RENDERED: JUNE 5, 2026; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0216-MR
FIELD & MAIN BANK, INC. F/K/A OHIO VALLEY FINANCIAL GROUP, INC., SUCCESSOR BY MERGER AND F/K/A OHIO VALLEY BANK, INC., SUCCESSOR BY CONVERSION TO OHIO VALLEY NATIONAL BANK OF HENDERSON APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT v. HONORABLE KAREN LYNN WILSON, JUDGE ACTION NO. 21-CI-00688
COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS APPELLEE
OPINION DISMISSING APPEAL AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND EASTON, JUDGES.
EASTON, JUDGE: This highway condemnation case presents two important,
procedural questions of first impression. The first question is what the proper procedure is when the condemnor ultimately decides to take a lesser interest after
the right to take the property has been determined. Appellant challenges a
Henderson Circuit Court decision granting Appellee’s motion to amend its
condemnation petition years after the circuit court entered the appealable (but not
appealed) Interlocutory Order and Judgment (IOJ). The amendment changed a
small portion of the property affected, reducing the taking from a fee simple
interest to a temporary easement. The Appellant insists that this change was made
in bad faith and that the circuit court erred in not granting an evidentiary hearing
on its challenge to the amendment. After review of the record and applicable law,
we conclude that the law required the change and that no new hearing was
justified.
The second question is what the proper procedure is when a
condemnee claims an inverse taking has occurred, not because of the property
which is the subject of the petition, but because of traffic flow changes from the
larger project involving other properties. The Appellant here believes that it has
lost reasonable access to its property and should be commensurately compensated.
We conclude that the condemnee may assert this as a counterclaim. In these
circumstances, we dismiss1 this appeal and remand for the determination of the fair
1 A motion panel of this Court previously denied a motion to dismiss this appeal. “This Court retains authority to review decisions on motion panel that do not finally dispose of the case when the case is considered by a full-judge panel to which it is assigned.” Commonwealth Bank &
-2- rental value of the temporary easement ultimately taken as a result of the petition
and for further proceedings to address the inverse condemnation claim.
FACTUAL AND PROCEDURAL HISTORY
Appellee, the Kentucky Transportation Cabinet, Department of
Highways (KYTC) filed a Petition for Condemnation of property owned by
Appellant Field & Main Bank (Bank). This condemnation is part of a project to
design a new interchange between KY 351 and the former US 41 in downtown
Henderson. That project is then part of a larger project to complete the gap
between the northern and southern sections of I-69 and includes building a bridge
across the Ohio River. This section of US 41 essentially becomes part of a new
section of I-69. As it may impact Bank, the work has been completed and the
roads as reconfigured are operational.
Bank’s complaint focuses on how the project changes access from KY
351. KY 351 is known as Zion Road as it enters Henderson and then becomes 2nd
Street as one heads toward the Ohio River. Bank has a drive-thru branch at 1720
2nd Street, and this is the property at issue.
The overall project design involves three roundabouts on KY 351.
The first two roundabouts as one heads toward the Ohio River and approaches
Trust Co. v. Young, 361 S.W.3d 344, 350 (Ky. App. 2012). The issues presented here justified further briefing and oral argument to determine if dismissal of the appeal was proper and to determine the parameters of remand.
-3- Bank’s branch serve to provide access to I-69 (formerly US 41 at that location).
The last roundabout is to the right on 2nd Street as one faces that street from the
front of Bank’s branch. The impact of these roundabouts is that the new traffic
pattern prohibits a left turn across 2nd Street to get into Bank property. But Bank
customers apparently still have access by turning right from 2nd Street and by
turning left onto Franklin Street with a cut-through back to Bank’s 2nd Street
property.
The location of the last roundabout barely touched Bank’s property.
What was needed most was a relatively small temporary easement for the
construction, but KYTC did originally seek 82 square feet in fee simple in addition
to 657 square feet as a temporary easement. Considering the attraction basketball
has in this Commonwealth, the parties offer the dimensions of 82 square feet as
equivalent to one-third the size of a standard free-throw lane on a basketball court.
It might also be described as just about one-half of a single, standard parking lot
space. Literally, the fee parcel was just the very tip of a corner of Bank’s lot. This
tip was not being utilized in any way by Bank and the temporary or permanent
taking of this tip itself in no way impacted Bank’s access to its property.
The court-appointed commissioners determined a total award of
$1,900.00. Despite this assessment, KYTC voluntarily paid $5,800.00 into court.
Bank did not object to the right to take but did not like the highway design and its
-4- impact on access for its customers. It wanted to be heard by KYTC, including
input on details of the work to be done.2
And Bank clearly took exception to the amount of compensation
offered. In March 2022, the trial court entered the IOJ, ruling that KYTC had the
right to condemn the property and allowing it to take possession. Both parties filed
exceptions as to compensation, and the case eventually proceeded to mediation in
an unsuccessful effort to resolve the compensation issue.
After the mediation, KYTC redesigned the interchange to take none of
Bank’s property in fee and filed a Motion to Amend its Petition to take all 739
square feet only as a temporary easement. The circuit court received briefs and
heard arguments before entering an order without conducting an evidentiary
hearing on Bank’s challenge to the amended actual taking. The trial court granted
KYTC’s motion, and the commissioners, after resubmission to them for a new
valuation, returned a value of $2,145.00. This appeal followed. All issues have
been properly preserved, and the parties’ respective briefs comply with the
Kentucky Rules of Appellate Procedure (RAP).
2 While it might be expected that those who take property would consider construction-related concerns of those whose property has been taken and try to work with them, the property owner has no right to dictate any terms of the construction process. See Allard v. Big Rivers Electric Corporation, 602 S.W.3d 800 (Ky. App. 2020). A recent addition as Kentucky Revised Statute (KRS) 416.610(2)(e) requires consideration of access during construction.
-5- STANDARD OF REVIEW
Ultimately, this appeal turns on the propriety of the amendment of the
petition. CR3 15.01 provides that a party may amend his pleading by leave of court
and such leave “shall be freely given when justice so requires.” “While liberality
in granting leave to amend is desirable, the application is addressed to the sound
discretion of the trial judge. [If] abuse of discretion is not shown clearly, the action
of the trial judge will not be disturbed.” Bradford v. Billington, 299 S.W.2d 601,
603 (Ky. 1957) (citations omitted).
The propriety of the amendment in this case is determined by the
authority of KYTC in making condemnation decisions. “Generally, the
condemning body has broad discretion in exercising its eminent domain authority
including the amount of land to be taken.” God’s Center Foundation, Inc. v.
Lexington Fayette Urban County Government, 125 S.W.3d 295, 299 (Ky. App.
2002). The courts will not interfere with a decision as to what property needs to be
taken unless “there has been such a clear and gross abuse of discretion as to
violate Section 2 of the Constitution of Kentucky, which section is a guaranty
against the exercise of arbitrary power.” KYTC v. Vandertoll, 388 S.W.2d 358,
360 (Ky. 1964).
3 Kentucky Rules of Civil Procedure.
-6- ANALYSIS
A review of the law applicable to condemnation actions is essential in
determining whether the amendment was proper. Section 13 of the Kentucky
Constitution provides that private property may be taken only for public use, and
just compensation4 must be paid for what is taken. Section 242 of that same
Constitution then creates a permissible process where possession of the land
involved may be taken after the right to take it has been determined, if payment of
compensation as initially set by commissioners has been secured. As previously
noted, Section 2 of our Constitution also applies because the government may not
exercise its powers in an arbitrary manner.
The Eminent Domain Act of Kentucky (1976) (KRS 416.540 to
416.680) proceeds from these constitutional guarantees. KRS 416.550 contains
two important provisions. First, the property to be taken must be “needed” for the
project. “Under KRS 416.550 the condemnor cannot acquire the property in fee
simple if it can obtain access or use of the property through other privileges or
easements.” City of Bowling Green v. Cooksey, 858 S.W.2d 190, 192 (Ky App.
1992). “[W]hen a governmental unit needs to take a small area out of a larger
4 “Just compensation means a compensation that would be just in regard to the public, as well as in regard to the individual.” Sherrod, infra, at 854 (internal quotation marks and citation omitted).
-7- estate, it should take the least possible interest, such as an easement, so that if the
public purpose for the tract is concluded, it may be reintegrated into the original
estate unburdened by the prior public taking.” Lexington-Fayette Urban County
Government v. Moore, 559 S.W.3d 374, 381 (Ky. 2018).
Second, a condemnation action may not proceed unless it is shown
that the property could not be obtained by reasonable agreement. Public policy
demands that the party seeking to condemn property has exercised good faith in
trying to buy the property. God’s Center Foundation, 125 S.W.3d at 300.
An answer to a condemnation petition is “confined solely to the
question of the right of the petitioner to condemn the property sought to be
condemned[.]” KRS 416.600. The court then determines if the party seeking the
property has the right to take it for a public use. If so, then possession is granted
for the purposes of that use. KRS 416.610. A property owner can appeal the right
to take decision before possession is given and before compensation is decided. A
property owner may file exceptions on the separate issue of compensation.
Ultimately, disputed value is determined by a jury. KRS 416.620.
KRS 416.660 makes it clear that the compensation for a fee interest
taken is to be measured only by the difference between the fair market value of the
property as a whole and the value of the property without the part taken.
-8- Compensation for temporary easements is limited to the fair rental value of the
land subject to such easements.
The 1976 act reflected a body of caselaw, much of which developed
in the 1960’s – a busy time for the building of highway infrastructure, both
nationally and locally. It is important to understand that body of law. The seminal
case during this time was KYTC v. Sherrod, 367 S.W.2d 844 (Ky. 1963). In that
case, our former Court of Appeals abolished the separate concepts of taking and
resulting damages. Loss of business and expense for inconvenience are not
compensable. The only recovery is the difference in fair market value. Id. at 857-
58. In cases of temporary easements, the only compensation is the fair rental
value. KYTC v. Ray, 392 S.W.2d 665, 669 (Ky. 1965).
This is sound public policy. As this Court has said: “Neighborhoods,
traffic patterns, safety requirements, and the like change over time, and
governments must not always be required to compensate a property owner for
every inconvenience or loss of business.” KYTC v. Comer, 824 S.W.2d 881, 884
(Ky. App. 1991).
The crux of Bank’s claim is the overall change in access to their
property, not the impact of the taking or use of the small corner of its property.
We return to Comer, which we note was an inverse condemnation claim:
It is well-settled law in Kentucky that reasonable restriction of access, rerouting of public highways, and
-9- circuity of travel caused thereby are not legally compensable. Clearly, governments must have the authority to grant or deny parking on streets, establish one-way traffic, allow or deny curb-cuts and driveways, erect dividers and safety barriers in streets, and other such things to improve traffic flow and safety.
Comer, 824 S.W.2d at 883 (citation omitted).
We could cite and discuss a dozen cases on the point that alteration of
access to a property is not compensable. A leading case on the subject which cites
many others and has been cited with approval since is KYTC v. Carlisle, 442
S.W.2d 294 (Ky. 1969). Only reasonable access is required. If reasonable access
remains, then no compensation is owed for any degree of change in access whether
by a direct taking of property or an indirect inverse condemnation.
“The question of whether the landowner has been deprived of
reasonable access is a question of law which should be resolved by the court.”
Gibson v. KYTC, 777 S.W.2d 234, 235 (Ky. App. 1989). Any lessening in that
access because of the new traffic patterns is not compensable. Not only is it not
compensable as a separate item, but it is also not permitted to be considered as a
factor in evaluating the difference in fair market value. KYTC v. Denny, 385
S.W.2d 776, 778 (Ky. 1964).
In the present case, there can be no question that Bank still has
reasonable access to its property if we consider only the part of its property
actually the subject of KYTC’s petition. After we further address the procedure
-10- for the amendment to take less of the property, we will return to the question of
procedure for Bank’s essentially inverse condemnation claim.
Against this legal backdrop, Bank raises two issues about the
amendment. The first issue is whether the trial court erred in granting KYTC’s
leave to amend its petition from a taking in fee simple to a taking as a temporary
easement, more than two years after the original IOJ was entered, after
construction was complete, and compensation negotiations had failed. The second
related issue is whether the trial court erred in denying Bank an evidentiary hearing
on the Amended Petition to assess bad faith. We find no error in either decision of
the trial court for reasons set forth below.
CR 15.01 provides that a party may amend his pleading once as a
matter of course at any time before a responsive pleading is served, or by leave of
court. The rule further provides that such leave “shall be freely given when justice
so requires.” Keeping in mind this overarching principle, this Court has recently
summarized considerations for allowing an amendment. Factors include
“‘timeliness, excuse for delay, and prejudice to the opposite party[,]’ . . . as well as
‘failure to cure deficiencies by amendment or the futility of the amendment itself.’”
Hernandez v. County Investments, LLC, 696 S.W.3d 832, 839 (Ky. App. 2024)
(citations omitted). Timeliness alone is not enough of a reason to deny an
amendment. Id.
-11- Bank argues that KYTC’s request for leave to amend was untimely.
At first blush, it might appear to be because it was years after the right to take had
been decided. But this takes the question out of context. The condemnation
process starts with a right to take followed by possession. The taking process is
not completed until compensation is decided. What is eventually, finally taken is a
matter for the compensation part of the equation. An adjustment to what
compensation may be owed is not untimely before compensation has been
determined by the jury.
KYTC has a right to change its plans, and the change of plans may be
considered in the assessment of damages. “[T]he Commonwealth is not obligated
to build according to its original plans or to build at all.” KYTC v. King, 375
S.W.2d 688, 690 (Ky. 1964) (error not to allow Commonwealth to provide
evidence during the compensation trial of changed plans which provided added
drainage facilities). Indeed, the law gives the condemnor eight years to proceed if
it chooses to do so. KRS 416.670(1).
As a project progresses, anticipated or even unforeseen complications
may cause an adjustment to the overall project and thus the need for portions of
individual property actually taken. “Problems of necessity, proper design, but [sic]
utilization of adjoining properties, convenience to the public, saving of expense,
and promotion of traffic safety are matters which must be left to the discretion of
-12- the highway authorities.” Sturgill v. KYTC, 384 S.W.2d 89, 91 (Ky. 1964). See
also KRS 177.020(2) and KRS 177.240.
As a result of the IOJ, KYTC had the right to take a fee simple
interest in this half-parking-space-sized area. To understand the significance of
this, we attorneys return to the first year of law school. When property law is
introduced to students, ownership of property is conceptually explained as a bundle
of rights or a bundle of sticks representing all the various interests in the property.
Fee simple absolute is the whole bundle. Easements are just one stick in the
bundle. This concept comes from the legal scholar, Wesley Newcomb Hohfeld,5 a
professor at Stanford Law School.
When Bank did not challenge KYTC’s right to a fee simple interest in
these 82 square feet, then it also did not object to the taking of any part of that
bundle of sticks. Bank was obligated to appeal when the IOJ was entered, if it had
any objection to the taking of any part of the 82 square feet.
After considering Bank’s challenge to KYTC’s amended petition, the
trial court correctly determined that an IOJ is about the right to take, not about
what is ultimately taken. And because Bank failed to challenge this determination
within thirty days of entry of the IOJ, it lost the right to appeal the right to take.
5 The law lost the potential further contributions of Professor Hohfeld because he died at a young age during the Spanish Influenza pandemic in 1918.
-13- See Hagg v. Kentucky Utilities Co., 660 S.W.2d 680, 681-82 (Ky. App. 1983). The
statement of no objection to the taking with no appeal of the right to take the fee
simple interest also satisfies the elements of judicial estoppel in these
circumstances. See Hisle v. Lexington-Fayette Urban County Government, 258
S.W.3d 422, 434-35 (Ky. App. 2008).
Once an interlocutory judgment establishes the right to take, this
determination is final and immediately appealable. A later amendment that lessens
the interest affects only compensation and does not reopen the right to take phase.
Here, the right to take had long been established, construction had been completed,
and the Amended Petition and resulting order lessening the interest taken did not
revive the opportunity to challenge the right to take or serve as a basis to restart the
appeal process.
In a case involving the Commonwealth’s amendment of its original
petition in a highway condemnation action, wherein the original petition
erroneously described property and the amount of acreage actually taken, the
Kentucky Supreme Court determined that it was an abuse of discretion to deny the
amendment. Hamilton v. KYTC, 799 S.W.2d 39 (Ky. 1990). Hamilton is
distinguishable on its facts, but its general holding still applies. Any change which
-14- does not increase6 what is taken is a matter for the compensation stage because the
interlocutory judgment is final only as to the right to take and enter. Id. at 41.
Here, as contrasted with Hamilton, KYTC did not erroneously request
initially a fee simple interest in the subject 82 square feet portion of land, but
instead it changed the highway design in such a way that a permanent interest was
no longer required. Whether correcting the legal description of property to be
taken or taking a lesser possessory interest in real estate after modification of a
public highway design, these issues concern “just compensation” and not the “right
to take.”
In these circumstances, KYTC sought timely leave to amend its
petition once it concluded that a minor adjustment to the highway design could
reduce its necessary ownership interest in any of Bank’s property. We can find no
prejudice to Bank in retaining permanent ownership interest in its own land. It still
has a right to obtain full and legally allowed compensation for what is finally
taken.
Still, Bank argues that KYTC’s amended petition changed the nature
of the taking from fee simple to something less, which should reopen the window
to challenge the amended taking. At a minimum, Bank thinks it should be entitled
6 We note that KYTC basically concedes that the same may not be said if a condemnor decided it needed a greater interest in the property identified or more property. This would require another taking evaluation, and that question is not presented in this case.
-15- to a hearing on that change. Bank believes that to hold otherwise would
incentivize landowners to challenge every taking initially to prevent the
government from unilaterally changing the taking down the road in a manner that
is “harmful” to the landowner.
Such a belated argument about the right to take less would indicate, if
anything, bad faith by the landowner. The landowner has no right to make the
condemnor take more than is needed. Taking less is not harmful, unless the
landowner simply wants to improperly receive more money from the government
by making it buy land it does not need.
The Kentucky Supreme Court in Moore specifically rejected the
landowner’s attempt to force the Commonwealth to take property in fee simple
instead of a permanent easement. Under the reasoning of Moore, as applied to the
facts of this case, Bank cannot force KYTC to take a greater interest in the land
than is necessary.
One could argue that an amendment was not required, but the better
practice would be to put the pleadings in order before the compensation trial takes
place. CR 15.01 provided the proper mechanism by which KYTC could seek
amendment of its petition to reflect a lesser interest in the exact same area of land
as described in the original petition. The amendment cured an unnecessary level of
taking. It was in no way futile. Ultimately, compliance with the law to take only
-16- what is needed demanded the amendment. In other words, “justice (adherence to
the law) so requires.”
Frustrated with Bank’s compensation demands and near the end of the
construction, KYTC figured out how to make a very slight adjustment to take no
fee interest. Regardless of its motivation, the law required KYTC to take less if
possible. A decision to comply with the law to take less cannot be an exercise of
bad faith as the law applies that concept to initial negotiation before beginning a
condemnation action. Later adjustments to designs in large-scale highway projects
are not uncommon. This type of adjustment to take less should not only be
permitted but encouraged, not punished.
When KYTC decided to take less, it could amend the petition to
indicate this decision. The amendment does not actually alter the IOJ. The IOJ
simply determined the right to take. KYTC had a right to take the fee interest or
the lesser temporary easement interest. The change impacted only compensation.
An amendment which does not increase an interest in property taken
prior to the compensation trial does not result in a newly appealable order. Such
an order merely impacts the compensation process yet to be completed. To hold
otherwise would encourage needless delay in the process with another appeal,
delaying finality through completion of the compensation part of the process.
-17- That part of the equation is subject to a separate appeal process after completion of
the case. The order allowing the amendment was not an appealable order. For
these reasons, we will dismiss this appeal. But the record before us presents
challenges for the remand of this case for its completion.
We finally can get to the real problem Bank has with this situation.
Bank’s contention has always focused on compensation, and that has almost
nothing to do with the small sliver of land which is the subject of KYTC’s petition.
Bank’s real claim is one for inverse condemnation. So, now we must address how
such a claim may be properly made in this case.
Before we move on to this issue, we take a moment to note the
mention of HB7 542 during the oral arguments in this case. Among other things,
this new law specifies process for the pre-litigation attempt to purchase property
before the condemnor may file suit. While HB 542 was enacted with effective date
of April 13, 2026, it has no application to this case. It was not made retroactive by
the General Assembly. See Commonwealth, Dep’t of Agriculture v. Vinson, 30
S.W.3d 162, 168 (Ky 2000) (citing KRS 446.080(3)). “[T]he legal effect of
conduct should ordinarily be assessed under the law that existed when the conduct
took place[.]” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994). Still, it
would behoove any practitioner in the field of condemnation to carefully study the
7 House Bill filed with the Kentucky General Assembly in its 2026 regular session.
-18- changes brought about by this bill, especially the changes to KRS 416.550 and
KRS 416.560.
When a condemnee believes the overall project has caused an inverse
taking, what is the proper procedure to make this claim? We will start with what
Bank had actually said in its pleadings. In its Answer, Bank claimed its rights,
including just compensation and the right to file further pleadings. Specifically,
Bank claimed a deprivation of its right to reasonable access.8 These claims were
restated when KYTC filed its Amended Petition.9 In its exceptions filed, Bank
stated that what KYTC had done “constitutes a total taking.”10
Bank did not file a counterclaim or a separate suit to be consolidated
for the purposes of compensation. Where does that leave Bank as we remand this
case for further proceedings about compensation? One problem is that the statute
of limitations for an inverse condemnation claim is five years. KRS 413.120.
As we stated earlier, the answer filed in a condemnation case is
limited to the right to take the property which the condemnor is seeking in the
petition, but KRS 416.590 also envisions “an answer or other pleading.” And all
proceedings “shall be governed by the provisions of the Rules of Civil Procedure
8 Trial Record (TR) at 37-38. 9 TR at 235. 10 TR at 89.
-19- except where the provisions of KRS 416.550 to 416.670 specifically or by
necessary implication provide otherwise.” KRS 416.650.
A counterclaim has been allowed in a condemnation proceeding.
Bianchi v. City of Harlan, 274 S.W.3d 368 (Ky. 2008). This Court has also
recently ruled that a counterclaim was unnecessary when the claim of loss of
access resulted from the loss of the property actually taken as a result of the
petition. Bowling v. KYTC, No. 2024-CA-1361-MR, 2025 WL 3558691 (Ky. App.
Dec. 12, 2025). That was just a matter for compensation. But here the loss of
access is from alterations to other property in the vicinity.
KYTC and Bank have both presented alternative “parades of
horribles” however we rule on their competing arguments. KYTC in particular
suggests that everyone will file counterclaims for inverse condemnation in every
case. If they do so improperly, they will face CR 11 sanctions. But, in the unique
circumstances of the present case, Bank may actually have a claim for inverse
condemnation because of the overall effect of the project on its property.
On remand, the circuit court will have to move this case forward to
the compensation determination. That court may be called upon to determine
whether an omitted counterclaim should be allowed under CR 13.08. In this
analysis, the fact that Bank has consistently argued about a total taking shows that
KYTC has clearly had notice of the claim. If justice requires the amendment to the
-20- KYTC’s petition, then justice may require an amendment to the pleadings on the
other side of the case too. We do not decide this. This should be thoroughly
evaluated by the circuit court.
In making this evaluation, the circuit court is reminded of how futility
may impact the decision about allowing a counterclaim at this point. The question
of reasonable access has not yet been decided by the circuit court, and this is a
legal question. The parties should have the opportunity to present evidence and
arguments on this issue before that decision is made. But the standard is the same
for condemnation or inverse condemnation. The level of impairment of access
necessary to show a “total loss” (to use Bank’s wording) is a high burden. If Bank
cannot make that showing, an amended or new pleading would be futile. Still, the
claim about reasonable access has to be evaluated, one way or the other, before the
compensation aspect of this case can finally proceed.
CONCLUSION
Finding no errors in the Order granting Appellee KYTC’s Motion to
Amend and no error in the failure to hold an evidentiary hearing on the issue of the
right to take under the Amended Petition, this appeal is DISMISSED, and the case
is REMANDED for jury trial on the issue of compensation. On remand, the circuit
court must determine whether any further amendment or new pleadings will be
allowed. In any event, the question of lack of reasonable access must be evaluated
-21- as a matter of law. If that issue does not survive for evaluating compensation, the
trial in this matter is limited to the fair rental value of the small temporary
easement taken as a result of the petition.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF AND ORAL ARGUMENT FOR APPELLEE: G. Michael Schopmeyer Patrick C. Thomas Kerry D. Smith Evansville, Indiana Paducah, Kentucky
Jon A. Woodall Lexington, Kentucky
ORAL ARGUMENT FOR APPELLANT:
John A. Woodall Lexington, Kentucky
-22-