RENDERED: MARCH 24, 2022

TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0138-DG

AARON 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 

courts 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 CR1

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, in 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 June 6, 2014, and June 6, 2015. The 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 Court of Appeals affirmed denial of 

summary judgment. This Court denied Pinter’s motion for discretionary review 

in December 2018. Later, Jones disclosed expert witnesses, identified lay 

witnesses, and noticed alleged damages. Pinter deposed Jones for a second 

time. 

The trial court entered a pretrial order directing 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 trial court granted the motion and 

required Jones to pay Pinter’s share of expenses related to the initial 
3

mediation. Jones appeared for a rescheduled mediation on October 30, 2019. 

Mediation failed to resolve the parties’ disputes.

Pinter filed a notice for 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, Pinter moved for involuntary dismissal under CR 41.02(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 found 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 Pinter’s attempt to prepare his case.”

The Court of Appeals 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 Jaroszewski 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 three 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 court.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 is subject to an 

important limitation. Our courts have long recognized that CR 41.02(1) 

dismissal with prejudice is an “extreme remedy.”10 As a result, we must 

“carefully scrutinize the trial court's exercise of discretion” when reviewing

dismissal with prejudice under CR 41.02(1).

11

 

4 CR 41.02(1) (“For 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.”).

5 Id.

6 Id. 

7 Id.

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

9 See id. 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 courts 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

The trial court dismissed this 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. But, on this record, to the extent Jones violated any court orders, those 

violations were insufficient to warrant the extreme remedy of dismissal with 

prejudice. 

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

The 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 

mediation 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 violation 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 or 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 The 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 mediation.” 

It is not clear that a violation of local rules justifies 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 these rules.” It 

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 result 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 a 
7

missed mediation constituted a violation of a court order that warranted 

dismissal under 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, Pinter filed a Notice of CR 35 Examination17

with the trial court. The parties agreed to set the 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 court’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 party, 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 

expert, 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, 

and 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 examination 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 examination. 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 order an examination. Even if Jones’s conduct violated 

common civil practice and procedure in Kentucky courts, it 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 have attended the IME, he did not

technically violate any order of the court by failing to do 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 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).

19 Ultimately, 

considering the totality of the circumstances, Jones’s misconduct was

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 court’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 failure 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 resolve 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 pointed 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 attend 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 trial court’s reasoning below.

First, the 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 and 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 received a copy of the Notice to Dismiss 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 February 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 dismissal 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 action 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 supporting 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 or 
11

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 for 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 participated

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 discovery and prepare for trial. 

Ultimately, it was unreasonable to conclude that there was a history of 

dilatoriness on these facts. As a result, the first factor weighs heavily against 

dismissal. 

Of course, some of the Ward factors weigh in favor of dismissal. Take, 

for instance, the extent of Jones’s personal responsibility. The 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 the 

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 IME 

[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 spoliation 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 interlocutory appeal of the trial court’s summary 

judgment denial resulted in an approximate two-year stay in this litigation. 

Comparatively, Jones’s pretrial misconduct delayed this case for a few months

prior to the trial court’s dismissal. 

Lastly, the court also considered imposing 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, because “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 trial 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 noted, 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 totality of the circumstances but are neither 

dispositive nor required to be applied formulaically.24 

The trial court’s dismissal fails to account for the extreme nature of a 

dismissal with prejudice under CR 41.02(1). Here, the two discrete incidents of 

pretrial 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 completion 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 misconduct or 

after long delays in litigation.25 Of course, the length of delay is not dispositive. 

Under appropriate circumstances, dismissal under CR 41.02(1) may be 

warranted based on failure to prosecute resulting from egregious pretrial 

misconduct 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 34–36.

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. Neeley-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 prosecution was unreasonable and unsupported by 

sound legal principles. 

In sum, our decision is not an endorsement for excusing lackadaisical 

pretrial cooperation or preparation. Parties who cavalierly disregard deadlines

or their obligation of good faith 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,

further misconduct or dilatory action by Jones may merit the imposition of 

severe sanctions, including dismissal with prejudice. 

IV. CONCLUSION

After carefully scrutinizing the 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 appear 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