ELLIS (C. J.) VS. AKINS (CARL T.), ET AL.
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RENDERED: SEPTEMBER 18, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002556-MR
C. J. ELLIS
v.
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 98-CI-00138
CARL T. AKINS AND
BARBARA AKINS
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: CAPERTON, KELLER AND NICKELL, JUDGES.
NICKELL, JUDGE: C.J. Ellis (C.J.) appeals from the Whitley Circuit Court’s
judgment entered on September 28, 2006, awarding Barbara and Carl T. Akins
(collectively Akins) superior title and damages for trespass to their property near
the Dog Slaughter Creek headwaters in Whitley County, Kentucky. Although we
are inclined to affirm the circuit court on the merits, after careful review of the
record, we must dismiss C.J.’s appeal because a party necessary to the disposition
of the action is not before us.
This case arises from a disputed boundary between two adjacent tracts
of land. The Akins acquired their tract from Jim and Sandy Davenport by deed
recorded on June 17, 1997. The legal description to the Akins tract has not
changed since 1909 when their tract was severed from a larger parcel. Their tract
generally shares its northwestern boundary with a parcel owned by C.J.
C.J. acquired the majority of his claimed tract from his father, Henry
Ellis (Henry), by deed recorded June 1, 1993. Subsequently, Henry executed a
deed of correction to C.J., adding calls to the prior deed’s legal description and
substantially increasing the size of C.J.’s property. Recorded on October 8, 1993,
the deed of correction included several acres not previously described in C.J.’s
chain of title.
On March 4, 1998, C.J. filed suit alleging Carl Akins had destroyed a
fence on his property, and requested a declaratory judgment as to the location of
Akins’ boundary and an injunction preventing Akins from interfering with any
fence not located on Akins’ property. In their answer, Akins denied C.J. owned
the property on which the fence was located, asserted possession of and legal title
to the property, and filed a counterclaim for trespass. Akins requested the court
quiet title to their property and enter judgment against C.J. for all damages
sustained.
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Prior to filing suit, C.J. had hired a licensed surveyor to survey and
plat the property described in the deed of correction, but the surveyor was unable
to do so. After seven years of litigation and notice of the circuit court’s intent to
finally adjudicate the claims, C.J. remained unable to submit anything but a general
plat of the area. In contrast, Akins submitted a plat of the land described in their
deed.
C.J. attempted to repudiate Akins’ plat and chain of title with
unsubstantiated evidence, but the circuit court concluded Akins’ title was superior.
Thus, because C.J. had erected the fence on Akins’ property, the court also
concluded C.J. had trespassed on Akins’ property and Akins was entitled to
recover damages for the trespass. The circuit court entered judgment accordingly
on September 28, 2006.
On December 6, 2006, Akins conveyed his property to Jonathan
David Hamblin by general warranty deed. However, the deed was not recorded
until January 12, 2007, and as a result of the delay, C.J. had no formal notice of the
transfer of interest until 2007. In the interim, on December 11, 2006, C.J. filed a
notice of appeal indicating his intention to appeal the circuit court’s judgment to
this Court.
Before the submission of briefs, Akins moved this Court to dismiss
the appeal because the property in question had been conveyed to Hamblin, and
Akins was no longer a real party in interest. This motion was passed to the merits
panel of this Court. After reviewing the parties’ briefs, we now hold that by
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transferring the property to Hamblin, Akins was divested of his interest in the
property and was no longer a real party in interest for the purpose of this appeal.
Therefore, we grant the motion and dismiss.
Consequently, Hamblin became a real party in interest and a party
required for the disposition of this action. A party whose interest in property may
be impaired by the outcome of an action is a required party—necessary and
indispensable—to the disposition of the action. CR1 19.01(b); Hazard Coal Corp.
v. Getaz, 234 Ky. 817, 29 S.W.2d 573, 578 (1930); Lunsford v. Witt, 309 S.W.2d
348, 349 (Ky. 1958); see also E.E.O.C. v. Peabody Western Coal Co., 400 F.3d
774, 779-880 (9th. Cir. 2005), cert. denied, 546 U.S. 1150, 126 S.Ct. 1164, 163
L.Ed.2d 1128 (2006) (using “necessary” and “indispensable” interchangeably with
respect to parties required to be joined under Rule 19). Clearly, a ruling in C.J.’s
favor on appeal would impair Hamblin’s interest in the property.
However, because C.J. had no notice of the transfer until Akins
recorded the deed to Hamblin – which occurred after the notice of appeal had been
filed – CR 76.24 provides the only vehicle for bringing Hamblin before this Court.
Having lost jurisdiction, the circuit court could not join Hamblin under CR 19 or
substitute him as a party under CR 25. Although C.J., Akins, or Hamblin could
have moved this Court for leave to substitute Hamblin at any time after the
recording of the deed to Hamblin, absent a motion, this Court may not sua sponte
substitute Hamblin as a party on appeal.
1
Kentucky Rules of Civil Procedure.
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Although we cannot substitute parties sua sponte, we may consider
whether all required persons are before us, and if they are not, dismiss the action
on our own accord. Republic of Philippines v. Pimentel, --- U.S. ---, 128 S.Ct.
2180, 2188, 171 L.Ed.2d 131 (2008) (authorizing sua sponte consideration of
parties required under Rule 19 and dismissal by appellate courts upon absence);
Treadway v. Russell, 299 S.W.2d 245 (Ky. 1957) (declaring appellate relief may be
denied because an indispensable party is absent). Unquestionably, failure to ensure
all required persons are before the Court is detrimental to C.J. and all other
appellants. Although in some cases we may remand for joinder or substitution of
parties, even if the proper parties were before us, Ellis has been unable to secure
adequate evidentiary proof supportive of his claim. The failure to add Hamblin as
a party was fatal to this appeal. Therefore, for the foregoing reasons, we dismiss
C.J.’s appeal.
It is hereby ORDERED that this appeal be, and it is, DISMISSED.
ALL CONCUR.
ENTERED: September 18, 2009
/s/ C. Shea Nickell
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry E. Conley
Corbin, Kentucky
Timothy Crawford
Corbin, Kentucky
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