ALONZO SAMUELS v. WANDA SAMUELS GROVES AND JERRY SAMUELS
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RENDERED:
OCTOBER 17, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000820-MR
ALONZO SAMUELS
v.
APPELLANT
APPEAL FROM WOODFORD CIRCUIT COURT
HONORABLE ROBERT OVERSTREET, JUDGE
ACTION NO. 97-CI-00160
WANDA SAMUELS GROVES AND
JERRY SAMUELS
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND SCHRODER, JUDGES.
BUCKINGHAM, JUDGE:
Alonzo Samuels (Alonzo) appeals from an
order of the Woodford Circuit Court that denied his motion to
set aside a default judgment entered against him and denied his
motion to dismiss.
Alonzo argues that the default judgment
should be reversed since he filed an answer and counterclaim in
1997; in the alternative, he argues that he showed good cause,
as required by CR1 55.02 and 60.02, to set aside the default
judgment.
Alonzo also argues that the circuit court’s denial of
his motion to dismiss should be reversed because the appellees
lost standing.
Finding that the court abused its discretion
when it denied Alonzo’s motion to set aside the default
judgment, we reverse in part and remand.
However, finding that
the circuit court properly denied Alonzo’s motion to dismiss, we
affirm in part.
On June 19, 1997, the appellees, Wanda Samuels Groves
(Wanda) and Jerry Samuels (Jerry), filed suit in the Woodford
Circuit Court against their brother, Alonzo Samuels, to
partition or sell a tract of real property, known as the
Shoreacres property, owned by the three siblings as tenants in
common.
They acquired the property from their father shortly
after he was placed in a nursing home.
When Wanda and Jerry
filed suit, they had a copy of their complaint served on
Alonzo’s attorney, Margaret Miller, not on Alonzo.2
On July 30,
1997, Alonzo filed both an answer and counterclaim.
Along with the complaint, Wanda and Jerry filed a
motion for injunctive relief to have Alonzo removed from the
property.
Alonzo filed a memorandum of law in which he
objected.
In support of his objection, Alonzo filed an
1
Kentucky Rules of Civil Procedure.
2
Miller had agreed to accept service on behalf of Alonzo.
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affidavit stating that he had lived on the property for
approximately thirty years and wished to remain there.
On July
16, 1997, the Woodford Circuit Court denied injunctive relief.
Due to the federal laws regulating Medicaid, Wanda,
Jerry, and Alonzo entered into an agreed order, which was signed
and entered by the circuit court on April 29, 1999, to convey
the Shoreacres property back to their father.
In the agreed
order, the circuit court directed the master commissioner
assigned to the case to execute a deed to convey the Shoreacres
property to the siblings’ father.
However, Alonzo adamantly
refused to comply with the agreed order.
Despite Alonzo’s
refusal, the master commissioner executed a deed on October 19,
2000, conveying Wanda’s interest and Jerry’s interest to their
father and his current wife, Anna Samuels (Anna).
Subsequently,
Wanda, as conservator of their father’s estate, conveyed their
father’s interest in the Shoreacres property to their
stepmother, Anna.
On May 9, 2001, concerned that Alonzo had never been
personally served with their complaint, Wanda and Jerry filed a
motion for leave to personally serve Alonzo with a copy of their
1997 complaint.
The circuit court granted their motion, and
Alonzo was served with the 1997 complaint on May 15, 2001.
On
July 30, 2001, Wanda and Jerry filed a motion for default
judgment and argued that Alonzo had failed to file an answer.
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Also, they filed a motion for the circuit court to direct the
master commissioner to execute a deed to convey Alonzo’s
interest in the Shoreacres property to Anna.
On August 8, 2001,
the circuit court granted both motions.
On September 7, 2001, Alonzo filed a motion to dismiss
Wanda’s and Jerry’s lawsuit.
He argued therein that they had
lost standing when they conveyed their interest in the
Shoreacres property to their father on October 19, 2000.
Also,
on September 7, 2001, Alonzo filed a motion to set aside the
default judgment and to set aside the order directing the master
commissioner to execute a deed conveying his interest to Anna.
Alonzo argued that he had previously answered the 1997
complaint.
On August 8, 2001, the Woodford Circuit Court denied
Alonzo’s motions and ordered the master commissioner to execute
a deed conveying Alonzo’s interest to Anna.
On appeal, Alonzo argues that the Woodford Circuit
Court’s denial of his motion to set aside default judgment
should be reversed.
Alonzo points out that he accepted service
of process through his counsel, Margaret Miller, in 1997 and
filed both an answer and counterclaim on July 30, 1997; thus, he
asserts that he was not in default.
Alternatively, Alonzo
argues that trial courts should be very liberal in considering
motions to set aside default judgments so as not to deprive
individuals of their day in court. Educator & Executive
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Insurers, Inc. v. Moore, Ky., 505 S.W.2d 176 (1974).
Alonzo
urges this court to reverse the default judgment so he will not
be so deprived.
Also, citing CR 55.01, Alonzo argues that Wanda
and Jerry failed to give him the required three days notice
regarding their motion for default judgment.
He points out that
they failed to send a copy of the motion to his counsel, and,
while they mailed a copy of the motion to him, they sent it to
the wrong address.
Alonzo argues that Woodford Circuit Court’s denial of
his motion to dismiss Wanda’s and Jerry’s complaint should be
reversed since they lost standing.
Alonzo points out that a
person has standing to bring a lawsuit only if that person has a
substantial, present, and judicially recognizable interest in
the subject matter that is neither remote nor speculative.
City
of Louisville v. Stock Yards Bank & Trust Co., Ky., 843 S.W.2d
327, 328-29 (1992).
Alonzo argues that neither Wanda nor Jerry
have a present and substantial interest in the subject matter
since they conveyed their interest in the Shoreacres property to
their father, who subsequently conveyed it in fee simple to
Anna.
In general, the law does not favor default judgments.
Despite this, trial courts possess broad discretion when
considering a motion to set aside default judgment, and this
court will not disturb a trial court’s refusal to set aside a
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default judgment unless the trial court abused its discretion.
Howard v. Fountain, Ky. App., 749 S.W.2d 690, 692 (1988).
As we have noted, the record reveals that Wanda and
Jerry filed their complaint on June 19, 1997, and served a copy
of the complaint on Alonzo’s attorney, Margaret Miller.
The
record also reveals that along with their complaint Wanda and
Jerry filed a motion for injunctive relief to remove Alonzo from
the Shoreacres property.
In objecting to their motion, Alonzo,
through his attorney, filed both a memorandum of law and a
notarized affidavit that he had signed.
After the circuit court
denied injunctive relief, Alonzo, through his attorney, filed
both an answer and counterclaim on July 30, 1997.
In Rosenberg v. Bricken, 302 Ky. 124, 194 S.W.2d 60
(1946), a guardian ad litem was duly appointed to represent
certain infant defendants, but a summons was never served on
him. Id. at 61.
Despite the lack of a summons, the guardian
filed an answer on behalf of the infants, appeared at
depositions for them, and represented them on appeal. Id.
On
appeal, the appellant argued that service of the summons on the
guardian was necessary for the infants to be properly before the
trial court.
The appellate court stated:
There can be no contention but that the
object or purpose of a service of process is
to notify of the proceeding, thereby
affording an opportunity to appear before
and be heard by the court. It must be
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admitted that mere knowledge of the pendency
of an action is not sufficient to give the
court jurisdiction, and, in the absence of
an appearance, there must be service of
process. In 42 Am. Jur., Process, Section
4, it is stated:
"The constitutional guaranty of due process
of law means notice and opportunity to be
heard and to defend before a competent
tribunal vested with jurisdiction of the
subject matter of the cause, and it is
essential therefore to the exercise of that
jurisdiction, where the defendant does not
enter a voluntary general appearance or
otherwise waive service of process, that
process issue giving notice to those whose
rights and interests will be affected. In
the absence of a voluntary appearance, the
issuance and service of process or notice is
indispensable to the jurisdiction of a court
to determine the adverse claims of parties
to the litigation. Until notice is given to
the defendant of the action or proceedings
against him, and he is given thereby
opportunity to appear and be heard, the
court has no jurisdiction to proceed to
judgment against him even though the court
may have jurisdiction of the subject
matter."
Undeniably, there was some sort of notice.
The guardian ad litem undoubtedly was
apprised of the pendency of the action. He
appeared and filed answer. He was present
at the taking of depositions. He represented
the infants in the litigation and could have
done no more by notice under service of
summons and return thereon. (Emphasis
added.)
Id. at 62.
See also 62B AM JUR 2d Process § 354 (1990), wherein
it is stated that “[a] general appearance by the defendant,
without previous objection to the process or return, operates as
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a waiver of defects in the process or in the service or return
thereof.
Such an appearance for a defendant is generally made
through an attorney.”
As in Rosenberg, despite the lack of service, Alonzo
was aware of the 1997 complaint.
He hired an attorney and filed
an objection to Wanda’s and Jerry’s motion for injunctive relief
and filed both an answer and counterclaim.
Thus, in 1997,
Alonzo voluntarily appeared in the Woodford Circuit Court, which
gave the circuit court jurisdiction over him.
Wanda and Jerry
had no need to serve another copy of their complaint on Alonzo
in 2001, and since he had previously filed an answer in 1997,
Alonzo had no need to file another one in 2001.
The circuit
court erroneously granted a default judgment and abused its
discretion when it denied Alonzo’s motion to set aside the
default judgment.
Regarding standing, the Kentucky Supreme Court stated:
Prevailing Kentucky authority establishes
the standard for standing to sue as “a
judicially recognizable interest in the
subject matter.” The interest may not be
“remote and speculative,” but must be a
present and substantial interest in the
subject matter. We have recognized the
difficulty of formulating a precise standard
to determine whether a party has standing
and held that the issue must be decided on
the facts of each case. (Citations omitted.)
City of Louisville v. Stock Yards Bank & Trust Co., Ky., 843
S.W.2d 327, 328-29 (1992).
See also, Housing Authority of
-8-
Louisville v. Service Employees International Union, Local 557,
Ky., 885 S.W.2d 692 (1994).
When the circuit court signed and entered the agreed
order, it placed a legal obligation on all three siblings to
convey their undivided interest in the Shoreacres property back
to their father.
Although Wanda and Jerry conveyed their
individual interests in the property, by operation of the agreed
order, Wanda and Jerry retained limited standing to move the
circuit court to enforce that order.
Thus, the Woodford Circuit
Court properly denied Alonzo’s motion to dismiss.
For the foregoing reasons, this court affirms the
Woodford Circuit Court’s denial of Alonzo’s motion to dismiss,
reverses the court’s denial of his motion to set aside default
judgment, and remands the case to the Woodford Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Margaret A. Miller
Greenebaum, Doll & McDonald
Lexington, Kentucky
Willie E. Peale, Jr.
Frankfort, Kentucky
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