Kimberly Adkisson v. Adp Properties, LLC ( 2023 )

RENDERED: MAY 5, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0198-MR
KIMBERLY ADKISSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANNIE O’CONNELL, JUDGE
ACTION NO. 19-CI-005404
ADP PROPERTIES, LLC APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: CETRULO, JONES, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Kimberly Adkisson (“Adkisson”) appeals from the Jefferson
Circuit Court’s order dismissing her case for failure to prosecute. Because the trial
court failed to make any findings of fact from which this Court can determine
whether it abused its discretion, we reverse and remand.
On September 3, 2019, Adkisson filed this action against ADP
Properties, LLC (“ADP”) in Jefferson Circuit Court alleging damages due to mold
exposure in the property she rented from ADP. A month later, ADP filed an
answer and propounded discovery requests which Adkisson responded to on
February 6, 2020, following an order to compel. Four months passed and ADP
filed another motion to compel, this time for Adkisson’s deposition, and when
Adkisson did not provide deposition dates, ADP filed a motion to dismiss for lack
of prosecution on August 19, 2020. Adkisson provided the dates, and the motion
was withdrawn.
ADP filed more discovery requests on December 30, 2020, and
moved to compel Adkisson’s response a little over a month later. This motion was
withdrawn on March 1, 2021, when Adkisson answered the discovery requests.
On August 17, 2021, ADP filed a renewed motion to dismiss for lack of
prosecution due to Adkisson’s failure to file “any discovery requests or pleadings”
or “prosecute her case for nearly two (2) years.” For whatever reason, Adkisson
failed to respond to the motion to dismiss and the trial court granted the motion by
signing a tendered order which read in its entirety:
On Motion of Defendant’s Motion to Dismiss for Lack of
Prosecution, and the Court being sufficient advised,
IT IS HEREBY ORDERED AND ADJUDGED that
1) Defendant, ADP Properties, LLC’s, Motion to Dismiss be
GRANTED.
2) The matter be DISMISSED with prejudice.
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Adkisson filed a motion to alter, amend, or vacate the order of
dismissal, arguing the trial court failed to make findings justifying its decision as
required by Jaroszewski v. Flege, 297 S.W.3d 24 (Ky. 2009), and Stapleton v.
Shower, 251 S.W.3d 341 (Ky. App. 2008). The court denied the motion and this
appeal followed.
Under CR1 41.02, a defendant may move for dismissal of an action for
three reasons: (1) plaintiff’s failure to prosecute; (2) plaintiff’s failure to comply
with Kentucky Rules of Civil Procedure; and (3) plaintiff’s failure to comply with
any order of the court. See Jones v. Pinter, 642 S.W.3d 698, 701 (Ky. 2022).
“[T]he trial court must base its decision to dismiss under CR 41.02 upon the
totality of the circumstances[.]” Jaroszewski, 297 S.W.3d at 36.
In considering the totality of the circumstances, trial courts may
consider “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 v. Housman, 809 S.W.2d 717, 719 (Ky. App. 1991) (citation
omitted). Because CR 41.02 dismissal with prejudice is an extreme remedy, “we
must carefully scrutinize the trial court’s exercise of discretion when reviewing
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Kentucky Rules of Civil Procedure.
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dismissal with prejudice under CR 41.02(1).” Jones, 642 S.W.3d at 701 (internal
quotation marks and citation omitted).
Adkisson argues the trial court erred in failing to make any findings
regarding its CR 41.02 dismissal with prejudice. We agree. “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, 297 S.W.3d at 36. Here, the
trial court’s single-paragraph order does not even reveal the basis of its decision to
dismiss the case, much less whether its decision was based upon the totality of the
circumstances. It is unclear whether the dismissal was because of Adkisson’s
failure to prosecute, failure to comply with a court order, failure to respond to the
motion to dismiss, or a combination of such reasons.
We express no opinion as to whether dismissal with prejudice is
warranted. 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.
Jones, 642 S.W.3d at 701 (citation omitted). However, our case law is clear that
“the trial court must base its decision to dismiss under CR 41.02 upon the totality
of the circumstances; and it should take into account all relevant factors, whether
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or not those factors are listed in Ward.” Jaroszewski, 297 S.W.3d at 36. Without
findings, we cannot tell whether the trial court properly exercised its discretion.
Accordingly, the order of the Jefferson Circuit Court is reversed, and
this case is remanded for proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michael A. Landisman Perry A. Adanick
Louisville, Kentucky Louisville, Kentucky
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