COAKY Holds No Appeal Lies From Dismissal of Action That is Not “Involuntarily Adverse”

By David Kramer |

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In Stoecklin v. River Metal Recycling, LLC, 370 S.W.3d 527 (Ky. App. 2012), the Kentucky Court of Appeals dismissed an appeal brought by the appellant after an agreed dismissal with prejudice had been entered to facilitate and “self-expedite” appellate review of an adverse evidentiary ruling. The trial court had barred the plaintiff from calling an expert witness due to late disclosure, and the plaintiff believed he could not meet his burden of proof without this expert, despite the fact that he had disclosed two other experts.

The appellant argued that the appeal came within a narrow exception to the rule that one cannot appeal unless there is an “involuntarily adverse” judgment. That exception holds that an appeal will lie from a voluntary dismissal that is entered to expedite review of a trial court order that has the effect of dismissing the complaint. See, e.g., Raceway Properties, Inc. v. Emprise Corp., 613 F. 2d 656 (6th Cir. 1980). The appellant analogized the situation in the Stoecklin case to Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991), in which the trial court denied the plaintiff’s request to name an expert after the witness disclosure deadline had run and entered summary judgment. In Ward, the Court of Appeals reversed and held that dismissal with prejudice should not be used as a sanction for failing to meet discovery deadlines without analysis of certain aggravating factors and consideration of lesser sanctions.

In Stoecklin, the Court of Appeal distinguished Ward v. Housman, holding that there was no showing that preclusion of the late expert had the effect of dismissal of the plaintiff’s case. Thus, the exception to the general rule that one may appeal only a judgment that is involuntarily adverse did not apply.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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