concurring.
I agree with the result reached by my colleagues. However, the question of waiver of a jury determination of damages, as required by § 242 of the Kentucky Constitution and KRS 416.620, calls for additional comment and clarification.
The facts in this case are unique in several respects. Both the condemnor and the condemnee waived a jury determination of damages. Although the majority may be correct in concluding that the jury right was provided for the benefit of the landowner, I believe both sides in eminent domain proceedings have a right to a jury trial on damages, and therefore both must join in any waiver. When the condemnor and condemnee join to waive a jury trial, who is left to object?
In this case, it is Equitable. Equitable is the successor to the condemnor, L & M Oil and Gas Company. Its involvement came as a result of L & M’s insolvency after the taking but before the awards were finalized. Equitable foreclosed on L & M and purchased its assets. As successor in title to the condemned property, it became liable to pay any unpaid balance. Equitable was aware of the action, but offered no objection to the procedure. Its predecessor waived its rights to a jury determination, and Equitable did nothing to protect itself until a sizable judgment fell on it. Equitable was involved in the damage phase of the condemnation action before its conclusion. It either waived its right to attack the awards on the jury issue, or it is at least estopped from raising the question. We can no longer hear its plea.
The landowners initiated this action to collect their awards. Equitable argues that *666they are void. At worst, they might be voidable. Since the awards are not void, the challenge is untimely. CR 60.02 and CR 60.03.
The judgment of the Ohio Circuit Court should be affirmed.