Aaron Jones v. Ray Pinter D/B/A Ray Pinter Construction ( 2022 )

RENDERED: MARCH 24, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0138-DG
AARON JONES APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2020-CA-0260
JEFFERSON CIRCUIT COURT NO. 14-CI-001407
RAY PINTER D/B/A RAY PINTER APPELLEE
CONSTRUCTION
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
This personal injury action has been percolating through the Kentucky
courts since 2014. At issue at this stage in the case is whether the trial court
abused its discretion by dismissing this action with prejudice under CR1
41.02(1). We accepted discretionary review to examine further when the
extreme remedy of dismissal of a civil action with prejudice under CR 41.02(1)
is appropriate. Finding an abuse of discretion on this record, we reverse.
I. FACTS AND PROCEDURAL BACKGROUND
In 2014, Appellant Aaron Jones commenced this tort action, alleging
violations of state and federal laws relating to occupational safety. Jones
1 Kentucky Rules of Civil Procedure.
served written discovery and deposed Appellee Ray Pinter. But, in 2015, the
trial court dismissed Jones’s case without prejudice for lack of prosecution
under CR 77.02. Jones moved for reinstatement because his counsel failed to
receive the Notice to Dismiss for Lack of Prosecution. Jones also noted that,
contrary to the trial court’s notice, pretrial steps had been taken in the
preceding year between June 6, 2014, and June 6, 2015. The trial court
granted reinstatement, entered a pretrial order, and the parties engaged in
additional discovery.
In 2016, Pinter moved for summary judgment. The trial court denied
Pinter’s motion. Pinter appealed. The Court of Appeals affirmed denial of
summary judgment. This Court denied Pinter’s motion for discretionary review
in December 2018. Later, Jones disclosed expert witnesses, identified lay
witnesses, and noticed alleged damages. Pinter deposed Jones for a second
time.
The trial court entered a pretrial order directing the parties to attempt to
resolve their disputes through mediation before the pretrial conference. The
trial court did not order the parties to attend mediation at a specific date or
time. On October 1, 2019, Jones failed to appear for mediation scheduled by
the parties without notifying Pinter in advance. In response, Pinter moved to
compel mediation and for an order requiring Jones to pay a portion of the fees
related to the missed mediation. The trial court granted the motion and
required Jones to pay Pinter’s share of expenses related to the initial
2
mediation. Jones appeared for a rescheduled mediation on October 30, 2019.
Mediation failed to resolve the parties’ disputes.
Pinter filed a notice for an independent medication examination (“IME”)
under CR 35.01. The trial court did not enter an order requiring Jones to
attend the IME. The parties scheduled the IME for November 1, 2019. Jones
failed to appear without prior notice.
In response, Pinter moved for involuntary dismissal under CR 41.02(1).
Jones responded in opposition. Jones attributed his conduct to memory
impairment caused by injuries he sustained in the 2013 accident at issue in
this case. On January 29, 2020, the trial court found that dismissal with
prejudice was warranted “because by failing to appear for the mediation and
IME, Jones violated the Civil Rules and this Court’s Pre Trial Order and failed
to reasonably cooperate with Pinter’s attempt to prepare his case.”
The Court of Appeals affirmed in a split decision, with one judge
concurring in the result only and another judge dissenting without
explanation. This Court granted discretionary review.
II. STANDARD OF REVIEW
We review dismissals under CR 41.02 for abuse of discretion.2 Under
this standard of review, we will reverse the trial court’s dismissal only if it was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.3
2 Jaroszewski v. Flege, 297 S.W.3d 24, 32 (Ky. 2009).
3 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
3
III. ANALYSIS
Under CR 41.02(1), a defendant may move for dismissal of an action or
claim for three reasons.4 First, a defendant may move for dismissal based on
plaintiff’s failure to prosecute.5 Second, a defendant may move for dismissal
due to plaintiff’s failure to comply with the Kentucky Rules of Civil Procedure.6
Third, a defendant may move for dismissal for plaintiff’s failure to comply with
any order of the court.7 Consideration of a motion to dismiss under CR
41.02(1) requires fact-specific determinations that are left to the sound
discretion of the trial court.8 The trial court must base its assessment on the
totality of the circumstances.9
Still, a trial court’s discretion is not unfettered and is subject to an
important limitation. Our courts have long recognized that CR 41.02(1)
dismissal with prejudice is an “extreme remedy.”10 As a result, we must
“carefully scrutinize the trial court's exercise of discretion” when reviewing
dismissal with prejudice under CR 41.02(1).11
4 CR 41.02(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.”).
5 Id.6 Id.7 Id.8 Jaroszewski, 297 S.W.3d at 32.
9 See id. at 36.
10 Id. at 40. Cf. Manning v. Wilkinson, 264 S.W.3d 620, 624 (Ky. App. 2007);
Toler v. Rapid American, 190 S.W.3d 348, 351 (Ky. App. 2006); Polk v. Wimsatt, 689
S.W.2d 363, 364–65 (Ky. App. 1985).
11 Manning, 264 S.W.3d at 624.
4
In considering the totality of the circumstances, trial courts may consider
the factors espoused in Ward v. Housman.12 Ward provides a nonexclusive list
of factors for consideration when analyzing the totality of the circumstances
relevant to a motion to dismiss for lack of prosecution under CR 41.02.13 The
Ward 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) meritoriousness of the claim; 5) prejudice to the other party, and 6)
alternative sanctions.”14
The trial court dismissed this action both for Jones’s noncompliance with
the court’s orders and for his failure to prosecute. We consider each in turn.
A. Dismissal for Noncompliance with Court Orders
The trial court concluded that dismissal was warranted in part because
Jones violated orders of the court by failing to appear for mediation and the
IME. But, on this record, to the extent Jones violated any court orders, those
violations were insufficient to warrant the extreme remedy of dismissal with
prejudice.
First, the trial court incorrectly relied on the missed mediation as a basis
for dismissal because Jones ultimately complied with the court’s pretrial order,
which required the parties to attempt to resolve their disputes through
mediation before the pretrial conference.
12See 809 S.W.2d 717, 719 (Ky. App. 1991) (citing Scarborough v. Eubanks, 747
F.2d 871, 875–78 (3d Cir. 1984)).
13 Id.14 Id.5
The trial court’s February 3, 2016, Civil Jury Trial Order stated that
“[t]he parties shall attempt to resolve their differences through mediation prior
to the pretrial conference.” The Order did not specify a date or time for
mediation to occur. It only required that the parties instruct the court on the
outcome of mediation once completed. The pretrial conference was set for
November 6, 2019.
Even if Jones’s failure to appear at the October 1, 2019, mediation
constituted a violation of a court order or local rules,15 Jones eventually
complied with the trial court’s pretrial order by attending mediation on October
31, 2019—before the November 6, 2019, pretrial conference. As a result, any
violation of the trial court’s order or the local rules regarding mediation was
remedied by Jones’s subsequent participation in mediation before the pretrial
conference. Moreover, the court levied sanctions due to Jones’s failure to
appear at the initial mediation, including requiring Jones to pay Pinter’s share
of mediation fees.16 It was unreasonable for the court to conclude that the
15 The Rules of Practice & Procedure for the 30th Judicial Circuit, Jefferson
Circuit Court, LR 1308, provides that, except by agreement, “all counsel of record and
all parties shall attend the mediation.”
It is not clear that a violation of local rules justifies dismissal for failure to
follow a court order under CR 41.02(1). The plain language of CR 41.02(1) provides
that dismissal may be appropriate for plaintiff’s failure “to comply with these rules.” It
appears that CR 41.02(1)’s reference to “these rules” means the Kentucky Rules of
Civil Procedure. But we need not definitively resolve that issue here because Jones
complied with LR 1308 when he attended the rescheduled mediation on October 31,
2019.
16 Pinter also contends that Jones failed to comply with paragraph 19 of the
trial court’s Civil Jury Trial Order, which warned that failure of any attorney or party
to comply with the requirements outlined therein may result in unspecified sanctions
as deemed appropriate by the court. But even if Jones violated the court’s pretrial
order, the trial court sanctioned Jones for failure to attend the first mediation. As a
6
missed mediation constituted a violation of a court order that warranted
dismissal under CR 41.02(1).
Second, the trial court’s reliance on Jones’s failure to appear for an IME
as a basis for dismissal for noncompliance with court orders is misplaced
because the court never ordered Jones to appear for an IME.
On September 19, 2019, Pinter filed a Notice of CR 35 Examination17
with the trial court. The parties agreed to set the IME for November 1, 2019.
Even so, the record is devoid of any evidence that the trial court ordered Jones
to appear for an IME.
result, Pinter’s suggestion that paragraph 19 of the court’s pretrial order provides
support for dismissal under CR 41.02(1) is unpersuasive because Jones had already
been sanctioned for that misconduct.
17 CR 35.01 provides as follows:
When the mental or physical condition (including the blood
group) of a party, or of a person in the custody or under the legal
control of a party, is in controversy, the court in which the action
is pending may order the party to submit to a physical or mental
examination by a physician, dentist or appropriate health care
expert, or to produce for examination the person in his custody or
legal control. The order may be made only on motion for good
cause shown and upon notice to the person to be examined and to
all parties and shall specify the time, place, manner, conditions,
and scope of the examination and the person or persons by whom
it is to be made.
The record reflects that the CR 35.01 examination was noticed by Pinter but is
devoid of a court order compelling Jones to submit to an IME. Of course, the parties
did agree to schedule the IME for November 1, 2019. And Pinter argues that
arrangements for a CR 35.01 examination are routinely made without court
involvement. Even so, the plain text of CR 35.01 indicates that “the court . . . may
order” a party to submit to an examination. It makes no mention of the parties
arranging for an examination without court involvement. Furthermore, the rule states
that “[t]he order may be made only for good cause shown.” Here, there is no indication
that Pinter moved the court to order an examination. Even if Jones’s conduct violated
common civil practice and procedure in Kentucky courts, it is axiomatic that there can
be no violation of a court order to submit to a CR 35.01 examination where no motion
for such relief was filed and no such order was entered on the record.
7
Thus, although Jones should have attended the IME, he did not
technically violate any order of the court by failing to do so. As a result, it was
unreasonable for the trial court to conclude that Jones violated a court order
by failing to appear for the IME.
Ultimately, while we do not condone Jones’s actions in missing the initial
mediation and IME, those actions do not constitute violations of court orders
that justify the extreme remedy of dismissal with prejudice under CR
41.02(1).18
B. Dismissal for Failure to Prosecute
The trial court also concluded that dismissal was appropriate for failure
to prosecute. When reviewing dismissal for failure to prosecute, we must
balance the broad discretion given to trial courts with the extreme nature of
dismissal of a civil action with prejudice under CR 41.02(1).19 Ultimately,
considering the totality of the circumstances, Jones’s misconduct was
insufficient to justify the extreme sanction of dismissal with prejudice under
CR 41.02(1).
“[P]rosecution in this context essentially entails pursuing the case
diligently toward completion or, in other words, actually working to get the case
18 That is not to say that litigants are free to disregard pretrial obligations or
court-imposed requirements just because no express court order exists. Failure to
cooperate in pretrial discovery or comply with a court’s pretrial order may warrant
dismissal for failure to prosecute under CR 41.02(1) under the appropriate
circumstances, even if no specific court order was directly violated. Nonetheless, a
trial court cannot dismiss an action under CR 41.02(1) for failure to comply with an
order of the court where no court order exists.
19 Jaroszewski, 297 S.W.3d at 32.
8
resolved—not just keeping it on a court's docket or occasionally working on the
file without actively attempting to resolve matters in dispute.”20 Prosecuting a
case diligently to completion “involves, not only preparing one's own case, but
also reasonably cooperating with the opponent's active attempts to prepare its
case, such as responding timely to discovery requests.”21
The trial court pointed to three events as the primary bases for its
dismissal for failure to prosecute: (1) the court’s previous dismissal for failure
to prosecute under CR 77.02; (2) Jones’s failure to appear for the October 1,
2019, mediation; and (3) Jones’s failure to attend the IME. But the trial court
did not base its decision on these events standing alone. The court also
analyzed some of the factors espoused in Ward in concluding that dismissal
with prejudice was appropriate. We review the trial court’s reasoning below.
First, the record does not reflect a history of dilatoriness that supported
dismissal. On June 6, 2015, the trial court entered a Notice to Dismiss for
Lack of Prosecution. The notice stated that no pretrial steps had been taken in
the matter in the preceding year and warned that the case would be dismissed
in 30 days unless good cause was shown as to why no pretrial steps had been
taken. On July 20, 2015, the trial court found that no pretrial step had been
taken within the preceding year and dismissed the case without prejudice,
pursuant to CR 77.02.
20 Id. (internal quotations and alteration omitted).
21 Id.
9
But the court’s prior dismissal under CR 77.02 should not have been
entered. On July 29, 2015, Jones moved the court to set aside its dismissal
and reinstate the case. In support of the motion to set aside, Jones’s counsel
swore under oath that he never received a copy of the Notice to Dismiss for
Lack of Prosecution. Additionally, the record reflects that pretrial steps were
taken in the year preceding June 6, 2015. For instance, Jones responded to
Pinter’s written discovery in August 2014. Jones also propounded written
discovery in February 2015, which Pinter answered on June 23, 2015, less
than 30 days after the trial court entered its Notice of Dismissal for Lack of
Prosecution. In response, the trial court set aside its CR 77.02 dismissal and
reinstated the case.
The prior dismissal under CR 77.02 cannot be relied upon as evidence of
lack of prosecution or a dilatory history in this matter. The record indicates
that Jones failed to receive the Notice of Dismissal for Lack of Prosecution and
reflects that Jones was prosecuting the action in the year preceding June 6,
2015. As such, the prior dismissal for lack of prosecution under CR 77.02 was
entered in error and cannot provide support for the subsequent dismissal for
lack of prosecution under CR 41.02.
That leaves two events supporting the trial court’s conclusion that the
record reflects a history of dilatoriness—failure to appear for the first mediation
and failure to submit to the IME. It is undisputed that Jones failed to appear
for the first scheduled mediation and the IME without prior notice to Pinter or
10
the court. No doubt, this conduct reflects a concerning disregard for pretrial
deadlines and obligations on Jones’s part.
Still, in considering the totality of the circumstances, these two discrete
incidents of pretrial misconduct must be weighed against the substantial
pretrial steps taken by Jones to prosecute this matter and prepare for trial.
Among other actions, Jones propounded and responded to written discovery,
participated in depositions, responded to a motion for summary judgment,
litigated a two-year interlocutory appeal related to a motion for summary
judgment, and complied with pretrial disclosure obligations. And, as
previously mentioned, while Jones missed the first mediation, he participated
in mediation before the pretrial conference, just a few months before the CR
41.02(1) dismissal. Notwithstanding Jones’s failures to appear for the first
mediation and IME, the procedural history of the case demonstrates that
substantial steps were taken to complete discovery and prepare for trial.
Ultimately, it was unreasonable to conclude that there was a history of
dilatoriness on these facts. As a result, the first factor weighs heavily against
dismissal.
Of course, some of the Ward factors weigh in favor of dismissal. Take,
for instance, the extent of Jones’s personal responsibility. The trial court found
that Jones was personally responsible for missing the mediation and IME. And
we will not disturb that conclusion. While Jones presented evidence to the
contrary, the trial court reasonably concluded that Jones bore personal
responsibility for his absences.
11
The court also concluded that Pinter was prejudiced by Jones’s failure to
attend the IME because “the additional passage of time after the missed IME
[was] particularly significant given that Jones’ alleged injury occurred almost
seven years ago, thereby raising concerns of fading memories and potential
intervening causes of alleged physical issues.” Of course, passage of time can
result in spoliation of evidence, especially where, as here, an injury or event
occurred several years in the past. Still, this factor weighs against dismissal
because Jones is not primarily responsible for the bulk of the passage of time
in this case. Again, an interlocutory appeal of the trial court’s summary
judgment denial resulted in an approximate two-year stay in this litigation.
Comparatively, Jones’s pretrial misconduct delayed this case for a few months
prior to the trial court’s dismissal.
Lastly, the court also considered imposing less-severe sanctions. The
trial court concluded that less-severe sanctions were unwarranted because
less-severe sanctions had already been imposed due to Jones’s failure to attend
the first mediation.22 As a result, the trial court fairly concluded that this
factor weighed in favor of dismissal.
22 The trial court also found that less-severe sanctions were unwarranted, in
part, because “Pinter contend[ed] Jones [was] unlikely to reimburse the mediation and
IME fees incurred by Pinter when Jones failed to appear and Jones offer[ed] no
argument to the contrary.” The parties dispute whether Jones paid the mediation fee
as required by the trial court’s order. In his brief to this Court, Jones contends that
he complied completely with the trial court’s order imposing sanctions for missing the
initial mediation. Pinter argues that the mediation fees were not paid. As the Court of
Appeals noted, the record is inconclusive on whether Jones paid Pinter’s portion of the
mediation fees for the missed mediation. As such, since the record is inconclusive on
this point, we decline to consider this evidence as part of our analysis of the totality of
the circumstances.
12
Even so, we must consider the totality of the circumstances when
reviewing a dismissal under CR 41.02(1).23 The Ward factors provide helpful
guidelines in reviewing the totality of the circumstances but are neither
dispositive nor required to be applied formulaically.24
The trial court’s dismissal fails to account for the extreme nature of a
dismissal with prejudice under CR 41.02(1). Here, the two discrete incidents of
pretrial misconduct—missing the first mediation and failing to appear for the
IME—do not constitute failure to prosecute where one of the incidents of
misconduct was subsequently cured and the totality of the circumstances
reflect substantial steps toward completion of discovery and preparation for
trial on the plaintiff’s part. Both this Court and the Court of Appeals have
upheld dismissals for failure to prosecute for repeated pretrial misconduct or
after long delays in litigation.25 Of course, the length of delay is not dispositive.
Under appropriate circumstances, dismissal under CR 41.02(1) may be
warranted based on failure to prosecute resulting from egregious pretrial
misconduct or numerous delays over a short period. But here, the record
reflects two discrete incidents of pretrial misconduct occurring close in time to
one another and delaying the litigation by a period of months, not years.
23 Jaroszewski, 297 S.W.3d at 34–36.
24 See id.
25 See id. at 30 (upholding dismissal for failure to prosecute where trial court
found a lack of sufficient effort to prosecute the case for four years without reasonable
explanation); see also Nolan v. Neeley-Thoms, 290 S.W.3d 89, 90, 92–93 (Ky. App.
2009) (upholding dismissal under CR 41.02 based on numerous delays over a 2.5-year
period).
13
Without more, the trial court’s holding that dismissal with prejudice was
warranted for want of prosecution was unreasonable and unsupported by
sound legal principles.
In sum, our decision is not an endorsement for excusing lackadaisical
pretrial cooperation or preparation. Parties who cavalierly disregard deadlines
or their obligation of good faith participation in the pretrial process do so at
their own peril. In the present case, although the record before this Court does
not support affirmance of the extreme sanction of dismissal with prejudice,
further misconduct or dilatory action by Jones may merit the imposition of
severe sanctions, including dismissal with prejudice.
IV. CONCLUSION
After carefully scrutinizing the record, we find that the trial court abused
its discretion by dismissing this action with prejudice under CR 41.02(1). As a
result, we reverse the Court of Appeals’ decision and remand to the Jefferson
Circuit Court for further proceedings consistent with this opinion. On remand,
we express no opinion on the imposition of less-severe sanctions for Jones’s
failure to appear for the IME.
All sitting. All concur.
14
COUNSEL FOR APPELLANT:
Patrick S. McElhone
COUNSEL FOR APPELLEE:
Valerie W. Herbert
Jennifer A. Peterson
Travis Herbert & Stempien, PLLC
15