JULIE ANN HARRIS v. JANICE BAKER, INDIVIDUALLY, AND AS PARENT AND CUSTODIAN OF NICHOLAS COLLINS, A MINOR CHILD; AMERISOURCE; BANK ONE; FIRST USA BANK; ROBER HABERSTOCK; FIFTH THIRD LEASING; STOCK YARDS BANK; BANK OF LOUISVILLE; APS; PIONEER BANK; TRUST ALLIANCE, INC.; FEDERAL HOME HEALTH CARE; CITICORP VENDOR FINANCE CO.; AND CHARLES W. DOBBINS, JR., SUCCESSOR ADMINISTRATOR OF ESTATE OF JAMES C. COLLINS
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RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000396-MR
JULIE ANN HARRIS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NOS. 00-CI-003083 & 99-CI-007663
JANICE BAKER, INDIVIDUALLY, AND AS PARENT
AND CUSTODIAN OF NICHOLAS COLLINS, A MINOR
CHILD; AMERISOURCE; BANK ONE; FIRST USA
BANK; ROBER HABERSTOCK; FIFTH THIRD LEASING;
STOCK YARDS BANK; BANK OF LOUISVILLE; APS;
PIONEER BANK; TRUST ALLIANCE, INC.; FEDERAL
HOME HEALTH CARE; CITICORP VENDOR FINANCE
CO.; AND CHARLES W. DOBBINS, JR., SUCCESSOR
ADMINISTRATOR OF ESTATE OF JAMES C. COLLINS
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
Julie Ann Harris appeals from an order of
the Jefferson Circuit Court denying her motion for leave to
purchase personal property bequeathed to her by her late
husband, James C. Collins, from his insolvent estate.
Because
we conclude that the order from which this appeal has been taken
is not final or appealable, we dismiss the appeal.
James C. Collins died by suicide on September 30,
1999.
His estate soon became embroiled in complex civil
litigation involving multiple plaintiffs; eventually four
separate actions were consolidated.
It is widely believed that
the estate is insolvent to a great degree.
In advance of a status conference scheduled for
January 6, 2003, Randolph Noe, administrator of Collins’s
estate, prepared for the court and the parties of record a
detailed summary of the estate’s condition and a progress report
toward settlement.
The final paragraph of Noe’s report provided
as follows:
(10)
Collins’s personalty. Mike Hinson, on behalf of
Julie Collins, delivered to me a Rolex watch,
diamond ring, and some other jewelry, as well as an
inventory and appraisal of all tangible personalty
(generally, household goods). According to this
inventory, property belonging to the estate is
valued at $9,704 and that belonging to Julie,
$4,000. All items (except the jewelry which is
held in my firm’s safe deposit box) are held in
storage by A. Arnold . . . . We should consider an
auction of this property, including the jewelry. A
full appraisal of the jewelry would have cost $800
(which I declined) but the appraiser suggested that
it would bring no more than $3,000, tops. He felt
that an auction would be a good method of selling
the jewelry, also.
During an informal court conference, Noe orally
presented his recommendations and the auction proposal.
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Following Noe’s recital, Janice S. Baker, the decedent’s former
spouse (and the mother of his son, Nicholas Collins), who is a
principal creditor of his estate, offered to purchase Collins’s
watch and ring for $2,000.00.
The parties, including Harris,
who was represented by counsel at the conference, appeared
unanimously to support Baker’s proposal.
By order of January 8, 2003, the trial court
memorialized the proceedings.
The order noted Baker’s offer to
purchase the jewelry, the estate’s favorable response, and the
absence of any objection.
The order provided that the remaining
personalty would be sold at auction to be arranged as soon as
possible.
On January 15, 2003, Harris filed a motion requesting
that she rather than Baker be permitted to purchase the watch
and ring.
She offered to pay $2,000.00 for the jewelry.
In
support of her motion, Harris filed a copy of Collins’s will.
She claimed to be entitled to the watch and ring pursuant to its
provisions.
Item II of Collins’s will provides as follows:
A. I give all of my clothing and other articles of personal
use, my household furnishings and effects, and any
automobiles I may own, together will all policies of
insurance relating to these items, to my spouse, Julie
Ann Harris Collins, if she survives me. If my spouse
does not survive me, then I give all my tangible personal
property to my son, Nicholas Collins.
B. I may leave in my household safe or with my Will, a
letter or memorandum which will be signed by me,
requesting my Personal Representative to make further
distribution of certain items of my tangible personal
-3-
property. I request that the person or persons entitled
to my tangible personal property will honor said
memorandum or letter.
The trial court conducted a hearing on Harris’s motion
on January 21, 2003, and entered an order denying the motion two
days later.
In handwritten text, it provided, in part, as
follows: “At request of counsel, this is a final + appealable
Order.”
This appeal followed.
Harris argues on appeal that Noe breached his
obligation to dispose of the property at “the best price
obtainable” pursuant to the requirements of KRS1 395.200.
While
she concedes that the estate’s insolvency caused Collins’s
bequest to her to abate, she contends that his wish that she
receive his watch and ring should be respected.
“A final or appealable judgment is a final order
adjudicating all the rights of all the parties in an action or
proceeding or a judgment made final under Rule 54.02.”
54.01.
CR 54.02 provides as follows:
When more than one claim for relief is
present in an action, whether as a claim,
counterclaim, cross-claim, or third-party
claim, or when multiple parties are
involved, the court may grant a final
judgment upon one or more but less than all
of the claims or parties only upon a
determination that there is no just reason
for delay. The judgment shall recite such
determination and shall recite that the
1
Kentucky Revised Statutes.
2
Kentucky Rules of Civil Procedure.
-4-
CR2
judgment is final. In the absence of such
recital, any order or other form of
decision, however designated, which
adjudicates less than all the claims or the
rights and liabilities of less than all the
parties shall not terminate the action as to
any of the claims or parties, and the order
or other form of decision is interlocutory
and subject to revision at any time before
the entry of judgment adjudicating all the
claims and the rights and liabilities of all
the parties.
While the court’s order of January 23, 2003 contains
finality language, it does not recite the determination that
there is no just reason for delay as mandated by the rule.
omission of this requirement is fatal.
S.W.2d 719 (Ky. 1975).
The
Hale v. Deaton, 528
More importantly, Harris’s appeal is
based on an order that has resolved only an intermediate issue
without disposing of all of the claims of all of the parties to
the litigation.
Therefore, we have no jurisdiction to review
the court’s interlocutory order.
As the appeal cannot be
maintained, we must dismiss it sua sponte.
This court ORDERS that this appeal be and it is hereby
DISMISSED.
ALL CONCUR.
/s/ Sara W. Combs
CHIEF JUDGE, COURT OF APPEALS
ENTERED:
April 22, 2005
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BRIEF FOR APPELLANT:
Stanley W. Whetzel, Jr.
Louisville, Kentucky
BRIEF FOR APPELLEE JANICE
BANKER:
Robert G. Lohman, Jr.
Louisville, Kentucky
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