Brenda Killian as Administratrix of the Estate of Earl Settles v. Barbara Rednour ( 2020 )

RENDERED: SEPTEMBER 11, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-001252-MR
BRENDA KILLIAN1 AND JACK
SETTLES APPELLANTS
APPEAL FROM LAUREL CIRCUIT COURT
v. HONORABLE MICHAEL O. CAPERTON, JUDGE
ACTION NO. 18-CI-00660
BARBARA REDNOUR; CARL
SETTLE;2 AND CHARLES R.
REDNOUR APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
1
We note that Appellants’ notice of appeal indicates “Brenda Kay Killion” in the case caption
and “Brenda Killian” in the body of the notice. Her name appears as “Brenda Killion” in the
complaint filed in circuit court, but both spellings appear throughout the record before us. We
use the spelling “Killian” in this opinion consistent with the notice of appeal filed with this
Court.
2
We note that Appellants’ notice of appeal indicates “Carl Settle” in both the caption and the
body and his surname appears as “Settle” throughout the record before us.
KRAMER, JUDGE: Brenda Killian and Jack Settles appeal from an order of the
Laurel Circuit Court dismissing their complaint as untimely filed. Upon review,
we affirm.
The following facts are not in dispute: On or about September 15,
2008, Earl Settles granted power of attorney to two of his children, Barbara
Rednour and Carl Settle. On September 22, 2008, Carl, as Earl’s attorney-in-fact,
transferred a parcel of Earl’s real property to Barbara. The transfer was without
monetary consideration. The deed was filed of record on September 29, 2008.
Earl died intestate on September 1, 2011. On December 4, 2017, two of Earl’s
other children, Brenda Killian and Jack Settles (“Appellants”), qualified as and
were appointed personal representatives of Earl’s estate. On August 9, 2018, the
underlying lawsuit was filed, alleging breach of fiduciary duty by Barbara, her
husband Charles, and Carl. The complaint demanded an accounting of the
financial activities of Barbara and Carl as Earl’s attorneys-in-fact. In May 2019,
Carl, Charles, and Barbara filed a joint motion to dismiss the complaint as barred
by the five-year statute of limitations imposed by KRS3 413.120(6) for breach of
fiduciary duty. After hearing oral arguments and allowing time for briefing, the
circuit court granted the motion. Appellants filed a timely motion to alter, amend,
3
Kentucky Revised Statute.
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or vacate the court’s order. Although the circuit court agreed that KRS 413.180(2)
was inapplicable to the facts of the case, it otherwise denied the motion. This
appeal followed.
At the outset, we note that Appellants’ brief is noncompliant in
several substantive ways. In contravention of CR4 76.12(4)(c)(v), they do not have
a preservation statement at the beginning of each argument. They make no
citations to the record whatsoever. It is even questionable whether they have cited
legal authority in support of their arguments. Indeed, the only caselaw cited by
Appellants appear in their final “argument” and are cases cited by the circuit court
or Appellees, in an attempt to distinguish those cases from the case at hand. CR
76.12(4)(c)(iv) and (v) require ample references to the record and citation to
authority supporting each argument.
The Court recently addressed these issues in Curty v. Norton
Healthcare, Inc., 561 S.W.3d 374 (Ky. App. 2018). Given the length at which the
Court in Curty urged compliance with CR 76.12(4)(c), we quote the rationale for
the rule and the Court’s warnings that leniency should not be presumed.
CR 76.12(4)(c)[(v)] in providing that an
appellate brief’s contents must contain at the
beginning of each argument a reference to
the record showing whether the issue was
preserved for review and in what manner
4
Kentucky Rule of Civil Procedure.
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emphasizes the importance of the firmly
established rule that the trial court should
first be given the opportunity to rule on
questions before they are available for
appellate review. It is only to avert a
manifest injustice that this court will
entertain an argument not presented to the
trial court. (citations omitted).
Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990)
(quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky.
App. 1987)). We require a statement of preservation:
so that we, the reviewing Court, can be
confident the issue was properly presented
to the trial court and therefore, is appropriate
for our consideration. It also has a bearing
on whether we employ the recognized
standard of review, or in the case of an
unpreserved error, whether palpable error
review is being requested and may be
granted.
Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App.
2012). . . .
....
Failing to comply with the civil rules is an
unnecessary risk the appellate advocate should not
chance. Compliance with CR 76.12 is mandatory. See
Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
Although noncompliance with CR 76.12 is not
automatically fatal, we would be well within our
discretion to strike Curty’s brief or dismiss her appeal for
her attorney’s failure to comply. Elwell. While we have
chosen not to impose such a harsh sanction, we strongly
suggest counsel familiarize himself with the rules of
appellate practice and caution counsel such latitude may
not be extended in the future.
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Curty, 561 S.W.3d at 377-78 (emphasis added).
Two years have passed since the Curty Opinion, and the brief
deficiencies have not greatly declined. In June of this year, our Court noted as
follows:
This Court is weary of the need to render opinions
such as this one, necessitated as they are by the failure of
appellate advocates to follow rules of appellate advocacy.
In just the last two years, at least one hundred and one
(101) Kentucky appellate opinions were rendered in
which an attorney’s carelessness made appellate rule
violations an issue in his or her client’s case. The
prodigious number of attorneys appearing in Kentucky’s
appellate courts lacking the skill, will, or interest in
following procedural rules is growing. In 2005, only two
(2) Kentucky opinions addressed appellate rules
violations. In 2010, the number jumped to eleven (11).
In 2015, the number rose slightly to fourteen (14). The
average for the last two years is more than three times
that. If this is not a crisis yet, it soon will be if trends do
not reverse.
We will not reiterate all that has been said too
many times before on this subject. If a lawyer is curious
about the importance of these procedural rules or the
practical reasons for following them, we recommend
reading these opinions in chronological order:
Commonwealth v. Roth, 567 S.W.3d 591 (Ky. 2019);
Koester v. Koester, 569 S.W.3d 412 (Ky. App. 2019);
Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010); Elwell
v. Stone, 799 S.W.2d 46 (Ky. App. 1990).
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Clark v. Workman, ___ S.W.3d ___, 2020 WL 3582597, at *1-2 (Ky. App. Jun. 26,
2020) (footnotes omitted).5
Appellants’ counsel has appeared in forty or more cases before this
Court. This is not the first time the Court has cautioned counsel regarding
compliance with CR 76.12. Counsel represented Appellant Heidi Weatherly in
Weatherly v. Lake Cumberland Community Association, Inc., No. 2015-CA-
001468-MR, 2017 WL 3129189 (Ky. App. Jul. 21, 2017). In that case, we opined
that
Heidi’s appellate brief includes no citation to any portion
of the record, much less any portion of the record
providing evidence that a genuine issue of material fact
exists with respect to those two material elements. CR
76.12(4)(c)(v) states, in part, that an appellant’s brief
shall contain “[a]n ‘ARGUMENT’ conforming to the
Statement of Points and Authorities, with ample
supportive references to the record and citations of
authority pertinent to each issue of law . . . .” (Emphasis
added.) Because Heidi’s brief lacks any supportive
references to the record, it does not comply with CR
76.12(4)(c)(v). It is not the responsibility of this Court to
search the record to find support for her contentions,
assuming it exists. Smith v. Smith, 235 S.W.3d 1 (Ky.
App. 2006). Rather than ordering her brief stricken for
this deficiency, however, a more appropriate penalty in
this instance is to refuse to consider the merits of her
contentions regarding the dismissal of her abuse of
process claims. Cherry v. Augustus, 245 S.W.3d 766,
781 (Ky. App. 2006).
5
This case has been designated “To Be Published” and became final on August 11, 2020.
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Id. at *2 (footnote omitted).
In a footnote in the above paragraph in the Weatherly Opinion, we
noted that due to Appellant’s noncompliance with CR 76.12(4)(c)(v), Appellees
jointly moved to dismiss her appeal. This Court denied that motion by separate
order but would have been well within its discretion to have granted it.
As the caselaw has made perfectly clear, we would be well within our
discretion in the present case to strike Appellants’ brief as a sanction for failure to
comply with CR 76.12. But, the difficulty in this case (and others) is that clients
are the ones who are sanctioned by striking the brief and dismissing the appeal.
On the other hand, as examined supra, the Court is continually in the position of
reminding attorneys about deficiencies in briefs and stating that counsel may not
be so lucky the proverbial “next time.” Given here, however, where counsel
frequently practices in this Court and where counsel has been cautioned previously
about appellate rule compliance, we believe we have reached the proverbial next
time. Given only because the record is not substantially voluminous, we will
engage in a review of the matter to determine whether any manifest injustice
exists, as to not too severely sanction Appellants for the failings of counsel. Upon
review, we discern no manifest injustice in the circuit court’s decision.
Appellants urge us to interpret KRS 413.180(1) in a manner that
would allow the personal representative of an estate to bring an action within one
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year of appointment regardless of whether any underlying statute of limitations had
expired on the cause of action. We decline to do so.
KRS 413.180(1) 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.
Although Appellants’ complaint did not list a statutory cause of action, the circuit
court found, and the parties do not dispute, that KRS 413.120(6) applies (i.e.,
breach of fiduciary duty), and there is a five-year statute of limitations. However,
Appellants argue that KRS 413.180(1) allows the personal representative of an
estate to bring an action within one year of appointment, regardless if the statute of
limitations has long since expired. We disagree.
In the instant action, there is no dispute that the alleged cause of
action accrued in September 2008, when Earl’s real property was transferred to
Barbara by Carl, acting as attorney-in-fact. Therefore, the statute of limitations
would have expired in September 2013, and this was unaffected by Earl’s death in
2011. The caselaw dictates that KRS 413.180(1) would have been applicable to
the facts of this case only if the personal representative had been appointed within
one year of September 2013. Because the personal representative was not
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appointed until December 4, 2017, the action for breach of fiduciary duty is time-
barred and KRS 413.180(1) is inapplicable.
Appellants attempt to distinguish the cases that the circuit court and
Appellees relied upon. We conclude that those arguments fail to show a basis for
relief. Those cases include Fix’s Executor v. Cook, 192 Ky. 731, 234 S.W. 453
(1921) and Halcomb v. Cornett, 146 Ky. 339, 142 S.W. 686 (1912). The Fix’s
Executor Court undertook an in-depth analysis of Halcomb, 142 S.W. 686. The
decedent in Fix’s Executor was the creditor on a promissory note (i.e., a fifteen-
year statute of limitations to bring suit to collect); however, “the nominated
executor failed to qualify for eleven years after the death of Fix and six years after
the probate of his will, and about two years after the period of limitation expired,
and neither he nor any of the beneficiaries under that will took any steps looking to
his qualification, or that of any other person, until after the period of limitation had
expired.” 234 S.W. at 455. In examining the holding in Halcomb, our highest
Court found
[i]n Halcomb v. Cornett, when the court said, “The
creditor has always 15 years in a case like this to bring
his suit, but if he dies within the 15 years, his personal
representative may bring the action within one year after
he qualifies, although this may be beyond the 15 years,”
it had in mind a case like the one it was dealing with; that
is, where the qualification of the personal representative
had taken place before the limitation period had expired.
That is apparent from the following part of the opinion,
wherein it is said that, if the personal representative
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qualifies more than a year before the expiration of the
limitation period, he must bring the suit within the
original period, but, if he qualifies at any time within one
year of the expiration of the limitation period, he has one
year from his qualification in which to file the suit, even
though that extends beyond the ordinary limitation
period.
Id. (emphasis added).
In examining the predecessor to KRS 413.180(1),6 the Court reiterated
that “it is our view that the section quoted applies only to the qualifications of
personal representatives before the statutory period has expired, and has no
6
Looking to the predecessor of KRS 413.180(1), which was known at the time as Section 2526
of the Kentucky Statutes (Russell’s St. § 192), our highest Court has also held that:
The death of the injured party does not stop the running of the
statute; therefore, unless a personal representative shall qualify
within one year from the injury, the action is barred. If he does so
qualify, he is given another year within which to bring the action.
The last section is entirely silent as to when there is to be a
qualification. It permits the personal representative to bring his
suit after the first year is out, but it in no way affects the question
as to when he is to qualify in order to stop the running of the
statute. As we have already seen, the bar is complete unless there
is a qualification within a year from the accrual of the cause of
action. . . . As we have seen, the death does not stop the running of
the statute. This is held in an unbroken line of decisions. Without
a qualification, then, the bar is complete. Therefore the
qualification, to be effectual, must be within the year, and that,
being within the year, the suit may be brought, as the last section
says, after the expiration of the year, if commenced within one
year after the qualification. No suit can be maintained by one who
has waited until the bar is complete before bringing his action.
Louisville & N.R. Co. v. Brantley’s Adm’r, 106 Ky. 849, 51 S.W. 585, 586 (1899) (emphasis
added).
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application to a qualification by a personal representative after the limitation period
has expired.” Id.
In the instant action, Earl passed away on September 1, 2011. At the
time of his death, there would have been just over two years left before expiration
of the statute of limitations for breach of fiduciary duty. However, no one
attempted to qualify as the personal representative of Earl’s estate until over six
years after his death. The reasons for the delay are unknown, but they are also
irrelevant. By the time Appellants qualified as personal representatives of Earl’s
estate, the five-year statute of limitations had long since expired. Appellants argue
that the circuit court’s interpretation of KRS 413.180(1) unfairly shortens the
statute of limitations, but this is a misinterpretation of the caselaw. Further, the
interpretation of the statute urged by Appellants would impermissibly extend any
applicable statute of limitations by an undetermined length of time. Here,
Appellants seek an extension of almost five years.7 We agree with the high
Court’s reasoning in Fix’s Executor and conclude that such a delay is beyond the
purpose of the legislation. See id., 234 S.W. at 455.8
7
From the time that the statute of limitations would have expired in September 2013 until suit
was filed in August 2018.
8
See also Hodges’ Administrator v. Asher, 224 Ky. 431, 6 S.W.2d 451 (1928). In that case, our
highest Court held that an action filed in 1927 to collect on promissory notes dating from 1905
was untimely even though the current administrator of the estate filed within one year of
appointment.
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There clearly was no manifest injustice in this case. Accordingly, we
affirm the Laurel Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Tommie L. Weatherly Darrell L. Saunders
London, Kentucky Amanda L. Hill
Corbin, Kentucky
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