Charlie W. Gordon v. Eric T. Gordon

• Court: Court of Appeals of Kentucky
• Decided: September 16, 2021
• Docket: 2020 CA 001386
• Status: Unknown

Opinion

RENDERED: SEPTEMBER 17, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-1386-MR

CHARLIE W. GORDON APPELLANT

APPEAL FROM SHELBY CIRCUIT COURT v. HONORABLE CHARLES R. HICKMAN, JUDGE ACTION NO. 19-CI-00579

ERIC T. GORDON APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.

CLAYTON, CHIEF JUDGE: Charlie W. Gordon appeals from a Shelby Circuit

Court opinion and order granting summary judgment to his brother, Eric T.

Gordon. A dispute arose between the brothers over the medical and financial

affairs of their mother, Effie Gordon, now deceased, for whom Eric served as

power of attorney (POA). Charlie filed suit against Eric, contending that Effie was not competent to execute the POA and raising multiple other claims, including

fraudulent misrepresentation, trespass, and defamation. Upon review, we affirm.

Following his divorce in 2015, Charlie began residing with Effie at

her house on Hinkle Lane in Shelbyville, Kentucky. Although Charlie did not pay

rent or utilities, he purchased groceries and other supplies for the household on a

biweekly basis totaling approximately $300 to $400 per month.

In 2018, Effie’s physical and mental health began to decline.

According to Charlie, she threw a heavy lamp at him and tried to choke him with a

scarf. He and Eric discussed their mother’s situation and Eric agreed to facilitate

the payment of the mortgage and the utilities on the Hinkle Lane home by setting

up automatic payment for these expenses. On April 12, 2018, Effie executed a

POA that gave Eric the authority to handle her financial affairs and medical

treatment. Eric did not inform Charlie of the POA.

Eric also arranged for their mother’s mail to be forwarded to his

address. According to Charlie, the mail was forwarded under a “family move”

order which did not distinguish first names on the mail. Consequently, Charlie’s

mail was occasionally forwarded to Eric. Eric arranged for Charlie to get his mail

by sending it to him in a flat rate shipping box or by dropping it off at the Hinkle

Road residence. Charlie apparently made no effort to have the forwarding order

changed to deliver his own mail to the Hinkle Road residence.

-2- The brothers disagreed about the severity of Effie’s dementia. Charlie

believed Eric was not acting quickly enough to have Effie’s mental state evaluated

and he sought a mental inquest warrant as her condition deteriorated. According to

Charlie, Effie’s dementia led her to damage and destroy many items in the Hinkle

Lane house. In October 2018, following a period of hospitalization, Effie was

evaluated for dementia and moved into a nursing home facility in Indiana. Charlie

continued to reside in the Hinkle Lane house. Prior to Effie’s hospitalization,

Charlie had paid $975 to catch up on late mortgage payments on the house. On

January 1, 2019, he entered into a lease agreement with Effie, facilitated by Eric

acting as POA, in which Charlie agreed to make monthly mortgage payments on

the home of approximately $440.

Charlie thereafter failed to make the payments for several months.

The mortgage company sent him a letter to the Hinkle Lane address terminating

the lease and returning one of his checks for insufficient funds. The

correspondence was forwarded to Eric, who sent it to Charlie at his work address

in Louisville. Charlie is employed as an attorney at a firm that specializes in

creditor law. The letter was opened by the mail room workers, who assumed it

was correspondence related to the firm’s business. Charlie contends that the

contents of the letter were deeply embarrassing to him and defamatory.

-3- Charlie filed a complaint against Eric in Shelby District Court on

August 23, 2019. That complaint is not in the record. At some point after the

action was filed, Eric entered the Hinkle Lane residence while Charlie was not

there. According to Charlie, he was usually away at work from approximately

8:00 a.m. to 6:00 p.m. His affidavit states that he set up a chair and towel at the

front door so he could tell if anyone had entered the house when he was not at the

residence. He explained that Eric had a key to the house and Charlie “did not

know what he might do given [they] were in the middle of litigation.” According

to Eric, he went to the house to drop off some mail for Charlie. The mailbox was

stuffed to overflowing and he noticed a foul odor around the house. He received

no response when he knocked on the door. He looked in the window and noticed

that the door had been barricaded and the house looked ransacked. He then briefly

entered the house to ascertain if everything was satisfactory.

The district court dismissed all the claims in the complaint for lack of

jurisdiction, except for Count 1, which challenged Effie’s competency to execute

the POA under Kentucky Revised Statutes (KRS) 457.160. Charlie then filed a

complaint in Shelby Circuit Court on November 1, 2019, which incorporated the

district court claims. The district court stayed the action until the resolution of the

circuit court case.

-4- The circuit court complaint included the following claims: a petition

for a declaration of rights that the POA was void because Effie lacked capacity to

execute it and that the lease agreement on the house entered into and signed by the

POA was void; fraudulent misrepresentation and omission related to forwarding

the mail; negligence per se regarding the forwarding of the mail; invasion of

privacy and violation of landlord-tenant laws in connection with Eric entering the

Hinkle Lane residence without Charlie’s consent; and defamation in connection

with the mail containing the canceled check and lease termination notice which

was opened at Charlie’s workplace. Eric filed an answer and counterclaim seeking

to recover any funds Charlie had taken from Effie not in her best interest, including

any money he owed her for unpaid rent and the expenses incurred by his waste of

the real property at Hinkle Lane. Eric filed a motion for summary judgment on

March 9, 2020. Effie passed away on May 17, 2020. The circuit court granted the

motion for summary judgment on August 17, 2020. This appeal by Charlie

followed. Further facts will be set forth below as necessary.

In reviewing a grant of summary judgment, our inquiry focuses on

“whether the trial court correctly found that there were no genuine issues as to any

material fact and that the moving party was entitled to judgment as a matter of

law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Kentucky Rules of

Civil Procedure (CR) 56.03. The trial court must view the record “in a light most

-5- favorable to the party opposing the motion for summary judgment and all doubts

are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807

S.W.2d 476, 480 (Ky. 1991). On the other hand, “a party opposing a properly

supported summary judgment motion cannot defeat it without presenting at least

some affirmative evidence showing that there is a genuine issue of material fact for

trial.” Id. at 482. “An appellate court need not defer to the trial court’s decision on

summary judgment and will review the issue de novo because only legal questions

and no factual findings are involved.” Hallahan v. The Courier-Journal, 138

S.W.3d 699, 705 (Ky. App. 2004).

Charlie argues that Eric’s motion for summary judgment failed to

meet the “burden of establishing the non-existence of any issues of material fact.”

Goff v. Justice, 120 S.W.3d 716, 724 (Ky. App. 2002). He contends that it lacked

legal analysis, citations to authority, and that its argument was cursory. A

successful motion for summary judgment need not contain extensive citations to

legal authority or complex legal analysis. We have reviewed Eric’s motion and

conclude that it was adequate to support the entry of summary judgment in this

case.

Next, Charlie argues that the circuit court erred in ruling that the

district court properly retained jurisdiction over the claim that Effie lacked mental

capacity to execute the POA. The original jurisdiction of the circuit and district

-6- courts is determined by the legislature. Abell v. Reynolds, 191 S.W.3d 1, 3 (Ky.

App. 2006) (citing KY. CONST. §§ 112(5) and 113(6); KRS 23A.010). “When the

legislature does not specifically assign jurisdiction of a particular matter to the

district court, jurisdiction rests in the circuit court.” Id. (citing Hyatt v.

Commonwealth, 72 S.W.3d 566, 577 (Ky. 2002)). KRS 24A.020 provides that

“[w]hen jurisdiction over any matter is granted to District Court by statute, such

jurisdiction shall be deemed to be exclusive unless the statute specifically states

that the jurisdiction shall be concurrent.” Id. (Emphasis added.) If jurisdiction is

concurrent, “once a court of concurrent jurisdiction has begun the exercise of that

jurisdiction over a case, its authority to deal with the action is exclusive and no

other court of concurrent jurisdiction may interfere with the pending proceedings.

20 Am. Jur. 2d, Courts, s 128, page 481.” Akers v. Stephenson, 469 S.W.2d 704,

706 (Ky. 1970).

The district court’s reason for retaining jurisdiction over this claim

was KRS 457.160, which provides a list of those who “may petition a District

Court to construe a power of attorney or review the agent’s conduct, and grant

appropriate relief[.]” KRS 457.160(1). That statute further provides that “[u]pon

motion by the principal, the court shall dismiss a petition filed under this section,

unless the court finds that the principal lacks capacity to revoke the agent’s

authority or the power of attorney.” KRS 457.160(2). Plainly, the statute

-7- contemplates the district court’s making a determination regarding the capacity of

the principal when, as in this case, a petition is brought challenging the conduct of

a POA. Under the foregoing authority, the circuit court correctly held that the

district court retained jurisdiction over this claim.

Charlie nonetheless argues that KRS 24A.120 specifically excludes

this claim from the district court’s jurisdiction. KRS 24A.120 was enacted in part

to confer exclusive jurisdiction upon the district courts in “[m]atters involving

probate, except matters contested in an adversary proceeding. Such adversary

proceeding shall be filed in Circuit Court in accordance with the Kentucky Rules

of Civil Procedure and shall not be considered an appeal[.]” KRS 24A.120(2);

Karem v. Bryant, 370 S.W.3d 867, 870 (Ky. 2012).

Charlie contends that a genuine dispute exists as to whether his

challenge to the validity of the POA is “adversarial” and thereby properly before

the circuit court. But the statute expressly applies only to “[m]atters involving

probate,” which is defined as “[t]he judicial procedure by which a testamentary

document is established to be a valid will; the proving of a will to the satisfaction

of the court.” Probate, BLACK’S LAW DICTIONARY (11th ed. 2019). There are no

matters involving probate raised in the case before us and consequently KRS

24A.120 does not confer jurisdiction on the circuit court in this matter.

-8- Next, Charlie argues that summary judgment should not have been

granted on his claims of fraudulent misrepresentation and omission. Charlie

claims the evidence in the record shows that after the episode when his mother

attacked him, Eric planned to set up automatic payment of her bills but made no

mention of getting a POA. Charlie claims that when he moved in with his mother

following his divorce, he was her tenant and had a verbal contract with her to

purchase groceries and household supplies every other week. He claims that Eric,

acting as his mother’s POA or agent, unilaterally modified the existing verbal

agreement and changed Charlie from a tenant to a caregiver and doubled his

obligation by requiring him to purchase groceries and supplies every week.

Charlie contends that Eric was under a duty as POA to provide support for Effie,

including the provision of food. He contends that Eric failed to do so and should

have informed Charlie of the POA and contracted with him to purchase the food.

Although this argument is somewhat unclear, there is no legal

foundation for the claim that Eric’s duty as POA included the provision of food for

Effie. There is also no explanation of how he was able to compel Charlie to

purchase groceries and supplies every week.

Charlie further argues that summary judgment was inappropriate on

his claim that Eric falsely forwarded his mail along with his mother’s. He

contends that Eric executed a “family move” forwarding order for Effie,

-9- representing that he had the authority to forward the mail of everyone at the Hinkle

Lane residence with the surname Gordon. Charlie contends that it was false that

everyone with the surname Gordon needed their mail forwarded and that Eric did

not have the authority to authorize the mail to be forwarded. But there is no

evidence that Eric arranged for the mail to be forwarded with any nefarious

purpose in mind; furthermore, Charlie acquiesced in the arrangement and provides

no evidence that he contacted the post office in order to have his own mail sent to

him.

Charlie also argues that the circuit court failed to consider that the

record shows Eric entered Charlie’s residence without notice. KRS 383.615(2)

provides that “[a] landlord may enter the dwelling unit without consent of the

tenant in case of emergency.” Charlie claims there is an issue of fact regarding

whether an emergency existed to justify Eric’s entry into the home. Specifically,

he argues that even if the mailbox was overstuffed and overflowing, as described

by Eric, the mailbox is at least 75 to 100 feet from the house and consequently its

condition could not constitute an “emergency” necessitating Eric’s entry into the

house. Charlie does not, however, challenge Eric’s claim that there was a foul

smell around the house, the doors were barricaded, and that the inside of the house

was in disarray. In light of these unrefuted facts, the circuit court did not err in

-10- granting summary judgment on Charlie’s claim that Eric violated the Landlord and

Tenant Act.

Charlie argues that the circuit court erred in granting summary

judgment on his defamation claim, which involved the mail room employees

opening the forwarded letter from the lessee bank containing his returned check.

The circuit court held as a matter of law that the publication element of the

defamation claim was not met.

The requisite elements for a defamation claim are: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 281-82 (Ky. 2014), as corrected (Apr.

7, 2015) (internal quotation marks and citations omitted). The element of

publication occurs when the defamatory material “is intentionally or negligently

communicated to someone other than the party defamed.” Id. at 282 n.8 (citation

omitted). The circuit court held that there was no intentional or negligent

communication to a third party because Eric forwarded the letter solely to Charlie

and the fact that Charlie’s mail was opened and potentially viewed by others due to

the mail procedures at his law firm could not be construed as an effort by Eric to

intentionally or negligently publish the letter to third parties. We agree with the

-11- circuit court’s analysis and conclude that it did not err in granting summary

judgment on this claim as a matter of law.

Charlie also alleges that the circuit court improperly weighed the

evidence in Eric’s favor. First, he contends the circuit court’s order mistakenly

stated their father’s first name was “Charlie” to account for the mail being

forwarded, even though Charlie had presented evidence that first names were not

relevant to the mail forwarding order. He claims the circuit court’s

misinterpretation implied Charlie bore the burden of correcting the mail

forwarding order. Second, he contends the circuit court improperly accepted Eric’s

suggestion that he entered the Hinkle Lane house because he feared foul play by

suicide. Neither of these two claims rise to the level of creating a genuine issue of

material fact. “A party’s subjective beliefs about the nature of the evidence is not

the sort of affirmative proof required to avoid summary judgment.” Haugh v. City

of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007). Furthermore, “[n]ot every

issue of fact or conflicting inference presents a genuine issue of material fact that

requires denial of a summary judgment motion.” Grass v. Akins, 368 S.W.3d 150,

153 (Ky. App. 2012).

Charlie also contends that, in addressing his invasion of privacy claim,

the circuit court improperly analyzed it as the form of the tort which concerns

“publicity that unreasonably places the other in a false light before the public[,]”

-12- whereas Charlie was alleging “unreasonable intrusion upon the seclusion of

another[.]” McCall v. Courier-Journal and Louisville Times Co., 623 S.W.2d 882,

887 (Ky. 1981). Under either theory, however, Charlie did not succeed in showing

the existence of a genuine issue of material fact.

Finally, Charlie alleges that Eric’s motion for summary judgment was

made in bad faith, repeating many of the earlier arguments which we have already

reviewed and found to be without merit. His remaining arguments in this regard

are similarly without merit.

For the foregoing reasons, the opinion and order granting summary

judgment is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Charlie W. Gordon, pro se Joseph D. Buckles Louisville, Kentucky Lexington, Kentucky

-13-