DIANE WOOD v. BEN S. WOOD, III and BEN S. WOOD, III, EXECUTOR OF THE ESTATE OF BEN S. WOOD
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RENDERED: APRIL 30, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002596-MR
DIANE WOOD
APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 97-CI-01001
v.
BEN S. WOOD, III and
BEN S. WOOD, III, EXECUTOR
OF THE ESTATE OF BEN S. WOOD
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, SCHRODER AND TAYLOR, JUDGES.
BARBER, JUDGE:
Diane Wood appeals from an order of the
Christian Circuit Court that dismissed her action with prejudice
against Ben S. Wood III, Individually, and as Executor of the
Estate of Ben S. Wood for lack of prosecution.
We vacate and
remand.
In September of 1964 Ben S. Wood executed a promissory
note to his daughter, Diane Wood (Diane), that was in the
principal amount of $11,565.36.
The note is payable on demand
and carries an interest rate of 5% per annum.
Ben S. Wood died
and his son, Ben S. Wood III (Ben), was appointed executor of
his estate.
Diane filed a claim with the estate in August of
1997 for payment of the promissory note.
Ben disallowed the
claim and Diane filed suit October 31, 1997, in circuit court to
collect.
After Diane filed suit no steps were taken to
prosecute the case for a period of time.
In January of 2000 Ben
moved to dismiss the case for lack of prosecution. That motion
was denied, and, thereafter, Diane did promulgate
interrogatories and participate in taking and giving
depositions.
2000.
These pretrial steps concluded in November of
It appears that no further steps were taken in the case
until October 31, 2002, when Diane’s counsel moved to withdraw
from the case.
Nor was the case ever placed on the court’s
trial docket.
Although Diane’s counsel withdrew its motion to be
relieved of the case, Ben filed a second motion to dismiss for
lack of prosecution in November 2002.
That motion was granted
as noted on the court’s motion docket of November 27, 2002, and
as embodied in its written order entered December 10, 2002.
This appeal followed.
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On appeal Diane argues that the circuit court should
not have dismissed her case for failure to prosecute because she
took substantial steps toward resolving the case; that it failed
to consider the appropriate factors and less drastic remedies
before dismissing, and because Ben has unclean hands.
The dismissal in this case was granted under CR
41.02(1) which provides:
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.
While the standard for review of a dismissal for lack
of prosecution is whether the trial court abused its discretion,
Kentucky’s appellate Courts have consistently held that the
trial court must take care to consider certain relevant factors
before employing such a drastic remedy.
See Jenkins v. City of
Lexington, Ky., 528 S.W.2d 729, 730 (1975)(standard of review is
abuse of discretion); Nall v. Woolfolk, Ky., 451 S.W.2d 389, 390
(1970)(power of court to dismiss for want of prosecution is
inherent power of the court); Modern Heating & Supply Co. v.
Ohio Bank Building & Equip. Co., Ky., 451 S.W.2d 401, 403-404
(1970)(unless trial court abuses its discretion by dismissing
appellate court will not intervene).
Relevant factors for the circuit court to consider
before employing its power to dismiss for lack of prosecution
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include the particular facts and circumstances of the case such
as whether the case has been placed on the circuit court’s trial
docket, and the reasons for the delay since delay alone is not
the test of due diligence.
546 (1970).
Gill v. Gill, Ky., 455 S.W.2d 545,
The court should also consider whether less drastic
measures would remedy the situation especially where there has
not been any prejudice shown to the party asking for dismissal.
Polk v. Wimsatt, Ky. App., 689 S.W.2d 363, 364-365 (1985).
Further factors to bear in mind are:
1)
2)
3)
4)
5)
6)
the extent of the party’s personal
responsibility;
the history of dilatoriness;
whether the attorney’s conduct was willful and in
bad faith;
meritoriousness of the claim;
prejudice to the other party, and
alternative sanctions.
Ward v. Housman, Ky. App., 809 S.W.2d 717, 719 (1991).
From the record in this case it appears that the trial
court did not consider any of the above factors before granting
Ben’s motion to dismiss for lack of prosecution.
Whether Diane
took substantial steps to prosecute her claim and what effect,
if any, Ben’s alleged unclean hands should have on the case are
matters to first be considered by the trial court.
Since it is
not this Court’s role to make findings, we vacate the ruling and
remand to the Christian Circuit Court for proceedings consistent
with this Opinion.
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ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael L. Judy
David J. Guarnieri
Frankfort, Kentucky
William G. Deatherage Jr.
Hopkinsville, Kentucky
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