Full Opinion

RENDERED: OCTOBER 23, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0735-MR GARY KNOTT APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 18-CI-003957 MARK E. BOLTON; BRANDON HAZELIP; CYNTHIA GRANT; ERIC SCHMIDT; GERALD BRILES; MATTHEW AMBURGEY; AND TABBATHA HEATH APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: CETRULO, A. JONES, AND L. JONES, JUDGES. JONES, A., JUDGE: Appellant, Gary Knott (“Knott”), appeals from an opinion and order of the Jefferson Circuit Court granting a motion to dismiss his complaint pursuant to Kentucky Rules of Civil Procedure (“CR”) 41.02. After careful review of the briefs, the record, and applicable law, we affirm the opinion and order. I. BACKGROUND During the summer of 2017, Knott was incarcerated at the Louisville Metro Department of Corrections (“LMDC”). At that time, LMDC contracted with a third-party vendor, Correct Care Solutions, LLC (“CCS”), to provide healthcare services for inmates. It appears that Knott sustained a head injury on or around June 30 while in LMDC’s custody. On July 1, 2017, Knott was transported to University of Louisville Hospital. Knott was released from the hospital on July 7 and returned to LMDC custody. Knott then appeared before the Jefferson District Court on July 11, and that court ordered his release, in part due to his medical condition. Knott was released from custody the next day. Soon thereafter, Knott was readmitted to the hospital where he underwent additional medical treatment. In July 2018, with the assistance of counsel Ryan Vantrease, Knott filed a complaint, alleging that he suffered serious and life-threatening health issues due to receiving inadequate medical care while incarcerated. In addition to the seven LMDC employees named in this appeal, Knott named CCS and two CCS employees, Kevin Smith, M.D., and Roy Washington, APRN, as defendants. It appears, at least initially, that some limited discovery took place. Even so, on August 19, 2020, the circuit court served the first of three CR 77.02 notices to dismiss for lack of prosecution on counsel. Attorney Vantrease -2- promptly responded to the CR 77.02 notice detailing the actions he had taken to date and the reasons the case had not progressed as quickly as the parties and the court may have desired. The court did not dismiss the action. A little over a year later, on September 14, 2021, the circuit court served its second CR 77.02 notice on counsel. Once again, Attorney Vantrease responded blaming the delay, in part, on COVID-19 restrictions and his preference to take depositions in person rather than via video. The court allowed the case to remain on its docket. Knott engaged in some limited additional discovery in the fall of 2021. As Attorney Vantrease was in the process of winding down his legal practice, he sought and obtained co-counsel, James Bolus and Casey Krill, to assist him with Knott’s case. While Attorney Vantrease did not withdraw as counsel, Attorney Bolus and Attorney Krill entered their appearances in the action in August 2022. Apparently, it was understood between the attorneys that Attorney Krill would be primarily responsible for the day-to-day work on the case. However, despite representing to Attorneys Vantrease and Bolus that he was trying to move the case forward, Attorney Krill did virtually nothing on it other than to request some deposition dates from opposing counsel shortly after entering his appearance. In fact, Knott admits in his appellate brief that neither Attorney Krill nor his co-counsel did anything on the case in 2023. -3- Given this inactivity, on December 27, 2023, the circuit court served its third CR 77.02 notice on counsel. Attorney Krill filed a response on January 26, 2024. Next, on January 30, 2024, the defendants filed a CR 41.02 motion to dismiss the complaint for lack of prosecution. A few days later, Attorney Krill moved to be permitted to withdraw as counsel on the grounds that he had decided to stop practicing law. The circuit court granted Attorney Krill’s motion, and Knott remained represented by Attorneys Vantrease and Bolus, who filed a response to the CR 41.02 motion. Around this same time, Knott scheduled a deposition for April 2024. At Knott’s request, the circuit court conducted a hearing on the CR 41.02 motion. At the hearing, Knott argued that his case should remain on the docket because he was unaware that Attorney Krill had not been trying to advance the case. Knott further indicated that he would be willing to pay for locating any witnesses that might be difficult to find due to the passage of time, and he promised that with Attorney Krill off the case, there would not be any additional delays. On May 31, 2024, the circuit court entered an opinion and order granting the CR 41.02 motion and dismissing Knott’s complaint. This appeal followed. On November 11, 2024, while Knott’s appeal was pending before our Court, CCS filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Texas. After resolution of the bankruptcy, CCS and its -4- employees, Dr. Smith and Roy Washington, moved for dismissal based on the bankruptcy and Knott’s failure to opt out of the bankruptcy plan’s third-party release clause. On July 17, 2025, Knott’s counsel of record in this appeal, which included his trial counsel, Attorneys Bolus and Vantrease, moved the Court to allow them to withdraw as counsel on the grounds that they had lost all contact with Knott and could no longer effectively represent him. Attorney Vantrease’s attached affidavit explained that Knott failed to respond to repeated efforts to contact him via multiple means. The Court granted counsel’s motion to withdraw. Knott did not retain replacement appellate counsel or take any other action in relation to this appeal. The Court subsequently dismissed CCS, Dr. Smith, and Roy Washington, leaving the LMDC employees as the only Appellees. II. ANALYSIS CR 41.02(1) permits a defendant to move for dismissal of an action “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of the court.” Consideration of such a motion requires fact-specific determinations committed to the sound discretion of the trial court. Jones v. Pinter, 642 S.W.3d 698, 701 (Ky. 2022) (citing Jaroszewski v. Flege, 297 S.W.3d 24, 32 (Ky. 2009)). Accordingly, we review a dismissal under CR 41.02 for abuse of discretion and will reverse only if the trial court’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Id. Because dismissal with prejudice is an -5- extreme remedy, however, we must carefully scrutinize the circuit court’s exercise of that discretion. Id. In determining whether dismissal is warranted, the circuit court must consider the totality of the circumstances. Jaroszewski, 297 S.W.3d at 33. Relevant considerations may include the factors identified in Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991): “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. These factors are neither mandatory nor exhaustive. Jaroszewski, 297 S.W.3d at 33-34. Rather, the inquiry remains whether, considering all relevant circumstances, the plaintiff diligently pursued the case toward completion. Id. at 32-33. Prosecution requires affirmative efforts to resolve the case, “not just keeping it on a court’s docket or occasionally working on the file without actively attempting to resolve matters in dispute.” Id. at 32. Measured against that standard, we discern no abuse of discretion. Knott filed this action in July 2018. By the time the circuit court dismissed it in May 2024, nearly six years had passed, during which the court had issued three separate CR 77.02 notices for lack of prosecution. Although some discovery occurred, substantial periods passed with little or no affirmative effort to move the -6- case toward resolution. Most significantly, after Attorneys Bolus and Krill entered their appearances in 2022, the case again languished for more than a year. Attorney Krill requested deposition dates shortly after entering his appearance but thereafter did virtually nothing to advance the case. The circuit court found that Attorney Krill represented to his co-counsel that he was attempting to schedule matters when he was not and blamed opposing counsel for failing to respond when, in fact, he had failed to respond to them. The record supports those findings. And although Attorney Krill may bear primary responsibility for this period of inactivity, the circuit court reasonably observed that Knott remained represented by multiple attorneys who shared responsibility for ensuring that the case was prosecuted. Knott nevertheless argues that the delays resulted from circumstances largely beyond his personal control, including the Medical Review Panel Act, the COVID-19 pandemic, reassignment of the case following the original judge’s recusal, and Attorney Krill’s misconduct. Considered individually or collectively, these circumstances do not account for the prolonged failure to move this case toward resolution. Claycomb, which declared the Medical Review Panel Act unconstitutional, was rendered in November 2018, only four months after Knott filed his complaint. Commonwealth v. Claycomb, 566 S.W.3d 202 (Ky. 2018). Likewise, although the pandemic undoubtedly complicated discovery, this action -7- had been pending for approximately twenty months before pandemic-related restrictions began, and inactivity continued well after ordinary litigation practices resumed. Nor did reassignment of the case materially contribute to the delay. The original judge recused on October 17, 2022, and the matter was reassigned two days later. Yet, little occurred during the ensuing fourteen months. Finally, Attorney Krill’s misconduct does not erase the preceding delays or the responsibility of Knott’s other counsel and even Knott himself to monitor and advance the case. The circuit court also considered the prejudice caused by the passage of time. It noted that many potential fact-witnesses no longer worked for LMDC or CCS and concluded that, even if those witnesses could be located, the age of the case created significant concerns regarding their ability to recall the events at issue. Knott offered to bear the expense of locating missing witnesses, but that proposal did not address the circuit court’s separate concern regarding faded memories. Given that Knott’s claims arise from events occurring during a brief period in the summer of 2017, the circuit court reasonably considered the effect that years of delay would have on the LMDC employees’ ability to defend against those claims. Knott’s reliance on Jones does not persuade us otherwise. There, despite certain instances of pretrial misconduct, the plaintiff had taken substantial affirmative steps to prosecute his action, including propounding and responding to -8- discovery, participating in depositions, and complying with pretrial disclosure requirements. Jones, 642 S.W.3d at 703-04. Moreover, the misconduct relied upon to support dismissal delayed the case only a few months. Id. Here, by contrast, the problem was not an isolated missed deadline or discovery failure. It was a pattern of prolonged inactivity spanning years and continuing despite three separate notices that the action was subject to dismissal for lack of prosecution. Certainly, dismissal with prejudice should not be imposed merely because litigation has proceeded slowly, and we recognize that Knott himself may not have been responsible for much of the delay. But personal responsibility is only one consideration under Ward, and CR 41.02 necessarily entrusts the circuit court with discretion to determine when prolonged inactivity, viewed in the context of the entire case, warrants dismissal. Under the circumstances presented here, we cannot say the circuit court abused that discretion.1 III. CONCLUSION For the foregoing reasons, the opinion and order of the Jefferson Circuit Court is affirmed. ALL CONCUR. 1 We emphasize that our review is confined to the record before the circuit court when it rendered its decision. Nevertheless, we would be remiss not to note that Knott appears to have lost interest in pursuing this matter during the pendency of this appeal. The appellate record reflects that Knott ceased communicating with his counsel, and, after counsel withdrew, Knott took no further action to prosecute the appeal, including filing a reply brief. -9- BRIEF FOR APPELLANT: BRIEF FOR APPELLEES: James M. Bolus, Jr. Kathryn Goodwin Louisville, Kentucky James E. McKiernan, III Louisville, Kentucky Ryan Vantrease Louisville, Kentucky Kevin C. Burke Jamie K. Neal Louisville, Kentucky David Mushlin Louisville, Kentucky -10-