DONNIE H. WHITE v. ESTATES OF ALBERT B. LEE AND MARY L. LEE
Annotate this Case
Download PDF
RENDERED: May 5, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000845-DG
DONNIE H. WHITE
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISSAC, JUDGE
ACTION NO. 05-XX-00003
ESTATES OF ALBERT B. LEE
AND MARY L. LEE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY, JOHNSON, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Donnie H. White has appealed from the March 28,
2005, order of the Fayette Circuit Court which affirmed the
January 4, 2005, order of the Fayette District Court which
reopened the Estates of Albert B. Lee and Mary L. Lee1
(collectively, the Estates) and ordered the supersedeas bond be
distributed to the appellees, the respective heirs of each of
the Estates (collectively, the heirs).
1
This Court granted
These two estates were never officially consolidated.
White’s motion for discretionary review on July 21, 2005.
Having concluded that the 15-year statute of limitations had
been tolled during the pendency of the previous appeal, we
affirm.
White was the attorney for the personal representative
of the Estates.
Various motions were filed in the Estates
challenging the legal fees charged by White.
The Fayette
District Court entered an order on August 4, 1989, directing
White to repay $4,150.00 to the estate of Albert B. Lee and to
repay $8,000.00 to the estate of Mary B. Lee.
White filed a
notice of appeal in the Fayette Circuit Court on August 29,
1989, and executed a supersedeas bond in the amount of
$24,300.00, pledging real estate that he owned as surety
thereon.2
The circuit court did not rule on White’s appeal for
almost four years.3
On May 17, 1993, the circuit court entered
an order affirming the August 4, 1989, district court order and
returned the cases to the district court for final disposition
of all matters.
The bond remained in place, the judgment
2
Because the bond surety was real estate rather than a cash bond, White had
to post surety of $24,300.00 instead of the $12,150.00 that was required.
3
According to the heirs’ response to White’s motion for discretionary review
the delay between the appeal dated August 29, 1989, and the ruling by the
circuit court on May 15, 1993, was because of the following: (1) two Fayette
Circuit Court judges recused themselves; (2) the parties filed numerous
motions; and (3) a settlement conference was ordered, but no resolution was
obtained.
-2-
remained unpaid, and there was no attempt by the Estates to
execute on the judgment.
On October 6, 1995, the Public Administrator of
Fayette County, who had been appointed by the district court to
finalize all pending matters for the Estates, filed a proposed
settlement and a request for approval to make a final
distribution of the assets of the Estates.
The district court
approved the proposed settlement by an order entered on October
27, 1995.4
The Public Administrator filed the final settlements
of the Estates on November 21, 1995.
At this time the Estates
were deemed closed and no further action was taken.
On June 7, 1995, White had replaced the real property
securing the supersedeas bond with cash in the amount of
$24,300.00,5 making the bond now a cash bond.
That money was not
distributed to the Estates prior to their being closed, but
remained on deposit with the Fayette District Court Clerk.
Again, no attempt had been made by the heirs to execute on the
judgment and/or collect the money.
No action was taken with
regard to the funds being held by the district court clerk until
August 10, 2004, when the district court, on its own motion,
sent to all parties and to all counsel who had been counsel of
4
This proposed settlement referred to the judgment against White, although no
attempt had been made to collect on the judgment.
5
White replaced the real estate bond with $24,300.00 cash even though the
original surety was only $12,150.00 cash.
-3-
record at any time during the administration of the Estates a
notice of intent to release the bond.
White, as well as counsel
for the heirs, filed motions requesting that the funds be
distributed to their respective clients.
The district court
held a hearing on October 24, 2004, and after reviewing written
arguments, it entered findings of fact and conclusions of law
and an order on January 4, 2005.
The order directed that the
Estates be reopened for the limited purpose of receiving the
funds from the Fayette District Court Clerk that were being held
in accordance with prior orders of the district court.
White then appealed the district court’s January 4,
2005, order to the Fayette Circuit Court on January 12, 2005,
which affirmed the ruling in its entirety by an order entered on
March 28, 2005.
White then filed a motion for discretionary
review with this Court on April 26, 2005, which was granted on
July 21, 2005.
White argues that the statute of limitations began to
run on August 4, 1989, the date the district court’s final and
appealable order ordered White to pay the money to the heirs.6
6
White argues in his motion for discretionary review that there were no
subsequent orders of any court providing a new ruling. It simply affirmed
the original findings of the district court on August 4, 1989. White also
notes in his motion for discretionary review that the supersedeas bond
executed for the August 4, 1989, order was not in effect for the May 28,
2005, order. White raises the question in his motion for discretionary
review that since the order of August 4, 1989, expired on August 3, 2004, as
to what order is being enforced by payment of proceeds of supersedeas bond to
the heirs.
-4-
He further argues that in order for the 15-year statute of
limitations to be tolled, a party seeking to enforce the
judgment must execute on the judgment.
He argues that since
execution did not occur, the statute was not tolled and the
statute of limitations barred any recovery after August 2004.
Thus, he contends the $24,300.00 he placed into the account with
the district court clerk should be returned to him.
The heirs argue that the statute of limitations was
tolled when White appealed the August 4, 1989, order of the
district court and posted the supersedeas bond.
The heirs
contend that this tolling lasted at least until May 17, 1993,
when the circuit court issued an opinion in White’s appeal.
The
heirs argue that when White posted the bond, he precluded the
Estates from taking any action until such time as the appeal was
ruled upon which did not occur for nearly four years.
White argues that the controlling law in this case is
KRS7 413.090 which states, in pertinent part, as follows:
Except as provided in KRS 396.205,
413.110, 413.220, 413.230 and 413.240, the
following actions shall be commenced within
fifteen (15) years after the cause of action
first accrued:
(1)
7
An action upon a judgment or decree of
any court of this state or of the
United States, or of any state or
territory thereof, the period to be
Kentucky Revised Statutes.
-5-
computed from the date of the last
execution thereon.
Thus, White argues that the judgment had to be executed within
15 years of its entry.
The heirs do not concede that KRS
413.090 applies to the August 4, 1989, district court order;8
however, assuming that it does, they argue that White’s action
of appealing to the circuit court and in posting a supersedeas
bond clearly tolled the statute of limitations established in
KRS 413.090.
Thus, according to the heirs the statute of
limitations had yet to expire and would not do so until May 16,
2008.
In order to extend the statute of limitations, a party
must execute9 on the judgment, or otherwise the 15-year statute
of limitation applies.10
To toll the running of the statute,11
the execution must be issued on the debt and not just on costs.
“[A debtor] may keep [a judgment] alive indefinitely by causing
executions to issue on it from time to time within the period
prescribed by the statute, or he may keep it alive indefinitely
by commencing an action on the judgment . . . within the time
8
The heirs argue in their response to White’s motion for discretionary review
that the August 4, 1989, order was a “directive” not a judgment against
White, so KRS 413.090 does not apply. However, the heirs fail to set out
which statute they believe applies in this case.
9
See 33 C.J.S. Executions §2 (Supp. 2005) (stating that an execution is a
remedy but is not “a cause of action, an action, nor a special proceeding”).
10
Looney v. Justice, 299 Ky. 729, 730, 187 S.W.2d 289, 290 (1945).
11
Id.
-6-
and in the manner prescribed . . . and keeping the action on the
docket.”12
White notes that more than 15 years had passed between
the date of the original order and the district court’s notice
of intent.
The heirs admit that prior to the district court’s
notice on August 10, 2004, they had taken no action to enforce
the judgment; however, they argue that during this period they
were precluded from taking action during part of this period as
a result of the appeal.
Thus, the heirs argue that if KRS
413.090 applies, they have until May 16, 2008, to enforce the
district court judgment.
White claims there is no case law or
statutory law to support this argument.
We disagree.
The heirs cite in support of their argument CR13 62.03,
which states in section 1, in part, that “[w]hen an appeal is
taken the appellant may stay enforcement of the judgment by
giving a supersedeas bond as provided in Rule 73.04.”
“‘[I]f
such judgment be obstructed by appeal, supersedeas or
injunction, the time of such obstruction shall also be
disallowed’” [citations omitted].14
This Court has stated that
the period of time that a judgment is superseded cannot be
counted as part of the statute of limitations period.
12
Slaughter v. Mattingly, 155 Ky. 407, 159 S.W. 980, 982 (1913).
13
Kentucky Rules of Civil Procedure.
14
McGovern v. Rectanus, 139 Ky. 365, 105 S.W. 965, 967 (1907).
-7-
In
Cavanaugh v. Britt,15 our former Court of Appeals stated as
follows:
In the case now before us the debtor
superseded the judgment. . . . This
deprived the appellee of the right to bring
any action looking to the collection or even
the protection, of his judgment. The
superseding of it prevented any step in that
direction. This condition resulted from the
act of the debtor who was a necessary party
to any suit to annul his conveyance. The
law gave him the right to thus stop his
creditor from proceeding to collect his
demand; and it would be unreasonable to
permit him to exercise this right, and then
allow one holding under a fraudulent
conveyance from him to claim that the time
during which the right to sue had been thus
superseded should be estimated as a part of
the limitation. This would bar the creditor
of a right by lapse of time, when, during
the same time, he was forbidden by law from
exercising the right, and would have been in
contempt of court if he had attempted to do
so. It was decided in Johnson v. Williams,
82 Ky. 45, that, after a judgment has been
obtained and superseded by the debtor, the
creditor has no right to bring an action
upon it, and protect it by suing out an
attachment against the debtor’s property.
He cannot harass the debtor with another
suit while the judgment is thus suspended,
and the right to it in question. This being
so, it is not supposable that such a
solecism exists in the law as to say that
one must exercise a right within a certain
period, or he shall be barred from doing so,
when during that same time, it forbids the
exercise of the right.16
15
90 Ky. 273, 13 S.W. 922 (1890).
16
Cavanaugh, 13 S.W. at 923.
-8-
For the foregoing reasons, we affirm the order of the
Fayette Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Gerry L. Calvert
Lexington, Kentucky
Michael R. Moloney
Lexington, Kentucky
-9-
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.
