LARRY SINKHORN and PAM SINKHORN v. PARKWAY OIL CO., INC. d/b/a SUPER STOP 1
Annotate this Case
Download PDF
RENDERED: June 18, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003192-MR
LARRY SINKHORN and
PAM SINKHORN
APPELLANTS
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE LEWIS HOPPER, JUDGE
ACTION NO. 93-CI-00314
v.
PARKWAY OIL CO., INC. d/b/a
SUPER STOP 1
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and GARDNER, Judges.
COMBS, JUDGE:
The appellants, Larry and Pam Sinkhorn, appeal
from an order of the Knox Circuit Court which dismissed with
prejudice their complaint against Parkway Oil Company, Inc., for
failure to prosecute.
After thoroughly reviewing the record and
applicable authorities, we affirm.
On July 12, 1993, Larry and Pam Sinkhorn filed a
complaint against Parkway Oil Co., Inc., d/b/a Super Stop 1
(Parkway Oil), alleging negligence based upon an incident at a
car wash owned by Parkway Oil.
On July 12, 1992, while using the
car wash, the “sun visor” and “bug shield” were dislodged from
Larry’s vehicle during the automatic washing process.
Upon
leaving his vehicle to remove these items that were blocking his
exit path, he fell three times on the slick interior surface of
the car wash.
In his complaint, Larry alleged that Parkway Oil had
negligently maintained its car wash and that its negligence
caused his injuries.
Additionally, his wife, Pam, asserted a
claim for loss of consortium.
This complaint was originally
filed in Bell Circuit Court but was subsequently transferred to
Knox Circuit Court.
On October 11, 1994, the court gave the parties notice
that it was dismissing the action without prejudice pursuant to
CR 77.02(2).
In response to the notice of dismissal, the
Sinkhorns filed a motion to set a date for trial, and a pretrial
conference was scheduled for January 31, 1995.
Shortly before the pretrial conference, the court
allowed State Farm Automobile Insurance Company (State Farm) to
file an intervening complaint; Federated Insurance Company
(Federated) was named as an intervening defendant.
The trial
court held a pretrial conference as scheduled and set the trial
for October 12, 1995.
The Sinkhorns filed a motion to continue
on September 14, 1995, stating that a continuance was needed to
allow them to obtain the deposition of an expert medical witness.
The court entered an agreed order continuing trial, which recited
that the trial date was “to be set later.”
The record shows that over the next two (2) years, the
Sinkhorns failed to take any additional action with regard to
-2-
their claim.
The only pretrial steps reflected in the record
during that time were those taken by State Farm, Federated, and
Parkway Oil.
During the six months that immediately preceded the
court’s order dismissing the action, there were no pretrial steps
taken by any party.
On September 25, 1997, Parkway Oil and Federated filed
a joint motion to dismiss for lack of prosecution.
Neither the
Sinkhorns nor State Farm filed a response to this motion.
Subsequently, on October 27, 1997, the court granted the motion
and ordered that the action be dismissed with prejudice for lack
of prosecution.1
This appeal by the Sinkhorns followed.
The Sinkhorns argue on appeal that the trial court’s
dismissal of the action for lack of prosecution was an abuse of
discretion.
They contend that pretrial steps were taken in the
year preceding the court’s dismissal of the action.
Additionally, the Sinkhorns assert that the court should have set
a trial date instead of dismissing the action.
They further
contend that under the circumstances, the dismissal with
prejudice was a clear abuse of discretion by the trial court.
We
disagree.
CR 41.02(1) provides as follows:
For 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.
1
Although the court’s order does not cite the rule underlying
the dismissal, we have deduced that it relied upon CR 41.02.
-3-
The Commonwealth’s appellate courts have consistently
held that the authority to render such a dismissal rests within
the sound discretion of the trial court.
This Court may not
interfere with that discretion unless a clear abuse has occurred.
Modern Heating & Supply Co. v. Ohio Bank Bldg. & Equip. Co., Ky.,
451 S.W.2d 401 (1970).
We have found no indication that the
trial court abused its discretion in this case.
Reviewing courts have often enunciated factors for the
trial court to weigh in the exercise of its discretion.
In Gill
v. Gill, Ky., 455 S.W.2d 545 (1970), this court held that the
length of time during which a plaintiff fails to move forward
with the action is one of several factors to be considered by the
trial court under CR 41.02(1).
In the present case, a period of
more than four years had passed since the complaint was filed.
Although the Sinkhorns contend that pretrial activity occurred
within the year immediately preceding the dismissal, they fail to
point out that those actions were taken by the other parties
involved.
While time alone is not the test for diligence, it
should be considered along with the other circumstances of the
case.
When reviewing a dismissal for lack of prosecution
under the abuse-of-discretion standard, appellate courts also
consider whether the case was ever scheduled for trial.
Id.
The
Sinkhorns maintain that the court should have scheduled a trial
date rather than dismissing the action.
A trial date of October 12, 1995, had first been set by
the court.
The Sinkhorns filed a motion to continue on September
-4-
14, 1995, which the court granted.
In seeking the continuance,
the Sinkhorns asserted that Larry had not yet reached “maximum
medical improvement.”
Therefore, they contended that it was not
possible to obtain the deposition of a necessary expert medical
witness.
Parkway Oil argued (and we believe correctly) that
“maximum medical improvement” was not relevant to this case.
Nevertheless, the court did grant the continuance.
That motion was the only step taken by the Sinkhorns
for the next two years preceding the dismissal.
The Sinkhorns
could have made a motion to set another trial date; they did not.
In fact, they did nothing.
They cannot now allege abuse of
discretion for the court’s electing to dismiss rather than to
practice their case for them by setting a new trial date sua
sponte.
“The law demands the exercise of due diligence by the
client as well as his attorney in the prosecution or defense of
litigation.”
Modern Heating & Supply Co., supra at 403, quoting
Gorin v. Gorin, Ky., 167 S.W.2d 52, 55 (1942).
The power to dismiss an action for lack of prosecution
is an inherent function of the trial court, and its preservation
is essential to the judicial process.
S.W.2d 389 (1970).
Nall v. Woolfolk, Ky., 451
Having reviewed the totality of the
circumstances, we conclude that the court did not abuse its
discretion in dismissing this action with prejudice.
For the foregoing reasons, the order of the Knox
Circuit Court dismissing the action with prejudice is affirmed.
ALL CONCUR.
-5-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Daniel W. James
London, KY
Gregory A. Lay
London, KY
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
