Mills v. Abbott

350 S.W.3d 813, 2011 Ky. App. LEXIS 95, 2011 WL 2508162

• Court: Court of Appeals of Kentucky
• Decided: June 24, 2011
• Docket: 2009-CA-001114-MR
• Status: Published

Opinion

OPINION

SHAKE, Senior Judge:

Melbourne Mills, Jr. and Bertha Darlene La appeal from a Fayette Circuit Court summary judgment in favor of the Appellees. 2 The sole issue presented by this appeal is whether La’s dower rights in the encumbered properties created a material issue of fact. After a review of the record and applicable caselaw, we affirm the Fayette Circuit Court summary judgment and subsequent order denying Mills and La’s motion to amend, alter, or vacate.

On March 31, 2005, the Appellees filed suit in Boone Circuit Court against Mills and several other attorneys who represented the Appellees as plaintiffs in a lawsuit against the manufacturers of the drug “Fen-Phen.” In the lawsuit, the Appel-lees alleged that Mills and the other attorneys misappropriated millions of dollars from the settlement. On March 8, 2006, the Boone Circuit Court granted summary judgment against Mills and his codefen-dants and found that each defendant had breached his fiduciary duties to his former clients.

Following the judgment, Mills allegedly transferred half of his interest in the Tanbark Property to La on April 17, 2007. The recorded deed transfer states, “in consideration of the LOVE and AFFECTION that Melbourne Mills, Jr. has for Bertha La, and for other good and valuable consideration.” Coincidently, La was a plaintiff in the Fen-Phen action. Mills later married La on July 25, 2008. 3

On August 1, 2007, the Boone Circuit Court entered a damage judgment in the amount of $42,000,000, exclusive of prejudgment and postjudgment interest against Mills. On October 8, 2007, the Appellees filed a judgment lien in Fayette County against two parcels of property that Mills owned, the Tanbark property and the Hill-n-Dale property. 4 On April 18, 2008, the Appellees filed suit against Mills in Fayette Circuit Court to enforce their judgment lien. On April 15, 2009, the Fayette Circuit Court entered summary judgment in favor of the Appellees on three counts of the complaint.

Mills moved the court to alter, amend, or vacate its previous ruling based upon La’s dower interest in the property. On May 18, 2009, the Fayette Circuit Court denied Mills’s motion. Now, Mills appeals from both the court’s April 15, 2009, summary judgment and its denial of his motion to alter, amend, or vacate that judgment.

Summary judgment is appropriate where it appears impossible for the non-moving party to produce evidence at trial warranting a favorable judgment. Stahl v. St. Elizabeth Med. Ctr., 948 S.W.2d 419, 421 (Ky.App.1997).' In reaching its decision, the court must view the record in the light most favorable to the nonmoving party. Commonwealth v. Whitworth, 74 S.W.3d 695, 698 (Ky.2002).

Appellate review of the circuit court’s summary judgment is limited to whether the court correctly found that no genuine issues of material fact existed and that the moving party was entitled to judgment as a matter of law. Palmer v. International Ass’n of Machinists and Aerospace Workers, AFL-CIO, 882 S.W.2d 117, 120 (Ky.1994). Therefore, we must question whether La’s dower interest created a genuine issue of material fact.

A dower interest is an individual right that vests at the time of the marriage. Wigginton v. Leech’s Adm’x, 285 Ky. 787, 149 S.W.2d 531, 533 (1941). A dower interest may only be lost by sale, forfeiture, or bequeathment. Id. However, a dower interest in property does not extend beyond the property interest of the spouse. Dower rights are subject to the spouse’s right in the property. McMurray v. McMurray, 410 S.W.2d 139, 142 (Ky.1966).

Liens are “coeval with the husband’s right to the land.” Id. (citations omitted). Pursuant to KRS 426.720, “A final judgment for the recovery of money or costs in the courts of record in this Commonwealth, whether state or federal, shall act as a lien upon all real estate in which the judgment debtor has any ownership interest.” Since the judgment lien was entered prior to the marriage of Mills and La, any dower interest is subject to the preexisting encumbrance. 5 Therefore, La’s dower interest was not an issue of material fact that should have precluded summary judgment.

Accordingly, we affirm the Fayette Circuit Court summary judgment and subsequent order.

ALL CONCUR.

2 . We refer to the parties as "Appellants” and "Appellees” to avoid listing the large number of Appellees in this case.

3 . Mills claimed that the marriage occurred approximately eighteen months after the judgment lien was filed encumbering the Tanbark and Hill-n-Dale Properties.

4 . These properties are called Tanbark and Hill-n-Dale based upon the streets on which they are located.

5 . The Appellees claim that the transfer of property from Mills to La, on April 17, 2007, was fraudulent. The alleged transfer occurred after the Boone Circuit Court granted summary judgment against Mills but before the damage judgment was entered. Although Mills and La did mention the conveyance in their brief, they did not raise an argument concerning the conveyance. Instead, Mills and La solely rely on the dower claim.