Thomas Summers v. Louisville Jefferson County Metro Government ( 2020 )

RENDERED: OCTOBER 9, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-1479-MR
THOMAS SUMMERS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE DARRYL S. LAVERY, JUDGE
ACTION NO. 18-CI-002614
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT APPELLEE
OPINION
VACATING AND REMANDING
WITH DIRECTIONS
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BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.
TAYLOR, JUDGE: Thomas Summers brings this appeal from a September 10,
2018, Order of the Jefferson Circuit Court dismissing Summers’ complaint against
Louisville/Jefferson County Metro Government (Louisville Metro), presumably
dismissed pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f). For the
reasons stated, we vacate and remand with directions.
On May 7, 2018, Summers, then pro se, filed a one-page handwritten
complaint. The entirety of Summers’ complaint read as follows: “Civil Right
Violation Equal Employment Opportunity Discrimination Harassment by a
Louisville Metro Government Supervisor Job promotion.”
In lieu of filing an answer, Louisville Metro filed a motion pursuant to
CR 12.05 for a more definite statement. Therein, Louisville Metro noted there was
no indication whether the action was brought pursuant to federal civil rights law or
state civil rights law, no description of the actions taken against Summers that
allegedly resulted in discrimination and/or harassment, and no facts to support his
allegation of a civil rights violation.
By order entered July 16, 2018, the circuit court granted Louisville
Metro’s motion for a more definite statement and gave Summers ten days to file a
more definite statement. On July 26, 2018, Summers timely filed an “amended
complaint” setting out plaintiff’s “definite statement.”1 Summers failed to include
a certificate of service on the amended pleading and Louisville Metro asserts it was
not served with the amended complaint setting out a more definite statement of the
claims.2 Then, on August 16, 2018, Louisville Metro filed a motion pursuant to
1
For purposes of review, this opinion will address Thomas Summers’ response to the order
directing a more definite statement as an amended complaint.
2
The circuit court’s order entered July 16, 2018, directed Louisville/Jefferson County Metro
Government (Louisville Metro) to file an answer to the amended complaint within 20 days after
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CR 12.02(f) to dismiss Summers’ complaint for failure to state a claim upon which
relief could be granted. By order entered September 10, 2018, the circuit court
granted Louisville Metro’s motion to dismiss and dismissed Summers’ complaint
with prejudice. The order did not state the basis for dismissal. This appeal
follows.
We begin by noting that Summers, pro se, timely filed the notice of
appeal on October 4, 2018. He also filed, pro se, a prehearing statement on
October 25, 2018. On May 20, 2019, attorney Marque G. Carey entered his
appearance for Summers. Thereafter, Summers’ brief was filed by attorney Carey.
The brief does not address the merits of Summers’ claims, but rather only
addressed the timeliness of the filing of the amended complaint below. Based on
the grounds set out in the motion to dismiss, Summers argues the circuit court did
not review the amended complaint filed in response to the court’s order for a more
definite statement, which thus resulted in dismissal of the case. Summers also
argues that the amended complaint sufficiently put Louisville Metro on notice that
he was discriminated against in his employment by Louisville Metro based on race.
However, the amended complaint does not contain a certificate of service and
service of the more definite statement. Louisville Metro did not file an answer prior to filing the
motion to dismiss.
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Louisville Metro alleges that the amended complaint was not served on Louisville
Metro’s counsel.
Summers’ primary argument on appeal presumes the circuit court did
not review the amended complaint in granting the motion to dismiss. The
amended complaint was filed on July 26, 2018, and the court’s order dismissing
the case was entered on September 10, 2018. However, the motion to dismiss was
filed on August 16, 2018, pursuant to CR 12.02(f), asserting that the complaint
failed to state a cause of action for which relief could be granted. As noted, the
motion to dismiss did not reference the amended complaint, presumably because it
had not been served on Louisville Metro’s counsel when filed. The circuit court’s
order does not reference CR 12.02(f) as a basis for dismissal. And, the court did
not conduct a hearing on the motion to dismiss. Further complicating matters for
purposes of our review, the circuit court entered the order dismissing that was
tendered by Louisville Metro with its motion to dismiss. Again, the motion to
dismiss was premised on the argument that Summers had not filed an amended
complaint in accordance with the court’s earlier order for a more definite statement
and, thus, under CR 12.02(f), appellee was entitled to a dismissal on the merits.
Had Summers ignored the court’s order to file a more definite
statement, then dismissal was certainly within the circuit court’s sound discretion
in this case. See Reisert v. Apple Valley Resort, Inc., 551 S.W.2d 256, 258 (Ky.
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App. 1977). However, Summers did timely file a response to the court’s order by
filing an amended pleading or complaint on July 26, 2018, although arguably it
was not properly served on appellee’s counsel. Dismissal pursuant to CR 12.05
under this circumstance would likely be considered overly harsh. See id.
While we could assume that the circuit court reviewed the amended
complaint in dismissing the case, that assumption would be contradicted by the fact
that the court entered a terse two-sentence order dismissing, tendered by Louisville
Metro, which gives no explanation for the basis of dismissal. Thus, we have no
way of knowing whether dismissal was based on CR 12.02(f) or CR 12.05, which
clearly compromises our duty to fairly review the proceedings below.
Under these circumstances, we cannot conduct a de novo review,
which would be permissible if the case was dismissed on the merits under CR
12.02(f). See Carruthers v. Edwards, 395 S.W.3d 488, 491 (Ky. App. 2012).
Accordingly, we must vacate and remand for the circuit court to
reconsider the motion to dismiss in accordance with this opinion and further direct
the court to conduct a hearing on the merits of the CR 12.02(f) motion to dismiss
filed by Louisville Metro.3
3
This Court is not mandating an evidentiary hearing, but rather a hearing to allow counsel to
argue and address the merits of the Kentucky Rules of Civil Procedure 12.02(f) motion to
dismiss based on the entire record below.
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For the foregoing reasons, the Order of the Jefferson Circuit Court is
vacated and remanded with directions.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Marque G. Carey Annale R. Taylor
Louisville, Kentucky Assistant County Attorney
Frankfort, Kentucky
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