Ratliff v. Oney, 86-CA-2864-S

• Citation: 735 S.W.2d 338
• Decision Date: 28 August 1987
• Docket Number: No. 86-CA-2864-S,86-CA-2864-S
• Parties: Bernie R. RATLIFF, Pluma R. Powell, Bernice R. Potter, Erma Jean R. Justice, Fon Ratliff, Faye R. Mitchell, Gary Fields, Lawrence Goble Fields, and Shirley Fields Cox, Appellants, v. Michael H. ONEY, Clara F. Oney, Diana Hankins Stanley, Bruce Stanley, James G. McKenzie, Margaret A. McKenzie, and United States of America, Department of Agriculture, Appellees.
• Court: Court of Appeals of Kentucky

Page 338

735 S.W.2d 338

Bernie R. RATLIFF, Pluma R. Powell, Bernice R. Potter, Erma Jean R. Justice, Fon Ratliff, Faye R. Mitchell Gary Fields, Lawrence Goble Fields, and Shirley Fields Cox, Appellants, v. Michael H. ONEY, Clara F. Oney, Diana Hankins Stanley, Bruce Stanley, James G. McKenzie, Margaret A. McKenzie and United States of America, Department of Agriculture, Appellees.

No. 86-CA-2864-S

Court of Appeals of Kentucky.

Aug. 28, 1987.

James B. Ratliff, Baird & Baird, P.S.C., Pikeville, for appellants.

Dwight O. Bailey, Flatwoods, Deborah G. Roher, Northeast Ky. Legal Services, Ashland, U.S. Dept. of Agriculture, Farmers Home Admin., Lexington, for appellees.

Before COMBS, COOPER and DYCHE, JJ.

COMBS, Judge.

Appellants seek a reversal of an order of the Greenup Circuit Court dismissing their complaint.

Appellants are the heirs of L.E. Ratliff, who died intestate on June 19, 1979. Mr. Ratliff had been a lifelong resident of Lookout, in Pike County, Kentucky. On June 27, 1929, L.E. Ratliff acquired title to Lots 36 and 37 of Block A of the Meadowbrook Addition to the City of Russell, Kentucky.

On November 30, 1973, Frank Clarke signed an affidavit which was prepared and notarized by attorney James W. Lyon, Sr., stating that he owned Lots 32, 36, 37 and 38 of Block No. 1 of the Meadowbrook Addition, by virtue of adverse possession.

On May 11, 1983, Virginia Clarke filed an action in the Greenup Circuit Court against L.E. Ratliff, alleging that she and her predecessors in title had adversely possessed Lots 36 and 37 of the Meadowbrook Addition since 1958. She further alleged that L.E. Ratliff had recorded deeds to Lots 36 and 37, and that:

The said L.E. Ratliff nor anyone claiming under him has made no claims to said land at any time since the Plaintiff and her predecessors have held the same.

The Defendant, L.E. Ratliff, should be required to set up any claim that he may have or be forever barred therefrom.

She sought the following relief:

2. That ... L.E. Ratliff ..., and any and all other persons who has a claim to the real estate herein be required to set up said claim or be forever barred therefrom.

3. That L.E. Ratliff ... be summoned before the Court and be required to set up their claim or be forever barred.

4. That Plaintiff believes that all Defendants herein are non-residents of the State of Kentucky and are absent therefrom and a Warning Order Attorney should be appointed to worn (sic) them of this action. That Plaintiff has searched but cannot find where they reside nor a post office nearest their place of residence. The last known (sic) address of L.E. Ratliff was Pikeville, Kentucky....

On May 11, 1983, the Clerk appointed a Warning Order Attorney for L.E. Ratliff. A return on the summons issued for L.E. Ratliff shows:

This summons was served by delivering a true copy and the complaint (or other initiating document) to: L.E. Ratliff, this 12 day of May, 1983. Served By: M.D. Hardy, W O A.

In his report as Warning Order Attorney, Mr. Hardy stated that he sent a letter to the defendant at his last known address advising him of the nature and pendency of the action; that after careful examination he was unable to make an answer for the defendant, and that his letter had been returned.

On July 21, 1983, the lower court entered Findings of Fact, Conclusion of Law and Judgment, finding Virginia Clarke and her predecessors to be the owners of the lots described in her complaint, and that she and her predecessors had been in adverse possession of the property since 1958. The court concluded that all legal requirements for quieting title in her name had been met, adjudging that "... the Defendants have been constructively served by Warning Order Attorney and are constructively before this Court and are in default." Though not sought in the complaint, the court further adjudged that Virginia Clarke "shall have a good fee simple and marketable title in and to said lands mentioned herein as against the named Defendants herein, unknown Defendants, and all other persons, and the title to said property is hereby quieted in favor of the Plaintiff."

On January 9, 1984, a motion to vacate judgment and allow entry of answer was filed by Bernie Ratliff as "successor in interest to L.E. Ratliff." On January 30th, Mr. Ratliff filed another motion to vacate judgment because Virginia Clarke failed to serve constructive notice upon L.E. Ratliff at his last known address as required by the Rules of Civil Procedure, and failed to name the heirs of L.E. Ratliff in the suit in question. He alleged that "[s]uch failure to name resulted in no notice, constructive or otherwise, of the pending action to extinguish the rights and interests held by the heirs of L.E. Ratliff." An order overruling both motions was entered shortly thereafter.

Notice of Appeal was timely filed. During the appeal proceedings, Mr. Ratliff attached to his brief a copy of his father's death certificate and an affidavit of descent.

This Court affirmed the trial court's dismissal. This writer was a member of that panel. In affirming, we said:

Not only was the issue of "death" not placed before the Circuit Court, but also the death certificate and affidavit can be considered no more than an attempted "wheelbarrowing" of evidence before this panel. Inclusion of matters not introduced below is a clear violation of the rules of appellate practice and is to be given no consideration on appeal.

Appellants filed the present action against the current owners of lots 36 and 37 of the Meadowbrook Addition, in which they alleged that their father, L.E. Ratliff, had died in 1979, some four years prior to the filing of the action by Virginia Clarke, and that by virtue of his death title descended to them.

Appellees sought dismissal of the action on the ground that the judgment in the former action barred the second action. Appellants responded to the plea of res judicata and sought to recuse Judge Lyon because he had prepared and notarized the affidavit of Frank Clarke.

The trial court overruled appellants' motion to recuse and sustained appellees' motion to dismiss. In doing so, the court found:

3. That Bernie Ratliff, who is son of L.E. Ratliff, later moved to vacate said order described in finding paragraph No. 2 above, and appealed the order denying this court's refusal to vacate to the Kentucky Court of Appeals No. 84-CA-783-MR.

The Kentucky Court of Appeals affirmed the decision of this court...