JAY W . VANDERTOLL AND DR . DONALD J . VANDERTOLL V. COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET AND COMMONWEALTH OF KENTUCKY, DEPARTMENT OF TRANSPORTATION, BUREAU OF HIGHWAYS V. ELMO MARTIN AND MARTHA MARTIN, HIS WIFE AND DON C . KELLY, AS SECRETARY OF TRANSPORTATION, AND TRANSPORTATION CABINET, COMMONWEALTH OF KENTUCKY, AND JERRY ANGLIN, AS COMMISSIONER OF HIGHWAYS V. EVERETT R . THOMPSON, JR ., AND DEBORAH T . HARRIS, AS CO-EXECUTORS OF THE ESTATE OF EVERETT R . THOMPSON AND DENNY MOORE AND SOUTHSIDE REAL
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2001-SC-0256-DG
2001-SC-1065-DG
2001-SC-1066-DG
JAY W. VANDERTOLL AND
DR . DONALD J . VANDERTOLL
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1999-CA-2941
JEFFERSON CIRCUIT COURT NO . 1995-CI-2791
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET
APPELLEE
AND
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF HIGHWAYS
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-0640
JEFFERSON CIRCUIT COURT NO . 1999-CI-0756
ELMO MARTIN AND MARTHA MARTIN, HIS WIFE
APPELLEES
AND
DON C. KELLY, AS SECRETARY OF
TRANSPORTATION, AND TRANSPORTATION
CABINET, COMMONWEALTH OF KENTUCKY,
AND JERRY ANGLIN, AS COMMISSIONER
OF HIGHWAYS
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
2000-CA-2083
PIKE CIRCUIT COURT NO . 1993-CI-1553
EVERETT R . THOMPSON, JR., AND
DEBORAH T. HARRIS, AS CO-EXECUTORS
OF THE ESTATE OF EVERETT R . THOMPSON
AND DENNY MOORE AND SOUTHSIDE REAL
ESTATE INVESTORS, INC.
APPELLEES
OPINION OF THE COURT BY JUSTICE STUMBO
AFFIRMING
This is a consolidated appeal from two Court of Appeals' opinions dealing with
the same issues of law. The main issues on appeal are: (1) whether the application of
Kentucky Revised Statute (KRS) 416.670 to condemnations occurring more than eight
years' prior to the statute's amendment in 1980, constitutes an impermissible
retroactive application of that statute ; (2) what is the applicable statute of limitations
period for claims arising under KRS 416 .670 ; and (3) whether the Transportation
Cabinet' s2 failure to give condemnees actual notice of their right to repurchase their
land pursuant to KRS 416.670, at its original purchase price, tolls the statute of
limitations for bringing such an action to recover the property . We granted discretionary
review and heard consolidated oral arguments on Transportation Cabinet v. Thompson ,
2001-SC-1066-D, and Department of Transportation v. Martin , 2001-SC-1065-D . The
appeals were taken from a single Court of Appeals' Opinion addressing both cases .
We also granted discretionary review to Vandertoll v. Transportation Cabinet, 2001-SC00256-D, which was decided by a separate panel of the Court of Appeals . We will
briefly describe the facts of each case below . In the interest of judicial economy, we
will address the common issues of law with one opinion of this Court .
FACTS
' KRS 416 .670 gives former owners the right to repurchase their condemned property if
the Cabinet fails to develop the property within eight years of condemnation .
2 The Transportation Cabinet was previously known as the Department of
Transportation . For clarity's sake, we will refer to both as the "Cabinet ."
Transg)ortation Cabinet v. Thompson
In 1978, the Transportation Cabinet began condemnation proceedings against
Everett and Mary Thompson to acquire over six acres of their land for use in the
construction of US 119 in Pike County . In 1983, the parties reached a settlement
agreement in which the Thompsons transferred 4 .869 acres to the Cabinet in exchange
for the property's fair market value of $75,000. In 1988, pursuant to the settlement
agreement, the Cabinet notified the Thompsons by letter that a portion of their land had
not been used in the construction of US 119 and offered to sell the .89 acre tract back
to the Thompsons for its appraised value of $106,000 . Mr. Thompson requested that
he be advised of his rights regarding the repurchase of his land . The Cabinet
responded only by restating the prior offer and Mr. Thompson tendered a deposit on the
tract under protest that the Cabinet had not given him the proper right of first refusal,
per their agreement, as he was only paid $75,000 for nearly five acres of land
($15,403 .57 per acre) in the original condemnation action . After negotiations between
the parties broke down, the Cabinet ultimately sold the disputed .89 acre tract to a third
party . This cause of action began when the Thompsons filed suit in Pike County Circuit
Court in November of 1993 seeking to enjoin the Cabinet from transferring the deed to
the third party and to have the property conveyed to them at its fair market value at the
time of condemnation, $13,709 .18, pursuant to KRS 416 .670 . The Pike Circuit Court
found in favor of the Transportation Cabinet and held that KRS 416.670 could not be
applied retroactively to the Thompsons' claim, as the condemnation had occurred
before that statute's amendment in 1980 . The Court of Appeals reversed and held that
KRS 416.670 did give the Thompsons a cause of action. We affirmed the Court of
Appeals in Kelly v. Thompson , Ky., 983 S.W.2d 457 (1998), and held that such was not
an impermissible retroactive application of that statute, thus giving the Thompsons a
right to repurchase their property at the price the Cabinet initially paid for it. We
remanded to Pike Circuit Court with instructions to allow the Thompsons to exercise
their right of redemption under KRS 416.670 . Accordingly, the circuit court directed the
Cabinet to sell the land to the Thompsons at the price the Cabinet originally paid for it.
The Cabinet appealed and the Court of Appeals affirmed the Pike Circuit Court . This
appeal followed . We affirm the Court of Appeals' Opinion for the reasons set forth
below.
Department_ of Transportation v. Martin
The Martins' property was condemned in 1979, at which time they were paid a
total of $102,500. The Martins sought to enforce their right of redemption pursuant to
KRS 416 .670, and instituted this action in the Jefferson Circuit Court in 1999 after our
opinion in Kelly, supra , was rendered in late 1998. The Jefferson Circuit Court
dismissed the Martins' complaint as untimely and held that the redemption provision of
KRS 416 .670 was governed by the five-year statute of limitations contained in KRS
413.120 . The Court of Appeals, in a consolidated opinion with the Thompson case,
held that although the five-year statute of limitations applied, the limitations period does
not begin to run until the Cabinet gives the previous landowners actual notice of their
right to repurchase the property at the same price that the Cabinet paid for it initially,
pursuant to KRS 416 .670 . We agree and affirm for the reasons set forth below.
Vandertoll v. Transportation Cabinet
In 1962, the Cabinet instituted condemnation proceedings against the
Vandertolis in order to acquire 26.59 acres of their land for use in the construction and
maintenance of Interstate 64 . The Cabinet took possession of the land by deed in April
of 1967 and the Vandertolls were paid $141,790 ($5,332.45 per acre) . Subsequently,
the Cabinet declared a portion of the land to be surplus property, including 12.858
acres deemed Parcel 224A, the subject of this dispute . Apparently, over the years the
Cabinet and the Vandertolls have unsuccessfully tried to negotiate a repurchase of the
parcel . The Vandertolls filed suit in Jefferson Circuit Court in May of 1995 seeking to
assert their rights pursuant to KRS 416 .670. Initially, the circuit court dismissed the
complaint, and the Court of Appeals held the case in abeyance pending our decision in
Kelly, supra . Subsequently, the Court of Appeals reversed and remanded to the circuit
court for further proceedings in light of our decision in Kelly . On remand, and in
accordance with the holding of Kelly, supra, the Jefferson Circuit Court ruled that the
Vandertolls' claim was still barred because the "triggering event" for KRS 416 .670 was
the expiration of the eight years in which the Cabinet has to develop the condemned
property, and in order for the statute to not have retroactive application, the triggering
event must have occurred after KRS 416 .670's amendment in 1980. The trial court
found that the Vandertolls' land was condemned in 1967 and the eight years in which
the Cabinet had to develop the land expired in 1975 . The Vandertolls' right of
redemption against the Cabinet, pursuant to KRS 416 .670, was not established until
1980; therefore, to allow the Vandertolls the benefit of the amended statute would be to
give that statute retroactive application . On appeal, the Court of Appeals affirmed the
Jefferson Circuit Court's summary judgment for the Cabinet . We agree for the reasons
set forth below.
RETROACTIVE APPLICATION OF KRS 416 .670
Prior to 1980, KRS 416.670 specifically exempted condemnations by the Cabinet
from prior landowners' rights of redemption . The legislature, however, deleted this
exemption from the language of KRS 416 .670 in 1980 . KRS 416 .670 now reads in
pertinent part:
(1) Development shall be started on any property which has
been acquired through condemnation within a period of eight
(8) years from the date of the deed to the condemnor or the
date on which the condemnor took possession, whichever is
earlier, for the purpose for which it was condemned . The
failure of the condemnor to so begin development shall
entitle the current landowner to repurchase the property at
the price the condemnor paid to the landowner for the
property . The current owner of the land from which the
condemned land was taken may reacquire the land as
aforementioned .
In Kelly, supra, this Court held that the Thompsons, whose land was condemned prior
to 1980, could avail themselves of the right of redemption provided in KRS 416 .670
without such constituting a retroactive application of the statute in violation of KRS
446 .080(3)3. Specifically, we held that "[i]t is the failure of the condemning authority to
begin development within eight years, and not the condemnation, which entitles the
current owner the opportunity to repurchase such surplus property ." Kelly, 983 S .W.2d
at 459. Therefore, since the Thompsons' land was condemned in 1978, their right of
redemption did not arise until eight years later in 1986. Since this occurred after the
statute was amended in 1980, the Thompsons are free to avail themselves of the rights
conferred upon them by KRS 416.670. Likewise, the Martins' land was condemned in
1979 and therefore, their right of redemption did not arise until 1987, seven years after
KRS 416.670 was amended . They too have a cause of action against the Cabinet
under the statute . The Vandertolls, however, do not benefit from KRS 416 .670's
amendment because their land was condemned in 1967, thus their opportunity to
3 KRS 446 .080(3) states that "[n]o statute shall be construed to be retroactive, unless
expressly so declared ."
repurchase their land accrued in 1975 . At that time, KRS 416 .670 contained a specific
exemption for condemnations originated by the Cabinet . Since the statute was not
applicable to the Cabinet in 1975, the Vandertolls cannot seek to enforce its provisions
upon the Cabinet ; therefore, they do not have a cause of action under KRS 416 .670.
Accordingly, we hold that to allow landowners whose rights to repurchase their
condemned property are triggered before thestatutory amendment of KRS 416 .670 in
1980 (by the expiration of eight years without development), would be to allow
retroactive application of that statute in violation of KRS 446 .080(3) .
STATUTE OF LIMITATIONS
Each of the condemnees argues that the fifteen-year statute of limitations set
forth in KRS 413 .010 should apply to claims brought under KRS 416.670, rather than
the five-year period found in KRS 413 .120(2) . The courts below that reached the
statute of limitations issue held that KRS 413 .120(2) should govern because a claim
arising under KRS 416.670 is "[a]n action upon a liability created by statute ." KRS
413 .120(2). KRS 413 .120(2) states that a five-year statute of limitations applies to such
claims "when no other time is fixed by the statute creating the liability ."
The condemnees contend that KRS 413 .010, dealing with actions for the
recovery of real property, governs because their claims involve a right to repurchase
real property and not a liability created by statute. We disagree . The Court of Appeals
in the Vandertoll case explained it best:
Here, the right of the current landowner to repurchase and
the obligation of the condemnor to develop the property
within eight years are both created by the statute, which is
entitled, "Limitations on condemnation power - Rights of
current landowner." Without the statute, neither would exist
. . . . We hold that this is an action upon a liability created by
statute, and the appropriate period of limitations is the five
year statute in KRS 413 .120(2) .
7
This Court has many times held that rights created by statute were governed by
the five-year statute of limitations in KRS 413.120(2). See Whittaker v. Brock, Ky., 80
S.W.3d 428 (2002) (holding that KRS 413 .120(2) is applicable to an action to enforce
an award of workers compensation benefits) ; Ammerman v. Board of Education of
Nicholas County, Ky., 30 S .W.3d 793 (2000) (holding that a civil rights claim for sexual
discrimination was barred by KRS 413.120(2)) ; Kentucky Commission on Human
Rights v. Owensboro , Ky ., 750 S .W.2d 422, 423 (1988) (holding that "[t]he rights of the
movants were created by KRS 344 .230" and that "[t]herefore, since these rights are
created by a statute which provides no limitation of its own, the 5-year statute of
limitations found in KRS 413 .120(2) should be applied .") .
Pike v. Harold (Chubby)
Baird Gate Co. , Ky. App., 705 S .W.2d 947 (1986), held that KRS 413 .120(2) governed
a claim for wrongful discharge against an employer. The court said, "[t]he essence of
the tort alleged . . . is an interference with a right, in this case a statutory right, not a
bodily injury. Thus the statute of limitations appropriate to this action is KRS
413 .120(2), the five-year statute of limitations for actions upon a 'liability created by
statute . . . ."' Id . at 948. Furthermore, KRS 413.010, governing the recovery of real
property, has historically applied to common law claims of adverse possession . See
Columbia Gas Transmission Corp . v. Consol of Kentucky, Inc., Ky., 15 S .W.3d 727
(2000) ; Great Western Land Management v. Slusher, Ky., 939 S .W.2d 865 (1996) ; and
Appalachian Regional Healthcare, Inc. v. Royal Crown Bottlinc~Co , Ky., 824 S .W .2d
878 (1992) . In the cases sub judice, the landowners' rights to repurchase their property
and the Cabinet's obligation to offer any surplus property back to the condemnees after
eight years, were both created solely pursuant to statute . Therefore, we conclude that
the five-year statute of limitations contained in KRS 413 .120(2) governs claims arising
pursuant to KRS 416 .670.
We find no merit in the Vandertolls' argument that no statute of limitations should
apply to their claim under KRS 416 .670 . Moreover, this issue is moot in light of the fact
that we have found the Vandertolls to not have a claim under the statute .
TOLLING OF THE STATUTE OF LIMITATIONS
The condemnees argue that even if the five-year statute of limitations applies,
the limitations period does not begin to run, or is essentially tolled, because the Cabinet
failed to give the condemnees actual notice of their right to repurchase their land at its
original condemnation price . We agree. KRS 416 .670(2) specifically mandates that the
Cabinet "shall notify the current landowner of the provisions of subsection (1) of this
section ." This language clearly places an affirmative duty upon the Cabinet to notify
landowners of their redemption right if their property was not developed within the eightyear time period allotted to the Cabinet . We will not commence a lengthy discussion on
the definition of "shall ." KRS 446.080(4) states that "[a]II words and phrases shall be
construed according to the common and approved usage of language . . . ." "In
common or ordinary parlance, and in its ordinary signification, the term 'shall' is a word
of command and . . . must be given a compulsory meaning ." Black's Law Dictionary
1233(5 th ed . 1979) .
"If the words of the statute are plain and unambiguous, the
statute must be applied to those terms without resort to any construction or
interpretation ." Terhune v. Commonwealth , Ky. App ., 907 S .W.2d 779, 782 (1995)
(quoting Kentucky Unemployment Insurance Commission v . KACQ Unemployment
Insurance Fund, Inc. , Ky. App ., 793 S.W.2d 845, 847 (1990)). Shall means shall.
The statutorily mandated notice requirement is a condition precedent to the
accrual of the landowners' cause of action under KRS 416 .670. The failure of the
Cabinet to comply with this mandate therefore effectively delayed the running of the
limitations period on such claims . See 51 Am . Jur. 2d Limitation of Actions ยง 111
(1970) ("As a general proposition, if a condition precedent to a right of action exists,
whether it is a demand and refusal or some other act or contingency, the cause of
action does not accrue nor does the statute of limitations begin to run until the condition
is performed"). In other words, KRS 416 .670 created a potential right in favor of the
condemnees (and likewise, a conditional liability against the Cabinet) that arose at the
expiration of eight years without development. However, this potential right and
conditional liability could not accrue, or become absolute, until the Cabinet offered the
land back to the condemnees at its original purchase price, thereby allowing the
condemnees to exercise their right pursuant to the statute, or decline to do so. See
Gregg v. Middle States Utilities Co . , 228 Iowa 933, 293 N .W. 66 (1940).
The Cabinet argues that in order to find the condemnees' causes of action
timely, we would have to either impermissibly extend the discovery rule to actions
resulting from land condemnations, or in the alternative, rule that exceptional
circumstances exist warranting that the Cabinet be equitably estopped from asserting a
limitations defense against the condemnees . The Cabinet is correct when it states that
the doctrine of equitable estoppel should only be used against government agencies in
exceptional circumstances .
Weiand v. Board of Trustees of Kentucky Retirement
Systems , Ky., 25 S.W.3d 88, 91 (2000). However, we believe that it is not necessary to
resort to the principles of equity in order to find the condemnees' actions timely . We
find this to be more an issue of strict compliance with the plain wording of the statute
10
that requires the Cabinet to give condemnees notice of their right of redemption . Until
such notice is given by the Cabinet, the condemnees are unaware of their statutory
right of redemption and consequently, the statute of limitations does not begin to run on
their claims until this condition precedent is satisfied . Eorwood v . City of Louisville, 283
Ky . 208, 214, 140 S.W .2d 1048, 1051 (1940) ("The statute of limitations begins to run
from the time when a complete cause of action accrues . . . . Where a party's right
depends upon the happening of a certain event in the future, the cause of action
accrues and the statute begins to run only from the time when the event happens.")
Our ruling also does not necessarily implicate the discovery rule . Kentucky case
law has previously limited the extension of the discovery rule primarily to causes of
action arising from recovery of stolen property, medical or professional malpractice and
latent illness or injury resulting from exposure to harmful substances . Roman Catholic
Diocese of Covington v. Secter, Ky. App ., 966 S.W .2d 286 (1998) . The discovery rule
acts to delay the accrual of a cause of action until the plaintiff discovers, or should have
reasonably discovered his injury . Id at 288. This, in effect, allows injured plaintiffs their
day in court when the nature of their injury is such that the injury itself is not readily
discoverable. However, in the cases sub judice, KRS 416 .670 places the burden of
notification upon the Cabinet, thereby relieving the condemnees of the responsibility to
investigate whether the Cabinet has developed their land for its intended purpose . The
clear and unequivocal language of the statute states that the Cabinet is charged with
making the condemnees aware of their rights under KRS 416.670 ; therefore, its failure
to effect such notice delays the running of the statute of limitations on claims arising
pursuant to the statute until notice is properly given .
PUBLIC POLICY
The Cabinet argues that this state's policy of promoting prompt prosecution and
ultimate resolution of claims will be subverted by delaying or tolling the statute of
limitations if proper notice has not been given to the condemnees . While it is true that
statutes of limitation serve to bar stale claims by favoring prompt resolution of those
claims, Natural Res . and Envtl. Prot. Cabinet v . Ky. Ins . Guaranty Ass'n . , Ky. App., 972
S.W.2d 276, 280 (1997), the legislature has evidenced an intention to place surplus
condemned property back into the hands of the original owners through its enactment
of KRS 416.670 . Miles v. Dawson , Ky., 830 S .W.2d 368, 370 (1991) . This legislation
also advances policy concerns regarding the state's involvement in the land brokerage
business . Id . The Cabinet will not be unduly burdened by our ruling because only
those landowners whose land was condemned from July 15, 1972, through the
effective date of the amendment to the statute on July 15, 1980, can avail themselves
of the right of redemption . The statute does not cover those landowners whose
condemnation occurred more than eight years prior to the effective date of the
amendment removing the exemption for the Cabinet. Likewise, it is presumed that the
Cabinet has previously addressed any condemnations occurring after the amendment
in 1980, as it does not dispute the statute's applicability to condemnations occurring
after that time. "The power to condemn property is an awesome power." Id .
Accordingly, we hold that subjecting the Cabinet to possible additional claims that might
have arisen in an eight-year period would not be in contravention of this state's public
policy.
The Cabinet also contends that the Court of Appeals erred in the Thompson and
Martin decisions by not reaching the issue of whether the Cabinet had begun "design
12
on highway projects pursuant to KRS Chapter 177" with regards to the subject
properties . The Thompsons counter that this issue has never been raised throughout
the entire litigation and the Cabinet does not direct us to where in the record that this
issue is preserved, and we will not search the record on appeal to make that
determination . CR 76 .12(4)(c)(iv) ; Robbins v. Robbins , Ky. App., 849 S.W.2d 571
(1993). In fact, we are unaware if the Cabinet has ever contended that it actually had
begun design on highway projects at any level of litigation with the Thompsons or
Martins. We also note the somewhat disingenuousness of the Cabinet's argument
regarding the Thompsons' property, as it specifically stated "that [the] .89 acre of the
property will not be needed for the operation or maintenance of US 119" in a letter to
Mr. Thompson dated July 1, 1988, that offered to resell the property at its appraised
value of $106,000. We find it strange that the Cabinet would offer to resell the property
if it were, in fact, considering it for use in a highway project.
CONCLUSION
For the reasons stated above, the decisions of the Court of Appeals in
Transportation Cabinet v. Thompson , 2000-CA-002083, Department of Transportation
v. Martin , 2000-CA-000640, and Vandertoll v . Transportation Cabinet , 1999-CA002941, are affirmed .
Lambert, C. J . ; Cooper, Graves, Johnstone and Keller, JJ ., concur.
Wintersheimer, J., concurs in result only.
COUNSEL FOR APPELLANTS,
JAY W. VANDERTOLL AND
DR. DONALD J. VANDERTOLL :
Daniel Potts Cherry
Greenbaum, Doll & McDonald, PLLC
3300 National City Tower
Louisville, KY 40202
Thomas E. Powell, II
Greenbaum, Doll & McDonald, PLLC
3300 National City Tower
101 South Fifth Street
Louisville, KY 40202
COUNSEL FOR APPELLEE,
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION DEPARTMENT :
Mary R. Harville
Reed, Weitkamp, Schell & Vice, PLLC
500 West Jefferson, Suite 2400
Louisville, KY 40202
Lynn Katrin Fieldhouse
Reed, Weitkamp, Schell & Vice, PLLC
500 W. Jefferson St., Suite 2400
Louisville, KY 40202-2812
COUNSEL FOR APPELLANT,
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF TRANSPORTATION,
BUREAU OF HIGHWAYS :
Randall Gardner
One Riverfront Plaza, Suite 1100
Louisville, KY 40202
Jeffrey A. Cross
Borowitz & Goldsmith, PLC
One Riverfront Plaza, Suite 1100
Louisville, KY 40202
COUNSEL FOR APPELLEES,
ELMO MARTIN AND MARTHA MARTIN, His Wife:
R . Dale Warren
730 West Main Street, Suite 200, Hart Block Building
Louisville, KY 40202
COUNSEL FOR APPELLANTS,
DON C . KELLY, AS SECRETARY OF
TRANSPORTATION, AND TRANSPORTATION
CABINET, COMMONWEALTH OF KENTUCKY,
AND JERRY ANGLIN, AS COMMISSIONER OF
HIGHWAYS :
Randall Gardner
One Riverfront Plaza, Suite 1100
Louisville, KY 40202
Jeffrey A. Cross
Borowitz & Goldsmith, PLC
One Riverfront Plaza, Suite 1100
Louisville, KY 40202
COUNSEL FOR APPELLEES,
EVERETT R . THOMPSON, JR., AND DEBORAH
T. HARRIS, AS CO-EXECUTORS OF THE ESTATE
OF EVERETT R . THOMPSON :
Charles F . Wilson, Jr.
P .O- Box 408
Pikeville, KY 41502
COUNSEL FOR APPELLEES,
DENNY MOORE AND SOUTHSIDE
REAL ESTATE INVESTORS, INC. :
John R. McGinnis
McBrayer, McGinnis, Leslie & Kirkland
P .O . Box 347
Greenup, KY 41144-0347
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