BRIEF FOR APPELLANT: Joyce Ratliff Wright, pro se Sandy Hook, Kentucky BRIEF FOR APPELLEES: Bobbi Jo Lewis Lawrenceburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 14-CI-00318 OPINION
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BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES. DIXON, JUDGE: This case stems from the contest of Marvin Wayne Ratliff's will. Appellant, Joyce Wright, pro se, appeals from the Anderson Circuit Court order entered on November 7, 2017, finding that Marvin's testamentary intent was unaltered as to his former stepchildren following his divorce from their mother. Our review of the record, along with the applicable law, reveals that we lack jurisdiction to address the issues presented. Accordingly, we dismiss this appeal.
On March 27, 2014, Ratliff died testate. His will, executed in 2001, reads in pertinent part:
I give, devise and bequeath all of my property, real, personal or mixed, wherever situated and whether acquired before or after the execution of this Will to my wife, PEGGY RUTH RATLIFF, absolutely and in fee simple; provided that if my wife, PEGGY RUTH RATLIFF fails to survive me for a period of thirty (30) days, or perishes as a result of a common accident or disaster within Ninety (90) days of my death, then, in either such event, all of my property, real, personal or mixed, wherever situated and whether acquired before or after the execution of this Will, is hereby given, bequeathed and devised as follows:(Emphases original). The Ratliffs divorced in 2006. The divorce decree released and discharged any rights to each other's estates. The will named Peggy Ratliff (now "Peggy Peach") as Executrix and Gretchen Crouch-Bierly Cornish, his former stepdaughter, as Contingent Executrix. Upon the will being admitted to probate, Cornish was named Executrix of the estate.
I give, devise and bequeath my knives, guns and antique automobiles to my step-daughter, GRETCHEN CROUCH-BIERLY, absolutely and in fee simple.
I give, devise and bequeath one-half (1/2) of the rest and residue to my step-daughter, GRETCHEN CROUCH-BIERLY, absolutely and in fee simple.
I give, devise and bequeath one-half (1/2) of the rest and residue to my stepson, BYRON CLAY CROUCH, absolutely and in fee simple.
The instant action began on September 23, 2014, when Wright, Ratliff's sister, filed a complaint alleging that the bequests to the Appellees, Cornish and Byron Clay Crouch (hereinafter referred to as "former stepchildren"), were rendered null and void by virtue of the Ratliffs' divorce. Eventually, the former stepchildren moved the trial court for summary judgment, arguing that the designation as stepchildren was meant for identification purposes only and the divorce did not affect the will's bequests to them. The trial court granted summary judgment in the former stepchildren's favor.
Subsequently, Wright appealed that decision to this Court in Appeal No. 2015-CA-001301-MR. On appeal, we reversed and remanded the trial court's summary judgment, finding there was a latent ambiguity in the will, e.g. whether Ratliff's testamentary intent remained unaltered as to his former stepchildren, requiring further evidence to resolve. 2017 WL 65445 (Ky. App. Jan. 6, 2017). Specifically, we stated that "[b]ecause of the presence of this material issue of fact, summary judgment was inappropriate at this stage in the litigation." Id. at *4.
Upon remand, the trial court held an evidentiary hearing and issued a written order finding that Ratliff maintained a close relationship with his former stepchildren and their children until his death and resolving the ambiguity in the former stepchildren's favor. This appeal followed.
An appeal can only be taken from a final judgment or order. This is codified in CR 54.01, wherein it states in pertinent part: "A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02." Further, it has been stated the test for a final and appealable order is "whether the order grants or denies the ultimate relief sought in the action or requires further steps to be taken in order that the parties' rights may be finally determined." Brumley v. Lewis, 340 S.W.2d 599, 600 (Ky. 1960) (citing Hackney v. Hackney, 327 S.W.2d 570, 571 (Ky. 1959)).
The trial court's order does not resolve any claims or adjudicate any rights; it serves only to determine one factual issue pointed out in this Court's prior opinion in this case. The order does not grant or deny any motions of the parties. Further steps are certainly required.
However, we would point out that on a motion for summary judgment it is not the trial court's responsibility to resolve issues of material fact but only to determine if any factual disputes exist. James Graham Brown Foundation, Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 276 (Ky. 1991) ("Questions relating to the credibility of witnesses and the weight of the evidence must await trial."). If there is such a dispute of material fact, summary judgment is improper, and the case should proceed to trial. Id.; Patton v. Bickford, 529 S.W.3d 717, 723 (Ky. 2016). This Court has previously determined one does exist here and instructed that summary judgment was inappropriate at this juncture of the case. Kentucky's well-established caselaw is clear that summary judgment is "to be cautiously applied and should not be used as a substitute for trial," Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483 (Ky. 1991), and the trial court should not use summary judgment to usurp the role of the fact-finder, which is the jury unless a bench trial is agreed upon.
Finally, although the order stated that it was final and appealable with no cause for delay, a recitation of the finality language provided in CR 54.02 does not change the nature of an inherently interlocutory order. Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978) (citations omitted). Though this Court appreciates that Wright is acting pro se, we cannot ignore the jurisdictional issue involved herein. Therefore, the order in question is not appealable.
For the reasons stated herein, this appeal is dismissed as being taken from an interlocutory order.
ALL CONCUR. BRIEF FOR APPELLANT: Joyce Ratliff Wright, pro se
Sandy Hook, Kentucky BRIEF FOR APPELLEES: Bobbi Jo Lewis