Roy Stewart v. Willard McQueen ( 2022 )

RENDERED: JANUARY 7, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0289-MR
ROY STEWART APPELLANT
APPEAL FROM JACKSON CIRCUIT COURT
v. HONORABLE OSCAR GAYLE HOUSE, JUDGE
ACTION NO. 20-CI-00042
WILLARD MCQUEEN AND
TERESA HAMMONS APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
CLAYTON, CHIEF JUDGE: Roy Stewart filed this appeal seeking this Court’s
reversal of the Jackson Circuit Court’s default judgment in favor of Willard
McQueen. Stewart claims that McQueen never served Stewart with process and
that Stewart never entered an appearance in the action. Thus, Stewart claims that
the default judgment is void for lack of personal jurisdiction. Finding no error, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 5, 2020, McQueen filed a complaint in Jackson Circuit
Court against Stewart and Teresa Hammons. McQueen alleged that he incurred
severe injuries when multiple dogs owned by Stewart and Hammons attacked
McQueen while lawfully on their property.
After numerous attempts to serve Stewart and Hammons via the
Jackson County Sheriff’s Office, McQueen filed a motion on June 12, 2020,
requesting the circuit court to appoint a temporary special bailiff. McQueen
indicated in his motion his belief that Stewart and Hammons were avoiding service
of McQueen’s complaint. According to the motion’s certificate of service,
McQueen’s counsel mailed a copy of the motion to Stewart’s home address.
The circuit court held a hearing on McQueen’s motion during a
motion hour on July 7, 2020. Although neither party provided a video recording or
transcript of the hearing for the record, both parties provided short summaries of
the hearing in their briefs. McQueen’s counsel appeared at the hearing virtually
via Microsoft Teams due to the COVID-19 pandemic and presented his motion to
the circuit court to appoint a special bailiff for service of process upon both
Stewart and Hammons. In their briefs, both parties also indicated that Stewart was
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physically present in the courtroom for the hearing. McQueen states in his brief
that the court explained to Stewart at the hearing that McQueen was attempting to
effectuate service of the complaint upon him. Both parties agree that the court
asked Stewart if McQueen had served him, and Stewart replied that he had not.
Thereafter, the court indicated that it was granting the motion for the appointment
of a special bailiff. The circuit court subsequently entered an order on July 16,
2020, confirming that it was appointing a special bailiff for service on Stewart.
The record includes proof of service from the special bailiff stating
that a copy of the summons and complaint were “delivered” to Stewart “at his
home” on July 20, 2020. The proof of service also indicated that Stewart “refused
to sign.” While the special bailiff signed the proof of service, he did not provide a
supporting affidavit as required from special bailiffs under Kentucky Revised
Statutes (“KRS”) 454.145.
McQueen subsequently filed a motion for default judgment on
November 10, 2020. In his motion, McQueen alleged that the court-appointed
special bailiff attempted service on Stewart on July 22, 2020, but that Stewart had
concealed himself from the bailiff and had attempted to have his dogs attack the
special bailiff. The motion further indicated that the special bailiff had ultimately
left a signed copy of the complaint and civil summons on a vehicle located at
Stewart’s place of residence. Finally, McQueen alleged that Stewart had filed no
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responsive pleading and more than twenty days had passed since Stewart “entered
his appearance before the circuit court” at the special bailiff hearing.
The circuit court subsequently entered a default judgment against
Stewart on December 3, 2020. In the order, the circuit court found that Stewart
had entered an appearance with the court at the special bailiff hearing, that Stewart
had waived any defense of insufficiency of service of process, and that Stewart had
filed no responsive pleading to McQueen’s complaint.
Thereafter, the circuit court held a hearing on damages on February 2,
2021, and ultimately entered an order granting default judgment damages in favor
of McQueen for $298,914.00 plus costs of $405.00 and post-judgment interest.
Stewart did not file a motion to set aside the default judgment under Kentucky
Rule of Civil Procedure (“CR”) 55.02, opting instead to file a direct appeal.
ANALYSIS
a. Standard of Review
CR 55.02 permits a party against whom a trial court enters a default
judgment to seek relief directly from the trial court. See CR 55.02 (“For good
cause shown the court may set aside a judgment by default in accordance with
Rule 60.02.”). However, instead of attempting to have the judgment set aside, a
party may pursue a direct appeal from a default judgment. Jeffrey v. Jeffrey, 153
S.W.3d 849, 851 (Ky. App. 2004).
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However, it stands to reason that an appellate court’s standard of
review of the circuit court’s action differs depending on which avenue a litigant
pursues. Id. (citations omitted). When a defendant against whom a default
judgment has been obtained files an immediate appeal without seeking relief from
the circuit court’s default judgment by way of a motion pursuant to CR 55.02 and
CR 60.02, the appellate court’s review is “limited to determining whether the
pleadings were sufficient to uphold the judgment, or whether the appellant was
actually in default.” Mingey v. Cline Leasing Service, Inc., 707 S.W.2d 794, 796
(Ky. App. 1986) (citation omitted).
b. Discussion
Stewart’s primary argument on appeal is that the circuit court erred in
granting a default judgment in McQueen’s favor because McQueen had not
personally served Stewart with the summons and complaint, and Stewart had not
entered an appearance in the action. Thus, the circuit court had not obtained
personal jurisdiction over him.
As previously discussed, we must first determine “whether the
pleadings were sufficient to uphold the judgment[.]” Id. While “a default
judgment may not be based on a complaint which completely fails to state a cause
of action, . . . it is also true that much leniency is shown in construing such a
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complaint[.]” Crowder v. American Mut. Liability Ins. Co., 379 S.W.2d 236, 238
(Ky. 1964).
In this case, a review of the pleadings reveals them sufficient to
uphold the circuit court’s default judgment entry. McQueen’s complaint alleged
that he, Stewart, and Hammons were residents of Jackson County and that
McQueen was claiming damages above the minimum amount necessary to invoke
the circuit court’s jurisdiction. McQueen’s complaint further alleged that
McQueen was lawfully at Stewart’s premises; that multiple dogs owned by Stewart
and Hammons attacked and bit McQueen; that the dogs were vicious by nature and
that Stewart and Hammons had notice of the dogs’ vicious nature; that Stewart and
Hammons wrongfully, unlawfully, and injuriously kept and harbored the dogs and
wrongfully and negligently allowed the dogs to cause McQueen’s injuries; and that
Stewart’s and Hammons’s failure to confine or restrain the dogs was the direct and
proximate cause of McQueen’s severe physical and emotional injuries. The
complaint further alleged that Stewart and Hammons violated KRS 258.235 by
failing to control their animals properly. Consequently, the complaint indicated
that McQueen sought damages against Hammons and Stewart. The preceding
language evidences “a short and plain statement of the claim showing that the
pleader is entitled to relief and . . . a demand for judgment for the relief to which he
deems himself entitled.” CR 8.01.
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We next turn to the circumstances under which a trial court may enter
a default judgment. CR 55.01. Those circumstances are either when a defendant
does not appear in an action or when a defendant who has appeared fails to defend
as the civil rules require. See CR 55.01 (“When a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend as provided
by these rules, the party entitled to a judgment by default shall apply to the court
therefor.”).
It strains credulity to conclude that McQueen was not entitled to a
default judgment when the record reflects that Stewart willfully and purposely
avoided service of process, even potentially endangering the physical well-being of
the special bailiff in his attempts to personally serve Stewart with process. The
foregoing, coupled with Stewart’s presence at – and presumptive notice of – the
special bailiff hearing and notification by the circuit court that McQueen was
attempting to effectuate personal service on Stewart, provide no excuse or
explanation for Stewart’s complete failure to respond to any of McQueen’s
pleadings. McQueen provided Stewart with notice of every pleading that
McQueen filed, and the circuit court clerk provided Stewart with a copy of every
order entered by the circuit court. Finally, McQueen provided ample notice to
Stewart of his intent to file a motion for default judgment under CR 55.01 – if
indeed such notice was even required – as the clerk sent a copy of McQueen’s
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motion for default judgment to Stewart on November 6, 2020 and the circuit court
did not hold a hearing on the motion until December 1, 2020, well after the rule’s
three-day requirement for those litigants who have appeared in the action. See
55.01.
Therefore, applying the standard discussed in Jeffrey, supra, we find
that the pleadings were sufficient to uphold the judgment and that Stewart was in
default under the provisions of CR 55.01.
CONCLUSION
For the foregoing reasons, we affirm the Jackson Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Edward L. Cooley Brittany N. Riley
Nicole Iuliano London, Kentucky
Ryan Robey
Lexington, Kentucky
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