ANNIE MARTIN, ADMINISTRATOR OF THE ESTATE OF LAWRENCE MARTIN; CHRYSTAL KNOX; FOREST MARTIN; WEEDEN MARTIN; ELOISE ISON; DOROTHY FOLEY; BRENDA HOOD; JEAN NOLAN; LULA JEAN NOLAN ABNER; AND JOHN ALLEN NOLAN v. SHELBY LOWE AND NORA LOWE, HIS WIFE; J. C. MEANS AND SONIA MEANS, HIS WIFE; REVA MEANS ROSE, A WIDOW; LACY MEANS, A WIDOW; GERTRUDE GASTON AND ROBERT GASTON, HER HUSBAND; JAY MEANS, AS ADMINISTRATOR OF THE ESTATE OF WILLIAM MEANS; LACEY EARL MEANS; WILLIAM EARL MEANS; DARLENE FAULKNER; SHIRLEY JEAN BOWEN; JAMES ANDREW MEANS; AND JELENA ASHLEY
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RENDERED: December 29, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002314-MR
ANNIE MARTIN, ADMINISTRATOR OF THE ESTATE
OF LAWRENCE MARTIN; CHRYSTAL KNOX; FOREST
MARTIN; WEEDEN MARTIN; ELOISE ISON; DOROTHY
FOLEY; BRENDA HOOD; JEAN NOLAN; LULA JEAN
NOLAN ABNER; AND JOHN ALLEN NOLAN
APPELLANTS
APPEAL FROM POWELL CIRCUIT COURT
HONORABLE DANNY P. CAUDILL, JUDGE
ACTION NO. 96-CI-00139
v.
SHELBY LOWE AND NORA LOWE, HIS WIFE;
J. C. MEANS AND SONIA MEANS, HIS WIFE;
REVA MEANS ROSE, A WIDOW; LACY MEANS, A WIDOW;
GERTRUDE GASTON AND ROBERT GASTON, HER HUSBAND;
JAY MEANS, AS ADMINISTRATOR
OF THE ESTATE OF WILLIAM MEANS; LACEY EARL
MEANS; WILLIAM EARL MEANS; DARLENE FAULKNER;
SHIRLEY JEAN BOWEN; JAMES ANDREW MEANS; AND
JELENA ASHLEY
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
This is an appeal from an order of the Powell
Circuit Court denying the appellants’ motion to intervene as
party defendants in a quiet title lawsuit.
The record shows that
the appellants were originally named as defendants in the lawsuit
and that a warning order attorney was not properly appointed to
serve process on them.
Accordingly, the appellants were not
constructively served, and we must reverse and remand.
On June 11, 1996, appellees Shelby Lowe and Nora Lowe,
husband and wife, filed a complaint in Powell Circuit Court
wherein they sought to quiet title to 50 acres of property
located on Cat Creek in Powell County.
In the caption of the
Acomplaint, the Lowes named as the defendants to the lawsuit the
following:
J.C. MEANS AND SONIA MEANS, HIS WIFE[,]
REVA MEANS ROSE, WIDOW[,] LACY MEANS, WIDOW
[,] GERTRUDE GASTON AND ROBERT GASTON, HER
HUSBAND AND THE UNKNOWN HEIRS OF WEEDEN
MARTIN, DECEASED
The complaint did not name any defendants in the body,
except to note that the plaintiffs believed that the Gastons
lived in Cincinnati, Ohio.
In the prayer section of the
complaint, the Lowes requested that “a warning order attorney be
appointed for Gertrude Gaston and Robert Gaston to notify then
[sic] of the nature and dependency of this action[.]”
The
complaint did not specifically request the appointment of a
warning order attorney as to “the unknown heirs of Weeden Martin,
deceased.”
On the same day the complaint was filed, the trial
court entered an order appointing Richard L. Fain as the warning
order attorney in the case.
The order stated that
The Defendant Gertrude Gaston, Robert
Gaston, heirs of Weeden Martin, deceased [ ]
is warned to appear and answer the
complaint/petition of the Plaintiff Shelby
Lowe and Nora Lowe herein filed against him,
not later than fifty (50) days after the date
of this order.”
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Richard L. Fain , a regular practicing
attorney of this Court, is appointed to
correspond with the Defendant, and to inform
him by mail concerning the pendency and
nature of this action, and to file his report
in the Clerk’s office of this Court within
fifty (50) days after the date of this order.
Also on June 11, 1996, a civil summons was executed, directed to
GERTRUE [sic] GASTON AND ROBERT GASTON, HER
HUSBAND AND THE UNKNOWN HEIRS OF WEEDEN
MARTIN, DECEASED.
On May 12, 1998, the heirs at law of William Means
(Lacy Earl Means, William Earl Means, Darlene Faulkner, Shirley
Jean Bowen, James Andrew Means, and Jelena Ashley), appellees
herein, filed a motion to intervene in the case as third-party
defendants on the basis of their contention that William Means
died legally possessing a 1/5 interest in the Cat Creek property.
Their motion was subsequently granted.
On September 22, 1998, a mediation conference was held
among all the parties represented in the case at that time.
As a
result of the conference, the parties in attendance executed an
agreed order which purported to resolve their disputes.
On
October 15, 1998, the trial court approved the agreed order.
On May 11, 1999, the warning order attorney filed his
report.
The report reflected that the warning order attorney had
taken two actions.
First, he sent a letter addressed to “Robert
Gaston and Gertrue [sic] Gaston” of Cincinnati, Ohio, notifying
them regarding the pending action and that they had 50 days to
file their answer.
Second, he placed a legal advertisement in
the Clay City Times, a Stanton, Kentucky newspaper, for two
weeks.
The advertisement stated as follows:
-3-
[L]egal [A]dvertisement
Anyone having information concerning the
location/address of Robert and/or Gertrue
[sic] Gaston should contact Richard L. Fain
attorney at law, P.O. Box 710, Stanton, Ky.
40380 or call 606-663-2265 within 15 days.
In the meantime, J.C. and Sonia Means and Reva Means
Rose filed a motion to compel the Lowes to comply with the agreed
order and the Lowes responded that there was a misunderstanding
as to the facts of the agreement.
On July 27, 1999, the trial
court entered an order requiring that the agreed order entered on
October 15, 1998, and the mediation agreement underlying it, be
given full force and effect as to the dispute regarding the Cat
Creek property.
On July 30, 1999, the appellants filed a motion
pursuant to CR1 24.01 and CR 24.03 to intervene as party
defendants, alleging that they had an interest in 50 of the 100
acres of the Cat Creek property.
The appellants are the heirs of
Lawrence Martin, deceased, and Zannie Nolan, deceased, who, in
turn, were the heirs of Weeden Martin.
Also on July 30th, the
appellants filed a motion pursuant to CR 59.05 requesting that
the trial court reconsider its order of July 27, 1999, requiring
the agreed order to be given full force and effect.
Also on July
30, the Lowes filed a “Motion to Review and Modify Judgment.”
On September 3, 1999, the trial court entered an order
denying the pending motions.2
1
The appellants’ motion to
Kentucky Rules of Civil Procedure.
2
The order denied “[t]he Plaintiffs’ motion to reconsider”
and “[t]he Plaintiffs Motion to Intervene[.]” Even though the
appellants were not the plaintiffs in the circuit court lawsuit,
(continued...)
-4-
reconsider was denied on the basis that it “should have been
filed within ten (10) days of [the] October 15, 1998 [ ] Powell
Circuit Judgment.”
The appellants’ motion to intervene was
denied on the basis that “[t]he above styled Plaintiffs’ right to
bring in other parties is barred by the Judgment entered on
October 15, 1998 [ ] and the heirs of Lawrence Martin have no
standing in the above-captioned case.”3
On September 24, 1999, the appellants filed their
notice of appeal.
The notice was amended on October 1, 1999.
The notice identifies the appellants as “the unknown heirs of
Weeden Martin,” and it is apparently uncontested that the
appellants are, in fact, the heirs of Weeden Martin.
First, the appellants contend that since they were not
properly served with process, the trial court erred in denying
their motion to intervene and their motion to reconsider.
The
caption of the Lowes’ complaint filed on June 11, 1996, named
“the unknown heirs of Weeden Martin” as defendants in the case.
The appellees did not contest in the trial court, and do not
contest on appeal, that the appellants are, in fact, the heirs of
Weeden Martin, or that the identity of the appellants was
(...continued)
it is apparently understood by the parties that these rulings
intended to refer to the appellants’ motions.
3
The motion under consideration was filed by the appellants,
i.e. the Weeden Martin heirs, not “the plaintiffs,” i.e. the
Lowes. The record discloses that the appellants sought
intervention at their own initiative. The record does not
contain a motion by the Lowes “to bring in other parties.”
Further, the order refers only to the heirs of Lawrence Martin as
having “no standing.” It is apparently understood by the parties
that the order intended to also include the heirs of Zannie Nolan
as having “no standing,” i.e. all the heirs of Weeden Martin.
-5-
“unknown” to the Lowes’ at the time of the filing of their
complaint.
In summary, the record reflects that it is
uncontested that the appellants, as the unknown heirs of Weeden
Martin, were named as defendants in this case in the original
complaint.4
CR 4.05(e) provides that “[i]f a party sought to be
summoned is: . . . (e) an individual whose name or place of
residence is unknown to the plaintiff [then] the clerk shall
forthwith . . . make an order upon the complaint warning the
party to appear and defend the action within 50 days.”5
CR 4.07
provides that the warning provided for by CR 4.05(e) is to be
made by means of the appointment of a warning order attorney,
whose obligation it is to seek to inform the unknown defendant of
the action.
Apparently because of a misinterpretation of the
ambiguous caption of the complaint, the order entered on June 11,
1993, appointing the warning order attorney applied only to
“Gertrude Gaston [and] Robert Gaston, heirs of Weeden Martin
deceased[.]”6
The record reflects that a CR 4.05 warning order
was never issued for “the unknown heirs of Weeden Martin,
deceased.”
Based upon the CR 4.05 order that was entered, the
warning order attorney in this case understandably did not seek
4
See CR 4.15 and CR 10.01.
5
See also CR 4.06 and CR 4.15.
6
It is not clear from the record whether Gertrude and Robert
Gaston are, in fact, actually heirs of Weeden Martin, or whether
their interest in the Cat Creek property is derived from some
other source.
-6-
to inform “the unknown heirs of Weeden Martin” of the pending
litigation.
Based upon the foregoing, we conclude that CR 4.05 was
violated and, as a result, CR 4.06 and CR 4.07 were not complied
with.
Consequently, although the appellants were named as
unknown defendants in the complaint, proper efforts to
constructively serve them were not made and they were, in fact,
not constructively served.
The warning order rules provide for constructive
service on a person unknown to the plaintiff.7
Strict compliance
with the constructive service rules is required.8
“Appointment
of a warning order attorney is a procedural device permitting an
action to proceed, in certain circumstances, unknown to the
defendant.”9
In the case sub judice, the warning order rules were
not strictly complied with in regard to the appellants, “the
unknown heirs of Weeden Martin.”
We are persuaded that, absent
this compliance, it was not proper for the lawsuit to proceed,
and that trial proceedings taken in absence of proper compliance
with this procedural device must be set aside.10
7
Nolph v. Scott, Ky., 725 S.W.2d 860, 861 (1987) (citing CR
4.05, 4.06, and 4.07).
8
Id. (citing Potter v. Breaks Interstate Park Commission,
Ky., 701 S.W.2d 403 (1985)).
9
Id. at 861-61 (citing Leathers, "Rethinking Jurisdiction
and Notice in Kentucky," 71 Ky.L.J. 755, 780 (1982-83)).
10
If the appellants had been constructively served, their
rights in the Cat Creek property could have been adjudicated
pursuant to CR 4.11.
-7-
Next, the appellants contend that the trial court erred
when it ruled that their CR 59.05 motion to reconsider filed on
July 30, 1999, was not timely filed.
The trial court’s order of
September 2, 1999, denied the appellants motion to reconsider its
July 27th order on the basis that “[t]his motion should have been
filed within ten (10) days of October 15, 1998[.]”
As noted above, it was not proper for the lawsuit to
proceed absent strict compliance with the warning order rules.
Therefore, although the appellees settled their disputes through
mediation, the entry of the order on October 15, 1998, purporting
to settle all issues in the lawsuit was a premature and improper
order.
The trial court erred insofar as it relied upon the entry
of the agreed order on October 15, 1998, as a basis for denying
the appellants’ motion to reconsider.
Finally, the appellants contend that the trial court
erred when it ruled that the appellants did not have standing to
intervene in the lawsuit.
We agree.
The trial court’s order
entered on September 2, 1999, denied the appellant’s motion to
intervene filed on July 30, 1999, on the basis that their right
to intervene was “barred by the Judgment entered on October 15,
1998 [ ] and the heirs of Lawrence Martin [and Zannie Nolan] have
no standing in the . . . case.”
In order for standing to exist, a party must show a
legally "‘recognizable interest in the subject matter of the
suit.’"11
Furthermore, the party's interest must be determined
11
General Drivers, Warehousemen & Helpers Local Union No. 89
v. Chandler, Ky. App. 968 S.W.2d 680, 683 (1998) (citing
(continued...)
-8-
to be present and substantial as opposed to a mere expectancy.12
Whether a party has standing is to be decided on the facts of the
case.13
As noted above, the agreed order entered on October 15,
1998, was not a valid judgment because the warning order rules
had not been complied with as to the appellants.
Consequently,
that “judgment” cannot be used as a basis to deny relief to the
appellants, who were, after all, named as defendants in the
initial complaint.
Moreover, the appellants have standing to
intervene as a matter of right because they claim an interest
relating to the property which is the subject of the action, the
disposition of the action without their participation may impair
their ability to protect their interests, and their interests are
not adequately represented by the other parties to the action.14
The trial court erred by denying the appellants’ motion to
intervene.
In their brief, the appellees contend (1) that the
trial court should be affirmed on the basis that Weeden Martin
had, in fact, conveyed his interest in the Cat Creek property
years before the present lawsuit was initiated; and (2) that the
“partial judgment should not be subject to modification” pursuant
(...continued)
HealthAmerica Corp. of Ky. v. Humana Health Plan, Inc., Ky., 697
S.W.2d 946, 947 (1985)).
12
Id.
13
Id. (citing Plaza B.V. v. Stephens, Ky., 913 S.W.2d 319,
322 (1996)).
14
See CR 24.01.
-9-
to the multiple party rules of CR 54.02(1), or, in the
alternative, if CR 54.02(1) was not complied with, then the
appeal must be dismissed as interlocutory.
Whether the appellants will ultimately prevail in their
claim to an interest in the Cat Creek property is a question to
be resolved on remand after the issue has been properly
litigated.
Whether the appellees’ factual assertions regarding
the disposition of Martin Weeden’s interest in the property is
correct is not an issue in this appeal.
not been litigated.
These assertions have
If, however, upon remand, it is determined
that the appellants in fact have no interest in the Cat Creek
property, the trial court may enforce the September 1998
mediation agreement and the October 1998 agreed order.
The
appellants’ intervention in the case, in and of itself, does not
vitiate the agreement between the other parties.
For the
agreement to be set aside for the other parties, the appellants
would have to be deemed to have an interest in the Cat Creek
property.
Finally, the order entered on September 3, 1999, was
not interlocutory and is final and appealable since it purported
to resolve all issues among all the parties and, further, since
it included the finality language of CR 54.02.
In summary, we reverse the trial court’s order of
September 2, 1999, and remand this matter with instructions that
the appellants should be permitted to intervene in the case to
litigate their interest in the Cat Creek property.
If it is
subsequently determined that the appellants in fact do not have
-10-
an interest in the property, the trial court may thereafter
enforce the 1998 mediation agreement and the corresponding agreed
order.
SCHRODER, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Robert Graham King
Stanton, KY
Donna R. Hale
Stanton, KY
Mark H. Metcalf
Lancaster, KY
-11-
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