RENDERED: JANUARY 14, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2017-CA-1179-MR

CATHY STONE, THROUGH EDWIN 

STONE, IN HIS CAPACITY AS THE 

EXECUTOR OF THE ESTATE OF 

PLAINTIFF, CATHY STONE APPELLANT

ON REMAND FROM KENTUCKY SUPREME COURT

(FILE NO. 2019-SC-0047-DG)

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE BARRY WILLETT, JUDGE

ACTION NO. 15-CI-003483

DEAN DAIRY HOLDINGS, LLC,

d/b/a DEAN MILK COMPANY, LLC;

AND THOMAS PHILP APPELLEES

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

CLAYTON, CHIEF JUDGE: This case is before us on remand from the Kentucky 

Supreme Court for further consideration in light of that Court’s recent decision in 
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Estate of Benton by Marcum v. Currin, 615 S.W.3d 34 (Ky. 2021). Upon further 

review, we reverse the Jefferson Circuit Court’s order and remand for further 

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND 

Dean Dairy Holdings, LLC (“Dean Milk”) employed Cathy Stone. 

On July 15, 2015, Ms. Stone filed an action against Dean Milk and Thomas Philp, 

her former supervisor, based on her claims of discrimination, retaliation, and 

intentional infliction of emotional distress. Dean Milk and Mr. Philp removed the 

case to the United States District Court for the Western District of Kentucky on 

August 10, 2015, alleging that Ms. Stone had fraudulently included Mr. Philp as a 

party to the action to prevent the federal court from having diversity jurisdiction. 

Thereafter, on September 5, 2015, while briefing was underway as to 

why the federal court should remand the case to Jefferson Circuit Court, Ms. Stone 

passed away. On December 13, 2015, Ms. Stone’s counsel filed a statement with 

the federal court pursuant to Federal Rule of Civil Procedure (“FRCP”) 25(a),

noting Ms. Stone’s death. Ms. Stone’s counsel served the statement on all parties. 

On December 21, 2015, Carl Edwin Stone, Ms. Stone’s husband, filed a motion 

with the federal court to substitute himself as the named plaintiff in the action, 

again in compliance with FRCP 25(a). On March 21, 2016, the federal court 
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granted Mr. Stone’s motion for substitution, with the order’s caption indicating that 

Mr. Stone, in his representative capacity, replaced Ms. Stone as the named party. 

Ten days later, the federal court remanded the case back to Jefferson 

Circuit Court on the basis that Ms. Stone had a colorable claim for retaliation 

against Mr. Philp. On September 14, 2016, a few days after the first anniversary of 

Ms. Stone’s death, Dean Milk and Mr. Philp filed a motion with the circuit court 

under Kentucky Rule of Civil Procedure (“CR”) 12.02(f) to dismiss the lawsuit, 

alleging that Mr. Stone, as the executor of Ms. Stone’s estate (the “Estate”), had 

failed to file an application for revival of the action within one year of Ms. Stone’s 

death as required under Kentucky Revised Statutes (KRS) 395.278. The Estate did 

not file a motion to revive the action under KRS 395.278 with the trial court until 

January 26, 2017, over sixteen months after Ms. Stone’s death. 

The trial court granted the motion, finding that it must dismiss Ms. 

Stone’s claims because the Estate had failed to properly revive the action in 

accordance with KRS 395.278 and in contravention of the statute’s one-year 

statute of limitations. The Estate thereafter filed a motion to alter, amend, or 

vacate the trial court’s ruling, which the trial court overruled. 

This appeal followed, with the Estate arguing that: (1) Mr. Stone was 

substituted correctly under the federal rules while the case was pending in federal 

court, making a motion for revival under KRS 395.278 unnecessary under the 
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Rules Enabling Act, 28 United States Code (U.S.C.) § 2072; (2) if this Court found 

that revival was necessary under KRS 395.278, Mr. Stone’s motion for substitution 

under the federal rules was sufficient to revive the action for purposes of KRS 

395.278; and (3) if Mr. Stone’s motion for substitution under the federal rules was 

insufficient to revive the action, Kentucky’s tolling statute applied and extended 

the time for the Estate to file a separate motion to revive.

ANALYSIS

We originally held in this appeal that, because KRS 395.278 and 

FRCP 25 did not conflict, any analysis under the Rules Enabling Act was 

unnecessary; that the Estate was required to file a motion in accordance with KRS 

395.278 to revive Ms. Stone’s claim; that Mr. Stone’s motion for substitution 

under FRCP 25 was not adequate to serve as an application for revival under KRS 

395.278; and that the provisions of KRS 413.270 did not toll the un-revived action.

The Supreme Court thereafter granted discretionary review, vacated 

our decision, and remanded for our reconsideration under the subsequently-decided 

Currin case. In Currin, the Kentucky Supreme Court held that “KRS 395.278 is a 

statute of limitation, and . . . 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.” 615 S.W.3d at 39 (emphasis added). Thus, while the revival 

statute – or KRS 395.278 – “grant[ed] a substantive right to the would-be litigant,
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. . . CR 25.01 was the appropriate procedural means by which it was to be 

achieved.” Id. at 37 (citing Daniel v. Fourth & Market, Inc., 445 S.W.2d 699, 701 

(Ky. 1968)). 

Consequently, according to the Kentucky Supreme Court’s decision in 

Currin, a litigant need not make a separate motion for revival under KRS 395.278. 

615 S.W.3d at 37. Because Mr. Stone took the appropriate steps under federal law 

to substitute himself as a party in his representative capacity, because Mr. Stone’s 

motion for substitution was ultimately granted by the federal court while the case 

was still pending in federal court, and because no separate motion for revival was 

required, we find that Mr. Stone properly complied with all the applicable 

substitution requirements. Id. at 39; see also Boggs v. Blue Diamond Coal Co., 

497 F. Supp. 1105, 1107 (E.D. Ky 1980). 

CONCLUSION

Accordingly, we reverse the circuit court’s order granting Dean 

Milk’s motion to dismiss for failure to revive and denying the Estate’s motion to 

substitute and revive. Further, we remand this matter to the circuit court for 

findings of fact and conclusions of law concerning Dean Milk’s partial motion to 

dismiss Ms. Stone’s claims for retaliation and intentional infliction of emotional 

distress against Dean Milk and Mr. Philp, which the circuit court had originally
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denied as moot based on its decision to grant Dean Milk’s motion to dismiss for 

failure to revive.

ALL CONCUR.

BRIEFS FOR APPELLANT:

John S. Friend

Robert W. “Joe” Bishop

Tyler Z. Korus

Louisville, Kentucky

BRIEF FOR APPELLEES:

John O. Sheller

Steven T. Clark

Louisville, Kentucky