Date: 12-15-2003

Case Style: Jerry D. Hall and Dean B. Hall v. Clarence B. Creech, et al.

Case Number: 2001-CA-000529-MR

Judge: McAnulty

Court: Commonwealth of Kentucky Court of Appeals

Plaintiff's Attorney: Bean B. Hall and Jerry D. Hall, pro so

Defendant's Attorney:

Cahterine C. Hadden of Hanbury, Williams, Hall & Altherow, P.S.C., Ashland, Kentucky

Description:

This is a pro se appeal in an estate settlement case of the Boyd Circuit Court's order dismissing Appellants' complaint pursuant to CR 41.02. Because we are convinced the trial court did not abuse its discretion in dismissing the underlying action, we affirm.

Appellants, Jerry Hall and Dean Hall (the Halls), are the sons of Ruth Hall Creech who died testate on July 11, 1993, leaving a surviving spouse, Appellee, Clarence B. Creech (C.B. Creech). In her Will, Ruth Hall Creech appointed her sons coexecutors of her estate and left them the residue of her estate. Upon Ruth Hall Creech's death, C.B. Creech became a co-owner with the Halls of certain pieces of real property that he and his wife held as tenants in common.

C.B. Creech renounced the Will in Boyd District Court. Jerry and Dean Hall disputed the renunciation, but the court upheld it as valid. Eventually in 1996, the district court removed the Halls as co-executors.

Creech filed Chapter 11 bankruptcy in January 1997. He listed his interests in the co-owned properties on the bankruptcy petition, and the properties were ultimately administered and sold under an approved plan of reorganization. Although settlement of the personal estate in Boyd District Court had not been finalized, on July 16, 1999, Jerry and Dean Hall filed the underlying pro se complaint in this case which they styled "Petition to Settle the Estate of Ruth Hall Creech and Adversary Proceeding" (the Petition). The Petition set forth the following claims: (1) embezzlement of rental escrow account; (2) embezzlement of rental account funds; (3) embezzlement of heirs assets; (4) fraudulent misrepresentation; (5), (6), (7) breach of fiduciary duty pertaining to Kentucky properties; (8) breach of fiduciary duty to general partners Dean and Jerry Hall; (9) denial of reasonable and proper funds; (10) fraudulent conversion of vehicles; (11) abuse of process resulting in wrongful civil proceeding; (12) infliction of emotional distress; and (13) failure to repay expenses and for repairs.

On August 3, 1999, C.B. Creech and Cindy Creech Miller, through their attorney, entered a special appearance for the purpose of making a motion to dismiss the Petition on various procedural and substantive grounds and for attorneys' fees and costs. On April 27, 2000, the Boyd Circuit Court ruled on the motion to dismiss. The court dismissed the first two counts relating to the embezzlement of accounts because C.B. and Ruth Hall Creech held the accounts jointly with the right of survivorship. The court did not dismiss the remaining eleven counts; however, it gave Jerry and Dean Hall 30 days to file a motion to file an amended petition to correct the fact that the Complaint failed to name any defendants in the caption. Accordingly, the court ordered as follows:

2. The Plaintiffs [Jerry and Dean Hall] will file a Motion to File Amended Petition within 30 days from the date of entry of this Order. An Amended Petition must be attached to the Motion and must name all Defendants in this action. If no Motion is filed within 30 days, the Court will dismiss this action pursuant to CR 10.01.

After filing a motion to vacate the court's judgment dismissing the two embezzlement counts of the Complaint and a motion for findings of more definite facts and conclusions of law, the Halls filed an amended petition (not a motion to file an amended petition attaching the amended petition) on May 26, 2000. The amended petition set out a total of twenty-five counts, twelve more than the Petition. Also on May 26, 2000, the Halls filed a notice of appeal of the court's dismissal of the two embezzlement counts, which this Court later dismissed as interlocutory.

As to the Hall's pending motions to vacate and for additional findings and conclusions, in an order dated May 25, 2000, the court gave Appellees until June 16, 2000, to respond to the motions. The court further ordered that the Halls shall have 20 days thereafter to file affidavits in support of their motions, at which point the Appellees' motion to dismiss would be considered a motion for summary judgment under CR 56. On November 16, 2000, Appellees made a motion to dismiss the Petition and amended petition and for a summary judgment dismissing the Petition. After the court held a status conference to hear the various motions presently before it, it granted both parties 30 days from December 8, 2000, to provide memoranda relative to the pending issues raised by Appellees' motion to dismiss or alternatively, for summary judgment. On January 8, 2001, the Halls and Appellees filed the requisite memoranda. In addition, the Halls filed a motion for findings of fact and conclusions of law. Essentially, Appellees asserted that the Halls failed to follow the orders of the court and failed to abide by the rules of civil procedure, specifically as to proper amendment of a complaint and proper service. Acknowledging that pro se litigants are to be given some latitude, the court ultimately dismissed the Petition in its entirety because the Halls failed to follow the rules of civil procedure and court orders. The Halls appealed. On appeal, the Halls raise at least twenty issues, some pertaining to the underlying action in this case and others pertaining to the proceedings in bankruptcy court and the district court probate case. Although couched in terms of various jurisdictional and constitutional law challenges, the Halls basically argue that they are pro se litigants whose claims should not be cut off because they cannot follow form or abide by frivolous rules which govern civil procedure. As pro se plaintiffs, their pleadings and motions are to be held to less stringent standards than formal pleadings drafted by lawyers.

Appellees argue that the sole issue on appeal is whether the circuit court abused its discretion in dismissing the Halls' Petition pursuant to CR 41.02 for failing to follow the rules of civil procedure as well as court orders. We agree. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 581 (2000). In pertinent part, CR 41.02(1) is as follows: "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." In this case, the Halls demonstrated total disregard for the rules of civil procedure.

Dismissal pursuant to CR 41.02 for failure to comply with the rules or any order of the court is a harsh remedy as it operates as an adjudication upon the merits; however, under the circumstances of this case, such dismissal was warranted. See CR 41.02(3) ("Unless the court in its order for dismissal otherwise specifies, a dismissal under this Rule . . . operates as an adjudication upon the merits.") "The purpose of our civil rules is to provide a one form of action system in which litigants who are properly joined are afforded means of settling entire controversies with minimum of expense and procedural steps." Licking River Limestone Co. v. Helton, Ky., 413 S.W.2d 61, 63-64 (1967). Moreover, "[t]he Civil Rules prescribe a practical pattern for the conduct of litigation and the effective administration of justice. To this end reasonable compliance is necessary." Naive v. Jones, Ky., 353 S.W.2d 365, 367 (1961).

In this case, the fundamental departure by the Halls was their failure to name and join all the defendants and provide them with proper notice of all the claims against them. While the Halls may feel these steps are mere technicalities, these steps are the foundation of a fair trial. Otherwise, it would be impossible for these defendants to defend themselves. Even in their briefs in this appeal, the Halls are lodging complaints against parties they never named in their Petition or amended petition.

In addition to the Halls' failure to meet basic notice requirements, their barrage of inappropriate, unresponsive and untimely motions and requests inhibited the trial court's effective administration of justice. As we believe the trial court did not abuse its discretion in dismissing the Halls' case based on their extreme disregard for and misuse of the civil rules and their failure to follow court orders, we affirm.

ORDER

Further, appellees filed a motion to dismiss appellants' appeal and impose sanctions, and the Court having considered said motions; IT IS HEREBY ORDERED that appellees' motion to dismiss is DENIED; IT IS FURTHER ORDERED that appellees' motion to impose sanctions is GRANTED. Under CR 73.02(4), "[i]f an appellate court determines that an appeal or motion is frivolous, it may award just damages and single or double costs to the Appellee . . .. An appeal or motion is frivolous if the court finds that it is so totally lacking in merit that it appears to have been taken in bad faith."

We find that CR 73.02(4) is applicable in this case and direct that the trial court award the appellees reasonable attorney fees and costs incurred in the prosecution of this appeal to be paid by Jerry and Dean Hall. We find that the trial court dismissed the Halls underlying action only after providing them with every opportunity to minimally comply with the rules of civil procedure. A subsequent appeal of the trial court's dismissal under such circumstances is so totally lacking in merit that it appears to have been taken in bad faith. Appellees' counsel shall have twenty (20) days from the date of entry of this order in which to file a detailed affidavit of the costs and fees incurred by appellees in the defense of this appeal. Appellants shall have twenty (20) days from the date of filing of appellees' affidavit in which to respond to it.

Outcome: Upon filing of appellants’ response, or at expiration of the time given in this order, the matter will return before the Court for further action.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None