WILLIAM SEABOLD; TIMOTHY HURST; SCOTT HAAS; DREW OSBORNE; TONY BALL; AND MICHAEL THOMPSON v. ESTATE OF FRANK MARSHALL HARBIN JR., BY AND THROUGH CONNIE PUGH, ADMINISTRATRIX; CHASITY NICOLE HARBIN AND KAYLA RENEE HARBIN, BY AND THROUGH CONNIE PUGH, THEIR GUARDIAN; CONNIE PUGH; FRANK HARBIN SR.; AND SHANNON JOHNS
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RENDERED:
APRIL 14, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000267-MR
WILLIAM SEABOLD; TIMOTHY HURST;
SCOTT HAAS; DREW OSBORNE;
TONY BALL; AND MICHAEL THOMPSON
APPELLANTS
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
CIVIL ACTION NO. 04-CI-00529
v.
ESTATE OF FRANK MARSHALL HARBIN JR.,
BY AND THROUGH CONNIE PUGH, ADMINISTRATRIX;
CHASITY NICOLE HARBIN AND KAYLA RENEE HARBIN,
BY AND THROUGH CONNIE PUGH, THEIR GUARDIAN;
CONNIE PUGH; FRANK HARBIN SR.;
AND SHANNON JOHNS
APPELLEES
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE:
MINTON AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.1
MINTON, JUDGE:
This is a procedurally convoluted case in which
Appellants appeal from the Oldham Circuit Court’s order
1
Senior Judge John D. Miller sitting as Special Judge by assignment
of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky
Constitution and Kentucky Revised Statutes (KRS) 21.580.
dismissing their declaratory judgment action.
Because the law
of the case doctrine bars this appeal, we must dismiss it.
On November 1, 2002, Connie Pugh filed a petition in
the Oldham District Court to be appointed administrator of the
estate of her deceased son, Frank Marshall Harbin Jr.
On
November 12, 2002, the district court held a hearing on Pugh’s
petition.
At that time, the district court noted on the record
that Pugh’s petition was deficient because it did not list
Harbin’s heirs-at-law.
Nevertheless, the district court swore
in Pugh as administrator, ostensibly to avoid Pugh’s having to
return to Oldham County from her home in Bullitt County, and
signed the order appointing Pugh as administrator of Harbin’s
estate.
The Oldham Circuit/District Clerk stamped the order of
appointment “ENTERED” on November 12, 2002.
On November 21, 2002, Pugh filed an amended petition
for appointment as Harbin’s administrator.
On January 7, 2003,
the district court held a hearing on Pugh’s amended petition.
Neither Pugh nor anyone opposing her motion appeared at the
hearing.
Despite the entry of the November order appointing her
as administrator, the recording log of the hearing states that
the district court gave a “final approval” to Pugh’s appointment
at the January 7 hearing.
But there was no court order
generated to reflect any action taken at the January 7 hearing.
Only the fiduciary bond form, which Pugh had signed earlier and
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which recited her appointment date as November 12, 2002, was
filed with the clerk on January 7, 2003.
Over a year later, in March 2004, Pugh filed a motion
in the district court asking that court to enter an order
specifically establishing January 7, 2003, as her appointment
date as administrator of Harbin’s estate.
Pugh sought to
establish January 7 as her appointment date because the date of
her appointment affected the limitation period applicable to a
wrongful death action Harbin’s estate sought to file against the
Appellants.
Lamentably, the district court granted Pugh’s
motion and entered an order setting January 7 as Pugh’s
appointment date.
Despite the fact that they were not parties to the
probate proceedings, Appellants then filed a motion in the
district court seeking to amend or vacate its order setting
January 7 as Pugh’s appointment date.
Appellants argued that
Pugh’s appointment became effective with the entry of the order
of appointment on November 12, 2002.
The district court denied
Appellants’ motion, after which they filed both an appeal to the
Oldham Circuit Court and a separate declaratory judgment action
in the Oldham Circuit Court challenging the newly-fixed
appointment date.
In the appeal, the circuit court issued an opinion and
order affirming the district court’s decision, reasoning that
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the November 12 order was “erroneously entered” and,
consequently, that the district court did not finally approve
Pugh’s appointment until January 7.
That same day, the circuit
court issued an order dismissing Appellants’ parallel
declaratory judgment action for the same reasons.
Appellants filed an appeal with this Court as a matter
of right from the dismissal of the declaratory judgment.
A few
days later, the Appellants also filed with this Court a motion
for discretionary review of the circuit court’s decision in
their appeal from the probate case.
In May 2005, a divided panel of this court denied
Appellants’ motion for discretionary review.2
Before us now is
the matter of right appeal from the dismissal of the declaratory
judgment.
We are troubled by the district court’s decision to
establish January 7 as the date of Pugh’s appointment as
administrator of Harbin’s estate.
By its plain terms,
KRS 395.105 provides that the appointment of a fiduciary “shall
be effective with the signing of an order by the judge.”
Since
the district court signed an order on November 12 appointing
Pugh as administrator of Harbin’s estate and the court’s clerk
2
See Case No. 2005-CA-000289-D.
3
Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transportation
Cabinet, 983 S.W.2d 488, 492 (Ky. 1998).
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entered the order, under the plain meaning of KRS 395.105, to
which we must adhere,3 Pugh’s appointment became effective on
that day.
The fact that Pugh’s original petition did not meet
KRS 395.015(1)’s requirement that all the deceased’s heirs-atlaw be listed on the petition made the November 12 order simply
voidable, not void.4
Thus, although we must decline to express
our definitive opinion on the matter, we believe that the lower
courts have erred by finding that Harbin’s appointment was not
effective until January 7.
Nevertheless, we are prohibited from
reviewing those potential errors on the merits due to the
application of the law of the case doctrine.
Closely related to the doctrine of res judicata, the
law of the case doctrine is a rule under which “‘a decision of
the appellate court, unless properly set aside, is controlling
at all subsequent stages of the litigation . . . .’”5
So when
the circuit court ruled on Appellants’ appeal from the ruling in
4
60 C.J.S. Motions and Orders § 75 (2005) (“[a]n order made without
jurisdiction or authority is void and of no force or effect but an
erroneous or irregular order issued within the court's jurisdiction
is voidable and cannot be disregarded until reversed or set
aside . . . . Where jurisdiction exists both of the subject matter
and of the parties, as well as jurisdiction to make the particular
order in question, however, an order is not void, but voidable, even
though it is erroneous or irregular.”).
5
Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 1982) (quoting 5 Am.Jur.2d,
Appeal and Error, § 744.).
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the probate case, the circuit court was functioning as an
appellate court.
That circuit court appellate decision became
final and binding when we, regrettably, denied discretionary
review of it.
And because the case before us on appeal is
squarely on all fours with the facts, the parties, and the
issues involved in the probate case, we are bound by the circuit
court’s appellate opinion, erroneous though we believe it may
be.6
Consequently, we must dismiss this appeal.
For the foregoing reasons, it is ORDERED that this
appeal is dismissed.
VANMETER, JUDGE, CONCURS.
MILLER, SENIOR JUDGE, CONCURS IN RESULT ONLY.
ENTERED: _April 14, 2006
_/s/ John D. Minton, Jr.__
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Amy V. Barker
Frankfort, Kentucky
Wendi Swinson Wagner
Louisville, Kentucky
6
Union Light, Heat & Power Co. v. Blackwell's Adm'r, 291 S.W.2d 539,
542 (Ky. 1956) (“[i]t is an iron rule, universally recognized, that
an opinion or decision of an appellate court in the same cause is
the law of the case for a subsequent trial or appeal however
erroneous the opinion or decision may have been.”).
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