KAREN B. WARE v. MARK E. EDISON
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RENDERED: December 10, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000994-MR
KAREN B. WARE
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
ACTION NO. 97-CI-00466
v.
MARK E. EDISON
APPELLEE
OPINION and ORDER
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON AND SCHRODER, JUDGES.
EMBERTON, JUDGE: The single issue in this appeal is whether the
trial judge erred in dismissing appellant’s legal malpractice
claim on the basis of her failure to timely respond to requests
for admissions.
Citing the relatively short period of delay in
answering and the lack of a showing of prejudice because of the
delay, appellant argues that dismissal of the action constitutes
too severe a sanction.
Because our review convinces us that the
trial court was acting within the scope of authority set out in
Kentucky Rules of Civil Procedure (CR) 36.01(2), we affirm its
decision to dismiss the complaint.
It is undisputed that on February 13, 1998, as part of
discovery in defense of a legal malpractice complaint, appellee
served upon appellant a set of requests for admissions,
interrogatories and requests for production of documents which
included the following:
Admit or deny that in April, 1996, and
thereafter until December, 1996, you advised
the Defendant you did not wish to file suit
concerning the December, 1994, accident.
Admit or deny that you told the Defendant
you did not wish to file suit involving the
December, 1994, accident because the
Defendant advised you that you would have to
sue the driver of the vehicle you were riding
in who was your friend.
It is also undisputed that responses to these requests were not
served upon appellee by March 16, 1998, and were thus outside the
thirty day period set out in CR 36.01(2).
At a pretrial
conference conducted on March 30, 1998, appellee advised the
trial judge that responses to the discovery requests had not been
timely received nor had any request for additional time been made
and he thereafter orally moved for dismissal.
Counsel for
appellant responded that no motion to compel had been filed and
he attempted to advise the court that the responses were ready
for service.
On April 1, 1998, the trial judge entered an order
dismissing appellant’s complaint with prejudice.
The subsequent
denial of appellant’s petition for reconsideration precipitated
this appeal in which she argues that it was an abuse of
discretion to impose the extreme sanction of dismissal.
disagree.
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We
Although appellant characterizes the dismissal of her
complaint as a discovery sanction, the dismissal is in reality
the natural outcome of admitting certain matters by operation of
CR 36.01(2) and CR 36.02.
CR 36.01(2) provides that a matter
about which an admission is requested will be deemed admitted
unless a written answer or objection is made.
CR 36.02 states
that “[a]ny matter admitted under Rule 36 is conclusively
established unless the court on motion permits withdrawal or
amendment of the admission.”
The rule itself plainly sets out
the conclusive nature of the matter admitted.
Ky., 894 S.W.2d 619,621 (1994).
Lewis v. Kenady,
Thus, the sanction provided by
the rule is not dismissal but, depending upon the nature of the
matters established, application of the rule may be outcome
determinative.
In this case, among the matters admitted were that up
until December 1996, appellant had advised appellee that she did
not wish to file suit because of her relationship with the driver
of the automobile in which she was a passenger; that she did not
advise appellee that the accident had occurred in Indiana until
December 1996; that appellee then informed her that he did not
practice in Indiana and was unfamiliar with Indiana law; and
that, after receiving a report from her physician, he advised her
that in his opinion she did not have a claim worth pursuing
through legal action.
As in any action for negligence, a
plaintiff alleging legal malpractice must show a negligent act or
omission and legally cognizable damages.
Wheatley, Ky., 910 S.W.2d 233 (1995).
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Meade County Bank v.
Considering the admissions
together with the other evidence before the trial judge, we
cannot say that his decision to dismiss the appeal was erroneous
since it appears it would be impossible for the appellant to have
prevailed at trial.
Nor do we perceive in this case any abuse of
the wide latitude afforded a trial judge in deciding whether
relief from the application of CR 36.01(2) should be granted.
Accordingly, we find no basis for disturbing the judgment of
dismissal.
Finally, we deny as moot appellee’s motion to dismiss
this appeal for failure to supply the court with a transcript of
the proceedings at the pretrial conference.
As is evident from
our decision in this case, the transcript was not essential to a
review of the matters pressed in this appeal.
The judgment of the Bullitt Circuit Court is affirmed.
ALL CONCUR.
ENTERED: December 10, 1999
/s/
Thomas Emberton
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Louis I. Watterman
Joseph C. Spalding
Louisville, Kentucky
Mark E. Edison
Shepherdsville, Kentucky
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