JAMES A. ELLIS & ASSOCIATES, ARCHITECTS, PSC v. PHILLIP DAMRON
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RENDERED:
November 2, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000960-MR
JAMES A. ELLIS & ASSOCIATES,
ARCHITECTS, PSC
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
ACTION NO. 97-CI-00369
v.
PHILLIP DAMRON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
In May 1997, James Ellis, president of James A.
Ellis & Associates, Architects, P.S.C., brought suit in his
corporate capacity against Phillip Damron, an attorney, claiming
that Damron’s negligent representation of Ellis & Associates had
subjected it to unwarranted liability.
By order issued December
16, 1999, the Floyd Circuit Court dismissed the suit for failure
to prosecute.
Although technically the dismissal was without
prejudice pursuant to CR 77.02, the statute of limitations
apparently bars the suit’s reinstatement.
In March 2000, Ellis &
Associates moved to have the order dismissing its suit set aside.
The trial court denied the motion by order entered April 3, 2000.
Ellis & Associates contends that the dismissal, or at least the
refusal to set it aside, amounts to an unduly harsh sanction and
an abuse of the trial court’s discretion.
We affirm.
Attorney Damron answered the complaint and filed a
counterclaim at the end of June 1997.
Ellis & Associates
answered the counterclaim that August.
Although the parties may
have engaged in limited discovery, the next item in the record is
a motion to withdraw by Ellis & Associates’ counsel.
filed the motion in April 1998.
Counsel
In its May 11, 1998, order
permitting the withdrawal, the trial court gave Ellis &
Associates sixty days to obtain new representation.
There the
matter stood, as far as the record reflects, until September 22,
1999.
At that point, in accordance with CR 77.02, the trial
court on its own motion ordered Ellis & Associates to show cause
why the suit should not be dismissed for lack of prosecution.
Ellis & Associates did not appear at the November 12, 1999, showcause hearing and did not otherwise respond to the notice of
dismissal.
Accordingly, on December 16, 1999, the trial court
dismissed the suit.
On March 17, 2000, Ellis & Associates filed a motion
for relief pursuant to CR 60.02.
In its memorandum supporting
the motion, Ellis & Associates averred that it had not succeeded
in finding new representation, despite diligent efforts to do so,
until about the beginning of March 2000.
It further averred that
it had only become aware of the notice of dismissal and the order
dismissing at about that same time, when new counsel had
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inspected the record.
These facts, Ellis & Associates contended-
-its long search for willing counsel and its lack of notice of
the dismissal proceedings--excused both its failure to respond in
a timely manner to the CR 77.02 show-cause order and its failure
for many months to advance the litigation.
The trial court
disagreed.
Although not addressing Ellis & Associates’ assertion
that it had contacted more than seventy lawyers, law firms, and
lawyer referral services before finally finding new counsel, the
court rejected Ellis & Associates’s contention that either the
lack of notice or the lack of counsel excused its failure to
respond to the show-cause order.
Ellis & Associates had been
under duties, the court explained, to inform the court of its
problems finding representation and to check the record
periodically to keep itself abreast of any developments.
Its
breach of these duties, the court believed, disqualified it for
CR 60.02 relief.
It is true, as the trial court noted, that CR 60.02,
which provides for relief from a final judgment, creates an
extraordinary remedy, one that is to be cautiously applied.1
It
is also true that this court reviews CR 60.02 rulings
deferentially according to an abuse-of-discretion standard.2
No
less important, however, is the policy underlying this state’s
civil rules that, whenever possible, disputes are to be decided
1
Board of Trustees of Policemen’s & Firemen’s Retirement Fund of the City of Lexington
v. Nuckolls, Ky., 507 S.W.2d 183 (1974).
2
Bethlehem Minerals Company v. Church and Mullins Corporation, Ky., 887 S.W.2d 327
(1994); Wright v. Transportation Cabinet, Ky. App., 891 S.W.2d 412 (1995).
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on their merits and not on the basis of procedural default.3
Indeed, one of the fundamental considerations guiding the trial
court’s discretion under CR 60.02 should be “whether the moving
party had a fair opportunity to present his claim at the trial on
the merits. . . .”4
Because dismissal, the ultimate sanction for delay or
other misconduct, precludes that opportunity, the trial court
must take care to determine that dismissal (whether pursuant to
CR 77.02, CR 41.02, or some other rule) is an appropriate
sanction in the circumstances.5
Different courts have
recommended various factors as germane to that determination, but
most of the lists include “the gravity of the misconduct, the
prejudice if any to the defendant, and whether the suit has any
possible merit . . . .”6
Except in cases of egregious
misconduct, moreover, a trial court should not resort to
dismissal without due warning to the plaintiff or without
considering less severe alternatives.7
With regard to warning, CR 77.02, a housekeeping
measure whereby trial courts are both obliged and authorized to
3
Perry v. Central Bank & Trust Company, Ky. App., 812 S.W.2d 166 (1991) (citing
Dressler v. Barlow, Ky. App., 729 S.W.2d 464 (1987)); see also Ready v. Jamison, Ky., 705
S.W.2d 479 (1986).
4
Bethlehem Minerals Company, supra, 887 S.W.2d at 329.
5
Gill v. Gill, Ky., 455 S.W.2d 545 (1970); Ward v. Housman, Ky. App., 809 S.W.2d 717
(1991); Hertz Commercial Leasing Corporation v. Joseph, Ky. App., 641 S.W.2d 753 (1982).
6
Bolt v. Loy, 227 F.3d 854, 856 (7th Cir. 2000); Ward v. Housman, supra.
7
Gill v. Gill, supra; Ward v. Housman, supra. Cf. Stough v. Mayville Community
Schools, 138 F.3d 612 (6th Cir. 1998); Harmon v. CSX Transportation, Inc., 110 F.3d 364 (6th
Cir. 1997); Ball v. City of Chicago, 2 F.3d 752 (7th Cir. 1993).
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remove abandoned cases from their dockets and to prod slumbering
litigants into activity, requires that
[n]otice shall be given to each attorney of
record of every case in which no 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.
This court has characterized this notice requirement as
mandatory,8 and much of the discussion in this case, both by the
parties and by the trial court, has been devoted to debating the
significance of the apparent fact that Ellis & Associates, who at
the time did not have an attorney of record, did not receive
warning of the impending dismissal.
If there is no attorney of
record, must the court give notice directly to the about-to-bedismissed plaintiff?
Naturally Ellis & Associates contends that
it must and that its failure to do so here voids the order of
dismissal or at least constitutes an excellent reason to set it
aside.
Just as naturally, Damron and the trial court insist that
this is not what the rule says.
They contend that the trial
court gave the notice (to all attorneys of record) mandated by
the letter of the rule.
As a result, Damron asserts that Ellis &
Associates has only itself to blame if its failure either to find
an attorney or to let the court know that it was having trouble
doing so thwarted CR 77.02's notice mechanism.
We are not persuaded that a lack of actual notice to
Ellis & Associates renders the order of dismissal void.
the party on the receiving end can, through evasion or
8
Hertz Commercial Leasing Corporation v. Joseph, supra.
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Often
carelessness, prevent actual notice from occurring.
Lest those
attempting to give notice be thus easily frustrated by unwilling
or careless recipients, due process itself usually requires only
that the notice be reasonably certain in the circumstances to
achieve its purpose.9
One attempting notice under a formal
procedure must comply with the procedure, of course,10 but having
done so he or she generally need do nothing more.11
We believe the trial court’s sending notice to the
attorneys of record satisfied the requirements of CR 77.02.
It
may well be that those requirements would extend to a party
officially proceeding pro se, because such a party is, in effect,
the attorney of record.12
But where, as in this case, there is
no attorney of record, whether licensed counsel or pro se party,
and no explanation for the attorney’s absence,
CR 77.02 does not
(although some other source of obligation may) require the court
to give any notice at all.13
Of course, to say that the order of dismissal is not
void under CR 77.02 is not to say that it was proper.
The lack
9
Cf. Cox v. Rueff Lighting Company, Ky. App., 589 S.W.2d 606 (1979) (discussing
notice requirements under the long-arm statute).
10
Foremost Insurance Company v. Whitaker, Ky. App., 892 S.W.2d 607 (1995); Hertz
Commercial Leasing Corporation v. Joseph, supra.
11
Cox v. Rueff Lighting Company, supra.
12
Ellis & Associates not only had not arranged to proceed pro se, but, as a corporation, it
could not have done so. See Flynn v. Songer, Ky., 399 S.W.2d 491 (1966).
13
Cf. Link v. Wabash Railroad Company, 370 U.S. 626, 8 L. Ed. 2d 734, 82 S. Ct. 1386
(1962) (holding that the federal due-process clause does not require prior notice of a dismissal
provided the circumstances should have made the possibility of dismissal apparent to the
dismissed party, and provided that there is a meaningful opportunity for post-dismissal review).
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of prior notice is just one of several disturbing aspects of this
case.
We also find troubling the fact that the record gives no
indication that the trial court considered the likely merits of
Ellis & Associates’ claim, the validity of its proffered excuse,
or the suitability of an alternative sanction.
As discussed
above, these are among the factors that should guide the trial
court in the exercise of its discretion.
Where the court
neglects, or seems to neglect, such guidance, it risks giving the
impression of arbitrariness.
Nevertheless, we are mindful that
the trial court’s discretion in this area is broad,14 and that a
plaintiff’s particularly egregious behavior can sometimes merit
dismissal even without warning or prior sanction.15
Here, Ellis
& Associates failed by more than a year-and-a-half to comply with
the court’s order to obtain new counsel.
Worse, it failed to
request an extension of the original sixty-day deadline or even
to apprise the court of the trouble finding counsel it claims to
have been experiencing.
This complete and prolonged disregard of
the court’s order not only amounted to a failure to prosecute the
case, but can legitimately be regarded as “stubbornly disobedient
and willfully contemptuous.
It is, in short, a clear record of
delay and contumacious conduct.”16
Although a different court
might have responded more leniently than this one did to Ellis &
Associates’ alleged difficulties, we are not persuaded that this
court’s strict response unfairly deprived Ellis & Associates of a
14
Wright v. Transportation Cabinet, supra.
15
Cf. Harmon v. CSX Transportation, Inc., supra.
16
Harmon v. CSX Transportation, Inc., supra, 110 F.3d at 368.
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trial on the merits or otherwise amounted to an abuse of
discretion.
Accordingly, we affirm the April 3, 2000, order of
the Floyd Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bobby Rickey King
Rick King, PSC
Pikeville, Kentucky
Matthew W. Breetz
Stites & Harbison
Louisville, Kentucky
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