Jacqueline Hollingsworth v. Consolidated Local Government Police Force Merit Board A/K/A Louisville Metro Police Merit Board

• Court: Court of Appeals of Kentucky
• Decided: April 21, 2022
• Docket: 2021 CA 000353
• Status: Unknown

Opinion

RENDERED: APRIL 22, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0353-MR

JACQUELINE HOLLINGSWORTH APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE BARRY WILLETT, JUDGE ACTION NO. 15-CI-000827

CONSOLIDATED LOCAL GOVERNMENT POLICE FORCE MERIT BOARD A/K/A LOUISVILLE METRO POLICE MERIT BOARD; AND CHIEF STEVE CONRAD APPELLEES

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.

MAZE, JUDGE: Jacqueline Hollingsworth (Hollingsworth) appeals from a

decision of the Jefferson Circuit Court dismissing her complaint for judicial review of the Louisville Metro Police Merit Board’s (Merit Board) decision upholding her

termination as a police officer.

Hollingsworth sought review in the Jefferson Circuit Court as

permitted by KRS1 67C.323(3)(a). However, based upon her failure to comply

with the circuit court’s order requiring her to either produce a transcript of the

Merit Board’s proceedings or to indicate her intention to go forward without a

transcript, an order of dismissal was entered. After reviewing the circuit court

record, the circuit court’s order, and the briefs of the parties, we reverse and

remand the matter based on the circuit court’s failure to make required findings.

FACTS

On January 16, 2006, the Professional Standards Unit (PSU) of the

Louisville Metro Police Department (LMPD) initiated an investigation of Officer

Hollingsworth in connection with funds obtained from the Louisville Black Police

Officers Organization. As a result of that investigation, Chief Robert C. White

(Chief White), by letter, suspended her for twenty days for multiple violations of

LMPD’s Standard Operating Procedures (SOP). However, on December 6, 2010

that letter was withdrawn in order for Chief White to consider the results of an

additional PSU investigation. Based upon the results of those two investigations,

1 Kentucky Revised Statutes. -2- on December 17, 2010, Chief White sent a letter advising Hollingsworth of her

termination.

On December 21, 2010, she filed an appeal with the Merit Board

pursuant to KRS 67C.323. The Merit Board conducted a seven day trial-type

hearing at which Hollingsworth was represented by counsel with the opportunity to

cross-examine witnesses and to present witnesses on her own behalf. At the

conclusion of the proceedings, the Merit Board unanimously voted to uphold Chief

White’s decision to terminate her. However, because of the mistaken belief that

the record of those proceedings had been destroyed by flooding, the Merit Board’s

findings of fact and conclusions of law were not issued until April 25, 2015.

Meanwhile, on February 20, 2015, Hollingsworth filed an action in the

Jefferson Circuit Court pursuant to 42 U.S.C.2 § 1983, based upon the Merit Board’s

failure to produce a record for judicial review. However, following the filing of the

Merit Board’s findings of fact and conclusions of law, she amended her complaint

to one for judicial review pursuant to KRS 67C.323(3)(a). On September 1, 2016,

the record of proceedings before the Merit Board was certified to the circuit court.

Hollingsworth then alleged that she was unable to afford a transcript

for the court’s review. She filed a motion for in forma pauperis status which was

heard on January 31, 2017. On May 19, 2017, the circuit court entered an order

2 United States Code. -3- indicating that, although Hollingsworth was clearly a “poor person” and therefore

entitled to in forma pauperis relief, the court was without the authority to order a

third-party court reporter to produce a transcript without compensation. The court

concluded that her only options were to pay for the preparation of a transcript or to

elect to proceed without one. The court specifically directed her to notify the court

of her decision within thirty days. She failed to so advise the court.

The Merit Board then filed its motion to dismiss for failure to prosecute

pursuant to CR3 41.02. The issue was fully briefed by the parties and heard by the

court on February 25, 2021. On February 26, 2021, the court entered its order of

dismissal and Hollingsworth filed the within appeal pursuant to KRS 67C.323(3)(b).

STANDARD OF REVIEW

The circuit court examines the decision of the Merit Board for

“arbitrariness,” considering whether the action is beyond its powers, whether due

process has been granted, and whether there was substantial evidence to support

the decision. Am. Beauty Homes Corp., v. Louisville & Jefferson Cty. Plan. &

Zoning Comm’n, 379 S.W.2d 450, 456 (Ky. 1964). However, this Court’s review

seeks only to determine whether the circuit court’s decision to dismiss

Hollingsworth’s cause of action for judicial review for failure to prosecute was an

abuse of discretion. Jaroszewski v. Flege, 297 S.W.3d 24 (Ky. 2009).

3 Kentucky Rules of Civil Procedure. -4- ANALYSIS

In Brady v. Pettit, 586 S.W.2d 29, 33 (Ky. 1979), the Court concluded

that “the discharged employee has the obligation of producing the transcript of

evidence of the proceeding before the administrative board.” It further held that

“review of the transcript of evidence in circuit court is a corollary to the burden of

proof which has shifted to the discharged employee.” Id. The Court specifically

applied the requirement that a discharged employee must furnish a copy of the

transcript before the administrative body to appeals from the Police Merit Board in

Crouch v. Jefferson County, Kentucky Police Merit Board, 773 S.W.2d 461 (Ky.

1988), finding that a circuit court could not examine the Merit Board’s decision for

arbitrariness without the transcript. Indeed, the Court stated that “[n]o other

evidence is to be admitted on appeal.” Id. at 464. As applied to the case at bar, it

is clear that the circuit court acted well within its authority in directing

Hollingsworth to either pay for the transcript or proceed without it. Thus, it

properly rejected her offer to proceed with an audio recording of the Merit Board

proceeding, since the transcript is the only evidence which the circuit court may

consider in determining arbitrariness.

CR 41.02(1) provides that an action may be dismissed for “failure of

the plaintiff to prosecute or to comply with these rules or any order of the court[.]”

CR 41.02(3) provides that an order of dismissal under this rule “operates as an

-5- adjudication upon the merits.” Clearly, the circuit court’s order dismissing in this

case could have been founded either on her failure to produce a transcript to aid the

court in its judicial review, or her failure to comply with the court’s order requiring

her to advise it how she wished to proceed with the action.

The appellate courts have spent decades in refining their interpretation

of CR 41.02. This Court will commence its analysis with Department of Revenue

v. Estate of Hofgesang, 627 S.W.2d 579 (Ky. 1982), dealing with an appeal from a

decision of an administrative agency to the circuit court. After a fifteen-month

delay, the agency moved the court to dismiss the appeal for failure to prosecute.

That motion was granted, and the circuit court’s decision was appealed to the

Court of Appeals, where it was reversed and remanded. However, the Supreme

Court granted discretionary review.

The Court noted that there was no “specific procedural step” required

for an aggrieved party to proceed in circuit court after an appeal is filed. However,

the Court concluded that CR 41.02 imposed such a requirement and concluded that

“the party appealing, as here, from a final decision of an administrative agency, or

otherwise, shall henceforth be regarded in the same light as a plaintiff in having the

duty to take steps to bring the case to trial and judgment, or have the cause

dismissed for failure to prosecute.” Id. at 580. Thus, while the Court found the

agency’s argument to be “technically correct[,]” it affirmed the Court of Appeals

-6- decision reversing the circuit court’s dismissal, opting instead to “give the rule

announced here prospective effect.” Id.

Both Hollingsworth and the Merit Board have addressed the case of

Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991). Although in that case the

circuit court entered a summary judgment as sanction for failure to make timely

disclosure of experts as provided in its pretrial order, the Court of Appeals

concluded that the dismissal was actually one under CR 41.02. The Court held that

“[i]n ruling on a motion for involuntary dismissal, the trial court must take care in

analyzing the circumstances and must justify the extreme action of depriving the

parties of their trial.” Id. at 719. The Court then adopted the factors to be used as

indictive of such justification as set forth in Scarborough v. Eubanks, 747 F.2d 871

(3d Cir. 1984). Those factors were:

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. at 875-78. The Court then reversed the circuit court’s summary judgment and

remanded the matter for a consideration of the availability of other sanctions.

-7- In Toler v. Rapid American, 190 S.W.3d 348, 351 (Ky. App. 2006),

the Court noted that:

The rule permitting a court to involuntarily dismiss an action “envisions a consciousness and intentional failure to comply with the provisions thereof.” Baltimore & Ohio Railroad Co. v. Carrier, 426 S.W.2d 938, 940 (Ky. 1968). Since the result is harsh, “the propriety of the invocation of the Rule must be examined in regard to the conduct of the party against whom it is invoked.” Id. at 941. Moreover, it is incumbent on the trial court to consider each case “in light of the particular circumstances involved; length of time alone is not the test of diligence.” Gill v. Gill, 455 S.W.2d 545, 546 (Ky. 1970). In addition, the court should determine whether less drastic measures would remedy the situation, especially where there is no prejudice to the party requesting dismissal. See Polk [v. Wimsatt, 689 S.W.2d 363, 364-65 (Ky. App. 1985).]

The Court then endorsed the application of the Ward factors. However, it

concluded that the trial court must make “findings” as to those factors. See also

Stapleton v. Shower, 251 S.W.3d 341 (Ky. App. 2008).

However, in Jaroszewski, 297 S.W.3d at 32, the Supreme Court re-examined

the considerations that the trial court must undertake with reference to dismissals

for want of prosecution. The Court noted that:

There is no absolute right to dismissal for a plaintiff’s failure to prosecute and no exact rule can be laid down as to when a court is justified in dismissing a case for the plaintiff’s failure to prosecute or for delay in prosecuting his or her action; each case must be looked at with regard to its own peculiar procedural history and the situation at the time of dismissal. -8- Id. (quoting 24 AM. JUR. 2d Dismissal, Discontinuance and Nonsuit § 63 (2009)).

The Court recognized that “these necessarily fact-specific

determinations are left to the sound discretion of the trial court; and reversal of

these determinations is warranted only where the trial court has abused its

discretion.” Id. However, the Court cautioned against “a formulaic approach

where certain listed factors must always be discussed, and other relevant factors

may not be discussed.” Id. at 33. The Court recommended instead the adoption of

a “totality of circumstances” approach. The Court concluded instead that “the

propriety of the trial court’s ruling does not necessarily hinge on its discussing the

six particular factors listed in Ward.” Id. Indeed, the Court went so far as to hold

that, “to the extent that other cases have held or suggested that all factors listed in

Ward must always be fully discussed in all orders dismissing cases for lack of

prosecution under CR 41.02, those cases are overruled.” Id. at 35.

On October 29, 2020, LMPD and its chief of police filed their motion

to dismiss pursuant to CR 41.02 based upon Hollingsworth’s failure to act on the

circuit court’s order of May 19, 2017. On January 4, 2021, Hollingsworth filed her

response. Thereafter, on February 25, 2021, the court heard oral arguments. This

Court has reviewed the circuit court record and notes that both sides cited Ward,

supra, and made arguments as to the applicability of the factors to the facts herein.

-9- However, rather than making any findings or rulings on the record, the circuit court

took the matter under submission.

The following day, the circuit court signed the proposed order

tendered by the defendants, re-styling it with a handwritten notation characterizing

it “Order of Dismissal.” It is a single-paragraph order stating simply “IT IS

HEREBY ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss

for Failure to Prosecute is GRANTED. The Plaintiff’s Complaint is DISMISSED

WITH PREJUDICE.” It is followed by a second handwritten notation designating

the order as “final and appealable[.]” Thus, no findings were made which would

shed any light on whether the circuit court’s decision was made pursuant to Ward,

supra, or to any other factors which might be considered under the “totality of

circumstances” approach recommended in Jaroszewski, supra. While it is

tempting to assume that since the circuit court heard arguments regarding the

factors, it must have considered them and found the defendants’ arguments more

persuasive, this Court is unable to do so.

In Mullins v. Redford Township, 297 S.W.3d 66 (Ky. App. 2009),

upon motion of the Township pursuant to CR 41.02, the trial court dismissed

Mullins’ claims with prejudice based upon his failure to timely comply with the

court’s scheduling order. On appeal, Mullins argued that the trial court abused its

discretion by failing to consider the Ward factors and to make findings

-10- accordingly. The Township argued that “the trial court’s consideration of those

factors may be inferred because Appellees’ memorandum and argument to the

court in support of their motion contained an appropriate analysis of each factor as

applied to this case.” Id. at 68. This Court, relying on Manning v. Wilkinson, 264

S.W.3d 620, 624 (Ky. App. 2007) (quoting Toler, 190 S.W.3d at 351), noted that it

is the trial court’s sole responsibility to make such findings. “As such, we cannot

accept Appellees’ invitation to presume that the trial court duly considered the

Ward factors, nor can we meaningfully review the trial court’s decision without

benefit of findings and analysis of the controlling factors.” Mullins, 297 S.W.3d at

69.

Hollingsworth’s complaint was converted to a petition for judicial

review by the filing of her amended complaint on June 1, 2015. At that time, she

was represented by counsel who should have advised her that she had an obligation

to provide the circuit court with a transcript in order to meet her burden of proof on

judicial review. However, she took no action. The circuit court then, by its order

of May 19, 2017, directed her to either pay for and produce a transcript or advise

the court of her intent to proceed without a transcript. At that time, she was still

represented by counsel, who should have advised her of her obligation to comply

with the court’s order. Nevertheless, she took no action. On October 29, 2020,

LMPD and the chief of police filed their motion to dismiss. As is clear from the

-11- response filed by counsel, Hollingsworth still had legal representation. Yet, she

still took neither action as directed by the circuit court’s order. These facts were

all known to the court at the time it entered its order of dismissal on February 26,

2021. However, even though there appear to be more than adequate reasons to

support its order, the court failed to make the findings required as provided in the

foregoing authorities.

As this Court is constrained to follow the law, we reverse the circuit

court’s order of dismissal and remand the matter for a thorough application of a

“totality of circumstances” analysis and appropriate findings.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Jacqueline Hollingsworth, pro se Mitchel T. Denham Louisville, Kentucky Erin M. Shaughnessy Louisville, Kentucky

BRIEF FOR APPELLEE LOUISVILLE METRO POLICE MERIT BOARD:

Mark W. Dobbins Kathleen M.W. Schoen Louisville, Kentucky

-12-