BORIS CHEN AND LINDA CHEN v. E. DAVID MARSHALL, GORDON W. MOSS, AND DEDDO G. GLENN, D/B/A HAYS, MOSS & LYNN
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RENDERED: JUNE 15, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000781-MR
BORIS CHEN AND LINDA CHEN
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
ACTION NO. 92-CI-02672
E. DAVID MARSHALL, GORDON W.
MOSS, AND DEDDO G. GLENN,
D/B/A HAYS, MOSS & LYNN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUIDUGLI, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
Boris Chen and Linda Chen, husband and wife,
appeal from a January 13, 2000, opinion and order of the Fayette
Circuit Court dismissing their professional negligence claim
against E. David Marshall, an attorney, Gordon W. Moss and Deddo
G. Glenn, doing business as the law firm of Hays, Moss & Lynn.
As a member of the firm, Marshall represented the Chens from
September 1990 until about June 1992 in a series of lawsuits
stemming from the failure of two closely held Kentucky
corporations, Resource Management International, Inc., and
Resource Land Development, Inc.
In late July 1992, the Chens
filed suit against Marshall and the firm.
Their amended
complaint alleges that Marshall’s negligent handling of the
litigation resulted in the forfeiture of meritorious defenses and
counter-claims and in substantial damages.
In January 2000, the
trial court dismissed the Chens’ complaint for lack of
prosecution.
The Chens maintain that the dismissal unfairly
deprives them of their right to a trial and thus constitutes an
abuse of the trial court’s discretion.
Persuaded that the nearly
seven-and-one-half-year delay, the Chens’ repeated failure to
advance the litigation, and the erosion of evidence amply justify
the trial court’s decision, we affirm.
As just noted, the Chens filed suit (pro se) in July
1992.
The court dismissed the suit in January 2000, about seven
and one-half years later.
During the pendency of the action the
Chens filed an amended complaint in October 1992; they acquired
counsel that November; they responded in October 1993 to
Marshall’s motion for summary judgment; and in January 1995 they
filed a second amended complaint.
In the meantime, Mrs. Chen
petitioned for bankruptcy, the parties engaged in limited
discovery, and Mr. Chen began a series of treatments, both in the
United States and in his native Taiwan, for heart disease.
Following Marshall’s answer to the second amended
complaint in February 1995, no further activity appears in the
record until late August 1996, when, pursuant to CR 77.02, the
trial court on its own motion issued an order for the Chens to
show cause why their case should not be dismissed for lack of
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prosecution.1
The Chens assured the court that discovery was
proceeding and that they still intended to bring the matter to
trial.
By order entered in November 1996, the court permitted
the action to continue.
Thereafter, the record is without entry for almost
another year until October 1997 when new counsel for the Chens
moved for a pre-trial conference.
February 1998.
The court held a conference in
As a result, during the next few months the
parties filed witness lists and apparently attempted mediation.
When mediation failed, however, the matter once again lapsed.
In
September 1999 (more than a year later and nearly three years
after the trial court set aside its first show-cause order), the
trial court issued a second CR 77.02 order again requiring the
Chens to show cause why their claim should not be dismissed.
Marshall seconded that order with a motion to dismiss pursuant to
CR 41.02.2
The Chens responded by claiming that they had been
waiting (since May 1998) for Marshall to resume Mrs. Chen’s
deposition, and by asserting that ill health had forced each of
1
CR 77.02(2) provides that
[a]t least once each year trial courts shall review all pending actions on their
dockets. Notice shall be given to each attorney of record of every case in which
no pretrial step has been taken within the last year, that the case will be dismissed
in thirty days for want of prosecution except for good cause shown. The court
shall enter an order dismissing without prejudice each case in which no answer or
an insufficient answer to the notice is made.
2
Section 1 of that rule provides that
[f]or 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.
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them to spend time away from Kentucky, Mr. Chen during November
1998 and Mrs. Chen during May 1999.
The trial court found these excuses less than
compelling.
The court noted that in more than seven years the
parties had accomplished very little discovery.3
It further
observed the uncontested fact that important evidence had become
unavailable--documents and records had been lost or destroyed;
one key witness had died; another was missing, perhaps living in
Saudi Arabia; and others, although living in the United States,
were outside Kentucky.
From these circumstances, the trial court
concluded that the matter could no longer be fairly tried and so
should be brought to a close.
The Chens, of course, disagree.
They insist that they are prepared for trial and should be
allowed to proceed.
At least, they argue, they should be
permitted to try those aspects of their claim unaffected by the
erosion of evidence, such as their allegations that Marshall
improperly prepared a mortgage and negligently subjected the
Chens to a default judgment.
The Chens correctly observe that dismissal of a claim
is an extreme remedy and that, in general, disputes are to be
decided on their merits rather than on procedural grounds.4
Nevertheless, CR 41.02 and CR 77.02 recognize that the orderly
administration of justice and the prevention of harassment
require that complaints be prosecuted conscientiously and without
3
The Chens, indeed, seem to have done little more than serve interrogatories upon
Marshall. No deposition on their behalf appears in the record.
4
Ward v. Housman, Ky. App., 809 S.W.2d 717 (1991); Polk v. Wimsatt, Ky. App., 689
S.W.2d 363 (1985).
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unreasonable delay.5
The trial court is accorded discretion to
balance these concerns, and this court will not disturb its
decision absent a clear abuse thereof.6
In the exercise of that
discretion, “[e]ach case must be considered in the light of the
particular circumstances involved and length of time is not alone
the test of diligence.”7
The reasons for the delay, the merits
of the claim, and prejudice to the opposing party are other
important considerations.8
We are not persuaded that the trial court abused its
discretion by dismissing the Chens’ complaint.
The seven-year
duration of this case is relatively long,9 and the reasons
proffered by the Chens do not adequately account for it.
We do
not doubt that some of the underlying issues were complex, that
some of the evidence of the Chens’ involvement with the two
corporations was hard to obtain, or that the Chens’ serious
health problems occasionally interfered with the litigation.
Notwithstanding these problems, the Chens have had ample
opportunity to ready their case and bring it to trial.
Repeatedly, however, they have allowed a year or more to pass
5
Nall v. Woolfolk, Ky., 451 S.W.2d 389 (1970).
6
Gill v. Gill, Ky., 455 S.W.2d 545 (1970).
7
Id. at 546.
8
Ward v. Housman, 809 S.W.2d at 719.
9
Cf. Jenkins v. City of Lexington, Ky., 528 S.W.2d 729 (1975) (affirming dismissal after
two years); Gill v. Gill, supra (reversing dismissal after nine-months); Modern Heating & Supply
Company, Inc. v. Ohio Bank Building & Equipment Company, Ky., 451 S.W.2d 401 (1970)
(affirming dismissal after three-and-one-half years); Nall v. Woolfolk, Ky., 451 S.W.2d 389
(1970) (affirming dismissal after four years).
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without meaningful progress.
Even after express notice that
their lack of prosecution had become a concern, the Chens again
allowed the litigation to lapse for fifteen months.
Nor does the
fact that Marshall and his firm may have been equally lax excuse
the Chens.
At all times both the responsibility to advance the
litigation and the ability to do so were theirs.10
Neither party has addressed in any detail the merits of
the Chens’ claims, so we may regard that factor as neutral.
As
the trial court noted, however, significant prejudice to Marshall
from the Chens’ delay is patent.
Not only have he and his firm
been held under a cloud of litigation for more than seven years,
but they now face the prospect of trial on diminished evidence, a
circumstance tending to increase the risk of an arbitrary result.
And while it may be true that this concern about eroded evidence
bears on some of the Chens’ claims more than it does on others,
the difference is neither so certain nor so pronounced as to
compel the sort of claim-by-claim analysis the Chens demand.
All
of their claims, after all, have been pending since at least
January 1995.
The Chens’ long, inadequately justified delay in
bringing them to trial, the significant likelihood of substantial
prejudice to the opposing parties, and the absence of a
meaningful showing that the claims are likely to succeed justify,
we believe, the trial court’s decision.
Accordingly, we affirm the January 13, 2000, opinion
and order of the Fayette Circuit Court.
ALL CONCUR.
10
Gill v. Gill, supra.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Robert L. Gullette, Jr.
Gullette & Gullette
Nicholasville, Kentucky
Edward H. Stopher
Richard W. Edwards
Scott A. Davidson
Boehl Stopher & Graves, LLP
Louisville, Kentucky
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