Kourtney Galloway v. Markea Bivens
2024-CA-1043
| Ky. Ct. App. | May 2, 2025Background
- Markea Bivens filed a complaint against Kourtney Galloway in Kentucky state court and served discovery requests, which Galloway did not answer.
- After Galloway failed to respond to both the initial and court-ordered discovery deadlines, Bivens sought sanctions, including that admissions be deemed admitted and entry of default judgment.
- The trial court held a hearing attended by Galloway and warned her that failure to comply by a set deadline would result in default judgment.
- Galloway failed to meet the extended deadline, resulting in default judgment against her, followed by a damages hearing where neither she nor her counsel appeared; substantial compensatory and punitive damages were awarded to Bivens.
- After learning of the damages award, Galloway, through new counsel, moved to set aside or vacate the default judgment, citing lack of communication with previous counsel.
- The trial court denied the motion, finding Galloway had notice and opportunity to act and failed to show a meritorious defense or lack of prejudice to Bivens.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of factual findings for default judgment | Galloway argues findings were inadequate; requests remand for more findings | Bivens contends findings were sufficient under CR 52.01 | Court held findings were adequate under CR 52.01 and no remand needed |
| Appropriateness of default judgment as a sanction for discovery failure | Galloway contends default judgment was an extreme, unwarranted sanction | Bivens argues repeated noncompliance justified default judgment | Court found repeated violations, warnings, use of lesser sanctions justified default judgment |
| Motion to set aside/vacate default judgment | Galloway alleges lack of communication from counsel and prompt action after learning of judgment justify setting aside default | Bivens argues Galloway had notice, failed to act, showed no meritorious defense, and further delay would prejudice Bivens | Court held Galloway failed good cause test; denied motion to set aside |
| Prejudice, willfulness, and opportunity to cure | Galloway argues unawareness due to attorney should absolve her of fault | Bivens asserts willfulness and prejudice due to delay, plus opportunity to cure was given | Court agreed with Bivens: plaintiff had both notice and opportunity, did not act; prejudice would result from reversal |
Key Cases Cited
- Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011) (trial courts must make a good faith effort at fact finding in written orders)
- R.T. Vanderbilt Co., Inc. v. Franklin, 290 S.W.3d 654 (Ky. App. 2009) (default judgment as discovery sanction should be reserved for extreme cases and several factors must be weighed)
- PNC Bank, N.A. v. Citizens Bank of Northern Kentucky, Inc., 139 S.W.3d 527 (Ky. App. 2003) (sets forth standard for setting aside a default judgment: good cause, meritorious defense, lack of prejudice)
- Perry v. Central Bank & Tr. Co., 812 S.W.2d 166 (Ky. App. 1991) (carelessness or negligence by a party or attorney insufficient to set aside a default judgment)
- VerraLab Ja LLC v. Cemerlic, 584 S.W.3d 284 (Ky. 2019) (party’s own neglect in failing to respond or protect own interests is not excused)