Kenneth A. Downard Et. Al. v. Maynard Builders, Inc. Et. Al., 2025-CA-0706

Background

The Downards sued Maynard Builders and the Maynard defendants over an unfinished home-construction contract and obtained partial judgment on the pleadings, including against Lois Maynard on unjust enrichment. 1
The August 2024 order was entered as final and appealable, and the Downards later voluntarily dismissed their remaining claims. 2
After a judgment lien was filed against Lois’s property, Bennett moved to release the lien and then filed a verified CR 60.02(a) motion to set aside the judgment against Lois. 3
The circuit court granted CR 60.02(a) relief, finding Bennett’s failure to receive, review, and object to the tendered order was excusable neglect rather than negligence. 4
The Downards appealed, arguing the relief rested on attorney negligence and that any service-of-process issue was waived and not the basis of the order. 5

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was lack of service a basis for CR 60.02 relief? 6	Downards said no service issue was preserved or relied upon.	Lois argued she lacked proper notice and service.	No; service was not the basis and any such defense was waived. 7
Did Bennett represent Lois before the lien? 8	Downards said Bennett appeared for Lois throughout.	Lois claimed Bennett did not represent her until after the lien.	Yes; the record showed Bennett acted for Lois before the lien. 9
Was CR 60.02(a) relief proper for attorney neglect? 10	Downards argued attorney negligence is not excusable neglect.	Lois said Bennett’s mistake was excusable neglect.	No; the circuit court abused its discretion and relief was reversed. 11

Key Cases Cited

Jolly v. Jolly, 698 S.W.3d 427 (Ky. App. 2024) (CR 60.02 rulings are reviewed for abuse of discretion 12)
Lawson v. Lawson, 290 S.W.3d 691 (Ky. App. 2009) (defines abuse of discretion 13)
Schell v. Young, 640 S.W.3d 24 (Ky. App. 2021) (court may discuss only the most pertinent appellate arguments 14)
Cox v. Rueff Lighting Co., 589 S.W.2d 606 (Ky. App. 1979) (absence of actual notice can justify setting aside a default judgment 15)
Lawrence v. Bingham Greenebaum Doll, L.L.P., 599 S.W.3d 813 (Ky. 2019) (general appearance can waive personal-jurisdiction and service objections 16)
Brumleve v. Cronan, 197 S.W. 498 (Ky. 1917) (general appearance principles waive jurisdictional objections 17)
Vanhook v. Stanford-Lincoln Cnty. Rescue Squad, Inc., 678 S.W.2d 797 (Ky. App. 1984) (attorney negligence is imputable to the client and not CR 60.02 relief 18)
Brozowski v. Johnson, 179 S.W.3d 261 (Ky. App. 2005) (attorney negligence is not a proper basis for CR 60.02(a) relief 19)
Bruenger v. Miller, 706 S.W.3d 247 (Ky. 2024) (CR 60.02 cannot correct a court’s mistake of law 20)
Brown v. Harris, 321 S.W.2d 781 (Ky. 1959) (counsel must monitor the case and appeal deadlines 21)
Powell v. Powell, 720 S.W.3d 900 (Ky. App. 2025) (missing a jurisdictional appeal deadline is not excusable neglect 22)
Estate of Reeder v. Ashland Police Department, 588 S.W.2d 160 (Ky. App. 2019) (reinforces strict appellate-deadline consequences 23)
Kindred Nursing Centers Ltd. P'ship v. Sloan, 329 S.W.3d 347 (Ky. App. 2010) (written orders control over conflicting oral statements 24)
Jackson v. Estate of Day, 595 S.W.3d 117 (Ky. 2020) (CourtNet is not an official court record 25)