Civil Procedure Protections for incarcerated defendants served in civil action addressed

Issues surrounding serving and complying with Civil Rules involving civil actions against incarcerated defendants can be a problem.  The following unpublished decision contains some black letter law of import and note.

76.  DEFAULT JUDGMENTS, PRISONERS/CONFINED DEFENDANTS, AND C R 17.04(1)
WEIRD (THOMAS)
VS.
EMBERTON (ERIC)
OPINION REVERSING IN PART AND REMANDING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS)
2007-CA-000938-MR
NOT TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Thomas Weird appeals1 from the April 3, 2007, opinion and order of the Jefferson Circuit Court granting Eric Emberton’s motion to set aside an order entered on December 6, 2006, which had set aside a default judgment entered on December 6, 2005, and allowed Weird’s ex-wife, Cheryl, to intervene. [1    Whether this appeal was timely filed was the subject of a prior appeal to this Court, Weird v. Emberton, Case No. 2007-CA-000938-MR, in which the Supreme Court of Kentucky granted discretionary review. In Weird v. Emberton, 306 S.W.3d 67 (Ky. 2010), the Supreme Court determined the appeal was timely filed where the Jefferson Circuit Court Clerk’s Office was closed for observance of the Kentucky Derby Parade on the last day for filing the notice of appeal.] Due to noncompliance with CR2 17.04(1), relative to entry of the December 6, 2005, default judgment, we reverse in part and remand for proceedings consistent with this Opinion.

The limited focus of this appeal is the operation of CR 17.04(1) as it
pertains to the lack of filing a timely answer to a complaint and a subsequent motion for default judgment. Weird argues default judgment should never have been entered against him because he was an inmate throughout the twenty days he had to respond to the complaint, he failed to file an answer to the complaint, and no guardian ad litem was appointed by the trial court to represent him prior to entry of the judgment. In contrast, Emberton argues Weird was free on bond at the time default judgment was entered and therefore the appointment of a guardian ad litem required under CR 17.04(1) was not triggered. We agree with Weird and reverse in part and remand.


The limited focus of this appeal is the operation of CR 17.04(1) as it pertains to the lack of filing a timely answer to a complaint and a subsequent motion for default judgment. Weird argues default judgment should never have been entered against him because he was an inmate throughout the twenty days he had to respond to the complaint, he failed to file an answer to the complaint, and no guardian ad litem was appointed by the trial court to represent him prior to entry of the judgment. In contrast, Emberton argues Weird was free on bond at the time default judgment was entered and therefore the appointment of a guardian ad litem required under CR 17.04(1) was not triggered. We agree with Weird and reverse in part and remand.

As explained in Davidson, 859 S.W.2d at 664, [t]he language of CR 17.04 is quite clear as to the proper course of action available to the court when an imprisoned defendant fails or is unable to defend an action brought against him. In all such cases the court is required to appoint a practicing attorney as guardian ad litem and may not proceed with trial until the required duties are performed by the guardian ad litem.

Upon a careful reading of CR 17.04(1), we deem the controlling language of the rule to be, “[i]f for any reason the prisoner fails or is unable to defend an action, the court shall appoint a practicing attorney as guardian ad litem[.]”3

In the case before us, it is undisputed that Weird was jailed in the Bullitt County Jail at the time he was served with the complaint, as was confirmed by the sheriff’s return on the summons. Further evidence of the trial court and Emberton being aware of Weird’s incarceration is Emberton’s motion for an order appointing a special bailiff to serve Weird and the trial court’s entry of the requested order. It is also undisputed that Weird remained an inmate until his release on bond on August 29, 2005. Therefore, he was jailed for the entire twenty days allotted to him to file an answer to the complaint. CR 12.01. It is further undisputed that no timely answer was filed prior to entry of the original default judgment for liability on September 20, 2005. Indeed, no answer was filed until January 26, 2007, after the trial court had granted Emberton’s motion to require Weird to answer the complaint or be subject to a motion for default judgment.

3    The scope of this Opinion is limited to its unique facts wherein Weird remained incarcerated throughout the entire twenty days he was afforded to file an answer upon being served the complaint and the trial court being aware of Weird’s incarceration.
Finally, it is undisputed that no guardian ad litem was ever appointed by the trial court to represent Weird prior to entry of the default judgment.

In light of the foregoing facts, we hold it was incumbent upon the trial court to appoint a guardian ad litem for Weird. No guardian having been appointed, reversal of that portion of the opinion reinstating the default judgment entered on December 6. 2005, is required with remand for trial and/or further proceedings.

As explained in Davidson, the application of CR 17.04 is not discretionary with the trial court. The rule does not distinguish between voluntary and involuntary absences nor does it allow consideration of whether the prisoner possessed sufficient funds to obtain counsel of his own choosing. Rather, the express terms of CR 17.04 require the court to appoint a guardian ad litem if the prisoner fails to defend for any reason. The failure of the trial court to comply with the requirements of CR 17.04 is a sufficient basis to grant a new trial under CR 59.02(a). In fact, the appointment of a guardian ad litem under CR 17.04 was designed to prevent the very type of proceeding which took place in the circuit court.

Id. at 665. Here, the trial court erroneously focused on that portion of CR 17.04(1) that reads, “and no judgment shall be rendered against the prisoner” and surmised that since Weird was not a prisoner at the time the default judgment was entered that appointment of a guardian ad litem was unnecessary. The trial court’s reading of the rule ignores the preceding clause of the rule requiring appointment “[i]f for any reason the prisoner fails or is unable to defend an action[.]”

Having determined the trial court erred, we now turn our attention to the proper resolution of this appeal. The trial court’s initial error was its failure to appoint a guardian ad litem for Weird as required by CR 17.04(1) since Weird was a prisoner when he was served with the complaint, remained a prisoner during the entire time allotted for filing a timely answer, and failed to file an answer. Requiring the trial court to appoint a guardian ad litem pursuant to CR 17.04 at this point would be superfluous because Weird ultimately filed an answer on January 26, 2007. As explained in Davidson, the purpose of CR 17.04 is to preserve a prisoner’s due process rights. That purpose was accomplished when the trial court provided Weird additional time in which to file an answer, and he did so. The purpose of CR 17.04 having been satisfied, and the deleterious impact of the trial court’s initial error having been remedied, it would be illogical to require strict compliance with the requirement of appointment of a guardian ad litem under these facts and at this point in the litigation, and we decline to do so.
Finally, in its order entered on April 3, 2007, the trial court acknowledged committing a second error–improvidently allowing Cheryl to intervene when she lacked standing to ask that the default judgment be set aside. The effect of the order entered on April 3, 2007, was to reinstate the original default judgment which had been entered on December 6, 2005. However, default judgment was no longer an option because by that time, Weird had filed an answer to the complaint pursuant to a trial court order entered on January 4, 2007. Entry of a default judgment under CR 55.01 is unavailable once an answer has been
filed. Thus, reversal of that portion of the April 3, 2007, order that reinstated the default judgment is necessary.
For the foregoing reasons, the April 3, 2007, opinion and order is reversed in part and remanded for trial and/or proceedings consistent with this Opinion.

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