MARTIN (VICKIE) VS. WEAVER (GEORGE), ET AL.

 Annotate this Case
Download PDF
RENDERED: OCTOBER 16, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001578-MR VICKIE MARTIN v. APPELLANT APPEAL FROM BULLITT CIRCUIT COURT HONORABLE RODNEY BURRESS, JUDGE ACTION NO. 04-CI-00890 GEORGE WEAVER; and KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, STUMBO, AND WINE, JUDGES. WINE, JUDGE: Vickie Martin (“Martin”) appeals from an order of the Bullitt Circuit Court which dismissed her personal injury action against George Weaver (“Weaver”) and Kentucky Farm Bureau Mutual Insurance Company (“KFB”) for failure to prosecute under Kentucky Rule(s) of Civil Procedure (“CR”) 41.02. We find that the trial court did not abuse its discretion by denying Martin’s motion for a continuance or by dismissing her complaint when she was unable to proceed to the scheduled trial. We further find that the trial court’s decision to proceed with a pretrial hearing while Martin had a motion to recuse pending under Kentucky Revised Statute(s) (“KRS”) 26A.020 was harmless error. Hence, we affirm. Since the trial court dismissed the complaint based upon Martin’s delay in bringing this case to trial, we will set out the relevant procedural history in some detail. Martin filed the complaint against Weaver on September 14, 2004, seeking damages arising out of an automobile accident which occurred on July 21, 2001. Weaver filed a timely answer, and the matter proceeded into discovery. As the matter proceeded, Weaver conceded liability but contested the extent and nature of Martin’s claimed damages. The trial court scheduled this matter for trial six times. The case was initially scheduled for trial on March 14, 2006. However, the trial court continued the trial date to October 31, 2006, at Weaver’s request. In September 2006, Weaver moved to exclude the testimony of Martin’s proposed experts, contending that Martin had failed to comply with pretrial discovery. The trial court denied the motion, but continued the trial date to July 24, 2007.1 1 The court actually entered two orders. The first order, entered on October 18, 2006, scheduled the trial for April 5, 2007. But on October 24, 2006, the court entered a “corrected order” scheduling the trial for July 24, 2007. The trial court’s order of dismissal includes April 5, 2007, as a scheduled trial date. But since the record reflects that this date was set in error, we will consider this as only one rescheduling. -2- In April 2007, Martin filed an amended complaint naming Weaver’s insurer, KFB. On June 21, 2007, Martin moved to reschedule the trial date based upon a conflict which her counsel had in another case. The court did not expressly rule on the motion, but scheduled a pretrial conference on August 13, 2007. At that pretrial conference, the court set the matter for trial on January 31, 2008. The trial court’s order states that the motion for a continuance was made by both parties. In late November 2007, Martin again moved to reschedule the trial date. In support of the motion, Martin’s counsel cited to personal difficulties which limited his ability to adequately prepare the case. Counsel also stated that he had retained co-counsel to assist with preparation for trial. The trial court granted the motion, rescheduling the trial for April 29, 2008. On April 21, 2008 – eight days before trial – both of Martin’s attorneys filed a motion to withdraw. In support of the motion, counsel stated that they had developed “irreconcilable differences” with Martin to the point that they could no longer represent her. On April 23, 2008, the trial court granted the motion and rescheduled the trial to July 1, 2008.2 The court also directed Martin to appear with new counsel at a pretrial conference on May 13, 2008. On May 8, 2008, J. Fox DeMoisey (“DeMoisey”) and Jonathan Breitenstein (“Breitenstein”) filed a “conditional motion for substitution of 2 Although the trial court signed the order allowing Martin’s counsel to withdraw on April 23, 2008, that order was not entered until June 5, 2008. -3- counsel.” DeMoisey and Breitenstein stated that they needed at least four to six additional months and an extension of the discovery schedule in order to adequately prepare the case for trial. The trial court overruled the motion at the May 13 hearing. Consequently, DeMoisey and Breitenstein declined to enter an appearance for Martin. On May 30, 2008, Martin filed a motion to recuse the trial judge pursuant to KRS 26A.020. In her supporting affidavit, Martin complained about the trial court’s rulings allowing her prior counsel to withdraw and denying her motion to continue the trial date. She asserted that the trial judge was “angry” with her for “interfering with his trial schedule” and therefore was unable to afford her a fair and impartial trial. The motion was referred to the Kentucky Supreme Court for review. In the interim, the trial court conducted a prehearing conference on June 2, 2008, at which the court ruled on several pending evidentiary motions. Martin also renewed her motion to recuse under KRS 26A.015. The trial court denied that motion, finding that the affidavit failed to set forth any valid grounds for disqualification. On June 12, 2008, the Supreme Court entered an order denying Martin’s motion to recuse, also finding that the affidavit was insufficient on its face. The matter proceeded to a final prehearing conference on June 30, 2008. Martin, appearing pro se, advised the court that she would not be prepared to go to trial the following day. The trial court denied her renewed motion for a continuance and dismissed Martin’s complaint. -4- On appeal, Martin primarily argues that the trial court abused its discretion by dismissing her complaint for failure to prosecute. CR 41.02 permits a court to dismiss an action for failure to prosecute, failure to comply with the civil rules, or failure to comply with other court orders. Gill v. Gill, 455 S.W.2d 545, 546 (Ky. 1970). “In ruling on a motion for involuntary dismissal, the trial court must take care in analyzing the circumstances and must justify the extreme action of depriving the parties of their trial.” Ward v. Housman, 809 S.W.2d 717, 719 (Ky. App. 1991). Courts should consider the totality of the circumstances when deciding whether to involuntarily dismiss a case for failure to prosecute and in particular the following factors: “(1) the extent of the party's personal responsibility; (2) the history of dilatoriness; . . . . (5) prejudice to the other party; and (6) alternative sanctions.” Id. at 719. On closer examination, however, the trial court’s decision to dismiss Martin’s complaint is not really at issue. On June 30, 2008 – one day before the final scheduled trial date – Martin herself informed the court that she was not prepared for trial and would be unable to present evidence sufficient to support her claims. The trial court was well within its discretion to dismiss her complaint based on these admissions. Rather, the more significant question is whether the trial court abused its discretion by denying her request for a continuance under these circumstances. The decision to delay trial rests solely within the court's discretion. Hunter v. Commonwealth, 869 S.W.2d 719, 720-21 (Ky. 1994). In determining whether to -5- grant a continuance, the court should consider the length of the delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice. Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001).3 Under the circumstances, we must conclude that the trial court did not abuse its discretion by refusing to grant any further continuances. In granting the motion to dismiss, the trial court discussed the factors under Ward v. Houseman, supra, and Snodgrass v. Commonwealth, supra. The trial court first noted that the 3 We recognize that Snodgrass is a criminal case in which the accused’s right to counsel must be balanced against the public’s right to prompt and efficient administration of justice. Since a civil party generally has no right to counsel, some panels of this Court have suggested that the Snodgrass factors should have no application in a civil context. See Snardon v. Snardon, 2007CA-002114-MR, 2009 WL 2059094 (Ky. App. 2009), and Cissell v. Cissell, 2007-CA-000779MR, 2008 WL 1757550 (Ky. App. 2008). But see Wooldridge v. Wooldridge, 2006-CA-001027MR, 2008 WL 820923 (Ky. App. 2008), finding Snodgrass factors applicable to civil proceedings. While a civil case may require a different application and analysis of the Snodgrass factors, we conclude that the factors themselves are relevant in the trial court’s exercise of its discretion in considering a motion for a continuance. The test for abuse of discretion is “whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). But while our review of the trial court’s discretionary decisions is deferential, the trial court must have some legal framework in which to exercise its discretion. Otherwise, this Court could not provide any meaningful appellate review. See Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004), discussing elements of abuse-ofdiscretion review. The Snodgrass factors are not expressly conditioned on the existence of a right to counsel. Rather, they merely set out a framework in which a trial court may exercise its discretion to grant a continuance. Furthermore, the Snodgrass factors are similar to the factors set out in Ward v. Houseman, which also addresses a matter involving an exercise of discretion. Hence, we conclude that the Snodgrass factors apply to civil litigation regarding trial continuances. -6- matter had been pending for four years and had received numerous continuances. The trial court found that the most recent delay was not merely an isolated incident caused by circumstances totally beyond Martin’s control. Rather, the court stated that the delay was part of an ongoing pattern in which Martin failed to promptly move her case toward trial. In addition, the trial court was not convinced that Martin had made diligent efforts to obtain new counsel. Furthermore, the trial court found that Weaver and KFB were ready to go to trial on July 1 and would be prejudiced by any further delay. We are troubled by the trial court’s decision to reschedule the trial before Martin’s new counsel could make a formal entry of appearance. However, the trial court actually granted Martin a two-month continuance to allow her to obtain new counsel. And while he had not formally entered an appearance, DeMoisey was present at the hearing when the trial court allowed Martin’s prior counsel to withdraw. DeMoisey and Breitenstein made their conditional entry of appearance three weeks later. From these facts, it is clear that Martin had a substitute counsel in mind when her prior counsel withdrew. The problem arose because the proposed new counsel felt that they were unable to fully prepare the case for trial in the time available before the scheduled trial date. We appreciate the difficulties in preparing for trial in such a short amount of time, as well as counsels’ concerns about the other challenges in bringing this case to trial. However, the contested issues involved only the causation and amount of Martin’s claimed damages. As the plaintiff, Martin bore -7- the burden of proof on these issues. And given the prior delays in this case, discovery on these matters should have been complete. Consequently, we agree with the trial court that the additional delay sought by Martin’s proposed counsel was not reasonable. The law demands the exercise of due diligence by a litigant, and the plaintiff (whether represented by counsel or proceeding pro se) must take steps to bring the action to a final judgment. Modern Heating & Supply Co. v. Ohio Bank Bldg. & Equip. Co., 451 S.W.2d 401 (Ky. 1970). While the result seems harsh in this case, we cannot say that the trial court abused its discretion by denying Martin’s motion for an additional continuance. Therefore, we must affirm the trial court’s decision to dismiss the complaint. Martin also argues that the trial court lacked jurisdiction to rule on motions while her motion to recuse was pending. We agree with Martin that the action should have been held in abeyance while her motion to recuse was pending. Diaz v. Barker, 254 S.W.3d 835, 838 (Ky. App. 2008), citing Jackson v. Commonwealth, 806 S.W.2d 643 (Ky. 1991). However, we find no indication that Martin objected to the June 2, 2008 hearing. In fact, Martin appeared pro se at the hearing and renewed her motion to recuse under KRS 26A.015. Furthermore, even if the trial court lacked jurisdiction to conduct the June 2 hearing, it addressed only evidentiary motions at the hearing. The court’s rulings on those issues are not the subject of this appeal and are not related to those -8- issues which are on appeal. Therefore, the trial court’s decision to proceed with the June 2 hearing was, at most, harmless error. Finally, as noted above, the Supreme Court denied the motion to recuse on June 12, well before the trial court entered its order dismissing the action. The Supreme Court found that “affidavit is insufficient to demonstrate any disqualifying circumstance which would require the appointment of a special judge pursuant to KRS 26A.020.” Martin’s affidavit merely set out her subjective and unsupported belief that the trial judge would not afford her a fair trial based on his prior rulings in the case. Such allegations are facially insufficient to warrant recusal of a trial judge. See Bissell v. Baumgardner, 236 S.W.3d 24, 28-29 (Ky. App. 2007). Consequently, Martin cannot show that she was prejudiced by the trial court’s decision to proceed with the June 2 hearing. Accordingly, the order of the Bullitt Circuit Court dismissing Martin’s complaint is affirmed. ALL CONCUR. -9- BRIEFS FOR APPELLANT: J. Fox DeMoisey Louisville, Kentucky BRIEF FOR APPELLEE, GEORGE WEAVER: William P. Swain Patricia L. Harmeling Louisville, Kentucky BRIEF FOR APPELLEE, KENTUCKY FARM BUREAU: Eric S. Moser Michael E. Krauser Louisville, Kentucky -10-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.