LEWIS HURD v. CHARLES WHITE
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RENDERED: MAY 19, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002060-MR
LEWIS HURD
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 01-CI-005988
v.
CHARLES WHITE
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Lewis Hurd has appealed from the September 8,
2004, order entered by the Jefferson Circuit Court which denied
his motion to reconsider the trial court’s dismissal of his
personal injury claim against Charles White.
Having concluded
that the trial court abused its discretion in dismissing the
action, we vacate the ruling and remand for further proceedings.
On August 31, 2001, Hurd filed a complaint in the
Jefferson Circuit Court against White seeking damages for
injuries he sustained as a pedestrian in Louisville, Kentucky,
after White hit him in a pickup truck.1
The case was submitted
to mediation by order of the trial court on September 9, 2002.
An order was entered on November 15, 2002, setting the case for
trial on June 4, 2003.
By letter dated December 26, 2002,
Hurd’s attorney notified White’s attorney that he was
withdrawing from Hurd’s case.
White’s attorney then filed a
motion on January 7, 2003, asking the trial court to give Hurd a
deadline to find a new attorney, because of the deadlines in the
pre-trial schedule.
Hurd’s attorney then filed a motion to
withdraw on January 8, 2003, which the trial court granted by
order entered on January 13, 2003, and gave Hurd 30 days to
obtain a new attorney.
Subsequently, Hurd hired a new attorney,
who filed an entry of appearance on February 12, 2003.
The trial court entered an order in the case on
November 14, 2003, resetting the trial for May 11, 2004.2
Both
parties appeared with counsel on that date, however, Hurd
announced that he was not ready to proceed.
On May 25, 2004,
Hurd’s attorney filed a motion to withdraw, which the trial
1
White was served with summons on March 18, 2002, and filed an answer on May
16, 2002.
2
Hurd claims that this continuance was granted because White failed to appear
for a scheduled deposition on more than one occasion. While there is no
proof of this in the record, Hurd did file a motion on May 6, 2004, to be
heard on May 11, 2004, asking the trial court to strike White’s answer,
pursuant to Kentucky Rules of Civil Procedure (CR) 55, and to grant a default
judgment in the case as to liability. In support of the motion, Hurd claimed
that White failed to appear for depositions on April 27, 2004, and May 6,
2004.
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court granted on June 10, 2004.
The trial court stated in its
order that Hurd had 30 days in which to hire a new attorney.
On July 9, 2004, White filed a motion to dismiss the
claim pursuant to CR 41.02.
He claimed that Hurd had violated
the trial court’s order of June 10, 2004, by failing to retain
counsel to represent him within 30 days.
White further claimed
that Hurd had “not attempted to communicate with [White’s
attorney] in any manner.”
The hearing was noticed for July 12,
2004, but neither Hurd, nor an attorney, appeared on his behalf.
At that time, the trial court informed White of its order
entered on July 11, 2004, which stated that Hurd believed he had
found an attorney to represent him and confirmed the hearing
date of July 26, 2004.3
There was no communication between the
parties before the hearing on July 26, 2004, and no one appeared
on behalf of Hurd on that date.
Subsequently, on July 30, 2004,
the trial court granted White’s motion to dismiss for want of
prosecution under CR 41.02.
On August 6, 2004, Hurd’s new attorney entered his
appearance and filed a motion for reconsideration of the order
dismissing the action.4
At a hearing on August 16, 2004, Hurd’s
3
On July 6, 2004, Hurd appeared in court and stated that he had spoken to an
attorney who had agreed to represent him. However, that attorney did not
file an entry of appearance in the case.
4
White claims that Hurd’s motion for reconsideration was not timely filed
because the order dismissing the case was entered in court on July 26, 2004,
rather than being entered on July 30, 2004, which is the date the clerk
stamped on the order. However, pursuant to the clerk’s certified docket
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new attorney stated that Hurd did not attend the hearing on
White’s motion to dismiss because he had been hospitalized on
July 26, 2004.
However, Hurd’s attorney filed a notice of proof
of inability to attend the July 26, 2004, hearing indicating
that Hurd was incarcerated between July 15, 2004, and July 28,
2004.
As proof, he attached a letter from the Louisville
Municipal Department of Corrections dated August 17, 2004.
Hurd’s motion to reconsider was denied by the trial court on
September 8, 2004.
This appeal followed.
Dismissals for lack of prosecution are provided for in
CR 41.02(1), which states that a case may be dismissed “[f]or
failure of the plaintiff to prosecute or comply with these rules
or any order of the court[.]”
“The power of dismissal for want
of prosecution is an inherent power in the courts and necessary
to preserve the judicial process.”5
A dismissal for lack of
prosecution pursuant to CR 41.02 is reviewed under the abuse of
discretion standard.6
“‘The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable,
which is attached to the notice of appeal in this case, the order was not
formally entered until July 30, 2004, which made the filing of Hurd’s motion
for reconsideration timely.
5
Nall v. Woolfolk, 451 S.W.2d 389, 390 (Ky. 1970).
6
Jenkins v. City of Lexington, 528 S.W.2d 729, 730 (Ky. 1975).
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unfair, or unsupported by sound legal principles’” [citations
omitted].7
The trial court should resort to a CR 41.02 dismissal
“only in the most extreme cases.”8
This Court shall “carefully
scrutinize the trial court’s exercise of discretion in doing
so.”9
A trial court should rule on CR 41.02 motions “in the
light of the particular circumstances involved and length of
time alone is not the test of diligence” [citation omitted].10
The trial court should also determine whether less
drastic measures would remedy the situation, especially where
there is no prejudice to the other party.11
Factors relevant to
whether the trial court should dismiss the action with prejudice
are set forth in Ward v. Housman,12 which states:
Considering whether a case should be
dismissed for dilatory conduct of counsel,
it would be well for our trial courts to
consider [Scarborough v. Eubanks, 747 F.2d
871, 875-78 (3d Cir. 1984)]13 and these
relevant factors:
7
Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004).
8
Polk v. Wimsatt, 689 S.W.2d 363, 364-65 (Ky.App. 1985).
9
Id. at 365.
10
Gill v. Gill, 455 S.W.2d 545, 546 (Ky. 1970).
11
Polk, 689 S.W.2d at 365.
12
809 S.W.2d 717 (Ky.App. 1991).
13
The guidelines in Scarborough were used to determine whether a case should
be dismissed for dilatory conduct under Rule 41(b) of the Federal Rules of
Civil Procedure, which is the counterpart of our CR 41.02(1).
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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.
Although CR 41.02(1) refers to
dismissal of an action or a claim therein as
the sole remedy for a violation of the rule,
. . . the rule is subject to the sound
discretion of the trial judge.14
The law of this Commonwealth establishes that a
sanction must bear some relationship to the prejudice created,
and that cases, whenever possible, should be decided on their
merits.15
In the case before us, the record does not reflect
that the trial court considered any of the factors outlined
above prior to entering its order dismissing Hurd’s case with
prejudice.
It appears that the trial court based its decision
solely on the fact that neither Hurd, nor counsel on his behalf,
appeared for the hearing on July 26, 2004.
However, Hurd
provided the trial court uncontroverted proof that he was
incarcerated on the date of the hearing.
Further, the record
reflects that, while Hurd’s actions had caused some delay in the
case, White’s actions had also contributed to this delay.
14
In
Ward, 809 S.W.2d at 719-20.
15
See Bridewell v. City of Dayton, ex rel. Urban Renewal & Community
Development Agency of City of Dayton, 763 S.W.2d 151, 153 (Ky.App. 1988);
Crossley v. Anheuser-Busch, Inc., 747 S.W.2d 600, 601 (Ky. 1988); and Ready
v. Jamison, 705 S.W.2d 479, 482 (Ky. 1986).
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accordance with Ward, “[i]t is our opinion that the trial court
abused its discretion . . . [b]y dismissing the complaint for a
one-time dilatory act . . . when no other alternative sanctions
were considered[.]
[T]he trial court inappropriately applied
the ‘death sentence’ to this civil action.”16
Accordingly, the order of the Jefferson Circuit Court
is vacated and this matter is remanded for further proceedings
consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kyle A. Burden
Louisville, Kentucky
James M. Cawood, III
Cincinatti, Ohio
16
Ward 809 S.W.2d at 720.
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