MARTIN GRUBBS v. KENTUCKY FARM BUREAU INSURANCE COMPANY; AND TIFFANY PENNEBAKER, A MINOR, BY HER BEST FRIEND, CHERYL PENNEBAKER
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RENDERED: August 15, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001385-MR
MARTIN GRUBBS
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 99-CI-00176
KENTUCKY FARM BUREAU INSURANCE COMPANY;
AND TIFFANY PENNEBAKER, A MINOR,
BY HER BEST FRIEND, CHERYL PENNEBAKER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND KNOPF, JUDGES; AND MILLER, SENIOR JUDGE.1
JOHNSON, JUDGE:
Martin Grubbs has appealed from an order entered
by the McCracken Circuit Court on May 25, 2001, which dismissed
his claims against appellee, Tiffany Pennebaker, for want of
jurisdiction, insufficiency of process and insufficiency of
service of process.
Having concluded that the trial court
properly dismissed Grubbs=s claims, we affirm.
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
On October 30, 1998, Grubbs parked his car in front of
Applebee=s Restaurant in Paducah, Kentucky, and entered the
restaurant.
While Grubbs was in the restaurant, Tiffany
Pennebaker, who was 16 years old at the time, backed her vehicle
into Grubbs=s Nissan Altima and damaged Grubbs=s vehicle.
Shortly
thereafter, Grubbs notified Tiffany Pennebaker=s insurance
carrier, Kentucky Farm Bureau Insurance Company of his damage
claim.
Per Kentucky Farm Bureau=s request, Grubbs obtained
estimates for the repairs to his vehicle.
Grubbs, however, was
not satisfied with the repair shops recommended by Kentucky Farm
Bureau and he decided to have his vehicle repaired at Purcell=s
Body Shop in Paducah, Kentucky.
Grubbs notified Kentucky Farm
Bureau of his intent to have his vehicle repaired by Purcell=s
and on November 9, 1998, Grubbs took his car to Purcell=s Body
Shop to be repaired.
Shortly thereafter, Purcell=s sent an
invoice to Kentucky Farm Bureau detailing the repairs and
requesting payment in the amount of $2,851.46.
Kentucky Farm
Bureau subsequently sent a letter to Grubbs informing him that
his request for payment in the amount of $2,851.46 was denied.2
As a result of this dispute, Grubbs filed a pro se
complaint in the McCracken District Court, Small Claims Division,
on November 23, 1998, naming Tiffany Pennebaker as the defendant.
2
Kentucky Farm Bureau disputed this amount and claimed that a portion of the
damages to Grubbs=s vehicle had resulted from a previous accident. Kentucky
Farm Bureau, however, agreed to pay Grubbs damages in the amount of $1,633.01
and Grubbs admitted to receiving two separate checks from Kentucky Farm Bureau
2
A Small Claims summons was issued by the McCracken District Court
Clerk for Tiffany Pennebaker on November 24, 1998.
The summons
and complaint were sent to Tiffany Pennebaker by certified mail
and received by her on November 25, 1998.
On December 10, 1998,
counsel for Tiffany Pennebaker filed an answer affirmatively
pleading lack of personal jurisdiction over the defendant,
insufficiency of process and insufficiency of service of
process.3
The answer also contained a motion to dismiss any and
all claims against Tiffany Pennebaker.
The basis for the above-
noted affirmative defenses raised by Tiffany Pennebaker revolved
around her status as a minor at the time of the accident.4
On March 22, 1999, counsel for Grubbs filed a motion to
amend the Small Claims complaint and to transfer the case to the
McCracken Circuit Court.5
The motion was granted and Grubbs was
allowed to amend his complaint to include the following caption:
ATIFFANY PENNEBAKER, a minor, by her best friend CHERYL
PENNEBAKER.@6
The amended complaint against Tiffany Pennebaker
totaling $1,633.01.
3
Tiffany Pennebaker=s attorney was hired by her liability insurer, Kentucky
Farm Bureau, for the sole purpose of responding to Grubbs=s attempts to assert
a cause of action against her. In addition, several other defenses were
raised by Tiffany Pennebaker in her answer, none of which, however, are the
subject of this appeal.
4
Tiffany Pennebaker was 16 years old and a minor at the time of the accident,
at the time of issuance of the Small Claims summons, and at the time of
attempted service of the Small Claims summons and complaint.
5
By January 19, 1999, Grubbs had obtained counsel and was no longer
proceeding pro se. Trial counsel was not the same counsel as appellate
counsel.
6
Cheryl Pennebaker is Tiffany Pennebaker=s mother.
3
In addition, Grubbs, on
was mailed to Tiffany Pennebaker=s attorney.
Grubbs never filed
a motion to join Cheryl Pennebaker as a party, never attempted to
have a summons issued for her, and never served any initiating
papers on her.
On April 23, 1999, an answer was filed in McCracken
Circuit Court on behalf of Tiffany Pennebaker asserting the same
defenses of insufficiency of process, insufficiency of service of
process and lack of personal jurisdiction.
Once again, a motion
to dismiss any and all claims against Tiffany Pennebaker was
included in the answer.7
The parties proceeded with the
discovery process, and on April 20, 2001, Tiffany Pennebaker
filed a memorandum in support of her motion to dismiss.
On May
25, 2001, the trial court granted Tiffany Pennebaker=s motion and
dismissed all claims against her for want of jurisdiction,
insufficiency of process and insufficiency of service of process.
This appeal followed.
Grubbs first argues that the trial court erred by
dismissing his claims because the service of process in the case
was proper.
Grubbs recognizes that under CR8 4.04(3) that
A[s]ervice shall be made upon an unmarried infant . . . by
April 16, 1999, also added claims against Kentucky Farm Bureau alleging bad
faith and unfair settlement practices, however, these claims are not a subject
of this appeal.
7
Tiffany Pennebaker also filed an answer to the first amended complaint on
December 23, 1999.
8
Kentucky Rules of Civil Procedure.
4
serving his resident guardian or committee if there is one known
to the plaintiff or, if none, by serving either his father or
mother within this state[.]@
Thus, Grubbs claims that Cheryl
Pennebaker was properly served in the instant action by the
amending of his complaint to include the caption, ATIFFANY
PENNEBAKER, a minor, by her best friend CHERYL PENNEBAKER@ and by
serving the amended complaint upon counsel for Tiffany
Pennebaker.
Clearly, CR 4.04(3) provides that service upon a minor
can only be accomplished by serving her resident guardian or
committee or her mother or father.
In addition, Kentucky has
long followed a strict adherence to the rule of AIn-hand Service
of Process.@9
Although the federal civil rules permit a copy of
the summons to be left at the defendant=s dwelling, Kentucky
follows a different approach and continues to require personal
service except in those instances in which non-personal service
is authorized by statute or rule.10
A summons must be personally
served upon the defendant or her representative.
Grubbs also claims that the amended complaint did not
9
Burton v. Dowell Division of Dow Chemical Co., Ky., 471 S.W.2d 708, 710
(1971).
10
Id. at 711. In the case sub judice, Tiffany Pennebaker was served by
registered mail at the family residence. Grubbs appears to advance the
argument that serving Tiffany Pennebaker at the family residence amounted to
service on her and her family. We disagree with Grubbs=s assertion, however,
as the only signature contained on the return receipt is that of Tiffany
Pennebaker. For a similar result see Newsome v. Hall, 290 Ky. 486, 161 S.W.2d
629, 633 (1942) (delivering a copy of the summons to the defendant=s wife at
the marital residence did not constitute valid service as to the defendant).
5
have to be served by summons since the amended complaint was
properly served upon counsel for Tiffany Pennebaker.11
This
argument appears to be premised upon appellant=s contention that
Cheryl Pennebaker and her daughter are in fact the same party for
purposes of liability.
Grubbs argues that under Kentucky law a
parent who owns or provides an automobile for the pleasure and
convenience of his family is liable for its negligent use by his
infant child whom he permits to use the automobile.12
We reject Grubbs=s attempt to apply this law to the
issue presented in the case sub judice.
The simple fact that the
law allows for the negligence of a minor involved in an accident
to be imputed to his or her parent does not obviate the need for
proper service of process under the civil rules, nor does it
obviate the need for personal jurisdiction over the defendant.
The issuance and service of process is a fundamental prerequisite
to the jurisdiction of a court and without personal jurisdiction
over an individual, a court lacks all authority to adjudicate
that party=s rights even though it may have jurisdiction over the
11
In his brief Grubbs incorrectly claims that Cheryl Pennebaker hired the
attorney to represent her daughter in this action. Although counsel did file
responsive pleadings on behalf of Tiffany Pennebaker, such counsel was hired
by Kentucky Farm Bureau and never represented the individual interest of
Cheryl Pennebaker. In addition, the mere fact that Cheryl Pennebaker may have
met with Tiffany Pennebaker=s attorney is of no consequence. A>Mere knowledge
of the pendency of an action is not sufficient to give the court jurisdiction,
and, in the absence of an appearance, there must be service of process.=@
Potter v. Breaks Interstate Park Commission, Ky., 701 S.W.2d 403, 406
(1985)(quoting Rosenberg v. Bricken, 302 Ky. 124, 194 S.W.2d 60, 62 (1946);
and Burton, 471 S.W.2d at 708).
12
See Kentucky Revised Statutes (KRS) 186.590(3); and Rutherford v. Smith,
284 Ky. 592, 145 S.W.2d 533, 536 (1940).
6
subject matter.13
In the case sub judice, the trial court never acquired
personal jurisdiction over Tiffany Pennebaker.
The only attempt
at service of process in this case was upon Tiffany Pennebaker
and she did not have the capacity to be served at the time.
The
proper procedure for serving Tiffany Pennebaker would have been
to have served Cheryl Pennebaker with a summons.
Accordingly,
the trial court did not err by dismissing the case for want of
jurisdiction.14
Grubbs is also apparently attempting to avoid the
jurisdiction issue by arguing that the Arelation back@ language
of CR 15.03 provides that formal notice is unnecessary if a party
named in an amended pleading knew or should have known about the
action brought against him.
CR 15.03 provides as follows:
(1) Whenever the claim or defense asserted
in the amended pleading arose out of the
conduct, transaction, or occurrence set forth
or attempted to be set forth in the original
pleading, the amendment relates back to the
date of the original pleading.
13
See Kulko v. Superior Court of California, 436 U.S. 84, 91 (1978), reh.
denied 438 U.S. 908. A[A] valid judgment imposing a personal obligation or
duty in favor of the plaintiff may be entered only by a court having
jurisdiction over the person of the defendant.@
14
In his reply brief Grubbs relies on an Indiana Court of Appeals case for
the proposition that service of process on a minor defendant is proper as long
as he is capable of understanding the summons. See Gourley v. L. Y.,
Ind.App., 657 N.E.2d 448 (1995). This Indiana case pertaining to the service
of process on infant defendants is not persuasive as Indiana=s rules governing
service of process contain critical differences. Indiana Trial Rule 4.2(A)
provides that in the event service is not possible as to an infant defendant=s
guardian or parent, service shall be made on the infant alone. Kentucky’s
rules governing the service of process of infant defendants contain no such
provision.
7
(2) An amendment changing the party against
whom a claim is asserted relates back if the
condition of paragraph (1) is satisfied and,
within the period provided by law for
commencing the action against him, the party
to be brought in by amendment (a) has
received such notice of the institution of
the action that he will not be prejudiced in
maintaining his defense on the merits, and
(b) knew or should have known that, but for a
mistake concerning the identity of the proper
party, the action would have been brought
against him.
Thus, Grubbs appears to argue that notice to an original party
may be imputed to a party sought to be added by amendment
whenever Athere is a sufficient identity of interest@ between the
two.
Grubbs=s reliance on Clark v. Young,15 in support of this
proposition is misplaced, however, as Tiffany Pennebaker was
never properly brought before the court.
Notice cannot be
imputed from Tiffany Pennebaker to her mother as Tiffany
Pennebaker was never an original party to the action.
In
addition, Grubbs attempts to gloss over the fact that the office
of Anext friend@ is confined to the bringing of an action in the
15
Ky.App., 692 S.W.2d 285, 287 (1985). See also Funk v. Wagner Machinery,
Inc., Ky.App., 710 S.W.2d 860, 861-62 (1986). In addition, we note in passing
that in Halderman v. Sanderson Forklifts Co., Ky.App., 818 S.W.2d 270, 273
(1991), this Court held that where there is a sufficient identity of interest
between the old and new defendants, the notice requirement of CR 15.03(2) is
satisfied whenever the intended defendant receives notice, be it actual,
informal, imputed, constructive or a combination thereof. However, this Court
later distinguished Halderman, Funk, and Clark on the grounds that each case
involved instances in which a legally binding relationship existed, imposing a
duty on the original named party to apprise the added party of the lawsuit.
See Reese v. General American Door Co., Ky.App., 6 S.W.3d 380, 382 (1998). In
the case sub judice, the law imposes no duty on a minor defendant to apprise
her mother of a lawsuit filed against her.
8
name, and for the benefit, of the infant.16
There is simply no
authority to support a procedure by which the office of Anext
friend@ is used to bring an action against a minor.
Thus, Grubbs
fails to acknowledge that a court=s power to apply CR 15.03 is
incidental to its jurisdiction over the case.
In the case sub
judice, the trial court never acquired personal jurisdiction over
Tiffany Pennebaker or Cheryl Pennebaker as neither was properly
before the court.17
Accordingly, Grubbs=s reliance on CR 15.03 is
misplaced.
In his second assignment of error, Grubbs claims that
the trial court erred by dismissing his claims against Tiffany
Pennebaker because she and her mother had actual notice of the
litigation and an appearance was entered on their behalf.
Grubbs
argues that under Kentucky law the sole purpose of a summons is
to give the opposing party notice of the pendency of a claim and
an opportunity to defend.
Grubbs further argues that the
attempted service on Tiffany Pennebaker at the family residence
coupled with the filing of the amended complaint was sufficient
16
See Sparks v. Boggs, Ky.App., 839 S.W.2d 581, 583 (1992); Chaney v. Slone,
Ky., 345 S.W.2d 484, 485 (1961); Zogg v. O=Bryan, Ky., 237 S.W.2d 511, 517
(1951); and CR 17.03.
17
Consequently, Grubbs=s reliance on Taylor v. Howard, 306 Ky. 407, 208 S.W.2d
73 (1948), is also misplaced. Grubbs cites Taylor in support of the argument
that a summons is valid provided the adverse party is given notice and an
opportunity to defend, even though the name of the defendant set forth therein
is incorrect. The adult appellees in Taylor, however, did in fact enter an
appearance, thereby subjecting themselves to the jurisdiction of the court.
Id. at 76. Moreover, the Court in Taylor went on to hold that the infant
appellees involved in the litigation were never properly brought before the
court as an appearance was never entered on their behalf. Id.
9
to apprise Cheryl Pennebaker of the pendency of the claim against
her, thereby affording her the opportunity to appear before and
be heard by the court.
Grubbs, however, goes on to cite
Rosenberg, supra, for the proposition that mere knowledge of the
pendency of a cause of action is not sufficient to confer
jurisdiction, and in the absence of an appearance, there must be
service of process.
Thus, Grubbs=s argument appears to hinge
upon his assertion that an Aappearance@ was in fact entered on
behalf of Tiffany Pennebaker.18
We find the case of Cornett v. Smith,19 to be factually
similar to the case at hand and quite instructive.
In Cornett,
process was never served on the defendant and he raised the
defenses of insufficiency of process and lack of personal
jurisdiction in his answer to the plaintiff=s complaint.20
The
plaintiff, however, argued that by asserting these defenses the
defendant in effect had entered an appearance, thereby waving any
lack of jurisdiction over his person.21
The former Court of
Appeals disagreed and held that since proper process was never
18
Appearance as used in this context is defined as A[t]he formal proceeding by
which a defendant submits himself to the jurisdiction of the court.@ See
Black=s Law Dictionary 97 (6th ed. 1990). In addition, it may be noted that
the distinction between Ageneral@ and Aspecial@ appearances was eliminated by
the Civil Rules of Procedure. See Cann v. Howard, Ky.App., 850 S.W.2d 57, 623 (1993).
19
Ky., 446 S.W.2d 641 (1969).
20
Cornett, supra at 642.
21
For a similar result, see also Cann, supra.
Id.
10
issued against the defendant, Ano action [had] been commenced
against him in good faith and he [had] not entered his
appearance.@22
In arriving at this conclusion the Court relied
upon the language of CR 12.02, which provides as follows:
ANo defense or objection is waived by being
joined with one or more defenses or
objections in a responsive pleading or
motion.@23
Similar to the defendant in Cornett, Tiffany Pennebaker has
insisted throughout the proceedings that proper process was never
served upon her.
We agree and conclude that Tiffany Pennebaker
was never brought before the court as an Aappearance@ was never
entered on her behalf.24
Grubbs=s reliance on Rosenberg in support of his
argument that a summons is unnecessary where the defendant is
notified of the pendency of the action and given the opportunity
to defend is also misplaced.
In Rosenberg, a guardian ad litem
was appointed for the service of process of certain infant
defendants, however, summons was never served on the guardian ad
litem.25
Thus, the Rosenberg Court was faced with the following
22
Id.
23
Id. (quoting CR 12.02).
24
This conclusion also dispenses with Grubbs=s reliance on Chaney, 345 S.W.2d
at 485, as the defendant in Chaney answered the complaint and defended the
action, raising no questions concerning service of process until the closing
of a trial on the merits. Accordingly, the Court determined that under such
circumstances any defects concerning service of process were considered
waived. Id.
25
Rosenberg, 194 S.W.2d at 60.
11
question:
Is it absolutely essential that process be
served on the guardian ad litem appointed for
infant defendants for the purpose of service,
or may the guardian ad litem waive the
service and enter his appearance, thereby
bringing the infant defendants before the
court?26
The Court resolved the issue by concluding that where a guardian
ad litem is properly appointed for the purpose of service, his
appearance in the action brings the infants before the court.27
Thus, the Court determined that actual service of the summons
upon the guardian ad litem was unnecessary.28
That being said,
we fail to see how Rosenberg applies to the case sub judice.
Grubbs appears to argue that an Aappearance@ was entered on
behalf of Tiffany Pennebaker, just as an Aappearance@ was entered
on behalf of the infant defendants in Rosenberg, thereby bringing
Tiffany Pennebaker before the court.
A guardian ad litem,
however, was never appointed for the purpose of effectuating
service on Tiffany Pennebaker, as in Rosenberg.
Moreover, in the
answer to Grubbs=s complaint and amended complaint, counsel for
Tiffany Pennebaker properly raised the defenses of insufficiency
of process, insufficiency of service of process and lack of
personal jurisdiction.
26
Id.
27
Id. at 62.
28
The guardian ad litem appointed to
Id.
12
represent the infant defendants in Rosenberg, however, never
raised these issues and proceeded to defend the case on the
merits, thereby waving any defenses pertaining to service of
process and personal jurisdiction.
This distinction is critical.
Grubbs argues that under Kentucky law a defect in
service of process may call for the quashing of process, but such
a defect is not generally grounds for dismissing the proceedings.
Grubbs further argues that any defects found by the trial court
in this case were cured by the subsequent litigation.
Grubbs
relies on Wakefield v. City of Shelbyville,29 in support of his
argument.
We decline to extend the holding of Wakefield to the
case sub judice, however, as Wakefield dealt with annexation
proceedings which are governed by very specific statutory notice
requirements.30
The statutes which set forth the procedure for
publishing notice of an annexation suit simply have no
application to a case involving an attempted suit against a minor
for the negligent operation of a motor vehicle.
In the absence
of an appearance, any deficiencies in the service of process upon
a defendant cannot be cured simply by her actual knowledge of
pendency of the suit.31
Moreover, we find the following
29
Ky.App., 563 S.W.2d 756 (1978).
30
Id. at 757.
31
Burton, 471 S.W.2d at 711. In addition, the law of the Sixth Circuit also
appears to be in accordance with our holding. See, e.g., Friedman v. Estate
of Presser, 929 F.2d 1151, 1155 (6th Cir. 1991) (AFor the great majority of
courts, however, actual knowledge of the law suit does not substitute for
proper service of process under Rule 4(c)(2)(C)(ii)@ (citation omitted)).
13
annotation contained in 62B Am.Jur.2d 749, Process, ' 5, to be of
particular relevance and in accordance with our rules governing
service of process:
As a general rule, the mere fact that a
defendant has knowledge of a suit pending
against him is insufficient to give a court
jurisdiction, absent service of process or a
voluntary appearance by him. Moreover, the
mere fact that a defendant may in some way
have learned of the filing of the suit does
not dispense with the necessity of service of
process [footnotes omitted].
Accordingly, the trial court did not err by dismissing
Grubbs=s claims for want of jurisdiction, insufficiency of
process and insufficiency of service of process.
Based on the
foregoing reasons, the judgment of the McCracken Circuit Court is
affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, TIFFANY PENNEBAKER:
Delbert K. Pruitt
Paducah, Kentucky
Mike Moore
Paducah, Kentucky
14
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