CANTRELL-MAY (VERONICA) VS. WETHERTON, M.D. (BRENDEN M.)Annotate this Case
RENDERED: JUNE 11, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
AS MOTHER AND NEXT FRIEND
OF ALEXANDRIA MAY
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 06-CI-00440
BRENDEN M. WETHERTON, M.D.
OPINION AND ORDER
** ** ** ** **
BEFORE: VANMETER, ACTING CHIEF JUDGE; STUMBO AND TAYLOR,
TAYLOR, JUDGE: Veronica Cantrell-May, as mother and next friend of
Alexandria May, brings this appeal from a March 18, 2009, judgment of the
Shelby Circuit Court in favor of Brenden M. Wetherton, M.D., dismissing the
complaint. For the reasons stated, we must reluctantly dismiss this appeal.
Fifteen year-old Alexandria May suffered an ischemic stroke in late
December 2005. Veronica Cantrell-May subsequently instituted this medical
malpractice action as “Mother and Next Friend of Alexandria May” by filing a
complaint in the Shelby Circuit Court against Brenden M. Wetherton, M.D.
Wetherton had treated Alexandria in the emergency room at Jewish Hospital in
Shelbyville, Kentucky, on December 30, 2005.
While the circuit court action was pending, counsel for Alexandria
filed a Notice of Substitution. Therein, counsel asserted that Alexandria had
reached the age of majority and, thus, Alexandria “is substituted as Plaintiff in
place of her mother, Veronica Cantrell-May, who was proceeding as her next
friend.” Following a jury trial, the circuit court entered judgment in favor of
Brenden M. Wetherton, M.D., and the complaint was dismissed. The only party
named as plaintiff in the judgment was “Alexandria May.”
Thereafter, a notice of appeal was filed from the judgment. The
notice of appeal named in both the caption and text “Veronica Cantrell-May as
mother and next friend of Alexandria May” as the only appellant. This appeal
From the above procedural facts, it is clear that Alexandria, upon
attaining majority, was substituted as plaintiff in the stead of her next friend,
Veronica, and proceeded to prosecute the action below in her own right. Indeed,
the final judgment identifies Alexandria as the only plaintiff. The notice of appeal,
however, solely named as appellant “Veronica Cantrell-May, as mother and next
friend of Alexandria May.” The law is well-settled that only a party of record to a
proceeding in circuit court may file a notice of appeal therefrom. Kentucky Rules
of Civil Procedure 73.02; Bartholomew v. Paniello, 287 S.W.2d 616 (Ky. 1956);
White v. England, 348 S.W.2d 936 (Ky. 1961). Veronica, as next friend, had no
authority to file a notice of appeal as she was no longer a party to the action below
after Alexandria was substituted as plaintiff. Our courts have long recognized that
an infant, upon reaching majority, must pursue an appeal in his or her own name
and not through a representative. Parks v. Barnes, 173 Ky. 589, 191 S.W. 447
(1917). Additionally, the Kentucky Supreme Court has held that substantial
compliance is inapplicable to the failure to name an indispensable party in the
notice of appeal. City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990).
As noted by the Kentucky Supreme Court in City of Devondale, the
failure to name an indispensable party in a notice of appeal is a jurisdictional
defect. The Supreme Court recently expounded upon jurisdictional defects on
appeal in Wilson v. Russell, 162 S.W.3d 911 (Ky. 2005). The Supreme Court
stated the following:
It is fundamental that a court must have
jurisdiction before it has authority to decide a case.
Jurisdiction is the ubiquitous procedural threshold
through which all cases and controversies must pass prior
to having their substance examined. So fundamental is
jurisdiction that it is the concept on which first-year law
students cut their teeth. . .
However, even though not raised, “jurisdiction may not
be waived, and it can not be conferred by consent of the
parties. This [C]ourt must determine for itself whether it
has jurisdiction.” Hubbard v. Hubbard, 303 Ky. 411,
197 S.W.2d 923 (Ky. 1946).
Id. at 913.
In conclusion, Veronica, as next friend, could not pursue the instant
appeal as Alexandria had reached majority and was substituted as plaintiff in the
action below. Alexandria is an indispensible party to this appeal. See id.
Unfortunately, since Veronica, as next friend, is the only appellant named in the
notice of appeal, the appeal must be dismissed. City of Louisville v. Christian
Business Women’s Club, Inc., 306 S.W.2d 274 (Ky. 1957).
Now, therefore, be it ORDERED that Appeal No. 2009-CA-000903MR is DISMISSED.
ENTERED: June 11, 2010
/s/ Jeff S. Taylor_______________
JUDGE, COURT OF APPEALS
BRIEF AND ORAL ARGUMENT
Brian E. Clare
BRIEF FOR APPELLEE:
Robert A. Ott
Scott P. Whonsetler
ORAL ARGUMENT FOR
Robert A. Ott