Billy Michael Martin, in His Capacity as of the Estate of Billy Martin v. Brenda Martin ( 2022 )

RENDERED: DECEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0973-DR
BILLY MICHAEL MARTIN
IN HIS CAPACITY AS EXECUTOR
OF THE ESTATE OF BILLY MARTIN APPELLANT
ON MOTION FOR DISCRETIONARY REVIEW
FROM MCCREARY CIRCUIT COURT
v. HONORABLE DANIEL BALLOU, JUDGE
ACTION NO. 21-XX-00004
BRENDA MARTIN APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
CLAYTON, CHIEF JUDGE: Billy Michael Martin (“Mike”), in his capacity as
executor of the estate of Billy Martin, was granted discretionary review of the
McCreary Circuit Court’s judgment affirming the McCreary District Court’s denial
of Mike’s motion for leave to file a late disallowance of a claim against the estate.
Upon review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Billy Martin passed away on October 16, 2017. A dispute thereafter
arose between Brenda Martin, Billy’s widow, and Mike, Billy’s son from a
previous marriage. Mike and Brenda each filed a petition in McCreary District
Court seeking to be appointed executor/executrix of the estate and to probate
different documents as Billy’s will. Mike tendered a document dated June 12,
2000, which left everything to him, whereas Brenda tendered a handwritten
document entitled “Last Will and Testament,” which was executed by Billy and
Brenda on June 2, 2017, in the presence of two witnesses and a notary. The
document states in part: “This will is between Billy Martin and Brenda Martin, we
did not have a pre-nuptial agreement before we married 26 years ago.” The
document provides for Brenda to receive the marital home, its contents, and the
acre of land on which it is situated. She is also to retain various properties she
owns, as well as her car and a truck. The document states that Billy wants Mike to
have his business, Martin Pallets and Martin Sawmill, its equipment and all the real
estate it sits on, and another tract of land. The 2017 document did not dispose of
all of Brenda and Mike’s property.
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On December 13, 2017, the district court appointed Mike and Brenda
as co-administrator/administratrix of the estate. No will was admitted to probate at
that time. Mike and Brenda each retained counsel in September 2018.
Brenda filed a motion for the surviving spouse exemption pursuant to
Kentucky Revised Statutes (KRS) 391.030. Mike responded that the handwritten
2017 document was a postnuptial agreement in which Brenda had released and
waived her right to the spousal exemption.
On August 9, 2019, the district court entered an order admitting into
probate the 2000 will tendered by Mike. In accordance with the terms of that will,
Mike was appointed the executor of Billy’s estate. On October 17, 2019, the
district court entered an order finding that the handwritten 2017 document was not
Billy’s last will and testament and scheduling a hearing to determine the estate
assets. Brenda filed a motion to alter, amend, or vacate the order. The parties
were directed to submit proposed orders on the motion by February 7, 2020.
Mike’s attorney unexpectedly passed away on January 25, 2020.
On February 3, 2020, Brenda filed a claim against the estate, which
she served on Mike, the clerk of the court, and the office of Mike’s attorney. Her
claims against the estate consisted of a claim for breach of the contractual
provisions as set forth in the handwritten 2017 “Last Will and Testament.” The
claim alleged that Billy had bound himself contractually to provide Brenda with
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certain assets as set forth in the agreement, but that Mike had failed to honor the
contract even though he had previously asserted that the document was a
“postnuptial contract.” Brenda also asserted that Billy and Mike had committed
fraud on her marital share of the estate by changing the title of a savings account
from Billy’s sole name to joint ownership with Mike. The claim sought to require
Mike, in his capacity as administrator of the estate, to fulfill all terms and
provisions of the agreement and to restore the full amount of the savings account
of $52,739.85 to the estate, from which amount Brenda was entitled to her spousal
exemption plus one-half of the balance.
On February 4, 2020, Brenda filed a renunciation of the 2000 will
while explicitly preserving her claims disputing its validity. On February 5, 2020,
Brenda filed a motion to continue the deadline for filing proposed orders, citing
Mike’s loss of his attorney.
On February 7, 2020, an individual identified on the docket as Bob
West appeared in district court on Mike’s behalf, explaining that Mike was unable
to be present because he had the flu. The district court advised him that Mike
needed to get a new attorney and have that attorney enter an appearance.
Mike did retain new counsel, who filed an action against Brenda in
McCreary Circuit Court on February 21, 2020, but did not enter an appearance in
the district court probate action. Brenda filed an answer and counterclaims in the
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circuit court action. On July 9, 2020, Brenda’s counsel served a copy of her claim
against the estate, along with a discussion of the expiration of the deadline to deny
such a claim, in response to a motion for partial summary judgment filed in the
circuit court action by Mike’s attorney.
On August 14, 2020, Mike’s new counsel entered an appearance in
the probate proceedings. On September 19, 2020, over seven months after Brenda
filed the claim, Mike’s counsel filed a motion seeking leave to file a late
disallowance of the claim. Following a hearing, the district court entered findings
of fact, conclusions of law, and order denying Mike’s motion. Mike filed an
appeal to the McCreary Circuit Court, which entered findings of fact, conclusions
of law, and judgment affirming the ruling of the district court. Mike sought
discretionary review, which was granted, and this appeal followed.
ANALYSIS
The following statutes set forth the procedures and limitations for
presenting claims against a decedent’s estate.
KRS 396.011(1) provides that such claims must be presented within
six months after the appointment of the personal representative. It states as
follows:
All claims against a decedent’s estate which arose before
the death of the decedent, excluding claims of the United
States, the State of Kentucky and any subdivision
thereof, whether due or to become due, absolute or
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contingent, liquidated or unliquidated, founded on
contract, tort, or other legal basis, if not barred earlier by
other statute of limitations, are barred against the estate,
the personal representative, and the heirs and devisees,
unless presented within six (6) months after the
appointment of the personal representative, or where no
personal representative has been appointed, within two
(2) years after the decedent’s death.
KRS 396.015 sets forth the method of presenting claims against the
estate. It states in pertinent part:
The claimant may deliver or mail to the personal
representative a written statement of the claim indicating
its basis, the name and address of the claimant, and the
amount claimed, or may file a written statement of the
claim, in the form prescribed by rule, with the clerk of
the court. If presentment shall be made by filing a
written statement of the claim with the clerk of the court,
the claimant shall certify as provided in the rules of civil
procedure that a copy of the written statement has been
given or mailed to the personal representative and his
attorney. The claim shall be deemed presented on the
first to occur of receipt of the written statement of claim
by the personal representative, or the filing of the claim
with the court.
KRS 396.015(1).
Finally, KRS 396.055 describes the method of allowing or
disallowing claims. Its terms have been summarized thusly:
Pursuant to KRS 396.055(1), upon receiving a timely and
properly presented claim, the personal representative has
two key options at his disposal: either allow the claim
and pay the claimant, or disallow the claim and refuse
payment. DeMoisey v. River Downs Inv. Co., 159
S.W.3d 820, 822 (Ky. App. 2005). If the personal
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representative chooses to disallow the claim, he or she
must send notice to the claimant, within sixty days of the
expiration of the six-month presentation period,
informing the claimant the claim has been disallowed.
KRS 396.055(1); KRS 396.011; see also DeMoisey, 159
S.W.3d at 822. The notice of disallowance effectively
bars the claim against the estate unless the claimant takes
specific steps to preserve his or her claim by filing “a
separate collection against the personal representative”
within sixty days after the mailing of the notice of
disallowance. DeMoisey, 159 S.W.3d at 822; KRS
396.055(1).
In addition to the two options discussed above, “[a] third
possibility, inaction, [also] results in allowance.”
DeMoisey, 159 S.W.3d at 822. That is, if the personal
representative fails to take any action regarding the
claimant’s claim within the requisite sixty-day period, the
claim is automatically deemed allowed subject to a
limited exception. KRS 396.055(1) (“Failure of the
personal representative to mail notice to a claimant of
action on his claim . . . has the effect of a notice of
allowance[.]”).
Blackwell v. Blackwell, 372 S.W.3d 874, 877-78 (Ky. App. 2012) (footnotes
omitted).
The circuit court made the following findings: (1) on August 9, 2019,
the district court appointed Mike as the personal representative of the estate; (2) on
February 3, 2020, within the six-month timeframe specified in KRS 396.011(1),
Brenda filed her verified claim against the estate on the personal representative,
Mike, and also filed a copy with the clerk of the court and served a copy on the
attorney of record for the personal representative; and (3) current counsel for the
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personal representative did not move for leave to disallow the claim until over
seven months later, on September 19, 2020. The circuit court concluded that
Brenda’s claim was timely filed and properly presented by service not only on the
personal representative but also by filing with the clerk and serving the last
attorney of record for Mike. The court noted that at that time, no other attorney for
the personal representative had entered an appearance. The court further
concluded that the personal representative had not shown reasonable cause for
leave to file a late disallowance.
Mike argues that Brenda’s claim should not have been allowed
because, first, it was untimely filed; second, even if it were timely filed, there is
good cause to allow the late denial; and third, the “claim” was not an actual claim
but a means to assert issues which should have been raised in the circuit court
complaint. His first and third arguments are not preserved for review nor were
they raised in his motion for discretionary review.
1. The timeliness of Brenda’s claim
Mike argues that Brenda’s claim against Billy’s estate was untimely,
as it should have been filed within the six-month period following December 13,
2017, the date on which Mike and Brenda were appointed as the co-administrators
of the estate. In other words, Mike contends that the six-month period for filing
the claim, as prescribed by KRS 396.011(1), did not commence to run on August
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9, 2019, the date that Mike was appointed the executor of the estate, but rather
commenced over twenty months earlier.
This argument, whatever its merits, was not presented to the district
court or the circuit court. “Ordinarily under [Kentucky Rules of Civil Procedure]
CR 12.03 a statute of limitation must be pled and a failure so to do constitutes a
waiver of that defense.” Commonwealth, Dept. of Highways v. Chinn, 350 S.W.2d
622, 623 (Ky. 1961).
Furthermore, “[t]he Court of Appeals is without authority to review
issues not raised in or decided by the trial court.” Regional Jail Authority v.
Tackett, 770 S.W.2d 225, 228 (Ky. 1989). The date relied upon by the district and
circuit courts to calculate the commencement of the six-month period was August
9, 2019, the date on which the document tendered by Mike was admitted to probate
as Billy’s last will and testament and Mike was appointed as the executor of the
estate.
Under CR 61.02, an appellate court may address an argument not
presented to the trial court in order to prevent manifest injustice affecting the
substantial rights of a party. “The language of CR 61.02 is identical to its criminal
law counterpart, [Kentucky Rules of Criminal Procedure] RCr 10.26, and we
interpret that language identically.” Nami Resources Company, L.L.C. v. Asher
Land and Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018). “Absent extreme
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circumstances amounting to a substantial miscarriage of justice, an appellate court
will not engage in palpable error review pursuant to RCr 10.26 unless such a
request is made and briefed by the appellant.” Shepherd v. Commonwealth, 251
S.W.3d 309, 316 (Ky. 2008). Mike has not requested palpable error review or
demonstrated that it is warranted in this case. Under these circumstances, we
decline to review this argument.
2. Whether reasonable cause was shown to justify a late disallowance of the
claim
Next, Mike argues that good cause was shown to justify a late
disallowance of Brenda’s claim. KRS 396.055(1) provides that
[f]ailure of the personal representative to mail notice to a
claimant of action on his claim for sixty (60) days after
the time for original presentation of the claim has expired
has the effect of a notice of allowance, except that upon
petition of the personal representative and upon notice to
the claimant, the court at any time before payment of
such claim may for cause shown permit the personal
representative to disallow such claim.
(Emphasis added.) “[W]hen read in the context of the entire statute, the ‘cause’
referred to in KRS 396.055(1) refers to a reasonable cause for not responding to
the claim within the sixty-day period and not to the merits of the claim.” Patterson
v. Estate of Boone, 150 S.W.3d 58, 61 (Ky. App. 2003).
Mike contends that the complexity of the procedural history of the
case and the untimely death of his attorney in the midst of the probate process
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supports a finding that the district court abused its discretion in not permitting late
disallowance of the claim. He contends that after his attorney passed away on
January 25, 2020, Brenda changed her entire strategy by filing her claim on
February 3, 2020, and dismissing her appeal of the district court order admitting
the 2000 will into probate.
He further claims that by mailing notice of the claim to Mike, the
circuit court clerk and the office of Mike’s late counsel, Brenda did not comply
with the plain language of KRS 396.015. Specifically, he contends that the portion
of the statute which allows a claimant to deliver or mail a written statement of the
claim directly to the personal representative applies only when the personal
representative is unrepresented by counsel. He contends that the second part of the
statute, which requires service on the representative and his attorney for claims
filed with the clerk of the court, applies to Brenda. Thus, by filing a copy with the
clerk of the court, Brenda was also required to serve Mike’s attorney.
When we interpret a statute, “we look first to the plain language of the
statute, affording words their ordinary meaning. We are not at liberty to add or
subtract from the legislative enactment or discover meanings not reasonably
ascertainable from the language used.” Consolidated Infrastructure Management
Authority, Inc. v. Allen, 269 S.W.3d 852, 855 (Ky. 2008) (internal quotation marks
and citation omitted). The plain language of KRS 396.015, without qualification,
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permits a claimant to serve the personal representative directly and does not
require any other action. The argument that Brenda’s decision to file the claim
with the clerk of the court as well somehow rendered her service on Mike
ineffective would lead to “an absurd [and] wholly unreasonable conclusion.”
University of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky. 2017) (citations
omitted).
The record shows that Mike retained new counsel who filed an action
in circuit court on February 21, 2020. Filings in that action indicate that he was on
notice of the proceedings in district court, yet he did not file a denial of Brenda’s
claim against the estate until over seven months later. Brenda’s claim was timely
and properly served and there is no showing of a reasonable cause for not
responding to the claim within sixty days.
3. Whether Brenda’s claim was improperly filed as a claim against the estate
Finally, Mike argues that Brenda’s claim is not a claim against the
estate at all, but rather a claim against Mike personally disguised as a claim against
the estate. As with Mike’s first argument, this issue was not raised before the
district court or the circuit court, nor has Mike requested or shown the necessity for
palpable error review. Consequently, we decline to review it here.
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CONCLUSION
For the foregoing reasons, the McCreary Circuit Court’s findings of
fact, conclusions of law, and judgment affirming the McCreary District Court’s
findings of fact, conclusions of law, and order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Rhett B. Ramsey Winter R. Huff
Monticello, Kentucky Somerset, Kentucky
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