MARSHALL (CONNIE) VS. HAYNES (JIM), ET AL.
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001226-MR
CONNIE MARSHALL
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 05-CI-004871
JIM HAYNES;
ANDY VINE; AND
BLUEGRASS AUTOMOTIVE, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
STUMBO, JUDGE: Connie Marshall appeals from an Order of the Jefferson
Circuit Court dismissing with prejudice her complaint alleging wrongful
termination and workplace discrimination. The action was dismissed after the trial
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
court determined that Marshall repeatedly and intentionally refused to participate
in discovery and to prosecute her action. In a cryptically written pro se argument,
Marshall appears to argue that the Order on appeal resulted from judicial “malice
and bias,” thus entitling her to reversal and remand. We affirm the Order of the
Jefferson Circuit Court because Marshall has not demonstrated that her argument is
preserved for appellate review, and has not addressed the trial court’s basis for the
Order on appeal nor demonstrated the existence of reversible error.
Connie Marshall was an employee of Blue Grass Automotive, Inc.,
where she served as an administrative assistant. On June 6, 2005, she filed a pro
se complaint in Jefferson Circuit Court against Blue Grass Automotive; Chief
Executive Officer, Jim Hayes; and manager, Andy Vine, alleging that they created
or tolerated a “racially and sexually hostile” work environment in which Marshall
“was subjected to hate crimes.” Marshall maintained that she was subjected to
death threats, was assaulted on three occasions resulting in two emergency room
visits, and had bugs thrown in her hair by one or more Blue Grass employees. She
further claimed that improper comments were made by Blue Grass employees
about her body, that she received sexually explicit e-mails and was otherwise
harassed and humiliated. Ultimately, Marshall maintained that she was improperly
placed on leave, wrongfully terminated, and was entitled to $5,000,000.00 in
damages.
The matter proceeded in Jefferson Circuit Court, with Blue Grass
serving interrogatories and requests for documents. After the matter was held in
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abeyance for 60 days to give Marshall the opportunity to hire an attorney (which
she did not do), Marshall answered the discovery request. Marshall subsequently
served a “First Set of Interrogatories” on Blue Grass, et al., in April and May,
2006, which the defendants answered.
It appears from the record that Marshall was not satisfied with the
answers to her tendered interrogatories, and she subsequently filed two motions to
compel discovery responses and two motions for sanctions. The motions were
denied on July 20, 2006.
Marshall then filed an Amended First Set of Interrogatories, to which
the defendants again responded. Again apparently unhappy with the responses she
received, Marshall filed additional motions to compel discovery answers and
additional motions for sanctions. These motions again were denied.
After Marshall’s motion for a default judgment was denied, Blue
Grass scheduled a deposition of Marshall to be conducted on September 26, 2007.
Marshall then filed a written statement on September 7, 2007, stating that “[T]he
plaintiff will not be in attendance at any depositions until the defendants have
answered plaintiff’s interrogatories, pursuant to CR 37.01 and CR 36.02 and the
laws of the Court (please note that I am referring to the laws on the books).”
(Emphasis original).
Marshall did not appear at the September 26, 2007, deposition. Blue
Grass responded with a motion to dismiss the Complaint based on Marshall’s
willful failure to appear at the deposition. That motion was denied by way of an
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Order rendered on April 16, 2008, which directed Marshall to pay the defendants’
reasonable attorney fees.2 In so doing, the court noted that Marshall appeared to be
inviting a dismissal by her flagrant disregard of the court’s order, but
acknowledged that a dismissal with prejudice was a matter of last resort and that
such an action was “not yet” warranted.
Another deposition of Marshall was scheduled on April 28, 2008. In
response, Marshall left a voice mail with the defendants’ counsel stating that she
would not be available for the deposition. After counsel mailed to her a letter
seeking clarification, Marshall left a second voice mail stating that she received the
letter but adding nothing additional. Marshall did not attend the second deposition.
Blue Grass, et al., again moved for a dismissal of Marshall’s
complaint based on her willful refusal to participate in discovery. On May 28,
2008, the trial court rendered an Order sustaining the motion and dismissing the
complaint with prejudice. In so doing, it determined that Marshall was proceeding
in bad faith by refusing to participate in discovery, and that she appeared to be
doing so in reaction to her misperception that she had been wrongfully denied the
discovery and due process of law to which she was entitled. The court again noted
its recognition that dismissal was a harsh remedy reserved for only the most
extreme circumstances, but found that despite its best efforts to compel Marshall’s
participation in discovery, Marshall remained willfully noncompliant and
unwilling to prosecute the action she filed. This appeal followed.
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The court later fixed that fee at slightly more than $900.00.
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In her pro se written argument, Marshall again claims entitlement to
$5,000,000.00 in damages arising from the harassment and wrongful termination
she allegedly suffered at Blue Grass Automotive. In lieu of demonstrating – or
even maintaining – that the Jefferson Circuit Court erred in dismissing her
complaint, however, Marshall’s written argument consists of five paragraphs
wherein she lists the exhibits which were tendered to the court at the time of the
filing of the complaint.
We must first note that Marshall has not complied with the
requirement set out in CR 76.12(4)(c)(v) that she demonstrate at the beginning of
her argument that the issue raised is preserved for appellate review and, if so, in
what manner. We would be well within our authority to strike Marshall’s brief and
summarily affirm the order on appeal. CR 76.12(8)(a). It goes without saying that
errors to be considered for appellate review must be precisely preserved and
identified in the lower court. Combs v. Knott County Fiscal Court, 141 S.W.2d
859 (Ky. App. 1940).
Even if the matter were preserved for appellate review, Marshall has
done nothing to demonstrate that the Jefferson Circuit Court erred in dismissing
her compliant. The trial court’s rulings are presumptively correct, and the burden
rests with the appellant to demonstrate the existence of reversible error. Clark
County Bd. of Ed. v. Jones, 625 S.W.2d 586 (Ky. App. 1981). Marshall has not
alleged, much less demonstrated, the existence of reversible error. Her brief
argument consists entirely of the proof which she apparently would have presented
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had the matter proceeded to trial. Conversely, the record reveals that Marshall
repeatedly and with volition refused to participate in discovery, and went so far as
to memorialize her refusal to attend depositions and to enter it into the record.
Kentucky Rule of Civil Procedure (CR) 37.02 provides that a party
who refuses to testify at deposition after having been so ordered may be found to
be in contempt of court, with the range of sanctions including dismissal of the
action. The factors a trial court are to consider in ruling on the involuntary
dismissal of a case for failure to comply with discovery rules include: (1) the
extent of the party’s personal responsibility; (2) the history of dilatoriness; (3)
whether the party’s conduct was willful and in bad faith; (4) the meritoriousness of
the claim; (5) prejudice to the other party; and (6) the availability of alternative
sanctions. Stapleton v. Shower, 251 S.W.3d 341 (Ky. App. 2008).
It is clear from the April 16, 2008, Order denying Blue Grass
Automotive’s first motion to dismiss, as well as the May 28, 2008, Order on
appeal, that the Jefferson Circuit Court closely considered Marshall’s personal
responsibility in refusing to participate in discovery, along with her apparent bad
faith and willful conduct, as well as the availability of alternative sanctions and the
other factors set out in Stapleton. In the April 16, 2008, Order denying Blue Grass
Automotive’s first motion to dismiss, the trial court expressly noted that “despite
the Plaintiffs’ [sic] apparent best efforts to invite the sanction requested,” dismissal
was a sanction of last resort which it sought to avoid. The trial court was left with
no alternative but to dismiss the action given Marshall’s willful and repeated
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refusal to participate in discovery, coupled with what the court found was a
“complete disregard . . . for the procedures, rulings and orders of this Court
throughout the course of this litigation,” along with her written statement entered
into the record which left no doubt as to the course of conduct she had chosen.
The record demonstrates that Marshall chose not to participate in discovery despite
repeated opportunities and admonitions to do so. Dismissal of Marshall’s
complaint was supported by the record and the law, and we find no error.
For the foregoing reasons, we affirm the Order of the Jefferson Circuit
Court dismissing Marshall’s complaint.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Connie Marshall, pro se
Louisville, Kentucky
Felix J. Gora
W. Jonathan Sweeten
Cincinnati, Ohio
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