Recent Firm Highlights & News
The US District Court, Eastern District of Kentucky, issued a Memorandum Opinion and Order on March 15, 2018, in the case of Norton v. Paul Loether, Keeper of the National Historic Register of Historic Places, case 17-351-DCR, that continues the ten year legal efforts of property owners to challenge the National Park Service (and Commonwealth of Kentucky, State Historic Preservation Office) over its arbitrary and capricious agency regulations for listing property on the National Historic Registry. This Opinion is another significant forward step for the property owners after several years of favorable rulings from the Kentucky state courts.
In Commonwealth v. Ronald Exantus, Woodford Circuit Court, case 15-CR-00090, Special Judge Phil Patton issued an Amended Order Regarding Media Coverage on March 2, 2018, at the request of Intervening Plaintiff, Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader, which allows for and clarifies the media coverage for the trial being conducted in the Fayette Circuit Court building.
On February 13, 2018, a prominent and successful Arabian horse trainer defeated allegations he wrongly shanked a horse under his control at a show. Charges were filed with the United States Equestrian Federation against Michael Byatt by an official at the 2016 Arabian National Championship horse show, alleging he improperly shanked a horse just prior to taking him into the show ring. After a lengthy hearing, the Hearing Panel unanimously concluded there had been no wrongdoing and dismissed all charges. Mr. Byatt shows horses all over the world and has a national and international reputation as an outstanding horseman and a proponent of the humane treatment of horses. We were very pleased to have assisted Mr. Byatt in obtaining this just resolution. Read the February 13, 2018, Findings and Decision.
Review various pleadings and documents from the Andover Golf Course litigation, including Ball Homes, Inc and Lochmere Development Corporation v. Whitaker Bank and related cases. Click here.
NEW: The Court of Appeals entered an order on February 23, 2018 which dismisses as moot both CR 65.07 Motions filed by Whitaker (to challenge the temporary injunction) and Ball/Lochmere (to challenge the $1 Million bond amount). The Court held that because the trial court dismissed “the claims underlying the temporary injunction” by order on October 17, 2017, the motions are moot. See the Order dismissing.
The Court of Appeals relies upon an October 17, 2018, order, though that order does not appear to address anything related to what the Court of Appeals relies upon for its ruling and dismissal of the CR 65.07 motions. Possibly, the court was referring to an October 18, 2018 Judgment, a copy of which is attached, which dismisses Ball/Lochmere as not having standing. For a complete understanding of the basis for the Judgment dismissing the developers as not having standing, one must read the trial court’s September 22, 2017, Findings of Fact and Conclusions of Law which addresses the standing of Ball/Lochmere and holds that they do not have the a legitimate interest in seeking enforcement of the express restriction nor do they have a legal duty or obligation to do so, and therefore they do not have standing to enforce the purported express restrictive covenant.
On February 14, 2018, at 9:00 a.m., the Fayette Circuit Court, 3rd Division, held a lengthy hearing during which he ruled from the Bench on the pending cross motions asking for the court to rule on whether the golf course restriction is valid and enforceable. The court held that there is an “implied servitude” on the golf course property including on all parties in the controversy, to maintain the golf course property as a golf course, or such other definition decided by the HOA’s, the bank, AGCC (current title owner) and the homeowners. The Court declined at this time to further ‘define’ this modification (or lessening) of the restriction. Thus, the Court sustained the pending motion of the HOA’s and denied the motion of Whitaker Bank. It is a non-final, non-appealable order because it is interlocutory. The Court noted the frustration of all parties and property owners from the failure of the Court of Appeals to timely address the CR 65.07 motions related to the Temporary Injunction issues in June 2017, and the associated $1 Million Dollar bond required by the Court to be posted before the injunction is triggered.
The order from the February 14, 2018, hearing, finding the implied servitude on the real property, was entered on February 16, 2018. It is interesting in that the written order (prepared by counsel still involved in the case) appears to be somewhat different than the Court’s verbal ruling from the Bench.
At the hearing the Court verbally addressed the newest twist presented by numerous HOA’s (but not the estates section HOA) requesting the Court enter an order that authorizes the HOA’s to make capital calls of all property owners to raise money to buy the golf course property from Whitaker, and further for the Court to approve future monthly assessments to maintain the property as merely “green space” — not to be operated as a golf course. The Court did not directly rule on the issue but stated for the benefit of the property owners present for the hearing that Kentucky law does allow HOA’s to assess its members.
PREVIOUSLY: On December 13, 2017, the Fayette Circuit Court was to address the motion for summary judgment filed by Whitaker Bank which attempts to eliminate the obligation for the property to be used as a golf course, and cross motions for summary judgment filed by various HOA’s and various property owners. The Estates section HOA brought in new counsel (Rich Getty) and several property owners were represented by Eric Case. It is anticipated that they will support the property remaining a golf course though there are several HOA’s (represented by Nathan Billings) that have been seeking to eliminate the obligation for the property to be used as a golf course. That hearing was continued by the court based upon Whitaker and the HOAs agreeing to participate in a mediation on January 4. (The Circuit Court had previously dismissed Ball and Lochmere from the cases based on lack of standing). The mediation was conducted but was unsuccessful. That resulted in return to court January 25, 2018, for determination on the legal issues. That hearing was fairly lengthy with well over a hundred property owners in attendance. The court gave great consideration to the matters before it, expressed some concerns that we have not yet received rulings from the Court of Appeals on the dueling cross motions (under CR 65.07) related to the temporary injunction and the amount of the injunction bond from last summer, and the appeal filed in May by Ball and Lochmere to the underlying foreclosure ruling in favor of Whitaker and sale of the proeprty from April 2017. As a result, the court continued the hearings to February 13, 2018, and indicated that he would rule from the Bench on issues at that time.
BEHR PROPERTIES, LLC, THE BEER TRAPPE, INC. AND BEHR ENTERPRISES, LLC V. ASHLAND PROPERTIES, ET AL., 2017-CA-1155, September 20, 2017. The Court of Appeals denied Behr’s request to dissolve the injunction entered in favor of Ashland Properties and other defendants by Judge Goodwine in the Fayette Circuit Court. The injunction prohibits Behr and the other plaintiffs from trespassing on the defendants’ property. See the Court of Appeals Order Denying Motion for Interlocutory Relief; and see the Fayette Circuit Court’s June 27, 2017, Temporary Injunction.
Don Pisacano was successful at the Kentucky Supreme Court in a case involving application of an insurance policy provision to the collapse of a structure caused by termite damage. Read the Thiele v. Kentucky Growers Insurance, 2015-SC-158, June 15, 2017, Opinion.