Stephen L. Stricklin v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: February 9, 2023
• Docket: 2021 CA 001508
• Status: Unknown

Opinion

RENDERED: FEBRUARY 10, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-1508-MR

STEPHEN L. STRICKLIN APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE AUDRA J. ECKERLE, JUDGE NO. 19-CI-401242

COMMONWEALTH OF KENTUCKY; THE COUNTY OF JEFFERSON AND LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT BY AND ON RELATION OF WILLIAM L. LANDRUM III, SECRETARY OF FINANCE AND ADMINISTRATION CABINET; KY LIEN HOLDINGS, LLC; THE PANTHER TRUST; UNKNOWN HEIRS AND DEVISEES OF WEBB TAYLOR; UNKNOWN SPOUSES OF HEIRS AND DEVISEES OF WEBB TAYLOR; BLUEGRASS LIEN BUREAU; SOUTHERN TAX SERVICES, LLC; AND MBS REMODELING LLC APPELLEES

OPINION AND ORDER DISMISSING

** ** ** ** ** BEFORE: COMBS, EASTON, AND MCNEILL, JUDGES.

EASTON, JUDGE: The Appellant Stephen L. Stricklin (“Stricklin”) is an attorney

representing himself in this appeal of an order of distribution regarding a judicial

sale of real property after a foreclosure action. Because Stricklin was not a party to

the circuit court case with standing when the order appealed was entered, we

dismiss the appeal.

FACTUAL AND PROCEDURAL HISTORY

Webb Taylor owned the property at 1556 South Shelby Street in

Louisville (the “Property”). When Webb Taylor died, he left a will, but his heirs

cannot be located. For many years, the Property sat abandoned. It collected liens

for unpaid taxes and for remediation due to property code violations. The structure

on the Property was demolished in 2015, and the Commonwealth obtained another

lien against the Property for the cost of the demolition.

In the meantime, Stricklin lived at 1550 South Shelby Street. He was

interested in obtaining the Property. With the significant amounts of liens involved

and the uncertain state of ownership of record, Stricklin was unsuccessful in his

direct efforts to buy the Property. He decided to watch for the eventual

foreclosure. Stricklin says he has saved about $50,000 to be able to purchase the

property. Stricklin also claims to have paid taxes on the property since about 2015,

-2- but the record contains no documentation of this. Stricklin also claims he took care

of the Property after the demolition and put up a fence around it.

The Appellees (primarily “Jefferson County”) filed a foreclosure

action on August 23, 2019. Jefferson County filed a motion for judgment and

order of sale with the circuit court on January 26, 2021. During the intervening

years, the parties tried to find and serve, many by warning order, all the various

lien holders, and possible heirs. Upon a favorable recommendation from the

Jefferson County Master Commissioner, the circuit court signed the judgment and

order of sale on April 6, 2021.

Appraisers were appointed according to local rule and statute, and the

property was appraised for $30,000.00. The property was sold at a master

commissioner sale on May 20, 2021. MBS Remodeling, LLC (“Purchaser”) was

the highest bidder at the sale and purchased the Property for $44,000.00. A Report

of Sale was filed by the Master Commissioner’s office on May 25, 2021.

On May 20, 2021, a representative of the Purchaser came to the

Property and informed Stricklin that his employer had purchased the Property that

morning at a judicial sale. Stricklin claims this was his first notice of the sale.

There had been no posting of a notice of the sale at or near 1556 South Shelby

Street (although the Master Commissioner documented a notice posted at her

office at 815 W. Market Street some distance from the Property). The Master

-3- Commissioner reported the sale was advertised in the Courier Journal. Information

about the case and the sale also were advertised to be available electronically

according to the May 20, 2021, notice of commissioner’s sale which included a

reference to www.jeffcomm.org and a statement that more details were available at

the website.

On the same day as the sale, Stricklin filed an “Objection to the

Judicial Sale and Motion to Reschedule in Accordance with Local Rules

[(“Objection”)].” Along with his Objection, Stricklin filed several affidavits of his

neighbors, who all attested that they did not see any notice of the upcoming Master

Commissioner sale on or near the property.

Stricklin maintains he filed a motion to intervene, but no such motion

appears in the record. Stricklin’s Objection only mentions CR1 24. In his

Objection, Stricklin makes several assertions that the Master Commissioner failed

to follow various local rules, referred to as JRP.2 Specifically, Stricklin complains

primarily of a failure to post a notice of sale on or near the property (JRP 505), but

he raised other concerns, such as the requirement for a timely Statement of

Amount to be Raised (JRP 502).

1 Kentucky Rules of Civil Procedure. 2 Jefferson County Local Rules of Practice and Procedure.

-4- With consideration of responses to Stricklin’s Objection, the circuit

court entered an order on July 9, 2021, stating: “The Objection to the Judicial Sale

and Motion to Reschedule in Accordance with Local Rules filed by Stephen

Stricklin shall be stricken from the Court record.” Stricklin did not appeal this

order, which may have been interlocutory in any event. He says he did not receive

it.

In due course, the Purchaser’s attorney filed a motion to confirm the

sale, which was granted on August 31, 2021. Stricklin was listed on the

distribution list for the Purchaser’s motion. Stricklin did not file any objection to

the confirmation motion, and Stricklin did not appeal the order confirming the sale.

Jefferson County later filed a motion for order of distribution of the

sale proceeds on October 21, 2021. The Master Commissioner filed a report on

this motion, recommending entry of the order with a few amendments regarding

the proper amount of the sale costs. The circuit court entered the order of

distribution on November 22, 2021. It is from this latest order Stricklin files this

appeal, although he also mentions the prior order striking his Objection in his

notice of appeal.

STANDARD OF REVIEW

Standing is a question of law and is reviewed de novo. Tax Ease Lien

Investments I, LLC v. Commonwealth Bank & Trust, 384 S.W.3d 141, 143 (Ky.

-5- 2012). Generally, the standard of review for confirming or vacating judicial sales

is abuse of discretion. Gross v. Gross, 350 S.W.2d 470, 471 (Ky. 1961). “The test

for abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999).

ANALYSIS

Stricklin argues the Master Commissioner did not comply with local

rules to Stricklin’s detriment and in violation of his rights. We could address each

of the rules arguments, including the question of whether emergency COVID-19

pandemic alterations to them were justified. We need not engage in this academic

exercise because Stricklin did not become a party to this case with standing to

appeal the confirmation of the sale, which would have been the correct order to

appeal but which Stricklin did not appeal.

Stricklin describes himself as interested in the Property by adverse

possession. Stricklin may have been in the process of creating such an interest,

which requires possession for fifteen years. See Tarter v. Tucker, 280 S.W.2d 150

(Ky. 1955). Once Stricklin became aware of the sale of this Property, it was

incumbent upon Stricklin to intervene in this case to become a party and establish

his standing. He did not do so by proper motion noticed for a hearing or otherwise

in compliance with governing rules. JRP 3; CR 5; CR 24. Had he done so, he may

-6- have had a right to appeal from the intervention decision. An appeal would be

immediate for intervention of right or the appeal would have been proper when an

appealable order (here the order confirming the sale) had been entered, if the

intervention was permissive. Ashland Public Library Bd. of Trustees v. Scott, 610

S.W.2d 895 (Ky. 1981).

Pursuant to RAP3 3(A)(1): a notice of appeal shall be filed no later

than 30 days from the date of notation of service of the judgment or order appealed

from. RAP 2(A)(3) states: “The failure of a party to file timely a notice of appeal,

cross-appeal, or motion for discretionary review shall result in a dismissal or

denial.” The order confirming the master commissioner sale was entered on

August 31, 2021. No appeal was filed within thirty days of that entry.

An order confirming a master commissioner’s sale is a final order

which is subject to appeal. U.S. Nat’l Bank Ass’n v. American General Home

Equity, Inc., 387 S.W.3d 345, 349 (Ky. App. 2012). “If a party claimed a defect in

the sale itself such as failure to advertise, failure to obtain the required appraisal or

mistakes in the conduct of the sale, an appeal would be available from the order

confirming the sale.” Id. Stricklin did not file an appeal of the confirmation order.

It was only after the order of distribution, which was entered on November 22,

2021, that Stricklin filed his notice of appeal.

3 Kentucky Rules of Appellate Procedure.

-7- Separate from the status as a party, the question of standing of a party

“must be decided on the facts of each case.” City of Ashland v. Ashland F.O.P. #3,

Inc., 888 S.W.2d, 667, 668 (Ky. 1994). In order to have standing, the interest in

the outcome “must be . . . present or substantial” rather than “a mere expectancy.”

Id. While we discuss standing generally, it should be noted the issue here was

Stricklin’s failure to properly establish any standing in this record.

The United States Supreme Court has outlined three elements that are

necessary to meet the constitutional minimum of standing. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).

First, there must have been suffered an “injury in fact – an invasion of a legally

protected interest which is (a) concrete and particularized, and (b) actual or

imminent, not conjectured or hypothetical. Second, there must be a causal

connection between the injury and the conduct complained of – the injury must be

fairly traceable to the challenged action of the defendant, and not the result of the

independent action of some third party not before the court. Third, it must be

‘likely’ as opposed to merely ‘speculative’ that the injury will be redressed by a

favorable decision.” Id. at 560-61, 112 S. Ct. at 2136 (some quotation marks and

citations omitted).

Stricklin did not have any legal title to the property, nor was he a

lienholder. He was not named as a party to the foreclosure action because he had

-8- no legal interest in the Property, despite his protests that he was an “open and

obvious” possessor of the Property. His interest in the Property was a hopeful

possibility, at best, as he stated he intended to purchase the Property at a judicial

sale. Stricklin claims to have paid taxes on the Property, but he did not record any

type of lien on the property. Had he done so, he may have properly participated in

the foreclosure lawsuit.

Again, Stricklin did not properly intervene in this case to become a

party to it. He did not attempt to appeal the confirmation of the sale. By the time

distribution of proceeds was the issue for the circuit court, Stricklin had established

no recognizable legal interest in that issue. Stricklin had no claims to any of the

proceeds to be distributed from the judicial sale.

RAP 2(A)(2) states: “Upon timely filing of the notice of appeal from

a final and appealable order on all claims in an action, all parties to the

proceedings from which the appeal is taken . . . .” (Emphasis added.) “The term

‘party’ as used in CR 73.02(2) [now RAP 2(A)(2)] clearly means a party to the

proceeding.” City of Louisville v. Christian Business Women’s Club, Inc., 306

S.W.2d 274, 276 (Ky. 1957). If an appellant is not a party to the proceedings in

the circuit court, he has no right to appeal from its decision. Bartholomew v.

Paniello, 287 S.W.2d 616 (Ky. 1956). Stricklin was not a party to this action

because he never actually intervened. This fact prevented him from showing any

-9- standing, which is doubtful, to appeal the confirmation order, which he failed to

appeal.

CONCLUSION

Because Stricklin was not a party to the circuit court case with

established standing to contest the distribution of the sale proceeds and because

Stricklin did not appeal the appealable order confirming the sale of the subject

property, this appeal is ORDERED DISMISSED.

ALL CONCUR.

ENTERED: February 10, 2023__ JUDGE, COURT OF APPEALS

BRIEF FOR APPELLANT: BRIEF FOR APPELLEES COMMONWEALTH OF Stephen L. Stricklin KENTUCKY; THE COUNTY OF Louisville, Kentucky JEFFERSON AND LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT BY AND ON RELATION OF WILLIAM M. LANDRUM III, SECRETARY OF FINANCE AND ADMINISTRATIVE CABINET:

Michael B. Marks Louisville, Kentucky

-10-