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Bickett v. Cecil

Court of Appeals of Kentucky

December 8, 2017



          BRIEFS FOR APPELLANT: Jude A. Hagan Lebanon, Kentucky

          BRIEF FOR APPELLEE: Thomas E. Clay David N. Ward Louisville, Kentucky



          NICKELL, JUDGE.

         The Bicketts appeal from an order entered by the Marion Circuit Court awarding summary judgment to the Cecils, and a judgment overruling the Bicketts' motion to alter, amend or vacate the award of summary judgment to the Cecils. This appeal concerns a 196-acre tract of land known as "the Thompson farm, " whether the Cecils have held title to that farm and other property for Bickett since 1988 under an oral trust agreement, and whether the Cecils wrongfully failed to return the property to Bickett upon his request in 2012. Upon thorough review of the record, the briefs and the law, we affirm.


         In 1988, Bickett had a cocaine habit, [3] was paranoid, could not manage his affairs, and feared losing 265 acres of Marion County farmland. Included in the acreage was the 69-acre Votaw farm and the 196-acre Thompson farm. To protect the land from "his serious drug problem[, ]" Bickett arranged with his sister and her husband-the Cecils-to transfer the property into their name. On December 21, 1988, via two separate deeds, Bickett transferred to the Cecils (for consideration) the Thompson farm, with a fair market value of $85, 000, and the Votaw farm, with a fair market value of $33, 500. Neither deed references an oral trust. The Cecils assumed the mortgages and made the payments.

         On February 17, 1989, the federal government filed notice of lis pendens stating it had seized the Votaw farm and it was being processed for forfeiture. The Cecils were named in the style of the action and defended the suit. Bickett, fully aware of the action, was not named and asserted no interest in the land. Ultimately, after the Cecils submitted to polygraph examinations and reached an agreement with the federal government, the Votaw farm was released to them.

         While Bickett was feeding his cocaine habit in 1988, he was also distributing large quantities of marijuana to the East Coast as part of the so-called "Cornbread Mafia." As a result, he was arrested on federal drug charges in 1989 and released on bond. He was subsequently indicted for conspiracy to distribute and possess marijuana with intent to distribute, [4] aiding and abetting in the possession of marijuana with intent to distribute, [5] possession of cocaine, [6] and, being a felon in possession of a firearm in or affecting commerce.[7] He faced a significant period of incarceration, and a maximum aggregate fine of $6, 500, 000.

         In March of 1990, a jury convicted Bickett on all four counts, [8]prompting the federal government to seize and pursue forfeiture of the Votaw farm. Similar steps were not taken regarding the Thompson farm where Bickett lived. The record suggests authorities believed they had seized all of Bickett's land, but were unaware the Votaw and Thompson farms were separate parcels with separate deeds. On May 25, 1990, Bickett was sentenced to serve twenty years, followed by eight years of supervised release. A $17, 500 fine was imposed.

         In April 2012, Bickett filed a complaint against the Cecils claiming he had deeded the land to them "to be held in trust until [he] requested return of said property[.]" He alleged his oral trust agreement with the Cecils was confidential; covered not only the 265 acres of land, but also an array of farm equipment; and resulted from "legal issues" he was experiencing. The complaint alleged the Cecils: violated the oral trust agreement by failing to return land and equipment to Bickett; failed to provide Bickett an accounting of farm income, sale proceeds and gifts; deliberately mismanaged property; illegally conveyed a ten-acre tract to the Cecils' daughter costing Bickett more than $5, 000; and, caused Bickett lost income, mental anguish and duress, making them liable to him for punitive damages. Bickett admits he has no written proof of an oral trust, but filed notice of lis pendens with the Marion County Clerk on July 21, 2012, seeking return of the Thompson farm "under an oral trust agreement."

         In answering the complaint, the Cecils argued they paid Bickett for the land and hold nothing for him in trust. They asserted: Bickett's claims are barred by statutes of frauds and limitations; estoppel prevents Bickett's current claim of ownership because it is diametrically opposed to the position he took in federal court in 1990; and, entry of a federal court order of dismissal-releasing the property to the Cecils at the end of the forfeiture action-rendered the matter res judicata.

         A first amended complaint-adding Jamie as a plaintiff and Jr. as a defendant, and claiming the Cecils had been unjustly enriched by failing to abide by the oral trust-was ordered filed in mid-2013. In July 2014, the Cecils answered the amended complaint, denying anything not previously denied, and arguing the amended complaint failed to state a claim on which relief could be granted. The Cecils moved to file a second amended answer in August 2014, seeking to assert judicial estoppel as an additional defense.

         This appeal has little to do with the crimes for which Bickett was convicted and sentenced to serve two decades in federal prison. It turns instead upon the financial picture-specifically the assets and "ability to pay" fines- included in a federal presentence report (PSI) used to assess his fine and, the "property" he listed on and omitted from a financial affidavit submitted to secure in forma pauperis status to appeal the federal conviction.

         According to the PSI prepared in April 1990, Bickett's unencumbered assets were a 1980 pick-up truck valued at $1, 650 and 37 acres in Marion County with a fair cash value of $7, 400. The only other equity listed in the report, a "home and 69 acres" with a fair cash value less principal balance owed of $20, 409.38 (the Votaw farm), was followed by this caveat:

This property was deeded to Daniel and Mary O'Daniel[9]in December 1988. [Bickett] received a $500 down payment, and $17, 500 additional payments in 1989, toward a total consideration of $80, 000 with the agreement the purchasers would pay the principal balance of the mortgage ($58, 590.62) and accrued interest ($6, 887.00). Approximately $3, 409.00 is owned [sic] on the purchase price. However, the United States has filed an Intent to Seize Order, subsequent to conveyance of the deed. Therefore, any equity may be forfeited, which would negate the possibility of receiving additional funds.

         Federal authorities seized the Votaw farm believing Bickett had used it "as a meeting place for the sale of more than fifty (50) kilograms of marijuana" on February 12, 1989. Bickett never mentioned the Cecils were merely holding the Votaw farm-or anything else-in trust for him and awaiting his release from prison when they would return the land to him upon request.

         The PSI states another property-in which Bickett had an interest at one time-had already been seized.

The United States has already seized Bicketts Bar of which [Bickett] was one-half owner, valued at $7, 400 ($3, 700 his half interest); a 1985 Oldsmobile 98 Regency, valued at $6, 925; and a 1986 Chevrolet Camaro IROC-Z, valued at $7, 975.

         Not mentioned anywhere in the PSI is the Thompson farm-an absence not accidental since Bickett voiced several objections to the PSI-but never challenged accuracy of his stated assets.

          Also at odds with Bickett's current claim is the financial affidavit he signed under oath on September 25, 1990. The affidavit listed the 1980 pick-up truck and half-interest in Bickett's Bar, acknowledged the Cecils had paid him $17, 500 as down payment on a "property sale, " but omitted any interest in the Votaw and Thompson farms. Accompanying the affidavit was an unsigned letter from Bickett to the sentencing judge, explaining in part:

the attached documents will show where all properties are, what value, if any is not siezed [sic] by the Government. I have tried to show that I am in fact without income and without the ability to levy any property to cover any attorney fees.

         In November 2012, the Cecils sought summary judgment on Bickett's complaint, arguing the lawsuit was frivolous, Bickett could not recover land he had transferred to the Cecils to defraud his creditors, and, the oral trust he now alleges violates the statute of frauds. After taking the matter under submission, the trial court overruled the motion, deeming it to have been filed prematurely.

         As discovery continued, Bickett attempted to have Hon. Thomas E. Clay-the attorney representing the Cecils-disqualified. As grounds, Bickett argued he had sent Clay a confidential letter in November 1991 seeking help with his criminal case and offering information he believed would help the Cecils fight the forfeiture proceeding. In the letter, Bickett admitted knowing Clay represented the Cecils, hoped to help the Cecils without creating "a conflict of interest, " and stated multiple times, "I sold the property to the Cecils." The trial court denied the motion to disqualify Clay, noting the Cecils had relied on Clay's legal advice for many years at considerable expense, and while Bickett had written Clay under the pretense of helping the Cecils, his real motive was convincing Clay to obtain an audio recording Bickett wanted to use in the appeal of his conviction. Bickett's motion to alter, amend or vacate the ruling on disqualification was overruled.

         Jury trial was set for August 27, 2014, with a pre-trial conference to occur on July 10, 2014. On June 20, 2014, the Cecils renewed their summary judgment motion, arguing in part: Bickett cannot prevail because he tried to defraud the government by transferring land to the Cecils to avoid legal issues; the Cecils were not unjustly enriched-they bought the land from Bickett, assumed the mortgage and made payments in the wake of the sale; Bickett was served with the forfeiture complaint but did not contest it; and, in the November 1991 letter Bickett sent to Clay, he referenced the "sale" of property to the Cecils and referred to them as "owners." Bickett responded, claiming the Cecils had never answered the amended complaint and he and Jamie should be awarded default judgment.[10]

         On July 3, 2014, Bickett filed his own motion for summary judgment, quickly followed by three motions in limine and a pre-trial statement demanding the entire Thompson Farm and damages. He claimed he asked the Cecils to hold the land for him because of "his serious drug problem[, ]" and went on to suggest his "problem" was drug addiction, not fear of being caught distributing marijuana. He further stated the Cecils transferred two and one-half acres to Jamie and his wife in 2005, and in 2011 transferred 39 acres of the Votaw farm to Bickett.[11]

         During the pre-trial conference on July 10, 2014, the Cecils argued the five-year statute of limitations on each of Bickett's claims had expired long before suit was filed. They also responded to Bickett's motion for summary judgment- reiterating no oral trust agreement exists-and arguing the claim is foreclosed by the doctrine of issue preclusion due to Bickett's providing inconsistent data in the 1990 PSI-a document the sentencing court used to impose a $17, 500 fine, [12] when the maximum potential fine was $4, 000, 000. The Cecils ...

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