MCGEHEE (PATRICIA A.), ET AL. VS. COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET
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RENDERED: JANUARY 14, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000611-MR
PATRICIA A. RAGLAND MCGEHEE
AND RICHARD MCGEHEE
v.
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 08-CI-00608
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; ACREE, JUDGE; BUCKINGHAM,1
SENIOR JUDGE.
TAYLOR, CHIEF JUDGE: Patricia A. Ragland McGehee and Richard McGehee
(collectively referred to as the McGehees) bring this appeal from a February 13,
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
2009, Opinion and Order of the Franklin Circuit Court granting the
Commonwealth of Kentucky Transportation Cabinet, Department of Highways’
motion to dismiss the complaint. We affirm.
Patricia A. Ragland (now McGehee) acquired 85-acres of farm land in
Hardin County, Kentucky, in 1991. The deed to this property also included the
right of access over a passway across an adjoining property to a creek adjacent to
that property, which was owned by Frank and Mary Strickler. The passway or
right-of-way easement crossing the Strickler property to the creek was for the
benefit of the McGehee tract.2
On August 21, 2006, the Commonwealth of Kentucky Transportation
Cabinet, Department of Highways (Cabinet) filed a condemnation action against
the McGehees in the Hardin Circuit Court, Case No. 06-CI-01508. The Cabinet
initiated the condemnation action against the McGehees’ property to effectuate the
construction, alteration, relocation, and/or extension of Kentucky Highway 3005 to
the Western Kentucky Parkway, otherwise known as the “Ring Road Extension.”
On June 4, 2008, the Hardin Circuit Court entered an order granting the
condemnation of the McGehees’ property. The McGehees appealed the circuit
court’s June 4, 2008, order of condemnation, and this Court affirmed by Opinion
rendered February 19, 2010. (Appeal No. 2008-CA-001568-MR.) On October 13,
2
It has been recognized that a “right-of-way easement is simply the privilege of the owner of one
tenement to enjoy the tenement of another. The owner who enjoys the privilege to use another’s
land is said to possess the dominant tenement, while the owner burdened with the privilege is
said to possess the servient tenement.” Illinois Cent. R.R. Co. v. Roberts, 928 S.W.2d 822, 825
(Ky. App. 1996). As such, an easement is a “property right or interest in land.” Id. at 826.
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2010, the Kentucky Supreme Court denied discretionary review. The Hardin
Circuit Court condemnation judgment became final on October 18, 2010.
Notwithstanding the pendency of the condemnation action in Hardin
Circuit Court, on April 2, 2008, the McGehees filed this action (a complaint and
petition for declaration of rights, Case No. 2008-CI-00608) against the Cabinet in
the Franklin Circuit Court. Therein, the McGehees alleged that their ownership
interest in the right-of-way easement over the Strickler’s property was not properly
acquired through condemnation and that the award of a construction contract to
develop the Ring Road Extension violated Cabinet policy and the Kentucky Model
Procurement Code. Apparently, the Strickler’s had reached an agreement with the
Cabinet to construct the Ring Road Extension over a portion of their property,
which the McGehees assert obstructed or interfered with their right-of-way access
thereover to the creek.
By opinion and order entered February 13, 2009, the Franklin Circuit
Court dismissed the McGehees’ complaint. The circuit court determined that the
McGehees lacked standing to pursue a claim challenging the construction contract
under the Model Procurement Code (Kentucky Revised Statutes (KRS) 45A.245)
and that it lacked jurisdiction to consider the interference of the McGehees’
easement across the Strickler property. This appeal follows.
The McGehees contend that the circuit court erred in dismissing their
complaint against the Cabinet. The McGehees argue that they have standing and
the Franklin Circuit Court has jurisdiction over this action pursuant to the
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Kentucky Model Procurement Code (KMPC). The McGehees claim that the
KMPC confers standing upon them to contest a public contract that violates the
provisions of the KMPC. Also, the McGehees argue that the KMPC was intended
“to prevent the Cabinet from awarding a contract that amounts to trespass” or an
improper interference with a third party’s property rights. In support of their
argument, the McGehees cite this Court to Commonwealth v. Yamaha Motor Mfg.
Corp., 237 S.W.3d 203 (Ky. 2007).
We do not believe that the McGehees have standing to bring an action
under the KMPC nor does Yamaha Motor support their position. In Yamaha
Motor, the Supreme Court recognized that the KMPC “expanded” standing to
unsuccessful bidders in a judicial action challenging the award of a public contract:
“[T]he KMPC has changed the rules of the game,
providing access not previously available to challenge
and investigate the propriety of government purchasing
contracts.” Specifically, with the enactment of the
KMPC, the General Assembly elevated the standard of
conduct for the Commonwealth's procuring entities, inter
alia, “to provide safeguards for the maintenance of a
procurement system of quality and integrity,” and “to
insure fair and equitable treatment of all persons who
deal with the procurement system.” (Footnotes omitted.)
Standing was expanded by the KMPC to include a
class of disappointed bidders who previously lacked
standing.
Yamaha Motor, 237 S.W.3d at 205. The holding of Yamaha Motors is merely that
unsuccessful bidders have standing to bring a judicial action to challenge a public
contract under the KMPC. Id.
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By contrast, the McGehees are not unsuccessful bidders for a public
contract. They have no interest in the award of a public contract in bringing this
action but rather seek to challenge the continued performance of the
Commonwealth under a public contract with a third party to construct a roadway
across the Strickler’s property, which they claim constitutes a trespass by
interfering with their right to utilize the easement over the Strickler property. Such
a challenge is simply not within the ambit of the KMPC. Moreover, the McGehees
have not cited this Court to a specific statute under the KMPC conferring standing
upon them. Given the underlying facts, we simply do not believe that the
McGehees have standing under the KMPC to bring this action in the Franklin
Circuit Court.
The McGehees also assert that the circuit court erred by dismissing
their declaratory judgment action. Again, we disagree.
A declaratory judgment action brought under KRS 418.040 does not
confer a cause of action upon a party to seek relief; rather, it may be utilized only
where a party has an independent right to seek relief. The McGehees do not
possess a right to seek relief in the Franklin Circuit Court. The easement across
the Strickler property is located exclusively in Hardin County, although the circuit
court noted there was a dispute as to its exact location. To the extent that the
McGehees’ interest in this right-of-way easement has been obstructed or interfered
with, we agree with the circuit court that this action must be filed in Hardin
-5-
County, where both the McGehee and Strickler property is located. KRS 452.400;
see Illinois Central R.R. Co. v. Roberts, 928 S.W.2d 822 (Ky. App. 1996).
As to any other issues raised by the McGehees, we view same to be
either moot or without merit.
In sum, we conclude that the Franklin Circuit Court properly
dismissed the McGehees’ complaint.
For the foregoing reasons, the Opinion and Order of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Henry Graddy, IV
Elizabeth R. Bennett
Randal A. Strobo
Midway, Kentucky
Edwin A. Logan
Stewart C. Burch
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
W. Henry Graddy, IV
Midway, Kentucky
P. Kevin Moore
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Stewart C. Burch
Frankfort, Kentucky
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