Jennifer J. Dunlap A/K/A Jennifer Faraj v. John R. Cowan

RENDERED: AUGUST 20, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-1654-MR
JENNIFER J. DUNLAP A/K/A
JENNIFER FARAJ APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 17-CI-02875
JOHN R. COWAN APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.
CLAYTON, CHIEF JUDGE: Jennifer J. Dunlap, a/k/a Jennifer J. Faraj
(“Dunlap”), appeals pro se from the trial court’s denial of her Kentucky Rule of
Civil Procedure (CR) 60.02 motion to vacate a default judgment, agreed amended
judgment, and order regarding garnishment compliance entered against her by the
Fayette Circuit Court. After review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arose from a civil action in which John R. Cowan
(“Cowan”) sought damages against Dunlap for losses resulting from Dunlap’s
alleged acts of theft and fraud. In his initial August 2017 complaint, Cowan
claimed that Dunlap had unlawfully altered and negotiated checks on his bank
account, unlawfully used his debit card without permission, stolen several
thousand dollars in cash and five classic guitars from his residence, and damaged
his Porsche 911 Carrera when she drove it without his permission.
After repeated warnings and admonitions from the trial court, the trial
court sua sponte issued an order sanctioning Dunlap under CR 37.02(2)(c) for
“abus[ing] the discovery process.” The trial court found that Dunlap had, willfully
and in bad faith, failed to comply with certain discovery requests, held her in
contempt of court, and entered a default judgment against her in the total amount
of $29,874.23 on February 5, 2018 (the “Default Judgment”). Specifically, the
trial court found that “throughout the pendency of this matter, [Dunlap] has abused
the discovery process, and continues to abuse the process despite warnings from
the Court; and, . . . that imposition of Default Judgment against her as a further
sanction under CR 37.02 is appropriate given the seriousness of [Dunlap’s] non-
compliance.”
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Dunlap filed a timely motion to reconsider the Default Judgment. The
trial court took the motion to reconsider under advisement and encouraged the
parties to work out a payment agreement to satisfy the Default Judgment.
Thereafter, the parties – both through counsel – entered into an agreed amended
judgment (the “Agreed Amended Judgment”) stipulating, among other things, that
Dunlap would pay Cowan $300 per month towards satisfaction of the amounts due
under the Default Judgment.
Thereafter, on June 22, 2018, Cowan filed a motion for garnishment
alleging that Dunlap had failed to comply with the parties’ agreed payment
schedule as set forth in the Agreed Amended Judgment. Cowan’s motion also
alleged that Dunlap Investments, LLC (“Dunlap LLC”), a company in which
Dunlap owned a 25% membership interest, had failed to comply with a
garnishment order served upon the company.
The trial court subsequently issued an order directing Dunlap LLC’s
agent to show cause why the company should not be held in contempt for not
complying with the garnishment order. In August 2018, Dunlap LLC, by counsel,
entered into an agreed order that the company would comply with the garnishment
order.
On September 5, 2018, Dunlap filed a pro se “Motion to Vacate and
Set Aside, Per Rule 60.02” (the “CR 60.02 motion”). The trial court subsequently
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denied Dunlap’s motion after a hearing, ruling “[t]he arguments made in
[Dunlap’s] motion are merely recitations of arguments she previously made to this
[c]ourt.” This appeal followed.
ANALYSIS
On appeal, Dunlap first argues that the trial court abused its discretion
when it failed to hold an evidentiary hearing before deciding the outcome of her
CR 60.02 motion. Dunlap argues that the court relied on alleged
misrepresentations of fact that Cowan submitted to the court in his initial
complaint when the trial court chose to deny her CR 60.02 motion, and that an
evidentiary hearing would have unearthed those misrepresentations.
Pursuant to CR 60.02, a “court may, upon such terms as are just,
relieve a party . . . from its final judgment, order, or proceeding[.]” Relief under
CR 60.02 is “an extraordinary and residual remedy to correct or vacate a judgment
upon facts or grounds, not appearing on the face of the record and not available by
appeal or otherwise, which were discovered after the rendition of the judgment
without fault of the party seeking relief.” Harris v. Commonwealth, 296 S.W.2d
700, 701 (Ky. 1956). CR 60.02 is not a “second bite at the apple.” Alvey v.
Commonwealth, 648 S.W.2d 858, 860 (Ky. 1983). A movant filing a CR 60.02
motion bears the burden of proving why he or she is entitled to such “special,
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extraordinary relief” not available in other proceedings. McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).
The standard of review when a trial court chooses to deny relief under
CR 60.02 is abuse of discretion. Kurtsinger v. Board of Trustees of Kentucky
Retirement Systems, 90 S.W.3d 454, 456 (Ky. 2002). As discussed by the
Kentucky Supreme Court, “CR 60.02 addresses itself to the broad discretion of the
trial court and for that reason, decisions rendered thereon are not disturbed unless
the trial judge abused his/her discretion.” Id. (citation omitted).
We agree with Cowan in questioning whether Dunlap’s argument that
she was entitled to an evidentiary hearing has been properly preserved for our
review. Nevertheless, we find that this assertion can be easily rejected as, contrary
to Dunlap’s claim, the language of CR 60.02 makes no mention of any requirement
for a trial court to hold an evidentiary hearing. Further, Dunlap has provided us
with no Kentucky decision that has held such an evidentiary hearing to be required.
Rather, many decisions specifically establish that there is no right to such a
hearing, especially where – as in this case – one was not requested. Land v.
Commonwealth, 986 S.W.2d 440, 442 (Ky. 1999). Rather, “[t]he decision to hold
an evidentiary hearing is within the trial court’s discretion[.]” Id. Moreover, the
record indicates that the trial court did hold a hearing on Dunlap’s CR 60.02
motion and entered into a dialogue with Dunlap indicating that he had read her
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motion and had concluded that there was no legal basis for same. Thus, we find no
abuse of discretion and affirm as to this issue.
Dunlap next argues that the pre- and post-judgment interest rate
contained in the Agreed Amended Order violated Kentucky law. However, under
Kentucky law, “[g]enerally, a consent judgment is not subject to appellate review,
although it may be attacked collaterally[.]” Browning v. Cornn, 240 S.W.3d 671,
674 (Ky. App. 2007). Indeed, “a party will not be permitted to complain on an
appeal of a judgment to which he [or she] consented, unless it is on the ground of
fraud or mistake.” Little v. Mann, 302 Ky. 661, 664, 195 S.W.2d 321, 323 (1946)
(citations omitted). This Court has previously opined that “[i]t is elementary that a
judgment entered by consent or agreement of the parties is not the judgment of the
court, except in the sense the court allowed it to be recorded.” Boone v. Ohio
Valley Fire & Marine Ins. Co.’s Receiver, 246 Ky. 489, 55 S.W.2d 374, 375
(1932) (citation omitted).
Further, Dunlap’s only allegations related to fraud or mistake as
related to the Agreed Amended Judgment was that it was unfair and that there were
no negotiations between the parties. However, Dunlap has not provided a single
citation to the record or any other evidence of fraud or mistake surrounding the
Agreed Amended Judgment. Thus, we find no error as to this issue.
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Lastly, Dunlap argues that her constitutional rights to due process and
equal protection were violated because, at times during the pendency of the
underlying litigation, the trial court signed and entered orders which she had not
been presented with beforehand. Specifically, Dunlap argues that Fayette Circuit
Court Local Rule (“RFCC”) 19 states that “[w]henever any ruling is made or
opinion rendered, an order or judgment in conformity therewith shall be attested by
counsel for all parties thereto as being in conformity to the ruling or opinion, and
shall be presented to the [c]ourt.” Nevertheless, the rule further states that RFCC
19 is not required where an order is entered against a party who is not represented
by counsel. In this case, Dunlap does not specify the judgments and orders to
which she is referring, and the record indicates that Dunlap was only represented
by an attorney during certain parts of the litigation. Thus, Dunlap has not proven
that RFCC 19 required such orders or judgments to be attested to as previously
described. Moreover, Dunlap fails to explain how the foregoing resulted in any
violation of her constitutional rights. Thus, we find no error and affirm.
CONCLUSION
For the foregoing reasons, we affirm the order of the Fayette Circuit
Court denying Dunlap’s CR 60.02 motion.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jennifer J. Dunlap a/k/a Jennifer Faraj, Gerry L. Calvert, II
pro se Lexington, Kentucky
Lexington, Kentucky
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