DUKES (CHARLES G.) VS. KEATING (JOHN), ET AL.
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RENDERED: AUGUST 26, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000791-MR
CHARLES G. DUKES
v.
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 06-CI-00462
JOHN KEATING; WARREN KEATING;
KYLE KEATING, ADMIN. OF THE
ESTATE OF ALAN KEATING; JOYCE
ANN DUKES; KAREN RUTH GRISNAK;
MELISSA KAY STRANGE; DUSTIN
ALMON AND VONDA KAY
CONWAY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CAPERTON AND CLAYTON, JUDGES.
ACREE, JUDGE: The appellant, Charles G. Dukes, pro se, appeals from the
Muhlenburg Circuit Court’s findings of fact, conclusions, and order distributing
and settling the estate of his father, Charles W. Dukes. Following a careful review
of the record, we affirm.
Facts and Procedure
On December 7, 2004, Charles W. Dukes executed his Last Will and
Testament, which set forth provisions for the distribution of his real and personal
property upon his death. Following Charles W. Dukes’ death on February 1, 2005,
the Muhlenburg District Court entered an order probating Charles W. Dukes’ Last
Will and Testament (Dukes’ Will), and appointed Rachel Maries Dukes, Charles
W. Dukes’ wife, as executrix of his estate (the Estate).
On February 24, 2005, Joyce Ann Dukes, Charles W. Dukes’ spouse from a
previous marriage, filed a claim against the Estate asserting that, pursuant to the
separation agreement1 between her and Charles W. Dukes dated June 22, 1995, she
was entitled to $1,200.00 per month for a period of ten years after Charles W.
Dukes’ death. Thus, the gross amount of Joyce’s claim equaled $144,000.00.
As executrix, Rachel filed an inventory and appraisal of the Estate valuing it
at approximately $502,633.83. Rachel further moved the court to set aside her
spousal exemption pursuant to Kentucky Revised Statute (KRS) 391.030, in the
amount of $15,000, which the court granted. Rachel continued to serve as
executrix until her death on July 11, 2005. On July 26, 2005, the Muhlenburg
District Court appointed appellant as the Estate’s Administrator De Bonis Non.
1
The separation agreement between Joyce Ann Dukes and Charles W. Dukes was specifically
incorporated into the decree of dissolution of marriage entered by the Muhlenberg Circuit Court.
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On July 25, 2005, one day prior to his appointment, appellant, acting in his
individual capacity, along with his sisters, Melissa Strange and Karen Grisnek2
(collectively Joyce Dukes’ Children), and Joyce Dukes filed a proof of claim
alleging to be creditors of the Estate in an amount equal to one-half of the net
estate. Additionally, disputes arose between the Joyce Dukes’ Children, the Estate
of Rachel Dukes, and the children of Rachel Dukes, namely Alan Keating, John
Keating, and Warren Keating.
On September 6, 2006, appellant filed a verified complaint in Muhlenberg
Circuit Court requesting that the court consider and declare the rights of all the
parties in and to the Estate. A bench trial occurred on January 5, 2010. Following
the bench trial, the Muhlenberg Circuit Court entered findings of facts, conclusions
of law, and an order distributing and settling the Estate. The circuit court
concluded that the Estate consisted of the following assets:
•
•
•
•
•
•
•
•
•
Promissory note satisfied by the mortgagor - $253,574.87
Hilliard Lyons Portfolio consisting of Yum Brand Stock - $78,251.33
House, contents, and lot located at 235 West Depot Street - $56,402.50
House, contents, and lot located at 510 Orchard Street - $53,000.00
Gold and Silver Coins - $44,870.45
Guns (9) - $3,000.00
Ford Mustang automobile - $11,025.00
Pontiac Bonneville automobile - $9,475.00
Chevrolet S-10 pickup - $2,500.00
The circuit court concluded that, after deducting Rachel’s $15,000 spousal
exemption, the Estate’s gross value equaled $497,099.15.
2
As a point of clarification, Charles G. Dukes, Melissa Strange, and Karen Grisnek are siblings
and the children of Joyce Dukes and Charles W. Dukes.
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Next, in order to determine the Estate’s net value, the circuit court deducted
the following claims, costs, and expenses from the Estate’s gross value:
• Costs and expenses of administration - $13,969.033
• Joyce Dukes’ maintenance claim - $132,000.004
The circuit court determined that the Estate’s total expenses equaled $145,969.03.
Thus, the Estate’s net value totaled $351,130.12.
Then, the circuit court examined Dukes’ Will to determine how to properly
distribute the Estate. The circuit court concluded that Dukes’ Will left to Rachel
the residence and lot located at 235 West Depot Street in Greenville, Kentucky; all
funds in their checking and savings accounts; two automobiles, namely a Pontiac
Bonneville and a Ford Mustang; the monthly payment on the mortgage promissory
note; and twenty-five percent of the mortgage promissory note’s final balloon
payment. To Joyce Dukes’ Children, Dukes’ Will left the contents of a safe
deposit box, which contained gold and silver coins; nine guns; all household and
personal items located at 235 W. Depot Street in Greenville, Kentucky; the Hilliard
Lyons portfolio, which contained the Yum Brand Stock; seventy-five percent of
the mortgage promissory note’s final balloon payment; and the rest, residue, and
reminder of his estate. Finally, Dukes’ Will left Dustin Almon a Chevrolet S-10
3
The circuit court obtained this amount from the “Final Unagreed Settlement” submitted by
appellant as an exhibit during the bench trial on January 5, 2010. This amount is the sum of line
items for “Debt-Hospital $912.00” and “Taxes & Misc Expenses $13,057.03.”
4
The circuit court explained that, prior to the appellant’s filing of the verified complaint in
Muhlenburg Circuit Court, Joyce Dukes had received ten monthly installments from the Estate in
the amount of $1,200.00 each (for a total of $12,000.00). Subsequently, appellant, as
administrator of the Estate, settled Joyce Dukes’ maintenance claim for $120,000.00. Thus,
Joyce’s total maintenance claim equaled $132,000.00.
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pick-up truck, and Vonda Kay Conway the house, lot, and contents located at 510
Orchard Street in Central City, Kentucky.
The circuit court next calculated that, pursuant to Dukes’ Will and the assets
in the Estate, Joyce Dukes’ Children were to receive assets totaling $307,7055
(62% of the gross value of the Estate), Rachel was to receive assets totaling
$133,893.726 (27% of the gross value of the Estate), Dustin Almon was to receive
the Chevrolet S-10 valued at $2,500.00 (less than 1% of the gross value of the
Estate) and Vonda Kay Conway was to receive the house and lot located at 510
Orchard Street in Central City Kentucky, valued at $53,000.00 (11% of the
Estate).
The circuit court then recognized that the Estate did not contain sufficient
assets to satisfy all of the bequests contained in Dukes’ Will. Consequently, the
circuit court prorated each beneficiary’s share by their percentage of the net estate.
The circuit court concluded that the Joyce Dukes’ Children were due $217,350.27,
Rachel was owed $94,576.93, Dustin Almon was due $1,765.91, and Vonda
Conway was owed $37,437.01.
5
The Joyce Dukes’ Children received $44,870.45 in gold and silver coins, $3,000 in guns,
$6,402.50 in insurance proceeds representing the value of the personal property located at 235
W. Depot Street, $63,251.33 from the sale of the Yum Brand stocks contained in the Hilliard
Lyons portfolio, and $190,181.15 representing 75% of the final balloon payment of the mortgage
promissory note, for a total amount of $307,705.43.
6
Rachel received $50,000 in insurance proceeds representing the value of the house and lot
located at 235 W. Depot Street, the Bonneville Pontiac and Ford Mustang valued collectively at
$20,500.00, and $63,393.72 representing 25% of the final balloon payment of the mortgage
promissory note, for a total amount of $133,893.72.
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Finally, the circuit court examined the actions previously taken by appellant
as administrator of the Estate, and concluded that appellant had distributed all of
the Estate’s assets to the various beneficiaries, but had not distributed any assets to
Rachel. Therefore, on April 20, 2010, the circuit court entered an Amended
Judgment and Order requiring appellant to transfer the assets or corresponding
prorated dollar amount due to Rachel pursuant to Dukes’ Will, as set forth above.
Appellant filed a timely notice of appeal from that Judgment and Order.
Discussion
At the outset, we note that appellant’s brief falls woefully short of the
mandate contained in Kentucky Rules of Civil Procedure (CR) 76.127 for
presenting arguments to this Court. Specifically, CR 76.12(4)(c)(v) requires that
all appellants’ briefs include:
An “ARGUMENT” conforming to the statement of
Points and Authorities, with ample supportive references
to the record and citations of authority pertinent to each
issue of law and which shall contain at the beginning of
the argument a statement with reference to the record
showing whether the issue was properly preserved for
review and, if so, in what manner.
Appellant’s brief does not include citations to the record or statements identifying
how he preserved the issues he now raises on appeal. Furthermore, appellant cites
7
Without listing every deficiency in the parties’ briefs, we believe it is important to point out
that both appellant and appellee failed to follow the directives set forth in CR 76.12(c) that each
party: (1) include on the brief cover a statement that the record on appeal has been properly
returned to the trial court’s clerk or that the party filing the brief did not obtain the record
(76.12(6)(c)); and (2) that each party provide a summary of the facts with ample references to the
specific page numbers of the record (76.12(4)(c)(iv)).
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little authority and no explanation how the authority that is cited is pertinent to the
issue(s) raised. This Court has previously addressed this issue.
Our courts have established that an alleged error may be
deemed waived where an appellant fails to cite any
authority in support of the issues or arguments advanced
on appeal. [W]ithout any argument or citation of
authorities, [a reviewing c]ourt has little or no indication
of why the assignment represents an error. It is not our
function as an appellate court to research and construct a
party’s legal arguments, and we decline to do so here.
Hadley v. Citizens Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) (citations
and quotation marks omitted).
Additionally, an appellant may not seek review by this Court and yet fail to
follow procedural rules propounded by the Court. Hallis v. Hallis, 328 S.W.3d
694, 696 (Ky. App. 2010).8 Procedural rules “do not exist for the mere sake of
form and style. They are lights and buoys to mark the channels of safe passage and
assure an expeditious voyage to the right destination. Their importance simply
cannot be disdained or denigrated.” Louisville and Jefferson County Metropolitan
Sewer Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007) (quoting Brown v.
Commonwealth, 551 S.W.2d 557, 559 (Ky. 1977)).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with review; (2) strike the brief or its
offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief
8
In Hallis v. Hallis, 328 S.W.3d 694, 695-98 (Ky. App. 2010), we explained in detail the
purpose behind and the significance of the rules set forth in CR 76.12, and the resulting impact
on our review when an appellate advocate fails to abide by the rules.
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for manifest injustice only.” Hallis, 694 S.W.3d at 696 (citing Elwell v. Stone, 799
S.W.2d 46, 47 (Ky. App. 1990)).
As noted, the appellant in the case sub judice is not at liberty to
disregard the rules of this Court simply because he is not possessed of a legal
education. However, because appellant is acting pro se, we will not strike his brief
pursuant to CR 76.12(8)(a). Instead, we will confine ourselves to a review for
manifest injustice. Hallis, 694 S.W.3d at 696. Manifest injustice exists only if the
error “so seriously affected the fairness, integrity, or public reputation of the
proceeding as to be ‘shocking or jurisprudentially intolerable,’” Commonwealth v.
Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citing Martin v. Commonwealth, 207
S.W.3d 1, 4 (Ky. 2006)), or if the error is “so fundamental as to threaten a
defendant’s entitlement to due process of law.” Martin, 207 S.W.3d at 3.
Appellant raises eighteen issues in his brief.9 The bulk of appellant’s
arguments contend that the circuit court erred in calculating the decedent’s gross
estate because the circuit court failed to use the numbers and values provided by
the appellant, as set forth in his “Final Unagreed Settlement.” Prior to issuing its
decision, the circuit court conducted a bench trial. During the bench trial,
appellant testified on direct and cross examination regarding the value of the
Estate’s assets and the Estate’s costs and expenses, and admitted multiple
documents into evidence. Following the bench trial, the circuit court conducted an
exhaustive analysis, setting forth precise findings regarding the value of each asset
9
To the extent that any arguments set forth in his brief are not discussed herein, it is because
they are either unworthy of mention or wholly without merit.
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in the Estate, the amount of the Estate’s expenses and costs, and the distribution of
the Estate assets, as set forth above. In doing so, the circuit court relied on all the
testimony and documents submitted during the bench trial and, in many instances,
the circuit court used the amounts appellant provided. Simply claiming that the
circuit court should have relied exclusively on appellant’s Final Unagreed
Settlement in calculating the Estate’s net and gross values, without citing any legal
authority in support, does not justify a finding of manifest injustice. In fact, it
would have been improper for the circuit court to rely solely on appellant’s figures
and calculations without considering all the evidence submitted during trial.
Accordingly, we find no basis for concluding that manifest injustice has
resulted from any alleged error regarding the value and distribution of the Estate,
and are not persuaded by appellant’s arguments on this issue.
We have reviewed appellant’s remaining claims of error and similarly
see no manifest injustice. Indeed, even if such errors existed, they were not so
prejudicial as to bear upon Dukes’ substantial rights, nor were they so “shocking or
jurisprudentially intolerable” as to rise to the level of manifest injustice warranting
reversal.
Conclusion
Appellant has not established that the circuit court’s findings of fact,
conclusions of law, and order result in manifest injustice. The Muhlenberg Circuit
Court’s Amended Judgment and Order dated April 20, 2010, is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles G. Dukes, Pro se
Mooresville, Indiana
Stephanie D. Ritchie
Clarksville, Tennessee
Constance E. Revlett
Calhoun, Kentucky
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