Algeo v. Algeo

• Decision Date: 03 February 2023
• Docket Number: 2021-CA-1027-MR
• Parties: THOMAS JOHN ALGEO APPELLANT v. THE ESTATE OF JOHN THOMAS ALGEO, BY AND THROUGH ITS EXECUTRIX, CATHERINE MARIE ALGEO; and CATHERINE MARIE ALGEO, INDIVIDUALLY APPELLEES
• Court: Kentucky Court of Appeals

THOMAS JOHN ALGEO APPELLANT
v.
THE ESTATE OF JOHN THOMAS ALGEO, BY AND THROUGH ITS EXECUTRIX, CATHERINE MARIE ALGEO; and CATHERINE MARIE ALGEO, INDIVIDUALLY APPELLEES

No. 2021-CA-1027-MR

Court of Appeals of Kentucky

February 3, 2023

NOT TO BE PUBLISHED

APPEAL FROM WARREN CIRCUIT COURT HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 20-CI-00447

BRIEFS FOR APPELLANT: Joseph P. Bowman Frankfort, Kentucky.

BRIEF FOR APPELLEES: Frank Hampton Moore, Jr. Bowling Green, Kentucky.

BEFORE: CETRULO, EASTON, AND KAREM, JUDGES.

OPINION

EASTON, JUDGE.

Thomas John Algeo appeals an order of the Warren Circuit Court granting summary judgment in a will contest he filed against the above referenced appellees. Upon review, we affirm.

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FACTUAL AND PROCEDURAL HISTORY

This case is a will dispute between the children of John Thomas Algeo ("John"). The appellant, Thomas John Algeo ("Thomas"), is the brother of the appellee Catherine Marie Algeo ("Catherine") who serves as the executrix of their father's estate. The specific will at issue was executed in April of 2012. In this will, John gave his entire estate, less taxes and costs, to Catherine. The will's exact wording regarding the disinheritance of Thomas is as follows:

After thoughtful consideration, I have elected not to include my dear son, Thomas John Algeo, as a residuary beneficiary of this estate. This decision in no way reflects a lack of love pride, and true friendship with my son. It however reflects my belief that my son, Thomas John Algeo, has been financially successful in life and has sufficient financial resources and family support to provide for his needs. My daughter, Catherine Marie Algeo, does not have the same source of financial and family support and is, in my belief in greater need. I do leave to my two children, in equal shares, both my love and admiration

John previously executed a will in 2010 which split his estate equally between his two children. John eventually passed away on October 13, 2019, at the age of 88. Afterward, Catherine offered the 2012 will for probate, and the Warren District Court admitted it for that purpose. In March of 2020, Thomas filed suit in Warren Circuit Court contesting the 2012 will, claiming it was the product of Catherine's undue influence. Thomas made some initial suggestion about John's incapacity separate from undue influence. Thomas abandoned that

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claim and for good reason. Overwhelming evidence submitted in this record removes any genuine question of capacity in 2012.

After written discovery, Catherine moved for summary judgment, arguing no evidence supported Thomas' claims. After an oral argument on August 2, 2021, the circuit court granted Catherine's motion on August 11, 2021. This appeal followed. Additional facts will be discussed, as necessary, in the context of our analysis below.

STANDARD OF REVIEW

As discussed, all of Thomas' allegations of error emanate from the summary dismissal of his claims. In weighing the foregoing allegations of error:

"[t]he standard of review on appeal of a summary judgment is whether the circuit judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law." Pearson ex rel. Trent v. Nat'l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002). Summary judgment is only proper when "it would be impossible for the respondent to produce any evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). In Steelvest, the word "'impossible' is used in a practical sense, not in an absolute sense." Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). In ruling on a motion for summary judgment, the court is required to construe the record "in a light most favorable to the party opposing the motion . . . and all doubts are to be resolved in his favor." Steelvest, 807 S.W.2d at 480. A party opposing a summary judgment motion cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present

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affirmative evidence in order to defeat a properly supported motion for summary judgment. Id. at 481.

Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 789-90 (Ky. App. 2012).

"Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. So, we operate under a de novo standard of review ...." Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017) (quoting Shelton v. Ky. Easter Seals Soc'y, Inc., 413 S.W.3d 901, 905 (Ky. 2013)).

Phelps v. Bluegrass Hospitality Mgt., LLC, 630 S.W.3d 623, 627 (Ky. 2021).

ANALYSIS

On appeal, Thomas presents two overarching arguments as to why, in his view, summary judgment was improper: (1) it was premature because discovery had yet to be completed; and (2) evidence of record demonstrated genuine issues of material fact relative to the issue of undue influence.

Regarding Thomas' first argument, it is unpreserved. Contrary to what Thomas represents in his appellate brief, he did not argue below in his "Response to Motion for Summary Judgment" that summary judgment was premature. His response also did not contest Catherine's representation, set forth in the introduction of her motion for summary judgment, that "[t]he parties have completed written discovery[.]" Nor did Thomas move for a continuance or bring

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this issue to the circuit court's attention in a CR^[1] 59.05 motion. Additionally, Thomas makes no request for palpable error review.^[2] Because we must review the discovery to assess the propriety of summary judgment in this case, we choose to address the opportunity to complete discovery.

We note "[t]here is no requirement that discovery be completed, only that the non-moving party have 'had an opportunity to do so.'" Carberry v. Golden Hawk Transp. Co., 402 S.W.3d 556, 564 (Ky. App. 2013) (citation omitted). Six months has been deemed an adequate opportunity to complete discovery. Hartford Ins. Group v. Citizen's Fidelity Bank &Trust Co., 579 S.W.2d 628 (Ky. App. 1979).

Here, almost a year had elapsed before Catherine filed her summary judgment motion: Thomas filed suit on March 25, 2020, and Catherine moved for summary judgment on March 1, 2021. An additional six months elapsed before the circuit court considered the summary judgment motion. Even if we consider the argument, Thomas clearly had the required "opportunity" to present some evidence through discovery of a genuinely disputed fact.

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Regarding his second overarching argument (i.e., that evidence of record demonstrated genuine issues of material fact relative to the issue of undue influence), we begin our analysis with a review of the operative law. To invalidate a will based upon undue influence, it must be demonstrated that undue influence was at "a level of persuasion which destroys the testator's free will and replaces it with the desires of the influencer." Bye v. Mattingly, 975 S.W.2d 451, 457 (Ky. 1998) (citations omitted). The Kentucky Supreme Court recently set forth the legal framework to determine when a will is to be invalidated based upon undue influence:

In discerning whether influence on a given testator is "undue," courts must examine both the nature and the extent of the influence. First, the influence must be of a type which is inappropriate. Influence from acts of kindness, appeals to feeling, or arguments addressed to the understanding of the testator are permissible. Influence from threats, coercion and the like are improper and not permitted by the law. Second, the influence must be of a level that vitiates the testator's own free will so that the testator is disposing of her property in a manner that she would otherwise refuse to do. The essence of this inquiry is whether the testator is exercising her own judgment.

In addition to demonstrating that undue influence was exercised upon the testator, a contestant must also show influence prior to or during the execution of the will. Undue influence exercised after the execution of the will has no bearing whatsoever upon whether the testator disposed of her property according to her own wishes.

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The influence must operate upon the testator at the execution of the will. If the influence did not affect the testator, then such conduct is irrelevant. However, even if the influence occurred many years prior to the execution of the will, but operates upon the testator at the time of execution, it is improper and will render the will null and void.

To determine whether a will reflects the wishes of the testator, the court must examine the indicia or badges of undue influence. Such badges include a physically weak and mentally impaired testator, a will which is unnatural in its provisions, a recently developed and comparatively short period of close relationship between the testator and principal beneficiary, participation by the principal beneficiary in the preparation of the will, possession of the will by the principal beneficiary after it was reduced to writing, efforts by the principal beneficiary to restrict contacts between the testator and the natural objects of his bounty, and absolute control of testator's business affairs. ....

When a contestant seeks to claim that undue influence was employed upon a testator, the burden is upon the contestant to demonstrate the existence and effect of the influence. Merely demonstrating that the opportunity to exert such influence [existed] is not sufficient to sustain the burden of proof. When undue influence and a mentally impaired testator are both alleged and the mental impairment of the testator is proven, the level of undue influence which must be shown is less than would normally be required since the

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