Opinion
NO. 2018-CA-000343-MR
12-06-2019
JAMES MANSFIELD AND DEE ANN MANSFIELD APPELLANTS v. JAMOS FUND I, LP; KELVIN PHILLIPS; RACHELLE PHILLIPS AND COUNTY OF ESTILL APPELLEES
BRIEF FOR APPELLANTS: Kevin P. Fox Frankfort, Kentucky BRIEF FOR APPELLEE, KELVIN PHILLIPS: Jimmy Dale Williams Randy Martin O'Neal Richmond, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE MICHAEL DEAN, JUDGE
ACTION NO. 12-CI-00158 OPINION
AFFIRMING
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BEFORE: TAYLOR, K. THOMPSON AND L. THOMPSON, JUDGES. THOMPSON, K., JUDGE: James Mansfield and Dee Ann Mansfield appeal from an order of the Estill Circuit Court denying their motion for leave to file a late answer, counterclaim, cross-claim and third party complaint pursuant to Kentucky Rules of Civil Procedure (CR) 6.02. We conclude that the trial court did not abuse its discretion and affirm.
In an action unrelated to the present, the Mansfields obtained a judgment against Kelvin Phillips and Rachelle Phillips in the amount of $12,000 plus court costs and post-judgment interest at the rate of 12% per annum. They filed a notice of judgment lien against property owned by the Phillipses in Estill County.
On July 12, 2012, Jamos Fund I, LP filed a foreclosure complaint against the same property owned by the Phillipses. The Mansfields were served with the foreclosure complaint on July 14, 2012 and July 16, 2012. Neither they nor any counsel entered an appearance in the foreclosure action until almost five years later when the motion for leave to file the late pleadings was filed.
The Mansfields were one of a number of defendants with an interest in the property owned by the Phillipses. Those claims were settled and an order dismissing those claims was entered on September 3, 2013, and a satisfaction was filed on November 12, 2015.
The present case languished until the Mansfields filed a motion for leave to file late pleadings on May 26, 2017. In that motion, the Mansfields offered no reason or otherwise showed cause as to why relief should be granted. They simply failed to respond to the complaint for almost five years, even though they were served with the complaint and served by U.S. Mail at their proper address with all documents by the parties and the circuit court.
CR 12.01 provides that "[a] defendant shall serve his/her answer within 20 days after service of the summons upon him/her." As noted in Moffitt v. Asher, 302 S.W.2d 102, 103 (Ky. 1957), "[t]he periods of time prescribed in CR 12.01 may not be enlarged except by approval of the trial court." The proper way to obtain that enlargement of time is through CR 6.02 which provides:
When by statute or by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion, (a) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (b) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50.02, 52.02, 59.02, 59.04, 59.05, 60.02, 72.02, 73.02 and 74 except to the extent and under the conditions stated in them.We review the grant or denial of a CR 6.02 motion for an abuse of discretion. Moffitt, 302 S.W.2d at 103.
The Mansfields argue that because no default judgment was entered against them before they filed their CR 6.02 motion and because there has been no showing that any party would be prejudiced by allowing them to file their late responsive pleadings, the trial court abused its discretion in denying the motion and, effectively, entering a default judgment. They rely on the following part of a passage in Childress v. Childress, 335 S.W.2d 351 (Ky. 1960), later quoted with approval in Dressler v. Barlow, 729 S.W.2d 464 (Ky.App. 1987):
We fully recognize that the trial court has a broad discretion in controlling the pleadings; but if it seems to this court that the discretion exercised was not sound, we overrule the lower court in rejecting a pleading raising an issue. . . . Since every cause of action should be tried upon the merits, the rendering of judgments by default ought to be withheld where seasonable objection is made unless a persuasive reason to the contrary is submitted. . . . In the present case, the delinquent defendant had sought to head off the entry of the default judgment by his motion. That fact is a significant and important consideration.Childress, 335 S.W.2d at 354 (citations omitted). In Childress and Dressler, the defendants sought leave to file untimely answers before dismissal. Although the same is true in this case, any further similarity to Childress and Dressler is absent.
Childress was a divorce case. The Court pointed out that "[d]efault judgments in divorce cases are not looked upon with favor even in regard to property rights." Childress, 335 S.W.2d at 354. Moreover, the Childress Court stated that an attempt to file a late answer must be "seasonable." Id. Finally, even if the motion to enlarge the filing time is seasonable, the Court emphasized that "delay in pleading without reasonable excuse cannot always be overlooked." Id. (emphasis added). Notably, the defendant's answer in Childress was due to be served April 14th. Id. at 352. "On May 9th the defendant, by an attorney, moved the court to permit him to answer and defend. The motion and supporting affidavit charged the agreement as to the property rights of the parties had been executed by him in ignorance of his rights and through fraud and undue influence of his wife." Id. Obviously, there is a vast difference here where the Mansfields waited five years to attempt to file responsive pleadings.
In Dressler, the complaint was filed on April 8, 1986, a return of service was filed on April 9, 1986, a motion for default judgment was filed on May 6, 1986, and a memorandum in opposition to motion for default judgment was filed on May 14, 1986. Dressler, 729 S.W.2d at 464. The defendant in Dressler acted to avoid the default judgment less than two months after service of the complaint. Again, for some inexplicable reason, the Mansfields waited years before filing their CR 6.02 motion.
The Kentucky Supreme Court has stated that "[g]ood cause is not mere inattention on the part of the defendant . . . his attorney, or his insurance carrier." Tennill v. Talai, 277 S.W.3d 248, 250 (Ky. 2009). Inattention appears to be the only reason the Mansfields did not earlier appear in this action. Under the circumstances, if we accept the Mansfields' argument that a CR 6.02 motion must be granted if a default judgment has not been entered, we would be required to ignore that a CR 6.02 motion must be seasonably filed, and that good cause for the delay must be shown. In light of the clear language of CR 6.02, we reject their argument.
For the reasons stated, the order of the Estill Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANTS: Kevin P. Fox
Frankfort, Kentucky BRIEF FOR APPELLEE, KELVIN
PHILLIPS: Jimmy Dale Williams
Randy Martin O'Neal
Richmond, Kentucky