Tracy Davis v. Steavon Deonna Stokes ( 2021 )

RENDERED: MARCH 19, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1183-MR
TRACY DAVIS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANNIE O’CONNELL, JUDGE
ACTION NO. 19-CI-002252
STEAVON DEONNA STOKES APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND MCNEILL, JUDGES.
MCNEILL, JUDGE: The appellant, Tracy Davis (Davis), contracted with the
appellee, Steavon Deonna Stokes (Stokes), for Stokes to perform management
services for Davis’ campaign for the office of Jefferson District Court judge.
Stokes presented Davis with a final invoice totaling $22,000.00. Davis never paid.
Stokes unsuccessfully attempted to collect that debt through non-judicial means
over the course of several months. Stokes subsequently initiated a suit in Jefferson
Circuit Court to enforce the contract. She retained the Jefferson County Sheriff’s
Office to personally serve Davis with the complaint and summons pursuant to CR1
4.
The Sheriff’s office unsuccessfully attempted to serve Davis at her
home address on six separate occasions resulting in a notice of return stating:
“RETURNED – AVOIDING.” Stokes then attempted service through certified
mail at Davis’ place of business, the Transit Authority of River City (TARC). The
certified mail “green card” receipt contains the signature of “Joshua D.,” whose job
title and position at TARC are unknown. Eighty days after filing suit and with no
response from Davis, Stokes filed a motion for default judgment, which was
granted by the trial court. Stokes also obtained an order garnishing Davis’ wages.2
Having received the notice of the wage garnishment and default judgment, Davis
filed a motion to set aside the default judgment. A hearing was held on August 5,
2019 during which counsel for both parties were present. The trial court denied the
motion from the bench without issuing written findings. Davis now appeals to this
Court as a matter of right. She specifically appeals from the default judgment and
the denial of her motion to set aside the default judgment. For the following
reasons, we affirm the trial court.
1 Kentucky Rules of Civil Procedure.
2
Stokes alleges that she is owed an outstanding balance of $13,352.81 for services rendered, which
constitutes the $22,000.00 final invoice sum less the wage garnishment payments she has received.
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I. STANDARD OF REVIEW
We review a trial court’s entry of a default judgment for an abuse of
discretion. Howard v. Fountain, 749 S.W.2d 690, 692 (Ky. App. 1988).
“Although default judgments are not favored, trial courts possess broad discretion
in considering motions to set them aside and we will not disturb the exercise of that
discretion absent abuse.” Id. A trial court does not abuse its discretion unless its
decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004) (citation
omitted).
CR 55.02 provides: “For good cause shown the court may set aside a
judgment by default in accordance with Rule 60.02.” (Emphasis added.) CR
60.02 provides in relevant part: “On motion a court may, upon such terms as are
just, relieve a party or his legal representative from its final judgment, order, or
proceeding upon the following grounds: (a) mistake, inadvertence, surprise or
excusable neglect . . . or (f) any other reason of an extraordinary nature justifying
relief.” “We review the denial of a CR 60.02 motion under an abuse of discretion
standard.” Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (citing
Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996)). With these standards
in mind, we now turn to the merits of the case.
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II. ANALYSIS
Davis’ argument on appeal is that the trial court erred in granting a
default judgment because she had not been personally served with the complaint.
For the following reasons, we disagree.
In Perry v. Central Bank and Trust Company, this Court observed that
“[f]actors to consider in deciding whether to set aside a judgment are: (1) valid
excuse for default, (2) meritorious defense, and (3) absence of prejudice to the
other party.” 812 S.W.2d 166, 170 (Ky. App. 1991) (citing 7 W. BERTELSMAN
AND K. PHILIPPS, KENTUCKY PRACTICE, CR 55.02, comment 2 (4th ed. 1984)). In
VerraLab Ja LLC v. Cemerlic, the Kentucky Supreme Court further explained
what constitutes good cause for setting aside a default judgment:
“Good cause is not mere inattention on the part of the
defendant . . . .” Tennill v. Talai, 277 S.W.3d 248, 250
(Ky. 2009). More recently, we stated, “[t]o establish
‘good cause,’ the party seeking relief from default
judgment must demonstrate that it is not guilty of
unreasonable delay or neglect.” Sunz Ins. Co. v. Decker,
2017-SC-000257-WC, 2018 WL 1960571, at *5 (Ky.
Apr. 26, 2018) (citing Terrafirma, Inc. v. Krogdahl, 380
S.W.2d 86 (Ky. 1964)).
584 S.W.3d 284, 287 (Ky. 2019).
Davis specifically contends that she was not properly served under CR
4.04(9), which provides in pertinent part: “Service may be made upon . . . a
resident individual who transacts business through an office or agency in any
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action growing out of or connected with the business of such office or agency, by
serving the person in charge thereof.” As previously stated, the signature on the
certified mail delivery card in this case stated “Joshua D.” Davis argues that
because there was no evidence that “Joshua D.” was in charge of the office or
agency where the complaint and summons were delivered, service under CR
4.04(9) was ineffective. This rule is inapplicable to the present case because this
litigation has nothing to do with Davis’ employment at TARC, where the
documents were delivered and signed for by “Joshua D.” Rather, we believe that
the evidence of multiple attempts at service by the Jefferson County Sheriff’s
Office is dispositive here.
Regarding personal service, CR 4.04(2) provides in relevant part that
“[s]ervice shall be made upon an individual within this Commonwealth . . . by
delivering a copy of the summons and of the complaint (or other initiating
document) to him personally or, if acceptance is refused by offering personal
delivery to such person . . . .” (Emphasis added.) In the present case, the record
indicates that Davis avoided personal service. Case law also proves instructive.
For example, the Cemerlic Court observed that “[i]nattention does not
equate to good cause; therefore, an affirmative action taken to avoid service of
process (such as the refusal of certified mail in this case) is abusive of the system
and certainly falls short of good cause.” 584 S.W.3d at 288 (emphasis added).
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Similar to Cemerlic, the record indicates that Davis avoided service by the
Sheriff’s Office which, after multiple attempts to serve Davis at her home address,
issued a notice of return stating: “RETURNED – AVOIDING.” Notably, Davis
has made no attempt to explain this avoidance. Like the defendant in Cemerlic,
Davis “cannot avoid service, claim it was ineffective . . . and then succeed in
having the trial court’s discretionary act in denying [her] attempt for another bite at
the apple overturned on appeal.” Id. In sum, Davis has failed to demonstrate a
valid excuse for her default, failed to adequately articulate a meritorious defense,
and has not even attempted to address potential prejudice to Stokes if we were to
set aside the default judgment. See Perry, 812 S.W.2d at 170. Therefore, the trial
court did not abuse its discretion in entering a default judgment and in denying
Davis’ motion to set aside that default judgment.
III. CONCLUSION
For the foregoing reasons, we hereby affirm the judgment of the Jefferson
Circuit Court.
CLAYTON, CHIEF JUDGE, CONCURS.
KRAMER, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Timothy Denison Briana N. Lathon
Louisville, Kentucky Louisville, Kentucky
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