Bewley v. Heady

• Decision Date: 25 September 2020
• Docket Number: NO. 2019-CA-1625-MR,2019-CA-1625-MR
• Citation: 610 S.W.3d 352
• Parties: Susan BEWLEY, Individually and as Executrix of the Estate of Gloria Frances Dorris; George Ensor; Roger Ensor; and William Schwank, Appellants v. Deborah Faye HEADY, Individually and as Administratrix of the Estate of Larry Russell Dorris; Phillip Russell Luallen; and Embry Lynn Luallen, Appellees
• Court: Kentucky Court of Appeals

610 S.W.3d 352

Susan BEWLEY, Individually and as Executrix of the Estate of Gloria Frances Dorris; George Ensor; Roger Ensor; and William Schwank, Appellants

v.Deborah Faye HEADY, Individually and as Administratrix of the Estate of Larry Russell Dorris; Phillip Russell Luallen; and Embry Lynn Luallen, Appellees

NO. 2019-CA-1625-MR

Court of Appeals of Kentucky.

SEPTEMBER 25, 2020; 10:00 A.M.

BRIEF FOR APPELLANTS: S. Coy Travis, Hillview, Kentucky.

BRIEF FOR APPELLEES: Samuel B. Lee, Owensboro, Kentucky.

BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.

OPINION

KRAMER, JUDGE:

The issue before us is whether the Daviess Circuit Court erroneously dismissed the above-captioned Appellants’ claim of "equitable recovery of assets" against Appellees pursuant to Kentucky Rule of Civil Procedure (CR) 12.02(f) for failing to state a claim upon which relief may be granted. We conclude that it did not. Accordingly, we affirm.

Before we turn to the merits of Appellants’ arguments, we note that in contravention of CR 76.12(4)(c)(v), they do not have a preservation statement at the beginning of each argument, and they make no citations to the record whatsoever. CR 76.12(4)(c)(iv) and (v) require ample references to the record 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 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. SeeHallis 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.

Curty , 561 S.W.3d at 377-78 (emphasis added).¹

As in Curty , although we would be well within our discretion to strike the Appellants’ brief, we have chosen not to do so at this time. A cursory caselaw search does not reveal that counsel has previously been warned about deficient briefing. Accordingly, we hereby caution counsel that we may not be so lenient in the future. We now turn to the merits of the case.

When reviewing appeals of CR 12.02(f) dismissals, we take as true the allegations contained in the complaint. In that regard, the relevant allegations of the amended complaint filed by Appellants in this matter are as follows:

BACKGROUND FACTS

1. Gloria Frances Dorris (referenced herein as "Gloria") and Larry Russell Dorris (referenced herein as "Russell") were previously married to one another. During the term of their marriage, Russell became familiar with the loving relationships of Gloria and her children – Susan, George, Roger, and William.

2. Gloria and Russell were divorced by Order of the Ohio Circuit Court on or about July 7, 1998.

3. Since the time of their divorce, Gloria and Russell maintained a close relationship to one another, as evidenced by a number of facts, including, but not limited to, (a) Gloria attended medical appointments with Russell, (b) Gloria and her children being listed as beneficiaries on Russell's life insurance, and (c) Gloria being the first person nominated in Russell's February 15, 2017 Last Will and Testament to serve as his Executrix.

4. On April 27, 2017, Russell broke into Gloria's home in the middle of the night. After entering Gloria's home, Russell murdered Gloria. Russell then took his own life later that same day in Gloria's home.

5. On May 2, 2017, [Susan Bewley] was appointed to serve for Gloria's estate.

6. On June 27, 2017, [Deborah Faye Heady] was appointed to serve for Russell's estate.

7. Russell had certain assets available to him during his lifetime that, upon his death, passed outside the probate process (the "Non-Probatable Assets"). The Non-Probatable Assets could have been accessed, liquidated, and used by Russell during his lifetime for any lawful purpose. Upon his death, the recipients of the Non-Probatable Assets were Deborah, Phillip [Russell Luallen], and Embry [Lynn Luallen].

Based on these allegations, Gloria's estate asserted a wrongful death claim against Russell's estate, and Gloria's children (i.e. , Susan, George, Roger, and William) asserted intentional infliction of emotional distress claims against Russell's estate. And, with respect to Russell's children (i.e. , Deborah, Phillip, and Embry), Appellants collectively asserted the following claim – the validity of which is the sole issue in this appeal:

COUNT VI – EQUITABLE RECOVERY OF ASSETS

22. Plaintiffs restate, reiterate, and incorporate each of the preceding paragraphs of this Amended Complaint as if fully restated herein.

23. Had Russell lived through the trial of this action, the Non-Probatable Assets would have been available to satisfy a judgment against Russell.

24. By operation of Russell's death, the Non-Probatable Assets owned by Russell during his lifetime passed outside the probate process and the control of Administratrix [ (i.e. , Deborah) ].^[2]

25. According to Administratrix, the Non-Probatable Assets owned by Russell which could have been liquidated during his lifetime were as follows: (a) a John Hancock Annuity Account (account number ending in 7); (b) a TD AmeriTrade Account (account number ending in 5); and (c) a TD AmeriTrade Account (account number ending in 0).

26. According to Administratrix, the Non-Probatable Assets were received by Deborah, Phillip, Embry, and Russell's Estate.

27. The Court should exercise its equitable power to make any assets that would have been available to Russell had he lived to face judgment available to satisfy a judgment in this case. This would require Deborah, Phillip, Embry, and Administratrix to disgorge any such assets in the event Plaintiffs prevail in this action and obtain a judgment in excess of the amount available from Russell's probate estate.

In their subsequent motion to dismiss, Russell's children contended Appellants’ "equitable recovery of assets" claim, which appeared to call for the "non-probatable assets" identified in Appellants’ complaint to be placed in a "constructive trust," was not legally recognized in Kentucky.

Responding,³ Appellants argued that equity should not allow a murderer to shield his assets by killing himself. And, that while they had been unable to locate any Kentucky authority supportive of their argument,

"a constructive trust arises when a person entitled to property is under the equitable duty to convey it to another because he would be unjustly enriched if he were permitted to retain it." Kaplon v. Chase , 690 S.W.2d 761, 763 (Ky. App. 1985) (citing Becker v. Neurath , 149 Ky. 421, 149 S.W. 857 (Ky. 1912) ).

Our sister states have also found that situations such as this – where a murderer's family ultimately benefitted from his murder – are prime cases for application of the doctrine of equitable trusts. In an Indiana case in which a husband murdered his wife after she filed for divorce and then killed himself, the Indiana Court of Appeals held that it was appropriate to place a constructive trust on certain assets received by the husband's heirs as a result of his death.

In our view, to allow Robert's heirs to benefit from his wrongdoing would, in effect, confer a benefit upon Robert as a result of his wrongdoing. In addition, we cannot say that it was not Robert's intention to benefit his heirs when he took Donna's life and shortly thereafter took his own.

Heinzman v. Mason , 694 N.E.2d 1164, 1167-1168 (Ind. App. 1998). The Heinzman court went on to quote from a similar case from Montana.

It is argued that the petitioners did not commit the killing, but are the heirs of the one who did the killing. Though this is true, who can say that it was not the intention of the murderer to benefit his heirs when he took the life of his wife followed shortly thereafter by the taking of his own life.

Id. at 1168 (quoting In re Cox’ Estate , 141 Mont. 583, 380 P.2d 584, 588 (Mont. 1963) ).

Like the individual Defendants in the present case, the heirs at issue in Heinzman had not committed any wrong. However, that was not sufficient basis for denying the equitable remedy of a constructive trust.

(Emphasis added.)

Having made their respective arguments, the parties submitted the matter for final adjudication, asking the circuit court to determine whether Appellants’ "equitable recovery of assets" claim was recognized under Kentucky law. In an order of September 23, 2019, the circuit court answered in the negative and,...