HILL (STANLEY) VS. FALLAHZADEH, M.D. (HOSSEIN), ET AL.Annotate this Case
RENDERED: AUGUST 22, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE JEFFREY BURDETTE, JUDGE
ACTION NO. 03-CI-01291
HOSSEIN FALLAHZADEH, M.D.;
SARA J. LONGMIRE-COOK, M.D.;
CUMBERLAND SURGICAL ASSOCIATES;
AND LAKE CUMBERLAND REGIONAL
VACATING AND REMANDING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND STUMBO, JUDGES.
LAMBERT, JUDGE: Stanley Hill appeals from an order of the Pulaski Circuit
Court dismissing his complaint with prejudice for failure to secure counsel in
compliance with the court’s order. After careful review of the record, we vacate
On December 19, 2002, Stanley Hill underwent a laparoscopic
cholecystectomy, performed by Dr. Hossein Fallahzadeh at Lake Cumberland
Regional Hospital in Somerset, Kentucky. A subsequent surgery was performed
by Dr. Sara J. Longmire-Cook on December 20, 2002. Complications arose from
both surgeries, and a medical malpractice complaint was filed in Pulaski Circuit
Court against both doctors and the hospital on December 29, 2003.
Hill’s complaint alleged a deviation from the applicable standards of
medical care, but no indication or evidence of these standards was initially
provided. On January 3, 2006, Dr. Longmire-Cook filed a motion for summary
judgment. Dr. Fallahzadeh joined the motion on January 9, 2006. Both motions
argued that Hill was required to identify an expert who would identify the standard
of care, note a violation of such standard, and testify that such violation caused
injury to plaintiff Hill. Hill responded on January 19, 2006, and named a North
Carolina doctor as the expert intended to be called at trial.
The Pulaski Circuit Court denied the defendants’ motion for summary
judgment on February 3, 2006, and entered a scheduling order on March 14, 2006.
Under the order, Hill was required to furnish full CR 26 expert witness disclosures
to the defendants by July 1, 2006.
On June 19, 2006, Hill’s attorney, Sandra Spurgeon, filed a motion to
withdraw as counsel. The Pulaski Circuit Court reviewed and sustained the motion
on July 7, 2006, and entered an order indicating that Hill had thirty days to obtain
On August 4, 2006, Hill filed a motion for additional time in which to
find counsel. The motion was heard on August 18, 2006, at which time Hill was
granted an additional ten days to secure new counsel. The order stated that if new
counsel did not appear for Hill by August 28, 2006, the case would be dismissed
Entry was attempted by New York attorney Mark Kressner, who filed
a motion to practice pro hac vice on August 28, 2006. However, Kressner’s entry
did not comply with Kentucky rules, and defendants Fallahzadeh and LongmireCook objected to Kressner’s motion and moved the court to dismiss the action in
accordance with its August 18, 2006, order. Kressner’s motion was heard on
September 15, 2006, and an order was issued on December 21, 2006, ruling
Kressner’s motion defective. For failure to obtain counsel by August 28, 2006,
Judge Burdette dismissed Hill’s action with prejudice. This appeal followed.
The circuit court dismissed the action on the basis that the plaintiff
had failed to comply with the circuit court’s August 18, 2006, order to secure new
counsel. Based upon this reasoning, we construe the dismissal of the complaint as
an involuntary dismissal pursuant to Kentucky CR 41.02. The rule reads in part:
(1) 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.
Application of CR 41.02 is a matter within the discretion of the trial
court. Thompson v. Kentucky Power Co., 551 S.W.2d 815, 816 (Ky.App. 1977).
Accordingly, we will reverse the circuit court’s decision only if the dismissal of
Hill’s claims constitutes an abuse of discretion under CR 41.02. For a circuit court
to have abused its discretion, the circuit judge’s decision must have been
“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Because an involuntary dismissal with prejudice constitutes a failure
to adjudicate on the merits, it “should be resorted to only in the most extreme
cases.” Polk v. Wimsatt, 689 S.W.2d 363, 364-65 (Ky.App. 1985). Consequently,
“(i)n 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.” Ward v. Housman, 809 S.W.2d 717, 719 (Ky.App. 1991).
In Ward, a medical malpractice case, this Court adopted the guidelines
set forth in Scarborough v. Eubanks, 747 F.2d 871 (3rd Cir. 1984), to determine
whether a case should be dismissed under CR 41.02 for dilatory conduct of
counsel. The Ward guidelines are as follows: “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. Kentucky law is
clear, however, that any involuntary dismissal under CR 41.02 requires the trial
court to consider the Ward factors.
Specifically, in Tolar v. Rapid American, 190 S.W.3d 348, 351
(Ky.App. 2006), this Court reversed the circuit court’s dismissal and remanded the
case for the trial court to consider the Ward factors stating: “[t]he responsibility to
make such findings as are set forth in Ward before dismissing a case with prejudice
falls solely upon the trial court.” There is no indication in the record that the trial
court in the instant case properly considered the Ward factors. Accordingly, in
light of our holding in Tolar, we vacate and remand the judgment of the court
below and instruct the court to consider the Ward factors and to articulate such
consideration in its order.
BRIEF FOR APPELLANT:
Parkers Lake, Kentucky
BRIEF FOR APPELLEES HOSSEIN
John G. Prather
BRIEF FOR APPELLEE SARA J.
Joe L. Travis