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Stone v. Dean Dairy Holdings, LLC

Court of Appeals of Kentucky

December 14, 2018

CATHY STONE THROUGH CARL EDWIN STONE AS EXECUTOR OF THE ESTATE OF CATHY STONE APPELLANT
v.
DEAN DAIRY HOLDINGS, LLC d/b/a DEAN MILK COMPANY, LLC; AND THOMAS PHILP APPELLEES

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BARRY WILLETT, JUDGE ACTION NO. 15-CI-03483

          BRIEF FOR APPELLANT: John S. Friend Robert W. “Joe” Bishop Tyler Z. Korus Louisville, Kentucky

          BRIEF FOR APPELLEE: John O. Sheller Steven T. Clark Louisville, Kentucky

          BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

          OPINION

          CLAYTON, CHIEF JUDGE.

         The executor of Cathy Stone's estate appeals from the Jefferson Circuit Court's order granting a motion to dismiss filed by Dean Dairy Holdings, LLC and Thomas Philp based on the executor's alleged failure to timely revive the action upon Ms. Stone's death. For the following reasons, we affirm the trial court's ruling.

         BACKGROUND

         Cathy Stone was employed by Dean Dairy Holdings, LLC ("Dean Milk"), and, on July 15, 2015, filed an action against Dean Milk and Thomas Philp, her former supervisor, based on claims of discrimination, retaliation, and intentional infliction of emotional distress. Dean Milk and Mr. Philp removed the case to the United States District Court for the Western District of Kentucky on August 10, 2015, alleging that Mr. Philp was fraudulently included as a party to the action to prevent the federal court from having diversity jurisdiction.

         Thereafter, on September 5, 2015, Ms. Stone passed away. On December 21, 2015, Carl Edwin Stone, Ms. Stone's husband, filed a motion to substitute Mr. Stone as the named plaintiff in the action and in compliance with Federal Rules of Civil Procedure (FRCP) 25(a). In March 2016, the federal court granted Mr. Stone's motion and remanded the case to Jefferson Circuit Court on the basis that Ms. Stone had a colorable claim for retaliation against Mr. Philp.

         On September 14, 2016, a few days after the one year anniversary of Ms. Stone's death, Dean Milk and Mr. Philp filed a motion under Kentucky Rules of Civil Procedure (CR) 12.02(f) to dismiss the lawsuit, alleging that Mr. Stone, as executor of Ms. Stone's estate (the "Estate"), had failed to file an application for revival of the action within one year of Ms. Stone's death as required under Kentucky Revised Statutes (KRS) 395.278. The Estate did not file a motion to revive the action under KRS 395.278 with the trial court until January 26, 2017, over sixteen months after Ms. Stone's death.

         The trial court granted the motion, finding that Ms. Stone's claims must be dismissed because the Estate failed to properly revive the action in accordance with KRS 395.278 and in contravention of the statute's one-year statute of limitations. The Estate thereafter filed a motion to alter, amend, or vacate the trial court's ruling, which the trial court denied. This appeal followed.

         ISSUES

         The Estate argues the following: (1) Mr. Stone was properly substituted under the federal rules while the case was pending in federal court, making a motion for revival under KRS 395.278 unnecessary pursuant to the Rules Enabling Act, 28 U.S.C. § 2072; (2) if it is found that revival was necessary under KRS 395.278, Mr. Stone's motion for substitution under the federal rules was sufficient to revive the action for purposes of KRS 395.278; and (3) if Mr. Stone's motion for substitution under the federal rules was insufficient to review the action, Kentucky's tolling statute applied and extended the time for the Estate to file a separate motion to revive.

         ANALYSIS

         We begin our analysis of the Estate's claims with a statement of the appropriate standard of review. "Whether an action has been timely revived is a matter of law" and an appellate court "review[s] the trial court's order of dismissal de novo and without deference to its conclusions." Frank v. Estate of Enderle, 253 S.W.3d 570, 575 (Ky. App. 2008) (citing Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998)). With this standard in mind, we turn to the Estate's contentions of error.

         a. Was KRS 395.278 ...


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