Opinion
NO. 2016-CA-001770-MR
04-13-2018
FRANKIE GERALD HILL APPELLANT v. ASHLEY COOPER AND CURTIS W. COOPER APPELLEES
BRIEF FOR APPELLANT: James T. Kelley Elizabethtown, Kentucky BRIEF FOR APPELLEES: Danny Darnall Elizabethtown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LARUE CIRCUIT COURT
HONORABLE CHARLES C. SIMMS, III, JUDGE
ACTION NO. 15-CI-00125 OPINION
AFFIRMING
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BEFORE: COMBS, JOHNSON AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: Frankie Gerald Hill brings this appeal from an order entered by the Larue Circuit Court which denied his motion to set aside a default judgment entered against him. The sole issue before this Court is whether the trial court abused its discretion in so ruling. Having reviewed the record, we find the trial court acted appropriately, and consequently, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
At the heart of this litigation lies a parcel of real estate once owned by Ivy Jake Hill, father of Frankie Hill and Pamela Cooper (nee Hill). Ivy Jake Hill died testate on January 26, 1985, leaving the subject property to his wife, Dorothy Hill, in a life estate with the remainder going to Frankie and Pamela in equal and undivided fee simple shares upon Dorothy's death.
To avoid confusion due to a number of parties sharing the surname Hill, the Court will refer to the parties by their first names.
Two deaths in the Hill family combined to create the dispute at issue in this matter. Pamela pre-deceased her mother, dying in 2002. Her only heirs were the Appellees: her husband, Curtis Cooper, and their daughter, Ashley Cooper. Dorothy died intestate on June 28, 2014, sparking the dispute over the property.
At some point after Pamela's death in 2002, Frankie filed an Affidavit of Descent with the Larue County Clerk's Office indicating that he was the sole heir of Ivy Jake and Dorothy's estates, contrary to Ivy Jake's will. He then executed a deed conveying the subject property to himself. That deed cited, as part of its source of title, the Affidavit of Descent.
Ashley and Curtis filed the instant action to assert their claim to Pamela's half-interest in the property (provided in Ivy Jake's will) and set aside Frankie's deed of conveyance. Despite having been personally served, Frankie intentionally failed to answer the complaint or otherwise participate in any way in the litigation. As a result, the trial court entered a default judgment against him and ordered the property sold, with the proceeds divided among Frankie, Ashley, and Curtis per stirpes.
On the day of the sale, nearly a year after the entry of judgment in this matter, Frankie attempted to enter a document into the court's record. This document, which purported to be an agreement between Frankie and Pamela from 1991, contained language indicating Pamela's intent to disclaim her interest in the property. Frankie also brought this document with him to the sale, attempting to prevent the sale by presenting it to the auctioneer. However, the sale proceeded as ordered by the trial court. Ultimately, Frankie made the winning bid of $15,400, but later refused to consummate the sale.
Frankie instead endeavored to have the trial court set aside the default judgment. Ashley and Curtis filed a motion of their own, seeking to set a deadline for the completion of the auction transaction, which they later supplemented with a motion to forfeit Frankie's auction deposit and prohibit him from bidding at the next sale.
The trial court conducted a hearing on all pending motions on November 7, 2016, and entered a handwritten order on November 9, 2016 denying Frankie's motions. That order also set a deadline of November 30th for him to complete the transaction. With Frankie having failed to comply with the prior order, the trial court ordered his auction deposit forfeited, and further forbade Frankie from bidding at the next sale, unless he paid his full bid price in cash at the time of sale.
This appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
Kentucky law disfavors default judgments, and the law vests trial courts with very broad discretion in whether to set them aside. Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329 (Ky. 2007); CR 55.02; CR 60.02. Nevertheless, Kentucky courts place the onus on the party seeking to set aside a final judgment to affirmatively prove entitlement to such extraordinary relief. "The moving party... cannot have the judgment set aside and achieve his day in court if he cannot show good cause and a meritorious defense." Green Seed Co., Inc. v. Harrison Tobacco Storage Warehouse, Inc., 663 S.W.2d 755, 757 (Ky. App. 1984). To show entitlement to such relief, a defendant must offer sufficient proof of three elements: 1) a valid excuse for the failure to participate, 2) a meritorious defense to the plaintiff's claim, and 3) the absence of prejudice to the opposing party. S.R. Blanton Dev., Inc. v. Investors Realty and Mgt. Co., Inc., 819 S.W.2d 727, 729 (Ky. App. 1991).
Kentucky Rules of Civil Procedure. --------
On appeal, we cannot reverse a trial court's decision to deny a motion to aside a default judgment absent abuse of discretion. Howard v. Fountain, 749 S.W.2d 690, 692 (Ky. App. 1988). Prior courts have defined abuse of discretion as instances where the trial court's decision reflected arbitrariness, unreasonableness, unfairness, or a lack of support from sound legal principles. Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999).
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN
DENYING FRANKIE'S MOTION
Civil Rule 55.02 authorizes the setting aside of default judgments. That rule, in its entirety, provides: "For good cause shown the court may set aside a judgment by default in accordance with Rule 60.02." The two provisions of CR 60.02 which might apply here allow for the reopening of judgments based on newly discovered evidence which "could not have been discovered in time to move for a new trial" (CR 60.02(b)) or the catch-all provision of subsection (f): "any other reason of an extraordinary nature justifying relief."
Frankie argues that the trial court abused its discretion as it relates to all three elements. He argues that his failure to participate in the litigation was the result of excusable neglect and that his ignorance of the fact that he might have had a valid defense led to his default. He argues that his defense was not only meritorious, but that the newly discovered agreement, wherein he alleges Pamela disclaimed her interest in the subject property, would have been dispositive in the action if he had participated. Finally, he argues that Ashley and Curtis would not be prejudiced because they could still present evidence regarding their own claims or defenses.
Regarding the first element, the trial court opined that Frankie had "waited too long" to participate in the litigation, and the sale had already been ordered and a date set. Our own review of the record indicates that Frankie intentionally failed to participate in the action below. His own affidavit, entered into the record in support of his motion to set aside the judgment on November 7, 2016, indicated that he "did not feel it was useful to spend money to employ an attorney without any known defense." This reflects a willful disregard of the legal process, a far cry from the "good cause" contemplated by CR 55.02.
Moreover, our case law is replete with examples where defendants who were less culpable than Frankie were nonetheless properly denied in their attempts to set aside default judgments entered against them. In Richardson v. Brunner, 327 S.W.2d 572, 573 (Ky. 1959), the Court held that a default judgment had been properly entered against a defendant who had failed to answer the complaint when he had: "'given up all hope of saving his property' to which [the plaintiff] held a tax deed" based on factual misrepresentations by plaintiff's counsel, that the defendant lacked funds to retain an attorney, and that the defendant was illiterate. In First Horizon Home Loan Corp. v. Barbanel, 290 S.W.3d 686 (Ky. App. 2009), this Court held that the trial court had not abused its discretion in denying a motion to set aside a default judgment where the failure to answer was precipitated by a pro se defendant's miscalculation of the date by which she needed to file her answer. In Howard v. Fountain, supra, this Court held that a defendant's inattentiveness did not justify reopening a default judgment in a negligence action. Thus, the trial court properly ruled that Frankie lacked any justification for his admittedly intentional failure to act after having been duly served.
Regarding the second element, the trial court described Frankie's newly discovered evidence as "highly suspicious" and opined that it would likely not have resulted in a different outcome in the case.
To warrant relief under CR 60.02(b), the newly discovered evidence "must be 'of such decisive value or force that it would, with reasonable certainty, have changed ... the result if [relief] should be granted.'" Foley v. Commonwealth, 425 S.W.3d 880, 886 (Ky. 2014) (quoting Jennings v. Commonwealth, 380 S.W.2d 284 (Ky. 1964)). The veracity of the document is debatable. It is neither witnessed nor notarized. It offers no indication of the identity of its preparer. The two signatures (of Frankie and Pamela) are strikingly similar in appearance. Additionally, Pamela was married to Curtis at the time of the supposed execution of this document in 1991 and went by the name "Pamela Cooper," yet the signature purports to be that of "Pamela S. Hill." Finally, the document satisfies neither the statutory requirements of a deed (KRS 382.135) or a will (KRS 394.040). Taking these facts into account, the trial court did not abuse its discretion in finding this document lacked such persuasive weight that it would have required a different outcome.
Regarding the third element, the trial court opined that Ashley and Curtis would be prejudiced by the expense they had already incurred from the initial sale and those for the forthcoming second sale. Certainly, the cost of pursuing the litigation would increase if the judgment were set aside. Moreover, the cost of the first auction, already borne by Curtis and Ashley, exceeded $3,000. The first sale resulted in a winning bid of $15,400, of which Ashley and Curtis were only entitled to Pamela's fifty percent share, or $7,700. There is no reason to believe the second sale would not result in a similar winning bid. Given that the amount they expended on the first sale reached nearly forty percent of their share of the sale proceeds, it seems very likely that the costs expended in winning could entirely deplete—or even exceed—the value of their interest in the property should the court reopen the litigation. The trial court properly determined that prejudice would result to Ashley and Curtis if it set aside the default judgment.
III. CONCLUSION
After reviewing the record, we conclude that the trial did not abuse its discretion in denying Frankie's motion to set aside the default judgment. Frankie failed to offer sufficient proof of entitlement to relief on each of the three essential elements, any one of which alone would justify the trial court's ruling. Having so concluded, we must affirm.
ALL CONCUR. BRIEF FOR APPELLANT: James T. Kelley
Elizabethtown, Kentucky BRIEF FOR APPELLEES: Danny Darnall
Elizabethtown, Kentucky