LINDA F. BROWN AND GARY F. BROWN v. LOWE'S HOME CENTERS, INC.; AMERICAN WOODS, INC.; ON-SITE ASSEMBLY, INC.; AND UNKNOWN DEFENDANTS
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RENDERED:
OCTOBER 14, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001006-MR
LINDA F. BROWN
AND GARY F. BROWN
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
CIVIL ACTION NO. 01-CI-02451
v.
LOWE'S HOME CENTERS, INC.;
AMERICAN WOODS, INC.;
ON-SITE ASSEMBLY, INC.;
AND UNKNOWN DEFENDANTS
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, MINTON, AND SCHRODER, JUDGES.
MINTON, JUDGE:
Linda Brown and her husband, Gary Brown, bring
this pro se appeal from an order of the Fayette Circuit Court
involuntarily dismissing their products liability case with
prejudice.
After examining the record and the applicable law,
we vacate and remand for further proceedings.
The Browns’ brief is difficult to follow in that it
does not follow the standard format for briefs set forth in
Kentucky Rules of Civil Procedure (“CR”) 76.12. 1
alone, their brief could be stricken. 2
For that reason
But since the Browns are
proceeding without counsel, we will afford them some leeway and
exercise discretion by considering their appeal on its merits. 3
Although the Browns’ brief does not contain a
recitation of the facts per se, the facts most pertinent to this
appeal may be gleaned from Appellees’ brief and the trial court
record.
The Browns complaint, filed in June 2001, contends that
they bought a swing from Lowe’s Home Centers, Inc., but that
when Linda sat on the swing following its delivery to her home,
it collapsed, causing her to suffer “serious personal injuries.” 4
The Browns then sued Lowe’s; On-Site Assembly, Inc. (who
allegedly assembled the swing); and American Woods, Inc. (who
allegedly manufactured the swing).
1
For example, there are no citations to relevant authorities and no
separate facts and legal argument sections.
2
CR 76.12(8)(a) (“A brief may be stricken for failure to comply with
any substantial requirement of this Rule 76.12.”).
3
See, e.g., Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky. 1983)
(“Pro se pleadings are not required to meet the standard of those
applied to legal counsel.”); 5 Am.Jur.2d Appellate Review § 578
(2005) (“Courts prefer to dispose of a case on the merits rather
than to dismiss for deficiencies in a brief.”).
4
Record, p. 2.
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In April 2002, Lowe’s served a second set of
interrogatories and requests for production of documents on the
Browns. 5
Dissatisfied with what it deemed to be incomplete
responses, in September 2003, Lowe’s filed a motion to compel
further responses to these discovery requests. 6
That motion to
compel resulted in an agreed order, signed on September 18,
2003, which ordered the Browns to respond to the discovery
requests by November 11, 2003. 7
In response to the trial Court’s September 18 order,
the Browns filed a “Motion for Order to Clarify Requested
Discovery,” 8 as well as a supplemental response to discovery,
which, according to Lowe’s, merely repeated the initial
objections to the discovery. 9
Lowe’s counsel filed a response to
the Browns’ motion for clarification stating that Lowe’s
“respectfully requests that the Court require the Plaintiffs to
respond fully to all outstanding discovery responses on or
before December 19, 2003[,] or be subject to the sanction of
5
Record, pp. 69-70, 78-80.
6
Record, pp. 66-67.
7
Record, p. 132. Lowe’s asserts that the extension was asked for by
the Browns’ then-attorney because “he thought that he had been fired
[by the Browns] and needed more time to clarify his representation.”
Appellees’ Brief, p. 2.
8
Record, p. 134.
9
Record, p. 137; Appellees’ Brief, p. 2.
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dismissal.” 10
In response to the parties’ motions, the trial
court signed an order on December 16, 2003, requiring Linda to
respond to the outstanding interrogatories and requests for
production of documents by January 16, 2004. 11
Later in December
2003, the trial court granted Browns’ counsel’s motion to
withdraw 12 and further ordered Linda to “appear, either
personally or through counsel, on January 30, 2004[,] at
10:30 a.m. to advise the Court of the status of this suit.
Should Plaintiff be unrepresented and medically unable to attend
on that date, she must provide a doctor’s statement advising the
Court that she will be unable to attend.” 13
Despite the clear language of the trial court’s
December order, Linda neither appeared on January 30 nor did she
submit a report from a physician advising the Court that she
could not attend. 14
Based on Linda’s failure to comply with the
Court’s discovery orders, as well as the assertion that the
Browns had taken only one affirmative action (filing discovery
requests upon Lowe’s in January 2003) to prosecute their case
10
Record, p. 144.
11
Record, p. 154.
12
Record, p. 159.
13
Record, p. 157.
14
Linda did submit a report by a Dr. Henry Tutt. Record, pp. 170-171.
However, that report, dated January 15, 2004, did not contain
anything that could be reasonably construed as a statement advising
the Court that Linda could not attend any hearings.
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since its inception in 2001, Lowe’s and the remaining defendants
moved to dismiss the Browns’ complaint with prejudice. 15
The trial court granted Appellees’ motion to dismiss
on February 9, 2004. 16
But in one final effort to prod the
Browns to action, the trial court’s February 9 order dismissed
the action without prejudice, with the caveat that “[i]f no
additional appropriate action is taken [by the Browns] within
sixty (60) days, Defendants are directed to submit an order
dismissing [the action] with prejudice.” 17
Despite the trial
court’s clear warnings, the Browns failed to take any
substantive steps to prosecute their action (other than faxing a
letter to the trial court judge outlining all of Linda’s alleged
health problems). 18
So on April 20, 2004, the trial court
dismissed the Browns’ complaint with prejudice, 19 after which the
Browns filed the appeal at hand.
CR 41.02(1) governs involuntary dismissal of actions.
That subsection provides that “[f]or failure of the plaintiff to
prosecute or to comply with these rules or any order of the
court, a defendant may move for dismissal of an action or of any
15
Record, pp. 162-166, 176-179.
16
Record, p. 181.
17
Id.
18
See Record, pp. 188-189.
19
Record, p. 183.
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claim against him.”
However, due to the “grave consequences” of
a dismissal with prejudice, such an action “should be resorted
to only in the most extreme cases.” 20
Thus, this Court must
“carefully scrutinize” the trial court’s dismissal of a case
with prejudice. 21
The Kentucky Courts have set forth several factors a
trial court must consider in determining whether an action
should be dismissed with prejudice, including whether the action
has been placed on the trial docket; 22 the reasons for the
delay; 23 and whether less drastic sanctions would have been
appropriate. 24
Further factors to be considered are:
1)
the extent of the party’s personal
responsibility;
2)
the history of dilatoriness;
3)
whether the attorney’s conduct was willful
and in bad faith;
4)
meritoriousness of the claim;
5)
prejudice to the other party[;] and
6)
alternative sanctions. 25
20
Polk v. Wimsatt, 689 S.W.2d 363, 364-365 (Ky.App. 1985).
21
Id.
22
Gill v. Gill, 455 S.W.2d 545, 546 (Ky. 1970).
23
Id.
24
Polk, 689 S.W.2d at 365.
25
Ward v. Housman, 809 S.W.2d 717, 719 (Ky.App. 1991).
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In the case at hand, the trial court clearly
considered the efficacy of alternative sanctions, as evidenced
by the fact that it first dismissed the action without
prejudice.
But neither the audiotape of the hearings nor the
written orders of dismissal reflect that the trial court
considered any of the other factors outlined above before
dismissing the Browns’ claims with prejudice.
We are not
unmindful of the fact that the Appellees’ brief contains an
admirable discussion of the Ward factors.
But the
responsibility to make the necessary findings before dismissing
the case lies with the trial court only, not the parties or this
Court.
Thus, although we understand fully the trial court’s
duty to require the cases on its docket to advance toward
resolution in an orderly and expeditious way, we are compelled
to remand this case due to the lack of findings in the trial
court’s orders or oral statements. 26
For the foregoing reasons, the order of the Fayette
Circuit Court is vacated and remanded for further proceedings
consistent with this opinion.
BARBER, JUDGE, CONCURS.
SCHRODER, JUDGE, DISSENTS WITHOUT SEPARATE OPINION.
26
Lest this opinion be misconstrued, we express no view as to whether
the Browns’ actions (or lack thereof) merit dismissal of their
claims. Finally, as a cautionary note, we observe that any further
motions to dismiss must be served on all parties at least ten (10)
days before any hearing on it. See Fayette Circuit Court
Rule 15(A)2.
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BRIEF FOR APPELLANT:
Linda F. Brown and
Gary F. Brown, Pro se
Lexington, Kentucky
BRIEF FOR APPELLEES LOWE’S
HOME CENTERS, INC.; AMERICAN
WOODS, INC.; AND ON-SITE
ASSEMBLY, INC.:
George B. Hocker
Leslie W. Morris
M. Jane Brannon
Lexington, Kentucky
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