Opinion
NO. 2013-CA-001284-MR
12-12-2014
DARLENE PRATHER APPELLANT v. LENDMARK FINANCIAL SERVICES, INC. APPELLEE
BRIEF FOR APPELLANT: Darlene Prather, pro se Henderson, Kentucky BRIEF FOR APPELLEE: Larry W. Cook Franklin, Tennessee
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 13-CI-00294
OPINION
AFFIRMING
BEFORE: CAPERTON, KRAMER AND STUMBO, JUDGES. STUMBO, JUDGE: Darlene Prather, pro se, appeals from an order of the Henderson Circuit Court which granted summary judgment in favor of Lendmark Financial Services, Inc. We find nor error and affirm.
Judge Joy A. Kramer, formerly Joy A. Moore.
On September 1, 2012, Appellant signed a promissory note with Appellee in which she borrowed $9,909.35. Appellant eventually defaulted on said note. Appellee filed a complaint in Henderson District Court on January 30, 2013, seeking the remaining amount owed on the note. A civil summons was issued. The proof of service on the summons indicated that Appellant was personally served. It was later revealed that she was not personally served, but the summons was left on her door.
On April 19, 2013, Appellee filed a motion to have the cause of action moved to the Henderson Circuit Court as the amount in controversy was greater than the amount allowed for the cause of action to be heard by the district court. This motion was granted four days later.
On April 23, 2013, Appellee moved for a default judgment because Appellant had not responded to its complaint. This motion was granted on May 3, 2013. On May 20, 2013, Appellant moved to have the default judgment set aside. The motion alleged that she was improperly served. On June 5, 2013, the trial court granted Appellant's motion to set aside. It found, as previously mentioned, that Appellant was not personally served with the summons. The court then gave Appellant ten days to file an answer to the complaint.
On June 14, 2013, Appellee filed a motion for summary judgment. Attached to the motion was an affidavit from Michael Hobgood, manager of Lendmark, which verified that the debt was legitimate. The motion also alleged that Appellant admitted the allegations of the complaint in her response; however, there is no response or answer in the record before us. It is also clear from the briefs before us that a hearing was held on the motion for summary judgment; however, there is no recording or transcript of the hearing in the record before us. On June 24, 2013, the trial court granted the motion for summary judgment. An affidavit for an order for wage garnishment was submitted soon thereafter. Although no order granting the wage garnishment is in the record, Appellant claims her wages are being garnished. This appeal followed.
Appellant's first argument on appeal is that her due process rights were violated when her wages were garnished before a judgment was entered against her. This claim is unfounded. Summary judgment was entered in favor of Lendmark on June 24, 2014. The affidavit for garnishment of wages was submitted thereafter.
Appellant's other argument on appeal is that the court lacked jurisdiction to hear this matter. It is unclear whether she is arguing a lack of personal or subject matter jurisdiction. In an abundance of caution, we will address both.
"Jurisdiction over the person of a defendant can be acquired by the service of process upon him or by his voluntary appearance and submission. As a general rule, any person sui juris may enter an appearance and confer jurisdiction over his person upon the court." Hudson v. Manning, 250 Ky. 760, 63 S.W.2d 943, 945 (1933). Here, service was not properly served upon Appellant; however, when she appeared before the court in order to contest the motion for summary judgment, she conferred personal jurisdiction on the court.
As for subject matter jurisdiction, the case was first wrongly filed in the district court. That court did not have jurisdiction because the amount in controversy exceeded $5,000. KRS 24A.120(1). Appellee realized the mistake and transferred the case to the Henderson Circuit Court. "The Circuit Court is a court of general jurisdiction; it has original jurisdiction of all justiciable causes not exclusively vested in some other court." KRS 23A.010(1). The Henderson Circuit Court had subject matter jurisdiction over this cause of action.
For these reasons we affirm the order of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: Darlene Prather, pro se
Henderson, Kentucky
BRIEF FOR APPELLEE: Larry W. Cook
Franklin, Tennessee