MOORE, JUDGE.
Lucille Brannon passed away at the age of 86 on July 26, 2009. Shortly thereafter, an instrument purporting to be her last will and testament was probated in Leslie District Court; it named her brother, William Rush Hoskins, as the executor of Lucille's estate; it named her niece (Jill Fritz) and her niece's two sons as beneficiaries; and, it omitted her sister, Betty Hoskins Revis. On February 2, 2010, Betty filed an action in Leslie Circuit Court to contest Lucille's will, alleging that her sister had lacked the requisite mental capacity to make a will at all relevant times, that Lucille's will had been improperly executed, and that Lucille's will was the product of undue influence. Betty now appeals a summary judgment entered by the Leslie Circuit Court in favor of the above-captioned appellees. The appellees have moved to dismiss her appeal. For the following reasons, we dismiss part of Betty's appeal and otherwise affirm the judgment of the circuit court.
Shortly after Betty filed her appeal, the appellees moved to dismiss it as untimely. Betty filed a response to the appellees' motion and, thereafter, it was overruled by a three-member motion panel of this Court. Now that Betty's appeal has been assigned to this merits panel, the appellees have renewed their motion to dismiss.
As an aside, while the appellees' brief discusses this issue, Betty's brief largely ignores it; instead, Betty merely asserts that the appellees are prohibited from renewing their motion here because the motion panel has already overruled it. This is a common misconception. The motion panel's order overruling the appellees' motion to dismiss did not finally dispose of any aspect of this case. "This Court retains authority to review decisions on motion panel that do not finally dispose of the case when the case is considered by a full-judge panel to which it is assigned." Commonwealth Bank & Trust Co. v. Young, 361 S.W.3d 344, 350 (Ky. App. 2012).
With that said, the appellees' motion to dismiss is based upon Kentucky Rule of Civil Procedure (CR) 73.02. The appellees point out that the circuit court entered summary judgment on March 7, 2012, which they argue became final on June 4, 2012. They argue that because Betty filed her notice of appeal on July 16, 2012, Betty filed it outside of the 30-day appellate window specified in CR 73.02(1)(a) and dismissal is therefore mandated pursuant to CR 73.02(2). See City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990).
When Betty responded to the appellees' motion, Betty disagreed and asserted that the circuit court's March 7, 2012 summary judgment did not become final and appealable until the circuit court subsequently entered an "order clarifying" on July 11, 2012. This July 11, 2012 order provides in relevant part as follows:
IT IS SO ORDERED this 11 day of July, 2012.
Whether this July 11, 2012 order had any impact upon Betty's time for filing an appeal is questionable. It relates to three post-judgment motions Betty filed in this matter, but does not dispose of two of them; rather, it merely indicates that two of those motions had already been denied (i.e., the "motions to alter, amend, or vacate" described in paragraphs "1" and "3").
With this in mind, we will review each of these motions and the procedural history surrounding them to determine the timeliness of Betty's appeal.
Betty filed the motion described in paragraph "1" of the "order clarifying" on March 12, 2012. It was by its own explicit terms a CR 59.05 motion. Betty raised two overarching arguments. Her first argument was that a genuine issue of material fact existed regarding whether her sister, Lucille Brannon, had the requisite mental capacity to execute her will that was at issue in this matter. To that effect, much of this motion is dedicated to summarizing a number of affidavits and medical records which, Betty asserted, stood for the proposition that Lucille lacked the requisite mental capacity. Betty's second argument was that the circuit court's order of summary judgment contained a patent error because it appeared to rely upon hearsay contained in an affidavit filed of record by the appellees. The affidavit in question was that of Leonard Brashear, the attorney who prepared Lucille's will. The hearsay contained in this affidavit concerned a conversation Brashear had with Lucille's treating physician, Dr. Roy Varghese. And, the circuit court's March 7, 2012 summary judgment order noted the substance of this hearsay as follows:
The latter of these two arguments is relevant in the context of our discussion, immediately below, regarding Betty's "motion to strike and delete hearsay in affidavit" (referenced in paragraph "2" of the circuit court's July 11, 2012 order), which Betty filed contemporaneously with this CR 59.05 motion. That aside, the record clearly demonstrates that the circuit court considered this CR 59.05 motion and overruled it on June 4, 2012. Therefore, if this was the only motion that Betty filed capable of extending her time for appealing this matter, Betty's July 16, 2012 notice of appeal was untimely.
As discussed above, Betty filed her two-page "motion to strike and delete hearsay in affidavit" on March 12, 2012, contemporaneously with her CR 59.05 motion. The only relief she requested is specified in the following two sentences within this motion:
The motion panel of this Court seems to have focused upon this motion in its two-paragraph order overruling the appellees' motion to dismiss this appeal. As to why, the extent of the order's reasoning is only contained within a brief concurrence:
As the motion panel's order indicates, Betty had responded to the appellees' motion to dismiss by arguing that her "motion to strike and delete hearsay in affidavit" should actually be characterized as a CR 52.02 motion and that her motion therefore should have operated to toll the applicable period of time for filing an appeal until the circuit court purported to overrule it on July 11, 2012.
Upon further review, with the benefit of the entire record before this merits panel, we respectfully disagree with the motion panel's resolution of this issue. A plain reading of this motion reflects that it cannot be construed as a CR 52.02 motion. Like CR 59.05, CR 52.02 only relates to the amendment of judgments. By its own terms, this motion was concerned exclusively with striking parts of an affidavit.
Moreover, even if this could be perceived as a CR 52.02 motion, the circuit court would have lacked jurisdiction to make a ruling on it in the situation presented by this case. To explain, where a CR 59.05 motion is filed asking a circuit court to reconsider a prior decision to overrule a previous CR 59.05 motion, the circuit court does not retain jurisdiction to entertain such a motion. See Mingey v. Cline Leasing Serv., Inc., 707 S.W.2d 794 (Ky. App. 1986). Likewise, no authority supports that a circuit court retains jurisdiction to entertain a CR 52.02 motion that also asks the circuit court to reconsider a prior decision to overrule a previous CR 59.05 motion. Here, interpreting Betty's "motion to strike and delete hearsay in affidavit" as a CR 52.02 motion would implicate this rule; it would lead to the conclusion that Betty intended to raise the same argument in two separate and contemporaneously-filed post-judgment motions for the purpose of requiring the circuit court to not only consider this argument, but to immediately reconsider this argument in the event that the circuit court rejected it. This is because the only argument that could have been distilled from Betty's "motion to strike and delete hearsay in affidavit," for the purpose of CR 52.02, would be that the circuit court's order of summary judgment contained a patent error inasmuch as it appears to have relied upon inadmissible hearsay from Dr. Roy Varghese.
In sum, it would be inappropriate to interpret Betty's "motion to strike and delete hearsay in affidavit" as a CR 52.02 motion; and, even if it were susceptible of such an interpretation, doing so would not have extended Betty's time for filing an appeal under the circumstances of this case because the circuit court would not have been authorized to address it.
On May 29, 2012, Betty filed her motion referenced in paragraph "3" of the circuit court's July 11, 2012 "order clarifying." This motion does not provide that it was filed pursuant to any civil rule, but Betty styled it as a "motion to alter, amend, or vacate a judgment for lack of will." As the title indicates, the sole argument Betty raised in this motion was that error occurred because the appellees had failed to place Lucille Brannon's original will into the record before the circuit court had entered summary judgment in their favor on March 7, 2012.
The appellees regarded Betty's May 29, 2012 motion as one filed pursuant to CR 60.02
We disagree that Betty's motion would have been authorized or timely under CR 59.05. If Betty's May 29, 2012 motion were construed as either a CR 59.05 motion or as an attempt to append additional arguments to her earlier March 12, 2012 CR 59.05 motion, Betty would only have been permitted to file it within 10 days after the entry of the circuit court's March 7, 2012 final judgment. This is because under our articulation of CR 59.05 in Matthews v. Viking Energy Holdings, LLC, 341 S.W.3d 594 (Ky. App. 2011), "litigants are required not only to file the motion, but also to identify and articulate the reasons which merit disturbing the judgment within this short time." Stanley v. C & R Asphalt, LLC, 396 S.W.3d 924, 926 (Ky. App. 2013) (Judge Caperton, M., concurring).
In light of the above, the circuit court's July 11, 2012 "order clarifying" had no effect upon the time allotted to Betty for filing an appeal in this matter. At the latest, her time to file an appeal began to run on June 4, 2012, when the circuit court overruled her only timely and authorized CR 59.05 motion. Consequently, Betty's notice of appeal, which she filed over 30 days after June 4, 2012, was untimely and her direct appeal of the circuit court's March 7, 2012 summary judgment is therefore dismissed.
The circuit court and the appellees treated Betty's May 29, 2012 motion as a CR 60.02 motion. We will follow suit. The circuit court overruled Betty's motion on June 27, 2012, and Betty filed her notice of appeal on July 16, 2012. Therefore, her appeal of the circuit court's denial of her motion was timely; we will accordingly review the circuit court's decision on the merits. Appellate review of a trial court's denial of a CR 60.02 motion is performed under an abuse of discretion standard. Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 456 (Ky. 2002). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Absent a "flagrant miscarriage of justice," we will affirm the trial court. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
Kentucky Retirement Systems v. Foster, 338 S.W.3d 788, 796-97 (Ky. App. 2010).
Here, the only argument Betty raised in her CR 60.02 motion was that error occurred because the appellees had failed to place Lucille Brannon's original will into the record before the circuit court had entered summary judgment in their favor on March 7, 2012. Betty does not explain which of the several grounds for filing a CR 60.02 motion would encompass this argument. But, Betty obviously could have raised this argument at any time between February 2, 2010 (when she filed this action) and March 7, 2012 (the date of the circuit court's summary judgment). It could, therefore, have been raised as an argument in a direct appeal. Furthermore, and as explained in Ramsey v. Howard, 289 Ky. 389, 158 S.W.2d 981, 983-84 (1942), the failure to place the original will of record in a will contest is not a basis for voiding a judgment:
In sum, Betty's argument in her May 29, 2012 motion was not a permissible basis for a CR 60.02 motion. Consequently, the circuit court did not err in overruling it.
For these reasons, Betty's direct appeal of the Leslie Circuit Court's judgment is DISMISSED, and the Leslie Circuit Court's denial of her CR 60.02 motion is AFFIRMED.
ALL CONCUR.
(Emphasis added.)
