ALBERT DINGESS, and SHARON DINGESS, Natural Parents and Next Friend of ALICIA DINGESS, an infant; SHARON DINGESS, Individually v. ROGER GOBLE; NANCY NEWSOME; MARTIN COUNTY BOARD OF EDUCATION; ORVILLE BLANKENSHIP, Individually; Director of Transportation of Martin County Board of Education
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RENDERED: March 19, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003205-MR
ALBERT DINGESS, and SHARON DINGESS,
Natural Parents and Next Friend of
ALICIA DINGESS, an infant;
and, ALBERT DINGESS and
SHARON DINGESS, Individually
APPELLANTS
APPEAL FROM MARTIN CIRCUIT COURT
HONORABLE STEPHEN FRAZIER, JUDGE
ACTION NO. 91-CI-000075
v.
ROGER GOBLE; NANCY NEWSOME;
MARTIN COUNTY BOARD OF EDUCATION;
ORVILLE BLANKENSHIP, Individually;
and, THOMAS HAWS, Individually, and as
Director of Transportation of Martin
County Board of Education
APPELLEES
OPINION
AFFIRMING IN PART AND DISMISSING IN PART
** ** ** ** **
BEFORE:
JOHNSON, KNOX AND SCHRODER, JUDGES.
KNOX, JUDGE:
This appeal arises from the judgment of the Martin
Circuit Court denying appellants’ CR 60.02(f) motion for
extraordinary relief from a prior order of that court dismissing
appellants’ cause of action for lack of prosecution.
In fact,
underlying the CR 60.02(f) motion are two (2) orders of the
circuit court: (1) a 1991 judgment dismissing all but one of the
parties for lack of jurisdiction; and, (2) a 1996 order of
dismissal without prejudice for want of prosecution pursuant to
CR 77.02(2).
Having reviewed the record and applicable law, we
affirm the 1997 order denying extraordinary relief under CR
60.02(f), and dismiss that part of the appeal concerning the 1991
judgment.
Following a school bus accident, appellants (the
Dingesses) filed a personal injury action in the Martin Circuit
Court on April 25, 1991.
Named as defendants in the complaint
were: (1) the Martin County Board of Education (the Board); (2)
Orville Blankenship, Superintendent of the Martin County Board of
Education (Blankenship); (3) Thomas Haws, Director of
Transportation for the Martin County Board of Education (Haws);
(4) Nancy Newsome, the bus driver (Newsome); and, (5) Roger
Goble, the driver of a passing vehicle (Goble).
On May 17, 1991,
all the defendants, excepting Goble, moved to dismiss the claims
against them and filed a detailed memorandum of law in support of
that motion.
The circuit court issued its order on June 4, 1991,
concluding:
The motion to dismiss was supported by
legal memorandum also filed by said
defendants. The plaintiffs did not file a
response to said motion and memorandum.
[N]either plaintiffs nor defendants appeared
in person or by counsel at the call of the
case.
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After due consideration of the
defendants, NANCY NEWSOME, MARTIN COUNTY
BOARD OF EDUCATION, ORVILLE BLANKENSHIP, and
TOM HAWS, motion to dismiss and the legal
memorandum in support thereof, it is the
opinion of the Court that said motion should
be and is now SUSTAINED.
THEREFORE, pursuant to the above, the
case against the defendants heretofore named
is now DISMISSED.
Five years later, on October 31, 1996, the circuit
court, sua sponte, dismissed the entire matter for lack of
prosecution under CR 77.02(2).
Thereafter, on February 18, 1997,
appellants moved to re-docket the matter, which motion was
granted, and the action placed back on the court’s active docket
for further proceedings.
In September 1997, appellants moved for extraordinary
relief, pursuant to CR 60.02(f), claiming their prior attorney
had malpracticed the case during the five (5) years spanning the
time the action was first initiated until the subsequent
dismissal.
In fact, their attorney had been disbarred and had
failed to notify them of his professional status, or ever advise
them as to the status of their cause of action.
As a result of
this alleged malpractice, appellants requested the circuit court
set aside its orders of June 4, 1991 and October 31, 1996.
In October 1997, following oral argument on the matter
one month earlier, appellants supplemented their original motion
for extraordinary relief.
On this occasion it was argued they
had never received notice of the dismissal hearing due to their
being without counsel.
They further contended the court’s June
1991 order should be set aside in light of a 1996 Kentucky
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Supreme Court decision respecting the application of sovereign
immunity to tort actions.
On November 19, 1997, the circuit
court denied the CR 60.02 motion.
This appeal ensued.
[T]he determination to grant relief from a
judgment or order pursuant to CR 60.02 is one
that is generally left to the sound
discretion of the trial court with one of the
chief factors guiding it being the moving
party’s ability to present his claim prior to
the entry of the order sought to be set
aside.
Schott v. Citizens Fidelity Bank & Trust Co., Ky. App., 692
S.W.2d 810, 814 (1985) (citation omitted).
CR 60.02(f) permits a trial court to relieve a party
from its final judgment upon a showing of any “reason of an
extraordinary nature justifying relief.”
CR 60.02(f).
However,
due to the desirablity to accord judgments finality, the clause
should be applied with extreme caution and strictly under novel
circumstances.
Wine v. Commonwealth, Ky. App., 699 S.W.2d 752,
754 (1985)(citing Cawood v. Cawoood, Ky., 329 S.W.2d 569 (1959)).
As discussed, the Dingesses grounded the CR 60.02(f)
motion primarily on the negligence and misconduct of their former
attorney.
Even when their argument is couched in terms of “lack
of notice,” whether it be founded or not, failure of the
Dingesses to receive proper notice of any pleading or procedure
in their case was the direct result of their former attorney’s
malpractice.
We have held that the “[n]eglience of an attorney
is imputable to the client and is not a ground for relief under .
. . CR 60.02(f).”
Fry v. Kersey, Ky. App., 833 S.W.2d 392, 394
(1992) (quoting Vanhook v. Stanford-Lincoln County Rescue Squad,
Inc., Ky. App., 678 S.W.2d 797, 799 (1984)).
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Previously, we have
explained the rationale for this rule through the use of a United
States Supreme Court opinion which we continue to believe compels
application of the principle, to wit:
There is certainly no merit to the
contention that dismissal of petitioner’s
claim because of his counsel’s unexcused
conduct imposes an unfair penalty on the
client. Petitioner voluntarily chose the
attorney as his representative in the action,
and he cannot now avoid the consequences of
the acts or omissions of his freely selected
agent. Any other notion would be wholly
inconsistent with our system of
representative litigation, in which each
party is deemed bound by the acts of his
lawyer-agent and is considered to have
“notice of all facts, notice of which can be
charged upon the attorney.”
Vanhook, 678 S.W.2d at 800. (Quoting Link v. Wabash R.R. Co., 370
U.S. 626, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962)).
The Dingesses further argue that since the court was
placed on notice of their former attorney’s disbarment by means
of the published Supreme Court opinion on the matter, the onus
was upon the court to “scrutinize” any and all documents which
contained the former attorney’s name as “to ensure that parties
were either personally notified . . . or had been given the
opportunity to secure new counsel.”
Legal precedent in our
Commonwealth does not dictate such a duty upon the court system.
If, during the course of the action, a party finds himself
without an attorney, for whatever reason, the effect is to impose
a duty upon that party to make such fact known to the court and
to employ another attorney, if he chooses to be further
represented in the matter.
Horton v. Horton, 263 Ky. 413, 92
S.W.2d 373, 376-77 (1936).
Our highest court has reasoned:
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A litigant may not employ an attorney
and then wash his hands of all
responsibility. The law demands the exercise
of due diligence by the client as well as by
his attorney in the prosecution or defense of
litigation.
Modern Heating & Supply Co., Inc. v. Ohio Bank Bldg. & Equip.
Co., Ky., 451 S.W.2d 401, 403 (1970) (quoting Gorin v. Gorin, 292
Ky. 562, 167 S.W.2d 52, 55 (1942)).
The record reflects the Dingesses expressed to the
trial court, by way of their CR 60.02(f) motion, that during the
five (5) years their cause of action spanned, several
unsuccessful attempts were made to speak with counsel and/or
retrieve their file from his custody.
They argued to the court
that former counsel failed to comply with the Supreme Court order
directing him to inform his clients of the disbarment and return
appropriate materials to them.
Furthermore, they stated former
counsel neglected to convey any information regarding the status
of their case or report the entry of either the June 1991 or
October 1996 order.
In light of the fact that the relationship
between the Dingesses and former counsel was one of protracted
periods without communication, with the Dingesses attempting,
albeit failing, to break the wall of silence, we believe the
Dingesses had both an ample opportunity and a duty to secure new
counsel and apprise the court of their desire to pursue the
litigation.
The trial court is vested with broad discretion in the
determination of whether a case should be dismissed for want of
prosecution.
This court will not disturb the trial court’s
decision absent an abuse of discretion.
Co., Inc., 451 S.W.2d at 403-04.
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Modern Heating & Supply
Here, we find no such abuse and
affirm the trial court’s denial of appellants’ CR 60.02(f) motion
to set aside its order of October 31, 1996, dismissing the matter
for lack of prosecution.
As part and parcel of their CR 60.02(f) motion,
appellants contend the Martin Circuit Court’s order of June 4,
1991, dismissing all but one (1) defendant should, likewise, be
set aside.
We are unable to ascertain, either by review of the
record or briefs of counsel, precisely what arguments are
propounded in support of this request.
We, therefore, surmise
appellants are again contending they failed to receive proper
notice concerning the 1991 proceedings.
However, whatever
complaint appellants maintain with regard to the 1991 order, they
are time-barred from challenging that judgment.
Only a final order is appealable.
Seed Co., 204 Ky. 407, 264 S.W. 1054 (1924).
Blanton v. National
An order dismissing
a cause of action for want of prosecution shall be entered as an
order dismissing without prejudice.
CR 77.02(2).
An order
dismissing an action without prejudice is a final order from
which an appeal lies.
Grubbs v. Slater & Gilroy, Inc., Ky., 267
S.W.2d 754 (1954); C.I.T. Corp. v. Teague, 293 Ky. 521, 169
S.W.2d 593 (1943); Wood v. Downing’s Adm’r, 110 Ky. 656, 62 S.W.
487 (1901).
As previously discussed, the order dismissing the
claims against the Board, Blankenship, Haws, and Newsome was
entered June 4, 1991.
Appellants’ former counsel moved the court
to vacate said order, but that motion was denied on July 25,
1991.
The order became interlocutory since it did not adjudicate
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all the pending claims.
CR 54.01; CR 54.02(1).
A final order
has been defined as “an order that disposes of the merits of the
case, that settles the rights of the parties under the issues
made by the pleadings, or, which disposes of the cause and places
the parties out of court.”
Harding v. Harding, 145 Ky. 315, 140
S.W. 533, 535 (1911) (citation omitted).
Review of the language contained in the June 4, 1991,
order, concludes the circuit judge decided the matter upon the
merits of the motion to dismiss, as developed through the
tendered legal memorandum in support thereof.
Therefore, upon
entry of the court’s October 31, 1996, judgment, dismissing the
matter for want of prosecution, the June 1991 order became final
and appealable.
CR 52.02(2).
As such, appellants were required
to perfect an appeal from the June 1991 order within the thirty
(30) day time frame set forth in CR 76.04.
Appellants cannot bootstrap the 1991 order to the case
as a whole and attempt to revitalize it through the CR 60.02
motion.
Rather, the 1991 order, for all intents and purposes,
essentially assumed an independent identity upon attaining final
status.
The proper avenue of redress remained vis à vis direct
appeal following entry of the October 31, 1996, judgment, which
adjudicated finally, as of that date, the prior interlocutory
order.
CR 54.02(2).
To hold otherwise would result in
previously decided issues revolving in perpetuity.
rules have been designed to avoid such a result.
Our civil
A party,
whether plaintiff or defendant, is entitled to a period of
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repose, when he can be assured the claim against him is finally
adjudicated and subject to the principle of res judicata.
The time limit for filing a notice of appeal from a
final judgment or final order, as determined by CR 54.01, is
mandatory and jurisdictional.
Cobb v. Carpenter, Ky. App., 553
S.W.2d 290, 293 (1977) (citation omitted).
Considering the date
of the order dismissing the case for lack of prosecution, October
31, 1996, it is apparent appellants are precluded from
challenging the June 4, 1991, order, as an appeal from that
judgment is time barred.
Hence, the appeal with respect to the
order dismissing certain named defendants is dismissed.
For the reasons stated herein, the judgment of the
Martin Circuit Court denying appellants’ CR 60.02(f) motion to
set aside its order of dismissal for want of prosecution is
affirmed, and the issue raised in this appeal regarding the June
4, 1991, order dismissing certain named defendants is dismissed
as untimely.
SCHRODER, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN PART, DISSENTS IN PART AND
FILES A SEPARATE OPINION.
JOHNSON, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART.
I concur with the Majority Opinion to the extent that it
affirms the trial court’s order entered on November 19, 1997.
However, I respectfully dissent as to the Majority Opinion’s
discussion concerning the interlocutory order entered on June 4,
1991.
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As the appellees properly observe, pursuant to Kentucky
Rules of Civil Procedure (CR) 54.02(2) the final order of October
31, 1996, was a final adjudication of the prior interlocutory
order entered on June 4, 1991.
The CR 60.02(f) motion filed by
the appellants pertained to the October 31, 1996 order.
Any
reference by that motion and the trial court’s order of November
19, 1997, to the interlocutory order of June 4, 1991, was
unnecessary and of no consequence.
If the appellants had been
granted CR 60.02(f) relief by the trial court from the final
order of October 31, 1996, then the interlocutory order of June
4, 1991, would have been back before the court.
In other words,
the only way the interlocutory order of June 4, 1991, stays final
is if the order of October 31, 1996 continues to be final.
To
the extent that the Majority Opinion does not recognize the
application of CR 54.02(2) to the interlocutory order of June 4,
1991, it is mistaken.
BRIEF FOR APPELLANTS:
BRIEF FOR MARTIN COUNTY BOARD
OF EDUCATION, ORVILLE
BLANKENSHIP, THOMAS HAWS, and
NANCY NEWSOME:
Mitchell D. Kinner
Prestonsburg, Kentucky
Robert E. Stopher
Robert D. Bobrow
Louisville, Kentucky
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