FROMAN (LAWRENCE) VS. ELDRIDGE (JAMES)
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RENDERED: JANUARY 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000037-MR
LAWRENCE FROMAN
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 07-CI-00065
JAMES ELDRIDGE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND THOMPSON, JUDGES; GRAVES,1 SENIOR
JUDGE.
GRAVES, SENIOR JUDGE: Lawrence Froman appeals from an order of the
Hardin Circuit Court which dismissed his original action without prejudice
pursuant to Kentucky Rules of Civil Procedure (CR) 77.02. The question on
1
Senior Judge John W. Graves 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.
appeal is whether the trial court abused its discretion and violated Froman’s due
process rights in dismissing his will contest action for lack for prosecution.
Froman became reacquainted with an old friend, James Elliott
England, while the two men were incarcerated at the Kentucky State Reformatory.
After England’s death on March 29, 2006, Froman produced a will purportedly
executed by England and dated November 19, 2003, which left the bulk of
England’s considerable estate to Froman.2 Meanwhile, England’s son, James
Eldridge,3 who was appointed the executor of his father’s estate, submitted a will to
probate. This will was dated January 13, 1997, and left nothing to Froman.
Froman filed a motion to contest the 1997 will in the Hardin District Court. The
district court denied the motion, explaining in its order that it was not the proper
forum in which to contest a will and advising Froman to file an original action in
circuit court. Froman filed an appeal of this order in the Hardin Circuit Court,
which after holding a hearing denied the appeal on the ground that he should have
contested the matter by original action. Froman finally filed an original action in
the Hardin Circuit Court in January 2007. On April 17, 2008, Froman filed the
2003 will with the court, and began to initiate discovery proceedings. According
to Froman, the action stagnated into a stalemate, with the appellee refusing to
2
Froman also filed another will purportedly executed by England on November 17, 2003, which
contained the signatures of three witnesses.
3
James Eldridge is referred to as “James Eldridge England” in the circuit court record; “James
Eldridge” was the name of the appellee given in the notice of appeal.
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provide requested documents in discovery and the trial court refusing to direct the
appellee to comply with the orderly rules of discovery.
On October 17, 2008, the trial court sent notice to the parties that the
action was subject to dismissal for lack of prosecution pursuant to CR 77.02(2). At
the time he received the notice, Froman (who was still incarcerated) was in
segregation and did not have in his possession the legal documents pertinent to the
case. He moved the trial court to hold the matter in abeyance for at least sixty days
until such time as he was able to access the file and make a proper showing why
the matter should not be dismissed. The trial court nonetheless entered an order of
dismissal on December 2, 2008. This appeal followed.
Froman argues that the trial court abused its discretion and violated
his substantive and procedural due process rights in dismissing his action. He
further argues that the trial court’s dismissal on procedural grounds pursuant to CR
77.02(2) operated to bring into effect all of the inferences that govern a CR 56
motion for summary judgment, and that the trial court was therefore required to
accept his factual allegations as true.
CR 77.02 is often referred to as the “housekeeping” rule as it allows
trial courts to purge their dockets of stale cases. Hertz Commercial Leasing Corp.
v. Joseph, 641 S.W.2d 753, 755 (Ky. App. 1982). It states in pertinent part as
follows:
At 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
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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.
CR 77.02(2).
A dismissal without prejudice under CR 77.02(2) is reviewed under
an abuse of discretion standard. Toler v. Rapid American, 190 S.W.3d 348, 351
(Ky. App. 2006). “The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004).
The record shows that Froman filed a motion for discovery pursuant
to CR 26.01 on April 20, 2007. The trial court denied the motion on May 8, 2007,
because it was not a procedure authorized by the Civil Rules for discovery in a
civil matter. Froman then filed a motion on July 18, 2007, to grant CR 5.06 filings.
The record shows that the last action taken by Froman in this lawsuit (prior to the
trial court’s entry of the notice to dismiss for lack of prosecution) occurred on
August 8, 2007, when he filed his first discovery motion and a set of written
interrogatories. The trial court’s notice to dismiss for lack of prosecution was
entered more than fourteen months later, on October 17, 2008.
Froman argues that the trial court was required to conduct an inquiry
into which document was in fact the last will and testament of James Elliot
England, and that he was repeatedly denied his right to be heard due to his
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incarceration and the fact that he was proceeding pro se. Although Froman
explained that he was in segregation at the time the notice to dismiss was entered,
he did not explain why he allowed more than a year to pass, after he filed his
discovery requests, in which he made absolutely no efforts to pursue the lawsuit.
He attributes much of the delay to the appellee’s failure to comply with those
discovery requests, but this allegation was never brought to the circuit court’s
attention until after the notice to dismiss was entered. Under the express terms of
CR 77.02(2), the circuit courts are required to review their pending dockets on an
annual basis, and may not allow cases to languish. See Manning v. Wilkinson, 264
S.W.3d 620, 624 (Ky. App. 2007). “The power of dismissal for want of
prosecution is an inherent power in the courts and necessary to preserve the
judicial process.” Nall v. Woolfolk, 451 S.W.2d 389, 390 (Ky. 1970). Under the
circumstances of this case, the trial court did not abuse its discretion in dismissing
the action, particularly as dismissals under this rule are without prejudice.
As to Froman’s argument that the circuit court’s dismissal on a
procedural ground operated to bring into effect all of the inferences that govern a
CR 56 motion for summary judgment, he appears to be confusing a dismissal
under CR 77.02(2) with a dismissal for failure to state a claim under CR 12.02.
Under CR 12.02, a motion to dismiss is converted to a motion for summary
judgment if the court considers matters outside the pleadings. See CR 12.02;
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McCray v. City of Lake Louisvilla, 332 S.W.2d 837, 840 (Ky. 1960). Froman’s
action was not dismissed under CR 12.02 and his argument that the circuit court
failed to observe the summary judgment standard is therefore moot.
The order of the Hardin Circuit Court is affirmed.
NICKELL, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS AND FILES SEPARATE
OPINION.
THOMPSON, JUDGE, CONCURRING: I concur with the majority
only because the form order dismissing was without prejudice for lack of
prosecution pursuant to CR 77.02(2).
Eldridge filed a brief with this Court and argued that he was not
served with process. A review of the docket demonstrates that Eldridge was
unable to be located by the clerk for service of court orders and for the service of
certified mail and, therefore, was never served with summons or process. The
complaint was filed on January 10, 2007, with the will as an exhibit. Certified
letters and orders were mailed by the clerk and returned as undelivered on May 23,
2008, October 21, 2008, October 30, 2008, and November 17, 2008. How
Eldridge filed a brief with this Court is another question.
The inmate, Lawrence Froman, produced a document that is a
purportedly notarized will by the decedent. The will details why the decedent
desired to change his will and Eldridge’s behavior toward him after incarceration.
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Because the dismissal is without prejudice, even with my concerns for Froman’s
disability caused by his incarceration, I concur.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lawrence Froman, pro se
LaGrange, Kentucky
Michael A. Pike
Radcliff, Kentucky
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