MARY ALICE RAISOR, INDIVIDUALLY AND AS TRUSTEE UNDER REVOCABLE TRUST OF WILLIAM R. BURKETT, SR. v. WILLIAM R. BURKETT, JR.; WILLIAM R. BURKETT, III; HEATHER G. BURKETT; ALLEN P. DODD, III; DODD & DODD ATTORNEYS, PLLC; THE ESTATE OF WILLIAM R. BURKETT KUTE, CO-ADMINISTRATORS); AND THE ESTATE OF DOROTHY BURKETT (ALLEN P. DODD, III AND MARTIN N. KUTE, CO- ADMINISTRATORS) and WILLIAM R. BURKETT, JR. v. MARY ALICE RAISOR; ALLEN P. DODD, III; THE ESTATE OF WILLIAM R. BURKETT, SR.; THE ESTATE OF DOROTHY BURKETT; WILLIAM R. BURKETT, III; AND HEATHER BURKETT
Annotate this Case
Download PDF
RENDERED:
JULY 21, 2006; 10:00 A.M.
ORDERED PUBLISHED BY THE KENTUCKY SUPREME COURT
FEBRUARY 14, 2007 (2006-SC-0552-D)
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001471-MR
MARY ALICE RAISOR, INDIVIDUALLY
AND AS TRUSTEE UNDER REVOCABLE
TRUST OF WILLIAM R. BURKETT, SR.
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 01-CI-001718 AND
NO. 02-CI-003998
WILLIAM R. BURKETT, JR.; WILLIAM R.
BURKETT, III; HEATHER G. BURKETT; ALLEN P.
DODD, III; DODD & DODD ATTORNEYS, PLLC;
THE ESTATE OF WILLIAM R. BURKETT
(ALLEN P. DODD, III AND MARTIN N.
KUTE, CO-ADMINISTRATORS); AND THE
ESTATE OF DOROTHY BURKETT (ALLEN P.
DODD, III AND MARTIN N. KUTE, COADMINISTRATORS)
AND
NO. 2005-CA-001171-MR
WILLIAM R. BURKETT, JR.
v.
APPELLEES
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 01-CI-001718 AND
NO. 02-CI-003998
MARY ALICE RAISOR; ALLEN P.
DODD, III; THE ESTATE OF WILLIAM
APPELLANT
R. BURKETT, SR.; THE ESTATE OF
DOROTHY BURKETT; WILLIAM R. BURKETT,
III; AND HEATHER BURKETT
AND
NO. 2005-CA-001212-MR
WILLIAM R. “BEAU” BURKETT, III
v.
APPELLEES
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 01-CI-001718 AND
NO. 02-CI-003998
MARY ALICE RAISOR; ALLEN P.
DODD, III; THE ESTATE OF WILLIAM
R. BURKETT, SR.; THE ESTATE OF
DOROTHY BURKETT; AND WILLIAM R.
BURKETT, JR.
APPELLEES
OPINION
AFFIRMING APPEAL NO. 2004-CA-001471-MR,
AFFIRMING APPEAL NO. 2004-CA-001171-MR, AND
AFFIRMING IN PART AND REVERSING IN PART
AND REMANDING APPEAL NO. 2005-CA-001212-MR
** ** ** ** **
BEFORE:
GUIDUGLI AND HENRY, JUDGES; HUDDLESTON, SENIOR JUDGE.1
GUIDUGLI, JUDGE:
These cases represent appeals in a rather
complicated declaratory judgment action and an ensuing dispute
regarding attorney fees, all related to the settlement of two
estates.
The first appeal concerns the enforcement of a
Settlement Agreement and an Agreed Judgment, while the second
1
Senior Judge Joseph R. Huddleston, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
-2-
and third appeals address the issue of attorney fees.
We affirm
as to the first and second appeals, and affirm in part, reverse
in part and remand as to the final appeal.
At the outset and in an effort to ease the
understanding of the facts, we shall set out the identities of
the parties involved in these appeals and their relationship to
each other.
William R. Burkett, Jr. (hereinafter “William Jr.”)
is the only surviving son of William R. Burkett, Sr.
(hereinafter “William Sr.”) and the stepson of William Sr.’s
wife, Dorothy Burkett.
William R. Burkett, III (hereinafter
“Beau”) and Heather Burkett (hereinafter “Heather”, or
collectively “the grandchildren”) are the only children of
William Jr., the grandchildren of William Sr., and the stepgrandchildren of Dorothy.
William Jr., Beau, and Heather all
reside in the state of Washington.
Mary Alice Raisor was
employed as a housekeeper by William Sr. and Dorothy from 1995
until their deaths in 2001.
In 1985, William Sr. and Dorothy each executed a Last
Will and Testament, naming the other as the primary beneficiary.
Both wills contained the provision that should they die due to a
common accident or disaster, or the order of their deaths be
unascertainable, or should the surviving spouse die within
ninety days of the other’s death, the estates were to be split
equally between William Jr., Beau, and Heather.
-3-
In 1999, William Sr. purportedly executed a subsequent
Last Will and Testament, naming Raisor as the executor.
William
Jr. and the grandchildren were not mentioned in the will, which
also provided that any contestant to the will would be given
$1.00.
Under the will, the estate assets were to pour-over into
a Revocable Living Trust Agreement executed the same day.
Raisor was also named as the trustee.
Under William Sr.’s
special directive, $500 was to be donated to the National Rifle
Association, Raisor was to receive his residence on Greenridge
Lane, and William Jr. was to receive $5.00 as his total
inheritance.
William Sr. died on February 13, 2001, followed less
than ninety days later by Dorothy on April 1, 2001.
On March 9,
2001, prior to Dorothy’s death, William Jr., through his counsel
Allen P. Dodd, III, and Dodd & Dodd Attorneys, PLLC,
(hereinafter “Dodd”), filed a Complaint and Petition for
Declaratory Judgment in Jefferson Circuit Court.
William Jr.
entered into a contingency fee contract with Dodd, whereby
Dodd’s fee was to equal 50% of whatever William Jr. recovered.
In the complaint, William Jr. sought to invalidate the 1999
pour-over will and revocable trust and to declare William Sr.’s
1985 will as being his valid, last will.
The complaint named
Raisor, both individually and as trustee, Dorothy (who at that
time was still alive, but was suffering from Alzheimer’s
-4-
disease) and the NRA as defendants.
William Jr. alleged that
Raisor received the subject property through undue influence and
that William Sr. lacked the capacity to effect any valid gift
transfers.
Furthermore, William Jr. alleged that Raisor
disbursed money and personal property for her own benefit while
in a confidential or fiduciary position, and also committed
fraud.
A restraining order was entered the same day against
Raisor to protect the estate assets.
A jury trial was later set
for December 4, 2001.
On May 10, 2001, William Jr. and Raisor entered into
an Agreement settling the dispute between them.
Pursuant to the
terms of the Agreement, William Jr. and Raisor were to equally
split the assets of William Sr. and Dorothy, while Dodd and
Raisor’s attorney, Martin Kute, were to apply to be named as the
representatives of the estates.
The Agreement also contained a
merger clause, and provided that it was binding on the parties’
heirs, successors, and assigns.
The next day, the circuit court
entered an Agreed Judgment as follows:
On motion of the parties William R.
Burkett, Jr. and Mary Alice Raisor to enter
this judgment (it appearing that parties
have reached a settlement of the issues
contested in this action) and the Court
being otherwise sufficiently advised;
IT IS ORDERED and adjudged as follows:
1. The copy of the Last Will of
William R. Burkett, Sr. dated 4th day of
-5-
November, 1985 incorporated herein by
reference is hereby adjudged to be the valid
last Will and Testament of William R.
Burkett, Sr. The court finds and determines
that the original Will of 1985 has been
inadvertently lost and has not been revoked
or nullified. The Jefferson District Court,
Probate Division is hereby ordered to admit
to probate said copy of Last Will and
Testament of William R. Burkett, Sr. dated
November 4, 1985 and to appoint the executor
named therein or the person or persons whom
the executor named therein request to be
appointed and who are otherwise qualified to
serve in such capacity.
2. As a result of settlement and
compromise and without the admission of
fault on the part of the defendant, Mary
Alice Raisor, and in contemplation that the
settlement agreement’s terms and conditions
will be fully met by both parties, the Will
and Trust of William R. Burkett, Sr. dated
November 16, 1999 (including the special
directive incorporated by reference in said
trust) and all amendments thereto are
declared null and void.
3. The parties have entered into a
settlement agreement dated the 10th of May,
2001.
4. The court shall retain jurisdiction
of this matter for purpose of enforcing said
settlement agreement dated the 10th of May,
2001 and entering such additional orders as
may be appropriate. Upon a complete
administration of the estate in District
Court, the case will be dismissed.
5. From the assets of the estate of
William R. Burkett, Sr., the sum of $500.00
shall be paid to the defendant, National
Rifle Association (the full amount of its
bequest under one of the contested
instruments).
-6-
6. This is a final order and there is
no just reason for delay.
The 1985 wills of William Sr. and Dorothy were admitted to
probate on May 14, 2001, and Dodd and Kute were appointed as coadministrators.
Under the terms of William Sr.’s will, because
Dorothy died less then ninety days after he did, his estate was
to be split equally between William Jr. and the grandchildren.
However, Beau and Heather were not made parties to the case and
were not involved in the settlement agreement or Agreed
Judgment.
And while they were apparently informed that a
settlement had been proposed, they were not aware of its terms.
At the same time the Agreed Judgment was entered, Beau and
Heather were each sent documents from Dodd with the request that
they sign and return the two forms to him.
The first form was a
Special Power of Attorney, which provided:
The undersigned does hereby grant to
William R. Burkett, Jr. a Special Power of
Attorney to act as her [or his] agent and to
represent her [or his] interest as fully and
completely as the undersigned could do if
personally present in all matters affecting
the Estate of William R. Burkett, Sr. and
the Estate of Dorothy Burkett. William R.
Burkett, Jr. has been authorized to
institute litigation, execute documents,
compromise and settle claims and do all
things he may judge necessary on behalf of
the undersigned thereby binding the
undersigned unconditionally, to contracts,
settlements, judgments and any other matter
directly or indirectly related to the
estates.
-7-
The second document was an Irrevocable Assignment, which
provided:
Under certain documents dated 1985
William R. Burkett, Sr. and Dorothy Burkett
of which there exists only a signed copy,
the undersigned would be entitled to a onethird share in the estate of William R.
Burkett, Sr. Under certain unsigned
apparently later documents William R.
Burkett, Jr. would be entitled to all of the
estate of William R. Burkett, Sr. Under
Kentucky law of intestacy William R.
Burkett, Jr. would be entitled to one-half
of the William R. Burkett, Sr. estate and
one-half would pass to Dorothy Burkett’s
estate. Respecting Dorothy [] Burkett’s
estate, if a copy of her Will (1985) is
admitted in lieu of an original, one-third
of Dorothy Burkett’s estate would pass to
the undersigned; however, if Dorothy Burkett
is deemed to have died intestate, her
surviving sister would be entitled to all of
Dorothy Burkett’s estate assets. Under
certain challenged 1999 documents, the
Burkett family is substantially ($5.00 or
less) disinherited.
For love and affection and to assist
the settlement of this litigation, the
undersigned does here irrevocably assign her
[or his] entire interest in the estate of
William R. Burkett, Sr., and Dorothy Burkett
to William R. Burkett, Jr. trusting her [or
his] father to provide for her [or him] in
the future.
If Beau and Heather had signed the documents, then William Jr.
and Raisor would each have received half of the assets, just as
the Agreement provided, and Dodd would have received 50% of the
assets William Jr. received pursuant to the terms of the
contingency fee contract.
-8-
Beau and Heather refused to sign the documents, and
refused to cash any checks made payable to them from the
estates’ escrow account.
Instead, they retained their own
attorney and moved the circuit court to set aside the Agreed
Judgment pursuant to CR 60.02 and to allow them to file an
Intervening Complaint to assert and defend their rights as
heirs.
Then Dodd, individually and ostensibly as counsel for
William Jr., moved the circuit court to enforce the terms of the
settlement agreement and to determine that the grandchildren
were bound by the terms of the fee agreement he and William Jr.
had entered into.
Dodd was essentially claiming that he was
entitled to 50% of any portions the grandchildren received.
Beau and Heather disputed that Dodd was entitled to any fee
through their distributions as they never gave him any authority
to act on their behalf.
In reply, Dodd argued that the
grandchildren did not have any legal interest until the 1985
wills were probated, and that he provided a benefit to them by
effectuating the probate of the will copies.
The circuit court originally ruled that Beau and
Heather did not have standing to file a CR 60.02 motion as they
were not parties to the action, and denied Dodd’s motion
regarding attorney fees as moot.
On appeal, the Court of
Appeals reversed, holding that Beau and Heather should have been
permitted to intervene and ruling that Dodd’s motion for
-9-
attorney fees from them was premature and that the grandchildren
should be given the opportunity to respond to his claims.
While the matter was pending on appeal, Dodd withdrew
as counsel for William Jr., and Raisor retained new counsel, as
her previous attorney was a co-administrator of the estates.
Also during the pendency of the appeal, Beau and
Heather filed a separate action in Jefferson Circuit Court (02CI-003998), seeking a declaration of rights that they were each
entitled to one-third of the estates pursuant to the 1985 wills.
They asserted that Dodd attempted to induce them into signing
the Special Power of Attorney and Irrevocable Assignment forms
without having first disclosed the terms of the settlement
between William Jr. and Raisor.
They requested a restoration of
unlawful distributions and an accounting of the property
conveyed.
They also sought a declaration of rights as to one of
the properties at issue, which issue was later settled.
This
suit was consolidated with the earlier suit upon remand from the
Court of Appeals.
Beau and Heather later indicated that they
were dropping their intervening complaint in order to rely upon
their declaration of rights action.
In this way, they sought to
enforce the settlement agreement only to the extent that the
1985 wills were to be probated.
Throughout the remainder of the litigation, Raisor and
Dodd argued that the settlement agreement should be enforced.
-10-
Specifically, Raisor claimed that she should receive 50% of the
estate, while the remainder of the estate should be split
equally between the Burkett heirs.
Dodd continued to argue that
he was entitled to recover as a fee 50% of the funds William Jr.
received as well as a reasonable fee from the funds received by
Beau and Heather under the common fund theory.
William Jr.
countered with his assertion that Dodd had “abandoned” him to
pursue his own financial interests.
Beau and Heather argued
that as their interests arose under, and should be governed by,
statutory probate law, they were each entitled to receive
distributions of one-third from the entire estate, and that
Raisor’s share should be limited to 50% of William Jr.’s
distribution.
They also argued that Dodd was not entitled to
receive any fees from their distributions because he was acting
solely on William Jr.’s behalf, to their detriment, and they
were not parties to either the original suit or the settlement
agreement.
On July 13, 2004, the circuit court entered an Opinion
and Order ruling on the various motions and cross-motions for
summary judgment filed by the parties in support of their
respective theories.
The circuit court held as follows:
The Court finds that the May 10, 2001
Agreement between William Jr. and Raisor is
a valid and enforceable agreement between
them. The Court finds that the Agreed
Judgment of May 11, 2001 is a valid and
-11-
enforceable judgment as between William Jr.
and Raisor.
The Grandchildren were not parties to
either the Agreement or Agreed Judgment, nor
did the actions of William Jr., Attorney
Dodd, Attorney Kute, or Raisor put the
Grandchildren on notice of the above. The
Grandchildren are not bound by either the
Agreement or Judgment. Harlan Public
Service Co. v. Eastern Construction Co., Ky.
71 S.W.2d 24 (1934); City of Ashland v.
Kelley, Ky.App. 555 S.W.2d 821 (1977). The
Court had no jurisdiction over the
Grandchildren on May 11, 2001, as they were
not then parties to this action. The
Agreement and Judgment are however valid as
to William Jr. and Raisor, both of whom have
been before the Court and “had their day.”
Taylor v. Howard, Ky. 208 S.W.2d 73 (1948).
The District Court admitted the 1985
Wills to probate. These Wills remain
probated and the Grandchildren’s rights
under each Will are clear. Each is entitled
to receive their one-third share without
regard to the Settlement Agreement and
Agreed Judgment. William Jr. and Raisor had
no authority or right to enter into any
agreement which affected the rights of those
not privy thereto; nor of those whose
consent was not secured. Without proper
consent, William Jr. and Raisor had no legal
ability to modify the terms of the Wills to
the detriment of the remaining
beneficiaries. Cook v. Cook, Ky. 299 S.W.2d
261 (1957).
The Court further finds that
enforcement of the Agreement and Agreed
Judgment as against the Grandchildren would
be wholly inequitable and contrary to law.
Had this Court been presented with the
existence of the Grandchildren and other
pertinent facts herein prior to signing the
-12-
Agreed Judgment, the outcome may very well
have been different.
As to Attorney Dodd’s claim for a fee
under KRS 412.070, the Court finds that
Attorney Dodd performed no service for the
benefit of the Grandchildren. In fact, the
entire set of circumstances leads the Court
to find that his representation was intended
to be, and was in fact, to the
Grandchildren’s detriment. Therefore, he is
not entitled to recover an attorney fee from
any portion of the Grandchildren’s estates.
Webster County v. Nance, Ky. 3[6]2 S.W.2d
723 (1962).
WHEREFORE, IT IS HEREBY ORDERED that
William R. Burkett III and Heather G.
Burkett’s Motion for Summary Judgment is
Granted. Each is entitled to rec[e]ive
their share of the estates of William
Burkett and Dorothy Burkett. All other
motions for Summary Judgment are denied.
William Burkett Jr. and Mary Alice Raisor
are bound by the Settlement Agreement and
Agreed Judgment, and each shall be entitled
to receive 50% of the remaining one-third of
each estate. Attorney Dodd is not entitled
to any attorney fee from the Grandchildren’s
shares.
This is a final, appealable Order, and
there is no just reason for delay.
Raisor filed a timely Notice of Appeal of the circuit court’s
Opinion and Order, which was assigned Appeal No. 2004-CA-001471MR.
The same day Raisor filed her notice of appeal, Dodd
filed a motion to alter, amend or vacate the same Opinion and
Order, specifically addressing the portion of the order
regarding the attorney fee issue.
-13-
Dodd argued that the
grandchildren did not have a viable interest until the 1985
wills were probated, making him entitled to receive a fee from
their distributions as well as William Jr.’s distribution.
The
grandchildren maintained that Dodd had always advocated a
position directly contrary to their vested rights.
In his
response, William Jr. argued that Dodd was not entitled to a 50%
fee pursuant to their contract as he abandoned his
representation and provided him with bad advice.
Following a hearing, during which a substitute judge
presided, the circuit court entered an Opinion and Order
granting Dodd’s motion to alter, amend or vacate on March 10,
2005, as follows:
This matter is before the Court on Dodd
& Dodd, PLLC and Allen P. Dodd, III’s Motion
to Alter, Amend and/or Vacate the portion of
this Court’s July 13, 2004 Opinion and Order
concerning the denial of reasonable attorney
fees to Dodd from the Burkett grandchildren.
The other portions of this Court’s July 2004
order are now before Kentucky’s Court of
Appeals awaiting review. Having reviewed
all pleadings, applicable law and through
other sufficient advice, the Court shall
grant the motion to amend its judgment as to
the issue of attorney’s fees.
The facts and procedural history of
this action are well known to the Court and
all involved parties. The central issue of
this current motion is whether Mr. Dodd is
entitled to an award of attorney fees from
the Burkett grandchildren, William R.
Burkett III and Heather Burkett, in
consideration for his work resulting in the
probating of William R. Burkett, Sr.’s 1985
-14-
will copy from which the grandchildren
benefited, mandates that the grandchildren
pay reasonable attorney fees to him.
According to the record, the grandchildren
did not obtain separate counsel until after
the will copy was probated.
KRS 412.070 states in part: “In
actions for the settlement of estates,
. . . if one or more of the legatees,
devisees, distributes or parties in interest
has prosecuted for the benefit of others
interested with him, and has been to trouble
and expense in that connection, the court
shall allow him his necessary expenses, and
his attorney reasonable compensation for his
services, in addition to his costs.”
Kentucky has made it clear that where a
party is not represented by an attorney and
did not pay anything for attorney fees, yet
enjoyed benefits of the funds recovered by
the litigation of other heirs to an estate,
that unrepresented party is required to
contribute proportionately to the fees and
expenses incurred in the recovery. See
Clark v. Peppers Adm’r, 116 S.W. 353 ([Ky.]
1909). Additionally, in Skinner v. Morrow,
319 S.W.2d 419, 427 (Ky.[], 1958), the
Supreme Court determined that an attorney
who had, in good faith, commenced
proceedings to protest the probating of a
will created a substantial benefit to the
heirs of the estate in assisting in the
recovery of their inheritance. All of the
attorneys’ services were rendered at a
time[] when he did not represent anyone with
a valid interest in the estate. The Court
determined that the attorney was entitled to
fees from the heirs for his work that
resulted in eventual order of distribution
of the estate. In Cambron v. Pottinger, 219
S.W.2d 401, 204 (Ky.[] 1948), the Court held
KRS 412.070 applies where parties have a
common interest and a suit is brought for
their common benefit and one attorney
carries the burden.
-15-
It is for these reasons and based on a
re-analysis of the extensive facts of this
litigation that the Court has decided to
amend its prior decision as to Mr. Dodd’s
entitlement to fees.
WHEREFORE IT IS HEREBY ORDERED AND
ADJUDGED that this Court’s July 2004
judgment is amended as to Dodd & Dodd, PLLC
and Allen P. Dodd, III’s claim to attorney
fees from the grandchildren, William Burkett
III and Heather Burkett. Wherefore, the
third full paragraph of page four (4) of the
judgment of July 13, 2004 is amended and
shall read as follows:
As to Attorney Dodd’s claim for a fee
under KRS 412.070, the Court finds that
Attorney Dodd’s services in securing
the Settlement Agreement, Agreed
Judgment and probating the 1985 copy
benefited the Grandchildren, thus
entitling Attorney Dodd to a reasonable
fee prior to the distribution of the
Estate pursuant to KRS 412.070. The
amount to be paid from the Burkett
Grandchildren’s distribution shall be
determined by the Court following
simultaneous briefs from all parties
affected.
Said briefs shall be submitted no later that
April 15, 2005.
In their memorandum regarding the reasonableness of
Dodd’s attorney fee claim (which the circuit court apparently
did not review), Beau and Heather argued that Dodd’s conduct
constituted misconduct, negating his entitlement to collect any
fee from them.
Their memorandum includes a list of evidence of
-16-
Dodd’s actions militating against his entitlement to a fee,
which we shall reproduce here:2
•
•
William Jr. advised the Burkett
Grandchildren about Dodd’s
representation that they had no
standing to participate in the will
contest;
•
Because of Dodd’s advice, William, Jr.
did not believe that he was acting on
behalf of the Burkett Grandchildren
with respect to the underlying will
contest against Raisor of the
settlement with her;
•
Dodd did not inform William Jr. that
the Burkett Grandchildren’s consent to
the settlement would be necessary until
after the Settlement Agreement had been
signed;
•
2
Dodd consistently advised William Jr.
prior to the time of the Settlement
Agreement that the Burkett
Grandchildren had no standing to
participate in this case;
Although he was aware that the Burkett
Grandchildren needed to consent to the
settlement and had not done so, Dodd
presented the Agreed Judgment to the
Court without disclosing the existence
of the Burkett Grandchildren. Dodd
similarly failed to disclose the
material fact that William Jr. and
Raisor had agreed to probate wills
which provided a benefit to the Burkett
Grandchildren but had altered that
benefit without their knowledge or
consent.
Citations to the record omitted.
-17-
•
Dodd appeared twice before the Probate
Court in seeking to probate the copies
of William Sr.’s and Dorothy’s 1985
Wills. In both instances, Dodd failed
to disclose the material facts that
William Jr. and Raisor had agreed to a
division of the estates which differed
from the terms of the Wills, or that
the Burkett Grandchildren had not
consented to the alteration of their
rights as beneficiaries.
•
Although the Settlement Agreement and
Agreed Judgment negatively impacted the
rights of the Burkett Grandchildren,
the first occasion in which Dodd
attempted to communicate with them did
not occur until June 2, 2001 (some
three weeks after the Settlement
Agreement and Agreed Judgment became
effective);
•
Following the Burkett Grandchildren’s
attempt to intervene, Dodd counseled
William, Jr. to prepare an affidavit
which contained either untrue or
unknown facts related to their
knowledge and approval of the
settlement with Raisor.
•
In November, 2001, Dodd, while serving
as co-administrator, also urged William
Jr. to sign a new settlement agreement
with Raisor which would seek to set
aside the Agreed Judgment, withdraw the
copies of the 1985 Wills from probate,
and instead probate Raisor’s 1999
Testamentary Instruments.
Furthermore, the grandchildren asserted that William Jr.’s suit
was not prosecuted for their benefit and they had to hire a
separate attorney to protect their interests as heirs.
suggested that any fee Dodd should be awarded should be
-18-
They
determined in relation to the hourly rates for service reflected
in the billing records.
Heather and Beau pointed out that from
February 20, 2001, through May 11, 2001 (the day the Agreed
Judgment was entered), Dodd and two other members of his firm
logged work totaling $52,285.50.
Therefore, Heather and Beau
suggested that Dodd be limited to recovering no more than that
amount.
As Dodd would be receiving approximately $41,000 from
William Jr.’s distribution, Beau and Heather would only owe him
an additional $11,285.50, at the most.
In support of his claim for fees, Dodd filed the
affidavit of expert witness Edmund Pete Karem, a lawyer and
former judge.
Karem determined that the “percentage of
recovery” method would be the appropriate method to determine a
reasonable fee, based upon the time and labor required, the risk
involved, and the amount of money involved.
Based upon those
considerations, Karem stated that Dodd’s contingency fee
contract with William Jr. was reasonable in that other lawyers
had turned down the case.
As to the grandchildren, Karem
recommended applying the “percentage of recovery” method, and
stated that 40% of their recovery would be a reasonable fee
because of the benefit conferred on them.
In his memorandum,
Dodd presented arguments similar to those Karem espoused in his
affidavit.
-19-
On May 13, 2005, the circuit court entered an Order
regarding Dodd’s attorney fees:
This matter is before the Court on
Motion of Dodd & Dodd Attorneys, PLLC
(“Dodd”) for an award of attorney fees prior
to distribution of the Estate herein. In
its March 10, 2005 Order, the Court
requested the filing of briefs from any
interested party as to the amount of fees to
be awarded Dodd for its legal services in
this action. The Court has received and
reviewed memoranda from Dodd and Plaintiff,
William Burkett Jr.
The Court has also considered KRS
412.070, the entire record, the factors set
forth in SCR 3.130(1.5), the amount, and
quality of Dodd’s representation, and the
results obtained.
IT IS HEREBY ORDERED that attorneys’
fees and non-reimbursable expenses in the
amount of 50% of any amounts to be
distributed to William R. Burkett Jr. from
the Estate of William R. Burkett Sr. shall
be paid to Dodd & Dodd Attorneys, PLLC
pursuant to the contract between these
parties.
IT IS FUTHER ORDERED that Dodd & Dodd,
PLLC shall be paid 40% of any amounts to be
distributed to Heather Burkett and/or
William R. Burkett III from the Estate of
William R. Burkett Sr.
This is a final and appealable Order,
and there is no just cause for delay.
It is from this order that William Jr. and Beau have taken their
respective appeals.
APPEAL NO. 2004-CA-001471-MR
-20-
We shall first address Raisor’s appeal from the July
13, 2004, Opinion and Order, which divided the estates in equal
thirds to William Jr., Beau, and Heather, with half of William
Jr.’s share going to Raisor pursuant to the settlement
agreement.
Raisor argues that the settlement agreement should
be upheld under an ostensible agency theory and based upon
mistake.
She also asserts that factual issues remain,
precluding the entry of summary judgment.
Lastly, she argues
that the 2001 Agreed Judgment should be set aside and the will
contest started anew.
The grandchildren, William Jr., and Dodd3
have each responded by separate briefs.
Dodd properly sets out our standard of review in this
particular appeal, which arises from the entry of a summary
judgment in favor of the grandchildren.
The standard of review on appeal when a
trial court grants a motion for summary
judgment 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.” The trial court must view
the evidence in the light most favorable to
the nonmoving party, and summary judgment
should be granted only if it appears
impossible that the nonmoving party will be
able to produce evidence at trial warranting
3
Dodd spends a considerable portion of his brief arguing that the
grandchildren cannot take the benefits of the results of the Agreement and
Agreed Judgment (effectuating the probate of the 1985 will copies) without
also accepting the liabilities, namely, the payment of attorney fees. We
need not address this issue in this portion of the opinion as it will be
addressed in the later appeal concerning whether the grandchildren owe Dodd
attorney fees on their proceeds from the estates.
-21-
a judgment in his favor. The moving party
bears the initial burden of showing that no
genuine issue of material fact exists, and
then the burden shifts to the party opposing
summary judgment to present “at least some
affirmative evidence showing that there is a
genuine issue of material fact for trial.”
The trial court “must examine the evidence,
not to decide any issue of fact, but to
discover if a real issue exists.” . . . .
Because summary judgment involves only legal
questions and the existence of any disputed
material issues of fact, an appellate court
need not defer to the trial court’s decision
and will review the issue de novo.
[Citations in footnotes omitted.]4
Raisor argues that the circuit court improperly
decided a disputed factual issue, namely, whether the
grandchildren were parties to the Agreement and Agreed Judgment.
She follows up that point with the related questions as to
whether the grandchildren knew what William Jr. was doing vis-àvis the litigation and whether William Jr. was acting as their
ostensible agent.
We disagree with Raisor’s assertion that any disputed
factual issues exist as to the matters she raised in her brief.
The record is quite clear that the grandchildren were not named
in the Agreement or the Agreed Judgment, and were certainly not
named parties in the lawsuit.
It is also clear that the circuit
court did not make any factual findings regarding what knowledge
the grandchildren possessed at the time the lawsuit was pending
4
Lewis v. B&R Corporation, 56 S.W.3d 432, 436 (Ky.App. 2001).
-22-
and the negotiations were completed.
The circuit court’s
Opinion and Order simply ruled on the legal questions as to the
proper enforcement of the settlement reached between William Jr.
and Raisor.
Raisor’s main argument is that the Agreement should be
enforced according to its express terms, which provided that the
entirety of the estates would be equally split between her and
William Jr.
She asserts that William Jr. was the ostensible
agent of Beau and Heather, or that there was a mistake on the
parts of William Jr. and the grandchildren, which should not
result in what she termed a reformation of the agreement.
First, we do not agree with Raisor’s assertion that
there existed an ostensible agency relationship between William
Jr. and the grandchildren.
If this were the case, then Dodd
would not have needed or requested that they execute and return
the Special Power of Attorney and Irrevocable Assignment forms.
Furthermore, the grandchildren were not even mentioned in either
the Agreement or the Agreed Judgment.
We also recognize that in
the prior opinion, an earlier panel of this Court specifically
stated that the grandchildren’s interests required express
consideration by William Jr. and Raisor.
We also disagree that a “mistake” between William Jr.
and the grandchildren would somehow invalidate what the circuit
court did to effectuate the terms of the settlement agreement.
-23-
In this matter, any mistake would have been a mistake of law as
to the interaction of the settlement agreement and the probate
of the 1985 wills.
Kentucky law is clear that only a mistake of
fact will affect the enforceability of a contract, not a mistake
of law.5
We hold that the circuit court properly ruled that the
grandchildren’s rights are governed under the 1985 wills and
that the settlement agreement was only enforceable as between
Raisor and William Jr., who were the only parties to the lawsuit
and the agreement.
The settlement agreement cannot be
enforceable as against the grandchildren as they were not
parties to the agreement, nor did they give their consent to its
terms as affecting their rights.
“[O]ne cannot be bound by a
contract to which he was not a party, nor by uncommunicated
terms without his consent.”6
What the circuit court accomplished
in its Opinion and Order was to give effect to the settlement
agreement and at the same time protect the rights of the
grandchildren, which is the only proper result in this case.
Once the 1985 wills were probated pursuant to the Agreed
Judgment, the grandchildren automatically received a one-third
share each under the provisions of the wills, with the remaining
5
Murphy v. Torstrick, 309 S.W.2d 767, 770 (Ky. 1958); Sadler v. Carpenter,
251 S.W.2d 840, 842 (Ky. 1952).
6
Harlan Public Service Co. v. Eastern Constr. Co., 254 Ky. 135, 71 S.W.2d 24,
29 (Ky. 1934).
-24-
one-third share going to William Jr.
While this was obviously
not the desired result of William Jr. and Raisor’s agreement,
and one that Dodd attempted to unsuccessfully “fix” after the
fact, it nevertheless is the only result that must prevail.
The
circuit court was able to also give effect to the settlement
agreement by ruling that William’s share would be split equally
with Raisor.
We disagree with Raisor’s argument that this is an
unjust result, as both she and Raisor assumed the risk that the
grandchildren would accept the alternative distribution scheme,
thereby reducing to nothing their rightful shares as heirs under
the 1985 wills.
Furthermore, there were other avenues she and
William Jr. could have taken, such as probating the 1999
testamentary instrument and splitting the resulting estate
between them.
Finally, we shall address Raisor’s request that the
Agreed Judgment be vacated pursuant to CR 60.02, that the order
of the district court probating the 1985 Wills be set aside, and
that the case be started anew.
Raiser asserts that this would
be “the fairest way to proceed.”
Both Dodd and the
grandchildren argue that relief under CR 60.02(a), (b), or (c)
is inappropriate, as such relief is barred by the one-year
statute of limitations, and the other provisions do not apply.
We agree with Dodd and the grandchildren that Raisor’s
prayer for relief pursuant to CR 60.02 must fail.
-25-
Raisor relies
upon CR 60.02(e) and (f) to support this argument.
She argues
under (e) that “it is no longer equitable that the judgment
should have prospective application[,]” and under (f) that she
is entitled to relief for “any other reason of an extraordinary
nature justifying relief.”
Both Dodd and the grandchildren direct our attention
to Alliant Hospitals, Inc. v. Benham,7 which addresses the
application of those two subsections of CR 60.02:
Subsection (e) is inapplicable, we
believe, because a simple judgment for money
damages, even one not yet enforced, does not
have “prospective application.” The federal
courts, whose rule in this regard is like
ours, have reserved that phrase for
judgments, such as those granting an
injunction, that “involve the supervision of
changing conduct or conditions and are thus
provisional and tentative.”8 A money
judgment, by contrast, closes the book on a
past wrong and leaves the court with no
further involvement. We find this federal
precedent persuasive and consistent with
what little Kentucky precedent there seems
to be.9
Subsection (f) of CR 60.02, the
catchall provision, can apply only if none
7
105 S.W.3d 473, 478 (Ky.App. 2003).
8
Twelve John Does v. District of Columbia, 841 F.2d 1133, 1139 (D.C.Cir.1988)
(quoting from United States v. Swift and Company, 286 U.S. 106, 52 S.Ct. 460,
76 L.Ed. 999 (1932)); DeWeerth v. Baldinger, 38 F.3d 1266 (2nd Cir.1994).
(Footnote 13 in original.)
9
See Cawood v. Cawood, Ky., 329 S.W.2d 569 (1959) (Although this case
suggests that an unsatisfied money judgment might be deemed to have
prospective application, it holds only that a satisfied money judgment does
not have such application.). (Footnote 14 in original.)
-26-
of that rule’s specific provisions applies.10
We are persuaded that one of the specific
provisions does apply, and thus that
subsection (f) does not.
Based upon the holding in Benham, Raisor is not entitled to seek
relief under either section, as her claim should have arisen
under CR 60.02(a) for mistake, although it is not likely she
would have succeeded.
For the foregoing reasons, we hold that the circuit
court did not commit any error in granting the grandchildren’s
motion for summary judgment, or in enforcing the settlement
agreement as between William Jr. and Raisor, only.
The circuit
court’s July 13, 2004, Opinion and Order is affirmed in this
regard.
APPEAL NO. 2005-CA-00001171-MR AND NO. 2005-CA-001212-MR
Next, we shall address William Jr.’s and Beau’s
respective appeals from the circuit court’s order awarding Dodd
attorney fees.
They are both proceeding pro se.
William Jr.
argues that Dodd failed to perform under the contingency fee
contract, while Beau argues that Dodd’s actions were to his
(Beau’s) detriment.
Beau also points out that the circuit court
apparently did not review his former counsel’s memorandum
regarding the reasonableness of the fee owed, if any.
On the
other hand, Dodd argues that his services benefited Beau in that
10
Commonwealth v. Spaulding, Ky., 991 S.W.2d 651 (1999).
original.)
-27-
(Footnote 15 in
the only way Beau could recover was through the probate of the
1985 wills, which was the result Dodd secured.
He asserts that
he is entitled to a reasonable fee from Beau, and to the
contracted for fee pursuant to the agreement he entered into
with William Jr.
Furthermore, Dodd points out that Heather did
not appeal the circuit court’s ruling, as Beau did, so that the
judgment is final as to her.
At the outset, we agree with Dodd’s contention that
the judgment is final as to Heather.
Neither Beau nor Heather
had counsel when Beau filed his notice of appeal.
And while
they had always proceeded together under the representation of
an attorney, Beau, who is not an attorney, may not proceed on
his sister’s behalf.
He may only proceed on his own behalf.
Heather must either represent herself, or be represented by a
duly licensed attorney.
In this case, Heather did not appeal
from the circuit court’s ruling on attorney fees.
Therefore,
the May 13, 2005, Order is final as to her.
Furthermore, we agree with Dodd that we shall review
this ruling under an abuse of discretion standard.11
We shall only briefly address the issue William Jr.
raises in his appeal that Dodd is not entitled to 50% of the
amount distributed to him from the estates.
11
King v Grecco, 111 S.W.3d 877 (Ky.App. 2002).
§ 65 (2005).
-28-
While a 50%
See also 20 Am.Jur.2d Costs
contingency fee does appear at first blush to be rather high,
William Jr. nevertheless entered into the contract with Dodd,
and Dodd certainly performed work on William Jr.’s behalf
pursuant to the contract.
And William Jr. obtained a recovery,
albeit less than what he expected.
We perceive no reason why
the contract between William Jr. and Dodd should not be
enforced.
Next we shall address the more difficult issue as to
whether Beau should have to pay Dodd 40% of his share as
attorney fees.
Dodd relies upon KRS 412.070 as well as cases
regarding will contests to support his proposition that he is
entitled to receive a fee due to his efforts in obtaining a
common fund, which benefited Beau.
KRS 412.070(1) provides, in relevant part, as follows:
In actions for the settlement of estates,
. . . if one (1) or more of the legatees,
devisees, distributes or parties in interest
has prosecuted for the benefit of others
interested with him, and has been to trouble
and expense in that connection, the court
shall allow him his necessary expenses, and
his attorney reasonable compensation for his
services, in addition to costs.
The circuit court, and Dodd, also relied upon several cases
dealing with will contests.
While this case concerns the
settling of estates, it does not have anything to do with
contesting a probated will.
Rather, it is a declaratory action
seeking to invalidate a 1999 trust agreement prior to any
-29-
testamentary instrument being admitted to probate.
Therefore,
these cases have no bearing on the matter at hand.
For
instance, Clark v. Pepper’s Adm’r12 concerns the contest of a
will that had been admitted to probate.
The former Court of
Appeals stated:
A trust fund in equity was always required
to bear the expenses of its administration,
and, when one of several owners at his own
expense recovered a trust fund, he was
always allowed his necessary expenses out of
what he brought back.13
The present case, however, is a declaratory action seeking to
invalidate a 1999 instrument prior to the settling of the
estates.
Furthermore, the estates are not in the position of
having to be defended as all of the litigation took place prior
to the admission to probate of the 1985 wills.
In our review of this case, we agree with Beau that
the circuit court properly denied Dodd’s motion for attorney
fees in the initial order.
Dodd did not perform any services
for Beau, and it appears that it was unintentional on Dodd’s
part that Beau benefited at all from the terms of the settlement
agreement.
It is clear from the record that William Jr.
prosecuted this action solely for his own benefit, as evidenced
by the power of attorney and irrevocable assignment forms Dodd
12
132 Ky. 192, 116 S.W. 353 (1909).
13
Id. at 355.
-30-
requested that Beau and Heather sign after the settlement
agreement had been signed and the agreed order had been entered.
Through those documents, William Jr. and Dodd were attempting to
obtain Beau and Heather’s distributions and cut them out of the
wills.
We do not agree with Dodd that his actions after the
settlement agreement was entered have no bearing on this case;
to the contrary, his actions reveal that he worked diligently,
and to their detriment, to negate their rights to inherit under
the wills.
Heather and Beau were even forced to retain their
own counsel to protect their interests in light of Dodd’s
actions.
For this reason, we cannot hold that the lawsuit was
prosecuted for the benefit of anyone other than William Jr., and
was specifically not prosecuted for the benefit of Beau or
Heather.
Any benefit conferred on them was not intentional, as
they were purely unintended beneficiaries of the 1985 Wills.
Therefore, we must reverse the portions of the circuit
court’s March 10 and May 13, 2005, orders awarding attorney fees
to Dodd on Beau’s distribution from the estates.
As we held
previously, the rulings are final as to Heather, as she
unfortunately failed to prosecute an appeal in her own name.
For the foregoing reasons, the Jefferson Circuit
Court’s July 13, 2004, Opinion and Order is affirmed in all
respects, except as to the portion denying the payment of
attorney fees from Heather’s distribution, while the March 10
-31-
and May 13, 2005, rulings are affirmed in part and reversed in
part, and this matter is remanded for further proceedings
consistent with this opinion.
ALL CONCUR.
APPEAL NO. 2004-CA-001471-MR:
BRIEFS FOR APPELLANTS:
A. Thomas Johnson
Louisville, KY
BRIEF FOR APPELLEE, WILLIAM R.
BURKETT, JR.:
William R. Burkett, Jr., pro
se
Des Moines, WA
BRIEF FOR APPELLEES, WILLIAM
R. BURKETT, III, AND HEATHER
BURKETT:
Alan N. Linker
Wesley A. Gersh
J. Gregory Troutman
Louisville, KY
BRIEF FOR APPELLEES, DODD &
DODD, PLLC AND ALLEN P. DODD,
III:
Mark S. Fenzel
Augustus S. Herbert
Louisville, KY
APPEAL NO. 2005-CA-001171-MR
AND NO. 2005-CA-001212-MR:
BRIEFS FOR APPELLANT, WILLIAM
R. BURKETT, JR:
COMBINED BRIEF FOR APPELLEE,
MARY ALICE RAISOR:
William R. Burkett, Jr., pro
se
Des Moines, WA
A. Thomas Johnson
Louisville, KY
-32-
BRIEFS FOR APPELLANT, WILLIAM
R. BURKETT, III:
William R. Burkett, III, pro
se
Buckley, WA
COMBINED BRIEF FOR APPELLEES,
DODD & DODD, PLLC AND ALLEN P.
DODD, III:
Mark S. Fenzel
Augustus S. Herbert
Louisville, KY
-33-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.