MELISSA CHILDERS BOGGS v. WILLIAM DOUGLAS CHILDERS, DECEASED
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RENDERED: AUGUST 18, 2000; 10:00 a.m
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003052-MR
MELISSA CHILDERS BOGGS
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE JOHN ROBERT MORGAN, SPECIAL JUDGE
ACTION NO. 94-CI-00212
v.
WILLIAM DOUGLAS
CHILDERS, DECEASED
APPELLEE
OPINION
REVERSING AND REMANDING WITH DIRECTIONS
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON, AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Melissa Childers Boggs has appealed from the
judgment of the Letcher Circuit Court which denied her motion to
revive the dissolution action commenced by her deceased husband,
William Douglas Childers.1
1
Having reviewed the record, we
In a previous ruling entered May 12, 2000, this Court
determined that the appeal would proceed to a determination on
the merits although the appellant, Melissa Childers Boggs, failed
to name the administrator of the estate of William Douglas
Childers as a party in her notice of appeal. Boggs did serve her
notice of appeal on the attorney for the administrator and,
apparently realizing he was the only possible appellee given the
nature and history of the case, Sheriff Banks fully participated
and filed an appellee brief without voicing any objection to the
(continued...)
conclude that the trial court erred in refusing to revive the
action against the administrator of Childers’ estate and in
failing to address the merits of the various substantive issues
relating to the proper division of assets of the marital estate.
Thus, we reverse and remand for further proceedings.
Boggs and the decedent, Childers, were married in 1987
and had two children:
born on April 14, 1992.
Jordan was born on May 5, 1990; Carlie was
Childers filed a petition for the
dissolution of the parties’ marriage on July 19, 1994, and a
decree dissolving the marriage was entered on October 4, 1994.
All issues pertaining to child support, maintenance and property
division were retained on the court’s docket for future
adjudication.
The parties conducted considerable discovery
particularly in respect to Childers’ holdings in a closely held
corporation.
Before the trial court disposed of the pending issues
in the dissolution action, Childers died, intestate, on August 3,
1996.
Boggs was appointed as the guardian of their two minor
children by the Letcher District Court.
Both she, and Childers’
father, Donald Childers, sought to be appointed as the
administrator of Childers’ estate.
The Letcher District Court
refused to appoint either Boggs or Childers’ father as the
personal representative and suggested that they find a mutually
1
(...continued)
Court’s jurisdiction. After the case was submitted to this panel
for decision on the merits, we sua sponte raised the issue of
whether the failure to name the administrator, Sheriff Steve
Banks, was of jurisdictional import. After considering the
arguments of both Boggs and Sheriff Banks, we concluded that it
was not.
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agreeable third party to represent the estate.
Apparently, Boggs
and Donald Childers were unable to agree on an administrator.
On September 11, 1996, Donald Childers moved the trial
court to relieve his son’s estate of the obligation to make the
$386 monthly house payment as previously ordered.
This motion
was prepared and filed on behalf of Donald Childers by Darrell
Hall, the attorney who had represented Childers prior to his
death.
Boggs objected to the motion and argued that Donald
Childers lacked standing to make such a motion and that she and
the children would have no place to live if the mortgage payments
were not made.
Attorney Hall and Bogg’s attorney, Nancy Collins,
appeared in court on September 26, 1996, at which time the trial
court declined to consider the motion and noted on its calender
“no admin. been appointed--no action can be taken until admin.
appointed.”
On July 16, 1997, three weeks short of one year from
Childers’ death, the Letcher District Court appointed Sheriff
Steve Banks, as the administrator of Childers’ estate.2
2
Sheriff
Kentucky Revised Statutes (KRS) 395.390 provides:
(1) The district court of a county which has
a public administrator and guardian shall,
after the expiration of sixty (60) days from
the death of the decedent, order the public
administrator and guardian to administer the
estate of the decedent where the surviving
spouse and heirs waive their right to be
appointed, or if the surviving spouse does
not nominate a suitable administrator, or in
the event any of the persons designated in
KRS 395.040 are unable, or found to be
incapable of handling or managing the estate,
or if from any other cause there is no
personal representative. If there is no
public administrator and guardian, the court
(continued...)
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Banks took his oath and posted a bond in August 1997.
On
December 12, 1997, sixteen months after Childers’ death, and four
months after Sheriff Banks’ appointment as administrator of
Childers’ estate, Boggs filed her motion to revive the
dissolution action and to substitute Sheriff Banks for the
deceased petitioner.
the motion.
Sheriff Banks did not file a response to
However, Hall, the attorney of record for the
decedent, Childers, filed a response, identified as a response on
behalf of his former client, and therein objected to the motion
as not having been timely filed within the one-year limitations
period for revival provided for in KRS 395.278.
In her reply to Hall’s response, Boggs alleged that
since his representation of Childers ceased upon Childers’ death,
Hall lacked standing to raise any objection to her motion for the
substitution of Sheriff Banks for the deceased petitioner.
She
also alleged that Hall was currently representing Childers’
parents, Donald and Peggy Childers, in their pursuit of claims
against their son’s estate.
Further, Boggs represented to the
trial court that the attorney for the estate, Edison G. Banks,
II, had “orally agreed that the action should proceed for
division of the marital property and debts, as well as
restoration to the Estate of Mr. Childers’ non-marital property.”
In addressing the merits of Hall’s argument that her motion to
revive was time-barred, Boggs contended that it was not possible
2
(...continued)
shall order the sheriff to administer the
estate.
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for her to have complied with the time limitations in KRS
395.278, and to have filed a motion to revive within one year of
Childers’ death because a personal representative had not been
appointed and qualified within the one-year period.
Boggs also moved the trial court to strike Hall’s
response to her motion to revive for the reasons that his client
had died and Hall’s representation had thus ended, and because he
was representing creditors of his former client’s estate.
did not respond to the merits of this motion.
Hall
Instead, Hall
moved the trial court, again in the guise as counsel for the
deceased Childers, to dismiss the dissolution action.
Citing
Royce v. Commonwealth,3 Boggs again asserted that Hall no longer
had standing to file motions in the proceeding, or to seek
dismissal of the action, or any authority to appear in the case.
She reiterated that Hall’s interests were contrary to those of
the estate and Childers’ only heirs, his two children, and that
counsel for the administrator of Childers’ estate had agreed that
the dissolution should proceed to its conclusion.
These motions were heard by the trial court on January
22, 1998.
Present at the hearing were Boggs and her attorney,
Collins, Hall, ostensibly in his capacity as the attorney for the
decedent, and Edison G. Banks II, counsel for Sheriff Banks, the
administrator of Childers’ estate.
The trial court did not
resolve any of the motions at that time, but ordered that briefs
be filed and that another hearing be conducted on March 4, 1998.
There is no indication in the record that a hearing was conducted
3
Ky., 577 S.W.2d 615 (1979).
-5-
in March 1998.
Instead, the several pending motions, including
Boggs’ motion to revive the action, to substitute Sheriff Banks
as the petitioner, and to strike the motions and pleadings filed
by Hall, and Hall’s motion to dismiss, were finally heard in
November 1998.
Although Sheriff Banks was before the trial
court, the record reflects that the administrator made no
objection whatsoever to Boggs’ motions to revive the dissolution
action and to substitute him for his decedent, Childers.
Neither
did Sheriff Banks ever dispute Boggs’ allegations that his
attorney had consented to the motion to revive the dissolution
proceeding, although untimely made, nor did he join in Hall’s
motion to dismiss.
On November 12, 1998, the trial court entered
the order from which this appeal has been taken.
It denied
Boggs’ motions to revive the action and to substitute Sheriff
Banks as a party as having been filed beyond the one-year
limitations period provided for in KRS 395.278, and granted
Hall’s motion to dismiss the dissolution action.4
In her appeal, Boggs argues that the trial court erred
in dismissing the dissolution action and in denying her motion to
revive as having been untimely filed.
We agree.
The trial
court’s judgment does not mention, much less analyze, the various
issues raised by Boggs including Sheriff Banks’ waiver of the
4
On the same day, the trial court also granted the motion of
Edison G. Banks, II, to withdraw as counsel for Sheriff Banks.
The attorney stated that the “allegations of fraudulent
conveyances, transfers and/or forged documents made on behalf of
Melissa Childers Boggs” created a conflict for him in his
capacity as an Assistant County Attorney for Letcher County.
Sheriff Banks is currently represented in this appeal by Daniel
F. Dotson.
-6-
limitations defense, application of the doctrine of estoppel as
precluding the estate from asserting the defense given its
failure to have a personal representative within the statutory
period and/or Attorney Banks’ purported consent to proceed with
the dissolution, or the impossibility to comply with the statute
of limitations.
Rather, the judgment merely concludes that the
“law in Kentucky is clear that KRS 395.278 operates as a statute
of limitations, is mandatory and [is] not subject to
enlargement.”
While the trial court apparently ruled that the
limitations period cannot be waived, the law is otherwise.
KRS
395.278 reads: “An application to revive an action in the name of
the representative or successor of a plaintiff, or against the
representative or successor of a defendant, shall be made within
one (1) year after the death of a deceased party.”
There is no
question that this statute “operates as a statute of
limitations.”5
However, it is also settled that the right of a
personal representative to insist on a timely motion to revive
may be “lost” by “waiver, estoppel, or consent.”6
As a general
rule, “the [s]tatute of [l]imitations is a shield and not a
sword.”7
5
The defense of limitation “is a personal one and in
Hammons v. Tremco, Inc., Ky., 887 S.W.2d 336, 338 (1994).
6
Daniel v. Fourth and Market, Inc., Ky., 445 S.W.2d 699, 701
(1968).
7
See Rader v. Dean, 275 Ky. 255, 121 S.W.2d 43, 45 (1938).
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order for it to become an issue in the case it must be pled
affirmatively.”8
A careful examination of the record reveals, as stated
earlier, that Sheriff Banks, at no time, raised any objection to
the timeliness of the motion to revive and to substitute him for
his decedent.9
His failure to so plead or to object constitutes
a clear waiver of that defense.10
In order to overcome this
unquestionable waiver, Sheriff Banks relies on the objections and
motions filed by Hall to support the trial court’s judgment of
dismissal.
Obviously, Hall’s motions and objections on behalf of
Childers, who was deceased and from a legal standpoint no longer
existed, were inappropriate and of no legal significance.11
The
8
Young v. Tackett, Ky., 481 S.W.2d 661, 663 (1972)(quoting
Thompson v. Ward, Ky., 409 S.W.2d 807 (1966)).
9
Sheriff Banks has presented this Court with a document
entitled “Position Statement of Sheriff Steve Banks,
Administrator for the Estate of William Douglas Childers,
Deceased,” which he represents as appearing in the record at
pages 236-238, pages which actually contain documents filed by
Boggs prior to Childers’ death in 1995. The “position statement”
is not located anywhere in the record certified by the clerk of
the Letcher Circuit Court, nor has Sheriff Banks attempted to
supplement the record on appeal with this document. In any
event, the document further underscores Boggs’ waiver argument as
assuming Sheriff Banks did tender it to the trial court, he
specifically maintained therein a neutral position with respect
to the issue of the timeliness of the motion to revive, and
merely requested that the trial court consider the arguments of
both Hall and Boggs’ attorney, Collins, and “enter an appropriate
Order.”
10
Id. at 664. See also Commonwealth, Department of Highways
v. Chinn, Ky., 350 S.W.2d 622 (1961).
11
See Royce supra (it is “elementary” that the death of a
party “ends the relationship of attorney and client” and attorney
has “neither authority nor standing to speak for the dead man”).
See also Kentucky Bar Association v. Geisler, Ky., 938 S.W.2d
578, 580 (1997) (attorney has no authority to act for client
(continued...)
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trial court correctly refused to entertain any motions in the
matter until an administrator was appointed.
It was error for
the trial court to tolerate Hall’s continued participation in
this action after the death of Childers, particularly after Hall
filed a motion on behalf of Donald Childers who was never a party
to the dissolution.
Sheriff Banks suggests that the trial court
was exercising appropriate discretion in allowing Hall to protect
Childers’ interest.
This, of course, overlooks the fact that
Childers no longer had any interest to protect.
In any event, it
is clear to this Court that Sheriff Banks did not endorse the
position taken by Hall, nor did he, although represented by
counsel, independently challenge the timeliness of Boggs’
motions.12
Since Hall’s motions and responses to Boggs’ motions
were a nullity, the trial court erred in considering his
arguments to defeat Boggs’ motion and in granting Hall the relief
he requested.
Accordingly, we hold that the trial court erred in
dismissing the dissolution action.
We further hold that the
trial court erred in denying Boggs’ motion to strike the motions
filed by Attorney Hall after his client’s death, and in denying
her motion to substitute Sheriff Banks as the petitioner and in
failing to allow the dissolution to be revived.
The judgment is
11
(...continued)
after his death).
12
This Court is perplexed, given the duties of the
administrator to garner and protect the various assets of
Childers’ estate for the benefit of Childers’ heirs at law, at
the position taken by the administrator in this appeal, and why
he now objects to the motion to revive and to substitute him for
his decedent.
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reversed and the matter is remanded to the Letcher Circuit Court
for further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Nancy M. Collins
Hazard, KY
Daniel F. Dotson
Whitesburg, KY
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