GORDON (WAYNE), ET AL. VS. KASSOFF (ALAN), ET AL.Annotate this Case
RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
WAYNE GORDON AND
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 06-CI-00256
ALAN KASSOFF AND KAROLYN KASSOFF,
HUSBAND AND WIFE; AND
SIRVA MORTGAGE, INC.
OPINION AND ORDER
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BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES.
DIXON, JUDGE: Wayne and Brenda Gordon (the Gordons) appeal from an order of the
Boyle Circuit Court, which granted summary judgment in favor of Alan and Karolyn
Kassoff (the Kassoffs) and CitiMortgage, Inc. (CitiMortgage). Because this Court does
not have jurisdiction over CitiMortgage, an indispensable party, we dismiss this appeal.
In February 2004, the Gordons entered into an oral agreement with DR
Builders for the construction of a custom built home in Boyle County for $215,000. The
Gordons paid DR Builders $192,000 when construction began. A dispute arose
between the Gordons and DR Builders during construction. The Gordons occupied the
residence for one year before relocating to Virginia; however, the house was not
conveyed to them and they paid no additional money to DR Builders.1 On May 31,
2006, the Gordons filed a complaint against DR Builders seeking monetary damages for
breach of contract and unjust enrichment. Contemporaneously, the Gordons recorded
a lis pendens notice against the property with the county clerk. The next day, June 1,
2006, the Kassoffs purchased the home from DR Builders, secured by a mortgage from
Sirva Mortgage, Inc. (Sirva).
In January 2007, the Gordons filed an amended complaint naming the
Kassoffs and Sirva as defendants. However, Sirva had assigned its interest in the
property to CitiMortgage. CitiMortgage filed an answer, and the parties informally
agreed CitiMortgage would participate in the litigation as Sirva’s successor in interest.
Neither party made a formal motion to substitute CitiMortgage as a defendant.
On April 2, 2007, the Kassoffs and CitiMortgage moved for summary
judgment and release of the lis pendens. The Kassoffs and CitiMortgage claimed the lis
pendens was improper because the Gordons’ complaint sought monetary damages for
breach of contract, which did not affect title to the property. On May 10, 2007, following
a hearing, the circuit court granted the motion for summary judgment and released the
The Gordons filed a notice of appeal on May 25, 2007, naming the
Kassoffs and Sirva as Appellees. Thereafter, on July 9, 2007, the Gordons filed a
motion to amend the notice of appeal to name CitiMortgage as an Appellee. On July
23, 2007, the Kassoffs filed a response to the Gordons’ motion to amend and filed a
motion to dismiss the appeal for failure to name CitiMortgage as an indispensable party.
The Gordons allege they paid an additional $17,000 to subcontractors on behalf of DR
On August 1, 2007, the Gordons filed a response to the motion to dismiss. On
September 18, 2007, by order of this Court, the pending motions were passed to this
panel for consideration.
The Gordons claim that, because there was no formal substitution of
parties, their notice of appeal substantially complied with the Kentucky Rules of Civil
Procedure (CR) 73.02 by naming Sirva as an Appellee. However, in City of Devondale
v. Stallings, 795 S.W.2d 954 (Ky. 1990), our Supreme Court held that the policy of
substantial compliance was inapplicable to a defective notice of appeal. Id. at 957.
CR 73.03(1) states “[t]he notice of appeal shall specify by name all
appellants and all appellees.” In Stallings, the Supreme Court affirmed this Court’s
dismissal of an appeal for failure to name an indispensable party. Id. The notice of
appeal, though timely filed, failed to name two intervening parties in the trial court as
appellees. Id. at 956. Fifty-five days after filing its notice of appeal, the movant filed a
motion to amend to name the additional parties. Id. at 957. The Supreme Court noted,
“A notice of appeal, when filed, transfers jurisdiction of the case from the circuit court to
the appellate court. It places the named parties in the jurisdiction of the appellate
court.” Id. at 957 (citation omitted). The Court concluded that the amendment was not
proper where the time for filing the notice of appeal had expired. Id. Relying on CR
73.02, the Court found that dismissal of the appeal was appropriate. Id.
Although the Gordons contend otherwise, we find Stallings controlling
under the circumstances presented here. The record shows that the parties agreed that
CitiMortgage would participate in the litigation. The Gordons did not dispute that
CitiMortgage obtained Sirva’s interest in the property, and the summary judgment order
specifically granted relief in favor of CitiMortgage and the Kassoffs. Despite
participation by CitiMortgage below, the Gordons named Sirva in the notice of appeal
and then waited nearly one month after the filing deadline to move to amend. Finally,
we note that CitiMortgage, as the lien holder, must be a necessary party since the
underlying action sought to divest CitiMortgage of its security interest in the property.
“An indispensable party is one whose absence prevents the court from granting
complete relief among those already parties.” Commonwealth v. Blincoe, 34 S.W.3d
822, 824 (Ky. App. 2000).
We conclude the Gordons’ failure to name CitiMortgage as a party to this
appeal is a fatal defect. Consequently, the Gordons’ pending motion to amend is
denied, and this appeal is ORDERED dismissed.
ENTERED: August 15, 2008
/s/ Donna L. Dixon
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Thomas M. Todd
Todd S. Page
Lucy A. Pett