FROM JEFFERSON CIRCUIT COURT HONORABLE DEANA C. MCDONALD,
JUDGE ACTION NO. 11-CI-501207
FOR APPELLANT: Christina R. L. Norris Louisville, Kentucky
Glen S. Bagby and J. Robert Lyons, Jr. Lexington, Kentucky
FOR APPELLEES: Dustin E. Meek Louisville, Kentucky
BEFORE: CLAYTON, COMBS, AND TAYLOR, JUDGES.
OPINION AND ORDER DISMISSING APPEAL
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.
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.
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.
trial court's order noted it was final and appealable
with no just cause for delay.
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.
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.
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.
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 ...