Opinion
NO. 2013-CA-001413-MR
01-29-2016
MARSHA ABNEY APPELLANT v. PRIME FINISH, LLC APPELLEE
BRIEF FOR APPELLANT: David O. Welch Ashland, Kentucky BRIEF FOR APPELLEE: Albert F. Grasch, Jr. Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JOHN COX, SPECIAL JUDGE
ACTION NO. 01-CI-00162 OPINION
AFFIRMING BEFORE: DIXON; D. LAMBERT; AND THOMPSON, JUDGES. D. LAMBERT, JUDGE: This matter is before this Court on appeal from an order entered by the Greenup Circuit Court dismissing the action filed by the Appellant, Marsha Abney (hereinafter, "Abney") against her former employer and Appellee, Prime Finish, LLC (hereinafter, "Prime Finish"). Following twelve years of sporadic litigation, the trial court entered an order dismissing the action on March 22, 2013, and on June 24, 2013, denied a motion pursuant to CR 59.05 to alter, amend, or vacate the same order. The issue presented in this appeal is whether the trial court acted appropriately when it dismissed Abney's claims with prejudice, and again when it denied the motion to vacate that order. Finding no error, we affirm.
Factual and Procedural History
Abney was employed by Prime Finish from April 1, 1999, until her termination on March 31, 2000. Abney alleged that she was fired without cause, and thus her termination was wrongful, a breach of contract, followed a pattern of behavior amounting to age and gender discrimination, as well as violations of KRS 344 et seq. (more commonly known as the Kentucky Civil Rights Act). She also asserted claims for damages for physical and emotional distress resulting from Prime Finish's alleged actions. She initiated the civil action in the Greenup Circuit Court on March 30, 2001.
Prime Finish vigorously defended this action from the beginning, first filing a motion to dismiss in lieu of an answer, alleging improper venue, and later amending the motion to include an allegation of forum non conveniens. The trial court denied the motion, and Prime Finish filed a formal answer and another motion to dismiss the breach of contract claims on the merits. The trial court also denied the second motion to dismiss. Though not reflected in the record, it is undisputed that Prime Finish served Abney with a set of discovery requests on July 22, 2002.
The record is devoid of any pleadings in the period spanning the entry date of the trial court's order denying Prime Finish's motion to dismiss (May 22, 2002) and the trial court's first Notice to Dismiss for Lack of Prosecution, issued on April 11, 2005. After receiving a written response to the notice from Abney and holding a show cause hearing, the trial court allowed the action to remain on the active docket.
The next item in the record is the trial court's second Notice to Dismiss for Lack of Prosecution, which was issued on June 30, 2006. Abney filed a written response requesting the trial court not dismiss the action on August 28, 2006. Following another show cause hearing, the trial court again permitted the case to remain on the active docket, but directed Abney to respond to Prime Finish's outstanding discovery requests within sixty days of August 30, 2006.
The trial court issued its third Notice to Dismiss for Lack of Prosecution to Abney on March 31, 2008. On May 2, 2008, Abney filed a written response to the notice, stating her intention to comply with the trial court's prior discovery order, and that the parties had been confronted with difficulty regarding Abney's attempt to schedule a deposition of Prime Finish's chief operating officer. The trial court again permitted the action to remain on the active docket, reflected in an order entered on May 8, 2008.
Just days shy of the deadline for yet another Notice to Dismiss, on April 30, 2009, Abney filed a motion for entry of a pretrial order. The trial court sustained the motion, and the first of the directives in the scheduling order is an order that all discovery be completed no later than September 20, 2009. Prime Finish moved for a modification of that scheduling order. The trial court granted the motion in an order entered on July 7, 2009, moving the deadline for Abney to provide "full and complete answers" to Prime Finish's interrogatories and requests for production of documents to thirty days after its entry.
Having still received no responses to its discovery requests, Prime Finish moved for sanctions against Abney pursuant to CR 37.02(2) on February 26, 2010. The trial court issued an order on March 19, 2010, directing Abney to provide full and complete answers to Prime Finish's discovery requests by April 26, 2010, or the complaint would be dismissed pursuant to CR 37.02(2)(c).
The trial court issued its fourth Notice to Dismiss for Lack of Prosecution on October 11, 2011. Abney responded on November 8, 2011, arguing that the discovery responses were served on Prime Finish on April 26, 2010, and served on the trial court on April 27, 2010. Prime Finish did not dispute the receipt of the discovery responses, but did dispute their fullness and completeness. Also filed by Abney on November 8, 2011, was a notice to take the deposition of Prime Finish's COO; said deposition was promptly canceled days after the entry of the order retaining the matter on the docket.
Abney then filed a motion to set the matter for trial on December 1, 2011. Prime Finish filed a response and motion to dismiss on November 30, 2011. The motions were taken under advisement following a hearing on December 8, 2011. Prime Finish's counsel was subsequently permitted to withdraw and new counsel entered an appearance. Abney filed a motion for status conference on August 8, 2012. The matter was assigned to a special judge, who directed the parties to file a status report on the case.
The special judge, having reviewed the parties' status reports and after specifically directing the parties to request further hearing if desired (noting that it had received a response from Prime Finish declining further hearing, but received nothing from Abney), took the matter under submission for ruling on the record. The special judge issued an order on March 22, 2013, granting Prime Finish's motion to dismiss from November 30, 2011. By the terms of the order, the dismissal was with prejudice. This order also denied all other pending motions by Abney. Abney then filed a motion pursuant to CR 59.05 to alter, amend, or vacate, on April 2, 2013, which the special judge also denied. This appeal followed.
Analysis
I. Standard of Review
The trial court's order does not specify which civil rule on which it was relying when ordering the dismissal of Abney's claims. In the circumstances, the trial court could have dismissed the case pursuant to any of Civil Rules 77.02, 37.02, 41.02, or some combination thereof. Regardless of the rule employed in ordering the dismissal, this Court's standard of review is the same: we review to determine whether the trial court abused its discretion. See Toler v. Rapid American, 190 S.W.3d 348, 351 (Ky.App. 2006); Manning v. Wilkinson, 264 S.W.3d 620, 625 (Ky.App. 2007); Bridewell v. City of Dayton, ex rel. Urban Renewal and Cmty. Dev. Agency of the City of Dayton, 763 S.W.2d 151 (Ky.App. 1988); R.T. Vanderbilt Co. v. Franklin, 290 S.W.3d 654, 663 (Ky.App. 2009). The same standard of review also applies to motions to alter, amend, or vacate, pursuant to CR 59.05. Batts v. Ill. Cent. R.R., 217 S.W.3d 881 (Ky.App. 2007). The reviewing court is to examine the underlying judgment. Id.
II. The Trial Court Did Not Abuse Its Discretion by Dismissing Abney's Complaint with Prejudice
Whether the trial court has the discretion to dismiss an action with prejudice depends on the rule on which the court is basing its ruling. The parties agree that a dismissal pursuant solely to CR 77.02 must necessarily be without prejudice. Civil Rule 77.02 has been referred by this Court as the "Housekeeping Rule," as it allows a trial court to remove inactive cases from its docket sua sponte. Manning v. Wilkinson, at 623. "Notably, however, the rule provides that cases shall be dismissed 'without prejudice.'" Id. This rule stands in stark contrast to rules 37.02 and 41.02, which enable a trial court to dismiss an action following a motion by an aggrieved party. In instances invoking CR 37, the dismissal serves as a sanction for failure to abide by the rules of discovery. In instances invoking, CR 41, the dismissal serves as a sanction for a failure to prosecute, or to abide by an order of the court. "Unlike CR 77.02, a dismissal under 41.02 is with prejudice as it 'operates as adjudication on the merits.'" Id., at 624, quoting CR 41.02(3). When determining whether a dismissal is appropriate as a sanction imposed by a trial court, reviewing courts must look to the factors set forth in Ward v. Housman, 809 S.W.2d 717 (Ky.App. 1991). Those factors are: "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; 6) the availability of alternative sanctions." Ward, at 719.
However, the Ward factors are not the end of the analysis. The Supreme Court expanded the analysis to include the totality of the circumstances in Jaroszewski v. Flege, 297 S.W.3d 24 (Ky. 2009). Further, "[e]xplicit consideration of each individual factor listed in Ward is not required, although we encourage trial courts to address any factors listed in Ward which are relevant for consideration in that particular case." Id., at 36.
Though the analysis was applied to an alleged CR 41.02 violation in Jaroszewski, it applies equally to situations ". . . when dismissal is imposed as a sanction for failure to comply with discovery requests" as contemplated in CR 37. Stapleton v. Shower, 251 S.W.3 341, 343 (Ky.App. 2008).
Though the order did not specify which procedural rule it was applying, Prime Finish had moved to dismiss pursuant to CR 37.02. As noted in Stapleton, the distinction between a dismissal pursuant to CR 37 and a dismissal pursuant to CR 41 is immaterial for the purpose of our analysis.
The record is more than sufficient to support the trial judge's conclusions, as well as the dismissal with prejudice. The record clearly indicated a history of dilatoriness: Prime Finish had endeavored to obtain responses from Abney for one set of interrogatories and one set of requests for production of documents for a period of eight years, through four separate CR 77 Notices to Dismiss, and two orders compelling said responses. The trial court further noted the prejudice suffered by Prime Finish, specifically that it has the right to full and complete responses to its discovery requests, and that Abney's delay in providing them was "inexcusable."
The trial court also provided sufficient reasoning to conclude Abney had violated the March 19, 2010, order by providing less than full and complete responses, despite the unambiguous terms of the order. It colorfully described the responses from Abney as "incomplete even to a layman." This Court's review of the responses reveals the same. Particularly exemplary is Abney's response to Interrogatory No. 12, which asked for names and addresses of mental health professionals who had treated Abney in the preceding five years, including dates and details about treatment. Abney's response was to refer to the response to Interrogatory No. 11 (which requested a list of medical treatments without dates), and to state that the details of such treatment are "probably available in medical records" which were not provided, nor does the record contain any evidence of a release of said records signed by Abney.
This Court concludes that the trial court did not act outside its discretion in dismissing Abney's complaint with prejudice as a sanction for her non-compliance with both CR 37.02 and CR 41.02.
III. The Trial Court Did Not Abuse Its Discretion by
Denying Abney's Motion to Alter, Amend, or Vacate, Pursuant to CR 59.05
In light of this Court's conclusion that the trial court acted within its discretion in rendering the underlying judgment, any further analysis by this Court of the legal soundness of the ruling on the CR 59.05 motion is obviated under Batts.
IV. The Trial Court Did Not Abuse Its Discretion by Dismissing All Other Pending Motions
The trial court's order dismissing Abney's complaint, and all causes of action asserted therein, was a final judgment under the definition provided in CR 54.01. It was a ruling on the merits, which adjudicated all of the rights of all the parties. With the trial court having concluded that the matter could no longer proceed, all other pending motions were rendered moot. Frank v. Estate of Enderle, 253 S.W.2d 570, 574 (Ky.App. 2008). Appellate courts are not required to decide moot issues, and, as this Court has previously noted, lack jurisdiction to do so. Young v. U.S. Bank, Inc., 343 S.W.3d 618, 622 (Ky.App. 2011) (quoting Louisville Transit Co. v. Dept. of Motor Transp., 286 S.W.2d 536, 538 Ky. 1956)).
V. Conclusion
Having reviewed the trial court's rulings and having concluded they contain no reversible error, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: David O. Welch
Ashland, Kentucky BRIEF FOR APPELLEE: Albert F. Grasch, Jr.
Lexington, Kentucky