GARY McCOY, as Executor of the Estate of MARY ALICE McCOY APPELLANT v. RITA ROSEMARY McCOY ARMSTRONG and JOSEPH ANTHONY ARMSTRONG APPELLEES
NOT TO BE PUBLISHED
This action was filed in Floyd Circuit Court on September 12, 2005, by the Appellant, Gary McCoy, as guardian for Mary Alice McCoy. Gary later revived and maintained this action as Mary's executor following her passing on March 20, 2006. Mary was the mother of Gary and Rita Rosemary Armstrong (one of the above-captioned appellees). Joseph Anthony (Tony) Armstrong, also an appellee, is Rosemary's husband. Mary was also the mother of Lamarr Lewis, who was an additional plaintiff in this matter below, but is not a party to this appeal.
According to Gary, there are two overarching issues in this matter. The first issue is whether Rosemary defrauded Mary or breached fiduciary duties owed to Mary while acting as Mary's power of attorney between the dates of April 19, 2005, and June 6, 2005, and whether Tony conspired with Rosemary to do so. The second issue is whether Mary had the mental capacity to convey her interest in certain real property to Tony and Rosemary prior to her death.
The trial court dismissed the balance of Gary's claims and disposed of this case by entering two orders on April 28, 2010. The first of these two orders granted partial summary judgment in favor of Rosemary and Tony regarding the issue of whether Mary had validly conveyed to them her interest in the real property at issue. In its second order, the trial court dismissed Gary's claims relating to fraud and breach of fiduciary duty on two alternative grounds: 1) Gary's failure to obey the trial court's directive, per a July 20, 2009 order, to state his claims with specificity, holding that Gary's general assertions of fraud did not provide the level of notice required by the Kentucky Rules of Civil Procedure (CR); and 2) pursuant to the summary judgment standard of CR 56, holding that the evidence of record “failed to support any claim of fraud, conversion, breach of fiduciary duties, or any other matter pled in the Complaint or Amended Complaint owed by the Defendant, Rosemary Armstrong, to her mother, Mary Alice McCoy, while acting as her attorney-in-fact or otherwise.” Double Both of these orders are the subjects of Gary's appeal. We will address the specifics of these orders in greater depth and provide additional details relevant to these matters within the context of our analysis below.
I. FRAUD, BREACH OF FIDUCIARY DUTY, AND CONSPIRACY CLAIMS
As noted, Gary filed a complaint against Rosemary and later amended his complaint to add Tony as an additional defendant. In relevant part, Gary's complaint alleged:
10. Upon information and belief, the Defendant Rosemary Armstrong has used the power of attorney for Mary Elizabeth McCoy for the benefit of herself and her husband, the Defendant, Joseph Anthony Armstrong. For example, upon information and belief, the Defendant Rosemary Armstrong executed a quit claim deed transferring real estate to herself and her husband, the Defendant, Joseph Anthony Armstrong; Rosemary Armstrong has depleted Mary Alice McCoy's checking account for the benefit of herself and her husband, the Defendant, Joseph Anthony Armstrong; Rosemary Armstrong has misappropriated the personal property of Mary Alice McCoy; and Rosemary Armstrong has cashed certificates of deposit owned by Mary Alice McCoy and used the proceeds to benefit the Defendant and her husband, Joseph Anthony Armstrong, personally.
On the strength of these allegations, Gary's complaint asserted that Rosemary had breached fiduciary duties owed to Mary. He further alleged that Rosemary and Tony had defrauded and conspired to defraud Mary by converting Mary's assets and misappropriating Mary's personal property during the six-week period Rosemary acted as Mary's power of attorney.
Rosemary and Tony denied Gary's allegations relating to fraud and breach of fiduciary duty and, thereafter, served Gary with interrogatories asking him to support each of his allegations with facts and evidence. Gary responded to these interrogatories on January 9, 2007, by reiterating his allegations and adding only that he “does not know all of the facts in support of his allegation[s].” Gary did not supplement his responses any further.
On January 23, 2007, Gary was deposed in this matter and, in the same manner, answered similar questions:
Q: Okay. But since you've been acting in the capacity as not only the guardian for your mother but now as her—the executor of her estate, have you uncovered anything that shows that [Mary and Tony] received a specific benefit of [Mary's] funds where they used it to go out and buy, you know, clothes for themselves or items for the house or for themselves personally.
A: No, I can't think of anything right now exactly specific, no.
Q: Okay. ‘Cause I think the language you used a lot of time was “upon information and belief.” But you don't have any specific acts upon which to base that other than as you were saying—”
A: Not that I can think in my mind right now.
Q: What have you found that shows that [Rosemary] has used [Mary's] money for her own personal benefit?
A: I, at this time, can't put my finger on anything particular other than my mom's money was taken out.
Three years later, on March 29, 2010, Rosemary and Tony moved to dismiss Gary's claims of breach of fiduciary duty, fraud, and conspiracy on the basis of CR 12.03, judgment on the pleadings; CR 56, summary judgment; and CR 9.02, asserting that Gary had failed to comply with a July 20, 2009 order from the trial court that directed him to describe the issues alleged in his complaint with specificity. In support, Rosemary and Tony cited to Gary's repeated failure in his pleadings, answers to interrogatories, and his deposition to identify any specific facts or provide any evidence in support of his allegations.
In his response, Gary restated his allegations and argued that he had pled fraud with sufficient particularity, per CR 9.02. Gary also argued that Rosemary and Tony had waived their right to argue that his allegations were vague because Rosemary and Tony had failed to make a motion for a more definite statement, per CR 12.05. But, with regard to Rosemary and Tony's argument that he had failed to identify any specific facts or provide any evidence in support of his allegations, Gary presented nothing to the contrary. Rather, after quoting the breadth of CR 12.03, Gary stated only that Rosemary and Tony's motion “should be treated as one for summary judgment and disposed of as provided for in Rule 56.”
On April 28, 2010, the trial court dismissed the balance of Gary's claims on the basis of CR 12.03 and CR 56. In particular, the trial court noted that “[t]hrough written discovery and deposition testimony, [Gary] failed to carry his burden to identify any specific act of fraud or conversion of funds belonging to Mary Alice McCoy by [Rosemary and Tony], thereby failing to provide evidence of any matter pled in the Complaint or Amended Complaint.”
On appeal, as it relates to the matter of summary judgment, Gary now contends that there were specific grounds for his argument and sufficient evidence demonstrating that Rosemary defrauded Mary and breached fiduciary duties owed to Mary during Rosemary's six-week tenure as Mary's power of attorney. In support, Gary cites to three pages of Lamarr's deposition testimony. The cited portion of Lamarr's deposition testimony reads, in relevant part:
A: And mother wanted me, mother wanted to know why there was no money. And she brought her checkbook to me, and she said, “Why do I not have money? Do I not have money?” And “Where is my money?”
Q: So what did you all find out?
A: Well, there was no balance brought forward in the checkbook register, and there was checks that had been written that Mother said she knew nothing about.
Q: Okay. Since that time, what checks are you speaking of? Is there certain, are there certain checks you're questioning? Are you questioning everything in general or anything in specific? I guess you've been in this lawsuit, involved in this lawsuit, you thought, since 2005, but actually since 2008. I'm sure you've had a chance to review many of the documents that Mr. Hectus and your brother have procured. So are there any specific checks you're talking about that you're questioning in the handling of your mother's funds that you're accusing them of, of mismanaging?
A: There was a check that was written for a thousand ($1,000), five hundred ($500), fifty-five hundred ($5,500) and, I think, one for fifteen hundred ($1,500). There was several things that was questionable.
Q: Okay. Over what period of time are you talking about?
A: Well, I think that three (3), probably three (3) of those checks was in the month of June.
Q: Of 2005?
Additionally, Gary directs our attention to twenty-five checks, photocopied into five pages, which he has included with his brief and labeled “Appendix C.” Out of these twenty-five checks, Gary asks this Court to search for a $500 check, made to the order of “Mary A. McCoy” and signed “Mary A. McCoy,” dated April 15, 2005; a $5,500 check, made to the order of “Rosemary Armstong” and signed “Mary A. McCoy,” dated May 9, 2005; and, finally, a $1,500 check, made to the order of “Mary A. McCoy” and signed “Mary A. McCoy,” dated May 10, 2005. In light of this information, Gary asserts that he has sufficiently demonstrated the existence of genuine issues of material fact relating to his claims of breach of fiduciary duty and fraud against Rosemary and Tony and, as a consequence, the trial court erred in summarily dismissing those claims.
In short, the way that Gary responded to Rosemary and Tony's motion for summary judgment at the trial level, as it related to his claims of fraud and breach of fiduciary duty, stands in stark contrast to the way Gary has now couched his argument on appeal. At trial, Gary confined his arguments exclusively to whether he had pled his claims with particularity, but his brief discussion of CR 12.03 and the standard for summary judgment was nonresponsive to the issue of summary judgment, i.e., whether a genuine issue of material fact relating to breach of fiduciary duty and fraud actually existed. Only now, following the trial court's dismissal of his claims, does Gary offer and attempt to support an argument against summary judgment.
There are several reasons why we will not reverse the trial court on this issue. To begin, while Gary has provided these several copies of checks in an appendix to his appellate brief, his brief fails to provide any reference to where these checks are to be found in the trial court's record of this matter. See CR 76.12(4)(c)(iv). As such, we do not consider them. See Horn v. Horn, 430 S.W.2d 342, 344 (Ky.1968).
That aside, the specific grounds Gary now offers in support of his general allegations of fraud and breach of fiduciary duty regarding Rosemary's tenure as Mary's power of attorney were never raised before the trial court. And, “[s]pecific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal.” Giddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d 779, 2011 WL 2436154 at *11 (Ky.2011).
Finally, the standard for summary judgment itself holds that
[t]he party moving for a summary judgment has the burden of establishing that no genuine issue as to any material fact exists and also that he is entitled to judgment as a matter of law. If uncontroverted affidavits which clearly disclose the facts show that a genuine issue does not exist, the opposing party has an obligation to do something more than rely upon the allegations of his pleadings. Since the moving party has the burden, he must make a prima facie showing that would entitle him to a summary judgment. The opposing party is then required by counter-affidavit, or otherwise, to show that evidence is available justifying a trial of the issue involved.
Continental Cas. Co., Inc. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky.1955) (emphasis added).
Stated differently, it is not the duty of the trial court to search the entire record to establish that it is bereft of a genuine issue of material fact. See, e.g., Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir.1989). Rather, that duty rests squarely upon the responding party. See, e.g., Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky.1991) (“[A] party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.”) A party does not properly respond to a motion for summary judgment merely by reasserting allegations. And “[i]t has long been the law in Kentucky that a motion for a summary judgment, supported by affidavit ․ with no counter-affidavit being filed and no response being made thereto, is properly granted.” Singleton v. Board of Education of Harrodsburg, 553 S.W.2d 848, 851 (Ky.App.1977).
Here, Rosemary and Tony properly supported their motion for summary judgment with evidence demonstrating that Gary was unable or unwilling, after years of discovery in this matter, to identify and support with evidence any alleged instance of fraud or breach of fiduciary duty. At the trial level, Gary offered no argument in response, cited to no contrary evidence of record, and instead merely discussed the sufficiency of his pleadings and quoted the Civil Rules. Because Gary failed to show disputed issues of material fact sufficient to preclude summary judgment in his response at the trial level, and cannot do so now, the trial court properly granted summary judgment in favor of Rosemary and Tony with regard to Gary's claims of fraud and breach of fiduciary duty.
II. OWNERSHIP OF THE HOME PLACE PROPERTY
Mary owned an 11/12ths interest Double in a tract of real property, which the parties refer to as the “home place property,” situated in Prestonsburg, Kentucky. Mary had initially executed two separate wills, one on May 16, 1989, and another on April 18, 1997, each providing that Rosemary would inherit all of Mary's interest in the home place property upon Mary's death. However, Mary later
quitclaimed her 11/12ths interest to Rosemary and Tony and reserved a life estate for herself.
An initial point of contention in this matter was the issue of whether Rosemary had assumed ownership over Mary's interest in the home place property by virtue of misusing the authority given to her under the April 19, 2005 power of attorney over Mary's assets. Gary's complaint alleged that Rosemary had used the power of attorney to improperly execute a quitclaim deed conveying Mary's interest to herself. And, on the basis of this alleged fraud and breach of fiduciary duty, Gary thus argued that any such quitclaim deed was invalid, and that ownership of the 11/12ths interest in the home place property remained with Mary's estate.
However, discovery revealed that while Rosemary had received Mary's interest in the home place property via a quitclaim deed, the quitclaim deed in question was dated March 28, 2003—two years before the power of attorney existed and at a time when Gary made no contention that Rosemary owed Mary any fiduciary duties. Moreover, the quitclaim deed was executed by Mary, not Rosemary, and it was undisputed that Mary had actually executed it in Gary's presence. In light of this evidence, Rosemary and Tony moved for partial summary judgment as it related to the issue of whether they validly held an 11/12ths interest in the home place property. Also, Rosemary and Tony attached to their motion an affidavit from the attorney who prepared the quitclaim deed, Doug Adams. In his affidavit, Adams stated that at the time he presented the quitclaim deed to Mary, he explained its contents to her and that he believed that she understood and willingly signed the quitclaim deed.
In response, Gary offered two new grounds for invalidating the quitclaim deed and establishing ownership of the 11/12ths interest in Mary's estate. First, Gary alleged that when Mary executed the quitclaim deed on March 28, 2003, Mary had actually meant for the quitclaim deed to function as consideration for Rosemary's unwritten promise to care for her. Gary further alleged that Rosemary had failed to effectively care for Mary. As such, Gary contended that Rosemary had failed to fulfill her contract with Mary, and that the conveyance was consequently invalid for failure of consideration. For his second ground, Gary also asserted that the quitclaim deed was invalid because, as he alleged, Mary had lacked the requisite mental capacity to execute it.
Gary offered his own affidavit and an affidavit from Lamarr, both dated April 16, 2010, in support of these two new theories. In relevant part, Gary's affidavit states:
1. The deeds which are referenced in the Defendants' Motion for Partial Summary Judgment were in fact executed on March 28, 2003. However, at that time my mother, Mary Alice McCoy, was in failing health, and was not fully competent.
2. Because my mother was in failing health, it had been agreed that my sister, Rosemary, would receive the house that had belonged to my mother and deceased father, that my mother would retain a life estate, and that Rosemary would take care of my mother.
3. The deed from my mother to Rosemary recited that the consideration for the transfer was “love and affection,” which was understood by everyone to require Rosemary to provide for my mother's needs during the remainder of her lifetime. Likewise, the consideration for my deed to my mother (“love and affection”), which was executed at the same time as my mother's deed to Rosemary, was Rosemary's agreement to provide for my mother's needs during the remainder of her lifetime.
4. The deeds were executed at my mother's house, not at the law office of Doug Adams. Mr. Adams was not present, and the deeds were notarized by someone I believed was employed by Mr. Adams. No one explained the significance of the transfers to my mother. I do not believe that my mother was competent enough to understand the various transactions. My mother at that time was one week away from her 82 nd birthday, had a serious physical condition related to cardiovascular disease, was generally in a weak physical condition, easily fatigued, taking numerous prescription medications (including narcotic pain killers and medications for anxiety and depression), and was easily confused.
8. After bringing my mother to my home [on June 6, 2005], a mental health evaluation was performed [on November 16, 2005], and my mother was diagnosed with “dementia,” and it was noted that she had severe physical impairment, her ability to think was impaired, and she needed assistance in all areas of daily living. My mother's condition when she was evaluated in 2005 had not significantly changed since March, 2003.
Lamarr's affidavit is to the same effect. In relevant part, Lamarr's affidavit states:
1. In March, 2003, my mother, Mary Alice McCoy, was in failing health, and was not fully competent.
2. Because my mother was in failing health, it had been agreed between my mother, my brother Gary, and my sister, Rosemary, that Rosemary would receive the house that had belonged to my mother and deceased father, that my mother would retain a life estate, and that Rosemary would take care of my mother. Gary transferred his interest to my mother. Rosemary wanted me to transfer my interest to my mother, but I would not agree to do so.
3. I have seen the deed from my mother to Rosemary which recited that the consideration for the transfer was “love and affection.” I had understood that required Rosemary to provide for my mother's needs during the remainder of her lifetime.
4. In March, 2003, I do not believe that my mother was competent enough to understand the various transactions. My mother at that time was one week away from her 82 nd birthday, had a serious physical condition related to cardiovascular disease, was generally in a weak physical condition, easily fatigued, taking numerous prescription medications (including narcotic pain killers and medications for anxiety and depression), as was easily confused.
7. After bringing my mother to his home, Gary obtained through the court a mental health evaluation, and I have been advised that my mother was diagnosed with “dementia,” and it was noted that she had severe physical impairment, her ability to think was impaired, and she needed assistance in all areas of daily living. My mother's condition when she was evaluated in 2005 had not significantly changed since March, 2003.
Nevertheless, the trial court held that Rosemary and Tony were entitled to summary judgment as it related to their claim that they validly owned an 11/12ths interest in the home place property. On appeal, Gary argues that the trial court erred in granting Rosemary and Tony summary judgment, asserting that the record demonstrates genuine issues of material fact relating to his theories of competency and failure of consideration. We will discuss each of these theories in turn.
1. Failure of consideration
As the above affidavits emphasize, Gary's failure of consideration argument depends upon the phrase “love and affection.” The March 28, 2003 quitclaim deed recites that Mary deeded her interest in the home place property, after reserving a life estate for herself, to Rosemary and Tony “in consideration of love and affection, the receipt of which is hereby acknowledged.” In his response to Rosemary and Tony's motion for summary judgment, Gary argued that “love and affection” was an ambiguous phrase and, in light of that ambiguity, the trial court was required to consider Gary's and Lamarr's affidavits as parol evidence of what Gary alleged was Rosemary's unwritten contract to care for Mary as consideration for the conveyance and the failure of that consideration as a ground for rescinding the quitclaim deed.
The trial court disagreed with Gary's argument, holding that “the sole consideration for that conveyance was ‘love and affection,’ ” and that “the consideration recited in the deed of conveyance to the Defendants [Rosemary and Tony] dated March 28, 2003 speaks for itself and is not ambiguous.” Stated otherwise, the trial court held that a conveyance made in consideration for “love and affection” equates to a “gift,” rather than a bargained-for exchange. We agree.
Gary's argument regards the interpretation of a deed, and the interpretation of a deed is a question of law that we review de novo. Morganfield National Bank v. Damien Elder & Sons, 836 S.W.2d 893, 895 (Ky.1992). Moreover, as stated in Florman v. MEBCO Ltd. Partnership, 207 S.W.3d 593, 600 (Ky.App.2006),
[i]n interpreting a deed, we look to the intentions of the parties, gathered from the four corners of the instrument, using its words' common meaning and understanding. We will not substitute what was intended for what was said. Further, a deed shall be construed based upon its provisions as a whole.
(Internal citations and quotations omitted.)
Here, neither the four corners of the quitclaim deed, nor the recital of “love and affection” as consideration, support the existence of any alleged contract or reflect ambiguities warranting the admission of parol evidence. Rather, Kentucky jurisprudence recognizes that the common meaning, usage, and understanding of the phrase “in consideration of love and affection,” when that phrase is paired with nothing else and used in the context of a deed, unambiguously imparts a gift. See, e.g., Sword v. Fields, 192 Ky. 629, 234 S.W. 202 (1921) (“The transaction was in the nature of a gift, the only consideration being ‘love and affection.’ ”); Yates v. Wilson, 339 S.W.2d 458, 461–62 (equating recipient of unsolicited deed to a “gratuitous grantee,” where deed in question recited that it was solely in consideration of “love and affection.”); see also Sparks Milling Co. v. Powell, 283 Ky. 669, 143 S.W.2d 75, 77 (1940) (“[W]here words having a definite legal meaning are knowingly used in a writing the parties will be presumed to have intended such words to have their proper legal meaning in the absence of any contrary intention appearing in the instrument.”). Double Because the four corners of the quitclaim deed unambiguously provide that the conveyance was intended as a gift, parol evidence of any other intent is not authorized. And, because a gift does not require consideration, Gary's argument has no merit.
Gary prefaces his second argument by stating that “[i]n the case at bar, there are genuine issues of material fact regarding whether Mary Alice McCoy was competent to execute a deed of conveyance from Mary Alice McCoy to Rosemary and Tony Armstrong, conveying to them all of her right, title and interest in the subject real property on March 28, 2003.”
Before we address the specifics of this general assertion, it is first necessary to address who had the burden of proving whether Mary Alice McCoy was competent to execute a deed on March 28, 2003. “As a general rule it will, and should be presumed that one conveying property has sufficient mental capacity to do so, the burden of proving otherwise being upon those who question it.” Caldwell v. Hatcher, 248 S.W.2d 892, 893 (Ky.1952) (internal citations omitted). As a caveat, “where the grantee has custody of the grantor, or a confidential relationship exists between them and the grantee is the stronger character, then the latter has the burden of showing the transaction was fair.” Id. (Internal citations omitted.) At the trial level, Gary made no contention that Rosemary and Tony had custody of Mary or a confidential relationship with her on March 28, 2003, or that the March 28, 2003 quitclaim deed was the product of fraud or undue influence. Double As such, the presumption of competence applies and it was Gary's burden to rebut it.
Next, we turn to the substance of the presumption that Gary was required to rebut. To have the capacity to execute a deed, Mary, as the grantor, was required to have mentality sufficient to comprehend what she was doing and to understand the nature of her acts and to appreciate and weigh their consequences and effect at the specific time that she executed the March 28, 2003 quitclaim deed. Newman v. Hall, 278 Ky. 88, 128 S.W.2d 201, 206 (1939); see also Glocksen v. Holmes, 299 Ky. 626, 186 S.W.2d 634, 637 (1945). In this regard, Gary's and Lamarr's respective affidavits fall short.
The myriad contents of these two affidavits essentially fall into three categories: 1) statements that Mary was “not fully competent,” or not “competent enough,” to execute the March 28, 2003 quitclaim deed; 2) personal observations regarding Mary's health and age; and 3) an allusion to a report containing various opinions, including a diagnosis of “dementia.”
Gary's and Lamarr's statements that Mary was “not fully competent” and “not competent enough” are, by themselves, bare legal conclusions. And, bare legal conclusions contained in an affidavit are not evidence. General Elec. Co. v. Cain, 236 S.W.3d 579, 585 (Ky.2007); see also 2A C.J.S. Affidavits § 39 (2006) (“It is improper for affidavits to embody legal arguments, and legal arguments and summations in affidavits will be disregarded by the courts.”) Lamarr's opinion is further qualified by her deposition testimony that she was not even present when Mary executed the March 28, 2003 quitclaim deed.
Next, we address Gary's and Lamarr's personal observations regarding Mary's health and age. By way of review, their affidavits state that Mary: 1) “was one week away from her 82 nd birthday”; 2) “had a serious physical condition related to a cardiovascular disease”; 3) “was generally in a weak physical condition”; 4) was “easily fatigued”; 4) was “taking numerous prescription medications”; and 5) “was easily confused.” The first four of these statements speak to Mary's age and health alone and do not address and are therefore not relevant to the issue of whether Mary comprehended what she was doing, understood the nature of her acts, and appreciated and weighed their consequences and effect at the time that she signed the March 28, 2003 quitclaim deed. As the former Court of Appeals stated in Hundley v. Meyer, 279 S.W.2d 761, 762–63 (Ky.1955):
We have held that when a grantor understood what he was doing, the deed, if fairly obtained, was valid, notwithstanding the grantor's extreme age or weakened mental condition. It has also been said that although the grantor may be physically unable to look after his property and although his mind may be enfeebled by age or disease, yet these conditions are not sufficient to render his deed voidable, if such grantor comprehended the meaning, design and effect of his acts at the time of the deed's execution.
Similarly, the general statement in these affidavits that Mary was “easily confused” is equally irrelevant to the issue of whether Mary was competent to execute the March 28, 2003 deed. At best, “easily confused” vaguely denotes mental weakness, and, “[m]ental weakness alone is not enough to justify the annulment of a deed[.]” Yates, 339 S.W.2d at 464.
Finally, Gary's and Lamarr's statements regarding the existence of a medical report, the several opinions contained therein, and the report's alleged diagnosis of “dementia,” are pure hearsay. Indeed, no such medical report even exists in the record of this matter. Double This portion of Gary's and Lamarr's respective affidavits thus violates CR 56.05, which provides that affidavits “shall be made upon personal knowledge” and “shall set forth such facts as would be admissible in evidence.” As such, these statements cannot be considered evidence. See also, Nelson v. Martin, 552 S.W.2d 668 (Ky.App.1977).
In total, Gary's and Lamarr's affidavits are not the affirmative evidence necessary to rebut the presumption that Mary had the requisite capacity to execute a quitclaim deed on March 28, 2003. Furthermore, in the absence of these affidavits, the record only supports that Mary did have the requisite capacity on that date. For example, in her November 17, 2009 deposition, Lamarr actually testified that Mary “was competent and capable of doing things for herself” in 2005, and, similarly, that in March, 2003, Mary had the “mental understanding to execute a document of her own free will if she knew what was being said in the document.” Also, in spite of what he stated in his affidavit, Gary raised no objection when Mary executed the March 28, 2003 quitclaim deed in his presence and had no reservations about having Mary execute a subsequent deed, and witnessing her signature, two years later in September, 2005.
Moreover, the record only contains evidence supporting that Mary intended to make a conveyance consistently with the intent expressed in the four corners of the quitclaim deed at issue in this matter, i.e., the conveyance of her interest to Rosemary, with the reservation of a life estate for herself, prior to executing that quitclaim deed. In its order granting partial summary judgment, the trial court itself noted that Mary had already executed two separate wills, one on May 16, 1989, and another on April 18, 1997, each providing that Rosemary would inherit all of Mary's interest in the home place property upon Mary's death. Double Thus, we find no error in the trial court's determination that Rosemary and Tony were entitled to summary judgment on the issue of whether they validly owned Mary's interest in the home place property by virtue of the March 28, 2003 deed.
For these reasons, the judgments of the Floyd Circuit Court are hereby affirmed.