BRENDA K. MARGHERIO AND RICHARD A. MARGHERIO v. CHARLES L. SHIELDS, M.D.
Annotate this Case
Download PDF
RENDERED: May 9, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000356-MR
BRENDA K. MARGHERIO
AND RICHARD A. MARGHERIO
APPELLANTS
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 98-CI-01194
v.
CHARLES L. SHIELDS, M.D.
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON, AND KNOPF, JUDGES.
KNOPF, JUDGE:
Brenda K. Margherio and Richard A. Margherio
appeal from an order of the McCracken Circuit Court which
dismissed their medical malpractice complaint against Charles L.
Shields, M.D. (Dr. Shields).
We agree with the Margherios that,
given the facts of this particular case, the trial court abused
its discretion in dismissing their complaint with prejudice.
Hence, we reverse the order of dismissal and remand for further
proceedings.
The relevant facts of this action are not in dispute.
On December 15, 1998, the Margherios filed a complaint alleging
medical malpractice against Dr. Shields.
Discovery proceeded
during the next two years, albeit somewhat sporadically.
However, the case was scheduled for trial on July 2, 2001.
Prior to that date, the Margherios requested a continuance due
to their counsel’s medical problems.
The trial court granted
the continuance over Dr. Shield’s objection.
Shortly thereafter, the Margherios’ counsel cancelled
several scheduled depositions of expert witnesses.
No further
actions were taken during the following six months.
Then, on
November 19, 2001, the trial court entered an order permitting
the Margherios’ attorney to withdraw as counsel based upon
medical considerations.
That order further provided:
It is further ordered that Plaintiffs
shall have until December 14, 2001 at 9:45
a.m., to obtain substitute counsel if they
intend to prosecute this claim further. A
Status Conference shall be held at motion
hour on December 14, 2001 at 9:45 a.m., to
address pending issues, and to determine the
future course of this matter.
Neither the Margherios nor their counsel appeared at
the status conference on December 14.
Consequently, the trial
court, on its own motion, ordered that the action be dismissed
with prejudice.
Upon receiving notice of the order, the
Margherios filed a pro se motion to vacate the dismissal of
2
their action.
The Margherios’ previous counsel also filed a
notice of appearance and a motion to set aside the dismissal.
Nevertheless, on February 11, 2002, the trial court entered an
order denying the motion to reinstate the action.
This appeal
followed.
The Margherios argue that the trial court essentially
dismissed their action because they had failed to obtain
substitute counsel within the time limit set by the trial court.
We agree that there is no requirement for individuals to be
represented by counsel in a civil case.1
Thus, the mere fact
that the Margherios failed to obtain substitute counsel by the
date set by the trial court was not a proper ground to dismiss
their action.
In response, Dr. Shields contends that the trial court
did not dismiss the action due to the Margherios’ failure to
obtain substitute counsel, but because of their failure to move
the case forward in a timely manner.
CR 41.02 allows a trial
court, upon motion of the defendant, to dismiss an action for
failure of the plaintiff to "prosecute or to comply with these
rules or any order of the court. . . ."
Involuntary dismissal
of an action is within the discretion of the trial court.2
1
Parsley v. Knuckles, Ky., 346 S.W.2d 1, 3 (1961).
2
Thompson v. Kentucky Power Co., Ky. App., 551 S.W.2d 815
(1977).
3
Dr.
Shields asserts that the Margherios’ delays in complying with
discovery, the indefinite continuance granted due to their
counsel’s illness, and the Margherios’ failure to appear at the
December 14, 2001, status conference justify the trial court’s
decision to dismiss the action with prejudice.
We agree with Dr. Shields that the Margherios’ failure
to appear at the December 14, 2001, status conference was
inexcusable.
The trial court’s order permitting their counsel
to withdraw clearly put them on notice of the hearing.
Furthermore, the Margherios had a duty to proceed with due
diligence in the prosecution of their case, regardless of
whether they were represented by counsel.3
Nevertheless, because of the grave consequences of a
dismissal with prejudice, a trial court should resort to a
dismissal pursuant to CR 41.02 only in extreme cases, when less
drastic remedies would not be appropriate.4
We conclude that the
Margherios’ lapse did not merit so severe a sanction as
dismissal of their case.
The test for abuse of discretion is
whether the trial judge's decision was arbitrary, unreasonable,
3
See Commonwealth, Dept. of Highways v. Hatcher, Ky., 386 S.W.2d
262, 263 (1965).
4
Polk v. Wimsatt, Ky. App., 689 S.W.2d 363, 364-65 (1985).
4
unfair, or unsupported by sound legal principles.5
We first note
that the trial court failed to set forth any findings setting
out the reasons for the dismissal.
A dismissal of an action
under these circumstances should be accompanied by some
articulation on the record of the trial court's resolution of
the factual, legal, and discretionary issues presented.
When
such a severe sanction is imposed, values of consistency,
predictability, reviewability, and deterrence, outweigh the
values of economy and efficiency that may be promoted by
allowing unexplained decisions.6
We also note that the trial court dismissed the action
on its own motion and without prior notice to the Margherios.
The trial court’s order of November 19, 2001, gave no indication
that the court would be considering dismissal of the action at
the scheduled status conference.
While the trial court may
dismiss an action for want of prosecution on its own initiative,7
the Margherios were entitled to notice that their action was to
be dismissed and an opportunity to respond.
5
Goodyear Tire & Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 581
(2000).
6
Greathouse v. American National Bank and Trust Co., Ky. App.,
796 S.W.2d 868, 870 (1990); citing Taylor v. Medtronics, Inc.,
861 F.2d 980, 986 (6th Cir.1988).
7
Nall v. Woolfolk, Ky., 451 S.W.2d 389 (1970).
5
Furthermore, the propriety of a dismissal under CR
41.02 is dependent upon the circumstances of the particular
case.8
Before dismissing an action for want of prosecution, a
trial court should consider: (1) the extent of the party's
personal responsibility; (2) the history of dilatoriness; (3)
whether the party’s conduct was willful and in bad faith; (4)
the meritoriousness of the claim; (5) the prejudice to the other
party, and (6) the availability of alternative sanctions.9
The circumstances of this case do not unequivocally
support the trial court’s decision.
Clearly, the Margherios had
not been particularly diligent in bringing their action to
trial.
There was some history of delays in discovery.
As
previously noted, the Margherios had cancelled several of their
discovery depositions, and they had not yet submitted a witness
list for trial.
However, for the most part, discovery had been
completed at the time the action was dismissed.
Although the length of the delay is not alone
determinative of a party’s diligence in bringing the case to
trial,10 it is an important factor in determining whether a party
has been dilatory in bringing his or her case to trial.
In Nall
8
Jenkins v. City of Lexington, Ky., 528 S.W.2d 729, 730 (1975).
9
Ward v. Housman, Ky. App., 809 S.W.2d 717, 719 (1991).
10
Gill v. Gill, Ky., 455 S.W.2d 545, 546 (1970).
6
v. Woolfork,11 the trial court dismissed a case after two and
one-half years of inaction.
In Jenkins v. City of Lexington,
supra, the plaintiff’s case had been inactive for two years.
In
Modern Heating & Supply Co. v. Ohio Bank Bldg. & Equipment Co.,12
the trial court dismissed an action when more than three and
one-half years had passed without significant activity.
In each
of these cases, the former Court of Appeals upheld the
dismissal, concluding that the lower courts did not abuse their
discretion.
But in Gill v. Gill,13 the former Court of Appeals
reversed the trial court’s decision to dismiss an action after
Similarly, in Ward v. Housman,14
only nine months of inactivity.
this Court reversed a trial court’s dismissal of an action
following a six-month delay in furnishing the name of an expert
witness.
In this case, while the Margherios’ failure to attend
the status conference was unjustified, there was no evidence
that it was willful or in bad faith.
Moreover, the most recent
delay in this case had been of comparatively short duration.
Six months had elapsed between the time the court had continued
the trial date and when it granted counsel’s motion to withdraw.
11
Supra at 390.
12
Ky., 451 S.W.2d 401 (1970).
13
Supra at 546.
14
Supra.
7
The trial court dismissed the action only a month later.
This
period of inactivity, while troubling, was not so great as to
warrant an inference that the Margherios no longer wished to
pursue their claims against Dr. Shields.
Given the history of this case, we are hesitant to
reverse the trial court’s exercise of discretion on this matter.
The Margherios’ failure to attend the scheduled status
conference was unjustified, and the Margherios’ compliance with
discovery had been, at best, spotty.
Furthermore, Dr. Shields
is entitled to have this claim against him resolved without
unreasonable delay.
However, in the absence of specific
findings justifying the dismissal and viewing the record as a
whole, we must conclude that the trial court abused its
discretion by dismissing this action at this point in time.
But
nothing in this opinion should be taken as approval of the
Margherio’s lack of diligence in pursuing their action.
Consequently, on remand of this action, the trial
court should immediately schedule this case for a pre-trial
conference.
At that conference, the trial court should set
dates certain for the completion of discovery (if necessary) and
for trial.
Further delay by the Margherios should not be
tolerated without a compelling justification.
In short, it is
time for this action to proceed to trial by the soonest possible
date.
8
Accordingly, the order dismissing the Margherios’
complaint is reversed, and this matter is remanded to the
McCracken Circuit Court for further proceedings as set forth in
this opinion.
HUDDLESTON, JUDGE, CONCURS.
DYCHE, JUDGE, DISSENTS.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Bobby G. Wombles
Lexington, Kentucky
E. Frederick Straub, Jr.
Guthrie H. Allen
Whitlow, Roberts, Houston &
Straub, PLLC
Paducah, Kentucky
9
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.
