Apparently, the trial court here did not employ alternative sanctions first before dismissing the case.29 Naturally, we recognize that dismissal is an extreme remedy; and the trial court must carefully determine whether, under the facts and circumstances of the case, this extreme remedy is truly warranted30 or whether alternative sanctions might suffice to deal with problems of delay.31 Under the facts of this case, however, we cannot say that the trial court abused its discretion in dismissing this case rather than employing alternative sanctions, especially in light of the record of substantial delays in this case. Foreclosure. Please try again. 0000024355 00000 n Rule 12.04 - Preliminary hearing. There is no right to an attorney in most civil matters. In other cases, the Court of Appeals has similarly reversed dismissals where the trial court's order does not reflect that it considered all relevant factors, such as those factors listed in Ward or Scarborough, but simply focused on a single dilatory act or a period of delay.18 This was consistent with our established precedent, which states that [e]ach case must be considered in the light of the particular circumstances involved and length of time is not alone the test of diligence.19 However, to the extent that other cases have held or suggested that all factors listed in Ward must always be fully discussed in all orders dismissing cases for lack of prosecution under CR 41.02, those cases are overruled.20. A meeting of the Kentucky Board of Licensed Professional Counselors was held via teleconference on January 20, 2023 . These forms are provided as a convenience to defendants memorandum in support of motion to dismiss 842 63 Rule 401 Motions to dismiss; judgment on the pleadings, and summary judgments. I concur with Chief Justice Minton's opinion that the circumstances of this case weigh in favor of affirming the trial judge's dismissal of this action; and I agree that a trial judge's decision on whether to dismiss a case under CR 41.02 is not exclusively governed by the factors recited in Ward v. Housman, 809 S.W.2d 717 (Ky.App.1991). E.No CR 41.02 Motion to Dismiss for Lack of Prosecution Made in Ward; Rather, Trial Court Sua Sponte Granted Summary Judgment as Discovery Sanction. B. The court shall enter an order dismissing without prejudice each case in which no answer or an insufficient answer to the notice is made.. 0000066281 00000 n endstream endobj 22 0 obj <>stream KY. Trial is (tentatively) set November 19, 2018. PDF Commonwealth of Kentucky Court of Appeals - Justia Law 1987); Pike v. George, 434 S.W.2d 626, 627 (Ky. 1968) (For the purpose of testing the sufficiency of the complaint the pleading must not be construed against the pleader and the allegations must be accepted as true.). Certainly, not all of counsel's work in pursuit of resolution of the case makes its way into the official record of a case. 6. Weather. Ex Parte. This case raises interesting questions about what constitutes prosecution of a civil lawsuit and when a trial court may properly dismiss a case for lack of prosecution. Kentucky Summary Judgment & Related Termination Motions Vol. These guidelines explain some things that court staff can and cannot do for you. Earlier this week, Montana Rep. Zooey Zephyr was censured by the state legislature after being blocked from speaking since the prior week. Civil. that support ones position. Default. Order. SCOKY: Covid The Kentucky Supreme Court said the Boone and Scott County courts could proceed, but none of their orders would be in effect until the state supreme court has a final say. In sum, given all the relevant factors in this case, we discern no abuse of discretion in the trial court's granting the defendants' motions to dismiss for lack of prosecution. <<5EAE009BC1C63C42AC4D3781367CC77C>]/Prev 113864/XRefStm 2082>> PDF Responding to a Complaint: Kentucky - Dinsmore & Shohl A judges decision to end the case.

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