Opinion
NO. 2011-CA-000902-MR
05-03-2013
PAUL THOMAS APPELLANT v. BETTY JEAN GRAHAM; KIMBERLY RICHARDSON, A/K/A KIMBERLY FAY SONS; CAROLYN RENEE MILLER; SHIRLEY FAYE CORREA; GREGORY DELANA STONE, II; AND THOMAS ALLEN STONE APPELLEES
BRIEFS FOR APPELLANT: Dodd D. Dixon Winchester, Kentucky BRIEF FOR APPELLEE: Rodney G. Davis Richmond, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE, JR, JUDGE
ACTION NO. 09-CI-00933
OPINION AND ORDER
DISMISSING
BEFORE: ACREE, CHIEF JUDGE; KELLER AND MOORE, JUDGES. ACREE, CHIEF JUDGE: Appellant Paul Thomas appeals the Clark Circuit Court's May 4, 2011 order distributing the proceeds of a sale of indivisible real property. Appellant asserts the circuit court abused its discretion by permitting Appellees' attorney's fees to be deducted from the sale proceeds and, if this Court finds otherwise, asserts the amount of attorney's fees deducted was unreasonable and arbitrary. We are unable to address Appellant's arguments because he failed to name an indispensible party in his notice of appeal, thereby depriving us of jurisdiction. Accordingly, we dismiss this appeal.
Judge Michelle M. Keller concurred in this opinion prior to her appointment to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
Facts and Procedure
This matter involves three tracts of real property located on or about Crowe Ridge Road in Clark County, Kentucky (collectively, the "Property"). When Laura Thomas, the Property's original owner, died intestate in 1997, her sons, Earl Thomas, Jr., David Thomas, and Appellant Paul Thomas, each acquired a one-third interest in the Property. David passed away in 2009; David's one-third interest descended, in varying amounts, to the Appellees, Betty Jean Graham, Kimberly Richardson a/k/a Kimberly Sons, Carolyn Renee Miller, Shirley Faye Correa, Gregory Delana Stone, II, and Thomas Allen Stone.
Betty, Kimberly, Carolyn, and Shirley are David's daughters. David's son, Gregory Stone, predeceased David. Accordingly, Gregory's interest passed to his sons (David's grandsons), Gregory Stone, II and Thomas Stone.
On December 29, 2009, Appellees filed a complaint demanding the circuit court declare the Property to be indivisible, and seeking to have it sold by the Master Commissioner of the Court at public auction. Appellant opposed the sale. Appellees moved for summary judgment. On November 5, 2010, the circuit court granted the Appellees' motion, finding the Property could not be divided without materially impairing the value of the whole or the interest of one or more of the owners. The circuit court ordered the Property to be sold.
In compliance therewith, the Property was sold on December 21, 2010 for a total sum of $179,677.63.
Following the sale, the Appellees, citing Kentucky Revised Statute (KRS) 412.070, moved to deduct their attorney's fees and costs from the sale proceeds prior to distribution. Appellant opposed the deductions. Nonetheless, the circuit court granted the Appellees' motion and, on May 4, 2011, ordered the Master Commission to distribute the sale proceeds as follows:
This statute provides, in pertinent part: "In actions for the settlement of estates, . . . if one (1) or more of the legatees, devisees, distributees or parties in interest has prosecuted for the benefit of others interested with him, and has been to trouble and expense in that connection, the court shall allow him his necessary expenses, and his attorney reasonable compensation for his services, in addition to the costs. This allowance shall be paid out of the funds recovered before distribution." KRS 412.070(1).
1. Master Commissioner $5,994.57Appellant promptly appealed.
2. Appellees' Attorney's Costs $ 556.38
3. Appellees' Attorney's Fees $14,200.00
4. Earl Thomas, Jr. 33.3% $52,975.56
5. Paul Thomas 33.3% $52,975.56
6. Betty Jean Graham 6.6% $10,595.11
7. Kimberly Richardson 6.6% $10,595.11
8. Carolyn Renee Miller 6.6% $10,595.11
9. Shirley Faye Correa 6.6% $10,595.11
10. Gregory Stone, II 3.3% $5,297.56
11. Thomas Allen Stone 3.3% $5,297.56
Total Distributions: $179,677.63
Discussion
At the outset, we must address a dispositive jurisdictional issue raised by the Appellees. Appellees request this matter be summarily dismissed for want of jurisdiction because Appellant failed to name three indispensible parties in his notice of appeal, namely Earl Thomas, Jr., Joyce Thomas, and Appellees' attorney below. In response, Appellant argues that jurisdiction is proper because: (1) while Earl Thomas, Jr. and Joyce Thomas are not named in the body of the notice of appeal, they are clearly identified in the caption; and (2) Appellees' attorney is not a necessary party to the appeal and is, therefore, dispensable.
"[T]he notice of appeal is the means by which an appellant invokes the appellate court's jurisdiction." Nelson County Bd. of Educ. v. Forte, 337 S.W.3d 617, 626 (Ky. 2011) (citation and quotations omitted); Kentucky Rules of Civil Procedure (CR) 73.03. An appellant's "failure to name an indispensable party in the notice of appeal is 'a jurisdictional defect that cannot be remedied.'" Forte, 337 S.W.3d at 626 (citation omitted). Accordingly, absent any indispensible party, we lack jurisdiction to hear the appeal. Id.
A party is indispensible if his or her "participation in the appeal is [necessary] to grant [complete] relief." Id. at 625; Kentucky Ass'n of Fire Chiefs, Inc. v. Kentucky Bd. of Housing, Bldgs. and Const., 344 S.W.3d 129, 134 (Ky. App. 2010) (explaining "[a]n indispensible party is one whose absence prevents the Court from granting complete relief among those already parties" to the appeal). To be precise, an indispensible party is essential "to the decision of the appeal." Braden v. Republic-Vanguard Life Ins. Co., 657 S.W.2d 241, 244 (Ky. 1983). Certainly, only "parties that are truly necessary to the appeal," as opposed to necessary at trial, are deemed "indispensible" as contemplated by CR 73.03. Forte, 337 S.W.3d at 625.
With these standards as our guide, we address Appellees' arguments.
Appellees first contend Appellant failed to name in the notice of appeal indispensible parties Earl Thomas, Jr. and Joyce Thomas. The record reveals otherwise.
CR 73.03 provides, in relevant part, "[t]he notice of appeal shall specify by name all appellants and all appellees[.]" CR 73.03(1). The Kentucky Supreme Court has interpreted CR 73.03(1) and concluded that "naming a party in the caption of the notice is, standing alone, sufficient to satisfy the rule, even though the party is not named in the body of the notice." Lassiter v. Am. Exp. Travel Related Serv. Co., Inc., 308 S.W.3d 714, 718 (Ky. 2010). "This rule recognizes that the principal objective of a pleading is to give fair notice to the opposing party." Id. (citation omitted).
Here, Earl Thomas, Jr. and Joyce Thomas, while not named in the body of the notice, were unmistakably named in the caption of the notice as parties to the appeal. This is enough to satisfy CR 73.03. Lassiter, 308 S.W.3d at 718 ("[A]lthough a party may not be named in the body of the notice, by listing the party in the caption, fair notice is given to the opposing party, and thus the objective of the notice is satisfied."). While best practices dictate naming all parties in both the body and caption of the notice of appeal, failure to do so is not fatal. Id. Accordingly, assuming without deciding that Earl Thomas, Jr. and Joyce Thomas are, indeed, indispensible parties, we conclude Appellant suitably identified them as appellees to this appeal. Id.; CR 73.03.
Appellees have a stronger argument that Appellees' attorney is an indispensible party to this appeal that challenges only the circuit court's award of attorney's fees. Accordingly, Appellees assert, "the possibility of review of any award of attorney fees is foreclosed." (Appellees' Brief at 4). In so arguing, Appellees cite Franklin County Fiscal Court v. Stewart, 757 S.W.2d 194 (Ky. App. 1988). There, this Court, relying on a line of cases dating back to 1965, explicitly held that "[a]n order concerning an award of attorney fees is not reviewable if the attorney is not made a party by designation in the notice of appeal." Id. at 195 (citing Boyle County Fiscal Court v. Shewmaker, 666 S.W.2d 759, 762 (Ky. App. 1984)); see also Tyler v. Bryant, 394 S.W.2d 454, 455 (Ky. 1965).
Appellant does not dispute that the Appellees' attorney was not named in the notice of appeal. Instead, Appellant only asserts that Appellees' attorney is not an indispensible party.
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Appellees overlook more recent authority on this issue. In Knott v. Crown Colony Farm, Incorporated, 865 S.W.2d 326 (Ky. 1993), the Kentucky Supreme Court found Stewart's seemingly invariable rule unworkable. Id. at 331. In so doing, the Court explained that prior to Tyler, Stewart, and their progeny,
attorneys were only considered necessary parties to an appeal contesting an award of attorney's fees if the fee award had been made directly to the attorney. The award to the attorney was considered to have made him a party to the litigation. On the other hand, if the award of attorney's fees was made to the party, rather than his attorney, the attorney was not a necessary party to an appeal contesting the award.Id. The Court found this historical framework for determining whether a party's attorney is, in fact, a necessary party to the appeal logically sound. Accordingly, the Court concluded, "[a]bsent an award of fees to an attorney by judgment in his or her favor (thus allowing the attorney enforcement of the award by execution), there is no reason for requiring the attorney to be named on appeal as a necessary party." Id. Stated differently, unless a judgment awards "the fee directly to the attorney, there [is] no reason for the attorney to be named as a party to the appeal." Motorists Mut. Ins. Co. v. Glass, 996 S.W.2d 437, 455 (Ky. 1997) (citing Knott, 865 S.W.2d at 331). Clearly, the touchstone is the answer to the question: to whom did the court award the attorney fee? See Knott, 865 S.W.2d at 331.
Here, the circuit court ordered the Master Commissioner to pay fees and costs directly to Appellees' attorney, bypassing any and all other parties. Simply put, the disputed money was placed directly in the hands of the Appellees' attorney, not in the hands of a party to this appeal. We are unable to afford Appellant the relief he seeks, should we so decide, because the only person in possession of the funds at issue is not before us. The Appellees' attorney is an essential party to this appeal, and his absence prevents us from granting complete relief. Forte, 337 S.W.3d at 625-26.
In short, the circuit court's award of attorney's fees directly to the Appellees' attorney made him a party to this litigation and, in turn, an indispensible party on appeal. As a result, Appellant was required to name Appellees' attorney in his notice of appeal; he failed to do so. Appellant's notice of appeal, therefore, fails to invoke this Court's jurisdictional authority. Id.
Conclusion
We lack jurisdiction to review the Clark Circuit Court's May 4, 2011 order because Appellant failed to name an indispensible party, namely Appellees' attorney, in the notice of appeal. Accordingly, we dismiss this appeal.
ALL CONCUR.
Glenn E. Acree
CHIEF JUDGE, COURT OFAPPEALS
BRIEFS FOR APPELLANT: Dodd D. Dixon
Winchester, Kentucky
BRIEF FOR APPELLEE: Rodney G. Davis
Richmond, Kentucky