ROBINSON (MARYANNA) VS. WHITLEY (BONNIE), ET AL.
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RENDERED: JULY 22, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002182-MR
MARYANNA ROBINSON
v.
APPELLANT
APPEAL FROM ROBERTSON CIRCUIT COURT
HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 04-CI-00040
HAROLD WHITLEY; BONNIE
WHITLEY; RICHARD WILSON;
TONYA WILSON; MARION
BALDWIN; PATSY BALDWIN;
DAVID WIGGLESWORTH;
LYNDA WIGGLESWORTH;
JEREMY MCCLOUD; KIM
MCCLOUD; REBEKA BERTRAM;
DAVE ALLEN WELCH; JIM
ALEXANDER; ROSE MARIE
ALEXANDER; JIM ANDREWS, III;
MARK WILSON; JAN BERTRAM;
HELEN (BILLIE) BATTE; AND HELEN
BATTE
AND
NO. 2009-CA-002210-MR
HAROLD WHITLEY; BONNIE
WHITLEY; RICHARD WILSON;
TONYA WILSON; MARION
BALDWIN; PATSY BALDWIN;
APPELLEES
DAVID WIGGLESWORTH;
LYNDA WIGGLESWORTH;
JEREMY MCCLOUD; KIM
MCCLOUD; REBEKA BERTRAM;
DAVE ALLEN WELCH; JIM
ALEXANDER; ROSE MARIE
ALEXANDER; JIM ANDREWS, III;
MARK WILSON; JAN BERTRAM;
HELEN (BILLIE) BATTE; AND
HELEN BATTE
v.
CROSS-APPELLANTS
CROSS-APPEAL FROM ROBERTSON CIRCUIT COURT
HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 04-CI-00040
MARYANNA ROBINSON;
ROBERTSON COUNTY; AND
ROBERTSON COUNTY FISCAL
COURT
CROSS-APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: DIXON, KELLER, AND VANMETER, JUDGES.
VANMETER, JUDGE: Maryanna Robinson appeals from the order of the
Robertson Circuit Court granting summary judgment in favor of property owners1
who sought a declaratory judgment that Batte Lane, a road adjoining and servicing
1
The property owners include Harold Whitley, Bonnie Whitley, Richard Wilson, Tonya Wilson,
Marion Baldwin, Patsy Baldwin, David Wigglesworth, Lynda Wigglesworth, Jeremy McCloud,
Kim McCloud, Rebeka Bertram, David Allen Welch, Jim Alexander, Rose Marie Alexander, Jim
Andrews, III, Mark Wilson, Jan Bertram, Helen (Billie) Batte, and Helen Batte.
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their property, is a private road. The property owners cross-appealed. For the
following reasons, we reverse in part, affirm in part, and remand the matter to the
trial court.2
In November 1987, Robertson County adopted a new county road map and
for the first time depicted Batte Lane as a county road. In January 2004, Harold
Whitley, an owner of property adjoining Batte Lane, petitioned the Robertson
County Fiscal Court to abandon a portion of Batte Lane to make it a private road.
At a public hearing, Robinson opposed abandonment of the county road. The
fiscal court voted to not abandon Batte Lane, thereby it maintained its status as a
county road. At a later public hearing, Whitley, through counsel, requested the
fiscal court to abandon the road on the basis that the road was never properly
adopted by the county in 1987. The fiscal court again declined to abandon Batte
Lane.
In September 2004, the property owners filed the underlying action seeking
a declaratory judgment that Batte Lane was not a lawfully adopted county road.
Robinson was named as a defendant in the action due to her opposition to
abandoning Batte Lane as a county road, and she filed counterclaims alleging the
property owners breached warranty deeds and interfered with easements.
Robertson County and Robertson County Fiscal Court were also named as codefendants.
2
Robertson County and Robertson County Fiscal Court were named Defendants in the action
brought by the property owners, and are included as Cross-Appellees for purposes of this appeal.
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During the course of the proceedings below, the trial court entered an order
upon motion by counsel for property owners that prohibited Robinson, an attorney,
from speaking to the property owners regarding the litigation. On August 13,
2009, the trial court entered an order granting the property owners’ motion for
summary judgment, holding that Batte Lane was not formally adopted as a county
road in 1987 and was a private road which could be gated. The trial court reserved
for a later hearing issues regarding the nature of the gate to be placed on Batte
Lane. On October 22, 2009, the trial court entered a final order denying
Robinson’s motion for CR3 11 sanctions, dismissing all counterclaims and holding
that a gate could be erected across Batte Lane. Robinson filed a motion to alter,
amend or vacate the order, which the trial court denied. This appeal followed.
Robinson first argues the trial court erred by treating the action as an
original action and hearing the issue de novo. Specifically, Robinson maintains the
trial court should have been limited to a review of whether the fiscal court’s
decision was arbitrary, namely whether substantial evidence existed to support the
decision. We agree.
Summary judgment shall be granted only 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 the moving party is entitled to a judgment as a matter of law.” CR 56.03. The
trial court must view the record “in a light most favorable to the party opposing the
3
Kentucky Rules of Civil Procedure.
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motion for summary judgment and all doubts are to be resolved in his favor.”
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Further, “a party opposing a properly supported summary judgment motion cannot
defeat it without presenting at least some affirmative evidence showing that there
is a genuine issue of material fact for trial.” Id. at 482.
On appeal from a granting of summary judgment, our standard of review is
“whether the trial court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as a matter of
law.” Lewis B & R Corp., 56 S.W.3d 432, 436 (Ky.App. 2001) (quoting Scifres v.
Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996)). Because no factual issues are
involved and only legal issues are before the court on a motion for summary
judgment, we do not defer to the trial court and our review is de novo. Hallahan v.
Courier-Journal, 138 S.W.3d 699, 705 (Ky.App. 2004).
KRS4 178.100 provides:
From a decision of the fiscal court ordering a new road to
be opened, or ordering an alteration or discontinuance of
an existing road, or allowing gates to be erected across a
road or abolishing existing gates, or a decision refusing
any such order, the party aggrieved may bring an action
in the Circuit Court of the county where the road is
located to contest the decision of the fiscal court.
(emphasis added). Indeed, the circuit court is conferred jurisdiction under KRS
23A.010(4), which specifies:
The Circuit Court may be authorized by law to review
the actions or decisions of administrative agencies,
4
Kentucky Revised Statutes.
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special districts or boards. Such review shall not
constitute an appeal but an original action.
Accordingly, the property owners maintain, and the trial court agreed, that since
the action sought a declaratory judgment to determine the status of Batte Lane, the
trial court has jurisdiction to review the action de novo.
We find the issue to be analogous to the one raised before this court in
Trimble Fiscal Court v. Snyder, 866 S.W.2d 124 (Ky.App 1993). In Snyder,
property owners petitioned the Trimble Fiscal Court to abandon a portion of a road
running across their property, which the fiscal court denied. Id. at 125. The
property owners then filed an original action in the Trimble Circuit Court, which
held a de novo trial and ordered the abandonment of said road. Id. In overruling
the Trimble Circuit Court, this court stated,
[w]hen the [fiscal court] is used as a vehicle not to make
general applicable law, rules or policy, but to decide
whether a particular individual as a result of a factual
situation peculiar to his situation is or is not entitled to
some form of relief, then the [fiscal court] must act in
accordance with the basic requirements of due process as
are applicable generally. Judicial review in this
particular situation to determine whether or not the action
is “arbitrary” concerns itself with whether the basic
elements of due process have been afforded including
whether the action was based upon substantial evidence.
Id. at 126 (quoting City of Louisville v. McDonald, 470 S.W.2d 173, 178 (Ky.
1973)). The court held the fiscal court’s determination of whether or not to
abandon a county road was subject to due process, and, thus, judicial review was
“limited to determining whether the decision not to close the road was arbitrary,
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including whether there was substantial evidence to support the decision.” Snyder,
866 S.W.2d at 126 (citations omitted). Since “[a] challenge to a fiscal court’s
action must be designated as an ‘original action,’ because the fiscal court is not a
judicial court, which precludes an ‘appeal’ per se[,]” this court was not persuaded
that KRS 23A.010(4) provided authority to hear the trial de novo. Id. at 127
(citations omitted). As a result, this court reversed the Trimble Circuit Court’s
order on the basis that it failed to undertake the proper standard of review and to
limit itself to the record before the fiscal court. Id.
In this case, the Robertson County Fiscal Court declined Whitley’s requests
to abandon a portion of Batte Lane as a county road. As in Snyder, the fiscal
court’s determination of whether Whitley is entitled to relief is based on a
particular factual situation, and thus the determination is subject to the basic
requirements of due process. Accordingly, the trial court was required to limit its
review to the record before the fiscal court and to determine whether the action
taken by the fiscal court was arbitrary. Since the trial court did not undertake the
proper standard of review, we must vacate the portion of the order holding Batte
Lane to be a private road.
Next, Robinson argues the trial court erred by entering an order prohibiting
her from communicating with the property owners. We disagree.
Both parties agree that Robinson contacted Jan Bertram, a property owner
and a party to this litigation, to discuss the subject matter of the litigation despite a
request by counsel for the property owners that she not do so. Robinson fails to set
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forth any authority in support of her position that she should not have been
prohibited from communicating with the property owners. We note that trial
courts have broad discretion over disputes during the discovery process and we
will not disturb a discovery ruling absent an abuse of that discretion, which
Robinson has failed to show. Blue Movies, Inc. v. Louisville/Jefferson County
Metro Gov., 317 S.W.3d 23, 39 (Ky. 2010) (citation omitted).
Finally, Robinson contends the trial court abused its discretion by denying
her motion for Rule 11 sanctions and attorney fees against counsel for Robertson
County and the Robertson County Fiscal Court. We disagree.
Rule 11 provides, in relevant part:
The signature of an attorney or party constitutes a
certification by him that he has read the pleading, motion
or other paper; that to the best of his knowledge,
information, and belief formed after reasonable inquiry it
is well grounded in fact and is warranted by existing law
or a good faith argument for the extension, modification
or reversal of existing law, and that it is not interposed
for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of
litigation.
If this rule is violated, the court is required to sanction the violator. Id.
In this case, Robinson alleges that opposing counsel violated Rule 11 by
submitting an agreed order to the court prohibiting the city from paving Batte Lane
until resolution of the underlying action. Robinson claims she did not consent to
the agreed order. Counsel for Robertson County maintains that he did not believe
it necessary to obtain Robinson’s consent prior to submitting the agreed order. We
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find nothing in the record to indicate counsel for property owners acted in bad faith
and do not read Rule 11 to prohibit such an action. Furthermore, Robinson
provides no authority to support her position. Under this set of facts, we find no
cause for Rule 11 sanctions, and affirm the trial court’s decision to deny
Robinson’s motion.5
On cross-appeal, the property owners argue the trial court erred by ruling on
Robinson’s motion to alter, amend or vacate its order since the motion was
untimely from the date of the August 13 order. Specifically, the property owners
claim the August 13 order was final and appealable, and since the motion to alter,
amend or vacate was untimely, it failed to toll the time for Robinson to file a notice
of appeal. As a result, the property owners argue the notice of appeal was
untimely, and we are without jurisdiction to review Robinson’s appeal. We
disagree.
CR 59.05 provides that “[a] motion to alter or amend a judgment, or to
vacate a judgment and enter a new one, shall be served not later than 10 days after
entry of the final judgment.” A judgment is final and appealable if it has
adjudicated all the rights of all the parties in an action or has been made final under
CR 54.02. CR 54.01.
In this case, the August 13, 2009, order was not a final and appealable order
because the trial court reserved ruling on the issue of where to place the gate.
Additionally, the order did not recite that it was final and appealable per CR 54.02.
5
We will not address Robinson’s remaining claims in light of our decision to reverse the trial
court’s order granting summary judgment.
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The trial court entered a final and appealable order on October 22, 2009, which
Robinson moved to set aside, amend or vacate within ten days of entry of the
order. We are not persuaded by the property owners’ argument that the August 13
order was actually final and appealable because it resolved the ultimate issue of
whether Batte Lane was a county or private road, since by declaring the road as
private, further issues needed to be resolved by the court. Thus, Robinson’s
motion to alter, amend or vacate the October order was timely and effectively
tolled the running time to file her notice of appeal. See CR 73.02(1)(e). See also
Univ. of Louisville v. Isert, 742 S.W.2d 571, 573 (Ky.App. 1987) (the time to file a
notice of appeal is stayed by filing a timely motion pursuant to Rule 59 to alter,
amend or vacate the judgment). Accordingly, the trial court did not err in this
regard.
The Robertson County order granting summary judgment is reversed in part,
affirmed in part, and the matter is remanded for proceedings consistent with this
opinion.
ALL CONCUR.
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BRIEFS FOR APPELLANT/
CROSS-APPELLEE MARYANNA
ROBINSON:
BRIEFS FOR APPELLEES/
CROSS-APPELLANTS:
James S. Thomas
Cynthiana, Kentucky
Shannon Upton Johnson
Paris, Kentucky
BRIEFS FOR CROSS-APPELLEES:
Jesse P. Melcher
Mt. Olivet, Kentucky
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