Opinion
NO. 2019-CA-000046-ME NO. 2019-CA-000047-ME
04-03-2020
J.M. APPELLANT v. COMMONWEALTH OF KENTUCKY AND I.M., A MINOR CHILD APPELLEES AND J.M. APPELLANT v. COMMONWEALTH OF KENTUCKY AND O.M., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Adam Zeroogian Nicholasville, Kentucky BRIEF FOR APPELLEE: Patrick F. Barsotti Danville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DOUGLAS BRUCE PETRIE, JUDGE
ACTION NO. 18-J-00124-001 APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DOUGLAS BRUCE PETRIE, JUDGE
ACTION NO. 18-J-00125-001 OPINION AND ORDER
DISMISSING
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BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES. ACREE, JUDGE: J.M. (Grandfather) appeals the Boyle Circuit Court's December 10, 2018 orders finding he abused or neglected his two grandchildren. After thorough review, we dismiss these appeals for failure to name an indispensable party, the Cabinet for Health and Family Services (the Cabinet).
When final disposition of an appeal is made by an "Opinion and Order," as in this case, the party adversely affected may move for reconsideration as provided by Kentucky Rules of Civil Procedure (CR) 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1)(a).
Grandfather filed notices of appeal on January 7, 2019. In the body and caption of the notices of appeal, Grandfather named himself as appellant and named the "Commonwealth of Kentucky" as appellee but failed to name the Cabinet. This Court gave Grandfather the ability to show cause why these cases should not be dismissed for failure to name an indispensable party. His response amounted to a defense that he did in fact name the Cabinet in his notices of appeal. After a careful, meticulous review of the notices of appeal, we disagree. The notices of appeal clearly indicate the only appellee named was the Commonwealth.
These cases are strikingly similar to two unpublished cases decided by different panels of this Court: K.H. v. Commonwealth, No. 2017-CA-001863-ME, 2018 WL 5310145 (Ky. App. Oct. 26, 2018), and M.D. v. Cabinet for Health & Family Servs., No. 2009-CA-000615-ME, 2009 WL 2971533 (Ky. App. Sept. 18, 2009). Like the cases now before the Court, the parents in K.H. and M.D. failed to name the Cabinet in their respective notices of appeal. Under CR 73.03(1), a notice of appeal shall specifically identify all appellants and all appellees. The failure to name an indispensable party in the notice of appeal is a jurisdictional defect, resulting in dismissal of the appeal. Slone v. Casey, 194 S.W.3d 336, 337 (Ky. App. 2006) (citing CR 19.02; City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990)). And when the Cabinet files a dependency, neglect, or abuse petition, it acts as the plaintiff. Commonwealth, Cabinet for Health and Family Servs. v. Byer, 173 S.W.3d 247, 249 (Ky. App. 2005). Thus, for appeals of those dependency, neglect, and abuse cases, the Cabinet is an indispensable party. Id.
In the cases at hand, Grandfather named the "Commonwealth of Kentucky" as an appellee in the body of the notices of appeal. However, it is blatantly obvious Grandfather failed to name the Cabinet as a party. Grandfather argued in his response to the show cause order that he served the Boyle County Attorney's office, who would represent the Cabinet's interest in these appeals. This does not satisfy the requirement of CR 73.03 to name the Cabinet as a party to the appeals.
As the Commonwealth consists of hundreds of agencies, departments, boards, and commissions, merely naming the Commonwealth of Kentucky, rather than the Cabinet, is insufficient as a matter of law. Nor does the local county attorney filing a brief satisfy the jurisdictional requirements. As previously stated, our case law undoubtedly holds that where the Cabinet was the initiating party in a dependency, neglect, and abuse action, it is an indispensable party to the appeal. See Byer, 173 S.W.3d at 249. Because the Cabinet initiated the dependency, neglect, and abuse actions in these cases, it is an indispensable party to these appeals, and failing to name it is fatal to the appeals.
ORDER
Therefore, we ORDER Appeal Nos. 2019-CA-000046-ME and 2019-CA-000047-ME be DISMISSED for failure to name an indispensable party.
CALDWELL, JUDGE, CONCURS.
THOMPSON, K., JUDGE, DISSENTS AND WRITES SEPARATELY. DATE:__________
/s/_________
JUDGE, COURT OF APPEALS THOMPSON, K., JUDGE, DISSENTING: Respectfully, I dissent. Listing the Commonwealth of Kentucky as an appellee is sufficient to include the Cabinet for Health and Family Services as an appellee. Although the unpublished cases cited by the majority are contrary to my view, that does not deter me from dissenting.
As noted by the majority, this Court has dismissed appeals because the words "Cabinet for Health and Family Services" were not included in the notice of appeal and only the Commonwealth of Kentucky was listed as appellee. Like the panels in those cases, the majority views this as a fatal flaw.
As here, the panels that decided the unpublished cases cited by the majority relied heavily on Commonwealth, Cabinet for Health and Family Services v. Byer, 173 S.W.3d 247, 249 (Ky.App. 2005), wherein this Court stated that in a dependency, neglect or abuse (DNA) case, the Cabinet is the plaintiff and not a nominal party. However, Byer did not concern the adequacy of the notice of appeal. The issue in Byer was whether the Cabinet could be ordered to pay fees for a court-appointed expert, not whether an appeal should be terminated in a DNA case because of the failure to use the words "Cabinet for Health and Family Services" in the notice of appeal.
Moreover, the issue here is not whether the Cabinet is an indispensable party. The issue is whether listing the Commonwealth of Kentucky in the notice of appeal includes the Cabinet. There is precedent on this issue that unfortunately has been ignored.
In Lassiter v. American Express Travel Related Services Co., Inc., 308 S.W.3d 714 (Ky. 2010), the State Budget Director appealed from an opinion of this Court dismissing the Budget Director's appeal from a Franklin Circuit Court decision. The circuit court ruled "that a provision in the 2006-2008 Executive Branch budget bill shortening the escheat period for unredeemed traveler's checks from fifteen years to seven years for the two-year budget period was unconstitutional." Id. at 715. This Court dismissed the appeal holding that the Budget Director failed to name the State Treasurer, an indispensable party to the appeal. Id. at 716.
Our Supreme Court reversed. It began its analysis by noting that "the principal objective of a pleading is to give fair notice to the opposing party." Id. at 718. The Court held that by naming the Department of Treasury, "by functional equivalence, [the Budget Director] likewise named the Treasurer in his official capacity as a party to the appeal." Id. The Court reasoned this result was consistent with the rule that "the naming of the agency head in his official capacity in a lawsuit is the functional equivalent of naming the agency itself." Id. at 719. The Court concluded there was "no rational purpose" served by holding otherwise. Id.
Following Lassiter, our Supreme Court decided Flick v. Estate of Wittich, 396 S.W.3d 816 (Ky. 2013). The Court concluded that naming an Estate in the notice of appeal included the co-administrators even though they were not separately identified. Id. at 823. The Court held that "our policy of substantial compliance ensures the survival of an appeal despite clerical errors when no prejudice results from those errors and notice is sufficiently conveyed to the necessary parties." Id. at 824.
In a case decided after Lassiter and Flick, this Court applied the same reasoning in Tillman v. Commonwealth, No. 2016-CA-001568-MR, 2017 WL 4082888 (Ky.App. Sep. 15, 2017) (unpublished). Although Tillman is unpublished, the alleged defect in the notice of appeal was similar to that which the majority concludes is fatal to this appeal.
Tillman appealed from an order of the Muhlenberg Circuit Court dismissing his petition for a declaration of rights alleging he was deprived of a protected liberty interest as a result of his prison disciplinary case. Like the present case, Tillman's notice of appeal listed only the Commonwealth as the appellee.
This Court noted that as a general rule, the warden of the prison is an indispensable party to an appeal from a declaratory judgment regarding a prison disciplinary action. Id. at *1 n.1. Nevertheless, citing Lassiter and Flick, this Court held that the deficiency in the notice of appeal was not fatal. Although Tillman only listed the Commonwealth in his notice of appeal, his notice of appeal was "minimally sufficient to bring all indispensable parties before the Court." Id. The same result should be reached in this case.
Naming the Commonwealth of Kentucky is the functional equivalent of naming the Cabinet. The Cabinet is merely the agency through which the Commonwealth acts. From the notices of appeal, it is obvious that Grandfather appealed from the Boyle Circuit Court's order finding he abused or neglected his grandchildren. There is "no rational purpose" for requiring that the words "Cabinet for Health and Family Services" follow Commonwealth of Kentucky in the notices of appeal.
Although DNA proceedings are not criminal matters, the stakes in such cases are high for the adult and the child. I do not believe that this Court should continue to deny judicial review of these cases merely because the notice of appeal did not include the words "Cabinet for Health and Family Services." I would consider this case on its merits. BRIEFS FOR APPELLANT: Adam Zeroogian
Nicholasville, Kentucky BRIEF FOR APPELLEE: Patrick F. Barsotti
Danville, Kentucky