Miniard v. Miniard

1

MATT MINIARD AS EXECUTOR OF THE ESTATE OF RALPH E. MINIARD, JR. APPELLANT v. ROBIN MINIARD; CHRIS ALLEX; JESSICA ALLEX; AND JOSHUA MINIARD APPELLEES

No. 2019-CA-1148-MR

Court of Appeals of Kentucky

February 11, 2022

NOT TO BE PUBLISHED

APPEAL FROM PERRY CIRCUIT COURT HONORABLE ALISON C. WELLS, JUDGE ACTION NO. 17-CI-00481

BRIEFS FOR APPELLANT: Charles J. Lisle Lexington, Kentucky

BRIEF FOR APPELLEE: James A. Hubbard Isom, Kentucky

BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.

OPINION AFFIRMING

JONES JUDGE

The Appellant, Matt Miniard, as executor of the estate of Ralph E. Miniard Jr., seeks review of the Perry Circuit Court's May 1, 2019 order enforcing the parties' prior settlement agreement and removing Matt as executor of Ralph's estate in accordance with the agreed final judgment.^[1] The Appellees are Robin Miniard, Chris Allex, Jessica Allex, and Joshua Miniard. Having reviewed the record and being otherwise sufficiently advised, we affirm.

I. Background

Ralph had three sons during his life: Matt, John, and Robin. In 2011, Matt moved the Perry District Court to appoint a guardian for Ralph on the grounds of incompetency. In late 2013, the district court appointed Robin and John as co-guardians.^[2] John later passed away, leaving Robin as Ralph's sole guardian.

During the course of serving as Ralph's guardian, Robin determined that it was necessary to secure live-in caregivers to assist Ralph. Robin ultimately hired his cousin, William Douglas Miniard, and William's wife, Myrtle (collectively "the Cousins"), to assist Ralph. The Cousins reached an agreement with Robin that in exchange for caring for Ralph they would receive title to Ralph's home in Hazard after his death. Robin submitted the parties' written agreement to the Perry District Court for approval; however, Ralph died on February 22, 2017, before the district court approved the agreement.

Ralph died testate, and his will was probated with the Perry District Court. Matt was appointed to serve as the executor of Ralph's estate in accordance with the will. A short time later, the Cousins filed a probate claim with the estate seeking title to the Hazard house on the basis of their prior agreement with Robin. As executor, Matt disallowed the Cousins' claim because the written agreement had never been approved by the district court. The Cousins then filed a probate claim against the estate for the value of the services they provided to Ralph prior to his death, which they claimed was approximately $308, 000.00. As executor, Matt also disallowed this claim.

Next, the Cousins filed an action in the Perry Circuit Court pursuant to KRS^[3] 395.510 and KRS 395.515 seeking to compel settlement of Ralph's estate.^[4] Therein, the Cousins alleged that there was a disputed issue with respect to their right to receive compensation from Ralph's estate and that Ralph's personal estate had insufficient assets to settle their claim (which they again alleged was over $308, 000.00). They demanded that, if necessary, the circuit court order Ralph's real property sold to satisfy their claim. Matt, as executor of Ralph's estate, and Ralph's beneficiaries (Matt, Robin, Jessica, and Joshua) were named as defendants.^[5] A bench trial on the Cousins' claim was scheduled.

Prior to the bench trial, Robin, Jessica, and Joshua (the "Appellees") moved the circuit court to remove Matt as executor of the estate on the ground that Matt had acted improperly as executor to their detriment.^[6] According to Matt, his counsel did not receive a copy of the motion, and therefore, did not attend the September 14, 2018, hearing related thereto. Since Matt did not file a written response to the motion or appear at the hearing to voice an objection, it appeared to the circuit court that the motion was unopposed. Thus, the circuit court entered a written order granting the motion on September 24, 2018. Pursuant to the order, the circuit court named Robin the executor of Ralph's estate in place of Matt. On September 24, 2018, after Matt's counsel received a copy of the circuit court's order, he filed a motion to vacate, which he later supplemented with a memorandum of points and authorities. As will be explained in more detail below, the circuit court eventually vacated the September 24 order as part of the agreed final judgment submitted by the parties.

Before the bench trial commenced, the parties took part in a mediation at which they reached a global settlement of all claims and issues surrounding Ralph's estate. As part of the settlement, Matt, Robin, Jessica, and Joshua agreed to transfer the title to Ralph's house in Hazard to the Cousins to settle their creditors' claim against the estate. Additionally, Matt and the Appellees reached an agreement regarding final settlement and distribution of the estate's assets and Ralph's real property. Pursuant to the parties' agreement, Matt agreed to convey a set dollar amount to the Appellees and in return, the Appellees agreed to convey their interests in certain real property inherited from Ralph to Matt.^[7] The parties further agreed that Matt, as executor of Ralph's estate, would distribute to each beneficiary his or her proportionate share of the net estate. The parties agreed the Appellees would collectively receive two-thirds of the estate's liquid assets (bank balances) after payment of the estate's legitimate expenses with Matt to receive the final one-third as well as all the remaining assets of the estate. Matt was to remain executor so long as the above transfers and distributions occurred within the following 120 days. If they did not, Matt agreed that Robin would replace him as executor at which time Matt was to provide an accounting of his actions as executor.

The parties advised the circuit court of the settlement. On the record, the parties conveyed the substance of their agreement to the circuit court and swore in open court that their participation in the agreement was voluntary. Thereafter, the circuit court directed the parties to prepare and file an agreed final judgment reflecting the substance of their settlement agreement. Although the parties had informed the circuit court of their agreement on October 19, 2018, for reasons that are not entirely clear from the record, the agreed final judgment submitted by the parties was not formally entered by the circuit court until April 5, 2019.^[8]

Between the time the parties reached their agreement in October 2018 and entry of the agreed judgment in April 2019, several additional motions were filed with the circuit court. First, the Cousins filed a motion to compel the beneficiaries to convey a deed to the Hazard house to them as promised. The circuit court granted the Cousins' motion on January 31, 2019. Next, on March 14, 2019, the Appellees moved the circuit court to compel Matt to comply with the agreed final judgment executed by the parties. This motion was filed after Matt had tendered the estate proceeds to the Appellees. Matt included a list of expenditures with the tendered proceeds which totaled $50, 439.23. The Appellees questioned certain expenditures by Matt as executor and were reluctant to conclude the settlement without a more detailed accounting through which they could ascertain the correctness of Matt's tendered distributions and the legitimacy of the alleged expenses.

According to Matt, after the motion had been filed, his counsel was told by counsel for the Appellees that they would hold off on the motion if Matt would provide documentation supporting the receipts and expenditures of the estate. Matt asserts that on the evening of Thursday, April 25, 2019, his counsel sent an email to counsel for the Appellees stating that Matt would provide the requested information thereby negating the need for the hearing, which was scheduled to take place the next morning. Believing he had addressed the matter with his Thursday evening email, Matt's counsel did not attend the Friday, April 26, 2019 hearing. However, counsel for the Appellees did not see the email until after the hearing had already taken place.^[9] Since Matt's counsel was not at the hearing to oppose the motion, the circuit court granted it, and a written order was entered by the circuit court on May 1, 2019. As part of the order, Matt was directed to make an itemized disclosure of all expenditures made from the estate while he served as the executor and to comply with the parties' agreement that Robin be named the executor after the expiration of 120 days. After the circuit court denied Matt's motion to set aside the order, he appealed to this Court.^[10]

II. Analysis

Matt raises several issues on appeal. However, Matt did not appear at the April 26 hearing or otherwise timely contest the motion at issue. While this failure may have been caused by an erroneous belief that attendance at the hearing would not be necessary, we cannot excuse the fact that most of Matt's issues were not timely and appropriately raised before the circuit court. In most instances, we do not review unpreserved arguments. Smith v. Commonwealth, 410 S.W.3d 160, 167 (Ky. 2013) ("Fundamental to the concept of preservation of trial error in any context is that the trial judge was explicitly made aware of the action desired by the party. By definition, an assignment of error cannot be regarded as 'preserved' if its significance was never brought to the trial judge's attention.").

However as part of this appeal, Matt argues that the circuit court lacked subject-matter jurisdiction. Subject-matter jurisdiction is defined as "the court's power to hear and rule on a particular type of controversy." Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky. 2007). "Subject matter jurisdiction is not for a court to 'take,' '...