Flick v. Estate of Wittich

• Decision Date: 25 April 2013
• Docket Number: No. 2010–SC–000664–DG.,2010–SC–000664–DG.
• Citation: 396 S.W.3d 816
• Parties: Michael Joseph FLICK, Appellant v. The ESTATE OF Christina WITTICH, Appellee.
• Court: United States State Supreme Court — District of Kentucky

396 S.W.3d 816

Michael Joseph FLICK, Appellant

v.The ESTATE OF Christina WITTICH, Appellee.

No. 2010–SC–000664–DG.

Supreme Court of Kentucky.

April 25, 2013.

Jennifer Francis Zeigler, Lexington, KY, for Appellant.

Roger Newman Braden, Braden & Associates, LLC, Florence, KY, for Appellee.

Opinion of the Court by Justice ABRAMSON.

Michael Flick was sentenced to life imprisonment for the murder of Christina Wittich. Wittich's parents, Judith and Frederick Wittich, brought a wrongful death action against Flick on behalf of their daughter's Estate and obtained a multi-million dollar jury verdict. After Flick appealed the judgment naming only “The Estate of Christina Wittich” as a party to the appeal, the Court of Appeals dismissed the appeal for failure to name the co-administrators of the Estate. Having granted discretionary review, we conclude that naming “The Estate of Christina Wittich” was sufficient to confer appellate jurisdiction over the co-administrators, to provide fair notice of the appeal, and to identify the proper party to the appeal. Accordingly, we reverse and remand.

RELEVANT FACTS

Michael Joseph Flick was tried by a Fayette County jury for the shooting death of Christina Wittich. Flick was convicted of murder, second-degree assault under extreme emotional disturbance, and first-degree burglary and was sentenced to life imprisonment.¹ Following the criminal trial, the Estate of Christina Wittich (“the Estate”) by and through its Administrators, Judith Wittich and Frederick Wittich (“the co-administrators”) filed a wrongful death action against Flick in Fayette CircuitCourt. The jury returned a verdict in favor of the Estate, awarding $2,900,000 in compensatory damages and $53,000,000 in punitive damages.

Flick timely filed a notice of appeal to the Kentucky Court of Appeals on December 19, 2009. In the notice, Flick used the same case style that had been employed in the trial court. Thus, the caption named “The Estate of Christina Wittich, et al.” as the “plaintiffs,” and himself as the “defendant.” The body of the document identified the judgment from which the appeal was taken but did not designate the appellant or appellee. This notice was served on the co-administrators' attorneys.

The co-administrator's attorneys, on behalf of the Estate, filed a motion to dismiss for failure to designate the “appellant” and “appellee” in either the caption or body of the notice of appeal. In his response, Flick argued that the body of the notice made the parties' positions clear, but, in the alternative, he requested the court to accept an amended notice which included the co-administrators in the caption. The Court of Appeals denied the Estate's motion to dismiss, but entered an order for Flick to Show Cause why his appeal should not be dismissed for failure to join the co-administrators of the Estate as necessary and indispensible parties. Flick filed a response to the Show Cause order explaining that the co-administrators' names were inadvertently omitted from the notice of appeal. Flick also attached an amended notice of appeal to the response, and further asked the court to grant a motion to join Judith Wittich and Frederick Wittich as necessary and indispensible parties. With one judge dissenting, a three-judge panel of the Court of Appeals dismissed Flick's appeal for failure to join necessary and indispensible parties. This Court granted Flick's ensuing motion for discretionary review to address the Court of Appeals' denial of Flick's motion to amend and the dismissal of the appeal.

ANALYSIS

Flick contends that the Court of Appeals erred by dismissing his appeal for failure to name the co-administrators as necessary and indispensible parties. He argues that omission of the co-administrators' names was a clerical error but, in any event, his notice effectively named the co-administrators by naming “The Estate of Christina Wittich” as a party. This designation, according to Flick, substantially complies with the pleading standards set forth in Kentucky Civil Rule (“CR”) 73.02. The question before the Court now is whether naming the Estate but omitting the co-administrators' names is a fatal error. We find that it is riot.

The wrongful death case proceeded in the lower court styled as “The Estate of Christina Wittich by and through Judith Wittich and Frederick Wittich, Co–Administratrix and Co–Administrator v. Michael Joseph Flick.” ² However, the judgment that was eventually entered provided: “Judgment be and is hereby entered in favor of the Estate of Christina Wittich, Plaintiff, against Michael J. Flick ...” When the notice of appeal was filed, Flick's attorney inadvertently omitted “by and through Judith Wittich and Frederick Wittich, Co–Administratrix and Co–Administrator” from the caption and body of the notice. The notice of appeal caption stated, in pertinent part, as follows:

THE ESTATE OF CHRISTINA WITTICH, ET AL. PLAINTIFFS

v.

MICHAEL JOSEPH FLICK DEFENDANT

As noted, the body of the notice did not identify the appellant or appellee, although it properly identified the judgment entered against the Estate.

A notice of appeal is the procedural instrument “by which an appellant invokes the appellate court's jurisdiction.” Nelson County Board of Education v. Forte, 337 S.W.3d 617, 626 (2011) (quoting City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky.1990)). It is well settled that a notice of appeal will be deemed adequate “if it contain[s] a listing of parties sufficient to give the opposing party notice of the identities of the parties against whom the appeal was filed.” Morris v. Cabinet for Families and Children, 69 S.W.3d 73, 74 (Ky.2002) (citing Blackburn v. Blackburn, 810 S.W.2d 55 (1991)). The penalties for failure to comply with the rules relating to appeals are outlined in CR 73.02(2). Prior to a 1985 amendment of CR 73.02(2), our courts adhered to a policy of strict compliance in regards to notices of appeal, meaning a departure from the pleading requirements, regardless of prejudice or harm caused to the opposing party, resulted in an automatic dismissal of the appeal. See Manly v. Manly, 669 S.W.2d 537 (Ky.1984). CR 73.02(2) as amended set out a new policy of substantial compliance. The rule states:

(2) The failure of a party to file timely a notice of appeal, cross-appeal, or motion for discretionary review shall result in a dismissal or denial. Failure to comply with other rules relating to appeals or motions for discretionary review does not affect the validity of the appeal or motion, but is ground for such action as the appellate court deems appropriate, which may include:

(a) A dismissal of the appeal or denial of the motion for discretionary review,

(b) Striking of pleadings, briefs, record or portions thereof,

(c) Imposition of fines on counsel for failing to comply with these rules of not more than $500, and

(d) Such further remedies as are specified in any applicable Rule.

(emphasis supplied).

This Court first recognized the application of the CR 73.02(2) substantial compliance rule as it relates to defective notices of appeal in Ready v. Jamison, 705 S.W.2d 479 (Ky.1986). The Ready Court reviewed three cases wherein the judgment appealed from was inappropriately designated. Id. at 480. Finding the errors to be non-fatal to the appeals, the Court held, “[d]ismissal is not an appropriate remedy for this type of defect so long as the judgment appealed from can be ascertained within reasonable certainty ... and no substantial harm or prejudice has resulted to the opponent.” Id. at 481–82. The Ready Court further opined that the policy of substantial compliance “seek[s] to recognize, to reconcile and to further three significant objectives of appellate practice: achieving an orderly appellate process, deciding cases on the merits, and seeing to it that litigants do not needlessly suffer the loss of their constitutional right to appeal.” Id. at 482;see also Johnson v. Smith, 885 S.W.2d 944, 950 (Ky.1994) (“Excepting for tardy appeals and the naming of indispensable parties, we follow a rule of substantial compliance.”).

In the case at bar, Flick does not contend that the Estate's co-administrators are not indispensible parties to the appeal. Nor does he claim that “ et al.” is an appropriate designation for the co-administrators, as Flick acknowledges that the use of “ et al.” is specifically disapproved by CR 73.03. ³ Instead, Flick claims that our policy of substantial compliance, as set forth in CR 73.02(2), saves his appeal. Reasoning that an estate must be represented by its administrators, Flick contends that the co-administrators of the Wittich Estate were implicitly named by specifying “The Estate of Christina Wittich” in the caption of the notice.

In support of his position, Flick cites our recent decision in Lassiter v. American Express Travel Related Services Co., 308 S.W.3d 714 (Ky.2010). In Lassiter, the Kentucky State Budget Director sought to appeal a circuit court decision holding that a provision in a budget bill was unconstitutional. Id. at 717. The Budget Director filed a notice of appeal naming the Commonwealth of Kentucky and the Kentucky Department of Treasury as defendants. Id. The Court of Appeals dismissed the appeal for failure to name the State Treasurer as an indispensible party. Id. at 716. After granting discretionary review, this Court concluded that the State Treasurer was effectively named as a party to the appeal by naming the “Department of Treasury” in the caption. Id. The Court relied on Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) wherein the United States Supreme Court held that naming an agency head in his official capacity in a lawsuit was the “functional equivalent of naming the agency itself.” Lassiter, 308 S.W.3d at 719 (citing Graham, 473 U.S. at 165, 105 S.Ct. 3099). The Graham Court stated “[a]s long as the government entity receives notice and an opportunity to respond, an...