Howard v. Fountain
| Decision Date | 19 February 1988 |
| Docket Number | No. 86-CA-2794-S,86-CA-2794-S |
| Citation | 749 S.W.2d 690 |
| Parties | Dr. Harold HOWARD, Appellant, v. Jacob FOUNTAIN and Charmaine Fountain, Appellees. |
| Court | Kentucky Court of Appeals |
Larry D. Beale, Louisville, for appellant.
Marc A. Yussman, Lisa Yussman Wall, Louisville, for appellees.
Before CLAYTON, DYCHE and McDONALD, JJ.
Harold Howard, D.M.D., appeals from a denial by the Jefferson Circuit Court of his motions to vacate a default judgment on the issue of liability and a subsequent judgment assessing damages. While we find no abuse of discretion by the trial court in denying the motion to vacate the default judgment on the issue of liability, we believe that the trial court erred in failing to notify Dr. Howard of the hearing for assessment of damages when he had entered an appearance in the action. Accordingly, we affirm the denial of the motion to vacate the default judgment and reverse the denial of the motion to vacate the judgment assessing specific damages.
The appellees, Jacob and Charmaine Fountain, filed a complaint on November 13, 1985, against the appellant, Harold Howard, D.M.D., alleging negligence in the failure to render acceptable dental care, diagnosis and treatment of a root canal. No answer, motion or any type of pleading was filed by Dr. Howard within the twenty days provided by CR 12.01. Dr. Howard's time to file a responsive pleading expired on Thursday, December 5, 1985, and on Friday, December 6, 1985, the Fountains filed a motion for judgment by default. The trial court granted the motion, and entered the default judgment on that day, December 6, 1985. At the time the default judgment was entered, the trial court scheduled a hearing date for January 31, 1986, to assess damages.
On Monday, December 9, 1985, Dr. Howard, unaware that he had been adjudged in default, filed an answer with the trial court. His answer was late and was not accompanied by a motion for enlargement of time pursuant to CR 6.02.
The trial court held an ex parte hearing on January 31, 1986, to assess damages. Dr. Howard never received notice of this hearing and it is conceded that no notice was sent to him. The Fountains presented testimony of two dentists who administered subsequent treatment to Mr. Fountain in an attempt to rectify the poor condition of his tooth due to the alleged negligent care he received from Dr. Howard. Judgment was entered on March 5, 1985, in the amount of $7,973.50 for pain and future medicals, $601.60 for lost wages, and $25,000 for permanent psychological injury. Mrs. Fountain was not awarded any damages for loss of society, companionship and services of her husband.
On August 4, 1986, Dr. Howard filed a motion pursuant to CR 55.02 and CR 60.02 to set aside the judgments entered on December 6, 1985, and March 5, 1986. However, the motion was not accompanied by a statement of the grounds relied upon and it was overruled on August 7, 1986.
On October 23, 1986, Dr. Howard filed another motion to set aside the judgments. This motion contained an affidavit of Dr. Howard's counsel stating that his client first contacted him regarding the summons and complaint on December 5, 1985. Counsel further stated that his client was unable to recall the date upon which he had been served. In addition, counsel stated that he had received no notice of the hearing on damages. The motion was overruled on October 27, 1986.
On November 20, 1986, Dr. Howard filed a third motion with the trial court. This motion sought to amend or alter the order entered on October 27, 1986, to reflect a recitation of finality from which an appeal could be taken. The trial court overruled the motion and noted that the judgments became final on August 7, 1986, when the trial court overruled Dr. Howard's motion to set the judgments aside.
Dr. Howard appealed to this Court on November 25, 1986. The Fountains moved for dismissal because the notice of appeal was not filed within thirty days of the final order entered on August 7, 1986. The Fountains' motion was denied because the time for filing the notice of appeal technically never began to run since the circuit court clerk failed to make docket notation of the service of notice of entry of the August 7, 1986 order.
On appeal, Dr. Howard first contends that the trial court abused its discretion in failing to grant either of his motions to set aside the judgments entered on December 6, 1985, and March 5, 1986. Dr. Howard's first motion to set aside judgment was filed on August 4, 1986. The motion did not attempt to show reasonable excuse or good cause why the judgments should be set aside. In the absence of such a showing, a default judgment will not be set aside. Green Seed v. Harrison, Ky.App., 663 S.W.2d 755 (1984); CR 55.02. Accordingly, we find no abuse of discretion in the denial of Dr. Howard's first motion.
Dr. Howard's second motion filed on October 23, 1986, contained an affidavit of Dr. Howard's counsel stating that Dr. Howard contacted him on December 5, 1985, and he filed an answer on December 9, 1985. Although default judgments are not favored, trial courts possess broad discretion in considering motions to set them aside and we will not disturb the exercise of that discretion absent abuse. Kidd v. B. Perini & Sons, 313 Ky. 727, 233 S.W.2d 255 (1950). We cannot say that it is an abuse of discretion in this case where "good cause" was mere inattention on the part of the defendant or his attorney, and good cause was not shown until seven months after entry of judgment regarding damages and ten months after entry of the default on the liability issue. See Jacobs v. Bell, Ky., 441 S.W.2d 448 (1969); Childress v. Childress, Ky., 335 S.W.2d 351 (1960).
Dr. Howard's second argument to this Court is that the trial court erred in entering the judgment assessing damages without affording him notice of the damage assessment hearing held on January 31, 1986. We agree.
In a default judgment situation, the defaulting party admits only such allegations on the pleadings as are necessary to obtain the particular relief sought by the complaint. 1 Wilson's Administrator v Wilson, 288 Ky. 522, 156 S.W.2d 832 (1941). As a general rule, in an action for unliquidated damages, a defaulting party admits liability but not the amount of damages. Pope v. United...
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