LISA M. GILBERT, IN PERSON AND THE ESTATE OF GARY WAYNE GILBERT JEREMY GILBERT, CRISTINE GILBERT, AND ALYSSA GILBERT, ALL MINORS v. ABDULAH R. WHITE; CHERYL LEWIS, AS LEGAL GUARDIAN AND NEXT FRIEND OF SHANTE L. HARRIS, A MINOR; JEFFREY D. PETERS; TIMOTHY PATRICK HUFFMAN; CARRIE JAMES, AS PARENT AND NEXT FRIEND OF LAWAN SHE'RIFF JAMES, A MINOR; ANTWON BUTLER ELLIS, A MINOR; LOUISE MANSFIELD, AS PARENT AND NEXT FRIEND OF ERIC L. MANSFIELD, A MINOR; DAVID BEASLEY; AND WILLIAM HENRY D.B.A. SMITHING GUN SHOP

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RENDERED: April 23, 1999; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1998-CA-001680-MR LISA M. GILBERT, IN PERSON AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GARY WAYNE GILBERT (DECEASED), AND LISA M. GILBERT, AS PARENT AND NEXT FRIEND OF JEREMY GILBERT, CRISTINE GILBERT, AND ALYSSA GILBERT, ALL MINORS v. APPELLANTS APPEAL FROM HARDIN CIRCUIT COURT HONORABLE HUGH ROARK, JUDGE ACTION NO. 96-CI-00634 ABDULAH R. WHITE; CHERYL LEWIS, AS LEGAL GUARDIAN AND NEXT FRIEND OF SHANTE L. HARRIS, A MINOR; JEFFREY D. PETERS; TIMOTHY PATRICK HUFFMAN; CARRIE JAMES, AS PARENT AND NEXT FRIEND OF LAWAN SHE'RIFF JAMES, A MINOR; ANTWON BUTLER ELLIS, A MINOR; LOUISE MANSFIELD, AS PARENT AND NEXT FRIEND OF ERIC L. MANSFIELD, A MINOR; DAVID BEASLEY; AND WILLIAM HENRY D.B.A. SMITHING GUN SHOP APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: EMBERTON, GUIDUGLI, AND MILLER, JUDGES. MILLER, JUDGE: Lisa M. Gilbert, in person and as personal representative of the estate of Gary Wayne Gilbert (deceased), and Lisa M. Gilbert, as parent and next friend of Jeremy Gilbert, Christine Gilbert, and Alyssa Gilbert, all minors (Gilbert), brings this appeal from an order of the Hardin Circuit Court entered May 21, 1998, refusing to set aside orders of dismissal entered April 7, 1998. We affirm. Gary Wayne Gilbert (Gary) was shot and killed on April 24, 1995, during a burglary at his home. On April 23, 1996, Gilbert filed a complaint against a number of defendants, including co-appellees, David Beasley (Beasley) and William Henry d/b/a Smithing Gun Shop (Henry), alleging that the defendants in some manner contributed to Gary's murder. not involved in the murder. Beasley and Henry were Beasley, who owned the house where the murder occurred, was made a defendant under the theory that he was guilty of negligent misconduct for not providing ample lighting and adequate security. Henry was sued for negligently and wantonly allowing his daughter and others to steal the murder weapon from his gun shop. On January 3, 1997, Beasley's counsel submitted interrogatories. They were never answered. On February 12, 1997, Gilbert's counsel moved to withdraw. An order was entered on February 19, 1997, granting the motion. On March 4, 1997, Beasley's counsel wrote to Gilbert asking her if she planned to seek new representation from another attorney and advised her that if she had a new lawyer to have him/her contact him. correspondence was never answered. This On March 5, 1998, counsel for Beasley filed a Motion to Dismiss, stating that he had received no response to interrogatories and no response to the letter. Counsel for Henry filed a Motion to Dismiss at approximately the -2- same time. From the record, it appears that Gilbert offered no resistance to the motions. Separate orders dismissing Beasley and Henry were entered in this case on April 7, 1998. The claim against Henry was dismissed for lack of prosecution under Ky. R. Civ. Proc. (CR) 77.02, while the claim against Beasley was dismissed “pursuant to CR 37 and/or CR 77.02.” Because there was no motion or order to compel dismissal under CR 37, we consider both dismissals under CR 77.02. The court denied Gilbert's motion to set aside the dismissals, thus precipitating these appeals. Seeking to set aside the dismissals, Gilbert offered no excuse other than a problem with securing new counsel. We deem this excuse insufficient and perceive no abuse in the trial court's action either in dismissing the actions under CR 77.02 or in refusing to set aside the dismissals. For the foregoing reasons, the order of the Hardin Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE BEASLEY: Julia B. Barry Louisville, KY Paul R. Zurkuhlen Louisville, KY ATTORNEY FOR APPELLEE WHITE: Dionna H. Hatfield Elizabethtown, KY ATTORNEY FOR APPELLEE PETERS: David T. Wilson II Radcliff, KY ATTORNEY FOR APPELLEE ELLIS: Kenneth Harold Goff II Elizabethtown, KY -3- ATTORNEY FOR APPELLEE HENRY: Nicholas L. Pearl Radcliff, KY -4-

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