HUFF (CHRISTOPHER D.) VS. KEPLEY (RALPH), ET AL.
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RENDERED: OCTOBER 10, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002042-MR
CHRISTOPHER D. HUFF
v.
APPELLANT
APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
ACTION NO. 03-CI-00190
RALPH KEPLEY; UNKNOWN DEFENDANT
BEING THE UNKNOWN OWNER OR CO-OWNER
OF 303 HILLCREST ROAD, FRANKLIN,
KENTUCKY 42134; UNKNOWN DEFENDANT
BEING THE UNKNOWN OWNER OR CO-OWNER
OF THAT CERTAIN ANIMAL INVOLVED IN A
TRAFFIC ACCIDENT ON JUNE 6, 2002 THAT IS THE
SUBJECT OF KENTUCKY UNIFORM POLICE
COLLISION REPORT MASTER FILE #00998488; AND
MARK A. BARBER
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: MOORE, NICKELL, AND STUMBO, JUDGES.
APPELLEES
STUMBO, JUDGE: Christopher Huff appeals from an order of the Simpson
Circuit Court sustaining the CR 41.02(1)1 motion of Ralph Kepley to dismiss
Huff’s action for failure to prosecute. Huff’s action alleged that Kepley failed to
properly restrain a dog, which ran onto a roadway causing a motorcycle accident.
Huff contends that the circuit court abused its discretion in dismissing the action
without considering the relevant factors set out in Jaroszewski v. Flege, 204
S.W.3d 148 (Ky. App. 2006), Toler v. Rapid American, 190 S.W.3d 348 (Ky. App.
2006), and Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991). For the reasons
stated below, we vacate the order on appeal and remand the matter for further
proceedings.
On June 6, 2002, Huff was operating his motorcycle on KY-73 in
Simpson County, Kentucky. According to a police report contained in the record,
Huff’s motorcycle was following a motorcycle operated by Mark Barber. While
Huff and Barber were traveling on KY-73, a dog unexpectedly ran out in front of
Barber’s motorcycle. Barber’s motorcycle may have struck the dog, and Huff’s
motorcycle ran into the back of Barber’s motorcycle. Huff was thrown from his
motorcycle and sustained serious injuries. Barber’s motorcycle remained
operational, and Huff’s motorcycle had to be towed from the scene.
Huff filed the instant action in Simpson Circuit Court on May 27,
2003. The action was filed against Barber as the operator of the other motorcycle,
and Ralph Kepley who allegedly owned or otherwise possessed or controlled the
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Kentucky Rules of Civil Procedure.
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parcel of real property adjacent to the accident. The complaint alleged that Kepley
or other unknown defendants who owned or co-owned the parcel negligently failed
to control the dog, proximately resulting in the accident and Huff’s injuries. Huff’s
action set forth claims of negligence, negligence per se, and strict liability arising
from Kepley’s alleged failure to control the dog.
The matter proceeded in Simpson Circuit Court and discovery was
conducted. On August 2, 2006, Kepley filed a motion pursuant to CR 41.02(1) to
dismiss Huff’s action for lack of prosecution. In support of the motion, Kepley
noted that Huff had taken no affirmative steps to move the case forward for more
than two years. About one week later, and in apparent response to Kepley’s
motion, Huff filed a motion seeking a trial date. After proof on Kepley’s motion
was heard, the circuit court rendered an order on September 1, 2006, sustaining the
motion and dismissing the action. This appeal followed.
Huff now argues that the trial court abused its discretion and
committed reversible error in sustaining Kepley’s motion to dismiss the action. As
a basis for the argument, Huff contends that the trial court improperly failed to
consider the factors set out in Jaroszewski, Toler, and Ward, supra, which he
maintains must be considered when ruling on a CR 41.02 motion. He argues that
dismissal for lack of prosecution is a harsh remedy which must be used by a trial
court only as a matter of last resort, and that the circuit court’s failure to
demonstrate that it examined the factors requires reversal. In response, Kepley
maintains that the circuit court’s decision to dismiss Huff’s action was reasonable
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and fair based on Huff’s inactivity for more than two years. He further contends
that Huff’s action lacks merit which should militate in favor of affirming the
dismissal.
We have closely examined the record and the law, and must conclude
that the circuit court erred in failing to expressly consider the factors set out in
Ward, supra, before dismissing Huff’s action based on a failure to prosecute. CR
41.02(1) 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 claim against him.” Ward states that,
In ruling on a motion for involuntary dismissal, the trial
court must take care in analyzing the circumstances and
must justify the extreme action of depriving the parties of
their trial. Scarborough v. Eubanks, 747 F.2d 871 (3rd
Cir. 1984), gives a worthwhile guideline for analysis of
these situations under Fed.R.Civ.P. 41(b), which is our
counterpart rule on the federal side. Considering whether
a case should be dismissed for dilatory conduct of
counsel, it would be well for our trial courts to consider
the Scarborough case and these relevant factors:
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.
Ward, 809 S.W.2d at 719.
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In Toler, supra, a panel of this Court made it clear that the application
of the Ward factors is mandatory, and that the burden to make findings in
accordance with Ward “falls solely upon the trial court.” Toler, 190 S.W.3d at
351. Toler states,
As the trial court’s decision to dismiss here appears to
have been based almost exclusively on the Tolers’
inaction from January 2002 to May 2004, we believe that
the Ward factors are particularly relevant. Accordingly,
we find ourselves hesitant to affirm or reverse the trial
court because the record is unclear as to whether the
Ward factors were properly considered or even
considered at all. It instead reflects that the court’s
decision was based almost exclusively upon the fact that
there was a two-and-a-half-year lack of activity. While
such a fact must certainly be considered in determining
whether to dismiss a case for lack of prosecution, it is not
the only fact to be examined. (Citation omitted).
The responsibility to make such findings as are set forth
in Ward before dismissing a case with prejudice falls
solely upon the trial court. Accordingly, even though we
understand and sympathize with the court’s desire to
move the cases on its docket along in a timely and
expeditious manner, we find ourselves compelled to
vacate its orders as to dismissal here and to remand this
action for further consideration in light of Ward. In doing
so, we express no view as to whether dismissal with
prejudice will ultimately be merited.
Id.
As in Toler, the record herein does not reveal whether the Ward
factors were properly considered or even considered at all. The hearing on
Kepley’s motion to dismiss was not videotaped or transcribed, and the order
sustaining Kepley’s motion does not set out the basis for the dismissal. While we
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may reasonably assume that the dismissal resulted from Huff’s failure to move the
case forward for a period of about twenty-seven months, we may not assume that
the Ward factors were considered in disposing of Kepley’s motion. Toler is
directly on point and dispositive, and in concert with Ward requires the circuit
court to produce findings demonstrating that the involuntary dismissal - a harsh
remedy which constitutes a death sentence to the proceeding - was rendered only
after thoughtful consideration of all relevant factors. And as in Toler, we
understand and sympathize with the Simpson Circuit Court’s desire to move the
cases on its docket along in a timely and expeditious manner, and express no view
as to whether dismissal with prejudice will ultimately be merited. Whatever the
outcome, the resolution of Kepley’s motion must be supported by application of
the Ward factors.
Accordingly, we vacate the order of the Simpson Circuit Court
dismissing Huff’s action and remand the matter for findings in accordance with
Ward and Toler, supra.
MOORE, JUDGE, CONCURS.
NICKELL, JUDGE, DISSENTS BY SEPARATE OPINION.
NICKELL, JUDGE, DISSENTING: Respectfully, I dissent and
would affirm the trial court’s dismissal for three reasons. First, under CR 41.02(2),
a trial court must make findings of fact before granting a motion for involuntary
dismissal in a case decided on the merits. The case sub judice was not decided on
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the merits; it was dismissed due to Huff’s failure to prosecute. Therefore, findings
of fact were not required and their absence does not require reversal and remand.
Second, Huff did not preserve the alleged error by calling the absence
of essential findings of fact to the trial court’s attention as required by CR 52.02
and CR 52.04. Therefore, he waived review of any alleged error. Cherry v.
Cherry, 634 S.W.2d 423 (Ky. 1982).
Third, the line of cases relied upon by the majority appears to be in
conflict with CR 41.02 and CR 52.04. Toler, supra, makes the trial court
responsible for making findings of fact on the six factors discussed in Ward before
dismissing a case with prejudice. However, I cannot overlook CR 54.02 which
directs:
A final judgment shall not be reversed or remanded
because of the failure of the trial court to make a finding
of fact on an issue essential to the judgment unless such
failure is brought to the attention of the trial court by a
written request for a finding on that issue or by a motion
pursuant to Rule 52.02.
Huff did not adhere to the rule as he did not request specific findings from the trial
court.
Therefore, I would not reverse and remand this case to the trial court
for findings of fact. My view is consistent with our unanimous opinion in
McKinney v. McKinney, 257 S.W.3d 130 (Ky. App. 2008) wherein the appellant
moved for additional findings. As stated by Judge William Howerton in his
dissent in Ward, “[w]hile dismissals may be disfavored, rules of procedure and
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court orders do have a legitimate purpose.” Ward, supra, 809 S.W.2d at 720
(Howerton, J., dissenting).
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Trent Apple
Jeffrey W. Kibbey
Louisville, Kentucky
Barton D. Darrell
Amanda L. Blakeman
Bowling Green, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
ORAL ARGUMENT FOR
APPELLEE:
Trent Apple
Louisville, Kentucky
Barton D. Darrell
Bowling Green, Kentucky
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