Larry Dale Foley, Jr. v. Sarah Foley, as Next Friend and Mother for the Benefit of Ally Foley, an Unmarried Infant, 12 Years of Age

RENDERED: JULY 22, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1170-MR
LARRY DALE FOLEY, JR. APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
v. HONORABLE BRANDY OLIVER BROWN, JUDGE
ACTION NO. 20-CI-00435
S.F., AS NEXT FRIEND AND
MOTHER FOR THE BENEFIT OF
A.F., AN UNMARRIED INFANT, 12
YEARS OF AGE APPELLEE
OPINION
VACATING
AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND DIXON, JUDGES.
COMBS, JUDGE: Larry Dale Foley, Jr., appeals a judgment of the Madison
Circuit Court entered on September 1, 2021, awarding to S.F., as next friend and
mother of A.F., tort damages in the amount of $11,150,000.00, plus interest and
court costs. After our review, we are compelled to vacate and remand.
On January 6, 2020, Larry was arrested by federal agents on charges
of possession of child pornography. He has been in federal custody since that
time. Larry’s initial indictment was superseded, and he was ultimately charged
with the offense of production of child pornography. On September 1, 2020, Larry
signed a plea agreement indicating that he engaged in sexually explicit conduct
with A.F., a minor, for the purpose of producing a visual depiction of that conduct.
On September 18, 2020, S.F. (Mother), initiated a tort action seeking
damages for the sex abuse perpetrated by Larry against A.F. On October 2, 2020,
while he was housed at the Grayson County Detention Center, Larry was served
with a summons and a copy of the complaint against him. After Larry was served
with process, Mother filed a motion for default judgment; for partial summary
judgment; or, alternatively, for the appointment of a guardian ad litem. Following
a hearing conducted on November 19, 2020, the circuit court appointed Attorney
L.B. Lominac to serve as guardian ad litem to represent Larry.
On December 10, 2020, Larry was sentenced by the federal district
court to the statutory maximum of 30-years’ imprisonment. A restitution hearing
was conducted by the federal court on January 25, 2021. Based upon testimony
provided by Mother related to the anticipated costs and expense of counseling and
therapy until A.F. reached the age of majority, the court ordered Larry to make
restitution in the amount of $14,757.62.
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On March 15, 2021, Mother renewed her motion for default judgment
or partial summary judgment. On April 7, 2021, Attorney Lominac filed an
answer to the complaint; a guardian ad litem report; and a response to the motion
filed by Mother. In his report, Attorney Lominac advised the circuit court that
Larry intended to seek relief from the judgment of conviction based upon an
allegation that he had not been afforded effective assistance of counsel in the
criminal proceedings conducted in federal court. The answer filed by Attorney
Lominac to the civil complaint specifically denied that Larry had sexually abused
A.F. and asserted that Larry’s guilty plea in federal court had been coerced. In
response to the motion for partial summary judgment, Attorney Lominac argued
that a genuine issue of material fact existed precluding summary judgment because
of Larry’s denial of the allegations and his contention with respect to the guilty
plea.
On April 8, 2021, the circuit court conducted a hearing on the motion
for summary judgment. At the hearing, Attorney Lominac reiterated Larry’s denial
of the allegations against him and his contention that the guilty plea was not
voluntary and must be set aside. Nevertheless, Attorney Lominac questioned his
role as guardian ad litem for Larry and whether his “ongoing involvement was
necessary.” At a hearing on May 19, 2021, the circuit court granted the motion for
summary judgment on liability and took under advisement whether to discharge
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Lominac as the guardian ad litem. An order granting partial summary judgment
was entered on June 18, 2021.
A status conference was conducted on July 1, 2021. The guardian ad
litem was not present. Mother waived a jury trial, and the court scheduled a bench
trial to determine damages. The bench trial was scheduled for August 30, 2021.
On July 28, 2021, the guardian ad litem filed a motion to continue the
damages hearing. He also requested an award of fees. Attorney Lominac
indicated to the court that he had been unable to communicate adequately with
Larry as he was now in the custody of the Federal Bureau of Prisons and had been
transferred from the Grayson County Detention Center. Attorney Lominac
requested that the bench trial be continued so that Larry could retain counsel.
The motion hearing was conducted by the circuit court on August 5,
2021. Attorney Lominac’s motion for fees was granted, and he was released from
further representation of Larry. There is nothing in the record to indicate that
Larry was made aware of the court’s decision to discharge his guardian ad litem.
The damages hearing was conducted as scheduled on August 30,
2021. Larry was not present either in person or virtually. The record does not
reflect that any effort was made to secure Larry’s presence or participation in any
capacity. Mother and A.F. testified with respect to damages. In a judgment
entered on September 1, 2021, the trial court awarded compensatory damages in
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the amount of $3,650,000 and punitive damages in the amount of $7,500,000.
Judgment was entered, and this timely appeal followed.
On appeal, Larry argues that the trial court erred by releasing the
guardian ad litem prior to the hearing on damages and entry of final judgment. He
also argues that the actual damages awarded are not supported by sufficient
evidence. Finally, Larry contends that the award of punitive damages is excessive.
Our resolution of the first issue raised is dispositive of the appeal. Consequently,
we do not analyze the remaining assertions.
An indigent criminal defendant is entitled to appointment of counsel
in any proceeding in which he could be sentenced to a term of imprisonment.
However, the constitutional right to counsel in civil proceedings is narrowly
circumscribed. U.S. CONST., Amendment 6; KY. CONST., § 11; Gideon v.
Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Scott v.
Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979). In Lewis v. Lewis,
875 S.W.2d 862 (Ky. 1993), the Supreme Court of Kentucky held that adjudicated
indigents facing incarceration for civil contempt for failure to pay child support are
entitled to appointment of counsel. Additionally, if a prisoner fails to defend a
civil action brought against him, a guardian ad litem must be appointed for him
before judgment may be entered. Davidson v. Boggs, 859 S.W.2d 662 (Ky.
App.1993); May v. Coleman, 945 S.W.2d 426 (Ky. 1997).
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CR1 17.04(1) provides in mandatory language as follows:
Actions involving adult prisoners confined either within
or without the State may be brought or defended by the
prisoner. If for any reason the prisoner fails or is unable
to defend an action, the court shall appoint a practicing
attorney as guardian ad litem, and no judgment shall be
rendered against the prisoner until the guardian ad litem
shall have made defense or filed a report stating that after
careful examination of the case he or she is unable to
make defense.
It is undisputed that at the time the tort action was filed against him
and throughout the course of the litigation, Larry remained imprisoned. While he
filed an answer to the divorce proceedings commenced by Mother and defended
his position throughout that litigation, it is clear that he did not defend the tort
action commenced by Mother before a guardian ad litem had been appointed.
In Davidson, 859 S.W.2d 662, we observed that application of the
provisions of CR 17.04(1) by the circuit court is not discretionary. “The rule does
not distinguish between voluntary and involuntary absences nor does it allow
consideration of whether the prisoner possessed sufficient funds to obtain counsel
of his own choosing.” Id. at 665. Under these circumstances, the provisions of CR
17.04(1) specifically required the trial court to appoint an attorney as guardian ad
litem for Larry. Unless the attorney filed a report indicating that no viable defenses
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Kentucky Rules of Civil Procedure.
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existed, judgment could not have been entered without a proper defense having
been made.
Throughout the litigation, Attorney Lominac indicated to the court
that Larry denied sexually abusing A.F. and that Larry intended to seek relief from
the judgment of conviction entered in federal court on grounds that his plea had
been coerced and that he had been denied effective assistance of counsel. Mindful
of rules governing his professional conduct and his ethical duty to advance the
interests of Larry, Attorney Lominac argued earnestly that Larry’s denial of the
allegations and his contention with respect to the guilty plea created a genuine
issue of material fact precluding the circuit court’s summary judgment. He
indicated to the circuit court that a viable defense did exist. Nevertheless, after
partial summary judgment was granted, Attorney Lominac was discharged as
guardian ad litem.
Because Larry is a prisoner and he did not defend himself in the tort
action filed against him, he was entitled to counsel. There is no indication that
Larry waived this right. See Goldsmith v. Fifth Third Bank, 297 S.W.3d 898 (Ky.
App. 2009). Duties of the guardian ad litem are not merely perfunctory. Because
due process includes the opportunity to examine and to cross-examine witnesses
and to introduce and to refute evidence, the prisoner was entitled to counsel
throughout the proceedings.
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Mother observes that retained counsel’s entry of appearance on behalf
of Larry in the divorce action was sufficient to invoke the personal jurisdiction of
the circuit court. On this basis, she argues that appointment of a guardian ad litem
in the tort action was never necessary. We cannot agree. The court does not
appoint a guardian ad litem under our Rules of Civil Procedure in an effort to
acquire personal jurisdiction. Instead, the express terms of the Rule require the
court to appoint a guardian ad litem if the prisoner fails to defend for any reason.
“[T]he appointment of a guardian ad litem under CR 17.04 is intended, in part, to
prevent the failure of a prisoner to obtain counsel as being deemed a waiver of his
right to due process.” Davidson, 859 S.W.2d at 665.
Finally, we address Mother’s motion to strike the brief that Larry filed
in this Court. Mother contends that Larry failed to show how and where the issues
on appeal were preserved for our review. She argues that the appeal should not be
considered because the issues presented were not, in fact, properly preserved for
our review. The brief filed by Larry is not deficient. Consequently, the motion to
strike is denied. We review the issue considered in this appeal because Larry is
entitled to appointed counsel pursuant to our Civil Rules, and our failure to review
could result in manifest injustice. It would certainly be a violation of the Civil
Rule on our part. The circuit court’s decision to dismiss the guardian ad litem
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failed to comply with the requirements of CR 17.04(1). Therefore, we are
compelled to grant a new trial under the provisions of CR 59.01.
Accordingly, we vacate the judgment of the Madison Circuit Court
and remand the matter for additional proceedings.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jerry W. Gilbert Jimmy Dale Williams
Richmond, Kentucky Randy Martin O’Neal
Richmond, Kentucky
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