Supreme Court of Kentucky

2020-SC-0426-DG

JOHN BRUNER AND BETH BRUNER APPELLANTS 

V. 

ON REVIEW FROM COURT OF APPEALS

CASE NO. 2019-CA-1290

PULASKI CIRCUIT COURT NO. 09-CI-01301

DON COOPER AND CATHY COOPER APPELLEES 

ORDER

The Petition for Rehearing, filed by Appellees, of the Opinion of the Court, 

rendered October 20, 2022, is DENIED.

The Petition for Modification, filed by Appellants, of the Opinion of the 

Court, rendered October 20, 2022, is GRANTED and the attached modified 

Opinion of the Court is hereby ORDERED SUBSTITUTED for the Opinion 

originally rendered. This modification does not affect the holding of the original 

Opinion.

All sitting. All concur.

ENTERED: August 24, 2023.

________________________________________

CHIEF JUSTICE
RENDERED: OCTOBER 20, 2022

MODIFIED: AUGUST 24, 2023

TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0426-DG

JOHN BRUNER AND BETH BRUNER APPELLANTS

ON REVIEW FROM COURT OF APPEALS

V. NO. 2019-CA-1290

PULASKI CIRCUIT COURT NO. 09-CI-01301

DON COOPER AND CATHY COOPER APPELLEES

OPINION OF THE COURT BY JUSTICE LAMBERT

REVERSING AND REINSTATING

In 2009, Don and Cathy Cooper (the Coopers) sought to have a road that 

had been maintained by the Pulaski County Fiscal Court (the Fiscal Court) and 

used by the public and adjoining landowners John and Beth Bruner (the 

Bruners) declared their private roadway. The Pulaski Circuit Court initially 

found that the Coopers were estopped from bringing their claim, but the Court 

of Appeals directed the Pulaski Circuit Court to enter an order finding that the 

road was not a county road. During the second round of litigation, the Court of 

Appeals affirmed the circuit court’s order finding that the road was neither a 

public road nor an easement. 

The Bruners were later granted CR1 60.02 relief from the circuit court’s 

1 Kentucky Rule of Civil Procedure. 
2

previous orders regarding the road’s classification. The circuit court then 

granted summary judgment in favor of the Bruners based on its finding that 

the road was a public road by prescription. Thereafter, the Court of Appeals 

held that the circuit court erred by granting the Bruners CR 60.02 relief, and 

vacated its summary judgment order. The Bruners now request review of that 

opinion from this Court. After thorough review, we reverse the Court of 

Appeals and reinstate the circuit court’s grant of summary judgment. 

I. FACTS AND PROCEDURAL BACKGROUND

The road at issue in the underlying litigation is Edward Meece Road (the 

road), formerly Union Science Hill Road. It is a dead-end road in Science Hill, 

Kentucky, that runs the length of the Coopers’ 65-acre property’s eastern 

border. It was undisputed that the road is located on the Coopers’ deeded 

property. The point at which the road hits a dead-end begins at the Bruners’

property, an 82-acre cattle farm. East of the road is a subdivision of smaller 

plots of land owned by the individuals who filed to intervene (the Intervenors) 

in this case during the later stages of its now thirteen-year long history. The 

Coopers, the Bruners, and the Intervenors all have residences on their 

respective properties, and the road provides access to each of the properties.

The Fiscal Court had maintained the road for at least seventeen years 

before the Coopers purchased the property that encompasses the road on June 

1, 1993. Sixteen years after purchasing the property, in September 2009, the 

Coopers filed an action in Pulaski Circuit Court against the Fiscal Court and 
3

the Bruners which sought to have the road declared their private roadway. In 

the intervening years between the Coopers’ purchase of the property and the 

circuit court action, the Fiscal Court continued to spend taxpayer money 

maintaining the road. This maintenance included building a bridge on the 

road in 2000 and mowing around the road. The Coopers performed no 

maintenance or upkeep on the road but observed the county maintenance and 

community use of the road. 

A. The first round of litigation. 

In their 2009 complaint, the Coopers named the Bruners and the Fiscal 

Court as defendants. But they did not name the property owners who owned 

the smaller plots of land east of the road. At no time were those property 

owners joined as parties to this case during its first two iterations before the 

circuit court. The Coopers alleged that the Fiscal Court failed to follow the 

statutory procedural steps to adopt the road as a county road under KRS2

Chapter 178,3 and that it should therefore be declared their private roadway. 

Specifically, the Coopers argued that the Fiscal Court failed to comply with 

KRS 178.050, which states:

(1) No county road shall be established . . . unless due notice 

thereof has been given according to the provisions of this chapter.

(2) Notices and advertisements for the establishment . . . of any 

county road . . . and all notices and advertisements for the letting 

of contracts for construction or maintenance of county roads and 

2 Kentucky Revised Statutes. 

3 “‘County roads’ are public roads which have been formally accepted by the 

fiscal court of the county as a part of the county road system[.]” KRS 178.010(1)(b).
4

bridges under the provisions of this chapter shall be published 

pursuant to KRS Chapter 424 by the county road engineer.

During discovery, the Coopers twice requested that the Fiscal Court 

produce “all fiscal court orders, resolutions, ordinances, minutes, and/or any 

other records of any nature whatsoever on file or maintained by the Pulaski 

Fiscal Court that in any way reference the Ed Meece Road for the last 50 

years,” as well as, “the year and exact date that the Edward Meece Road was 

taken into the Pulaski County Road system.” The Fiscal Court responded that 

it adopted the road on June 30, 1976, and produced a copy of minutes from a 

Pulaski County Fiscal Court meeting from June 30, 1976, that included the 

following:

Sherman Taylor appeared concerning the Union-Science Hill Road. 

He request (sic) the court’s permission to move this road. Motion 

was made by Magistrate Langdon seconded by Magistrate Huff to 

accept the Union-Science Hill Road for County maintenance. All 

Court in favor.

To account for the discrepancy in the road’s name, the Fiscal Court also 

submitted an unsworn note that explained that when the road was adopted by 

the Fiscal Court in 1976, it was called “Union Rd.,” and that Ed Meece bought 

the property the same year. The Fiscal Court also provided the affidavit of Fred 

Neikirk, the Pulaski County Attorney from 1974 until 2001. His affidavit stated 

that he advised the Fiscal Court on legal matters, including the adoption of 

county roads. He further attested that KRS Chapter 178 posting requirements 

were “typically done,” though he could not remember the adoption of the road 

at issue in this case specifically. 
5

The Coopers later filed a motion for summary judgment arguing that the 

Fiscal Court had produced no affirmative evidence that it complied with the 

notice requirements of Chapter 178. The Fiscal Court responded that it was 

entitled to a presumption of regularity, i.e., the “presumption that public 

officers have performed their duties as required by law[.]”4 The Fiscal Court 

asserted that, because the burden of proof was on the Coopers, they had to 

provide affirmative evidence that the Fiscal Court did not follow the statutory 

requirements.

In addition to their argument that the road was properly adopted as a 

county road, the Bruners and the Fiscal Court further argued that the Coopers 

should be estopped from bringing their claim under existing precedent that 

holds a property owner may not sit idly by and allow a municipality to improve 

their property without first making a legal objection to the action.5 And, if the 

property owner does nothing and receives a benefit from the municipality’s 

actions, then the property owner is “estopped from relying upon any 

irregularity in the proceedings and from denying the validity of the acts[.]”6 The 

Bruners also argued that, should the court disagree that the Coopers were 

estopped from filing the claim and further find that the road was not a county 

road, it should find that it was a public road by prescription or an easement by 

prescription. 

4 Hennessy v. Bischoff, 240 S.W.2d 71, 71 (Ky. 1951).

5 Hardwick v. Poole, 233 S.W.2d 419, 421 (Ky. 1950).

6 Id.
6

In October 2011, the circuit court entered summary judgment in favor of 

the Fiscal Court and the Bruners based primarily on the presumption of 

regularity asserted by the Fiscal Court. The circuit court agreed that the 

Coopers bore the burden of proof to show that the Fiscal Court did not follow 

the proper procedures in adopting the road, and that they had produced no 

affirmative evidence to that effect. Furthermore, the court found that 

even if the [Coopers] were able to provide some affirmative 

evidence, they would still be estopped from challenging the action. 

There is a long established precedent that a property owner may 

not sit idly by and allow a municipality to improve a street in front 

of their property without first making some legal objection to the 

action. Hardwick v. Poole, 233 S.W.2d 419 (Ky. 1950). Further, if 

the property owner simply does nothing and received the benefits 

of the action, then the property owner is estopped from “relying 

upon any irregularity in the proceedings and from denying the 

validity of the acts.” Id. The responsibility lies upon the 

landowner to bring the action to the attention of the government 

entity, argue the irregularity and, if necessary, pursue legal action 

to restrain the activity prior to the cost of the government and 

benefit to the landowner. Peicke v. City of Covington, 249 S.W. 

1008 (Ky. 1923).

The court noted that in the sixteen years between the Coopers’ purchase of their 

property and the filing of their claim, they “watched the county expend financial 

resources of almost $3,500.00 to build a bridge and spend additional monies 

mowing the roadway, and failed to protest.” The court further found that the 

Fiscal Court’s expenditure of money benefitted the Coopers’ property. 
7

Following the circuit court’s ruling, the Coopers appealed to the Court of 

Appeals, which reversed the circuit court and remanded.7 The court reasoned 

that the presumption of regularity did not entitle the Fiscal Court and Bruners 

to summary judgment on the issue of whether the road was a county road in 

the absence of an official order, resolution, or ordinance of the fiscal court 

demonstrating the road’s adoption:

Here, the Fiscal Court simply argues that the “presumption of 

regularity,” in and of itself, effectively transmuted Edward Meece 

Road into a “county road.” . . . [T]he procedure for adopting a 

county road entails several duties to which the presumption of 

regularity has been applied. However, the Fiscal Court's ultimate 

decision to adopt a given road as a county road—and thus assert 

control and possession of it—must be evidenced by proof 

consisting of an official order, resolution or ordinance of the fiscal 

court that appears of record. This point was underscored in Illinois 

Cent. R. Co. v. Hopkins County, 369 S.W.2d 116 (Ky.1963), in 

which the Court held that a road was not a “county road,” even in 

the face of several years' worth of county maintenance and a 

substantial passage of time, in the absence of a formal order of the 

fiscal court accepting the road into its system of maintenance.8

Consequently, because the Fiscal Court had produced no such order, the road 

was not a county road.9 The court remanded with orders that the circuit court 

enter partial summary judgment in favor of the Coopers on the basis that the 

road was not a county road.10 As for the Bruners’ assertion that the road was 

a public road or an easement, the court held that there had not been sufficient 

7 Cary v. Pulaski Cnty. Fiscal Ct., 420 S.W.3d 500 (Ky. App. 2013). We note 

here that the first appeal in this case was consolidated with an unrelated case for 

consideration by the Court of Appeals, hence the discrepancy in the case name. 

8 Cary, 420 S.W.3d at 507-08.

9 Id. at 508.

10 Id. at 509.
8

discovery on those issues, and remanded for further proceedings.11 Bafflingly 

though, the Court of Appeals did not acknowledge or address the trial court’s 

finding that the Coopers were estopped from bringing their claim in the first 

place based on their exceptional delay in bringing it. It does not appear from 

the record before us that either party sought discretionary review by this Court. 

B. The second round of litigation. 

On remand, consistent with the Court of Appeals’ ruling, the circuit 

court entered partial summary judgment in favor of the Coopers on September 

8, 2014. Under the same order, the Fiscal Court was dismissed from the 

proceedings. During the ensuing months, the Bruners’ attorney appeared to 

do little to no work on the case: no depositions were taken, and no additional 

evidence was filed. Accordingly, the Coopers again moved for summary 

judgment on the grounds that there was no evidence of record that the road 

was a public road or an easement. On April 6, 2015, after previously affording 

the Bruners an additional ten days to produce evidence, the circuit court 

entered an order denying the Bruners’ second motion for additional time and 

granting the Coopers’ motion for summary judgment. The Bruners’ appealed 

this ruling to the Court of Appeals, which affirmed.12 The court held that the 

road was neither a public road nor an easement based upon the Bruners’ 

11 Id. at 508-09.

12 Bruner v. Cooper, 2015-CA-000742-MR, 2016 WL 5485356 (Ky. App. Sept. 

30, 2016).
9

failure to produce any evidence to either effect.13 It does not appear that 

discretionary review by this Court was sought. 

C. The third round of litigation. 

In April 2017, six months after the Court of Appeals’ ruling, the Coopers 

installed a gate across the road. This gate blocked access to both the Bruners’ 

property and the smaller properties in a subdivision that sits east of the road. 

In July 2017, five individuals that own property in that subdivision, as well as 

the bank that is the mortgagee for the Bruners’ property, filed a motion to 

intervene under CR 24.01 and for relief from a final judgment under CR 60.02. 

Four of the intervening property owners provided affidavits, each of 

which stated essentially the same things, to wit: they owned land serviced by 

the road; it was always their understanding that the road was a county road;

they were never given legal notice of the underlying litigation; and they had 

suffered harm because access to their land via the road is now blocked by the 

gate. The bank asserted that it too was unaware of the previous litigation, and 

that it approved the Bruners’ loan based on its belief that the property was 

serviced by either a county road or public road. It further contended that the 

value of the Bruners’ property was harmed by the installation of the gate 

because it could no longer be reasonably accessed.

Meanwhile, the Coopers’ installation of the gate prompted the Bruners to 

conduct their own independent research, without counsel. As a result of that 

13 Id. at *3-*4.
10

research, in November 2017, the Bruners filed their own motion for relief under 

CR 60.02(e)14 or (f)15. The Bruners filed with their motion a 1990 “County 

Roads Series Map” for Pulaski County. On that map, and its corresponding list 

of roads, Edward Meece Road is identified as a county road. The bottom of the 

map states: “Date approved by Fiscal Court: 1-23-1990.” The Bruners also 

submitted minutes from a meeting of the Fiscal Court from January 23, 1990. 

In relevant part, those minutes state: 

Motion was made by Magistrate Floyd seconded by Magistrate 

Jasper to accept the map presented by the Department of 

Transportation as the official system of county roads for Pulaski 

County and any road that is not shown on this map is not a 

county road. All court in favor.

The Bruners asserted that it was accordingly no longer equitable to allow the 

Coopers to exercise dominion over it as though it were a private road. Even 

though the Bruners argued for relief under CR 60.02(e) and (f), the Coopers 

responded that the evidence was not newly discovered under CR 60.02(b),

16 as

14 “On motion a court may, upon such terms as are just, relieve a party or his 

legal representative from its final judgment, order, or proceeding upon the following 

grounds . . . (e) the judgment is void, or has been satisfied, released, or discharged, or 

a prior judgment upon which it is based has been reversed or otherwise vacated, or it 

is no longer equitable that the judgment should have prospective application[.]” CR 

60.02(e).

15 “On motion a court may, upon such terms as are just, relieve a party or his 

legal representative from its final judgment, order, or proceeding upon the following 

grounds . . . (f) any other reason of an extraordinary nature justifying relief.” CR 

60.02(f).

16 “On motion a court may, upon such terms as are just, relieve a party or his 

legal representative from its final judgment, order, or proceeding upon the following 

grounds . . . (b) newly discovered evidence which by due diligence could not have been 

discovered in time to move for a new trial under Rule 59.02[.]” CR 60.02(b).
11

it could have been found during the original litigation with due diligence. 

Therefore, the Coopers asserted, the Bruners were not entitled to relief. 

On June 6, 2018, the circuit court entered an order granting both the 

Intervenors’ motion to intervene under CR 24.01 and the Bruners’ motion for 

CR 60.02 relief. The court first found that the Bruners were entitled to relief 

under CR 60.02(e). It reasoned:

The Bruners allege that they are entitled to relief pursuant to CR 

60.02 clauses (e) and (f). This Court will begin its analysis in 

60.02(e). A court may relieve a party from its final judgment, 

order, or proceeding on the grounds that it is no longer equitable 

that the judgment should have prospective application. This Court 

must determine what is equitable in light of all the facts and 

circumstances in a particular case. 

In ideal circumstances, the proposed map and Fiscal Court 

minutes would have been found at a much earlier date and timely 

submitted into evidence; however, to ignore such now would be to 

value form over substance. As noted by the Kentucky Court of 

Appeals in First Nat. Bank of Grayson v. Citizens Deposit Bank and 

Trust, pleadings should be judged by their substance rather than 

by their form. [735 S.W.2d 238, 330 (Ky. App. 1987)]. This Court 

is in no way suggesting that the minutes from the fiscal court 

meeting in 1990 is the determinative missing link which would 

prove Edward Meece Road’s classification, merely that the 

existence of such records make the current judgment inequitable. 

Any further determination will be made by this Court sooner rather 

than later. Having weighed the merits and demerits of the 

proposed relief, as well as the inequities that would be imposed, 

this Court finds that enforcement of the judgment granted to the 

Coopers would be wholly inequitable against the Bruners given the 

paramount importance served by the truth-finding function of the 

trial court.

. . . .

This Court has made every effort to be fair and just in this case, as 

the search for the truth of the matter has seemed elusive. Even 

though compelling that the case remain closed and final, the postjudgment evidence sought to be considered as a basis to reopen 

this case is not cumulative, but is material and is probable to 
12

result in a different outcome. [The Fiscal Court], as a Defendant, 

did not introduce such evidence, and considering its date of nearly 

three decades ago, being part of the county minutes, it cannot be 

found by this Court that the Defendants were not diligent in a 

search for it. However, most significantly, the Court concludes 

that it is no longer equitable that the judgment should have 

prospective application, all things considered.

The circuit court accordingly vacated its summary judgment orders from 

September 8, 2014 (finding that the road was not a county road) and April 6, 

2015 (finding that the road was neither a public road nor an easement),

respectively. 

Next, regarding the motion to intervene, the court, citing Polis v. 

Unknown Heirs of Jessie C. Blair,

17 noted that “[a]cting timely, a movant has a 

right to intervene when it claims an interest relating to property which is the 

subject of the primary action and when the disposition of the action may 

impede its ability to protect that interest.” The court found that the 

Intervenors’ motion was timely based on their respective affidavits which stated 

that their first notice of the litigation occurred when their properties allegedly 

became “land-locked” after installation of the gate. And, because “any further 

litigation regarding [the road’s] classification could necessarily involve their 

respective property interests,” their participation in the litigation was necessary 

to protect those interests. The court therefore granted the motion.

The Bruners and the Intervenors later filed respective motions for 

summary judgment. The Intervenors, citing the 1990 map provided by the 

17 487 S.W.3d 901 (Ky. App. 2016). 
13

Bruners, argued that the road was clearly a county road. The Bruners likewise 

argued that the road should be declared a county road or public road, and that 

the Coopers should be ordered to remove their gate. The Bruners submitted 

affidavits from four individuals in support of their motion for summary 

judgment. 

Two of the affidavits concerned a brief history of the relevant properties. 

The testimony in the affidavits, given by Joyce Meece and Joan Taylor 

respectively, can be summarized as follows: Joyce Meece and her husband 

Edward Meece previously owned the Bruner property from 1976 until 2001. 

The Meeces purchased the property from Bertha Bubnick in 1976. Joan Taylor 

and her late husband Sherman Taylor formerly owned the large plot of land 

east of the road that was later split into subdivisions. The road, formerly 

Union Science Hill Road, serviced the properties of the Meeces, the Taylors, 

and Roy Cooper, the Coopers’ predecessor in title and Don Cooper’s father. 

When Bubnick still owned the Bruner property, the Taylors put a gate across 

the road. Roy Cooper and Bubnick sued the Taylors because the gate blocked 

access to their properties. The suit ultimately resulted in a court declaring the 

road a public passway, and sometime in the late 1970’s the road was taken 

into the county system. The Meeces, Taylors, and Coopers all agreed to the 

county adopting the road, and the county continuously maintained the road 

throughout the time the Meeces and the Taylors owned their properties. 

The other two affidavits submitted by the Bruners were that of two 

former Pulaski County public officials, Darrell Beshears and Louie Floyd. 
14

Darrell Beshears was the Pulaski Judge Executive from 1986 until 1993, and 

knew that the 1990 map tendered by the Bruners included Edward Meece 

Road as a county road. Louie Floyd was a Pulaski County Magistrate from 

1978 until 1993, and attested that the road was part of the county system and 

maintained by the county both before and during his tenure. He was also 

aware that Edward Meece Road was included as a county road on the 1990 

map. The Coopers responded that the Bruners had still provided no evidence 

that the Fiscal Court complied with KRS 178.050 or KRS Chapter 424 in 

adopting the road as a county road. 

On August 7, 2019, the circuit court granted summary judgment in favor 

of the Bruners. The court agreed with the Coopers’ argument that there was 

“insufficient evidence of record as to whether the statutory requirements for 

establishing a new [county] road set forth in KRS 178.050 and KRS Chapter 

424 have been met.” However, the court found that there was sufficient 

evidence to find that the road was a public road through dedication by 

prescription. On this front, the court noted that the general public may create 

a public road and a property interest therein through dedication by 

prescription.18 It recounted that in order to establish a public road by 

prescription, all elements of adverse possession must be present for fifteen 

18 Ellington v. Becraft, 534 S.W.3d 785, 796 (Ky. 2017).
15

years,19 i.e., the possession must be hostile and under a claim of right, actual, 

exclusive, open and notorious, and continuous.20 It then found:

The case at bar calls into question the element of exclusivity when 

taken with the long history of the road’s public use; the county 

records of maintenance for a span of thirty years; and the 

understanding of other residents that the road was a county road. 

The Kentucky Supreme Court notes that to meet the exclusivity 

element, the property, “must not be shared with the disseised 

owner.” [Ellington, 534 S.W.3d at 802 n.3.] 

Edward Meece Road inherently meets the hostile element because 

the county exercised dominion over the road and, in which case 

there would be no issue, users of the road were outwardly 

infringing on private property rights as there is no evidence of the 

proper statutory requirements being met to officially designate it as 

a county road. Pulaski County asserted, through its conduct, that 

it held title to the road exclusively. The use was continuous, as 

the county serviced and maintained the road for many years—

evidence for more than thirty years of which are in record. The 

road was openly used by the Bruners and other residents. Thus, 

control exercised over Edward Meece Road was certainly open and 

notorious. The record shows that a bridge was erected on the road 

in 2000 and [the Fiscal Court] routinely mowed, paved, and 

maintained the road. Finally, [the Fiscal Court] maintained

exclusive control over the road for well over thirty years in which 

the road was thought by everyone in the county to be public and 

ownership was not contested. As such, the evidence presented is 

sufficient to support a finding that the use of the road by the 

Bruners is actual, hostile, open and notorious, and continuous, as 

required to create a [public road by prescription]. 

The Affidavits in the record indicate that Edward Meece agreed to 

the road being taken into county control. Per the affidavits, 

according to his widow, Joyce Meece, the other individuals living 

on the road at the time it was taken over by the county, Roy 

Cooper and Sherman Taylor, were in favor of and fully aware of 

that designation as well. Pulaski County has controlled the road 

on behalf of the public from 1977-2009. This is well beyond the 

fifteen-year limit and meets all elements of adverse possession 

since these individuals willingly gave the road to the county and 

19 Id. at 796. 

20 Moore v. Stills, 307 S.W.3d 71, 77 (Ky. 2010).
16

were not contesting ownership during the fifteen-year period. Even 

if the road was not officially designated as a county road, the 

individuals living on the road during the fifteen-year period did not 

contest its ownership. 

. . . .

Furthermore, the Supreme Court has said that county control is 

not necessary for dedication by prescription; however, the Supreme 

Court’s language strongly suggests that the presence of county 

control and public use creates a stronger claim for dedication by 

prescription. [Ellington, 534 S.W.3d at 793-94.]

Based on the foregoing analysis, Edward Meece Road is a public 

road through dedication by prescription via the public’s thirty-plus 

years of control over the road. The record does not indicate 

abandonment of that road by the public, as any period of nonuse 

would be presumably attributed to this litigation. The evidence 

presented in the record shows that Edward Meece Road is a public 

road through dedication by prescription, and there is no possible 

evidence that would negate these findings. As such, it matters 

naught that the road was not officially designated a county road 

established through KRS Chapters 178 and 424.

The Coopers appealed the circuit court’s ruling to the Court of Appeals, 

which reversed.21 The Court of Appeals held that law of the case doctrine 

prohibited the circuit court from granting the Bruners CR 60.02 relief.22 In 

reaching its conclusion, the court interpreted Toyota Motor Manufacturing, 

Kentucky, Inc. v. Johnson23 to hold that the only way to overcome the law of the 

case doctrine by way of CR 60.02 is to be entitled to relief under CR 60.02(f).24 

21 Cooper v. Pulaski Cnty. Fiscal Ct., 2019-CA-001290-MR, 2020 WL 4555519

(Ky. App. Aug. 7, 2020).

22 Id. at *3.

23 323 S.W.3d 646, 653 (Ky. 2010).

24 Cooper, 2020 WL 4555519, at *3 (“The Supreme Court only allowed for an 

exception of an extraordinary nature, which is confined to the language set out in CR 

60.02(f).”).
17

The court went on to hold that the trial court erred by granting the Bruners 

relief under CR 60.02(e) because neither CR 60.02(e) or (f) were applicable.25 

The court noted that the Bruners had ample time to discover the evidence at 

issue during the original proceedings, but failed to do so.26 Citing an 

unpublished Court of Appeals opinion, Greenamyer v. Louisville Metro 

Government,

27 the court held that “inaction is not an extraordinary 

circumstance warranting relief under CR 60.02(e) or (f).”28 

Instead, the court held that subsection (b), which grants relief on the 

basis of newly discovered evidence, applied to the Bruners’ request for relief.29 

CR 60.02(b) requires that the newly discovered evidence is that “which by due 

diligence could not have been discovered in time to move for a new trial under 

Rule 59.02,”30 i.e., “not later than 10 days after the entry of the judgment.”31 

The Court of Appeals found that the Bruners could not meet this standard 

because “[w]ith diligence, the evidence the Bruners introduced could have been 

discovered prior to the appeals.”

32 The Court of Appeals consequently held that 

its “prior holdings that Edward Meece Road is not a county road, a public road, 

25 Id. at *4. 

26 Id. at *5.

27 2011-CA-000009-MR, 2012 WL 917167 (Ky. App. Mar. 16, 2012).

28 Cooper, 2020 WL 4555519 at *4.

29 Id. 

30 CR 60.02(b). 

31 CR 59.02. 

32 Cooper, 2020 WL 4555519 at *5.
18

nor an easement by prescription or otherwise still apply.”

33 It reversed the 

circuit court’s grant of summary judgment and remanded for entry of summary 

judgment in favor of the Coopers.34 The Bruners now appeal that ruling to this 

Court.35

Additional facts are discussed below as necessary. 

II. ANALYSIS 

To resolve the case at bar, this Court must determine whether the Court 

of Appeals was correct in reversing the circuit court’s summary judgment in 

favor of the Bruners on the grounds that it was error for the circuit court to 

grant them CR 60.02 relief. 

A. The circuit court did not err by granting the Bruners’ motion for CR 

60.02 relief. 

“This Court has held that actions under CR 60.02 are addressed to the 

‘sound discretion of the court and the exercise of that discretion will not be 

disturbed on appeal except for abuse.’”

36 A circuit court abuses its discretion if 

33 Id. 

34 Id. at *6.

35 We note here that the Court of Appeals also reversed on the grounds that the 

circuit court erred by granting the Intervenors’ motion to intervene. Id. at *5-*6. The 

Court of Appeals held that the circuit court’s ruling was clearly erroneous because it 

did not conduct the proper analysis in determining that the CR 24.01 motion should 

be granted. Id. The Intervenors did not seek review of that ruling by this Court, and 

they are not parties to the present appeal. Nevertheless, we want to highlight that, 

ideally, the Court of Appeals would have remanded the case to the circuit court so that 

it could conduct the proper analysis under applicable case law rather than vacating 

the circuit court’s order outright. 

36 Brown v. Commonwealth, 932 S.W.2d 359, 362 (Ky. 1996) (quoting 

Richardson v. Brunner, 327 S.W.2d 572, 574 (1959)).
19

its “decision was arbitrary, unreasonable, unfair, or unsupported by sound 

legal principles.”37 The relevant portions of CR 60.02 state:

On motion a court may, upon such terms as are just, relieve a 

party or his legal representative from its final judgment, order, or 

proceeding upon the following grounds: . . . (b) newly discovered 

evidence which by due diligence could not have been discovered in 

time to move for a new trial under Rule 59.02; . . . (e) . . . it is no 

longer equitable that the judgment should have prospective 

application; or (f) any other reason of an extraordinary nature 

justifying relief. The motion shall be made within a reasonable 

time, and on grounds (a), (b), and (c) not more than one year after 

the judgment, order, or proceeding was entered or taken. 

The Bruners’ motion for relief was argued and granted by the circuit court 

under CR 60.02(e). The Court of Appeals held that this was error because CR 

60.02(b) applied to their claim.38 We disagree. 

CR 60.02 requires that any motion under subsection (b) must be made 

within one year after the final judgment. The Court of Appeals affirmed circuit 

court’s judgment on September 30, 2016, and the Bruners filed their CR 60.02 

motion on November 17, 2017. Because this was two months outside of the 

one-year window, the Bruners would not have met the statutory requirements 

to file under CR 60.02(b). Further, prior case law from this Court suggests

that, at any rate, the circuit court would have been without jurisdiction to 

entertain a motion made in violation of the one-year rule.

39 In contrast, CR 

60.02(e) requires only that the motion be filed within a “reasonable time.” 

37 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

38 Cooper, 2020 WL 4555519, at *4.

39 Toyota Motor, 323 S.W.3d at 650 (“First, as to subsections (a) through (c) of 

CR 60.02, some authority would suggest that a trial court lacks jurisdiction to reopen 
20

In addition, a CR 60.02 motion may be brought on the basis of new 

evidence without having to be addressed under CR 60.02(b). For example, in 

Crowder v. Commonwealth ex rel. Gregory, a default judgment of paternity was 

entered against Harry Crowder in 1979 by the Commonwealth on behalf of his 

alleged child’s mother, Patsy Gregory.40 Several years later, in 1985, Crowder 

obtained an affidavit signed by Gregory’s ex-husband stating that Gregory told 

him she knew Crowder was not the child’s father.41 Based on this information, 

Crowder filed for CR 60.02 relief from the paternity judgment and requested 

that the court order biological testing to establish the child’s paternity.42 The 

court granted Crowder’s request for biological testing, which confirmed that 

Crowder was not the child’s father, but it denied Crowder’s motion for relief 

under CR 60.02(e) and (f).43 The Court of Appeals reversed, and held:

The Commonwealth contends that under CR 60.02(e) and (f) the 

trial court did not abuse its discretion by refusing to relieve 

Crowder from the default judgment because Crowder failed to 

exercise due diligence by failing to file his motion for blood tests 

until six years from the entry of default judgment.

We initially observe that the admission into evidence of the HLA 

[Human Leukocyte Antigen] test results was not judicially 

approved until June 15, 1983, when the Kentucky Supreme Court 

rendered its opinion in Perry v. Commonwealth, Ky., 652 S.W.2d 

655 (1983). By that time default judgment had already been 

entered against Crowder and affirmed on appeal. Any motion for 

a judgment under these subsections if a year or more has passed since entry of 

judgment.”).

40 745 S.W.2d 149, 150 (Ky. App. 1988).

41 Id.

42 Id. 

43 Id. 
21

blood tests, absent a showing of one of the grounds in CR 60.02 

would have been improper.

When [Gregory’s ex-husband] came forward with the information of 

the mother's admission, Crowder acquired grounds for his motion, 

and promptly moved the court for relief under the rule. The trial 

court granted Crowder's motion to the extent that HLA blood 

testing was ordered. We point out here that CR 60.02 allows a 

trial court, upon a proper showing, to relieve the moving party of 

its final judgment “upon such terms as are just.” We believe that 

based upon the new evidence before the court tending to show it 

was no longer equitable for the judgment to have prospective 

application [CR 60.02(e)], the court properly exercised its discretion 

by ordering the blood tests.44

The court then reversed and remanded for an order setting aside the default 

judgment of paternity.45 Point being, nowhere in Gregory is CR 60.02(b) even 

mentioned notwithstanding that Gregory’s motion was technically based on 

new evidence.

In this case, during the first round of litigation, the Fiscal Court 

responded to two separate discovery requests for “all fiscal court orders, 

resolutions, ordinances, minutes, and/or any other records of any nature 

whatsoever on file or maintained by the Pulaski Fiscal Court that in any way 

reference the Ed Meece Road for the last 50 years[.]” The Fiscal Court did not 

provide the 1990 map and Fiscal Court minutes later discovered by the 

Bruners in either of its discovery responses. This would, understandably, have 

led the Bruners to believe that the few documents provided by the Fiscal Court 

were all that existed concerning the road. Out of desperation after the Coopers 

44 Id. at 150-51.

45 Id. at 151.
22

installed a gate, the Bruners, without counsel, went searching for information 

about the road in the Kentucky Department of Highways’ records. That is 

where they discovered the 1990 map, which led them to later find the January 

1990 Fiscal Court minutes. 

The circuit court found that the existence of the 1990 map and minutes 

was not “the determinative missing link which would prove Edward Meece 

Road’s classification,” but, nonetheless, the “existence of such records make 

the current judgment inequitable ... given the paramount importance served by 

the truth-finding function of the trial court.” Stated differently, the fact that 

this evidence exists, but was not provided by the fiscal court, makes it possible 

that other evidence may exist that could aid the court in deciding the road’s 

proper classification. In light of this, and the fact that “the truth of the matter 

[had] seemed elusive,” the circuit court found that continued application of its 

summary judgment orders in favor of the Coopers was no longer equitable. We 

cannot hold that this reasoning under the particular set of circumstances 

presented by this case was arbitrary, unreasonable, unfair, or unsupported by 

sound legal principles.

Moreover, we disagree with the Court of Appeals’ interpretation of Toyota 

Motor, to hold that that the only way to overcome law of the case doctrine on 

CR 60.02 grounds, is to be entitled to relief under CR 60.02(f). In Toyota Motor, 

the plaintiffs tried to bring a wage and hour dispute in circuit court, but their 
23

claim was dismissed based on then-existing case law which held that circuit 

courts did not have jurisdiction over wage and hour disputes.46 After the 

circuit court’s ruling was affirmed on appeal, the plaintiffs filed their disputes 

with the Kentucky Department of Labor.47 While those administrative 

proceedings were ongoing, this Court ruled that circuit courts have original, 

parallel jurisdiction over wage-and-hour disputes.48 Based on this change in 

the law, the plaintiffs filed for CR 60.02(f) relief in circuit court and requested 

that their claims be re-opened.49 After the circuit court granted the plaintiffs’ 

CR 60.02 motion, Toyota appealed to the Court of Appeals under Asset 

Acceptance, LLC v. Moberly.

50 Toyota’s appeal was then transferred to this 

Court.51

This Court disagreed with Toyota’s argument “that the law of the case 

doctrine prevented the trial court from exercising jurisdiction to rule on or 

grant CR 60.02 relief.”52 Toyota argued that the original decision of the circuit 

court dismissing the plaintiffs’ case for lack of jurisdiction had not been 

disturbed by an appellate court, thereby blocking the circuit court’s 

46 Toyota Motor, 323 S.W.3d at 648.

47 Id. 

48 Id. 

49 Id. 

50 241 S.W.3d 329 (Ky. 2007) (holding that a trial court’s grant of CR 60.02(f) 

relief was immediately appealable if it appeared to be an untimely attempt to reopen 

under CR 60.02(a)-(c)). 

51 Toyota Motor, 323 S.W.3d at 648-49. 

52 Id. at 652-53. 
24

jurisdiction to hear Sergent’s CR 60.02(f) motion under law of the case.53 This 

Court held:

We believe that a trial court's jurisdiction to determine whether 

extraordinary circumstances merit relief from a judgment includes 

jurisdiction to determine whether extraordinary circumstances also 

merit application of one of the exceptions to the law of the case 

doctrine.

. . . .

Our opinion [Kentucky Board of Medical Licensure v. Ryan, 

151S.W.3d 778 (Ky. 2008)], did not suggest that application of the 

law of the case doctrine would preclude a court from having 

jurisdiction to hear a CR 60.02 motion.

. . . .

In short, we conclude that the law of the case doctrine does not 

invariably deprive a trial court of jurisdiction to reconsider under 

CR 60.02(f) an issue already decided if the law upon which the 

original decision was based—including a controlling appellate 

opinion—has materially changed.54

In this case, the Court of Appeals held that even if the Bruners were 

entitled to relief under CR 60.02(e), it would have still been improper for the 

circuit court to grant that relief because the Bruners could not overcome law of 

the case doctrine by showing entitlement to relief under CR 60.02(f). The Court 

of Appeals, citing Toyota Motor, reasoned that “[t]he Supreme Court only 

allowed for an exception of an extraordinary nature, which is confined to the

53 Id. at 653.

54 Id. 
25

language set out in CR 60.02(f).”55 But all relief under CR 60.02 is relief of an 

extraordinary nature, as it forces a final judgment to be vacated. Indeed, the 

language of CR 60.02(f), which is a “catch-all provision” reserved only for those 

circumstances wherein a petitioner cannot show entitlement to relief under CR 

60.02(a)-(e),56 says “any other reason of an extraordinary nature justifying 

relief.”

57 This language acknowledges that CR 60.02(a)-(e) are also reasons of 

an extraordinary nature.

The Court of Appeals’ interpretation of Toyota Motor would in effect 

render CR 60.02 a dead letter. If the only way to rebut law of the case doctrine 

is to prove entitlement to relief under CR 60.02(f), then what purpose would 

relief under CR 60.02(a)-(e) ever serve? A trial court could appropriately grant 

relief under one of those subsections, just to have an appellate court hold that 

relief is precluded under law of the case. This is an absurd result. While 

Toyota Motor happened to involve a claim under CR 60.02(f), if a movant is 

properly entitled to relief under any of CR 60.02’s subsections, it can overcome 

law of the case doctrine under the appropriate circumstances. That is, after 

all, CR 60.02’s purpose. 

Based on the foregoing, we hold that the circuit court did not abuse its 

discretion by granting the Bruners’ motion for CR 60.02(e) relief. 

55 Cooper, 2020 WL 4555519, at *3.

56 Snodgrass v. Snodgrass, 297 S.W.3d 878, 884 (Ky. App. 2009) (“[R]elief under 

subsection (f) of CR 60.02 will not be available unless none of that rule's other specific 

provisions applies.”).

57 CR 60.02(f) (emphasis added). 
26

B. The circuit court did not err by granting summary judgment in favor of 

the Bruners. 

We further hold that the circuit court’s grant of summary judgment to 

the Bruners was proper. This Court reviews a trial court’s grant of summary 

judgment as follows:

The proper standard of review on appeal when a trial judge has 

granted a motion for summary judgment is whether the record, 

when examined in its entirety, shows there is no genuine issue 

as to any material fact and the moving party is entitled to a 

judgment as a matter of law. The trial judge must view the 

evidence in a light most favorable to the nonmoving party, 

resolving all doubts in its favor. Because summary judgment does 

not require findings of fact but only an examination of the record 

to determine whether material issues of fact exist, we generally 

review the grant of summary judgment without deference to either 

the trial court's assessment of the record or its legal conclusions.58

(1) The Coopers were estopped from bringing their claim thorough 

estoppel by inaction or silence and the doctrine of laches.

After reviewing the entire record of this case’s long, convoluted history, it 

strikes this Court that the Coopers should have been estopped from bringing 

their claim from this case’s inception through either: (a) estoppel by silence or 

inaction; or (b) the doctrine of laches. There were no genuine issues of material 

fact surrounding these issues, and the Bruners were entitled to summary 

judgment as a matter of law under these doctrines. 

As the circuit court correctly found during the first round of litigation 

when it granted summary judgment to the Fiscal Court and the Bruners, it is a 

long-standing precedent of this Commonwealth that a property owner who sits 

58 Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010) (internal citations 

and quotation marks omitted) (emphasis added). 
27

idly by while a municipality makes improvements to land on or near his 

property will be estopped from thereafter challenging validity of the acts of that 

municipality.59 As stated in Martin v. Gayheart, 

It is a rule of general application in all jurisdictions that one who 

stands by and sees another enter upon land under a claim of right 

and permits the entrant to make expenditures or improvements 

under circumstances which would call for notice or protest cannot 

afterward assert his own title against such person. As some of the 

authorities broadly state the principle, one who knowingly and 

silently permits another to expend money on land under a 

belief that he has title will not be permitted to set up his own 

right to the exclusion of the one who made the improvements. 

The rule is stated in 19 Am.Jur., Section 57, Page 668, Estoppel, 

as follows:

‘The courts are especially disposed to uphold a claim 

of estoppel by silence or inaction where one party with 

full knowledge of the facts has stood by without 

asserting his rights or raising any objection while the 

other party, acting on the faith of such apparent 

acquiescence, incurred large expenditures which will 

be wholly or partially lost if such rights or objections 

are subsequently given effect. This principle finds 

frequent application in respect of improvements and 

expenditures upon real property under a claim of 

right[.]’

60

59 See, e.g., Hardwick, 233 S.W.2d at 421; Peicke, 249 S.W. at 1010 (1923) (“We 

have many times held that a property owner will not be permitted to stand by and 

allow the street in front of his property to be improved at the expense of the 

municipality, or the contractor allowed to expend his money in making the 

improvement, and work to be completed, accepted, and the apportioning of the cost 

made, without first making some legal objection.”); Realty Sav. Co. v. S. Asphaltoilene 

Rd. Co., 202 S.W. 679, 680 (Ky. 1918) (“A rule equally well established in this state in 

suits of this character is that the property owner will not be permitted to stand by and 

allow the street in front of his property to be improved at the instance of the 

municipality, the contractor to expend his money in making the improvement, the 

work to be completed and accepted, and the apportionment made upon the faith that 

the cost was to be a charge upon his property, without first making some legal 

objection thereto before the work shall have been done.”). 

60 264 S.W.2d 653, 654 (Ky. 1954) (emphasis added).
28

Yet this is exactly what the Coopers were permitted to do in this case. In the 

years that passed between their purchase of the property and the filing of their 

claim, they knew that the Fiscal Court maintained the road and built a bridge 

on it in 2000. They made no legal challenge to this maintenance for sixteen 

years, but nonetheless successfully had the road declared their private 

property to the exclusion of the Fiscal Court and the general public for whom 

the road was maintained. 

In the alternative, the Coopers also clearly committed laches in bringing 

their claim. 

Laches in its general definition is laxness; an unreasonable delay 

in asserting a right. In its legal significance, it is not merely delay, 

but delay that results in injury or works a disadvantage to the 

adverse party. Thus there are two elements to be considered. As 

to what is unreasonable delay is a question always dependent on 

the facts in the particular case. Where the resulting harm or 

disadvantage is great, a relative brief period of delay may 

constitute a defense while a similar period under other 

circumstances may not . . . The doctrine of laches is, in part, based 

on the injustice that might or will result from the enforcement of a 

neglected right.61

As laches is an affirmative defense, it must be pled by the party seeking to 

assert it.62 The Bruners did this. During the first round of litigation in this 

61 Denison v. McCann, 197 S.W.2d 248, 249 (Ky. 1946).

62 CR 8.03 (“In pleading to a preceding pleading, a party shall set forth 

affirmatively accord and satisfaction, arbitration and award, assumption of risk, 

contributory negligence, discharge in bankruptcy, duress, estoppel, failure of 

consideration, fraud, illegality, injury by fellow servant, laches, license, payment, 

release, res judicata, statute of frauds, statute of limitations, waiver, and any other 

matter constituting an avoidance or affirmative defense.”).
29

case, the Bruners argued in their memorandum in support of summary 

judgment that the Coopers’ claim failed under the doctrine of laches because 

they sat idly by and allowed the county to make “a significant investment of 

time, energy, and most importantly—taxpayer’s (sic) money to the maintenance 

and upkeep [of] this road.” And, again, the Coopers waited sixteen years

between purchasing their property encompassing the road and filing to have

the road declared their private property. Because the Coopers had actual 

knowledge of both the county’s maintenance of the road and the public’s use of 

the road throughout that time, this was clearly unreasonable delay. As for the 

second element of laches, injury to the adverse party or parties, the Fiscal 

Court cannot be made whole for the money and manpower it expended over 

decades on maintaining and improving the road and the Bruners are being 

unfairly denied reasonable access to their property. 

We hold that the Bruners were entitled to a judgment as a matter of law 

under both of the foregoing theories. 

(2) The circuit court did not err by finding that the road was a public 

road by prescription. 

Furthermore, the circuit court found that the Bruners were entitled to 

summary judgment because Edward Meece Road is a public road by 

prescription, and we agree.63 

63 We note here our agreement with the circuit court that the road cannot be 

considered a county road because a formal order of the Fiscal Court adopting the road 

has never been produced. See, e.g., Kentucky Props. Holding LLC v. Sproul, 507 

S.W.3d 563, 569 (Ky. 2016) (“Since the enactment of Chapter 80, Acts of 1914, a 

formal order of the fiscal court has been required to establish a county road.”).
30

In Ellington, supra, this Court explained that 

[a] general and long-continued use of a passway by the public as a 

right will create the right to continue the use and the owner of the 

land traversed by the passway who allows the public to use it as a 

highway for a long period of years under a claim of right will be 

estopped from denying a dedication to the public. The key to 

establishment of a public road, therefore, is an implied or express 

dedication of that road to the public's use.64

Dedication of a public road can occur through either statutory, formal means65

or through common law, informal means.66 Informal dedication, in turn, can 

occur through either dedication by estoppel or dedication by prescription.67 

The Bruners’ sole assertion is that the road became a public road through 

dedication by prescription, so this Court need only address that theory. 

To establish a public road by prescription, there must be adverse use of 

the road by the public for the statutory period of fifteen years.68 The claimant 

therefore needs to prove by clear and convincing evidence69 that possession of 

the road was “(1) hostile ‘under a claim of right’; (2) actual; (3) exclusive; (4) 

continuous; and (5) open and notorious.”

70 “County control is not necessary to 

64 534 S.W.3d at 792 (internal citations and quotation marks omitted). 

65 See KRS 82.400; KRS 178.025. 

66 Ellington, 534 S.W.3d at 792.

67 Id. 

68 Id. at 798.

69 Id. (“It is the claimant's burden to prove these elements by clear and 

convincing evidence.”). Clear and convincing evidence is “proof of a probative 

and substantial nature carrying the weight of evidence sufficient to convince 

ordinarily prudent-minded people.” See, e.g., W.A. v. Cabinet for Health & Family 

Servs., Commonwealth, 275 S.W.3d 214, 220 (Ky. App. 2008).

70 Ellington, 534 S.W.3d at 798. 
31

establish a common law public road,” but it “can be evidence of a public 

acceptance.”71 

In this case, the Fiscal Court began exercising control over the road 

under its belief that it was a county road as early as 1976. Prior owners of the 

relevant properties believed that the road was a county road, and acquiesced to 

the county’s perceived ownership. The Coopers purchased their property in 

1993, and Edward Meece Road was included on that property. Since 1976, the 

Fiscal Court has continued to maintain the road as though it were a county 

road and built a bridge on it in 2000. The Coopers did not make any legal 

claim against the county’s asserted ownership of the road until 2009, sixteen 

years after they purchased their property. None of the foregoing facts were 

disputed. Accordingly, the Fiscal Court’s exercise of control over the road met 

all of the elements of adverse possession for at least sixteen years, exceeding 

the statutory period of fifteen years. As for the requirement that the road be 

used by the general public for the statutory period,72 the Fiscal Court’s 

maintenance of the road was for the benefit of the public, and for thirty-three 

years the general public believed the road was a county road and used it as a 

public passway. 

71 Id. at 793.

72 Id. at 798 (“[O]ne of the essentials of the establishment of a road by 

prescription is the use of the land in question by the public and such use must be by 

the public generally as a way common to all ... The mere use by a few individuals from 

time to time, as distinguished from the public generally, does not constitute such use 

as creates title in the public by prescription.”). 
32

Thus, the road is a public road by prescription, and the circuit court’s 

grant of summary judgment is affirmed. 

III. CONCLUSION 

Based on the foregoing, we reverse the Court of Appeals and hereby 

reinstate the circuit court’s August 7, 2019 order granting summary judgment 

in favor of the Bruners. 

All sitting. Minton, C.J.; Conley, Hughes, Keller, and VanMeter, JJ., 

concur. Nickell, J., concurs by separate opinion, in which Keller and 

VanMeter, JJ., join.

NICKELL, J., CONCURRING and writing separately:

While I concur with the majority’s analysis and ultimate conclusion, I 

write separately to underscore the unique factual and procedural history 

underlying this case represents an exceedingly rare instance where deviation 

from strict application of the law of the case doctrine is appropriate. The 

doctrine should be rigorously, but not mechanically, applied.

The law of the case doctrine “is an iron rule, universally recognized, that 

an opinion or decision of an appellate court in the same cause is the law of the 

case for a subsequent trial or appeal however erroneous the opinion or decision 

may have been.” Union Light, Heat & Power Co. v. Blackwell’s Adm’r, 291 

S.W.2d 539, 542 (Ky. 1956). The rule is:

grounded on convenience, experience and reason. It has been 

often said that it would be intolerable if matters once litigated and 

determined finally could be relitigated between the same parties 

. . . . 
33

Notwithstanding the firmness of this rule in general, a number of 

courts have maintained and held that the rule is not inflexible but 

is subject to exception, although the exception must be rare and 

the former decision must appear to be clearly and palpably 

erroneous. In such a case it is deemed to be the duty of the court 

to admit its error rather than to sanction an unjust result and 

deny to litigants or ourselves the right and duty of correcting an 

error . . . .

A number of other courts have reached the same conclusion in 

recognizing that the administration of justice requires some 

flexibility in the rule and that an appellate court not only has 

power to reconsider a former decision but should depart from it in 

unusual circumstances . . . .

The court . . . should wipe out the effect of the mistake in the first 

opinion rather than perpetuate the error which would otherwise 

result in great wrong to the litigant and establish a bad precedent. 

That is essential justice.

Id. at 542-43 (internal quotation marks and citations omitted). Moreover, this 

Court has held:

The State Supreme Court is the final arbiter of the application of 

the doctrine of law of the case. Sherley v. Commonwealth, 889

S.W.2d 794, 797 (Ky. 1994) (citing King v. West Virginia, 216 U.S.

92, 30 S.Ct. 225, 54 L.Ed. 396 (1910)). The law of the case doctrine 

is subject to exceptions. A reviewing court may deviate from the 

doctrine if its previous decision was clearly erroneous and would 

work a manifest injustice. Brown v. Commonwealth, 313 S.W.3d

577, 610 (Ky. 2010) (internal citations and quotation marks 

omitted).

Doyle v. Doyle, 549 S.W.3d 450, 455 (Ky. 2018).

The particularly troubling circumstances of this case persuade me the 

circuit court correctly provided equitable relief from its two previous summary 

judgment orders. I agree this is one of those extremely exceptional cases in 

which an appellate court should exercise its authority to correct an earlier 

error rather than perpetuate it. While the law of the case doctrine is an “iron 
34

rule,” it was never intended to be unmalleable and should remain amenable to 

flexing without breaking when equity and justice demand. Deviation in this 

case is warranted. Thus, I concur. 

Keller and VanMeter, JJ., join.

COUNSEL FOR APPELLANT:

Bradford Breeding

Brown & Breeding

G. Kirk Smith

Brown & Breeding

COUNSEL FOR APPELLEE:

Matthew J. Baker 

Bowling Green, Kentucky