MANNING V. WILKINSON
CIVIL PROCEDURE: DISMISSAL FOR LACK OF PROSECUTION
2005-CA-002491
PUBLISHED: AFFIRMING
PANEL: DIXON PRESIDING; MOORE AND TAYLOR CONCUR
COUNTY: FAYETTE
DATE RENDERED: 8/3/2007
This legal malpractice case, initiated in 1994, was thrice subjected to the trial court’s sua sponte 77.02 notice to dismiss for lack of prosecution. After exercising an abundance of patience, the trial court dismissed the case without prejudice on the third go-around in 2005. On appeal from that ruling, the CAs discussed the two different rules, 77.02 and 41.02, by which courts may dismiss cases for lack of prosecution, noting that the former is a "housekeeping rule" that results in a dismissal without prejudice. Conversely, 41.02 dismissals operate to dismiss with prejudice and operate as an adjudication upon the merits.
In making a 41.02 ruling, which effectively deprives a litigant of an opportunity to pursue a claim, the trial court is bound to consider the factors in Ward v. Housman, 809 S.W.2d 717 (Ky. App., 1991), and should only so rule in the most extreme cases. Both rulings are reviewed under an abuse of discretion standard, and the CAs noted that a 77.02 dismissal serves a different function than a 41.02 dismissal and has its own distinct requirements. After considering the facts of this case, the CA held that 77.02 dismissal was proper, in that no work had been done on the case for over ten years, despite the issuance of three separate 77.02 notices. It refused to consider the appellant’s arguments concerning a years-old ruling granting partial summary judgment, stating that its determination that dismissal was proper rendered any prior rulings by the trial court moot.
