Erin Milton v. Naoma Sue Carter ( 2020 )


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  •                     RENDERED: DECEMBER 18, 2020; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2020-CA-0395-MR
    ERIN MILTON                                                          APPELLANT
    APPEAL FROM EDMONSON CIRCUIT COURT
    v.                 HONORABLE TIMOTHY R. COLEMAN, JUDGE
    ACTION NO. 19-CI-00051
    NAOMA SUE CARTER                                                       APPELLEE
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND KRAMER,
    JUDGES.
    KRAMER, JUDGE: Erin Milton appeals from an order of the Edmonson Circuit
    Court dismissing her complaint for relief regarding a will challenge pursuant to
    KRS1 394.240. We affirm.
    Milton’s grandmother, Anna “Earleen” Lashley, married Ray D.
    Lashley in 1990. Ray had no children at the time of the marriage. Earleen had
    1
    Kentucky Revised Statute.
    children and grandchildren, including Milton who was seven years old at the time
    of the marriage. Naoma Carter, appellee herein, is Ray’s sister. Earleen died in
    2013. Her estate was probated in Edmonson District Court as intestate. Ray died
    in 2018. Milton petitioned the district court to admit what she claims is a joint, but
    unsigned, will of Earleen and Ray, dated 2007 (“Will 1”).2 Will 1 left everything
    of the first to die to the surviving spouse, and everything of the last surviving
    spouse to Earleen’s children, grandchildren, and a daughter-in-law. Will 1 also
    contained a clause stating, in relevant part, that the surviving spouse agreed “not to
    make a new will or revoke or revise this will[.]” Carter filed a counterpetition for
    probate of a will executed by Ray in 2014 (“Will 2”), which was self-proving.3
    The district court heard testimony regarding Will 1 to determine if Milton had met
    her burden to prove a lost will. However, the court ultimately rejected Milton’s
    petition for probate of Will 1 and admitted Will 2 proffered by Carter.
    Milton filed an original action in Edmonson Circuit Court pursuant to
    KRS 394.240. Regarding her cause of action, the complaint stated only that “[t]he
    [d]istrict [c]ourt’s order was erroneous both in findings of fact and conclusions of
    2
    Due to an incomplete record before this Court, which we will detail more fully later in this
    opinion, a copy of neither Will 1 or Will 2 is in the record for our review. Milton’s assertions of
    the clauses in Will 1 appear to be consistent with the circuit court’s order. Hence, all references
    to Will 1 are based on statements made in Milton’s brief, the circuit court order, or the
    incomplete record before us.
    3
    See KRS 394.225.
    -2-
    law and should be set aside; the will tendered by [Milton] should be admitted to
    probate, and [Milton] should be qualified as its Executrix.” The record before us
    indicates that the circuit court reviewed the record of the district court and entered
    findings of fact, conclusions of law, and an order dismissing Milton’s complaint.
    This appeal followed.
    We affirm the judgment of the circuit court due to the inadequate
    record before us. We note that Milton filed a designation of record pursuant to
    CR4 75.01 that designated both the circuit court and district court records for our
    review. However, this Court received only the circuit court record, a mere thirty-
    four pages in length, which does not include either of the two wills presented to the
    district court; the hearings before the district court; nor the order entered by the
    district court.
    On appeal, the trial court’s findings of fact will not be
    disturbed unless they are clearly erroneous. CR 52.01.
    When the evidence is not presented for review, this court
    is confined to a determination as to whether the pleadings
    support the judgment and on all issues of fact in dispute
    we are required to assume that the evidence supports the
    findings of the lower court.
    McDaniel v. Garrett, 
    661 S.W.2d 789
    , 791 (Ky. App. 1983) (citation omitted).
    4
    Kentucky Rule of Civil Procedure.
    -3-
    Thus, without the district court record, we must assume its contents
    support the circuit court’s order.
    Id. We note that
    the record before us indicates
    the circuit court clerk sent a notice of certification of record on appeal to the parties
    on June 8, 2020. The notice indicated that the clerk was certifying thirty-four
    pages of record to this Court, which clearly did not include the district court
    record. A supplemental certification of record was sent to the parties on August
    25, 2020, which indicates that the clerk certified two probate cases and ten
    compact discs (CDs) of record from the district court. Nonetheless, the district
    court record is not part of the record that is before the Court, and a simple follow
    up by Milton by checking the status of her record on appeal would have confirmed
    this. The Court’s electronic docket shows that we received 1 bound volume, 5
    CD/DVD’s, and one other.
    This Court has repeatedly held that it is an appellant’s responsibility
    to ensure that we have the complete record for our review.
    In Hatfield v. Commonwealth, 
    250 S.W.3d 590
    (Ky.
    2008), the Supreme Court of Kentucky discussed the
    appellant’s burden to present a complete record to
    support his appeal:
    Appellant has a responsibility to present a
    “complete record” before the Court on appeal.
    Steel Technologies, Inc. v. Congleton, 
    234 S.W.3d 920
    , 926 (Ky. 2007). “Matters not disclosed by
    the record cannot be considered on appeal.”
    Montgomery v. Koch, 
    251 S.W.2d 235
    , 237 (Ky.
    1952); see also Wolpert v. Louisville Gas & Elec.
    -4-
    Co., 
    451 S.W.2d 848
    (Ky. 1970) (holding that our
    predecessor court could not review contentions of
    prejudice before the jury when the only basis for
    the argument was the Appellant’s brief, because
    review is confined to the record). Appellant may
    not raise allegations of error on appeal “based
    entirely on a silent record.” Commonwealth v.
    Thompson, 
    697 S.W.2d 143
    , 144 (Ky. 1985).
    Further, “[i]t has long been held that, when the
    complete record is not before the appellate court,
    that court must assume that the omitted record
    supports the decision of the trial court.”
    Id. at 145.
                        
    Hatfield, 250 S.W.3d at 600
    –01.
    Ray v. Ashland Oil, Inc., 
    389 S.W.3d 140
    , 145 (Ky. App. 2012); see also K.M.E. v.
    Commonwealth, 
    565 S.W.3d 648
    , 654 (Ky. App. 2018).
    Accordingly, we must affirm the order of the Edmonson Circuit Court
    dismissing Milton’s complaint as we are compelled to assume that the omitted
    records support the circuit court’s order. We do conclude, nonetheless, that even
    the partial record we have before us supports that the circuit court made a correct
    decision on this matter and that Milton’s proof of a lost will was wholly lacking,
    bordering on being frivolous. We also note that Carter’s answer to Milton’s one-
    sentence circuit court complaint included a request for costs due to the frivolous
    nature of the action, which were awarded by the circuit court.
    We now turn to the briefing--or utter lack thereof--in this case. We
    are not blind to the fact that Carter waded into dangerous waters by failing to file
    an appellee brief. When a responsive brief has not been filed, the Court may: (i)
    -5-
    accept the appellant’s statement of the facts and issues as correct; (ii) reverse the
    judgment if appellant’s brief reasonably appears to sustain such action; or (iii)
    regard the appellee’s failure as a confession of error and reverse the judgment
    without considering the merits of the case. CR 76.12(8)(c). “The decision as to
    how to proceed in imposing such penalties is a matter committed to our
    discretion.” Cabinet for Health and Family Services v. Loving Care, Inc., 
    590 S.W.3d 824
    , 826 (Ky. App. 2019) (quoting Roberts v. Bucci, 
    218 S.W.3d 395
    , 396
    (Ky. App. 2007)). None of these sanctions, however, is justified in this case for
    any of a variety of reasons, including that we do not have a full record before us
    and that the limited record before us supports the circuit court’s decision as 
    noted supra
    . But, also as compelling is the fact that we would be well within our
    discretion to strike Milton’s brief as failing to substantially comply with CR 76.12.
    We first note that this Court sent a notice of deficient brief to Milton
    on August 7, 2020. The brief lacked the required appendix with “the findings of
    fact, conclusions of law, and judgment of the trial court” pursuant to CR
    76.12(4)(c)(vii).5 Although Milton corrected the missing requirement, her brief is
    5
    The Clerk of this Court screens briefs for certain technical deficiencies and issues notices of
    deficiencies for such. These screenings rarely review for more substantive compliance with CR
    76.12. A merits panel of the Court retains full authority to strike non-compliant briefs or take
    other sanctions as necessary. See, e.g., Clark v. Workman, 
    604 S.W.3d 616
    , 618 (Ky. App.
    2020) (“We will not reiterate all that has been said too many times before on this subject. If a
    lawyer is curious about the importance of these procedural rules or the practical reasons for
    following them, we recommend reading these opinions in chronological order: Commonwealth
    v. Roth, 
    567 S.W.3d 591
    (Ky. 2019); Koester v. Koester, 
    569 S.W.3d 412
    (Ky. App. 2019);
    -6-
    still deficient in at least two substantive ways.6 In contravention of CR
    76.12(4)(c)(v), Milton does not have a preservation statement at the beginning of
    each argument. Nor does she cite to the record. CR 76.12(4)(c)(iv) and (v) require
    ample references to the record and citation to authority supporting each argument.
    Even if the entire record was before us, it is not the responsibility of this Court to
    search the record to find support for Milton’s arguments or where they are
    preserved, assuming such exists. Smith v. Smith, 
    235 S.W.3d 1
    (Ky. App. 2006).
    Although the circuit record before us contains only thirty-four pages, the record
    also contains video recordings of five separate dates that the action appeared for
    hearing before the circuit court. However, each disc provided contains recordings
    of the circuit court’s entire docket for the day.7 Milton’s brief lacks any citations
    to where in these voluminous recordings her issues are preserved or where any
    evidence supports her case. Without citations to the record, this Court has no way
    of knowing at what point in the voluminous recordings the instant action was heard
    Hallis v. Hallis, 
    328 S.W.3d 694
    (Ky. App. 2010); Elwell v. Stone, 
    799 S.W.2d 46
    (Ky. App.
    1990).”).
    6
    Although we detail some of the more substantial non-compliance issues with Milton’s brief in
    the body of the opinion, we note there are a variety of other less substantial deficiencies with the
    brief, including but not limited to her cover page fails to comply with CR 76.12(4)(a)(iii).
    7
    We also note that the supplemental certification form from the Edmonson Circuit Clerk
    indicates the district court record, had we received it, contained ten compact discs in addition to
    the paper record. Milton’s brief contains no citations to these recordings either.
    -7-
    by the district and circuit courts; it is clearly not our duty to search the record to
    find such.
    Our options when an appellate advocate fails to abide by the rules are:
    (1) to ignore the deficiencies and proceed with the review; (2) to strike the brief or
    its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief
    for manifest injustice only. 
    Hallis, 328 S.W.3d at 696
    (citing 
    Elwell, 799 S.W.2d at 47
    ). Given all of the shortcomings in this appeal, we cannot simply ignore the
    deficiencies and cannot engage in even a manifest injustice review because we do
    not have a full record to do so. In short, even if Milton had ensured the entire
    record was before us, we would be well within our discretion to strike Milton’s
    brief for failure to comply with CR 76.12.8
    Given that our review is limited to an incomplete record, a
    substantially non-compliant appellant brief that impedes our review of the matter,
    and a non-existent appellee brief, we are compelled to affirm the judgment of the
    Edmonson Circuit Court.9
    8
    See also Curty v. Norton Healthcare, Inc., 
    561 S.W.3d 374
    , 377-78 (Ky. App. 2018), and
    
    Clark, 604 S.W.3d at 616-18
    .
    9
    Although we can discern nowhere in the limited record before us where the matter of the role
    of Milton’s attorney in this action was discussed, we question it. The record before us indicates
    that, in regard to Will 1, the circuit court found that, “Jeanetta Girard testified that she saw [Ray
    and Earleen] sign Will 1. Girard testified that she signed the will as a witness and saw her father,
    who is now deceased, sign as a witness as well. Girard testified that she saw Natty Bumppo
    notarize the will. (Girard was secretary for Bumppo, who represents [Milton] herein.)” At the
    very least, it seems there is a potential conflict of interest on the part of Bumppo with regard to
    -8-
    ALL CONCUR.
    BRIEF FOR APPELLANT:                             NO APPELLEE BRIEF FILED
    Natty Bumppo
    Brownsville, Kentucky
    legal services he may have provided to Ray in the past. Also concerning to this Court is the fact
    that Bumppo was a potential witness in this action as he allegedly notarized Will 1. Kentucky
    Supreme Court Rule (SCR) 3.130, Rule of Professional Conduct 3.130(3.7) provides that
    (a) A lawyer shall not act as advocate at a trial in which the lawyer
    is likely to be a necessary witness unless:
    (1) the testimony relates to an uncontested issue;
    (2) the testimony relates to the nature and value of legal
    services rendered in the case; or
    (3) disqualification of the lawyer would work substantial
    hardship on the client.
    (b) A lawyer may act as advocate in a trial in which another lawyer
    in the lawyer’s firm is likely to be called as a witness unless
    precluded from doing so by Rule 1.7 or Rule 1.9.
    (Emphasis added).
    -9-