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

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1280-MR

MARILYN RUMMAGE MUERDTER; 

ANTHONY TANNER STIVERS; 

DAVID RUMMAGE; JESSIE 

STIVERS; KIMBERLY RUMMAGE; 

MARY F. RUMMAGE; PEGGY A. 

RUMMAGE; AND TERRY J. 

RUMMAGE APPELLANTS 

v. 

APPEAL FROM BULLITT CIRCUIT COURT

HONORABLE RODNEY DARREL BURRESS, JUDGE

ACTION NO. 19-CI-00752

LOUISVILLE GAS AND ELECTRIC 

COMPANY APPELLEE 

AND

NO. 2021-CA-1282-MR

MARILYN RUMMAGE MUERDTER; 

ANTHONY TANNER STIVERS; 

DAVID RUMMAGE; JESSIE 

STIVERS; KIMBERLY RUMMAGE; 

MARY F. RUMMAGE; PEGGY A. 

RUMMAGE; AND TERRY J. 

RUMMAGE APPELLANTS 
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v. 

APPEAL FROM BULLITT CIRCUIT COURT

HONORABLE RODNEY DARREL BURRESS, JUDGE

ACTION NO. 19-CI-00754

LOUISVILLE GAS AND ELECTRIC 

COMPANY APPELLEE 

AND

NO. 2021-CA-1283-MR

MARILYN RUMMAGE MUERDTER; 

ANTHONY TANNER STIVERS; 

DAVID RUMMAGE; JESSIE 

STIVERS; KIMBERLY RUMMAGE; 

MARY F. RUMMAGE; PEGGY A. 

RUMMAGE; AND TERRY J. 

RUMMAGE APPELLANTS 

v. 

APPEAL FROM BULLITT CIRCUIT COURT

HONORABLE RODNEY DARREL BURRESS, JUDGE

ACTION NO. 19-CI-00758

LOUISVILLE GAS AND ELECTRIC 

COMPANY APPELLEE 

AND

NO. 2021-CA-1286-MR
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IOLA CAPITAL, LLC; MARK E. 

CARTER; MONICA LYNNE 

CARTER; AND PAMELA 

QUARTERLY APPELLANTS 

v. 

APPEAL FROM BULLITT CIRCUIT COURT

HONORABLE RODNEY DARREL BURRESS, JUDGE

ACTION NO. 19-CI-00755

LOUISVILLE GAS AND ELECTRIC 

COMPANY; ANTHONY TANNER 

STIVERS; DAVID RUMMAGE; EAST 

KENTUCKY POWER 

COOPERATIVE, INC.; ENERGY 

TRANSFER PARTNERS, LLC; JESSIE 

STIVERS; KIMBERLY RUMMAGE; 

MARILYN RUMMAGE MUERDTER; 

MARY RUMMAGE; PAUL 

MITCHELL WHITWORTH; PEGGY 

A. RUMMAGE; PNC FINANCIAL 

SERVICES GROUP; SALT RIVER 

ELECTRIC COOPERATIVE 

CORPORATION; TERRY J. 

RUMMAGE; AND WEST POINT 

BANK APPELLEES 

AND

NO. 2021-CA-1288-MR

IOLA CAPITAL, LLC; MARK E. 

CARTER; MONICA LYNNE 

CARTER; AND PAMELA 

QUARTERLY APPELLANTS 
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v. 

APPEAL FROM BULLITT CIRCUIT COURT

HONORABLE RODNEY DARREL BURRESS, JUDGE

ACTION NO. 19-CI-00750

LOUISVILLE GAS AND ELECTRIC 

COMPANY; ANTHONY TANNER 

STIVERS; DAVID RUMMAGE; EAST 

KENTUCKY POWER 

COOPERATIVE, INC.; ENERGY 

TRANSFER PARTNERS, LLC; JESSIE 

STIVERS; KIMBERLY RUMMAGE; 

MARILYN RUMMAGE MUERDTER; 

MARY RUMMAGE; PAUL 

MITCHELL WHITWORTH; PEGGY 

A. RUMMAGE; PNC FINANCIAL 

SERVICES GROUP; SALT RIVER 

ELECTRIC COOPERATIVE 

CORPORATION; TERRY J. 

RUMMAGE; AND WEST POINT 

BANK APPELLEES 

AND

NO. 2021-CA-1289-MR

MARILYN RUMMAGE MUERDTER; 

ANTHONY TANNER STIVERS; 

DAVID RUMMAGE; JESSIE 

STIVERS; KIMBERLY RUMMAGE; 

MARY F. RUMMAGE; PEGGY A. 

RUMMAGE; AND TERRY J. 

RUMMAGE APPELLANTS 
-5-

v. 

APPEAL FROM BULLITT CIRCUIT COURT

HONORABLE RODNEY DARREL BURRESS, JUDGE

ACTION NO. 19-CI-00753

LOUISVILLE GAS AND ELECTRIC 

COMPANY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, LAMBERT, AND MCNEILL, JUDGES.

GOODWINE, JUDGE: Appellants, Marilyn Rummage Muerdter; Anthony 

Tanner Stivers; David Rummage; Jessie Stivers; Kimberly Rummage; Mary F. 

Rummage; Peggy A. Rummage; and Terry J. Rummage (collectively “the 

Rummage family”) and Iola Capital, LLC; Mark E. Carter; Monica Lynne Carter; 

and Pamela Quarterly (collectively “Iola”) appeal from the Bullitt Circuit Court’s 

interlocutory judgment allowing Appellee, Louisville Gas and Electric Company 

(“LG&E”), to condemn portions of their property to obtain easements to construct 

a natural gas pipeline. After careful review, finding no error, we affirm. 

LG&E is a public utility that provides natural gas service to the people 

of the Commonwealth, including Bullitt County. In May 2018, LG&E began 

negotiating the purchase of easements from the Rummage family and Iola for the 
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construction of a new natural gas pipeline. Negotiations were unsuccessful. On 

July 30, 2019, LG&E filed complaints against the Rummage family and Iola to 

condemn their property to obtain easements for its natural gas pipeline project 

under the Eminent Domain Act of Kentucky (KRS1 278.502). 

On May 18, 2021, the Bullitt Circuit Court entered a judgment in 

favor of LG&E ordering the Rummage family and Iola to convey the rights and 

easements sought to LG&E. The circuit court found LG&E negotiated in good 

faith, and the pipeline is for public use. Thus, LG&E did not abuse its discretion in 

condemning the properties for easements. 

The Rummage family moved to alter, amend, or vacate and for 

clarification of factual issues. The Rummage family argued that the circuit court 

must make additional findings to determine the “primary purpose in seeking 

condemnation.” Record (“R.”) at 857 (19-CI-00753). On September 29, 2021, the

circuit court entered an order denying the motion. The court found that the 

Rummage family failed to produce evidence “to counter the fact that the new 

pipeline is necessary for additional dependable service and capacity” in Bullitt 

County. R. at 859. The court found LG&E’s witnesses credible regarding the 

proposed pipeline and its public use. The court found that a primary purpose 

standard was not the law; instead, the utility must show a public purpose. 

1 Kentucky Revised Statutes. 
-7-

The circuit court also denied the Rummage family’s motion to alter, 

amend, or vacate to obtain relief from their failure to respond to LG&E’s 

interrogatories and requests for the production of documents and to introduce new 

“smoking gun” evidence. The court found none of the materials or arguments 

tendered address whether the LG&E “is a public utility and has a public use behind 

the proposed pipeline.” R. at 862.

Iola also moved to alter, amend, or vacate and for clarification of 

factual findings on the same basis as the Rummage family. The circuit court 

entered an order on September 29, 2021, denying the motion. The court reiterated 

that the focus of its analysis was on public use. LG&E presented undisputed 

testimony that the pipeline was for public use. This appeal followed. 

Before proceeding with our review, we note two other Kentucky 

Court of Appeals opinions concerning LG&E’s natural gas pipeline project in 

Bullitt County. First, in Kentucky Heritage Land Conservation Fund Board v. 

Louisville Gas and Electric Company, 648 S.W.3d 76 (Ky. App. 2022), this Court 

addressed the sole issue of “whether the doctrine of sovereign immunity precludes 

the Bullitt Circuit Court from proceeding to determine whether LG&E is entitled to 

exercise the right of eminent domain with respect to property upon which the 

Commonwealth of Kentucky owns a conservation easement.” Id. at 78. This 

Court held:
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the plain language of KRS 382.850(2) authorizes a 

statutory right of eminent domain to prevail over a 

conservation easement because a conservation easement 

is assumed not to exist upon the exercise of a statutory 

right of eminent domain. If it is assumed that the 

Board’s conservation easement does not exist, then there 

is no prior public use to impede the exercise of LG&E’s 

right of eminent domain.

Id. at 89.

Additionally, in Iola Capital v. Public Service Commission of 

Kentucky, 659 S.W.3d 563 (Ky. App. 2022), Iola challenged LG&E’s certificate of 

public convenience and necessity (“CPCN”). This Court affirmed “the Franklin 

Circuit Court’s order dismissing Iola’s and Bernheim’s claims for redress of the 

Commission’s action in approving the CPCN and not allowing them relief through 

the complaint process.” Id. at 579. There, this Court noted the condemnation case, 

which is currently before us, was the appropriate case to address the eminent 

domain issues: 

We note that denying the appellants’ claims for redress in 

this appeal does not mean that the pipeline will 

necessarily be constructed through their properties. 

Instead, the appellants’ interests are specifically 

addressed and preserved by the Eminent Domain Act of 

Kentucky (KRS 416.540 to 416.670) in the ongoing 

condemnation proceedings before the Bullitt Circuit 

Court.

Id. at 578.
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On appeal, the Rummage family argues: (1) the circuit court erred in 

failing to determine the primary purpose of the condemnation; (2) LG&E abused 

its discretion in determining the route of the pipeline and fraudulently concealed 

information from the public in selecting the proposed route; and (3) LG&E failed 

to act in good faith. Iola argues that the circuit court erred in refusing to determine 

whether the asserted public benefit of the pipeline was a pretext, which is 

substantially similar to the Rummage family’s first argument. 

“[T]he provisions of KRS 416.610(4) referring to an interlocutory 

judgment . . . , allows an immediate, expedited appeal, by the condemnee of the 

question of the condemnor’s right to take.” Ratliff v. Fiscal Court of Caldwell 

Cnty., Kentucky, 617 S.W.2d 36, 39 (Ky. 1981). “Although the factors of necessity 

and public use associated with condemnation are ultimately legal issues, resolution 

of those issues encompasses factual matters subject to deferential review on 

appeal.” God’s Center Foundation, Inc. v. Lexington Fayette Urban Cnty. 

Government, 125 S.W.3d 295, 300 (Ky. App. 2002). Thus, “we review the trial 

court’s factual findings under a clearly erroneous standard and the legal issues de 

novo. Factual findings are not clearly erroneous if they are supported by 

substantial evidence.” Id. (footnote omitted). 

First, the Rummage family argues that the circuit court was required 

to determine the “primary purpose” of the condemnation. Similarly, Iola argues 
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that the circuit court erred in refusing to determine whether the asserted public 

benefit of the pipeline was a pretext and also argues that we should apply a 

“primary purpose” standard. Both the Rummage family and Iola argue that God’s 

Center Foundation supports their positions. 

However, our review shows that God’s Center does not mention a 

“primary purpose” or “pretext” standard. God’s Center addresses eminent domain 

in the context of a city government exercising eminent domain over a building “for 

use as an African-American cultural center[.]” Id. at 298. There, although God’s 

Center alleged “LFUC’s predominant intent was to benefit a small group of 

individuals,” it failed to produce anything beyond speculation in support of its 

position. Id. at 301-02. This Court held the “valid ‘public use’ that would benefit 

both the public at large and the African American community in particular” and 

affirmed the city’s right to condemn. Id. at 301.

KRS 416.675(1) dictates that eminent domain authority must only be 

exercised “to effectuate a public use of the condemned property.” Pertinent to this 

appeal, the definition of “public use” includes: “(d) The use of the property for the 

creation or operation of public utilities or common carriers; or (e) Other use of the 

property expressly authorized by statute.” KRS 416.675(2). There is no question 

that LG&E is a public utility. City of Bardstown v. Louisville Gas & Elec. Co., 

383 S.W.2d 918, 920 (Ky. 1964). Additionally, LG&E is a common carrier under 
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KRS 278.470: “Every company receiving, transporting, or delivering a supply of 

oil or natural gas for public consumption is declared to be a common carrier, and 

the receipt, transportation, and delivery of natural gas into, through and from a 

pipeline operated by any such company is declared to be a public use.” KRS 

278.470.

Additionally, KRS 278.502 provides LG&E express authority to 

condemn property for natural gas pipelines under the Eminent Domain Act of 

Kentucky: 

Any corporation or partnership organized for the purpose 

of, and any individual engaged in or proposing to engage 

in, constructing, maintaining, or operating oil or gas 

wells or pipelines for transporting or delivering oil or 

gas, including oil and gas products, in public service 

may, if it is unable to contract or agree with the owner 

after a good faith effort to do so, condemn the lands and 

material or the use and occupation of the lands that are 

necessary for constructing, maintaining, drilling, 

utilizing, and operating pipelines, underground oil or gas 

storage fields, and wells giving access thereto and all 

necessary machinery, equipment, pumping stations, 

appliances, and fixtures, including tanks and telephone 

lines, and other communication facilities, for use in 

connection therewith, and the necessary rights of ingress 

and egress to construct, examine, alter, repair, maintain, 

operate, or remove such pipelines or underground gas 

storage fields, to drill new wells and utilize existing wells 

in connection therewith, and remove pipe, casing, 

equipment, and other facilities relating to such

underground storage fields and access wells. The 

proceedings for condemnation shall be as provided in the 

Eminent Domain Act of Kentucky.
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The circuit court found that although Jim Beam “stands to benefit 

greatly from this pipeline project,” it also “would undoubtedly serve the broader 

public.” R. at 671 (19-CI-00752). The Rummage family and Iola indeed 

presented evidence that the primary purpose of the pipeline, at least initially, would 

be “to supply Jim Beam more natural gas for its facilities in Clermont and Boston.” 

R. at 1064 (19-CI-00750). They presented evidence that “Jim Beam would 

account for one-hundred percent (100%) of natural gas load growth provided by 

this new pipeline for the first two years and roughly ninety-five percent (95%) in 

the following three years.” R. at 1064-65. 

However, the circuit court also found LG&E’s “natural gas pipeline 

system in Bullitt County already presents reliability issues for current customers. 

An additional line is needed to improve reliability issues for current customers,” 

and LG&E has had to deny hundreds of new service requests due to lack of 

capacity. R. at 1065. The circuit court noted that the Rummage family and Iola 

failed to present contrary evidence. Thus, the circuit court found “there is 

significant proof that [LG&E’s] pipeline project will improve and expand natural 

gas service for current and future customers in Bullitt County. Therefore, the 

[c]ourt finds [LG&E’s] condemnation of [the Rummage family’s and Iola’s] land 

would effectuate public use.” R. at 1066.
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We agree. This Court has held that KRS 278.502 “expressly grants 

LG&E the right to condemn property to construct the pipeline at issue because, as 

a public carrier, it is providing a public service.” Diebold v. Louisville Gas and 

Electric Company, No. 2019-CA-000393-MR, 2020 WL 113936, at *2 (Ky. App. 

Jan. 10, 2020). Though Diebold is an unpublished opinion, the statute’s plain 

language is clear. Kentucky law does not define how many people or entities must 

primarily benefit from a pipeline for it to constitute a public use. Even though the 

circuit court found the primary purpose of the pipeline was to provide natural gas 

to Jim Beam’s facilities, no Kentucky case law or statute provides that a primary 

benefit to one entity does not qualify as public use. As noted by the circuit court,

the law does not require the identification of a primary purpose. Additionally, the 

Bullitt County community will still benefit from expanded capacity over time. 

Thus, the circuit court correctly found that LG&E could exercise its power of 

eminent domain to build the pipeline. 

Second, the Rummage family argues that LG&E abused its discretion 

in determining the pipeline route and fraudulently concealed information from the 

public in selecting the proposed route. We review this argument under the 

following standard:

Generally, the condemning body has broad discretion in 

exercising its eminent domain authority including the 

amount of land to be taken. God’s Ctr. Found., Inc. v. 

Lexington Fayette Urban Cty. Gov’t, 125 S.W.3d 295, 
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299 (Ky. App. 2002). The Courts will not interfere with 

a decision to condemn unless “there has been such a clear 

and gross abuse of discretion as to violate Section 2 of 

the Constitution of Kentucky, which section is a guaranty 

against the exercise of arbitrary power.” 

Kuchle Realty Company, LLC v. Commonwealth, 571 S.W.3d 95, 99 (Ky. App. 

2018). The Rummage family and Iola bore the burden of presenting “positive 

proof of fraud, collusion or a clear abuse of discretion.” Pike Cnty. Bd. of Ed. v. 

Ford, 279 S.W.2d 245, 248 (Ky. 1955). On appeal, we review the circuit court’s

“determination under a clearly erroneous standard and will uphold its ruling if 

supported by substantial evidence.” Kuchle Realty, 571 S.W.3d at 99 (citing Clark 

v. Bd. of Regents of W. Ky. Univ., 311 S.W.3d 726, 731 (Ky. App. 2010)). 

The circuit court determined that the Rummage family and Iola failed 

to provide positive proof that LG&E abused its discretion in selecting the pipeline 

route. The circuit court found LG&E “has broad discretion to choose a fitting 

route for its pipeline, and the [c]ourt finds that [LG&E] has proved this route is 

appropriate and necessary to satisfy a public need to increase capacity and improve 

reliability for commercial and residential natural gas customers in Bullitt County.” 

R. at 1068.

On appeal, the Rummage family takes issue with the fact that LG&E 

did not file a formal application for a CPCN and failed to provide themselves and 

the public with notice of the plan of the pipeline or application. As noted by the 
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circuit court, these issues regarding the notice were addressed in Iola Capital v. 

Public Service Commission of Kentucky, 659 S.W.3d 563 (Ky. App. 2022), which 

the Rummage family fails to mention in their brief. The Rummage family

complains the route was filed under seal, denying them the ability to object to the 

confidentiality, but “[m]atters submitted to the Commission may be requested to be 

kept confidential pursuant to 807 KAR[2] 5:001 Section 13 if they qualify for 

confidentiality under KRS 61.878. To avoid land speculation, the route where 

easements will be sought is often made confidential as it was here.” Id. at 570-71. 

This Court held “it was not unlawful or arbitrary for the Commission to issue a 

CPCN pursuant to KRS 278.020(1)(a), without requiring LG&E to first file a 

separate CPCN application.” Id. at 572. Furthermore, this Court held “no notice, 

whatsoever, was due to either of the appellants.” Id.

In Iola v. PSC, this Court stated the Rummage family’s “claims of 

impropriety on the part of LG&E and the Commission, including those of 

coordinated intentional concealment, have not been precluded by our decision and 

are properly left for consideration within the condemnation proceedings.” Id. at 

578. Here, although this issue is properly before us, the Rummage family failed to 

present any positive proof of fraudulent concealment or abuse of discretion in 

LG&E’s selection of the route. Instead, they reassert their argument that LG&E 

2 Kentucky Administrative Regulations.
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did not file a formal application for a CPCN. Merely alleging coordinated 

intentional concealment without positive proof beyond the facts presented in Iola 

PSC, in which the CPCN authorization was upheld, is insufficient for a finding of 

fraudulent concealment or abuse of discretion. Thus, the circuit court’s finding 

that LG&E did not abuse its discretion or fraudulently conceal the proposed route 

was supported by substantial evidence. 

Finally, the Rummage family argues that LG&E failed to act in good 

faith in negotiating a settlement. KRS 416.550 provides: 

Whenever any condemnor cannot, by agreement with the 

owner thereof, acquire the property right, privileges or 

easements needed for any of the uses or purposes for 

which the condemnor is authorized by law, to exercise its 

right of eminent domain, the condemnor may condemn 

such property, property rights, privileges or easements 

pursuant to the provisions of KRS 416.550 to 416.670. It 

is not a prerequisite to an action to attempt to agree with 

an owner who is unknown or who, after reasonable 

effort, cannot be found within the state or with an owner 

who is under a disability.

“Kentucky courts have also imposed a duty on the condemnor to negotiate in good 

faith the acquisition of the property prior to seeking condemnation.” God’s 

Center, 125 S.W.3d at 300. However, “the condemner is not required to haggle in 

order to satisfy its obligation to negotiate in good faith the purchase of property[.]” 

Id. at 304 (citation omitted). In Coke v. Commonwealth Department of Finance, 

502 S.W.2d 57 (Ky. 1973), the Court held:
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The judge found that 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 

56.463(5), requires.

The circuit court found LG&E “presented ample proof of negotiations 

with each Defendant. [LG&E] made numerous legitimate offers over a substantial 

period of time.” R. at 1062. The circuit court made findings regarding the 

negotiations in each circuit case before it. First, in 19-CI-00752, 19-CI-00753, 19-

CI-00754, and 19-CI-00758, LG&E’s “offers ranged from roughly $3,000 to 

nearly $14,000. . . . The Defendants in these cases made counter offers of 

$250,000 in each case, and $3 million for all tracts sought.” Id. Second, in 19-CI00756, LG&E “made offers in November 2018, December 2018, and July 

2019. . . . No counteroffer was made.” Id. Third, in 19-CI-00750, LG&E “made 

offers on February 2019 and June 2019. . . . No counteroffer was made.” Id. 

Finally, in 19-CI-00755, LG&E “made offers in October 2018 and July 2019. . . .

The highest offer was $40,000 for the easements sought.” Id. Though LG&E 

stated it never received a counteroffer, the “Defendants made a counteroffer of $12 
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million for the entire property.” R. at 1062-63. The circuit court found the 

evidence proves “LG&E complied with its obligation to conduct good faith 

negotiations, as required by law, prior to filing these condemnation proceedings.” 

R. at 1063.

The Rummage family again complains LG&E negotiated in bad faith 

by concealing the route from the public, telling residents farm taps could be 

granted to those who gave LG&E an easement when it could not, and failing to 

inform them that once the line was laid, they could no longer drive farm equipment 

over it. They cite no law in support of this argument and do not contest the circuit 

court’s factual findings regarding the actual negotiation over the value of the 

easements. 

As noted by the circuit court, the “good faith negotiation requirement 

required little more than [LG&E’s] attempt to secure the land for a necessary 

sum.” R. at 1059. Though we sympathize with the Rummage family, LG&E 

complied with the legal requirements for good faith negotiations prior to filing the 

condemnation action. Thus, the circuit court did not err in finding LG&E 

negotiated in good faith.

For the foregoing reasons, we affirm the judgment of the Bullitt 

Circuit Court. 

ALL CONCUR.
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BRIEF FOR APPELLANTS 

MARILYN RUMMAGE 

MUERDTER; ANTHONY TANNER 

STIVERS; DAVID RUMMAGE; 

JESSIE STIVERS; KIMBERLY 

RUMMAGE; MARY F. RUMMAGE; 

PEGGY A. RUMMAGE; AND 

TERRY J. RUMMAGE:

Thomas E. Clay

Louisville, Kentucky

BRIEFS FOR APPELLANTS 

IOLA CAPITAL, LLC; MARK E. 

CARTER; MONICA LYNNE 

CARTER; AND PAMELA 

QUARTERLY:

John D. Cox

Petersen S. Thomas

Louisville, Kentucky

BRIEFS FOR APPELLEE

LOUISVILLE GAS AND ELECTRIC 

COMPANY:

Monica H. Braun

Steven B. Loy

Mary Ellen Wimberly

Lexington, Kentucky