RENDERED: APRIL 28, 2023; 10:00 A.M. NOT TO BE PUBLISHED 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 o f the Estate of Earl

Carter (“King”)

. For the reasons more fully explained below, w e affirm.- 2

- I. F ACTUAL AND P ROCEDURAL B ACKGROUND
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 In an unpublished opinion, a prior panel of this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 bel onging to Beulah and Bazel Smith, Earl Carte r’ 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 p oint, 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 t he 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.- 3

- 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 necess ity 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 count y 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 easemen t was the only remaining question to be ruled
upon.- 4

- [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], tha t 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 jud gment 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 Co unty

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 Count y’s untimeliness to the circuit court’s attention prior to filing a motion

for summary judgment

.- 5

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

Walton and Knox County filed similar motions in the months that followed. I t 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 judgme nt in favor of King and Knox County. 1 This appeal followed.

II. S TANDARD OF R EVIEW

“ 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. A NALYSIS

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.”- 6

-

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 w it

,

As previously noted herein, Knox County Attorney G ilbert 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 thr oughout the fifteen

year 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 Coun ty], 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

- 5 7] (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 t o 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.- 7

-

and maintain a county roadway on the Carter property and denied that it has ever

maintained a roadway beyond the gravel sc hool bus turnaround on the Carter

property . Th is has been Knox County’s position throughout th e 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 whi ch 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 [.]” ( E mphasis added

. ) In other words, “ the trial court r etains

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 e ssentially 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 i n any prejudice to- 8

-

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 exten d 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 abu sed its discretion over the discovery process when it refused to deem the

requests admitted based on the late responses. 5

IV. C ONCLUSION

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 day s pursuant to CR 36.01. If the circuit court followed the rule as stringently as Walton insist s 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 C ou nty Food and Beverage Ass’n

, supra . However, the law cited by the circuit court was merely analo gous and not on

point. 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).- 9

-

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