Kentucky Utilities Co. v. Brashear

726 S.W.2d 321, 1987 Ky. App. LEXIS 452
CourtCourt of Appeals of Kentucky
DecidedMarch 13, 1987
StatusPublished
Cited by2 cases

This text of 726 S.W.2d 321 (Kentucky Utilities Co. v. Brashear) 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
Kentucky Utilities Co. v. Brashear, 726 S.W.2d 321, 1987 Ky. App. LEXIS 452 (Ky. Ct. App. 1987).

Opinion

CLAYTON, Judge.

This is an appeal from an Estill Circuit Court condemnation award. Kentucky Utilities contends reversible error was [322]*322made in the lower court’s allowance of the Brashears to file untimely exceptions and failure to enter a final judgment as required by KRS 416.620(6). The appellant’s objections to the appellees’ late filing of exceptions preserves this issue for review.

Kentucky Utilities filed this condemnation action on February 13, 1981, pursuant to the Eminent Domain Act of Kentucky for purposes of acquiring an easement for construction of transmission lines across portions of the Brashears’ property. Commissioners were appointed whose subsequent report to the court awarded the Brashears $1,050.00, such sum being the difference between the market value of the entire tract of land immediately before the taking and the market value immediately after the taking. Summons was served on them pursuant to KRS 416.590 and KRS 416.620. The Brashears filed an answer denying Kentucky Utilities’ right to condemn and requesting an evidentiary hearing as required by KRS 416.610(4).

Hearing was held on May 28, 1981. On that same day the court’s findings of fact, conclusions of law and interlocutory judgment granted Kentucky Utilities easement rights and authorized immediate possession. KRS 416.610(4).

On December 9, 1981, Kentucky Utilities filed a motion for a final judgment pursuant to KRS 416.620(6). On December 11, 1981, the court ordered the motion to be continued and granted the Brashears permission to file “any answer or other responsive pleadings within the next twenty days to which the plaintiff (Kentucky Utilities) objects.” On December 28, exceptions to the interlocutory judgment were filed pursuant to KRS 416.620(1), though the 30-day period of subsection 1 between the interlocutory judgment and the filing of exceptions had long expired. The exceptions requested a jury trial on the issue of the amount of compensation to be awarded.

On January 8, 1982, the court set a hearing to be held on February 12 to determine whether the Brashears “received proper notice concerning this action.” On February 12, the hearing was held and order entered on February 26, overruling Kentucky Utilities’ motion for final judgment, permitting the December 28th filing of exceptions pursuant to KRS 416.620(1), and permitting Kentucky Utilities to file its own exceptions without waiving its objections to the December 28th filing. On March 17, Kentucky Utilities filed exceptions containing its continuous objection and demanding a trial on the issue of compensation, alleging the commissioners’ award as excessive.

After a jury trial awarded $10,000.00, judgment was entered on November 26, 1985, ordering recovery of that amount. The circuit court thereafter overruled Kentucky Utilities’ motion to set aside the judgment or for a new trial. It is from the judgment awarding $10,000.00 that this appeal is taken. Appellants request reversal for entry of the final judgment for the amount of the commissioners’ award.

The issue is whether the circuit court had discretion to permit the late filings of exceptions and deny Kentucky Utilities’ motion for final judgment pursuant to KRS 416.620(6), resulting in a jury determination of an award in excess of the commissioners’. We agree that the circuit judge erred.

Kentucky Utilities cites Commonwealth v. Berryman, Ky., 363 S.W.2d 525 (1963), where the Court on its own initiative held that the 30-day time limit for taking an appeal from county court to circuit court under KRS 177.010 et seq. [the predecessor of KRS 416.620] is “subject matter jurisdictional,” therefore it was reversible error for the circuit court to permit a filing of appeal that was two days late. (The county court judgment and circuit court under the former statute are the equivalent of the present statute’s interlocutory judgment and filing of exceptions, respectively). At 526, this Court stated:

The word “jurisdiction” is more easily used than understood. Conceived in terms of power, or effective authority, it may represent policy instead. Applied to questions of time, it is a convenient label to mark a requirement as ultra-mandatory. We think the requirement of KRS 177.087 that an appeal be taken within 30 [323]*323days falls in that category. A fundamental purpose of the statute was to compel each party to speak up within 30 days or forever after hold his peace. The conspicuous absence of provision for additional time in which to cross appeal rather clearly evinces a legislative policy against it.

However persuasive Berryman may be as to a court’s jurisdictional requirements, it is significant to note that under the present statute the interlocutory judgment is entered and exceptions are filed to the same court; therefore, Berryman and its “jurisdictional” language are inapplicable here.

Stidham v. Commonwealth, Ky.App., 579 S.W.2d 372, 374 (1978), affords some guidance under the present Act. There the issue presented was whether the act was complied with where the landowners filed exceptions prior to entry of the interlocutory judgment which was before the 30-day statutory period began to run. In holding that it was, the Court referred to KRS 416.620 as “a limitation statute which prohibits the filing of exceptions at any time after thirty days from the date of interlocutory judgment but does not prohibit the filing of exceptions before the 30-day period.”

In Hagg v. Kentucky Utilities, Ky.App., 660 S.W.2d 680, 682 (1983), the landowners motioned for an extension of time to file their exceptions to the interlocutory judgment several days after the 30 days had expired. In that case the issue concerned what types of issues could be placed in those exceptions, but this Court eluded to its doubt as to the propriety of the judge’s action.

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Related

Hunsaker v. Commonwealth, Department of Transportation
239 S.W.3d 68 (Kentucky Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
726 S.W.2d 321, 1987 Ky. App. LEXIS 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kentucky-utilities-co-v-brashear-kyctapp-1987.