FROM JEFFERSON CIRCUIT COURT HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 09-CI-011294
FOR APPELLANT: Pat Murphy, Pro Se Louisville, Kentucky
FOR APPELLEE: Wallace N. Rogers Louisville, Kentucky
BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
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.
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.
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.
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.
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.
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.
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.
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
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, ...