Opinion
NO. 2018-CA-000245-MR
05-24-2019
JOSEPH FERRIELL, EXECUTOR OF THE ESTATE OF WILLIAM MORROW, III APPELLANT v. WILLIAM MORROW, ADMINISTRATOR OF THE ESTATE OF WILLIAM MORROW APPELLEE
BRIEF FOR APPELLANT: George R. Carter Louisville, Kentucky BRIEF FOR APPELLEE: Ilam E. Smith Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 16-CI-06232 AND 10-CI-06446 OPINION AND ORDER
DISMISSING
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BEFORE: COMBS, NICKELL AND K. THOMPSON, JUDGES. COMBS, JUDGE: Arising out of a probate matter, this case has a long and tortuous history. Mercifully, we need not repeat it in detail in order to resolve the simple issue before us. An earlier decision of this Court provides some background:
In November 2009, William E. Morrow III died intestate. His estate was admitted for administration in the Jefferson District Court. The district court appointed [his son,] William E. Morrow[,] as administrator of the estate on December 15, 2009. The Ferriells [the decedent's sister and brother-in-law] filed a Notice of . . . Claim Against the Estate . . . assert[ing] that they extended several loans to the decedent that remained unpaid. The administrator disallowed the claim.Ferriell v. Estate of Morrow, No. 2013-CA-001986-MR, 2015 WL 3940836, at *1 (Ky. App. June 26, 2015).
On September 15, 2010, the Ferriells filed a complaint in the Jefferson Circuit Court against the Estate of William Morrow III (Estate) seeking payment of . . . indebtedness owed to them by the decedent [Case No. 10-CI-06446]. The Estate . . . counterclaimed seeking to recover a gun collection owned by the decedent and in the possession of the Ferriells.
Ultimately, the circuit court entered an order that the gun collection be sold and that the proceeds be held in escrow. The Ferriells unsuccessfully attempted to set aside that order. They then appealed to this Court, which dismissed that appeal because it was taken from an interlocutory order. Id. In 2016, some seven years later, the Ferriells discovered and probated a last will and testament dated from 2002 and prepared by the Ferriells' attorney, George Carter. Attorney Carter had previously been disqualified from representing the Ferriells because of conflicts in the course of his representation of the Estate and its heirs. Id. at *1, n. 4.
On December 16, 2016, the Plaintiffs, the Estate of William Morrow, III, William Morrow IV, filed a complaint in Jefferson Circuit Court against Joseph Ferriell, Executor of the Estate of William Morrow, III, in Claim No. 2016-CI-06232, stating that:
By Order entered May 8, 2017, the court consolidated Case No. 16-CI-006232 with Case No. 10-CI-06446. It also denied the Defendant's motion to approve settlement in that case at that time because until the "validity of the will and Joseph Ferriell's appointment thereunder, is resolved, approval of a final settlement is premature."
This is an adversary action brought to remove Joseph Ferriell as Executor of the Estate of William Morrow, III, to contest admission of a Will into probate, to vacate the Order of the Jefferson District Court granting Ferriell's Petition for his appointment and admission of Will, and for other relief.
On January 5, 2017, Ferriell filed an answer and counterclaim, which Plaintiffs moved to strike and dismiss by a motion filed on January 25, 2017. Plaintiffs explained that the 2002 will had been signed by Attorney Carter as the preparer and that the Jefferson District Court had disqualified him by order of November 9, 2016, an order which was not appealed. Further, the plaintiffs argued that:
The case at bar is a contested adversary action which follows that limited probate proceeding where Mr. Carter was again disqualified. Because the Answer and Counterclaim herein were prepared by George Carter, who has been disqualified, the Answer and Counterclaim violate Rule 11 and should be stricken. Moreover, because the Counterclaim was illicitly prepared by disqualified counsel, it fails to state any viable claim
upon which relief can be granted and should be dismissed under Rule 12 with prejudice.
On January 26, 2018, the Jefferson Circuit Court entered an order which provided as follows:
Motion having been made and the Court being duly and sufficiently advised by counsel, it is hereby ORDERED AND ADJUDGED that the ANSWER of the Defendant, shall be and hereby is stricken, and the COUNTERCLAIM shall be and hereby is DISMISSED WITH PREJUDICE.The order did not contain a finality recitation, nor did it dispose of any of the substantive issues in the case. On February 9, 2018, Joseph Ferriell, Executor, filed a notice of appeal to this Court from that order.
On March 5, 2018, this Court entered a show cause order directing Appellant to show cause why the appeal should not be dismissed as interlocutory. On March 26, 2018, Appellant filed a response. By an order entered on May 14, 2018, the matter was passed for consideration to this merits panel.
Having now considered the matter, we conclude that the order is interlocutory and, therefore, non-appealable. It does not contain a finality recitation. Nor does it adjudicate all the claims of all the parties. CR 54.02. Watson v. Best Fin. Servs., Inc., 245 S.W.3d 722 (Ky. 2008). Because we lack jurisdiction, we must dismiss this appeal.
Kentucky Rules of Civil Procedure
As a housekeeping matter, we note that on October 18, 2018, Appellee filed a motion to dismiss this appeal on ground that Appellant failed to designate an indispensable party, namely William Morrow, IV, individually, and because the appeal was filed by "a disqualified attorney." By Order entered December 18, 2018, a motion panel of this Court denied Appellee's motion to dismiss but misstated the grounds for the motion ("Having considered the motion to dismiss the above-styled appeal as interlocutory . . . ."). In light of our decision herein, that erroneous recitation is moot. --------
IT IS HEREBY ORDERED that this appeal is DISMISSED for having been taken from a non-final and non-appealable order.
ALL CONCUR. Entered: May 24, 2019
/s/ Sara Walter Combs
Judge, Court of Appeals BRIEF FOR APPELLANT: George R. Carter
Louisville, Kentucky BRIEF FOR APPELLEE: Ilam E. Smith
Louisville, Kentucky