WILLIAM ROBERT HAGAN; JAMES S. HAGAN; DELBERTA A. HAGAN; RAYMOND E. DOBSON; BETTY JANE DOBSON; JOHN W. HAGAN; LORETTA H. HAGAN; LARRY L. HAGAN; CATHERINE K. HAGAN; LILIA HAGAN; AND ROSE MARY GRAVELL, REAL PARTIES IN INTEREST APPELLANTS /REAL PARTIES IN INTEREST
COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET APPELLEE
REVIEW FROM COURT OF APPEALS CASE NO. 2014-CA-001882-MR
HARDIN CIRCUIT COURT NO. 12-CI-02110
COUNSEL FOR APPELLANTS: John W. Wooldridge Waller 8b
COUNSEL FOR APPELLEE: Geraldine Guerin Transportation
Cabinet, Dept. of Transportation
in this eminent domain action all own a fee simple
undivided fractional interest in a tract of land taken by the
Commonwealth of Kentucky for a highway construction project.
They appealed the jury verdict establishing the "just
compensation" paid for property to be taken.
However, upon motion of the Commonwealth, the Court of
Appeals dismissed their appeal because Appellants' notice
of appeal failed to include the name of Edward Gravell
is the husband of Appellant Rose Mary Gravell, one of the
tenants-in-common owning the property. As such, Edward
indisputably owned, at the time of the taking, a vested
curtesy interest in Rose's interest in the property.
Edward's interest is an inchoate right, an expectancy of
an interest or a future interest contingent upon his
surviving Rose. See First Union Home Equity Bank, N.A. v.
Bedford Loan and Deposit Bank, 111 S.W.3d 892, 894 (Ky.
App. 2003). The Court of Appeals reasoned that Edward's
interest in the property would be affected by the decision of
the appellate court, and thus, according to Browning v.
Preece, 392 S.W.3d 388 (Ky. 2013), he was an
indispensable party. The failure to name an indispensable
party in the notice of appeal is regarded as a judicial
defect requiring dismissal of the appeal. City of
Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990); CR
granted discretionary review because the Court of
Appeals' opinion is contrary to applicable precedent:
Riley v Dept. of Highways, 375 S.W.2d 245 (Ky.
1963), authored by Judge (and later Justice) John Palmore,
and Dept. of Highways v Kelley, 376 S.W.2d 539 (Ky.
1964). Upon review, we conclude that Judge Palmore's
opinion in Riley remains sound and applicable to the
circumstances before us in this case. Accordingly, we reverse
the order dismissing the appeal, and we remand the matter to
the Court of Appeals for resolution of the appeal on the
FACTUAL AND PROCEDURAL BACKGROUND
November 2012, the Commonwealth of Kentucky, Transportation
Cabinet, Department of Highways (Commonwealth) commenced a
condemnation action seeking to acquire for roadway purposes
4.157 acres out of a 20.978-acre tract owned collectively in
fee simple by Appellants. In addition to the Appellants
listed herein, the Commonwealth's suit also named Edward
Gravell as a defendant because he is the husband of Appellant
Rose Mary Gravell and thus possessed an inchoate curtesy
interest in the real property of his wife.
Appellants contested the Commonwealth's right to take the
property under its powers of eminent domain, and so, pursuant
to KRS 416.610, the trial court entered an interlocutory
judgment allowing the taking. The Commissioners issued a
report setting forth their appraisal of the just compensation
to be paid. Neither Appellants nor the Commonwealth was
satisfied with the Commissioner's report, and so, both
filed exceptions challenging the Commissioners'
course, the case was tried before a jury which returned its
verdict. In October 2014, the trial court entered a final
order and judgment confirming the verdict of the jury. The
judgment affirmed the Commonwealth's right to fee simple
title to the property, and it fixed the compensation to be
paid to Appellants for the taking.
with the jury's verdict, Appellants filed a notice of
appeal, challenging the compensation awarded by the jury. The
Commonwealth, apparently content with the jury's verdict,
did not appeal. Appellants' notice of appeal named as
parties to the appeal the Commonwealth, the fee simple
co-owners, and all their respective spouses, except Edward
Gravell. Based upon the omission of Edward Gravell as a party
to the appeal, the Commonwealth moved to dismiss for failure
to name an indispensable party.
review, the Court of Appeals agreed that Edward Gravell was
an indispensable party to the appeal. The Court of Appeals
reasoned that "any decision of this court impacting the
subject property-or its calculated value- would necessarily
have a bearing on Edward Gravell's interest. However, he
would not be bound by such decision as he would still be
bound by the trial court's existing judgment."
agree that Edward, having been excluded from the notice of
appeal and not otherwise opting for himself to appeal the
case, would be bound by the trial court's judgment. But,
neither his interest in the award of just compensation
rendered by the jury, nor the interest of any other ...