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Currin v. Estate of Benton

Court of Appeals of Kentucky

May 3, 2019

JAN M. CURRIN AND TIM THOMAS CURRIN APPELLANTS
v.
ESTATE OF JOHN C. BENTON, JR. BY MARY M. MARCUM AS EXECUTOR APPELLEE

          APPEAL FROM BOONE CIRCUIT COURT HONORABLE JAMES R. SCHRAND II, JUDGE ACTION NO. 12-CI-02278

          BRIEFS FOR APPELLANTS: Charles E. Bullard Mary G. Hayes Ft. Mitchell, Kentucky

          BRIEF FOR APPELLEE: Marcus S. Carey Erlanger, Kentucky

          OPINION REVERSING AND REMANDING

          BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES.

          JONES, JUDGE:

         At the heart of this dispute is a house located in Boone County. Prior to his death in 2014, John C. Benton owned and operated the Benton Family Farm, located in Walton, Kentucky (the "Farm"). John and his wife, Rose Mary, built the house at issue (the "House") on the Farm in 2006. In 2010, John deeded the House to the appellants, Jan and Tim Currin. A little over two years after the deed was executed, John filed suit against the Currins seeking to set it aside. Ultimately John prevailed, and the trial court entered a judgment and order cancelling the deed. The Currins appeal from that judgment, as well as the trial court's order denying their motion for judgment notwithstanding the verdict. Following a review of the record and applicable law, we reverse and remand.

         I. Background

         John was close friends with Jan's father and had known Jan since she was born. As a result of her father's friendship with John, Jan frequently visited the Farm during her childhood. As Jan grew older and began her adult life, her contact with John and her visits to the Farm lessened; however, she and John continued to see each other at least once a year when Jan would bring her children to the Farm to pick pumpkins. The nature of John and Jan's relationship changed in 2007, following Jan's brother's unexpected death. Shortly after Jan's brother's funeral, which John attended, John reached out to Jan and requested that she come to the Farm to visit. When Jan did so, John told her that he wanted to give her five acres of the Farm. Shortly thereafter, Jan, Tim, and their children visited the Farm together and John staked off the five acres that he intended to give to Jan. From that point forward, Jan and Tim began travelling to the Farm on a regular basis, both to socialize with John and his family and to volunteer their time to operations on the Farm.[1]

         Rose Mary committed suicide in the House in April of 2010. Following this tragedy, John had difficulty residing in the House and expressed his desire to give it to the Currins and construct a new residence on the Farm for himself. In September of 2010, John had his attorney draft a quit claim deed conveying the House to the Currins. That deed indicated that John was conveying the House to the Currins "for the consideration of $1.00 and other consideration," and that the consideration reflected therein was the "full consideration paid for the property."

         The parties agreed that John would continue to reside in the House until construction of his new residence was completed. John moved into his new residence in November of 2011, at which point the Currins were given the keys to the House. The Currins, however, did not move into the House at that time and, in fact, have not spent the night there since receiving the keys. While the parties take different positions as to what exactly transpired, it is undisputed that the Currins drastically decreased any communication with John and members of his family shortly after John vacated the House and gave the Currins the keys.

         In November of 2012, John filed suit against the Currins alleging failure of consideration and fraud in the inducement. In his complaint, John alleged that after Jan and Tim began volunteering on the Farm in 2007, they had repeatedly requested that they be given a stake in the Farm in exchange for their work. John alleged that he had attempted to deed the Currins a five-acre tract of the Farm in 2009 to fulfill Jan's request, but had been blocked from doing so by the Kenton County planning and zoning committee.[2] John contended that, following Rose Mary's death, Jan had persisted in her requests that she be given a portion of the Farm. Because the Currins promised him that they would help maintain the Farm and assist in his agro-tourism business, John agreed to give them the House. John alleged that the Currins had agreed that they would do everything possible to ensure that the Farm stayed in one piece and was not developed. The Currins had not fulfilled this promise, having instead "dropped out" of his life as soon as he conveyed the House to them.

         The Currins responded to the complaint by filing a motion for summary judgment, which was denied. On February 11, 2013, the Currins filed an answer, counterclaim and third-party complaint. The Currins brought counterclaims of fraudulent acquisition of services, unjust enrichment, promissory estoppel, and fraudulent misrepresentation against John. In support of those claims, the Currins contended that John had induced them to work without pay on the Farm by promising to convey a five-acre tract of the Farm to them; a promise they had only recently discovered John was unable to fulfill. The Currins asserted that they would have never volunteered on the Farm if they had known that John was not going to give them the five-acre tract he had promised. The Currins alleged that they had suffered financially as a result of volunteering on the Farm, in that they had used their own vehicles to commute to the Farm from Cincinnati, Ohio, and had worked fewer hours at their full-time jobs in order to be able to volunteer. By their third-party complaint, the Currins added Benton Family Farms, Inc. and John C. Benton as the Trustee of the John C. and Rose M. Benton Trust as third-party defendants.[3] The Currins claimed that Benton Family Farms, Inc. was not authorized to perform business in Kentucky, as it operated under the name "Benton Family Farm," but had not filed a certificate of assumed name pursuant to KRS[4] 365.015. They also brought claims of unjust enrichment and fraud against Benton Family Farms, Inc. and the Trust, alleging that those entities had fraudulently misrepresented to Jan that she had an ownership interest in the Farm to induce her to perform work without pay.

         John passed away on May 31, 2014. On January 6, 2015, his counsel filed a motion under CR[5] 25.01 to substitute the Estate of John C. Benton, Jr. and Mary R. Marcum, as Executrix of the Estate of John C. Benton, Jr. (collectively referred to as the "Estate") as plaintiffs in the action. On January 7, 2015, the Currins filed a motion to revive their counterclaim pursuant to KRS 395.278. Both motions were granted by orders entered January 14, 2015.

         The Currins filed a renewed motion for summary judgment on May 26, 2017. Following the Estate's response and the Currins' reply, the trial court denied the motion for summary judgment on August 11, 2017, concluding that material issues of fact remained. That same day, the Currins filed a motion to dismiss all of the Estate's claims against them on the grounds that those claims had not been properly revived under KRS 395.278. The Currins acknowledged that John's counsel had timely filed a CR 25.01 motion substituting the Estate as plaintiff in the action. They contended, however, that the motion to substitute had been fatally defective as it had not requested that the trial court revive the causes of action John had brought against them. The Currins contended that a party was required to file both a CR 25.01 motion and an application to revive under KRS 398.278 in order to properly revive an action and avoid dismissal. The Estate responded to the Currins' motion to dismiss on September 7, 2017. As an initial matter, the Estate noted that the Currins had filed the motion to dismiss after the deadline that the trial court had set for filing dispositive motions. The Estate additionally contended that KRS 395.278 was not a law relating to pleading, practice, or procedure, but rather a statute of limitations. The Estate argued that the rule of procedure required to revive an action was found in CR 25.01. The Estate had filed a ...


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