Tracy Brown v. Carl R. Austin ( 2022 )


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  •                   RENDERED: DECEMBER 16, 2022; 10:00 A.M.
    TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2020-CA-1579-MR
    GARELL MARK BURGESS AND
    TRACY BROWN                                                                 APPELLANTS
    APPEAL FROM MEADE CIRCUIT COURT
    v.                   HONORABLE BRUCE T. BUTLER, JUDGE
    ACTION NO. 13-CI-00350
    CARL R. AUSTIN; CLAY-RHO1
    ENTERPRISES; LEE ANN MIK; PALS
    ENTERPRISES; PAUL F. MIK;
    PHILLIP WIMPEE, SHERIFF MEADE
    COUNTY; STONE HOLDINGS, LLC;
    AND THE FIRST STATE BANK OF
    IRVINGTON                                                                      APPELLEES
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND DIXON, JUDGES.
    1
    Appellee’s name was misspelled in the notice of appeal; however, we have opted to use the
    correct spelling in this Opinion.
    DIXON, JUDGE: Garell Mark Burgess and Tracy Brown appeal from the order of
    the Meade Circuit Court entered December 7, 2020, denying their motions to
    intervene and to restrain Clay-Rho Enterprises from executing a writ of possession.
    Having reviewed the briefs, record, and law, we affirm.
    BACKGROUND FACTS AND PROCEDURAL HISTORY
    Central to this action is a parcel of residential land. Between
    November 10, 2011, and October 13, 2012, Lee Ann and Paul F. Mik (collectively
    “the Miks”) executed mortgages on the property with First State Bank of Irvington
    (First State); Stone Holdings, LLC; and Carl R. Austin. On October 25, 2013,
    Austin commenced the underlying action seeking to foreclose on the property, and
    a lis pendens2 notice was simultaneously lodged and recorded. First State and
    Stone Holdings subsequently filed crossclaims also seeking foreclosure.
    The Miks failed to timely respond, and a default judgment in favor of
    Austin was entered January 30, 2014, as was an order of sale.3 After various
    delays, including bankruptcy proceedings, a final order of sale was entered
    2
    “Lis pendens is defined as a notice, recorded in the chain of title to real property, . . . to warn
    all persons that certain property is the subject matter of litigation, and that any interests acquired
    during the pendency of the suit are subject to its outcome.” Greene v. McFarland, 
    43 S.W.3d 258
    , 260 (Ky. 2001) (emphasis added) (internal quotation marks, brackets, and citations
    omitted); see also Kentucky Revised Statutes (KRS) 382.440.
    3
    Additional default judgments were entered February 25, 2014, and March 10, 2014, in favor of
    First State and Stone Holdings, respectively.
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    November 27, 2019. First State purchased the property at auction, and an order
    confirming the sale was entered February 10, 2020.
    First State then filed a writ of possession on March 12, 2020, to oust
    Appellants from the property. An order of eviction was entered March 20, 2020,
    and amended October 29, 2020, after Clay-Rho purchased First State’s property
    interest. On November 3, 2020, Appellants filed motions to intervene in order to
    file a third-party complaint to quiet title, or alternatively for restitution on
    improvements made to the property, and to restrain execution of the order to evict.
    In support thereof, Appellants asserted they were the lawful owners of the property
    by virtue of a quitclaim deed executed by the Miks on June 17, 2019,
    approximately five-and-a-half years after entry of the initial order for sale and five
    months prior to auction. Denying relief, the court concluded the motion to
    intervene was untimely and both motions were without merit. This appeal
    followed.
    ANALYSIS
    CR4 24.01(1) provides:
    [u]pon timely application anyone shall be permitted to
    intervene in an action . . . when the applicant claims an
    interest relating to the property . . . which is the subject of
    the action and is so situated that the disposition of the
    action may as a practical matter impair or impede the
    4
    Kentucky Rules of Civil Procedure.
    -3-
    applicant’s ability to protect that interest, unless that
    interest is adequately represented by existing parties.
    Generally, a circuit court has broad discretion in permitting
    intervention. Wood v. Tax Ease Lien Invs. 1, LLC, 
    425 S.W.3d 897
    , 901 (Ky. App.
    2014). “[P]ost-judgment intervention is not strictly forbidden,” but “[a] party
    wishing to intervene after final judgment has a ‘special burden’ to justify the
    untimeliness.” Polis v. Unknown Heirs of Jessie C. Blair, 
    487 S.W.3d 901
    , 906
    (Ky. App. 2016) (quoting Arnold v. Commonwealth, 
    62 S.W.3d 366
    , 369 (Ky.
    2001)) (internal quotation marks omitted). We review a court’s determination as to
    the timeliness of a motion to intervene for an abuse of discretion and the denial of
    the motion on its merits for clear error. Hazel Enters., LLC v. Cmty. Fin. Servs.
    Bank, 
    382 S.W.3d 65
    , 67 (Ky. App. 2012) (citing Carter v. Smith, 
    170 S.W.3d 402
    ,
    408-09 (Ky. App. 2004)).
    Appellants argue the court abused its discretion in concluding that
    their motion for intervention was untimely when their claims relating to mechanic
    and materialman liens were brought within the time limits for enforcement.
    This argument misapprehends the issue at hand as it is not the
    timeliness of the proposed claims that controls but, rather, whether the intervention
    itself was timely sought. Here, the court observed that Appellants admitted to
    being personally informed of Clay-Rho’s ownership of the property on May 30,
    2020, and yet, notwithstanding their attempt to mitigate their losses by filing their
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    first lien against the property in June 2020, did not seek intervention until
    approximately five months later on November 3, 2020. Of course, this is in
    addition to the 16 months that elapsed from the quitclaim deed – which Appellants
    acquired with at least constructive notice of the pending foreclosure proceedings
    via the lis pendens – to their motion to intervene. Given Appellants’ lengthy and
    unexplained delay, despite constructive and actual notice of a challenge to their
    claim of title, the court did not abuse its considerable discretion in concluding the
    motion was untimely. Accordingly, we need not reach the issue of whether the
    court erred when it further determined intervention was not merited.
    Appellants next assert the court erred by dispossessing them of the
    property when they were not served with the motion or orders pertaining to the
    writ of possession; the court did not have personal jurisdiction; Appellants were
    not afforded notice or an opportunity to be heard; and Appellants retained their
    interest in the property despite the commissioner’s sale. We will address each
    contention in turn.
    We understand the argument of Appellants on the issue of service to
    arise from their claim that, by virtue of their deeded interest in the property, they
    were necessary parties pursuant to CR 19.01 and, thus, were entitled to service.
    CR 19.01 prescribes when parties shall be joined, if feasible; however, in Murphy
    v. Lexington-Fayette County Airport Board, 
    472 S.W.2d 688
    , 690 (Ky. 1971),
    -5-
    Kentucky’s highest court held that the rule “can be invoked only by parties, not by
    a person who seeks to become a party.” Therefore, as non-parties, Appellants’
    reliance upon CR 19.01 is misplaced.
    Moreover, contrary to Appellants’ attempts to distinguish the matter,
    we agree with the court that Cumberland Lumber Company v. First and Farmers
    Bank of Somerset, Inc., 
    838 S.W.2d 403
    , 405 (Ky. App. 1992), resolves the issue
    of joinder in the negative. In Cumberland, the Court was specifically faced with
    the question of whether plaintiffs were required to join pendente lite lienholders as
    parties to foreclosure proceedings. 
    Id. at 404
    . While the case did not specifically
    address CR 19.01, the Cumberland Court was clear that when a lis pendens notice
    is filed, the plaintiff in a foreclosure proceeding has no duty to join pendente lite
    successors in interest, whether that interest was acquired by lien or purchase. 
    Id. at 405-06
    . Because the quitclaim deed to Appellants was executed after entry of the
    lis pendens and prior to the judicial sale, they were merely pendente lite successors
    in interest; thus, the petitioners did not have to join them. Consequently, the
    argument that Appellants were entitled to service is without merit.
    We turn next to Appellants’ unsupported contention that the court
    lacked personal jurisdiction over them, which was required to grant the writ of
    possession. We have long recognized that bare assertions of legal error are
    insufficient to warrant review.
    -6-
    Our courts have established that an alleged error
    may be deemed waived where an appellant fails to cite
    any authority in support of the issues and arguments
    advanced on appeal. See Pierson v. Coffey, 
    706 S.W.2d 409
    , 413 (Ky. App. 1986). “[W]ithout any argument or
    citation of authorities, [an appellate] [c]ourt has little or
    no indication of why the assignment represents an error.”
    State v. Bay, 
    529 So.2d 845
    , 851 (La. 1988). It is not our
    function as an appellate court to research and construct a
    party’s legal arguments, and we decline to do so here.
    See, e.g., Doherty v. City of Chicago, 
    75 F.3d 318
    , 324
    (7th Cir. 1996) (citations omitted); CR 76.12(4)(c)(v).
    Hadley v. Citizen Deposit Bank, 
    186 S.W.3d 754
    , 759 (Ky. App. 2005).
    Accordingly, we find no error.
    Appellants also assert the writ of possession was entered without due
    process when they were afforded no notice or opportunity to be heard as required
    by the Kentucky Constitution. Because the record is clear that Appellants fully
    briefed and argued their claims against the writ of possession prior to its execution,
    we find no error.
    Finally, pursuant to KRS 426.574, Appellants maintain that since they
    were not parties to the litigation, the commissioner’s sale did not divest them of
    their property rights; thus, the court erred in granting Clay-Rho’s writ of
    possession. We are unpersuaded.
    As explained in Cumberland:
    The effect of the lis pendens is to keep the subject-matter
    of the litigation within the control of the court, and to
    -7-
    render the parties powerless to place it beyond the reach
    of the final judgment.
    One acquiring an interest pendente lite is sometimes on
    his application permitted to appear in the action and
    defend or prosecute in the place of the person to whose
    interest he has succeeded. The court is not, however,
    bound to permit him to do so, in the absence of a statute
    conferring upon him this right.
    Whether, however, he appears in the cause or not, and
    whether he has any actual notice of its pendency or not,
    the judgment, when rendered, must be given the same
    effect as if he had not acquired his interest, or as if he
    had been a party before the court from the
    commencement of the proceeding. His interests are
    absolutely concluded by the final determination of the
    suit.
    
    838 S.W.2d at 405
     (quoting Roberts v. Cardwell, 
    154 Ky. 483
    , 
    157 S.W. 711
    (1913)).
    As Appellants’ argument wholly undermines the intent of lis pendens,
    as authorized by KRS 382.440, it must fail.
    CONCLUSION
    Therefore, and for the foregoing reasons, we affirm the order of the
    Meade Circuit Court.
    ALL CONCUR.
    -8-
    BRIEF FOR APPELLANTS:     BRIEF FOR APPELLEE FIRST
    STATE BANK OF IRVINGTON:
    Robert Frederick Smith
    Prospect, Kentucky        Kenton R. Smith
    Brandenburg, Kentucky
    BRIEF FOR APPELLEE CLAY-RHO
    ENTERPRISES, LLC:
    Ambrose K. O’Bryan
    Dustin C. Humphrey
    Radcliff, Kentucky
    -9-