RENDERED: AUGUST 4, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1229-MR

PAUL PSIONES APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE A.C. MCKAY CHAUVIN, JUDGE

ACTION NO. 20-CI-004663

CHRISTINA BELL;

MARK E. BARKER; AND

AA AUTO REPAIR APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; GOODWINE AND TAYLOR, 

JUDGES.

GOODWINE, JUDGE: Paul Psiones appeals a September 21, 2022, order of the 

Jefferson Circuit Court dismissing his negligence claims against the abovecaptioned appellees due to his failure to prosecute; and an October 3, 2022, order 

denying his motion to vacate. Upon review, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

On August 11, 2020, Paul Psiones filed suit in Jefferson Circuit Court 

against Christina Bell, AA Auto Repair (“AA Auto”), and “Mark Baker,” claiming 

these individuals were jointly and severally liable for injuries he had sustained in a

motor vehicle accident. In sum, Psiones alleged that on or about April 2, 2020, a 

truck bearing AA Auto’s logo collided with the vehicle he was driving; that Bell

was liable for her negligence in operating the truck and causing his resulting 

injuries; and that the owner of the truck and/or the individual who had provided it 

to Bell – allegedly AA Auto and/or “Mark Baker” – were jointly and severally 

liable for negligent entrustment. Later that month, AA Auto filed an answer that 

generally denied liability and specifically denied ownership of the truck and any 

relationship with “Mark Baker.” Bell was served but did not answer. As for 

“Mark Baker,” Psiones was permitted to amend his complaint on December 9, 

2020, to reflect that this individual was actually “Mark E. Barker.”

On October 26, 2020, Psiones moved for default judgment against 

Bell and a hearing on damages. The circuit court entered an order providing Bell 

until December 14, 2020, to file a response. After that, no other activity of record 

occurred regarding Bell. Psiones did not renew his motion for default judgment 

after December 14, 2020, nor otherwise inform the circuit court that Bell still had 

not filed a responsive pleading.
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On February 17, 2021, Psiones moved to appoint a special bailiff to 

serve Barker, whom he alleged was avoiding service. His motion was granted on 

March 5, 2021. After that, no other activity of record occurred regarding Barker, 

and Barker remained unserved. Although AA Auto had filed an answer, Psiones 

also took no steps toward prosecuting his action against AA Auto. 

On March 10, 2022, Psiones’ continued inaction regarding his case

prompted the circuit court to notify him, pursuant to Kentucky Rule of Civil 

Procedure (CR) 77.02(2),1that his suit would be dismissed in 30 days for want of 

prosecution unless he filed a pleading and accompanying affidavit showing good 

cause why no steps had been taken of record to further his case for more than one 

year. Psiones filed a timely response to the circuit court’s notice but offered little 

explanation for his inaction over the prior year. In the relevant part, his March 14, 

2021, responsive pleading stated:

Plaintiff respectfully requests the Court to not enter an 

Order dismissing the above claim. Plaintiff’s counsel 

states that a lawsuit was filed on August 11, 2020. The 

Plaintiff is not currently seeking medical treatment for 

the injuries sustained on April 2, 2020. Counsel has a 

Special Bailiff appointed to serve Mark Barker. 

1

In full, CR 77.02(2) provides:

At least once each year trial courts shall review all pending actions on their 

dockets. Notice shall be given to each attorney of record of every case in which 

no pretrial step has been taken within the last year, that the case will be dismissed 

in thirty days for want of prosecution except for good cause shown. The court 

shall enter an order dismissing without prejudice each case in which no answer or 

an insufficient answer to the notice is made.
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Defendant, Christina Bell, has been served (9/15/2020); 

Defendant, AA Auto Repair, has been served 

(8/20/2020); however, no responsive pleadings have been 

filed.[2] It is believed Mark Barker is avoiding service. 

As such it is respectfully requested that this matter 

remain on the Court’s docket.

The affidavit that accompanied Psiones’ response, sworn out by his 

attorney, also did not explain Psiones’ inaction over the prior year beyond 

indicating that Mark Barker could not be located and served. It incorrectly 

represented that “No Defendants have been served or filed responsive pleading

[sic].” (Emphasis added.) Furthermore, it averred that “The depositions of the 

parties were taken on July 26, 2012” – an averment that is contrary to all 

indications of the record and which appears to have been accidentally included in 

the affidavit, considering that Psiones initiated this action in 2020.

On September 21, 2022, after nothing else of record demonstrated any 

further progress had occurred in this matter, the circuit court dismissed Psiones’ 

action without prejudice pursuant CR 77.02. In the relevant part of its order to that 

effect, the circuit court explained:

In keeping with the Court’s Opinion and Order of March 

18, 2022, the aforementioned notice was to be held in 

abeyance for a period of sixty days. No pretrial steps of 

record have taken place since the Court’s aforementioned 

Opinion and Order.

2 Psiones’ representation that “no responsive pleadings have been filed” is incorrect. As 

indicated, AA Auto filed a timely answer.
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. . .

THE COURT FINDS that no sufficient cause has been 

shown as to why no pretrial steps have been taken of 

record by the Plaintiff in more than one (1) year.

Psiones subsequently moved the circuit court pursuant to CR 59 to 

vacate its order, offering three contentions in support. First, he argued that the 

“Opinion and Order of March 18, 2022” referenced in the circuit court’s 

September 21, 2022, order was never effective because it was never entered, and

that he was never aware of it, and it was consequently unfair to dismiss his action 

on that basis. Second, he argued he had been diligently pursuing this case because 

he had attempted to effectuate service upon Barker by mail on at least four 

occasions since amending his complaint; and that he had also attempted to 

effectuate service upon Barker by resorting to a special bailiff. In that latter vein, 

he appended a series of emails his counsel had received from the special bailiff that 

detailed the special bailiff’s sporadic attempts at service and lack of success 

between May 2021 and March 2022.3 Third, Psiones noted that he had moved for 

default judgment against Bell in 2020, and he faulted the circuit court for 

3 The emails from the special bailiff, Tija Jackson, were respectively dated May 11, 2021; 

November 16, 2021; December 16, 2021; March 14, 2022. Jackson did not specify the number 

of attempts she made to serve Barker during this time. The final email from Jackson, dated 

March 14, 2022, indicates she agreed to accept $180 for a “stake-out” of Barker’s home.
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dismissing his suit before ruling on his pending motion. The circuit court 

subsequently denied Psiones’ motion to vacate. This appeal followed.

STANDARD OF REVIEW

CR 77.02 is essentially a “housekeeping rule,” to expedite removing

stale cases from a court’s docket. Honeycutt v. Norfolk Southern Ry. Co., 336 

S.W.3d 133, 135 (Ky. App. 2011). Trial courts have wide discretion in dismissing 

cases under CR 77.02. Id. And we review dismissals pursuant thereto under the 

abuse of discretion standard. Wildcat Prop. Mgmt., LLC v. Reuss, 302 S.W.3d 89 

(Ky. App. 2009). Additionally, because this appeal arises from denying a CR 

59.05 motion, our review as an appellate court is also under the abuse of discretion 

standard. Bowling v. Ky. Dep’t of Corr., 301 S.W.3d 478 (Ky. 2009). A trial court 

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

unsupported by sound legal principles.” Reuss, 302 S.W.3d at 93 (quoting Sexton 

v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004)).

ANALYSIS

Before reaching Psiones’ arguments, we must address the appellees’

failure to file an appellee brief. Kentucky Rule of Appellate Procedure (RAP) 

31(H)(3) provides penalties for an appellee’s failure to file a brief:

If the appellee’s brief has not been filed within the time 

allowed, the court may: (a) accept the appellant’s statement 

of the facts and issues as correct; (b) reverse the judgment if 

appellant’s brief reasonably appears to sustain such action; 
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or (c) regard the appellee’s failure as a confession of error 

and reverse the judgment without considering the merits of 

the case.

Though we can side with Psiones procedurally due to the failure of the 

appellees to file briefs, we decline to do so because Psiones’ arguments fail on the 

merits. On appeal, Psiones begins by reasserting the three arguments he advanced 

below in his CR 59 motion. We will address those arguments in turn. First, 

Psiones is correct that the circuit court never entered the “Opinion and Order of 

March 18, 2022” referenced in its dispositive order of September 21, 2022, and 

that the “Opinion and Order of March 18, 2022” was accordingly never effective. 

See, e.g., Murrell v. City of Hurstbourne Acres, 401 S.W.2d 60, 61 (Ky. 1966)

(explaining court orders are only effective if they are in writing, signed by the 

judge, and entered into the official record by the circuit clerk). 

However, this point does not indicate that the circuit court’s decision 

to dismiss Psiones’ action was erroneous or otherwise caused Psiones undue 

prejudice. Psiones appears to be complaining that the circuit court penalized him 

for his failure to comply with an order that he never knew about, but the ultimate 

result that the circuit court achieved in this matter was consistent with CR 

77.02(2). Pursuant to that civil rule, the circuit court was authorized to dismiss his 

action if, within thirty days of its notice, he failed to show good cause. Had the 

circuit court’s March 18, 2022, order been effective, it would have allowed Psiones 
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an additional 60 days to demonstrate good cause for not dismissing his case –

leeway not otherwise contemplated by CR 77.02(2). Because that order was not 

entered and because Psiones was not aware of it, Psiones accordingly had no 

reason to expect that he would be granted more than the thirty days permitted by 

the civil rule to demonstrate good cause; or that the circuit court would consider 

anything beyond the pleading and affidavit that he filed on March 14, 2022 – the 

only additional step Psiones took of record between the date of the circuit court’s 

notice and its dispositive judgment of September 21, 2022 – in determining 

whether to dismiss his action for want of prosecution. At most, the circuit court’s 

reliance upon its un-entered March 18, 2022, Opinion and Order, as outlined in its 

September 21, 2022 order, resulted in harmless error.

As for his second argument, Psiones notes that our Supreme Court has 

held that off-the-record pretrial steps, such as settlement negotiations, can qualify 

as adequate prosecution of a case for purposes of a good cause showing under CR 

77.02(2). See, e.g., Bohannon v. Rutland, 616 S.W.2d 46 (Ky. 1981). However, 

he cites no authority – and we have found none – indicating that almost two years 

of sporadic and unsuccessful attempts at effectuating service upon an allegedly 

evasive defendant qualifies as adequate prosecution within the meaning of CR 

77.02(2). Nor does Psiones explain why, during that time, he took no steps toward 
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resolving his claims against the other two defendants he did manage to serve, i.e., 

Bell and AA Auto. Accordingly, this is not a point of error, either.

As for his third argument, Psiones notes that he had moved for default 

judgment against Bell in 2020, and he takes issue with the circuit court for 

dismissing his suit before ruling on his pending motion. However, Psiones did not 

appropriately preserve this argument below, as he only raised it in his CR 59 

motion after the circuit court had already dismissed his action. See, e.g., Hopkins 

v. Ratliff, 957 S.W.2d 300, 301 (Ky. App. 1997) (“A party cannot invoke [CR 

59.05] to raise arguments and introduce evidence that could and should have been 

presented during the proceedings before entry of the judgment.” (internal 

quotation marks and citation omitted)); see also Felts v. Edwards, 181 Ky. 287, 

204 S.W. 145, 149 (1918) (The appellants “did not choose to call the motions to 

the attention of the court or to cause any ruling to be had upon them, and hence 

must be considered to have waived any objections on that ground.”). Apart from 

that, Psiones cites no rule of law that prohibited the circuit court’s action. To the 

contrary, the circuit court proceeded, as it was entitled to do under the plain 

language of CR 77.02(2), to dismiss Psiones’ case due to his failure to continue 

prosecuting his claim.

Lastly, Psiones raises new arguments. He contends the circuit court 

committed palpable error by failing to apply the six factors outlined in Ward v. 
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Housman, 809 S.W.2d 717, 719 (Ky. App. 1991),4to “consider the totality of the 

circumstances” regarding its decision to dismiss for want of prosecution; and he 

asserts that the circuit court’s “without prejudice” dismissal was unduly harsh, and 

effectively a “with prejudice” dismissal because the operative limitations period 

has expired regarding his negligence claims. However, the Ward “considerations 

[do not] necessarily precede a dismissal without prejudice under CR 77.02.” 

Manning v. Wilkinson, 264 S.W.3d 620, 624 (Ky. App. 2007). In other words, 

because the court was fulfilling its housekeeping duties and dismissed the case 

without prejudice, it was not required to consider the Ward factors. 

Furthermore, “[l]imitations statutes are by nature arbitrary and so 

sometimes seem to operate harshly. This harshness, of course, does not authorize 

courts to disregard the strict duties such statutes impose.” Reese v. General 

American Door Co., 6 S.W.3d 380, 383 (Ky. App. 1998). Nor, for that matter, did 

that harshness authorize the circuit court to disregard its responsibility under CR 

77.02(2) to preserve the judicial process by dismissing this matter. Psiones had 

over a year to move his case along. He failed to do so. The circuit court did not 

accept the excuses he offered for his failure. And, considering what is set forth 

4 The Ward factors, which relate to CR 41.02 dismissals for lack of prosecution, require 

consideration of: “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.” Ward, 809 S.W.2d at 719 

(citation omitted).
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above, we find no abuse of the circuit court’s wide discretion in that regard. The 

circuit court’s action was consistent with CR 77.02(2) and our jurisprudence. 

Therefore, the circuit court did not err, palpably or otherwise.

CONCLUSION

Based on the foregoing, we AFFIRM.

ALL CONCUR.

BRIEF FOR APPELLANT:

Steven R. Romines

Lawrence I. Young

Louisville, Kentucky

NO BRIEF FILED FOR 

APPELLEES.