JAMES B. TENNILL, SR. V. CYRUS M. TALAI
Annotate this Case
Download PDF
RENDERED : FEBRUARY 19, 2009
TO BE PUBLISHED
Q
,;vixyremr C~nurf of
2007-SC-000046-DG
2007-SC-000673-DG
JAMES B. TENNILL, SR .
V.
APPELLANT/ CROSS-APPELLEE '
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2005-CA-001290-MR
JEFFERSON CIRCUIT COURT NO. 04-CI-003573
CYRUS M. TALAI
APPELLEE/CROSS-APPELLANT
OPINION OF THE COURT BY JUSTICE SCHRODER
AFFIRMING IN PART, REVERSIN G IN PART
The Appellant/ Cross-Appellee, James B . Tennill, Sr., received a default
judgment against the Appellee/Cross-Appellant, Cyrus M. Talai, for personal
injuries received from a motor vehicle accident. The trial court denied Talai's
motion to set aside the default and scheduled a hearing on damages . Prior to
the hearing on damages, Talai propounded written interrogatories to Tennill to
determine Tennill's injuries and damages . At the same time, Talai also
scheduled Tennill's deposition for November 8, 2004 .
Tennill's deposition was taken on November 8, 2004 . During said
deposition, Talai's attorney stated:'
1 On page 28 of said deposition, in response to an objection to questions on causation.
All right, sir. There's been absolutely no discovery
taken in this case. I don't have medical records . I
don't have any written discovery responses back from
you. I'm simply taking your client's deposition so that
I can discover what the amount of damages are and if
that's the case, that - that'll be tendered. (emphasis
added) .
Tennill was then deposed at length about the accident, his injuries, his
medical treatments, prior medical history, past accident problems, and the like .
Tennill was also questioned about compensation received from his insurance
carrier, and then specifically asked:
Other than medical expenses, and lost wages,
and whatever pain, and suffering is associated
with the injuries that you sustained in this
accident, if any, are you making any other
claims in this lawsuit?
A.
Nope .
After answering, "Nope," Tennill was questioned extensively about the
extent of property damage to his vehicle and details about the accident. At no
time was Tennill asked to further itemize any damages .
The trial court held the hearing on damages and Tennill, over Talai's
objection, was allowed to introduce evidence of unliquidated damages . The
objection contended that Tennill should not be allowed to introduce evidence of
unliquidated damages because Tennill had failed to respond or object to the
written interrogatories . The trial court ruled that because Talai was in default,
he was not entitled to a response to the interrogatories . The trial court heard
evidence on damages and awarded Tennill $45,076.00 plus costs, etc.
The Court of Appeals affirmed the trial court's decision to not set aside
the default, but reversed the damage award based on CR 8.01(2) ; Fratzke; 2 and
LaFleur. 3 Tennill requested discretionary review and Talai filed a protective
cross motion . We granted both requests for discretionary review and
consolidated the same.
The first issue is whether the trial court erred in not setting aside the
default judgment. We agree with the Court of Appeals that there was no error
or abuse of discretion by the trial court in not setting aside the default . CR
55.02 allows a trial court to set aside a default if good cause is shown . Good
cause is not mere inattention on the part of the defendant (Appellee/CrossAppellant), his attorney, or his insurance carrier . See Howard v. Fountain . 4
Here, Tennill kept the insurance carrier and Talai informed of the claim and
even provided a courtesy copy of the complaint to the defending insurance
carrier. A courtesy copy of the motion for default judgment was sent to both
the insurance carrier and Talai. The subsequent motion to set aside the
default attached a tendered answer with a general denial, but no meritorious
defense. Under these circumstances, the trial court did not abuse its
discretion in not setting aside the default. See also Green Seed Co ., Inc . v .
Harrison Tobacco Storage Wareho use,_ Inca
2 Fratzke v. Murphy, 12 S.W.3d 269 (Ky. 1999) .
3 LaFleur v. Shoney's, Inc. , 83 S.W.3d 474 (Ky. 2002).
4 749 S .W .2d 690, 692 (Ky.App . 1988) .
S
663 S .W.2d 755, 757 (Ky .App . 1984) (requiring good cause and a meritorious defense before a
default can be set aside) .
Tennill's failure to object or respond to Talai's written interrogatories on
the damages claimed is of greater concern than the default issue . Talai made a
timely request for discovery through written interrogatories and Tennill failed to
object or respond . Both Tennill and the trial court were of the opinion that a
defaulting party was not entitled to discovery. The Court of Appeals disagreed,
citing Howard 6 for the proposition that a defaulting party admits liability, but
not unliquidated damages. Therefore, Talai was entitled to discovery.
Consequently, Tennill's failure to respond to the written interrogatories violated
the strict standard written in CR 8 .01(2) . Under Fratzke, 7 Tennill's failure to
specify or answer as to specific amounts of unliquidated damages sought in
response to a written interrogatory amounts to an effective answer that his
claim for unliquidated damages was zero.$
We agree with the Fratzke Court that CR 8 .01(2) is to be strictly
construed so as to put the burden on the claimant to submit the amount of
unliquidated damages in answers to written interrogatories because "the
purpose of the rule is to allow a party to discover the amount an opposing
party is seeking for unliquidated damage claims." 9 LaFleur was a follow up to
Fratzke, dealing with a failure to supplement the answers to interrogatories,
with the same result . 10 LaFleur held that under CR 8.01(2), the additional
6 749 S .W.2d at 693 .
7 12 S.W.3d at 271 .
s See also LaFleur , 83 S. W.3d at 474 (extending Fratzke to the failure to supplement
interrogatories and additional unliquidated damages) .
9 12 S.W.3d at 273 (emphasis in original) .
10 83 S. W.3d at 474.
amounts of unliquidated damages could not be recovered because "[t]he
purpose of the rule is to put a party on notice as to the amount of unliquidated
damages at stake." 11 Fratzke 12 recognized that a trial court can authorize
answers or supplemental answers to interrogatories for good cause, as late as
during the trial itself. However, there was no such request to the trial court in
either Fratzke 13 or LaFleur. 14 Because the purpose of CR 8.01(2) is to give the
opposing parties notice of the amount of the claim, Fratzke held that the failure
to answer the interrogatories on the amount of unliquidated damages was not
harmless . 15 However in the case sub judice, after requesting discovery through
written interrogatories, the opposing party scheduled the injured party's
deposition for discovery of the "amount of damages" and the nature of the
claims, other than medical expenses, lost wages, pain and suffering. Tennill
appeared at the deposition and answered all of Talai's questions. Before and
after the deposition, Tennill's attorney informed Talai's insurance carrier or his
attorney that he was looking for policy limits of $25,000 .00 if settled before
trial . At no time did Talai's attorney seek a further explanation or investigation
of the amount of damages . Under this set of circumstances, we opine, that
unlike in Fratzke, the error here in not providing written answers to the
interrogatories, was harmless in that Talai's counsel waived strict compliance
11 83 S .W.3d at 481 (emphasis added) .
12
13
14
15
12 S.W.3d at 272 .
Id. at 273.
83 S .W .3d at 477.
12 S .W.3d at 273 .
with CR 8.01(2) when he scheduled a deposition on damages and failed to ask
the questions. Therefore, we must reverse the Court of Appeals' opinion as to
damages and reinstate the trial court's judgment, albeit on other grounds .
Accordingly, the decision of the Court of Appeals is affirmed in part and
reversed in part.
All sitting. All concur.
COUNSEL FOR APPELLANT/ CROSS-APPELLEE :
Leroy E. Sitlinger, Jr .
Sitlinger, McGlincy, Steiner, Theiler 8v Karem
370 Starks Bldg.
455 South Fourth Avenue
Louisville, KY 40202
COUNSEL FOR APPELLEE/ CROSS-APPELLANT:
David Alfred Shearer, Jr.
David Wells Zahniser
James Middleton Cawood, III
Freund, Freeze 8v Arnold
Fourth 8v Walnut Centre
105 East Fourth Street, Suite 1400
Cincinnati, OH 45202
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
