ROBERT DUNCAN and wife, DONNA DUNCAN v. KENTUCKY PETROLEUM EQUIPMENT, INC
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RENDERED:
February 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-001473-MR
ROBERT DUNCAN and wife, DONNA DUNCAN
APPELLANTS
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE R. CLETUS MARICLE, JUDGE
ACTION NO. 00-CI-00089
v.
KENTUCKY PETROLEUM EQUIPMENT, INC
APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
KNOPF AND TACKETT, JUDGES; EMBERTON, SENIOR JUDGE1.
KNOPF, JUDGE:
Robert and Donna Duncan appeal from a June 7,
2002, order of the Harlan Circuit Court granting a judgment to
Kentucky Petroleum Equipment Company and other lien-holders and
ordering the encumbered real property sold by the commissioner.
The Duncans do not contest any matters adjudicated in that
judgment, contesting only the trial court’s later order
1
Senior Judge Thomas D. Emberton sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
confirming the commissioner’s sale.
Because the Duncans failed
to separately appeal that order and because the Duncans failed to
name all necessary parties, their appeal is dismissed.
The essential facts of this action are not in dispute.
The Duncans owned and operated a small grocery store on three
adjoining tracts in Wallins Creek, Harlan County, Kentucky.
Beginning in 1999, the Duncans employed several contractors to
help expand their business to include a gasoline station.
Specifically, they hired Brothers Construction, Inc. and Harlan
Honey, Inc. to excavate and install the gasoline tanks, and
Kentucky Petroleum to install the pumps and electronic registers
and to build a metal canopy over the gas pumps.
CitiFinancial,
Inc. had a pre-existing mortgage on the property.
In February of 2000, Kentucky Petroleum filed this
action to enforce its liens against the property.
Thereafter,
Brothers Construction, Harlan Honey, and CitiFinancial each filed
cross-claims against the Duncans, also claiming an interest in
the property.
The Duncans disputed the validity of the
mechanics’ and materialmen’s liens.
In its findings of fact and conclusions of law entered
on June 7, 2002, the trial court granted judgments to
CitiFinancial on its mortgage and to Kentucky Petroleum on its
lien.
The trial court also ruled that Brothers Construction’s
and Harlan Honey’s liens were not filed in conformity with KRS
2
376.010, but further found that they were entitled to an
equitable lien against the property.
The trial court ordered the
tracts sold by the master commissioner and the sale proceeds
applied toward the liens and judgments.
In response to the judgment and order of sale, the
commissioner appointed appraisers to value the real property.
On
June 19, 2002, the commissioner filed separate appraisals which
placed a combined value of $44,500.00 on the three tracts.
Thereafter, on July 15, 2002, the tracts were sold at a
commissioner’s sale for $37,000.00.
The Duncans filed exceptions
to the commissioner’s report of sale, asserting that the real
property and improvements had previously been appraised for
$178,000.00, and that the $37,000.00 sale price was well less
than two-thirds of the appraised value.
In separate orders
entered on October 7 and November 1, 2002, respectively, the
trial court overruled the Duncans’ exceptions and confirmed the
commissioner’s report of sale and deed.
The Duncans argue that they were deprived of their
right of redemption.
KRS 426.530 provides that if real property
is sold by an order of the court and does not bring two-thirds of
its appraised value, the defendants may redeem it within a year
of the date of sale by paying the original purchase money plus
interest.
The Duncans again point to the earlier appraisal which
valued the real property at $178,000.00 and they dispute the
3
value placed on the property by the court-ordered appraisers.
Consequently, they assert that they were entitled to an
evidentiary hearing to determine the value of the property.2
However, there is another matter which we must address
before we can consider the merits of the Duncans’ appeal.
On
July 3, 2002, before the commissioner’s sale had taken place, the
Duncans filed their notice of appeal from the trial court’s June
7, 2002, order.
They named only Kentucky Petroleum as appellee.
Subsequently, the Duncans attempted to amend their notice of
appeal to name Brothers Construction and Harlan Honey as
appellees.
However, in an order dated December 11, 2002, this
Court denied their motion and dismissed the amended notice of
appeal.
This Court also held that CitiFinancial is not a party
to this appeal.
Kentucky Petroleum argues that the Duncan’s appeal
should be dismissed because they failed to appeal from the
circuit court’s order confirming the commissioner’s sale.
The
Duncans respond that they were entitled to, and indeed required
to file their notice of appeal from the trial court’s June 7,
2002, judgment and order of sale.
Because they timely appealed
from the judgment and order of sale, they assert that their
notice of appeal should relate forward to include the subsequent
order confirming the commissioner’s sale.
2
Burchett v. Bank of Josephine, 474 S.W.2d 66 (Ky., 1971).
4
We agree with the Duncans that an order of sale may be
considered final and appealable.3
When an order adjudicates all
of the claims of all of the parties before the court at the time
the order was entered, then it is a final order as to the
necessity of a sale and, when the sale is affected, the title of
the purchaser.4
However, an order confirming or refusing to
confirm a judicial sale is also a final and conclusive judgment.5
Moreover, the order confirming the report of sale is distinct
from the order of sale and it must be separately appealed.6
Furthermore, the relation-forward rule does not save
the Duncans’ appeal.
If a party prematurely files a notice of
appeal, the notice will relate forward to entry of the final
judgment.7
In this case, the Duncans’ notice of appeal was not
premature.
They timely appealed from the trial court’s June 7,
3
Security Federal Savings & Loan Association of Mayfield v.
Nesler, 697 S.W.2d 136, 138 (Ky., 1985).
4
Alexander v. Springfield Production Credit Association, 673
S.W.2d 741, 743 (Ky.App. 1984); Cerwin v. Taub, 552 S.W.2d 675,
678 (Ky.App. 1977).
5
Maynard v. Boggs, 735 S.W.2d 342, 343 (Ky.App. 1987); citing
Moore v. Waltman's Adm'x., 288 Ky. 258, 156 S.W.2d 100 (1941).
6
Hunter v. Hunt, 296 Ky. 769, 178 S.W.2d 609, 612 (Ky., 1944).
7
Johnson v. Smith, 885 S.W.2d 944, 949 (Ky., 1994).
5
2002, judgment and order of sale.
But the Duncans do not contest
any of the matters adjudicated in that judgment.
They do not
dispute the trial court’s findings regarding their liability; the
judgments for Kentucky Petroleum, Brothers Construction, Harlan
Honey, or CitiFinancial; or even the trial court’s order
directing the sale of the property.
The only issues which the
Duncans raise in this appeal concern the trial court’s order
confirming the commissioner’s sale and denying their claimed
right of redemption.
This matter relates exclusively to the
trial court’s order confirming the commissioner’s sale.
Because
the Duncans did not separately appeal from this order, the issue
is not properly presented to this Court.
Lastly, even if the notice of appeal related forward to
the court’s order confirming the commissioner’s sale, the Duncans
have failed to name all necessary parties to this appeal.
The
Duncans ultimately seek to set aside the judicial sale by
exercising their right of redemption under KRS 426.530.
However,
the purchaser of the property is an essential party to the appeal
and without that party their requested relief is impossible.8
Therefore, we agree with Kentucky Petroleum that the Duncans’
appeal must be dismissed.
8
Gordon v. Elliott, 439 S.W.2d 87, 87-88 (Ky., 1969).
6
IT IS HEREBY ORDERED that this appeal be DISMISSED
because the Duncans do not seek relief from the judgment from
which they appealed, they did not separately appeal from the
order from which they seek relief, and they failed to name all
necessary parties to this appeal.
ALL CONCUR.
Entered: ____________________
_\s\ William L. Knopf________
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Otis Doan, Jr.
Harlan, Kentucky
Rodney E. Buttermore, Jr.
Buttermore & Boggs
Harlan, Kentucky
7
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