RENDERED: DECEMBER 16, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1214-ME

FLORENCE OWNER 1, LLC; 

FLORENCE OWNER 2, LLC; 

FLORENCE OWNER 3, LLC; 

FLORENCE OWNER 4, LLC; 

FLORENCE OWNER 5, LLC; 

FLORENCE OWNER 6, LLC; 

FLORENCE OWNER 7, LLC; AND 

M&T REALTY CAPITAL 

CORPORATION APPELLANTS 

v. 

APPEAL FROM BOONE CIRCUIT COURT

HONORABLE JAMES R. SCHRAND, JUDGE

ACTION NO. 21-CI-00119

DUKE ENERGY, INC. APPELLEE 

AND

NO. 2021-CA-1291-MR

M&T REALTY CAPITAL 

CORPORATION, A MARYLAND 

CORPORATION, AS THE SUBSERVICER FOR WELLS FARGO 

BANK, NATIONAL ASSOCIATION 

AS MASTER SERVICER FOR US 

BANK NATIONAL ASSOCIATION; 
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FLORENCE OWNER 1, LLC; 

FLORENCE OWNER 2, LLC; 

FLORENCE OWNER 3, LLC; 

FLORENCE OWNER 4, LLC; 

FLORENCE OWNER 5, LLC; 

FLORENCE OWNER 6, LLC; AND 

FLORENCE OWNER 7, LLC APPELLANTS 

v. 

APPEAL FROM BOONE CIRCUIT COURT

HONORABLE JAMES R. SCHRAND, JUDGE

ACTION NO. 21-CI-00119

DUKE ENERGY KENTUCKY, INC. APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

CALDWELL, JUDGE: This is an interlocutory appeal involving a condemnation 

action by a private utility seeking an easement to erect towers and run electrical 

transmission lines on the property of the Appellants, who either own or are the 

mortgagor of the land and the apartment complex which sits upon it. The Boone 

Circuit Court granted the condemnation petition, granting Duke Energy Kentucky 

Inc. (hereinafter “Duke Energy”) an easement upon the land owned by the 

Appellants (hereinafter “Florence Owners”) and granting the right to gain 
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possession of the property described in the order upon payment to Florence 

Owners the amount awarded by the appointed Commissioners. Having reviewed 

the record below, the briefs of the parties, and the order of the trial court, we affirm 

the order of the trial court.

FACTS

In February of 2020, Duke Energy had completed a site study and had 

determined the best location for a new high-voltage transmission line in Boone 

County. Because the area was growing so rapidly, it had been determined that a 

new transmission line was necessary to support the increased retail, residential, and 

industrial demands coming to the area. 

Duke Energy, through a subcontractor, reached out to the owners of 

an apartment complex owned by Florence Owners1 named “Grand of Florence” to 

discuss acquiring an easement over the complex land to situate steel poles which 

would carry the overhead high-voltage power lines. The site study had led to the 

determination that the lines would be best situated at the entrance to the complex, 

on Burlington Pike.

1 There were various enumerated LLCs formed to acquire the land, build, and own the apartment 

complex. There is no delineation between the various “Florence Owners” entities in the order or 

the briefs of the parties, so we will refer to them in this Opinion as Florence Owners. The 

mortgagor of the project, M&T Realty Capital Corporation, as the sub-servicer for Wells Fargo 

Bank, was also named in the condemnation petition and is a party-Appellant herein.
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The entities began negotiations, with the subcontractor on behalf of 

Duke Energy first offering $50,997, then $57,732 for the easement in the summer 

of 2020. Florence Owners at one time countered with $250,000 but withdrew that 

offer upon realizing the scope of the project, which would involve high-voltage 

transmission lines. Further, the signage for the apartment complex would need to

be removed, and the easement would allow Duke Energy to have access not just to 

the easement property, but to the entirety of the apartment complex, should it be 

necessary to service the easement. The final offer Duke Energy made through 

their agent subcontractor was $75,000 in December of 2020. 

Unbeknownst to Florence Owners’ representatives at the time, a 

condemnation suit was filed by Duke Energy on January 25, 2021. Continuing the 

negotiations unaware of the filing of the condemnation action, Florence Owners 

provided a counteroffer, based upon the actual pole locations, and staked area of 

the easement, which were only provided by Appellee a month before. That 

counteroffer was $5,650,000.2 

The Boone Circuit Court held a hearing on the petition and 

determined that Duke Energy had the statutory right to exercise the power of 

2 This figure included compensation for the “perceived stigma” of high-voltage transmission 

lines, which Florence Owners feared might impact the future rentability of the units. During the 

public notice period, the perceived deleterious effects, whether real or imagined, of living close 

to transmission lines were brought up by members of the public. 
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eminent domain, that Duke had complied with the requirements of the Kentucky 

Constitution, the Eminent Domain Act (KRS3 416.540-416.670), and common law 

and had the right to condemn the easement. Florence Owners appeal that 

determination and allege that Duke Energy did not have the right to take the 

property and failed to negotiate in good faith. 

STANDARD OF REVIEW

Because this matter was tried without a jury, we review the trial 

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

reviewed de novo. See God’s Center Foundation, Inc. v. Lexington Fayette Urban 

Cnty. Government, 125 S.W.3d 295, 300 (Ky. App. 2002). 

ANALYSIS

At the outset, we provide an overview of the Eminent Domain Act 

and condemnation procedures outlined therein. In Allard v. Big Rivers Electric 

Corporation, 602 S.W.3d 800 (Ky. App. 2020), this Court provided a history of the 

Eminent Domain Act and a brief outline of the usual condemnation process

contained therein. 

In 1976, the General Assembly enacted the 

Eminent Domain Act of Kentucky, codified in KRS 

416.540-416.680. “The purpose of the act was to set up a 

new and uniform condemnation procedure.” Ratliff v. 

Fiscal Court of Caldwell County, Kentucky, 617 S.W.2d 

36, 38 (Ky. 1981). The term “[c]ondemn” is defined as 

3 Kentucky Revised Statutes.
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“to take private property for a public use under the right 

of eminent domain” and the term “[c]ondemnor” is 

defined as “any person, corporation or entity, including 

the Commonwealth of Kentucky, its agencies and 

departments, county, municipality and taxing district 

authorized and empowered by law to exercise the right of 

eminent domain[.]” KRS 416.540(1) and (2). 

. . .

KRS 416.570 provides that the condemnor must 

file a verified petition setting forth the following 

information:

Except as otherwise provided in KRS 416.560, a 

condemnor seeking to condemn property or the use 

and occupation thereof, shall file a verified petition 

in the Circuit Court of the county in which all or 

the greater portion of the property sought to be 

condemned is located, which petition shall state 

that it is filed under the provisions of KRS 416.550 

to 416.670 and shall contain, in substance:

(1) Allegations sufficient to show that the 

petitioner is entitled, under the provisions of 

applicable law, to exercise the right of 

eminent domain and to condemn the 

property, or the use and occupation thereof, 

sought to be taken in such proceedings;

(2) A particular description of the property 

and the use and occupation thereof sought to 

be condemned; and

(3) An application to the court to appoint 

commissioners to award the amount of 

compensation the owner of the property 

sought to be condemned is entitled to 

receive therefor.
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KRS 416.610, in turn, sets forth the proceedings in 

eminent domain cases and provides for the entry of an 

interlocutory judgment if certain findings are made:

(1) After the owner has been summoned twenty 

(20) days, the court shall examine the report of the 

commissioners to determine whether it conforms 

to the provisions of KRS 416.580. If the report of 

the commissioners is not in the proper form the 

court shall require the commissioners to make such 

corrections as are necessary.

(2) If no answer or other pleading is filed by the 

owner or owners putting in issue the right of the 

petitioner to condemn the property or the use and 

occupation thereof sought to be condemned, the 

court shall enter an interlocutory judgment which 

shall contain, in substance:

(a) A finding that the petitioner has the right, 

under the provisions of KRS 416.550 to 

416.670 and other applicable law to 

condemn the property or the use and 

occupation thereof;

(b) A finding that the report of the 

commissioners conforms to the provisions 

of KRS 416.580;

(c) An authorization to take possession of 

the property for the purposes and under the 

conditions and limitations, if any, set forth 

in the petition upon payment to the owner or 

to the clerk of the court the amount of the 

compensation awarded by the 

commissioners;

(d) Proper provision for the conveyance of 

the title to the land and material, to the 

extent condemned, as adjudged therein in 
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the event no exception is taken as provided 

in KRS 416.620(1).

(3) Any exception from such interlocutory 

judgment by either party or both parties shall be 

confined solely to exceptions to the amount of 

compensation awarded by the commissioners.

(4) If the owner has filed answer or pleading 

putting in issue the right of the petitioner to 

condemn the property or use and occupation 

thereof sought to be condemned, the court shall, 

without intervention of jury, proceed forthwith to 

hear and determine whether or not the petitioner 

has such right. If the court determines that 

petitioner has such rights, an interlocutory 

judgment, as provided for in subsection (2) of this 

section, shall be entered. If the court determines 

that petitioner does not have such right, it shall 

enter a final judgment which shall contain, in 

substance:

(a) A finding that the report of the 

commissioners conforms to the provisions 

of KRS 416.580;

(b) A finding that the petitioner is not 

authorized to condemn the property or the 

use and occupation thereof for the purposes 

and under the conditions and limitations set 

forth in the petition, stating the particular 

ground or grounds on which the petitioner is 

not so authorized;

(c) An order dismissing the petition and 

directing the petitioner to pay all costs.

“[T]he judgment referred to in KRS 416.610 as an 

‘interlocutory judgment,’ was final and appealable as to 

the issue of the right to condemn and the right to 
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immediate entry.” Hagg v. Kentucky Utilities Co., 660 

S.W.2d 680, 681 (Ky. App. 1983).

Id. at 805-07.

1. Burden of Proof 

Initially, the parties contest which of them had the burden of proof at 

the trial court level. Florence Owners insist that the condemnee only has the 

burden of proof when contesting the public nature of the project. Duke Energy 

insists that the party opposing the condemnation has the burden to prove lack of 

good faith, lack of necessity, or unauthorized exercise of the power of eminent 

domain. 

As the public nature of the project was not challenged by Florence 

Owners, the burden of proving fraud, bad faith or abuse of discretion was properly 

theirs. “The respondents, as the parties challenging the condemnation, bear the 

burden of establishing the lack of public necessity of public use and any abuse of 

discretion . . . .” Milam v. Viking Energy Holdings, LLC, 370 S.W.3d 530, 533 

(Ky. App. 2012). See also Commonwealth Dep’t of Highways v. Vandertoll, 388 

S.W.2d 358, 359 (Ky. 1964) (“[W]hen the department of highways by official 

order determines that an acquisition is necessary a condemnee, in order to defeat

such an acquisition, has the burden of proving fraud, bad faith, or abuse of 

discretion.”).
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2. Easement is not Overbroad

Florence Owners insists that Duke Energy is taking more of its

property than necessary for the expressed purpose. However, Florence Owners is 

conflating the size of an easement with the form of estate taken. “It reasonably 

follows that an estate greater than what is ‘needed’ to achieve the legal purpose 

cannot be taken.” Lexington-Fayette Urban Cnty. Government v. Moore, 559 

S.W.3d 374, 381 (Ky. 2018) (emphasis added). In other words, when an easement 

will serve the public purpose stated as making the taking necessary, it is not proper 

for the condemnor to take an estate in fee simple. Further, the amount of land 

necessary to support the public purpose of the taking is generally left to the 

condemnor’s discretion.4 In the present case, Duke Energy sought an easement of 

.209 acres of Florence Owners’ property of over twenty-seven acres. The trial 

court found this easement to be consistent with the requirements of the stated 

project and we find no fault with that determination. 

Next, Florence Owners argues that the easement was overbroad and 

allowed Duke Energy to have “access rights to all adjoining land,” not part of the 

easement owned by Florence Owners. However, as Duke Energy points out, it is 

4

See God’s Center Foundation, Inc., 125 S.W.3d at 299 (“Generally, the condemning body has 

broad discretion in exercising its eminent domain authority including the amount of land to be 

taken.”).
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consistent with Kentucky law to allow reasonable ingress and egress through land 

not subject to the easement to access the easement proper. 

An easement confers a right upon the dominant tenement 

to enjoy a right to enter the servient tenement. See Scott 

v. Long Valley Farm Kentucky, Inc., 804 S.W.2d 15, 16 

(Ky. App. 1991). While an easement holder may not 

expand the use of the easement, it is equally true that the 

easement grantor may not interfere with the easement 

holder’s use of the easement. Commonwealth, Dept. of 

Fish and Wildlife Res. v. Garner, 896 S.W.2d 10, 13-14 

(Ky. 1995).

Sawyers v. Beller, 384 S.W.3d 107, 111 (Ky. 2012).

Florence Owners also complain that the easement allows Duke 

Energy to enter upon the adjoining land to clear vegetation which is adjacent to the 

easement. Again, such allowance is consistent with Kentucky law, contrary to 

Florence Owners’ allegations. 

Insofar as the use of the secondary easement is 

concerned, this court is of the opinion that the owner of 

an easement acquired by personal negotiations, by 

eminent domain, by prescription, or otherwise, for the 

erection of electric wires may enter upon the premises 

over which the wires are constructed for the purpose of 

removing vegetation, or other growth or substance, that 

interferes with the natural and reasonable use of the 

easement for the purpose to which the land 

accommodated by the easement may be naturally and 

reasonably devoted. 

Farmer v. Kentucky Utilities Co., 642 S.W.2d 579, 581 (Ky. 1982).
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Next, Florence Owners complain that the easement prevents them 

from placing any obstructions which might interfere with Duke Energy’s use of the 

easement. Again, such language is entirely consistent with Kentucky law. “The 

owners of the easement and the servient estate have correlative rights and duties 

which neither may unreasonably exercise to the injury of the other.” 

Commonwealth, Dep’t of Fish & Wildlife Resources v. Garner, 896 S.W.2d 10, 13 

(Ky. 1995). 

The easement also allows Duke Energy to use the adjoining land 

while constructing, maintaining, and repairing the transmission lines. Again, such 

is consistent with Kentucky law. 

We affirm so much of the decision of the Court of 

Appeals as holds that the Kentucky Utilities Company, 

by reason of its primary easement, has a right to enter 

upon the servient property beneath the lines and in the 

immediate vicinity thereof for the purpose of repairs and 

maintenance.

Farmer, 642 S.W.2d at 581.

Lastly, Florence Owners complain that the easement infringes on their 

rights to sue should Duke Energy cause any damage or otherwise tortiously 

interfere with their property rights by attempting to limit the statute of limitations 

to ninety (90) days. Whether that section of the easement is effective and 

enforceable is a question which will be ripe for determination should the 

eventuality occur. 
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Ripeness under federal law is a jurisdictional requirement 

under Article III of the United States Constitution. Nat’l 

Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-

08, 123 S. Ct. 2026, 2030, 155 L. Ed. 2d 1017 (2003). 

This requirement similarly appears under the Kentucky 

Constitution in that circuit courts have “original 

jurisdiction of all justiciable causes not vested in some 

other court.” Ky. Const. § 112(5) (emphasis added).

For a claim to be justiciable, it must be ripe. Nordike v. 

Nordike, 231 S.W.3d 733, 739 (Ky. 2007). As this Court 

has recognized, “[t]he basic rationale of the ripeness

requirement is ‘to prevent the courts, through the 

avoidance of premature adjudication, from entangling 

themselves in abstract disagreements[.]’” Barber v. 

Bradley, 505 S.W.3d 749, 760 n.5 (Ky. 2016) (quoting 

W.B. v. Cab. for Health & Family Servs., 388 S.W.3d 

108, 114 (Ky. 2012)). “[A] fundamental tenet of 

Kentucky jurisprudence [is] that courts cannot decide 

matters that have not yet ripened into concrete disputes. 

Courts are not permitted to render advisory opinions.” 

Nordike, 231 S.W.3d at 739 (citations omitted).

Bingham Greenebaum Doll, LLP v. Lawrence, 567 S.W.3d 127, 129-30 (Ky. 2018)

(emphasis in original).

3. Good Faith Negotiations

Finally, Florence Owners allege that Duke Energy did not negotiate in 

good faith before filing the condemnation action. “The constitution, statutes and 

case law of Kentucky necessarily imply the exercise of good faith . . . in using its 

power to condemn and/or take private property from its citizens.” City of Bowling 

Green v. Cooksey, 858 S.W.2d 190, 192 (Ky. App. 1992). Florence Owners 

complain that Duke Energy took months to provide it with information related to 
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the placement of the easement and the types of power lines it intended to install. 

The trial court found as follows:

In this matter, Duke attempted to ensure the public

was aware of the Project. They considered one hundred 

and seventy-four routes which are contained in a Line

Route Evaluation Report before on [sic] deciding on the

current route. They sent a letter to effected [sic] property

owners advising them of an open house to discuss the 

project and hear concerns with it. Additionally, Duke 

made three offers to Florence between June, 2020 and

January, 2021 when they filed the instant action. This

Court cannot find that Duke acted in bad faith when

negotiating the acquisition of the property, and, therefore 

the Court finds Duke complied with the provisions found

in KRS 416.550.

We cannot say that the trial court’s findings here are clearly erroneous 

and we agree with the trial court’s legal conclusion. Remembering that the amount 

Duke Energy must compensate Florence Owners for the easement was determined 

by appointed Commissioners,

5 we cannot say that the offers made by Duke Energy 

5 KRS 416.580(1)(a). From the Interlocutory Order:

The Commissioners filed their Report on March 11, 2021, valuing Florence’s

property as (sic) at $150,000 before the taking and $130,000 after the taking

determining the value of the taking to be $20,000. Florence owns an additional

contiguous parcel in the area and the parties agree the before and after values

were based on the PVA value of the second parcel which is not subject to the

Easement. The Court ordered the Commissioners to perform a second valuation. 

They have done so valuing the property at $40,000,000 before the taking and 

$39,895,000 after the taking for a valuation of the taking at $105,000. The Court

finds the Commissioners’ Award after the second evaluation complies with the

statutory requirements. 

See KRS 416.660(1): 
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during negotiations were conclusive of bad faith or that Florence Owners’

counteroffer was reasonable. 

Rather, we agree with the trial court that Duke Energy attempted, in 

good faith, to negotiate with Florence Owners prior to filing the condemnation 

action, and continued to negotiate even after so filing, indicating that Duke Energy 

was still open to settling the matter without judicial intervention. “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.” See Coke 

v. Commonwealth Dep’t of Finance, 502 S.W.2d 57, 59 (Ky. 1973). Evidence of 

the parties’ being unable to come to an agreement does not mean the trial court’s 

finding of good faith was clearly erroneous or that such is proof of lack of good 

faith on the part of Duke Energy; the statutory scheme exists because it is quite 

often not possible for the parties to come to an agreement. Lastly, the 

Commissioners arrived at a valuation of $105,000, which is closer to the highest 

In all actions for the condemnation of lands under the provisions of KRS 416.550 

to 416.670, except temporary easements, there shall be awarded to the landowners 

as compensation such a sum as will fairly represent the difference between the 

fair market value of the entire tract, all or a portion of which is sought to be 

condemned, immediately before the taking and the fair market value of the 

remainder thereof immediately after the taking, including in the remainder all

rights which the landowner may retain in the lands sought to be condemned where 

less than the fee simple interest therein is taken, together with the fair rental value 

of any temporary easements sought to be condemned.
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amount offered by Duke Energy ($75,000) than it is to the amount of Florence 

Owners’ final counteroffer ($5,650,000), supporting the finding that Duke Energy 

acted in good faith during the negotiations.

CONCLUSION

The trial court’s findings of fact were not clearly erroneous, and its 

legal conclusions were consistent with controlling law. The trial court properly 

granted the interlocutory judgment to condemn the property; thus, we affirm. 

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Daniel A. Hunt

Matthew Fellerhoff

Covington, Kentucky

BRIEF FOR APPELLEE:

Nicholas J. Pieczonka

Alex E. Wallin

Cincinnati, Ohio