CRAYTON (DAVID L.) VS. OWEN (MICKEY D.) THOMPSON (PRESIDING JUDGE) DIXON (CONCURS) AND LAMBERT (CONCURS)Annotate this Case
RENDERED: NOVEMBER 21, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
DAVID L. CRAYTON
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 03-CI-00112
MICKEY D. OWEN
VACATING AND REMANDING
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BEFORE: DIXON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR
THOMPSON, JUDGE: On January 29, 2003, David L. Crayton filed a personal
injury action against Mickey D. Owen alleging that he sustained personal injury in
an automobile accident caused by Owen’s negligence. After Owen unsuccessfully
sought to compel Crayton to respond to his discovery requests, pursuant to CR
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
56.02, he moved for summary judgment on the basis that there was no material
issue of fact and, therefore, he was entitled to judgment as a matter of law. After
time elapsed for Crayton to respond to the motion and without a written response
filed, a hearing was held after which the trial court granted Owen’s motion and
dismissed the complaint with prejudice.
The stark record reveals that throughout the thirty-three months this
case remained pending, Crayton consistently failed to respond to discovery
requests by Owen and to comply with the orders of the McCracken Circuit Court.
In its order, the circuit court specifically cited Crayton’s conduct and concluded
that summary judgment was appropriate. It recited the following:
1. On April 15, 2003, written discovery was propounded
to the Plaintiff;
2. On May 12, 2004, Defendant filed the first of two
Motions to Compel after attempts to obtain Plaintiff’s
responses through other avenues proved unsuccessful.
This motion was withdrawn on June 23, 2004, at
Plaintiff's behest and he agreed to provide responses to
written discovery shortly. Answers were not provided.
3. On November 22, 2005, Defendant filed a second
Motion to Compel, and an Order was entered by the
Court compelling Plaintiff to respond to written
discovery within thirty (30) days. This Order was not
4. Defendant’s Motion for Summary Judgment was filed
on July 19, 2006, and Plaintiff did not file a response to
Therefore, it is ordered that the Defendant’s Motion for
Summary Judgment is hereby granted and this case is
dismissed with prejudice.
We are aware of the heavy dockets under which our circuit courts
labor and the time and funds expended on cases that unnecessarily linger within the
judicial system. Nevertheless, our Supreme Court has strongly cautioned the
courts and counsel against using summary judgment as an equivalent to a motion
filed pursuant to CR 41.02.
In the seminal case, Ward v. Housman, 809 S.W.2d 717 (Ky.App.
1991), the Court addressed a summary judgment premised upon the plaintiff’s
failure to comply with discovery. It pointed out that under the accepted summary
judgment standard, the movant can prevail only if, as a matter law, it appears that it
would be impossible for the respondent to prevail at trial. It emphasized that
summary judgment is not a substitute for trial nor is it the functional equivalent of
a directed verdict. Id. at 719. With candor, the Court cautioned that “CR 56,
Summary Judgments, is not to be used as a sanctioning tool of the trial courts.” Id.
In contrast, CR 41.02(1) provides that a defendant may move for
dismissal of an action against him “for failure of the plaintiff to prosecute or to
comply with these rules or any order of the court . . . .” Because of the deprivation
of the litigant’s trial and the finality of its action, involuntary dismissal is an
extreme tool to be invoked only after the trial courts have considered the following
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
4) meritoriousness of the claim;
5) prejudice to the other party, and
6) alternative sanctions.
Ward, 809 S.W.2d at 719 (Ky.App. 1991).
As can be discerned from the court’s discussion in Ward, a motion
pursuant to CR 56 and that made pursuant to CR 41.02 are subject to substantively
distinguishable legal standards. Following the Ward decision, this Court stressed
that the distinctions between the rules are not merely technical and, if the dismissal
is imposed as a sanction for the failure to comply with discovery rules or an order
of the court, the trial court is required to consider the factors set forth in Ward and
set forth its relevant findings. Toler v. Rapid American, 190 S.W.3d 348, 351-352
(Ky.App. 2006). We reiterate the conclusion reached in Toler:
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.
We are compelled to vacate the McCracken Circuit Court’s judgment
and remand this case for further proceedings. However, our decision should not be
interpreted so as to suggest that a certain result be reached by the circuit court but
only to state that it is incumbent upon the circuit court to apply the standard
applicable to the exercise of its discretionary powers pursuant to CR 41.02.
Based on the foregoing, the order of the McCracken Circuit Court is
vacated and the case remanded for further proceedings consistent with this opinion.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James V. Kerley
Todd A. Farmer