RENDERED: SEPTEMBER 25, 2020; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1625-MR
SUSAN BEWLEY, INDIVIDUALLY
AND AS EXECUTRIX OF THE ESTATE
OF GLORIA FRANCES DORRIS;
GEORGE ENSOR; ROGER ENSOR;
AND WILLIAM SCHWANK APPELLANTS
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 17-CI-01267
DEBORAH FAYE HEADY,
INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE
OF LARRY RUSSELL DORRIS;
PHILLIP RUSSELL LUALLEN;
AND EMBRY LYNN LUALLEN APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.
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
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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.
Curty, 561 S.W.3d at 377-78 (emphasis added).1
1
Regarding the ongoing problem of noncompliant briefing, we also direct counsel’s attention to
Clark v. Workman, 604 S.W.3d 616 (Ky. App. 2020).
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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,
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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.
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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.
2
There is no dispute that the “non-probatable assets” at issue in this matter, identified in
Paragraph 25 of Appellants’ complaint, were subject to valid transfer-on-death designations and,
thus, effectively avoided probate.
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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,
3
Appellants set forth this argument in their September 10, 2019 “response to motion to dismiss.”
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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, accordingly, dismissed Appellants’ suit to that extent.4 This appeal followed.
We review dismissals under CR 12.02(f) de novo. Morgan &
Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d 599, 601 (Ky. 2011), overruled
on other grounds by Maggard v. Kinney, 576 S.W.3d 559 (Ky. 2019). CR 12.02(f)
is designed to test the sufficiency of a complaint. Pike v. George, 434 S.W.2d 626,
627 (Ky. 1968). It is proper to grant a CR 12.02(f) dismissal motion if:
4
The remainder of Appellants’ claims remain pending. See CR 54.02 (permitting the trial court
to make an otherwise interlocutory order – e.g., one adjudicating less than all claims between all
litigating parties – final and appealable in certain circumstances).
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it appears the pleading party would not be entitled to
relief under any set of facts which could be proved in
support of his claim. . . . [T]he question is purely a
matter of law. Stated another way, the court must ask if
the facts alleged in the complaint can be proved, would
the plaintiff be entitled to relief?
James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002) (internal quotation
marks and citation omitted). For purposes of a CR 12.02(f) motion, this Court, like
the circuit court, must accept as true the plaintiff’s factual allegations and draw all
reasonable inferences in the plaintiff’s favor. Pike, 434 S.W.2d at 627.
In their brief before this Court, Appellants repeat the argument they
made below regarding the veracity of their “equitable recovery of assets” claim.
Simply put, Appellants’ “claim” is for a constructive trust to be impressed upon the
vested property interests of an alleged murderer.
With that said, there are at least three problems. First, the imposition
of a “constructive trust” is not a claim. It is merely a remedy. Middleton v.
Beasley, 186 Ky. 252, 216 S.W. 591, 592 (1919). To explain:
When legal title to property has been acquired or held
under such circumstances that the holder of that legal title
may not in good conscience retain the beneficial interest,
equity converts him into a trustee. Middleton v. Beasley,
186 Ky. 252, 216 S.W. 591, 592 (1919) (citations
omitted). Constructive trusts are created by the courts
“in respect of property which has been acquired by fraud,
or where, though acquired originally without fraud, it is
against equity that it should be retained by him who
holds it.” Hull v. Simon, 278 Ky. 442, 128 S.W.2d 954,
958 (1939); see also O’Bryan v. Bickett, 419 S.W.2d 726,
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728 (Ky. 1967). “The fraud may occur in any form of
unconscionable conduct; taking advantage of one’s
weaknesses or necessities, or in any way violating equity
in good conscience.” Kaplon v. Chase, 690 S.W.2d 761,
763 (Ky. App. 1985) (emphasis added), citing St. Louis
and S.F.R. Co. v. Spiller, 274 U.S. 304, 47 S.Ct. 635, 71
L.Ed. 1060 (1927). In fact, a court exercising its
equitable power may impress a constructive trust upon
one who obtains legal title, “not only by fraud or by
violation of confidence or of fiduciary relationship, but in
any other unconscientious manner, so that he cannot
equitably retain the property which really belongs to
another[.]” Scott v. Scott, 183 Ky. 604, 210 S.W. 175,
176 (1919) (emphasis added). Similarly we have said
that a constructive trust may be imposed where title is
taken under “circumstances of circumvention [or]
imposition[.]” Middleton, 216 S.W. at 592.
Keeney v. Keeney, 223 S.W.3d 843, 849 (Ky. App. 2007).
Second, Appellants have asserted no viable claim that could serve as a
basis for imposing a constructive trust. As indicated above, constructive trusts
may be imposed as a remedy associated with claims of fraud, breach of confidence,
breach of fiduciary duty, or unjust enrichment. But, throughout their pleadings and
in their appellate brief, Appellants conceded Russell’s children “had not committed
any wrong.” Appellants have never argued Russell’s children acquired the “non-
probatable assets” through any “unconscientious manner” involving fraud, breach
of confidence, or breach of fiduciary duty.
Moreover, while Appellants asserted (in their response to the Russell
children’s motion to dismiss) that the Russell children would be “unjustly
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enriched” if allowed to retain the “non-probatable assets,” the circumstances
presented in this matter would fail to support any claim of unjust enrichment. To
explain:
In order for a party to prevail under the theory of unjust
enrichment, it must prove three elements: “(1) benefit
conferred upon defendant at plaintiffs [sic] expense; (2) a
resulting appreciation of benefit by defendant; and (3)
inequitable retention of benefit without payment for its
value.”
Furlong Dev. Co., LLC v. Georgetown-Scott Cty. Planning & Zoning Comm’n, 504
S.W.3d 34, 39-40 (Ky. 2016) (quoting Jones v. Sparks, 297 S.W.3d 73, 78 (Ky.
App. 2009)).
With respect to the first of these elements, “[a] slayer’s acquisition,
enlargement, or accelerated possession of an interest in property as a result of the
victim’s death constitutes unjust enrichment that the slayer will not be allowed to
retain.” See RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT §
45 (2011); see also Cowan v. Pleasant, 263 S.W.2d 494, 495 (Ky. 1953)5
5
The Cowan Court recognized that Kentucky’s policy against permitting an individual from
profiting from murder is largely reflected in Kentucky Revised Statute (KRS) 381.280, which
provides in relevant part:
(1) If the husband, wife, heir-at-law, beneficiary under a will, joint
tenant with the right of survivorship or the beneficiary under any
insurance policy takes the life of the decedent or victimizes the
decedent by the commission of any felony under KRS Chapter 209
and in either circumstance is convicted therefor, the person so
convicted forfeits all interest in and to the property of the decedent,
including any interest he or she would receive as surviving joint
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(explaining that the heirs of a joint tenant who murdered his co-tenant and then
committed suicide could only inherit the murderer’s share of the property – and not
any interest the murderer would otherwise have acquired through a survivorship
interest in the property – because “[i]t is axiomatic that a wrongdoer should not be
permitted to profit from his wrongful act”).
Here, the first of these elements is absent. Russell’s children were not
enriched at Russell’s expense; after all, Russell had chosen them as his transfer-on-
death beneficiaries. Russell’s children were not enriched at Russell’s estate’s
expense because, as Appellants had alleged, Russell’s estate never had any interest
or expectancy in the “non-probatable assets.” More to the point, Russell’s children
were not enriched at Gloria’s expense because she never had any interest in the
non-probatable assets and because those assets were never any form of profit from
Gloria’s death.
tenant, and the property interest or insurable interest so forfeited
descends to the decedent’s other heirs-at-law, beneficiaries, or joint
tenants, unless otherwise disposed of by the decedent. A judge
sentencing a person for a [sic] offense that triggers a forfeiture
under this section shall inform the defendant of the provisions of
this section at sentencing.
(Emphasis added.) Obviously, this statute cannot apply here, as it did not apply in Cowan,
because there was no convicted murderer in either instance; suicide prevented any such
determination. From a broad public policy standpoint, however, this statute is notable for what it
states about the kind of property that a murderer forfeits – namely, property the murderer would
not have received, but for the killing. Likewise, Cowan is notable because, despite the absence
of any murder conviction in that matter, the Court nevertheless followed the public policy
embodied in the statute.
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Finally, we turn to the third problem with Appellants’ “claim” to place
a constructive trust upon the “non-probatable assets.” As indicated, our Courts
have specified that the purpose of a constructive trust is to prevent an individual
from retaining property he or she acquired in an unconscientious manner, “which
really belongs to another[.]” Scott v. Scott, 183 Ky. 604, 210 S.W. 175, 176
(1919) (emphasis added) (citation omitted). In other words, constructive trusts are
applied to property that a wrongdoer acquired, enlarged, or accelerated his
possession of as a result of his wrongdoing, and at the expense of a victim.6
“[R]ules of equity[,]” however, “do not extend so far as to deprive the killer of his
own property.”7
6
The caselaw Appellants discovered in Indiana and Montana is also consistent with this
principle. Specifically, in Heinzman v. Mason, 694 N.E.2d 1164, 1167 (Ind. Ct. App. 1998), the
Indiana Court of Appeals held that “even in the absence of statutory authority, a court may
properly impose a constructive trust upon any property acquired by an individual or his estate
when the individual wrongfully kills his spouse and then commits suicide before he can be
charged or convicted of causing the death.” (Emphasis added.) There, the property acquired
consisted of life insurance proceeds. The killer was the sole beneficiary of the insurance policy,
the victim was the insured, and the court held that because the killer’s wrongdoing caused the
insured’s death and put him in a position to benefit from that death, neither he nor his estate was
eligible to receive the proceeds. Id. at 1166, 1167.
Similarly, Cox was a murder-suicide case involving the disposition of real property held
jointly by the deceased husband and wife. The court concluded that inherent in the Montana
statute dealing with joint property was the idea that the felonious killer should not benefit. Thus,
while it did allow the heirs of the murderer to inherit the murderer’s vested interest in the real
property, it did not allow the heirs of the murderer to inherit the victim’s interest. See In re Cox’
Estate, 380 P.2d 584 (Mont. 1963).
7
See Estate of Charlotte Foleno v. Estate of Billy Foleno, 772 N.E.2d 490, 496 (Ind. Ct. App.
2002). Although it is beyond the necessary scope of this case, we add that Foleno also provides
a robust historical analysis of the now-outdated common law doctrines of attainder, forfeiture,
corruption of blood, and escheat, the disfavor of which largely accounts for why modern slayer
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Here, to once again belabor the point, Russell did not acquire, enlarge,
or accelerate his possession of the John Hancock annuity account or TD
AmeriTrade accounts at issue in this matter as the result of any alleged
wrongdoing, or at the expense of any victim; rather, he already owned those assets.
Gloria’s death had no bearing upon his ownership, or his children’s subsequent
ownership.
Considering the foregoing, the Daviess Circuit Court did not err in
dismissing Appellants’ “equitable recovery of assets” claim. We, therefore,
AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANTS: BRIEF FOR APPELLEES:
S. Coy Travis Samuel B. Lee
Hillview, Kentucky Owensboro, Kentucky
statutes and equitable principles merely prohibit a killer from profiting from murder and do not
force a killer to forfeit their own property. See id. at 493-96.
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