FRANCIS J. MURRAY v. COVINGTON POLICE DEPARTMENT S. H. GIBSON, M. D.; AND CITY OF COVINGTON and FRANCIS J. MURRAY v. COVINGTON POLICE DEPARTMENT; S. H. GIBSON, M. D.; OTHER PERSONS AND ORGANIZATIONS UNIDENTIFIED-UNKNOWN; AND CITY OF COVINGTON
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RENDERED:
November 2, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001018-MR
FRANCIS J. MURRAY
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 99-CI-01740
COVINGTON POLICE DEPARTMENT
S. H. GIBSON, M. D.; AND
CITY OF COVINGTON
AND:
NO. 2000-CA-002003-MR
FRANCIS J. MURRAY
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 99-CI-01740
COVINGTON POLICE DEPARTMENT;
S. H. GIBSON, M. D.;
OTHER PERSONS AND ORGANIZATIONS
UNIDENTIFIED-UNKNOWN; AND
CITY OF COVINGTON
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
APPELLEES
GUIDUGLI, HUDDLESTON AND JOHNSON, JUDGES.
APPELLEES
GUIDUGLI, JUDGE.
Francis J. Murray ("Murray") appeals from
orders of the Kenton Circuit Court dismissing his actions against
the City of Covington
and Dr. Smith H. Gibson ("Gibson").
We
affirm.
The record indicates that on September 1, 1999, Murray
filed a pro se complaint in Kenton Circuit Court against the City
of Covington and Gibson.
The complaint alleged in relevant part
that the City of Covington violated Murray's civil rights on July
23, 1998, when he was falsely arrested and imprisoned.1
He
further alleged that in a separate incident on April 6, 1999,
Covington police officers informed a "Dr. Dennison" that Murray's
vehicle was not registered, thus resulting in the doctor's office
having the vehicle towed.2
On September 3, 1999, Murray filed a
pleading styled "Corrected Filing of Docoment [sic]", which
changed the name "Dr. Dennison" to Dr. S.H. Gibson.
On September 15, 1999, the City of Covington moved for
a judgment on the pleadings and/or summary judgment.
As a basis
for the motion, it argued that the false imprisonment and civil
rights allegations were not brought within the one-year statute
of limitations.
The City further contended that the portion of
the complaint relating to Murray's vehicle being towed failed to
1
The facts relating to this incident are not contained in
the record. They were addressed in a criminal proceeding (98-M3656) to which the parties made reference in their circuit court
pleadings.
2
The parties do not directly address the facts relating to
this incident. An affidavit contained in the record states that
Murray was given permission to leave his vehicle on Gibson's lot
for one week. When the vehicle had not been removed three weeks
later, Gibson had the vehicle towed away.
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state a cause of action upon which relief could be granted.
It
appears from the record that the circuit court did not rule on
this motion.
On November 29, 1999, Gibson filed an answer and sought
a judgment on the pleadings.
He argued therein that the
complaint failed to make any allegation against him which
constituted a cause of action.
summary judgment.
On March 1, 2000, he sought
The latter motion was granted via an order
rendered on March 20, 2000.
Lastly, on June 28, 2000, the City of Covington moved
for summary judgment.
The memorandum in support of the motion
again raised the issue of Murray's failure to bring the action
within the statutory period.
Upon considering the matter, the
circuit court rendered an order on July 20, 2000 granting the
motion for summary judgment.
This appeal followed.
Murray has filed a two page pro se appellate brief.
As
best we can tell, it appears that Murray now argues that the
trial court erred in dismissing the action against the City of
Covington and Gibson.
Though his brief is difficult to decipher,
Murray apparently takes issue with the circuit court's reliance
on Gibson's affidavit as a basis for dismissing the claims.
Murray also argues that he complied with the appropriate statutes
of limitation, and that the circuit court erred in failing to so
find.
We have closely examined the facts, the law, and the
briefs, and cannot conclude that the circuit court erred in
granting summary judgment in favor of the City of Covington and
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Gibson.
Summary judgment shall be granted if the record shows
that there is no genuine issue of material fact and that the
movant is entitled to a judgment as a matter of law.
CR 56.03.
It should be granted only where it appears that it would be
impossible for the non-movant to produce evidence at trial
warranting a judgment in his or her favor.
Steelvest, Inc. v.
Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).
In the matter at bar, the issues raised in the
complaint are 1) false arrest/imprisonment, and 2) liability of
the City of Covington because the police told Gibson that
Murray's vehicle was improperly registered, causing it to be
towed.
favor of
The circuit court properly entered summary judgment in
the City of Covington on both counts.
As for the false
arrest/imprisonment issue, the arrest occurred on July 23, 1998,
and the complaint was not filed until September 1, 1999.
This
filing clearly was after the expiration of the one-year statute
of limitations set forth in 413.140(c).
Summary judgment on this
issue was appropriate.
On the issue of the City's alleged liability for
telling Gibson that Murray's vehicle was unregistered, we must
agree with the City that this allegation is not a viable cause of
action.
As the City notes in its argument, Gibson stated in an
affidavit that he, rather than the City, had Murray's vehicle
removed from his property.
Gibson further stated that the
vehicle was towed not pursuant to the authority of the Covington
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police, but under the authority of KRS 189.725.3
We are aware of
no recognized cause of action under these facts upon which Murray
could sustain
an action against the
City or prevail at trial.
The circuit court did not err in so finding.
Lastly, the summary judgment in favor of Gibson clearly
was required.
Murray's complaint does not allege any liability
as against Gibson, and asserts no recognizable cause of action.
The circuit court acted properly in rendering a summary judgment
in his favor. Steelvest, supra.
For the foregoing reasons, we affirm the summary
judgments of the Kenton Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE, CITY OF
COVINGTON:
Francis J. Murray
Covington, KY
Stephen T. McMurtry
City of Covington
Covington, KY
BRIEF FOR APPELLEE, S. H.
GIBSON, M.D.:
Dennis W. Van Houten
Cincinnati, OH
3
KRS 189.725(1) states, "[A]ny owner or attendant of a
privately owned parking lot may have removed from the lot any
unauthorized vehicle parked and any person engaged to remove such
vehicle shall have a lien on the vehicle in accordance with KRS
376.275.
-5-
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