WEIRD (THOMAS) VS. EMBERTON (ERIC)
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RENDERED: JANUARY 28, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000938-MR
THOMAS WEIRD
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 05-CI-004102
ERIC EMBERTON
APPELLEE
OPINION
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, NICKELL AND THOMPSON, JUDGES.
NICKELL, JUDGE: Thomas Weird appeals1 from the April 3, 2007, opinion and
order of the Jefferson Circuit Court granting Eric Emberton’s motion to set aside
an order entered on December 6, 2006, which had set aside a default judgment
entered on December 6, 2005, and allowed Weird’s ex-wife, Cheryl, to intervene.
1
Whether this appeal was timely filed was the subject of a prior appeal to this Court, Weird v.
Emberton, Case No. 2007-CA-000938-MR, in which the Supreme Court of Kentucky granted
discretionary review. In Weird v. Emberton, 306 S.W.3d 67 (Ky. 2010), the Supreme Court
determined the appeal was timely filed where the Jefferson Circuit Court Clerk’s Office was
closed for observance of the Kentucky Derby Parade on the last day for filing the notice of
appeal.
Due to noncompliance with CR2 17.04(1), relative to entry of the December 6,
2005, default judgment, we reverse in part and remand for proceedings consistent
with this Opinion.
FACTS
We provide a truncated version of the relevant facts. While a guest in
Weird’s home, Emberton claims he was the victim of assault, battery and unlawful
imprisonment resulting in significant medical bills and permanent injury. On May
10, 2005, Emberton filed a civil suit against Weird in the Jefferson Circuit Court.
Weird was served while in custody in the Bullitt County Jail on July 14, 2005, on
unrelated drug charges. Weird failed to file a timely answer to the complaint
within twenty days of receipt of service as required by CR 12.01. On August 29,
2005, forty-six days after receiving service of the complaint, Weird was released
from custody on a $25,000.00 bond posted by his now ex-wife.
Following Weird’s release from the Bullitt County Jail, Emberton
moved for a default judgment on September 8, 2005. Default judgment as to
liability was entered against Weird on September 20, 2005. Damages in the
amount of $100,000.00 were awarded to Emberton on December 6, 2005, after
which he began collection efforts.
On February 16, 2006, Weird moved to set aside the default judgment
citing CR 55.02. Following a hearing and oral argument, the motion was denied
2
Kentucky Rules of Civil Procedure.
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on March 18, 2006. Weird did not appeal the denial nor did he move the trial court
to reconsider its ruling under CR 59.05.
On November 27, 2006, Cheryl moved the trial court for permission
to intervene because Emberton was seeking property in which she had an interest,
and to set aside the default judgment because Weird was a prisoner when he was
served with the complaint and no guardian ad litem was appointed for him as
provided in CR 17.04(1). On December 6, 2006, without elaboration, the trial
court granted Cheryl leave to intervene and set aside the default judgment which
had been entered in December of 2005.
On December 15, 2006, Emberton filed a motion for reconsideration.
Thereafter, on December 21, 2006, Emberton moved the trial court to require
Weird to file an answer. Such an order was entered on January 4, 2007, and Weird
filed an answer on January 26, 2007. Weird then moved the trial court to vacate
the default judgment pursuant to CR 60.02(e) and CR 59.01(a) claiming it was
void due to noncompliance with CR 17.04.
Following a hearing and oral argument, on April 3, 2007, the trial
court set aside the order entered on December 6, 2006, stating in relevant part:
[Weird’s] arguments with regard to CR 17.04 must
fail as a matter of law. CR 17.04(1) states that, “Actions
involving adult prisoners confined either within or
without the State may be brought or defended by the
prisoner. If for any reason the prisoner fails or is unable
to defend an action, the court shall appoint a practicing
attorney as guardian ad litem, and no judgment shall be
rendered against the prisoner until the guardian ad litem
shall have made defense or filed a report stating that after
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careful examination of the case he or she is unable to
make defense.” In Davidson v. Boggs, Ky. App., 859
SW 2d 662 (1993), the Court held that, CR 17.04 is
intended, in part, to prevent the failure of a prisoner to
obtain counsel as being deemed a waiver of his right to
due process.” At 665, see also Horn v. Wheeler, Ky.
App., 180 SW 3d 504 (2005).
However, the plain language of the rule forbids the
entry of judgment against a “prisoner” without the prior
appointment of a guardian ad litem. In this case, [Weird]
was not a prisoner at the time the judgment was entered.
Therefore, the judgment need not be set aside on basis of
CR 17.04.
Thus, the original default judgment was reinstated. Appeal of the order entered on
April 3, 2007, followed.
LEGAL ANALYSIS
The limited focus of this appeal is the operation of CR 17.04(1) as it
pertains to the lack of filing a timely answer to a complaint and a subsequent
motion for default judgment. Weird argues default judgment should never have
been entered against him because he was an inmate throughout the twenty days he
had to respond to the complaint, he failed to file an answer to the complaint, and
no guardian ad litem was appointed by the trial court to represent him prior to entry
of the judgment. In contrast, Emberton argues Weird was free on bond at the time
default judgment was entered and therefore the appointment of a guardian ad litem
required under CR 17.04(1) was not triggered. We agree with Weird and reverse
in part and remand.
As explained in Davidson, 859 S.W.2d at 664,
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[t]he language of CR 17.04 is quite clear as to the proper
course of action available to the court when an
imprisoned defendant fails or is unable to defend an
action brought against him. In all such cases the court is
required to appoint a practicing attorney as guardian ad
litem and may not proceed with trial until the required
duties are performed by the guardian ad litem.
Upon a careful reading of CR 17.04(1), we deem the controlling language of the
rule to be, “[i]f for any reason the prisoner fails or is unable to defend an action,
the court shall appoint a practicing attorney as guardian ad litem[.]”3
In the case before us, it is undisputed that Weird was jailed in the
Bullitt County Jail at the time he was served with the complaint, as was confirmed
by the sheriff’s return on the summons. Further evidence of the trial court and
Emberton being aware of Weird’s incarceration is Emberton’s motion for an order
appointing a special bailiff to serve Weird and the trial court’s entry of the
requested order. It is also undisputed that Weird remained an inmate until his
release on bond on August 29, 2005. Therefore, he was jailed for the entire twenty
days allotted to him to file an answer to the complaint. CR 12.01. It is further
undisputed that no timely answer was filed prior to entry of the original default
judgment for liability on September 20, 2005. Indeed, no answer was filed until
January 26, 2007, after the trial court had granted Emberton’s motion to require
Weird to answer the complaint or be subject to a motion for default judgment.
3
The scope of this Opinion is limited to its unique facts wherein Weird remained incarcerated
throughout the entire twenty days he was afforded to file an answer upon being served the
complaint and the trial court being aware of Weird’s incarceration.
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Finally, it is undisputed that no guardian ad litem was ever appointed by the trial
court to represent Weird prior to entry of the default judgment.
In light of the foregoing facts, we hold it was incumbent upon the trial
court to appoint a guardian ad litem for Weird. No guardian having been
appointed, reversal of that portion of the opinion reinstating the default judgment
entered on December 6. 2005, is required with remand for trial and/or further
proceedings.
As explained in Davidson,
the application of CR 17.04 is not discretionary with the
trial court. The rule does not distinguish between
voluntary and involuntary absences nor does it allow
consideration of whether the prisoner possessed
sufficient funds to obtain counsel of his own choosing.
Rather, the express terms of CR 17.04 require the court
to appoint a guardian ad litem if the prisoner fails to
defend for any reason. The failure of the trial court to
comply with the requirements of CR 17.04 is a sufficient
basis to grant a new trial under CR 59.02(a). In fact, the
appointment of a guardian ad litem under CR 17.04 was
designed to prevent the very type of proceeding which
took place in the circuit court.
Id. at 665. Here, the trial court erroneously focused on that portion of CR 17.04(1)
that reads, “and no judgment shall be rendered against the prisoner” and surmised
that since Weird was not a prisoner at the time the default judgment was entered
that appointment of a guardian ad litem was unnecessary. The trial court’s reading
of the rule ignores the preceding clause of the rule requiring appointment “[i]f for
any reason the prisoner fails or is unable to defend an action[.]”
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Having determined the trial court erred, we now turn our attention to
the proper resolution of this appeal. The trial court’s initial error was its failure to
appoint a guardian ad litem for Weird as required by CR 17.04(1) since Weird was
a prisoner when he was served with the complaint, remained a prisoner during the
entire time allotted for filing a timely answer, and failed to file an answer.
Requiring the trial court to appoint a guardian ad litem pursuant to CR 17.04 at this
point would be superfluous because Weird ultimately filed an answer on January
26, 2007. As explained in Davidson, the purpose of CR 17.04 is to preserve a
prisoner’s due process rights. That purpose was accomplished when the trial court
provided Weird additional time in which to file an answer, and he did so. The
purpose of CR 17.04 having been satisfied, and the deleterious impact of the trial
court’s initial error having been remedied, it would be illogical to require strict
compliance with the requirement of appointment of a guardian ad litem under these
facts and at this point in the litigation, and we decline to do so.
Finally, in its order entered on April 3, 2007, the trial court
acknowledged committing a second error--improvidently allowing Cheryl to
intervene when she lacked standing to ask that the default judgment be set aside.
The effect of the order entered on April 3, 2007, was to reinstate the original
default judgment which had been entered on December 6, 2005. However, default
judgment was no longer an option because by that time, Weird had filed an answer
to the complaint pursuant to a trial court order entered on January 4, 2007. Entry
of a default judgment under CR 55.01 is unavailable once an answer has been
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filed. Thus, reversal of that portion of the April 3, 2007, order that reinstated the
default judgment is necessary.
For the foregoing reasons, the April 3, 2007, opinion and order is
reversed in part and remanded for trial and/or proceedings consistent with this
Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kyle A. Burden
Louisville, Kentucky
Andrew K. Gailor
Louisville, Kentucky
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