PROVIDIAN NATIONAL BANK v. JOSEANNAH H. BROWN AND CLAUDE O. BROWN
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RENDERED:
SEPTEMBER 14, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001517-MR
PROVIDIAN NATIONAL BANK
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 99-CI-01436
v.
JOSEANNAH H. BROWN AND CLAUDE O. BROWN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge, BUCKINGHAM and McANULTY, Judges.
BUCKINGHAM, JUDGE: Providian National Bank appeals from an order
of the Daviess Circuit Court dismissing its complaint against
Joseannah H. Brown and Claude O. Brown and an order of the court
denying its motion to set aside the order dismissing the
complaint.
We affirm the trial court.
On December 1, 1999, the bank filed a complaint in the
Daviess Circuit Court against Joseannah H. Brown and Claude O.
Brown for an alleged credit card debt of $13,407.72 plus accrued
interest.
The clerk issued summons on both Mr. and Mrs. Brown on
the same day.
Joseannah H. Brown was served, but the summons
issued on Claude O. Brown was returned to the clerk with a
notation on it that Mr. Brown was deceased.
An answer to the
complaint was later filed on behalf of Mrs. Brown.
On March 6, 2000, the bank moved the court to award it
summary judgment against Mrs. Brown.
An affidavit indicating the
amount of the debt and an affidavit in support of attorney fees
accompanied the motion.
At the end of the bank’s motion, it
included a “Notice of Hearing” provision stating that the motion
would be brought before the trial court for hearing on March 21,
2000, at 10:00 a.m.
On March 13, 2000, a request for production of
documents was filed on behalf of Mrs. Brown.
motion to dismiss was filed on her behalf.
On the same date, a
The motion stated
that the bank had failed to produce any document containing or
evidencing her signature or agreement to be bound or liable for
the debt.
The motion cited KRS1 371.010(4) which requires an
action on a promise to answer for a debt of another to “be in
writing and signed by the party to be charged therewith[.]”
Brown’s motion to dismiss likewise contained a provision noticing
it to be heard on March 21, 2000, at 10:00 a.m., the same time
the bank’s motion for summary judgment was to be heard.
On the date the motions were to be heard, counsel for
Brown appeared before the court but counsel for the bank did not.
On the same day, the trial court entered an order of dismissal
dismissing the bank’s complaint against Brown with prejudice.
The order did not contain finality language.
1
Kentucky Revised Statutes.
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On May 1, 2000, the bank filed a Motion to Set Aside
Order of Dismissal.
Said motion was filed pursuant to CR2 60.02,
and it stated that the bank’s attorney had failed to appear at
the hearing on the aforementioned motions “due to inadvertent
error.”
See CR 60.02(a).
The motion also alleged that Brown’s
motion to dismiss was without merit and should be set aside.
The
bank’s motion was not verified or supported by an affidavit.
After hearing the arguments of counsel, the trial court denied
the bank’s motion on the ground that it found no evidence to
support any of the grounds for CR 60.02 relief stated in the
rule.
This appeal from both that order and the original order of
dismissal followed.
The first issue concerns whether or not the bank may
appeal from the order of dismissal.
was entered on March 21, 2000.
As we have noted, the order
The clerk made the CR 77.04(2)
notation on the docket on the same day, and the running of the
time for appeal began at that time. Pursuant to CR 73.02(1)(a),
the bank had thirty days in which to file a notice of appeal. No
such notice was filed during that time period, and the bank’s
motion to set aside the order was also filed after the time
period had expired.
Nonetheless, the bank has appealed from the March 21,
2000, order of dismissal on the ground that it was an
interlocutory order that did not become final until the court
denied its motion to set aside that order.
The bank argues that
if the order was to be considered final and appealable, then it
2
Kentucky Rules of Civil Procedure.
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should have contained finality language as required by CR
54.02(1) since multiple parties were involved and the order
dismissing the claim related only to one party.
In other words,
the bank argues that Mr. Brown, who was deceased, and Mrs. Brown
were both parties and that the order of dismissal related only to
Mrs. Brown.
Thus, the bank asserts that the order was
interlocutory and not subject to appeal.
CR 54.02(1) states in relevant part as follows:
[W]hen multiple parties are involved, the
court may grant a final judgment upon one or
more but less than all of the claims or
parties only upon a determination that there
is no just reason for delay. The judgment
shall recite such determination and shall
recite that the judgment is final. In the
absence of such recital, any order or other
form of decision, however designated, which
adjudicates less than all the claims or the
rights and liabilities of less than all the
parties shall not terminate the action as to
any of the claims or parties, and the order
or other form of decision is interlocutory
and subject to revision at any time before
the entry of judgment adjudicating all the
claims and the rights and liabilities of all
the parties.
In response to the bank’s argument that the order of dismissal
was interlocutory only, Brown argues that the order disposed of
the claims against the only party, herself, because Mr. Brown was
deceased and not a party.
Therefore, the issue before us is
whether the order of dismissal was final and appealable.
If it
was, then we are without jurisdiction to consider the bank’s
appeal of it because its notice of appeal was not timely filed.
See City of Devondale v. Stallings, Ky., 795 S.W.2d 954 (1990),
wherein the Kentucky Supreme Court held that the failure to file
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a timely notice of appeal was a jurisdictional defect that could
not be remedied. Id. at 957.
Simply stated, a civil complaint which names a deceased
person as a party defendant is a nullity to that extent since a
circuit court may not acquire jurisdiction over deceased persons.
A similar situation was addressed by the Kentucky Supreme Court
in Gailor v. Alsabi, Ky., 990 S.W.2d 597 (1998).
In that case,
two vehicles were involved in an automobile accident, and the
driver of one of the vehicles filed a civil complaint against the
driver of the other vehicle.
However, prior to the complaint
being filed, the driver of the other vehicle had died of natural
causes.
Summons was issued against the deceased person, and the
summons was returned with a notation that the defendant was
deceased.
The plaintiff in the case did not move that the public
administrator be appointed to administer the deceased person’s
estate and did not amend his complaint substituting the public
administrator as a party defendant until after the applicable
statute of limitations had expired.
The trial court in Gailor granted summary judgment in
favor of the administrator on the ground that the action was
barred by the statute of limitations.
After the Kentucky Supreme
Court granted discretionary review of an opinion of this court
reversing the trial court, it upheld the trial court’s summary
judgment in favor of the administrator.
In doing so, the court
stated that “[s]ince the complaint did not name a party defendant
over whom the circuit court could acquire jurisdiction, the
complaint was a nullity.”
Id. at 600.
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In Ratliff v. Oney, Ky. App., 735 S.W.2d 338 (1987),
this court was faced with another set of circumstances where a
deceased person was named as a party defendant in a civil
complaint.
Therein the court held:
It is incumbent upon a plaintiff, when he
institutes a judicial proceeding, to name the
proper party defendant. It is fundamental to
our jurisprudential system that a court
cannot, in an in personam action acquire
jurisdiction until a party defendant is
brought before it. The party defendant must
actually or legally exist and be legally
capable of being sued.
Id. at 341.
Likewise, this court held in Mitchell v. Money, Ky.
App., 602 S.W.2d 687 (1980), that a civil action filed against a
deceased person “was a nullity, there never being a partydefendant to it.”
Id. at 689.
Therefore, in the case sub judice the court had
jurisdiction over only one defendant, Mrs. Brown.
When the trial
court entered its March 21, 2000, order of dismissal of the
complaint filed against her, the order was final and appealable
in that it disposed of all claims against all parties.
See
Security Federal Savings & Loan Ass’n of Mayfield v. Nesler, Ky.,
697 S.W.2d 136 (1985), wherein the Kentucky Supreme Court held
that “[a]n order is final . . . if the order adjudicated all of
the claims of all of the parties before the court at the time the
order was entered.”
Id. at 138.
Because the bank did not appeal
from that order within thirty days of its entry as required by CR
73.02(1)(a), we are without jurisdiction to consider its appeal
from that order at this late date.
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City of Devondale, supra.
The remaining issue concerns whether the trial court
abused its discretion in denying the bank’s Motion to Set Aside
Order of Dismissal.
The bank argues that it is entitled to
relief pursuant to CR 60.02(a) due to “inadvertence” because of
an error on the part of the Ohio firm handling the case for the
bank in not having a local attorney appear at the hearing on the
motions.
In Fortney v. Mahan, Ky., 302 S.W.2d 842 (1957), the
court held that “CR 60.02 addresses itself to the sound
discretion of the trial court.”
Id. at 843.
The court also held
that “[t]he trial court’s exercise of discretion will not be
disturbed on appeal except for abuse.”
Id.
The bank argues that this court should follow our
reasoning in Bargo v. Lewis, Ky. App., 305 S.W.2d 757 (1957), and
order the trial court to grant relief under CR 60.02.
In Bargo,
the court held that the trial court did not abuse its discretion
in setting aside a default judgment where a local attorney
misunderstood the request of the defendant’s out-of-town attorney
concerning the filing of an answer to a civil complaint.
758.
Id. at
The Bargo court held that the trial court did not abuse its
discretion in granting CR 60.02 relief due to inadvertence or
excusable neglect.
Id.
It noted that default judgments were not
favored and that the defendant had meritorious defenses.
Id.
As we have noted, the bank’s Motion to Set Aside Order
of Dismissal was not supported by an affidavit indicating the
facts concerning why it was not represented at the hearing on
Brown’s motion to dismiss.
Further, we found no documentation in
the record indicating that Mrs. Brown was liable for the credit
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card debt.
In fact, when the bank orally argued its motion to
set aside the dismissal order to the trial court, it conceded
that it could find no documentation which would support its
argument that Mrs. Brown would be liable for the debt.
Under
these circumstances, we conclude the trial court did not abuse
its discretion in denying CR 60.02 relief.
The order of the Daviess Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Glenn E. Algie
Cincinnati, Ohio
Septtimous Taylor
Owensboro, Kentucky
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