Bluegrass Pipeline Co. v. Kentuckians United to Restrain Eminent Domain, Inc.

478 S.W.3d 386, 2015 Ky. App. LEXIS 73, 2015 WL 2437864
CourtCourt of Appeals of Kentucky
DecidedMay 22, 2015
DocketNO. 2014-CA-000517-MR
StatusPublished
Cited by12 cases

This text of 478 S.W.3d 386 (Bluegrass Pipeline Co. v. Kentuckians United to Restrain Eminent Domain, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bluegrass Pipeline Co. v. Kentuckians United to Restrain Eminent Domain, Inc., 478 S.W.3d 386, 2015 Ky. App. LEXIS 73, 2015 WL 2437864 (Ky. Ct. App. 2015).

Opinion

OPINION

STUMBO, JUDGE:

Bluegrass Pipeline Company, LLC appeals from an opinion and order of the Franklin Circuit Court which granted summary judgment in favor of Kentuckians United to Restrain Eminent Domain, Inc. (hereinafter referred to as KURED). The order held, among other things, that Bluegrass Pipeline did not have the power to condemn property pursuant to eminent domain. We find no error and affirm.

The trial court in this case set forth a detailed summary of the necessary facts of ■this case; therefore, we will utilize it.
Plaintiff, Kentuckians United to Restrain Eminent Domain, Inc (hereinafter “KURED”) is a non-profit, incorporated under the laws of the Commonwealth of Kentucky, whose purpose is “to protect Kentuckians from the threat of and attempts to exercise eminent domain by entities not in the public service to Kentuckians.” Plaintiff’s Motion for Summary Judgment, p. 4. Defendant, Bluegrass Pipeline Company, LLC (hereinafter “Bluegrass”), is a limited liability company with its principal office in Tulsa, Oklahoma, but with a registered office in Frankfort, Kentucky. Bluegrass is a joint venture of Williams Company and Boardwalk Pipeline Partners which proposes a 24-inch pressurized underground pipeline for transporting natural gas liquids (hereinafter “NGLs”) (a mixture of pentane, propane, butane, isobu-tene, and ethane) from the Marcellus and Utica shale formations in Pennsylvania, West Virginia, and Ohio, to the Gulf of Mexico. Among [389]*389KURED’s members (and also serving on its Board of Directors) is Penny Greathouse, a resident of Franklin County whose property is located along the initial path of the proposed Bluegrass [pipeline]. Ms. Greathouse has been approached by representatives of Bluegrass to survey 'her property for- ■ a potential location of an easement for the pipeline, and has spoken with Rich Ellis on four different occasions in which Mr. Ellis has said that the company has the right of eminent domain,, but did not like to exercise it. Affidavit of Penny Greathouse.
Plaintiff filed this action in Franklin Circuit Court on December S, 2013 seeking a declaration of rights under KRS 418.040 as to the validity of the claim of Bluegrass that it has the power of eminent domain under Kentucky law. Plaintiff seeks a ruling adjudicating the right of Bluegrass to invoke KRS 278.502 [(statute regarding condemnation for the construction of oil and gas pipelines)], KRS 416.675 [(statute defining public use as it relates to the Kentucky Eminent Domain Act)], and KRS 278.470 [ (statute stating that the delivery of natural gas through a pipeline is a public use)] to use eminent domain to condemn properties to install a natural gas liquids pipeline through Franklin County and other counties in Kentucky.

About three months after filing its complaint, KURED moved for summary judgment. A hearing was held on March 10, 2014. On March 25, 2014, the circuit court entered an order which granted summary judgment in favor of-KURED and held that Bluegrass did not have the right to invoke eminent domain. This appeal followed.

The standard of review on appeal of a summary judgment 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. Kentucky. Rules of Civil Procedure (CR) 56.03_ “The record must be viewed in a light most favorable to the party opposing the motion for summary Judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). Summary “judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Steelvest, 807 S.W.2d at 480, citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985). Consequently, summary judgment must be granted “[o]nly when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor_” Huddleston v. Hughes, 843 S.W.2d 901, 903 (Ky.App.1992)[.]

Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.1996). “Because summary judgment involves only- legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court’s decision and will review the issue de novo." Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky.App. 2001). The case at hand does not involve disputed material.issues of fact, only questions of law.

Bluegrass’s 'first argument on appeal is that the circuit court should have refused to issue a declaratory judgment because there was no ripe, justiciable controversy. Bluegrass argues that there is no justiciable controversy because it has not taken any steps to initiate eminent domain proceedings against anyone in Kentucky. Bluegrass claims that until a [390]*390condemnation action is pursued, any controversy is merely speculative.

“Any person ... whose rights are affected by statute ... or who is concerned with any title to property, ... provided always that an actual controversy exists with respect thereto, may apply for and secure a declaration of his right or duties[.]” KRS 418.045. “For a cause to be justiciable, there must be a present and actual controversy presented in good faith by parties with adverse interests in the subject to be adjudicated.” Appalachian Racing, LLC v. Family Trust Foundation of Kentucky, Inc., 423 S.W.3d 726, 735 (Ky.2014).

This issue was raised at the summary judgment hearing before the trial court. The trial court believed that there was justiciable controversy because Bluegrass is claiming that it has the power to condemn property under eminent domain. The court stated that “[pjroperty owners and taxpayers in general have a right to determine whether Bluegrass’s claim is valid because not only does it affect their bargaining position, but it affects their legitimate interests and substantive ‘ rights as citizens when a private company seeks to exercise the sovereign power of condemnation,” The court further held that a

declaration of rights is necessary to determine whether Bluegrass has the right to condemn so that Ms.

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478 S.W.3d 386, 2015 Ky. App. LEXIS 73, 2015 WL 2437864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bluegrass-pipeline-co-v-kentuckians-united-to-restrain-eminent-domain-kyctapp-2015.