MULLINS (JOSEPH) VS. REDFORD TOWNSHIP , ET AL.
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RENDERED: SEPTEMBER 25, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001818-MR
JOSEPH MULLINS
v.
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 07-CI-00185
REDFORD TOWNSHIP;
POLICE OFFICER BRIAN
GREENSTEIN; POLICE OFFICER
JOHN DOE (UNKNOWN);
WEST BLOOMFIELD TOWNSHIP;
AND POLICE OFFICER TODD
METCALF
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR
JUDGE.
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
LAMBERT, SENIOR JUDGE: Appellant, Joseph Mullins, pro se, appeals from a
judgment of the Letcher Circuit Court dismissing his claims against Redford
Township and West Bloomfield Township in Michigan and certain police officers
employed by each. Appellant asserts that police officers from these two Michigan
Townships traveled to his home in Letcher County, Kentucky, arrested him, and
forcibly transported him to Michigan where he was incarcerated for two weeks.
As a result, Appellant filed a civil action in the Letcher Circuit Court where he
presented various theories of recovery including conspiracy to commit kidnapping,
assault, battery, false imprisonment, false arrest, trespassing, and violation of his
civil rights under the Fourteenth Amendment.
It appears that Appellant has a residence in Michigan and that he
operates an insurance business there. This is Appellant’s connection with
Michigan and its authorities. However, prior to the incident at issue, Appellant
asserts that he and his fiancé, and another friend, left Michigan and returned to his
family home in Letcher County.
The Michigan authorities agree that Appellant was arrested, but
contend that he was arrested at his Michigan residence. The arrest appears to have
stemmed from Appellant’s failure to comply with a material witness warrant in
Michigan. The Michigan authorities further dispute that the police officers named
as defendants in this action are the same officers who actually arrested Appellant.
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Although the pleadings are replete with bizarre factual disputes, the
foregoing abbreviated summary provides the necessary backdrop to address the
very narrow legal issue presented in this appeal. Specifically, Appellant identified
certain individuals who claim to have witnessed his Kentucky arrest by Michigan
police officers. These individuals signed affidavits attesting to their version of
events on the date of the arrest.
Although Appellant was initially represented by counsel, shortly after
suit was filed counsel for both parties submitted an agreed order to the court. The
order permitted Appellant’s counsel to withdraw but in that very order, departing
counsel agreed to establishment of certain scheduling deadlines. Disputes over
performance of paragraph four of the agreed order are central to the current
controversy. The order provides:
The Defendants shall have until March 1, 2008 to
complete the depositions of the Plaintiff Joseph Mullins
and of any of Plaintiff’s fact witnesses. The Plaintiff
shall make his witnesses including Jessica Riddle, Sarah
Nealy Rushing, Sue Marsillette and John Kozlowski,
available for completion of their depositions before or on
March 1, 2008 at the law firm of Clark & Ward in
Lexington, Kentucky.
Despite an extension of the March 1, 2008, deadline, Appellant’s deposition was
not taken until March 5, 2008, and the named witnesses had not been deposed as of
August 2008, when Appellees moved to dismiss the case under Kentucky Rules of
Civil Procedure (CR) 41.02.
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CR 41.02(1) provides that “[f]or 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.” Appellees argued that
Appellant failed to comply with both the initial order and the extended order to
produce his witnesses for depositions. After a hearing, the trial court entered an
order dismissing the case with prejudice. Appellant sought to have the judgment
vacated but the trial court denied the motion. This appeal followed.
In this Court, Appellant asserts that the trial court’s dismissal was
improper. Both parties claim that the failure to depose the named witnesses was
the result of a lack of cooperation on the other’s part. While Appellees sent letters
to Appellant inviting him to provide convenient dates for the taking of the
depositions, only once was a deposition of one of the named witnesses noticed. On
that occasion, Appellees were advised that the witness could not attend due to
illness. On one other occasion, Appellant offered a date, but Appellees could not
accommodate him on short notice and during a holiday weekend. Appellees
contend that Appellant engaged in devious behavior by repeatedly calling their
office and hanging up for the purpose of creating telephone records that he could
use to argue to the court that he had attempted to schedule the depositions.
The Rules of Civil Procedure establish the procedure for taking
depositions and provide remedies to litigants when a party or a witness is
uncooperative. Specifically, CR 30.02 provides that “[a] party desiring to take the
deposition of any person upon oral examination shall give reasonable notice in
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writing to every other party to the action.” Further, CR 30.01 provides that a
witness’s attendance may be compelled by subpoena as provided in CR 45. These
Rules and established procedures for taking depositions are not unfamiliar to
members of the bar. Courtesy between and among attorneys and witnesses is
desirable but when a witness or an opposing party is recalcitrant, the proper
approach is notice and subpoena.
Appellant claims that he should not be sanctioned for failure to
comply with the scheduling order, the nature of which was vague and incapable of
unilateral performance. Notwithstanding the agreed scheduling order, we doubt
whether Appellant or any litigant could guarantee the court that a non-party
witness would appear at a certain place and time for his or her deposition. But in
any event and assuming that sanctions were appropriate, Appellant argues that
sanctions less than dismissal should have been imposed. He aptly points out that
before the ultimate sanction of dismissal may be imposed, the trial court must
consider the factors enumerated in Ward v. Housman, 809 S.W.2d 717 (Ky. App.
1991), and make findings that dismissal is warranted in light of those factors.
Appellees contend that the trial court’s consideration of those factors may be
inferred because Appellees’ memorandum and argument to the court in support of
their motion contained an appropriate analysis of each factor as applied to this
case. Nonetheless, Appellees concede that the trial court’s order does not mention
Ward, nor does it contain any findings of fact or legal analysis.
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This Court has held that “the involuntary dismissal of a case with
prejudice ‘should be resorted to only in the most extreme cases’ and a reviewing
court must ‘carefully scrutinize the trial court’s exercise of discretion in doing so.’”
Manning v. Wilkinson, 264 S.W.3d 620, 624 (Ky. App. 2007), quoting Polk v.
Wimsatt, 689 S.W.2d 363, 364-65 (Ky. App. 1985). Moreover, “[t]he
responsibility to make such findings as are set forth in Ward before dismissing a
case with prejudice falls solely upon the trial court.” Id. quoting Toler v. Rapid
American, 190 S.W.3d 348, 351 (Ky. App. 2006). As such, we cannot accept
Appellees’ invitation to presume that the trial court duly considered the Ward
factors, nor can we meaningfully review the trial court’s decision without benefit
of findings and analysis of the controlling factors.
Accordingly, we reverse the trial court’s order of dismissal and
remand this cause for further consistent proceedings.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Joseph Mullins, pro se
McRoberts, Kentucky
Livonia, Michigan
Melissa A. Wilson
Lexington, Kentucky
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