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# Commonwealth of Kentucky

Court of Appeals

NO. 2021

- CA

- 1140

- MR

HEIDI WEATHERLY D/B/A LAKE

CUMBERLAND BOOKING AND

PROMOTIONS APPELLANT

v. APPEAL FROM LAUREL CIRCUIT COURT

HONORABLE KENT HENDRICKSON, JUDGE

ACTION NO. 12

- CI

- 00943

EUBANKS BROADCASTING, INC.

D/B/A WKDP

- AM, WKDP

- FM AND

WCTT

- FM APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, M C NEILL

, AND K. THOMPSON, JUDGES.

M C NEILL

, JUDGE: Heidi Weatherly (“Weatherly”) appeals from the Laurel

Circuit Court ’ s order dismissing her case for failure to prosecute. Finding no error,

we affirm.- 2

- BACKGROUND

Weatherly is a concert promoter doing business as Lake Cumberland

Booking and Promotions. In 2011, she produced two concert s to benefit St. Jude ’ s

Children ’ s Research Hospita l, allegedly as part of a fundraising effort organized by

WKDP, a radio station owned by appellant, Eubanks Broadcasting, Inc.

(“Eubanks”). The concerts were unsuccessful and Weatherly sued Eubanks,

alleging it was liable for damages due to its failure to promote the event. The case

lingered for years and i n 2019, Eubanks moved to dismiss the complaint for failure

to prosecute pursuant to CR 1 41.02

.

Below is a timeline of the case ’ s progression :

• September 28, 2012 : Weatherly files complaint

.

• June 4, 2014 : Weatherly takes depositions

.

• February 12, 2015 : Weatherly responds to discovery requests

.

• May 5, 2015 : Weatherly responds to discovery requests

.

• March 15, 2017 : The t rial court enters CR 77.02 notice to dismiss for lack

of prosecution

.

• May 8, 2017 : Weatherly files motion to set trial for trial

.

• August 9, 2017 : The trial court judge recuses

.

• September 14, 2017 : Weatherly takes deposition

.

1 Kentucky Rules of Civil Procedure.- 3

-

• April 12, 2018 : S pecial judge is assigned

.

• July 9, 2018 : Weatherly files motion for substitution of counsel, motion to

refer case to mediation, and notice of discovery requests

.

• July 12, 2018 : Court makes docket notation for judge and parties to set jury

trial dates via phone conference

.

• August 6, 2018 : Weatherly files first amended complaint

.

• January 28, 2019 : Weatherly ’ s counsel withdraws

.

• April 25, 2019 : Weatherly does not appear for status hearing set by court

.

• May 5, 2019 : Eubanks files motion to dismiss for failure to prosecute

.

• August 16, 2019 : Weatherly files motion to set trial dates

.

On July 15, 2021

, 2 the trial court granted the motion to dismiss,

finding that ba sed upon the totality of the circumstances Weatherly had not

diligently prosecute d her case. This appeal followed.

ANALYSIS

We review CR 41.02 dismissals for lack of prosecution under an

abuse of discretion standard. Jaroszewski v. Flege

, 297 S.W.3d 24, 27 (Ky. 2009)

.

“ Under this standard of review, we will reverse the trial court ’ s dismissal only if it

was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. ”

Jones v. Pinter

, 642 S.W.3d 698, 701 (Ky. 2022) (citation omitted).

2 It is unclear from the record why there is a two

- year gap between the filing and granting of the

motion to dismiss, although presumably the C OVID

- 19 pandemic contributed to the delay.- 4

- Weatherly argues the trial court abused its discretion in dismissing her

case for failure to prosecute. However, before we reach the merits of her claim, we

must address the deficiency of Weatherly ’ s appellate brief. Her argument section

fails to make “reference to the record showing whether the issue was properly

preserved for review and, if so, in what manner” as required by CR 76 .12(4)(c)(v).

We require a statement of preservation:

so that we, the reviewing Court, can be confident the

issue was properly presented to the trial court and

therefore, is appropriate for our consideration. It also has

a bearing on whether we employ the recognized standard

of review, or in the case of an unpreserved error, whether

palpable error review is being requested and may be

granted.

Oakley v. Oakley

, 391 S.W.3d 377, 380 (Ky. App. 2012).

“Our options when an appellate advocate fails to abide by the rules

are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief

or its offending portions, CR 76 .12(8)(a); or (3) to review the issues raised in the

brief for manifest injustice only[.]” Hallis v. Hallis

, 328 S.W.3d 694, 696 (Ky.

App. 2010) (citing Elwell v. Stone

, 799 S.W.2d 46, 47 (Ky. App. 1990))

. Because

the record is small, and we have been able to determine whether her arguments

were properly preserved, we will ignore the deficiency and proceed with the

review.- 5

- CR 41.02 authorizes a trial court to involuntarily dismiss an action for

failure to prosecute. “[P] rosecution in this context essentially entails pursu ing the

case diligently toward completion or, in other words, actually working to get the

case resolved

– not just keeping it on a court ’ s docket or occasionally working on

the file without actively attempting to resolve matters in dispute .” Jaroszewski

,

297 S.W.3d at 32 (internal quotation marks and alteration omitted). Prosecuting a

case diligently to completion “involves, not only preparing one ’ s own case, but

also reasonably cooperating with the opponent ’ s active attempts to prepare its case,

such as responding timely to discovery requests.” Id. The purpose of the rule is

“t o protect the defendant from the prejudice of being a defendant in a lawsuit for a

protracted period ” and “ to preserve the integrity of the judicial system by

encouraging quick resolution of cases [.]” Id. at 36 (internal quotation marks and

citations omitted).

Proper consideration of a CR 42.01 motion “ cannot be reduced to a

simple formula [.]” Jaroszewski

, 297 S.W.3d at 32

. Instead, “each case must be

looked at with regard to its own peculiar procedural history and the situation at the

time of dismissal.” Id. (footnote omitted). “[T] he trial court must base its decision

to dismiss under CR 41.02 upon the totality of the circumstances [.]” Id. at 36.

In considering the totality of the circumstances, trial courts may

consider “ 1) the extent of the party ’ s personal responsibility; 2) the history of- 6

-

dilatoriness; 3) whether the attorney ’ s conduct was willful and in bad faith; 4)

meritoriousness of the claim; 5) prejudice to the other party, and 6) alternative

sanctions.” Ward v. Housman

, 809 S.W.2d 717, 719 (Ky. App. 1991) (citation

omitted). “ When reviewing dismissal for failure to prosecute, we must balance the

broad discretion given to trial courts with the extreme nature of dismissal of a civil

action with prejudice under CR 41.02(1). ” Jones

, 642 S.W.3d at 703 (citation

omitted)

.

Weatherly argues the trial court ’ s findings supporting dismissal were

insufficient and the dismissal itself was an abuse of discretion. We disagree. T he

trial court found that, based upon the totality of the circumstances, Weatherly had

not diligently pursued her case towards completion. In analyzing the Ward factors,

the court found that all six factors weighed in favor o f dismissal.

It specifically found “a long history of dilatory behavior” that was

W eatherly ’ s personal responsibility. As examples, the court cited her misleading

complaint 3 which “certainly contributed to[] the denial of [Eubank ’ s] motion to

dismiss at the beginning of this action” ; her delay in responding to discovery until

ordered to do so; her reactive, rather than proactive, style of prosecuting her case

( only filing motions to set for trial in response to motions to dismiss ) ; and a two

3 The complaint alleged that an agent of Eubanks “contacted the plaintiff to induce her to

produce at her expense a benefit concert[.]” L ater discovery revealed that Weatherly and a

Eubanks employee came up with the idea together.- 7

-

year period of inactivity in the case while Weatherly attended law school. It also

found that much of Weatherly ’ s dilatory behavior was done in bad faith, including

filing motions to set for trial “solely to prevent dismissal[.]”

As to the meritoriousness of her claim, the trial court found that her

ability to prove damages was weak based upon the apparent lack of records and

changing dollar amount

. 4 It further found Weatherly ’ s dilatory behavior has

prejudiced Eubanks ’ ability to defend itself, noting the recent change in

Weatherly ’ s claimed damages, seven years into discovery. Finally, the court found

that based upon the history of dilatory behavior, no other sanction was appropriate.

We cannot say the trial court abused its discretion in dismissing

Weatherly ’ s complaint for failure to prosecute. Th is simple contract case was over

seven years old at the time of the motion to dismiss, with long periods of inactivity,

most of it Weatherly ’ s responsibility. Particularly revealing is the almost two

years of inactivity while Weatherly went to law school

. While laudable, we do not

believe the time taken purs u ing a law degree qualifies as “pursuing the case

diligently towards completion” as required by CR 41.02 and our case law

interpreting it

.

4 Weatherly raised her claim for damages from $15,477.00 to $30,000.00 in response to the

motion to dismiss

.- 8

- Weatherly ’ s only specific challenge to the trial court ’ s findings is its

“totally illogical conclusion” that her motions to set for trial were reactive and thus

evidence of failure to prosecute. However, “i t is entirely proper for a trial court to

consider that a plaintiff has only been acting reactively

. . . as a relevant factor

indicating that the plaintiff has not been actively prosecuting the case. ”

Jaroszewski

, 297 S.W.3d at 38

. Here, both of Weatherly ’ s motions to set trial

dates were filed in direct response to the threat of dismissal. The trial court ’ s

finding was reasonable and supported by substantial evidence.

Based upon the foregoing, the order of the Laurel Circuit Court is

affirmed.

COMBS, JUDGE, CONCURS

THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.

BRIEF FOR APPELLANT:

Tommie L. Weatherly

London, Kentucky

Johnnie L. Turner

Harlan, Kentucky

James L. Cox

Mt. Vernon, Kentucky BRIEF FOR APPELLEE:

D. Randall Jewell

Barbourville, Kentucky