RENDERED: JANUARY 7, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-0289-MR

ROY STEWART APPELLANT

APPEAL FROM JACKSON CIRCUIT COURT

v. HONORABLE OSCAR GAYLE HOUSE, JUDGE

ACTION NO. 20-CI-00042

WILLARD MCQUEEN AND

TERESA HAMMONS APPELLEES

OPINION

AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.

CLAYTON, CHIEF JUDGE: Roy Stewart filed this appeal seeking this Court’s 

reversal of the Jackson Circuit Court’s default judgment in favor of Willard 

McQueen. Stewart claims that McQueen never served Stewart with process and 

that Stewart never entered an appearance in the action. Thus, Stewart claims that 
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the default judgment is void for lack of personal jurisdiction. Finding no error, we 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 5, 2020, McQueen filed a complaint in Jackson Circuit 

Court against Stewart and Teresa Hammons. McQueen alleged that he incurred 

severe injuries when multiple dogs owned by Stewart and Hammons attacked 

McQueen while lawfully on their property. 

After numerous attempts to serve Stewart and Hammons via the 

Jackson County Sheriff’s Office, McQueen filed a motion on June 12, 2020, 

requesting the circuit court to appoint a temporary special bailiff. McQueen 

indicated in his motion his belief that Stewart and Hammons were avoiding service 

of McQueen’s complaint. According to the motion’s certificate of service, 

McQueen’s counsel mailed a copy of the motion to Stewart’s home address.

The circuit court held a hearing on McQueen’s motion during a 

motion hour on July 7, 2020. Although neither party provided a video recording or 

transcript of the hearing for the record, both parties provided short summaries of 

the hearing in their briefs. McQueen’s counsel appeared at the hearing virtually 

via Microsoft Teams due to the COVID-19 pandemic and presented his motion to 

the circuit court to appoint a special bailiff for service of process upon both 

Stewart and Hammons. In their briefs, both parties also indicated that Stewart was 
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physically present in the courtroom for the hearing. McQueen states in his brief 

that the court explained to Stewart at the hearing that McQueen was attempting to 

effectuate service of the complaint upon him. Both parties agree that the court 

asked Stewart if McQueen had served him, and Stewart replied that he had not. 

Thereafter, the court indicated that it was granting the motion for the appointment 

of a special bailiff. The circuit court subsequently entered an order on July 16, 

2020, confirming that it was appointing a special bailiff for service on Stewart. 

The record includes proof of service from the special bailiff stating 

that a copy of the summons and complaint were “delivered” to Stewart “at his 

home” on July 20, 2020. The proof of service also indicated that Stewart “refused 

to sign.” While the special bailiff signed the proof of service, he did not provide a 

supporting affidavit as required from special bailiffs under Kentucky Revised 

Statutes (“KRS”) 454.145. 

McQueen subsequently filed a motion for default judgment on 

November 10, 2020. In his motion, McQueen alleged that the court-appointed 

special bailiff attempted service on Stewart on July 22, 2020, but that Stewart had 

concealed himself from the bailiff and had attempted to have his dogs attack the 

special bailiff. The motion further indicated that the special bailiff had ultimately 

left a signed copy of the complaint and civil summons on a vehicle located at 

Stewart’s place of residence. Finally, McQueen alleged that Stewart had filed no 
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responsive pleading and more than twenty days had passed since Stewart “entered 

his appearance before the circuit court” at the special bailiff hearing. 

The circuit court subsequently entered a default judgment against 

Stewart on December 3, 2020. In the order, the circuit court found that Stewart 

had entered an appearance with the court at the special bailiff hearing, that Stewart

had waived any defense of insufficiency of service of process, and that Stewart had 

filed no responsive pleading to McQueen’s complaint. 

Thereafter, the circuit court held a hearing on damages on February 2, 

2021, and ultimately entered an order granting default judgment damages in favor 

of McQueen for $298,914.00 plus costs of $405.00 and post-judgment interest. 

Stewart did not file a motion to set aside the default judgment under Kentucky 

Rule of Civil Procedure (“CR”) 55.02, opting instead to file a direct appeal.

ANALYSIS

a. Standard of Review

CR 55.02 permits a party against whom a trial court enters a default 

judgment to seek relief directly from the trial court. See CR 55.02 (“For good 

cause shown the court may set aside a judgment by default in accordance with 

Rule 60.02.”). However, instead of attempting to have the judgment set aside, a 

party may pursue a direct appeal from a default judgment. Jeffrey v. Jeffrey, 153 

S.W.3d 849, 851 (Ky. App. 2004). 
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However, it stands to reason that an appellate court’s standard of 

review of the circuit court’s action differs depending on which avenue a litigant 

pursues. Id. (citations omitted). When a defendant against whom a default 

judgment has been obtained files an immediate appeal without seeking relief from 

the circuit court’s default judgment by way of a motion pursuant to CR 55.02 and 

CR 60.02, the appellate court’s review is “limited to determining whether the 

pleadings were sufficient to uphold the judgment, or whether the appellant was 

actually in default.” Mingey v. Cline Leasing Service, Inc., 707 S.W.2d 794, 796 

(Ky. App. 1986) (citation omitted). 

b. Discussion

Stewart’s primary argument on appeal is that the circuit court erred in 

granting a default judgment in McQueen’s favor because McQueen had not 

personally served Stewart with the summons and complaint, and Stewart had not 

entered an appearance in the action. Thus, the circuit court had not obtained 

personal jurisdiction over him. 

As previously discussed, we must first determine “whether the 

pleadings were sufficient to uphold the judgment[.]” Id. While “a default 

judgment may not be based on a complaint which completely fails to state a cause 

of action, . . . it is also true that much leniency is shown in construing such a 
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complaint[.]” Crowder v. American Mut. Liability Ins. Co., 379 S.W.2d 236, 238 

(Ky. 1964). 

In this case, a review of the pleadings reveals them sufficient to 

uphold the circuit court’s default judgment entry. McQueen’s complaint alleged 

that he, Stewart, and Hammons were residents of Jackson County and that 

McQueen was claiming damages above the minimum amount necessary to invoke 

the circuit court’s jurisdiction. McQueen’s complaint further alleged that 

McQueen was lawfully at Stewart’s premises; that multiple dogs owned by Stewart 

and Hammons attacked and bit McQueen; that the dogs were vicious by nature and 

that Stewart and Hammons had notice of the dogs’ vicious nature; that Stewart and 

Hammons wrongfully, unlawfully, and injuriously kept and harbored the dogs and 

wrongfully and negligently allowed the dogs to cause McQueen’s injuries; and that 

Stewart’s and Hammons’s failure to confine or restrain the dogs was the direct and 

proximate cause of McQueen’s severe physical and emotional injuries. The 

complaint further alleged that Stewart and Hammons violated KRS 258.235 by 

failing to control their animals properly. Consequently, the complaint indicated 

that McQueen sought damages against Hammons and Stewart. The preceding 

language evidences “a short and plain statement of the claim showing that the 

pleader is entitled to relief and . . . a demand for judgment for the relief to which he 

deems himself entitled.” CR 8.01.
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We next turn to the circumstances under which a trial court may enter 

a default judgment. CR 55.01. Those circumstances are either when a defendant 

does not appear in an action or when a defendant who has appeared fails to defend 

as the civil rules require. See CR 55.01 (“When a party against whom a judgment 

for affirmative relief is sought has failed to plead or otherwise defend as provided 

by these rules, the party entitled to a judgment by default shall apply to the court 

therefor.”). 

It strains credulity to conclude that McQueen was not entitled to a 

default judgment when the record reflects that Stewart willfully and purposely 

avoided service of process, even potentially endangering the physical well-being of 

the special bailiff in his attempts to personally serve Stewart with process. The 

foregoing, coupled with Stewart’s presence at – and presumptive notice of – the 

special bailiff hearing and notification by the circuit court that McQueen was 

attempting to effectuate personal service on Stewart, provide no excuse or 

explanation for Stewart’s complete failure to respond to any of McQueen’s

pleadings. McQueen provided Stewart with notice of every pleading that 

McQueen filed, and the circuit court clerk provided Stewart with a copy of every 

order entered by the circuit court. Finally, McQueen provided ample notice to 

Stewart of his intent to file a motion for default judgment under CR 55.01 – if 

indeed such notice was even required – as the clerk sent a copy of McQueen’s
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motion for default judgment to Stewart on November 6, 2020 and the circuit court

did not hold a hearing on the motion until December 1, 2020, well after the rule’s 

three-day requirement for those litigants who have appeared in the action. See

55.01. 

Therefore, applying the standard discussed in Jeffrey, supra, we find 

that the pleadings were sufficient to uphold the judgment and that Stewart was in 

default under the provisions of CR 55.01. 

CONCLUSION

For the foregoing reasons, we affirm the Jackson Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Edward L. Cooley

Nicole Iuliano

Ryan Robey

Lexington, Kentucky

BRIEF FOR APPELLEES:

Brittany N. Riley

London, Kentucky