Opinion
NO. 2018-CA-001182-MR
02-21-2020
TERRY MEADE APPELLANT v. KENTUCKYONE HEALTH, INC; SAINT JOSEPH HEALTH SYSTEMS, INC.; PULMONARY MEDICINE; DONNA HARVEY; AND WORAWUTE SUPAONGPRAPA, M.D. APPELLEES
BRIEF FOR APPELLANT: Mitchell D. Kinner Paintsville, Kentucky BRIEF FOR APPELLEES: Sarah Clark Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 16-CI-90155 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Terry Meade appeals from an order of the Montgomery Circuit Court dismissing his medical malpractice action against KentuckyOne Health, Inc., Saint Joseph Health Systems, Inc., Pulmonary Medicine, Donna Harvey, and Worawute Supaongprapa, M.D. pursuant to Kentucky Rules of Civil Procedure (CR) 41.02. Because the trial court did not make any findings of fact from which this Court can determine whether the trial court abused its discretion, we are compelled to reverse and remand.
Meade filed this action on October 4, 2016. The appellees filed a timely answer to the complaint and, on November 21, 2016, propounded upon Meade requests for admissions along with interrogatories and requests for production of documents. Although Meade timely tendered responses to the request for admissions, he did not answer the discovery requests until January 26, 2017, after appellees filed a motion to compel. The motion to compel was withdrawn prior to the hearing date.
In his discovery responses, Meade identified Dr. Brian Samuels as his expert. Beginning in March 2017, appellees made several requests by telephone, email, and letter to depose Dr. Samuels pursuant to CR 26.02(4)(a)(ii). After appellees did not receive any response from Meade, on June 19, 2017, they filed a motion to compel the deposition of Dr. Samuels. Prior to the scheduled hearing date, Meade provided dates Dr. Samuels was available and the motion to compel was withdrawn.
Dr. Samuels's deposition was later scheduled for November 3, 2017. However, because of a scheduling conflict, the appellees cancelled the deposition.
On March 7, 2018, appellees filed a third motion to compel alleging numerous attempts had been made from December 2017 through March 2018 to obtain dates when Dr. Samuels was available for his deposition. A hearing was held on March 23, 2018, which Meade did not attend. The trial court granted appellees' motion to compel and entered an order on March 26, 2018 compelling Meade to provide dates for Dr. Samuels's deposition by May 22, 2018. Meade did not provide appellees with deposition dates before May 22, 2018 as required by the order.
As of June 2018, beyond filing the complaint, Meade had not taken any steps to advance the matter. He did not propound interrogatories upon any of the appellees or request production of documents, and had not requested to take the appellees' depositions or that of any potential witness.
On June 11, 2018, appellees filed a motion to dismiss pursuant to CR 41.02 on the bases of Meade's lack of prosecution, continued dilatory tactics, as well as non-compliance with the court's order entered on March 26, 2018. Pursuant to the Local Rules of the 21st Judicial Circuit, R21C-705, Meade had twenty days to file a response to the motion to dismiss. On July 9, 2018, without a response having been filed by Meade, the trial court entered an order dismissing the case with prejudice pursuant to CR 41.02. The trial court's two-paragraph order stated:
This matter having come before the Court on the Defendants, KentuckyOne Health, Inc., Saint Joseph Health Systems, Inc; erroneously identified as Saint Joseph Mount Sterling Pulmonary Medicine, Donna Harvey, and Worawute Supaongprapa, M.D. (the Defendants"), Motion to Dismiss, the Court having heard argument, and being otherwise sufficiently advised,After the entry of the order dismissing the case, the appellees received Meade's response to the motion to dismiss. Likewise, despite the service date of July 2, 2018 on the notice, the response was not filed with the circuit court until July 31, 2018.
IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED. The Plaintiff's Complaint against the Defendants is hereby dismissed with prejudice pursuant to CR 41.02. There being no just cause for delay, this Order is final and appealable.
Although the motion to dismiss requested a hearing at the convenience of the trial court and the order states argument was heard, there is nothing in the record that indicates a hearing was held.
Meade attached to his response email correspondence to appellees regarding the scheduling of Dr. Samuels's deposition. Those emails included an October 30, 2017 email, composed after the November deposition was cancelled, wherein Meade's counsel notified appellees of Dr. Samuels's availability to be deposed on eight dates in December 2017. Meade alleged appellees did not respond. On March 14, 2018, after the appellees' third motion to compel and before the trial court's March 26, 2018 order requiring dates to be provided for Dr. Samuels's deposition by May 22, 2018, Meade's counsel sent an email to appellees notifying them that Dr. Samuels would be out of the country and not returning until May 2, 2018. Meade requested that appellees provide any dates for the deposition in the month of May to be provided to Dr. Samuels. Meade alleged appellees did not respond. He also submitted a June 21, 2018 email advising appellees that Dr. Samuels required "$500 down" because the last deposition was cancelled and a June 26, 2018 email providing three deposition dates in late June, eight days in July, and thirteen days in August. Because Meade's response was not filed until after the entry of the order of dismissal, it was not and could not have been considered by the trial court.
Following the entry of the trial court's order, Meade did not file a motion for more specific findings pursuant to CR 52.02. He filed this appeal on August 2, 2018.
A dismissal with prejudice is the civil death penalty in that it forever preludes a party from litigating the cause of action. "[B]ecause it is a final termination of the litigation, it should be resorted to only in the 'most extreme cases' and, when resorted to by the trial court, should be carefully scrutinized by an appellate court." Stapleton v. Shower, 251 S.W.3d 341, 343 (Ky.App. 2008) (quoting Polk v. Wimsatt, 689 S.W.2d 363, 364-65 (Ky.App. 1985)). As reiterated in Toler v. Rapid American, 190 S.W.3d 348, 351 (Ky.App. 2006):
The rule permitting a court to involuntarily dismiss an action "envisions a consciousness and intentional failure to comply with the provisions thereof." Baltimore & Ohio Railroad Co. v. Carrier, 426 S.W.2d 938, 940 (Ky. 1968). Since the result is harsh, "the propriety of the invocation of the Rule must be examined in regard to the conduct of the party against whom it is invoked." Id. at 941. Moreover, it is incumbent on the trial court to consider each case "in light of the particular circumstances involved; length of time alone is not the test of diligence." Gill v. Gill, 455 S.W.2d 545, 546 (Ky. 1970). In addition, the court should determine whether less drastic measures would remedy the situation, especially where there is no prejudice to the party requesting dismissal. See Polk, 689 S.W.2d at 364-65.
Although we review a trial court's decision to dismiss with prejudice under the abuse of discretion standard, the trial court cannot exercise that discretion without considering the factors set forth in Ward v. Housman, 809 S.W.2d 717 (Ky.App. 1991). Toler, 190 S.W.3d at 351. Those factors include: "(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) the meritoriousness of the claim; (5) prejudice to the other party; and (6) the availability of alternative sanctions." Id. "These same factors are equally relevant when dismissal is imposed as a sanction for failure to comply with discovery requests" or for lack of prosecution. Stapleton, 251 S.W.3d at 343.
Because dismissal with prejudice is the death penalty in a civil action, the application of the Ward factors is mandatory and 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. See Gill, 455 S. W.2d at 546.Id. at 351-52. Where the trial court failed to make the required findings, this Court must hold that the trial court "failed to properly exercise its discretion by failing to make the required findings." Wildcat Prop. Mgmt., LLC v. Reuss, 302 S.W.3d 89, 93 (Ky.App. 2009). This is true even in the absence of a motion for more specific findings under CR 52.02. See Huff v. Kepley, No. 2006-CA-002042-MR, 2008 WL 4530719 (Ky.App. Oct. 10, 2008) (unpublished)
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.
We cite this unpublished case pursuant to CR 76.28(4)(c). --------
The record does not reveal whether the trial court considered the Ward factors and the order dismissing does not set out the basis for the dismissal. It is not clear whether the dismissal was based on Meade's failure to move the case forward, noncompliance with the trial court's discovery orders, his failure to respond to the motion to dismiss, or a combination of various factors. We express no opinion as to whether dismissal with prejudice will ultimately be merited. However, we conclude that the resolution of the CR 41.02 motion must be done by application of the Ward factors.
For the reasons stated, the order of the Montgomery Circuit Court is reversed, and the case remanded for proceedings consistent with this opinion.
CLAYTON, CHIEF JUDGE, CONCURS.
MAZE, JUDGE, CONCURS AND FILES SEPARATE OPINION.
MAZE, JUDGE, CONCURRING: I reluctantly concur in the majority opinion because I agree that the result is compelled by controlling precedent. In discussing dismissals with prejudice under CR 41.02, our Supreme Court has emphasized:
Trial courts must make explicit findings on the record so that the parties and appellate courts will be
properly apprised of the basis for the trial court's rulings; and the appellate courts can assess whether the trial court properly considered the totality of the circumstances in dismissing the case.Jaroszewski v. Flege, 297 S.W.3d 24, 36 (Ky. 2009).
While a court is not required to fully discuss all of the Ward v. Housman factors, "[e]ach case must be considered in the light of the particular circumstances involved and length of time is not alone the test of diligence." Id. at 35 (quoting Gill v. Gill, 455 S.W.2d 545, 546 (Ky. 1970)). As the majority notes, the trial court did not make findings on the record regarding any of the relevant factors. The facts of this case suggest a pattern of dilatory conduct on the part of the Appellant which may support such an extreme penalty. However, that evidence was not overwhelming, and we cannot properly evaluate the trial court's discretionary ruling without more explicit findings. Therefore, I concur in the majority's reasoning and result. BRIEF FOR APPELLANT: Mitchell D. Kinner
Paintsville, Kentucky BRIEF FOR APPELLEES: Sarah Clark
Lexington, Kentucky