CATHY STONE THROUGH CARL EDWIN STONE AS EXECUTOR OF THE ESTATE OF CATHY STONE APPELLANT
DEAN DAIRY HOLDINGS, LLC d/b/a DEAN MILK COMPANY, LLC; AND THOMAS PHILP APPELLEES
FROM JEFFERSON CIRCUIT COURT HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 15-CI-03483
FOR APPELLANT: John S. Friend Robert W. “Joe”
Bishop Tyler Z. Korus Louisville, Kentucky
FOR APPELLEE: John O. Sheller Steven T. Clark Louisville,
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
CLAYTON, CHIEF JUDGE.
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.
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
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.
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.
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.
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.
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.
Was KRS 395.278 ...