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Murphy v. Weber

Court of Appeals of Kentucky

August 2, 2019

PATRICK MURPHY APPELLANT
v.
BRYAN WEBER APPELLEE

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BARRY WILLETT, JUDGE ACTION NO. 09-CI-011294

          BRIEFS FOR APPELLANT: Pat Murphy, Pro Se Louisville, Kentucky

          BRIEF FOR APPELLEE: Wallace N. Rogers Louisville, Kentucky

          BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.

          OPINION

          LAMBERT, JUDGE

         In this dispute between a tenant and landlord, Patrick Murphy, proceeding pro se, has appealed from the Jefferson Circuit Court's August 3, 2017, order dismissing his action against Bryan Weber without prejudice due to his failure to appear for the jury trial. Finding no abuse of discretion, we affirm.

         Murphy, while represented by counsel, filed a verified complaint against Weber in November 2009. Murphy had been renting real property from Weber on New Hopewell Road in Louisville, Kentucky, since 2004. In July 2007, Murphy moved to another property Weber owned on the same street at Weber's request. Murphy claimed that in November of that year, Weber unlawfully removed his belongings from the rental property and refused to give them back to him. He also claimed Weber refused to give him access to the rental property. Based upon those allegations, Murphy raised claims for breach of contract, unlawful ouster/abuse of access, outrageous conduct, conversion, and violations of Kentucky's Consumer Protection Act, Kentucky Revised Statutes (KRS) 367.110, et seq. As a result, Murphy sought compensatory and punitive damages. Weber filed an answer disputing Murphy's claim as well as a counterclaim against him, seeking $6, 000.00 for damages to his property, rental storage at a rate of $125.00 per month from November 2007 to the present, and $500.00 for a mobile phone bill. Murphy, in turn, disputed Weber's counterclaim, stating that it was barred by the doctrines of laches, estoppel, unclean hands, and illegality.

         In December 2011, Murphy filed a motion seeking to retrieve his personal property under Weber's control or in his possession. Weber objected to the motion, likening it to a motion for summary judgment and arguing that genuine issues of material fact existed. The court conducted a hearing in August 2012 and denied the motion by order entered October 9, 2012, refusing to issue a writ of possession to Murphy.

         By order entered August 23, 2012, the circuit court set the matter for a three-day jury trial beginning May 14, 2013. The order also set forth the times for filing expert disclosures, dispositive motions, witness lists, and damages itemization. Murphy's counsel was permitted to withdraw on November 27, 2012, and Murphy was given 45 days to retain new counsel. The envelope addressed to Murphy at an address on Bardstown Road containing the order was marked "refused," and it was returned to the sender as not deliverable as addressed and unable to forward. The court held a final pretrial conference on April 18, 2013, which Murphy attended. The order reflects that Murphy had been unable to hire a new attorney and was representing himself. The jury trial was rescheduled for July 8, 2013. The order was served on Murphy at an address on Java Court. The record does not reflect why the trial was not held on that date.

         On August 9, 2013, Murphy filed a motion to enforce a settlement agreement for the return of his personal property. Weber filed a settlement agreement and release of claims dated August 14, 2013, which detailed the agreement reached between him and Murphy to dismiss the action with prejudice. The terms of the agreement provided that Murphy was to pick up his personal possessions from Weber on or before July 31, 2013, in exchange for a release of Murphy's claims against him. A hearing was held later that year, and the court entered an order denying the motion in June 2014. We therefore presume the settlement was ultimately unsuccessful.

         In November 2013, the court entered a second jury trial order, scheduling the trial for April 9, 2014. The service copy of Murphy's order sent to the Bardstown Road address was returned to the court. Murphy filed a motion on April 2, 2014, to continue the trial scheduled to begin a few days later. He stated a key witness was having knee surgery on the date of the trial and would not be available to testify. Murphy listed his address as being on Java Court. The court then rescheduled the trial until June 4, 2014. A month later, the court rescheduled the trial on Weber's motion until September 30, 2014. And the trial was once again reassigned to December 16, 2014, because the court was in trial. On Murphy's motion, the trial was reassigned in January 2015 to April 14, 2015.

         On April 9, 2015, Murphy moved the court to set a new trial date based on the unavailability of "vital witnesses" to his case on the set trial date. Weber did not object to the motion, and the court rescheduled the trial for November 17, 2015, and then to February 16, 2016, by order entered in August 2015. On February 11, 2016, Murphy again moved to continue the trial date, stating that one of his witnesses was experiencing complications from open heart surgery and would be unable to testify. The trial was rescheduled for May 10, 2016, and then to November 15, 2016, because the court was in trial.

         On November 3, 2016, Murphy filed yet another motion to continue the trial because he could not locate one of his witnesses, who had recently moved, to serve his subpoena. By order entered November 10, 2016, the court scheduled the trial for August 1, 2017. The order was served on Murphy at his Java Court address.

         Murphy failed to appear for the jury trial scheduled for August 1, 2017. Counsel for Weber informed the court that he had not heard from Murphy in the last 30 days, but that Murphy knew this was the trial date because they went in the back at the last court date to set a date with the secretary. The court called Murphy on his cell phone to determine why he had not appeared. Murphy told the court he thought the jury trial date was August 14, 2017, and that he had intended to file a motion to reassign that trial date. Murphy also told the court that he had moved four times in the last month and his belongings were scattered. However, ...


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