RENDERED: JULY 11, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1476-MR
JOHN DEERE FINANCIAL, F.S.B. APPELLANT
APPEAL FROM FLEMING CIRCUIT COURT v. HONORABLE JEFFERY L. SCHUMACHER, JUDGE ACTION NO. 24-CI-00122
PATRICK KIRBY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, EASTON, AND L. JONES, JUDGES.
EASTON, JUDGE: The Appellant John Deere Financial, F.S.B. (“JDF”), seeks
reversal of the final order of the Fleming Circuit Court dismissing JDF’s
Complaint to collect on a credit account. Because the circuit court committed legal
errors in dismissing the Complaint, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The Appellee, Patrick Kirby (“Kirby”), had a credit account with
JDF. After a documented default in payment, JDF brought this collection case. Kirby was served and defaulted by filing no answer. Kirby contacted JDF and
worked out a payment agreement. The terms were submitted to the circuit court as
an Agreed Judgment.
Instead of entering the Agreed Judgment, the circuit court sua sponte
dismissed the case. It gave two reasons. After conducting its own research, the
circuit court believed JDF was not properly registered to conduct business in
Kentucky. Also, from a review of the governing credit agreement, the circuit court
concluded that a reference to Wisconsin law made Wisconsin the proper forum.
JDF filed a motion to alter, amend, or vacate the dismissal order
pointing out the two erroneous conclusions of the circuit court which had led to the
initial dismissal. Not necessarily contesting these errors, the circuit court then
stuck to its dismissal decision arguing that venue in Kentucky was a forum non
conveniens or inconvenient place for the suit. Basically, the circuit court suggested
that JDF file suit in Wisconsin. This appeal follows.
STANDARD OF REVIEW
The circuit court’s ultimate conclusion was one of forum non
conveniens. This conclusion is subject to review for an abuse of discretion.
Williams v. Williams, 611 S.W.2d 807, 809 (Ky. 1981). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v.
-2- Thompson, 11 S.W.3d 575, 581 (Ky. 2000). An error of law alone may result in an
abuse of discretion. Allen v. Eder, 682 S.W.3d 32, 34 (Ky. App. 2023).
ANALYSIS
Before we begin our discussion of the errors committed by the circuit
court, we must address Kirby’s failure to file a brief. “If the appellee’s brief has
not been filed within the time allowed, the court may: (a) accept the appellant’s
statement of the facts and issues as correct; (b) reverse the judgment if appellant’s
brief reasonably appears to sustain such action; or (c) regard the appellee's failure
as a confession of error and reverse the judgment without considering the merits of
the case.” RAP1 31(H)(3). Our response to the failure to file a brief is a matter
within our discretion. Mullins v. Appalachian Regional Healthcare, Inc., 707
S.W.3d 1, 6 (Ky. App. 2025).
Being in default and having signed the Agreed Judgment, Kirby
obviously was not arguing about venue. We see his failure to file a brief is a
confession of error. We could elect option (b) or (c), but we choose (b) because
we conclude JDF’s brief sustains a reversal, but it is also important in these
circumstances to address the merits of the circuit court’s decision.
The first error resulted from factual research conducted by the circuit
court. Although no party raised the issue, the circuit court investigated JDF’s
1 Kentucky Rules of Appellate Procedure.
-3- status. The circuit court found an online listing with the Kentucky Secretary of
State for “Deere Credit Services, Inc.,” a corporation in good standing with a prior
assumed name of “John Deere Financial,” which had expired years ago.
Outside of the limited exception provided by judicial notice, trial
court judges generally should not gather evidence to establish facts. Marchese v.
Aebersold, 530 S.W.3d 441, 446-48 (Ky. 2017). One might argue that JDF’s status
with Kentucky’s Secretary of State could be seen as a fact “capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” KRE2 201(b)(2). Yet Marchese strongly counsels against using
judicial notice to find significant facts about the parties which may substantially
impact their situation in the case. As illustrated by this case, there is a danger of
reaching inaccurate conclusions about a party through unilateral factual research.
A party who may be impacted by a fact judicially noticed has a right
to an opportunity to be heard. KRE 201(e). Had notice been given before
rejection of the Agreed Judgment, the first error made by the circuit court may
have been avoided. When JDF was given the opportunity to be heard after the
judicial notice, the legal error became apparent. As the acronym F.S.B. indicates,
JDF is a federal savings bank subject to federal regulation. It is not required to
register with the Kentucky Secretary of State to conduct its business in Kentucky.
2 Kentucky Rules of Evidence.
-4- 12 U.S.C.A.3 § 25b. See Williams v. Chase Bank USA, Inc., 390 S.W.3d 824 (Ky.
App. 2012).
The next error resulted from the circuit court’s conflation of forum
selection and choice of law provisions in contracts. The contract governing this
case had no provision directing that suit be brought in a specific forum, such as the
listed place of business for JDF in Wisconsin. Rather, the contract simply said
under the heading of GOVERNING LAW: “this Agreement and your account will
be governed by . . . to the extent state law applies to this Agreement the substantive
law of the State of Wisconsin.”
Because America is a federal union of states, the courts of our
Commonwealth will sometimes be called upon to decide which state’s law applies
to a dispute. Kentucky applies the law of the state with the most significant
relationship to the parties and transaction involved. Schnuerle v. Insight
Communications Co., L.P., 376 S.W.3d 561, 566-67 (Ky. 2012). Before the circuit
court again refused to enter the Agreed Judgment, JDF conceded that Kentucky
law would apply. No conflict of law was presented.
This leaves the final error, dismissal on grounds of forum non
conveniens, a venue-related doctrine never raised by the parties. Venue of this
case was proper, which is a predicate for the application of forum non conveniens.
3 United States Code Annotated.
-5- Dollar General Stores, Ltd. v. Smith, 237 S.W.3d 162, 166 (Ky. 2007). Because
Kirby lives in Fleming County and was summonsed there, venue was proper.
KRS4 452.480.
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RENDERED: JULY 11, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1476-MR
JOHN DEERE FINANCIAL, F.S.B. APPELLANT
APPEAL FROM FLEMING CIRCUIT COURT v. HONORABLE JEFFERY L. SCHUMACHER, JUDGE ACTION NO. 24-CI-00122
PATRICK KIRBY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, EASTON, AND L. JONES, JUDGES.
EASTON, JUDGE: The Appellant John Deere Financial, F.S.B. (“JDF”), seeks
reversal of the final order of the Fleming Circuit Court dismissing JDF’s
Complaint to collect on a credit account. Because the circuit court committed legal
errors in dismissing the Complaint, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The Appellee, Patrick Kirby (“Kirby”), had a credit account with
JDF. After a documented default in payment, JDF brought this collection case. Kirby was served and defaulted by filing no answer. Kirby contacted JDF and
worked out a payment agreement. The terms were submitted to the circuit court as
an Agreed Judgment.
Instead of entering the Agreed Judgment, the circuit court sua sponte
dismissed the case. It gave two reasons. After conducting its own research, the
circuit court believed JDF was not properly registered to conduct business in
Kentucky. Also, from a review of the governing credit agreement, the circuit court
concluded that a reference to Wisconsin law made Wisconsin the proper forum.
JDF filed a motion to alter, amend, or vacate the dismissal order
pointing out the two erroneous conclusions of the circuit court which had led to the
initial dismissal. Not necessarily contesting these errors, the circuit court then
stuck to its dismissal decision arguing that venue in Kentucky was a forum non
conveniens or inconvenient place for the suit. Basically, the circuit court suggested
that JDF file suit in Wisconsin. This appeal follows.
STANDARD OF REVIEW
The circuit court’s ultimate conclusion was one of forum non
conveniens. This conclusion is subject to review for an abuse of discretion.
Williams v. Williams, 611 S.W.2d 807, 809 (Ky. 1981). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v.
-2- Thompson, 11 S.W.3d 575, 581 (Ky. 2000). An error of law alone may result in an
abuse of discretion. Allen v. Eder, 682 S.W.3d 32, 34 (Ky. App. 2023).
ANALYSIS
Before we begin our discussion of the errors committed by the circuit
court, we must address Kirby’s failure to file a brief. “If the appellee’s brief has
not been filed within the time allowed, the court may: (a) accept the appellant’s
statement of the facts and issues as correct; (b) reverse the judgment if appellant’s
brief reasonably appears to sustain such action; or (c) regard the appellee's failure
as a confession of error and reverse the judgment without considering the merits of
the case.” RAP1 31(H)(3). Our response to the failure to file a brief is a matter
within our discretion. Mullins v. Appalachian Regional Healthcare, Inc., 707
S.W.3d 1, 6 (Ky. App. 2025).
Being in default and having signed the Agreed Judgment, Kirby
obviously was not arguing about venue. We see his failure to file a brief is a
confession of error. We could elect option (b) or (c), but we choose (b) because
we conclude JDF’s brief sustains a reversal, but it is also important in these
circumstances to address the merits of the circuit court’s decision.
The first error resulted from factual research conducted by the circuit
court. Although no party raised the issue, the circuit court investigated JDF’s
1 Kentucky Rules of Appellate Procedure.
-3- status. The circuit court found an online listing with the Kentucky Secretary of
State for “Deere Credit Services, Inc.,” a corporation in good standing with a prior
assumed name of “John Deere Financial,” which had expired years ago.
Outside of the limited exception provided by judicial notice, trial
court judges generally should not gather evidence to establish facts. Marchese v.
Aebersold, 530 S.W.3d 441, 446-48 (Ky. 2017). One might argue that JDF’s status
with Kentucky’s Secretary of State could be seen as a fact “capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” KRE2 201(b)(2). Yet Marchese strongly counsels against using
judicial notice to find significant facts about the parties which may substantially
impact their situation in the case. As illustrated by this case, there is a danger of
reaching inaccurate conclusions about a party through unilateral factual research.
A party who may be impacted by a fact judicially noticed has a right
to an opportunity to be heard. KRE 201(e). Had notice been given before
rejection of the Agreed Judgment, the first error made by the circuit court may
have been avoided. When JDF was given the opportunity to be heard after the
judicial notice, the legal error became apparent. As the acronym F.S.B. indicates,
JDF is a federal savings bank subject to federal regulation. It is not required to
register with the Kentucky Secretary of State to conduct its business in Kentucky.
2 Kentucky Rules of Evidence.
-4- 12 U.S.C.A.3 § 25b. See Williams v. Chase Bank USA, Inc., 390 S.W.3d 824 (Ky.
App. 2012).
The next error resulted from the circuit court’s conflation of forum
selection and choice of law provisions in contracts. The contract governing this
case had no provision directing that suit be brought in a specific forum, such as the
listed place of business for JDF in Wisconsin. Rather, the contract simply said
under the heading of GOVERNING LAW: “this Agreement and your account will
be governed by . . . to the extent state law applies to this Agreement the substantive
law of the State of Wisconsin.”
Because America is a federal union of states, the courts of our
Commonwealth will sometimes be called upon to decide which state’s law applies
to a dispute. Kentucky applies the law of the state with the most significant
relationship to the parties and transaction involved. Schnuerle v. Insight
Communications Co., L.P., 376 S.W.3d 561, 566-67 (Ky. 2012). Before the circuit
court again refused to enter the Agreed Judgment, JDF conceded that Kentucky
law would apply. No conflict of law was presented.
This leaves the final error, dismissal on grounds of forum non
conveniens, a venue-related doctrine never raised by the parties. Venue of this
case was proper, which is a predicate for the application of forum non conveniens.
3 United States Code Annotated.
-5- Dollar General Stores, Ltd. v. Smith, 237 S.W.3d 162, 166 (Ky. 2007). Because
Kirby lives in Fleming County and was summonsed there, venue was proper.
KRS4 452.480. Also, Kirby was required to raise the issue of improper venue or
waive it. CR5 12.08(1). Kirby waived it.
Plaintiffs generally have the right to choose their preferred forum.
Here JDF chose Kentucky for understandable reasons, which experience with such
cases teaches. JDF would not want to face any question about personal jurisdiction
in Wisconsin for Kirby who may have had no contacts with Wisconsin other than
the credit account. It makes sense generally to sue where the debtor lives, not only
removing questions about personal jurisdiction, but also making collection easier
in the debtor’s home state, without the added expense of domesticating a foreign
judgment.
The only justification for dismissal due to forum non conveniens
offered by the circuit court was that “this Court has no idea if the terms of the
parties [sic] proposed ‘agreed judgment’ comply or comport with Wisconsin law or
not. Further, it is not this court’s duty or obligation to undertake or review the
agreed judgment for compliance with Wisconsin law.”6 Had Wisconsin law
4 Kentucky Revised Statutes. 5 Kentucky Rules of Civil Procedure. 6 Record at 32.
-6- applied, which it did not, it would have indeed been the duty of the circuit court to
apply Wisconsin law as we have explained. But no one asked the circuit court to
do so.
The inconvenience which forms a part of the forum non conveniens
doctrine is that experienced by the parties and witnesses, not the judge. See Roos
v. Kentucky Educ. Ass’n, 580 S.W.2d 508 (Ky. App. 1979).
CONCLUSION
The Fleming Circuit Court abused its discretion in dismissing this
case on the basis of forum non conveniens. As a result, we REVERSE the
dismissal of the Complaint. The timeframe for the repayment envisioned by the
tendered Agreed Judgment may have been frustrated by its rejection. Interest has
continued to accrue on the debt. We cannot say whether the parties are still in a
position to reach an agreement or whether further proceedings will now be
required to establish and enforce the debt. For this reason, we REMAND the case
to the Fleming Circuit Court for the submission of an Agreed Judgment or for
further proceedings to adjudicate the amount owed, there being no present question
of liability due to Kirby’s default.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE. James T. Hart Cincinnati, Ohio
-7-