Dianna Lynn Davenport, in Her Capacity as Personal Representative of the Estate of Penny Ann Simmons v. Kindred Hospitals Limited Partnership D/B/A Kindred Hospital - Louisville

RENDERED: DECEMBER 22, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0974-MR
DIANNA LYNN DAVENPORT, IN
HER CAPACITY AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF PENNY ANN SIMMONS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANNIE O’CONNELL, JUDGE
ACTION NO. 19-CI-005790
KINDRED HOSPITALS LIMITED
PARTNERSHIP D/B/A KINDRED
HOSPITAL – LOUISVILLE AND THE
COMMONWEALTH OF KENTUCKY
EX REL. ATTORNEY GENERAL
DANIEL CAMERON APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: We are faced with an intolerable situation in which the
statute of limitations runs on different dates depending upon whether a rule or
statute applies. To our knowledge, in all other situations there is no conflict
regarding when the statute of limitations begins to run. Because of existing
precedent, we are obliged to apply statute as controlling, thus making this action
untimely. Therefore, we reluctantly affirm.
Diana Lynn Davenport, in her capacity as personal representative of
the Estate of Penny Ann Simmons (the Estate), appeals from the Jefferson Circuit
Court’s grant of summary judgment in favor of Kindred Hospitals Limited
Partnership d/b/a Kindred Hospital – Louisville (Kindred) which dismissed the
Estate’s wrongful death claim against Kindred. The circuit court ruled this claim
was barred by the statute of limitations because the Estate did not file the case
against Kindred within the one-year period after Davenport was appointed personal
representative. The Commonwealth of Kentucky ex Rel. Attorney General Daniel
Cameron is also a party as the Estate challenged the constitutionality Kentucky
Revised Statute (KRS) 395.105 which establishes when the appointment of a
personal representative is effective.
We must affirm because we agree with the circuit court that KRS
395.105 is constitutional, and we are constrained by our published precedent in
Batts v. Illinois Central Railroad Company, 217 S.W.3d 881 (Ky.App. 2007), that
KRS 395.105 controls when a personal representative is appointed and that timing
controls calculations for purposes of the statute of limitations. Thus, KRS 395.105
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controls over Kentucky Rules of Civil Procedure (CR) 58, given the language of
CR 1(2), making the suit untimely.
However, although this outcome is required, we urge the Kentucky
Supreme Court to take review of this case and to consider whether Batts should be
overruled and/or whether CR 1(2) should be amended to resolve the inconsistency
in when an appointment of a personal representative is effective to begin the
running of the statute of limitations. It would be in the best interest of all to have a
uniform rule applied as to when the statute of limitations begins to run.
The following facts are not in dispute:
(1) on July 19, 2018, Simmons died;
(2) on September 11, 2018, the Spencer District Court
signed an order appointing Davenport to be the
Estate’s personal representative;
(3) on September 21, 2018, the Spencer Circuit and
District Court Clerk entered this order; and
(4) on September 20, 2019, Davenport filed a medical
malpractice/wrongful death lawsuit in Jefferson
County on behalf of the Estate.
Initially, Kindred filed a motion to dismiss because the Estate did not
file a certificate of merit as required by KRS 411.167. The Estate responded and
argued that KRS 411.167 was unconstitutional, noticing the Kentucky Attorney
General (AG). The AG appeared in the case and argued that KRS 411.167 was
constitutional. The circuit court did not make a ruling on that issue.
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Kindred then filed a motion for summary judgment on the basis that
the Estate’s action was barred by the statute of limitation by being filed more than
one year after Davenport was appointed personal representative, based on KRS
413.180 and KRS 395.105. The Estate responded and opposed the motion, arguing
that the final sentence in KRS 395.105, which makes the appointment of a personal
representative effective when the order of appointment is signed (rather than when
such an order is entered), is unconstitutional as violating the separation of powers,
noticing the AG. The AG opposed this interpretation.
The circuit court granted the motion for summary judgment and
dismissed the case. The circuit court explained that KRS 395.105 was not
unconstitutional based on its interpretation of how it was to be interpreted in
accordance with the CR 1(2) and, based on its interpretation of KRS 395.105 as
supported by Batts, that the statute of limitations expired before the Estate filed its
case.
As the facts are undisputed, we need only interpret the law to resolve
whether summary judgment was appropriately granted. Pursuant to KRS 413.140,
personal injury and medical malpractice actions must be brought within one year.
KRS 413.180 provides an extension to that statute of limitations as
follows:
(1) If a person entitled to bring any action mentioned in
KRS 413.090 to 413.160 dies before the expiration of
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the time limited for its commencement and the cause
of action survives, the action may be brought by his
personal representative after the expiration of that
time, if commenced within one (1) year after the
qualification of the representative.
(2) If a person dies before the time at which the right to
bring any action mentioned in KRS 413.090 to
413.160 would have accrued to him if he had
continued alive, and there is an interval of more than
one (1) year between his death and the qualification
of his personal representative, that representative, for
purposes of this chapter, shall be deemed to have
qualified on the last day of the one-year period.
(Emphasis added.)
Kentucky interprets KRS 413.180 as providing that “if a personal
representative is appointed within one year of the date of death, he then is granted
one year from the date of his appointment to file suit. If no suit is filed within that
time, the action for wrongful death dies.” Southeastern Kentucky Baptist Hosp.,
Inc. v. Gaylor, 756 S.W.2d 467, 470 (Ky. 1988) (quoting Drake v. B.F. Goodrich
Co., 782 F.2d 638, 641, 642 (6th Cir. 1986)). See Conner v. George W. Whitesides
Co., 834 S.W.2d 652, 654 (Ky. 1992) (confirming that Gaylor, in quoting Drake,
“states the correct rule.”).
KRS 395.105 provides:
Every fiduciary, before entering upon the execution of
the trust, shall receive letters of appointment from the
District Court having jurisdiction as now fixed by law.
The duties of a fiduciary shall be such as are required by
law, and such additional duties not inconsistent therewith
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as the court may order. The appointment shall be
effective with the signing of an order by the judge.
(Emphasis added.) If KRS 395.105 is dispositive, the date of the judge’s signature
appointing the personal representative within one year of the decedent’s death,
provides the date for the commencement of the statute of limitations as extended
by KRS 413.180. Therefore, under this application because Davenport did not file
the action within this one-year extension, dismissal was warranted.
This time for effectiveness of the appointment of the personal
representative, upon the judge’s signature on the order, is different from the typical
practice of when an order is effective as provided in CR 58(1), which states in
relevant part:
Before a judgment or order may be entered in a trial court
it shall be signed by the judge. The clerk, forthwith upon
receipt of the signed judgment or order, shall note it in
the civil docket as provided by CR 79.01. The notation
shall constitute the entry of the judgment or order, which
shall become effective at the time of such notation[.]
Therefore, if CR 58(1) governed, the Estate’s suit was timely.
Section 116 of the Kentucky Constitution empowers the Kentucky
Supreme Court to prescribe rules of practice and procedure for our court system,
and one such rule created pursuant to such action is CR 1(2). Hensley v. Haynes
Trucking, LLC, 549 S.W.3d 430, 440 (Ky. 2018). CR 1(2) thus provides a
constitutionally appropriate basis for reconciling KRS 395.105 and CR 58(1).
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CR 1(2) states in relevant part: “These Rules govern procedure and
practice in all actions of a civil nature in the Court of Justice except for special
statutory proceedings, in which the procedural requirements of the statute shall
prevail over any inconsistent procedures set forth in the Rules.” To determine the
existence of a special statutory proceeding, we evaluate “whether the statute in
question provides for a comprehensive, wholly self-contained process that
prescribes each procedural detail of the cause of action.” McCann v. Sullivan
University System, Inc., 528 S.W.3d 331, 334 (Ky. 2017).
The only way CR 58(1) would apply over KRS 395.105, is if the final
sentence of KRS 395.105 is ruled to be unconstitutional or interpreted as not
providing the starting date for the running of the statute of limitations as extended.
Were the final sentence of KRS 395.105 ruled to be unconstitutional or
inapplicable, there would be no contrary statutory provision as to when the order
appointing Davenport as personal representative for the Estate would be effective
and, given the later date of “effectiveness” identified by CR 58(1), the complaint
would have been filed within the statute of limitations.
However, Batts precludes such a result as it is binding precedent that
has already resolved this issue. In Batts, the Court was addressing the issue of
whether the personal representative, Dale, could properly satisfy the statute of
limitations as set out in KRS 395.278 in reviving a federal asbestos claim by filing
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a motion to revive exactly one year after the decedent died, on the same date that
Dale was appointed personal representative via a signed order. Batts, 217 S.W.3d
at 882. KRS 395.278 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.” Therefore, if the appointment was effective when signed for
purposes of the statute of limitations, the action was timely and if CR 58(1)
applies, it was not. The trial court applied CR 58(1) in dismissing the case.
In reversing, our Court relied on the final sentence of KRS 395.105,
which indicates that the order appointing a fiduciary “shall be effective with the
signing of an order by the judge” and thereby effective on the date rather than the
later date of entry by the clerk. It further indicated:
This provision, taken in combination with CR 1 which
provides that “procedural requirements” in a statute shall
take precedence over a conflicting rule, leads us to the
conclusion that Dale’s appointment as executrix of her
husband’s estate became effective upon the district
judge’s signing of the order on April 21, 2005. Entry of
the order by a clerk was not a prerequisite to Dale’s
ability to assert her authority pursuant to that
appointment.
Batts, 217 S.W.3d at 884. Thus, the motion to revive was filed within the statute
of limitations.
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Our Court further indicated that “[a]lthough Dale’s appointment was
effective when the appointment order was signed by the Hickman District Court
judge, application of this Court’s prior decision in Preece v. Adams, 616 S.W.2d
787 (Ky.App. 1980), would lead to the same result.” Id. In Preece, prospective
administrators filed to be appointed in the wrong court, were appointed and then
moved to revive the decedent’s action, with the circuit court ruling their
appointment was void for lack of jurisdiction, so they sought a proper appointment
and to revive; ultimately, our Court determined the faulty filing after being
appointed by the wrong court was sufficient to toll the statute of limitations.
Batts, 217 S.W.3d at 884.
The Court in Batts noted that because the employer before it clearly
had timely notice of the executor’s intent to revive the decedent’s action,
[i]t would be incongruous to recognize the acts of
administrators acting under an order of a court with no
jurisdiction to appoint them as in Preece but to refuse
recognition of the act of an executor properly appointed
by a court with jurisdiction simply because the clerk did
not enter the order the day the judge signed it.
Id. This result is also consistent with Richardson v. Dodson, 832 S.W.2d 888, 889-
90 (Ky. 1992) (holding that the timely filing of a complaint by the decedent’s son
in his individual capacity was sufficient under CR 15.03 to permit the subsequent
amendment of the complaint naming the personal representative as plaintiff to
relate back as the son was entitled to be appointed, was so appointed, and the
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purpose of the statute of limitations was served as notice of the litigation was given
within the time allowed and not prejudicial) and Modern Bakery, Inc. v. Brashear,
405 S.W.2d 742, 743-44 (Ky. 1966).
Davenport argues that Batts does not apply because:
A) The facts of Batts were distinctly different from the
instant case.
B) The answer to the conflict between CR 58 and KRS
395.105, by way of CR 1(2), was one of TWO
alternate legal bases set forth for the final ruling in
Batts. Therefore, Batts IS NOT binding precedent to
resolve the question at issue in this appeal.
During oral argument, Davenport argued that the ruling in Batts was outcome-
determinative to save the cause of action in that case,1 rather than a correct
interpretation of the law.
Alternatively, Davenport argues that if our Court determines Batts to
be presently controlling precedent that we should overrule it. Davenport also
argues that CR 1(2) cannot apply to let the General Assembly usurp the Supreme
Court’s power, because the effective date and time of an order is a decision of
substance.
1
If this decision was made to save the cause of action, it was ultimately unsuccessful as the case
was later dismissed for failure to prosecute, with this decision affirmed on appeal. Batts v.
Illinois Cent. R. Co., No. 2008-CA-001193-MR, 2009 WL 3151086, at *3 (Ky.App. Oct. 2,
2009) (unpublished).
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We disagree with Davenport. While in Batts the combination of KRS
395.105 and KRS 395.278 meant the action to revive was timely, and here the
combination of KRS 395.105 and KRS 413.180(1) means that Davenport filed the
Estate’s wrongful death claim too late, this does not justify applying a different
rule here. We are confident that CR 1(2) provides a proper mechanism for the
Supreme Court to harmonize KRS 395.105 with CR 58(1), and to apply KRS
395.105 over it as our statutes provide a comprehensive process for probate.
While Batts provided two bases for affirming, neither is dicta as either
would have been a sufficient basis for the Court’s decision.
While statements made in an opinion that are not
necessary to the decision of the question under
consideration by the court are dicta, it does not follow by
any means, and is not true, that the decision of either of
two questions, presented by the record and in the
arguments, is obiter simply because a decision of one of
them disposed of the case and rendered a decision of the
other unnecessary.
Swiss Oil Corporation v. Shanks, 208 Ky. 64, 270 S.W. 478, 479 (1925). Instead,
such decisions are “authoritative . . . and binding unless and until overruled.” Id. at
480.
Batts is a controlling precedent which our panel cannot overrule. See
Taylor v. King, 345 S.W.3d 237, 242 (Ky.App. 2010) (explaining to overrule Court
of Appeals precedent, the Court of Appeals “would have to go en banc”); Rules of
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the Supreme Court (SCR) 1.030(7)(d) (explaining the mechanism needed to go en
banc). Our Court very rarely takes the action of going en banc.
Finally, the appropriate application of the procedural rules as to the
timing of the filing of this action warrant dismissal under the undisputed facts.
There is no valid basis for finding the final sentence of KRS 395.105
unconstitutional simply because Davenport apparently overlooked it when
determining when to file her complaint.
While we could end our discussion here, we would be remiss if we did
not point out that although we believe this result is required, it is simultaneously
intolerable and unjust. An earlier starting date for the statute of limitations in only
this one circumstance provides a trap for unwary practitioners and deprives
personal representatives of the opportunity to see that justice is done for decedents.
Our review has failed to disclose any other statute which makes a
judge’s order effective only with a judge’s signature and without entry by the
clerk. As a practical matter, an order that has not been entered will not be certified,
and a certified copy of an appointment order is required before banks and other
entities will accept a personal representative’s authority.
The implications of KRS 395.105 on the statute of limitations are not
readily apparent or easily ascertainable. While the one-year statute of limitations
provided in KRS 413.140 is modified by KRS 413.180, KRS 413.180 fails to
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cross-reference KRS 395.105, thus easily resulting in a mistaken belief that CR
58(1) governs here as it does in every other known circumstance.
Were it up to us, we would prefer to interpret KRS 395.105 as
clothing personal representatives with the authority to promptly make final
arrangements for the decedent and providing a defense for personal representatives
accused of acting precipitously in engaging in such transactions as are authorized
under KRS 395.195 and KRS 395.200, after the order appointing such person was
signed but before it was entered, rather than being effective for purposes of
beginning the running of the statute of limitations.2 However, under the
circumstances as we are not interpreting this statute on a blank slate, we believe it
appropriate for us to strongly urge the Kentucky Supreme Court to consider
overruling Batts as precedent, act to clarify how KRS 395.105 can properly be
reconciled with CR 58(1), or potentially modify CR 1(2) to resolve this dilemma.
Alternatively, the General Assembly could act to amend the wording of the final
sentence of KRS 395.105(1).
2
Ideally, an action could be saved from the expiration of the statute of limitations where the
judge signed the order appointing the personal representative and that personal representative
filed an action pursuant to that authority, with tolling allowed between the time of the signature
and the entry of the order appointing because notice of the action was provided within the statute
of limitations, thereby applying the second ground to save the action in Batts. Such a rule would
be similar to the mailbox rule for prisoners as while a potential personal representative could
lobby a judge for a quick appointment to save a pending or potential action, that same person
could not necessarily get the clerk’s office to enter such an order that same day.
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Accordingly, we affirm the Jefferson Circuit Court’s order granting
Kindred’s motion for summary judgment dismissing the complaint.
ALL CONCUR.
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BRIEF AND ORAL ARGUMENT BRIEF FOR APPELLEE KINDRED
FOR APPELLANT: HOSPITALS LIMITED
PARTNERSHIP D/B/A KINDRED
Harry B. O’Donnell IV HOSPITAL – LOUISVILLE:
Louisville, Kentucky
Paul A. Dzenitis
Emily W. Newman
Megan P. Keane
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEE KINDRED HOSPITALS
LIMITED PARTNERSHIP D/B/A
KINDRED HOSPITAL –
LOUISVILLE:
Emily W. Newman
Louisville, Kentucky
BRIEF FOR APPELLEE
COMMONWEALTH:
Matthew F. Kuhn
Solicitor General
Brett R. Nolan
Principal Deputy Solicitor General
Michael R. Wajda
Assistant Solicitor General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE COMMONWEALTH:
Brett R. Nolan
Frankfort, Kentucky
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