Matthew Murphy v. Sandra Larue ( 2021 )

RENDERED: JANUARY 29, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0103-MR
MATTHEW MURPHY AND APPELLANTS
ALLISON MURPHY
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 17-CI-001363
SANDRA LARUE APPELLEE
OPINION
DISMISSING
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BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
COMBS, JUDGE: In this will contest case, siblings Matthew Murphy and Allison
Murphy appeal the December 21, 2018, summary judgment of the Jefferson Circuit
Court entered in favor of Sandra LaRue. After our review, we are compelled to
dismiss the appeal for failure to name indispensable parties in the notice of appeal.
The Murphys filed a verified complaint on March 16, 2017, in
Jefferson Circuit Court seeking to set aside the last will and testament of Lorraine
Murphy, their mother, on their arguments that it was the product of undue
influence and fraud and that Lorraine lacked capacity to make the will. The
contested will was executed at Lorraine’s home on September 23, 2016, naming
LaRue (Lorraine’s neighbor, friend, and caregiver) the executrix and primary
beneficiary of the estate. The Murphys, Lorraine’s only children (both of whom
had become essentially estranged from her), were not provided for under the terms
of the contested will. The Murphys claimed that they should inherit the entirety of
their mother’s estate in equal shares pursuant to the terms of her earlier will, which
was executed on December 15, 1994.
On April 3, 2017, LaRue filed a motion to dismiss without prejudice.
In the alternative, she requested that the Murphys provide a more definite
statement with respect to their allegation of fraud. In her motion, LaRue observed
that the complaint failed to identify two other beneficiaries. Under the provisions
of the contested will, Lisa Nall and Cindy Googe were also to share in the
decedent’s estate. However, they had not been named as defendants in the civil
action. LaRue contended that they were indispensable to a proper resolution of the
dispute.
At the trial court’s hearing on the motions, the Murphys’ counsel
agreed to amend the complaint to include specific allegations concerning the
alleged fraud. With respect to Nall and Googe, counsel indicated that they had not
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been located. LaRue’s counsel argued that they needed to be served before the
proceedings could continue. In its order entered on April 10, 2017, the court
granted the oral motion to amend and ordered that all beneficiaries be included in
the proceedings and that they be served with process.
On April 26, 2017, the Murphys filed an amended complaint. Nall
and Googe were now named as additional defendants. Another beneficiary, Eric
Carter, was also mentioned in the body of the complaint. The allegations of the
complaint indicated that the additional defendants had been added as
“indispensable parties due to their interest in the estate under the 2016 will.”
On May 16, 2017, LaRue filed a motion to dismiss the amended
complaint and, in the alternative, a motion to enforce the court’s order of April 10,
2017. In her motion, LaRue indicated that Carter had not been properly named as
a party-defendant in the action and that no attempt had been made to serve him.
Additionally, LaRue observed that no attempt had been made to serve Nall. She
objected to an allegation in the complaint indicating that “the Plaintiff’s [sic] are
unaware of any claims against” the additional defendants. Finally, LaRue
contended that the amended complaint failed to provide more specific allegations
concerning the fraud claim.
In their response, the Murphys agreed that Carter had been omitted
from the style of the case and proposed to correct the “clerical error.” They
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affirmed that the paragraph included in the amended complaint to which LaRue
objected “means what it says: the additional defendants are named based upon
their interest in a voidable will rather than on the basis of their conduct.” Finally,
the Murphys argued that their allegations concerning LaRue’s fraud were specific
enough to identify her objectionable conduct.
At a hearing on May 22, 2017, LaRue suggested that the Murphys had
not attempted to serve Nall because she was providing information to them and
that Nall was unaware that she would lose her share of the estate if the Murphys
prevailed. LaRue alleged that the proceedings could not continue without the
participation of the new defendants and that a warning order attorney could be
appointed as a last resort. The Murphys represented that they were trying to serve
process upon the newly added defendants. The trial court repeatedly emphasized
that the proceedings could not continue without the new defendants. The
Murphys’ counsel appeared to agree. The court denied the motion to dismiss.
The Murphys filed a corrected amended complaint on July 27, 2017.
Summons was issued for Googe, and she was served on August 1, 2017.
Summons was issued for Carter, and he was served on August 3, 2017. The
Murphys provided no address for Nall. She had not been served by August 10
when the Murphys filed a motion for a special bailiff to effect service; that motion
was granted.
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On March 22, 2018, LaRue answered and denied the substantive
allegations of the Murphys’ corrected amended complaint. On July 30, 2018, she
filed a motion for summary judgment. The motion was supported with affidavits
and a video of Lorraine’s execution of the contested will. LaRue argued that she
was entitled to judgment as a matter of law because the Murphys had presented no
evidence to show that Lorraine lacked capacity to make a will in September 2016
or that she had acted under LaRue’s undue influence.
The Murphys responded. They argued that the provisions of the
contested will did not reflect their mother’s judgment. Instead, they continued to
argue that LaRue’s inappropriate influence had overcome their mother’s free will
so that she did not dispose of her estate in the manner that she wished. They cited
several “badges of undue influence” and attached affidavits and copies of medical
records reflecting the medications that had been prescribed to Lorraine.
Following its hearing conducted on December 10, 2018, the trial court
granted LaRue’s motion for summary judgment. This appeal followed.
In their notice of appeal, the Murphys indicate that LaRue is the only
appellee. They refer to Googe, Nall, and Carter in the body of the notice of appeal
indicating that these additional defendants “were named in the suit by virtue of
being interested parties under the contested will.” The Murphys explained that
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they had “not asserted any claims against the additional defendants and none of the
additional defendants have [sic] appeared in this case.”
On appeal, the Murphys argue that the trial court erred by granting the
motion for summary judgment. They contend that the trial court erred in:
determining that there was no dispute concerning the material facts; making
findings reserved to the jury; and applying an incorrect standard in its analysis of
undue influence. LaRue disputes these contentions, but she also argues that the
appeal must be dismissed because the Murphys failed to join Lisa Nall, an
indispensable party to the action. The Murphys filed no reply.
In Kesler v. Shehan, 934 S.W.2d 254 (Ky. 1996), the Supreme Court
of Kentucky referred to a series of early cases holding that all beneficiaries of a
will are necessary parties in a will contest. The court observed that its decision
in West v. Goldstein, 830 S.W.2d 379 (Ky. 1992), modified -- but did not
specifically overrule -- these early cases.
In West, our Supreme Court held that the failure of the plaintiff to join
all beneficiaries under the will to the will contest action was not fatally defective to
the proceedings. The Court reasoned that the unnamed beneficiaries were not
necessary parties in West because the plaintiffs had waived their right to contest
distributions to these beneficiaries. Additionally, the specific bequests in the
contested will amounted to less than the bequests that the beneficiaries would
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receive under the will that the plaintiffs supported. Thus, they could suffer no
detriment if the contested will prevailed. The Court decided that the unnamed
beneficiaries were not necessary parties to the action since they no longer had an
interest in the litigation. However, the exception discussed in West does not apply
to the case before us since the beneficiaries included in the amended complaint
continue to retain an interest in the 2016 will. Consequently, all of them were
necessary to the circuit court proceedings.
In Kesler, the Supreme Court of Kentucky also referred to Land v.
Salem Bank, 279 Ky. 449, 130 S.W.2d 818 (1939), which held that for purposes of
appeal, one is an indispensible party if her participation would be necessary to
additional proceedings in the circuit court if the judgment were reversed. If the
beneficiary omitted by the Murphys would be a necessary party in the event of a
reversal of the judgment on appeal, she is indispensible to the appeal.
As we have noted, the exception recognized in West, supra, does not
apply in this case since Lisa Nall, whom the Murphys omitted, retains an interest in
the decedent’s estate under the provisions of the 2016 will. There is no indication
that the Murphys have acquiesced in her receipt of any benefit under the
challenged will. Furthermore, the omitted party would be necessary to the
additional proceedings that would result from our reversal of the trial court’s
summary judgment.
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CR1 73.03 sets forth in mandatory terms that all appellants and all
appellees must be named in the Notice of Appeal. It emphasizes specificity, noting
parenthetically that “et, al.” and “etc.” “are not proper designation of paries.” The
naming of all necessary parties is a jurisdictional requirement, and failure to
comply by omitting an indispensable party is a fatal defect. City of Devandale v.
Stallings, 795 SW.2d 954, 954 (Ky. 1990), unequivocally announced that this
failure cannot be cured by invoking any rule of substantial compliance (such as the
filing of an amended complaint) and that dismissal of an appeal so flawed is
required.
We are compelled to conclude that the Murphys’ appeal is fatally
defective because they failed both to join Lisa Nall to the proceedings below and to
include the remaining beneficiaries as appellees in their notice of appeal.
Based upon the foregoing, the appeal is hereby dismissed, and a
separate order dismissing will be entered on this date.
LAMBERT, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
1
Kentucky Rules of Civil Procedure.
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BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE:
Cole T. Tomlinson J. Key Schoen
Shelbyville, Kentucky Louisville, Kentucky
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