Opinion
NO. 2016-CA-001864-MR
02-16-2018
CAROLYN FORD AND PATTY BAKER APPELLANTS v. CAROL CAMPION AND RETA ROBINSON APPELLEES
BRIEF FOR APPELLANTS: W. Sidney Trivette Pikeville, Kentucky BRIEF FOR APPELLEE CAROL CAMPION: Stephen L. Hogg Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE KIM C. CHILDERS, SPECIAL JUDGE
ACTION NO. 11-CI-01624 OPINION AND ORDER DISMISSING
When final disposition of an appeal is made by an "Opinion and Order," as in this case, the party adversely affected may move for reconsideration as provided by Kentucky Rules of Civil Procedure (CR) 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1).
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BEFORE: COMBS, JONES, AND NICKELL, JUDGES. JONES, JUDGE: The litigation underlying this appeal stems from Carolyn Ford's and Patty Baker's handling of Genevieve Wright's assets, both in their capacities as Genevieve's attorneys-in-fact and, after Genevieve's death, in their capacities as co-executrixes of Genevieve's will. Carolyn and Patty bring this appeal challenging a Pike Circuit Court order that granted summary judgment in favor of Carol Campion. A review of the record reveals that the order being appealed did not dispose of the claims of all parties to the underlying litigation. Accordingly, we find that this appeal is taken from an interlocutory order and must be dismissed.
I. BACKGROUND
Carolyn and Patty are sisters and were Genevieve's nieces through marriage. In October of 2007, Genevieve executed a durable power of attorney ("POA"), which appointed Carolyn and Patty as her attorneys-in-fact. The POA was not to come into effect until Genevieve's attending physician determined that she was unable to make decisions due to illness or incapacity and it authorized Carolyn and Patty to "take care of [Genevieve's] affairs and make decisions for [her]." A letter from a Dr. Raymond Bishop, dated January 28, 2008, indicates that Genevieve was suffering from dementia and "need[ed] assistance with her financial matters." R. 126. In October of 2008, Carolyn and Patty changed the pay-on-death payee of a $100,000 certificate of deposit Genevieve had purchased from Community Trust Bank, Inc. ("Community Trust"), from Genevieve's brother, Everett Prater, who had passed away in 2004, to Frankie Prater, Everett's widow. The pay-on-death payee of another $100,000 certificate of deposit owned by Genevieve was changed from Everett Prater to Carolyn and Patty. In November of 2008, Carolyn and Patty used funds from Genevieve's checking account to purchase four additional certificates of deposit in Genevieve's name from Community Trust for $10,000 each. Those certificates were made payable on death to various entities and individuals who are not involved in this action.
Carolyn's and Patty's father was the brother of Genevieve's late husband.
Genevieve passed away on December 13, 2008. Five days later, the Pike District Court granted Carolyn's and Patty's petition to probate Genevieve's handwritten will and have themselves appointed as co-executrixes of Genevieve's estate. The petition listed Carolyn and Patty as Genevieve's only heirs at law and next of kin. The will submitted for probate states as follows:
I wish my brother Everett Prater to be sole executor of My Estate - containing CDs with the Community Trust Bank, my real estate, which is my home where I live and more than an acre in my yard, and all contents contained in said property.
I wish to donate $10,000 to the First Baptist Church, of which I am a member. I also wish to donate $10,000 to the Pikeville College, this is to be in memorial to the college, from Virgil Keel Prater, who was a student of the early Pikeville Elementary School, and always loved it very much.
I wish money set aside in case Frankie Jane Prater needs financial help - but it should not be handed down to her relatives.
I wish my Brother to be heir to the bulk of my estate. I would like for Gary Layne to receive $10,000 from it. My expenses and care for any care I need through my lifetime, and my burial expenses are to be paid from it. I
have a small pension with the State High [sic] Department which can be applied on that expense along with any other needed to cover it. I have a lot beside my husband paid for in the Johnson Memorial Cemetery. My assets also include a large checking account. All these things are a part of my Estate, and I do not owe any debts, except from month to month!On February 6, 2009, Patty and Carolyn filed a document with the district court indicating that the total estimated value of Genevieve's estate was $427,650.
Following their appointments as co-executrixes of Genevieve's estate, Patty and Carolyn used funds from the estate account to purchase new cars for themselves and Frankie and pay for vacations for themselves and their families. Patty and Carolyn also wrote numerous checks out of the estate account, several of which were made payable to either Patty, Carolyn, or Frankie. These expenditures nearly depleted the estate account. In August of 2009, Patty and Carolyn entered into a real estate purchase agreement to sell Genevieve's real property for $190,000. As part of the prospective purchase, the buyer conducted a title examination and found Everett Prater's will, which had been probated in 2004. That will, which had been executed in concert with Frankie Prater, indicated that Everett had a daughter named Carol Ann Campion, who lived in England. Following this revelation, Carolyn and Patty were advised that Carol and her husband, if any, would be required to sign the deed to convey Genevieve's real property.
An account statement for Genevieve's estate account dated December 31, 2011, indicates that the account balance was $7.56 on November 30, 2011, and $0.00 on December 31, 2011.
After obtaining Carol's contact information from Frankie, Patty contacted Carol, informed her that her father and aunt had both passed away, and asked her to sign the deed conveying Genevieve's real property. Patty informed Carol that they would pay her $25,000 out of the proceeds of the sale for signing the deed. Carol refused to do so. Carol then contacted an attorney in Kentucky to represent her in the probate case.
After having Carolyn and Patty removed as co-executrixes of Genevieve's estate, Carol filed the underlying case in Pike Circuit Court against Carolyn, Patty, Frankie, Community Trust, and John J. Davis, Public Administrator Estate of Genevieve Wright (the "Public Administrator"). In her complaint, Carol contended that Carolyn, Patty, and Frankie had worked in concert to convert Genevieve's certificates of deposit, real property, and personal property. The complaint alleged that Community Trust had aided the trio in the alleged conversion, as it knew, or should have known, that Carolyn and Patty had no authority under the POA to make gifts to themselves. Further, Carol contended that Carolyn, Patty, and Frankie had violated KRS 514.070, KRS 514.040, KRS 514.030, KRS 517.110, KRS 395.015 and had committed fraud on the court. No claims were asserted against the Public Administrator. Carol requested the following relief: that she be awarded judgment against Carolyn, Patty, Frankie, and Community Trust, jointly and severally, in the amount of $240,000 with prejudgment interest from the date the certificates of deposit were cashed; that she be awarded judgment against Carolyn, Patty, and Frankie, with prejudgment interest, for each of the conversion and statutory claims she asserted against them; that she be awarded punitive damages from Carolyn, Patty, and Frankie; that Frankie be denied any right to receive anything under Genevieve's will; that Carolyn and Patty be denied any fees that they may have been entitled to claim as the personal representatives of Genevieve's estate; and that she be awarded attorney fees and costs.
Kentucky Revised Statutes.
Carolyn, Patty, and Frankie each filed counterclaims against Carol, alleging wrongful use of civil proceedings/process and requesting that the suit be dismissed. Community Trust then filed a cross-claim against Carolyn, Patty, and Frankie. In its cross-claim, Community Trust requested the following relief: full indemnity from Carolyn, Patty, and Frankie for any damages Carol proved in the case; compensatory and punitive damages from Carolyn, Patty, and Frankie for the intentional misrepresentations they had made to it; compensatory and punitive damages from Carolyn, Patty, and Frankie to prevent their unjust enrichment; a marshalling of Carolyn's, Patty's, and Frankie's assets; and attorney fees and costs. Carolyn, Patty, and Frankie then filed cross-claims against Community Trust for wrongful use of civil proceedings.
Following several motions to dismiss and a motion by Carol for partial summary judgment, each of which was denied, the Public Administrator filed a cross-claim against Carolyn, Patty, Frankie, and Community Trust. The Public Administrator's cross-claim contended that: Carolyn and Patty, aided and abetted by Community Trust, had breached the fiduciary duties they owed to Genevieve under the POA by expending $210,113.40 of Genevieve's funds; Community Trust had violated numerous statutes by relying on the POA and allowing Carolyn and Patty to negotiate checks and make deposits on Genevieve's checking account; Community Trust had breached its fiduciary duty to Genevieve; Carolyn and Patty, in concert with Frankie, had entered into an unlawful and fraudulent scheme to misappropriate and convert personal property, real property, and contract rights rightfully belonging to Genevieve's estate for their own use; and Carolyn, Patty, and Frankie, acting in concert, had failed to make the required disposition of Genevieve's estate. The Public Administrator requested judgment against Carolyn, Patty, Frankie, and Community Trust, jointly and severally, in a total amount of $587,568.86, plus prejudgment interest. The Public Administrator additionally sought compensatory damages from Carolyn, Patty, and Frankie in an undetermined amount for each claim it asserted against them and requested punitive damages from Carolyn, Patty, Frankie, and Community Trust.
KRS 386.110, KRS 386.120, KRS 386.130, and/or KRS 386.140.
By separate motion, the Public Administrator moved for authority to sell Genevieve's real property. Frankie filed a cross-claim against the Public Administrator, by which she asserted wrongful use of civil proceedings. Patty and Carolyn moved to dismiss the Public Administrator's cross-claims against them as untimely; that motion was denied.
Following Frankie's death in June of 2013, Reta Robinson, as Executrix of the Estate of Frankie Jane Prater ("Estate of Prater") was substituted as a party and all counter and cross-claims asserted by Frankie Prater were revived. Following the order granting substitution, the Estate of Prater moved for summary judgment and Carol moved for partial summary judgment on the Estate of Prater's counterclaim. The Public Administrator moved for authority to sell Genevieve's real property. None of these motions was ruled on.
In October of 2013, Carol was granted leave to file a second amended complaint, which added Reta Sue Robinson and Diane Lynn Osborne as defendants. The second amended complaint contended that, by virtue of the underlying suit, Carol had been a creditor of Frankie while Frankie was living and was now a creditor of the Estate of Prater. Carol alleged that, in an attempt to defraud her and hinder her collection of the money owed to her by Frankie, Reta and Diane had used a POA executed by Frankie to convey Frankie's real property to themselves for no consideration. The second amended complaint requested that the conveyance to Reta and Diane be declared void and that Reta and Diane be ordered to file an accounting concerning the actions they took as attorneys-in-fact for Frankie. Also in October 2013, the Public Administrator filed a motion for partial summary judgment on the application of Kentucky's anti-lapse statute to Genevieve's will. This motion was not ruled on. In November of 2013, the Public Administrator filed a cross-claim against Reta and Diane.
Both Carol and the Estate of Prater filed motions renewing their previously filed motions for summary judgment. Carolyn and Patty subsequently joined in the Estate of Prater's motion. Carol additionally filed a motion for leave to file a third amended complaint. A footnote in this motion indicates that all of Carol's claims against Community Trust had been resolved; however, there is no order of record dismissing Community Trust from the lawsuit. The Public Administrator filed another motion requesting authority to sell Genevieve's real property. None of these motions was ruled on and, in August of 2014, the circuit court judge recused himself and a special judge was assigned to the case.
In August of 2015, Carol and the Public Administrator filed a joint motion requesting leave to file a third amended complaint and permission to sell Genevieve's real property. The motion to file a third amended complaint was granted, and the First Baptist Church of Pikeville (the "Church") was added as a defendant. The third amended complaint stated that, because Frankie's will had devised her real property to the Church, the Church would have an interest in the subject matter of the action if Carol and/or the Public Administrator prevailed on their claims against Reta and Diane. The Church filed a cross-claim against Reta and Diane seeking to set aside the gift-deed conveying Frankie's real property to Reta and Diane.
In February of 2016, the Estate of Prater renewed its motion for summary judgment. This motion was denied on March 14, 2016. On March 28, 2016, the Church filed a motion for judgment on the pleadings. The motion was granted and the gift-deed conveying Frankie's real property to Diane and Retta was declared null and void. The order further stated that title to Frankie's real property was vested in the Church, subject to the outcome of the remaining claims in the action, and that the claim was now stricken from the docket. Carol filed another motion for summary judgment in May of 2016.
On November 15, 2016, the circuit court entered an order simply entitled "Summary Judgment." Therein, the circuit court concluded that: there were no material issues of fact that Frankie had conspired with Carolyn and Patty in their breach of fiduciary duty, conversion, and misappropriation of assets belonging to Genevieve Wright and the Estate of Genevieve Wright; Carolyn, Patty, and Frankie had no right to challenge Carol's parentage or entitlement to take under Genevieve's will; the POA executed by Genevieve did not entitle Carolyn or Patty to make gifts to themselves; the Estate of Prater had no claim to Genevieve's estate; and that Carol was Genevieve's sole heir at law. The order then denied any pending motions for summary judgment, motions for sanctions, or motions to dismiss filed by Carolyn, Patty, or the Estate of Prater and granted Carol's motion for summary judgment. Carol was awarded a judgment of $469,633.80 against Carolyn and Patty, jointly and severally. The Estate of Prater was held jointly and severally liable for $155,936.52 of that total award. The order did not dispose of any other claims and did not state that it was a final and appealable order.
Because this appeal is ultimately being dismissed due to a procedural defect, we do not discuss in detail the arguments Frankie (or the Estate of Prater), Carolyn, and Patty made in their motions for summary judgment or motions to dismiss. For context, each of the previously named defendants argued that Carol's claims against them must fail because Carol had not proven that Everett Prater was her father. Carol did submit a birth certificate, which listed Everett Prater as her father, to the circuit court. However, the defendants argued that the birth certificate could not be considered as evidence because it was a foreign birth certificate that had not been properly authenticated pursuant to CR 44.01. Alternatively, the defendants argued that Carol could not take anything under Genevieve's will because Genevieve's will had left the "bulk" of her assets to Everett Prater. The defendants theorized that, because Everett's will - probated in 2004 - had left everything to Frankie and acknowledged Carol as his daughter, but left her nothing, Frankie should inherit the bulk of Genevieve's estate. --------
This appeal followed.
II. ANALYSIS
"It is fundamental that a court must have jurisdiction before it has authority to decide a case. Jurisdiction is the ubiquitous procedural threshold through which all cases and controversies must pass prior to having their substance examined." Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005). While the question of this court's jurisdiction has not been raised by any party to this appeal, "this court is required to raise a jurisdictional issue on its own motion if the underlying order lacks finality." Tax Ease Lien Invs. 1, LLC v. Brown, 340 S.W.3d 99, 101 (Ky. App. 2011) (citing Huff v. Wood-Mosaic Corp., 454 S.W.2d 705, 706 (Ky. 1970)).
Generally speaking, an appellate court lacks jurisdiction to consider an appeal if the appeal is not taken from a final order or judgment. Wilson, 162 S.W.3d at 913. "A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02." CR 54.01. Pursuant to CR 54.02, a trial court "may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay." For a judgment that does not dispose of all claims to be appealable, the judgment must contain a recitation that the judgment is final and that there is no just reason for delay. Id. "A trial court's failure to conclude both recitations in a judgment renders it interlocutory and nonappealable." Vorherr v. Coldiron, 525 S.W.3d 532, 540 (Ky. App. 2017).
The judgment from which Carolyn and Patty appeal does not adjudicate the rights of all parties to the action. There was no adjudication of the claims against Community Trust, or of Community Trust's cross-claims against Carolyn, Patty, or Estate of Prater. While a footnote in Carol's April 14, 2015, motion for resubmission indicates that her claims against Community Trust have been resolved, there is nothing filed of record dismissing Carol's claims against Community Trust. Additionally, there is nothing filed of record dismissing any of Community Trust's cross-claims. As it was never properly dismissed from the action, Community Trust remained a party at the time the order on summary judgment was issued. The order on summary judgment does not address any of the claims made by or against the Public Administrator. It denies claims for summary judgment filed on behalf of the Estate of Prater, Carolyn, and Patty - although it does not appear that any of those parties had pending motions for summary judgment - but does not dispose of any of the counter or cross-claims filed by those parties. The order on summary judgment was not a final order under CR 54.01. Accordingly, the order could only be appealed if it recited the "magic language" of CR 54.02. It did not. Therefore, the November 15, 2016, order was interlocutory and this appeal must be dismissed.
III. ORDER
Based on the foregoing, this Court ORDERS, on its own motion, that this appeal be DISMISSED for failing to appeal from a final and appealable order.
ALL CONCUR. ENTERED:__________
/s/_________
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANTS: W. Sidney Trivette
Pikeville, Kentucky BRIEF FOR APPELLEE CAROL
CAMPION: Stephen L. Hogg
Pikeville, Kentucky