TIFFANY AMELIA CODY v. DR. KAREN KIMSEY; REGIONAL HEALTHCARE, INC. D/B/A JUNE BUCHANAN PRIMARY CARE CENTER; AND OTHER UNKNOWN DEFENDANTS
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RENDERED:
DECEMBER 9, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001338-MR
TIFFANY AMELIA CODY
APPELLANT
APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE EDDY COLEMAN, SPECIAL JUDGE
ACTION NO. 02-CI-00034
v.
DR. KAREN KIMSEY; REGIONAL
HEALTHCARE, INC. D/B/A JUNE
BUCHANAN PRIMARY CARE CENTER; AND
OTHER UNKNOWN DEFENDANTS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
TAYLOR AND VANMETER, JUDGES; POTTER, SENIOR JUDGE. 1
TAYLOR, JUDGE:
Tiffany Amelia Cody brings this appeal from a
June 1, 2004, order of the Knott Circuit Court dismissing her
medical malpractice action pursuant to Ky. R. Civ. P. (CR) 41.02
for failure to prosecute.
1
We affirm.
Senior Judge John W. Potter sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
On February 8, 2002, Cody filed a complaint against
Dr. Karen Kimsey, the Appalachian Regional Healthcare, Inc.
d/b/a June Buchanan Primary Care Center (Regional Healthcare),
and Other Unknown Defendants.
Therein, Cody alleged defendants
were negligent in their care of her and that as a result she
suffered a ruptured appendix.
Both Regional Healthcare and Dr.
Kimsey filed answers on March 4, 2002.
On March 18, 2003, Dr.
Kimsey filed a motion to dismiss under CR 41.02 for failure to
prosecute.
Therein, Dr. Kimsey specifically stated:
Since the date of filing the Complaint, the
Plaintiff has failed to respond to the
Interrogatories and Request for Documents of
this Defendant, which were filed on March 4,
2002. . . . At this time the Plaintiff has
not attempted to take any depositions or
serve discovery on the Defendants. In
effect, the Plaintiff has not taken a single
affirmative step in this case since the
filing of the Complaint.
On March 20, 2003, Regional Healthcare filed a motion
to dismiss for failure to prosecute.
It appears the parties
agreed to give Cody the opportunity to respond to the
interrogatories and as a consequence appellees withdrew their
motions.
On July 18, 2003, the circuit court entered an order
staying the action for six months from the date of June 20,
2003, because of a bankruptcy proceeding filed by Regional
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Healthcare’s insurance company.
The case was returned to the
active docket in December 2003.
On February 27, 2004, Dr. Kimsey again filed a motion
to dismiss under CR 41.02(1) for failure to prosecute.
Again,
Dr. Kimsey alleged:
In the case at bar, almost two years have
passed since the complaint was filed.
Plaintiff has not taken a single deposition
of any of the defendants to this action, nor
has she propounded any discovery requests to
defendants. Plaintiff has not taken any
other affirmative steps to move the case
along. She has not offered any affidavits
or exhibits to support her serious
allegations of misconduct against Dr. Kimsey
or any of the other defendants in this
matter. The record is as devoid of proof
today as it was two years ago when this case
was filed. Plaintiff has never offered any
sort of excuse or justification of her
conduct in neglecting the case. All
Plaintiff has done is (a) belatedly respond
to Dr. Kimsey’s discovery requests almost a
year after they were due and (b) file one
response to a motion to dismiss propounded
by Dr. Kimsey.
Thereafter, Regional Healthcare also filed another motion to
dismiss for failure to prosecute.
A hearing upon the motions to
dismiss was originally scheduled for March 25, 2004; however,
Dr. Kimsey and Regional Healthcare renoticed the hearing for
April 8, 2004.
As a consequence, Cody filed a motion to
continue the hearing.
The circuit court ultimately denied the
motion to continue and granted the motion to dismiss the action
against both Dr. Kimsey and Regional Healthcare.
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Thereafter,
Cody filed a motion to alter, amend, or vacate, and the court
held a hearing upon the motion.
On June 1, 2004, the circuit
court entered an order denying Cody’s motion and dismissing with
prejudice any claims Cody asserted against Dr. Kimsey and
Regional Healthcare.
This appeal follows.
Cody contends the circuit court committed reversible
error by dismissing her action under CR 41.01(1) against Dr.
Kimsey and Regional Healthcare.
We disagree.
CR 41.02(1) reads as follows:
For 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 claim
against him.
It is well-established that a dismissal for failure to prosecute
is within the sound discretion of the circuit court.
Modern
Heating & Supply Co. v. Ohio Bank Bldg. & Equip. Co., 451 S.W.2d
401 (Ky. 1970).
In this case, the record discloses that Cody has
failed to prosecute the action in a timely manner.
complaint was filed February 8, 2002.
The
Over a year passed before
motions to dismiss were filed for failure to prosecute.
Subsequently, an agreement was recorded; whereby, Cody would
respond to pending discovery requests.
Dr. Kimsey’s and
Regional Healthcare’s second motions to dismiss were filed in
February 2004.
Although the action was stayed for a period of
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six months, it remained on the active docket for some eighteen
months before the second motions to dismiss were filed.
During
that eighteen month period, Cody failed to take any depositions
and failed to identify an expert witness.
Cody had adequate
notice that dismissal was possible considering these were the
second motions to dismiss for failure to prosecute.
Considering
the circumstances as a whole, we cannot say the circuit court
abused its discretion by dismissing Cody’s actions against Dr.
Kimsey and Regional Healthcare for failure to prosecute under CR
41.02.
See Trumbo v. Parsley, 461 S.W.2d 67 (Ky. 1970).
Cody also contends the circuit court committed
reversible error by denying her motion to continue the hearing
on the CR 41.02 motions to dismiss.
The record reveals that
Cody filed a motion to continue the hearing citing an engagement
at her child’s school.
Even if the circuit court erred by
denying the motion, we are of the opinion that any error was
merely harmless.
CR 61.01.
Cody received a full hearing upon
her motion to vacate the order of dismissal.
In that hearing,
Cody was given the opportunity to fully argue the merits of
dismissal.
Moreover, given the particular circumstances of this
case, we simply cannot say that the denial of Cody’s motion to
continue affected her substantial rights.
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For the foregoing reasons, the order of the Knott
Circuit Court is affirmed.
VANMETER, JUDGE CONCURS.
POTTER, SENIOR JUDGE, DISSENTS WITHOUT SEPARATE
OPINION.
BRIEF FOR APPELLANT:
Gail Smith Slone
Hindman, Kentucky
BRIEF FOR APPELLEE, DR. KAREN
KIMSEY:
Mark E. Nichols
Melanie S. Marrs
LYNN, FULKERSON, NICHOLS &
KINKEL, PLLC
Lexington, Kentucky
BRIEF FOR APPELLEE,
APPALACHIAN REGIONAL
HEALTHCARE, INC., D/B/A JUNE
BUCHANAN PRIMARE CARE CENTER:
Johann F. Herklotz
PIPER, WELLMAN & BOWERS
Lexington, Kentucky
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