RENDERED: AUGUST 1, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-0808-MR
MERCEDES LOPEZ APPELLANT
APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE GEORGE DAVIS, III, JUDGE ACTION NO. 22-CI-00680
JOSE GARCIA APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND TAYLOR, JUDGES.
KAREM, JUDGE: Mercedes Lopez1 appeals from the Boyd Circuit Court’s
Findings of Fact, Conclusions of Law, and Judgment entered in this action brought
1 The appellant’s name appears in the record as Mercedes Lopez-Quintero and Mercedes Quintero Lopez. We have used the name which appears in the Notice of Appeal. by her business associate, Jose Garcia.2 Lopez contends the judgment should be
reversed because she did not receive adequate notice of a hearing conducted by the
circuit court prior to entry of the judgment. Upon careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2020, Lopez and Garcia formed Mi Tierra Foods, LLC, a limited
liability company registered in Kentucky and Ohio. Lopez and Garcia were the
sole members and owners of the LLC and there was no written operating
agreement. Their main business activities involved restaurants and restaurant
supplies. Mi Tierra LLC purchased a warehouse for $300,000 and land for
$400,000.
On September 30, 2022, Garcia filed a complaint against Lopez,
alleging she had failed to repay or contribute funds to pay the mortgage on the
warehouse; used funds from the business for personal purchases without Garcia’s
consent; refused to repay loans Garcia had made to her in amounts exceeding
$100,000 and $263,000; and breached the duty of loyalty, good faith, and fair
dealing. The complaint sought an accounting, contribution, and repayment of the
2 The Introduction to the appellant’s brief characterizes this as a dissolution of marriage case involving the division of military retirement benefits. There is no evidence in the record that the parties were ever married; Garcia denies they were ever married; and the appellant’s brief makes no further reference to a dissolution action. It appears that the Introduction pertains to a different case and was inadvertently placed in the appellant’s brief by appellant’s counsel.
-2- funds; an order enjoining Lopez from dissipation of assets; and a declaration of
ownership or adjustment of ownership of their business interests.
A civil summons was served on Lopez on January 15, 2023. On May
12, 2023, Garcia filed an affidavit stating he had not been served with an answer to
the complaint or with other responsive pleadings. He also filed motions for
summary judgment and default judgment.
On May 30, 2023, Lopez, by and through counsel, filed a motion for
extension of time to file an answer. The motion stated that Lopez “speaks limited
English, cannot read English, and an interpreter is needed to discuss this matter
with [Lopez]” and that Lopez “has a meritorious defense.” On June 2, 2023, the
circuit court entered an order denying Garcia’s motion for summary judgment and
the motion for default judgment and granting Lopez’s motion to file a late answer.
Lopez filed an answer on June 21, 2023.
On August 8, 2023, Garcia filed a motion to amend the complaint to
add Mi Tierra Foods, LLC, Kentucky, and Ohio, as defendants. On August 26,
2023, Garcia served requests for admissions on Lopez.
Lopez agreed to the amendment of the complaint and the trial court
entered an order to that effect on September 11, 2023. The amended complaint
was filed on the same day. On October 10, 2023, Lopez filed an answer to the
amended complaint.
-3- On November 16, 2023, Garcia filed a renewed motion for summary
judgment. The motion stated there had been no response to the request for
admissions, and it sought to have them deemed admitted pursuant to Kentucky
Rules of Civil Procedure (CR) 36.01(2).
On November 22, 2023, Lopez filed a response to the renewed motion
for summary judgment stating: “Due to the language difference between the
undersigned and [Lopez], she had a misunderstanding as to when the responses
were due, but once she understood, she signed and returned the responses for
filing.” A copy of the responses was attached as an exhibit.
On December 18, 2023, the trial court entered an order denying the
motion for summary judgment.
On January 12, 2024, Garcia moved for injunctive relief. In an
attached affidavit, Garcia stated that he had requested many times that Lopez
communicate with him concerning their business interests, to no avail. He stated
that he had received a letter from the U.S. Department of Transportation (“DOT”)
setting forth the obligations and requirements for obtaining a DOT license for
trucking. He did not know anything about this and assumed Lopez had made the
application. He also received an assessment from the Ohio Department of
Taxation for failure to file proper payroll reports or to pay taxes. He also received
an email from a special agent of the Ohio Attorney General, seeking to collect
-4- assessments he did not know about. He requested the court to order Lopez to
reveal her business activities, accounts, financial statements, and all matters
involving Mi Tierra Foods, LLC, and sought an order to prevent her from engaging
in further business activity.
On January 24, 2024, Lopez’s attorney filed a motion to withdraw,
stating that he and the defendant had discussed the matter and had come to an
agreement that he was unable to continue to represent her in the case. On January
29, 2024, the trial court entered an order granting the motion to withdraw. It also
granted Garcia’s motion for injunctive relief and ordered the parties to share
information, cooperate, and continue normal business operations.
Over two months later, on April 11, 2024, Garcia filed a motion
asking the court: to set a hearing for judgment, to hold Lopez in contempt, to
impose sanctions, and to set a trial date. The motion alleged that Lopez had
ignored the January 29, 2024 injunctive order; ignored the interrogatories filed by
Garcia on December 15, 2023; and failed to pick up the certified mail sent by
counsel to her address. The motion gave notice that it would be brought for a
hearing on May 3, 2024. On May 3, 2024, with both parties present, a hearing date
of May 31, 2024, was set.
On May 31, 2024, the court called the case for the hearing. Garcia
was present with counsel, but neither Lopez nor any counsel representing her was
-5- present. Repeated calls were made by the bailiff to no avail. Thus, the court
proceeded to hold the hearing on the record with only Garcia and his counsel
present. Following that hearing, the trial court entered findings of fact, conclusions
of law, and judgment on June 11, 2024.
On June 18, 2024, new attorneys filed an entry of appearance for
Lopez. On June 20, 2024, Lopez filed a motion to alter, amend, or vacate the June
11, 2024 judgment on the grounds of lack of notice and her lack of ability to speak
English. The motion noted that the matter had come before the court for a hearing
on May 31, 2024, that date having been set on May 3, 2024. The motion stated
that there was never an order entered in writing setting a hearing for May 31, 2024,
and that Lopez never received notice of the hearing. She was present at the May 3,
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RENDERED: AUGUST 1, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2024-CA-0808-MR
MERCEDES LOPEZ APPELLANT
APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE GEORGE DAVIS, III, JUDGE ACTION NO. 22-CI-00680
JOSE GARCIA APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND TAYLOR, JUDGES.
KAREM, JUDGE: Mercedes Lopez1 appeals from the Boyd Circuit Court’s
Findings of Fact, Conclusions of Law, and Judgment entered in this action brought
1 The appellant’s name appears in the record as Mercedes Lopez-Quintero and Mercedes Quintero Lopez. We have used the name which appears in the Notice of Appeal. by her business associate, Jose Garcia.2 Lopez contends the judgment should be
reversed because she did not receive adequate notice of a hearing conducted by the
circuit court prior to entry of the judgment. Upon careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2020, Lopez and Garcia formed Mi Tierra Foods, LLC, a limited
liability company registered in Kentucky and Ohio. Lopez and Garcia were the
sole members and owners of the LLC and there was no written operating
agreement. Their main business activities involved restaurants and restaurant
supplies. Mi Tierra LLC purchased a warehouse for $300,000 and land for
$400,000.
On September 30, 2022, Garcia filed a complaint against Lopez,
alleging she had failed to repay or contribute funds to pay the mortgage on the
warehouse; used funds from the business for personal purchases without Garcia’s
consent; refused to repay loans Garcia had made to her in amounts exceeding
$100,000 and $263,000; and breached the duty of loyalty, good faith, and fair
dealing. The complaint sought an accounting, contribution, and repayment of the
2 The Introduction to the appellant’s brief characterizes this as a dissolution of marriage case involving the division of military retirement benefits. There is no evidence in the record that the parties were ever married; Garcia denies they were ever married; and the appellant’s brief makes no further reference to a dissolution action. It appears that the Introduction pertains to a different case and was inadvertently placed in the appellant’s brief by appellant’s counsel.
-2- funds; an order enjoining Lopez from dissipation of assets; and a declaration of
ownership or adjustment of ownership of their business interests.
A civil summons was served on Lopez on January 15, 2023. On May
12, 2023, Garcia filed an affidavit stating he had not been served with an answer to
the complaint or with other responsive pleadings. He also filed motions for
summary judgment and default judgment.
On May 30, 2023, Lopez, by and through counsel, filed a motion for
extension of time to file an answer. The motion stated that Lopez “speaks limited
English, cannot read English, and an interpreter is needed to discuss this matter
with [Lopez]” and that Lopez “has a meritorious defense.” On June 2, 2023, the
circuit court entered an order denying Garcia’s motion for summary judgment and
the motion for default judgment and granting Lopez’s motion to file a late answer.
Lopez filed an answer on June 21, 2023.
On August 8, 2023, Garcia filed a motion to amend the complaint to
add Mi Tierra Foods, LLC, Kentucky, and Ohio, as defendants. On August 26,
2023, Garcia served requests for admissions on Lopez.
Lopez agreed to the amendment of the complaint and the trial court
entered an order to that effect on September 11, 2023. The amended complaint
was filed on the same day. On October 10, 2023, Lopez filed an answer to the
amended complaint.
-3- On November 16, 2023, Garcia filed a renewed motion for summary
judgment. The motion stated there had been no response to the request for
admissions, and it sought to have them deemed admitted pursuant to Kentucky
Rules of Civil Procedure (CR) 36.01(2).
On November 22, 2023, Lopez filed a response to the renewed motion
for summary judgment stating: “Due to the language difference between the
undersigned and [Lopez], she had a misunderstanding as to when the responses
were due, but once she understood, she signed and returned the responses for
filing.” A copy of the responses was attached as an exhibit.
On December 18, 2023, the trial court entered an order denying the
motion for summary judgment.
On January 12, 2024, Garcia moved for injunctive relief. In an
attached affidavit, Garcia stated that he had requested many times that Lopez
communicate with him concerning their business interests, to no avail. He stated
that he had received a letter from the U.S. Department of Transportation (“DOT”)
setting forth the obligations and requirements for obtaining a DOT license for
trucking. He did not know anything about this and assumed Lopez had made the
application. He also received an assessment from the Ohio Department of
Taxation for failure to file proper payroll reports or to pay taxes. He also received
an email from a special agent of the Ohio Attorney General, seeking to collect
-4- assessments he did not know about. He requested the court to order Lopez to
reveal her business activities, accounts, financial statements, and all matters
involving Mi Tierra Foods, LLC, and sought an order to prevent her from engaging
in further business activity.
On January 24, 2024, Lopez’s attorney filed a motion to withdraw,
stating that he and the defendant had discussed the matter and had come to an
agreement that he was unable to continue to represent her in the case. On January
29, 2024, the trial court entered an order granting the motion to withdraw. It also
granted Garcia’s motion for injunctive relief and ordered the parties to share
information, cooperate, and continue normal business operations.
Over two months later, on April 11, 2024, Garcia filed a motion
asking the court: to set a hearing for judgment, to hold Lopez in contempt, to
impose sanctions, and to set a trial date. The motion alleged that Lopez had
ignored the January 29, 2024 injunctive order; ignored the interrogatories filed by
Garcia on December 15, 2023; and failed to pick up the certified mail sent by
counsel to her address. The motion gave notice that it would be brought for a
hearing on May 3, 2024. On May 3, 2024, with both parties present, a hearing date
of May 31, 2024, was set.
On May 31, 2024, the court called the case for the hearing. Garcia
was present with counsel, but neither Lopez nor any counsel representing her was
-5- present. Repeated calls were made by the bailiff to no avail. Thus, the court
proceeded to hold the hearing on the record with only Garcia and his counsel
present. Following that hearing, the trial court entered findings of fact, conclusions
of law, and judgment on June 11, 2024.
On June 18, 2024, new attorneys filed an entry of appearance for
Lopez. On June 20, 2024, Lopez filed a motion to alter, amend, or vacate the June
11, 2024 judgment on the grounds of lack of notice and her lack of ability to speak
English. The motion noted that the matter had come before the court for a hearing
on May 31, 2024, that date having been set on May 3, 2024. The motion stated
that there was never an order entered in writing setting a hearing for May 31, 2024,
and that Lopez never received notice of the hearing. She was present at the May 3,
2024 hearing, but explained that she “is a natural Spanish speaker, and therefore
would be unaware of what the Court would orally pronounce at the May 3, 2024
9:30 a.m. motion hour. She does not speak English fluently at all.”
The motion also alleged that the court was without jurisdiction to
entertain the April 11, 2024 motion, because the court had not entered a written
order allowing Lopez’s original attorney to withdraw, and the motion was
improperly mailed only to Lopez.
Garcia filed a response to the motion stating that Lopez was in the
courtroom on May 3, 2024, that she spoke fluently in English to Garcia’s counsel,
-6- and that she runs a restaurant and other businesses in Louisville and has filed many
filings with the Secretary of State of Kentucky and Ohio. An attached affidavit
from Garcia’s counsel stated that Lopez spoke fluently to him in English in the
courtroom on May 3, 2024.
The trial court denied the motion to alter, amend, or vacate, and this
appeal by Lopez followed.
ANALYSIS
Lopez argues the default judgment should be set aside for “good cause
shown” as provided under CR 55.02 because she did not receive adequate notice of
the May 31, 2024, hearing date. This Rule does not apply, however, because this
was not a default judgment. CR 55.01 enables the court to grant a default
judgment 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 record
plainly shows that Lopez did plead and defend by filing an answer to the complaint
and to the amended complaint and by responding to requests for admissions.
As explained in Hoard v. Ocwen Loan Servicing, LLC, 357 S.W.3d
917, 919 (Ky. App. 2011), “[a] trial court may properly enter a default judgment in
two circumstances: (1) when a defendant does not appear at all; or (2) when a
defendant who has appeared in the action fails to defend as the Rules require.”
Like the appellee in Hoard, Lopez “did not fail to plead because she filed an
-7- answer” and “nothing in the record or from the trial court indicates that [her]
answer was in any way deficient.” Id. Accordingly, the trial court “could not have
properly entered default judgment” against Lopez. Id.
Lopez argues that the judgment should be reversed because, “Lopez
was provided no notice of the May 31, 2024, hearing.” This statement is
misleading at best. Lopez was, in fact, present on May 3, 2024, when the hearing
date was set. While Lopez maintains that her lack of English proficiency meant she
did not receive adequate notice, stating emphatically that she received no notice is
misleading and a misrepresentation of the record. Further, there is nothing in the
record to indicate that on May 3, 2024, she ever requested language assistance
from the trial court. According to Garcia’s response to Lopez’s motion to alter,
amend, or vacate, and the affidavit of Garcia’s attorney, Lopez was present in the
courtroom on May 3, 2024, and conversed fluently in English with Garcia’s
attorney.
There are no video recordings of any of the courtroom proceedings in
the record on appeal. It is the appellant’s duty to “provide the clerk of the trial
court with a designation listing with specificity the dates on which official
recordings were made for all pre-trial and post-trial proceedings necessary for
inclusion in the record on appeal.” Kentucky Rules of Appellate Procedure (RAP)
24(B)(1)(a). “Our precedent is clear. When an appellate court does not have a
-8- complete record before it, that court must assume that the omitted portion supports
the trial court’s decision.” Commonwealth v. Woods, 657 S.W.3d 902, 906-07
(Ky. 2022).
The trial court in this case afforded Lopez ample time and opportunity
to participate in this litigation. In the absence of any evidence to the contrary in
the appellate record, the trial court’s refusal to alter, amend or vacate its judgment
cannot be disturbed.
CONCLUSION
For the foregoing reasons, we affirm the Boyd Circuit Court’s
Findings of Fact, Conclusions of Law, and Judgment.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Brandon M. Music Dwight O. Bailey Grayson, Kentucky Flatwoods, Kentucky
-9-