DISSENTING:
Respectfully, I dissent. The majority relies on Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001), which is less than clear on the issue of when an attorney must be named as a party on appeal. The attorney in this case is not the first to fall into this procedural trap.
Perhaps the reason why an attorney is often overlooked as a party to an appeal is because there is no logical reason or real purpose in naming the attorney in the notice of appeal. The attorney was a not a party to the proceedings below and, in reality, the attorney’s interest is not who pays his fee, which is the subject of this appeal. Regardless of the resolution of the merits of this appeal, the attorney will be paid because Elizabeth, not the opposing party, remains and always will be primarily obligated to pay her attorney. In other words, the participation of the attorney on appeal is not necessary for this Court to affirm or reverse the court’s order. See Nelson Cnty. Bd. of Educ. v. Forte, 337 S.W.3d 617, 625 (Ky. 2011). If Neidlinger, requires that this Court dismiss this appeal, I urge the Supreme Court to revisit its holding and destroy the legal fiction that the attorney is the real party in interest.
The dismissal of this case for failure to name an indispensable party is particularly troublesome. First, in its order, the court acknowledged that it did not have a complete picture of the financial resources of the parties. Further, the court acknowledged that the appellee incurred fees of $8,964 and, with an admitted lack of knowledge of the parties’ financial resources, awarded $5,000. Because we are dismissing the case without review of the record and its merits, we have precluded appellate review of the issue.
Elizabeth’s counsel has agreed that James should be permitted to amend his notice of appeal and is not prejudiced by the failure to list his name in the notice of appeal. Unfortunately, this Court has taken a different view and, based on a mile with no sound purpose, denies James access to judicial review.
I believe all indispensable parties are before this Court. The party ordered to pay the partial attorney fee and the party primarily obligated to her attorney for the fee. I believe any view to the contrary should be revisited by our Supreme Court.