TINA TALLMAN, PERSONAL REPRESENTATIVE OF THE ESTATE OF HAROLD G. LEE, JR., DECEASED, AND TINA CLARK, AS NEXT FRIEND AND GUARDIAN OF SAVANNA NICOLE LEE, A MINOR AND CHELSEY DAWN CLARK, A MINOR v. CITY OF ELIZABETHTOWN AND WILLIAM BLAND
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RENDERED: NOVEMBER 2, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002542-MR
TINA TALLMAN, PERSONAL REPRESENTATIVE OF
THE ESTATE OF HAROLD G. LEE, JR., DECEASED,
AND TINA CLARK, AS NEXT FRIEND AND GUARDIAN
OF SAVANNA NICOLE LEE, A MINOR AND CHELSEY
DAWN CLARK, A MINOR
v.
APPELLANTS
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET P. COLEMAN, JUDGE
ACTION NO. 06-CI-00712
CITY OF ELIZABETHTOWN AND
WILLIAM BLAND
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND KELLER, JUDGES; GRAVES,1 SENIOR JUDGE.
DIXON, JUDGE: Tina Tallman, as representative of the Estate of Harold G. Lee, Jr.,
and Tina Clark, as next friend and guardian of Lee's minor children, appeal an order of
Hardin Circuit Court granting summary judgment in favor of the City of Elizabethtown
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Senior Judge John W. Graves, sitting as Special Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
and Officer William Bland, an employee of the Elizabethtown Police Department. We
affirm.
During the late-night hours of July 3, 2001, Lee was a passenger in a
vehicle driven by Randall Babb. The two men had traveled to Elizabethtown, Kentucky
from Owensboro, Kentucky. Officer Bland attempted to initiate a traffic stop after
observing Babb's vehicle speeding. Babb, however, evaded the officer and a high speed
chase ensued. Babb's vehicle was ultimately disabled by “stingers” placed in the
roadway. Once his vehicle stopped, Babb fled from the scene on foot, and Lee remained
in the passenger's seat. Officer Bland pulled up beside the Babb vehicle and quickly
exited his cruiser with his gun drawn. Officer Bland commanded Lee to surrender and
show his hands. Lee neither responded to nor acknowledged the officer's demand.
Officer Bland crossed in front of Babb's vehicle and stepped up to the open window
where Lee sat. Bland reached in the window, grabbing at Lee's shoulder. At that
moment, Bland's gun discharged. The shot severed Bland's thumb and hit Lee in the
head, killing him.
In June 2002, Lee's estate (“the Estate”) filed suit against the Elizabethtown
Police Department (“EPD”) and Officer Bland in United States District Court for the
Western District of Kentucky. Pursuant to 42 U.S.C. § 1983, the Estate alleged Lee's
civil rights were violated by Officer Bland's unlawful seizure and use of deadly force.
The Estate also set forth claims cognizable under Kentucky state law, and Lee's minor
children claimed loss of parental consortium.
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In an opinion and order rendered May 21, 2004, the district court granted
summary judgment in favor of EPD and Officer Bland. Tallman v. Elizabethtown Police
Dept., 344 F. Supp. 2d 992 (W.D. Ky. 2004). The court determined that Officer Bland's
conduct was reasonable under the circumstances and that no constitutional violation
occurred. Id. at 996-97. The court, in granting summary judgment, dismissed the
Estate's federal claims with prejudice and dismissed the state law claims without
prejudice. Id. at 997.
In June 2004, the Estate appealed the dismissal of the § 1983 action to the
United States Court of Appeals for the Sixth Circuit. In an unpublished, two-to-one
decision rendered January 23, 2006, the Sixth Circuit affirmed the district court's grant of
summary judgment and dismissal of the Estate's federal claims.
In April 2006, the Estate filed a wrongful death lawsuit in Hardin Circuit
Court against the City of Elizabethtown (“City”) and Officer Bland. The complaint
alleged Lee's death was the result of Officer Bland's negligence and the City's failure to
properly train and supervise Officer Bland. Lee's minor children also claimed damages
for loss of parental consortium. The City and Officer Bland filed an answer and
subsequently moved for summary judgment, contending the Estate's action was barred by
res judicata and the statute of limitations. The Estate vigorously opposed summary
judgment and the parties briefed the issues before the circuit court. The court heard oral
arguments on September 5 and October 10, 2006. Thereafter, on November 20, 2006, the
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court granted summary judgment in favor of the City and Officer Bland. This appeal
followed.
“The standard of review on appeal of a summary judgment is whether the
trial court correctly found that there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996); Kentucky Rules of Civil Procedure (CR) 56.03. We
are mindful that “[t]he record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
The Estate raises several issues before this Court. However, after
thoroughly considering all of the arguments and relevant case law, we will only address
the statute of limitations issue because it is dispositive to this appeal.
Pursuant to Kentucky Revised Statutes (KRS) 413.140, a one-year
limitations period is generally applicable for a wrongful death cause of action. Here,
however, the Estate argues the savings provision found in KRS 413.270 tolled the oneyear statute of limitations on the state law claims until the Estate's federal appeal was
resolved. The Estate relies on the interpretation of KRS 413.270 enunciated in
Ockerman v. Wise, 274 S.W.2d 385 (Ky. 1955), to support its position.
We first set forth the pertinent language of the savings statute:
If an action is commenced in due time and in good faith in
any court of this state and the defendants or any of them make
defense, and it is adjudged that the court has no
jurisdiction of the action, the plaintiff or his representative
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may, within ninety (90) days from the time of that judgment,
commence a new action in the proper court. The time
between the commencement of the first and last action shall
not be counted in applying any statute of limitation.
KRS 413.270(1) (emphasis added).
In Ockerman, supra, the estate of an Ohio resident killed in Kentucky filed
a wrongful death lawsuit in United States District District Court for the Eastern District
of Kentucky. Ockerman, 274 S.W.2d at 386. The suit was dismissed for lack of
diversity of citizenship between the parties. Id. The estate appealed, and the federal
court of appeals affirmed the district court's dismissal for lack of diversity jurisdiction.
Id. The estate thereafter filed a complaint for wrongful death in Oldham Circuit Court.
Id. The case ultimately came before Kentucky's then-highest Court to determine whether
the savings statute allowed the estate to pursue a federal appeal following the district
court's dismissal for jurisdictional reasons. Id. at 387. The defendant argued the estate's
claim was time barred because the estate did not file a state court action within ninety
days of the district court's dismissal. Id. The Court held:
We conclude that the judgment referred to in the statute, KRS
413.270, is the decision which finally determines the
disputed issue over the court's jurisdiction - the trial
court's judgment if there is no appeal, but the appellate
court's ruling if there is an appeal.
Id. at 388 (emphasis added).
In the instant case, the Estate contends its Hardin Circuit Court complaint
was timely filed within ninety days of the Sixth Circuit's decision affirming summary
judgment.
-5-
In Ockerman, supra, the plaintiff's federal lawsuit was premised on
diversity of citizenship for federal jurisdiction. Id. at 386. The district court determined
diversity jurisdiction did not exist, and the plaintiff specifically appealed the court's
jurisdictional decision. Id. Whereas, in the case at bar, the Estate asserted a federal civil
rights action along with supplemental state claims. The district court declined to exercise
jurisdiction over the state claims after dismissing the § 1983 claim. Pursuant to 28
U.S.C. § 1367(c)(3), the district court had broad discretion to decline supplemental
jurisdiction once the court “ha[d] dismissed all claims over which it ha[d] original
jurisdiction.” On appeal to the Sixth Circuit, the Estate argued that summary dismissal of
the § 1983 claim was erroneous, but the Estate did not appeal the district court's dismissal
of the supplemental state claims.
KRS 413.270(1) plainly reads that the ninety day limitations period begins
when “it is adjudged that the court has no jurisdiction of the action.” Furthermore,
Ockerman, supra, advises that the limitations period is tolled where a jurisdictional
decision is disputed on appeal. Ockerman, 274 S.W.2d at 388. The Estate impliedly
argues that, even though it did not appeal the denial of supplemental jurisdiction, its
appeal of the § 1983 was jurisdictional for purposes of the savings statute. We disagree.
Under the facts presented here, we are not persuaded that the Estate's appeal to the Sixth
Circuit presented a jurisdictional question in line with the disputed diversity jurisdiction
at issue in Ockerman, supra.
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We conclude the issue of supplemental jurisdiction was finally decided by
the district court in its order of dismissal on May 21, 2004. As the issue of jurisdiction
was not appealed to the Sixth Circuit, the Estate was required to file its complaint in state
court within ninety days of the district court's order. KRS 413.270(1); Ockerman, 274
S.W.2d at 388. It is undisputed that the Estate filed its complaint in Hardin Circuit Court
on April 17, 2006. Accordingly, summary judgment was proper, as the City and Officer
Bland were entitled to judgment as a matter of law.
The Estate alternatively argues that the minor children's claims for loss of
parental consortium were not barred by the statute of limitations. The Estate contends
that KRS 413.170(1) tolls the limitations period of a minor's state law claim until the
minor reaches majority. Here, however, the children's claims were prosecuted on their
behalf by their mother, as guardian and next friend. In light of the procedural history of
this case, we are not persuaded that KRS 413.170(1) tolled the children's claims, and the
Estate offers no other authority to support its position. Consequently, we find this
argument to be without merit.
For the reasons stated herein, the trial judgment of the Hardin Circuit Court
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEES:
Evan Taylor
Owensboro, Kentucky
J. Peter Cassidy, Jr.
Lucy A. Pett
Lexington, Kentucky
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