RENDERED: JANUARY 14, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0531-MR
STOCK YARDS BANK & TRUST
COMPANY TRUSTEE UNDER THE
WILL OF MAY T. DOTY,
DECEASED; AMY CASSADY;
FRANK BRECKENRIDGE
CHUMLEY, JR.; JILL PUCKETT;
LYNN SHIPLEY; AND MIKE
WALTON APPELLANTS
APPEAL FROM NELSON CIRCUIT COURT
v. HONORABLE CHARLES C. SIMMS, III, JUDGE
ACTION NO. 13-CI-00107
WILLENA T. FERRILL,
INDIVIDUALLY; G&W LAND
ENTERPRISES, LLC, THROUGH
WILLENA T. FERRILL; GUY
FERRILL, III; AND VICTOR CURTIS
FERRILL; AND WILLENA T.
FERRILL AS TRUSTEE OF THE
GUY A. FERRILL AND/OR
WILLENA T. FERRILL TRUST APPELLEES
AND
NO. 2019-CA-0532-MR
WILLENA T. FERRILL,
INDIVIDUALLY; G&W LAND
ENTERPRISES, LLC, THROUGH
WILLENA T. FERRILL; GUY
FERRILL, III; VICTOR CURTIS
FERRILL; AND WILLENA T.
FERRILL AS TRUSTEE OF THE
GUY A. FERRILL AND/OR
WILLENA T. FERRILL TRUST CROSS-APPELLANTS
CROSS-APPEAL FROM NELSON CIRCUIT COURT
v. HONORABLE CHARLES C. SIMMS, III, JUDGE
ACTION NO. 13-CI-00107
STOCK YARDS BANK & TRUST
COMPANY, TRUSTEE FOR JOHN M.
CHUMLEY UNDER THE WILL OF
MAY T. DOTY, DECEASED; AMY
CASSADY; FRANK B. CHUMLEY,
JR.; JILL WALTON PUCKETT; LYNN
SHIPLEY; AND MIKE WALTON CROSS-APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, McNEILL, AND TAYLOR, JUDGES.
McNEILL, JUDGE: On November 16, 1989, May T. Doty (hereafter “Doty”)
died testate. Her last will and testament and codicil were subsequently probated by
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the Jefferson County District Court. Therein, Doty devised and bequeathed, inter
alia, her real property to her niece, Appellee, Willena Ferrill (hereinafter
“Willena”), and her husband, Allison Ferrill, as joint life tenants with right of
survivorship for life to the survivor of them. The will permitted the life tenants to
sell the realty and also admonished them not to commit waste.1 Upon termination
of the life tenancy, the remainder interest would become part of the residuary
estate, which was bequeathed proportionally to other individuals (hereinafter
“Remaindermen”). The Remaindermen’s interests were required to be directed to
separate trusts. The executor and trustee is Stock Yards Bank & Trust (hereinafter
“SYB”).2 Willena passed away on September 14, 2021, while this case was
pending on appeal.3 She was predeceased by her husband, Allison.
On February 25, 2013, SYB filed this action alleging that Willena had
sold the Doty’s Nelson County farm and obtained net sales proceeds of
$913,300.57, which were deposited into a revocable inter vivos trust. SYB’s
complaint was amended to include ten counts alleging waste, fraud, conversion,
1
The will also granted the life tenants the rights to possess and dispose of certain personal
property. However, the primary issue here arises from the sale and transfer of realty.
Nevertheless, the reasoning advanced in this Opinion applies equally to any personal property
included in the life tenancy.
2
SYB and the Remaindermen will be collectively referred to as Appellants.
3
Her notice of death was filed with this Court on October 5, 2021.
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and breach of fiduciary duties. As remedies, Appellants sought the imposition of
constructive trusts, compensatory damages, treble damages, punitive damages, and
attorney fees. The trial court ordered that the Remaindermen be joined as parties.
After extensive discovery, the parties filed motions for summary judgment. In an
order dated September 5, 2018, the court granted partial summary judgment for
both parties, notably holding that several of Appellants’ claims were barred by the
statutes of limitations. The court subsequently issued an order modifying its
previous order. The issues remaining for trial were subsequently disposed of by an
agreed order, which was final and appealable. Appellants appealed to this Court as
a matter of right and Appellees cross-appealed. Appellants argue that the trial
court erroneously concluded that several of their claims were barred by the statutes
of limitations. For the following reasons, we agree.
STANDARD OF REVIEW
A motion for summary judgment should be granted “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR4 56.03. The Kentucky Supreme Court further explained this summary
judgment standard in Steelvest, Inc. v. Scansteel Service Center, Inc.:
4
Kentucky Rules of Civil Procedure.
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While it has been recognized that summary judgment is
designed to expedite the disposition of cases and avoid
unnecessary trials when no genuine issues of material
fact are raised, . . . this Court has also repeatedly
admonished that the rule is to be cautiously applied. The
record must be viewed in a light most favorable to the
party opposing the motion for summary judgment and all
doubts are to be resolved in his favor. Even though a
trial court may believe the party opposing the motion
may not succeed at trial, it should not render a summary
judgment if there is any issue of material fact. The trial
judge must examine the evidence, not to decide any issue
of fact, but to discover if a real issue exists. It clearly is
not the purpose of the summary judgment rule, as we
have often declared, to cut litigants off from their right of
trial if they have issues to try.
807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). “Because no factual issues
are involved and only a legal issue is before the court on the motion for summary
judgment, we do not defer to the trial court and our review is de novo.” Univ. of
Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013) (citation omitted). With
these standards in mind, we turn to the applicable law and the facts of the present
case.
ANALYSIS
The trial court engaged in an exhaustive analysis of the facts of the
present case and applied the statutes of limitations to each claim. The court
provided extensive and precise explanations as to why each claim that was barred
by the statutes of limitations due to SYB’s having notice on multiple occasions that
Willena was likely committing fraud or waste, etc., due to, among other things,
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SYB’s knowledge that Willena was depleting the proceeds obtained by the sale of
the realty. As previously stated, this resulted in Appellants being barred from
recovering under several of their claims and, therefore, also being barred from
recovering their respective portions of the residuary estate to which they were
entitled. In Superior Oil Corporation v. Alcorn, Kentucky’s highest Court at the
time observed the following:
Until the termination of the life estate no right of entry or
right of possession exists in favor of the reversioner.
Until the right of entry and the right of possession to the
property accrue, the statute of limitations does not begin
to run against an action for the possession.
...
[Therefore,] [t]he limitation does not begin to run against
him until the termination of the life estate. Inasmuch as
there was no order of court disposing of the case referred
to, no effect can be given to its mere filing.
242 Ky. 814, 47 S.W.2d 973, 980 (1930) (internal quotation marks omitted).
Relying upon Superior Oil Corporation, a recent United States District Court case
has aptly summarized and applied the relevant Kentucky law that is dispositive of
the present issue:
[I]n the case of a sale of the entire property, the tenant for
life and the remaindermen take the same interests in the
proceeds, respectively, as they had in the property, the
income going to the life tenant and the principal at his
death to the remaindermen. Holman v. Holman, 77 P.2d
515, 520 (Cal. Ct. App. 1938) (quoting 17 R.C.L. p. 646,
-6-
§ 38) (internal quotation marks omitted); see also 31
C.J.S. § 64.
...
Absent evidence that the life estate holder has injured the
corpus of the estate or otherwise acted in derogation of
the remaindermen’s interests, the remaindermen
generally have no cause of action to pursue until the
death of the life estate holder. See, e.g., Brittenum v.
Cunningham, 220 S.W.2d 100, 102 (Ky. 1949) (citing 33
Am. Jur., Life Estates, Remainders, Etc. § 187); 31 C.J.S.
Estates § 118. In fact, it is presumed that the life estate
holder’s possession of the estate is not adverse to the
remaindermen’s interests. See Wheeler, 253 S.W.2d at
380 (quoting 31 C.J.S. Estates § 66); 31 C.J.S. Estates §
78.
...
The remaindermen’s right to seek immediate possession
of the estate may be accelerated, however, if the life
estate holder repudiates the life estate and claims some
other interest or title (such as a fee simple title) in the
property. Superior Oil Corp., v. Alcorn, 47 S.W.2d 973,
986 (Ky. 1930). If the life estate holder does so, “the
maturity of the remainder is accelerated, and the
remainderman becomes just as fully entitled to the
immediate possession as if the life tenant has died.” Id.
...
Under Kentucky law, repudiation of a life estate
arrangement requires “an unequivocal act by the life
tenant as would destroy his claim as a life tenant, so that
he could not thereafter assert it.” Superior Oil Corp., 47
S.W.2d at 986. In the present case, a reasonable jury
could review the evidence of record and conclude that
Macky Bell did not unequivocally notify her sons that
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she was claiming a fee simple interest in the Family Farm
sale proceeds.
Bell v. Jefferson, No. 5:18-CV-32-CHB, 2021 WL 1233457, at *6-10 (E.D. Ky.
Mar. 31, 2021).5 In consideration of Superior Oil Corporation, the statute of
limitations did not begin to run against the Remaindermen in the present case until
September 14, 2021, the date of Willena’s death, unless it is demonstrated that she
“unequivocally repudiated” the life estate. Nothing in the record cited to this Court
would satisfy that difficult standard. We have also not discovered any controlling
authority that would foreclose the general rule that the statutes of limitations do not
run against remaindermen until the death of the life estate holder from applying
equally to SYB in this particular instance. Therefore, the trial court erred in
dismissing any claim against Appellants as being barred by statutes of limitations.
In their cross-appeal, Appellees argue that the trial court failed to
consider laches. This issue was addressed in Plaza Condominium Association, Inc.
v. Wellington Corporation, as follows:
It is not necessary to engage in an extensive review of
the doctrine of laches. It is sufficient to say that
this doctrine serves to bar claims in circumstances where
a party engages in unreasonable delay to the prejudice of
others rendering it inequitable to allow that party to
reverse a previous course of action. See Kendall v.
5
We do not cite this case as controlling authority. Rather, it is employed as a recent and
accurate recitation of the relevant law. There are several published decisions that recite these
same legal standards. See, e.g., Gee v. Brown, 144 S.W.3d 844, 846-47 (Ky. App. 2004), and
Miracle v. Miracle, 86 S.W.2d 536, 539 (Ky. 1935).
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Mussman, Ky., 247 S.W.2d 502, 503-04 (1952). Prior to
the expiration of the limitation period, however, one
claiming a bar based on delay must also show prejudice.
920 S.W.2d 51, 54 (Ky. 1996). Contrary to Appellees’ assertion, the trial court did
consider laches and found it inapplicable. In any event, Appellees have failed to
demonstrate prejudice. Therefore, Appellees have not satisfied their burden. In
their cross-appeal, Appellees also allege that “there also exists at least a factual
issue about the defense of advice of counsel.” However, it is unclear whether this
issue was properly preserved before the trial court and Appellees have given short
shrift to this argument in their briefs on appeal. Furthermore, the authority cited in
support of this alleged defense are malicious prosecution cases which appear to be
the context in which this defense is traditionally applied. See, e.g., Garcia v.
Whitaker, 400 S.W.3d 270, 275 (Ky. 2013) (citation omitted) (“[t]he advice of
counsel defense is in actual effect another method of proving probable cause.”). In
any event, we cannot say that reversal is required. Any additional issues raised by
Appellees in their cross-appeal are either moot, unsupported by the record, or
underdeveloped for our review, and we need not address them further.
CONCLUSION
For the foregoing reasons, we hereby affirm the decision of the
Nelson Circuit Court in part, reverse in part, and remand this case for further
proceedings consistent with this Opinion. To clarify, we are reversing the trial
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court’s order granting summary judgment in favor of Appellees, as modified in its
December 14, 2018 order concerning any claims dismissed as untimely filed under
the statutes of limitations. We affirm the trial court’s decision as to all other issues
and do not disturb any issues disposed of by the parties’ agreed order entered on
March 4, 2019.
ALL CONCUR.
BRIEFS FOR APPELLANTS/ BRIEF FOR APPELLEES/
CROSS APPELLEES: CROSS-APPELLANTS:
David Tachau Matthew C. Hess
Louisville, Kentucky Elizabethtown, Kentucky
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