Charlie W. Gordon v. Eric T. Gordon ( 2021 )

RENDERED: SEPTEMBER 17, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1386-MR
CHARLIE W. GORDON APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
v. HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 19-CI-00579
ERIC T. GORDON APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.
CLAYTON, CHIEF JUDGE: Charlie W. Gordon appeals from a Shelby Circuit
Court opinion and order granting summary judgment to his brother, Eric T.
Gordon. A dispute arose between the brothers over the medical and financial
affairs of their mother, Effie Gordon, now deceased, for whom Eric served as
power of attorney (POA). Charlie filed suit against Eric, contending that Effie was
not competent to execute the POA and raising multiple other claims, including
fraudulent misrepresentation, trespass, and defamation. Upon review, we affirm.
Following his divorce in 2015, Charlie began residing with Effie at
her house on Hinkle Lane in Shelbyville, Kentucky. Although Charlie did not pay
rent or utilities, he purchased groceries and other supplies for the household on a
biweekly basis totaling approximately $300 to $400 per month.
In 2018, Effie’s physical and mental health began to decline.
According to Charlie, she threw a heavy lamp at him and tried to choke him with a
scarf. He and Eric discussed their mother’s situation and Eric agreed to facilitate
the payment of the mortgage and the utilities on the Hinkle Lane home by setting
up automatic payment for these expenses. On April 12, 2018, Effie executed a
POA that gave Eric the authority to handle her financial affairs and medical
treatment. Eric did not inform Charlie of the POA.
Eric also arranged for their mother’s mail to be forwarded to his
address. According to Charlie, the mail was forwarded under a “family move”
order which did not distinguish first names on the mail. Consequently, Charlie’s
mail was occasionally forwarded to Eric. Eric arranged for Charlie to get his mail
by sending it to him in a flat rate shipping box or by dropping it off at the Hinkle
Road residence. Charlie apparently made no effort to have the forwarding order
changed to deliver his own mail to the Hinkle Road residence.
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The brothers disagreed about the severity of Effie’s dementia. Charlie
believed Eric was not acting quickly enough to have Effie’s mental state evaluated
and he sought a mental inquest warrant as her condition deteriorated. According to
Charlie, Effie’s dementia led her to damage and destroy many items in the Hinkle
Lane house. In October 2018, following a period of hospitalization, Effie was
evaluated for dementia and moved into a nursing home facility in Indiana. Charlie
continued to reside in the Hinkle Lane house. Prior to Effie’s hospitalization,
Charlie had paid $975 to catch up on late mortgage payments on the house. On
January 1, 2019, he entered into a lease agreement with Effie, facilitated by Eric
acting as POA, in which Charlie agreed to make monthly mortgage payments on
the home of approximately $440.
Charlie thereafter failed to make the payments for several months.
The mortgage company sent him a letter to the Hinkle Lane address terminating
the lease and returning one of his checks for insufficient funds. The
correspondence was forwarded to Eric, who sent it to Charlie at his work address
in Louisville. Charlie is employed as an attorney at a firm that specializes in
creditor law. The letter was opened by the mail room workers, who assumed it
was correspondence related to the firm’s business. Charlie contends that the
contents of the letter were deeply embarrassing to him and defamatory.
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Charlie filed a complaint against Eric in Shelby District Court on
August 23, 2019. That complaint is not in the record. At some point after the
action was filed, Eric entered the Hinkle Lane residence while Charlie was not
there. According to Charlie, he was usually away at work from approximately
8:00 a.m. to 6:00 p.m. His affidavit states that he set up a chair and towel at the
front door so he could tell if anyone had entered the house when he was not at the
residence. He explained that Eric had a key to the house and Charlie “did not
know what he might do given [they] were in the middle of litigation.” According
to Eric, he went to the house to drop off some mail for Charlie. The mailbox was
stuffed to overflowing and he noticed a foul odor around the house. He received
no response when he knocked on the door. He looked in the window and noticed
that the door had been barricaded and the house looked ransacked. He then briefly
entered the house to ascertain if everything was satisfactory.
The district court dismissed all the claims in the complaint for lack of
jurisdiction, except for Count 1, which challenged Effie’s competency to execute
the POA under Kentucky Revised Statutes (KRS) 457.160. Charlie then filed a
complaint in Shelby Circuit Court on November 1, 2019, which incorporated the
district court claims. The district court stayed the action until the resolution of the
circuit court case.
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The circuit court complaint included the following claims: a petition
for a declaration of rights that the POA was void because Effie lacked capacity to
execute it and that the lease agreement on the house entered into and signed by the
POA was void; fraudulent misrepresentation and omission related to forwarding
the mail; negligence per se regarding the forwarding of the mail; invasion of
privacy and violation of landlord-tenant laws in connection with Eric entering the
Hinkle Lane residence without Charlie’s consent; and defamation in connection
with the mail containing the canceled check and lease termination notice which
was opened at Charlie’s workplace. Eric filed an answer and counterclaim seeking
to recover any funds Charlie had taken from Effie not in her best interest, including
any money he owed her for unpaid rent and the expenses incurred by his waste of
the real property at Hinkle Lane. Eric filed a motion for summary judgment on
March 9, 2020. Effie passed away on May 17, 2020. The circuit court granted the
motion for summary judgment on August 17, 2020. This appeal by Charlie
followed. Further facts will be set forth below as necessary.
In reviewing a grant of summary judgment, our inquiry focuses on
“whether the trial court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as a matter of
law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Kentucky Rules of
Civil Procedure (CR) 56.03. The trial court must view the record “in a light most
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favorable to the party opposing the motion for summary judgment and all doubts
are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807
S.W.2d 476, 480 (Ky. 1991). On the other hand, “a party opposing a properly
supported summary judgment motion cannot defeat it without presenting at least
some affirmative evidence showing that there is a genuine issue of material fact for
trial.” Id. at 482. “An appellate court need not defer to the trial court’s decision on
summary judgment and will review the issue de novo because only legal questions
and no factual findings are involved.” Hallahan v. The Courier-Journal, 138
S.W.3d 699, 705 (Ky. App. 2004).
Charlie argues that Eric’s motion for summary judgment failed to
meet the “burden of establishing the non-existence of any issues of material fact.”
Goff v. Justice, 120 S.W.3d 716, 724 (Ky. App. 2002). He contends that it lacked
legal analysis, citations to authority, and that its argument was cursory. A
successful motion for summary judgment need not contain extensive citations to
legal authority or complex legal analysis. We have reviewed Eric’s motion and
conclude that it was adequate to support the entry of summary judgment in this
case.
Next, Charlie argues that the circuit court erred in ruling that the
district court properly retained jurisdiction over the claim that Effie lacked mental
capacity to execute the POA. The original jurisdiction of the circuit and district
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courts is determined by the legislature. Abell v. Reynolds, 191 S.W.3d 1, 3 (Ky.
App. 2006) (citing KY. CONST. §§ 112(5) and 113(6); KRS 23A.010). “When the
legislature does not specifically assign jurisdiction of a particular matter to the
district court, jurisdiction rests in the circuit court.” Id. (citing Hyatt v.
Commonwealth, 72 S.W.3d 566, 577 (Ky. 2002)). KRS 24A.020 provides that
“[w]hen jurisdiction over any matter is granted to District Court by statute, such
jurisdiction shall be deemed to be exclusive unless the statute specifically states
that the jurisdiction shall be concurrent.” Id. (Emphasis added.) If jurisdiction is
concurrent, “once a court of concurrent jurisdiction has begun the exercise of that
jurisdiction over a case, its authority to deal with the action is exclusive and no
other court of concurrent jurisdiction may interfere with the pending proceedings.
20 Am. Jur. 2d, Courts, s 128, page 481.” Akers v. Stephenson, 469 S.W.2d 704,
706 (Ky. 1970).
The district court’s reason for retaining jurisdiction over this claim
was KRS 457.160, which provides a list of those who “may petition a District
Court to construe a power of attorney or review the agent’s conduct, and grant
appropriate relief[.]” KRS 457.160(1). That statute further provides that “[u]pon
motion by the principal, the court shall dismiss a petition filed under this section,
unless the court finds that the principal lacks capacity to revoke the agent’s
authority or the power of attorney.” KRS 457.160(2). Plainly, the statute
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contemplates the district court’s making a determination regarding the capacity of
the principal when, as in this case, a petition is brought challenging the conduct of
a POA. Under the foregoing authority, the circuit court correctly held that the
district court retained jurisdiction over this claim.
Charlie nonetheless argues that KRS 24A.120 specifically excludes
this claim from the district court’s jurisdiction. KRS 24A.120 was enacted in part
to confer exclusive jurisdiction upon the district courts in “[m]atters involving
probate, except matters contested in an adversary proceeding. Such adversary
proceeding shall be filed in Circuit Court in accordance with the Kentucky Rules
of Civil Procedure and shall not be considered an appeal[.]” KRS 24A.120(2);
Karem v. Bryant, 370 S.W.3d 867, 870 (Ky. 2012).
Charlie contends that a genuine dispute exists as to whether his
challenge to the validity of the POA is “adversarial” and thereby properly before
the circuit court. But the statute expressly applies only to “[m]atters involving
probate,” which is defined as “[t]he judicial procedure by which a testamentary
document is established to be a valid will; the proving of a will to the satisfaction
of the court.” Probate, BLACK’S LAW DICTIONARY (11th ed. 2019). There are no
matters involving probate raised in the case before us and consequently KRS
24A.120 does not confer jurisdiction on the circuit court in this matter.
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Next, Charlie argues that summary judgment should not have been
granted on his claims of fraudulent misrepresentation and omission. Charlie
claims the evidence in the record shows that after the episode when his mother
attacked him, Eric planned to set up automatic payment of her bills but made no
mention of getting a POA. Charlie claims that when he moved in with his mother
following his divorce, he was her tenant and had a verbal contract with her to
purchase groceries and household supplies every other week. He claims that Eric,
acting as his mother’s POA or agent, unilaterally modified the existing verbal
agreement and changed Charlie from a tenant to a caregiver and doubled his
obligation by requiring him to purchase groceries and supplies every week.
Charlie contends that Eric was under a duty as POA to provide support for Effie,
including the provision of food. He contends that Eric failed to do so and should
have informed Charlie of the POA and contracted with him to purchase the food.
Although this argument is somewhat unclear, there is no legal
foundation for the claim that Eric’s duty as POA included the provision of food for
Effie. There is also no explanation of how he was able to compel Charlie to
purchase groceries and supplies every week.
Charlie further argues that summary judgment was inappropriate on
his claim that Eric falsely forwarded his mail along with his mother’s. He
contends that Eric executed a “family move” forwarding order for Effie,
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representing that he had the authority to forward the mail of everyone at the Hinkle
Lane residence with the surname Gordon. Charlie contends that it was false that
everyone with the surname Gordon needed their mail forwarded and that Eric did
not have the authority to authorize the mail to be forwarded. But there is no
evidence that Eric arranged for the mail to be forwarded with any nefarious
purpose in mind; furthermore, Charlie acquiesced in the arrangement and provides
no evidence that he contacted the post office in order to have his own mail sent to
him.
Charlie also argues that the circuit court failed to consider that the
record shows Eric entered Charlie’s residence without notice. KRS 383.615(2)
provides that “[a] landlord may enter the dwelling unit without consent of the
tenant in case of emergency.” Charlie claims there is an issue of fact regarding
whether an emergency existed to justify Eric’s entry into the home. Specifically,
he argues that even if the mailbox was overstuffed and overflowing, as described
by Eric, the mailbox is at least 75 to 100 feet from the house and consequently its
condition could not constitute an “emergency” necessitating Eric’s entry into the
house. Charlie does not, however, challenge Eric’s claim that there was a foul
smell around the house, the doors were barricaded, and that the inside of the house
was in disarray. In light of these unrefuted facts, the circuit court did not err in
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granting summary judgment on Charlie’s claim that Eric violated the Landlord and
Tenant Act.
Charlie argues that the circuit court erred in granting summary
judgment on his defamation claim, which involved the mail room employees
opening the forwarded letter from the lessee bank containing his returned check.
The circuit court held as a matter of law that the publication element of the
defamation claim was not met.
The requisite elements for a defamation claim are: (a) a
false and defamatory statement concerning another; (b)
an unprivileged publication to a third party; (c) fault
amounting at least to negligence on the part of the
publisher; and (d) either actionability of the statement
irrespective of special harm or the existence of special
harm caused by the publication.
Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 281-82 (Ky. 2014), as corrected (Apr.
7, 2015) (internal quotation marks and citations omitted). The element of
publication occurs when the defamatory material “is intentionally or negligently
communicated to someone other than the party defamed.” Id. at 282 n.8 (citation
omitted). The circuit court held that there was no intentional or negligent
communication to a third party because Eric forwarded the letter solely to Charlie
and the fact that Charlie’s mail was opened and potentially viewed by others due to
the mail procedures at his law firm could not be construed as an effort by Eric to
intentionally or negligently publish the letter to third parties. We agree with the
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circuit court’s analysis and conclude that it did not err in granting summary
judgment on this claim as a matter of law.
Charlie also alleges that the circuit court improperly weighed the
evidence in Eric’s favor. First, he contends the circuit court’s order mistakenly
stated their father’s first name was “Charlie” to account for the mail being
forwarded, even though Charlie had presented evidence that first names were not
relevant to the mail forwarding order. He claims the circuit court’s
misinterpretation implied Charlie bore the burden of correcting the mail
forwarding order. Second, he contends the circuit court improperly accepted Eric’s
suggestion that he entered the Hinkle Lane house because he feared foul play by
suicide. Neither of these two claims rise to the level of creating a genuine issue of
material fact. “A party’s subjective beliefs about the nature of the evidence is not
the sort of affirmative proof required to avoid summary judgment.” Haugh v. City
of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007). Furthermore, “[n]ot every
issue of fact or conflicting inference presents a genuine issue of material fact that
requires denial of a summary judgment motion.” Grass v. Akins, 368 S.W.3d 150,
153 (Ky. App. 2012).
Charlie also contends that, in addressing his invasion of privacy claim,
the circuit court improperly analyzed it as the form of the tort which concerns
“publicity that unreasonably places the other in a false light before the public[,]”
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whereas Charlie was alleging “unreasonable intrusion upon the seclusion of
another[.]” McCall v. Courier-Journal and Louisville Times Co., 623 S.W.2d 882,
887 (Ky. 1981). Under either theory, however, Charlie did not succeed in showing
the existence of a genuine issue of material fact.
Finally, Charlie alleges that Eric’s motion for summary judgment was
made in bad faith, repeating many of the earlier arguments which we have already
reviewed and found to be without merit. His remaining arguments in this regard
are similarly without merit.
For the foregoing reasons, the opinion and order granting summary
judgment is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Charlie W. Gordon, pro se Joseph D. Buckles
Louisville, Kentucky Lexington, Kentucky
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