CUMMINGS V. PITMAN
CIVIL PROCEDURE: Personal jurisdiction (long arm statute)
PUBLISHED: REVERSING AND REMANDING
OPINION BY LAMBERT
DATE RENDERED: 11/21/2007
Cummings appeals COA’s decision affirming the TC’s determination that it lacked personal jurisdiction over Andrew Boose, a nonresident New York attorney, on the claims relating to his role as trustee of a trust agreement he had drafted for his client and Cummings’ mother, Betty Kern Miller. Miller was the only child of Jerome Kern, a renowned composer and Oscar winner, and inherited the rights to her father’s intellectual property upon his death. Miller moved to Danville and became a client of Defendant Boose in 1991 for the purpose of managing her property rights and numerous royalty agreements. Upon the advice of Boose, Miller had him draft a trust agreement to handle the disposition of the royalities and copyrights upon her death. The trust named Miller as grantor and Miller as well as Boose as co-trustees. Upon Miller’s death in 1996, Boose continued to manage the trust as sole trustee and now the sole holder of all legal rights to the trust intellectual property. Another Defendant, Attorney John Brooks Pitman of Danville, was appointed executor of Miller’s estate and from mid 1997 to mid 2002 transferred over $3.1 million dollars in literary property royalties from her estate to Boose as sole trustee pursuant to the terms of the trust agreement. Cummings filed suit in April 1998, and included claims against Boose in both his individual capacity and his role as trustee of the trust by arguing that Miller suffered from diminished capacity and that Boose exercised undue influence over her by having her execute a codicil to her will that transferred all legal rights to the literary works to the trust over which he had sole authority and control. In response, Boose denied the allegations and argued that there was a distinction between the claims against him in his individual capacity (relating to his services as Miller’s attorney) and the claims against him as trustee, and that he did not have sufficient contacts with Kentucky in his trustee role to render personal jurisdiction over him pursuant to the long-arm statute (KRS 454.210). The TC agreed and dismissed the claims against Boose as trustee. Cummings appealed and the COA affirmed, holding that as trustee Boose had not purposely availed himself of the privileges of acting in Kentucky. Cummings again appealed and the SC granted review.
The SC ultimately determined that their review of the relevant statutes, case law and Boose’s continuing course of conduct of record made it impossible to distinguish between Boose’s activities as an attorney versus those as trustee. The SC highlighted the personal visits Boose made to Miller in Kentucky prior to her engagement of his services and subsequently at the time of Miller’s execution of the trust agreement. Boose also had numerous telephone conversations and exchanged letters with Miller over the course of his representation of her, corresponded with Attorney Pitman (before Miller’s death) about Kentucky estate law as well as drafted over 90 letters to Executor Pitman following her death concerning distribution of estate funds to the trust. Boose was even one of the two required attesting witnesses to Miller’s execution of the trust agreement. The SC disagreed with Boose and the COA that the only act he committed as trustee prior to Miller’s death was the trust agreement signing, instead noting that the clear language of the agreement stated that it became effectively immediately as a revocable, inter vivos trust and not later once funded upon her death. The SC noted that this so-called dry trust still imposed fiduciary duties upon the trustees the moment it was created.
The SC then compares Boose’s activities of record to the legal requirements of Kentucky’s long-arm statute in an effort to determine whether exercising personal jurisdiction over Boose for all claims violates constitutional due process. Importantly, the SC declared that they will continue to employ the 3-prong test set forth in Wilson v. Case, 85 S.W.3d 589 (Ky. 2002) to determine the outer limits of personal jurisdiction, always being mindful of the US Supreme Court’s overarching requirement of fair play and substantial justice. Upon conducting such an analysis in the present case, the SC appeared to have little trouble in unanimously concluding that Boose’s actions, no matter what role attributed to, demonstrated a voluntary willingness to avail himself of the privilege of acting within the forum state and went well beyond merely "administering" Miller’s trust. The operative facts of the controversy clearly related to actions that occurred in the forum state, and the exercise of jurisdiction over Boose in both of his capacities is reasonable. The SC concluded, "The facts alleged by Ms. Cummings show a course of conduct by Mr. Boose beginning with his representation of Ms. Miller, continuing with his planning of her estate and trust, through his appointment as trustee of the Miller trust and culminating in alleged conflicts of interest and claims of "a scheme for acquisition of ownership" of the decedent’s property. This course of conduct established the requisite minimum contacts with the Commonwealth of Kentucky such that the Boyle Circuit Court was authorized to exercise personal jurisdiction over Mr. Boose as trustee via the Kentucky long-arm statute, KRS 454.210."