Rhonda Keeney v. Billy Trent Construction, LLC

• Court: Court of Appeals of Kentucky
• Decided: October 17, 2025
• Docket: 2024-CA-0740
• Status: Unpublished

Opinion

RENDERED: OCTOBER 17, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2024-CA-0740-MR

RHONDA KEENEY AND ROBERT KEENEY APPELLANTS

APPEAL FROM SCOTT CIRCUIT COURT v. HONORABLE KATHRYN H. GABHART, JUDGE ACTION NO. 15-CI-00120

BILLY TRENT CONSTRUCTION, L.L.C. APPELLEE

OPINION VACATING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND LAMBERT, JUDGES.

ECKERLE, JUDGE: Appellants, Rhonda Keeney and Robert Keeney (the

“Keeneys”), seek relief from an order of the Scott Circuit Court dismissing, with

prejudice, their claims against Appellee, Billy Trent Construction, L.L.C.

(“Trent”), for failure to prosecute. Upon review, we vacate the dismissal. The background of this case is partially set forth in Keeney v. Billy

Trent Construction, L.L.C., 602 S.W.3d 162 (Ky. App. 2019). Briefly

summarized, the Keeneys filed a complaint in Scott Circuit Court on February 25,

2015, alleging various civil claims against Trent arising out of a construction and

building dispute. Their claims proceeded to trial. But on March 26, 2018, the first

day of trial (shortly after the Keeneys’ counsel gave his opening arguments), Trent

moved for a directed verdict, and the Circuit Court granted its motion. The

Keeneys appealed. This Court vacated the directed verdict and remanded for a

new trial. Id. Trent sought discretionary review, which the Kentucky Supreme

Court denied on July 6, 2020.

It appears from the record that this case was dormant until January 30,

2024, when the Keeneys moved for a trial date. Trent objected, citing the three-

and-one-half-year delay between the Kentucky Supreme Court’s denial of

discretionary review and the Keeneys’ motion. Trent further moved to dismiss the

Keeneys’ claims with prejudice for what it asserted was the Keeneys’ failure to

prosecute. The Keeneys opposed Trent’s motion. After a brief hearing, the Circuit

Court granted Trent’s motion. Its May 17, 2024, order to that effect provided only

the following explanation for doing so:

This matter having come before the Court on Plaintiffs’ Motion for a Trial Date, and the Defendant having filed an Objection and Motion to Dismiss for failure to prosecute, and after a hearing and the Court being

-2- sufficiently advised, it is hereby ORDERED and ADJUDGED that the Plaintiffs’ Motion for a Trial Date is OVERRULED and this matter is hereby DISMISSED with prejudice for failure to prosecute in a timely manner.

This appeal followed.

Under Kentucky law, the only means by which the Circuit Court

could have dismissed the Keeneys’ action for failure to prosecute with prejudice

was through Kentucky Rule of Civil Procedure (“CR)” 41.02. See Wildcat Prop.

Mgmt., L.L.C. v. Reuss, 302 S.W. 3d 89, 92 (Ky. App. 2009). We review such

dismissals under the abuse of discretion standard. Id. at 93. In this context, the

Circuit Court must demonstrate its proper exercise of discretion on the record

through explicit findings; otherwise, meaningful review of its decision is

impossible. Jaroszewski v. Flege, 297 S.W.3d 24, 36 (Ky. 2009). Those findings,

in turn, must consider a variety of factors:

A leading case on this issue is Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991), which sets forth six nonexclusive factors for a trial court to consider and apply as appropriate and where applicable prior to dismissal with prejudice under CR 41.02. The Ward 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. at 719 (citing Scarborough v. Eubanks, 747 F.2d 871 (3rd Cir. 1984)). It should be understood that the Ward factors are available for trial court consideration, but that other relevant factors should also be considered. A reviewing

-3- court must be informed of the trial court’s thinking for review to be meaningful. However, not every Ward factor need be considered in every case, nor is a non- enumerated factor unavailable for the court’s consideration. The Supreme Court of Kentucky has recently addressed the issue of involuntary dismissal pursuant to CR 41.02 in Jaroszewski v. Flege, 297 S.W.3d 24 (Ky. 2009). Its decision is also instructive as to the proper manner for addressing this issue.

Wildcat, 302 S.W.3d at 92-93.

On appeal, the Keeneys contend that the Circuit Court’s ruling is

erroneous; the order must be vacated; and this matter should be returned to the

Trial Court for the setting of a trial date. In support, they correctly note that the

passage of time (standing alone) is an insufficient factor to support dismissal with

prejudice for failure to prosecute; and they argue that Trent’s similar inaction

relative to this litigation should have been considered as well, and as a factor

militating against dismissal. See, e.g., Jaroszewski v. Flege, 204 S.W.3d 148, 150

(Ky. App. 2006)1 (explaining that a four-year delay by itself was insufficient to

justify a dismissal with prejudice for failure to prosecute because “length of time

alone is not the test of diligence”) (internal quotation marks and citation omitted);

see Jaroszewski, 297 S.W.3d at 41 (Venters, J., concurring) (“An essential

consideration that [sic] for a trial judge ruling on a defendant’s motion under CR

1 There are two separate Jaroszewski v. Flege cases that involve the same litigants that are relevant and cited in this Opinion.

-4- 41.02 is whether the defendant himself had undertaken any effort to move the case

toward resolution before seeking dismissal with prejudice.”).

Accordingly, the Circuit Court’s order must be vacated for failure to

follow the rule and precedential case law. As set forth above, the May 17, 2024,

order contained no findings at all; and thus, we cannot meaningfully review it. See

Wildcat, 302 S.W.3d at 93. Therefore, the Circuit Court failed to exercise its

discretion properly by failing to make the required findings. As for the Keeneys’

additional contentions – which amount to an argument that even if the Circuit

Court had examined the relevant factors, dismissal with prejudice would have been

an abuse of discretion – we decline to address them because they are premature.

The Trial Court has not yet had an opportunity to reconsider its ruling after a

thorough analysis of all relevant factors.

Before we conclude, we must mention another point: The Keeneys

did not file a CR 52.04 motion requesting the Circuit Court to make any findings

of fact. Neglecting to make such a motion is generally “fatal” to an appeal that

seeks vacating, reversal, or remand because of the failure of a Trial Court to make

a finding of fact on an issue essential to the judgment. See, e.g., Cherry v. Cherry,

634 S.W.2d 423 (Ky. 1982). However, no such motion was required here because

the Circuit Court made no findings whatsoever. See Anderson v. Johnson, 350

S.W.3d 453, 458 (Ky. 2011).

-5- For the reasons expressed above, we vacate the Trial Court’s order of

dismissal with prejudice.

ALL CONCUR.

BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE:

Douglas C. Howard David A. Weinberg Frankfort, Kentucky Lexington, Kentucky

-6-