Opinion
NO. 2011-CA-000921-MR
09-28-2012
GARY S. VANDER BOEGH; MARK A. VANDER BOEGH; ANN K. VANDER BOEGH; BRIAN VANDER BOEGH; KAREN SLOAN; LORI VANDER BOEGH; and GLENN F. JONES APPELLANTS v. BANK OF OKLAHOMA, N.A.; JAMES G. ARMSTRONG; SCOTT CHARLES ARMSTRONG; JEFFREY JAMES ARMSTRONG; AMY RUTH ARMSTRONG; JIMMY BRIEN JONES; CHARLES R. JONES; VINCENT KEITH JONES; MOIRA ISOBEL JONES; KIMBERLY FAITH JONES, individually and as Power of Attorney for KYLE PATRICK JONES; RHONDA TIPPETT, individually and as Power of Attorney for SALLY JO LLOYD; LISA K. PRICE; KYM L. BICHON; and DONNA PURYEAR APPELLEES
BRIEF FOR APPELLANTS: Bobby R. Miller, Jr. Ryan A. Hahn Paducah, Kentucky BRIEF FOR APPELLEE, BANK OF OKLAHOMA, N.A.: John W. Bilby Louisville, Kentucky Shannon Arthur Singleton Anthony J. Phelps Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIM KALTENBACH, JUDGE
ACTION NO. 10-CI-00634
OPINION AND ORDER
DISMISSING
BEFORE: MOORE, STUMBO, AND THOMPSON, JUDGES. MOORE, JUDGE: The above-captioned appellants (hereinafter, the "Vander Boeghs") are beneficiaries holding collective minority interests in two trusts: the "Charles R. Jones, Sr., inter Vivos Trust dated May 1, 1973," and the "Eula Kathleen Jones Testamentary Trust U/W/D October 24, 1967." They appeal an order and judgment of the McCracken Circuit Court in favor of the trustee, Bank of Oklahoma, N.A., and their co-beneficiaries who collectively hold majority interests in the two above-referenced trusts (hereinafter, the "Armstrongs").
The Armstrong beneficiaries shared the same representation at the circuit court level and consist of appellees James G. Armstrong, Scott Charles Armstrong, Jeffrey James Armstrong, Amy Ruth Armstrong, Jimmy Brien Jones, Charles R. Jones, Vincent Keith Jones, Moira Isobel Jones, Kimberly Faith Jones, Kyle Patrick Jones, Rhonda Tippett, Sally Jo Lloyd, Lisa K. Price, and Donna Puryear. Kym L. Bichon represented herself below pro se and continues to do so on appeal, but her interests are also adverse to the Vander Boeghs.
At the onset, Bank of Oklahoma urges this Court to dismiss the Vander Boeghs' appeal because, as borne out by the certificate of service on the Vander Boeghs' appellate brief, the Vander Boeghs have never served their appellate brief upon any appellee other than Bank of Oklahoma. Necessarily, Bank of Oklahoma's argument implicates Kentucky Rule of Civil Procedure (CR) 76.12(5) and 76.12(8)(b): in relevant part, the former rule provides that "[b]efore filing any brief in the appellate court a party shall serve, in the manner provided by CR 5.02, a copy of it on each adverse party to the appeal," while the latter provides that "[i]f the appellant's brief has not been filed within the time allowed, the appeal may be dismissed."
In Belsito v. U-Haul Co. of Kentucky, 313 S.W.3d 549 (Ky. 2010), the Supreme Court of Kentucky addressed a similar situation, albeit in the context of a workers' compensation appeal. There, in violation of CR 76.25(4)(a), the appellant filed a brief with the Clerk of the Court of Appeals that failed to certify that it was served upon the Workers' Compensation Board. In affirming the ensuing dismissal of the appeal, the Court held that the appellant
failed to serve the Board with a copy of the petition and to certify service "[b]efore filing" the petition. CR 76.25(8) clearly makes certification of service a prerequisite to filing. Not only did the Clerk of the Court of Appeals err by filing the defective petition, [the appellant] failed to file a petition that did comply with CR 76.25 within the time for taking an appeal.Id. at 552.
CR 76.25(8) applies strictly to workers' compensation appeals, but it is analogous to CR 76.12(5) inasmuch as both rules clearly make certification of service "to all adverse parties" a prerequisite to filing an appellate brief with the Clerk of the Court of Appeals. Here, the Vander Boegh trust beneficiaries certified in their appellate brief that they served their brief only upon one of the fourteen indispensible and adverse parties they named in their notice of appeal in this matter (i.e., they named their trustee, but none of their co-trust beneficiaries who opposed them). Therefore, the Vander Boeghs' brief was defective, the Clerk of the Court of Appeals erred in filing it, and the Vander Boeghs have never filed a brief within the meaning of the civil rules.
Belsito itself highlights a significant difference between CR 76.25 and CR 76.12(8)(b), namely, that 76.25 is a mandatory rule and that "a tardy petition for review is subject to automatic dismissal and cannot be saved through application of the doctrine of substantial compliance." Belsito, 313 S.W.3d at 552. Contrast this with CR 76.12(8)(b), which, as noted, provides that "[i]f the appellant's brief has not been filed within the time allowed, the appeal may be dismissed." (Emphasis added.) Under the circumstances of this case, however, it is our determination that the Vander Boeghs' filing of a defective brief nevertheless warrants dismissal.
Here, the record reflects that the Armstrongs actively participated in every phase of this litigation at the circuit court level, which lasted for a year and a half, included a bench trial, and resulted in eleven volumes of record. Having filed no appellate brief in this matter, this appeal appears to be the first time that the Armstrongs have ever failed to oppose the Vander Boeghs. Furthermore, there is no indication that the Armstrongs delegated their defense of this appeal to Bank of Oklahoma because, as the Vander Boeghs acknowledge in their own notice of appeal, the Armstrongs continue to be represented by separate counsel. Thus, we will not presume that the Armstrongs' failure to file their own appellee brief in this matter was intentional, or that Bank of Oklahoma's defense of this appeal fully serves the Armstrongs' interests. Consequently, adjudicating the merits of the Vander Boeghs' appeal would not merely justify the Vander Boeghs' violation of the civil rules; it could potentially impact the rights of a vast majority of appellees who have had no opportunity to address the Vander Boeghs' arguments.
Moreover, we are not inclined to grant the Vander Boeghs leave to file an untimely appellate brief under these circumstances for two reasons. First, the Vander Boeghs have never asked for such leave in response to Bank of Oklahoma's contention that this appeal should be dismissed. Second, in response to a previous motion filed by the Vander Boeghs, this Court already granted the Vander Boeghs a forty-five day extension of time to file their appellate brief, which they used to its fullest extent; this extension was granted over Bank of Oklahoma's objection and, indeed, it appears that this extension was improvidently granted: according to the certificate of service noted on the Vander Boeghs' motion, Bank of Oklahoma was also the only appellee that the Vander Boeghs served in that instance as well.
The Vander Boeghs offer no response to Bank of Oklahoma's argument in favor of dismissal. The certificate of service on their subsequent reply brief, however, recites that their subsequent reply brief was served upon each of the appellees listed in the caption of this appeal.
For these reasons, this appeal is hereby DISMISSED.
STUMBO, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, DISSENTING: I respectfully dissent from the majority's opinion and order dismissing. The majority has completely ignored the substantial compliance doctrine and regresses to the archaic strict compliance rule.
In Ready v. Jamison, 705 S.W.2d 479 (Ky. 1986), our Supreme Court recognized the injustice of strict application of our appellate rules of procedure and established the doctrine of substantial compliance in this jurisdiction. In doing so it explained:
With this new policy we seek to recognize, to reconcile and to further three significant objectives of appellate practice: achieving an orderly appellate process, deciding cases on the merits, and seeing to it that litigants do not needlessly suffer the loss of their constitutional right to appeal.Id. at 482.
In City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990), the Court further explained its landmark holding.
We held that these nonjurisdictional defects in the notice of appeal should not result in automatic dismissal; rather, the Court should consider any harm or prejudice resulting from the defect in deciding the appropriate sanction. We concluded that since no substantial harm resulted to the parties, dismissal of the appeal was an inappropriate remedy.
I believe that the majority's reliance on Belsito v. U-Haul Co. of Kentucky, 313 S.W.3d 549 (Ky. 2010), is distinguished by different facts. The facts recited by our Supreme Court reveal that Belsito failed to serve the Board with a copy of the petition for review and certify service before filing. Id. at 552. Under CR 76.25, a petition for review is the equivalent of a notice of appeal and is jurisdictional. Therefore, the result in Belsito is entirely consistent with the Court's holding in Ready.
As in Ready, in this case, the notice of appeal was timely filed and all proper parties were named. The Vander Boeghs then filed a timely brief but simply failed to certify service of the brief on the appellees other than Bank of Oklahoma. The failure was not a jurisdictional defect. Therefore, under the substantial compliance doctrine, I would grant the motion to serve all appellees and permit the appellees an opportunity to file responsive briefs. Instead of dismissing this case on purely procedural grounds, this Court should allow the Vander Boeghs to exercise their constitutional right to appeal and decide the case on its merits.
Joy A. Moore
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANTS: Bobby R. Miller, Jr.
Ryan A. Hahn
Paducah, Kentucky
BRIEF FOR APPELLEE, BANK OF
OKLAHOMA, N.A.:
John W. Bilby
Louisville, Kentucky
Shannon Arthur Singleton
Anthony J. Phelps
Lexington, Kentucky