Samuel A. Nelson v. Citizens Deposit Bank

• Court: Court of Appeals of Kentucky
• Decided: May 31, 2024
• Docket: 2022 CA 000913
• Status: Unknown

Opinion

RENDERED: MAY 31, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0913-MR

SAMUEL A. NELSON APPELLANT

APPEAL FROM GRAVES CIRCUIT COURT v. HONORABLE KEVIN D. BISHOP, JUDGE ACTION NO. 21-CI-00026

CITIZENS DEPOSIT BANK AND RANDALL BURCHARD APPELLEES

AND

NO. 2022-CA-1076-MR

APPEAL FROM GRAVES CIRCUIT COURT v. HONORABLE KEVIN D. BISHOP, JUDGE ACTION NO. 21-CI-00026

RANDALL BURCHARD APPELLEE OPINION AND ORDER AFFIRMING IN PART AND DISMISSING IN PART

** ** ** ** **

BEFORE: ECKERLE, A. JONES, AND KAREM, JUDGES.

ECKERLE, JUDGE: These consolidated appeals arise from a foreclosure action.

In appeal No. 2022-CA-0913-MR, Appellant, Samuel A. Nelson (“Nelson”), pro

se, appeals from the judgment and order of sale granted in favor of Appellee,

Citizens Deposit Bank (“Citizens”). Following the Master Commissioner’s sale of

the property, Nelson refused to vacate, prompting the purchaser, Appellee, Randall

Burchard (“Burchard”), to file a motion for possession, which the Circuit Court

granted. In appeal No. 2022-CA-1076-MR, Nelson also now appeals what he

contends is an “illegal eviction.” Upon careful review, we affirm the Circuit Court

in regard to appeal No. 2022-CA-0913-MR and dismiss appeal No. 2022-CA-

1076-MR.

FACTUAL AND PROCEDURAL BACKGROUND

Beginning in 2016, Nelson executed a series of promissory notes and

mortgages with Citizens to purchase various plots of land in Graves County. His

payments became delinquent, and on January 29, 2021, Citizens filed the

underlying complaint for foreclosure. That complaint and the accompanying civil

summons both named “Samuel L. Nelson” as the defendant, using the incorrect

middle initial. The Graves County Sherriff’s report contained in the record before

-2- us shows that personal service on Nelson was attempted ten times from February 1,

2021, through March 3, 2021. The report also contains a handwritten notation that

states “gates closed locked.” Another notation recites that Nelson had moved and

provides a new address. Citizens next attempted service through a warning order

attorney, but the letter was returned as undeliverable.

In May 2021, Citizens filed an amended complaint that listed “Samuel

A. Nelson” in the case caption, but still used “Samuel L. Nelson” in the body of the

complaint. The amended complaint also added the Church of Samson Trust,

Samuel A. Nelson, Trustee, as a defendant. Nelson was personally served with the

amended complaint on May 24, 2021, but the summons still listed “Samuel L.

Nelson.” The sheriff’s office noted on the return service that “Samuel A. Nelson”

was served. Nelson also signed the return summons, but with a notation that stated

he accepted service “with prejudice” followed by a citation to the Uniform

Commercial Code (“UCC”).1

Nelson did not file an answer. Rather, on June 14, 2021, he filed the

first of numerous motions to dismiss the foreclosure complaint. Nelson argued that

Citizens had failed to join him as an indispensable party. Citizens filed a second

amended complaint on July 12, 2021. This time, the case caption and the body of

1 The UCC is inapplicable to this appeal or to service of Nelson at the time. Nelson cited UCC § 1-308, which is wholly inapposite to service of a civil summons.

-3- the complaint referenced “Samuel A. Nelson.” Although the civil summons

generated by the circuit clerk still listed “Samuel L. Nelson,” the sheriff’s reports

contained in the record indicate service was perfected on Samuel A. Nelson as

Trustee of the Church of Samson Trust and upon “Samuel Nelson.” Nelson again

filed a motion to dismiss the foreclosure complaint, alleging that he had not been

served and that the sheriff simply left scattered papers on his property that

contained the name “Samuel L. Nelson.”

The record before us indicates that parties appeared before the Circuit

Court on September 14, 2021. Nelson was put under oath and stated his name as

Samuel A. Nelson. He was then personally served with a copy of the second

amended complaint. The Circuit Court granted summary judgment in favor of

Citizens in October of 2021, and it referred the matter to the Master Commissioner

for sale of the property. Shortly thereafter, Citizens moved for an amended

judgment to include certain liens as they appeared in the second amended

complaint. On December 10, 2021, the Circuit Court entered an amended

judgment.

On the morning of the Master Commissioner’s sale, Nelson filed for

bankruptcy. Neither Citizens nor the Master Commissioner received notice of the

filing until after completion of the sale. Citizens filed an emergency motion in the

bankruptcy proceedings claiming Nelson’s petition was filed in bad faith and

-4- requested dismissal. Although the bankruptcy court granted Citizens’ motion and

dismissed Nelson’s petition, the title company refused to certify title to the

purchasers. In order to remove any doubt about any possible effect of Nelson’s

bankruptcy filing, the Circuit Court vacated the sale and ordered it to be

rescheduled.2

The next attempt to sell the property by the Master Commissioner was

vacated due to the failure of the local newspaper to run the requisite advertisement.

The property was finally sold to Burchard on June 20, 2022. After entry of the

Master Commissioner’s Report, Nelson filed a notice of appeal. Approximately

one month after the sale, Burchard filed a motion for possession, alleging that

Nelson refused to leave the property. The Circuit Court granted the motion, and

Nelson filed another notice of appeal. Nelson continued to refuse to vacate. He

posted a rambling letter at the gates to the property stating that he refused to leave

and that “there are laws much higher than any court, office, or man in Graves

County[.]” Nelson was eventually held in contempt and incarcerated. Further

facts will be developed as necessary.

2 The original purchasers were Douglas and Stephanie Ingram. They eventually successfully intervened in the action for reimbursement of fees and other expenditures made in purchase of the property.

-5- STANDARD OF REVIEW

With regard to the judgment and order of sale, Nelson argues only that

the Circuit Court failed to join an indispensable party pursuant to Kentucky Rule of

Civil Procedure (“CR”) 19.01, which provides that:

The decision as to necessary or indispensable parties rests within the sound authority of the trial judge in order to effectuate the objectives of the rule. The exercise of discretion by the trial judge should be on a case-by-case basis rather than on arbitrary considerations and such a decision should not be reversed unless it is clearly erroneous or affects the substantial rights of the parties.

Commonwealth, Dep’t of Fish & Wildlife Res. v. Garner, 896 S.W.2d 10, 14 (Ky.

1995) (quoting West v. Goldstein, 830 S.W.2d 379 (Ky. 1992)).

ANALYSIS

We first note that Citizens did not file an appellee brief. When a party

fails to file a responsive brief, the Court may: (i) accept the appellant’s statement

of the facts and issues as correct; (ii) reverse the judgment if the appellant’s brief

reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a

confession of error and reverse the judgment without considering the merits of the

case. Kentucky Rule of Appellate Procedure (“RAP”) 31(H)(3). “The decision as

to how to proceed in imposing such penalties is a matter committed to our

discretion.” Cabinet for Health and Family Services v. Loving Care, Inc., 590

S.W.3d 824, 826 (Ky. App. 2019) (quoting Roberts v. Bucci, 218 S.W.3d 395, 396

-6- (Ky. App. 2007)). Because the issue raised on appeal is both narrow and meritless,

we exercise our discretion to refrain from imposing any penalties herein; however,

we caution that such courtesy may not be extended in the future.

Turning to Nelson’s argument, he contends that the Circuit Court failed

to join him as the proper defendant. Nelson’s argument is completely without

merit. This mistake was no more than a simple misnomer in that the incorrect

middle initial was used. This Court has held that a defendant in these types of

circumstances should not use a mistaken name as a sword to attempt to wield a

dismissal:

[One] should not be permitted to take advantage of a mere misnomer that injured no one. . . . The test should be whether, on the basis of an objective standard, it is reasonable to conclude that the plaintiff had in mind a particular entity or person, merely made a mistake as to the name, and actually served the entity or person intended; or whether plaintiff actually meant to serve and sue a different person.

Jones v. Baptist Healthcare System, Inc., 964 S.W.2d 805, 808 (Ky. App. 1997)

(citations omitted).

Although here the civil summons contained the incorrect middle

initial, the first and last names were correct. Further, there is no question that

Nelson was the intended recipient. Further, Citizens amended its complaint to

correct the defendant’s initial, even if the subsequent civil summons still listed the

-7- middle initial of “L.” instead of “A.” The final judgment entered on December 10,

2021, correctly named “Samuel A. Nelson.”

“An error in the name of a party will not invalidate the proceeding

against him, unless it appears that he has been prejudiced thereby[.]” Dixon v.

Melton, 126 S.W. 358, 360 (Ky. 1910). Nelson has shown no prejudice. Rather,

he received due process of law in the foreclosure action. Under longstanding

Kentucky law, “[n]otice and an opportunity to be heard and defend are the

essentials of due process.” Morgan Cnty. v. Governor of Kentucky, 156 S.W.2d

498, 500 (Ky. 1941). Further, “the object or purpose of a service of process is to

notify of the proceeding, thereby affording an opportunity to appear before and be

heard by the court.” Rosenberg v. Bricken, 194 S.W.2d 60, 62 (Ky. 1946)

(emphasis added).

Here, Nelson had both notice and opportunity. Nelson appeared

before and was heard by the Circuit Court numerous times over the course of two

years. He referred to himself as “defendant Nelson” in many of his filings

attempting to dismiss the action and/or stop the sale of the property.3 This was not

a case of mistaken identity; rather, it was merely a simple misnomer of only a

middle initial. “If the mistake be merely in omitting the middle or one of the

3 We note that the Circuit Court denied many of Nelson’s motions simply for his failure to follow the Kentucky Rules of Civil Procedure because they were signed by his paramour, Taylor Starks, who was not a party to the underlying action and is not an attorney.

-8- Christian names of the party, or the adjunct of junior, it will in general be a wholly

immaterial variance.” Dixon, 126 S.W. at 359-60 (citation omitted). The same

logic applies here. The incorrect middle initial was an immaterial variance.

Nelson was the intended recipient of process and was served. There was no error

on the part of the Circuit Court.

We now turn to Nelson’s “illegal eviction” argument in appeal No.

2022-CA-1076-MR. Burchard filed a motion for possession on August 23, 2022.

Nelson did not file a response. The Circuit Court entered an order requiring

Nelson to vacate the property on August 29, 2022. Nelson filed his notice of

appeal on September 7, 2022. On September 8, 2022, Burchard filed a motion of

non-compliance, indicating that Nelson had not vacated the property and, when

Burchard arrived, Nelson followed him around with a military-style rifle. On

September 13, 2022, the Circuit Court ordered Nelson to show cause as to any

reason that he should not be held in contempt for failure to vacate the property. On

September 28, 2022, the Circuit Court entered an order holding Nelson in

contempt and sentenced him to 30 days of incarceration.

Most of Nelson’s arguments on appeal do not relate to Burchard’s

possession of the property after purchase. Rather, they are the same issues raised

in the other appeal, and we shall not address them again.

-9- In his brief to this Court, Nelson improperly and incompletely cites

various, alleged caselaw. RAP 31(E)(1) contains strict requirements for citations,

including that

[p]arties shall cite Kentucky cases reported after June 1886 from the Supreme Court and its predecessor court: Doe v. Roe, ___ S.W.2d ___ (Ky. [date]); or from the present Court of Appeals (beginning in 1976), Doe v. Roe, ___ S.W.3d ___ (Ky. App. [date]). Case names should be italicized.

Nelson’s citations contain case names only without any indication as

to the applicable Reporter, Court, or year. Nevertheless, this Court attempted to

find the cases using the captions as provided by Nelson. An exhaustive search on

Westlaw revealed the cases cited are not part of Kentucky caselaw, if they in fact

exist at all.4 For example, a search for the case captioned by Nelson as Northeast

Healthcare Kentucky, L.L.C. v. Commonwealth yielded no results in Kentucky or

related federal cases. A search for “Northeast Healthcare Kentucky” alone was

similarly unsuccessful. We note that, although several results did appear for

“Cobb v. Commonwealth” as cited by Nelson, none of those cases addressed

contempt as described by Nelson.

“Appellants must exercise care, diligence, and trustworthiness to

ensure the accuracy of pinpoint citations provided to the appellate court in support

4 The Court is concerned about the source of this alleged research, and it cautions parties to double-check if using artificial intelligence or any other means.

-10- of any arguments[.]” Prescott v. Commonwealth, 572 S.W.3d 913, 918 (Ky. App.

2019) (emphasis added). This reasoning applies not just to pinpoint citations

within the record, but also to citations of legal authority. It is not this Court’s job

to determine if caselaw cited by Nelson exists. Further, RAP 32(4) requires an

appellant’s argument to contain “ample . . . citations of authority pertinent to each

issue of law[.]” Because his “authority” is seemingly nonexistent, Nelson also

failed to follow the RAP in this regard.

Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, [RAP 31(H)]; or (3) to review the issues raised in the brief for manifest injustice only, Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990).

Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Here, we choose to strike

Nelson’s brief and dismiss the appeal.

CONCLUSION

For the foregoing reasons, the Graves Circuit Court is AFFIRMED

with regard to appeal No. 2022-CA-0913-MR. It is ORDERED that Appeal No.

2022-CA-1076-MR is DISMISSED.

ALL CONCUR.

05/31/2024 ENTERED:_____________ ____________________________________ JUDGE, COURT OF APPEALS

-11- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE RANDALL BURCHARD: Samuel A. Nelson, pro se Benton, Kentucky J. Todd Elmore Mayfield, Kentucky

-12-