Vincent Mock v. Panera Bread Company ( 2022 )

RENDERED: SEPTEMBER 30, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1393-MR
VINCENT MOCK APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 19-CI-03647
PANERA BREAD COMPANY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
MAZE, JUDGE: Vincent Mock (Mock) has appealed from the Fayette Circuit
Court’s order granting Panera Bread Company’s (Panera) motion to dismiss and/or
motion for summary judgment. After careful consideration, we affirm the trial
court’s order.
BACKGROUND
On October 11, 2019, Mock tendered a pro se complaint alleging that
Panera “Violated KRS[1] 413.140 towards the Plaintiff” and that it “committed
defamation, False light, intentional inflection [sic] and acted with negligence
reckless disregard for the truth, accused to the Plaintiff.” He also attached a
motion and affidavit seeking to proceed without the payment of court costs. That
motion was denied on October 17, 2019. No further action took place in the case
until January 5, 2021, when the court sent out its regular notice to dismiss for lack
of prosecution. Mock appeared for the court’s show cause and the case was
allowed to remain active. No additional steps were taken until July 20, 2021, when
summons was issued and the complaint was designated filed. Service was then
made upon Panera in St. Louis, Missouri.
On September 7, 2021, Panera filed its motion to dismiss and/or
motion for summary judgment asserting that Mock’s claims were barred by the
statute of limitations and were improperly stated. Mock filed his objection,
arguing that he had one year from October 11, 2018, the date of the “event”2 which
resulted in his complaint, plus thirty days from the date on which he learned that
1
Kentucky Revised Statutes.
2
Mock filed an amended complaint, containing details explaining the factual basis for his claims
and adding a claim for intentional infliction of emotional distress. However, he later withdrew
that amendment.
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his motion to proceed in forma pauperis had been denied. The court granted
Panera’s motion, dismissing all his claims. Mock’s subsequent motion to vacate
was denied and this appeal followed.
On appeal, Mock argues the trial court erred by denying his motion to
waive court costs, that it erred in failing to send out a form AOC-026 informing
him that he had thirty days in which to appeal or pay the fees, and that it erred in
denying his claim for intentional infliction of emotional distress.
Panera argues the trial court’s denial of Mock’s motion to proceed in
forma pauperis was not the basis for its order of dismissal. Panera asserts that
Mock’s claims were barred by the statute of limitations and therefore properly
dismissed. Further, specifically as to Mock’s claim for intentional infliction of
emotional distress, Panera argues that such a claim may not be asserted merely for
purposes of saving a complaint from dismissal on limitations grounds, where it is
not otherwise warranted.
STANDARD OF REVIEW
A motion to dismiss under CR3 12.02(f) for failure to state a claim
upon which relief may be granted is reviewed de novo. Carruthers v. Edwards,
395 S.W.3d 488, 491 (Ky. App. 2012). Summary judgment is also reviewed de
3
Kentucky Rules of Civil Procedure.
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novo. Isaacs v. Sentinel Insurance Company Limited, 607 S.W.3d 678, 681 (Ky.
2020).
ANALYSIS
Statute of Limitations:
Pursuant to CR 77.04(1) and CR 5.05(4) Mock had every right to
expect that he would receive notice of the court’s denial of his motion to proceed
in forma pauperis so that he could take the necessary steps within the limitations
period. However, CR 77.04(4) specifically provides that failure of the clerk to
send notice or of a party to receive it “shall not affect the validity of the judgment
or order, and does not affect the time to appeal or relieve or authorize the court to
relieve a party for failure to appeal within the time allowed, except as permitted in
Rule 73.02(1).” Thus, the burden remained on Mock to contest the trial court’s
order denying his motion to proceed in forma pauperis by appeal at the appropriate
time in the appropriate manner. Such a burden implies a duty to periodically
examine the court record to ascertain the status of any pending motions. Failure to
do so cannot be asserted to seek relief from the statute of limitations.
The statute of limitations for a defamation claim is one year. Caslin v.
Gen. Elec. Co., 608 S.W.2d 69, 70 (Ky. App. 1980) (citing KRS 413.140(1)(d)). It
begins to run from the date of “publication.” Id. The Court notes that the date of
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publication is not stated in Mock’s original complaint.4 CR 3.01 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.” In this case, while
the complaint was apparently tendered within the limitation period, it was not
accepted as filed until July 20, 2021.
Further, the summons to be associated with that complaint was not
issued until July 30, 2021. For purposes of interrupting the statute of limitations,
an action is not commenced until a summons is issued in good faith. Ideal Sav.,
Loan & Bldg. Ass’n of Newport v. Town of Park Hills, 281 Ky. 571, 574, 136
S.W.2d 748, 749-50 (Ky. 1940). Clearly, the trial court did not err in dismissing
Mock’s claim for defamation on the grounds that the statute of limitations had run.
KRS 413.120(6) sets forth a five-year statute of limitations for injuries
arising out of miscellaneous claims of a non-specific, non-contractual nature.
Claims for the intentional infliction of emotional distress have been held to fall into
this category. However, a claim for a more traditional tort, such as defamation,
cannot be saved from the application of the one-year statute of limitations by the
addition of a claim for intentional infliction of emotional distress, where that claim
4
In the amended complaint tendered to the trial court but not accepted, Mock asserted that the
publication date was October 11, 2018.
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is based upon the same facts. Shaw v. Handy, 588 S.W.3d 459, 461-62 (Ky. App.
2019) (citing Childers v. Geile, 367 S.W.3d 576, 582-83 (Ky. 2012)).
Failure to State a Claim:
Based upon the language of the trial court’s order of October 10,
2021, Mock’s claims were not only dismissed based on the statute of limitations
but upon his failure to properly state a claim. As a result, the court held that all his
claims were dismissed. The same language was employed when the matter was
reconsidered in the court’s order of November 8, 2021.
The elements of a defamation claim are: 1) defamatory language 2)
about the plaintiff 3) publication and 4) injury to reputation. Columbia Sussex
Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1981). Mock’s original
complaint alleges that he was defamed but fails to state the manner in which this
defamation occurred. While his amended complaint appears to establish these
minimal requirements, it was not filed until long after the statute of limitations had
run.5 Therefore, the trial court did not err in dismissing Mock’s defamation claim.
Similarly, Mock’s failure to properly plead a claim for false light
properly resulted in its dismissal. A plaintiff must plead that “(1) the false light in
5
Futility is one factor for the trial court to consider when determining whether to allow an
amended pleading. Kenney v. Hanger Prosthetics & Orthotics, Inc., 269 S.W.3d 866, 869 (Ky.
App. 2007) (citing First National Bank of Cincinnati v. Hartman, 747 S.W.2d 614, 616 (Ky.
App. 1988)).
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which the other was placed would be highly offensive to a reasonable person, and
(2) the publisher had knowledge of, or acted in reckless disregard as to the falsity
of the publicized matter and the false light in which the other was placed.”
Cromity v. Meiners, 494 S.W.3d 499, 505 (Ky. App. 2015) (quoting McCall v.
Courier Journal & Louisville Times Co., 623 S.W.2d 882, 888 (Ky. 1981)). Once
again, the basic requisites for a false light claim were not placed before the court
prior to the expiration of the statute of limitations.
CONCLUSION
For the foregoing reasons, we affirm the Fayette Circuit Court’s order
dismissing.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Vincent Mock, pro se Licha H. Farah, Jr.
Lexington, Kentucky James P. Freel
Lexington, Kentucky
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