Sheila Jean Burden v. Terri Carver ( 2021 )

RENDERED: JULY 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0704-MR
SHEILA JEAN BURDEN AND
PHILLIP BURDEN APPELLANTS
APPEAL FROM MUHLENBERG CIRCUIT COURT
v. HONORABLE JOHN L. ATKINS, SPECIAL JUDGE
ACTION NO. 18-CI-00423
TERRI CARVER n/k/a TERRI
ANDERSON; THE ESTATE OF
SHELBY WALKER, JR.; SANDRA
BAKER as EXECUTRIX OF THE
ESTATEA OF SHELBY WALKER,
JR.; AND SANDRA BAKER,
INDIVIDUALLY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES.
CALDWELL, JUDGE: This matter involves the conveyance of real estate by the
executrix of an estate to a purchaser for value. The Muhlenberg Circuit Court
entered summary judgment against the heirs who had claimed that the transaction
was improper and alleged that the purchaser had notice that there were concerns
about the title prior to the transaction. We affirm.
FACTS
Shelby Walker, Jr. passed away in June of 2016. He died testate,
leaving a last will and testament which named his son as executor. His son served
for a short time, after which Appellee, Sandra Baker, the named alternate and
daughter of the deceased, was appointed executrix. The written last will and
testament specifically granted the executor or executrix the
full power and authority to sell (at public or private sale,
for cash or credit), and to mortgage, lease, and convey
any part of my estate, both real and personal, and to
execute good and sufficient deeds or other instruments
necessary to convey title to same, at such time and upon
such terms and conditions as they may deem best in order
to fulfill my desires as expressed in this my LAST
WILL AND TESTAMENT, all without court order.
The will also provided that each of the testator’s five children should
inherit equal shares of his property, real and personal. Appellant, Sheila Burden,
was one of the children of the decedent. Sheila Burden and her husband Phillip
owned property adjacent to real estate owned by her father, and they alleged in the
complaint they filed in Muhlenberg Circuit Court that they had maintained the
property of the decedent which adjoined their real estate. Having maintained the
property for a period of thirty (30) years, the Burdens believed that they were
entitled to that property as part of Sheila’s one fifth (1/5) of her father’s estate.
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In May of 2018, the executrix conveyed real estate of the decedent to
Appellee, Terri Carver for $146,000, a fair price for the property. Carver was a
bona fide purchaser, having secured financing to purchase the property. A title
examination was conducted by the mortgaging entity. The Burdens allege that the
executrix did not have the authority to so convey, despite the clear grant of such
authority in the last will and testament of Shelby Walker, Jr. The conveyance to
Carver included the tract behind the Burden home, a tract that the Burdens desired
to inherit as part of Sheila’s share of her father’s estate.
The Burdens filed suit seeking to undo the conveyance to Carver and
alleging that the deed was of no consequence as all of the beneficiaries and their
spouses were necessary signatories to any deed of conveyance. Carver answered
and alleged that as a bona fide purchaser for value, she relied upon the clear
language of the will granting the executrix the authority to convey property of the
estate without approval of court or any other approval. She later filed a motion for
summary judgment, which was granted. The Burdens appealed to this Court. We
affirm.
STANDARD OF REVIEW
Appellate courts review a trial court’s entry of summary judgment de
novo. Cmty. Fin. Servs. Bank v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019). In the
seminal case of Steelvest, Inc. v. Scansteel Service Center, Inc., the Kentucky
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Supreme Court explained that “the proper function of summary judgment is to
terminate litigation when, as a matter of law, it appears that it would be impossible
for the respondent to produce evidence at the trial warranting a judgment in his
favor.” 807 S.W.2d 476, 480 (Ky. 1991). In reviewing such a motion, the trial
court must view the facts “in a light most favorable to the party opposing the
motion for summary judgment and all doubts are to be resolved in his favor” and in
so doing must examine the proof to ensure that no real issue of material fact exist.
Id.ANALYSIS
At the outset, we must point out the deficiencies of the Appellants’
briefs. The first brief filed by Appellants was rejected as deficient and counsel was
advised as to some of the failures contained in the brief and was given an
opportunity to correct the deficiencies. Counsel may have cured some of the
formatting issues, but did not comply with all of the requirements of Kentucky
Rules of Civil Procedure (CR) 76.12, despite having an additional opportunity to
do so.
CR 76.12(4)(c)(iii) requires:
A “STATEMENT OF POINTS AND AUTHORITIES,”
which shall set forth, succinctly and in the order in which
they are discussed in the body of the argument, the
appellant’s contentions with respect to each issue of law
relied upon for a reversal, listing under each the
authorities cited on that point and the respective pages of
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the brief on which the argument appears and on which
the authorities are cited.
(Emphasis added.)
The first brief filed by Appellants wholly failed to comply with CR
76.12(4)(c)(iii). The brief filed following the deficiency determination did not
correct the deficiency suitably. It is not ‘succinct’ to list contentions which are
lengthy and consist of several sentences. Counsel should be advised that he should
be able to succinctly state the contentions he forwards in the brief, and a failure to
do so may be an indication of a failure to adequately identify and frame the issues
to be presented to the court. The ability to succinctly state and present the issues to
be argued cogently is an indication of the strength, or weakness, of the issues
themselves.
CR 76.12(4)(c)(v) requires that there be “ample supportive references
to the record” for allegations of fact made in support of an argument. The
Appellants’ brief wholly fails to provide any such references; it is not sufficient or
compliant to simply place documents from the record in an appendix and provide
references to the appendix.
Before addressing the merits of Porter’s argument, we
address her failure to comply with the requirements of
CR 76.12. Any number of opinions of this Court and
those of the Supreme Court emphasize the importance of
the appellate rules. See Clark v. Workman, 604 S.W.3d
616, 616-19 (Ky. App. 2020). We will not, as we did in
Clark, identify each deficiency, but we do urge counsel
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to read all the appellate rules carefully, especially CR
76.12, to avoid compromising the appellate rights of
future clients.
Porter v. Allen, 611 S.W.3d 290, 293 (Ky. App. 2020) (footnotes omitted).
When confronted with a brief which does not provide citations to the
record or is otherwise not in compliance with the rules, CR 76.12(8)(a) provides
the reviewing Court with several alternatives:
(8) Penalties.
(a) A brief may be stricken for failure to comply with any
substantial requirement of this Rule 76.12.
We do not take this action lightly. We feel compelled to do so as we
hold a responsibility to those practitioners and lay litigants who take care to
comply with the rules. We are entrusted with ensuring that the rules are applied
equitably and that the administration of justice in the Commonwealth is conducted
with fundamental fairness, which requires that all be required to comply with very
well-known, necessary, and functional rules for filings.
Because the brief here is so deficient and fails so completely to
comply with the rules, we strike the brief and will review only for manifest
injustice.
The Kentucky Civil Rules of Procedure are a vital part of
appellate procedure, as has been recognized for decades
by the courts of this Commonwealth. Very recently, this
Court expressed the importance in following these rules
in appellate briefing:
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It is a dangerous precedent to permit
appellate advocates to ignore procedural
rules. Procedural rules “do not exist for the
mere sake of form and style. They are lights
and buoys to mark the channels of safe
passage and assure an expeditious voyage to
the right destination. Their importance
simply cannot be disdained or denigrated.”
Louisville and Jefferson County
Metropolitan Sewer Dist. v. Bischoff, 248
S.W.3d 533, 536 (Ky. 2007) (quoting
Brown v. Commonwealth, 551 S.W.2d 557,
559 (Ky. 1977)). Enforcement of procedural
rules is a judicial responsibility of the
highest order because without such rules
“[s]ubstantive rights, even of constitutional
magnitude, . . . would smother in chaos and
could not survive.” Id.Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
The Court went on to provide detailed reasons for the
procedural rules and concluding that “the rules are not
only a matter of judicial convenience. They help assure
the reviewing court that the arguments are intellectually
and ethically honest.” Id. at 697.
Mullins v. Ashland Oil, Inc., 389 S.W.3d 149, 153 (Ky. App. 2012).
Once a brief has been stricken as noncompliant, there are no issues
presented to the appellate court for determination. Thus, a reviewing court will
only review the matter below for manifest injustice. See Hallis, 328 S.W.3d at
696. (“Our options when an appellate advocate fails to abide by the rules are: (1)
to ignore the deficiency and proceed with the review; (2) to strike the brief or its
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offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief
for manifest injustice only[.])” Id. Because the issue involved here–the grant of
summary judgment in favor of the Appellee–is discrete, we opt for the last remedy
and will review for manifest injustice.
The Appellants complain that the trial court did not offer a complete
analysis of the matter at hand in the order granting summary judgment in favor of
the Appellees. CR 52.01 makes it clear that findings are not required on entry of
summary judgment. “Findings of fact and conclusions of law are unnecessary on
decisions of motions under Rules 12 or 56 . . . .”
Thus, we must decide whether the trial court’s entry of summary
judgment was correct in its determination that, as a matter of law, the Burdens
could not succeed in their lawsuit. Distilling the matter at hand down to its
simplest terms, the Burdens challenge the authority of the executrix to convey the
real estate they hoped they would receive and also call into question Carver’s
status of purchaser for value. For if she is such, and the executrix had the authority
under the will to convey real estate of the decedent, then summary judgment was
properly granted.
One need read no further than paragraph four of the last will and
testament of Shelby Walker, Jr. to answer this question. The will granted the
executor/executrix with the “full power and authority to sell . . . any part of my
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estate, both real and personal” and such provides a solid basis for any purchaser to
rely upon that grant of authority.
As the Appellee argues, Kentucky has a race-notice statute.
Kentucky is a race-notice jurisdiction. See [Kentucky
Revised Statutes (KRS)] 382.270-.280. In order to have
first priority, “one must not only be the first to file the
mortgage, deed or deed of trust, but the filer must also
lack actual or constructive knowledge of any other
mortgages, deeds or deeds of trust related to the
property.” Wells Fargo Bank, Minnesota, N.A. v.
Commonwealth, Finance and Administration,
Department of Revenue, 345 S.W.3d 800, 804 (Ky.
2011). Put another way, a prior interest in real property
takes priority over a subsequent interest that was taken
with notice, actual or constructive, of the prior interest.
Mortg. Elec. Registration Sys., Inc. v. Roberts, 366 S.W.3d 405, 407-08 (Ky.
2012).
Thus, unless a prior purchaser or devisee had properly filed a deed or
a lis pendens notice pursuant to KRS 382.440, Carver, as a purchaser for value,
properly relied upon the authority granted to the executrix to sell real property in
the will. This, coupled with a title search conducted to be sure the decedent was
the owner of the real estate at the time of his passing, was sufficient.
No mortgage, deed or deed of trust conveying real
property is valid against a purchaser for a valuable
consideration, without notice thereof, or creditors until it
is properly filed. KRS 382.270. A mortgage, deed or
deed of trust shall take effect at the time it is filed. KRS
382.280. The combined effect of these statutes is known
as the “race-notice” rule. In other words, one must not
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only be the first to file the mortgage, deed or deed of
trust, but the filer must also lack actual or constructive
knowledge of any other mortgages, deeds or deeds of
trust related to the property.
Wells Fargo Bank, Minnesota, N.A. v. Commonwealth, Fin. & Admin., Dep’t of
Revenue, 345 S.W.3d 800, 804 (Ky. 2011), as corrected (Aug. 25, 2011).
Carver had every reason to believe that the executrix had the authority
to sell her the property because she did, in fact, have such authority, for it was
granted to her in express language in the will.
Where one purchases land from an executor as such, he is
bound to know whether or not the latter is authorized by
the will to make the sale, and if the executor has no such
power the purchaser is not an innocent or bona fide
purchaser. But where the executor has power to sell, a
purchaser from him acquires good title, notwithstanding
the bad faith of the executor in making the sale, where he
had no knowledge of such bad faith; for the purchaser
has a right to presume that the executor is acting in good
faith, and is not bound to inquire whether a necessity for
the exercise of the power given by the will exists,
although he must not disregard information which he
cannot avoid receiving without extraordinary negligence;
and if he has notice that the sale is made for a purpose
other than that for which the will empowers the executor
to sell, or is otherwise unauthorized, the legal title of the
devisees is not divested. Where the sale is tainted by
fraud and covin between the executor and the purchaser,
it is absolutely void, and the title to the property remains
unchanged.
Buckner v. Buckner, 185 Ky. 540, 215 S.W. 420, 425 (1919) (citation
omitted).
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Needless to say, some “desire” on the part of a beneficiary that a
particular portion of an estate be distributed to said beneficiary is insufficient to put
a bona fide purchaser on notice of a claim. Though a prior deed might have
included the signatures of all of the beneficiaries listed in the last will and
testament, such was not necessary and the fact that such signatures appeared on
one deed did not establish such a requirement.
CONCLUSION
The trial court properly granted summary judgment in favor of the
Appellees as the Appellants have no basis to claim that the executrix did not have
the authority to convey real estate when the last will and testament clearly and
unambiguously granted such authority. The decision of the trial court is affirmed.
ACREE, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS AND FILES SEPARATE
OPINION.
THOMPSON, K., JUDGE, CONCURRING: I concur but state that
the majority has conducted a well written analysis on the merits of this appeal.
The striking of the Appellants’ brief is unnecessary.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE, TERRI
CARVER N/K/A TERRI
Wendell Holloway ANDERSON:
Madisonville, Kentucky
Matthew C. Hess
Elizabethtown, Kentucky
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