Gary L. Blackwell v. Michael L. Mott ( 2021 )

RENDERED: AUGUST 20, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1504-MR
GARY L. BLACKWELL AND CAROL APPELLANTS
A. BLACKWELL1
APPEAL FROM MARSHALL CIRCUIT COURT
v. HONORABLE JAMES T. JAMESON, JUDGE
ACTION NO. 19-CI-00330
MICHAEL L. MOTT; CHERYL A.
MOTT; DADRA LEE WORK; AND
WILLIAM VAUGHN WORK, JR. APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
1
We note that Appellants’ notice of appeal is captioned as “GARY L. BLACKWELL, as
Trustee of Gary Blackwell Revocable Living Trust AND CAROL A. BLACKWELL, as Trustee
of the Carol A. Blackwell Revocable Living Trust.” However, the body of the notice refers to
appellants as “Gary L. Blackwell and Carol A. Blackwell.”
KRAMER, JUDGE: Appellants Gary and Carol Blackwell (collectively
“Blackwell”) appeal an order of the Marshall Circuit Court dismissing their
complaint in its entirety. Upon careful review, we affirm.
Blackwell owns real property identified herein as Lot 33 in the Sledd
Creek Subdivision near the Kentucky Lake in Marshall County, Kentucky.
Appellees Michael and Cheryl Mott (collectively “Mott”) own Lot 30 in the same
subdivision. Appellees William and Dadra Work (collectively “Work”) own Lot
31. It is undisputed that each party’s deed contains language granting “the right of
ingress to and egress from the waters of Kentucky Lake over and upon the
adjoining land lying between the 375-foot contour elevation and the waters of the
lake.” The land between the 375-foot contour elevation and the waters of the
Kentucky Lake is property of the Tennessee Valley Authority (“the TVA”).2
In September 2017, Mott received approval from the TVA to build a
dock/pier and ramp on Kentucky Lake. In March 2019, Work received approval
from the TVA to build the similar structures on Kentucky Lake. In September
2019, Blackwell filed the underlying complaint in circuit court, alleging trespass
by Mott and Work and seeking both injunctive and declaratory relief. Mott and
Work filed a motion to dismiss for lack of jurisdiction and failure to state a claim
2
“TVA property means real property owned by the United States and under the custody and
control of TVA.” 18 Code of Federal Regulations (“C.F.R.”) § 1304.412.
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upon which relief could be granted. The parties briefed the matter, and an order
was entered dismissing Blackwell’s claim of trespassing and any violation of
federal law. The order also instructed Blackwell that the TVA was a necessary
party to the claim that placement of the piers/docks violated Blackwell’s right to
ingress or egress and, if the TVA was not joined as a defendant within thirty (30)
days, the matter would be dismissed in its entirety. Blackwell appealed the order
of partial dismissal to this Court, but the appeal was dismissed for failure to appeal
from a final and appealable order.3 When Blackwell failed to name the TVA as
defendants, the circuit court dismissed the action. This appeal followed. Further
facts will be developed as necessary.
Blackwell argues the circuit court erred by holding the TVA must be
joined as a party. They also assert that they, not Mott or Work, own “an adequate
property interest in land immediately joining the land where Appellees installed
their docks.” We disagree with both arguments.
We first note procedurally that, although Mott and Work styled their
motion to dismiss as pursuant to CR4 12.02 and the circuit court treated it as such,
it was clearly a motion for summary judgment pursuant to CR 56. Thus, the
substance of the order dismissing was also that of summary judgment. Matters
3
See Kentucky Court of Appeals Case Number 2020-CA-1113.
4
Kentucky Rule of Civil Procedure.
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outside of the record were presented by the parties both in support of, and in
opposition to, the motion to dismiss that were not specifically excluded by the
circuit court. See CR 12.03;5 Craft v. Simmons, 777 S.W.2d 618, 620 (Ky. App.
1989).6 However,
we regard it as of little moment that the trial court failed
to clearly distinguish between motions to dismiss for
failure to state a claim and motions for summary
judgment. Manifestly, CR 12.03 contemplates a
relationship between these procedural vehicles and
contemplates that a motion for judgment on the pleadings
may be treated as one for summary judgment and
disposed of in that manner . . . . As stated hereinabove,
the trial court applied the undisputed facts to what it
believed to be the law with the result being that
[Appellees were] determined to be entitled to summary
judgment.
Hoke v. Cullinan, 914 S.W.2d 335, 338 (Ky. 1995).
In other words, even if the circuit court had treated it as a motion for
summary judgment, the end result would be the same (i.e., dismissal of
Blackwell’s claims).
5
CR 12.03 states, “[a]fter the pleadings are closed but within such time as not to delay the trial,
any party may move for judgment on the pleadings. If, on such motion, matters outside the
pleading are presented to and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided for in Rule 56, and all parties shall be given
reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.”
6
In its motion to dismiss, Appellees submitted the Section 26a building permits issued by the
TVA, as well as maps and photos. In its response, Appellants also included photos, a survey,
various maps, the TVA permits, and at least one set of construction plans for a boat dock.
Appellants also submitted the applicable federal regulation.
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When a trial court grants a motion for summary judgment, the
standard of review for the appellate court is de novo because only legal issues are
involved. Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App.
2004). We must consider the evidence of record in the light most favorable to the
non-movant (i.e., Blackwell) and determine whether the circuit court correctly
found there was no genuine issue as to any material fact and that the moving party
was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 780
(Ky. App. 1996).
Summary judgment is appropriate where “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
movants bear the initial burden of demonstrating that there is no genuine issue of
material fact in dispute. The party opposing the motion then has the burden to
present “at least some affirmative evidence showing that there is a genuine issue of
material fact for trial.” Steelvest Inc. v. Scansteel Service Center, Inc., 807 S.W.2d
476, 482 (Ky. 1991). A party responding to a properly supported summary
judgment motion cannot merely rest on the allegations in his pleadings.
Continental Casualty Co. v. Belknap Hardware & Manufacturing Co., 281 S.W.2d
914 (Ky. 1955).
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We now turn to Blackwell’s arguments, which we address
simultaneously. Looking to the complaint filed in circuit court, Blackwell asserts
numerous times that the docks were constructed on their property, rather than that
of the TVA. For example, paragraph 22 states, in reference to their trespassing
claim, “in coming on the Blackwell [p]roperty, digging, cutting trees and bushes,
taking landscaping, and attempting to attach boat docks constitute a trespass on
[Blackwell’s] property, and the continued existence of docks or dock material on
the Blackwell controlled property is a continuing trespass.” (Emphasis added.)
Paragraph 25, in reference to the request for injunctive relief, states, in relevant
part, “[Mott’s and Work’s] actions in trespassing, encroaching and attempting to
erect boat docks on [Blackwell’s] [p]roperty substantially interferes with
[Blackwell’s] rights of ownership.” (Emphasis added.) Further, paragraph 28
states that Blackwell “seek[s] a temporary and permanent injunction against [Mott
and Work] from constructing or attempting to construct boat docks on the
Blackwell [p]roperty . . . .” (Emphasis added.) However, in their brief to this
Court, Blackwell acknowledges numerous times that the docks were indeed built
on TVA property. For example, on page 2 of their brief to this Court, Blackwell
acknowledges “[o]n September 26, 2017, the Motts obtained a Section 26a permit
from the TVA providing approval to construct a dock on TVA land.” (Emphasis
added.) On page 4 of their brief, Blackwell states that, “the [c]omplaint was filed
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in order to seek the court’s determination of certain real property rights that serve
as a basis for Appellees’ applications to place docks on TVA land.” (Emphasis
added.) As a result of these inconsistencies, Blackwell’s arguments are both
perplexing and unpersuasive.7
Blackwell states that they are “ask[ing] for an order declaring the
property rights of the Appellants and Appellees that may be submitted to the TVA
to challenge Appellees’ dock permits.”8 We agree with the circuit court’s
reasoning that the true issue here is that Blackwell wants the docks removed from
what is TVA property. To wit,
[Blackwell] correctly assert[s] state courts have authority
to resolve property disputes including determining the
scope of easements. However, this Court did not dismiss
[Blackwell’s] claims with regards [sic] to the rights of
ingress or egress based on a factual determination of the
easement(s)’ scope. Rather, this Court is unable to order
removal of the docks as requested by [Blackwell],
without TVA being joined as a party, because the docks
are not located on the property of the Parties but are
located on property controlled by and belonging to TVA.
See Browning v. Preece, 392 S.W.3d 388, 391 (Ky.
2013).
7
Blackwell cites an unpublished memorandum and recommendation from a United States
Magistrate Judge. To wit, Reynolds v. Amundsen, 1:15-CV-185-MR-DCK, 2016 WL 11482357(W.D.N.C. Feb. 1, 2016). The recommendation was later accepted by the federal district court.
Reynolds v. Amundsen, 1:15-CV-00185-MR-DCK, 2016 WL 727216 (W.D.N.C. Feb. 23, 2016).
Reynolds is distinguishable because the docks at issue were built on private land, not TVA
property. There was a real property dispute between the parties for that reason, and the case was
dismissed from federal court for lack of subject matter jurisdiction.
8
See Appellants’ brief, page 5.
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The circuit court goes on to add a footnote which states, “[a]ny order in favor of
[Blackwell], in essence, would be based on a conclusion that TVA lacks authority
to construct docks in the same location or manner as those of Defendants.” We
agree.
Therefore, even if the circuit court issued an order declaring the
property rights of Blackwell, Mott, and Work, without the TVA added as a party, it
would not resolve the issue at hand.
The existence of an actual controversy respecting
justiciable questions is a condition precedent to an action
under the [Declaratory Judgment Act]. The court will
not decide speculative rights or duties which may or may
not arise in the future, but only rights and duties about
which there is a present actual controversy presented by
adversary parties, and in which a binding judgment
concluding the controversy may be entered.
Foley v. Commonwealth, 306 S.W.3d 28, 31 (Ky. 2010) (emphasis added)
(citations omitted).
Moreover, Blackwell’s arguments around removal of the docks are
based in reliance on 18 C.F.R. § 1304.2 which, as the circuit court correctly
determined, it is without jurisdiction to review. The TVA issued permits to build
the docks to Mott and Work, presumably in reliance on this federal regulation.
Blackwell now wishes to challenge the building of the docks as a result of issuance
of those permits and in accordance with the federal regulation. Kentucky’s highest
court has long recognized the TVA as a federal agency. See City of Middlesboro v.
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Kentucky Utilities Co., 284 Ky. 833, 146 S.W.2d 48, 52 (1940). A state court does
not have jurisdiction over a federal agency. Commonwealth v. Hamilton, 411
S.W.3d 741, 746 (Ky. 2013). Federal courts have exclusive jurisdiction to review
federal agency actions under the Administrative Procedures Act. Western &
Southern Life Ins. Co. v. Smith, 859 F.2d 407, 409 n.4 (6th Cir. 1988).
Blackwell’s attempt to frame the matter as merely a property rights
dispute between the named parties is without merit. The circuit court was correct
that any real property dispute could not be resolved without naming the TVA as a
party. Furthermore, the arguments made by Blackwell are inextricably intertwined
to whether the TVA issued the permits to Mott and Work pursuant to 18 C.F.R. §
1304.2. That is a matter for the federal courts to decide.9 Accordingly, the order
of the Marshall Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
E. Frederick Straub, Jr. Jeffrey G. Edwards
Matthew S. Eddy George M. Carter
Paducah, Kentucky Benton, Kentucky
9
The circuit court also correctly points out that 18 C.F.R. § 1304.6 sets out the procedure for
appealing permitting decisions of the TVA.
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