author: BUCKINGHAM, Judge.

text:
    GRAND COMMUNITIES, LTD., Fischer Development Company, Thomas Schreiber and Mary Ellen Schreiber, Appellants, v. Donald L. STEPNER, Appellee.
    No. 2003-CA-002157-MR.
    Court of Appeals of Kentucky.
    Oct. 15, 2004.
    Discretionary Review Denied by Supreme Court Sept. 14, 2005.

      Joseph L. Trauth, Jr., Cincinnati, OH, for appellants.
    Perry M. Bently, Todd S. Page, Lexington, KY, for appellee.
    Before BUCKINGHAM and SCHRODER, Judges; MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

BUCKINGHAM, Judge.

The appellants (Grand Communities, Ltd., Fischer Development Co., and Thomas and Mary Ellen Schreiber) appeal from an order of the Boone Circuit Court dismissing their complaint against Donald L. Stepner. Their complaint had alleged various causes of action in connection with Stepner’s efforts to keep the appellants from rezoning and developing real property that was next to his property. In dismissing the complaint, the circuit court relied on the Noerr-Pennington doctrine. We conclude that the circuit court properly dismissed the appellants’ complaint, and we thus affirm.

The appellants are residential real estate developers who purchased portions of unincorporated land in Boone County, Kentucky. The property consists of 367 acres. Stepner, an attorney, owns property next to the appellants’ property.

The property had been zoned by Boone County as “rural urban estates.” This zoning classification allowed one house per acre. The appellants sought to have the property rezoned to “suburban residential,” a classification that would allow housing density of four houses per acre. Step-ner was opposed to the rezoning, and he commenced a battle against it.

Initial efforts by the appellants to have the property rezoned began in 1998 before the Boone County Planning & Zoning Commission. Those efforts were met with public opposition, and the appellants withdrew their rezoning request. The appellants then proposed that the City of Florence annex the property so that it could be rezoned in the manner the appellants desired. However, with assistance from Stepner, the City of Union took quick action to annex the property into its city limits and thwarted annexation efforts by the City of Florence.

In separate lawsuits, the City of Florence and several owners of the property affected by the City of Union’s annexation sued the City of Union, contending that its annexation of the appellants’ property did not meet the requirements of KRS Chapter 81A. The lawsuits were settled in April 1999, and the City of Union agreed to annul its annexation ordinances. The appellants’ property was declared to be lawfully annexed by the City of Florence, and, on September 28, 1999, the City adopted an ordinance rezoning the property as “suburban residential.” At that point the appellants began developing the property.

On October 26, 1999, several landowners of property next to the development (including Stepner) filed an appeal in the Boone Circuit Court pursuant to KRS 100.347(3) challenging the City of Florence’s rezoning of the property. The circuit court dismissed the appeal on procedural grounds for failure of the appellants to name and join all owners of the development as parties. This court affirmed the dismissal, and the Kentucky Supreme Court declined to grant discretionary review.

This case began in March 2003 when the appellants filed a civil complaint in the Boone Circuit Court against Stepner. Their complaint alleged abuse of process, wrongful use of civil proceedings, intentional interference with contractual relations, and violation of 42 U.S.C. § 1983. First, the appellants alleged that Stepner and the City of Union interfered with the appellants’ property rights and business interests by illegally annexing the property before the City of Florence could annex and rezone it. This allegation supported the claims of intentional interference with contractual relations and violation of 42 U.S.C. § 1983. Second, the appellants alleged that Stepner damaged their business interests by filing a “frivolous” challenge to the rezoning decision. This allegation supported the claims for abuse of process, wrongful use of civil proceedings, and intentional interference with contractual relations.

Stepner filed a motion to dismiss the complaint on the grounds that the appellants’ claims were barred by the application of the Noerr-Pennington doctrine and the applicable statutes of limitation and also that each of the four claims failed to state a claim upon which relief may be granted. In an order entered on September 19, 2003, the circuit court dismissed the appellants’ complaint, concluding that the Noerr-Pennington doctrine shielded Stepner from liability. The appellants then filed this appeal.

The Noerr-Pennington doctrine derived from two U.S. Supreme Court cases, Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers of Am. v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). The Noerr case involved a dispute between the trucking industry and the railroad industry and their respective interests in, and competition for, the long-distance transportation of heavy freight. The trial court determined that the Eastern Railroad Presidents Conference, an association of the presidents of 24 railroads, had violated the Sherman Antitrust Act in its publicity campaign directed at lawmaking and law enforcement authorities and against truckers as competitors. The Supreme Court held, however, that no violation of the Act could be “predicated upon mere attempts to influence the passage or enforcement of laws.” 365 U.S. at 135, 81 S.Ct. 523. The Court explained that:

The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so. It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors.

Id. at 139, 81 S.Ct. 523. The Court further explained that:

It is inevitable, whenever an attempt is made to influence legislation by a campaign of publicity, that an incidental effect of that campaign may be the infliction of some direct injury upon the interests of the party against whom the campaign is directed. And it seems equally inevitable that those conducting the campaign would be aware of, and possibly even pleased by, the prospect of such injury. To hold that the knowing infliction of such injury renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns.

Id. at 143-44, 81 S.Ct. 523. Nevertheless, the Court acknowledged that there could be situations where the efforts toward influencing governmental action were merely a sham “to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor!;.]” Id. at 144, 81 S.Ct. 523.

In the Pennington case four years later, the Supreme Court recognized its prior decision in the Noerr case and held that “Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent of purpose.” 381 U.S. at 670, 85 S.Ct. 1585. Thereafter, in California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), the Supreme Court extended its views in the Noerr and Pennington cases to efforts by citizens or groups of citizens to influence administrative agencies and courts. 404 U.S. at 510, 92 S.Ct. 609. The Court stated that “the right to petition extends to all departments of the Government.” Id.

In Eastern Kentucky Resources v. Arnett, Ky.App., 892 S.W.2d 617 (1995), a panel of this court noted that other federal and state courts have applied the Noerr-Pennington doctrine to petitioning activities such as zoning questions and other activities outside the antitrust field. Id. at 618. While the court stated that “this is an interesting area of the law,” it declined to address it, concluding it was unnecessary to its opinion in that case. Id. Later, the Kentucky Supreme Court mentioned the Noerr-Pennington doctrine in Simpson v. Laytart, Ky., 962 S.W.2d 392, 396 (1998). However, it declined to adopt the doctrine “at this time” in light of other conclusions reached in the case. Id. The parties have neither cited to, nor are we aware of any other Kentucky case mentioning the Noerr-Pennington doctrine.

The appellants have not argued, either to the circuit court or to this court, that the Noerr-Pennington doctrine should not be adopted by Kentucky courts. Based upon the reasons given by the U.S. Supreme Court in the Noerr case, we see no reason why Kentucky courts should not also adopt this doctrine. Rather than object to the adoption of the Noerr-Penning-ton doctrine by Kentucky courts, the appellants argued to the circuit court and to this court that the allegations in its complaint fell within the sham exception to the doctrine. This exception was mentioned by the Supreme Court in the Noerr case. See Noerr, 365 U.S. at 144, 81 S.Ct. 523.

The Supreme Court defined the sham exception in Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). That case also involved a Sherman Act violation. In discussing the sham exception to the Noerr-Pennington doctrine, the Court stated that its decision in the California Motor Transp. Co. case “left unresolved the question presented by this case — whether litigation may be sham merely because a subjective expectation of success does not motivate the litigant.” Professional Real Estate Investors, 508 U.S. at 57, 113 S.Ct. 1920. The Court answered the question in the negative and held that “an objectively reasonable effort to litigate cannot be sham regardless of subjective intent.” Id. Quoting from the Pennington case, the Court stated, “Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.” Professional Real Estate Investors, 508 U.S. at 58, 113 S.Ct. 1920 quoting Pennington, 381 U.S. at 670, 85 S.Ct. 1585.

The Supreme Court in the Professional Real Estate Investors case set out a two-part definition of sham litigation. The Court stated that the first part of the definition was that “the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.” Id. at 60, 113 S.Ct. 1920. The Court noted that courts could examine a litigant’s subjective motivation only if the litigation was objectively meritless. Id. The Court held that if the first part of the definition of sham litigation is met, then courts should focus on whether the litigation conceals “an attempt to interfere directly with the business relationships of a competitor” through the “use [of] the governmental process — as opposed to the outcome of that process — as an anti-competitive weapon.” Id. at 60-61, 113 S.Ct. 1920 quoting Noerr, 365 U.S. at 144, 81 S.Ct. 523 and Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). (Emphasis in original.)

In this case the Boone Circuit Court held that Stepner had an absolute right to appeal the rezoning by the City of Florence and that, therefore, his actions could not be “objectively baseless.” Thus, the court determined that the sham exception to the Noerr-Pennington doctrine would not apply to these facts, and it dismissed the appellants’ complaint. The appellants have appealed from that decision.

The appellants’ first two counts of their complaint, abuse of process and wrongful use of civil proceedings, related solely to Stepner’s actions in connection with the appeal from the rezoning decision by the City of Florence. The appeal was allowed pursuant to KRS 100.347(3) to “[a]ny person or entity claiming to be injured or aggrieved[.]” As a neighboring or adjacent property owner, Stepner had standing to challenge the zoning change. See 21st Century Dev. Co., LLC v. Watts, Ky.App., 958 S.W.2d 25, 28 (1997). In connection with the appellants’ claims of abuse of process and wrongful use of civil proceedings, we conclude that the circuit court properly determined that Stepner was shielded from liability by the Noerr-Pennington doctrine. Furthermore, given Stepner’s standing to appeal the zoning decision, his appeal cannot be said to have been objectively baseless. Thus, his subjective motivation, whatever it may have been, is irrelevant, and the sham exception to the Noerr-Pennington doctrine does not apply. See Professional Real Estate Investors, 508 U.S. at 60, 113 S.Ct. 1920.

The third count of the appellants’ complaint alleged intentional interference with contractual relations. The existence of this tort was recognized by the Kentucky Supreme Court in National Collegiate Athletic Ass’n v. Hornung, Ky., 754 S.W.2d 855, 857 (1988). This count of the complaint relates to both Stepner’s actions in appealing the rezoning decision and in connection with the City of Union’s unsuccessful attempt to annex the property. Because we have held that Stepner is shielded from liability by the Noerr-Pen-nington doctrine in connection with his appeal of the rezoning decision, we address only his actions concerning the City of Union’s unsuccessful annexation.

A party may not recover for the tort of intentional interference with contractual relations “absent proof that the opposing party ‘improperly’ interfered with his prospective contractual relation.” Hornung, 754 S.W.2d at 858. If there was an opposing party that interfered with the appellants in this regard, it was the City of Union, not Stepner. While Stepner may have been involved in advising, representing, or lobbying the City of Union in connection with its unsuccessful annexation of the property, any interference with contractual relations was by the City and not Stepner. Furthermore, any attempts by Stepner to persuade the City of Union to annex the property were protected by the Noerr-Pennington doctrine. See Noerr, 365 U.S. at 139, 81 S.Ct. 523. The circuit court correctly dismissed this allegation in the complaint as well.

The last count in the appellants’ complaint alleged violation of 42 U.S.C. § 1983. The appellants contend that Stepner’s actions in appealing the rezoning decision and his actions in counseling and advising the City of Union in its unsuccessful annexation of the property and in advising the City of Union in the two lawsuits filed against it by the City of Florence constituted a violation of their civil rights pursuant to 42 U.S.C. § 1983. Because we have held that Stepner is shielded from liability for his actions in connection with the appeal of the rezoning decision, we will address only the remaining allegations by the appellants.

“[Sjection 1983 actions in Kentucky are limited by the one-year statute of limitations found in section 413.140(l)(a).” Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th Cir.1990). Because Stepner’s actions in connection with the unsuccessful annexation by the City of Union ended with a settlement in April 1999 of the two lawsuits against the City, the cause of action pursuant to 42 U.S.C. § 1983 was brought by the appellants more than one year after the expiration of the applicable statute of limitation. Therefore, this count in the appellants’ complaint was also properly dismissed by the circuit court.

A court should not grant a motion to dismiss a complaint “unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim.” PariMutuel Clerks’ Union v. Kentucky Jockey Club, Ky., 551 S.W.2d 801, 803 (1977). See also James v. Wilson, Ky.App., 95 S.W.3d 875, 883 (2002). In determining whether a complaint should be dismissed, the issue is a matter of law. Id. at 884. We conclude that the appellants would not be entitled to relief under any set of facts that could be proved to support their claims.

Therefore, the order of the Boone Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes.


source: Caselaw Access Project

author: HENRY, Judge.

license: Public Domain

text:
    Larry REINLE, Appellant, v. COMMONWEALTH of Kentucky, Cabinet for Families & Children ex rel Della M. Reinle, Appellee.
    No. 2004-CA-001627-MR.
    Court of Appeals of Kentucky.
    July 29, 2005.

      Larry Reinle, LaGrange, KY, for appellant.
    John S. Kelley, Jr., Bardstown, KY, for appellee.
    Before BARBER, HENRY, and SCHRODER, Judges.
   OPINION

HENRY, Judge.

Larry Reinle appeals pro se from a judgment of the Nelson Circuit Court fixing the amount to be applied from the proceeds of the forced sale of his real estate to reduce the amount of his child support arrearage, and directing that the balance of the proceeds be held in trust to guarantee the payment of future support. We affirm in part and reverse in part, and remand for further proceedings.

In July, 2000, Larry was convicted of First Degree Arson and First Degree Assault and was sentenced to thirty years’ imprisonment. He was sentenced as a violent offender pursuant to the provisions of KRS 439.3401, and he is now an inmate at the Kentucky State Reformatory at La-Grange. By the time he becomes eligible to be considered for parole, both of his children will have been emancipated by age. See KRS 439.3401 and Hampton v. Commonwealth, 133 S.W.3d 438 (Ky.2004).

In 1993, the former Cabinet for Families and Children sued Larry for child support on behalf of Larry’s ex-wife Della, who had been receiving Aid to Families with Dependent Children. In July, 1993, a judgment was entered setting the amount of support at $200.00 per month for the two children, and Larry made the payments without incident until he was incarcerated as a result of his arson and assault convictions. By January 20, 2003, Larry’s child support arrearage had accrued to an amount in excess of $10,000.00, and the Nelson County Attorney’s Office obtained and filed a judgment lien against a parcel of real estate Larry owned in fee simple in Nelson County. A Complaint for Foreclosure was then filed, and the county obtained a judgment and an order of sale. The property was sold, and after deduction of fees and costs a net sum of $37,925.03 was realized, which is now held by the Nelson County Master Commissioner. By the time the trial court’s order was entered on May 20, 2004, the amount of the ai'rearage had grown to $16,273.13.

Larry originally asserted that he was entitled to a $5,000 homestead exemption. The circuit court decided the issue against him, and he appealed, but later moved this court for leave to withdraw the appeal, which was granted. Thereafter Della filed a motion requesting that the Master Commissioner hold the remaining sale proceeds, after the payment of accrued child support, to be applied to future child support. Larry filed motions requesting that 50% of the net sale proceeds be paid to him pursuant to KRS 405.470(2), and requesting that his part of the sale proceeds be paid to his adult daughter Tonya Gab-bert. The trial court overruled Larry’s motion requesting that he be paid 50% of the proceeds, and granted Della’s motion requesting that the remaining sale proceeds be held for payment of future child support. The court ordered that the remaining funds could be paid to Tonya Gab-bert if she would accept the money “as trustee for Larry and further provided she is willing to recognize that said funds are impressed with the requirement that they be used to satisfy Larry’s future monthly child support obligation to his daughters in question”. The order further provided that if Tonya did agree to hold the money as Larry’s trustee, she would be permitted to ask leave of court to expend funds from the trust for Larry’s extraordinary needs. Larry then filed this appeal.

Larry’s first argument on appeal is that it was error for the trial court to order disbursement of any part of the sale proceeds because an appeal is pending. We cannot be certain what Larry means by this argument and no authority is cited in support of it. We therefore decline to consider it. CR 76.12(4)(c)(iii) and (v), Pierson v. Coffey, 706 S.W.2d 409, 413 (Ky.App.1985).

Larry next asserts that KRS 405.470(2) provides that he is entitled to keep 50% of the proceeds of the sale of his real estate. The section says in pertinent part that “[fjifty percent (50%) of the disposable earnings against which a support debt is asserted shall be exempt and may be delivered to the obligor”. The trial court looked to KRS 427.005, which provides definitions to be used in KRS Chapter 427. Chapter 427 is part of Title XXXIX, titled Provisional Remedies, Enforcement of Judgments, and Exemptions. KRS 427.005(1) defines “earnings” and 427.005(2) defines “disposable earnings”. The trial court held that because none of the funds held by the Master Commissioner were “generated by personal services” by Larry they are not “earnings” and cannot therefore form a part of “disposable earnings” as defined in Chapter 427, and it follows that no part of the proceeds are exempt under the statute’s provisions.

Larry argues that the law applicable to his case is found in KRS Chapter 405 and that the court is required by KRS 405.405 to use the definitions in KRS 205.710 rather than those in KRS Chapter 427. KRS 405.405 states that “[t]he definitions provided in KRS 205.710 shall be applicable to KRS 405.430 to 405.530, unless the context requires otherwise”. Those portions of KRS Chapter 405 are titled “Administrative Process for Child Support”. KRS 205.710 defines “earnings” and “disposable earnings” as follows:

“Earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and notwithstanding any other provision of law exempting such payments from garnishment, attachment, or other process to satisfy support obligations and specifically includes periodic payments from pension and retirement programs and insurance policies of any kind. Earnings shall include all gain derived from capital, from labor, or both, including profit gained through sale or conversion of capital assets and unemployment compensation benefits, or any other form of monetary gain. The term “disposable earnings” means that part of earnings remaining after deductions of any amounts required by law to be withheld[.]

We agree with the trial court that KRS Chapter 405 does not apply to this case. The application of that chapter is limited to the administrative process used by the Cabinet to set and collect child support. As pointed out in the Commonwealth’s brief, if KRS Chapter 405 applied to this situation we would be required to dismiss the appeal due to Larry’s failure to exhaust the administrative remedies provided in KRS 405.490. The trial court correctly applied the definitions found in KRS Chapter 427, and the exemption does not apply. We also note that KRS 427.045 provides that disposable earnings which would otherwise be exempt from execution or garnishment are not exempt when the remedy is intended to provide for the maintenance of minor children.

Finally, Larry argues that the trial court erred by placing equitable restrictions on the use of the balance of the proceeds remaining after payment of the accrued support arrearages. The court in essence created a trust for the benefit of Larry and the children. In urging us to set the ruling aside Larry employs a separation of powers argument based solely on Sections 27 and 28 of the Kentucky Constitution. We find it unnecessary to address that argument because the General Assembly has already provided a means to address situations such as the one presented here. KRS 387.290(1) provides that “[t]he District Court of the county from which [a] convict was sent to the penitentiary ... may, upon the application of anyone interested, appoint a suitable curator of the estate of any person over the age of twenty-one (21) years confined in the penitentiary”.

Subsection (3) of the statute provides that the curator “shall, out of the effects held by him, provide for the support of the family and the education of the minor children of the convict”. One of the fundamental principles of equity jurisprudence is that a resort to equity is precluded when there is a plain, adequate, efficient and appropriate legal remedy. Brownsville Auto Co. v. Peaslee Gaulbert Co., 242 Ky. 519, 46 S.W.2d 1088, 1089 (1932); see also 27A Am.Jur.2d Equity §§ 29-36 (1996).

Those portions of the judgment of the Nelson Circuit Court creating a trust, and granting Larry Reinle’s motion to have the funds in excess of accrued child support arrearages paid to Tonya Gabbert as trustee, are reversed, and the case is remanded to the Nelson Circuit Court. Upon application of an interested person the court shall remand the matter to the Nelson District Court for the appointment of a suitable curator in accordance with the provisions of KRS 387.290. The curator shall satisfy the court of his or her fitness to serve, including the posting of any required bond. The curator’s duties shall include receipt of, and accounting for, any funds now held by the Master Commissioner of Nelson County on behalf of Larry Reinle, the payment of Larry Reinle’s legal child support obligations as they become due, and all other duties imposed by law or by the court. In all other respects the judgment of the Nelson Circuit Court is affirmed.

All CONCUR.

      . Kentucky Revised Statutes

      . On December 23, 2003, Governor Fletcher signed an Executive Order merging the former Cabinet for Families and Children and the Cabinet for Health Services to form the present Cabinet for Health and Family Services.

      . Kentucky Rules of Civil Procedure


text:
    Dennis G. BRYANT, Appellant, v. Jack C. HOWELL, Appellee.
    No. 2004-CA-000052-MR.
    Court of Appeals of Kentucky.
    Aug. 5, 2005.
    Dennis G. Bryant, West Liberty, KY, for Appellant.
    No brief for Appellee.
    Before HENRY, McANULTY and MINTON, Judges.
   OPINION

HENRY, Judge.

Dennis Bryant appeals pro se from the order of the Campbell Circuit Court dismissing his legal malpractice action as time-barred. We affirm.

On June 8, 1999, Bryant, with the advice of his retained counsel Jack Howell, entered a plea of guilty to one count of Assault in the First Degree in violation of KRS 508.010, and was sentenced to ten years’ imprisonment. Assault in the First Degree is a Class B felony punishable by a term of ten to twenty years in the penitentiary. KRS 508.010(2), 532.060(2)(b). As a result of the plea agreement negotiated by Howell, the second count of the indictment, charging Bryant with being a Persistent Felony Offender in the Second Degree, was dismissed. If Bryant had been convicted of both Assault in the First Degree and of being a Persistent Felony Offender in the Second Degree, he would have been ineligible for probation, shock probation, conditional discharge or parole, (except as provided in KRS 439.3401(3)), and he could have received a sentence of life imprisonment. KRS 532.080(6)(a).

Although in view of the possible outcomes a ten-year sentence might seem quite reasonable, Bryant, upon reflection, became displeased. His dissatisfaction with Howell’s representation springs from his apparent belief that he was entitled to be released on his Kentucky charges because he claims that he was not given an extradition hearing or a pre-transfer hearing in either Kentucky or Ohio. Those matters do not directly concern the present action, and we will not discuss them further.

The circuit court dismissed the case on the ground that it is barred by KRS 413.245, the statute of limitations applicable to professional service malpractice. That statute says:

Notwithstanding any other prescribed limitation of actions which might otherwise appear applicable, except those provided in KRS 413.140, a civil action, whether brought in tort or contract, arising out of any act or omission in rendering, or failing to render, professional services for others shall be brought within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured. Time shall not commence against a party under legal disability until removal of the disability.

The circuit court found that Bryant alleged in his pleadings that the acts of legal malpractice complained of occurred between March 17 and July 20, 1999. Final sentencing was held on July 20, 1999, and no appeal was filed. The complaint in this action was filed on June 28, 2003. The circuit court noted that in his pleadings, Bryant cited Stephens v. Denison, 64 S.W.3d 297 (Ky.App.2001) in support of his claim that the action is not barred by the statute. The court merely noted that Stephens “is inapposite in the instant case where no appeal was, in fact, filed.” Before this Court Bryant argues that the statute was tolled by the filing of a state habeas corpus petition, which he says is now before the United States Supreme Court on a petition for a Writ of Certiora-ri. No copy of the habeas corpus petition or any of the subsequent pleadings was appended to Bryant’s brief as an exhibit in this case.

Stephens, which also involved a suit alleging legal malpractice arising out of a criminal conviction, holds that the statute of limitations does not begin to run until such time as damages have become fixed and non-speculative; that is, until the outcome of an appeal of the conviction is final. Id. at 299-301.

Bryant does not argue that his direct appeal is not final. Instead, he points out that his habeas corpus petition is not yet final, and leaves it to this Court to extrapolate his argument that for purposes of tolling the statute of limitations for attorney malpractice, a pending habeas corpus petition is the same as a pending appeal. This narrow question appears to be one of first impression in Kentucky.

In support of his position that the statute of limitations is tolled by the filing of a petition for habeas corpus relief, Bryant cited Stephens, KRS 453.190 and KRS 31.110(2), Michels v. Sklavos, 869 S.W.2d 728 (Ky.1994), Hibbard v. Taylor, 837 S.W.2d 500 (Ky.1992), KRS 413.245 and KRS 413.140. KRS 453.190 discusses the requirements for proceeding with litigation informa paupeñs; KRS 31.110(2) discusses the appointment of counsel for needy persons; KRS 413.245 is the statute of limitations for professional service malpractice, set out above, and KRS 413.140, cited in the body of KRS 413.245, refers to additional actions to be brought within a year. We have been unable to discern any specific reason for the citation of the listed statutory provisions in this part of Bryant’s brief, as no argument or discussion follows their citation. The cited cases, Michels and Hibbard, are not at odds with the holding of Stephens, and are cited and extensively discussed along with other cases, notably Alagia, Day, Trautwein and Smith v. Broadbent, 882 S.W.2d 121 (Ky.1994), in Faris v. Stone, 103 S.W.3d 1 (Ky.2003). In Fans the appellant, Donna Faris, discovered her claim for attorney malpractice in August, 1995, but failed to file an action on the claim until November 1997. She had, however, filed a motion under CR 60.02, seeking to reopen the underlying divorce case in June 1996, less than one year after discovery of the malpractice claim. Donna argued that her divorce action did not become “fixed and non-speculative” until the denial of her CR 60.02 motion. The circuit court agreed, and held that the filing of the CR 60.02 motion tolled the running of the statute of limitations on Donna’s malpractice claim. This Court reversed the circuit court’s decision, and the Supreme Court affirmed. After discussing the leading cases in this area, cited above, the Supreme Court noted that CR 60.02

is not a part of the normal progression of litigation, but is an extraordinary procedure whereby a collateral attack is made upon a judgment upon specific grounds set forth in the rule. As such, a CR 60.02 claim is not of the same character as an appeal of right or a motion for discretionary review. It is separate and distinct from the main case, and a party may not use it as a means to extend a statutory period.

Id. at 4. The Court then went on to observe that “in malpractice cases in which the underlying negligence occurred during the course of formal litigation, Kentucky decisional law has consistently held that the injury becomes definite and non-speculative when the underlying case is final.” Id. at 5.

Like the remedy provided by CR 60.02, habeas corpus is “an extraordinary remedy which is available only when relief by the usual legal processes is inadequate”. Gray v. Wingo, 423 S.W.2d 517, 519 (Ky.1968), citing Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666 (1944). A petition for the writ constitutes a collateral attack on the judgment. Braden v. Lady, 276 S.W.2d 664, 666 (Ky.1955). We think that for the purpose of its effect on KRS 413.245, a petition for a writ of habeas corpus following a criminal conviction is indistinguishable from CR 60.02.

As the Kentucky Supreme Court observed in Fans, if the pendency of a CR 60.02 motion extended the statute of limitations where the malpractice is alleged to have occurred in the underlying litigation, statutes of limitations would be rendered meaningless, because several sections of CR 60.02 are without any time limit. Paris at 4. The same reasoning applies with equal force to the filing of a petition for a writ of habeas corpus in a criminal case. Therefore, we affirm.

ALL CONCUR.

      . Kentucky Revised Statute.

      . KRS 439.3401, the "violent offender” statute, provides that persons convicted of a Class B felony who are classified as "violent offenders” are not eligible for parole until they have served 85% of their sentence.

      . Kentucky Rules of Civil Procedure.


author: TAYLOR, Judge.

text:
    Brandon COMBS, Petitioner, v. Hon. C. Hunter DAUGHERTY, Judge, Jessamine Circuit Court, Respondent, and Jennifer Combs, Real Party in Interest.
    No. 2005-CA-000940-OA.
    Court of Appeals of Kentucky.
    Aug. 5, 2005.
    Brandon Combs, Nicholasville, KY, pro se.
    Before MINTON, SCHRODER, and TAYLOR, Judges.
   OPINION AND ORDER

TAYLOR, Judge.

Petitioner, Brandon Combs, pro se, petitions this Court to prohibit respondent, Jessamine Circuit Court, from enforcing its order of March 28, 2005, compelling Brandon to produce discovery to the real party in interest, Jennifer Combs. Neither the circuit court nor Jennifer responded to this original action.

On May 19, 2005, Brandon filed a Ky. R. Civ. P. (CR) 76.36(4) motion for intermediate relief seeking a stay of enforcement of a May 16, 2005, order, which provided a warrant of arrest would issue if Brandon did not tender the requested discovery by May 26, 2005. This Court granted the motion for intermediate relief and issued a temporary stay of the May 16, 2005 order by order entered May 25, 2005.

This Court has considered Brandon’s arguments and the appended record, including the videotape of the March 24, 2005, hearing on Jennifer’s motion to compel, and, being sufficiently advised, ORDERS that the petition for writ of prohibition be GRANTED.

On December 15, 2004, Jennifer served Brandon with a request for production of a number of his personal financial documents. The request invoked CR 34 but did not otherwise state a basis. On March 18, 2005, Jennifer filed a motion to compel a response to her request. Therein, Jennifer argued that Brandon had neither objected nor complied with the request for production of documents and that the requested discovery was “relevant, proper, and required for the purpose of calculating child support pursuant to the Kentucky Revised Statutes and said request should be answered.” It was not until the hearing on that motion that Jennifer’s counsel explained that she had changed employment with a resulting change in her insurance. The circuit court advised Brandon that this change in circumstance required taking a look at the entire issue and granted Jennifer’s motion to compel discovery.

In this original action, Brandon recognizes that a circuit court has continuing jurisdiction over child support issues arising subsequent to a divorce decree. However, Brandon, contends the circuit court acted without jurisdiction in this instance because there was no motion for modification of child support pending before the court. Hence, Brandon argues there was no legitimate basis for the circuit court to grant Jennifer’s motion to compel. Brandon argues in the alternative that the circuit court erred in exercising its jurisdiction by issuing an order that was arbitrary and capricious and which violated Sections 2 and 115 of the Kentucky Constitution.

Upon review of the record, we conclude that Brandon has satisfied the prerequisites for entitlement to a writ and that this Court’s intervention is required to prevent a miscarriage of justice. See Hoskins v. Maricle, 150 S.W.3d 1 (Ky.2004); see also, Carpenter v. Wells, 358 S.W.2d 524 (Ky.1962); Bender v. Eaton, 343 S.W.2d 799 (Ky.1961).

In support of this ruling, we note that CR 26.02(1) provides that parties “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action .... ” We also observe that a circuit court does have continuing jurisdiction over child support matters. However, the issue presented in this case is one of first impression: whether a party may engage in unlimited discovery regarding child support in a divorce proceeding after a decree has been entered, without first filing a motion to modify the child support award.

The modification of a child support award is governed by KRS 403.213(1). Under this statute, the provisions of any decree relating to child support may be modified only upon a showing of a material change in circumstances that is substantial and continuing. In order to seek a modification of child support, the burden was on Jennifer to make some showing of a material change of circumstance before requiring Brandon to produce personal financial documents and before moving the circuit court to compel him to do so. See Wilcher v. Wilcher, 566 S.W.2d 173 (Ky.App.1978); Farmer v. Farmer, 506 S.W.2d 109 (Ky.1974).

The record in this case shows that Jennifer did not file any motion to modify child support before serving a discovery request on Brandon, nor was such a motion pending when she moved to compel the discovery. We believe that Jennifer’s statement in her motion to compel that the discovery sought was “relevant, proper, and required for the purpose of calculating child support” was insufficient to give Brandon adequate notice of the reason for her request. We also believe the statement made by Jennifer’s counsel at the hearing that child support needed to be recalculated because of Jennifer’s change in employment (wherein Brandon responded that he had not been previously made aware of this fact) was untimely and otherwise insufficient to justify a discovery hearing at that time.

Under these circumstances, we are of the opinion that the circuit court should have declined to permit discovery until Jennifer properly presented her request for a modification of child support under KRS 403.213 and that the court erred in granting the discovery request prior to the filing of a motion for modification.

Therefore, the Jessamine Circuit Court is hereby PROHIBITED from enforcing its orders entered March 28, 2005, and May 16, 2005. The matter is REMANDED to the circuit court for further proceedings, as needed, consistent with this opinion and order.

ALL CONCUR.

      . The original action was filed on May 2, 2005. Pursuant to Ky. R. Civ. P. 76.36(2), any response was due to be filed by May 12, 2005.

      . Since Jennifer chose not to respond to the petition, we shall assume that the record provided by Brandon is the complete record of this matter.

      . Brandon attached as an exhibit to his petition a copy of a letter to Jennifer’s counsel, dated January 12, 2005, wherein he advised that he would not formally respond to the request because "no action is pending, therefore I know of no basis that discovery will be taken....”

      . The parties were divorced by decree of the Jessamine Circuit Court entered on July 23, 2001.


author: JOHNSON, Judge.

text:
    Robert CLARK, Appellant, v. COMMONWEALTH of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES, Appellee.
    No. 2005-CA-000575-ME.
    Court of Appeals of Kentucky.
    Aug. 12, 2005.

      Nellie M. Draus-Stallings, Louisville, KY, for appellant.
    Jason F. McGregor, Jefferson Co. Attorney’s Off., Louisville, KY, for appellee.
    Before COMBS, Chief Judge; HENRY and JOHNSON, Judges.

        .Id.

   OPINION AND ORDER

JOHNSON, Judge.

The matter below was a Dependency, Neglect, and Abuse Petition. Appellee moves the Court to dismiss this expedited appeal based on its claim that the order entered on February 3, 2005, from which the appeal was taken, is not final and appealable and that a subsequent notice of appeal was not filed from the dispositional order entered on March 9, 2005. Appel-lee argues that the appeal is taken from the wrong order but cites no authority that is directly on point to support its argument.

In response, appellant invites the Court to apply the “relation forward” principle adopted by the Kentucky Supreme Court in Johnson v. Smith. We believe that appellant’s argument has merit. Therefore, it is ORDERED that appellee’s motion be DENIED.

We note that the order of February 8, 2005, was entered following the trial of the action. It made the determination that act(s) of domestic violence had occurred in the presence of the children and that the County Attorney had proven by a preponderance of the evidence that the children’s exposure to the domestic violence placed them at risk as defined in KRS 600.020. Further, the order set a number of conditions pending disposition to be made at a later date.

We believe that the “relation forward” concept may properly be applied to this matter so as to allow what is a premature notice of appeal from an intermediate order to proceed even though a second notice of appeal was not taken from the final order. While the Kentucky Supreme Court applied the concept in Johnson to a procedurally different situation, we read language in that decision to suggest that we should apply that concept to the procedural posture of this case. Accordingly, we now adopt that application.

In Johnson, the Court stated as follows:

In federal appellate practice a premature notice of appeal (absent prejudice), in reasonable circumstances, is deemed simply to relate forward and become effective on the date the trial court tenders its final judgment. See FirsTier Mtge. v. Investors Mortgage Ins. Co., 498 U.S. 269, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991) [emphasis original].

Subsequently, the Supreme Court further discusses the federal concept:

We deem the federal approach adopted in the FirsTier Mtge. case, supra, appropriate for present purposes. The U.S. Supreme Court states the premature notice of appeal protects the litigant who “reasonably but mistakenly believes [the order or judgment entered against him] to be a final judgment, while failing to file a notice of appeal from the actual final judgment.” 498 U.S. at 276, 111 S.Ct. at 652-53. This rule permits a premature notice to be effective to invoke the jurisdiction of the appellate court upon final judgment where, as here, the circumstances suggest filing a notice of appeal would not be unreasonable.

The above quote includes a footnote which adds that the federal concept does not allow “a notice of appeal from a clearly interlocutory decision — -such as a discovery ruling or a sanction order.” However, this is not the type of ruling that is challenged in the instant appeal.

We are of the opinion that it was not unreasonable for appellant to believe that the order of February 3, 2005, was final and appealable since it was entered following trial and since it made the substantive findings required to be made to bring the Petition to resolution. In addition, it does not appear to the Court that appellee will be prejudiced by our decision.

Therefore, consistent with the principle articulated in Johnson, we hold that the premature notice of appeal should relate forward to the date of entry of the final order, thereby allowing it to effectively invoke our jurisdiction. This appeal shall proceed with appellant’s brief being due no later than thirty (30) days from the date of entry of this order.

ALL CONCUR.

      . Appellee also argues that this appeal is untimely but the record shows that the appeal was timely filed on the last day of the period provided under Kentucky Rules of Civil Procedure (CR) 73.02(l)(a). See CR 6.01.

      . 885 S.W.2d 944 (Ky.1994).

      . Johnson, 885 S.W.2d at 947.

      . Id. at 950.


author: PER CURIAM.

text:
    Jack D. HALEY, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. WD 64028.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Sept. 20, 2005.
    Jonathan L. Laurans, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: SMART, P.J., ELLIS and HARDWICK, J.J.
   ORDER

PER CURIAM.

Jack Haley, Jr. appeals from the denial of his Rule 29.15 motion, after an eviden-tiary hearing. Upon review of the record, we find no error and affirm the motion court’s judgment. We have provided the parties with a Memorandum explaining the reasons for our decision, because a published opinion would have no precedential value.

AFFIRMED. Rule 84.16(b).


author: VICTOR C. HOWARD, Judge.

text:
    CITY OF BELTON, Missouri, Respondent, v. SMOKY HILL RAILWAY & HISTORICAL SOCIETY, INC., Appellant.
    No. WD 64131.
    Missouri Court of Appeals, Western District.
    May 17, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 2, 2005.
    As Modified Aug. 2, 2005.
    Application for Transfer Denied Sept. 20, 2005.

      William N. Marshall III, Kansas City, MO, for respondent.
    Daniel L. Fowler and Victor B. Peters, Kansas City, MO, for appellant.
    Before SPINDEN, P.J., and HOWARD and NEWTON, JJ.
   VICTOR C. HOWARD, Judge.

Appellant Smoky Hill Railway & Historical Society, Inc. (“Smoky Hill”), appeals from a conviction in the Circuit Court of Cass County for nine municipal ordinance violations in the Respondent City of Belton (“Belton”). Smoky Hill argues three points on appeal. In Point I, Smoky Hill argues the trial court erred in finding Smoky Hill guilty of violating Belton’s ordinances, because the ordinances are invalid as applied to Smoky Hill, in that regulation of railroads by local authorities is preempted by the Interstate Commerce Commission Termination Act of 1995. In Point II, Smoky Hill argues the trial court erred in finding Smoky Hill guilty of violating Belton’s ordinances, because the application of subsequently enacted zoning ordinances to Smoky Hill’s pre-existing right-of-way is an unconstitutional taking of private property without compensation or due process. In Point III, Smoky Hill argues the trial court erred in finding Smoky Hill guilty of violating Belton’s occupational licensing codes, because the codes are invalid as applied to Smoky Hill, in that Belton exceeded the jurisdiction granted by statute to fourth-class cities by licensing, regulating and taxing a railroad. For the following reasons, we affirm the judgment of the trial court.

Background

Burlington Northern Railway formerly owned and operated approximately five miles of railroad track that runs through Belton. Burlington Northern ceased operations on those tracks in the late 1970’s or early 1980’s and officially abandoned its use of the line in 1988. The railroad tracks were not used again until Smoky Hill purchased the line in 1991. The north end of the line owned by Smoky Hill is physically joined with the Kansas City Southern Railway through a device known as a removable derail, which prohibits either entity from operating over the tracks of the other. The removable derail is operated by Kansas City Southern Railway. Kansas City Southern Railway has no trackage rights over Smoky Hill’s line. Kansas City Southern Railway is also not insured to operate trains on Smoky Hill’s railroad tracks.

Smoky Hill’s tracks cross active public highways, specifically Highway 58 and Y Highway. Smoky Hill crosses other streets and has active signals at some crossings. Smoky Hill is inspected by the Federal Railroad Administration (“FRA”) for compliance with federal railroad laws and regulations. The FRA inspects the rails, ties, crossing signals, rail cars, facilities, locomotives, and the cars that operate as a museum. The FRA oversees every aspect of the railroad, including the historical side of the museum and the railroad operations. Smoky Hill is required to submit reports to the FRA and is subject to violations and fines if it does not submit reports. Smoky Hill is also inspected and regulated by the Missouri Department of Transportation.

Smoky Hill’s primary business is to operate an “excursion” or “tourist” railroad. The excursion railroad is powered by a diesel locomotive and has a top speed of ten miles per hour. Witnesses for both parties testified that they never observed the excursion railroad travel north of downtown Belton or toward the north end of the line that connects with Kansas City Southern. Smoky Hill also engaged in the ancillary business of storing freight cars. Smoky Hill stored the freight cars on tracks in areas that have been zoned as commercial and residential areas. Some of the freight cars were defaced with graffiti, and some freight cars had their doors standing open.

Belton charged Smoky Hill with nine violations of Belton zoning ordinances: (1) leasing tracks for the purpose of storing freight cars in a commercial area on November 5, 2002, in violation of Article 2, Section 6B of the zoning ordinance; (2) leasing tracks for the purpose of storing freight cars in a residential area on November 5, 2002, in violation of Article 2, Section 2B of the zoning ordinance; (3) allowing freight cars to remain on the tracks with open doors and bearing graffiti markings on November 5, 2002, in violation of Section 16-3(2) of the municipal code; (4) conducting business other than the type of business listed on the occupational license (operating a storage facility when limited to operating a demonstration museum railroad) on November 5, 2002, in violation of Section 12-10 of the municipal code; (5) leasing tracks for the purpose of storing nineteen freight cars in a residential area on April 10, 2003, in violation of Article 2, Section 2B of the zoning ordinance; (6) operating a business other than the type of business listed on the occupational license on April 10, 2003, in violation of Section 12-10 of the municipal code; (7) operating a business other than the type of business listed on the occupational license on April 16, 2003, in violation of Section 12-10 of the municipal code; (8) leasing tracks for the purpose of storing nineteen freight cars in a residential area on April 16, 2003, in violation of Article 2, Section 2B of the zoning ordinance; and (9) leasing tracks for the purpose of storing nineteen freight cars in a residential area on April 24, 2003, in violation of Article 2, Section 2B of the zoning ordinance.

Smoky Hill moved to dismiss the charges, and the motion to dismiss was overruled on February 13, 2004. All nine violations were consolidated for trial on April 16, 2004. Following a bench trial, the trial court found Smoky Hill guilty of all nine violations and sentenced Smoky Hill to pay fines totaling $8,250. This appeal follows.

Standard of Review

Belton and Smoky Hill agree that this appeal concerns statutory interpretation, which is an issue of law. Therefore, we review de novo. Barker v. Barker, 98 S.W.3d 532, 534 (Mo. banc 2003).

Point I

In Point I, Smoky Hill argues the trial court erred in finding Smoky Hill guilty of violating Belton’s ordinances, because the ordinances are invalid as applied to Smoky Hill, in that regulation of railroads by local authorities is preempted by the Interstate Commerce Commission Termination Act of 1995.

The Interstate Commerce Commission Termination Act of 1995 (ICCTA) provides, in relevant part, at 49 U.S.C. § 10501:

(a)(1) Subject to this chapter, the [Surface Transportation] Board has jurisdiction over transportation by rail carrier that is—
(A) only by railroad; or
(B) by railroad or water, when the transportation is under common control, management, or arrangement for a continuous carriage or shipment.
(2)Jurisdiction under paragraph (1) applies only to transportation in the United States between a place in—
(A) a State and a place in the same or another State as part of the interstate rail network;
(b) The jurisdiction of the Board over—
(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,
is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

(Emphasis added.)

In support of Point I, Smoky Hill argues that the ICCTA preempts local zoning ordinances. Smoky Hill claims that a city cannot apply its local zoning ordinances to property used for railroad operations because these regulations could be used to defeat a railroad’s maintenance and upgrading activities and could interfere with the operational and economic efficiency of railroad operations in interstate commerce. Smoky Hill argues that it operates in interstate commerce because (1) it is a Kansas corporation that operates in Missouri as a foreign corporation; (2) Smoky Hill’s railroad cars came from other states; and (3)some of the passengers for its excursion trains come from other states. According to Smoky Hill, each of the local ordinances it was convicted of violating are preempted as applied to Smoky Hill because Smoky Hill is a railroad and the ordinances in question operate to regulate its railroad activities. Smoky Hill claims to be a railroad over which the Surface Transportation Board has exclusive jurisdiction under 49 U.S.C. § 10501(b), because its track is physically connected with the track of the Kansas City Southern Railway, its track is the same gauge as most railroads across the United States, and it is connected to the general system of railroads of the United States. Smoky Hill also argues that while its primary business is to operate an excursion train, another part of its business is the storage of freight cars, and it is a common business practice for excursion railroads to lease property for freight car storage.

Smoky Hill argues that by enforcing these ordinances, Belton dictates where rail cars are stored, the condition in which they are stored and the business a railroad can conduct. Smoky Hill claims that all of these areas are related to railroad operations and the use of yards, tracks, and other facilities. Smoky Hill also argues that nuisance ordinances may not be used to interfere with railroad operations. Smoky Hill claims that in order to comply with the Belton municipal code, it would have to re-paint, sandblast, or cover railroad cars that it does not own.

Although a court’s analysis of the scope of a federal preemption statute must begin with its text, “interpretation of that language does not occur in a contextual vacuum. Rather, that interpretation is informed by two presumptions about the nature of preemption.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700 (1996). First, it is presumed that states’ historic police powers are not preempted unless it is the clear intent of Congress. Id. Second, a court’s analysis of the scope of a statute’s preemption is determined by the congressional purpose in enacting the statute. Id. at 485-86, 116 S.Ct. at 2250. Congressional purpose in determining the scope of a preemption statute is “revealed not only in the text, but through the reviewing court’s reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.” Id. at 486, 116 S.Ct. at 2251.

Courts have limited the preemptive sweep of the ICCTA in many instances. “As for the limits imposed by the commerce clause, it is well-established that Congress may regulate intrastate rail traffic where that traffic substantially affects interstate commerce by virtue of its being part of an interstate rail network.” III. Commerce Comm’n v. Interstate Commerce Comm’n, 749 F.2d 875, 886 (D.C.Cir.1984) (emphasis added). “Congress did not intend ICCTA to preempt state or local regulation with only a remote or incidental effect on rail transportation.” Native Vill. of Eklutna v. Alaska R.R. Corp., 87 P.3d 41, 57 (Alaska 2004) (quotation and citations omitted). “Local regulation may bring some hardship or inconvenience to a railroad without causing the sort of economic impact that would trigger preemption.” Id. The ICCTÁ does not preempt all state and local regulations with any economic impact on rail operations. In re Vermont Ry., 171 Vt. 496, 769 A.2d 648, 654 (2000). Fla. East Coast Ry. v. City of West Palm Beach, 266 F.3d 1324, 1338 n. 11 (11th Cir.2001), provides:

In reducing the regulation to which railroads are subject at state and federal levels, the ICCTA concerns itself with the efficiency of the industry as a whole across the nation. See 49 U.S.C. § 10101 (1994 & Supp.1998). No statement of purpose for the ICCTA, whether in the statute itself or in the major legislative history, suggests that any action which prevents an individual firm from maximizing its profits is to be preempted.

“Allowing localities to enforce their ordinances with the possible incidental effects such laws may have on railroads would not result in the feared ‘balkanization’ of the railroad industry as companies sought to comply with those laws.” Id. at 1339.

In its operation as a tourist excursion railroad that runs exclusively on five miles of track, Smoky Hill is not part of the “interstate rail network” under 49 U.S.C. § 10501(a)(2)(A). The application of Bel-ton’s municipal codes and zoning ordinances to Smoky Hill is not inconsistent with the congressional intent for ICCTA to promote the efficiency of the interstate rail network, and does not hinder interstate commerce in any meaningful way. Although the FRA inspects Smoky Hill to ensure compliance with grade crossing and accident reporting regulations, Smoky Hill is not part of the interstate rail network for which local ordinances are preempted under 49 U.S.C. § 10501(b).

In Branson Scenic Railway v. Director of Revenue, 3 S.W.3d 788, 790 (Mo.App. W.D.1999), a tourist railroad that traveled over trackage in both Arkansas and Missouri sought a state sales tax refund on the grounds that its ticket sales were interstate commerce and exempt from the tax. Branson Scenic provides that “[w]hen a carrier offers rides for fun, as opposed to offering them for the purpose of actually getting the rider to a particular place, then the carrier is providing amusement rides. It is not in the transportation business, even though its mode of amusement is mobile.” Id. at 792. Branson Scenic affirmed the administrative decision to reject the railway’s claim for a sales tax refund. Id.

Smoky Hill is similar to the railroad in Branson Scenic in that it offers rides for amusement rather than providing transportation between destinations. Therefore, Smoky Hill is not in the transportation business and is not a part of the interstate rail network for which the ICC-TA, at least partially, preempts local regulation.

The fact that Smoky Hill leases part of its property to a third party for the storage of rail cars does not overcome the presumption that Belton can appropriately exercise its police powers to regulate this ancillary use. Belton’s enforcement of guidelines for the health, safety and welfare of its citizens in this instance does not frustrate federal regulation of the interstate railroad industry in spite of Smoky Hill’s unsubstantiated claim of a potential and peripheral effect on rail transportation.

Point I is denied.

Point II

In Point II, Smoky Hill argues the trial court erred in finding Smoky Hill guilty of violating Belton’s ordinances because the application of subsequently enacted zoning ordinances to Smoky Hill’s pre-existing right-of-way is an unconstitutional taking of private property without compensation or due process.

In support of Point II, Smoky Hill argues that it is a violation of the Missouri Constitution for a zoning ordinance to prohibit a use of land that pre-existed the ordinance. Smoky Hill claims that, while Belton first adopted its zoning ordinance in 1974, the evidence established that the land was used for a railroad as early as 1918. According to Smoky Hill, in 1918, the area where it currently stores freight cars was outside of the Belton city limits. Smoky Hill claims that the railroad tracks have been in their present form for at least forty years and have not been removed during that time, and, while Burlington Northern sought to abandon its own rail service on the tracks, it did not seek to abandon all rail service or have the right-of-way abandoned. Smoky Hill cites a 1988 ICC Certificate and Decision in support of its claim that it was clearly contemplated by Belton, Smoky Hill, and Burlington Northern that Smoky Hill would continue to provide rail service, including freight service if needed. Smoky Hill argues that the only change approved by ICC was Burlington Northern’s cessation of service. Smoky Hill concludes that its right of way is exempt from Belton’s zoning ordinances because the use of the land as a railroad preceded both the presence of Belton in the area where the violations occurred and preceded the adoption of any Belton zoning ordinances.

Article 7, Section D of the Belton Zoning Ordinance provides, in relevant part:

(8) Abandonment or Discontinuance: When a nonconforming use is discontinued or abandoned, for a period of twelve (12) consecutive months, such use shall not thereafter be re-established or resumed, and any subsequent use or occupancy of such land shall comply with the regulations of the zoning district in which such land is located.

In the instant case, the evidence was that Burlington Northern’s use of the tracks was discontinued in the late 1970’s or early 1980’s and did not resume until 1991, when Smoky Hill began operations as a tourist railroad. Under the plain language of the zoning ordinance, use of the tracks for freight car storage was a non-conforming use that was discontinued for a period of at least twelve months. Therefore, Smoky Hill’s use and occupancy of the tracks must comply with the regulations of the zoning district. Smoky Hill’s argument that Burlington Northern intended for Smoky Hill to continue to provide rail service and did not seek to abandon the right-of-way is irrelevant, because the intent to continue a non-conforming use is not a factor in determining whether a discontinued non-conforming use is permitted.

In support of Point II, Smoky Hill cites Missouri Rock, Inc. v. Winholtz, 614 S.W.2d 734, 739 (Mo.App. W.D.1981), which provides that “[zjoning ordinances must permit continuation of non-conforming uses in existence at the time of enactment. .. .If a zoning regulation does not expressly exempt existing uses, the regulation will be construed as having only prospective effect to preserve the order from invalidity.” In Winholtz, Clay County enacted a zoning ordinance that would have restricted a mining operation that was in existence at the time of enactment. Id. at 737. Winholtz held that “open cut mining by Missouri Rock on the subject land is, so long as continued in original form, a nonconforming use exempt from regulation by the amended zoning order of Clay County.” Id. at 739 (emphasis added). Smoky Hill also cites Odegard Outdoor Advertising, LLC v. Board of Zoning Adjustment of Jackson County, 6 S.W.3d 148, 150 (Mo. banc 1999), which held that billboards were exempt from compliance with a zoning ordinance enacted after the billboards were established.

The instant case is distinguishable from Winholtz and Odegard. In Winholtz and Odegard, the non-conforming uses were never discontinued subsequent to the enactment of the zoning ordinances. By contrast, the use of the railroad tracks in the instant case was discontinued for several years after the enactment of the Belton zoning ordinance. Winholtz and Odegard allowed non-conforming uses, provided that they were continuing uses. In this case, Smoky Hill seeks to continue a nonconforming use that was discontinued for longer than the Belton zoning ordinance permits. Because the use of the tracks was discontinued for more than twelve months, Smoky Hill must comply with all applicable zoning ordinances.

Point II is denied.

Point III

In Point III, Smoky Hill argues the trial court erred in finding Smoky Hill guilty of violating Belton’s occupational licensing codes, because the codes are invalid as applied to Smoky Hill, in that Belton exceeded the jurisdiction granted by statute to fourth-class cities by licensing, regulating, and taxing a railroad.

In support of Point III, Smoky Hill argues a municipality’s power to regulate businesses and issue licenses is derived from section 94.270, and absent a specific grant of power by the state, the city has no such power because it is a creature of the legislature and has only the power specifically delegated to it by the legislature. Smoky Hill argues that because section 94.270 does not specifically grant a municipality the power to tax or regulate railroads, Smoky Hill is exempt from Belton’s occupational licensing ordinance. Smoky Hill claims that because its occupational license states that it is a “demonstration museum railroad,” it should be considered a railroad for the purpose of section 94.270. Smoky Hill concludes that the state has not given municipalities the power to regulate railroads, and, therefore, Belton may not enforce its municipal ordinances against Smoky Hill.

Section 94.270 provides, in relevant part, that “[t]he mayor and board of aldermen shall have power and authority to regulate and to license and to levy and collect a license tax on .... museums.”

In the instant case, Belton is not attempting to regulate Smoky Hill as a railroad but rather as a museum. Smoky Hill has obtained an occupational license to do business as a “demonstration museum railroad,” and Belton does have authority under section 94.270 to regulate museums. Although freight car storage may be in the ordinary business of a railroad, it is not in the ordinary business of a museum. Although section 94.270 does not allow fourth-class cities to regulate railroads, Smoky Hill has an occupational license to operate as a museum, and, therefore, it must comply with Belton’s occupation license ordinances.

Point III is denied.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

SPINDEN, P.J., and NEWTON, J., concur.

      . Statutory references are to Revised Statutes of Missouri 2000, unless otherwise indicated.