By: Stefan Bing
In Estate of John C. Benton, Jr. by Mary M. Marcum, as Executrix v. Tim Currin, et al., the Kentucky Supreme Court resolved an outstanding procedural question regarding the revival of an action upon the death of a party and the substitution of the party’s personal representative. At issue was the interplay between KRS 395.278 and CR 25.01, and, more specifically, whether a personal representative must file both a motion to substitute himself or herself as a party and move to revive the action.
In 2012, John Benton filed an action in Boone Circuit Court seeking to cancel a deed granted to Jan and Tim Currin. Benton died in May 2014. Seven months later, the executrix of Benton’s estate, Mary Marcum, filed a motion under CR 25.01 to substitute herself in the action in her capacity as personal representative. The trial court subsequently granted her motion, and the litigation continued for several more years.
Shortly before trial, the Currins filed a motion to dismiss the claims against them on the basis that, while the CR 25.01 motion filed by Marcum properly substituted her for Benton, that motion did not revive the action as required by KRS 395.278. The trial court denied the Currins’ motion and the case proceeded to trial, where the jury found in favor of Benton’s estate.
The Currins appealed to the Court of Appeals, which reversed. It held that while Marcum’s CR 25.01 motion properly substituted her for Benton in her representative capacity, she failed to properly revive the action by also filing a separate KRS 395.278 motion. Relying on existing case law, the Court of Appeals held that revival and substitution constituted a two-step process — a process Marcum did not follow.
The Supreme Court reversed and reinstated the trial court’s ruling. In reviewing the history of revival in Kentucky, the court reiterated that the chief purpose of revival statutes is to notify the court of the death of a current party and signal the personal representative’s intent to take on the rights and liabilities associated with the original action. The court confirmed that KRS 395.278 “grants a substantive right to the would-be litigant, while acknowledging that CR 25.01 was the appropriate procedural means by which” it is to be achieved. The Court’s ultimate holding was: “The Court of Appeals’ approach of a two-step process unnecessarily complicates this process and merely creates a trap for the unwary. We decline to adopt this approach. Instead, we affirm that KRS 395.278 is a statute of limitation, and that a motion for substitution properly filed with the court in accordance with CR 25.01(1) within the one-year allotted by the legislature constitutes revival.” Opinion at 9.
Attorneys whose clients pass away during litigation must act promptly to take the necessary steps to substitute parties and maintain the action. Thankfully, the Court’s opinion in Benton provides much needed clarity.