RENDERED: MARCH 24, 2022 TO BE PUBLISHED 

# Supreme Court of Kentucky

2021

- SC

- 0138

- DG

A ARON JONES APPELLANT

ON REVIEW FROM COURT OF APPEALS V. NO. 2020

- CA

- 0260

JEFFERSON CIRCUIT COURT NO. 14

- CI

- 001407

RAY PINTER D/B/A RAY PINTER CONSTRUCTION APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

REVERSING AND REMANDING This personal injury action has been percolating through the Kentucky

c ourts since 2014 . At issue at this stage in the case is whether the trial court abused its discretion by dismissing this action with prejudice under CR 1
41.02 (1)

. We accepted discretionary review to examine further when the extreme remedy of dismissal of a civil action with prejudice under CR 41.02(1) is appropriate

. Finding an abuse of discretion on this record, we reverse .

I. FACTS AND PROCEDURAL BACKGROUND
In 2014, Appellant Aaron Jones commenced this tort action , alleging violations of state and federal laws relating to occupational safety. Jones

1 Kentucky Rules of Civil Procedure.2

served written discovery and deposed Appellee Ray Pinter. But, i n 2015, the
trial court dismissed Jones’s case without prejudice for lack of prosecution
under CR 77.02. Jones moved for reinstatement because his counsel failed to
receive the Notice to Dismiss for Lack of Prosecution. Jones also noted that , contrary to the trial court’s notice , pretrial steps had been taken in the preceding year between Ju ne 6, 2014, and Ju ne 6, 2015. T he trial court granted reinstatement, entered a pretrial order , and the parties engaged in
additional discovery. In 2016, Pinter moved for summary judgment. The trial court denied Pinter’s motion. Pinter appealed. The C ourt of A ppeals affirmed denial of summary judgment . T his Court denied Pinter’s motion for discretionary review in December 2018. Later , Jones disclosed expert witnesses, identif ied lay witnesses, and noticed alleged damages. Pinter deposed Jones for a second
time.
The trial court entered a pretrial order direct ing the parties to attempt to resolve their disputes through mediation before the pretrial conference . The trial court did not order the parties to attend mediation at a specific date or
time

. On October 1, 2019, Jones failed to appear for mediation scheduled by the parties without notifying Pinter in advance . In response, Pinter moved to compel mediation and for an order requiring Jones to pay a portion of the fees
related to the missed mediation. The tria l court granted the motion and required Jones to pay Pinter’s share of expenses related to the initial3

mediation

. Jones appeared for a rescheduled mediation on October 30, 2019. Mediation failed to resolve the parties’ disputes.
Pinter filed a notice fo r an independent medication examination (“IME”)
under CR 35.01. The trial court did not enter an order requiring Jones to
attend the IME. The parties scheduled the IME for November 1, 2019. Jones failed to appear without prior notice. In response, Pi nter moved for involuntary dismissal under CR 41.0 2 (1). Jones responded in opposition. Jones attributed his conduct to memory impairment caused by injuries he sustained in the 2013 accident at issue in
this case. On January 29, 2020 , the trial court fou nd that dismissal with prejudice was warranted “ because by failing to appear for the mediation and
IME , Jones violated the Civil Rules and this Court’s Pre Trial Order and failed
to reasonably cooperate with P inter’s attempt to prepare his case .”
The C ourt of A ppeals affirmed in a split decision, with one judge concurring in the result only and another judge dissenting without explanation. This Court granted discretionary review

. II. STANDARD OF REVIEW
We review dismissals under CR 41.02 for abuse of discretion. 2 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. 3

2 Jaros z ewski v. Flege , 297 S.W.3d 24, 32 (Ky. 2009).

3 Goodyear Tire & Rubber Co. v. Thompson , 11 S.W.3d 575, 581 (Ky. 2000).4 III. ANALYSIS Under CR 41.02(1), a defendant may move for dismissal of an action or
claim for t hree reasons. 4 First, a defendant may move for dismissal based on plaintiff’s failure to prosecute

. 5 Second, a defendant may move for dismissal
due to plaintiff’s failure to comply with the Kentucky Rules of Civil Procedure. 6 Third, a defendant may move for dismissal for plaintiff’s failure to comply with any order of the court. 7 Consideration of a motion to dismiss under CR
41.02 (1) requires fact

- specific determinations that are left to the sound
discretion of the trial cou rt. 8 The trial court must base its assessment on the totality of the circumstances

. 9 Still, a trial court ’s discretion is not unfettered and i s subject to an important limitation. Our courts have long recognized that CR 41.02(1) dismissal with prejudic e is an “extreme remedy .” 10 As a result, we must “carefully scrutinize the trial court's exercise of discretion ” when reviewing
dismiss al with prejudice under CR 41.02 (1)

. 11

4 CR 41.02(1) (“For failure of the plaintiff to prosecute or to comply wit h these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him.”).

5 Id.

6 Id.

7 Id.

8 Jaroszewski , 297 S.W.3d at 32.

9 See i d. at 36.

10 Id. at 40. Cf. Manning v. Wilkinson , 264 S.W.3d 620, 624 (Ky. App. 2007); Toler v. Rapid American , 190 S.W.3d 348, 351 (Ky. App. 2006); Polk v. Wimsatt , 689 S.W.2d 363, 364

– 65 (Ky. App. 1985).

11 Manning , 264 S.W.3d at 624.5

In considering the totality of the circumstances, trial court s may consider the factors espoused in Ward v. Housman

. 12 Ward provides a nonexclusive list of factors for consideration when analyzing the totality of the circumstances relevant to a motion to dismiss for lack of prosecution under CR 41.02. 13 The
Ward factors are: “1) the extent of the party's personal responsibility; 2) the history of 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. ” 14
T he trial court dismissed th is action both for Jones’ s noncompliance with the court’s orders and for his failure to prosecute. We consider each in turn.
A. Dismissal for Noncompliance with Court Orders
The trial court concluded that dismissal was warranted in part because
Jones violated orders of the court by failing to appear for mediation and the
IME. Bu t , on this record, to the extent Jones violated any court orders, those violations were insufficient to warrant the extreme remedy of dismissal with preju dice. First, the trial court incorrectly relied on the missed mediation as a basis for dismissal because Jones ultimately complied with the court’s pretrial order, which required the parties to attempt to resolve their disputes through
mediation before the pretrial conference.

12 See 809 S.W.2d 717, 719 (Ky. App. 1991) (citing Scarborough v. Eubanks , 747 F.2d 871, 875

– 78 (3d Cir. 1984)).

13 Id.

14 Id.6

T he trial court’s February 3, 2016, Civil Jury Trial Order stated that “[t]he parties shall attempt to resolve their differences through mediation prior to the pretrial conference.” The Order did not specify a date or time for

m ediation to occur. It only required that the parties instruct the court on the
outcome of mediation once completed

. The pretrial conference was set for November 6, 2019. Even if Jones’ s failure to appear at the October 1, 2019, mediation
constituted a v iolation of a court order or local rules , 15 Jones eventually complied with the trial court’s pretrial order by attending mediation on October 31, 2019

— before the November 6, 2019, pretrial conference. As a result, any violation of the trial court’s order o r the local rules regarding mediation was remedied by Jones’ s subsequent participation in mediation before the pretrial
conference

. Moreover, the court levied sanctions due to Jones’ s failure to appear at the initial mediation, including requiring Jones to pay Pinter’s share
of mediation fees

. 16 It was unreasonable for the court to conclude that the

15 T he Rules of Practice & Procedure for the 30th Judicial Circuit, Jefferson Circuit Court, LR 1308, provides that, except by agreement, “all counsel of record and all parties shall attend the med iation.” It is not clear that a violation of local rules j ustifies dismissal for failure to follow a court order under CR 41.02(1). The plain language of CR 41.02(1) provides that dismissal may be appropriate for plaintiff’s failure “to comply with thes e rules.” I t appears that CR 41.02(1)’s reference to “these rules” means the Kentucky Rules of Civil Procedure. But we need not definitively resolve that issue here because Jones complied with LR 1308 when he attended the rescheduled mediation on October 31, 2019.

16 Pinter also contends that Jones failed to comply with paragraph 19 of the trial court’s Civil Jury Trial Order, which warned that failure of any attorney or party to comply with the requirements outlined therein may resu lt in unspecified sanctions as deemed appropriate by the court. But even if Jones violated the court’s pretrial order, the trial court sanctioned Jones for failure to attend the first mediation. As a7

missed mediation constituted a violation of a court order that warranted
dismissal unde r CR 41.02(1)

. Second, the trial court’s reliance on Jones’ s failure to appear for an IME
as a basis for dismissal for noncompliance with court orders is misplaced because the court never ordered Jones to appear for an IME

. On September 19, 2019, Pinte r filed a Notice of CR 35 Examination 17
with the trial court. The parties agreed to set t he IME for November 1, 2019. Even so, the record is devoid of any evidence that the trial court ordered Jones to appear for an IME.

result, Pinter’s suggestion that paragraph 19 of the c ourt’s pretrial order provides support for dismissal under CR 41.02(1) is unpersuasive because Jones had already been sanctioned for that misconduct.

17 CR 35.01 provides as follows:

When the mental or physical condition (including the blood group) of a pa rty, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician, dentist or appropriate health care exper t, or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, an d scope of the examination and the person or persons by whom it is to be made. The record reflects that the CR 35.01 examination was noticed by Pinter but is devoid of a court order compelling Jones to submit to an IME. Of course, the parties did agree to schedule the IME for November 1, 2019. And Pinter argues that arrangements for a CR 35.01 exam ination are routinely made without court involvement. Even so , the plain text of CR 35.01 indicates that “the court . . . may order” a party to submit to an ex amination. It makes no mention of the parties arranging for an examination without court involvement. Furthermore, the rule states that “[t]he order may be made only for good cause shown.” Here, there is no indication that Pinter moved the court to orde r a n examination. Even if Jones’s conduct violated common civil practice and procedure in Kentucky courts, i t is axiomatic that there can be no violation of a court order to submit to a CR 35.01 examination where no motion for such relief was filed and no such order was entered on the record.8

Thus, although Jones should hav e attended the IME, he did not technically violate a ny order of the court by failing to d o so. As a result, it was
unreasonable for the trial court to conclude that Jones violated a court order by failing to appear for the IME. Ultimately, while we do not condone Jones’s actions in missing the initial mediation and IME, those actions do not constitute violations of court orders that justify the extreme remedy of dismissal with prejudice under CR
41.02 (1)

. 18
B. Dismissal for Failure to Prosecute The trial court also concluded that dismissal was appropriate for failure to prosecute. When review ing 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 wi th prejudice under CR 41.02(1)

. 19 Ultimately,

c onsidering the totality of the circumstances, Jones’ s mis conduct w as insufficient to justify the extreme sanction of dismissal with prejudice under
CR 41.02 (1)

. “[P]rosecution in this context essentially entails pursuing the case diligently toward completion or, in other words, actually working to get the case

18 That is not to say that litigants are free to disregard pretrial obligations or court

- imposed requirements just because no express court order exists. Failure to cooperate in pretrial discovery or comply with a cou rt’s pretrial order may warrant dismissal for failure to prosecute under CR 41.02(1) under the appropriate circumstances , even if no specific court order was directly violated . Nonetheless, a trial court cannot dismiss an action under CR 41.02(1) for fail ure to comply with an order of the court where no court order exists.

19 Jaroszewski , 297 S.W.3d at 32.9

resolved

— not just keeping it on a court's docket or occasionally working on the file without actively attempting to reso lve matters in dispute. ” 20 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. ” 21 The trial court p ointed to three events as the primary bases for its dismissal for failure to prosecute: (1) the court’s previous dismissal for failure to prosecute under CR 77.02; (2) Jones’s failure to appear for the October 1, 2019, mediation; and (3) Jones’s failure to a ttend the IME. But the trial court did not base its decision on these events standing alone. The court also analyzed some of the factors espoused in Ward in concluding that dismissal with prejudice was appropriate. We review the tri al court’s reasoning below. First, t he record does not reflect a history of dilatoriness that supported
dismissal. On June 6, 2015, the trial court entered a Notice to Dismiss for Lack of Prosecution. The notice stated that no pretrial steps had been taken in
the matter in the preceding year and warned that the case would be dismissed in 30 days unless good cause was shown as to why no pretrial steps had been taken. On July 20, 2015, the trial court found that no pretrial step had been taken within the preceding year and dismissed the case without prejudice , pursuant to CR 77.02.

20 Id. (internal quotations an d alteration omitted).

21 Id.10

But the court’s prior dismissal under CR 77.02 should not have been
entered . On July 29, 2015, Jones moved the court to set aside its dismissal and reinstate the case. In support of the motion to set aside , Jones’s counsel
swore under oath that he never receive d a copy of the Notice to Dism iss for Lack of Prosecution. Additionally, the record reflects that pretrial steps were taken in the year preceding June 6, 2015. For instance, Jones responded to Pinter’s written discovery in August 2014. Jones also propounded written discovery in Febr uary 2015, which Pinter answered on June 23, 2015, less than 30 days after the trial court entered its Notice of Dismissal for Lack of
Prosecution. In response, the trial court set aside its CR 77.02 dismissal and
reinstated the case. The prior dismissa l under CR 77.02 cannot be relied upon as evidence of lack of prosecution or a dilatory history in this matter. The record indicates
that Jones failed to receive the Notice of Dismissal for Lack of Prosecution and
reflects that Jones was prosecuting the a ction in the year preceding June 6, 2015. As such, the prior dismissal for lack of prosecution under CR 77.02 was entered in error and cannot provide support for the subsequent dismissal for lack of prosecution under CR 41.02

. That leaves two events sup porting the trial court’s conclusion that the record reflects a history of dilatoriness

— failure to appear for the first mediation
and failure to submit to the IME. It is undisputed that Jones failed to appear
for the first scheduled mediation and the IME without prior notice to Pinter or11

the court . No doubt, this conduct reflects a concerning disregard for pretrial deadlines and obligations on Jones’ s part

. Still, in considering the totality of the circumstances, these two discrete incidents of pretrial misconduct must be weighed against the substantial pretrial steps taken by Jones to prosecute this matter and prepare for trial

. Among other actions, Jones propounded and responded to written discovery, participated in depositions, responded to a motion f or summary judgment, litigated a two

- year interlocutory appeal related to a motion for summary judgment , and complied with pretrial disclosure obligations. And, as previously mentioned, while Jones missed the first mediation, he participate d
in mediation before the pretrial conference , just a few months before the CR 41.02(1) dismissal

. Notwithstanding Jones’ s failures to appear for the first mediation and IME, the procedural history of the case demonstrates that substantial steps were taken to complete d iscovery and prepare for trial. Ultimately , it was unreasonable to conclude that there was a history of
dilatoriness o n these facts. As a result, the first facto r weighs heavily against
dismissal. Of course, some of the Ward factors weigh in favor o f dismissal. Take, for instance, the extent of Jones’ s personal responsibility. T he trial court found that Jones was personally responsible for missing the mediation and IME. And
we will not disturb that conclusion . While Jones presented evidence to th e contrary, the trial court reasonably concluded that Jones bore personal responsibility for his absences.12

The court also concluded that Pinter was prejudiced by Jones’s failure to attend the IME because “the additional passage of time after the missed I ME [was] particularly significant given that Jones’ alleged injury occurred almost seven years ago, thereby raising concerns of fading memories and potential intervening causes of alleged physical issues.” Of course, passage of time can
result in spoliati on of evidence , especially where, as here, an injury or event occurred several years in the past . Still, this factor weighs against dismissal
because Jones is not primarily responsible for the bulk of the passage of time in this case. Again, an interlocu tory appeal of the trial court’s summary judgment denial resulted in an approximate two

- year stay in this litigation. Comparatively, Jones’s pretrial misconduct dela y ed this case for a few months prior to the trial court’s dismissal

. Lastly , t he court also considered impos ing less

- severe sanctions. The
trial court concluded that less

- severe sanctions were unwarranted because
less

- severe sanctions had already been imposed due to Jones’s failure to attend
the first mediation. 22 As a result, the trial court fairly concluded that this factor weighed in favor of dismissal.

22 The trial court also found that less

- severe sanctions were unwarranted , in part, beca use “Pinter contend[ed] Jones [was] unlikely to reimburse the mediation and IME fees incurred by Pinter when Jones failed to appear and Jones offer[ed] no argument to the contrary.” The parties dispute whether Jones paid the mediation fee as required by the t rial court’s order. In his brief to this Court, Jones contends that he complied completely with the trial court’s order imposing sanctions for missing the initial mediation. Pinter argues that the mediation fees were not paid. As the Court of Appeals no ted, the record is inconclusive on whether Jones paid Pinter’s portion of the mediation fees for the missed mediation. As such, since the record is inconclusive on this point, we decline to consider this evidence as part of our analysis of the totality of the circumstances.13

Even so, we must consider the totality of the circumstances when reviewing a dismissal under CR 41.02(1). 23 The Ward factors provide helpful guidelines in reviewing the totalit y of the circumstances but are neither dispositive no r required to be applied formulaically. 24
T he trial court’s dismissal fails to account for the extreme nature of a dismissal with prejudice under CR 41.02 (1)

. Here, the t wo discrete incidents of pretr ial misconduct

— missing the first mediation and failing to appear for the
IME

— do not constitute failure to prosecute where one of the incidents of misconduct was subsequently cured and the totality of the circumstances reflect substantial steps toward compl etion of discovery and preparation for
trial on the plaintiff’s part

. Both this Court and the Court of Appeals have upheld dismissals for failure to prosecute for repeated pretrial mis conduct or after long delays in litigation. 25 Of course, the length of delay is not dispositive.
U nder appropriate circumstances, dismissal under CR 41.02 (1) may be warranted based on failure to prosecute resulting from egregious pretrial
mis conduct or numerous delays over a short period. But here, the record reflects two discrete incidents of pretrial misconduct occurring close in time to one another and delaying the litigation by a period of months, not years.

23 Jaroszewski , 297 S.W.3d at 34

– 3 6

. 24 See id.

25 See id

. at 30 (upholding dismissal for failure to prosecute where trial court found a lack of sufficient effort to prosecute the case for four years without reasonable explanation); see also Nolan v. N eeley

- Thoms , 290 S.W.3d 89, 90, 92

– 93 (Ky. App. 2009) (upholding dismissal under CR 41.02 based on numerous delays over a 2.5

- year period )

.14

Without more, the trial court’s holding that dismissal with prejudice was warranted for want of pr osecution was unreasonable and unsupported by sound legal principles. In sum, o ur decision is not an endorsement for excusing lackadaisical pretrial cooperation or preparation. Parties who cavalierly disregard deadlines or their obligation of good fa ith participation in the pretrial process do so at their own peril. In the present case, although the record before this Court does not support affirmance of the extreme sanction of dismissal with prejudice,
fu rther misconduct or dilatory action by Jones may merit the imposition of severe sanctions, including dismissal with prejudice

. IV. CONCLUSION
A fter carefully scrutinizing th e record , we find that the trial court abused its discretion by dismissing this action with prejudice under CR 41.02 (1)

. As a result, we reverse the Court of Appeals’ decision and remand to the Jefferson Circuit Court for further proceedings consistent with this opinion. On remand, we express no opinion on the imposition of less

- severe sanctions for Jones’s failure to app ear for the IME. All sitting. All concur.15

COUNSEL FOR APPELLANT : Patrick S. McElhone

COUNSEL FOR APPELLEE : Valerie W. Herbert Jennifer A. Peterson Travis Herbert & Stempien, PLLC