WILSON (CAROLYN) VS. MUSIC (CHRISTY R.)
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RENDERED: NOVEMBER 13, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000257-MR
CAROLYN WILSON
v.
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE DAVID PRESTON, JUDGE
ACTION NO. 07-CI-00035
CHRISTY R. MUSIC
AND
APPELLEE
NO. 2008-CA-002291-MR
CAROLYN WILSON, EXECUTRIX OF
THE ESTATE OF JOHN WILSON
v.
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE DAVID PRESTON, JUDGE
ACTION NO. 08-CI-00281
CHRISTY R. MUSIC
APPELLEE
OPINION DISMISSING IN PART
AND AFFIRMING IN PART
** ** ** ** **
BEFORE: CLAYTON, MOORE, AND STUMBO, JUDGES.
MOORE, JUDGE: Carolyn Wilson appeals the Johnson Circuit Court’s order
denying her motion to reconsider the part of the court’s prior order dismissing the
case of her belated husband, John R. Wilson, with prejudice. Ms. Wilson also
appeals the Johnson Circuit Court’s order dismissing with prejudice the case she
filed as Executrix of the Estate of John Wilson. After a careful review of the
record, we dismiss the appeal in case number 2008-CA-000257 for lack of
standing and we affirm the circuit court’s order in appellate case number 2008-CA002291.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September 2006, Carolyn Wilson, John Wilson, and Christy R.
Music were involved in an automobile accident in which Ms. Music allegedly
drove a vehicle that collided with the vehicle in which the Wilsons were riding.
The Wilsons filed a complaint against Ms. Music for their bodily injuries, pain and
suffering, and medical expenses. While the litigation was pending, John Wilson,
who had battled cancer long before the accident occurred, died from the cancer on
July 4, 2007.
Carolyn Wilson was appointed Executrix of John Wilson’s estate on
July 12, 2007. However, she did not file a motion to revive the action of John
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Wilson. The action proceeded to trial on January 15, 2008, when Carolyn Wilson
moved to dismiss her case. The circuit court granted her motion and dismissed her
case with prejudice, as well as John Wilson’s case with prejudice, after noting that
[a]s late as 2:30 in the afternoon of January 14th, 2008,
the Court had a conference call with counsel for the
parties, who were advised by the Court that . . . a jury
would be available if necessary on January 15th, 2008 to
try the case. The Court was advised by the parties that
the case was ready [to] proceed, and that a jury would be
necessary.
Thus, the circuit court dismissed both Carolyn and John Wilson’s cases with
prejudice because “the case should have been ready for trial on January 15th, 2008[,
and because] of the failure of the parties to timely advise the Court that a jury
would not be necessary.” In addition to dismissing the actions with prejudice, the
circuit court ordered Carolyn Wilson to pay a fine of $500.00 to the court clerk.
Carolyn Wilson then moved the court to reconsider the part of its prior
order dismissing John Wilson’s case with prejudice, arguing that “the estate of
John Wilson has one year from the date of [his death] to revive his claim in this
suit.” She did not move the court to reconsider the dismissal of her claim with
prejudice. The court denied her motion to reconsider the dismissal of John’s
claims. Carolyn appealed the court’s order denying her motion to reconsider. That
appeal is presently before this Court as appellate case number 2008-CA-000257.
While that appeal was pending, Carolyn Wilson, as Executrix of the
Estate of John Wilson, filed a new civil action in the circuit court against Christy
R. Music, raising the same claims that John Wilson had raised in his initial action
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filed in that court. Ms. Music moved to dismiss the case. The circuit court granted
her motion to dismiss, reasoning that
Carolyn Wilson as Executrix of the Estate of John
Wilson, failed to comply with KRS[1] 395.278 with
respect to revival and CR[2] 25.01(1) with respect to
substitution of parties. This Court called the prior action
. . . for trial, Plaintiffs in that matter were not ready, had
not complied with either KRS 395.278 or CR 25.01(1)
and the matter involved the same subject matter and real
parties in interest.
Carolyn Wilson, as Executrix of the Estate of John Wilson, now
appeals the circuit court’s order dismissing this second action. That appeal is
before us as case number 2008-CA-002291. Both appeals have been consolidated
for our review.
In these appeals, Carolyn Wilson contends that the circuit court
should not have dismissed John Wilson’s actions with prejudice, but should have
placed the initial action that he filed in abatement because she had one year from
the date of his death to revive the action he had initially filed.
II. ANALYSIS
Kentucky Revised Statute 395.278 provides: “An application to
revive an action in the name of the representative or successor of a plaintiff . . .
shall be made within one (1) year after the death of a deceased party.”
Kentucky Rule of Civil Procedure 25.01(1) provides:
1
Kentucky Revised Statute.
2
Kentucky Rule of Civil Procedure.
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If a party dies during the pendency of an action and the
claim is not thereby extinguished, the court, within the
period allowed by law, may order substitution of the
proper parties. If substitution is not so made the action
may be dismissed as to the deceased party. The motion
for substitution may be made by the successors or
representatives of the deceased party or by any party,
and, together with the notice of hearing, shall be served
on the parties as provided in Rule 5, and upon persons
not parties as provided in Rule 4 for the service of
summons. Upon becoming aware of a party’s death, the
attorney(s) of record for that party, as soon as practicable,
shall file a notice of such death on the record and serve a
copy of such notice in the same manner provided herein
for service of the motion for substitution.
The circuit court found that Carolyn Wilson did not comply with
either KRS 395.278 concerning reviving John Wilson’s action, nor with CR
25.01(1) regarding substituting herself for John Wilson as the Executrix of his
estate.3 We agree. Upon review of the written records, it is apparent that no
motion to substitute Carolyn Wilson for John Wilson as the Executrix of his estate
was ever filed or ruled upon by the circuit court, and no motion to revive the action
of John Wilson was ever filed or ruled upon.
Thus, Carolyn Wilson did not have standing to move the circuit court
to reconsider its dismissal of John Wilson’s initial case with prejudice, because she
had not been substituted for John Wilson as a party in that action and she had not
revived John’s action. Further, Carolyn Wilson specified in that motion to
reconsider that she was not moving the circuit court to reconsider the dismissal of
3
We pause to note that, upon review of the circuit court’s record, it appears that John Wilson’s
attorney of record also did not file a notice of John Wilson’s death on the record, as required by
CR 25.01(1).
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her claims with prejudice but, rather, she was only moving to reconsider the
dismissal of John’s claims with prejudice. “The history of KRS 395.278 is
important because, [a]t common law, when the plaintiff died the lawsuit died with
him. . . .” Hardin County v. Wilkerson, 255 S.W.3d 923, 925 (Ky. 2008) (internal
quotation marks omitted).
The revival statute altered this practice, allowing the dead
(or abated) suit to be revived. Nevertheless, the action in
the name of the decedent is dead and cannot be
prosecuted; it remains on the docket only as a
placeholder for the revived suit in the name of the
personal representative of the estate.
Id. at 926.
However, “[a] personal representative does not automatically succeed
to his decedent’s rights and status as a litigant and thus is not a party to any suit
[for or] against the decedent unless the action is revived.” Snyder v. Snyder, 769
S.W.2d 70, 72 (Ky. App. 1989). Consequently, even if Carolyn was declared to be
the Executrix of John’s estate by the probate court, such did not automatically
result in the substitution of Carolyn for John in this civil action. The substitution
of parties is not a mere formality.
When read together KRS 395.278 and CR 25.01 require
that when a litigant dies, any action pending with respect
to him must be revived against that decedent’s
administration and the administrator must be substituted
as the real party in interest before the action can proceed.
. . . [Further,] when a judgment of a trial court is
attacked as void, the real parties in interest must be
brought before the court.
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Id. Thus, even if Ms. Music was notified of John’s death, as appears to have
occurred in this case, this simple act of notification was insufficient for purposes of
reviving John’s action. See id. Rather, Carolyn was required to actually move the
circuit court to revive John’s action, to substitute herself in the action for him as
the Executrix of his estate, and to obtain the court’s approval of both of these
requests before Carolyn could properly move the court to reconsider its dismissal
of John’s claims. See id. at 72-73. Once the entry of dismissal with prejudice was
entered, it was a final judgment – regardless of whether that judgment was right or
wrong. Carolyn was on notice at that point that she needed to move within ten
days to be substituted as a party, to revive the action, and to move the court to
vacate its prior dismissal. She failed to do so in the first action, so the judgment
became a final order of dismissal with prejudice ten days after its entry. Because
this was not a clerical error, Carolyn was then foreclosed from doing anything
further in the first action.
Therefore, because Carolyn did not have standing to file that motion
to reconsider on John’s behalf, and the initial appeal in this case was from the
circuit court’s denial of that motion to reconsider, the appeal in case number 2008CA-000257 is not properly before us. Accordingly, that appeal is dismissed for
lack of standing because Carolyn was not the proper “party of record” to appeal the
dismissal of John’s claims. See generally Bartholomew v. Paniello, 287 S.W.2d
616 (Ky. 1956).
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As for the second appeal regarding the case that Carolyn filed as
Executrix of John Wilson’s estate, the complaint in that case raised the same
claims as the complaint in the initial case that had been dismissed with prejudice.
“A dismissal with prejudice . . . acts as a bar to again asserting the cause of action
so dismissed.” Polk v. Wimsatt, 689 S.W.2d 363, 364 (Ky. App. 1985). Thus, the
dismissal of an “action with prejudice precludes another action on the same
matter.” Id. at 365. Consequently, the circuit court did not err in dismissing the
second action.
Accordingly, appellate case number 2008-CA-000257 is dismissed.
Further, in appellate case number 2008-CA-002291, the order of the Johnson
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephen W. Owens
Pikeville, Kentucky
Geoffrey D. Marsh
Prestonsburg, Kentucky
Miranda D. Click
Prestonsburg, Kentucky
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