GARY SEWELL v. H and R OIL COMPANY, INC.; and LUCIEN TRUMBO
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RENDERED: July 2, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-002450-MR
GARY SEWELL
v.
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE DOUGLAS C. COMBS, JUDGE
ACTION NO. 96-CI-000102
H and R OIL COMPANY, INC.;
and LUCIEN TRUMBO
APPELLEES
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
ABRAMSON, EMBERTON and KNOPF, Judges.
EMBERTON, JUDGE.
The appellant, Gary Sewell, appeals from an
order denying his motion to set aside a default judgment entered
against him in favor of the appellees, H and R Oil Company, Inc.,
and Lucien Trumbo.
We affirm.
On March 1, 1996, the appellees filed this action
against the appellant to recover indemnity for the amounts paid
by Trumbo to Citizens Bank and Trust in payment of a promissory
note executed by appellant and Trumbo as a co-maker and
accommodation party.
5, 1997.
Appellant was served with summons on March
Acting pro se, appellant did not file an answer with
the clerk until April 1, 1996, and did not serve the answer on
opposing counsel as required by Ky. R. Civ. P. (CR) 12.01.
On April 11, 1996, Trumbo filed a motion for default
judgment.
Appellant did not respond to the motion, and on June
25, 1996, a default judgment was entered.
CR 55.02 provides that:
For good cause shown the court may set aside
a judgment by default in accordance with Rule
60.02.
"Good cause shown" has been interpreted to require the moving
party to show "(1) a valid excuse for the default; (2) a
meritorious defense to the claim; and (3) absence of prejudice to
the non-defaulting party."
S. R. Blanton Development, Inc. v.
Investors Realty, Ky. App., 819 S.W.2d 727, 729 (1991).
Appellant's affidavit in support of his motion to set
aside offers his ignorance of the civil rules as the only reason
for his failure to timely file and serve the answer on the
opposing party.
Carelessness by a party or his attorney is not
reason enough to set aside a default judgment.
Perry v. Central
Bank & Trust Company, Ky. App., 812 S.W.2d 166, 170 (1991).
Appellant offered no other explanation to the trial court.
The
trial court did not abuse its discretion in refusing to set aside
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the default judgment.
Howard v. Fountain, Ky. App., 749 S.W.2d
690, 692 (1988).
The order of the Perry Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gary Sewell, pro se
Jackson, Kentucky
Robert E. Maclin III
Lexington, Kentucky
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