COMMONWEALTH OF KENTUCKY VS. CALDWELL (CRYSTAL MCFARLAND), ET AL.
Annotate this Case
Download PDF
RENDERED: MAY 22, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002539-MR
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
v.
APPELLANT
APPEAL FROM ADAIR CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 06-CI-00002
CRYSTAL MCFARLAND CALDWELL,
ADMINISTRATRIX OF THE ESTATE OF
BERTHA ROSEANN WILSON; AND
KENTUCKY BOARD OF CLAIMS
APPELLEES
OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; NICKELL, JUDGE; GRAVES,1 SENIOR
JUDGE.
1
Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
GRAVES, SENIOR JUDGE: The sole question presented is whether the failure to
file exceptions to the recommended order of a hearing officer of the Kentucky
Board of Claims failed to preserve any issues for further appellate review. We
affirm.
Bertha Roseann Wilson was struck and killed by an automobile while
she was walking her dog alongside a roadway at night. Crystal McFarland
Caldwell, as administratrix of Wilson’s estate, brought suit against the
Transportation Cabinet for negligence in maintaining the shoulder of the roadway.
The hearing officer of the Board of Claims made findings of fact and conclusions
of law and recommended that the estate was entitled to damages in the amount of
$195,300. Neither party filed exceptions to the recommended order. The Board of
Claims adopted the recommended order in its entirety. The Cabinet appealed to
the Adair Circuit, which affirmed the Board on the basis that no exceptions were
filed to the hearing officer’s recommendations. This appeal followed.
As a preliminary matter, McFarland filed a motion to dismiss the
Cabinet’s appeal. The Cabinet filed a motion to consolidate and hold this appeal in
abeyance. We deny both motions.
The Cabinet argues that the failure to file exceptions is not the
jurisdictional threshold for an appeal.
The failure to file exceptions presents an issue of preservation rather
than jurisdiction. Rapier v. Philpot, 130 S.W.3d 560, 563 (Ky. 2004). “Under
Chapter 13B, the filing of exceptions provides the means for preserving and
-2-
identifying issues for review by the agency head. In turn, filing exceptions is
necessary to preserve issues for further judicial review.” Id. The proceedings of
the Board of Claims are exempted from the requirements of KRS Chapter 13B.
KRS 13B.020(3)(d)(5)(a). KRS 44.140 sets forth the procedure for appeals from
awards of the Board of Claims by a state agency. KRS 44.140 states:
(1) Appeals may be taken by a state agency from all
awards of the board where the amount in controversy,
exclusive of interest and costs, is more than one thousand
dollars ($1,000). Appeals shall be taken to the Circuit
Court of the county wherein the hearing was conducted,
provided, however, that an appeal involving a
nonresident claimant may be taken by a state agency to
the Franklin Circuit Court with the approval of the board.
No state agency can appeal any decision of the board
without securing the prior approval of the Attorney
General. Appeals shall be taken within forty-five (45)
days from the rendition of the award, and the method of
appeals shall follow as nearly as may be the rules of civil
procedure, except the Commonwealth shall not be
required to execute bond.
(2) Any claimant whose claim is one thousand dollars
($1,000) or greater may within forty-five (45) days after
receipt of the copy of the report containing the final
decision of the board, file a proceeding in the Circuit
Court of the county wherein the hearing was conducted
to review the decision of the board. A copy of the filing
and complaint shall be served on the Attorney General in
the manner provided by the rules of civil procedure.
(3) The board, the state agency and the claimant shall be
necessary parties to such appeals. It shall not be
necessary for the board to file responsive pleadings
unless it so desires.
(4) The executive director of the board shall within thirty
(30) days after service of the summons file the entire
original record properly bound, with the clerk of the
-3-
Circuit Court, after certifying that such record is the
board’s entire original record and such record shall be
considered by the Circuit Court in its review. If either
party requests a transcript of the evidence in writing, the
requesting party shall bear the cost of the original copy of
the transcript and it shall be furnished within ninety (90)
days from the date of the written request.
(5) On appeal no new evidence may be introduced,
except as to fraud or misconduct of some person engaged
in the hearing before the board. The court sitting without
a jury shall hear the cause upon the record before it, and
dispose of the appeal in a summary manner, being
limited to determining: Whether or not the board acted
without or in excess of its powers; the award was
procured by fraud; the award is not in conformity to the
provisions of KRS 44.070 to 44.160; and whether the
findings of fact support the award. The court shall enter
its findings on the order book as a judgment of the court,
and such judgment shall have the same effect and be
enforceable as any other judgment of the court in civil
causes.
While proceedings under KRS 44.140 are exempted from KRS
Chapter 13B, under Kentucky law, the rule of preservation is generally applicable
and “precludes judicial review of any part of the recommended order not excepted
to and adopted in the final order.” Philpot, 130 S.W.3d at 564 (citing United
States v. Central Bank & Trust Co., Ky., 511 S.W.2d 212, 214 (1974)(italics in
original)).
In the present case, the trial court did not dismiss the petition for lack
of jurisdiction. The trial court affirmed the decision of the Board of Claims
because the Cabinet did not file exceptions to the hearing officer’s findings. It is
undisputed that the neither party filed exceptions. Therefore, there was nothing for
-4-
the trial court to review. The trial court properly affirmed the decision of the
Board of Claims.
For the foregoing reasons the order of the Adair Circuit Court is
affirmed.
Additionally, the motion to dismiss the appeal is hereby DENIED.
The motion to consolidate and hold the appeal in abeyance is hereby DENIED.
ALL CONCUR.
ENTERED: May 22, 2009
s/John W. Graves
SENIOR JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, CRYSTAL
MCFARLAND CALDWELL:
Andrew M. Stephens
Lexington, Kentucky
Joshua E. Santana
Lexington, Kentucky
Mindy G. Wilson
Lexington, Kentucky
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.