SCOTT PRESTON v. CITY OF DANVILLE AND J. RALPH GREER
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RENDERED:
DECEMBER 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002973-MR
SCOTT PRESTON
v.
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE STEPHEN M. SHEWMAKER, JUDGE
ACTION NO. 98-CI-00162
CITY OF DANVILLE AND
J. RALPH GREER
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Scott Preston appeals from an order of the
Boyle Circuit Court finding that a previous order of the court
was a final and appealable judgment.
As the trial court erred in
designating what was an interlocutory order as final and
appealable, we reverse and remand for further proceedings.
On March 26, 1998 and April 24, 1998, Scott Preston,
appellant, filed a complaint and amended complaint against
appellees, J. Ralph Greer (Greer) and the City of Danville (the
City).
The complaint alleged that Preston was subjected to a
hostile or abusive working environment after an incident of
unwanted sexual contact perpetrated upon Preston by Greer.
The
complaint alleged that the incident took place in May 1994, at
which time Greer was Preston's supervisor at the Public Works
Department of the City of Danville.
Preston's complaint stated
claims for sexual battery and sexual harassment against Greer and
the City.
Although he did not specifically state as such, we
presume, as did the trial court and appellees, that Preston's
allegation of hostile and abusive workplace sexual harassment was
an attempt at stating a claim pursuant to KRS Chapter 344.
On May 29, 1998, the appellees filed a motion to
dismiss Preston's complaint.
In their accompanying memorandum of
law, the appellees argued that 1) Preston's tort claims for
sexual assault and battery were barred by the one-year statute of
limitations set forth in KRS 413.140(1)(a); and 2) Preston's KRS
Chapter 344 claim against Greer must be dismissed as a matter of
law as KRS Chapter 344 does not impose liability against
individual employees.
The memorandum went on to state that
"Plaintiff's only properly stated claim, to the extent one exists
at all, which is denied, is against the City under KRS Chapter
344 for sexual harassment.
The City reserves the right to move
the Court for summary judgment dismissing that claim following an
appropriate period of discovery."
On July 8, 1998, Preston filed a response to the motion
to dismiss, contending that a reading of his complaint clearly
indicates, as the 1994 incident did not cause him bodily harm but
rather severe emotional trauma, that his complaint stated a claim
for the tort of outrageous conduct, which has a five-year statute
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of limitations.
Additionally, the response reiterated Preston's
KRS Chapter 344 claims against Greer and the City.
On July 13, 1998, the appellees filed a reply to
Preston's response to the motion to dismiss, contending that 1)
Preston cannot recast his complaint as the tort of outrage,
rather than sexual assault and battery, in order to get the
benefit of the five-year statute of limitations; and 2) Preston
may not maintain a sexual harassment claim under KRS Chapter 344
against Greer in his individual capacity.
The response concluded
by requesting that the court "grant Defendants' Motion to Dismiss
all claims against Mr. Greer, and the alleged sexual assault and
battery claims against the City of Danville, and further to
clarify that the Plaintiff may not properly state any purported
'tort of outrage' claim." (emphasis original).
In an order dated August 4, 1998 and entered on
August 5, 1998, (hereinafter referred to as the "August 4, 1998
order") the court stated:
This cause is before the Court pursuant to
the Defendant's Motion to Dismiss and for
Summary Judgment on behalf of the individual
Defendant, J. Ralph Greer.
The records and case citations clearly
indicate that the individual J. Ralph Greer
must be dismissed. A long list of cases
indicates that a supervisory employee cannot
be held liable in his personal capacity for
damages as a result of violation of KRS 344,
. . . or a violation of Title VII.
That leaves the remaining claim of the
Defendant for relief pursuant to the statute
of limitations. In Plaintiff's original
complaint he alleges in numerous places that
his claim against Defendant Greer was for
sexual battery, sexual touching and grabbing
and holding. These allegations are clearly a
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sexual battery. The statute of limitations
for such battery is one year. These claims
were not filed within that time.
Now Plaintiff attempts to recast his
complaint as one for the tort of outrage.
This same approach was attempted in the case
of Rigazio v. Archdiocese of Louisville, Ky.
App., 853 S.W.2d 295 (1993) and the Court
determined that on the same or similar
fact[s] that recovery for the tort of outrage
is not permissible. Consequently, the
Defendant's motion for Summary Judgment as to
the claims of the Plaintiff on tort of
outrage shall be granted.
WHEREFORE, IT IS HEREBY ORDERED:
1. Defendant shall be granted Summary
Judgment as to the claims made against Greer
individually under KRS 344 as same does not
permit recovery from the individual
defendant.
2. The Defendant's motion to dismiss the
sexual assault and battery claims against
Greer and the City of Danville [is granted]
as same are outside the one year statute of
limitations.
3. The plaintiff's claim for outrage cannot
withstand the motion for Summary Judgment
pursuant to the case of Rigazio v.
Archdiocese of Louisville, 85[3] S.W.2d 295
(1993), and the Defendant's motion for
Summary Judgment shall be granted as to that
claim as well.
4. This judgment having disposed of all
claims of the Plaintiff, this case shall be
DISMISSED from the active docket.
On August 10, 1999, Preston filed a motion to redocket
on the grounds that the court's August 4, 1998 order was silent
as to the KRS Chapter 344 claim, and the civil outrage relating
thereto, against the City.
Preston contended that, as all of the
claims were not disposed of, and the order contained no finality
language, per CR 54.02, the August 4, 1998 order was not final.
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On September 9, 1999, the City filed a response in opposition to
Preston's motion to redocket.
Citing the court's language from
the August 4, 1998 order "This judgment having disposed of all
claims of the Plaintiff this case shall be dismissed from the
active docket", (emphasis original), the City argued that the
August 4, 1998 order was a final judgment, from which Preston did
not timely object or appeal.
On September 21, 1999, the court
entered an order redocketing the action "on the issue remaining,
sexual harassment and civil outrage relating thereto against
defendant, City of Danville."
On October 1, 1999, the City filed
a motion to reconsider the order redocketing.
On October 20,
1999, the court entered an order setting aside the September 21,
1999 order redocketing, and granting the parties additional time
to file supplemental memoranda.
Additionally, on November 9,
1999, Preston filed a motion to reconsider the court's order
dismissing his civil outrage claim.
A hearing was held on the
motions, and, in an order dated November 24, 1999 and entered on
November 29, 1999, the court denied Preston's motions to redocket
and reconsider, stating that "the summary judgment Order entered
August 4, 1998 was a final, appealable judgment."
This appeal
followed.
CR 54.01 defines a "final or appealable judgment" as "a
final order adjudicating all the rights of all the parties in an
action or proceeding, or a judgment made final under Rule 54.02."
CR 54.02 states, in pertinent part:
(1) When more than one claim for relief is
presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party
claim, or when multiple parties are involved,
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the court may grant a final judgment upon one
or more but less than all of the claims or
parties only upon a determination that there
is no just reason for delay. The judgment
shall recite such determination and shall
recite that the judgment is final. In the
absence of such recital, any order or other
form of decision, however designated, which
adjudicates less than all the claims or the
rights and liabilities of less than all the
parties shall not terminate the action as to
any of the claims or parties, and the order
or other form of decision is interlocutory
and subject to revision at any time before
the entry of judgment adjudicating all the
claims and the rights and liabilities of all
the parties.
In the instant case, Preston's complaint and amended
complaint clearly contained 1) a sexual battery claim against
Greer; 2) a KRS Chapter 344 claim against Greer; 3) a sexual
battery claim against the City of Danville; and 4) a KRS Chapter
344 claim against the City of Danville.
The court's August 4,
1998 order disposed of the sexual battery claims against Greer
and the City, the claim for outrage, and the KRS Chapter 344
claim against Greer.
However, the order was silent as to the KRS
Chapter 344 claim against the City.
As the August 4, 1998 order
failed to adjudicate all of the claims, and did not recite that
it was final as to the issues decided and that no just reason for
delay existed, it was not a final and appealable judgment.
Signer v. Arnold, Ky., 436 S.W.2d 493, 494 (1969); Fruchtenicht
v. United States Fidelity and Guaranty Co., Ky., 451 S.W.2d 835,
837 (1969); CR 54.01; CR 54.02.
For the aforementioned reasons, we reverse the order
entered November 29, 1999 in which the trial court found that the
August 4, 1998 order was final and appealable, and hold that the
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August 4, 1998 order was interlocutory only.
The case is
remanded to the trial court for further proceedings.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Leslie Dean
Harrodsburg, Kentucky
Douglas L. McSwain
Edmund J. Benson
Lexington, Kentucky
BRIEF FOR APPELLEE, J. RALPH
GREER, INDIVIDUALLY:
Martha L. Brown
London, Kentucky
F. Preston Farmer
London, Kentucky
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