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Walser v. Mauzy4/1/2005
AFFIRMING
Paula and James Walser appeal from an order of the Jefferson Circuit Court dismissing for lack of prosecution their legal negligence claim against Charles P. Mauzy. The Walsers argue that the trial court abused its discretion in dismissing their complaint. Based on the facts and circumstances of this case, we agree with the trial court that the Walsers failed to show good cause for their delay in completing discovery and bringing their claim to trial. Hence, we affirm.
Mauzy had represented the Walsers regarding a personal injury which Paula had suffered in Alabama in 1989. The Walsers allege that Mauzy failed to file a complaint in Alabama. They also assert that Mauzy repeatedly misrepresented the status of the case to them.
On March 11, 1994, Paula and James Walser filed a complaint against Mauzy, alleging legal negligence. In 1997, Mauzy filed for summary judgment, arguing that, even if he had been negligent, the Walsers could not recover because their personal injury claim in Alabama would have been barred under the doctrine of official immunity. The trial court agreed and dismissed the Walsers' complaint. In the first appeal, this Court reversed, finding that the Walsers' underlying tort claim would not have been barred under Alabama law.
The matter was remanded to the trial court in February of 2000, when this Court's prior order became final. Discovery proceeded intermittently over the next year and a half. In August of 2001, Mauzy moved to require Paula to undergo an independent medical evaluation (IME) by Dr. James Harkess, an orthopedic surgeon. The trial court granted the motion over the Walsers' objection. The IME was initially scheduled for September 17, and was then rescheduled to November 5 after Paula informed Mauzy's counsel that she intended to tape-record the examination. Mauzy moved the trial court to prohibit Paula from recording the IME. In an order entered on October 17, the trial court granted the motion.
Paula failed to appear for the IME scheduled on November 5. On Mauzy's motion, the trial court issued an order directing her to appear for an IME on November 29. However, when Paula appeared on that date, she presented a letter imposing certain limitations on Dr. Harkess's examination of her. When Dr. Harkess informed her that he could not accommodate those limitations, the IME was cancelled.
Thereafter, Mauzy moved to dismiss the complaint for failure to prosecute. In an order entered on January 9, 2002, the trial court denied the motion and directed that the exam "be rescheduled without any (party imposed) conditions other than good medical practice." Dr. Harkess conducted the IME on January 29, 2002.
Between the date of the IME and December 2003, the only substantive activity occurred in July 2002, when Mauzy took Dr. Harkess's deposition, and when he moved to compel the Walsers' payment for the cancelled IME appointments. On December 8, 2003, Mauzy again moved to dismiss the complaint for failure to prosecute. On February 20, 2004, the trial court granted the motion, finding that the Walsers have not shown good cause for the delay in completing discovery. This appeal followed.
The law demands the exercise of due diligence by the client as well as by his attorney in the prosecution or defense of litigation. CR 41.02 permits a court to dismiss an action for failure of a plaintiff to prosecute or to comply with the civil rules or with any order of the court. A trial court is vested with broad discretion in determining whether a case should be dismissed for want of diligent prosecution.
However, " n ruling on a motion for involuntary dismissal, the tri
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