PHILLIP M. BEDFORD V. MARK A. WEIDEKAMP
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RENDERED:
March 27, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO.
96-CA-3115-MR
PHILLIP M. BEDFORD
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 95-CI-04258
V.
MARK A. WEIDEKAMP
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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COMBS, GUIDUGLI, and JOHNSON, Judges.
COMBS, JUDGE:
Phillip M. Bedford appeals from an order of the
Jefferson Circuit Court entered July 23, 1996, dismissing his
claims against Mark A. Weidekamp for failure to respond to
discovery requests and for failing to release a Notice of lis
pendens filed against Weidekamp's residence after having been
ordered by the trial court to do so.
Having considered the
record, the arguments of counsel, and the applicable law, we
affirm.
On July 27, 1995, Bedford ventured into Weidekamp's
yard and allegedly encountered Weidekamp's dog.
According to
Bedford, the dog bit him, causing Bedford to sustain physical
injury.
On August 1, 1995, Bedford filed this action against
Weidekamp to seek recovery for his injury.
On January 3, 1996, Bedford filed a Notice of lis
pendens in the office of the Jefferson County Clerk against
Weidekamp's residence.
In response, Weidekamp filed a motion to
have the lis pendens notice released of record.
Following a
hearing, the trial court entered an order requiring Bedford to
file a release of the lis pendens by March 11, 1996.
Bedford failed to comply with the trial court's order,
and on July 23, 1996, the trial court entered its order
dismissing Bedford's claims against Weidekamp.
It is from this
order that Bedford appeals.
Bedford argues that the trial court's dismissal of his
claims against Weidekamp constitutes an abuse of discretion.
We
disagree.
CR 41.02(1) provides, in pertinent part, as follows:
For failure of the plaintiff to . . . comply . . . with
. . . any order of the court, a defendant may move for
dismissal of an action or of any claim against him.
The trial court is vested with broad discretion regarding the
involuntary dismissal of claims or actions under CR 41.02.
Thompson v. Kentucky Power Co., Ky. App., 551 S.W.2d 815 (1977).
Bedford's failure to file the release of the lis pendens clearly
constitutes a failure to comply with an order of the court as
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provided by CR 41.02(1).
Weidekamp moved for dismissal as
permitted by CR 41.02, and an order of dismissal was duly
granted.
On these facts, we cannot say that the trial court
abused its discretion in dismissing Bedford's claims.
Alternatively, Bedford maintains that the trial court
lacked jurisdiction either to release or to order him to release
the lis pendens.
We find no merit in this argument.
Furthermore, we note that any time a party perceives that a trial
court is exceeding its jurisdiction, he may petition for a writ
of prohibition.
Based upon the foregoing, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Phillip M. Bedford
Louisville, KY
Walter L. Porter
Louisville, KY
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