LONG (CLAIRE HICKS), ET AL. VS. LOEFFLER (ROBERT H.), ET AL.
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RENDERED: SEPTEMBER 12, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001411-MR
CLAIRE HICKS LONG;
ELIZABETH HICKS MOSLEY
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
ACTION NO. 03-CI-001994
ROBERT H. LOEFFLER; PATRICIA
RICHARDSON STOVALL; SARAJANE
RICHARDSON LOEFFLER
APPELLEES
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, DIXON, AND WINE, JUDGES.
WINE, JUDGE: Claire Hicks Long (“Long”) and Elizabeth Hicks Mosley
(“Mosley”) brought this action against Robert H. Loeffler (“Loeffler”), as
administrator of the estate of Anita W. Hicks, and as trustee of the Anita W. Hicks
Revocable Trust and of the Survivor’s and Decedent’s Trusts created pursuant to
the Hicks Revocable Trust. They also asserted claims against Patricia Richardson
Stovall (“Patricia”) and Sarajane Richardson Loeffler (“Sarajane”) to recover
assets they received as beneficiaries of the Anita W. Hicks Revocable Trust. Long
and Mosley appeal from the trial court’s orders granting summary judgment to
Loeffler and assessing attorney fees and costs from their share of the trusts. They
also argue that the trial court abused its discretion in denying their motions to
compel discovery and to file an amended complaint. We find that the trial court
properly granted summary judgment on the issues relating to the Survivor’s Trust,
and that the court did not abuse its discretion by denying the motions to compel
and to file an amended complaint. However, we conclude that summary judgment
was not appropriate on the issues relating to the Decedent’s Trust. Hence, we
affirm in part, reverse in part, and remand for further proceedings.
The underlying facts of this action are not in dispute. On August 17,
1993, Charles and Anita Hicks created the Hicks Revocable Trust, also known as
the Joint Trust Agreement (“Joint Trust”). Under the terms of the Joint Trust,
Charles and Anita served as co-trustees and primary beneficiaries. Upon the death
of either person, the Joint Trust directed that the surviving spouse would become
the sole trustee. The Joint Trust further directed the surviving spouse to divide the
corpus of the trust into two parts, identified as the “Decedent’s Trust” and the
“Survivor’s Trust.”
The Decedent’s Trust is an irrevocable trust funded in an amount
equal to either the federal estate tax exemption in effect during the year of the
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decedent’s death, or one-half of the total property in the Joint Trust, whichever
amount is less. The surviving spouse was entitled to appoint the undistributed
income and principal of the Decedent’s Trust to himself or herself up to a
maximum of $5,000.00 or five percent of the aggregate value of the estate per year.
The Joint Trust further provided that any assets not allocated to the Decedent’s
Trust would be allocated to the Survivor’s Trust.
The Survivor’s Trust is a revocable trust which granted a general and
unrestricted power to the survivor to appoint the principal and undistributed
income to himself or herself, to his or her estate, to the Decedent’s Trust, or to any
person or persons. Upon the death of the surviving spouse and after payment of
certain debts and expenses, the remaining assets of both trusts were to be equally
divided between Charles’s children, Long and Mosley, and Anita’s nieces, Patricia
and Sarajane.
Charles Hicks died testate on July 9, 1996. The assets of the
Decedent’s and Survivor’s Trusts were held for a time in the same account in
which the Joint Trust had been held. On July 30, 1996, Anita created the Anita W.
Hicks Revocable Trust (“Anita’s Trust”). Shortly thereafter, in August 1996, a
separate account was opened to hold the assets of the Decedent’s Trust. The
remaining assets remained in the Joint Trust account, representing the corpus of the
Survivor’s Trust. By November 1997, Anita appointed all of the assets of the
Survivor’s Trust to Anita’s Trust, leaving the Joint Trust account with a zero
balance. Anita also made appointments from the Decedent’s Trust.
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Anita died on December 1, 2001. Hilliard Lyons, the executor named
in Anita’s will, declined to serve. Thereafter, Loeffler petitioned and was
appointed as administrator of Anita’s estate. Loeffler also began serving as trustee
of the Decedent’s Trust. Loeffler forwarded a partial distribution to Long and
Mosley and advised them that there would be no distributions from the Survivor’s
Trust. Patricia and Sarajane received their shares from the Decedent’s Trust, and
were also the only beneficiaries of Anita’s Trust.
On March 6, 2003, Long and Mosley filed a complaint against
Loeffler, as administrator of Anita’s estate and as trustee of the various trusts, and
against Patricia and Sarajane. In the complaint, they asserted that Anita never
properly funded the Survivor’s Trust, that she failed to make proper appointments
from the Survivor’s Trust, and that she made excessive and unauthorized
withdrawals from the Decedent’s Trust. They sought restoration of the improperly
withdrawn funds to the Decedent’s and Survivor’s Trusts, and a disbursement of
these restored funds in accord with the provisions of the Joint Trust.
Loeffler filed a motion for summary judgment on the issues relating to
the Survivor’s Trust. In an order entered on December 2, 2003, the trial court
found that the Survivor’s Trust was properly created and funded, and that Anita
exercised a valid power to appoint to herself the assets contained in the Survivor’s
Trust. As a result of the summary judgment, the only remaining issue concerned
whether Anita, and Loeffler as successor trustee, made withdrawals from the
Decedent’s Trust in excess of the amount authorized by the Joint Trust.
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On April 4, 2005, Long and Mosley moved to file an amended
complaint, asserting that Anita had a conflict of interest in her roles as trustee of
the Decedent’s and Survivor’s Trusts. Consequently, they asserted that Anita was
required to obtain court approval before making any withdrawals from either trust.
The trial court denied the motion, finding that it was not timely.
Long and Mosley filed a motion to continue the scheduled trial date of
April 28, 2005, stating that they had not been able to complete discovery. The trial
court denied the motion, but later continued the trial date due to health problems
with Long and Mosley’s counsel. Subsequently, Loeffler filed a motion for
summary judgment on the remaining issues, but the trial court denied the motion
on January 16, 2006.
The matter was ultimately scheduled for trial on March 1, 2006. Long
and Mosley filed a motion to continue the trial date, stating that they had not been
able to complete discovery and because Mosley was unable to attend the trial. The
court denied the motion. But on March 1, 2006, the trial court continued the trial
date due to a conflict with another matter. Thereupon, Loeffler renewed his
motion for summary judgment. Oral arguments were held on March 3, 2006, and
after considering Loeffler’s argument and Long and Mosley’s response, the trial
court granted summary judgment for Loeffler on March 16, 2006. Thereafter, the
trial court granted Loeffler’s motion to assess costs of this action, including
attorney fees, against Long’s and Mosley’s share of the Decedent’s Trust. This
appeal followed.
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On appeal, Long and Mosley raise five basic issues. First, they argue
that they were entitled to summary judgment on the issues relating to the
Survivor’s Trust because that trust clearly required Anita to make all appointments
in writing. Second, they argue that the trial court abused its discretion by denying
their motion to file an amended complaint. Third, they contend that the trial court
abused its discretion by denying their motion to compel discovery from the trusts’
attorney. Fourth, they argue that summary judgment was not appropriate on the
issues relating to the Decedent’s Trust. And fifth, Long and Mosley assert that the
trial court abused its discretion by assessing attorney fees from their share of the
Decedent’s Trust. We shall address each argument in turn.
Long and Mosley first argue that the trial court erred in granting the
partial summary judgment finding that Anita exercised a valid power to appoint to
herself the assets contained in the Survivor’s Trust. This issue turns on the proper
interpretation of Article VII, Section B, of the Joint Trust, which sets out the extent
of the surviving trustee’s power to appoint principal and interest from the
Survivor’s Trust.
Powers of Appointment of Principal. During his
or her lifetime, the Survivor shall have a general power to
appoint the principal and any undistributed income of the
Survivor’s Trust or any part thereof, to himself, or to
herself, or to any person or persons.
Prior to the death of the Survivor, he or she shall
have the power to appoint the principal and any
undistributed income of the Survivor’s Trust or any part
thereof to his or her Estate or to any person or persons, or
to the Decedent’s Trust. Such power of appointment
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shall be exercised only by means of written directions,
executed by the Survivor and delivered to the Trustee
during the lifetime of the Survivor. If the Survivor
executes and delivers more than one such written
direction to the Trustee, the last one shall control unless,
by its context, the Survivor clearly indicates otherwise.
Long and Mosley focus on the second paragraph of this section, which
states that the “power of appointment shall be exercised only by means of written
directions . . . .” Based on this language, they assert that all appointments from the
Survivor’s Trust must be in writing, including Anita’s appointments to herself.
Since Anita failed to provide written directions appointing the assets of the
Survivor’s Trust to herself, Long and Mosley argue that those appointments must
be deemed invalid. As a result, they assert that any assets which Anita transferred
from the Survivor’s Trust to her own trust must be restored.
However, we find that the trial court’s interpretation of this section is
more consistent with its plain language when read in conjunction with the rest of
the Joint Trust. As the trial court correctly noted, the interpretation of a written
instrument is typically an issue of law for the court to decide. Morganfield
National Bank v. Damien Elder & Sons, 836 S.W.2d 893, 895 (Ky. 1992). A court
is obliged to look first within the “four corners” of the document and determine the
grantor’s intent from the document itself. Graham v. Jones, 386 S.W.2d 271, 273
(Ky. 1965). Where possible, all parts of a trust instrument must be given effect
and every part of an instrument must be read in conjunction with every other part.
Department of Revenue v. Kentucky Trust Co., 313 S.W.2d 401, 404 (Ky. 1958).
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In this case, the trial court noted that the Joint Trust contemplated that
the surviving spouse would also be the trustee and primary beneficiary of the
Survivor’s Trust. Furthermore, the first paragraph of Article VII, Section B, grants
the surviving spouse an unrestricted power to make appointments from the
Survivor’s Trust. The first paragraph of Section B allowed Anita to make
appointments to herself without a writing requirement. The direction in the second
paragraph – “[s]uch power of appointment shall be executed only by means of
written directions” – applied only to Anita’s appointments from the Survivor’s
Trust to her estate, to the Decedent’s Trust, or to others. Consequently, the trial
court properly granted summary judgment for Loeffler on this issue.
Long and Mosley next argue that the trial court abused its discretion
by denying their motion to amend the complaint. On April 4, 2005, they moved to
amend their complaint to add an argument that Anita had a conflict of interest in
the exercise of any power over the trusts and, as a consequence, her exercise of any
power of appointment could only be made with court authorization. The trial court
denied the motion, noting its prior order which assigned the case for trial on April
28, 2005, and required pleadings to be amended not less than 45 days before trial.
After a responsive pleading is served, Kentucky Rules of Civil
Procedure (“CR”) 15.01 allows a trial court to permit a party to amend a pleading
“only by leave of court or by written consent of the adverse party; and leave shall
be freely given when justice so requires.” But while amendments should be freely
allowed, the trial court has wide discretion to grant or deny such an amendment,
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and we will not disturb its ruling unless it has abused its discretion. Lambert v.
Franklin Real Estate Co., 37 S.W.3d 770, 779 (Ky. App. 2000), citing Graves v.
Winer, 351 S.W.2d 193, 197 (Ky. 1961). In determining whether to permit a party
to amend his complaint, a court may consider, among other factors, whether an
amendment would prejudice or work an injustice upon the opposing party. Shah v.
American Synthetic Rubber Corp., 655 S.W.2d 489, 493 (Ky. 1983).
Long and Mosley note that there is no suggestion that their delay in
asserting this claim was in bad faith. They also argue that no party would have
been prejudiced by the proposed amendment. Although they filed their motion
within 45 days of the scheduled trial, they point out that the trial date was
subsequently continued. Consequently, Long and Mosley argue that the trial court
abused its discretion by denying their motion to file an amended complaint.
However, there were valid reasons justifying the trial court’s denial of
the motion. First, Long and Mosley failed to offer any compelling explanation for
the delay in asserting this claim. The motion to amend was filed more than two
years after the original complaint and less than a month before the scheduled trial.
Long and Mosley now suggest that the delay was attributable to problems with
discovery. But at the hearing on the motion, their counsel conceded that the claim
seemed obvious to him even before discovery was completed.
Moreover, Loeffler would have been prejudiced by the late assertion
of this claim. The amended complaint presented a wholly new theory of the case –
that Anita lacked authority to make any appointments from either the Survivor’s or
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the Decedent’s Trusts. In conjunction with their motion to amend, Long and
Mosley filed a motion to continue the trial to allow them to pursue additional
discovery on this issue. The trial court concluded that the additional delay was not
warranted. And while the court later granted a motion to continue the scheduled
trial date, the continuance was granted because of health issues involving Long and
Mosley’s counsel. Furthermore, the court granted that continuance on the
condition that no additional issues were to be raised. Given these circumstances,
we cannot find that the trial court abused its discretion by denying the motion to
file an amended complaint.
Long and Mosley next argue that the trial court erred in denying their
motion to compel discovery from the trusts’ attorney. On March 28, 2005, Long
and Mosley moved the trial court for an order compelling production of all
attorney billing statements Loeffler received regarding his administration of the
trusts. As part of the same motion, Long and Mosley moved to compel deposition
testimony from William Wilson, the attorney who drafted the Joint Trust and
provided legal services relating to the trusts after Charles’s death. In particular,
they sought to require Wilson to provide an explanation for all transfers made from
the trust accounts.
Loeffler objected on the grounds that the billing statements were
irrelevant to the issues presented in this case and that the descriptions contained in
the billing statements were privileged as attorney work product. Loeffler also
explained that Wilson was able and available to explain all the transfers, but that
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doing so would be extremely time consuming. Loeffler further stated that this
information was available from the trust records, and that Wilson could explain
how Long and Mosley could interpret the trust account statements. Wilson also
offered to explain any specific transactions about which Long and Mosley wanted
to question him. Loeffler also requested that Long and Mosley pay Wilson for his
time if they wished to depose him in detail as an expert witness.
The trial court agreed with Loeffler on both issues, ordering him to
provide the billing statements, but stated that the description of legal services was
to be redacted if those services pertained to this litigation. The court also denied
the motion to compel Wilson to explain all the transactions from the trust accounts,
but stated that Long and Mosley could ask Wilson about specific transactions.
Long and Mosley argue that the trial court abused its discretion by allowing
Loeffler to produce redacted billing statements because he failed to establish that
these documents were privileged. They further argue that they were entitled to
depose Wilson in detail as part of their claim for an accounting of the trusts.
As to the first issue, we find that the trial court properly ordered the
billing statements related to this litigation redacted. We agree with Long and
Mosley that claims of privilege are to be carefully scrutinized, and that a party
asserting a claim of privilege bears the heavy burden of proving its applicability.
Sisters of Charity Health Systems, Inc. v. Raikes, 984 S.W.2d 464, 468-69 (Ky.
1998). Nevertheless, it is equally well-established that factual information
appropriately discoverable from a party through deposing an employee or former
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employee must be differentiated from mental impressions and advice protected by
the attorney-client privilege and trial preparation materials protected by the workproduct rule as covered by CR 26.02. Meenach v. General Motors Corp., 891
S.W.2d 398, 402 (Ky. 1995)
In this case, Long and Mosley were seeking to show that Anita and
Loeffler made excessive and unauthorized withdrawals from the Decedent’s Trust.
The trial court allowed them access to the unredacted attorney billing statements
for the period when those allegedly unauthorized withdrawals occurred. These
records were potentially relevant to explain certain transfers from the Decedent’s
Trust. However, they fail to explain how the billing statement details related to
this litigation would lead to the discovery of potentially admissible evidence. To
the contrary, those statements would be more likely to reveal the attorney’s thought
processes and plans in regard to the defenses in this litigation. Given the limited
relevance and clearly privileged nature of these records, the trial court properly
ordered the billing statements redacted.
Likewise, we find that the trial court properly limited the scope of
Wilson’s deposition testimony. A trial court has broad discretion over disputes
involving the discovery process, and we will not disturb that discretion except for
abuse. Sexton v. Bates, 41 S.W.3d 452, 455 (Ky. App. 2001). Long and Mosley
had access to all relevant account statements for the trusts at issue prior to taking
Wilson’s deposition on March 11, 2005. At his deposition, Wilson generally
explained how and when withdrawals of principal and interest were made, and
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offered to explain specific transactions. Considering that there were more than 100
transactions involving the Decedent’s Trust, the trial court concluded that Long
and Mosley’s request to question Wilson in detail about every transaction was
unreasonable. Furthermore, Long and Mosley never sought to resume Wilson’s
deposition to ask about specific transactions. Under the circumstances, we find
that the trial court did not abuse its discretion by limiting the scope of Wilson’s
deposition testimony.
The fourth and most significant issue in this case concerns the trial
court’s order granting summary judgment on Long and Mosley’s remaining claims
involving the Decedent’s Trust. As previously noted, the Joint Trust permitted
Anita to annually appoint to herself undistributed income and principal of the
Decedent’s Trust in the amount of $5,000.00, or five percent of the aggregate value
of the estate, whichever amount was greater. This authority was commonly
referred to as Anita’s “five and five powers.” In their complaint, Long and Mosley
asserted that Anita transferred more assets out of the Decedent’s Trust than was
permitted under her “five and five powers.”
The trial court found that Long and Mosley had been given an ample
amount of time to complete discovery, but were still unable to identify any specific
withdrawals from the trust which they alleged to be improper. The court further
noted their interrogatory response which took the position that Anita was not
allowed to withdraw any principal from the Decedent’s Trust. As a result, the
court concluded that the only contested issue was whether Anita was authorized to
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take distributions of principal from the Decedent’s Trust. Since the Decedent’s
Trust clearly allowed her to take such distributions up to five percent of the
aggregate value of the estate, and since Long and Mosley had failed to present any
specific evidence that Anita had exceeded that authority, the trial court concluded
that Loeffler was entitled to summary judgment on this issue.
In reviewing an order granting summary judgment, “[t]he standard of
review on appeal . . . is whether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party was entitled to
judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
1996), citing CR 56.03. There is no requirement that the appellate court defer to
the trial court since factual findings are not at issue. Goldsmith v. Allied Building
Components, Inc., 833 S.W.2d 378, 381 (Ky. 1992). Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, stipulations,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” CR 56.03. In making this determination, the trial
court must consider all evidence of record, including depositions, answers to
interrogatories, stipulations and admissions on file. “[S]ummary judgment is only
proper where the movant shows that the adverse party could not prevail under any
circumstances.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476,
480 (Ky. 1991), citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky.
1985).
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Long and Mosley argue that summary judgment was inappropriate for
several reasons. First, they argue that the matter was not ripe for summary
judgment because they had not been given ample time to complete discovery.
“[Summary judgment] is proper only after the party opposing the motion has been
given ample opportunity to complete discovery and then fails to offer controverting
evidence.” Suter v. Mazyck, 226 S.W.3d 837, 841 (Ky. App. 2007), citing
Pendleton Brothers Vending, Inc. v. Commonwealth, Finance & Administration
Cabinet, 758 S.W.2d 24, 29 (Ky. 1988), and Hartford Insurance Group v. Citizens
Fidelity Bank & Trust Co., 579 S.W.2d 628 (Ky. App. 1979).
Unlike in Suter, the trial court in this case had issued an order setting
the case for trial and setting a date for completion of discovery. Nevertheless,
Long and Mosley note that they filed the motion to compel on March 28, 2005, but
the trial court did not rule on the pending motion until February 17, 2006. They
contend that this delay in ruling on the motion prevented them from completing
discovery within the deadline provided in the pre-trial order. They further argue
that it would have been useless to re-commence Wilson’s deposition until the trial
court ruled on the motion to compel. Thus, Long and Mosley assert that the trial
court acted arbitrarily in finding that they had ample time to complete discovery.
But as discussed above, the trial court did not abuse its discretion by
denying the motion to compel. Furthermore, Long and Mosley never sought to recommence the deposition to ask Wilson about specific transactions, as agreed by
Loeffler. Instead, they waited until almost one month before the scheduled trial to
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remind the court about the pending motion. Finally, this case had been pending for
three years when the court granted the motion for summary judgment, and Long
and Mosley had access to the trust records for more than a year. Under these
circumstances, we cannot find that the trial court’s delay in ruling on the pending
motion unfairly prevented Long and Mosley from completing discovery before
trial.
Long and Mosley next argue that the trial court unreasonably
circumscribed the scope of the issues before it on the motion for summary
judgment. Loeffler propounded an interrogatory to Long and Mosley asking them,
in pertinent part:
Please state each and every fact on which you rely to
support your contention stated in Numerical paragraph 20
of your Complaint herein that Anita Hicks wrongfully
transferred assets out of the Decedent’s Trust in excess of
the amount permitted under the terms of the Joint
Trust . . . .
On March 29, 2005, Long and Mosley served amended responses
stating, in pertinent part:
Plaintiffs contend that all transfers or withdrawals made
by either Anita W. Hicks or the Successor Trustee,
Robert H. Loeffler, from the Decedent’s Trust, which
constitute more than the net income of such Trust are a
violation of the Joint Trust Agreement of August 17,
1993. Furthermore, the Plaintiffs object to and contend
that any payment of principal from the Decedent’s Trust
was and is a violation of the Joint Trust Agreement of
August 17, 1993 and should be restored.
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Based on this response, the trial court concluded that it could decide
this disputed issue as a matter of law based on the clear language of the Joint Trust.
By narrowly focusing on this issue, Long and Mosley contend that the trial court
effectively prevented them from litigating the remaining claim in this case – that
Anita took distributions of principal from the Decedent’s Trust in excess of her
“five and five” powers set out in the Joint Trust.1
This issue turns on the effect of Long and Mosley’s amended
interrogatory response of March 29, 2005. CR 33.01 permits a party to serve such
interrogatories on the opposing party during the discovery process, and
interrogatories may relate to any matters which may be inquired into under CR
26.02. CR 33.02(1). A trial court has the authority under CR 37.01 to sanction a
failure to answer interrogatories. But there are no Kentucky cases on whether an
interrogatory response may restrict the proof which a party may present at trial.
However, cases interpreting Federal Rules of Civil Procedure (“Fed.
R. Civ. Pro.”) 33, the federal counterpart to CR 33, have held that, ordinarily,
answers to interrogatories do not limit the proof which may be presented at trial.
Sperling v. Hoffmann-La Roche, Inc., 924 F. Supp. 1396, 1412 (D.N.J. 1996),
citing Pressley v. Boehlke, 33 F.R.D. 316, 317 (W.D.N.C. 1963); and McElroy v.
1
Long and Mosley contend that they were entitled to assert their claim that Anita had an
inherent conflict of interest in her roles as trustee and beneficiary of the Decedent’s and
Survivor’s Trusts. As a result, they argue that she was required to obtain court approval before
making any withdrawals from either trust, citing Kentucky Revised Statutes (“KRS”) 386.820(2)
and Wiggins v. PNC Bank Kentucky, Inc., 988 S.W.2d 498 (Ky. App. 1998). However, this
claim was asserted in their amended complaint, which the trial court did not allow them to file.
Since we have previously found that the trial court did not abuse its discretion by denying their
motion to file the amended complaint, this issue was not before the court.
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United Air Lines, Inc., 21 F.R.D. 100 (W.D. Mo. 1957). These cases are premised
on the principle that a party should not be irrevocably bound by an interrogatory
which it must answer early in the case, before it has completed discovery and has a
full understanding of the case. Marcoin, Inc. v. Edwin K. Williams & Co., Inc.,
605 F.2d 1325, 1328 (4th Cir. 1979). See also Freed v. Erie Lackawanna Railway
Co., 445 F.2d 619, 620-21 (6th Cir. 1971), and Victory Carriers, Inc. v. Stockton
Stevedoring Co., 388 F.2d 955, 959 (9th Cir. 1968).
We find this reasoning to be applicable to interpret Kentucky’s CR 33.
The trial court may have been within its discretion to penalize Long and Mosley
for their failure to identify their expert witness by the date provided in the pre-trial
discovery order. The court also might have granted Loeffler’s motion in limine to
exclude any evidence supporting a different theory of the case. However, the trial
court did neither.
Rather, the trial court elected to proceed on Loeffler’s renewed
motion for summary judgment. A party opposing a properly-supported summary
judgment motion cannot defeat it without presenting at least some affirmative
evidence showing that there is a genuine issue of material fact for trial. Steelvest,
807 S.W.2d at 482. But under these circumstances, we cannot find that the
interrogatory response of March 23, 2005, limited the evidence which Long and
Mosley could introduce in response to Loeffler’s motion for summary judgment.
Thus, we turn to the ultimate issue of whether Loeffler was entitled to
summary judgment. We agree with the trial court that the Decedent’s Trust clearly
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permitted Anita to withdraw some principal from the Decedent’s Trust. But as the
court noted in another order denying Loeffler’s earlier motion for summary
judgment, the issue before the court was whether Anita, and later Loeffler as
successor trustee, made withdrawals of principal from the Decedent’s Trust in
excess of this amount.
In support of his motion for summary judgment, Loeffler submitted
the affidavit of William Wilson. Wilson stated that he had reviewed all statements
from the trust accounts, and concluded that Anita had not exceeded her “five and
five powers” in making appointments from the Decedent’s Trust. He also took
issue with Long and Mosley’s assertion that Anita had wrongfully withdrawn
assets from the Decedent’s Trust to purchase a condominium for herself. Wilson
conceded that Anita had withdrawn funds from the Decedent’s Trust to pay an
entrance fee for a residential facility. However, he stated that this fee was
refunded to the Decedent’s Trust upon Anita’s death. In the alternative, Wilson
took the position that the Decedent’s Trust allowed Anita to withdraw principal to
provide for her own support, and consequently, her withdrawal of principal from
the Decedent’s Trust for this purpose was authorized.
Loeffler argues that Long and Mosley failed to present any evidence
to rebut Wilson’s affidavit. But in response to the motion for summary judgment,
Long and Mosley submitted the affidavit of their expert, William R. Klump,
C.P.A., dated March 3, 2006, in which he stated that Anita took distributions from
the Decedent’s Trust in excess of her authority. After reviewing the trust
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statements, Klump did not identify as improper any particular withdrawal from the
Decedent’s Trust. However, he states that the income and five percent of the
aggregate value of the Trust for the years 1997 to February 2005 was $173,751.12,
and that during this period Anita and Loeffler transferred a total of $417,839.74.
Klump also notes that a total of $120,769.00 was transferred back into the
Decedent’s Trust account after Anita’s death.2 As a result, Klump takes the
position that Loeffler must restore $123,320.64 to the Decedent’s Trust. He also
states that Loeffler must restore an additional $65,669.53 to the Decedent’s Trust,
representing lost income from the improper withdrawals. Klump suggested there
may be additional income loss for the period from February 2005 until March
2006.
We are troubled by the late filing of Klump’s affidavit and by Long
and Mosley’s failure to comply with pre-trial discovery orders or to timely prepare
for trial. Furthermore, Klump’s affidavit does not set out the facts supporting his
conclusions. But viewing the matter strictly from a summary judgment
perspective, we conclude that Klump’s affidavit was sufficient to show the
existence of a genuine issue of material fact regarding the withdrawals of principal
from the Decedent’s Trust by Anita and Loeffler. Therefore, summary judgment
was not appropriate.
2
This latter amount apparently represents the refunded residential entrance fee refunded to the
Decedent’s Trust.
-20-
And since Loeffler was not entitled to summary judgment at that time,
the trial court also erred in granting his later motion assessing the costs of
litigation, including attorney fees, against Long’s and Mosley’s share of the
Decedent’s Trust. We agree that the trial court has the discretion to assess such
costs against the unsuccessful party in an action for settling an estate. KRS
453.040(2). See also Trustees of Home for Poor Catholic Men v. Coleman, 122
Ky. 544, 92 S.W. 342 (1906). But in the absence of a final judgment in favor of
Loeffler, any such award was premature.
In conclusion, we find that the trial court properly granted summary
judgment for Loeffler on Long and Mosley’s issues relating to the Survivor’s
Trust. We also find that the trial court did not abuse its discretion by denying Long
and Mosley’s motions to file an amended complaint and to compel discovery.
However, we conclude that the trial court unduly circumscribed the remaining
issues relating to the Decedent’s Trust. As a result, the trial court overlooked
evidence showing that there was a genuine issue of material fact for trial.
Consequently, summary judgment and the award of attorney fees and costs were
not appropriate. Therefore, this matter must be remanded for trial on the issue
relating to the expenditures made by Anita, and Loeffler as successor trustee, from
the Decedent’s Trust.
Accordingly, the judgment of the Jefferson Circuit Court is affirmed
in part, reversed in part, and remanded for further proceedings as set forth in this
opinion.
-21-
ALL CONCUR.
BRIEFS FOR APPELLANTS:
John E. Herbison
Nashville, Tennessee
James Hays Lawson
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANTS:
Fletcher W. Long, pro hac vice
Springfield, Tennessee
BRIEF AND ORAL ARGUMENT
FOR APPELLEE, ROBERT H.
LOEFFLER:
William A. Hoback
Louisville, Kentucky
BRIEF FOR APPELLEES,
PATRICIA RICHARDSON
STOVALL AND SARAJANE
RICHARDSON LOEFFLER:
I. Joel Frockt
Ellen S. Bowles
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLEES, PATRICIA
RICHARDSON STOVALL AND
SARAJANE RICHARDSON
LOEFFLER:
I. Joel Frockt
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