KEITH (LUKE) VS. POOJA VENTURES, LLC , ET AL.
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RENDERED: JULY 25, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001326-MR
LUKE KEITH, JR.
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 07-CI-00428
POOJA VENTURES, LLC; THAKOR
MAGGEN; PRIYAKANT PATEL;
NARAYAN, LLC; COMMONWEALTH OF
KENTUCKY, TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS;
INTERCONTINENTAL HOTELS GROUP; AND
KENTUCKY UTILITIES – OLD DOMINION
POWER
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND STUMBO, JUDGES.
APPELLEES
DIXON, JUDGE: Appellant, Luke Keith, Jr., pro se, appeals from an order of the
Laurel Circuit Court dismissing his complaint against all Appellees herein.
Finding no error, we affirm.
Appellant is a former owner of a motel located on KY 3011 in
London, Kentucky. Apparently, Appellant had on several occasions placed a sign
advertising his motel on the state’s right-of-way at the 41 mile marker on KY
3011. Each time, however, Appellee, the State Highway Department of the
Transportation Cabinet (Cabinet), would remove the sign and take it to the dump
site at the Department of Highway’s Laurel County facility. Eventually, Appellant
received permission from the Cabinet to place an oversized mailbox on the rightof-way at the entrance to his property, on which he could paint the name of the
motel. Appellant thereafter contacted Appellee, Kentucky Utilities (KU) and
requested that a power supply be provided so that he could install a floodlight to
illuminate the mailbox. In accordance with its standard policy, KU agreed to
provide power service so long as the Cabinet approved such in writing.
Appellant’s written request for approval to the Cabinet was subsequently denied.
Although it is unclear from any of the pleadings when, at some point
Appellees, Pooja Ventures, LLC, Thakor Maggen, Priyakant Patel, and Narayan,
LLC, (Pooja Ventures), constructed a hotel near Appellant’s property and
thereafter erected a “high rise” sign advertising their hotel in the right-of-way at
the 38 mile marker on KY 3011.1
1
The Cabinet points out that there is an action pending in the Laurel Circuit Court to remove
Pooja Ventures’ sign. Commonwealth of Kentucky, Transportation Cabinet, Department of
-2-
On March 31, 2007, Appellant filed a pro se complaint in the Laurel
Circuit Court seeking two million dollars in restitution and lost income from the
date his motel opened in 1990 until it closed in 2006. Appellant claimed that all
Appellees “aided and abetted” each other in causing the financial ruin of his
business. In lieu of filing an answer, Appellees all filed motions to dismiss on the
grounds that Appellant failed to state a claim upon which relief could be granted2.
On May 27, 2007, the trial court entered an order dismissing Appellant’s action
against all Appellees. This appeal followed.
Admittedly, it is difficult to discern from Appellant’s pro se brief the
exact nature of his argument. He does not explain how the trial court erred, but
rather asserts in his belief that he was wronged by Appellees and is entitled to have
his case heard before a jury of his peers. Essentially, he claims that he is owed
restitution from the Cabinet and KU for treating him differently than they did
Pooja Ventures. Appellant contends that any signs he attempted to erect were
removed by the Cabinet within hours, yet Pooja Ventures’ sign was permitted to
remain. Yet, he then makes the illogical argument that the Cabinet’s lawsuit
against Pooja Ventures is evidence that KU supplied power to Pooja Ventures’
sign without the prior permission of the Cabinet. Thus, he claims that KU aided
and abetted the other Appellees. Finally, although Appellant declares that Pooja
Highways v. Priyakant Patel d/b/a Holiday Inn Express, 04-CI-00503.
2
The Cabinet additionally argued that Appellant’s suit was barred by sovereign immunity and
that Appellant had failed to properly serve the Attorney General in accordance with CR 4.04(6).
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Ventures contributed to his “financial ruin,” he does not articulate what they did to
contribute to such ruin or what cause of action he has against them.
Kentucky Rules of Civil Procedure (CR) 12.02(f) provides that a
claim may be dismissed if the plaintiff has failed to state a claim upon which relief
can be granted. It is well settled in this jurisdiction that when considering a motion
to dismiss under CR 12.02(f), the pleadings should be liberally construed in a light
most favorable to the plaintiff and all allegations taken in the complaint to be true.
James v. Wilson, 95 S.W.3d 875, 889 (Ky. 2002); Ewell v. Central City, 340
S.W.2d 479 (Ky. 1960); Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987).
A trial court should not grant a motion to dismiss for failure to state a claim unless
it appears that the pleading party would not be entitled to relief under any set of
facts which could be proved in support of his claim. Pari-Mutuel Clerks' Union of
Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801,
803 (Ky. 1977); Ingram v. Ingram, 283 S.W.2d 210 (Ky. 1955). Appellate courts
must review dismissals for failure to state a claim de novo. James, supra, at 889.
We are of the opinion that the trial court correctly dismissed
Appellant’s complaint. Clearly, Appellant has failed to state a cognizable claim
against any of the Appellees. His main grievance that the Cabinet refused him
access to the right-of way is without merit. Kentucky’s Billboard Act, Kentucky
Revised Statutes (KRS) 177.830 et seq., grants the Cabinet wide authority to
regulate what advertising devices are permitted along state highways and in rightof ways. Owensboro Metropolitan Board of Adjustments v. Midwest Outdoor
-4-
Advertising, Inc., 729 S.W.2d 446 (Ky. App. 1987). Pursuant to KRS 177.870,
“[a]ny advertising device erected, maintained, replaced, relocated, repaired or
restored” in violation of the Billboard Act is deemed “a public nuisance and such
device may without notice be abated and removed by any officer or employee of
the state department of highways or upon request of the commissioner by any
peace officer.”
Similarly, we fail to discern any cause of action against either KU or
Pooja Ventures. Without question, Appellant believes that these Appellees worked
in concert to cause the demise of his business. However, the record simply does
not support such a claim and we cannot conclude that Appellant has a viable cause
of action against any of the Appellees herein. As such, the trial court properly
granted all Appellees’ motions to dismiss.
The order of the Laurel Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Luke Keith, Jr., pro se
Hazard, Kentucky
Bridget L. Dunaway
Amanda Lester Hill
London, Kentucky
Brian M. Johnson
Matthew A. Stinnett
Lexington, Kentucky
Warren N. Scoville
London, Kentucky
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