CARRIE E. RICE v. CITY OF BARBOURVILLE
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RENDERED:
November 1, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000123-MR
CARRIE E. RICE
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
ACTION NO. 01-CI-00917
v.
CITY OF BARBOURVILLE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Carrie Rice has appealed from an order entered
by the Knox Circuit Court on December 13, 2001, which granted the
City of Barbourville’s1 motion to dismiss on the grounds that the
1
In the trial court, the defendants in addition to the City
of Barbourville included James Thompson, deceased, Mayor of
Barbourville, individually and in his official capacity as Mayor
of the City of Barbourville; Bert Scent; Calvin Manis; Gerald
Hyde; Wilma Barnes; Danny Stark; Joe Baty, individually and in
their official capacities as members of the Barbourville City
Council. The notice of appeal was improper because it merely
designated the appellees as “City of Barbourville, et al.” CR
73.03; Yocum v. Franklin County Fiscal Court, Ky.App., 545 S.W.2d
296 (1976). It may well be that dismissal of this appeal would
be appropriate for failure to name indispensable parties to the
appeal. However, since this issue has not been raised by the
City, in the interest of judicial economy we have chosen to
dispose of the case on the merits.
action was time-barred by the statute of limitations.
Having
concluded that the trial court was correct in dismissing Rice’s
complaint, we affirm.
On October 5, 2000, Rice was seriously injured when she
allegedly tripped and fell on a city sidewalk.
One year later,
on Friday, October 5, 2001, Rice filed a complaint in the Knox
Circuit Court alleging negligence on the part of the City.
The
complaint was filed at approximately 3:35 p.m., and all
applicable filing fees were paid at this time; however, the Knox
Circuit Clerk’s Office did not issue the required summons until
the following Monday, October 8, 2001.
The City filed a motion
to dismiss on the grounds that Rice’s complaint was time-barred
by the one-year statute of limitations contained in KRS2 413.140.
The trial court granted the motion to dismiss and this appeal
followed.
The sole issue on appeal is whether the trial court
erred by dismissing Rice’s complaint as time-barred by the oneyear statute of limitations.
KRS 413.140 provides in relevant
part:
(1)
The following actions shall be commenced
within one (1) year after the cause of
action accrued:
(a)
2
An action for an injury to the
person of the plaintiff, or of her
husband, his wife, child, ward,
apprentice, or servant [emphasis
added][.]
Kentucky Revised Statutes.
-2-
For Rice’s complaint to be timely, she must have commenced her
cause of action within one year after her injury occurred.
The
commencement of an action is governed by KRS 413.250, which
provides in relevant part:
An action shall be deemed to
date of the first summons or
in good faith from the court
jurisdiction of the cause of
commence on the
process issued
having
action.
Similar language is found in CR3 3, which provides that “[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” [emphasis added].4
Thus, the ultimate question is
whether the summons was issued by October 5, 2001.
The courts in this state have uniformly held that the
issuance of the summons constitutes the commencement of an
action.5
The issuance of the summons is central to the tolling
of the statute of limitations.6
Thus, the filing of a complaint,
in and of itself, does not constitute the commencement of an
action within the meaning of the statute of limitations.7
3
Kentucky Rules of Civil Procedure.
4
CR 3 is based on KRS 413.250.
Kentucky Practice Rule 3 (1995).
See 6 Kurt A. Philipps, Jr.,
5
Delong v. Delong, Ky., 335 S.W.2d 895, 896 (1960); Simpson
v. Antrobus, 260 Ky. 641, 86 S.W.2d 544, 546 (1935); Louisville &
Nashville Railroad Co. v. Napier’s Adm’r, 230 Ky. 323, 19 S.W.2d
997, 999 (1929); Casey v. Newport Rolling Mill Co., 156 Ky. 623,
161 S.W. 528, 530 (1913).
6
Wm. H. McGee & Co. v. Liebherr America, Inc., 789 F.Supp.
861, 866 (1992) (applying Kentucky law in a diversity action).
7
“The filing of a petition without a summons being issued is
(continued...)
-3-
In Casey, the former Court of Appeals addressed the
distinction between the actual issuance of a summons and merely
directing the clerk to issue a summons.
The attorney for the
plaintiff had filed an amended petition and directed the clerk of
the court to issue a summons against an additional defendant
within the one-year statute of limitations period required for
bringing a negligence action; however, the summons was not issued
until after the limitations period had expired.
Pursuant to the
defendant’s request, the trial court dismissed the action as
time-barred by the statute of limitations.8
The former Court of Appeals affirmed the dismissal in
Casey on the grounds that an action is commenced only when the
summons is issued and not by a mere request to have the summons
issued.9
The Court held that the statute and code made clear
that an action is commenced by the issuance of the summons.
In
particular, the Court noted the distinction between directing a
summons to be issued and actually causing it to be issued:
In the one case no summons may ever issue at
all; in the other case it must have been
issued. If the broad rule contended for by
plaintiff were adopted, it would lead to
endless confusion. The commencement of an
7
(...continued)
not the commencement of an action within the meaning of section
39 of the Civil Code of Practice and section 2524 of the Kentucky
Statutes, and the statute of limitation runs until a summons is
actually issued” [citations omitted]. Simpson, supra at 545-46.
KS 2254 was the predecessor to KRS 413.250 and CC 39 was the
predecessor to CR 3.
8
Casey, supra at 528-29.
9
Id. at 530.
-4-
action would be determined by parol evidence
instead of the actual issuance of the
summons. Parties having the right to rely on
the record, showing that no summons had been
issued, would be met with the contention that
the clerk had been requested to issue
summons, thus making important property
rights depend on an issue of veracity between
the clerk and the litigant or his attorney.
In our opinion, such was not the purpose of
the law-making power. The statute and code
make it clear that an action is commenced by
the issuance of the summons, and not by a
request to have the summons issued.10
The Court was simply unwilling to adopt a rule of law that would
frustrate the very purpose of the statute and give rise to vague
and ambiguous interpretations.
This general rule that a cause of action is commenced
upon the issuance of the summons has been repeatedly upheld.
In
Simpson, supra, the former Court of Appeals held that the filing
of a petition without a summons being issued is not the
commencement of an action within the meaning of the statute of
limitations.
The Court went on to state that “the statute of
limitations runs until a summons is actually issued.”11
Morever,
in Delong, supra, the Court held that “[s]ince no summons was
issued against the appellant until the one year statute of
limitations (KRS 413.140) had run, the action is barred as to him
and the judgment must be reversed.”12
In Wm. H. McGee & Co.,
supra, a federal case applying Kentucky law, the Court provided
10
Id.
11
Simpson, supra at 546.
12
Delong, supra at 896.
-5-
the following summary of when Kentucky’s statute of limitations
applies: “The Kentucky courts have consistently held that
whatever statute of limitations applies, it is not tolled until
summons is issued.
Thus, the state courts have implicitly
recognized the issuance of summons requirement as central to the
tolling of the statute” [citations omitted].13
It is clear from the case law that Kentucky courts have
chosen to make a distinction between the actual issuance of a
summons and a request or directive that one should be issued.
This distinction is best understood in light of the differences
evidenced in the Federal Rules of Civil Procedure governing the
commencement of an action, and in Kentucky’s version of the rule.
Rule 3 of the Federal Rules of Civil Procedure provides that “[a]
civil action is commenced by filing a complaint with the court.”
Thus, it is possible for an action to “commence” under Federal
Rule 3 with the filing of the complaint, while the summons may be
issued at a later date.
The Kentucky Legislature obviously
decided to take a different approach by adding the requirement
that a summons be issued in good faith before an action is deemed
to have commenced.
It takes more than the filing of the
complaint to commence an action; a summons must also be issued
before an action is deemed to have commenced.
Rice’s position is
contrary to the clear intent of our Legislature.
Rice claims that she did what was required of her to
comply with the statute and that it was the malfeasance of the
13
Wm. H. McGee, supra at 866.
-6-
clerk that resulted in the summons being issued three days after
the statute of limitations had expired.
Rice maintains that she
did everything the law required of her by filing her complaint
and by paying the clerk to issue and serve the summons by
certified mail.
Rice relies on CR 4.01(1) which states that
“[u]pon the filing of the complaint (or other initiating
document) the clerk shall forthwith issue the required summons. .
. .”
Rice argues that “forthwith” should be interpreted to mean
immediately upon receipt of the complaint.
Rice also points to
the language of CR 4.01(1)(b), which states that the clerk is
directed to “[c]ause the summons and complaint (or other
initiating document), with necessary copies, to be transferred
for service to any person authorized . . . to deliver them, who
shall serve the summons and accompanying documents . . . .”
Thus, it is the clerk’s duty to cause the summons to be issued
upon receipt of the complaint; and Rice would have this Court
establish a rule which requires the clerk to issue a summons
within an hour after receiving the complaint.14
It is beyond the
authority of this Court to establish such a rule.
Rice also claims that she acted in “good faith” by
simply filing the complaint and by so doing she complied with KRS
413.250.
Rice relies on the “good faith” language in KRS 413.250
and CR 3 to support her argument that she caused the summons to
14
On October 5, 2001, the Knox Circuit Court Clerk’s Office
closed at 4:30 p.m. Rice filed her complaint at approximately
3:35 p.m., leaving the clerk with a little less than an hour to
issue the summons.
-7-
be issued in good faith.
However, this argument ignores the fact
that our courts have drawn an important distinction between
directing a summons to be issued and actually causing it to be
issued.15
Rice cites Louisville & N. R. Co. v. Little,16 for the
proposition that once 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,” thereby
commencing the suit.
Rice’s reliance on Little is misplaced,
however, as the case sub judice is factually distinguishable.
The clerk of court in Little actually issued the summons and
placed it in the hands of the plaintiff’s attorney, per his
request.
The attorney failed to deliver the summons to the
sheriff for service until after the statute of limitations had
expired.17
Thus, in Little the action was timely because a
summons had been issued within the statute of limitations, it
just had not been served.
Rice also cites Rucker’s Adm’r v.
Roadway Express, Inc.,18 in support of her argument.
Rucker’s
Adm’r, however, presented precisely the same situation as Little.
The summons was issued within the one-year limitations period,
but it was not served until after the statute of limitations had
15
See Casey, supra at 530.
16
264 Ky. 579, 584, 95 S.W.2d 252, 255 (1936).
17
Id. at 254.
18
279 Ky. 707, 131 S.W.2d 840 (1939).
-8-
expired.19
Similarly, Rice’s reliance on Blue Grass Mining Co.
v. Stamper,20 is misplaced, since in that case the summons was
issued within the time allotted, but not served until after time
had expired.
Rice also cites Hagy v. Allen,21 in support of her
argument that her cause of action was timely simply by her filing
the complaint and paying all the fees associated with the filing
prior to the expiration of the statute.
Hagy, however, is
factually distinguishable from the present case.
In Hagy, the
time period for filing suit was to expire on December 31, 1956.
The plaintiff’s attorney went to the clerk’s office that morning
to file the complaints before time expired.
the clerk’s office was closed.
Much to his dismay,
The attorney then contacted the
clerk at home and offered to deliver the complaints to her
residence.
The clerk agreed to accommodate the attorney.
Realizing that the clerk would probably not have the necessary
forms for issuing summonses at her home, the attorney prepared
the original and two copies of the summons with the marshal’s
return attached and delivered them to the clerk’s residence on
the evening of December 31, 1956.22
The summonses were not
19
Id. at 841.
20
267 Ky. 643, 103 S.W.2d 112, 113 (1937).
21
153 F.Supp. 302 (E.D.Ky. 1957) (applying Kentucky law in a
diversity action).
22
In the case sub judice, the Knox Circuit Clerk’s Office
was open for business on October 5, 2001, and appellant filed the
complaint on that date. Furthermore, the attorney in Hagy made
(continued...)
-9-
issued until January 3, 1957, three days after the statute of
limitations had expired.23
The Court in Hagy interpreted the statute broadly and
deviated from the well enunciated rule that an action is
commenced by the actual issuance of the summons and not by a mere
request to have the summons issued.24
The Court concluded that
both law and equity justified its departure from this rule.25
However, the case law relied upon by the Court actually provides
little support for departing from this well established rule.
The Court cited Louisville & N. R. Co. v. Smith’s Adm’r,26 in
support of its ruling, but Smith’s Adm’r involved an instance in
which the clerk actually did issue the summons within the
limitations period.
Since the summons contained a clerical
error, the Court was not willing to deprive the plaintiff of his
remedy based solely on the clerk’s ministerial error.27
The Knox
Circuit Clerk committed no such error.
22
(...continued)
every effort to inform the clerk that his client’s cause of
action was to expire on that day. He even prepared all the
necessary forms and went to the clerk’s house to make sure the
summons was issued on that day. Rice’s attorney made no attempt
to inform the clerk that his client’s cause of action was to
expire on that day. The clerk was in no position nor under any
duty to make this determination.
23
Id. at 304.
24
Id. at 308-09.
25
Id. at 309.
26
87 Ky. 501, 9 S.W. 493 (1888).
27
Smith’s Adm’r, supra at 495.
-10-
Furthermore, the remaining cases cited by the Court in
Hagy involved instances which were factually distinguishable from
the present case.28
In the case sub judice, the
summons was not
issued within the one-year time period as required by the
statute.
Thus, although Hagy does lend support to Rice’s
position, it was an aberration from established Kentucky case
law.
The language of KRS 413.250 and CR 3 is unambiguous and the
Kentucky courts have been consistent in its application.
Accordingly, since Rice failed to meet the requirements
of the statute of limitations as the summons was not issued until
the limitations period had expired, the Knox Circuit Court’s
order dismissing the action is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dan Partin
Harlan, Kentucky
P. Kevin Moore
Lexington, Kentucky
28
See Hausman’s Administrator v. Poehlman, 314 Ky. 453, 236
S.W.2d 259 (1951); and Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d
954 (1933). In Hausman’s Adm’r, the summons was actually issued
within the limitations period, just not served. Prewitt involved
an extremely odd set of circumstances in which the clerk actually
left the state the evening before the statute of limitations was
set to expire in an attempt to thwart the plaintiff (a circuit
judge) from filing his complaint and from causing the summons to
be issued within the limitations period. The plaintiff actually
appeared at the clerk’s office at 10:00 a.m. on the date the
claim was set to expire. He was unable to find the clerk until
after time had expired.
-11-
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