CLIFFORD E. SMITH, JR. v. WILLIAM BARRETT and OTHER APPELLEES AS NAMED IN THE NOTICE OF APPEAL
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RENDERED: January 15, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001662-MR
CLIFFORD E. SMITH, JR.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 94-CI-001145
v.
WILLIAM BARRETT and
OTHER APPELLEES AS NAMED IN
THE NOTICE OF APPEAL
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON, AND KNOX, JUDGES.
KNOX, JUDGE: Appellant, Clifford E. Smith, Jr. (Smith), pro se,
appeals a final order of the Franklin Circuit Court dismissing
his complaint for lack of prosecution.
Having reviewed the
record and applicable law, we affirm the circuit court’s order of
dismissal.
Sometime during 1992, Smith filed a copious 275 page
complaint in U.S. District Court seeking monetary damages from
numerous participants in prior judicial proceedings, alleging,
inter alia, violation of his constitutional rights and various
statutory rights under state laws.
The United States District
Court dismissed Smith’s case with prejudice, concluding that any
cause of action Smith may have lies in state court.
Smith
appealed and the Sixth Circuit Court of Appeals affirmed in an
unpublished opinion on May 20, 1994.
On July 27, 1994, Smith filed the identical complaint in the
Franklin Circuit Court, and further moved that the case be held
in abeyance.
This request, as explained to the court, was in
order to preserve his cause of action in that he proclaimed a
petition for writ of certiorari, to the United States Supreme
Court, would be filed in his federal action on or before August
19, 1994.
Based upon this representation, the circuit court
granted Smith’s motion and ordered that the defendants would not
be required to file any responsive pleading or motions until at
least twenty (20) days from the high Court’s final action on the
writ.
Commencing in February 1996, the various parties either
moved the circuit court to dismiss the action for lack of
prosecution or renewed an earlier motion for same.
By order
dated March 21, 1996, the court directed Smith to, inter alia,
identify the date his petition for writ of certiorari was denied
by the United States Supreme Court.
That same day, Smith
responded stating the ultimate date of denial was January 9,
1995.
Based upon this representation, the circuit court opined
that Smith had “failed to prosecute the matter in a reasonable
time since no action was taken by [Smith] from the time of the
dismissal of his writ to the United States Supreme Court until
such time as a motion to dismiss was renoticed more than one year
later,” and, by final order dated July 30, 1996, dismissed the
entire action as authorized by CR 41.02.1
On August 9, 1996,
Smith filed a motion to alter, amend or vacate the July 30 order
of dismissal. This motion was eventually denied on June 5, 1997.2
This appeal ensued.
As a preliminary matter, we recognize that the parties have
amply briefed their respective positions regarding the numerous
issues in this matter and the merits, or lack thereof, of their
positions.
However, following our review of the record, we
decline to discuss all arguments raised by way of briefs, in that
we believe the circuit court correctly dismissed the case on
purely procedural grounds.
One critical issue Smith raised in his appeal addresses the
circuit court’s reliance on January 9, 1995, as the date upon
which the United States Supreme Court denied his writ of
certiorari.
Smith asserts he erroneously provided this date to
the court in his response to the March 21, 1996, order.
He
argues the accurate date of denial as June 9, 1996, and
therefore, he has not delayed in the prosecution of this action.
We disagree.
1
The court’s order addressed additional issues underlying
this matter, including but not limited to judicial immunity and
Smith’s motion to amend his complaint, all of which were
dismissed or denied in the order of July 30, 1996. Given the
scope of this appeal and the legal grounds for affirming the
circuit court’s order, discussion of these corollary issues is
unnecessary.
2
For reasons that will be discussed, infra, this motion
languished for nearly one (1) year, during which time Smith filed
an abundance of discovery requests upon the respective
defendants. It was only at such time that certain defendants
filed objections to Smith’s requests that the court ruled on the
August 9, 1996, motion.
In Smith’s motion to abate the state court action he
assured the court the period of abatement would be no longer than
that required for the United States Supreme Court to rule upon
his petition for writ of certiorari, which would be filed “on or
before August 19, 1994.”
The court order, entered August 16,
1994, recited that specific explanation and date as its reasoning
for granting the request.
In fact, Smith never properly filed a
petition for writ of certiorari with the clerk of the United
States Supreme Court.
Rather, it was not until January 9, 1995,
that Smith, albeit unsuccessfully, made the first attempt to file
such a petition.
CR 41.02(1) provides that “[f]or failure of the
plaintiff to prosecute or to comply with these rules or any order
of the court, a defendant may move for dismissal of an action or
of any claim against him.” (Emphasis added).
A letter, of March 31, 1998, from the office of the
United States Supreme Court Clerk, regarding the matter of
Clifford E. Smith, Jr. v. William Barrett, et al, reveals:
Dear Mr. Smith:
This will confirm our conversation of
this date regarding your petition for a
certiorari originally submitted to this
office in January of 1995. As a corrected
petition was not received in this office
within 60 days of the April 10, 1996 letter,
or by June 9, 1996, the petition cannot be
filed. Rule 14.5.3
3
Smith has rendered much discussion as January 9, 1995,
operating as the date upon which the writ of certiorari was
denied in either this or another unrelated case pursued by him in
federal court. However, in view of the fact that no petition was
ever acceptably filed with the United States Supreme Court Clerk
in this case, the actual case/date debate is rendered completely
irrelevant.
In other words, some two (2) years after having requested relief
from the circuit court based upon the representation that a
petition for writ of certiorari would be filed no later than
August 19, 1994, Smith informs this Court the final action of the
United States Supreme Court should be identified as June 9, 1996,
the date Smith was notified that he was precluded from filing any
such petition for failure to comply with that Court’s requirement
of perfecting same.
We are not persuaded by this position.
In our opinion, Smith’s conduct warranted dismissal
under CR 41.02(1) for two reasons.
First, Smith’s actions
amounted to failure to comply with an order of the court in that,
not only did he delay in timely filing the petition as he had
represented, but, moreover, he failed to ever produce a perfected
petition meriting consideration.
Additionally, Smith never
communicated with the court the status of his federal action.
Second, the result of this dalliance constituted a failure to
prosecute in a reasonable time.
As such, even though the circuit
court was misguided by Smith that January 9, 1995, operated as
the date the United States Supreme Court actually denied the writ
of certiorari, it is our opinion the trial court, giving due
consideration to the circumstances of the case before it, was
well within the realm of CR 41.02(1) justifying dismissal.
Furthermore, in light of the actual facts, we believe the order
of dismissal would operate as an exercise of sound judicial
discretion.
Jenkins v. City of Lexington, Ky., 528 S.W.2d 729
(1975).
As an additional note, we have observed that Smith’s
motion to vacate, alter or amend the July 30, 1996, order lacked
both the notice of a hearing date and order of submission as
required by the Franklin County local rules.4
It has been said
“that a motion without a notice is no motion at all.”
v. Yocom, Ky., 526 S.W.2d 301, 304 (1975).
Carnahan
As such, it is
questionable as to whether this Court is vested with jurisdiction
to consider the present appeal, in that the filing of a notice of
appeal “within the prescribed time frame is still considered
mandatory, and failure to do so is fatal to the action.”
Workers’ Compensation Bd. v. Siler, Ky., 840 S.W.2d 812, 813
(1992) (citing CR 73.03(2); City of Devondale v. Stallings, Ky.,
795 S.W.2d 954 (1990); Rainwater v. Jasper & Jasper Mobile Homes,
Inc., Ky. App., 810 S.W.2d 63 (1991)).
For the reasons stated herein, the order of the
Franklin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Clifford E. Smith, Jr., Pro Se
Lexington, Kentucky
BRIEF FOR WILLIAM BARRETT,
IRIS REED BARRETT, and OHIO
FARMERS INSURANCE COMPANY:
Richard M. Guarnieri
Frankfort, Kentucky
BRIEF FOR PAUL FAURI:
Robert T. Watson
4
Franklin County local rule 9 provides: “All motions except
those not requiring a hearing must be noticed for a specific
hearing date. Notices are not to be filed stating that they will
be heard at the convenience of the court.” Likewise, local rule
22 states: “No case shall be submitted for final judgment by the
Court without an Order of Submission signed by the Judge and
filed with the Clerk. This Order must be separate and apart from
any previous Order . . . [and] is to be completed by the parties
and delivered to the Clerk. The Clerk shall then deliver the
record to be submitted to the Judge of the respective division.”
Louisville, Kentucky
BRIEF FOR DR. JOHN A. GERGEN:
John M. Famularo
Lisa K. Ramsey
Lexington, Kentucky
BRIEF FOR HON. JOYCE ALBRO and
HON. REED RHORER:
Albert B. Chandler, III
Attorney General
D. Brent Irvin
Assistant Attorney General
Frankfort, Kentucky
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