Opinion
NO. 2015-CA-001022-MR
02-03-2017
DENNIS HORTON APPELLANT v. BERTINA BENTLEY, EXECUTRIX OF THE ESTATE OF WILBUR HORTON; and JAMES BLEVINS APPELLEES
BRIEF FOR APPELLANT: Lawrence R. Webster Pikeville, Kentucky BRIEF FOR APPELLEE BERTINA BENTLEY, EXECUTRIX OF THE ESTATE OF WILBUR HORTON: Bill Slone Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 13-CI-00863 OPINION
AFFIRMING
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BEFORE: JONES, MAZE, AND NICKELL, JUDGES. JONES, JUDGE: Dennis Horton appeals from the June 24, 2015, order of the Pike Circuit Court granting judgment in favor of the Estate of Wilbur Horton and awarding damages to James Blevins. After careful review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In April of 2013, Dennis Horton traveled from his residence in New York to Kentucky to visit his brother, Wilbur Horton, who was sick and living in a nursing home. During this time, Dennis met James Blevins, who was also visiting Wilbur in the nursing home. The men eventually began discussing Wilbur's property and the possibility that it might be sold at some point in the near future. Dennis entered Wilbur's home (with the assistance of Blevins) and removed numerous items of property. Dennis took some of the property back to New York with him and sold other items to Blevins. Prior to the sale, Dennis showed Blevins a power of attorney that Wilbur had executed several years prior making Dennis his "agent."
Wilbur died on July 6, 2013. Pursuant to his last will and testament, Bertina Bentley was appointed Executrix of Wilbur's estate. On August 8, 2013, Bertina Bentley filed a Verified Complaint on behalf of the Estate against Dennis. The Complaint asserted that Dennis had unlawfully entered Wilbur's premises, causing property damage; and asserted that Dennis had taken a number of valuable items, removed that property to New York, and was holding it there. In September of 2013, the Estate filed an amended complaint adding Blevins as a defendant on the basis that he also removed property from Wilbur's residence and was holding that property in Kentucky. Blevins filed a cross-claim against Dennis seeking compensation for money paid by Blevins to Dennis for purchasing the property that was the subject of the claim, as well as for storage fees that Blevins incurred for housing the property. Dennis filed a counterclaim against Blevins stating that he still owed him money from the sale of the property.
After the Estate notified Blevins concerning its claim to the property, Blevins put most of the property in storage at a garage, incurring storage fees. Blevins kept the remaining property at his own residence, which he also used as a business.
Eventually, Dennis entered into a settlement agreement with the Estate. In pertinent part, the settlement agreement provides:
The undersigned, Bertina Bentley, individually and as Executrix of the Estate of Wilbur Horton does hereby acknowledge receipt of the sum of $75,000.00 from Defendant Dennis Horton in consideration of which all claims which were asserted against Dennis Horton in the above styled action or which may have been asserted by Bertina Bentley individually or the Estate of Wilbur Horton are dismissed.
The parties further agree that Dennis Horton will retain possession of any and all items of personal property now in his possession which has been claimed to have been the property of the Estate of Wilbur Horton and/or Bertina Bentley specifically including the following:
A. Chevrolet pick-up truck
B. Oldsmobile 2 door sedan, 1957
C. Chevrolet 4 door sedan, 1953
D. Chevrolet pick-up truck, 1966
E. Hugh car trailer, 2002
F. Honda Shadow Motorcycle, 2002
G. Kawasaki Motorcycle, 1996
After the settlement, only the Estate's claims against Blevins and Blevins and Dennis's claims against one another remained. Those claims proceeded to a bench trial. Following the bench trial, the trial court made the following findings of fact:
1. That prior to his death, Wilbur Horton was a resident of Pike County living at 1115 Anderson Branch, Virgie, KY. Wilbur Horton owned certain automobiles, antique toys, and other items, and kept these items at his residence. Wilbur became ill in 2012 and was confined to the hospital and nursing home until his death on July 6, 2013.
2. That Bertina Bentley was a long-time friend of Wilbur Horton, and helped care for him and his property. Upon Wilbur's death Bertina was appointed Executrix of his estate on July 11, 2013, in compliance with the Last Will and Testament of Wilbur Horton.
3. That Defendant Horton is the brother of Wilbur Horton. Defendant Horton resides in Palmyra, New York. Just prior to Wilbur's death Defendant Horton visited him in the nursing home and hospital.
4. That Defendant Blevins is a resident of Pike County and is in the business of restoring and repairing motor cycles.
5. That on one occasion prior to Wilbur's death, Defendant Blevins met Defendant Horton and they began to negotiate the sale and purchase of personal property belonging to Wilbur Horton.
6. About July 2, 2015, Defendant Horton entered into an agreement with Defendant Blevins to sell automobiles and contents of Wilbur Horton's residence, garage, and shed to Defendant Blevins. This agreement was entered into the record.
7. Defendant Blevins testified that he purchased these items in reliance on a Power of Attorney that Defendant Horton provided to him.
8. The Power of Attorney named Dennis Horton "Agent" for Wilbur Horton. The Power of Attorney was executed in New York and dated September 17, 2005. This Power of Attorney was entered into the record.
9. That the items purchased and removed by Defendant Blevins were identified as the following:
a. Yellow 310 Case Bull Dozer
b. Yellow MP Loader and extra blade
c. 1994 Black Astro Chery Van
d. 1974 16' DUO Boat
e. 1929 Red Mercedes Replica
f. 1968 Yellow Buick Skylark
g. 1978 Red Dump Truck
h. 1975 Maroon GMC Sprint
The following items were moved to Blevins's business and remain there today:
i. 1956 Red Chevrolet Sedan
j. Boxes of antique toys
10. Defendant Blevins testified that he paid Defendant Horton a total of $3,165.00 for these items. Defendant Blevins also testified that he paid Clark Akers Wrecker Service $3,190.00 in storage costs through July 12, 2013.
11. Defendant Blevins testified that he had been damaged due to storing the 1956 Chevy and boxes of toys in his place of business, because he would typically rent the storage space for $50.00 per day.
12. That on August 8, 2014, Plaintiff and Defendant Horton entered into a "Receipt and Release", which was admitted as Defendant's Exhibit number 1. Through this Receipt and Release the Plaintiff, on behalf of the Estate, dismissed all claims the Estate had against Defendant Dennis Horton in exchange for the sum of $75,000.00. This release specifically identified property that was "now" in the possession of Defendant Horton. This Release did not identify any items that were at issue during the court trial.
Based on its findings of fact and conclusions of law, the trial court ordered that the Estate shall take possession of the items held by Blevins and those being held on his behalf at Clark Akers Wrecker Service. Additionally, the court ordered that Dennis was to pay Blevins the sum of $6,355, the purchase price of the items and storage costs.
This appeal followed.
II. STANDARD OF REVIEW
Since this matter was tried before the circuit court without a jury, our review is governed by the provisions of CR 52.01. Under this rule, findings of fact cannot be set aside unless clearly erroneous. Id. "If the trial judge's findings of fact in the underlying action are not clearly erroneous, i.e., are supported by substantial evidence, then the appellate court's role is confined to determining whether those facts support the trial judge's legal conclusion." Commonwealth v. Deloney, 20 S.W.3d 471, 473-74 (Ky. 2000). However, while deferential to the lower court's factual findings, appellate review of legal determinations and conclusions from a bench trial is de novo. Nash v. Campbell Cty. Fiscal Court, 345 S.W.3d 811, 816 (Ky. 2011).
Kentucky Rules of Civil Procedure. --------
III. ANALYSIS
On appeal, Dennis asserts that the trial court erred when it ordered Blevins to return the items in his possession to the Estate and awarded damages to Blevins to be paid by Dennis. Dennis claims this was contrary to the law because the Estate entered into a settlement with him for $75,000 thereby electing to accept money damages for the items in lieu of their return. According to Dennis, the trial court's order results in a double recovery for the Estate.
As a primary matter, Dennis cannot attack the portion of the judgment in favor of the Estate. Dennis did not make any claim against the Estate. The Estate's claim against Blevins was separate from its claim against Dennis. Only Blevins can appeal from that judgment, which he has not done. The only adverse judgment against Dennis is the portion of the judgment ordering him to pay damages to Blevins.
Even if Dennis did have standing to attack the judgment in favor of the Estate, his argument that the Estate elected its remedy by settling with him for $75,000 is not persuasive. "The election of remedies is the act of choosing between different remedies allowed by law on the same state of facts, or where the party has but one cause of action, one right infringed, or one wrong redressed." Riley v. Cumberland & M. R. Co., 234 Ky. 707, 29 S.W.2d 3, 4 (1930). Here, the pleadings are clear that the Estate had two claims - one against Blevins and one against Dennis. The Estate alleged that both men wrongfully took items from Wilbur's residence. It sought damages or return of the items from both men. The fact that the Estate elected to settle its claims with Dennis and accept money damages for the items in his possession in lieu of their return did not preclude it from seeking a return of the items in Blevins's possession, especially where the Estate alleged that Blevins participated in removing the items in the first instance.
Dennis asserts that the trial court's ruling violates the well-established rule that "a party aggrieved by the acts of another, or by the concurring acts or more than one person, is entitled to only one recovery." Penco, Inc. v. Detrex Chem. Indus., Inc., 672 S.W.2d 948, 951 (Ky. App. 1984). He explains that the Estate received a double recovery because he paid it $75,000 for all the items taken and then the trial court later ordered a portion of those items returned to the Estate. However, we agree with the trial court's conclusion that the amount of damages Dennis paid to the Estate was intended to compensate the Estate for only those items of property still in Dennis's possession. At the time the parties entered into the settlement agreement, it was known that the Estate was seeking compensation for approximately seventeen items of property, ten of which were in Blevins's possession or under his control in Kentucky. The settlement agreement referred only to "any and all items of personal property now in [Dennis's] possession." It then went on to list seven specific items of property. No mention was made of the additional ten items of property the Estate claimed Blevins removed and was holding in Kentucky.
While Dennis maintains that the settlement payment was intended to compensate the Estate for all the items of property, its language suggests otherwise. Based on the clear language of the settlement agreement, we agree with the trial court's conclusion that the $75,000 was intended to compensate the Estate only for the items of property in Dennis's possession. As such, the Estate remained free to seek return of the other ten items of property from Blevins. Likewise, Blevins was free to seek damages from Dennis.
Finally, the amount of damages the trial court awarded to Blevins is supported by the evidence. Blevins testified regarding the amount of money he paid to Dennis as well as the storage fees he incurred in housing the items. The trial court acted within its discretion in accepting that testimony.
IV. CONCLUSION
For these reasons, we AFFIRM the ruling of the Pike Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Lawrence R. Webster
Pikeville, Kentucky BRIEF FOR APPELLEE BERTINA
BENTLEY, EXECUTRIX OF THE
ESTATE OF WILBUR HORTON: Bill Slone
Pikeville, Kentucky