389 S.W.3d 149
Ky. Ct. App.2012Background
- Mullinses sued Ashland Oil in 1997 in Johnson Circuit Court over alleged NORM contamination from Ashland's water-flood operations in Martha Oil Field.
- The undisputed factual background involves discovery of NORM/TE-NORM contamination on property following Ashland's production methods since the 1950s-60s.
- The only remaining claims after early dismissals were for property damage from NORM in soil and pipes.
- Mullinses knew of radiation on their property by 1991 but did not file suit until 1997, outside the five-year period in KRS 413.120(4).
- Circuit court dismissed Mullinses’ NORM trespass claims as untimely; Mullinses moved to alter, amend, or vacate; appeal follows.
- This appeal focuses on whether the circuit court correctly applied the five-year statute and whether briefing deficiencies justify limited or no consideration of the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Mullinses’ NORM trespass claims were timely under KRS 413.120(4). | Mullinses contend material facts create a genuine issue of tolling. | Ashland Oil argues timely filing requirement bars the claim. | Yes, claims barred by five-year statute of limitations. |
| Whether the Mullinses preserved and supported their claim of misrepresentation about clearance to warrant a trial. | Mullinses relied on representations that contamination had been cleared. | No proper preservation or pleading of this theory; not alleged as a claim. | Not preserved as a viable claim; no manifest injustice to reverse. |
| Whether the briefing deficiencies justify striking the brief or limiting review to manifest injustice. | Argue merits; request full review. | Brief deficiencies warrant strict application of CR 76.12 or striking. | Court conducted limited review for manifest injustice; affirmed dismissal. |
Key Cases Cited
- Elwell v. Stone, 799 S.W.2d 46 (Ky.App.1990) (preservation requirement; remedies for noncompliance with CR 76.12(4)(c)(iv))
- Phelps v. Louisville Water Co., 103 S.W.3d 46 (Ky.2003) (preservation consequences under CR 76.12(4)(c)(iv))
- Sallee v. Sallee, 142 S.W.3d 697 (Ky.App.2004) (prehearing statement limits on issues on appeal)
- Hallis v. Hallis, 328 S.W.3d 694 (Ky.App.2010) (importance of procedural briefing rules in appeals)
- Skaggs v. Assad, 712 S.W.2d 947 (Ky.1986) (preservation of issues for review; CR 76.12 requirements)