Hisle v. Lexington-Fayette Urban County, No. 2006-CA-001733-MR.

• Citation: 258 S.W.3d 422
• Decision Date: 01 February 2008
• Docket Number: No. 2006-CA-001733-MR.
• Parties: Edwin A. HISLE and Olive Sue Hisle Cook, Appellants, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Appellee.
• Court: Court of Appeals of Kentucky

258 S.W.3d 422

Edwin A. HISLE and Olive Sue Hisle Cook, Appellants, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Appellee.

No. 2006-CA-001733-MR.

Court of Appeals of Kentucky.

February 1, 2008.

Discretionary Review Denied by Supreme Court August 13, 2008.

Foster Ockerman, Jr., Lexington, KY, for appellants.

Ashley W. Ward, Tonya M. Clemons, Lexington, KY, for appellee.

Before THOMPSON, Judge; BUCKINGHAM and HENRY, Senior Judges.¹

OPINION

BUCKINGHAM, Senior Judge.

Edwin A. Hisle and Olive Sue Hisle Cook appeal from an Opinion and Order of the Fayette Circuit Court that denied their motion for relief brought pursuant to Kentucky Rules of Civil Procedure (CR) 60.02, which sought to set aside as void two judgments entered in 1966 partitioning several parcels of real property. Appellants maintain that the circuit court lacked subject matter jurisdiction to entertain the original partition action in 1965-66 and, thus, that the judgments should be set aside and they should be granted fee simple title pursuant to the wills of their grandparents. After reviewing the record and case law and considering the arguments of counsel, we affirm.

This appeal involves disputed ownership of two tracts of realty in Fayette County that were deeded to the Lexington-Fayette Urban County Government (LFUCG) by Robert E. Hisle and his wife, Anita, in 1989 for recreational and open space use. The relevant ownership lineage begins with the ownership of the tracts by the appellants' grandparents, Susie Lowell Hisle and Edwin (Ed) Hisle. Susie Hisle died in 1952, and Ed Hisle died in 1958.

Susie Hisle's will devised her real property to her husband, Ed, for his life, then on his death jointly to her sons, Robert E. Hisle and Owen M. Hisle, for life, then the remainder to her three grandchildren, Edwin A. Hisle, Sue Hisle Cook, and Larry Hisle, in fee upon the death of the life tenants. Ed Hisle's will devised his real property to his sons, Robert and Owen, jointly for life, then the remainder in fee simple jointly to "all of my grandchildren in being at the time of the death of the last survivor of said sons[.]" Sue Hisle Cook and Edwin Hisle are the children of Owen Hisle, and Larry Hisle is the son of Robert Hisle.

In December 1965, Robert and Owen Hisle filed a civil complaint in the Fayette Circuit Court seeking partition of the realty devised to them and their children by their parents, Susie and Ed Hisle, with reference to Kentucky Revised Statutes (KRS) 381.136. The complaint named as defendants Edwin Hisle and his wife, Jeanette; Sue Hisle Craig (now Cook); and Larry Hisle. All three grandchildren were over eighteen years' of age, and each filed signed answers stating that they joined in the complaint and requesting "that the property described be divided among the parties thereto entitled allotting to each according to the quantity, quality, and value."²

The trial court appointed three commissioners and, in an order entered on August 4, 1966, the court advised the commissioners that the will of Susie Hisle devised one-half life interests in her realty to Robert and Owen, with a vested remainder interest of one-third each to the grandchildren. The order also stated the will of Ed Hisle devised one-half life interests in his realty to Robert and Owen, with a vested remainder to the three grandchildren subject to being opened up to other grandchildren if others were to be born.

In October 1966, the trial court entered a judgment consistent with the report of the three commissioners by dividing the property into five tracts and assigning the interests as follows: Tract No. 1—property devised by Susie with a life estate to Robert and remainder fee simple title to Larry; Tract No. 2—property devised by Ed with a life estate to Robert and remainder fee simple title to Larry; Tract No. 3—property devised by Susie with a life estate to Owen and remainder fee simple title to Sue and Edwin; Tract No. 4— property devised by Susie with a life estate to Robert and remainder fee simple title to Sue and Edwin; and Tract No. 5—property devised by Ed with a life estate to Owen and remainder fee simple title to Sue and Edwin. The fee simple titles of Tracts No. 2 and 5, which were devised by Ed, were subject to being opened up if other grandchildren were born later. In October 1966, Robert and Owen filed a motion to set aside the judgment and enter a substituted judgment, which was granted. On October 18, 1966, the trial court entered a substituted judgment that divided and awarded the property in a manner similar to the original judgment but, among other things, referred explicitly to KRS 381.136.

In 1989, Robert and his wife, Anita, executed a deed devising three tracts of realty to LFUCG as a gift for the benefit of the public to use for recreational or open space purposes, and retaining a life estate in 23 acres. The property consisted of three of the tracts partitioned in 1966: Tracts Nos. 1 and 2, which had been devised by Susie and Ed, respectively, to Robert for life and the remainder to Larry in fee, and Tract No. 4, which had been devised by Susie to Robert for life and the remainder to Sue and Edwin in fee. Larry had died intestate in February 1980 without any children; therefore, his interest in Tracts Nos. 1 and 2 had vested in his parents, Robert and Anita, at his death by intestate succession. See KRS 391.010(2). Robert and his wife had acquired the interests of Sue and Edwin to Tract No. 4 through various purchases, which have not been challenged by the appellants.

Robert died in 1996, and Anita died in 2005. Shortly afterward, LFUCG proclaimed its interest in the Hisle farm property pursuant to the 1989 deed. In October 2005, Sue and Edwin filed a motion for Leave to File Third Party Complaint and a Third Party Complaint seeking to have the 1966 substituted judgment partitioning the Hisle property declared void and set aside. LFUCG moved to intervene to challenge the third party complaint. Sue and Edwin subsequently filed a CR 60.02 motion to void the original and substituted judgments, and the trial court granted LFUCG's motion to intervene to challenge the CR 60.02 motion.

In July 2006, the trial court entered an abbreviated Opinion and Order denying the appellants' CR 60.02 motion. The court held that the circuit court had jurisdiction to enter its rulings in the 1966 action, that KRS 381.136 was properly applied, and that the appellants failed to challenge the prior judgments in a reasonably timely fashion. This appeal followed.

The appellants, Sue and Edwin, maintain that the 1966 judgments partitioning the Hisle family realty were void ab initio because the circuit court lacked jurisdiction to enter the judgments. They contend that the circuit court's jurisdiction to grant partition derived from KRS 381.136 and that the statute did not apply under the facts of this particular case. Moreover, they assert that because the judgments were void, they may raise this issue at any time regardless of the passage of over 40 years since the judgments became final.

Whether a court was acting outside its jurisdiction is generally a question of law. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004). Therefore, we will review the issue in this case de novo.

Assuming the judgments are set aside, the appellants claim fee simple ownership of the two tracts of realty at issue (Tracts Nos. 1 and 2) as the surviving remaindermen under the wills of their grandparents following the deaths of Robert and Owen, who were devised life estates, and Larry, the third remaindermen. Accordingly, the appellants maintain that LFUCG did not acquire an interest in the realty because Robert and Anita did not have a valid fee simple title to convey. We disagree with the appellants' position on jurisdiction. Furthermore, we hold that the appellants are precluded from challenging the 1966 judgments at this late date.

The appellants argue that the circuit court lacked jurisdiction in 1965 to partition the Hisle family realty pursuant to KRS 381.136.³ KRS 381.136 generally allows a court of equity to partition and award title to realty held under a deed or will vesting a life estate in two or more persons "with remainder as to the share of each to his or her children or descendants" upon petition of one of the life tenants and the remaindermen of his or her share of the property.

The appellants contend that this statute applies only to the limited situation where the remainder interests are equal to the interests of the life tenant. They assert that because the deeds of Susie and Ed devised joint life estates to Robert and Owen, representing in effect one-half or 50% interests for each, with the three grandchildren receiving the remainder interests, representing one-third or 33.3% interests for each, KRS 381.136 did not apply.

They also point to the fact that the circuit court's 1966 judgments partitioned Tract No. 4 so as to give Robert a life estate with Owen's children, Sue and Edwin, receiving the remainder fee simple title. Thus, they argue that the circuit court lacked jurisdiction to render the judgments partitioning the property by acting outside its statutory authority.

We begin with a general discussion of the law involving "jurisdiction." Jurisdiction is a fundamental concept that goes to the very heart of a court to act or decide a case. "The courts' power to inquire into facts, apply the law, make decisions, and declare judgment between parties is both constrained by and a function of their jurisdiction." Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky.2007).⁴ Unfortunately application of the legal concept can be difficult at times, and courts too often use the term "in a loose fashion" in describing various related issues involving the existence and exercise of judicial authority. See generally Milby v. Wright, 952 S.W.2d 202, 205 (Ky.1997).

The courts have recognized three separate categories of "jurisdiction": (1)...