Kenneth A. Downard Et. Al. v. Maynard Builders, Inc. Et. Al.Kenneth A. Downard Et. Al. v. Maynard Builders, Inc. Et. Al.
REVERSING AND REMANDING
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BEFORE: CALDWELL, ECKERLE, AND TAYLOR, JUDGES.
CALDWELL, JUDGE: Kenneth and Kathy Downard (“the Downards”) filed suit against multiple defendants and successfully moved for judgment on the pleadings on some of their claims. One defendant later successfully moved to set aside only
FACTS
In May 2024, the Downards filed suit against Maynard Builders, Inc., (“Maynard Builders”) and Joshua, Caroline, and Lois Maynard for claims relating to a failure to complete the contracted-for building of a residence. The complaint asserted some claims solely against Maynard Builders and Joshua Maynard (“Joshua”)—specifically, Count 1 (breach of contract), Count 2 (fraudulent misrepresentation/fraud in the inducement), and Count 3 (conversion). The complaint also asserted some claims against all defendants—namely, Count 4 (unjust enrichment), and Count 5 (piercing the corporate veil).
In July 2024, the Downards filed a motion for default judgment. Shortly thereafter, Attorney Robin C. Bennett (“Bennett”) filed a late answer on behalf of the defendants. The answer included an assertion that Lois Maynard (“Lois”) should be dismissed from the lawsuit because she was no longer an officer
After the answer was filed, the Downards filed a motion for partial judgment on the pleadings. They contended that, due to admissions in the answer, they were entitled to judgment on the pleadings on their claims for breach of contract, conversion, and undue enrichment (Counts 1, 3, and 4). No written response was filed before the circuit court held a hearing on the motion for partial judgment on the pleadings.
The parties’ attorneys appeared at the hearing before the circuit court on July 26, 2024. The judge stated that, since a late answer had been filed, the motion for a default judgment would be denied. Next, the attorneys orally argued the motion for partial judgment on the pleadings. Bennett orally argued that the motion for partial judgment on the pleadings should be denied because some facts were disputed. She also orally noted that the answer asserted Lois should be dismissed for lack of standing since she was no longer an officer or shareholder of Maynard Builders when the contract was executed. Counsel for the Downards pointed out no motion to dismiss had been filed.
After hearing oral argument, the judge orally stated she would be granting the motion for partial judgment on the pleadings and asked that an order to this effect be tendered. Downards’ counsel tendered an order granting the
In October 2024, the Downards filed a motion to voluntarily dismiss their remaining claims (for fraudulent misrepresentation/fraud in the inducement and for piercing the corporate veil). The circuit court granted this motion in an order entered on October 16, 2024.
Both the August 2024 order granting the Downards partial judgment on the pleadings and the October 2024 order voluntarily dismissing the Downards’ remaining claims contained statements indicating these orders were final and appealable with no just cause for delay.
In March 2025, Bennett filed on behalf of Lois, now known as Lois Harris following her remarriage, a motion to release a judgment lien on real estate. The motion stated: “On August 5, 2024, the Plaintiffs were granted a partial summary judgment against defendants Maynard Builders, Inc., Joshua Maynard,
The motion further noted the Downards had voluntarily dismissed their remaining claims of fraudulent misrepresentation and piercing the corporate veil in October 2024. The motion asserted this voluntary dismissal “should have acted as a release for any and all liability for the Plaintiffs’ claims against Ms. Harris in this action.” (R, p. 89.)
The motion asserted the Downards had filed a judgment lien against all property owned by Lois in Fayette County on February 5, 2025. It also argued that the lien should be released because there was no judgment against Lois.
The Downards filed a response objecting to the motion to release the lien. The response accurately noted the court’s August 2024 order granting partial judgment on the pleadings specifically named Lois as being jointly and severally liable, and stated that the order was final and appealable with no just cause for delay. The response asserted, inter alia, that the August 2024 order granting partial judgment on the pleadings was clearly a judgment entered against Lois, jointly and severally. The response also noted that no appeal had been filed from the August 2024 order and asserted the time for filing a timely appeal had passed. See generally
The reply/countermotion also stated that Lois was served with a copy of the judgment lien entered against Lois’ property at a Hart Road address in Lexington on February 5, 20253—which prompted Lois to immediately contact Bennett to see if an error occurred.
The reply/countermotion further stated Bennett reviewed the answer and her notes from the late July 2024 hearing on the motion for partial judgment on the pleadings after Lois contacted her. It also indicated Bennett thought the partial judgment on the pleadings4 was only granted against Maynard Builders and Joshua
The reply/countermotion further acknowledged that, after receiving communications from opposing counsel, Bennett then reviewed the tendered order on the motion for partial judgment on the pleadings “and saw that the order included Ms. Harris [Lois], as a liable defendant, which it should not have done.” (R, p. 107.)
The reply/countermotion then suggested that the motion to release the lien should be treated as a
Next, the Downards filed a response objecting to the countermotion, followed by Lois’ filing a reply to the Downards’ response.
The circuit court conducted a hearing on the motion to release the lien in late March 2025. The judge orally stated the motion to release the lien would be denied since a written judgment had been entered against Lois. The judge further stated a proper motion for
Meanwhile, Bennett had filed on Lois’ behalf a verified motion, pursuant to
Following briefing on the
On May 21, 2025, the circuit court entered a written order granting the
The court held that, due to evidence of Lois’ divestment, she could not be held liable simply based on being an officer or shareholder of Maynard Builders, although this did not necessarily preclude Lois’ being held liable for unjust enrichment on other bases. The court thus determined that judgment on the pleadings against Lois was not justified, although it had been obtained. The court stated Lois had raised meritorious defenses, including in the answer.
Ultimately, the court concluded there had been a mistake, neglect, or inadvertence in “Defendant’s allowing the Plaintiff’s draft of an order which contradicted what at least some present at the hearing believed the Court had said, to be entered unchallenged.” (R, p. 174.) Thus, considering the prejudice to Lois, the court set aside the judgment of liability against Lois based on mistake, inadvertence or excusable neglect. However, the court also stated that nothing prevented further litigation on the merits of the claim against Lois. The court further stated that the judgment entered against the other defendants remained in place with an effective date of August 1, 2024 (the date the court electronically signed the partial judgment on the pleadings).
ANALYSIS
Standard of Review
We review a lower court’s ruling on a
With these parameters in mind, we discuss relevant arguments made in the parties’ appellate briefs. “We have considered the parties’ extensive arguments and citations to authority but will discuss only the arguments and cited
In our view, the most pertinent arguments raised by the parties on appeal concern whether the judgment against Lois was properly set aside for mistake, inadvertence, or excusable neglect—especially considering indications that Lois did not receive notice of the action and/or was not properly served with process prior to the entry of the partial judgment on the pleadings in August 2024. Intertwined with arguments about any lack of proper notice or service of process is an assertion on appeal that Bennett did not represent Lois until Lois contacted her about the judgment lien and Bennett filed motions for relief on Lois’ behalf.
First, we consider the appellee brief’s argument that the circuit court’s grant of
Any Lack of Proper Service of Process Was Not the Basis for the Circuit Court’s Grant of CR 60.02 Relief and Appears to be Waived by Lack of Any Filed Pleading or Motion Asserting that Lois Was Not Properly Served or Challenging the Circuit Court’s Exercise of Personal Jurisdiction over Lois
On appeal, Lois contends the granting of
We think that in a case such as the instant one which is a simple one-on-one action for debt, a trial judge would be hard pressed to refuse to set aside a default judgment if he were truly convinced that the movant had no actual notice in fact and was possessed of an arguably meritorious defense.
Cox v. Rueff Lighting Co., 589 S.W.2d 606, 607 (Ky. App. 1979).
We note the order set aside by the circuit court pursuant to
Perhaps more importantly, the circuit court did not state it was convinced that Lois had no actual notice in fact or was not properly served with process in its order granting
Instead, an answer for the defendants—with no stated exception for any individual defendant such as Lois—had been filed by Bennett. This answer made other assertions about Lois, but did not mention any lack of service on Lois. Again, lack of notice or insufficiency of service of process was not raised in any
Also, any defense of lack of proper notice or insufficiency of process appears to be waived by entry of a general appearance through the answer9 and motions for relief without Lois’ first making a special appearance solely to challenge the circuit court’s exercise of jurisdiction over her based on lack of notice or insufficiency of process. See generally Lawrence v. Bingham Greenebaum Doll, L.L.P., 599 S.W.3d 813, 822-23 (Ky. 2019) (quoting Brumleve v. Cronan, 176 Ky. 818, 197 S.W. 498, 504 (1917)).
In short, the circuit court did not base its granting of
The appellee brief repeatedly states that Bennett did not represent Lois until after Lois was served with the judgment lien. For example, page 1 of the appellee brief (part of the counterstatement of the case) states:
at no point during the pendency of this Action, prior to the judgment lien being filed against her property, did Ms. Bennett represent Ms. Harris. Resentation [sic] of Ms. Harris should not have even been presumed by the Plaintiffs as the dual representation would have rendered representation of Ms. Harris by Maynard Builders, Inc.’s attorney impossible due to the obvious and apparent conflict of interest that was not waived by Ms. Harris.10
Similarly, page 8 of the appellee brief argues:
At no point was counsel for Maynard Builders, Inc. retained by Ms. Harris to answer the complaint or to enter an appearance on her behalf, until such time as a judgment lien was recorded against her property in Fayette County. The Appellants merely behaved as if Ms. Harris had answered the Complaint when she failed to do so.
Having carefully examined the order granting
Especially considering the lack of statements to the circuit court that Bennett did not represent Lois in the proceedings culminating with the entry of the partial judgment on the pleadings, Bennett’s making arguments on Lois’ behalf in these pre-judgment-lien proceedings amounts to her representing Lois in court. See Represent, BLACK’S LAW DICTIONARY (12th ed. 2024) (“to speak or act for (another or oneself) in court”). Even if Lois did not intend to retain Bennett prior to being served with the judgment lien, Bennett’s making arguments on Lois’ behalf during pre-judgment-lien proceedings effectively conveyed to others (including the circuit court and opposing parties) that Bennett was representing Lois in these proceedings.
Also, based on our review of the record, Lois never specifically argued to the circuit court after being served with the judgment lien that Bennett
Thus, we reject the appellee brief’s assertion that Bennett did not represent Lois prior to service of the judgment lien. The record indicates that Bennett held herself out as representing Lois throughout these proceedings as Bennett made written and oral arguments on Lois’ behalf and never explicitly stated to the circuit court that she did not represent Lois.
Having rejected the appellee brief’s assertion that Bennett did not represent Lois until after service of the judgment lien, we now squarely address the Downards’ argument that the circuit court erred in granting relief under
Relief Under CR 60.02(a) Was Erroneously Granted for Attorney Negligence
As noted by the Downards, published precedent from this Court holds that an attorney’s negligence is imputable to his or her client and is not a proper ground for granting relief pursuant to
In an interesting twist, the circuit court took note of this precedent in its order granting Lois relief under
Although CR 60.02 clearly contemplates that some amount of neglect or mistakenness may be excusable, Plaintiffs point out that negligence of an attorney is imputable to her client and is not grounds for CR 60.02 relief for the client. Therefore, in this case, the Court must decide whether Ms. Bennet’s [sic] failure to receive, review, and object to the documents served on her, and failure to notice that she was not receiving them, was excusable neglect, or whether it rises to the level of negligence that cannot be excused, as Plaintiffs assert it must. Plaintiffs appear to believe that Ms. Bennet [sic] could in fact access her Suhre & Associates email after the dates she stated; their evidence for this appears to be wholly circumstantial. However, from reviewing the record, the Court is inclined to believe Ms. Bennet’s [sic] account that she believed that she had successfully spared Lois from judgment on the pleadings and did not discover her error until after her motion to release the judgment lien—which otherwise would have been pointlessly and impudently frivolous—was filed. The clerk’s notes on CourtNet, which specifically list judgment against the other three Defendants, but not Lois, bolster this account. The question is how culpable her failure to confirm this belief was, and specifically, how culpable was it not to better ensure that she received emails and notifications through her listed addresses on CourtNet, or update those listings.
Plaintiffs pointed out that it is an attorney’s responsibility to make sure that her identification within the eFiling system is accurate and enables her to receive notifications, not that of the court, the clerk, or the AOC. This is true. Plaintiffs further pointed out that an attorney may create more than one “identity” on CourtNet, and suggested that Ms. Bennet [sic] ought to have created a separate “identity” for her work for Defendants, if it had
to be separated from her Suhre work. However, even if doing so would have obviated the confusion and caused all communications and notices to be sent to the right address, the question before the Court is whether neglect to do so is excusable.
Certainly, Defendants’ counsel could and should have better negotiated the Efiling system. She could and should have better illuminated Lois’s defense for the Court, and memorialized it in a written response. And if, as she states, she did not believe that the Court’s oral judgment pertained to Lois, she could and should have exercised greater diligence to review the written order tendered by opposing counsel before it became final. However, the Court concludes that her failure to do so constitutes inadvertence and/or excusable neglect in the totality of the circumstances. The Court is aware from experience and observation that Ms. Bennett is far from the only user to have had difficulties with the CourtNet system, as efficient and useful as it generally is. Ms. Bennett made at least some effort to update her email address in the system, and included her private email address in the signature block of the Defendants’ Answer. Although Plaintiffs have many suggestions for how Ms. Bennett could have better guided them to serve the proposed order on the correct address, these are all made with the benefit of hindsight. Especially given the grave prejudice to Lois, whose assets are placed in jeopardy despite the distinct possibility that she is not liable on the merits, the Court believes that the extraordinary relief authorized by CR 60.02 is appropriate.
(Pages 6-8 of Order entered May 21, 2025, attached as Appendix 1 to Appellants’ red brief, also located at R, pp. 174-76) (footnotes omitted) (emphasis in original).
The Downards argue that the circuit court “abused its discretion by excusing the conduct of counsel as ‘neglect’ instead of negligence, and in granting
As the circuit court noted, written judgment was entered against Lois in August 2024.11 And while the circuit court expressed doubts about the legal validity of this judgment in the May 2025 order granting Lois relief from this judgment, the circuit court correctly recognized that “
The circuit court recognized that essentially the only kind of mistake or neglect which would merit
The circuit court indicated Bennett had neglected to do an optimal job of keeping her CourtNet information updated, and of monitoring the case and of filing timely and appropriate motions and responses. Nonetheless, the circuit court concluded that Bennett’s neglect was excusable, especially considering the difficulty many users had in using CourtNet, and did not rise to the level of negligence. Perhaps, even though the Court perceived Bennett’s conduct as being neglectful in the sense of not having always done what she should have done, the circuit court believed Bennett’s conduct did not fulfill all elements of negligence such as duty, breach, causation, and injury. See, e.g., Osborne v. Keeney, 399 S.W.3d 1, 9-10, 17-18 (Ky. 2012).
However, the circuit court did not specifically identify how Bennett’s conduct could be considered excusable neglect rather than negligence. For example, the court did not find that no injury resulted from Bennett’s conduct.
Most importantly, in granting
(b) It is the responsibility of the registrant to have a valid and working email address that has not exceeded its size limitation in order to receive electronic service of eFilings. It is not the responsibility of the court, the clerk, or the AOC to ascertain whether a registrant is receiving notifications from the eFiling system via email.
(c) If a registrant’s email address, phone number, or other information provided in their profile has changed, the registrant must promptly make the necessary changes to his or her profile.
Bennett purportedly left the Suhre firm in the short time between the hearing and the issuance of the partial judgment on the pleadings.12 However, Bennett evidently did not change her official eFiling contact information immediately upon leaving the Suhre firm.
Moreover, even assuming arguendo that Bennett’s not changing her eFiling contact information in the few days between the hearing and entry of judgment did not amount to a failure to promptly make changes to her profile, Bennett still had a duty to monitor the case. See, e.g., Brown v. Harris, 321 S.W.2d 781, 783 (Ky. 1959) (citing former
Failure of the trial court to require service of notice of entry of any judgment or order under this rule or the failure of the clerk to serve such notice, or the failure of a party to receive notice, shall not affect the validity of the judgment or order, and does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in RAP 3.
Moreover,
Failure of the trial court to require service of notice of entry of any judgment or order under this rule, failure of the clerk to serve such notice, or failure of a party to receive notice shall not affect the validity of the judgment or order, and does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in section (E) of this rule.
(
While perhaps Bennett’s failure to update her CourtNet information or access the tendered order in the five days between the hearing and the court’s electronically signing the tendered order granting partial judgment on the pleadings was excusable, her failing to properly monitor the case afterwards was not. This is
Essentially, Lois was prejudiced because a final and appealable judgment was rendered against her and no appeal was filed within the mandatory, jurisdictional thirty-day deadline set forth in
Recent precedent from this Court affirms that counsel has a duty to monitor their pending cases, especially given the strict and jurisdictional deadlines for filing a timely appeal and especially where counsel knows that a dispositive motion is before the court and is likely to be resolved by judgment soon. Powell v. Powell, 720 S.W.3d 900, 906-07 (Ky. App. 2025).
When, as here, a final and appealable judgment is rendered against a client and an attorney fails to file a timely appeal, Kentucky precedent makes clear that this cannot be considered excusable neglect. Id. See also Estate of Reeder v. Ashland Police Department, 588 S.W.2d 160, 166-68 (Ky. App. 2019).
While we understand that the circuit court may have perceived it harsh to uphold its written judgment against Lois, especially considering its perception that Lois may have had meritorious defenses to the claims against her,
Lisa Vanhook would have been entitled to a verdict and judgment in this case. Like the young Davis boy, she was merely an innocent passenger in one of the two vehicles. Both she and her husband were denied their day in court by the unexplained absence of their attorney. To reverse her case would require a re-trial of the original action. Her complaint was against the owners and drivers of both vehicles. We cannot compel them to go through another trial.
. . .
If appellants, Lisa Vanhook and Cecil Vanhook, are to be compensated for their losses, it will have to be in another case, in another forum and against other parties.
As the circuit court noted, the Downards were also understandably concerned about recovering their money, especially given indications of Maynard Builders’ insolvency due to numerous pending lawsuits. Also, as the Downards emphasize on appeal, they had voluntarily dismissed their remaining claims after the deadline for appealing the August 2024 order had passed.
Especially given the prejudice to both the Downards and Lois, the circuit court abused its discretion in granting
Thus, we REVERSE the circuit court’s grant of relief pursuant to
CONCLUSION
For the foregoing reasons, we REVERSE the order granting
ALL CONCUR.
BRIEFS FOR APPELLANTS:
James M. Morris
Sharon K. Morris
Tyler J. Morris, Sr.
Lexington, Kentucky
Notes
A party who makes a motion under Rule 12 may join with it the other motions herein provided for and then available to him. If a party makes a motion under Rule 12 but omits therefrom any defense or objection then available to him which Rule 12 permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in paragraph (2) of Rule 12.08 on any of the grounds there stated.
A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (a) if omitted from a motion in the circumstances described in Rule 12.07, or (b) if it is neither made by motion under Rule 12 nor included in a responsive pleading or an amendment thereof permitted by Rule 15.01 to be made as a matter of course.