Opinion
NO. 2012-CA-000986-MR
06-28-2013
EMMETT DUKE APPELLANT v. LEE KASSINGER APPELLEE
BRIEF FOR APPELLANT: John W. Tullis Owensboro, Kentucky BRIEF FOR APPELLEE: E. Louis Johnson Owensboro, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JOSEPH W. CASTLEN III, JUDGE
ACTION NO. 10-CI-00696
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND MOORE, JUDGES. CLAYTON, JUDGE: Emmett Duke appeals from a Daviess Circuit Court order dismissing his claims against Lee Kassinger on statute of limitations grounds. We affirm.
Emmett Duke and Lee Kassinger are brother and sister. This dispute concerns two checks which their father, V.R. Duke, wrote to Kassinger shortly before his death. The checks were in the amounts of $24,000 and $10,000, dated May 11, 2004, and May 17, 2004, respectively. Both checks were drawn on a joint checking account held by V.R. Duke and Onie Duke, his wife.
V.R. Duke died intestate on May 18, 2004. Emmett Duke was appointed administrator of his estate on September 21, 2004. Onie Duke died testate on April 1, 2006. Emmett Duke was appointed executor of her estate on June 20, 2006. Onie Duke's will left her entire estate to Duke.
On April 27, 2010, almost six years after his father's death and almost four years after his mother's death, Duke filed a petition for declaratory judgment in the Daviess Circuit Court, in his capacity as administrator of the V.R. Duke estate, as executor of the Onie Duke estate, and in his individual capacity. In the petition, and later in an amended complaint, he alleged that Kassinger had fraudulently obtained the checks and that there was a dispute as to the proper title to the funds. He requested the creation of a constructive trust, trial by jury and punitive damages.
Kassinger filed a motion to dismiss the action, arguing that it was barred by the statute of limitations found at Kentucky Revised Statutes (KRS) 413.180(1), which governs actions brought by personal representatives. It states:
If a person entitled to bring any action mentioned in KRS 413.090 to 413.160 dies before the expiration of the time limited for its commencement and the cause of action survives, the action may be brought by his personal representative after the expiration of that time, if commenced within one (1) year after the qualification of the representative.
The trial court agreed that the action was not timely filed and entered an order dismissing Duke's claims. This appeal by Duke followed.
Duke argues that the applicable limitations period is found at KRS 413.160, which states that "[a]n action for relief, not provided for by statute, can only be commenced within ten (10) years after the cause of action accrued."
"A specific statute of limitation preempts a general statute of limitation where there is a conflict." Boyd v. C & H Transp., 902 S.W.2d 823, 824 (Ky. 1995). KRS 413.180 applies specifically to actions brought by personal representatives and therefore applies directly to Duke's claims as the administrator and executor of his parents' estates. Duke's reliance on Wood v. Wingfield, 816 S.W.2d 899 (Ky. 1991), is misplaced. In that case, the illegitimate child of the intestate decedent came forward eight years after his death, requesting a share of his estate. The court held that the "catch all" ten-year limitation period of KRS 413.160 applied to the claims of omitted heirs for personalty. 816 S.W.2d at 904. By contrast, there is no omitted or unknown heir in this case seeking a share of the decedents' estates.
As the holder of the joint account with her husband, Onie Duke could have brought an action against Kassinger regarding the checks written by V.R. Duke. If we assume that such an action would have survived her death, Duke had one year after his qualification as her executor to bring that action on behalf of the estate. He failed to do so.
Similarly, Duke has no cause of action against Kassinger in his capacity as the administrator of his father's estate. Upon V.R. Duke's death, the disputed funds would not have formed part of his estate, but, as we have already stated, would have vested in the survivor of the account, Onie Duke. In any event, even if a cause of action did exist, it would be barred by the one-year limitations period.
Finally, Duke did not have standing to bring an action in his individual capacity against Kassinger. At no time did he have a claim to the funds as an individual because Kassinger's alleged conversion of funds affected an account held solely by Onie and V.R. Duke. Although Duke was the only beneficiary under his mother's will, the alleged wrongdoing by his sister occurred before his mother's death, when he had no claim upon her estate. "A testator can change his [or her] will at any time, and a devisee has no interest, real or contingent, in a devise until after the former's death[.]" Thompson v. Latimer, 273 S.W. 65, 66 (Ky. App. 1925).
The order of dismissal is therefore affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John W. Tullis
Owensboro, Kentucky
BRIEF FOR APPELLEE: E. Louis Johnson
Owensboro, Kentucky