JOSEPH M. BROWN and JAMES HENRY BROWN v. STS. MARY AND ELIZABETH HOSPITAL D/B/A SISTERS OF CHARITY HEALTH CORPORATION
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RENDERED: OCTOBER 22, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000869-MR
JOSEPH M. BROWN and
JAMES HENRY BROWN
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
CIVIL ACTION NO. 93-CI-03367
v.
STS. MARY AND ELIZABETH HOSPITAL
D/B/A SISTERS OF CHARITY HEALTH
CORPORATION
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Joseph Brown and James “Jim” Brown1 appeal pro
se from a Jefferson Circuit Court order dismissing with prejudice
an action for the wrongful death of appellants’ father for lack of
prosecution pursuant to Kentucky Rule of Civil Procedure (CR)
41.02.
1
Although James Brown is designated as an appellant in the
notice of appeal, the complaint has never been amended to include
him as a party in the circuit court.
On July 9, 1993, Joseph Brown, as Executor and Personal
Representative of the Estate of Olen P. Brown, his father, filed a
complaint against Saints Mary & Elizabeth Hospital, Division of the
Sisters of Charity of Nazareth Health Corporation d/b/a The Sisters
of Charity Health Corporation (the Hospital), seeking monetary
damages for the wrongful death of Olen Brown.
In his complaint,
plaintiff alleged that hospital personnel were negligent in caring
for the elder Brown, which led to his death on July 20, 1992, after
he fell from his hospital bed on July 10, 1992.
At the time the
complaint was filed, Jim Brown, the brother of Joseph Brown, was
acting as the attorney for Olen Brown’s estate.
On
August
4,
1993,
the
Hospital
filed
its
interrogatories and requests for production of documents.
answer,
In his
answer to interrogatories, Joseph Brown stated that Jim Brown could
testify that “he saw the nurse call button tied up where the
deceased could not reach it . . ., [and] that the deceased stated
to [him] that the nurses considered the call button a nuisance.”
Based on the discovery responses, the Hospital, (relying on Rule
3.7 of the Kentucky Rules of Professional Conduct), moved to
disqualify Jim Brown as the plaintiff’s attorney on the ground that
he would be called as a necessary witness.
The circuit court
granted the motion on November 15, 1993, and denied motion to
reconsider on December 5, 1994.
On February 15, 1995, the Hospital filed a CR 77.02
motion to dismiss the action for failure to prosecute.
The trial
court granted the motion on February 21, 1995, and Jim Brown filed
a notice of appeal as counsel for Joseph Brown.
In an unpublished
opinion rendered on November 15, 1996, a panel of this Court
-2-
affirmed the circuit court’s decision disqualifying James Brown as
counsel for plaintiff in the action, but reversed the circuit
court’s dismissal of the suit.
Hospital, 95-CA-000757.
Brown v. Sts. Mary & Elizabeth
This Court relied on Bohannon v. Rutland,
Ky., 616 S.W.2d 46 (1981), in which the Kentucky Supreme Court held
that CR 77.02 should be applied narrowly and only when absolutely
“no action of record has been taken by either party during the year
next preceding the judge’s review of the docket.”
3 (emphasis supplied).
Id., slip op. at
The Court, however, stated that the trial
court acted pursuant to CR 77.02, and noted that its decision may
have been different had the Hospital filed its motion to dismiss
pursuant to CR 41.02(1).
Id., slip op. at 3 n.2.
On October 21, 1997, Joseph Brown filed a motion in
circuit court requesting an order allowing him to prosecute the
action pro se as an heir of the estate.
Following a hearing, the
circuit court denied the motion on December 16, 1997, stating that
ordinarily a person may represent himself in any action in which he
is a party, but Joseph Brown was a representative of the estate
rather than a party to the wrongful death action.
On January 7, 1998, the Hospital filed a motion to
dismiss for failure to prosecute pursuant to CR 41.02(1). On March
2, 1998, the circuit court conducted a hearing on the motion at
which
Jim
plaintiff.
Brown
argued
against
the
motion
on
behalf
of
the
The court summarily granted the motion and dismissed
the action with prejudice on March 9, 1998.
This appeal followed.
The Browns argue on appeal that the circuit court abused
its discretion by dismissing the action with prejudice for lack of
prosecution. They contend that they were hampered in their ability
-3-
to prosecute the action because Jim Brown was disqualified from
acting as legal counsel and Joseph Brown was not allowed to pursue
the case pro se.
They contend that as heirs of the estate, they
should be allowed to prosecute the action without an attorney.
CR 41.02(1) provides that:
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.
Generally, dismissal of an action upon a motion of the
defendant pursuant to CR 41.02(1) rests within the sound discretion
of the trial court, and an appellate court cannot interfere with
the trial court’s exercise of its discretion absent clear abuse.
Modern Heating & Supply Co. v. Ohio Bank Bldg. & Equip. Co., Ky.,
451 S.W.2d 401 (1970);
Thompson v. Kentucky Power Co., Ky. App.,
551 S.W.2d 815 (1977).
Each case must be considered in light of
the particular circumstances involved and although the length of
time during which a party fails to move is a factor, it is not the
sole factor in deciding to dismiss for lack of prosecution.
v.
Gill,
Ky.,
455
S.W.2d
545,
546
(1970).
This
court
Gill
has
recognized several factors relevant to the trial court’s exercise
of discretion in applying CR 41.02(1) including: “1) the extent of
the
party’s
personal
responsibility;
2)
the
history
of
dilatoriness; 3) whether the attorney’s conduct was willful and in
bad faith;
4) meritoriness of the claim;
5) prejudice to the
other party; [and] 6) alternative sanctions.”
-4-
Ward v. Houseman,
Ky. App., 809 S.W.2d 717, 719 (1991)(citing Scarborough v. Eubanks,
747 F.2d 871 (3rd Cir. 1984)).
In the present case, the Browns failed to make reasonable
efforts to prosecute the action. The complaint was filed initially
in July 1993 and was dismissed in March 1998.
During the over four
and one-half year period the case was pending, the Browns conducted
no discovery, failed to even inquire about obtaining an expert
witness, and failed to secure an authorized attorney to prosecute
the action.
While the Browns complain that the Hospital hindered
their ability to pursue the case by moving to disqualify Jim Brown
from acting as legal counsel and Joseph Brown from pursuing the
suit pro se, the Hospital was merely acting within the legal rules.
In a previous appeal, this Court affirmed the circuit
court’s disqualification of Jim Brown under SCR 3.130 Rule 3.7, yet
he continues to file documents and attempts to represent the
plaintiff in this action.
The circuit court properly held that
Joseph and Jim Brown do not have standing to prosecute the action
for the wrongful death of their father in their capacity as heirs.
See KRS 411.130 (1); Louisville & N.R. Co. v. Turner, 290 Ky. 602,
162 S.W.2d 219 (1942)(right to sue for wrongful death exclusive to
personal representative and beneficiaries are not proper parties to
bring action); Everly v. Wright, Ky. App., 872 S.W.2d 95 (1993);
Flanary’s
Adm’x
v.
Griffin,
239
S.W.2d
248
(1951)(surviving
children have no standing to intervene in wrongful death action in
individual capacity as heirs). The court initially disqualified Jim
Brown in November 1993, but he waited approximately eleven months
before asking the court to reconsider its decision.
also
waited
eleven
months
after
-5-
this
Court
Joseph Brown
affirmed
the
disqualification of Jim Brown before he filed a motion with the
circuit court seeking to act pro se.
The facts relevant to the complaint occurred during Olen
Brown’s hospitalization in July 1992.
The Hospital maintains that
it has been prejudiced by the delay because some witnesses are no
longer available and the memories of the available witnesses have
faded.
The Browns have conducted no depositions or pretrial
discovery.
death
The only independent medical evaluation of Brown’s
consists
congestive
heart
Hospital.
of
an
autopsy
failure
report
unrelated
to
indicating
any
he
negligence
died
of
by
the
Jim Brown has stated that none of the over twenty-five
attorneys he has solicited was willing to handle the case.
The
record suggests that the claim is of questionable merit.
Based on a totality of the circumstances, we believe that
the circuit court did not abuse its discretion in granting the
motion to dismiss for lack of prosecution.
“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., 451 S.W.2d at 403 (quoting Gorin v. Gorin, Ky., 167 S.W.2d 52,
55 (1942)).
The record reflects a consistent pattern of dilatory
conduct by the Browns resulting in probable prejudice to the
Hospital.
Although a drastic remedy, we cannot say that the
circuit court abused its discretion in deciding to dismiss the
action with prejudice, rather than to impose sanctions.
See Nall
v. Woolfolk, Ky., 451 S.W.2d 389 (1970)(“power of dismissal for
want
of
prosecution
is
an
inherent
power
in
the
courts
and
necessary to preserve the judicial process”)(involving five-yearold negligence action).
-6-
For the foregoing reasons, we affirm the order dismissing
the Browns’ complaint.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joseph M. Brown, pro se
James Henry Brown, pro se
Louisville, Kentucky
Donald J. Kelly
Gordon A. Rowe
WYATT, TARRANT & COMBS
Louisville, Kentucky
-7-
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