JERRY W. LEONARD V. CITY OF BRANDENBURG, KENTUCKY; RONNIE C. JOYNER, INDIVIDUALLY, AND AS MAYOR OF CITY OF BRANDENBURG, KENTUCKY; JEFFREY L. COX, INDIVIDUALLY, AND AS CHIEF OF POLICE OF BRANDENBURG, KENTUCKY
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December 3, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002238-MR
JERRY W. LEONARD
APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
CIVIL ACTION NO. 01-CI-00147
V.
CITY OF BRANDENBURG, KENTUCKY;
RONNIE C. JOYNER, INDIVIDUALLY, AND AS
MAYOR OF CITY OF BRANDENBURG, KENTUCKY;
JEFFREY L. COX, INDIVIDUALLY, AND AS
CHIEF OF POLICE OF BRANDENBURG, KENTUCKY
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; MINTON AND VANMETER, JUDGES.
MINTON, JUDGE.
The involuntary dismissal of a civil action with
prejudice is the ultimate sanction available to the trial court
to punish a plaintiff who has failed to prosecute its case or
comply with court orders.
The circuit court granted the
defendants’ motion and involuntarily dismissed Jerry Leonard’s
wrongful termination case with prejudice after Leonard’s counsel
moved for another extension on a deadline for production of a
termination hearing transcript.
This request followed close on
the heels of the court’s order that vacated its earlier
involuntary dismissal for failure to comply with deadlines for
production of this transcript.
In that order, the court
sanctioned Leonard’s counsel with payment of attorney’s fees for
not furnishing the transcript timely and warned that a failure
to comply with further deadlines would result in dismissal.
In
this pro se appeal, Leonard argues that the circuit court abused
its discretion by imposing the “death sentence” on his claim to
punish the lawyer for missing this deadline.
We agree that this
dismissal was an abuse of discretion and we reverse.
PROCEDURAL STEPS ENDING IN DISMISSAL
On May 3, 2001, Leonard filed suit against the City of
Brandenburg; its mayor, Ronnie Joyner; and its police chief,
Jeffrey L. Cox, who are now the Appellees in this appeal.
The
crux of the suit was an appeal under the Police Officers’ Bill
of Rights1 from the City’s termination of Leonard’s employment
with the Brandenburg City Police Department.
The procedure for
this type of appeal in the circuit court is that the discharged
employee is entitled to something less than a trial de novoa
quasi trial de novo.
The onus is on the discharged employee who
has the obligation to furnish a record of the evidence heard by
1
Kentucky Revised Statutes (KRS) 15.520.
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the hearing body and who has the right to call such additional
witnesses as the employee may desire.
The trial court is to
consider both the record before the hearing body and the
additional testimony.
The trial court is limited to a
determination of whether the hearing body acted arbitrarily in
deciding whether the employee violated the rules and regulations
of the police department.2
Leonard also made claims for
violation of his right to due process under U.S. and Kentucky
constitutions, intentional infliction of emotional distress,
injury to business reputation, embarrassment, and humiliation.
The Appellees removed the case to federal court where the case
proceeded to a dismissal after about a year.
In an order,
entered June 24, 2002, the federal court dismissed the federal
claims and remanded the state claims to the circuit court.
In an effort to move the case expeditiously toward
resolution, the circuit court entered a scheduling order on
October 18, 2002, requiring Leonard, within 45 days, to file the
transcript of the termination hearing that was conducted on
March 29, 2001, before the Mayor and the City Council of
Brandenburg.
2
The order also set discovery and briefing
Stallins v. City of Madisonville, Ky.App., 707 S.W.2d 349,
350 (1986). This case makes specific reference to the obligation of
the plaintiff to furnish a “transcript” of the administrative
hearing, and it appears that the circuit court in the case at hand
interpreted this literally to mean that Leonard had to furnish a
written transcription of the audio-recorded hearing. Regardless of
whether a transcription is mandatory, it appears that Leonard’s
counsel did not object to furnishing the written transcription.
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deadlines and a final submission date.
As the court explained
in a later order, the transcript was not for discovery purposes
since the Appellees already had the audiotapes of the hearing.
Rather, “[t]he purpose of the transcript was primarily to assist
the courts [sic] in the interest of judicial economy in
determining the legal issues in the parties’ memoranda without
having to listen to the audio recording.”
Soon after the entry
of the scheduling order, Appellees’ counsel mailed to Leonard’s
counsel, Samuel Manly, two audiocassette tapes of the hearing.
After the original 45-day deadline passed without a
transcript, Manly moved for more time.
He cited as grounds for
the extension his own need to attend to his ailing mother who
lived in Florida.
Without objection from the Appellees, the
circuit court entered a new scheduling order on December 19,
2002, which extended the deadline for filing the transcript to
January 31, 2003, and extended the other deadlines for
discovery, briefing, and submission accordingly.
This deadline
passed without compliance or a request for extension.
Citing the failure to file the transcript, even after
a prodding letter of inquiry to Manly, the Appellees filed a
motion on March 19, 2003, seeking involuntary dismissal as a
sanction for failure to comply with the court’s order.
Neither
Manly nor Leonard appeared at the scheduled hearing on April 3,
2003, to oppose this motion.
The circuit court granted the
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motion and entered an order of involuntary dismissal on April 4,
2003.
Manly immediately filed a motion to set aside the
dismissal.
With the motion, he submitted his own affidavit,
dated April 14, 2002, in which he cited the lengthy final
illness and death of his mother which necessitated his absence
from Kentucky.
He also cited his personal health issues to
explain his having neglected the preparation and filing of the
transcript.
Manly blamed his secretary for his failure to
appear at the hearing on the motion to dismiss.
Manly’s
affidavit assured the circuit court that the “[p]reparation of
the transcript is now underway.”
The court heard the motion to set aside the dismissal
on May 8, 2003.
Two days later, the circuit court entered
detailed findings of fact and conclusions of law and an order
vacating the dismissal.
With obvious skepticism, the circuit
judge accepted Manly’s excuses for having neglected the January
deadline and having failed to appear in court on April 4.
But
the circuit judge admonished Manly and sanctioned him with costs
and attorney’s fees, stating:
The court is reluctant to accept the
continuing efforts of counsel to blame their
secretary(ies) for their own omissions.
Mr. Manly has had sufficient contact with his
secretary to handle a highly publicized case
through three levels of state courts, yet
[he] wants to blame her for improperly
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documenting this action on his docket. The
court finds it much easier to accept a
responsible counsel’s admission of neglect or
inattention to his responsibilities than to
point the finger at an employee unable to
defend herself in a hearing. Mr. Manly has
directly violated the court’s order and
sanctions should be imposed upon him.
The court ordered that the new deadline for the transcript was
May 30, 2003; and the other deadlines were again extended
accordingly.
The order concluded with this clear admonition:
The deadlines herein set by the court
may not be altered by agreement of the
parties. Same may only be altered by order
of court after notice, motion and hearing
and will only be granted based upon
exceptional circumstances. Failure of
Plaintiff to comply with any deadline set
forth in this Order shall be cause for
dismissal of this action as a sanction
therefore [sic].
On the day the transcript was due, Manly filed a
motion asking for an extension until June 6, 2003.
Accompanying
the motion was the affidavit of a legal transcriptionist, who
stated that she had received the audiotapes for transcription on
May 19, 2003; and because of the poor quality of the tapes, she
could not complete the transcript by the deadline.
The
Appellees again moved for dismissal, and the circuit court
granted their motion after a hearing.
detailed findings.
Again the court made
In its dismissal order, entered July 9,
2003, the circuit judge observed:
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This court attempted to be lenient with
the Plaintiff in his initial failure to
comply with its prior orders. The ordering
and completion of the transcript herein has
been delayed previously at Plaintiff’s
request from the initial deadline of
December 2, 2002(45 days after entry of
order) to January 31, 2003. That order was
based upon Plaintiff’s counsel’s mother’s
illness and infirmity. Now over seven
months after it initially became known a
transcript would be required to be prepared
by Plaintiff (no objection to said
requirement being raised), he once again
requested an additional extension.
The court had some reservations when it
granted Plaintiff’s motion to vacate the
order dismissing this action. It had doubts
then whether the Defendants were being
prejudiced by granting the extension
requested. Procedure required [the court]
to follow the course [that the court] took.
Now, upon consideration of the repeated
failure to comply with its express discovery
order with prior notice of the sanctions to
be imposed for a failure to meet the
reasonable deadline, the court has no
further reservation in what it feels justice
compels it to do.
ANALYSIS
A trial court may dismiss a civil action with
prejudice as a sanction against a party who fails to obey an
order to provide discovery.3
A trial court may dismiss a civil
action with prejudice as a sanction against a party who fails to
comply with the civil rules, including discovery rules, or any
3
Kentucky Rules of Civil Procedure (CR) 37.02(2)(c).
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order of the court.4
A trial court may, in the exercise of its
inherent power, dismiss a case with prejudice for want of
prosecution when necessary to preserve the judicial process.5
But because of the grave consequences of a dismissal with
prejudice, a trial court should resort to this sanction only in
the most extreme cases.6
And on appeal, this Court must
carefully scrutinize the trial court’s exercise of its
discretion.7
“The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.”8
In Ward v. Housman,9 a divided panel of this court
recommended that trial courts use the “relevant factors” adopted
by the U. S. Court of Appeals for the Third Circuit, which was
considering the federal counterpart of CR 41.02,10 in
Scarborough v. Eubanks11 as “a worthwhile guideline for analysis”
4
CR 41.02.
5
Nall v. Woolfolk, Ky., 451 S.W.2d 389, 390 (1970).
6
Polk v. Wimsatt, Ky.App., 689 S.W.2d 363, 364-365 (1985).
7
Id.
8
Goodyear Tire & Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 581
(2000).
9
Ky.App., 809 S.W.2d 717 (1991).
10
Fed. R. Civ. P. 41(b).
11
747 F.2d 871, 874-878 (3rd Cir. 1984). In Poulis v. State Farm Fire
and Casualty Co., 747 F.2d 863 (3rd Cir. 1984), filed the same day
as Scarborough, the Third Circuit recapitulated these factors.
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when considering dismissing an entire case as a sanction for
dilatory conduct of counsel.12
Although the issue in Ward dealt
with the propriety of using summary judgment as a sanctioning
tool for dilatory conduct of counsel, we, too, find the analysis
endorsed by Ward to be helpful in assessing a motion to dismiss
when used as a sanctioning tool for failure to obey discovery
schedules, failure to prosecute, or to failure to comply with
other procedural rules.
The Ward factors are:
(1) the extent
of the party’s personal responsibility; (2) the history of
dilatoriness; (3) whether the attorney’s conduct was willful or
in bad faith; (4) the meritoriousness of the claim;
(5) prejudice to the other party; and (6) alternative sanctions.
We will proceed to examine the case at hand using the
Ward factors, keeping in mind that all of them need not be
satisfied to warrant dismissal as a sanction.
1.
13
The extent of Leonard’s personal responsibility.
Leonard argues in his brief “that any fault for
anything less than total compliance with the orders of the Meade
Circuit Court lies with counsel for Plaintiff and not with
Plaintiff who was in no position to know what was to be required
by the Meade Circuit Court.”
This issue was apparently not
12
Ward, supra at 719.
13
See Hicks v. Feeney, 850 F2d 152, 156 (3rd Cir. 1987) (applying the
so-called Polis factors).
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considered by the trial court.
Consequently, there is no
finding concerning Leonard’s personal involvement contained in
any of the circuit court’s orders.
Similarly, there is no
suggestion in the record that Leonard himself is responsible for
the failure to file the transcript as ordered.
We infer from
the sanction of costs and attorney’s fees that the trial court
imposed to be paid by Manly and not to be passed on to Leonard
that the trial court implicitly held Manly alone to be
responsible for dilatory conduct.
And the record does reflect that Manly took full
responsibility for the delays.
He told the trial court that the
reasons for the delay were his attention to his mother’s final
illness and death, his own illness and injuries suffered in a
fall down restaurant steps, his secretary’s failure to calendar
accurately, and his own decision to postpone hiring transcriptionists.
Finally, the trial court mentions more than once that
while these factors hindered Manly’s compliance with its
scheduling order, Manly contemporaneously represented a party in
a highly publicized case involving the gubernatorial primary
through three levels of the court system.
The obvious inference
is that Manly neglected this case for that one.
But Leonard’s apparent lack of participation in the
delay is not absolutely dispositive because it is axiomatic that
“[a] litigant may not employ an attorney and then wash his hands
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of all responsibility.
The law demands the exercise of due
diligence by the client as well as by his attorney in the
prosecution or defense of litigation.”14
In light of our
disposition of this case, we hold for another case an analysis
of the serious dilemma posed by the allocation of responsibility
between the attorney and the client when the attorney's
delinquenciesnot the client’snecessitate sanctions for
dilatory or contumacious conduct.15
2.
The history of dilatoriness.
The circuit court notes in its findings its efforts in
three orders over seven months to secure the requisite hearing
transcript.
We are aware of the exhortations to trial courts to
move cases toward resolution expeditiously.
Time limits imposed
by the trial court serve an important purpose for the orderly,
fair, and expeditious processing of litigation.
If compliance
is not feasible within the time limits set by the court, it is
incumbent upon counsel to request an extension from the court
before the court’s deadline passes.
We are satisfied that the
circuit court’s finding of a “repeated failure to comply with
its express discovery order” is a finding of a history of
14
Gorin v. Gorin, 292 Ky. 562, 167 S.W.2d 52, 55 (1942).
15
See e.g., Carter v. Albert Einstein Medical Center, 804 F.2d 805,
807-808 (3rd Cir. 1986).
-11-
dilatoriness.
And such a finding is amply supported by the
record.
3.
Whether attorney’s conduct was willful or in bad faith.
The circuit court set aside its first dismissal order
“[a]s a result of [a] hearing [on May 8, 2003] and
representations of [Manly].”
One of those representations was,
the court noted, that “[p]reparation of the transcript is now
underway.”
Later, the circuit judge was surprised and dismayed
to learn that preparation had not, in fact, been underway as of
the hearing on May 8, 2003.
As it turned out, an earlier
transcriptionist, Ms. Watson, had actually returned the tapes to
Manly on April 23, 2003; and Manly decided to wait for the
outcome of his motion to vacate the dismissal before incurring
the costs for transcription.
The circuit court apparently did not find the last
request for a seven days’ delay to be based upon one of those
“exceptional circumstances” for which the May 10, 2003,
scheduling order allowed.
And having forewarned Manly that
failure to comply with these latest deadlines would result in
dismissal absent such exceptional circumstances, the circuit
court was unmoved by the plea for yet more time by a second
transcriptionist, Ms. Broadhead.
Manly argued that inaudible
tapes required more time to transcribe. The court responded that
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“Mr. Manly knew or should have known of the poor audio quality
of the tapes prior to transmittal to either [of the two
identified transcriptionists].
He had known a transcript was
due since entry of the initial order October 18, 2002.”
In analyzing the attorney conduct factor, the Third
Circuit in Scarborough looked to “the type of willful or
contumacious behavior which was characterized [by the U. S.
Supreme Court] as ‘flagrant bad faith’ in National Hockey League
v. Metropolitan Hockey Club, Inc. . . . ."16
In National Hockey
League, the trial court dismissed the case after 17 months,
during which the plaintiffs failed to answer crucial interrogatories despite numerous extensions, and broke promises and
commitments to the court.
17
As we have reviewed the record in
the case before us, it does not support a finding that Manly’s
dilatory conduct stemmed from this sort of flagrant bad faith.
In Naive v. Jones, our high court suggested that
willful conduct on the part of counsel facing dismissal as a
sanction under CR 37.05 for failing to answer or object to
interrogatories propounded under CR 33 “contemplates a
deliberate delinquency as opposed to one stemming from excusable
neglect, inadvertence or mistake.
This would be a conscious and
16
Scarborough, 747 F.2d at 875; see also Poulis, 747 F.2d at 866.
17
427 U.S. at 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).
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intentional noncompliance.”
18
Against the backdrop of Manly’s
history of dilatoriness, the judge’s finding that Manly knew or
should have known for seven months of the poor audio quality of
the micro-cassette tapes, and the trial court’s clear warning of
dismissal for any further missed deadlines, the facts support a
finding of willfulness on Manly’s part.
This conclusion is
bolstered by what appears from the record to be Manly’s effort
intentionally to mislead the court by stating that the
transcription was in progress in an effort to convince the judge
to set the first dismissal order aside.
4.
Meritoriousness of the claim.
The trial court’s order does not analyze the meri-
toriousness of Leonard’s claims as having any bearing on the
dismissal.
And we have no way of doing so from the record.
For
the purposes of dismissal as a sanction, the meritoriousness of
a claim must be evaluated on the facial validity of the pleadings.19
We cannot say that Leonard has not made out a facially
valid claim.
18
Ky., 353 S.W.2d 365, 366 (1961).
19
Scarborough at 875.
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5.
Prejudice to the other party.
If there has been true prejudice to a party by an
opponent’s failure to comply with a scheduling order of the
court, that factor alone must bear substantial weight in support
of a dismissal.
Here, the trial court specifically concludes
that “the defendants are prejudiced by the continued litigation
and expense being incurred by the Plaintiff’s failure to
cooperate and be compliant with discovery . . . .”
But under
the circumstances of this case, we are unable to discern true
prejudice to the Appellees’ case from Manly’s most recent delay
in furnishing a transcript of tapestapes that were in the
Appellees’ hands all along.
And as the trial court had done in
its earlier order, an award of attorney’s fees and costs could
have compensated Appellees for any unreasonable expense
associated with delay, if any such additional expense were
shown.
Indeed, the Appellees’ motion to dismiss does not argue
that a one week’s extension to file the transcript prejudiced
their case.
They do not mention prejudice in their brief to
this Court.
Examples of true prejudice are “the irretrievable loss
of evidence, the inevitable dimming of witnesses’ memories, or
the excessive and possibly irremediable burdens or costs imposed
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on the opposing party.”20
The record does not support a finding
that the Appellees have been so adversely affected by Manly’s
delay.
The trial court erred in finding prejudice to the
Appellees.
6.
Alternative sanctions.
The trial court concluded that in light of the “prior
notice of the sanctions to be imposed for a failure to meet the
reasonable deadline” that it felt that “justice compels”
dismissal.
We fully understand the trial court’s frustration
that by replacing its earlier dismissal order, which it
acknowledged was improvidently granted, with a monetary sanction
and a warning, it appeared to fail so quickly to achieve
compliance from Manly.
But we believe, nevertheless, that
dismissal under these facts is an abuse of discretion.
Dismissal must be the sanction of last resort.
The trial
court’s earlier warning notwithstanding, a direct and effective
sanction for the pattern of attorney delay encountered by the
trial court, is the imposition of excess costs and attorney’s
fees caused by the attorney’s dilatory conduct, as authorized by
CR 37.01(d), 37.02(2)(d), and 37.02(3).
As with the trial
court’s earlier sanction, these costs and fees should not be
20
Id. at
876.
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passed on to the client when the client is not at fault but
borne entirely by the offending lawyer.
DISPOSITION
By examining this record guided by Ward v. Housman, we
must conclude that the trial court abused its discretion by
dismissing the claim with prejudice.
Justice compels an
alternative sanction to “the death sentence” where, as here, the
client appears to have a facially meritorious claim; the client
appears to be free of fault for the lawyer’s history of willful,
dilatory behavior; the delay is of comparatively short duration;
and the opposing side has not shown actual prejudice by the
delay.
For these reasons, we reverse the order of dismissal
with prejudice and remand this case to the trial court for
further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Jerry W. Leonard, Pro se
Ekron, Kentucky
David Whalin
David P. Bowles
Chris J. Gadansky
Louisville, Kentucky
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