SMITH (BONNIE) VS. RAMBO (BILLIE), ET AL.Annotate this Case
RENDERED: NOVEMBER 14, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM MARTIN CIRCUIT COURT
HONORABLE DANIEL SPARKS, JUDGE
ACTION NO. 05-CI-00334
BILLIE RAMBO; GENEVA SUE LITTLER
AND JAMES EDWARD HORN
** ** ** ** **
BEFORE: ACREE AND VANMETER, JUDGES; HENRY,1 SENIOR JUDGE.
ACREE, JUDGE: Bonnie Smith appeals from the summary judgment and
dismissal of her claim to an ownership interest in certain real property in Martin
County, Kentucky, from which timber was harvested. We affirm.
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute
The parties are members of one family. The family’s patriarch was
James E. Horn. James E. had four children – James Henry Horn, Billie Rambo,
Bonnie Smith, and Geneva Sue Littler.
The patriarch, James E., died testate on April 10, 2002. His will
devised his home and lot, described as the “Tomahawk, Kentucky” property, to his
son James Henry for his life, then to Billie for her life, then to Bonnie for her life,
then to Geneva Sue in fee simple absolute. Other than specific bequests not
relevant to this action, the remainder of James E.’s real and personal property was
to be divided equally among his four children. His estate was probated and a final
settlement approved on October 29, 2004.
In addition, and apart from his power to devise, James E. Horn held a
life estate in other real property in the Turkey Creek area of Martin County,
Kentucky. His son, James Henry, was the remainderman. The Turkey Creek
property passed to James Henry outside the administration of the estate.
James Henry died in 2003 and the Tomahawk property passed to
Billie Rambo in accordance with the will of James E. The Turkey Creek property
passed to Billie Rambo in accordance with James Henry’s will.
Bonnie filed this action against her siblings, Billie Rambo and Geneva
Sue Littler, and her nephew, James Edward. She alleged “an interest in real and
personal property by virtue of inheritance from the Last Will and Testament of
James E. Horn[.]” She first claimed that “Billie Rambo and Geneva Sue Littler,
took the personal property described hereinabove and either kept or disposed of it,
without giving the plaintiff her fair share, or without paying her for same[.]”
Second, she claimed Billie and Geneva Sue “caused the property at Turkey Creek
to be timbered, without permission of the plaintiff, and without the plaintiff being
paid any monies for her interest[.]”
Bonnie’s first claim, concerning her interest in the real and personal
property passing through the estate, was dismissed on March 3, 2006.2 Bonnie
does not seek our review of that order here.
The only remaining claim was that the Appellees deprived Bonnie of
income from the timbering of the Turkey Creek property. On December 27, 2006,
upon motion of Billie and Geneva Sue, the trial court entered summary judgment
against Bonnie, finding that the subject real property was “property in which
[Bonnie] did not, and has not ever, based on the record, have an ownership
interest.” Bonnie appeals that judgment here.
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
The March 3, 2006, order included finality language authorized by Kentucky Rules of Civil
Procedure (CR) 54.02. Bonnie filed a timely Notice of Appeal of that order. However, no
prehearing statement was filed with this Court and the appeal was dismissed on September 13,
2006. Because Bonnie does not challenge the March 3, 2006, order in the appeal now before us,
we need not address whether Bonnie’s complaint presented “multiple claims” susceptible to
separate finality under CR 54.02. See, Watson v. Best Financial Services, Inc., 245 S.W.3d 722,
727 (Ky. 2008), citing Jackson v. Metcalf, 404 S.W.2d 793, 794-95 (Ky. 1966).
judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.
1996). Appellate review takes note of the requirement that the trial court view the
evidence in the light most favorable to the non-moving party, and summary
judgment should be granted only if it appears impossible that the non-moving party
will be able to produce evidence at trial warranting a judgment in his favor.
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480-82 (Ky.
1991). The party seeking summary disposition bears the initial burden of
establishing that no genuine issue of material fact exists and the burden then shifts
to the party opposing the motion to present “at least some affirmative evidence
showing that there is a genuine issue of fact for trial.” Id. at 482.
Bonnie argues on appeal that two genuine issues of material fact made
the grant of summary judgment improper. The first is whether James E. held an
interest in real property other than the Tomahawk property and the Turkey Creek
property. The second is whether the timbering occurred on property other than the
Turkey Creek property. Our review convinces us that no such issues exist.
The record identifies only two parcels of real property that, in any
manner, were owned by James E. – the Tomahawk property and the Turkey Creek
property. Billie and Geneva Sue presented to the trial court the will of James E.
making it clear that Bonnie would have no right to the Tomahawk property until
Billie died. They also presented the deed to the Turkey Creek property showing
that the grantors conveyed a life estate in that property to James E. with the
remainder to James Henry. If there is some documentation or evidence of any kind
that James E. owned other real property, it is not a part of this record.
Furthermore, the record includes Billie’s affidavit that the timbering
occurred on the Turkey Creek property. Bonnie did not present any countervailing
affidavit or other evidence to the contrary.
The record shows that there were no genuine issues of material fact
and that the Appellees were entitled to judgment as a matter of law. The judgment
of the Martin Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Leo A. Marcum