procedure (CR) 56.03.
3
Ky., 683 S.W.2d 255 (1985).
4
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky,. 807
S.W.2d 476, 480 (1991).
5
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
6
Goldsmith v. Allied Building Components, Inc., Ky., 833
S.W.2d 378, 381 (1992).
7
Steelvest, supra at 480.
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A genuine issue of material fact exists.
Owners’ billboard would not lose its status
as a “legal non-conforming advertising
device” unless it was located in a
commercially active area. There was no
evidence offered by appellee as to the status
of the area and the court cannot take
judicial notice of this fact.8
However, this alleged error is not properly before this
Court.
Carter and Kirby cannot argue on appeal that a factual
issue exists when they filed a motion of their own asking the
trial court to grant summary judgment in their favor.
Kirby cannot have it both ways.
Carter and
They cannot be permitted to
argue that there is no genuine issue as to a material fact when
they are seeking summary judgment, but now take a completely
different position after the trial court has determined that
summary judgment was proper for the Cabinet.
In BTC Leasing, Inc. v. Martin,9 this Court stated,
“[t]his position is indeed odd in light of the fact that BTC also
moved the trial court to utilize a summary judgment on its own
behalf.
Having taken the stance by summary judgment that there
was no genuine issue of fact, we feel that BTC should not now be
permitted to assume a completely inconsistent posture to defeat
8
We assume that this summary of the appellants’ position
contains a misstatement and that the appellants should have used
“if” instead of “unless”. Appellants argued in their memorandum
in support of a summary judgment that “the sign is located within
a commercially active area, which is an exception to the law and
prevents its removal.” KRS 177.860(4) provides that
“[a]dvertising devices which . . . are to be located in a
commercially or industrially developed area” “shall not be deemed
a violation of KRS 177.830 to 177.890[.]”
9
Ky.App., 685 S.W.2d 191, 193 (1984).
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the decision of the trial court by claiming there was a genuine
issue of fact.”
As our Supreme Court stated in Kennedy v.
Commonwealth,10 “[t]he appellants will not be permitted to feed
one can of worms to the trial judge and another to the appellate
court” [citations omitted].
The record shows that on November 22, 2000, the
Commonwealth filed a renewed motion for summary judgment.11
As
we previously noted, on December 4, 2000, the trial court entered
an order continuing the trial date that had been scheduled for
December 5, 2000, and stated that “[t]he parties hav[e] notified
the court that they agree there are no material issues of fact in
this matter, having notified the Court that they agree in this
matter should be submitted on a summary judgment basis[.]”
On
January 18, 2001, Carter and Kirby filed their own memorandum in
support of summary judgment.
Among the arguments made in support
of their claim to summary judgment was their claim that “the sign
is located within a commercially active area, which is an
exception to the law and prevents its removal.”
While the trial court did not address this specific
argument in the summary judgment, the parties had agreed that
there was no genuine issue as to any material fact for the trial
court to decide and it would appear that the appellees’ argument
that the sign was located in a commercially active area would
10
Ky., 544 S.W.2d 219, 222 (1976).
11
The Commonwealth had previously filed a motion for summary
judgment in 1998 that was denied by the trial court because
genuine issues of material fact remained to be determined.
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have required a factual finding.
Furthermore, when the appellees
on March 16, 2001, filed their motion pursuant to CR 59.05 to
alter, amend, or vacate the summary judgment, they failed to
raise this argument which involved a factual issue.12
For the foregoing reasons, the summary judgment of the
Rockcastle Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Jerry J. Cox
Mt. Vernon, Kentucky
John B. Baughman
Frankfort, Kentucky
12
The motion was denied by an order entered on June 18,
2001.
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