DON GIBSON; JOAN SMITH; ROSE PASCHALL; SHARON NELSON; CATHY HANEY; MARILYN GIBSON; ROBIN SMITH; JAMES PASCHALL; BUDDY NELSON; and DAVID HANEY V. BONNIE SHOULTA and PHILIP SHOULTA
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RENDERED: May 15, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-2250-MR
DON GIBSON; JOAN SMITH;
ROSE PASCHALL; SHARON NELSON;
CATHY HANEY; MARILYN GIBSON;
ROBIN SMITH; JAMES PASCHALL;
BUDDY NELSON; and DAVID HANEY
APPELLANTS
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE JEFFREY R. HINES, JUDGE
ACTION NO. 96-CI-000374
v.
BONNIE SHOULTA and
PHILIP SHOULTA
APPELLEES
OPINION
REVERSING AND REMANDING
* * *
BEFORE:
BUCKINGHAM, DYCHE, and KNOX, Judges.
KNOX, JUDGE:
Appellants appeal from a default judgment entered
by the McCracken Circuit Court and that court's subsequent order
denying appellants' motion to vacate or set aside the default
judgment.
Appellees, husband and wife (the Shoultas), filed this
quiet title action alleging that Mrs. Shoulta was married, prior
to January 8, 1970, to George Moss Gibson.
They further alleged
that, on January 8, 1970, Mrs. Shoulta and Mr. Gibson took title
jointly, with right of survivorship, to the parcel of real estate
at issue in this case.
The Shoultas alleged that, on June 28,
1974, Mrs. Shoulta and Mr. Gibson were divorced, and further
stated that Mr. Gibson passed away on February 23, 1992.
Mrs. Shoulta subsequently married Mr. Shoulta.
In
their complaint, the Shoultas alleged that, by deed of conveyance
dated July 24, 1992, they conveyed the property in issue to
themselves with benefits of survivorship.
The Shoultas claim title to the property by way of
adverse possession from June 29, 1974, the day after Mrs.
Shoulta's divorce from Mr. Gibson, until February 23, 1992, the
date of Mr. Gibson's death.
Among the defendants named in the Shoultas' complaint
were the natural children of Mr. Gibson and their spouses.
In
their complaint, the Shoultas included the following paragraph:
That the Defendants named herein to the best
knowledge of the Plaintiffs are non-residents
of the Commonwealth of Kentucky and that
pursuant to the provisions of Kentucky Rule
Of Civil Procedure 4 et seq said Defendants
should be summoned by Warning Order Attorney
with an Affidavit of the Plaintiff, BONNIE
SHOULTA, being attached hereto setting forth
such information as the Plaintiff has with
respect to the addresses of the
aforementioned Defendants. To the best
knowledge of the Plaintiffs the last known
point of contact or address by which the
Defendants could be contacted was in care of
Hon. David Wrinkle, 333 Broadway, Suite 1001,
Paducah, Kentucky 42003, with said David
Wrinkle having informed Plaintiffs and
Plaintiffs' counsel that all addresses
previously provided by the Plaintiff for said
Defendants were incorrect.
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On the same date the complaint was filed, Mrs. Shoulta
filed an affidavit for the appointment of a warning order
attorney, stating that the addresses of the defendants were
unknown to her, and that the best address last known "would have
been in care of General Delivery, Paducah, Kentucky with the
Affiant to her best knowledge believing that said persons are
absent from the Commonwealth of Kentucky."
On April 11, 1996, Hon. Louis Zimmerman was appointed
as warning order attorney.
On June 17, 1996, Mr. Zimmerman filed
his report to the court, stating that, on May 3, 1996, he sent a
letter to the Paducah Sun directing that paper to run a
classified ad notifying appellants to contact the warning order
attorney with respect to litigation involving the property in
issue.
That ad ran in the Paducah paper on May 12, 1996.
In his
report, Mr. Zimmerman also stated that he sent a copy of his May
3, 1996 letter to Mr. Ullerich, the attorney for the Shoultas,
Mr. David Wrinkle, the attorney for appellants, and Mr. Bard
Brian, the attorney for the individuals purchasing the property
from the Shoultas.
On June 20, 1996, the Shoultas filed their motion for
default judgment, which was granted on that same date.
The
judgment restated the warning order attorney's notification
efforts, and further noted that the warning order attorney had
forwarded a copy of the May 3, 1996 letter, addressed to the
Paducah Sun, to appellants Don Gibson and Marilyn Gibson at an
address of 808 Irma Drive, Antioch, Tennessee 37013.
-3-
On June 28, 1996, appellants moved to set aside the
court's default judgment.
On July 11, 1996, Mr. Zimmerman, the
warning order attorney, filed a pleading called NOTICE OF FILING,
wherein he informed the court that a letter that he had mailed to
Don Gibson or Marilyn Gibson at the Tennessee address was
returned to him stamped "unknown."
On July 24, 1996, the
McCracken Circuit Court entered an order overruling appellants'
motion to set aside that court's default judgment.
Various pleadings and affidavits filed on behalf of the
parties and the warning order attorney in conjunction with
appellants' motion to set aside the default judgment reflect that
an issue was made about appellants' counsel's lack of cooperation
with requests by counsel for the Shoultas to furnish appellants'
addresses.
The issues raised by this appeal are whether the
requirements of CR 4.06 and CR 4.07 were met sufficiently to vest
the circuit court with jurisdiction to enter its default
judgment.
Appellants argue that those requirements were not met
in that: (1) the Shoultas and their attorney had sufficient
address information for appellants and failed to disclose that
information in their affidavit for the appointment of a warning
order attorney; and, (2) the warning order attorney did not
comply with CR 4.07 by making diligent efforts to inform the
appellants by mail of the pendency and nature of the action
against them.
-4-
Because we cannot discern from the record a sufficient
basis to determine whether the Shoultas or their counsel
possessed a more certain knowledge of appellants' addresses, we
do not believe that we are in a position to determine that the
requirements of CR 4.06 were not met.
However, we do not believe
that the requirements of CR 4.07 were met, and for that reason,
we reverse.
CR 4.07(l) states that the warning order attorney
". . . must make diligent efforts to inform the defendant, by
mail, concerning the pendency and nature of the action against
him . . . ."
Here, the only letters sent by the warning order
attorney to any of the appellants were those sent to Don and
Marilyn Gibson on June 19, 1996, some two days after his report
was filed.
No other letters were mailed to any of the other
appellants notifying them of the nature or pendency of the
action.
We believe that Potter v. Breaks Interstate Park
Comm'n, Ky., 701 S.W.2d 403 (1985) compels a conclusion that the
effort made by the warning order attorney in this case was not
sufficient to vest the circuit court with jurisdiction over
appellants.
While the warning order attorney did cause a notice
to be published in the Paducah Sun, we believe, by the clear
terms of CR 4.07, constructive service must be attempted by mail.
We acknowledge that the record reflects some issue as
to whether or not appellants' attorney was cooperative in
disclosing any of appellants' addresses that he may have had in
-5-
his possession.
However, we believe that we must conclude that,
since belated letters were sent by the warning order attorney to
only two of the appellants, and none to the other eight,
insufficient effort was made by the warning order attorney to
comply with CR 4.07.
While the Shoultas argue that appellants had consulted
with the Shoultas' own attorney at some point prior to the entry
of the default judgment, we again believe that the Potter case
addresses that issue by acknowledging authority that mere
knowledge of the pendency of an action is not sufficient to give
the court jurisdiction.
For the foregoing reasons, we rule that the default
judgment entered against the appellants should be set aside.
ACCORDINGLY, the judgment of the McCracken Circuit
Court is reversed and remanded for further consideration
consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
David B. Wrinkle
Paducah, Kentucky
David K. Ullerich
Paducah, Kentucky
-6-
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