Opinion
NO. 2017-CA-000192-MR
05-01-2020
Richard L. HOWARD, Cross-Appellant v. Ashley FROMAN, Individually and as Co-Executor of the Estate of Madglean Bergkamp, and Andrew Howard, Cross-Appellees
BRIEF FOR CROSS-APPELLANT: Chelsey S. Brammell, New Castle, Kentucky. BRIEF FOR CROSS-APPELLEES: No brief.
BRIEF FOR CROSS-APPELLANT: Chelsey S. Brammell, New Castle, Kentucky.
BRIEF FOR CROSS-APPELLEES: No brief.
BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.
OPINION AND ORDER
TAYLOR, JUDGE: Richard L. Howard brings this cross-appeal from a May 16, 2016, Order of the Carroll Circuit Court interpreting certain provisions of the last will and testament of Madglean Bergkamp. For the reasons stated, we dismiss the cross-appeal.
Because there are multiple persons with the same surname involved in this cross-appeal, we will use first names to identify the parties and persons related to the case.
Madglean Bergkamp died testate in 2015 naming her son, Richard, and her granddaughter, Ashley Froman, as co-executors. Among the provisions of Madglean's will was a clause stating "[t]he $18,000.00 held by me during my lifetime pursuant to the Last Will and Testament of my late husband's will, shall be distributed as set out in his will with an undivided one-fourth (1/4th) [sic] interest each to Pat Davis [daughter of Madglean's late husband], Ruth Covington [daughter of Madglean's late husband], Richard Howard [Madglean's son], and Charlotte Howard [wife of Madglean's deceased son Jimmie Ray] for my late son's interest[.]" Record on Appeal at 13.
In September 2015, Richard and Ashley, as co-executors of Madglean's estate, filed a declaratory judgment petition in the Carroll Circuit Court asking for an interpretation of several clauses of the will, including the $18,000 bequest. According to the complaint, they found no evidence that Madglean's late husband's will was probated or that $18,000 was transferred to Madglean from her husband's estate. Richard and Ashley, as co-executors and plaintiffs, named as defendants, among others, themselves, Pat, Ruth, and Charlotte. In May 2016, the circuit court issued an order holding that the $18,000 should be distributed as per Madglean's will, being an undivided one-fourth interest each to Pat, Ruth, Richard, and Charlotte.
The Petition also named as defendants, Richard Howard, individually, Ashley Froman, individually, and Jessica Howard Vitatoe, a granddaughter, Andrew Howard, a grandson, and Chase Howard, a grandson.
Ashley, individually and as co-executor, and Andrew then filed a motion to alter, amend, or vacate, raising several issues, including the argument that the $18,000 bequest was "likely adeemed." Richard filed a response asserting the court's order "should be upheld in its entirety." Record on Appeal at 96. The circuit court denied the motion to alter, amend, or vacate by order entered on December 13, 2016.
An ademption is "[t]he destruction or extinction of a testamentary gift by reason of a bequeathed asset's ceasing to be part of the estate at the time of the testator's death[.]" Black's Law Dictionary (11th ed. 2019).
Richard's answer to the petition below made no reference to or argument that the $18,000 bequest was subject to ademption.
Ashley, individually and as co-executor, and Andrew filed a notice of appeal on January 6, 2017, naming, among others, Richard, in his individual capacity, Ruth, Pat, and Charlotte as appellees. Appeal No. 2017-CA-000058-MR. Richard did not join in the appeal as a co-executor. Richard then individually filed this cross-appeal on January 23, 2017. The caption of Richard's notice of cross-appeal utilized the same caption as the notice of appeal and erroneously set out in the caption as cross-appellants all appellees named in the notice of appeal. Legally, the only cross-appellant named in the body of the notice of cross-appeal was Richard, and the only named cross-appellees were Ashley, individually and as co-executor of Madglean's estate, and Andrew, individually. Pat, Ruth, and Charlotte were not named as cross-appellees to this appeal. On January 8, 2019, this Court dismissed by agreement Ashley and Andrew's appeal (Appeal No. 2017-CA-000058-MR), but Richard's cross-appeal remained active. The cross-appeal is the only matter addressed and resolved by this opinion.
Interestingly, Robert filed a motion to dismiss the appeal, stating that the parties had entered into a settlement agreement in satisfaction of all claims.
A prehearing conference order directing this cross-appeal to proceed on the merits was entered on January 8, 2019, following a prehearing conference on April 19, 2017. Presumably, the parties attempted to settle this case without success, delaying the appellate process for almost two years.
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Before reaching the merits of this cross-appeal, we must address the absence of Pat, Ruth, and Charlotte as cross-appellees to this appeal. As noted, other than Richard, they are the only parties who have an interest in the $18,000 bequest which is the sole issue raised in the cross-appeal.
The filing of a notice of appeal is the procedural mechanism by which an appellant invokes an appellate court's jurisdiction in Kentucky. Sparkman v. Consol Energy, Inc. , 470 S.W.3d 321, 331 (Ky. 2015) ; see also Kentucky Rules of Civil Procedure (CR) 73.02. Likewise, a party named as an appellee may take a cross-appeal from the judgment appealed. CR 74.01(1). Thus, the jurisdictional issue facing this Court is to determine whether Pat, Ruth, and Charlotte were named as cross-appellees in the notice of cross-appeal, and if not, are they indispensable parties to the cross-appeal.
The notice of cross-appeal reads as follows:
The names of the cross-appellees against whom this appeal is taken are Ashley Froman, individually, and as Co-Executor of the Estate of Madglean Bergkamp, and Andrew Howard, Movants.
The first part of the jurisdictional issues is easy to address. On its face, Pat, Ruth, and Charlotte are not named as appellees in the notice of cross-appeal. And, they are clearly the only remaining parties, along with Robert, who had an interest in the $18,000 bequest at issue in this appeal. Thus, we conclude as a matter of law, that Pat, Ruth, and Charlotte are indispensable parties to the cross-appeal. See Browning v. Preece , 392 S.W.3d 388, 391 (Ky. 2013).
CR 74.01 provides that a cross-appeal shall be prosecuted like a regular appeal and governed by applicable appellate rules. In Kentucky, the failure to name an indispensable party in a notice of appeal is a fatal, jurisdictional defect. Browning , 392 S.W.3d at 391. See also Commonwealth v. Maynard , 294 S.W.3d 43, 46 (Ky. App. 2009) (emphasis added) (holding that "all indispensable parties must be timely and specifically named as parties in the notice of appeal"); CR 73.03(1) (requiring a notice of appeal to "specify by name all appellants and all appellees"). The notice must name those parties necessary to the proper and adequate review of the issue on appeal. Watkins v. Fannin , 278 S.W.3d 637, 640 (Ky. App. 2009). This Court may examine the failure to properly name an indispensable party sua sponte since jurisdiction cannot be acquired by this Court through waiver or agreement by the parties. Wilson v. Russell , 162 S.W.3d 911, 913 (Ky. 2005).
There is no distinction in the law regarding the procedural requirement for a notice of appeal versus a notice of cross-appeal. As a general rule, Kentucky appellate practice follows the doctrine of substantial compliance in the application of appellate practice rules, with the exception of filing tardy appeals and the naming of indispensable parties, which require strict compliance. Ky. Farm Bureau Mutual Ins. Co. v. Conley , 456 S.W.3d 814, 819 (Ky. 2015).
Accordingly, based on applicable law and upon consideration of all the relevant facts and circumstances of this case, this Court must dismiss this cross-appeal for failure to name Pat, Ruth, and Charlotte as indispensable parties in the notice of cross-appeal, who are necessary for proper appellate review and disposition of the case. Thus, we do not reach the merits of this cross-appeal, although we harbor grave doubt that Richard has a valid legal basis for this appeal, given the position he took in support of the circuit court's ruling below.
Now, therefore, be it ORDERED that Cross-Appeal No. 2017-CA-000192-MR is hereby DISMISSED.
ALL CONCUR.