Honeycutt v. Norfolk Southern Railway Co. , 336 S.W.3d 133 ( 2011 )

OPINION

MOORE, Judge:

Larry Honeycutt appeals an order of the Pulaski Circuit Court dismissing his complaint pursuant to Kentucky Civil Rule (CR) 77.02(2) for claims arising under the Federal Liabilities Act, 45 U.S.C. § 51, et seq.; the Locomotive Inspection Act, 49 U.S.C. § 20707, et seq.; and the Federal Rail Safety Act of 1970, 49 U.S.C. § 20101, et seq. The complaint alleged that while in Norfolk Southern Railway Company’s employ, Honeycutt sustained injuries to his neck, shoulder, and back. The issue presented is whether counsel’s failure to notify the circuit court that he had changed his mailing address and, as a result, his failure to receive the court’s sua sponte notice to show cause why the action should not be dismissed for lack of prosecution pursuant to CR 77.02(2), warranted that the order dismissing be set aside pursuant to CR 60.02. Concluding that the trial court did not abuse its discretion in dismissing Ho-neycutt’s complaint, we affirm.

Honeycutt filed his complaint in Pulaski Circuit Court on April 2, 2007. The complaint was signed only by attorney Mark T. Wade, who is licensed to practice law in Kentucky and Pennsylvania. Attorney Wade listed his mailing address on the complaint as 521 Cedar Way, Suite 200, Oakmont- Station, Building 5, Oakmont, Pennsylvania. No other attorneys or addresses were listed or noted on the complaint, and no other attorneys entered an appearance on behalf of Honeycutt. We note that at no time did Attorney Wade ever move the court to withdraw as counsel.

Within a month of the filing of the complaint, Norfolk Southern filed an answer and motion to dismiss on April 24, 2007. The only attorney listed as counsel for Honeycutt on Norfolk Southern’s certificate of service was Wade, at his Oakmont address. Presumably, either Wade received the answer and motion to dismiss at his Oakmont address; or if he had moved his office within a month of filing the complaint on Honeycutt’s behalf, his mail was forwarded by United States Postal Service to his new address.

The case was dormant after Norfolk Southern filed its answer and'motion to dismiss, with over a year elapsing without any pretrial steps taken in the action. Then, on August 5, 2008, the trial court filed a notice to show cause why the action should not be dismissed for lack of prosecution. The notice was mailed to Wade at the address he listed on the complaint, which was the only address the court had for him. However, at some point Wade had relocated to Pittsburgh, Pennsylvania. Apparently by this time the mail forwarding with the United States Postal Service had expired; consequently, the notice was returned to the circuit court clerk stamped: “Return to Sender,” “Not Deliverable as Addressed,” and “Unable to Forward.”

When no one appeared on behalf of Ho-neycutt at the hearing, an order dismissing for lack of prosecution was rendered on September 26, 2008. The order was also mailed to Wade at his Oakmont office, which was also returned to the court clerk.

Nearly six months later, Wade filed a motion on behalf of Honeycutt to set aside the September 26, 2008, order citing as grounds that: (1) he did not receive actual notice of motion to dismiss and resultant order and, therefore, the order was void; (2) the order was the result of mistake, inadvertence and/or excusable neglect and should have been set aside pursuant to CR 60.02(a); and (3) that CR 60.02(f) justified relief based on the extraordinary circumstances of the case.

At the hearing on the motion to set aside the order, Wade explained that pri- or to filing the complaint, an Alabama attorney represented Honeycutt and had engaged Norfolk Southern in settlement negotiations. Subsequently, the Alabama attorney requested that Wade negotiate on behalf of Honeycutt. Wade did so and sent a settlement package to Norfolk Southern’s claims agent. The attempt at settlement failed, and accordingly Wade filed the complaint on behalf of Honey-cutt.

According to Wade after the complaint was filed, Norfolk Southern’s claims agent ceased settlement negotiations and insisted that Norfolk Southern deal exclusively with the Alabama attorney. Wade maintained that he and the Alabama attorney then had a miscommunication, each believing that the other was representing Ho-neycutt. However, the Alabama attorney did not sign the complaint nor enter an appearance on Honeycutt’s behalf at any point in this litigation; Wade did. Additionally, Wade took no action to correct any confusion regarding who was handling Honeycutt’s case despite the fact that Norfolk Southern’s answer and motion to dismiss, filed within a month of the complaint, listed him alone as counsel for Honeycutt. And, Wade took no steps to withdraw as counsel.

In ruling on Honeycutt’s motion, the circuit court found that the ten-day limitation contained in CR 59.05 precluded relief under that rule. Consequently, if relief was available, it must be pursuant to CR 60.02, specifically subsection (a) or (f). The court rejected relief based on CR 60.02(a) and the contention that the order was entered as result of mistake, surprise, or excusable neglect and, therefore, focused on the remaining subsection, CR 60.02(f). Finding that there was no “extraordinary reason” to justify relief, it denied relief. Finally, relying on an unpublished opinion by this Court, Coleman v. El-Mallakh, 2008 WL 899805 (Ky.App. April 4, 2008),¹ the circuit court found that actual notice was not required under CR 77.02(2) and that the order was not otherwise void. Based on our review, the trial court did not abuse its discretion in its ruling.

Honeycutt’s initial contention is that the order of dismissal is void because he did not actually receive the notice to show cause as required by CR 77.02(2), which provides:

At least once each year trial courts shall review all pending actions on their dockets. Notice shall be given to each attorney of record of every case in which no pretrial step has been taken within the last year, that the case will be dismissed in thirty days for want of prosecution except for good cause shown. The court shall enter an order dismissing without prejudice each case in which no answer or an insufficient answer to the notice is made.

This is a housekeeping rule, within the wide discretion of the trial court, intended to expedite the removal of stale cases from the court’s docket. Hertz Commercial Leasing Corporation v. Joseph, 641 S.W.2d 753 (Ky.App.1982).

As noted supra, the trial court relied on an unpublished opinion, Coleman v. El-Mallakh, 2008 WL 899805, which we find to be persuasive authority in this case and proper to cite as it fulfills the criteria of CR 76.28(4). In Coleman at *3, this Court held that

where a statute requires actual notice to be received by a party, it is then incumbent upon the party whose duty it is to give that notice to see that the notice is actually received by the party entitled to notice. We do not believe that the language in CR 77.02(2) can be construed to require that actual notice be received by each attorney of record before the court may proceed with dismissing a case for want of prosecution.

Clearly, the method contemplated for service of the notice is the same as that required for the service of the order dismissing a case under the rule, that being service shall be made by mail in the manner provided in CR 5. CR 77.04(1). Specifically, CR 5.02 provides for service upon the attorney of record by mailing a copy of the notice to the attorney at his last known address and that service by mail is complete upon mailing.

(Citations omitted).

In Coleman, we pointed out that because hundreds of cases are disposed under this rule each year, it is simply not feasible to place the onerous burden on our circuit clerks to personally ensure that every attorney of record receive actual notice that the case may be dismissed for lack of prosecution absent a showing of good cause. We agree with the language in Coleman stating that “we know of no authority in Kentucky that would impose a duty upon circuit clerks to track down attorneys who have moved their offices without giving notice to the court in order for the court to satisfy the notice provision of CR 77.02(2).” Mat *4.

We further agree with the trial court that the circumstances of this case do not fulfill CR 60.02(a)’s requirement of mistake, inadvertence, surprise or neglect. If there was inadvertence, it was not at the hands of the court. And, Honeycutt’s rationale for setting aside the judgment does not fall into the category of an “extraordinary reason” to justify relief under CR 60.02(f). “[T]he conduct of an attorney is generally not a ground for relief under CR 60.02(f).” Id. at *5 (citing Vanhook v. Stanford-Lincoln Co. Rescue Squad, Inc., 678 S.W.2d 797 (Ky.App.1984); Brozowski v. Johnson, 179 S.W.3d 261 (Ky.App.2005)). As in Coleman, the result is harsh for the appellant. But, as this Court stated in Coleman at *5, “we can find no authority that holds a harsh result constitutes an extraordinary reason to justify relief under CR 60.02.” Accordingly, we affirm.

TAYLOR, Chief Judge, Concurs.

THOMPSON, Judge, Dissents and Files Separate Opinion.

1 . The circuit court properly cited to and relied upon Coleman, an unpublished case, pursuant to CR 76.28(4).