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Etscorn v. Etscorn

Court of Appeals of Kentucky

March 24, 2017

SUZANNE ETSCORN APPELLANT
v.
WILLIAM ETSCORN, DAVID ETSCORN, BRYAN ETSCORN, BRENT ETSCORN, MY THREE SUNS, LLC BILL ETSCORN, INC., BILL ETSCORN & SONS, INC., BILL ETSCORN & SONS, LLC, ETSCORN BROTHERS, LLC, AND MIDDLETOWN FAMILY GROUP, LLC APPELLEES

         APPEALS FROM JEFFERSON CIRCUIT COURT HONORABLE DEANA C. MCDONALD, JUDGE ACTION NO. 11-CI-501207

          BRIEF FOR APPELLANT: Christina R. L. Norris Louisville, Kentucky Glen S. Bagby and J. Robert Lyons, Jr. Lexington, Kentucky

          BRIEF FOR APPELLEES: Dustin E. Meek Louisville, Kentucky

          BEFORE: CLAYTON, COMBS, AND TAYLOR, JUDGES.

          OPINION AND ORDER DISMISSING APPEAL

          CLAYTON, JUDGE:

          This appeal concerns complex litigation in a marital dissolution action initiated by Suzanne Etscorn against her husband, William Etscorn. As many of the material facts are disputed, and we ultimately hold that the order being appealed is void because the trial court has no jurisdiction to add parties that have previously been dismissed, we only recite a summary of the relevant background information.

         Ms. Etscorn claims that during the marriage, her husband transferred valuable marital property to his three sons. The three sons are products of Mr. Etscorn's prior marriage. Ms. Etscorn claims these transfers were done without her knowledge and with the intent of depriving Ms. Etscorn of the marital estate in the event of a divorce.

         During the course of the dissolution proceedings, Ms. Etscorn filed an Amended Petition and joined the sons and the business entities as parties to the action. The sons and the business entities then moved to be dismissed from the action pursuant to Kentucky Rules of Civil Procedure ("CR") 9.02 and 12.02(f), claiming that Ms. Etscorn's Amended Petition failed to plead with specificity and consisted solely of bare legal conclusions without sufficient allegation of underlying facts to prove her claims. Following extensive briefing, on December 12, 2013, the trial court granted the motion and dismissed the parties:

The Court has reviewed the Amended Petition and the controlling law of the matter. Even reviewing the Amended Petition in the light most favorable to Petitioner the Court does not find that it can survive a motion to dismiss. For what appears to be obvious reasons, Petitioner cannot meet the requirements of a claim for dissipation of marital assets; the requisite relationship does not exist between Petitioner and his sons. As for the claim of fraudulent conveyance, the Court does not find that Petitioner has pled with sufficient specificity to establish that the sons had the requisite knowledge/notice of fraud or fraudulent intent by Respondent when the transfers which are being attacked were created. Sufficient particularity has not been pled to permit the sons to adequately defend against the claims asserted against them. As such and in light of the same the Court must grant Respondents [sic] motion to dismiss the Third Party Defendants at this time.

         The trial court's order noted it was final and appealable with no just cause for delay.

         Ms. Etscorn then filed a CR 59.05 motion to alter, amend, or vacate the December 12, 2013 order dismissing the parties. Notably, the motion does not allege any error with the CR 9.02 and 12.02 rulings. Instead, it claims that the sons and the business entities are indispensable parties under CR 19 and, alternatively, asks the trial court to make the dismissal "without prejudice" so Ms. Etscorn can rejoin the parties at a later date.

         On May 1, 2014, the trial court entered an order denying the CR 59.05 motion. The trial court found no error with its previous order dismissing the parties. It opined that if Ms. Etscorn were to later file a motion pursuant to CR 21 and 19, "the Court would, at a minimum, be required to conduct a hearing to determine whether Respondent's sons are vital to this action as indispensable parties." The trial court did not change its dismissal to "without prejudice, " however. It also recited that its CR 59.05 order was final and appealable with no just cause for delay.

         Ms. Etscorn did not appeal. Instead, many months later Ms. Etscorn filed a motion pursuant to CR 21 and 19 to add the sons and their business entities as indispensable parties. Though the sons and the business entities objected on multiple grounds, including the fact that they had already been dismissed as parties and Ms. Etscorn had not appealed the final and appealable order dismissing them, the trial court nonetheless re-added them as parties.

         The sons and business entities eventually moved for summary judgment, which was granted. Ms. Etscorn now appeals the order granting summary judgment. The sons and business entities first claim that the trial court's order granting summary judgment is void ab initio as the trial court lacked jurisdiction. They reason that because they were dismissed with prejudice in a final and appealable order that ...


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