RENDERED: SEPTEMBER 11, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-001252-MR

BRENDA KILLIAN1 AND JACK 

SETTLES APPELLANTS 

v. 

APPEAL FROM LAUREL CIRCUIT COURT

HONORABLE MICHAEL O. CAPERTON, JUDGE

ACTION NO. 18-CI-00660 

BARBARA REDNOUR; CARL 

SETTLE;

2 AND CHARLES R. 

REDNOUR APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES.

 

1 We note that Appellants’ notice of appeal indicates “Brenda Kay Killion” in the case caption 

and “Brenda Killian” in the body of the notice. Her name appears as “Brenda Killion” in the 

complaint filed in circuit court, but both spellings appear throughout the record before us. We 

use the spelling “Killian” in this opinion consistent with the notice of appeal filed with this 

Court.

2 We note that Appellants’ notice of appeal indicates “Carl Settle” in both the caption and the 

body and his surname appears as “Settle” throughout the record before us. 
-2-

KRAMER, JUDGE: Brenda Killian and Jack Settles appeal from an order of the 

Laurel Circuit Court dismissing their complaint as untimely filed. Upon review, 

we affirm.

The following facts are not in dispute: On or about September 15, 

2008, Earl Settles granted power of attorney to two of his children, Barbara 

Rednour and Carl Settle. On September 22, 2008, Carl, as Earl’s attorney-in-fact, 

transferred a parcel of Earl’s real property to Barbara. The transfer was without 

monetary consideration. The deed was filed of record on September 29, 2008. 

Earl died intestate on September 1, 2011. On December 4, 2017, two of Earl’s 

other children, Brenda Killian and Jack Settles (“Appellants”), qualified as and 

were appointed personal representatives of Earl’s estate. On August 9, 2018, the 

underlying lawsuit was filed, alleging breach of fiduciary duty by Barbara, her 

husband Charles, and Carl. The complaint demanded an accounting of the 

financial activities of Barbara and Carl as Earl’s attorneys-in-fact. In May 2019, 

Carl, Charles, and Barbara filed a joint motion to dismiss the complaint as barred 

by the five-year statute of limitations imposed by KRS3 413.120(6) for breach of 

fiduciary duty. After hearing oral arguments and allowing time for briefing, the 

circuit court granted the motion. Appellants filed a timely motion to alter, amend, 

 

3 Kentucky Revised Statute.
-3-

or vacate the court’s order. Although the circuit court agreed that KRS 413.180(2) 

was inapplicable to the facts of the case, it otherwise denied the motion. This 

appeal followed.

At the outset, we note that Appellants’ brief is noncompliant in 

several substantive ways. In contravention of CR4 76.12(4)(c)(v), they do not have 

a preservation statement at the beginning of each argument. They make no 

citations to the record whatsoever. It is even questionable whether they have cited 

legal authority in support of their arguments. Indeed, the only caselaw cited by 

Appellants appear in their final “argument” and are cases cited by the circuit court 

or Appellees, in an attempt to distinguish those cases from the case at hand. CR 

76.12(4)(c)(iv) and (v) require ample references to the record and citation to 

authority supporting each argument. 

The Court recently addressed these issues in Curty v. Norton 

Healthcare, Inc., 561 S.W.3d 374 (Ky. App. 2018). Given the length at which the 

Court in Curty urged compliance with CR 76.12(4)(c), we quote the rationale for 

the rule and the Court’s warnings that leniency should not be presumed. 

CR 76.12(4)(c)[(v)] in providing that an 

appellate brief’s contents must contain at the 

beginning of each argument a reference to 

the record showing whether the issue was 

preserved for review and in what manner 

 

4 Kentucky Rule of Civil Procedure.
-4-

emphasizes the importance of the firmly 

established rule that the trial court should 

first be given the opportunity to rule on 

questions before they are available for 

appellate review. It is only to avert a 

manifest injustice that this court will 

entertain an argument not presented to the 

trial court. (citations omitted).

Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) 

(quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky. 

App. 1987)). We require a statement of preservation:

so that we, the reviewing Court, can be 

confident the issue was properly presented 

to the trial court and therefore, is appropriate 

for our consideration. It also has a bearing 

on whether we employ the recognized 

standard of review, or in the case of an 

unpreserved error, whether palpable error 

review is being requested and may be 

granted.

Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 

2012). . . .

 . . . .

 Failing to comply with the civil rules is an 

unnecessary risk the appellate advocate should not 

chance. Compliance with CR 76.12 is mandatory. See

Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). 

Although noncompliance with CR 76.12 is not 

automatically fatal, we would be well within our 

discretion to strike Curty’s brief or dismiss her appeal for 

her attorney’s failure to comply. Elwell. While we have 

chosen not to impose such a harsh sanction, we strongly 

suggest counsel familiarize himself with the rules of 

appellate practice and caution counsel such latitude may 

not be extended in the future.
-5-

Curty, 561 S.W.3d at 377-78 (emphasis added).

Two years have passed since the Curty Opinion, and the brief 

deficiencies have not greatly declined. In June of this year, our Court noted as 

follows:

This Court is weary of the need to render opinions 

such as this one, necessitated as they are by the failure of 

appellate advocates to follow rules of appellate advocacy. 

In just the last two years, at least one hundred and one 

(101) Kentucky appellate opinions were rendered in 

which an attorney’s carelessness made appellate rule 

violations an issue in his or her client’s case. The 

prodigious number of attorneys appearing in Kentucky’s 

appellate courts lacking the skill, will, or interest in 

following procedural rules is growing. In 2005, only two 

(2) Kentucky opinions addressed appellate rules 

violations. In 2010, the number jumped to eleven (11). 

In 2015, the number rose slightly to fourteen (14). The 

average for the last two years is more than three times 

that. If this is not a crisis yet, it soon will be if trends do 

not reverse.

We will not reiterate all that has been said too 

many times before on this subject. If a lawyer is curious 

about the importance of these procedural rules or the 

practical reasons for following them, we recommend 

reading these opinions in chronological order: 

Commonwealth v. Roth, 567 S.W.3d 591 (Ky. 2019); 

Koester v. Koester, 569 S.W.3d 412 (Ky. App. 2019); 

Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010); Elwell 

v. Stone, 799 S.W.2d 46 (Ky. App. 1990).
-6-

Clark v. Workman, ___ S.W.3d ___, 2020 WL 3582597, at *1-2 (Ky. App. Jun. 26, 

2020) (footnotes omitted).5

Appellants’ counsel has appeared in forty or more cases before this 

Court. This is not the first time the Court has cautioned counsel regarding 

compliance with CR 76.12. Counsel represented Appellant Heidi Weatherly in 

Weatherly v. Lake Cumberland Community Association, Inc., No. 2015-CA001468-MR, 2017 WL 3129189 (Ky. App. Jul. 21, 2017). In that case, we opined 

that

Heidi’s appellate brief includes no citation to any portion 

of the record, much less any portion of the record 

providing evidence that a genuine issue of material fact 

exists with respect to those two material elements. CR 

76.12(4)(c)(v) states, in part, that an appellant’s brief 

shall 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 . . . .” (Emphasis 

added.) Because Heidi’s brief lacks any supportive 

references to the record, it does not comply with CR 

76.12(4)(c)(v). It is not the responsibility of this Court to 

search the record to find support for her contentions, 

assuming it exists. Smith v. Smith, 235 S.W.3d 1 (Ky. 

App. 2006). Rather than ordering her brief stricken for 

this deficiency, however, a more appropriate penalty in 

this instance is to refuse to consider the merits of her 

contentions regarding the dismissal of her abuse of 

process claims. Cherry v. Augustus, 245 S.W.3d 766, 

781 (Ky. App. 2006).

 

5 This case has been designated “To Be Published” and became final on August 11, 2020.
-7-

Id. at *2 (footnote omitted).

In a footnote in the above paragraph in the Weatherly Opinion, we 

noted that due to Appellant’s noncompliance with CR 76.12(4)(c)(v), Appellees 

jointly moved to dismiss her appeal. This Court denied that motion by separate 

order but would have been well within its discretion to have granted it.

As the caselaw has made perfectly clear, we would be well within our

discretion in the present case to strike Appellants’ brief as a sanction for failure to 

comply with CR 76.12. But, the difficulty in this case (and others) is that clients 

are the ones who are sanctioned by striking the brief and dismissing the appeal. 

On the other hand, as examined supra, the Court is continually in the position of 

reminding attorneys about deficiencies in briefs and stating that counsel may not 

be so lucky the proverbial “next time.” Given here, however, where counsel 

frequently practices in this Court and where counsel has been cautioned previously 

about appellate rule compliance, we believe we have reached the proverbial next 

time. Given only because the record is not substantially voluminous, we will 

engage in a review of the matter to determine whether any manifest injustice 

exists, as to not too severely sanction Appellants for the failings of counsel. Upon 

review, we discern no manifest injustice in the circuit court’s decision. 

Appellants urge us to interpret KRS 413.180(1) in a manner that 

would allow the personal representative of an estate to bring an action within one 
-8-

year of appointment regardless of whether any underlying statute of limitations had 

expired on the cause of action. We decline to do so. 

KRS 413.180(1) states,

If a person entitled to bring any action mentioned in KRS 

413.090 to 413.160 dies before the expiration of the time 

limited for its commencement and the cause of action 

survives, the action may be brought by his personal 

representative after the expiration of that time, if 

commenced within one (1) year after the qualification of 

the representative. 

Although Appellants’ complaint did not list a statutory cause of action, the circuit 

court found, and the parties do not dispute, that KRS 413.120(6) applies (i.e.,

breach of fiduciary duty), and there is a five-year statute of limitations. However, 

Appellants argue that KRS 413.180(1) allows the personal representative of an 

estate to bring an action within one year of appointment, regardless if the statute of 

limitations has long since expired. We disagree. 

In the instant action, there is no dispute that the alleged cause of 

action accrued in September 2008, when Earl’s real property was transferred to 

Barbara by Carl, acting as attorney-in-fact. Therefore, the statute of limitations 

would have expired in September 2013, and this was unaffected by Earl’s death in 

2011. The caselaw dictates that KRS 413.180(1) would have been applicable to 

the facts of this case only if the personal representative had been appointed within 

one year of September 2013. Because the personal representative was not 
-9-

appointed until December 4, 2017, the action for breach of fiduciary duty is timebarred and KRS 413.180(1) is inapplicable.

Appellants attempt to distinguish the cases that the circuit court and 

Appellees relied upon. We conclude that those arguments fail to show a basis for 

relief. Those cases include Fix’s Executor v. Cook, 192 Ky. 731, 234 S.W. 453 

(1921) and Halcomb v. Cornett, 146 Ky. 339, 142 S.W. 686 (1912). The Fix’s 

Executor Court undertook an in-depth analysis of Halcomb, 142 S.W. 686. The 

decedent in Fix’s Executor was the creditor on a promissory note (i.e., a fifteenyear statute of limitations to bring suit to collect); however, “the nominated 

executor failed to qualify for eleven years after the death of Fix and six years after 

the probate of his will, and about two years after the period of limitation expired, 

and neither he nor any of the beneficiaries under that will took any steps looking to 

his qualification, or that of any other person, until after the period of limitation had 

expired.” 234 S.W. at 455. In examining the holding in Halcomb, our highest 

Court found 

[i]n Halcomb v. Cornett, when the court said, “The 

creditor has always 15 years in a case like this to bring 

his suit, but if he dies within the 15 years, his personal 

representative may bring the action within one year after 

he qualifies, although this may be beyond the 15 years,” 

it had in mind a case like the one it was dealing with; that 

is, where the qualification of the personal representative 

had taken place before the limitation period had expired. 

That is apparent from the following part of the opinion, 

wherein it is said that, if the personal representative 
-10-

qualifies more than a year before the expiration of the 

limitation period, he must bring the suit within the 

original period, but, if he qualifies at any time within one 

year of the expiration of the limitation period, he has one 

year from his qualification in which to file the suit, even 

though that extends beyond the ordinary limitation 

period.

Id. (emphasis added).

In examining the predecessor to KRS 413.180(1),6the Court reiterated 

that “it is our view that the section quoted applies only to the qualifications of 

personal representatives before the statutory period has expired, and has no 

 

6 Looking to the predecessor of KRS 413.180(1), which was known at the time as Section 2526 

of the Kentucky Statutes (Russell’s St. § 192), our highest Court has also held that:

The death of the injured party does not stop the running of the 

statute; therefore, unless a personal representative shall qualify 

within one year from the injury, the action is barred. If he does so 

qualify, he is given another year within which to bring the action. 

The last section is entirely silent as to when there is to be a 

qualification. It permits the personal representative to bring his 

suit after the first year is out, but it in no way affects the question 

as to when he is to qualify in order to stop the running of the

statute. As we have already seen, the bar is complete unless there 

is a qualification within a year from the accrual of the cause of 

action. . . . As we have seen, the death does not stop the running of 

the statute. This is held in an unbroken line of decisions. Without 

a qualification, then, the bar is complete. Therefore the 

qualification, to be effectual, must be within the year, and that, 

being within the year, the suit may be brought, as the last section 

says, after the expiration of the year, if commenced within one 

year after the qualification. No suit can be maintained by one who 

has waited until the bar is complete before bringing his action.

Louisville & N.R. Co. v. Brantley’s Adm’r, 106 Ky. 849, 51 S.W. 585, 586 (1899) (emphasis 

added).
-11-

application to a qualification by a personal representative after the limitation period 

has expired.” Id. 

In the instant action, Earl passed away on September 1, 2011. At the 

time of his death, there would have been just over two years left before expiration 

of the statute of limitations for breach of fiduciary duty. However, no one 

attempted to qualify as the personal representative of Earl’s estate until over six 

years after his death. The reasons for the delay are unknown, but they are also 

irrelevant. By the time Appellants qualified as personal representatives of Earl’s 

estate, the five-year statute of limitations had long since expired. Appellants argue 

that the circuit court’s interpretation of KRS 413.180(1) unfairly shortens the 

statute of limitations, but this is a misinterpretation of the caselaw. Further, the 

interpretation of the statute urged by Appellants would impermissibly extend any 

applicable statute of limitations by an undetermined length of time. Here, 

Appellants seek an extension of almost five years.7 We agree with the high 

Court’s reasoning in Fix’s Executor and conclude that such a delay is beyond the 

purpose of the legislation. See id., 234 S.W. at 455.8 

 

7 From the time that the statute of limitations would have expired in September 2013 until suit 

was filed in August 2018.

8

See also Hodges’ Administrator v. Asher, 224 Ky. 431, 6 S.W.2d 451 (1928). In that case, our 

highest Court held that an action filed in 1927 to collect on promissory notes dating from 1905 

was untimely even though the current administrator of the estate filed within one year of 

appointment.
-12-

There clearly was no manifest injustice in this case. Accordingly, we 

affirm the Laurel Circuit Court. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Tommie L. Weatherly

London, Kentucky

BRIEF FOR APPELLEES:

Darrell L. Saunders

Amanda L. Hill

Corbin, Kentucky