RENDERED: APRIL 9, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1723-MR

JUDY PRUITT; JOHN ONEY; AND 

ELIZABETH GIBBINS

APPELLANTS 

v. 

APPEAL FROM BOYD CIRCUIT COURT

HONORABLE JOHN F. VINCENT, JUDGE

ACTION NO. 17-CI-00499 

TOMMY KERR ESHAM APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.

GOODWINE, JUDGE: Judy Pruitt, John Oney, and Elizabeth Gibbins 

(“Appellants”) appeal from the September 4, 2019 and October 11, 2019 orders of 

the Boyd Circuit Court regarding their claim of waste against Tommy Kerr Esham 

(“Appellee”) and settlement of the parties’ mother’s estate. Finding no manifest 

injustice, we affirm.
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BACKGROUND

Nola May Waddle, mother of the parties, died testate on December 

31, 2015. Appellee initiated probate proceedings in the Boyd District Court soon 

thereafter. Item two of Waddle’s last will and testament directed debts and funeral 

expenses be first paid from her estate. Record (“R.”) at 128. Item three of her will 

reads as follows:

I hereby leave a life estate in my real property and 

household items located at 714 Newsom[e] Street, 

Ashland, Boyd County, Kentucky to my son, Tommy K. 

Esham. Any remainder interest in said property shall 

pass to my other children, Elizabeth Marie Gibbins, John 

Robert Oney, and Judy A. Pruitt. Any child who chooses 

to reside in the residence at 714 Newsome Street, 

Ashland, Boyd County, Kentucky shall have the 

responsibility to maintain the property, including but not 

limited to the payment of the mortgage and any liens 

thereon.

Id. Appellee and Gibbins were appointed co-executors of the estate.

1

 This action 

was initiated by Appellee’s complaint filed on July 19, 2017, in the circuit court. 

He claimed Pruitt and her son were trespassing by refusing to vacate the Newsome 

Street property. The circuit court subsequently entered a temporary injunction 

removing the Pruitts from the property, and they vacated thereafter. 

 

1 Both were later removed and a public administrator was appointed by the district court. 
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The Pruitts filed a counterclaim alleging, in part, Appellee was 

responsible for paying claims made against the estate. The following proofs of 

claim were filed against the estate in district court: (1) Ascention Point Recovery 

Services, LLC for the sum of $1,229.63 resulting from a balance on a JCPenney 

credit card; (2) American Express Centurion Bank for the sum of $16,599.73; and 

(3) Webb Bank Fingerhut Credit Account for the sum of $1,008.33. Appellants2

claimed these debts, though unrelated to the Newsome Street property, were 

Appellee’s responsibility because of his life estate and that he committed waste 

upon their remainder interest in the Newsome Street property by failing to retire 

the estate’s debts. Appellants then amended their counterclaim to request

settlement of the estate and joined the estate as a party to the action by and through 

the public administrator. 

While this matter remained pending before the circuit court, in the 

probate proceedings, the district court entered an agreed order for the sale of the 

Newsome Street property. The sale was completed by contract, but no evidence of 

the sale amount or expenses were presented to the circuit court.

3

 The record 

 

2 Appellants Oney and Gibbins were added as counterclaimants and Pruitt’s son was removed as 

a party because he was not an heir to Waddle’s estate. 

3 Although the agreed order and contract for sale appear to have been made part of the district 

court record, neither was introduced at trial or made part of the circuit court record and, 

therefore, they are not available for review by this Court. Appellants’ designation of the district 

court record as part of the record on appeal was improper where it was not first made part of the 

circuit court record. See Miles v. United Oil Co., 204 Ky. 345, 264 S.W. 761, 762 (1924). 
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indicates there was also a home equity loan associated with the Newsome Street 

property, but evidence of the payoff balance was not presented at trial. 

In its September 4, 2019 order, the circuit court found Appellee had 

committed no waste against the estate. R. at 154. The court was unconvinced by 

Appellants’ argument that Appellee, as the life tenant, was wholly responsible for 

the debts of the estate unrelated to the Newsome Street property. Id. Regarding

settlement of the estate, the circuit court determined it had the authority to settle 

estates under KRS4 395.510. However, the court ultimately found the parties 

presented insufficient evidence for it to make any financial determinations and did 

not apportion the estate’s debts or proceeds from the sale of the Newsome Street 

property. 

Furthermore, under KRS 395.510(2), the circuit court determined it 

could not proceed with settlement of the estate because all appropriate parties were 

not named in the action. Bobby Ray Oney, another of Waddle’s children, was not 

named as a party.5 The court also found the creditors who made claims against the 

estate were necessary parties and had not been named as such. Without all 

 

4 Kentucky Revised Statutes. 

5 The will indicates Bobby Ray Oney is disabled. However, the court found his guardian or 

committee should have been named as a party. 
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necessary parties to the action, the circuit court dismissed the claim. Thereafter, 

the court denied Appellants’ timely CR6 59.05 motion. This appeal followed. 

NONCOMPLIANCE WITH CR 76.12

Before reaching the merits of Appellants’ arguments, we must address 

egregious deficiencies in their brief. The rules for briefing are readily available to 

counsel and are the same standards to which pro se appellants are held. 

Nevertheless, counsel has largely failed to comply with the requirements of CR 

76.12(4)(c). 

First, an appellant’s brief must include 

[a] “STATEMENT OF THE CASE” consisting of a 

chronological summary of the facts and procedural 

events necessary to an understanding of the issues 

presented by the appeal, with ample references to the 

specific pages of the record, or tape and digital counter 

number in the case of untranscribed videotape or 

audiotape recordings, or date and time in the case of all 

other untranscribed electronic recordings, supporting 

each of the statements narrated in the summary.

CR 76.12(4)(c)(iv). Appellants’ statement of the case contains only seven citations 

to the record on appeal, all of which generally reference entire documents in the 

record rather than specific pages wherein relevant facts may be found by this 

Court. Furthermore, despite a trial having occurred in this matter, Appellants’ 

 

6 Kentucky Rules of Civil Procedure. 
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statement of the case is devoid of any reference to the video record.7 “[I]t is an 

Appellant’s duty and obligation to provide citations to the record regarding the 

location of the evidence and testimony upon which he relies to support his 

position, and if an appellant fails to do so, we will accordingly not address it on the 

merits.” Commonwealth v. Roth, 567 S.W.3d 591, 594 (Ky. 2019) (citation and 

internal quotation marks omitted). 

Next, an appellant’s brief must contain

[a]n “ARGUMENT” conforming to the statement of 

Points and Authorities, with ample supportive references 

to the record and citations of authority pertinent to each 

issue of law and which shall contain at the beginning of 

the argument a statement with reference to the record 

showing whether the issue was properly preserved for 

review and, if so, in what manner.

CR 76.12(4)(c)(v). In their argument, Appellants have again provided minimal 

citations to the record. Appellants also scarcely support their arguments with 

relevant authority. “It is not our function as an appellate court to research and 

construct a party’s legal arguments. We will not search the record to construct [the 

appellant’s] argument for him, nor will we go on a fishing expedition to find 

 

7 We note the record on appeal in this case is incomplete as it does not contain the video 

recording of the trial. Counsel designated the video recording as part of the record on appeal. 

However, counsel is reminded of the “reciprocal duties imposed upon the appealing party and 

the clerk by CR 75.07” to ensure the record on appeal is properly prepared and transmitted to this 

Court. Belk-Simpson Co. v. Hill, 288 S.W.2d 369, 370 (Ky. 1956).
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support for his underdeveloped arguments.” Prescott v. Commonwealth, 572 

S.W.3d 913, 923 (Ky. App. 2019) (citation and internal quotation marks omitted). 

Furthermore, Appellants’ brief contains no statements of preservation 

for their arguments. Preservation statements are crucial to appellate review so that

“the reviewing Court[] can be confident the issue was properly presented to the 

trial court and therefore, is appropriate for our consideration.” Oakley v. Oakley, 

391 S.W.3d 377, 380 (Ky. App. 2012). 

Finally, an appellant’s brief should include an appendix 

[w]ith appropriate extruding tabs containing copies of the 

findings of fact, conclusions of law, and judgment of the 

trial court, any written opinions filed by the trial court in 

support of the judgment, the opinion or opinions of the 

court from which the appeal is taken, and any pleadings 

or exhibits to which ready reference may be considered 

by the appellant as helpful to the appellate court. The 

first item of the appendix shall be a listing or index of all 

documents included in the appendix. The index shall set 

forth where the documents may be found in the record. 

The appellant shall place the judgment, opinion, or order 

under review immediately after the appendix list so that it 

is most readily available to the court. . . .

CR 76.12(4)(c)(vii). Appellants’ brief contains no appendix and the order from 

which the appeal was taken was not attached therein. Instead, we had to scour the 

record for it, which is not the responsibility of this Court. See G.P. v. Cabinet for 

Health and Family Services, 572 S.W.3d 484, 490 (Ky. App. 2019) (citation 

omitted).
-8-

“Failing to comply with the civil rules is an unnecessary risk the 

appellate advocate should not chance. Compliance with CR 76.12 is mandatory.” 

Bewley v. Heady, 610 S.W.3d 352, 355 (Ky. App. 2020) (citation omitted). We 

would be well within our discretion to strike Appellants’ brief and dismiss their 

appeal for counsel’s failure to comply with the civil rules. Curty v. Norton 

Healthcare, Inc., 561 S.W.3d 374, 378 (Ky. App. 2018) (citation omitted). 

However, we recognize such a harsh outcome ultimately sanctions the clients. 

Therefore, we will review this matter for manifest injustice only. Hallis v. Hallis, 

328 S.W.3d 694, 696 (Ky. App. 2010) (citation omitted). We strongly urge 

counsel to familiarize himself with the rules for appellate practice. He cannot be 

guaranteed such leniency in the future. 

STANDARD OF REVIEW

On review for manifest injustice, “the required showing is probability 

of a different result or error so fundamental as to threaten a [party’s] entitlement to 

due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). 

ANALYSIS

On appeal, Appellants argue the following: (1) the circuit court had 

subject matter jurisdiction to decide this matter while the matter was proceeding 

through district court; (2) the circuit court’s interpretation of the will was clearly 

erroneous; (3) they are entitled to a judgment as a matter of law against Appellee 
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because he committed waste against the Newsome Street property; and (4) the 

circuit court had no authority to apportion the proceeds from the sale of the 

Newsome Street property. 

First, the circuit court did not have jurisdiction to settle the estate 

where Appellants failed to comply with KRS 395.510(2). Contrary to Appellants’ 

allegations, the circuit court found it had jurisdiction to settle estates, generally, 

under KRS 395.510 and to decide adversarial matters such as these under Hale v. 

Moore, 289 S.W.3d 567, 579 (Ky. App. 2008). However, KRS 395.510(2) 

requires 

[t]he representatives of the decedent, and all persons 

having a lien upon or an interest in the property left by 

the decedent, or any part thereof, and the creditors of the 

decedent, so far as known to the plaintiff, must be parties 

to the action as plaintiffs or defendants. 

The circuit court found Bobby Ray Oney and the three creditors who filed proofs 

of claim against the estate in district court were necessary parties to the action. 

Appellants argue Oney need not be named as a party because he had, at most, a 

residuary interest.8 Appellants make no argument as to the estate’s creditors. 

The requirements of KRS 395.510(2) are mandatory. White v. White, 

883 S.W.2d 502, 504 (Ky. App. 1994). A plain reading of the statute indicates 

Ascention Point Recovery Services, LLC; American Express Centurion Bank; and 

 

8 Appellants further allege Oney passed away sometime after the filing of their notice of appeal.
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Webb Bank Fingerhut Credit Account, as creditors of the estate known to 

Appellants, should have been made parties to the action. With no argument from 

Appellants to the contrary, no manifest injustice resulted from the circuit court’s 

dismissal.

Although the circuit court did not have jurisdiction to settle the estate 

under KRS 395.510, the parties’ separate claims relating to interpretation of the 

will, alleged waste by Appellee under KRS 381.350, and payment of debts under 

KRS 394.420 were properly before the court. Therefore, we will review 

Appellants’ arguments regarding those claims.

The circuit court’s interpretation of the will did not result in manifest 

injustice. Appellants contend the last sentence of item three applies to any party, 

life tenant, or remainderman, who lives in the Newsome Street property. They

concede the Newsome Street property, by agreement, has now been sold to a third 

party, giving none of the parties the right to live therein. A matter is moot where 

“an event occurs which makes a determination of the question unnecessary or 

which would render the judgment that might be pronounced ineffectual[.]” 

Calhoun v. Wood, 516 S.W.3d 357, 359 (Ky. App. 2017) (citation omitted). On 

this basis, the sale rendered any argument relating to possession of the property 

moot. 
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Furthermore, the circuit court engaged in some discussion of division 

of the estate’s debt in proportion to the value received by the heirs under KRS 

394.420. However, the court did not make any financial determinations because it 

lacked the evidence to do so. Appellants allege the circuit court needed no 

additional evidence because all the estate’s debts should be assigned to Appellee. 

This claim is based upon Appellee’s life estate in the Newsome Street property and 

the last sentence of item three in the will requiring any child living on the property 

to maintain it by paying the mortgage and any liens thereon. However, as cited by 

the circuit court, Waddle also directed “all my just debts . . . be first paid from my 

estate as soon as practicable after my death.” R. at 128. 

The court was unconvinced by Appellants’ argument that item three 

made Appellee responsible for all the estate’s debts. Instead, the circuit court

found the estate was required to pay its debts under item two. It further found 

there was no residuary estate and, under KRS 394.420(2), the estate had 

insufficient assets to pay its debts. Therefore, the court found the debt was 

required to be apportioned between the parties according to the value they 

received.

When interpreting a will, “[a]s in any case where a court is called 

upon to interpret a document, the first and most important guide is the plain 

language of the instrument.” Benjamin v. JP Morgan Chase Bank, N.A., 305 
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S.W.3d 446, 451 (Ky. App. 2010) (citation omitted). “If the language used is a 

reasonably clear expression of intent, then the inquiry need go no further.” Id. at 

451-52 (citation omitted). Herein, the language of the will plainly states the debts 

shall be paid from the estate. There is no language showing Waddle intended for 

Appellee, as the life tenant, to be solely responsible for the estate’s debts. On this 

basis, we find no manifest injustice resulted from the circuit court’s interpretation 

of the will. 

Relatedly, Appellants are not entitled to a judgment as a matter of law 

against Appellee because of his failure to retire the estate’s debts. Appellants 

allege Appellee’s nonpayment of the estate’s debts which were unrelated to the 

Newsome Street property constituted waste under KRS 381.350. The circuit court

was unconvinced by this argument and, based upon an inspection by the public 

administrator, found Appellee had not committed waste.

Appellants’ singular citation to authority is to Adams v. Adams, 371 

S.W.2d 637, 638 (Ky. 1963) (citations omitted), wherein the Court held a life 

tenant is required to pay taxes, insurance, repairs, and improvements on the 

property. Adams does not speak to Appellants’ argument that a life tenant is 

responsible for an estate’s debts unrelated to the real property in which he has the 

life estate. Furthermore, despite arguing the record does not support the court’s 

findings, Appellants cite to no specific evidence in the record showing waste by 
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Appellee.9 Therefore, no manifest injustice resulted from the circuit court’s 

finding that Appellee did not commit waste. 

Finally, Appellants allege the circuit court is without authority to 

apportion the proceeds from the sale of the Newsome Street property and, 

regardless of its authority, apportionment is unnecessary because they are entitled 

to all the proceeds from the sale of the Newsome Street property. They claim 

entitlement to the entirety of the proceeds because forfeiture of Appellee’s life 

estate is required by KRS 381.350. As we have previously affirmed the circuit 

court’s finding that Appellee did not commit waste, there is no basis for forfeiture 

of his life estate. Therefore, Appellants are not entitled to the entirety of the 

proceeds from the sale of the property. 

Furthermore, where the circuit court dismissed the matter without 

making any financial determinations, Appellants’ arguments regarding the court’s 

authority to apportion proceeds do not merit further review. 

CONCLUSION

Based on the foregoing, the orders of the Boyd Circuit Court are 

affirmed. 

ALL CONCUR.

 

9 Without the video recording, we are unable to review it for evidence of waste and must assume 

the testimony and evidence presented at trial support the circuit court’s findings. Gambrel v. 

Gambrel, 501 S.W.3d 900, 902 (Ky. App. 2016) (citation omitted). 
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BRIEFS FOR APPELLANTS:

Charles L. Douglas, Jr.

Greenup, Kentucky 

BRIEF FOR APPELLEE:

Gregory C. Shields

Catlettsburg, Kentucky