RENDERED: MARCH 22, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1072-MR

JIM MUNCIE AND CINDY MUNCIE APPELLANTS 

v. 

APPEAL FROM OLDHAM CIRCUIT COURT

HONORABLE JERRY D. CROSBY, II, JUDGE

ACTION NO. 13-CI-00688

SHIELD ENVIRONMENTAL 

ASSOCIATES, INC. AND PATRICIA 

WIESEMANN APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, CALDWELL, AND CETRULO, JUDGES.

ACREE, JUDGE: Appellants, Jim and Cindy Muncie, appeal the Oldham Circuit 

Court’s August 11, 2022 order dismissing their lawsuit for failure to prosecute 

pursuant to CR1 41.02. The circuit court did so after four years of inaction 

following remand of this case from the Kentucky Supreme Court. We conclude 

1 Kentucky Rules of Civil Procedure. 
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the circuit court did not abuse its discretion in dismissing the lawsuit and, 

therefore, we affirm.

BACKGROUND

This case, which now makes its second appearance before this Court, 

has a factual and procedural history which is greater than is necessary to resolve 

the narrow issue presented in this appeal; namely, whether the circuit court erred 

by dismissing Appellants’ lawsuit for failure to prosecute upon remand of their 

case from the Kentucky Supreme Court. For the curious, a fuller account of the 

underlying history of this dispute may be found in Muncie v. Wiesemann, 548 

S.W.3d 877 (Ky. 2018). The background relevant to this appeal is as follows.

In 2010, 1,000 gallons of home heating oil leaked from an 

underground tank on property owned by the Martha Magel estate. Muncie, 548 

S.W.3d at 877-78. The oil flowed downhill and flooded Appellants’ residence, 

causing massive damage. Id. at 878. Appellee Patricia Wiesemann managed the 

Magel estate as testatrix. Id. Appellee Shield Environmental Associates, Inc. 

(Shield Environmental) performed work on a sump pump at Appellants’ residence; 

the sump pump subsequently malfunctioned. Brief for Appellee Shield 

Environmental at 1.

Eventually, Appellants partially settled a resultant federal lawsuit and 

$60,000 was allocated to Appellants to remedy actual damages to their property. 
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Muncie, 548 S.W.3d at 878. However, the agreement reserved some of 

Appellants’ claims, including “claims by [Appellants] asserting the diminution of 

value of their real estate due to the stigma resulting from the contamination[.]” Id. 

Appellants filed a state claim in the Oldham Circuit Court, and the 

circuit court subsequently granted summary judgment in Appellees’ favor. Id. 

The circuit court reasoned that “while stigma damages may be considered in the 

measure of actual damages for remediation, [Appellants] could not seek both the 

costs of remediation (i.e., the repair costs) and the diminution in value due to 

stigma damages” and, therefore, Appellants had no further claim. Id. This Court 

agreed, reasoning that “when there is actual damage to real property, stigma or 

reputation damages may be included as a measure of damages . . . [however,] there 

is not an independent right of recovery available for such damages.” Id. at 878-79 

(modification original, internal quotation marks omitted). 

The Supreme Court disagreed, holding that “if remediation damages 

are settled but a claim on the stigma damages resulting from the actual injury is 

reserved, then the injured party may be awarded stigma damages regardless of the 

partial settlement on remediation.” Id. at 880. Accordingly, the Supreme Court 

reversed and remanded for further proceedings to determine whether Appellants 

had been compensated for diminution of value resulting from any stigma 
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associated with the oil spill. Id. at 881. The Supreme Court entered its Order of 

Remand on July 12, 2018.

Appellants took no action on their case upon its return to the circuit 

court. Appellees each filed a motion to dismiss for lack of prosecution under CR

41.02(1) in June of 2022 – nearly four years after the Supreme Court remanded the 

case. Appellants filed a response on July 15, stating personal difficulties 

accounted for their inactivity in the lawsuit. More specifically, they stated that 

Appellant Cindy Muncie’s mother was diagnosed with Alzheimer’s Disease, and 

that Cindy alone supported her mother personally and financially. Cindy’s mother 

died in 2019. Appellants’ attorney’s younger brother died suddenly later that year. 

Cindy received a uterine cancer diagnosis in 2019. And Appellants noted the 

economic and administrative challenges arising from the COVID-19 pandemic 

made it difficult to pursue their lawsuit.

The circuit court granted the motions in an order entered August 11, 

2022; though it sympathized with the losses of Appellants and their attorney, “the 

effects of these events do not mean they were unable to do anything.” The court 

concluded Appellants “failed to offer any substantial reason to justify such a long 

delay in proceeding with this case.” Appellants appealed, bringing this Sisyphean

matter before this Court a second time.
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ANALYSIS

“For failure of the plaintiff to prosecute or 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.” CR 41.02(1). Unless the court specifies in its order, a 

dismissal “other than a dismissal for lack of jurisdiction, for improper venue, for 

want of prosecution under Rule 77.02(2), or for failure to join a party under Rule 

19, operates as an adjudication upon the merits.” CR 41.02(3). A dismissal under 

Rule 41.02 is distinct from a dismissal under Rule 77.02, a “housekeeping rule” 

that requires courts to review their dockets annually and dismiss without prejudice 

those cases wherein “no pretrial step has been taken within the last year[.]” CR 

77.02(2); Wildcat Prop. Mgmt., LLC v. Reuss, 302 S.W.3d 89, 92 (Ky. App. 2009). 

Conversely, a dismissal under Rule 41.02 is with prejudice. Wildcat Prop. Mgmt., 

302 S.W.3d at 92. 

“Dismissals for lack of prosecution pursuant to CR 41.02 and CR 

77.02 are reviewed under an abuse of discretion standard.” Toler v. Rapid

American, 190 S.W.3d 348, 351 (Ky. App. 2006) (citations omitted). A trial court 

abuses its discretion when its decision is “arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles.” Sexton v. Sexton, 125 S.W.3d 258, 272 

(Ky. 2004) (citations omitted). Additionally, “the involuntary dismissal of a case 

with prejudice ‘should be resorted to only in the most extreme cases,’ and a 
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reviewing court must ‘carefully scrutinize the trial court’s exercise in doing so.’” 

Wildcat Prop. Mgmt., 302 S.W.3d at 93 (quoting Polk v. Wimsatt, 689 S.W.2d 363, 

364-65 (Ky. App. 1985)). 

As the circuit court did in its order, trial courts may consider the six 

factors supplied by Ward v. Housman to determine whether dismissal with 

prejudice pursuant to CR 41.02 is appropriate. 809 S.W.2d 717, 719 (Ky. App. 

1991) (citations omitted). These 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.” Id. However, because motions to dismiss 

for lack of prosecution are fact-specific inquiries, the “propriety of the trial court’s 

ruling does not necessarily hinge on its discussing the six particular factors listed 

in Ward.” Jaroszewski v. Flege, 297 S.W.3d 24, 33 (Ky. 2009). Instead, “the trial 

court must assess all factors relevant to that particular case, which might include 

some or all factors listed in Ward and may include other factors.” Id. 

Though it was not required to, the circuit court considered each of the 

six Ward factors in reaching its conclusion. As to the first – the extent of 

Appellants’ personal responsibility – the court determined the deaths of Cindy 

Muncie’s mother and Appellants’ attorney’s brother did not explain the complete 

lack of action on the case since the Supreme Court remanded it. As to the COVID-
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19 emergency, the circuit court noted it had been proceeding remotely in its civil 

matters since the time in-person proceedings were suspended. The circuit court 

determined the history of dilatoriness in this matter was substantial, noting 

involuntary dismissals for lack of prosecution had been upheld for far shorter 

delays than the four-year delay in the instant case. The court determined 

Appellants’ attorney’s conduct was willful, as neither circumstances in the 

attorney’s personal life nor the COVID-19 pandemic explained four years of 

inactivity. 

The circuit court determined the merits of Appellants’ claim were

unclear, but observed the Appellants would have difficulty proving diminution in 

value as a result of the stigma resulting from the oil cleanup considering so much 

time had passed since the spill in 2010. Regarding the fifth Ward factor, the court 

believed Appellees would be prejudiced by being forced to participate in a lawsuit 

that has lasted for over ten years with no indication the case was moving toward 

final resolution. The court determined dismissal to be the only appropriate 

sanction, as “anything less than dismissal at this point would frustrate the purpose 

of CR 41.02 by allowing lawsuits to go on for years despite the lack of progress 

being made.” And it noted that, not only did Appellants take no steps to advance 

their case by filing motions or otherwise apprising the court of the status of their 
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case and requesting forbearance, Appellants never informed opposing counsel why 

they were not pursuing their lawsuit.

We detect no abuse of the circuit court’s discretion in its decision to 

dismiss this action with prejudice. No aspect of its application of the Ward factors 

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

circuit court acted within the bounds of its broad discretion in granting Appellees’ 

motions to dismiss for lack of prosecution, and, accordingly, we must affirm its 

ruling.

CONCLUSION

Having carefully scrutinized the circuit court’s ruling as required, we 

affirm the Oldham Circuit Court’s August 11, 2022 order granting Appellees’ 

motions to dismiss pursuant to CR 41.02.

ALL CONCUR.
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BRIEFS FOR APPELLANT:

Joseph E. Conley, Jr. 

Edgewood, Kentucky

BRIEF FOR APPELLEE SHIELD 

ENVIRONMENTAL ASSOCIATES, 

INC.:

Mark E. Hammond

John F. Shockley

Louisville, Kentucky

BRIEF FOR APPELLEE PATRICIA 

WIESEMANN:

Kenneth A. Bohnert

Bradley R. Palmer

Louisville, Kentucky