Opinion
NO. 2016-CA-001499-MR
12-21-2018
GALE LOVELESS AND BESSIE LOVELESS APPELLANTS v. CURTIS LOVELESS, LOUIE LOVELESS, SHIRLENE LOCKARD, AND SHAWN LOVELESS AS CO-EXECUTORS AND TRUSTEES OF THE ESTATE OF HOWARD WILLIAM LOVELESS; DANE LOVELESS; AILEEN LOVELESS; MARION LOVELESS; GILSA LOVELESS; JAMES LOVELESS; DEAN LOVELESS; CURTIN LOVELESS; CHRIS LOVELESS; LEON LOVELESS; LINDA LOVELESS; DORVIN LOVELESS; CAROL ANN LOVELESS; CARRIE MARNHAUT; MARVIN LOVELESS; GERALDINE LOVELESS; MELBA JUNE TARTER; OREN TARTER; LOUIS LOVELESS; MICHAEL LOVELESS; AND ANITA LOVELESS APPELLEES
BRIEFS FOR APPELLANTS: Ralph D. Gibson Somerset, Kentucky BRIEF FOR APPELLEES DANE LOVELESS, AILEEN LOVELESS, MARION LOVELESS, GESILA LOVELESS, JAMES LOVELESS, CURTIN LOVELESS, CHRIS LOVELESS, LEON LOVELESS, LINDA LOVELESS, DORVIN LOVELESS, CAROL ANN LOVELESS, MARVIN LOVELESS, GERALDINE LOVELESS, LOUIS LOVELESS, CARRIE MARNHOUT, MELBA JUNE TARTER, AND OREN TARTER: Molly K. Hardy Somerset, Kentucky NO BRIEF FILED FOR APPELLEES CURTIS LOVELESS, LOUIE LOVELESS, SHIRLENE LOCKARD, AND SHAWN LOVELESS, AS CO-EXECUTORS AND TRUSTEES OF THE ESTATE OF HOWARD WILLIAM LOVELESS. NO BRIEF FILED FOR APPELLEES MICHAEL LOVELESS AND ANITA LOVELESS.
NOT TO BE PUBLISHED APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 08-CI-01512 OPINION AND ORDER OF DISMISSAL
When final disposition of an appeal is made by an "Opinion and Order," as in this case, the party adversely affected may move for reconsideration as provided by Kentucky Rules of Civil Procedure (CR) 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1).
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BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES. JONES, JUDGE: Appellants, Gale and Bessie Loveless, appeal from an order of the Pulaski Circuit Court dismissing their claims against Appellees and ordering that a certain piece of real property be sold to several of the Appellees. A review of the record reveals that the order being appealed did not dispose of the claims of all parties to the underlying litigation. Accordingly, we find that this appeal is taken from an interlocutory order and must be dismissed.
I. BACKGROUND
Ottis Loveless fathered fourteen children who survived to adulthood: Gale Loveless, Howard Loveless, Dane Loveless, Marion Loveless, James Loveless, Curtis Loveless, Leon Loveless, Dorvin Loveless, Marvin Loveless, Arthur Loveless, Weldon Loveless, Louie Loveless, Carrie Marnhout, and Melba June Tarter. All of the children were born and raised on the family farm, which is comprised of two 100-acre tracts in Nancy, Kentucky (the "Property"). Ottis passed in 1983. He was survived by all of his children, with the exception of Weldon. Weldon was survived by his daughter, Weldonna Loveless. At the time of Ottis's death, each of Ottis's children and Weldonna had a 1/14 interest in Tract I of the Property and a right to inherit a 1/14 interest in Tract II of the Property.
The notice of appeal names "Curtin Loveless" as an appellee; however, the record reflects that the correct spelling is "Curtis."
Throughout the record, Louie is referred to as "Louis" and "Louie" interchangeably.
How Ottis's children and Weldonna came to have ownership interests in the Property is somewhat confusing, but is not pertinent to this appeal. In 1961, Ottis conveyed Tract I of the Property to his soon-to-be wife, Ada Pitman. He conveyed Tract II to Ada in 1962, after the two had wed. In 1963, Ottis's children had him declared incompetent by the Pulaski Circuit Court. In 1966, Ada conveyed Tract I to Ottis's children and Weldonna. In 1977, Ada conveyed Tract II back to Ottis. It appears that Ada and Ottis had separated at this time; however, there is apparently no divorce action of record. Ottis continued to reside on the Property until his death. Ottis had executed a will prior to being declared incompetent; however, for whatever reason, his will was not probated. Instead, his children proceeded as though Ottis had died intestate. Carrie filed an affidavit of descent for Ottis in 1986, which indicated that each of Ottis's children and Weldonna stood to inherit a 1/14 interest in Ottis's estate. There is no deed of record conveying Tract II of the Property to Ottis's heirs.
Prior to Ottis's death, Gale had run cattle and raised tobacco and hay on the Property. He continued to do so after Ottis's death. In 1995, both Gale and Howard expressed their intent to purchase the Property in its entirety. All persons with an interest in the Property were invited to a meeting to vote on to whom the Property would be sold. Howard received the majority vote. Accordingly, in May of 1995, a deed was executed conveying all interests in the Property to Howard and his wife for consideration of $130,000 (the "1995 Deed"). Two exceptions were included in the deed to Howard, one of which is relevant to this appeal. That exception ("Exception B") states as follows:
In 1986, Weldonna conveyed her 1/14 interest in the Property to Carrie. In 1991, Leon conveyed his 1/14 interest in the Property to Marion and Marion's son, Larry. In 1992, Dorvin conveyed a 1/7 interest in the Property to Gale's son, Michael. In 1993, Curtis and Dane conveyed their combined 1/7 interest in the Property to Dorvin. --------
If the GRANTEES decide to sell the property, or any part thereof, or the property is to be sold for any other reason, during the lifetime of the children of Ottis Loveless, the then living children of Ottis Loveless shall have the first option to repurchase the property, or any part thereof, at the same price as set forth in this deed. If the GRANTEES decide to sell the property, or any part thereof, or the property is to be sold for any reason, written notice of the proposed sale shall be given to the then living children of Ottis Loveless. The said heirs shall then have thirty (30) days in which to decide if they desire to repurchase the property. If the heirs have not elected to repurchase the property within thirty (30) days, then the property may be sold free and clear of the option. This option shall not apply to the house constructed on the property by the GRANTEES and fourteen (14) acres adjacent thereto which is generally described as the northwest side of the old Dye farm.
After the farm had been conveyed to Howard, he and Gale executed a handwritten document, which states as follows:
May 1995-1996
Gale Loveless can go on and use the farm as he has been as he sees fit. Can keep all proceeds on tobacco and other crops. He will maintain fences and pasture his cattle[.] Gale also agrees to pay all taxes & insurance on the farm excluding tax and ins. on new home witch [sic] Howard will pay. Gale will fertilize all grass lands. Gale will also teach Tom all all [sic] about farming & running cattle so he can take over & do the farming.
In a letter dated June 20, 2003, Marion informed all of his siblings that Howard had agreed to sell him an approximately two-acre portion of the Property. Gale responded to this notice by sending a letter to all of his siblings. By this letter, Gale objected to Howard's subdividing the Property. He requested that Howard provide the contract and deed to the Property and that the Property stay in one piece. Gale's letter did not explicitly state that he was exercising his option under Exception B. No other Loveless sibling objected to the sale to Marion or attempted to exercise their option to purchase the Property under Exception B. Notwithstanding Gale's objections, Howard conveyed a 1.83-acre portion of the Property to Marion in September of 2004.
In November of 2006, Howard conveyed 3.16 acres of the Property to Michael and his wife. It is undisputed that no notice was given to any of the Loveless siblings prior to this sale. In August of 2007, Howard conveyed 49.2266 acres of the Property to Marion and Larry. Apparently, Marion gave notice of this sale to his siblings by letter; however, a copy of that letter was not introduced at trial.
On April 14, 2008, Howard and Gale signed a purchase contract by which Howard agreed that he would convey what remained of the Property—approximately 131 acres—to Gale for consideration of $140,000. Neither Howard nor Gale gave written notice to any of their siblings of the intended sale. Approximately two weeks after entering the purchase contract, Gale retained Tim Woodcock to survey the Property. When Gale and Mr. Woodcock arrived at the Property, they discovered several members of the Loveless family gathered at an old farmhouse. Allegedly, two of Gale's brothers—James and Curtis—approached Mr. Woodcock, grabbed him by the arms, and told him to get off of the Property. A survey of the Property was never completed.
Having learned that Gale intended to purchase what remained of the Property from Howard, several of the Loveless siblings retained counsel. On July 16, 2008, that counsel sent notice to Gale indicating that Dane, Marion, Marvin, James, Curtis, Leon, Louie, and Carrie (hereinafter referred to as the "Loveless Heirs") intended to purchase the Property pursuant to Exception B. Howard sent written notice of his intent to sell the Property on August 4, 2008, and verbally informed Gale that he did not intend to honor their purchase contract.
In October of 2008, Gale and his wife filed suit against the Loveless Heirs, Howard, Michael, and their respective spouses. The complaint alleged that: Howard had breached the purchase contract; Howard had violated Exception B by failing to notify all of Ottis's children of his intent to sell portions of the Property prior to the sales to Marion, Michael, and Larry, which violation rendered those sales null and void; Howard and Marion had violated Exception B by selling timber from the Property without giving prior written notice to all of Ottis's children; James and Curtis had intentionally interfered with Gale's business and/or contractual relationship with Howard when they threatened the surveyor; and the Loveless Heirs had waived any requirement of notice under Exception B through their relinquishment of the exception during previous sales of the Property. In the alternative, Gale contended that the court should declare that Exception B is violative of public policy.
On October 24, 2008, the Loveless Heirs filed an answer, counterclaim, and cross-claim. For their counterclaim and cross-claim, the Loveless Heirs simply requested that the circuit court find that they had given notice of their desire to exercise their option under Exception B and that Gale had failed to do so. The Loveless Heirs further requested that the circuit court order Howard to make a deed for the Property and convey it to the Loveless Heirs for an amount of consideration to be determined by the court. Michael filed an answer, counterclaim, and cross-claim on October 28, 2008. For his counterclaim against Gale, Michael asserted that he had purchased the inheritance rights of Dane and Curtis, which gave him the same rights as an heir of Ottis, including the right to repurchase the Farm under Exception B. Michael brought a cross-claim against Howard, both in personam and in rem, seeking to be held harmless for his purchase of real estate from Howard in the event that Gale prevailed on his complaint rendering all off-conveyances by Howard null and void. In that event, Michael sought to recover $7,500, costs of surveying, and attorney's fees from Howard. He additionally asserted a lien against any and all property mentioned in the lawsuit. In Gale's answer to the Loveless Heirs' counterclaim, he contended that the purchase contract from Howard constituted written notice to all parties that Howard intended and desired to sell the Property. Howard filed an answer to the complaint on December 5, 2008, in which he denied that the sale of timber from the Property was subject to Exception B, and requested that Gale's complaint be dismissed.
Following unsuccessful mediation and numerous motions for summary judgment, the case preceded to a bench trial on April 25, 2016. At the beginning of the trial, Michael, proceeding pro se, informed the circuit court that he wished to dismiss his counterclaim against Gale and proceed only on his cross-claim against Howard. For Gale's case-in-chief, Mr. Woodcock, Howard, Michael, and Gale testified. At the close of Gale's case, Howard and the Loveless Heirs moved for directed verdicts. Those motions were either reserved or denied. The Loveless Heirs presented testimony from Carrie, Curtis, and Louie. Neither Michael nor Howard called any witnesses. At the close of all evidence, the Loveless Heirs and Howard renewed their motions for directed verdict. Those motions were again denied or reserved for final judgment. Gale then moved for a directed verdict on the Loveless Heirs' counterclaim and on the issue of whether the prior transfers from Howard to Marion, Larry, and Michael were null and void. The circuit court granted Gale's motion for a directed verdict in part—in that it found that the Howard's sale of property to Michael was void—but denied Gale's motion in all other respects.
The circuit court entered its findings of fact, conclusions of law, and judgment on September 7, 2016. In sum, the circuit court concluded that: any claim that Gale had asserted concerning a lease he had with Howard was barred by the statute of frauds and the doctrine of merger; the deeds from Howard to Marion did not violate Exception B, as Marion had sent written notice of his intent to purchase property from Howard to all siblings prior to execution of the deeds; the Loveless Heirs had legally exercised their option to repurchase the remaining Property as provided in Exception B; Gale had failed to exercise his option to repurchase the Property; James and Curtis had not intentionally interfered with the purchase contract between Gale and Howard; and Gale's claim that Exception B violated public policy was unfounded. The circuit court therefore dismissed Gale's complaint in its entirety and ordered Howard to execute a general warranty deed conveying the Property to the Loveless Heirs for a consideration of $85,659.21. No finality language was included in the judgment.
This appeal followed.
II. ANALYSIS
"It is fundamental that a court must have jurisdiction before it has authority to decide a case. Jurisdiction is the ubiquitous procedural threshold through which all cases and controversies must pass prior to having their substance examined." Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005). While the question of this court's jurisdiction has not been raised by any party to this appeal, "this court is required to raise a jurisdictional issue on its own motion if the underlying order lacks finality." Tax Ease Lien Invs. 1, LLC v. Brown, 340 S.W.3d 99, 101 (Ky. App. 2011) (citing Huff v. Wood-Mosaic Corp., 454 S.W.2d 705, 706 (Ky. 1970)).
Generally speaking, an appellate court lacks jurisdiction to consider an appeal if the appeal is not taken from a final order or judgment. Wilson, 162 S.W.3d at 913. "A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02." CR 54.01. Pursuant to CR 54.02, a trial court "may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay." For a judgment that does not dispose of all claims to be appealable, the judgment must contain a recitation that the judgment is final and that there is no just reason for delay. Id. "A trial court's failure to conclude both recitations in a judgment renders it interlocutory and nonappealable." Vorherr v. Coldiron, 525 S.W.3d 532, 540 (Ky. App. 2017).
The order being appealed from fails to address Michael's cross-claim against Howard. While Michael informed the circuit court that he wished to dismiss his counterclaim against Gale, he explicitly stated that he was continuing to pursue his cross-claim against Howard. Nothing of record indicates that Michael's claim against Howard was subsequently dismissed. Accordingly, Michael remained a party to the case, with a viable claim, at the time that the judgment was entered. Because the judgment failed to dispose of Michael's cross-claim, it was not a final order under CR 54.01. Thus, the judgment could only be appealed if it recited the "magic language" of CR 54.02. It did not do so. Therefore, the judgment entered September 7, 2016, was interlocutory and this appeal must be dismissed.
III. ORDER
Based on the foregoing, this Court ORDERS, on its own motion, that this appeal be DISMISSED for failing to appeal from a final and appealable order.
ALL CONCUR. ENTERED: December 21, 2018
/s/ Allison Emerson Jones
JUDGE, COURT OF APPEALS BRIEFS FOR APPELLANTS: Ralph D. Gibson
Somerset, Kentucky BRIEF FOR APPELLEES DANE
LOVELESS, AILEEN LOVELESS,
MARION LOVELESS, GESILA
LOVELESS, JAMES LOVELESS,
CURTIN LOVELESS, CHRIS
LOVELESS, LEON LOVELESS,
LINDA LOVELESS, DORVIN
LOVELESS, CAROL ANN
LOVELESS, MARVIN LOVELESS,
GERALDINE LOVELESS, LOUIS
LOVELESS, CARRIE MARNHOUT,
MELBA JUNE TARTER, AND
OREN TARTER: Molly K. Hardy
Somerset, Kentucky NO BRIEF FILED FOR APPELLEES
CURTIS LOVELESS, LOUIE
LOVELESS, SHIRLENE LOCKARD,
AND SHAWN LOVELESS, AS CO-
EXECUTORS AND TRUSTEES OF
THE ESTATE OF HOWARD
WILLIAM LOVELESS. NO BRIEF FILED FOR APPELLEES
MICHAEL LOVELESS AND ANITA
LOVELESS.