City of Devondale v. Stallings, 89-SC-169-DG

• Court: United States State Supreme Court (Kentucky)
• Citation: 795 S.W.2d 954
• Docket Number: No. 89-SC-169-DG,89-SC-169-DG
• Parties: CITY OF DEVONDALE, Kentucky, n/k/a City of Graymoor-Devondale, Movant, v. S.J. STALLINGS, et al., Respondents.
• Decision Date: 27 September 1990

Page 954

795 S.W.2d 954 CITY OF DEVONDALE, Kentucky, n/k/a City of
Graymoor-Devondale, Movant,
v.
S.J. STALLINGS, et al., Respondents. No. 89-SC-169-DG. Supreme Court of Kentucky. Sept. 27, 1990.

Page 955

Charles H. Zimmerman, Jr., Kathryn M. Callahan, Greenbaum, Boone, Treitz, Maggiolo, Reisz & Brown, Louisville, for movant.

Peter L. Ostermiller, Stallings & Stallings, Foster L. Haunz, Haunz & Lueke, Louisville, for respondents.

STEPHENS, Chief Justice.

The issue we decide on this appeal is whether CR 73.02(2), the so-called "substantial compliance" rule, applies when a notice of appeal is timely filed, but omits the names of indispensable parties. Another way of stating the issue is whether the failure of an appellant to name indispensable parties in a timely-filed notice of appeal makes the notice of appeal jurisdictionally defective.

In 1984, Devondale, a fifth-class city located in Jefferson County, passed an ordinance that proposed to annex certain adjacent tracts of land which contained sufficient population to raise the city to fourthclass status. The annexation attempt was approved at the 1984 general election, and an annexation ordinance was passed by Devondale as a result.

After the election, a group of residents in the annexed area, the respondents herein, filed a declaratory judgment action in Jefferson Circuit Court, challenging the validity of the annexation attempt. Later, over Devondale's objection, the trial court permitted the City of Louisville and Jefferson County to intervene in the lawsuit. The residents filed a motion for summary judgment, which was granted by the trial court on September 16, 1987. On October 6, 1987, Devondale timely filed a notice of appeal. It is as follows:

NOTICE OF APPEAL

Please take Notice that the City of Devondale (now known as the City of Graymoor-Devondale), a defendant in this proceeding, by counsel, hereby appeals to the Kentucky Court of Appeals from the final Order in the above-styled case entered by the Honorable Ken G. Corey on September 14, 1987, a copy of which is attached hereto as Exhibit A and incorporated herein by reference.

The name of the Appellees against whom this appeal is taken are S.J. Stallings, Carroll Brent, Thomas W. Filben, Jr., Thomas E. Dwyer and Tracy Dwyer, Bruce S. Young, Jr. and Linda Young, Dennis Lorenz, Sue Collingsworth, Robert W. Moore and Kay Moore, Jane Morgan, Kevin V. Doyle and Richard J. Parris.

/s/

___________________________

Charles H. Zimmerman, Jr.

Greenebaum, Treitz Maggiolo

Reisz & Brown

2700 First National Tower

Louisville, KY 40202

(502) 589-4100

Counsel for Devondale

Only the original plaintiffs were named as appellees. As can be seen above, intervenors Louisville and Jefferson County were not named as parties, but copies of the notice of appeal were served on their attorneys. It is clear from the four corners of the notice of appeal, timely filed, that these two governmental entities, both parties to the lawsuit in the trial court, were not listed in the notice of appeal.

On October 6, 1987, Devondale timely filed a prehearing statement, pursuant to CR 76.14, which also omitted Louisville and Jefferson County as parties to the appeal. Copies of this statement were similarly served on all parties in the trial court, including Louisville and Jefferson County.

Page 956

At this point, then, the record shows two documents were formally filed with the appropriate court, in a timely manner. Copies of these documents were mailed to counsel for all trial court parties, even those parties omitted in the formal documents. ¹

Fifty-five days after filing its notice of appeal, Devondale moved to amend the document to include Louisville and Jefferson County as appellees in that appeal. The Court of Appeals denied this motion. In its motion to reconsider, Devondale stated:

"Jefferson County Fiscal Court and the City of Louisville are necessary parties to this appeal. Unless the City and County are allowed to be named parties to this Appeal, it will be impossible for Appellant to obtain relief in this forum. The Jefferson Circuit Court's order declaring Appellant's annexation ordinance void would still be in full force and effect as between Appellant and the City and County. If this Court does not grant Appellant's Motion to reconsider, it must dismiss the entire Appeal." (Emphasis added.)

The appellate court denied this motion as well.

Respondents then filed a motion in the Court of Appeals to dismiss the appeal on the grounds that Devondale had failed to join necessary parties to the appeal. This motion was denied, but following oral argument the Court of Appeals changed its mind and did, in fact, dismiss the appeal.

In its order, the court found that Louisville and Jefferson County were, in effect, indispensable parties, as Devondale had admitted in its motion to reconsider. The court said:

"Even if this Court were to grant all of the relief sought by Devondale and declare its annexation to be valid, it would not affect the finality of the circuit court's judgment as to the City of Louisville and Jefferson County. This obviously results in the untenable possibility that, should this case be reversed, the area in question would be part of the City of Devondale, and yet, to the City of Louisville and Jefferson County, the area would remain an unincorporated portion of Jefferson County subject to the City of Louisville's pending...