Kentucky Court Report - SCOKY & COAKY

WILLS & ESTATES - Failure to join indispensable party, claim for funeral expenses: Rice v. Steele (C OA 9/18/2009)

Rice v. Steele
2008-CA-000308 9/18/09 2009 WL 2971596

Opinion by Judge Lambert; Judge Acree and Senior Judge Harris concurred. The Court dismissed appellant’s appeal from an order dismissing her claims against her mother’s estate and vacated in part and remanded a partial summary judgment in favor of appellant on her claim for restitution for her mother’s funeral expenses.

The Court granted appellee’s motion to dismiss the appeal for appellant’s failure to join her siblings. The siblings were named defendants in the court below. Therefore, in their individual capacities, they were indispensable and naming the estate alone was fatal. The Court then held that the trial court erred in granting partial summary judgment to appellant on the claim of restitution for funeral expenses when the motion for summary judgment failed to name and serve the siblings.

WILLS & ESTATES - Illegitimates claim to father's property barred by SOL: Combs v. Mullins (COA 9/18/2009)

Combs v. Mullins
2008-CA-000776 9/18/09 2009 WL 2971636 DR pending

Opinion by Judge Moore; Judge Lambert concurred; Judge VanMeter dissented by separate opinion. The Court affirmed an order of the circuit court dismissing appellant’s claim for an interest in property filed over thirty years after his father’s death.

Appellant argued that Pendleton v. Pendleton, 560 S.W.2d 538 (Ky. 1977) (Pendleton II), holding KRS 391.090 (prohibiting an illegitimate child from inheriting from his father) unconstitutional, did not have a retroactive effect on the devolution of a title and that establishing a firm date for the application of retroactivity resulted in a violation of his federal equal protection rights and unjustifiably stripped him of his right to inherit from his father. The Court held that it was bound by the holding in Turner v. v. Perry County Coal Corp., 242 S.W.3d 658 (Ky. App. 2007), and Pendleton II, as the Court had considered whether to overrule Turner but the majority had refused to do so. Therefore, because the father died intestate in 1975, before the Pendleton II decision was rendered, title to the property properly passed to the legitimate children on that date and appellant did not inherit an interest in the property. Thus, the trial court properly dismissed the complaint.

WRITS - Lack of subject matter jurisdiction in writ filed over property distribution and estate matter: William Goldstein, Executor v. Judge Timothy J. Feeley & Ruby Joann Young-Layer (Real Party in Interest) (SC 8/27/2009)

William Goldstein, Executor v. Judge Timothy J. Feeley & Ruby Joann Young-Layer (Real Party in Interest)
2008-SC-000597-MR August 27, 2009
Opinion by Justice Venters. All sitting; all concur.

Before the circuit court could rule on the property division in dissolution action, the exhusband passed away. The circuit court substituted the estate as party to the dissolution and entered a restraining order prohibiting transfer of marital assets. The executor filed for a writ of prohibition and mandamus, arguing the trial court lacked personal jurisdiction. The Court of Appeals denied the writ. On appeal, the executor argued that a writ was proper since the trial court was proceeding outside its jurisdiction, which he contended was a proper basis for the issuance of a writ. The executor asserted he had not been properly served with process, therefore the circuit court lacked personal jurisdiction over him.

The Court affirmed the Court of Appeal’s denial of the writ, holding the “lack of jurisdiction” in writ cases as referred to in Hoskins means a lack of subject matter jurisdiction —not personal jurisdiction. Furthermore, the Court held that the exhusband’s death “did not divest the circuit court of jurisdiction over the marital property, nor did it eliminate the necessity of equitably dividing the marital property.”

WORKERS COMP & ESTATES - n KRS 342.180 did not apply to money received by an estate when a worker died without dependents: Williams v. Farmers Stockyard, Inc. (COA 8/7/2009)

Williams v. Farmers Stockyard, Inc.
2008-CA-000785 8/7/09 2009 WL 2408399

Opinion by Judge Caperton; Senior Judge Buckingham concurred; Judge Stumbo dissented by separate opinion.

On discretionary review, the Court affirmed a judgment of the circuit court reversing a district court order regarding creditors’ claims to workers’ compensation benefits paid to the estate of a deceased worker. The Court held that the creditor exemption in KRS 342.180 did not apply to money received by an estate when a worker died without dependents.

Wills - Holographic will, conditional will, extrinsic evidence: Fisher v. Gray (COA 7/2/2009)

Fisher v. Gray
2008-CA-000171 07/02/2009 2009 WL 1884425 DR Pending

Opinion by Judge Keller; Judge Wine concurred; Senior Judge Lambert dissented by separate opinion.

The Court affirmed a summary judgment of the circuit court entered in favor of one of three sisters in an original action filed pursuant to KRS 394.240, asserting that their father’s holographic will was a conditional will and that it was without effect because the condition did not occur. The Court held that the trial court did not err in relying upon extrinsic evidence or in concluding that the instrument was conditional and that the condition did not occur. Extrinsic evidence was admissible to prove the circumstances surrounding the execution of the will to construe the language that the will was “written in case of emergency,” where the disposition of the estate was unnatural. The Court then held that the trial court did not err in finding that the father intended the will to be conditional upon his death due to an emergency during an upcoming surgical procedure. Therefore, the trial court did not err in when it found, as a matter of law, that the father died intestate when he died eight years later from lung cancer, allowing all three sisters to share equally in their father’s estate.

Wills & Estates - contingent beneficiaries: Hammons v. Hammons (COA 2/13/2009)

Hammons v. Hammons
2007-CA-002312
02/13/2009
2009 WL 350663
Opinion by Judge Lambert; Judge Taylor and Senior Judge Graves concurred.

The Court affirmed a summary judgment, declaration of rights and order quieting title in favor of the widow of appellants’ deceased father.

The Court held that the trial court did not err in finding that appellants only possessed a contingent, rather than a vested remainder in their father’s property. The explicit provisions in the will required that appellants or one of their heirs survive appellee to inherit the property remaining from her life estate and therefore, their interest by definition was contingent. The Court also held that the trial court did not err in finding that appellants were not entitled to any right of inspection or an accounting of the property.

Probate, will execution and undue influence in will contest: AMOS V. CLUBB (COA 10/3/2008)

AMOS V. CLUBB
PROBATE:  Will Exection, Undue Influence Issue
2007-CA-001181
PUBLISHED: REVERSING AND REMANDING
PANEL: LAMBERT, JAMES PRESIDING; STUMBO, THOMPSON CONCUR
OLDHAM COUNTY
DATE RENDERED: 10/3/2008

This was a will contest between a man’s wife and stepdaughter on one side and his sisters on the other. Terry Clubb owned a one-third interest in the family farm in Oldham County. After going to the doctor for difficulty swallowing, he learned that he had a horribly aggressive form of esophageal cancer, and he died 25 days later. Soon after receiving the diagnosis, he made arrangements to leave his interest in the farm to his sisters to preserve it. Later, and even though the disease was advancing swiftly and there wasn’t much time to act, he made arrangements to leave his estate to his wife and stepdaughter with no mention of his sisters. The Circuit Court granted summary judgment for the wife and stepdaughter and the Court of Appeals reversed in favor of the sisters. The Court found that there was ample evidence tied to the Bye v. Mattingly badges of undue influence to send the case to the jury.

One statement, however, stands out. The Court of Appeals noted “that the extreme pain Terry was in, combined with the levels of medication he was taking, could easily have amounted to mental impairment.” When taken in the context of a disease that progressed so rapidly and brutally, that observation makes sense. The statement, however, should not be construed as a blanket statement that pain medication is a badge of incapacity in all cases. Appropriate testimony should be required to support such an assertion.

Digested by Jim Worthington

Jury's determination of testamentary capacity when voiding will was res judicata on capacity (but not on undue influence) for will executed 16 days earlier: ROTHWELL V. SINGLETON (COA 6/6/2008)

ROTHWELL V. SINGLETON
WILLS AND ESTATES:  Testamentary capacity and res judicata
2007-CA-001348
PUBLISHED:  REVERSING AND REMANDING
PANEL:  THOMPSON PRESIDING; KELLER, GRAVES CONCUR
LINCOLN COUNTY
DATE RENDERED: 6/6/2008

This published Court of Appeals will contest case involves the usual issues of capacity and undue influence. What makes this one of some interest is the fact that it involved a Will dated December 12, 1999 and that, in an earlier action, a jury was asked to consider a will dated December 28, 1999. The jury determined and the court held that the decedent had capacity on December 28th but that will was void because it was the result of undue influence. The question before the court in the case at bar was whether the determination of capacity as of December 28th was res judicata as to the question of capacity on December 12th of the same year. The trial court held that it was, but the Court of Appeals reversed and held that the only issue at hand was capacity as of December 12. The Court of Appeals indicated that “[on remand, the appellant will have an onerous burden.” The Court did not indicate whether the will’s proponent would be able to inform the about the testator’s capacity on December 28th.

Digested by Jim Worthington

Wrongful death settlement without any earnings impairment treated as personal injury settlement going to heir and not statutory beneficiaries: SMITH v. MCCURDY (COA 3/28/2008)

SMITH V. MCCURDY
PROBATE: Wrongful death proceeds versus personal injury action and distribution of the proceeds; Wrongful death settlement without any earnings impairment treated as personal injury settlement going to heir and not statutory beneficiaries
2007-CA-001239
PUBLISHED: AFFIRMING
PANEL:  MOORE PRESIDING; WINE, BUCKINGHAM CONCUR
MARSHALL COUNTY
DATE RENDERED: 3/28/2008

This appeal involved a most unfortunate dispute between two sisters regarding the proceeds of a settlement reached in a federal lawsuit filed based on allegations of maltreatment of their deceased mother in a nursing home.  At the heart of the appeal was the characterization of the settlement with the nursing home as a wrongful death action or a personal injury action since the beneficiaries for the former are statutorily defined and would have included both sisters equally but if a personal injury action then the sole beneficiary under the will would receive all of the proceeds!

Diana Smith and Denica McCurdy are sisters. Their mother, Thelma Nanney, was a resident of Britthaven Nursing Home from July 17 1998 until June 1, 2001. Thelma was described in the pleadings as “morbidly obese and generally unable to care for personal needs. Diana later learned that her mother left a Last Will and Testament naming Denica as sole beneficiary. Accordingly,the probate court named Denica as executrix of Thelma ’s estate.  Denica as personal representative of Thelma ’s estate did file suit in Marshall Circuit Court against Britthaven Nursing Home Incorporated and twenty unknown defendants. Diana was not a party to that action and as a potential beneficiary under a wrongful death action under typical circumstances could not intervene.

Diana first filed in district court which had no jurisdiction, and then filed suit in the circuit court arguing that the settlement in the federal action having released all claims, which Diana asserts necessarily includes the wrongful death claim having joined with the personal injury action that pursuant to KRS 411.130 Diana is entitled to a portion of the settlement.

Diana argues that because Denica filed a wrongful death cause of action in the federal lawsuit in conjunction with a survival action for personal injuries Thelma allegedly sustained while at Britthaven then all proceeds derived from the federal settlement should be distributed to Thelma ’s heirs in accordance with KRS 411.130(2), rather than passing through Thelma ’s estate.

Diana is not a beneficiary under Thelma ’s will. If she cannot establish that KRS 411.130(2) governs the distribution of the settlement proceeds, the proceeds will pass through the estate. She will receive nothing.

Notwithstanding Diana ’s insistence that the only controversy is the legal issue of whether KRS 411.130 controls when pursuant to KRS 411.133 both a wrongful death action and a survival action are brought in a complaint i.e. once pled they are forever joined for purposes of a generic settlement the COA did agree with the circuit court that there was an issue regarding whether the federal action was pursued and settled as a wrongful death matter.

Diana failed to file anything to rebut or contradict the Notice of Disallowance of Claim.

The subject of the lawsuit in Federal District Court was a survival claim mainly concentrating on the gross negligence of Britthaven in their failure to properly care for Ms.Nanney, which resulted in her pain, suffering, emotional distress, humiliation and feelings of abandonment. There were no proceeds allocated for wrongful death in the confidential settlement of the Federal Court lawsuit.

To defeat summary judgment Diana was compelled to present affirmative evidence to contradict these evidentiary averments by Denica to create a genuine issue of material fact.  Diana failed to do so apparently having relied solely on her theory that the matter involved only a legal issue.

Under existing Kentucky law damages for a wrongful death claim are based on the destruction to the decedent ’s power to labor and earn money.

This result is well illustrated in Turfway Park Racing Ass ’n v.Griffin 834 S.W.2d 667 671 (Ky.1992) holding that “damages flow naturally from the wrongful death of a person unless there is evidence from which the jury could reasonably believe that the decedent possessed no power to earn money.”  A wrongful death claim brought under the facts of the underlying federal action would not be recoverable i.e.it would have no monetary value. Accordingly, this undisputed fact supports a finding that the settlement was not based upon a wrongful death claim.

Consequently, we conclude the circuit court reached the correct decision regarding the federal wrongful death claim and settlement.

We conclude that KRS 411.133 only omits the prior obligation to elect remedies and now allows wrongful death claims and survival actions to be jointly pled.  Obviously, this cannot eliminate the inherent necessity for the elements of either causes of action to be met for a recovery.

While Denica pled a cause of action for wrongful death this is permitted under KRS 411.133.  But as is undisputed under the facts of this case there is not a factual basis for a recovery under a wrongful death theory pursuant to existing Kentucky law.

Consequently, there is no merit to an argument regarding how proceeds for a non-existent recovery should be distributed.

Such an argument is academic at best and not legitimately before this Court. Affirmed.

By Michael Stevens

Failure to revive action within one year results in dismissal and attempt to amend complaint fails: FRANK v. THE ESTATE OFJOHN ENDERIE (COA 3/21/2008)

FRANK v. THE ESTATE OF JOHN ENDERIE
CIVIL PROCEDURE:  Failure to revive cause of action and no duty on defense counsel to open estate
2006-CA-001106   
PUBLISHED: AFFIRMING
PANEL:  NICKELL PRESIDING; CAPERTON, TAYLOR CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 3/21/2008

Court of Appeals affirms dismissal of action for failure to revive within one year of the death of the alleged tortfeasor.

During the pendency of this auto-collision case, the alleged tortfeasor died. Within a few weeks and at a pretrial conference in January 2005, his defense counsel advised the court and plaintiff's counsel of her client's death and that she was unaware of an estate having been opened. Trial was set for July 12, 2005, but did not go forward; various motions were argued, including a motion to dismiss for failure to revive. Defense counsel submitted copies of the death certificate, obituary, and a letter from the decedent's brother noting that, since the decedent was insolvent at the time of death, no estate was opened. Plaintiff's counsel candidly admitted that he had forgotten that the alleged tortfeasor had died (he had even prepared his cross-examination). He said he anticipated that the family would open an estate, but since they didn't, he would petition probate court to have the public administrator appointed. The trial court granted plaintiff time to file the probate petition and amended its complaint, denying the motion to dismiss and setting a new pretrial conference for October 10, 2005.

Later on July 12, 2005, plaintiff's counsel emailed defense counsel asking for next of kin information for the probate petition. Defense counsel responded that she didn't know, but that she would "try" to reach the decedent's brother. Six weeks later, plaintiff's counsel asked for the same information and received essentially the same reply. In further emails, defense counsel noted that most of what plaintiff's counsel needed was included in the obituary. At the October 10, 2005, pretrial conference, plaintiff's counsel noted no problems whatsoever and merely got a trial date from the court. On December 15, 2005, plaintiff's counsel finally petitioned the probate court, but since he did not have the next of kin's addresses required for notification, the probate court continued the petition until January 2006 to allow proper notice. Although the one-year statute of limitations on reviver was to run on December 26, 2005, plaintiff's counsel did not request an expedited hearing. Plaintiff's counsel obtained the addresses, made proper notification and the public administrator was appointed in January 2006. Instead of filing a motion to substitute the administrator, plaintiff's counsel filed a motion to amend the complaint.

Defense counsel filed another motion to dismiss and co-counsel took over for plaintiff. Co-counsel alleged that defense counsel had acted nefariously in her dealings with initial plaintiff''s counsel. Also, co-counsel argued that initial counsel felt ethically barred from contacting the family directly as they were represented and/or controlled by the defense.

CA held that defense counsel owed no duty to plaintiff's counsel, that plaintiff's counsel failed to review his own file and take appropriate steps. Further, defense counsel did not intentionally mislead counsel; she only noted that she would "try" to get information out of professional courtesy - she had no duty to do so. Also, counsel's claims of not contacting the family out of ethical concerns are belied by the fact that counsel did, in fact, try to contact the presumably family to determine if defense counsel had contacted them.

By John Hamlet