MICHAEL W. TODD v. ROBERT MILLER CRENSHAW
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RENDERED: MAY 4, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002797-MR
MICHAEL W. TODD
v.
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
ACTION NO. 95-CI-00440
ROBERT MILLER CRENSHAW
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON AND HUDDLESTON, JUDGES.
EMBERTON, JUDGE: This is an appeal from an order of dismissal for
lack of prosecution.
On June 16, 1995, Michael W. Todd filed a complaint in
the Henderson Circuit Court against Robert Miller Crenshaw to
collect on four promissory notes executed in 1967 and 1995 to
Henderson Implement Company, a defunct Kentucky corporation.
In
response, Crenshaw filed a motion to dismiss for lack of privity
between the company and Todd.
The motion was denied on November
15, 1995, and Crenshaw filed his answer denying liability on
December 7, 1995.
There was no action taken in the case until November
1997, when the court placed it on the inactive docket and
notified Todd to appear in court on December 23, 1997, to show
cause why it should not be dismissed for want of prosecution.
Following a hearing, the court permitted the case to remain on
the active docket.
No action was taken on the case for one year, and on
November 4, 1998, Todd was again given notice to appear for the
court’s inactive docket call.
On December 22, 1998, the trial
court struck the case from the docket but allowed leave to
reinstate the case within six months conditioned upon a showing
of “a good faith intention to prosecute the case.”
Following the filing of the complaint, Todd filed for
Chapter 7 bankruptcy.
The appointed trustee learned of the
dismissed court litigation and made a motion to reinstate the
case.
On July 14, 1999, the court granted the motion conditioned
upon the trustee taking pretrial steps within thirty days,
stating that if none were taken, the court would dismiss the
action with prejudice.
On August 24, 1999, Crenshaw filed a motion to dismiss
because of the failure of the trustee to take pretrial steps as
required by the court’s order.
The hearing was set for August
30, 1999, and apparently because of an internal office error of
the trustee, he did not appear.
The trial court dismissed the
action for failure to prosecute and comply with the court’s July
14, 1999, order.
Following a hearing, the trustee’s motion to
vacate the order of dismissal was denied.
-2-
Kentucky Rules of Civil Procedure (CR) 41.02 provides
that an action may be involuntarily dismissed for failure of the
plaintiff to prosecute, or to comply with the civil rules or
orders of the court.
The power of dismissal is inherent in the
trial court and the court is vested with broad discretion in
deciding whether to dismiss an action for lack of prosecution.1
Although it is true that the failure to take any action
to prosecute from 1995 through 1998 cannot be directly attributed
to the trustee, as trustee he is in the same position as would be
Todd who had already been warned on two occasions to go forth
with the case or it would be dismissed with prejudice.
Moreover,
the trustee was aware of the need to proceed with this case when
it successfully moved to have the case reinstated.
The court
unequivocally stated that pretrial steps must be taken within
thirty days.
Under the circumstances, we find that the trial
court did not abuse its discretion in dismissing the case with
prejudice.
The order of the circuit court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Russ Wilkey
Owensboro, Kentucky
Dane Shields
Henderson, Kentucky
1
Modern Heating and Supply Co. v. Ohio Bank Building and
Equipment Co., Ky., 451 S.W.2d 401 (1970).
-3-
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