KEITH ALLAN BOOTHE V. KEY AUTO SALES; JEFFCO LEASING COMPANY, INC.; BARBARA A. WAGNER; NEC INSURANCE COMPANY, INC.; and CONNECTICUT SPECIALTY INSURANCE GROUP
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RENDERED: March 6, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-2470-MR
KEITH ALLAN BOOTHE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOHN WOODS POTTER, JUDGE
ACTION NO. 93-CI-05595
V.
KEY AUTO SALES; JEFFCO LEASING
COMPANY, INC.; BARBARA A. WAGNER;
NEC INSURANCE COMPANY, INC.; and
CONNECTICUT SPECIALTY INSURANCE
GROUP
APPELLEES
OPINION AFFIRMING
*
BEFORE:
DYCHE,
*
*
*
*
*
ABRAMSON, DYCHE, and HUDDLESTON, Judges.
JUDGE.
The
Jefferson
Circuit
Court
has
dismissed
appellant's complaint for his attorney's pattern of failure to
abide by or comply with various court orders and other deadlines
relating to discovery and general prosecution of appellant's claims
against appellees.
On appeal, appellant does not deny the conduct
which has precipitated the trial court's action, but charges that
the dismissal is an abuse of the trial court's discretion.
We
quote
the
trial
court's
order
for
a
summary
appellant's counsel's conduct leading to the dismissal:
This action grows out of a November,
1991, accident and was filed against six
defendants just before the statute of
limitation expired in November, 1993.
Because the Complaint failed to mention
that defendant, except in the caption.
Two
defendants
were
dismissed
in
December, 1993. A third was dismissed in
February, 1994 for failure to state a
claim.
Except serving one a set of
Interrogatories, the plaintiff took no
further action until February, 1996, when
in response to the defendant's motion to
dismiss for failure to prosecute, the
plaintiff moved for a trial date.
A
Pretrial was held April 16, and the case
was set for trial July 10, 1996. At the
Pretrial, the plaintiff was ordered to
respond to all outstanding discovery in
fifteen (15) days.
On May 6, 1996, the defendant made a
Motion to Compel the plaintiff to respond
to the discovery, as had been ordered
previously.
The plaintiff tendered
incomplete answers on May 6, and was
ordered to make a complete response by
May 13, 1996.
On May 20, 1996, the defendant made a
Motion to Dismiss for the plaintiff's
failure to comply with either of the
previous orders. This motion was heard
June 19, 1996.
At that time the
defendant [sic plaintiff] was ordered to
pay the defendant $500.00 to reimburse it
for expenses and fully comply with
outstanding discovery.
On July 1, 1996, the defendant again
moved to dismiss the complaint for the
plaintiff's failure to provide adequate
discovery. Plaintiff did not appear.
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of
We have examined the entire record below under the
standards set out in Greathouse v. American National Bank and Trust
Company, Ky. App., 796 S.W.2d 868 (1990).
The trial court's order
makes an implicit finding of a conscious and intentional failure to
comply with the provisions of the Rules of Civil Procedure and the
orders of the trial court.
That finding is not erroneous.
The trial court had considered, and imposed, lesser
sanctions for earlier violations, but had been unable to obtain
compliance by appellant's counsel.
Appellees were prejudiced in
their trial preparation by appellant's failure to provide the
requested and required discovery.
the trial court's discretion.
dismissed
in
February,
1996,
In short, we find no abuse of
Indeed, this matter could have been
for
failure
to
prosecute.
77.02(2).
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
-3-
CR
BRIEF FOR APPELLANT
BRIEF FOR APPELLEES
JEFFCO LEASING COMPANY, INC.,
and BARBARA A. WAGNER
William L. Neichter
Louisville, Kentucky
Robert J. Beale
Louisville, Kentucky
-4-
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