Estate of John C. Benton, Jr. by Mary M. Marcum as v. Tim Thomas Currin ( 2021 )

RENDERED: JANUARY 21, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0279-DG
ESTATE OF JOHN C. BENTON, JR. BY APPELLANT
MARY M. MARCUM, AS EXECUTRIX
ON REVIEW FROM COURT OF APPEALS
V. NO. 2018-CA-0075-MR
BOONE CIRCUIT COURT NO. 12-CI-02278
TIM THOMAS CURRIN AND APPELLEES
JAN MARIA CURRIN
OPINION OF THE COURT BY JUSTICE VANMETER
REVERSING AND REMANDING
Under KRS1 395.278 and CR2 25.01, when a party dies during the
pendency of an action, the personal representative of the decedent must be
substituted as a party within one year for the action to be revived. The issue
we must decide in this case is whether the Court of Appeals erred in holding
that Mary Marcum, as executrix of John Benton, Jr.’s estate,3 failed to comply
with the requirements for revival because her motion to substitute under CR
1 Kentucky Revised Statutes.
2 Kentucky Rules of Civil Procedure.
3 In this opinion, our reference to Marcum is in her fiduciary capacity as
Executrix under her father’s will.
1
25.01, alone, did not constitute revival. We hold that the Court of Appeals
erred and that substitution of a party pursuant to CR 25.01 within the one-
year limit set forth in KRS 395.278 sufficiently revives a claim. We therefore
reverse the Court of Appeals’ decision and remand this case to that Court to
resolve the other issues raised by the parties in the appeal.
I. Facts and Procedural Background
In late 2012, John Benton, Jr., filed this action in the Boone Circuit
Court to cancel a deed granted to Jan and Tim Currin, alleging failure of
consideration and fraud in the inducement. The Currins filed an answer and
counterclaim.4 In May 2014, Benton died. Seven months later, Marcum,
Benton’s daughter who had been appointed executrix of her father’s will, filed a
motion under CR 25.01 to substitute the estate in the action. The following
day, the Currins filed their motion to revive their counterclaim. Both motions
were granted in January 2015. After several more years of litigation, and after
a deadline for dispositive motions had passed, the Currins moved to dismiss
the action, claiming that Marcum’s motion for substitution was flawed because
it did not revive the cause of action in the case. The trial court denied the
motion. The matter then proceeded to trial. A jury returned a verdict in favor
of Marcum, finding that Benton had intended the deed as compensation for the
Currins’ services, which were unfulfilled. In accordance with the jury verdict,
4 After losing an initial motion for summary judgment, the Currins filed their
answer, along with a counterclaim and third-party complaint. The third-party
complaint joined, as third-party defendants, Benton Family Farms, Inc. and Benton as
trustee of the John C. and Rose Benton Trust.
2
the trial court entered judgment cancelling the deed for a failure of
consideration.5
The Currins appealed to the Court of Appeals raising several issues. The
Court of Appeals addressed only the issue of revival, holding that while
Marcum had timely moved for substitution pursuant to CR 25.01, she failed to
properly revive the action by a separate KRS 395.278 motion. The Court of
Appeals reversed the trial court’s judgment. We granted Marcum’s motion for
discretionary review.
II. Standard of Review
As this matter involves questions of pure statutory interpretation, the
meaning and impact of KRS 395.278 and CR 25.01, we review the lower court’s
decision de novo. Hauber v. Hauber, 600 S.W.3d 204, 207 (Ky. 2020) (citing
Commonwealth v. Moore, 545 S.W.3d 848, 850 (Ky. 2018)). In conducting our
review, we afford no deference to the lower courts’ statutory interpretations or
conclusions of law. 600 S.W.3d at 207 (citing Seeger v. Lanham, 542 S.W.3d
286, 290 (Ky. 2018)).
III. Analysis
When a party to an action dies while that action is pending, that action is
abated and lies dormant until it is revived by a proper successor-in-interest.
Hardin Cnty. v. Wilkerson, 255 S.W.3d 923, 926 (Ky. 2008). KRS 395.278
5 The trial court also denied the Currins’ motions notwithstanding the verdict;
to alter, amend, or vacate the judgment; as well as a motion to rehabilitate the verdict
by operation of law.
3
provides that “[a]n application to revive an action in the name of the
representative or successor of a plaintiff, or against the representative or
successor of a defendant, shall be made within one (1) year after the death of a
deceased party.” CR 25.01, which operates in conjunction with KRS 395.278,
provides, in pertinent part:
(1) If a party dies during the pendency of an action and the claim is
not thereby extinguished, the court, within the period allowed by
law, may order substitution of the proper parties. If substitution is
not so made the action may be dismissed as to the deceased party.
The motion for substitution may be made by the successors or
representatives of the deceased party or by any party[.]
We recognize that KRS 395.278 and CR 25.01(1), in tandem, provide the
process of revival as well as the window within which it must be completed.
Understanding the relationship between the two resolves this dispute.
In Daniel v. Fourth & Market, Inc., 445 S.W.2d 699 (Ky. 1968), our
predecessor court detailed the history of revival in Kentucky. It noted that at
common law when a plaintiff passed away while prosecuting a case, the case
died with him, leaving his rightful successors-in-interest without an
opportunity to vindicate any newly acquired rights. Id. at 701. At least as
early as 1811, the legislature provided for the survival and revival of a personal
injury action. Id. at 700.6 In 1851, with the codification of Kentucky statutes,
6 KRS 411.140 now provides for survival of actions:
No right of action for personal injury or for injury to real or personal
property shall cease or die with the person injuring or injured, except
actions for slander, libel, criminal conversation, and so much of the
action for malicious prosecution as is intended to recover for the
personal injury. For any other injury an action may be brought or revived
by the personal representative, or against the personal representative,
4
the legislature placed revival provisions in the Civil Code. Id. Under the Civil
Code, revival was a procedural mechanism whereby a decedent’s successor
could be substituted in an action. See, e.g., Thompson’s Adm’r. v. Williams, 86
Ky. 15, 20, 4 S.W. 914, 916 (1887) (stating that “[t]he order to revive is a
summary mode of bringing the representatives or successors of the deceased
party before the court[.]”). In Davie’s Ex’r v. City of Louisville, 171 Ky. 663,
672, 188 S.W. 911, 915 (1916), the court stated as “obvious that the chief
purpose of the [revival] statutes, which prescribe the manner and occasion of
procedure to cause a revivor, is to bring the parties in interest before the court,
that the rights of all may be conserved. Appearance to an action without
questioning the mode of procedure is a waiver.” By so stating, the Court
clearly minimized necessary formalities associated with revivor, in favor of
resolving claims on the merits. Our predecessor court early on understood the
purpose of revival in that way. See, e.g., Bently v. Gregory, 23 Ky. (7 T.B.Mon.)
368, 369 (1828) (administrator’s appearance before the appellate court was
sufficient to constitute revival, despite irregularity in serving order of revival on
administrator).
In 1950, the General Assembly created the Kentucky Civil Code
Committee “to improve civil practice and procedure in the courts of the
Commonwealth, . . . and to formulate and execute plans and policies for the
heir or devisee, in the same manner as causes of action founded on
contract.
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simplification, clarification and revision of the Code[.]”7 After inviting comment
from members of the Kentucky Bar, the Committee resolved to “insofar as
practicable” follow the Federal Rules of Civil Procedure8 to create a uniform set
of rules.9 As part of its report, the Committee identified and bifurcated
procedural rules from their substantive rights-granting counterparts.10
Consequently, in 1952 and 1953, the Revivor of Actions provisions of the Ky.
Civ. Code §§ 500-512 (Banks-Baldwin Law Publ. Co. 1948) were bifurcated into
CR 25.01 and KRS 395.275 – 395.277.11 In 1974, the statutory aspects of
revival were further simplified by the repeal of KRS 395.275 – 395.277, and the
enactment of KRS 395.278.12
Our case law in the years following our adoption of the Rules of Civil
Procedure reflects a modified understanding of revival from the process detailed
in thirteen sections of the Civil Code, §§ 500 – 512, to a motion made under CR
25.01. In Daniel, we reaffirmed that the revival statute grants a substantive
right to the would-be litigant, while acknowledging that CR 25.01 was the
appropriate procedural means by which it was to be achieved. 445 S.W.2d at
7 Porter Sims, The Work of Kentucky’s Civil Code Committee, 40 KY. L.J. 7
(1951).
8 Id. at 8. This statement is noteworthy because the 1937 advisory committee
to the Supreme Court of the United States expressly required only a motion to
substitute, replacing the prior enacted revivor statute. 1937 Rep. Adv. Comm. on
Rules for Civil Procedure. p. 65.
9 Sims, 40 KY. L.J. at 8.
10 Id. at 7-8.
11Civ. Code § 507 was recodified as KRS 395.275, Civ. Code § 508 as KRS
395.276, and Civ. Code § 509 as KRS 395.277.
12 Act of Mar. 28, 1974, ch. 299, §§ 16, 19, 1974 Ky. Acts 546, 550.
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701. In that case, the plaintiff died after filing his action. While a revival
motion had been prepared for his widow within three months, she did not file
that motion, or otherwise notify the court of her intention to be substituted,
until almost two years later. In other words, she acted well beyond the one-
year time limit allotted by KRS 395.277. Id. at 700. In its analysis of the
revival statute and CR 25.01, the Court construed the revival statute as a
“statute of limitation, and not a law ‘relating to pleading, practice, and
procedure[.]’” Id. (citing New Farmers Nat’l. Bank v. Thomas, 41 S.W.2d 672(Ky. 1967)). Instead, the Court looked to CR 25.01(1) as the appropriate
process by which the revival could have been made, finding the time bar
dispositive. Id. at 701.
Our more recent case law reflects this analysis as well. In Hammons v.
Tremco, Inc., 887 S.W.2d 336 (Ky. 1994), we stated that:
[T]he period during which an action may be revived by the
successor or personal representative of a deceased party is limited
to one year. This provision operates as a statute of limitations;
therefore, the period set forth in the statute is mandatory and . . .
[i]f a motion to revive the action and to substitute the successor or
personal representative of the deceased party is not made within
the prescribed time, the action may be dismissed as to the
deceased party. CR 25.01(1).
Id. at 338. As in Daniel, “no application to revive the action in the name of a
successor or personal representative of the decedent ha[d] been made; and
more than one year ha[d] passed since [Hammons’] death.”13 Id.13We reaffirmed this position in Harris v. Jackson, 192 S.W.3d 297, 304
(Ky.2006). We acknowledge, however, the confusion from the quotation in Hammons
7
The Court of Appeals, in its decision below, relied heavily on the following
language in Hammons, “KRS 395.278 and CR 25.01(1) require that when a
plaintiff dies any action pending on the part of the deceased plaintiff must be
revived by decedent’s successor or personal representative within one year, and
the successor or personal representative must be substituted as the real party
in interest.” Id. Its reliance on that language is misplaced. Hammons
addressed whether jurisdiction could exist when a party died, and his
successor gave no notice to the court, a situation factually distinguishable from
the one before us. Marcum’s motion to substitute herself as the Executrix of
Benton’s Estate informed the court and the parties, well within the one-year
statute of limitations, of her father’s passing and her intention to continue the
case. Notably, the Currins filed their own revival motion against Marcum, thus
clarifying that all parties involved were apprised of the substitution.14 The
Currins were not free to continue litigating the case against Marcum for years
after her substitution was accepted by the court, only to object mere weeks
before trial to its sufficiency in an effort to avoid adjudication on the merits.15
Furthermore, the Currins do not argue that Marcum does not have standing to
that seems to create a two-part step “to revive the action and to substitute the
successor[.]” 887 S.W.2d at 338.
14 Under CR 25.01(1), a timely motion to substitute filed by either Marcum or
the Currins would have satisfied KRS 395.278.
15 We note that even if the Currins had objected to Marcum’s substitution when
the motion was before the court they would still not have been successful because
Marcum had satisfied the requirements of CR 25.01(1).
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continue the litigation. In fact, they had several opportunities following the
motion for substitution to object to her intervention and failed to do so.
The Court of Appeals’ formalistic approach to revival belies its legislative
and judicial history. From the beginning, revival was a means by which the
legislature sought to alleviate the already harsh realities of death. Revival was,
and continues to be, a vehicle by which successors-in-interest give notice to
the court of the passing of the original party and signal their intent to take on
the rights and liabilities associated with the original action. With the adoption
of the rules of civil procedure in 1953, the legislature and the court
acknowledged that substitution of the proper parties accomplished that goal.16
The Court of Appeals’ approach of a two-step process unnecessarily
complicates this process and merely creates a trap for the unwary.17 We
decline to adopt this approach. Instead, we affirm that KRS 395.278 is a
statute of limitation, and that a motion for substitution properly filed with the
court in accordance with CR 25.01(1) within the one-year allotted by the
legislature constitutes revival.18 To the extent that the following Court of
Appeals decisions mandate a two-step process of a motion to revive and a
16 CR 25.01(1) speaks explicitly of “proper parties[,]” imposing on judges the
responsibility to ascertain and evaluate whether the individual or entity filing the
motion for substitution is appropriate.
17 Judge Sims concluded his article with the comment, “[w]e all stand united
that the maxim ‘in our law one comma overturns the whole pleading’ shall be
eliminated from Kentucky procedure.” Sims, 40 KY. L.J. at 10.
18 Notwithstanding a simplified procedural process for substitution/revival, in
Hardin County, 255 S.W.3d at 926, we noted that “the revival statute ‘has always been
strictly construed.’ Daniel, 445 S.W.2d at 701. ‘[T]he period set forth in the statute is
mandatory and not subject to enlargement.’ Hammons, 887 S.W.2d at 338.”
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motion to substitute, they are overruled: Lococo v. Ky. Horse Racing Comm'n,
483 S.W.3d 848 (Ky. App. 2016); Koenig v. Pub. Prot. Cabinet, 474 S.W.3d 926(Ky. App. 2015); Frank v. Estate of Enderle, 253 S.W.3d 570 (Ky. App. 2008);
Snyder v. Snyder, 769 S.W.2d 70 (Ky. App. 1989). Because we hold that
Marcum was properly substituted into the action, we deem it unnecessary to
address extensively her argument as to whether this action was one that
abated on Benton’s death.19
IV. Conclusion
For the foregoing reasons this case is reversed and remanded to the
Court of Appeals for consideration of the unaddressed issues raised by the
parties in their appeal.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Marcus Stephen Carey
COUNSEL FOR APPELLEE:
Charles E. Bullard
Mary Gina Hayes
Bullard & Hayes
19 Simply stated, the interplay between CR 25.01, KRS 395.278, and KRS
411.140 is that when a party dies, any action may be revived by substituting the
personal representative, CR 25.01, within one year of the date of death, KRS 395.278,
except for those actions listed in KRS 411.140 which do not survive the deceased’s
death, e.g., slander, libel, etc.
10