IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MAY 5, 2016 NOT TO BE PUBLISHED
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ROGER STAMPER, AS TRUSTEE OF THE STAMPER REVOCABLE TRUST APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2015-CA-000885-OA GRANT CIRCUIT COURT NO. 07-CI-00050
HONORABLE LINDA RAE BRAMLAGE, SPECIAL JUDGE, GRANT CIRCUIT COURT APPELLEE
AND
MIA STAMPER; AND MICHAEL A. STAMPER REAL PARTIES IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Appellant, Roger Stamper, owns various items of real property in
trust that he is alleged to have acquired with funds transferred to him by his
son as part of the son's fraud on the marital estate in his divorce action. The
Montgomery Circuit Court has ordered the properties held in constructive trust
for the benefit of the son's wife, and has ordered the judicial sale of the
properties to satisfy a judgment against the son. The court allowed a
supersedeas bond, but one has not been posted. Is the remedy of an appeal,
with a supersedeas bond, an adequate one for Roger so as to bar the
availability of a writ of prohibition barring the judicial sale? We conclude that it
is. I. Background
Roger's son, Michael Stamper, was married to Mia Stamper. Michael and
Mia began divorce proceedings in 2007. Michael had substantial assets in the
form of a trucking company and bank deposits. The trial court ordered the
parties not to dispose of or sell any assets while the divorce was pending. Mia
alleged that Michael nevertheless fraudulently transferred these assets to his
father during the divorce action to avoid their being used in calculating the
marital estate.
The details of the alleged transactions are irrelevant here, and are the
subject of ongoing appeals at the Court of Appeals. It suffices to note that the
assets of the trucking company made their way into Roger's hands, and were
then transferred to a pair of companies that he owned. There may also have
been a transfer of cash reserves, as Michael's previously seven-figure bank
account dropped to zero, and Roger's increased by that amount (and more over
time). Additionally, Roger bought nine pieces of real estate in Montgomery
County, which were placed into a pair of trusts. The trial court concluded that
these transactions and the operation of Roger's trucking companies were
actually on behalf of Michael.
Given these allegations, the trial court allowed Roger and his trucking
company to be joined in the divorce action. The trusts were never drawn into
the action. Roger was never served, however, and he refused to appear or to be
deposed.
Based on what happened, the trial court concluded that Michael
transferred his business property and income to his father, and that the 2 transfers were fraudulent and calculated to make Michael judgment proof. The
trial court evidently believed parcels of property were bought with funds
derived from the transfers, either from income generated by the trucking
companies or the bank deposits. As a result of the fraud finding, the court
ordered that the property held by Roger, his company, and the trusts be held in
constructive trust for Mia's benefit. The court noted that although Roger had
never been served, he had constructive notice of the proceedings, and that the
court had in rem jurisdiction over the property in Kentucky, and quasi in rem
jurisdiction over Roger and his companies as it relates to the Kentucky
property.
Eventually, the trial court entered a divorce decree and divided the
marital estate. This included a substantial judgment in Mia's favor for over
$700,000 against Michael. The trial court later ordered that the real estate held
by Roger in trust, and which was part of Michael's overall allegedly fraudulent
scheme, be sold by the master commissioner to satisfy the judgment against
Michael. The court set a supersedeas bond of $1,000,000 if Roger wished to
postpone the sale while any appeal went forward. He did not post the bond,
although he appealed.
This case, however, arises not from that appeal, but from a petition for
writ of prohibition to bar the judicial sale. The Court of Appeals denied the
petition, concluding that there was an adequate remedy by appeal.
Roger has now appealed to this Court as a matter of right.
3 II. Analysis
As we have noted on many occasions, cases in which a writ of prohibition
or mandamus is sought proceed in two steps. Collins v. Braden, 384 S.W.3d
154, 158 (Ky. 2012). First, the court must look at whether such an
extraordinary remedy is even available, before deciding the merits of the
claimed legal error. Id. Second, if the court finds that the remedy is available, it
may then look at the merits of the claimed error. Id. In this second step, if the
trial court has erred or is about to err, the court may issue the writ. Id.
Under the first step, we have acknowledged two classes or categories of
writ cases: "one addressing claims that the lower court is proceeding without
subject matter jurisdiction and one addressing claims of mere legal error." Id.
at 158. For both classes of case, "this Court has articulated a strict standard to
determine whether the remedy of a writ is available." Cox v. Braden, 266
S.W.3d 792, 796 (Ky. 2008). That standard states:
A writ of prohibition may be granted upon a showing (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.
Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
Roger does not claim entitlement to a writ under the first class, although
he claims the trial court never had personal jurisdiction over him, as he was
never served, and that this was error. Presumably, he declined to make a claim
under this class of writs because this Court has held that the lack of personal
4 jurisdiction is not an adequate basis for a writ. See Goldstein v. Feeley, 299
S.W.3d 549 (Ky. 2009).
Instead, Roger claims entitlement under the second class of writs. Under
that class, a petitioner must show two prerequisites for availability of the writ,
that is, that "there exists no adequate remedy by appeal or otherwise and great
injustice and irreparable injury will result if the petition is not granted."
Hoskins, 150 S.W.3d at 10. Of the two prerequisites, the first is mandatory,
and thus Roger is required to prove that he has no adequate remedy by' appeal.
Marcum v. Scorsone, 457 S.W.3d 710, 716 (Ky. 2015).
Roger claims that he has no adequate remedy by appeal because the
properties may be sold before his pending appeals are decided. Roger is correct
that even if he wins on appeal, he likely will not be able to unwind any sales
that happen in the meantime. Although Roger would likely be able to access
any funds realized from such sales if he succeeds on appeal, real property,
unlike personal property, is generally considered "unique," and its loss is not
considered remediable at law (i.e., by money damages), at least where the law
of contracts is concerned.
The fly in this ointment, however, is that the trial court allowed Roger to
post a supersedeas bond, which would have stayed any judicial sale while his
appeals were decided. He claims this does not make his remedy by appeal
adequate because he has so far been unable to post the bond. He also notes
that even if he posts the bond, he will suffer irreparable harm absent the writ
because of the cost of obtaining the bond.
5 Roger's argument is built on a misunderstanding of the requirement of
no adequate remedy by appeal. He essentially complains that because he
cannot take advantage of the available remedy—a supersedeas bond—it and
any appeal are inadequate. "But our writ law does not require the lack of a
guaranteed remedy by appeal." Bailey v. Bertram, 471 S.W.3d 687, 693 (Ky.
2015) (emphasis added). Instead, "it requires the lack of an adequate remedy."
Id. In fact, we have expressly held that the right to appeal and to seek a stay of
a trial court's order is an adequate remedy by appeal. Id. And "[t]hat a stay is
not guaranteed does not change this any more than the fact that an appeal is
not guaranteed to be successful would mean that an appeal is an inadequate
remedy." Id.
The same reasoning applies to a case in which a losing party is allowed
to supersede a judgment. Here, if Roger posts the supersedeas bond, the order
to sell the properties would be stayed. And unlike the possible stay in Bertram,
the stay here would be guaranteed on the posting of the bond. This makes the
remedy adequate, in the sense that it would protect his rights and stave off any
claimed irreparable harm. Cf. Kindt v. Murphy, 227 S.W.2d 895, 897 (1950)
(holding that remedy by appeal is inadequate in cases where supersedeas is not
available, such as contempt).
That Roger may not be able to afford to post the bond does not change
that he has an adequate remedy. Almost all private litigation has a cost. That a
party may not be able to afford a procedure to vindicate his rights does not
show that the procedure is inadequate. See Estate of Cline v. Weddle, 250
S.W.3d 330, 335 (Ky. 2008) ("The fact that the Estate might be required to 6 prosecute an appeal to protect its rights does not establish that it has no
adequate remedy by appeal, just as we have similarly rejected another party's
argument that an appeal could not remedy its having to go to the expense of
litigating its case at trial in the first place.").
Moreover, it is not clear that Roger actually cannot afford the bond. As
noted above, the trial court found that at least at one time he had access to
significant cash deposits. Choosing not to take advantage of a remedy certainly
does not make the remedy inadequate. And that the remedy may be expensive
again does not change this.
The simple fact is that Roger may pursue (and, indeed, is pursuing)
appeals of the underlying orders and judgments, which he may supersede
them by posting the appropriate bond. There is never a guarantee that any
appellate or other remedy will succeed. All that is required is the availability of
the remedy, and the adequacy of the remedy if successful. As we noted in
Bertram, "if the fact that the appeal might fail were sufficient to meet this
requirement for a writ, then all cases would meet it, since no appeal is
guaranteed to be successful. Just as the lack of a guaranteed win on appeal is
not sufficient for a writ, so too is the lack of a guaranteed stay." Bailey, 471
S.W.3d at 693-94. And so too, that the supersedeas process might fail in a
given case, whether because the party cannot afford it or does not wish to pay
the cost, cannot make the remedy inadequate.
A petition for a writ of prohibition or mandamus is not a substitute for a
supersedeas bond, just as it is no substitute for an appeal or other available
remedy. But that is exactly what Roger seeks. He wishes to avoid the cost of 7 the supersedeas bond by litigating his complaints in a writ action. That is
precisely why we have the requirement that "there exist[] no adequate remedy
by appeal or otherwise," Hoskins, 150 S.W.3d at 10 (emphasis added), before
the merits of a writ petition will even be considered.
III. Conclusion
Because Roger has an adequate remedy by appeal or otherwise, the
remedy of a writ is not available to him. His remedy lies in the appeals of the
underlying matters, along with any attendant relief, such as by supersedeas.
That alone decides this case. The other issues Roger raises go to the merits of
the trial court's ordered judicial sale, and we cannot reach them if a writ is
unavailable. Those matters must instead be litigated by way of appeal. For the
foregoing reasons, the Court of Appeals is affirmed.
All sitting. Minton, C.J.; Cunningham, Hughes, Keller and Noble, JJ.,
concur. Venters, J., dissents by separate opinion in which Wright, J., joins.
VENTERS, J., DISSENTING: I respectfully dissent. Appellants, The
Stamper Revocable Trust and The Roger Stamper Three Daughters Revocable
Trust (collectively, "The Trusts") seek writ relief to stop the Grant Circuit Court
from selling their lands to pay the personal debt of another individual, Michael
Stamper, despite the fact that the Trusts were never named or joined as parties
in any action pending before the court and they were never served with
process. The majority posits that the Trusts face no irreparable harm because
the trial court set a supersedeas bond of $1,000,000.00. The problem with
that theory is that the Trusts, whose property is about to be sold, were not
parties to the case, have no standing to post a supersedeas bond, and have no 8 standing to file a notice of appeal from the judgment ordering their land to be
sold.
The errors of the trial court are obvious and we have clear precedent
authorizing extraordinary injunctive relief in this situation. There is no sound
legal principle supporting an order for the judicial sale of real estate owned by
non-parties, like the Trusts, especially when they were never even served with
process, personally or constructively. The failure of the Court of Appeals to
provide equitable relief is a clear abuse of discretion.
I. Factual Background.
In the final decree arising out of the Michael Stamper/ Mia Stamper
divorce case, the Grant Circuit Court adjudged Michael Stamper to be indebted
to his former wife, Mia Stamper, in the sum of $716,491.00. The decree
remains under direct appellate review in the Court of Appeals. I do not
question the correctness of the judgment regarding Michael's debt to Mia. The
correctness of the judgment is simply immaterial to the issue we consider.
Most of the indebtedness was based upon the findings that Michael defrauded
Mia by transferring assets from business entities within the marital estate to
businesses operated by his father, Roger Stamper, specifically Stamper
Trucking, LLC, and R. Stamper Trucking, Inc. Mia joined Roger and the two
companies as necessary parties in the divorce case, but none of the three newly
added parties were ever served with process. Roger entered only a special
appearance protesting the lack of service of process and did not otherwise enter
an appearance. To be clear, these additional parties do not include the Trusts.
No attempt was ever made to join the Trusts or the beneficiaries of the Trusts, 9 and no effort to effect legal service of process upon the Trusts was ever made.
Yet, it is the legal interest of the Trusts and the Trusts' beneficiaries that is
being extinguished by the judicial sale.
On February 27, 2014, to encourage the payment of Michael's
$716,491.00 debt to Mia, the trial court imposed a constructive trust for Mia's
benefit upon "all property in the name of . . . Roger Stamper, Stamper
Trucking, LLC, and R. Stamper Trucking, Inc. whether individually, with
another or by any other name." Thus, everything ("all property") owned wholly
or in part by Roger Stamper, Stamper Trucking, LLC, and R. Stamper
Trucking, Inc. was impressed into a constructive trust, to be held to pay
Michael's debt to Mia. After further hearings, the trial court found on
September 12, 2014 that "Roger Stamper has transferred assets held in
constructive trust from the deed holder to 'Roger Stamper Revocable Trust."' 1
Withnoermalfdgs,thcourneda"[t]hcorpveil
has been pierced in regards to these parties and all entities that have been
formed by Roger Stamper post 2007."
In an order of October 6, 2014, the trial court held that it was "not
holding Roger Stamper and his companies' responsible for [Michael's] debts. It
is holding Michael's business which he fraudulently transferred to Roger, and
its progeny responsible for those debts." Despite that affirmation, on May 28,
2015, in an order devoid of factual findings and conclusions of law, the trial
1 Whether the trial court was referring to either of the writ petitioners, "The Stamper Revocable Trust" or "The Roger Stamper Three Daughters Revocable Trust," is not clear. 10 court decided that the Trusts would pay Michaels' debt to Mia and so it
directed the master commissioner to sell nine parcels of land owned by the
Trusts in Montgomery County. 2 Neither the Trusts nor the Trusts' beneficiaries
were ever named as parties or served with process. Although Roger Stamper is
the Trustee for both Trusts, he was never named as a party in that capacity,
and significantly, was never served with process in any capacity, personally or
constructively. The Trusts initiated this case as an original action in the Court
of Appeals for immediate relief in the form of a writ of prohibition to enjoin the
sale of its property.
Under the well-established writ standards recited in the majority opinion,
the writ petitioner must show that the trial court is acting erroneously; that
there is no adequate remedy by way of appeal or otherwise; and that great
injustice and irreparable injury will ensue if the writ is not issued. The Trusts
easily satisfied those requirements.
IL The Trial Court Acted Erroneously.
The errors in the trial court's orders are fundamental and easy to
identify. First, ownership of land is being extinguished by judicial sale even
though the legal title holders (The Trusts and their beneficiaries) have never
been named as parties or served with process. Second, the trial court
2 Until his retirement at the end of 2014, Judge Stephen Bates presided over the Stamper divorce. Thereafter, Special Judge Linda Bramlage was appointed to preside. The May 28, 2015, order was entered by Judge Bramlage and it recites: "The Court finds that the order from the December 17, 2014 hearing date was not prepared. That order is set out herein as directed by Judge Bates[.]" What follows, with absolutely no factual findings or conclusions of law is an order directing the sale of nine parcels owned by the Trusts.
11 misconstrued "constructive notice" to be the same as "constructive service."
Third, the imposition of a constructive trust requires in personam, not in rem,
jurisdiction.
A. The trial court has no authority to transfer title to land by a judicial sale when neither the legal title holder of the land nor its beneficial owners were parties to the action and were never served with process.
Despite the undisputed fact that the Stamper Revocable Trust and the
Roger Stamper Three Daughters Revocable Trust, and their respective
beneficiaries, were never made parties to the action and were never brought
before the court through constructive or personal service of process, the trial
court declared that it had "pierced the veil" of these entities, adjudicated
property rights affecting the Trust beneficiaries, and ordered the judicial sale of
nine tracts of land held by the Trusts.
In Gripshover v. Gripshover, another case in which the use of a family
trust was challenged as a fraud on a marital estate, we noted that "Darlene did
not join in her action . . . the trustee of the George Gripshover Family Trust, or
the beneficiaries of the trust, all of whom would be necessary parties to an
action seeking to avoid . . . the trust." 246 S.W.3d 460, 466 (Ky. 2008)
(emphasis added.) "Thus, a trustee is a necessary party to any suit or
proceeding involving a disposition of trust property or funds[.]" 76 Am. Jur. 2d
Trusts § 611 (2016). "[I]n actions and proceedings pertaining to trusts and
trustees, interested parties who will be materially affected by the order or
decree should be made parties." 76 Am. Jur. 2d Trusts § 609 (2016). See also
In re Ashton, 266 S.W.3d 602, 604 (Tex. App. 2008) ("For relief to be ordered
12 against a trust, its trustee must be properly before the trial court as a result of
service, acceptance, or waiver of process, or an appearance.").
Ordering the sale of land owned by the Trusts without naming the
Trustee and the Beneficiaries as parties and without proper service upon either
was clear error.
B. The trial court erroneously confused "constructive notice" with "constructive service."
The trial court explicitly acknowledged that neither Roger Stamper nor
the trucking companies named as respondents in the divorce case were ever
served with process personally or constructively, in any capacity at all. Rather
than service consistent with due process, the trial court based its authority
over the property of Roger and the Trusts entirely upon what it called
"constructive notice" to Roger — his subjective awareness of the pending claim
that he had aided his son by fraudulently hiding assets of his son's marital
estate. After expressly noting the Black's Law Dictionary definition of
"constructive notice" (not "constructive service"), the trial court in its "Order
Addressing Constructive Trust" of June 16, 2014, justified its authority over
the property of Roger Stamper and his affiliated interests as follows:
As constructive notice is adequate to proceed against property in rem, the Court finds that it has in rem jurisdiction over the property of Roger Stamper and his companies within the Commonwealth and the Court has quasi in rem jurisdiction over Roger Stamper and his companies as it relates to that property." (Emphasis added.) To support that startling conclusion, the trial court cited Minary v.
Minary, 395 S.W.2d 588, 589 (Ky. 1965). Minary, however, says nothing at all
13 about "constructive notice." Minary stands for the rather non-controversial
principle that "constructive service of the non-resident beneficiary gave the
court sufficient jurisdiction of the person to subject the trust res to a claim
made against the interest of the non-resident." Id. (emphasis added). By
misconstruing "constructive notice" as the equivalent of "constructive service,"
the trial court erroneously claimed the authority to assert in rem jurisdiction
over the property of Roger Stamper, Stamper Trucking, and R. Stamper
Trucking; and by some further indiscernible mechanism, over the property of
the Trusts.
Our precedent is clear that even actual notice, much less constructive
notice, is a wholly inadequate substitute for proper service of process. "Mere
knowledge of the pendency of an action is not sufficient to give the court
jurisdiction, and, in the absence of an appearance, there must be service of
process."' Potter v. Breaks Interstate Park Commission, 701 S.W.2d 403, 406
(Ky. 1985) (quoting Rosenberg v. Bricken, 194 S.W.2d 60, 62 (1946)). Notably,
Roger's only appearance was a special appearance on his own behalf objecting
to service; the Trusts never made an appearance.
Constructive service required for in rem jurisdiction is obtained only
upon strict compliance with our warning order attorney rules, CR 4.05, 4.06,
and 4.07. "While strict compliance with [the warning order] rules is required . .
. actual notice to the defendant is not necessary." Nolph v. Scott, 725 S.W.2d
860, 861 (Ky. 1987) (citing Potter v. Breaks Interstate Park Commission, 701
S.W.2d 403 (Ky. 1985)).
14 No attempt was made to obtain constructive service over any adverse
party by warning order attorney. No attempt was made at all to serve the
Trusts and beneficiaries whose property is to be sold. And despite the ease of
obtaining personal service over Roger Stamper, a Louisiana resident, under
Kentucky's long arm statute, KRS 454.210, there was no attempt to do so.
Acting with the complete lack of in personam and in rem jurisdiction over the
persons and property involved in the action is clear error.
C. The trial court erroneously imposed a constructive trust without in personam jurisdiction over the putative trustee. Even if the trial court had properly concluded that "constructive notice"
vested it with in rem jurisdiction over all of Roger Stamper's property, the
imposition of a constructive trust was plainly erroneous because lain action to
create a constructive trust proceeds in personam. 76 Am. Jur. 2d Trusts § 569
(1975). If a court has jurisdiction over the parties, then it is competent to
entertain a suit to establish a trust, although the trust pertains to land in
another state." Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985) (citation
omitted.) 3
The trial court erred when it imposed a constructive trust without in
personam jurisdiction over the trustee. Personal service was necessary;
constructive service-had it been obtained-would nonetheless have been
insufficient, but here the trial court proceeded upon nothing more than
"constructive notice."
3 Although Kaplon appears to be the last word on the issue by a Kentucky court, its holding is universally supported by numerous decisions of the appellate courts of our sister states. 15 HI. Our clear precedent provides writ relief under these circumstances.
The basic facts material to the writ issue are as follows: Mia Stamper
has a judgment against Michael Stamper for $716,491.00 as her share of their
marital estate, subject to the outcome of the direct appeal. From all
appearances, Roger Stamper was complicit with Michael Stamper in
fraudulently concealing or diverting marital assets to defeat Mia's interest in
them. Consequently, the trial court allowed Mia to bring third party claims
against Roger Stamper and two trucking companies, although none of the third
parties were ever served with process, personally or constructively.
To rectify the injustice it perceived, the trial court impressed a
constructive trust for the benefit of Mia upon "all" of the property of these
three, unserved parties. To liquidate the debt, the trial court ordered the sale
of real property; but not the property owned by Michael Stamper, Roger
Stamper, and Roger's trucking companies, or any party to the action. The trial
court ordered the sale of property owned by Trusts that had not been made
parties to the action or served with process. Fortunately, cases like this rarely
arise and seldom require our intervention. That being so means there is little
precedent to guide our review. However, we have clear precedent that provides
clear authority for enjoining a judicial sale of real estate in this situation.
Robinson v. Carlton, 96 S.W. 549, 551 (1906), provides that injunctive
relief restraining the judicial sale of land is proper:
where the real estate of the plaintiff is about to be sold in satisfaction of a judgment which as to him is void, or under execution for debt owing by a third party, to prevent irreparable injury to his title, or oppressive litigation growing out of a
16 multiplicity of suits in which he might be involved with purchasers, in the event such sale were permitted. The Robinson court affirmed that injunctive relief was available without a
showing of the inadequacy of other remedies, such as money damages. Id.
To the same effect is Bean v. Everett, 56 S.W. 403, 405 (Ky. 1900), which
holds:
[T]his is . . . an action by a third party to prevent property claimed by her from being sold to pay the debts of [the judgment debtor] . . . a court of equity, may interfere by injunction, in a case of this character, where the real estate of the plaintiff is about to be sold under executions, as the property of a third person (upon proof that such property is not subject to the judgment upon which the executions issued), to prevent irreparable injury to her title, and a multiplicity of suits, and oppressive litigation in which she might be involved with purchasers if such sales were permitted to be made. Like the "third part[ies]" referred to in Robinson and Bean, the
Trusts are the legal owners of land that has been attached by the court
and subjected to sale to satisfy the debts of a judgment debtor, Michael
Stamper. Injunctive relief is available without the need to prove the
inadequacies of any other avenue of relief.
IV. The Supersedeas Bond Affords No Remedy.
Notwithstanding the foregoing authorities and the clear errors of
the trial court, all of which compel that writ relief be granted here, I also
address the major premise of the majority's analysis. The majority cites
the $1,000,000.00 supersedeas bond set by the trial court as "the fly in
this ointment" that destroys Roger's claim that he has no adequate
remedy by way of appeal. The fly in that ointment, however, that neither
the Trusts nor the beneficiaries of the Trusts were ever made parties to
17 the underlying action. As non-parties to the action, they have no right to
supersede the judgment and no right to file a notice of appeal. Far from
providing an adequate remedy, this supersedeas bond affords no remedy
at all.
V. Conclusion
All of the essential elements for writ relief were established by the
Trusts. The trial court has clearly acted erroneously by ordering the sale
of property owned by the Trusts when neither the Trusts nor their
beneficiaries were named as parties; and the Trusts have no appellate
remedy, because they were never brought before the court in any way.
The Trusts will suffer irreparable harm because a master commissioner's
sale will extinguish their ownership of property, destroying in whole or in
part the interests of beneficiaries of the Trust who were never accorded
even the modicum of fundamental due process. The Court of Appeals
abused its discretion by failing to issue the Writ. The Majority
compounds the errors by failing to grant relief.
Wright, J., joins.
18 COUNSEL FOR APPELLANT:
Grover Carrington Rebecca Dawn Graham White Peck Carrington, LLP PO Box 950 Mount Sterling, Kentucky 40353-0950
APPELLEE, HONORABLE LINDA RAE BRAMLAGE:
Family Court Judge Boone County Judicial Center 6025 Rogers Lane Burlington, Kentucky 41005-0480
COUNSEL FOR REAL PARTIES IN INTEREST:
Beverly Ruth Storm Arnzen, Molloy 86 Storm, •SC 600 Greenup Street Covington, Kentucky 41011
Joanne Frances Grogan 9824 Orechtel Road Cincinnati, Ohio 45252