Opinion
NO. 2018-CA-000319-MR
03-06-2020
WARNER FERTILIZER COMPANY APPELLANT v. CHRISTOPHER KYLE LEE AND UNKNOWN SPOUSE; MARSHALL TAYLOR; GAYLE DOWELL AND UNKNOWN SPOUSE; SUSAN SEABORNE WILHOIT AND UNKNOWN SPOUSE; WHITNEY LEE PAYTON AND UNKNOWN SPOUSE; TAYLOR COUNTY, KENTUCKY; AND CITY OF CAMPBELLSVILLE, KENTUCKY APPELLEES
BRIEFS FOR APPELLANT: R. Aaron Hostettler London, Kentucky BRIEF FOR APPELLEE: Jeremy A. Wood Campbellsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 16-CI-00160 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KRAMER, AND L. THOMPSON, JUDGES. ACREE, JUDGE: Appellant, Warner Fertilizer Company, appeals the August 25, 2017, order of the Taylor Circuit Court denying its motion for order of sale of property at 150 Keltner Road to satisfy a lien against Appellee, Christopher Kyle Lee, who has a one-sixth remainder interest in the named property. After careful review, we affirm.
The Court elected not to publish this opinion. Either party may, by filing a timely petition for rehearing or modification under CR 76.32(1)(a), move the Court of Appeals to publish the opinion notwithstanding the Court's designation, "Not To Be Published." Commonwealth v. Crider and Rogers, Inc., 929 S.W.2d 179, 180 (Ky. 1996). The petition should state the reasons for urging publication.
FACTS AND PROCEDURE
Warner obtained a judgment against Lee, on August 25, 2016, in the amount of $59,232.57 plus 2% interest per month beginning July 31, 2013. On November 2, 2016, Warner recorded a judgment lien of record against Lee in the Taylor County Clerk's office.
On August 24, 2016, one day before Warner received a judgment against Lee, Lee's grandmother, Zana Verniece Taylor died. At her death, Zana owned real property at 150 Keltner Road in Taylor County. Zana's surviving widow, Marshall Taylor, was Zana's second husband and prior to their marriage executed a prenuptial agreement waiving any curtesy interest he might have otherwise had in the 150 Keltner Road property. Zana died testate and her will was probated in Taylor District Court. Under Zana's last will and testament, Marshall was given a life estate in the real property at 150 Keltner Road and six named beneficiaries, including Lee, were each conveyed a vested one-sixth remainder in the same.
On January 13, 2017, Warner filed an amended complaint with the circuit court and sought to foreclose on Lee's one-sixth remainder interest by judicial sale of the real property at 150 Keltner Road pursuant to KRS 426.190. Warner wanted to liquidate Lee's one-sixth remainder interest in order to satisfy its lien. On February 12, 2018, the circuit court denied Warner's amended complaint. Warner immediately appealed.
Kentucky Revised Statutes.
STANDARD OF REVIEW
When a trial court holds a bench trial and serves as the finder of fact, those findings of fact shall not be set aside unless clearly erroneous. CR 52.01; Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Findings of fact are clearly erroneous if they are not supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336 (Ky. 2003).
Kentucky Rules of Civil Procedure. --------
Evidence is substantial if, "when taken alone, or in the light of all the evidence, it has sufficient probative value to induce conviction in the minds of reasonable [people]." Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky. App. 1999) (citation omitted). Even if this Court were to reach a contrary conclusion, we will not disturb the trial court's findings that are supported by substantial evidence.
The trial court's conclusions of law are subject to an independent de novo review. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky. App. 2005). Additionally, the trial court's construction of statutes is entitled to no deference on appeal because statutory construction is a matter of law subject to a de novo standard of review. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998).
ANALYSIS
Warner argues that the circuit court's failure to take and sell the 150 Keltner Road property to satisfy its lien against Lee did not properly follow KRS 426.190. We disagree.
KRS 426.190 provides that "[l]and to which the defendant has a legal or equitable title . . . or in which the defendant has a contingent interest or a contingent remainder or a defeasible fee, may be taken and sold under execution." Coleman Am. Companies, Inc. v. Leasure, No. 2007-CA-002310-MR, 2008 WL 5191463, at *1 (Ky. App. Dec. 12, 2008) (emphasis added) (quoting KRS 426.190).
The circuit court made the following findings of fact and conclusions of law:
All of the Defendant property owners object to the proposed sale. The sale would materially impair the value of the land, as well as the value of the remaindermen's interests. The proposed sale is currently precluded by the life estate of Marshall Taylor. It is inequitable to the life estate and the remaindermen to allow the sale of the property at this time.(Taylor Circuit Court Order, August 25, 2017, p. 2 (paragraph numbers omitted)).
Warner's assertion that the Keltner Road property should be sold to satisfy its lien against Lee is the equivalent of saying Lee's remainderman interest has priority over Marshall's life estate. We cannot agree with this assertion.
In Hammons, the Kentucky Supreme Court succinctly presented the respective rights of life estate possessors and remaindermen. Hammons v. Hammons, 327 S.W.3d 444, 451 (Ky. 2010). A life estate is a freehold interest in property that continues during the life of the life tenant, who may be the property owner or some other person. English v. Carter, 300 Ky. 580, 189 S.W.2d 839, 840 (1945). The life tenant has the same interest in the property the remainderman will have after it comes into his possession, except the life tenant may not commit waste. Id.; see also Adams v. Adams, 371 S.W.2d 637, 639 (Ky. 1963); Smith v. Harris, 276 Ky. 529, 124 S.W.2d 786, 788 (1939). In general, a life tenant owns the property during the life estate and is entitled to the full use and enjoyment of the property, including the income and profits, though he may not consume any part of the corpus. Taylor v. Yeager, 261 S.W.2d 638, 639 (Ky. 1953); English, 189 S.W.2d at 840 ("Free enjoyment is the very essence of a life estate[.]").
Per Zana's bequest and as a result of the prenuptial agreement, Marshall possesses 150 Keltner Road for the duration of his life. The only action that would vest Lee with the rights that Marshall currently enjoys, absent his death, is renunciation. Statutorily, the surviving spouse is permitted to renounce what is given by the will of the deceased spouse. KRS 392.080. Nothing in the record indicates Marshall has done so. We agree with the circuit court that an ordered sale would interfere with Marshall's life estate because the remaindermens' interests have not yet vested. However, if the circuit court chose to take and sell the land to satisfy Warner's lien against Lee, precedent would permit such action.
We agree with Warner that there are many cases in which vested remainders were sold to satisfy judgments against remaindermen and that those sales were permitted by statute. However, we note that none of those cases require the circuit court to take and sell the property in question to satisfy a judgment against a remainderman. On that basis, we cannot agree with Warner's argument that KRS 426.190 requires the circuit court to sell the 150 Keltner Road property.
Under the statute, the circuit court is permitted the discretion to determine whether the land in question should be sold. In light of the circuit court's assessment of the situation, we find no abuse of discretion in its refusal to take and sell the property at 150 Keltner Road.
CONCLUSION
Based on the foregoing analysis, we affirm the August 25, 2017 order of the Taylor Circuit Court because we find that KRS 426.190 does not require the sale of property in which a debtor has a future interest in order satisfy a judgment.
ALL CONCUR. BRIEFS FOR APPELLANT: R. Aaron Hostettler
London, Kentucky BRIEF FOR APPELLEE: Jeremy A. Wood
Campbellsville, Kentucky