LESLIE W. WEBB v. CARL R. ROOP; FIRST CLASS SERVICES, INC.
Annotate this Case
Download PDF
RENDERED: August 27, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000091-MR
LESLIE W. WEBB
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JR., JUDGE
ACTION NO. 95-CI-00725
v.
CARL R. ROOP; FIRST CLASS
SERVICES, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Leslie W. Webb (Webb) has appealed from the
judgment of the Warren Circuit Court entered on October 29, 1997,
which summarily dismissed his complaint against Carl R. Roop
(Roop), and First Class Services, Inc. (First Class
Services)(collectively, the appellees), as time-barred.
We
affirm.
The facts underlying the issues in this appeal are not
in dispute; however, the procedural history is somewhat
convoluted.
Webb was involved in an automobile accident in
Warren County on July 19, 1993, allegedly caused by Roop, a
resident of Indiana, who, at the time of the collision, was
acting within the scope of his employment with First Class
Services, a Kentucky corporation, whose principal place of
business was located in Hancock County.
On July 17, 1995, within
the two-year period permitted by the statute of limitations for
the bringing of an action to recover damages for injury caused by
motor vehicle mishaps,1 Webb’s attorney, whose office is located
in Bardstown, Kentucky, mailed a complaint, which named Roop and
First Class Services as defendants, to the Warren Circuit Court
Clerk requesting that the complaint be filed.
The letter
accompanying the complaint provided as follows:
I am enclosing our check payable to the
Warren Circuit Court in the amount of $111.00
for the filing fee. We are also enclosing
our check in the amount of $20.00 payable to
the Warren County Sheriff for payment of his
fees for the service of the two summonses,
which we have also enclosed.
We are asking that you file this no later
than July 18, 1995, and also have the
summonses issued and dated on that date.
Please advise immediately if there is any
question or problem concerning this
transmittal.
The complaint was filed on July 18, 1995.
Because Roop did not
reside in Warren County, and because First Class Services did not
have an agent or business located in Warren County, the clerk
returned the summonses to Webb’s attorney with an explanation
that service of the summonses could not be accomplished by the
Warren County Sheriff.
1
Kentucky Revised Statutes (KRS) 304.39-230(6).
-2-
Eighteen months passed before Webb’s attorney forwarded the
summonses to the appropriate authority for service.
On January
10, 1997, he mailed one of the summonses to the Warren Circuit
Court Clerk with the following request:
Please find enclosed an original and one copy
of a summons, along with an attested copy of
the plaintiff’s complaint, issued by your
office on July 18, 1995, to be served on the
defendant Carl R. Roop in the above-styled
action. . . .
I am returning it to you with the request
that the summons b[e] executed pursuant to
KRS 454.210 (3)(b) by your sending to the
Kentucky Secretary of State by certified mail
two (2) true copies of the summons issued by
you on July 18, 1995, and two (2) attested
copies of the complaint which we filed on
behalf of the plaintiff.
I am asking that a new summons not be issued,
because I wish the original summons with the
original filing date forwarded to the
Secretary of State (emphasis in original).
If there is any additional charge for this
service, please contact me and we will
forward you the amount owed immediately.
The clerk mailed the summons to the Secretary of State on January
15, 1997.
On January 24, 1997, the Warren Circuit Court gave Webb
notice of its intent to dismiss the case pursuant to Kentucky
Rules of Civil Procedure (CR) 77.02(2)2, the “housekeeping” rule.
2
This rule provides, in part, as follows:
At least once each year trial courts shall
review all pending actions on their dockets.
Notice shall be given to each attorney of
record of every case in which no pretrial
step has been taken within the last year,
that the case will be dismissed in thirty
days for want of prosecution except for good
cause shown. . . .
(continued...)
-3-
A hearing was scheduled for February 27, 1997, for Webb to show
cause why no pretrial steps had been taken in the past year.
Webb’s counsel did not respond to the court’s notice, or attend
the show cause hearing.
Roop, who was served on February 8,
1997, and First Class Services, which had not yet been served,
filed a joint response to the trial court’s CR 77.02(2) notice.
In addition to the trial court’s sua sponte motion to dismiss for
want of prosecution, they argued an alternate ground for
dismissal--Webb’s failure to cause them to be served within the
limitations period.
On March 3, 1997, the trial court dismissed
the complaint under the housekeeping rule.
Webb, pursuant to CR 59, moved the trial court to
reconsider its order of dismissal.
The motion stated that Webb’s
attorney was ill on the date of the hearing.
A doctor’s note was
attached to the motion indicating counsel had been too ill to
work from February 25, to February 27, 1997.
On June 11, 1997,
the trial court set aside its order dismissing the action.
On July 22, 1997, First Class Services was finally
served by the Hancock County Sheriff’s Department.3
On July 30,
1997, Roop and First Class Services moved the trial court to
dismiss Webb’s complaint pursuant to CR 12.02, in lieu of filing
an answer.
2
On August 21, 1997, the appellees amended their
(...continued)
3
The record does not reveal when Webb’s attorney sent the
summons to the Hancock County Sheriff, but admittedly, that event
did not occur prior to January 10, 1997.
-4-
motion to a motion for summary judgment so as to allow the trial
court to consider matters outside of the pleadings.
In his response, Webb argued that the motion for
summary judgment was premature as the appellees had not yet filed
an answer asserting the affirmative defense of limitations
pursuant to CR 8.03.
Webb insisted that a CR 12.02 dismissal
could not be based on a statute of limitations defense.
On the
merits of the motion to dismiss, Webb argued that his letter to
the Warren Circuit Court of July 17, 1995, transmitting the
complaint, the summonses, and the necessary fee for the service
of the summonses, conclusively established that the action was
commenced in “good faith” as contemplated by KRS 413.2504 and
that statute’s counterpart in the rules, CR 35.
In granting the appellees’ motion and dismissing the
complaint, the trial court determined that Webb “did not exert a
good faith effort to serve Defendants, thus failing to satisfy
the requirements of KRS 413.250 and CR 3.”
Furthermore, the
trial court rejected Webb’s argument that the issue should not be
resolved by way of motion for summary judgment, concluding as
follows:
First, CR 12.02 specifies that the defense of
“insufficiency of process” need not be made
in the responsive pleading and may be made by
motion. Second, CR 12.02 also states that a
4
KRS 413.250 reads as follows: “An action shall be deemed to
commence on the date of the first summons or process issued in
good faith from the court having jurisdiction of the cause of
action.”
5
CR 3 provides as follows: “A civil action is commenced by
the filing of a complaint with the court and the issuance of a
summons or warning order thereon in good faith.”
-5-
motion for failure to state a claim upon
which relief can be granted, commonly
referred to as a motion to dismiss, need not
be raised in the answer and may also be
raised in a motion before the responsive
pleading (emphasis in original).
Webb timely moved the trial court to alter, amend or vacate the
summary judgment.
This motion was denied on December 10, 1997.
This appeal followed.
Webb continues to insist in this appeal, that the trial
court erred in entertaining the appellees’ motion for summary
judgment when they had not yet filed an answer asserting the
affirmative defense of limitations.
He argues the following:
Since the affirmative defense of limitation
is not listed as a Rule 12 defense, it may
not be asserted on a motion to dismiss
without it having been affirmatively pled.
And since appellees did not affirmatively
plead anything (they did not file any answer
at all), their motion for summary judgment
should have been denied.
Other than citing CR 8.036 and CR 12.02, Webb has not cited any
6
This rule pertaining to affirmative defenses reads as
follows:
In pleading to a preceding pleading, a
party shall set forth affirmatively accord
and satisfaction, arbitration and award,
assumption of risk, contributory negligence,
discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, illegality,
injury by fellow servant, laches, license,
payment, release, res judicata, statute of
frauds, statute of limitations, waiver, and
any other matter constituting an avoidance or
affirmative defense. When a party has
mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the
court of terms, if justice so requires, shall
treat the pleadings as if there had been a
proper designation (emphasis added).
-6-
authority.7
The appellees, on the other hand, insist that CR
12.02(f) authorizes a motion to dismiss for failure to state a
claim predicated on a statute of limitations defense.
Their
argument in this regard is not novel, as recognized in 6
Phillips, Kentucky Practice, CR 8.03, cmt.3 (5th ed. 1995), as
follows:
The defenses governed by this Rule should
be raised by pleading, not by motion.
However, it is possible that such an
7
CR 12.02 provides as follows:
Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim,
counterclaim, cross claim, or third-party
claim shall be asserted in the responsive
pleading thereto if one is required, except
that the following defenses may at the option
of the pleader be made by motion: (a) lack of
jurisdiction over the subject matter, (b)
lack of jurisdiction over the person, (c)
improper venue, (d) insufficiency of process,
(e) insufficiency of service of process, (f)
failure to state a claim upon which relief
can be granted, and (g) failure to join a
party under Rule 19. A motion making any of
these defenses shall be made before pleading
if a further pleading is permitted. No
defense or objection is waived by being
joined with one or more defenses or
objections in a responsive pleading or
motion. If a pleading sets forth a claim for
relief to which the adverse party is not
required to serve a responsive pleading, he
may assert at the trial any defense in law or
fact to that claim for relief. If, on a
motion asserting the defense that the
pleading fails to state a claim upon which
relief can be granted, matters outside the
pleading are presented to and not excluded by
the court, the motion shall be treated as one
for summary judgment and disposed of as
provided in Rule 56, and all parties shall be
given reasonable opportunity to present all
material made pertinent to such a motion by
Rule 56.
-7-
affirmative defense could be considered on a
motion for judgment on the pleadings under CR
12.03, motion to dismiss, or summary judgment
under CR 56. An affirmative defense may be
taken advantage of on a motion to dismiss for
failure to state a claim under CR 12.02 if
the defense is shown on the face of the
complaint, or if the motion to dismiss is
treated as one for summary judgment and the
matter is presented by affidavit. This is
particularly true with respect to the statute
of limitations (footnote omitted).
See also, Tomlinson v. Siehl, Ky., 459 S.W.2d 166 (1970); Rather
v. Allen County War Memorial Hospital, Ky., 429 S.W.2d 860
(1968); and Old Mason’s Home of Kentucky, Inc. v. Mitchell,
Ky.App., 892 S.W.2d 304 (1995).
CR 12.02 explicitly contemplates
that such a motion might require “matters outside the pleadings”
to be presented to the court, converting the motion to one
governed by CR 56.
This was the procedure used by the trial
court in the case sub judice.
Clearly, Webb was given an
opportunity to respond to the motion and does not argue that he
was denied due process by the trial court’s resolution of the
threshold issue of statute of limitations via the motion to
dismiss.
See Hoke v. Cullinan, Ky., 914 S.W.2d 335 (1995).
Accordingly, the motion was appropriately treated, and is now
reviewable, as one for summary judgment.
The standard of review of a summary dismissal is well
settled.
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky.,
807 S.W.2d 476 (1991).
Only where it is shown that a plaintiff
has no chance of succeeding at trial should a case be summarily
dismissed.
Id. at 483.
However, it is necessary that the
respondent demonstrate that there is “some affirmative evidence”
to create a genuine issue of material fact.
-8-
Id. at 482.
When
the statute of limitations is put in issue, “the burden falls on
the complainant to prove such facts as would toll the statute[.]”
Southeastern Kentucky Baptist Hospital, Inc. v. Gaylor, Ky., 756
S.W.2d 467, 469 (1988).
Webb insists that the statute of limitations was
forever tolled when on July 17, 1995, he mailed the complaint and
summonses to the Warren Circuit Court Clerk with directions that
the clerk issue the summonses and forward them to the Warren
County Sheriff for service upon the appellees.8
Webb contends
that “[t]he fact that the clerk did not grant counsel’s request
does not negate the good faith shown to institute the action.”
Clearly, the actions of Webb’s counsel on July 17, 1995, of
mailing the complaint, the summonses and the appropriate fees to
the Warren Circuit Court are evidence of his good faith that the
summonses be issued.
Even assuming that counsel was negligent in
directing the clerk to transmit the summons and complaint to the
Warren County Sheriff, such negligence would not overcome the
presumption that he had a good faith intention that they be
issued.
See Jones v. Baptist Healthcare System, Inc., Ky.App.,
964 S.W.2d 805, 807 (1997) (the rule “that negligence, rather
8
At the hearing before the trial court, Webb’s attorney,
explained that, despite the inability of the Warren County
Sheriff to accomplish service, his request was in keeping with
the practice in Nelson County. He stated that the Nelson County
Sheriff “actually handles the transmittals to whoever they need
to go” and that he was “unfamiliar” with the procedure used in
Warren County. Regardless of the practice in Nelson County, CR
4.01 clearly puts the duty on the court clerk, not the sheriff of
a county, to forward process to a proper officer in another
county to be served. Thus, since Webb’s request would not have
resulted in service on the appellees, the return of the summonses
to Webb’s attorney, with an explanation, was the appropriate
action to take.
-9-
than bad faith, in the execution and issuance of a summons will
not bar a cause of action” determined to apply where plaintiff
gave the clerk the wrong name of agent for service of process for
defendant/hospital and had incorrectly named the hospital in the
complaint).
However, because the summonses were returned to
Webb’s counsel, a fact that Webb’s counsel admits, and counsel
retained the documents for 18 months before attempting service,
again, a fact that is not in dispute, the trial court’s refusal
to accord a presumption of good faith to counsel’s inaction and
unexplained delay in causing the appellees to be served was
required as a matter of law.
It is settled in this jurisdiction
that when a summons is returned or retained by counsel for the
plaintiff, any presumption that it was originally issued in good
faith, that is, with an intention that it be served “presently or
in due course or without abandonment,” Roehrig v. Merchants &
Businessmen’s Mutual Insurance Co.,Ky., 391 S.W.2d 369, 371
(1965), may be rebutted by subsequent events evincing an intent
to withhold service.
Whittinghill v. Smith, Ky.App., 562 S.W.2d
649, 650 (1978).
In Whittinghill, the plaintiff’s counsel deliberately
directed the clerk not to deliver the summons to the sheriff for
service, ostensibly because settlement negotiations were taking
place.
In affirming the summary dismissal of the complaint, this
Court, citing Louisville and N.R. Co. v. Little, 264 Ky. 579,
583, 95 S.W.2d 253, 255 (1936), held as follows:
The taking out of summons is presumptive
evidence of an intention to have it served in
due course, but that presumption may be
rebutted by the facts. It may have been
-10-
issued to be used or not, as circumstances
thereafter required. Service may have been
intentionally withheld by direction of the
plaintiff until the occurrence of an event
upon which his decision as to effecting the
process depended. In other words, causing a
summons to be issued by the clerk
conditionally is not causing it to be issued
in good faith. An intention to postpone
starting the litigation is thereby evidenced.
All the authorities are to the effect that
the cause of action is not commenced until
there is a bona fide intention to have the
summons filled out and signed by the clerk,
accompanied by bona fide, unequivocal
intention to have it served or proceeded on
presently or in due course or without
abandonment. Action and intention combined
constitutes the commencement of the suit,
because a summons filled out and signed with
no intention of having it served is
altogether inoperative (citations omitted).
. . . .
Of course, though it has been postponed, when
a summons is actually served or put in line
of service, the mere intention to have it
issued is translated into a good-faith
intentional action. But if the suspension is
not closed before the right to sue ends, it
must be regarded that the plaintiff slumbered
through the time prescribed. So it is in the
instant case. The plaintiff either
deliberately withheld the actual legal
issuance of the summons, or through oversight
postponed the starting of the litigation
until after the bell had rung out the hour
barring his right of action.
Id.
See also Wooten v. Begley, Ky., 305 S.W.2d 270, 271 (1957)
(“in the absence of a showing of a valid excuse for the delay, a
summons issued by the clerk and delivered to the plaintiff or his
attorney is not deemed to have been issued in good faith until it
is given to the sheriff or other proper officer to be served”);
E.L.Allen v. O.K. Mobile Home Sales, Inc., Ky.App., 570 S.W.2d
660, 661 (1978) (“taking out of summons is presumptive evidence
-11-
of an intention to have it served in due course,” but the
evidence is “rebutted” if delivered to plaintiff’s attorney and
“service of the summons is made after the right to sue ends”);
Gibson v. EPI Corp., Ky.App., 940 S.W.2d 912 (1997) (dismissal
affirmed where summons was issued to plaintiff’s counsel on
December 9, 1994, and served on May 3, 1995, after the expiration
of the limitations period).
Webb attempts to distinguish his situation from that in
Whittinghill, by pointing out that in that case the plaintiff’s
counsel “directed the clerk to hold the summons and not deliver
it to the sheriff for service,” supra at 650, whereas in the case
sub judice the attorney requested the clerk to place the
summonses “in line for service.”
Granted, Webb’s attorney did
not ask that the summonses be returned to him.
However, the
failure of the clerk to perform a request that would not have
accomplished service and the clerk’s action of returning the
summonses to Webb’s attorney did not relieve counsel of the duty
to promptly take steps necessary to insure service.
It is clear
that the intent of both KRS 413.250 and CR 3 is to protect the
plaintiff from the risk that the statute of limitations may bar
his action if the clerk fails to act.
It may be conceded that under the authorities
relied on by plaintiff, if the summons be
actually issued, though a clerical mistake be
made by the clerk, the action will be deemed
to have commenced as against the defendant
against whom summons was issued. But the
cases relied on do not sustain the contention
that the mere direction to the clerk to issue
summons is a commencement of the action
against a defendant who, as a matter of fact,
is not summoned at all. Indeed, there is a
wide difference between directing a summons
-12-
to be issued and actually causing it to be
issued.
Casey v. Newport Rolling Mill Co., 156 Ky. 623, 627, 161 S.W.2d
528, 530 (1913).
See also, Blue Grass Mining Co. v, Stamper, 267
Ky. 643, 103 S.W.2d 112 (1937) (statute of limitations defense
failed where neither “[plaintiff][n]or his attorney had taken
charge of the summons and failed to deliver it to the sheriff
until after the period of limitation had expired,” but instead,
where failure of process to reach the out-of-county sheriff was
attributable to the “fault” of the clerk or the sheriff).
Clearly, despite Webb’s assertions to the contrary, a plaintiff
may not keep his action alive by an initial good faith attempt to
accomplish service prior to the expiration of the limitations
period, where service is ultimately frustrated by the plaintiff’s
inattention and unexplained delay, whether deliberate or caused
by “oversight.” Whittinghill, 562 S.W.2d at 650.
With the exception of a vague reference to his
“personal situation,” Webb’s attorney made no attempt to explain
the eighteen-month delay in attempting service on the appellees.
Thus, there was no genuine issue of material fact bearing on the
issue of his intent to have the summonses issued in good faith as
contemplated by KRS 413.250 and CR 3.
Accordingly, the judgment
of the Warren Circuit Court is affirmed.
ALL CONCUR.
BRIEFSFOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. John David Seay
Bardstown, KY
Hon. Timothy L. Edelen
Hon. David T. Sparks
Bowling Green, KY
-13-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
