Opinion
NO. 2017-CA-000303-MR
04-13-2018
LESLIE QUALLS AND JASON TATE APPELLANTS v. WANDA SUE WOODS; PEGGY CARTER; EDWIN HOOVER; EMMA G. HOOVER; LESTER BRUBAKER; AND RUTH BRUBAKER APPELLEES
BRIEFS AND ORAL ARGUMENT FOR APPELLANTS: Michael C. Bratcher Bowling Green, Kentucky BRIEF FOR APPELLEE: David M. Schuler, Jr. Justin P. Gooch Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE JANET J. CROCKER, JUDGE
ACTION NO. 14-CI-00276 OPINION
AFFIRMING
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BEFORE: DIXON, MAZE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Leslie Qualls and Jason Tate bring this appeal from a January 17, 2017, opinion and order of the Allen Circuit Court granting summary judgment for appellees. We affirm.
We begin by explaining the familial relationship between the parties that are relevant to disposition of the appeal. Wanda Sue Woods was married to J.D. Woods, and they had two daughters, Peggy Carter and Patricia Tate Shouse. Patricia, in turn, had two children, Leslie Qualls and Jason Tate.
On July 19, 2001, Wanda and J.D. executed a "Last Will and Testament" (2001 Will). The 2001 Will was a single instrument and served as both Wanda and J.D.'s combined Will. The largest devise consisted of some 198 acres of real property owned solely by J.D. J.D. passed away on February 7, 2007, and the 2001 Will was probated in the Allen District Court (No. 07-P-00042).
Subsequently, by deed dated December 20, 2007, Wanda conveyed 130 acres of the 198 acres of real property to Edwin Hoover, Emma Hoover, Lester Brubaker, and Ruth Brubaker. Wanda received $351,000 in consideration for the real property transfer. Then, on January 13, 2009, Wanda executed a Last Will and Testament, wherein she expressly revoked any previous wills. Wanda eventually conveyed the remaining 68 acres of real property to her daughter, Peggy Carter and her husband by deed dated August 14, 2009 (2009 Deed). There was no monetary consideration for this conveyance as Wanda gifted the real property to Peggy and her husband.
On August 13, 2014, and March 18, 2015, Leslie and Jason filed a complaint and amended complaint in the Allen Circuit Court against, inter alios, Wanda and Peggy. Therein, Leslie and Jason sought a declaration of rights that they and Peggy were devised vested remainders in the 198 acres of real property under the terms of the 2001 Will, and Wanda was only devised a life estate therein. Additionally, Leslie and Jason asserted that Peggy and/or her husband exerted undue influence upon Wanda to convey by gift the 68 acres of real property and sought to void the 2009 Deed.
Wanda and Peggy filed a motion to dismiss for failure to state a claim upon which relief could be granted pursuant to Kentucky Rules of Civil Procedure (CR) 12.02. Wanda and Peggy argued that Wanda was devised the 198 acres of real property in fee simple absolute under the plain terms of the 2001 Will. Additionally, Wanda and Peggy maintained that neither Leslie nor Jason has standing to bring a claim for undue influence. And, Wanda and Peggy pointed out that Wanda executed a new will in 2009 and that neither Leslie nor Jason were beneficiaries thereunder.
By opinion and order entered April 28, 2015 (2015 order), the circuit court concluded that Wanda was devised the 198 acres of real property in fee simple absolute and that Leslie and Jason were not devised a vested remainder under the terms of the 2001 Will. Thus, the circuit court dismissed this claim. As to the claim of undue influence, the circuit court denied dismissal as premature. The circuit court included complete CR 54.02 language in the 2015 order; however, no appeal was taken therefrom.
On May 9, 2015, Wanda and Peggy filed an answer. Then, the case was dormant for some fourteen months until a notice to dismiss for lack of prosecution under CR 77.02(2) was sent to the parties on July 26, 2016. As a result, on August 15, 2016, a notice to take the deposition of Wanda was filed by Leslie and Jason. And, on September 14, 2016, Leslie and Jason filed a motion for reconsideration of the 2015 order, but no specific rule of procedure was referenced in the motion. On the same day, Wanda and Peggy filed a motion for summary judgment.
By opinion and order entered January 17, 2017, the circuit court granted Wanda and Peggy's motion for summary judgment and denied Leslie and Jason's motion for reconsideration. In particular, the circuit court reasoned:
Courts will consider a host of factors when considering a claim of undue influence. As summarized in Kitts v. Kitts, 315 S.W.2d 617 (Ky. 1958), they are (1) advanced age; (2) the preferment of one child to the exclusion of the others, creating an inequitable and disproportionate division of the estate; (3) the complete lack of consideration; (4) the concealment of the transaction from the other children; and (5) secret communications between the parent and the beneficiary. Id. at 618. 1 Kentucky Practice Probate Practice and Procedure § 545 states in pertinent part as follows:
In defining undue influence the courts refer both to the nature of the influence and to its extent. As to its nature, the term "undue" denotes a sway over the mind of the testator which is not proper, such as that obtained by flattery, excessive importunity or threats. In this respect undue influence is not distantly related to fraud and must be contrasted with permissible influences, such as that achieved by appeals to his reason, or by acts of kindness or merely from being a natural object of the testator's bounty. The mere opportunity to subject the testator to undue influence must not be confused with the actual exercise of undue influence.
[internal citations omitted].
Although ordinarily, the one alleging fraud and undue influence has the burden of proof, that burden shifts to the defendant where there is a confidential relationship, i.e. parent and child. Hall v. Newman, 128 S.W.2d 201, 2016 (Ky. 1939). In the case before this Court, Wanda deposed:
Q. Did you and Peggy have any discussions prior to the execution of the 2009 deed?
A. No.
Q. Did she ask you whether she could have the farm?
A. No. . . .
Q. In August of 2009, you conveyed the entire farm to Peggy, is that correct?
A. Yes.
Q. Who came up that idea?
A. I did. . . .
Q. Did Peggy accompany you to the lawyer's office to execute the deed?
A. I don't remember. I was driving back then. . . .
Q. Did Roger have anything to do with this deed other than receiving the farm property?
A. No.
Q. Did you and he ever talk about conveying the property? . . . Did you and Mr. Roger Carter ever have a discussion about conveying the property to Roger and Peggy?
A. No. . . .
Q. Did Peggy have you do . . . Was Peggy involved in any way, shape or form in that deed?
A. No. She didn't even know nothing about going and making that deed. I went by myself.
In their response to the motion for summary judgment, Leslie and Jason tendered the affidavit of their mother, Patricia Shouse. Her affidavit does not rebut any of the afore-recited sworn testimony and admits that she has "been the one [daughter] out of favor since 'leaving my family' and moving to Tennessee in 2001." The facts and circumstances of this case are somewhat analogous to that presented in an unpublished decision, Porter v. Cathey, 2012 WL 2471107, No. 2011-CA-000398-MR (Ky. Ct. App. June 29, 2012). In this case, the mother, ("Porter"), made her daughter, ("Cathey"), the beneficiary of a trust and deeded certain property to her and her husband out of "love and affection". She subsequently claimed that she was forced into making the transfers after they were discovered by her other children. The trial court granted summary judgment in favor of Cathey and the Court of Appeals affirmed concluding as follows:
Close reading of Porter's own deposition is essential to resolution of this issue. She testified: Cathey was not involved in Porter contacting Berry [the trust attorney] to create the trust that she and Roger [Porter's husband] executed about a month before Roger's death; it was Porter's idea to give Cathey and her husband the small brick house and twenty acres; Porter named Cathey as the sole beneficiary of the trust because she wanted to; Porter deeded Cathey the house and twenty acres because she wanted to; Cathey never insisted Porter deed the farm to her; Porter never demanded Cathey return the twenty acres nor release
the remainder interest in the farm; and, Porter deeded the farm to Cathey after discussions about the Stratton litigation [involving a leasehold]. Porter repeatedly commented on her love for Cathey and her husband and their kindness to her. Porter's own words simply do not support her claims of undue influence, fraud and elder abuse.
January 17, 2017, opinion and order at 11-13. The court included complete CR 54.02 language in its opinion and order. This appeal follows.
At *7.
Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that the motion of the defendants, Wanda Sue Woods and Peggy Carter, for summary judgment on the plaintiffs' claim(s) of undue influence in the making of the 2009 deed from Wanda to Peggy is SUSTA[I]NED and the plaintiffs' claim(s) is DISMISSED WITH PREJUDICE.
Leslie and Jason initially contend the circuit court erred by determining that Wanda was devised the 198 acres of real property in fee simple absolute under the 2001 Will. Particularly, Leslie and Jason maintain that Wanda was only devised a life estate and that they and Peggy were devised vested remainders in said real property pursuant to the 2001 Will.
This claim was raised in the complaint and in the amended complaint as Count I and was adjudicated by the circuit court in its 2015 order. And, the 2015 order included complete CR 54.02 finality language. However, Leslie and Jason did not file an appeal from the 2015 order.
Under CR 54.01, a final and appealable judgment adjudicates all the rights of all the parties. In an action involving multiple claims or multiple parties, CR 54.02 permits the court to transform an otherwise interlocutory order into a final and appealable order in certain circumstances. Relevant to this appeal, a circuit court may bestow finality upon an order that completely and conclusively adjudicates a claim as to the parties. Watson v. Best Fin. Servs., Inc., 245 S.W.3d 722 (Ky. 2008). To do so, the circuit court must include both CR 54.02 recitations in the order: (1) this is a final order, and (2) there being no just cause for delay. Hale v. Deaton, 528 S.W.2d 719 (Ky. 1975).
It is undisputed that this action involves multiple claims and multiple parties. Under the plain terms of the 2015 order, the circuit court completely and conclusively adjudicated Leslie and Jason's claim that they possessed a vested remainder in the 198 acres of real property per the 2001 Will. And, the circuit court included both CR 54.02 recitations in the 2015 order. Consequently, we believe that the 2015 order was final and appealable per CR 54.02. Because Leslie and Jason failed to timely file a notice of appeal from the 2015 order, we are without jurisdiction to address the claim that Leslie and Jason possessed a vested remainder in the 198 acres of real property.
Leslie and Jason next argue that the circuit court erroneously rendered summary judgment dismissing their claim of undue influence. Leslie and Jason maintain that Peggy unduly influenced Wanda to gift Peggy and her husband the 68 acres of real property by deed dated August 14, 2009. Leslie and Jason point to circumstantial proof of undue influence, including Wanda's preference of Peggy over Patricia, Wanda gifted the real property to Peggy, and other family members were not informed of the conveyance. For the following reasons, we conclude that the circuit court did not err by rendering summary judgment.
By opinion and order entered January 17, 2017, the circuit court granted Wanda Sue Woods and Peggy Carter's motion for summary judgment and dismissed the undue influence claim. Leslie Qualls and Jason Tate filed a timely notice of appeal from the January 17, 2017, opinion and order. We, thus, possess jurisdiction to review this claim. --------
Summary judgment is proper where there exists no material issue of fact and movant is entitled to judgment as a matter of law. CR 56; Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). All facts and inferences are viewed in light of the nonmoving party. Id. Our review proceeds accordingly.
In Kentucky, the law is well-established that undue influence "must be of sufficient force to destroy the free agency of the grantor and to constrain him to do, against his will, that which he would otherwise have refused to do . . . ." Riddell v. Pace, 271 S.W.2d 31, 33-34 (Ky. 1954). And, the following factors have been considered indicia of undue influence:
(1) the advanced age of the father; (2) the preferment of one child to the exclusion of the others, creating an inequitable and disproportionate division of the estate; (3) the complete lack of consideration; (4) the concealment of the transaction from the other children; and (5) the secret conversation between Homer and his father, followed the very next day by a joint trip to the savings and loan office.Kitts v. Kitts, 315 S.W.2d 617, 618 (Ky. 1958).
Leslie and Jason admit to offering no direct proof of undue influence in relation to the 2009 Deed. Instead, they allege that circumstantial proof exists of undue influence, including that Peggy was preferred over Patricia, the lack of consideration for the transfer of the property, and the failure of either Wanda or Peggy to inform the family of the conveyance.
The facts in this case stand in stark contrast to most cases involving undue influence. In this case, the grantor (Wanda) is not challenging the validity of the deed, and the grantor (Wanda) is still alive. Likewise, there is absolutely no suggestion in the record that Wanda was of unsound mind or suffering from some disability at the time of the transfer. Therefore, Wanda can testify directly regarding any alleged influence of Peggy and as to the reasons or motivation for the conveyance. In Wanda's deposition, she vehemently denied being influenced at all by Peggy. In fact, she stated that she alone made the decision to gift the 68 acres of real property to Peggy. Additionally, she admitted that she favored Peggy and disfavored Patricia because Patricia moved away. While Leslie and Jason filed Patricia's affidavit, it did not contradict Wanda's depositional testimony, and, in fact, they failed to offer any proof contradicting Wanda's sworn statements.
Accordingly, we conclude that the circuit court properly rendered summary judgment upon Leslie and Jason's undue influence claim as no material issue of fact existed. Moreover, we harbor grave doubt as to whether Leslie and Jason have standing to seek a declaration that the 2009 Deed was void because of undue influence. As the 2015 order is final and is law of the case, neither Leslie nor Jason possess any interest in the 68 acres of real property that was conveyed in the 2009 Deed.
For the foregoing reasons, the opinion and order of the Allen Circuit Court is affirmed.
ALL CONCUR. BRIEFS AND ORAL ARGUMENT
FOR APPELLANTS: Michael C. Bratcher
Bowling Green, Kentucky BRIEF FOR APPELLEE: David M. Schuler, Jr.
Justin P. Gooch
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLEE: Justin P. Gooch
Louisville, Kentucky