SARA PARKER AND DUANE PARKER APPELLANTS v. THE LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT APPELLEE

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Court of Appeals of Kentucky.

SARA D. PARKER AND DUANE E. PARKER APPELLANTS v. THE LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT APPELLEE

NO. 2011–CA–000549–MR

Decided: May 04, 2012

BEFORE:  DIXON AND VANMETER, JUDGES;  LAMBERT, Double SENIOR JUDGE. BRIEFS FOR APPELLANT:  Emily C. McKinney Bart L. Greenwald Louisville, Kentucky BRIEF FOR APPELLEE:  John H. Dwyer, Jr. Laurence J. Zielke Louisville, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Sara and Duane Parker appeal from the Jefferson Circuit Court's interlocutory order granting the Louisville and Jefferson County Metropolitan Sewer District (“MSD”) the right to condemn the Parkers' property.   For the following reasons, we affirm.

In early 2010, MSD determined it necessary to reconstruct and operate a sewer and drainage facility on a .459–acre tract of property located at the northwest corner of a 20–acre tract owned by the Parkers.   Following an appraisal, MSD offered the Parkers $137,700 for the .459–acre tract by letter dated March 11, 2010.   MSD informed the Parkers that it would consider any counteroffer with a legitimate basis.   On March 18, 2010, the Parkers responded that they had no counteroffer at the time.   By letter dated April 2, 2010, the Parkers informed MSD they had no intention of selling the property in question.

On April 20, 2010, MSD sent a letter to the Parkers renewing its offer of $137,000 and setting a deadline to accept by May 5, 2010.   The Parkers responded by letter on June 9, 2010, containing a counteroffer of $325,000, along with additional conditions.   In response, MSD requested documentation that supported the counteroffer amount sought by the Parkers, offered to obtain a second appraisal and use the higher appraisal as the basis for future negotiations, and rejected the Parkers' request to “trade” free sewer capacity or connection fees.   MSD did agree to repair or replace affected sections of the Parkers' property and allow the Parkers to provide input on the design of the facility.

A second appraisal obtained by MSD valued the property in question at $37,000.   MSD renewed its offer of $137,700 to the Parkers.   On August 5, 2010, the Parkers withdrew their previous counteroffer.   By letter dated September 9, 2010, MSD reiterated its “last, best and final” offer of $137,700, and set a deadline for acceptance on September 17, 2010.   On September 27, 2010, the Parkers responded with a counteroffer of $914,400.   The underlying condemnation proceedings were then filed by MSD. In an order entered on February 18, 2011, the trial court determined that MSD had the right to condemn the .459–acre tract and had satisfied its obligation to negotiate in good faith the purchase of the tract from the Parkers.   This interlocutory appeal followed.

On appeal, the Parkers argue the trial court erred by determining that MSD had negotiated in good faith to purchase the property.   We disagree.

As an initial matter, this interlocutory appeal is authorized by Ratliff v. Fiscal Court of Caldwell County, 617 S.W.2d 36, 39 (Ky.1981), in which the court upheld a condemnee's right to appeal an interlocutory order which litigated the condemnor's right to take.   Further, when the facts are undisputed, the issue on appeal is the legal effect of those facts;  thus, the question is one of law which we review de novo.  Revenue Cabinet v. Comcast Cablevision of South, 147 S.W.3d 743, 747 (Ky.App.2003) (citations omitted).

Kentucky courts require “the condemnor to negotiate in good faith the acquisition of the property prior to seeking condemnation.”  God's Ctr. Found., Inc. v. Lexington Fayette Urban County Gov't, 125 S.W.3d 295, 300 (Ky.App.2002) (citations omitted).   This requires a determination of

whether the condemnor made a reasonable effort in good faith to acquire the land by private sale at a reasonable price.   The statute implicitly requires an effort to effect a contract of purchase satisfactory to the condemnor.   A single take-it-or-leave-it offer of a manifestly inadequate amount could well evidence a failure to make a reasonable effort to acquire the land by contract of private sale.

Usher & Gardner, Inc. v. Mayfield Indep.   Bd. of Educ., 461 S.W.2d 560, 562–63 (Ky.1970).   However, case law makes it clear that a condemnor is not required to haggle with the condemnee to meet this requirement.  Coke v. Commonwealth, Dep't. of Fin., 502 S.W.2d 57, 59 (Ky.1973).

In Coke, the court discussed the negotiations prior to an action for condemnation, and ultimately determined the condemnor negotiated in good faith.  Id. The court stated,

there was an offer which the landowners rejected.   The evidence showed that efforts to buy the property were made over a substantial period of time, that the state made a legitimate offer, and the landowners flatly rejected it.   The evidence further showed that the landowners had stated on several occasions that they would sell the house alone but would never sell the lot on which the house stood.   The trial judge found that the owners had “indicated that the property was not for sale in fee.”   It is our opinion that there was a good faith effort “to agree with the owner ․ on a price,” which is what the statute, KRS  Double[ ]  56.463(5), requires.

Id.

In the case at bar, similar to the circumstances discussed in Coke, MSD made an offer based on an appraisal of the property in question, which the Parkers rejected.   MSD attempted to purchase the property at different times between March and September 2010.   On several occasions, the Parkers flatly refused to sell the property or present counteroffers.   MSD obtained a second appraisal of the property and amended its offer in accordance with the higher of the two appraisals.   The Parkers ultimately made two counteroffers, the lowest of which was not supported by any documentation other than the Parkers' own assessment of the property's value.   While such testimony can be taken as evidence of the property's value, Commonwealth, Dep't. of Highways v. Brown, 415 S.W.2d 370, 371 (Ky.1967), MSD is free to seek additional support, especially when the lowest counteroffer is nearly $200,000 over the highest appraisal value on record.   Furthermore, no evidence was presented by the Parkers to demonstrate that MSD's offer was unreasonable.   The record supports the trial court's determination that MSD negotiated in good faith to purchase the property from the Parkers. Double

The Jefferson Circuit Court's interlocutory order is affirmed.

ALL CONCUR.

VANMETER, JUDGE: