RENDERED: APRIL 28, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0764-MR

ED WALTON APPELLANT 

v. 

APPEAL FROM KNOX CIRCUIT COURT

HONORABLE MICHAEL O. CAPERTON, JUDGE

ACTION NO. 04-CI-00148

CHARLENE SUE KING, AS THE 

ADMINISTRATRIX OF THE ESTATE 

OF EARL CARTER; AND KNOX 

COUNTY FISCAL COURT APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

JONES, JUDGE: Ed Walton appeals from the May 26, 2022 order of the Knox 

Circuit Court granting summary judgment in favor of Knox County Fiscal Court 

(“Knox County”) and Charlene King, as the Administratrix of the Estate of Earl 

Carter (“King”). For the reasons more fully explained below, we affirm.
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I. FACTUAL AND PROCEDURAL BACKGROUND 

This action has been on the circuit court’s docket for nineteen years, 

and this is the second appeal. In an unpublished opinion, a prior panel of this 

Court summarized the relevant facts as follows:

A road in Knox County, commonly referred to as 

J. Goodin Branch Road, is at the heart of this dispute. 

The road clearly exists. It was originally constructed in 

the 1970s and originates at U.S. 25 in Knox County. The 

question is: where does J. Goodin Branch Road end?

In 2000, Knox County paved J. Goodin Branch 

Road, at least in part, starting at U.S. 25 and ending at a 

house belonging to Beulah and Bazel Smith, Earl 

Carter’s predecessors in title. The Smiths later sold the 

land to Carter in 2002 (Carter Tract). Today, there exists 

a gravel school bus turnaround where the paved road 

terminates on the Carter Tract. Beyond that point, the 

record suggests the alleged road is made up of dirt and 

grass.

Walton owns property adjacent to the Carter Tract 

(Walton Tract). He does not reside there. In fact, no one 

has lived on the Walton Tract since 1972. The only 

means of access to the Walton Tract, according to 

Walton, is J. Goodin Branch Road.

Walton has long proclaimed, since the early 1990s, 

in fact, that J. Goodin Branch Road is an official county 

road that extends through the Carter Tract all the way, 

and into, the Walton Tract. The Smiths, and later Carter, 

disagreed; at various times they blocked the road by 

means of a gate, preventing Walton from accessing his 

land. Carter claims, and before him the Smiths claimed, 

that the road terminates at the school bus turnaround 

point – where the paved portion ends.
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Walton filed suit against Carter in 2004, requesting 

that the circuit court find J. Goodin Branch Road is a 

county road that passes across the Carter Tract and ends 

at or on the Walton Tract. Walton amended his 

complaint several times, adding additional defendants, 

including Knox County, but his cause of action did not 

change. The case lingered for several years, culminating 

in a bench trial on September 21, 2011. At the close of 

Walton’s case-in-chief, the circuit court allegedly issued 

a verbal order dismissing Walton’s claim of a county 

road. It also entered a written order dismissing Knox 

County as a party.

Then, for the first time, the issue of whether 

Walton might be afforded access by way of an easement 

by necessity arose. The circuit court granted Carter’s 

motion to recess the trial to investigate the claim.

Neither party requested that the trial recommence. 

Instead, on January 18, 2012, Carter filed a motion for 

summary judgment on the easement issue. The circuit 

court granted his motion by order entered July 9, 2012, 

finding no evidence of either unity of title of the two 

tracts, or severance of that unity, if it indeed existed.

Walton filed a [Kentucky Rules of Civil Procedure 

(“CR”)] 59.05 motion to alter or amend the judgment, 

arguing he is entitled to access to his property as a matter 

of right – not by means of an easement – by way of an 

official county road, and the circuit court failed to 

address the county-road issue in its judgment. By order 

entered August 13, 2012, the circuit court overruled 

Walton’s motion, stating:

Following the Court’s oral rulings at the 

bench trial, the issue of the easement was 

the only remaining question to be ruled 

upon.
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[Walton] contends that because the Court 

did not specifically address the issue of 

whether J. Goodin Branch Road extends to 

his property in the prior order granting 

judgment in favor of the [Estate], that the 

issue was not addressed. However, this 

issue was resolved following the admission 

of evidence at trial in an oral ruling. The 

Court sees no reason to disrupt that prior 

ruling.

Walton v. Lawson, No. 2012-CA-001550-MR, 2016 WL 3661939, at *1-2 (Ky. 

App. Jul. 1, 2016) (footnotes omitted).

 This Court affirmed the circuit court’s finding that there was no 

easement of necessity but reversed and remanded for the circuit court to enter 

“written findings of fact, legal conclusions, and a judgment related to Walton’s 

claim that a county road extends to his land.” Id. at *4. On remand, the circuit 

court allowed Walton to file an amended complaint, which brought Knox County 

back into the lawsuit. Discovery commenced yet again and Walton propounded 

requests for admissions upon Knox County on September 25, 2017. Knox County 

filed its responses on December 13, 2017. There is no question the responses were 

not filed within the thirty (30)-day time limit pursuant to CR 36.01. However, 

Walton did not file a motion to compel, a motion to quash, or otherwise bring 

Knox County’s untimeliness to the circuit court’s attention prior to filing a motion 

for summary judgment. 
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 In July 2019, King filed a motion for summary judgment. Both 

Walton and Knox County filed similar motions in the months that followed. It was 

at that point Walton argued for the first time that Knox County’s failure to timely 

respond resulted in admissions pursuant to CR 36.01 (i.e., approximately two years 

after the responses were filed). On May 26, 2022, the circuit court granted 

summary judgment in favor of King and Knox County.1 This appeal followed.

II. STANDARD OF REVIEW

 “Our standard of review in matters involving a trial court’s rulings on 

evidentiary issues and discovery disputes is abuse of discretion.” Manus, Inc. v.

Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 8 (Ky. App. 2006). 

III. ANALYSIS

 The issue before us on appeal is very narrow: Did the circuit court err 

by not deeming Knox County to have admitted Walton’s requests for admissions 

by virtue of the fact that Knox County did not submit its responses in a timely 

manner? Of course, if we answer this question in the affirmative as Walton urges,

the implication is Knox County will have admitted the road at issue is a county 

1

In granting summary judgment on remand, the circuit court noted that the prior panel of this 

Court “did not find that there was insufficient evidence in the record for [the circuit court] to 

make a [summary judgment] ruling.”
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road that extends and permits access to, Walton’s property.2 However, we discern 

no error. 

 The circuit court found Walton’s argument was without merit. To wit,

As previously noted herein, Knox County Attorney 

Gilbert Holland filed an Answer to Plaintiff’s Requests 

for Admissions in December 2017, wherein Knox 

County’s position that the county road at issue does not 

extend onto Walton’s property was reiterated. This was a 

reiteration of the county’s position throughout the fifteenyear history of this matter, a position which has not 

changed – as can also be said of [Walton] and the other 

parties in this matter.

Accordingly, this Court does not find that [Walton’s] 

allegations are “deemed admitted” by [Knox County], 

and indeed notes that as our Kentucky Supreme Court 

has previously held, when a County has “otherwise 

defended” an action, default is improper. Lexington 

Fayette Co. Food & Bev. Ass’n v. Lexington Fayette 

Urban Co. Govt., 131 S.W.3d 745, [756-57] (Ky. 2004). 

Accordingly, the Court turns to an analysis of the 

substantive issue before it.

 The record before us shows Knox County has been a party to this 

action since 2008.3 In January 2009, Knox County filed its answers to 

interrogatories propounded by Walton. In doing so, it denied any plans to create 

2

“The penalty for failure to respond is that the matters are deemed admitted, not entry of 

judgment against the non-responding party.” Brown v. Kentucky Lottery Corp., 891 S.W.2d 90, 

91 (Ky. App. 1995).

3 An order was entered on September 18, 2007, granting Walton’s motion to add Knox County 

as a party; however, Walton did not follow through with service on Knox County until 2008.
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and maintain a county roadway on the Carter property and denied that it has ever 

maintained a roadway beyond the gravel school bus turnaround on the Carter 

property. This has been Knox County’s position throughout the underlying

litigation. It participated in the 2011 trial, and the directed verdict in its favor was 

the basis of Walton’s first appeal. Upon remand from this Court in 2016, Knox 

County’s position did not change, even though its responses to Walton’s requests 

for admissions were filed outside of the 30-day time limit imposed by CR 36.01.

 CR 36.01(2) states, in relevant part, that “[e]ach matter of which an 

admission is requested shall be separately set forth. The matter is admitted unless, 

within 30 days after service of the request, or within such shorter or longer time as 

the court may allow[.]” (Emphasis added.) In other words, “the trial court retains 

wide discretion to permit a party’s response to a request for admissions to be filed 

outside the 30 or 45-day time limit delineated by the rule.” Harris v. Stewart, 981 

S.W.2d 122, 124 (Ky. App. 1998). Although Walton never filed a motion to 

compel and Knox County never filed a motion asking for more time to file its 

responses, the circuit court effectively granted Knox County an extension of time 

and doing so was well within its discretion. Walton essentially argues the 30-day 

limit is a bright line rule with no flexibility, but such a position is contrary not only 

to the plain reading of the rule, but also to published caselaw. Moreover, Walton 

has never argued that the delayed responses resulted in any prejudice to 
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presentation of his case. Id. at 125.4 Indeed, as the circuit court noted, Knox 

County has steadfastly maintained that the county road does not extend past the 

Carter tract throughout this very long litigation. We do not appreciate any 

prejudice to Walton in the presentation of his case by allowing Knox County to 

answer the requests out of time. Therefore, we cannot conclude that the circuit 

court abused its discretion over the discovery process when it refused to deem the 

requests admitted based on the late responses.5 

IV. CONCLUSION

 For the reasons stated herein, the order of the Knox Circuit Court is 

affirmed. 

ALL CONCUR.

4

Interestingly, as King points out in her brief to this Court, Walton failed to respond to her 

requests for admissions within thirty days pursuant to CR 36.01. If the circuit court followed the 

rule as stringently as Walton insists is proper, King’s requests would be deemed admitted by 

Walton, and in direct contradiction to what Walton argues was admitted by Knox County. “The 

rule of law should, in the interest of justice and fairness, cut both ways since ‘what is sauce for 

the goose is sauce for the gander.’” Borders Self-Storage & Rentals, LLC v. Transportation

Cabinet, Department of Highways, 636 S.W.3d 452, 456 (Ky. 2021).

5 We appreciate the circuit court’s analogy to not granting a default judgment in an action the 

government “otherwise defended” pursuant to Lexington Fayette County Food and Beverage 

Ass’n, supra. However, the law cited by the circuit court was merely analogous and not onpoint. Nevertheless, an appellate court is permitted to “affirm a correct result upon any ground 

supported by the record.” Wells v. Commonwealth, 512 S.W.3d 720, 722 (Ky. 2017). 
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BRIEF FOR APPELLANT:

Matthew J. Baker

Bowling Green, Kentucky

BRIEF FOR APPELLEE KNOX 

COUNTY FISCAL COURT:

Jason E. Williams

London, Kentucky

BRIEF FOR APPELLEE 

CHARLENE SUE KING:

John M. Gambrel

Pineville, Kentucky