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Court of Appeals of Kentucky.

Mae THOMPSON, as Guardian and Next Friend of Michael Porter, Appellant v. ESTATE OF George Lester PORTER; Deborah Springborn, Executrix of the Estate of Mary Bernadette Porter, individually and as Executrix of the Estate of George Lester Porter; 1 J. Chester Porter; and J. Chester Porter and Associates, Appellees.

No. 2011–CA–001055–MR.

    Decided: November 30, 2012

Before ACREE, Chief Judge; CLAYTON and KELLER, Judges.Melissa M. Thompson, Lexington, KY, for appellant. Matthew Hite, Estate of George Lester Porter and Mary Bernadette Porter, Bardstown, KY, Robert Spragens, Jr., Chester Porter and J. Chester Porter and Associates, Lebanon, KY, for appellees.


Mae Thompson, as guardian and next friend of Michael Porter, appeals from a summary judgment in favor of the Estate of George Lester Porter; Mary Bernadette Porter, Individually and as Executrix of the Estate of George Lester Porter; J. Chester Porter; and J. Chester Porter and Associates. Mae argues that summary judgment was erroneously granted since genuine issues of material fact exist and also premature since she was unable to conduct discovery. After our review, we conclude that summary judgment was prematurely granted and that genuine issues of material fact remain to be resolved. Thus, we vacate the trial court's entry of summary judgment and remand this matter for further proceedings.


Mae Thompson, formerly known as Mae Porter, gave birth to Michael Anthony Porter on November 15, 1971. At that time, she was married to George Lester Porter (hereinafter “Lester”). As an infant, Michael sustained a head injury that left him permanently disabled. Subsequently, in 1980, Mae and Lester were divorced, and Lester was required to pay child support for Michael. Following the divorce, Lester had no contact with Michael. After Michel reached eighteen years, based on his permanent disability, the Jefferson Circuit Court ordered, on December 4, 1989, that Lester's obligation for child support be extended into Michael's adulthood. Child support benefits were set in the amount of $220 per month.

J. Chester Porter (hereinafter “Chester”) is Lester's twin brother and a Bullitt County, Kentucky, banker and lawyer. At about the same time as the court ordered the extension of Lester's child support during Michael's adulthood, Chester, with his own funds, set up an escrow account from which he made monthly payments to Mae in an amount equal to Lester's child support payments. Chester claims that he made this payment to ensure that Michael received the support regardless of whether Lester made the payments. Further, Chester insinuates that if Lester made the child support payments, then Michael would have received double the court-ordered support, which would represent a windfall. Despite this assertion, however, Chester never established that any double payment of child support occurred regularly or, for that matter, at all. Furthermore, while Chester's intentions may be honorable, besides providing support for Michael, they also kept his brother, Lester, in compliance with a court order. Further, Mae denies receiving any extra payments.

On July 14, 2009, Lester, while a resident of Nelson County, Kentucky, died. Lester's obituary failed to make any reference or mention of Michael. Mary Bernadette Porter,2 Lester's surviving spouse, was named executrix in Lester's will. To deal with the probate of the estate, Mary Bernadette sought assistance from Chester's law firm. An attorney, Sharon H. Satterly, who practices law with Chester, represented Mary Bernadette. In her capacity as Mary Bernadette's attorney, Sharon determined that at the time of Lester's death, his property, subject to probate, had a value of less than $15,000. In addition, she ascertained that the residence, owned by Mary Bernadette and Lester, was legally a tenancy by the entirety, and thus, outside the scope of probate. Accordingly, Sharon concluded that pursuant to Kentucky Revised Statutes (KRS) 395.455(1), formal administration of Lester's estate was not necessary.

Then, on July 20, 2009, six days after Lester's death, Mary Bernadette's counsel petitioned Bullitt District Court for the admission to probate of Lester's Last Will and Testament and the entry of an order dispensing with the administration of the estate. Since Lester at the time of his death was a resident of Nelson County, Mary Bernadette, through counsel, submitted with the petition a written waiver of venue. On that same day, the Bullitt District Court issued orders that admitted Lester's Last Will and Testament to probate, declined the appointment of a personal representative for the estate, and dispensed with administration of the estate. Neither Michael nor Mae was ever notified by anyone of Lester's death or the filing of probate.

Returning to the issue of Michael's court-ordered child support, Chester's voluntary support payments continued for six (6) months after Lester's death. In the latter half of 2009 and following Lester's death, Chester made support payments for Michael on July 31, September 23, October 28, November 30, and December 22. Chester, ostensibly, stopped making the payments because they were not being executed. During this time, however, although the support payments continued, no one connected with Lester's estate, or for that matter, his family, contacted Mae about Lester's death or that the estate had been filed for probate in Bullitt County.

According to an answer to the interrogatories propounded to Mae, she only became aware of Lester Porter's death when she read his obituary in the newspaper. Mae lives in Casey County, and she did not provide in the answer where or when she read Lester's obituary. To date, Mae has not made a claim on Lester's estate for Michael's child support. As such, she has not made a motion under KRS 395.500 to set aside the order dispensing with administration of the will or filed a motion for admission to probate of Lester's estate in Nelson County.

Mae filed a complaint on July 15, 2010. In the complaint, she contends that Lester's death did not automatically terminate his child support obligation; that the petition seeking both the admission to probate of Lester's will and also an order to dispense with formal administration was filed in Bullitt County, rather than Nelson County; that no notice of the Bullitt County proceeding was provided to Michael or Mae; and finally, that the continuation of Michael's child support for five months following Lester's death, in conjunction with the failure to notify Michael or Mae of the filing for probate in Bullitt County, fraudulently deprived Michael of the opportunity to file a lawful claim against Lester's estate.

Appellees filed motions challenging the sufficiency of Mae's complaint. These motions were fully briefed. Oral arguments were conducted on February 15, 2011. At the conclusion of the oral arguments, the court provided information that because the statute of limitations had not run, Mae was still able to file a motion to set aside the probate in Bullitt District Court and to make a motion for the estate's admission to probate in Nelson District Court. Further, Mae could then ask for the appointment of a personal representative for Lester's estate. If Mae so proceeded, according to the trial court, she could then make claims against it. Nonetheless, Mae never acted to pursue a claim for post-death child support against Lester's estate. Ultimately, after withholding the order to allow time for Mae to make such motions, the trial court, on May 18, 2011, granted Appellees' motion for summary judgment. Mae now appeals from this order.

Mae's primary contention is that the Nelson Circuit Court's decision to grant summary judgment was improper and premature since genuine issues of material fact exist, and further, she was not allowed to conduct discovery. To counter, the Appellees maintain that the trial court's grant of summary judgment was proper, that the conduct alleged by Mae was neither fraudulent nor did it cause injury, and lastly, Mae failed to initiate a legitimate claim to challenge the efficacy of Kentucky's statutory notice to the public in probate cases.


On appeal, “[t]he standard of review [of a trial court grant] of a 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 judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Serv. Ctr, Inc., 807 S.W.2d 476, 480–482 (Ky.1991). The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present “at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Id. at 482. Furthermore, “[t]he trial [court] must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists.” Id. at 480. Finally, “[b]ecause summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo.” Lewis v. B & R Corp., 56 S . W.3d 432, 436 (Ky.App.2001). Keeping the appropriate standards in mind, we turn to the case here.


The first point the Appellant makes is that the trial court's grant of summary judgment was improper not only because there are genuine issues of material fact regarding whether Appellees intended to defraud Michael, but also it was premature because of the lack of an opportunity for Appellant to conduct discovery.

Initially, we observe that Mae refers to KRS 406.041 for the proposition that Lester's estate must continue to make child support payments even after his death. Chapter 406 refers specifically to the Uniform Act on Paternity and in pertinent part states that the effect of the father's death on his child support obligation is as follows:

The obligation of the estate of the father for liabilities under this chapter shall not be terminated by the death of the father obligated to support the child. If a father obligated to support the child dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances.

KRS 406.041. Perhaps more applicable to this situation is KRS 403 .213(3), which states that “[i]f a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances.” Hence, in the case at hand, Lester was subject to an existing child support order that he pay $220 per month in child support for his adult, disabled child. And, pursuant to KRS 403.213 and KRS 406.041, Lester's death does not alter this responsibility. And in fact, Appellees concur that Michael has a legitimate right to make a claim against Lester's estate. See Appellees' Brief at 7. Given the Appellees' recognition of this fact, it is disconcerting that they did not inform him of his father's death.

Next, we examine the issues regarding the probate of Lester's estate. Mary Bernadette was named executrix of Lester's estate. The executor named in a will is the proper person to offer it for probate. Indeed, it is the executor's duty to offer the will if it is in his custody, and, in good faith, to exhaust all legal or equitable remedies to have it admitted. Phillips' Ex'r v. Phillips' Adm'r, 81 Ky. 328 (1883). Having highlighted Mary Bernadette's responsibility as executrix, we now turn to the steps for submitting an estate for admission to probate.

According to KRS 394.140, a decedent's estate is required to be probated in the county of his residence at the time of his death. Moreover, the statute itself allows for no exceptions to filing a motion for admission to probate of an estate in the county of the decedent's residence. Therefore, notwithstanding the submission by Mary Bernadette's counsel of a written waiver of venue, Lester's estate was not appropriately probated in the county of his residence. While no reason is provided on the face of the waiver for filing it in Bullitt County, Appellees in their brief concede that the filing of the action took place in Bullitt rather than Nelson County purely as a matter of convenience for Mary Bernadette's counsel. This decision supposedly is buttressed by the fact that no administration or appointment of a personal representative was needed. At no point, however, has it been suggested that Mary Bernadette and her counsel were unaware of Michael's existence or Lester's court-ordered child support. Consequently, given their knowledge of Michael, the action of filing a motion for the estate's admission to probate in a county where Lester was not a resident is baffling.

Furthermore, a will submitted for probate in a county that is not the decedent's residence makes the court's order to probate the will subject to attack. Ewing v. Ewing, 255 Ky. 27, 72 S.W.2d 712, 713 (Ky.App.1934). As noted in Ewing, if the court is “without jurisdiction to probate the will, the orders so made and entered by that court were void and may be attacked by either a direct or collateral proceeding.” Id. Additionally, both the filing for probate in the wrong county and the lack of notice to Michael about the probate of his father's estate in that county is not only disingenuous but possibly suspect.

Some discussion ensued herein regarding the time that Michael has to file a claim against Lester's estate. Even though the estate was probated in the incorrect county, Appellees maintain no harm has occurred to Michael. They point to the fact that since no personal representative was appointed in the filing of Lester's estate, the timing of a claim is governed by KRS 396.011:

(1) All claims against a decedent's estate which arose before the death of the decedent, excluding claims of the United States, the State of Kentucky and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within six (6) months after the appointment of the personal representative, or where no personal representative has been appointed, within two (2) years after the decedent's death.

The referenced statute refers to cases where probate has been properly filed. Here, that was not the case. Since Ewing holds that when probate for an estate is filed in the wrong county, it is void. KRS 395.010 allows for the original administration of an estate for up to ten (10) years from the death of the testator. Mae could possibly still file for administration of Lester's estate in Nelson District Court. But the issue herein is not whether Mae could still make a claim against the estate. Rather, the issue is whether the parties intended to defraud Michael and deprive him of the ability to make a claim on Lester's estate.

In their brief, Appellees make an interesting point. They explain that the reason the Nelson Circuit Court held up its entry of the summary judgment for several months was to give Mae the opportunity to file the estate for probate in Nelson County. They say that the trial court based this decision on the rationale of providing a “legal backstop for the Plaintiff in the event that the Nelson District court, upon proper application by Appellant, had declined to exercise jurisdiction in the matter.” Appellees' Brief at 9. Thus, Appellees admit that an effort by Mae to challenge the original filing for probate of Lester's estate is not a certain remedy.

Notice is also an interesting issue in this context. As noted by Mae's attorney, she kept looking for the filing of Lester's estate in Nelson County. Clearly, her efforts were in vain. Probate was not filed in Nelson County, and Bullitt District Court entered an order to dispense with administration of the estate. With regard to notice, in particular, another statutory provision for probate is found in KRS 394.145, which mandates that in the application for probate of a will:

Such application shall state the residence of the testator at the time of his death and such other facts as may be necessary to establish the jurisdiction of the court, and the names, ages and post-office addresses of the testator's surviving spouse and, if required by the court, heirs at law, or such as are known.

Our review of the petition proffered by Mary Bernadette for the probate of Lester's estate lists no heirs at law. Michael, as Lester's son, is an heir at law. See KRS 391.010(1). Plainly, Appellees cannot state that they were unaware of Michael's existence since Chester not only paid Lester's child support obligation over many years, he continued the payment for six (6) months after Lester's death.

With regard to the issue of notice, Appellees assert that Mae failed to initiate a legitimate claim to challenge the efficacy of Kentucky's statutory notice to the public in probate cases. They characterize the issue of notice as Mae's contention that Michael's constitutional right to due process was violated. Appellees then posit that Mary Bernadette was not required to give notice to Michael and that notice is achieved pursuant to publication under KRS 424.340. To begin, we disagree that Mary Bernadette was not required to provide notice to Michael. Notice is required to heirs at law under KRS 394.145. Second, we are not persuaded that Mae was making a constitutional challenge to the publication of notice. Finally, Appellees point to KRS 424.340 as the correct method for notice. The statute states:

The clerk of the probate court shall, at least once each month, cause to be published in the newspaper meeting the requirements of KRS 424.120, a notice setting forth all fiduciary appointments made since the last publication and including at least the following information: the name and address of the decedent or ward, the name and address of the fiduciary, the date of the fiduciary's appointment, and the name and address of the attorney representing the fiduciary, if any, and the date by which claims of creditors must be presented. The clerk may charge each fiduciary a fee not to exceed the actual proportionate cost of said notice. Publication of this notice shall neither enlarge nor reduce the obligation of a creditor to present a timely claim, nor the liability of the fiduciary or distributee to pay the same.

KRS 424.340 (emphasis added). No fiduciary was appointed in the probate of Lester's estate. And, even if a fiduciary had been appointed, publication would have been in Bullitt County not Nelson County. Nor have the Appellees shown that notice of the probate of the estate was published.

Without a doubt, Mae has not followed the prerequisites for the making of a constitutional challenge of KRS 424.340; however, we believe that she is not making a constitutional challenge of Kentucky's publication notice statute. Instead, Mae is merely pointing out that Michael's due process rights as far as notice were recognized in Tulsa Prof'l Collection Serv., Inc. v. Pope, 485 U .S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). Thus, Appellees' argument about Mae's not meeting the requirements for making a constitutional challenge is a red herring.

The United States Supreme Court in Tulsa Professional Collection Service held that due process requires a representative to make a reasonable effort to determine creditors of an estate and to give them actual rather than constructive notice. The major import of the decision is that a representative cannot close his or her eyes to known or reasonably ascertainable creditors, publish for claims, and bar those claims based solely on the creditors' failure to see publication.

This case has been referenced in one unpublished Kentucky appellate case, Baptist Hosp. East v. Craft, 2004 WL 68535 (Ky.App.2004)(2003–CA–000080–MR).3 Therein Baptist East Hospital stated that “a known creditor has a right under the Due Process clause of the Fourteenth Amendment of the United States Constitution to actual notice of the death of the decedent.” Id. at *1 (citing Tulsa Prof'l Collection Serv., 485 U.S. at 491, 108 S.Ct. at 1348. Our Court in this case did not reject the Supreme Court decision but decided that case on a technicality regarding Baptist East Hospital's notice.

In the case at bar, two statutory requirements for probate have either not been met or have been simply ignored by Appellees regarding Lester's estate. The admission to file probate of the estate was filed in the wrong county and Michael, as an heir at law, was not notified. Nevertheless, Appellees insist that even though certain statutory requisites were not followed, Mae has no “facially-plausible” claim of injuries. In contrast, Appellant contends that under KRS 446.070, she is entitled to damages for Appellees' violation of KRS 406.041, failure to support Michael; Appellees' violation of KRS 394.140, failure to file probate in the proper county; and, Appellees' violation of KRS 394.145, Appellees' failure to inform Michael about Lester's death and estate. Moreover, Mae contends that the Appellees' acted in concert to commit fraud. Therefore, pursuant to KRS 446.070, Mae maintains that Michael is entitled to damages. Additionally, Mae and Michael are seeking punitive damages for willful misconduct and gross negligence.

The applicable statute, KRS 446.070, provides, “[a] person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.” As explained in St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 534 (Ky.2011), the statute was enacted “in 1942 to codify common law negligence per se.” Relating to the common law concept of negligence per se, the statute applies when the alleged wrongdoer violates a statute and the injured party comes within the class of persons intended to be protected by the statute. Davidson v. American Freightways, Inc., 25 S.W.3d 94, 99–100 (Ky.2000). In addition, this statute “permits a person injured by the violation of a statute to recover damages by reason of the violation[.]” Allen v. Lovell's Adm'x, 303 Ky. 238, 243, 197 S.W.2d 424, 426 (Ky.1946). In the case at hand, Kentucky statutes have been violated, and hence, damages implicated. Therefore, without ascertaining the ultimate resolution of whether Michael was injured by Appellees' failure to follow the statutes, we conclude that Mae has presented a genuine issue of material fact concerning possible injury to him.

But Appellees' main contention, and the apparent basis for the trial court's grant of summary judgment, is that Mae's complaint failed to state a claim upon which the court could grant relief. This contention is based on the Appellees' reasoning that at the time of the oral hearing she still had an opportunity to file for admission to probate of Lester's estate in Nelson County. Appellees frame this argument by stating in their brief on page seven (7):

The gravamen of the Complaint in Nelson Circuit Court is that the Defendants, acting individually or collectively, sought to and did defraud Appellant so as to prevent her from seeking the legal enforcement of post-death child support payments for the benefit of Michael.

Our understanding of Mae's complaint is somewhat different. We believe that the central focus of the complaint is that statutorily Michael has a claim for continued child support, that statutes were not followed in the execution of Lester's estate for probate, that Michael was harmed by the Appellees' missteps in following statutory mandates, that damages are available under KRS 446.070, and that these actions were perpetrated with the intent to defraud Michael, which also allows for punitive damages.

Although we make no conclusions as to the ultimate fate of this case, we are convinced by our review that Mae has established genuine issues of material fact.

Besides whether genuine issues of material fact remain in the case at hand, another question involves the trial court's handling of discovery. Despite the fact that Mae responded to Appellees' discovery requests, they did not follow suit. Besides the issues surrounding the probate of the estate, Mae also believes that certain assets for Michael have been hidden. The validity, or lack of, this claim is also relevant to allowing discovery.

It has been held that “[t]he party opposing a properly presented summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing the existence of a genuine issue of material fact for trial.” City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 390 (Ky.2001). Here, Appellant has met that hurdle. But, notwithstanding that “[s]ummary judgment is only proper after a party has been given ample opportunity to complete discovery,” as stated in Pendleton Bros. Vending, Inc. v. Commonwealth Finance and Admin. Cabinet, 758 S.W.2d 24, 29 (Ky.1988), here Appellant has presented evidence that creates a genuine issue of material fact with regard to the actions of the Appellees. Steelvest, 807 S.W.2d at 480–482. This matter cannot be resolved without Appellees responding to discovery requests.


In essence, our decision is that the summary judgment was premature and that genuine issues of material fact exist. For the foregoing reasons, the summary judgment entered by the Nelson Circuit Court in favor of Appellees is vacated, and this matter is remanded for further proceedings consistent with this opinion. Additionally, the trial court is directed to conduct a hearing to determine the status of the executor/executrix of the estate of George Lester Porter.

I concur with the majority opinion. I write separately to note my disagreement with the implication that KRS 446.070 authorizes an award of punitive damages.

“KRS 446.070 ․ creates liability by virtue of the breach of duty” established by any other Kentucky statute. Collins v. Hudson, 48 S.W.3d 1, 4 (Ky.2001). Appellant's first three counts claim that Appellees are liable to her, pursuant to KRS 446.070, for violating: KRS 406.0414 or KRS 403.213(3) (Count I, ¶¶ 28, 29); KRS 394.145 (Count II, ¶¶ 35, 36); and KRS 394.140 (Count III, ¶¶ 42, 43). However, none of these statutes authorizes any remedy, much less the remedy of punitive damages.

If the statute establishing the duty fails to specify a remedy, we may look only to KRS 446.070 to provide it. Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky.1985). KRS 446.070 provides:

A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.

Appellant's remedy is thus limited to “such damages as [she] sustained by reason of the violation” of KRS 406.041, KRS 403.213(3), KRS 394.140, or KRS 394.145.

No reported Kentucky decision has yet expressly stated whether KRS 446.070 authorizes an award of punitive damages. However, our Supreme Court has made it clear that where the legislature failed to provide for the “express inclusion of punitive damages in these statutes[,]” punitive damages were not available. Kentucky Dept. of Corrections v. McCullough, 123 S.W.3d 130, 139–40 (Ky.2003) (interpreting KRS 344.450). There is no express inclusion of punitive damages in KRS 446.070. Therefore, I conclude that punitive damages are not available to the extent Appellant based her claims on KRS 446.070 and the underlying statutes that establish a duty. See Jackson v. Tullar, 285 S.W.3d 290, 298 (Ky.App.2007)(“In determining whether punitive damages are authorized by a particular statute, Kentucky courts have applied a strict, literal interpretation of the relevant statutory language.”).

With this exception, I concur with the majority.


2.  Since the instigation of this action, Mary Bernadette Porter has died. (DOD November 18, 2011).

3.  Baptist Hosp. East v. Craft is not being cited as binding precedent. Kentucky Rules of Civil Procedure (CR) 76.28(4)(c).

4.  I agree with the majority that the more appropriate statute, which uses nearly identical language, is KRS 403.213(3). The Complaint should be read as if that statute were cited.


KELLER, Judge, Dissents and will not file Separate Opinion. ACREE, Chief Judge, Concurs and Files Separate Opinion.

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