Deondra Kimble v. Kentucky Lottery Corporation ( 2024 )

RENDERED: NOVEMBER 22, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-1413-MR
DEONDRA KIMBLE APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MELISSA L. BELLOWS, JUDGE
ACTION NO. 23-CI-006278
KENTUCKY LOTTERY
CORPORATION APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: CETRULO, L. JONES, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Deondra Kimble (“Kimble”) appeals from the Jefferson
Circuit Court’s order dismissing her claims for being filed outside the statute of
limitations. We vacate and remand.
BACKGROUND
Kimble, who is African American, filed a complaint in Jefferson
Circuit Court on October 11, 2023, against her former employer, Kentucky Lottery
Corporation (“KLC”), alleging race discrimination, retaliation, and constructive
discharge under the Kentucky Civil Rights Act (“KCRA”), KRS1 344.010 et seq.
According to the complaint, Kimble was subject to “disparate, adverse treatment,”
including “enhanced scrutiny, critique, and discipline” because of her race. When
Kimble protested the hostility increased, leading to her resignation on October 12,
2018.
KLC filed a motion to dismiss Kimble’s claims as outside the
KCRA’s five-year statute of limitations. Attached to the motion was the affidavit
of Michele Sullivan, KLC’s Vice President of Human Resources, affirming that
Kimble voluntarily resigned on September 26, 2018. Also attached to the motion
was Kimble’s resignation letter, dated September 26, 2018. In the letter, Kimble
declared her last day of work would be October 10, 2018. Three days after KLC
filed its motion to dismiss, and before Kimble could respond, the circuit court
granted the motion.2 This appeal followed.
1
Kentucky Revised Statutes.
2
In her brief, Kimble claims she was unaware her claims had been dismissed until after the time
to file a Kentucky Rules of Civil Procedure (“CR”) 59.05 motion to alter, amend, or vacate had
expired. KLC does not seriously challenge this assertion, so we assume it is true for purposes of
appeal.
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STANDARD OF REVIEW
It appears the circuit court considered matters outside the pleadings
when dismissing Kimble’s claims;3 therefore our review will proceed under the
summary judgment standard. See CR 12.02; D.F. Bailey, Inc. v. GRW Engineers,
Inc., 350 S.W.3d 818, 820-21 (Ky. App. 2011) (citations omitted) (noting a trial
court “may properly consider matters outside of the pleadings in making its
decision [on a motion to dismiss]. However, reliance on matters outside the
pleadings by the court effectively converts a motion to dismiss into a motion
for summary judgment.”). Accordingly, “[t]he standard of review on appeal of a
summary judgment is whether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party was entitled to
judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
1996).
3
Although the circuit court did not explain its reasoning, KLC’s motion to dismiss was based
upon the KCRA’s five-year statute of limitations. KLC argued the statute of limitations on
Kimble’s constructive discharge claim began to run on the date she tendered her resignation,
September 26, 2018. It argued the statute of limitations began to run on her discrimination and
retaliation claims, at the latest, on her last day of work, as stated in the resignation letter, October
10, 2018; but, Kimble’s complaint alleged she resigned on October 12, 2018. Viewing the
evidence in the light most favorable to Kimble, the statute of limitations began to run on October
12, 2018, and her claims were timely. To dismiss Kimble’s claims on statute of limitations
grounds, the circuit court necessarily considered (and accepted as true) the dates supplied in the
affidavit and letter of resignation attached to the motion to dismiss.
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ANALYSIS
Kimble argues the circuit court violated her due process rights when it
dismissed her claims without giving her notice and the opportunity to respond to
the motion as required by our civil rules. She also contends the court failed to
follow Jefferson Rules of Practice (“JRP”) 401 when it did not allow her twenty
days to respond before ruling on the motion to dismiss. KLC counters that the
dismissal was proper, citing Sosa v. State Farm Insurance, No. 2005-CA-001864-
MR, 2006 WL 2191131, at *2 (Ky. App. Aug. 4, 2006).
In Sosa, we declined to reverse a trial court’s grant of a motion to
dismiss (treated as a motion for summary judgment) on due process grounds.
Relying upon language from Sosa, KLC argues that even if Kimble had an
opportunity to respond to the motion to dismiss, “there are no legal or factual
grounds which [s]he could have presented that could have changed the outcome in
h[er] favor.” Id. at *2. Kimble leans upon this same language and maintains that
she could have presented evidence that her complaint was filed within the statute
of limitations. She contends that the last instance of discrimination or retaliation
occurred on October 12, 2018 – her last day of work as alleged in the complaint.
Thus, her claims, filed on October 11, 2023, were timely.
We have found no published Kentucky case addressing the propriety
of granting a motion to dismiss without allowing the non-moving party the
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opportunity to respond.4 Most unpublished cases considering the issue have found
such a reversible error. See Word of God Fellowship, Inc. v. Bob Rodgers
Ministries, Inc., No. 2021-CA-1388-MR, 2022 WL 4390885 (Ky. App. Sep. 23,
2022); Grim v. Republic Bank & Tr. Company, No. 2016-CA-000012-MR, 2018
WL 3090444 (Ky. App. June 22, 2018); Gaines v. Nichols, No. 2011-CA-000413-
MR, 2011 WL 6260365 (Ky. App. Dec. 16, 2011); Froman v. Taylor, No. 2003-
CA-002782-MR, 2005 WL 327111 (Ky. App. Feb. 11, 2005). The two exceptions
are Sosa and Abbott v. Kentucky Department of Corrections, 2017-CA-000459-
MR, 2018 WL 2277494 (Ky. App. May 18, 2018), which both held a trial court’s
dismissal without notice and opportunity to be heard is harmless error.5
The United States and Kentucky Constitutions protect against the
deprivation of liberty and property without due process of law.6 Notice and the
4
There are, however, published cases dealing with a lack of notice and opportunity to be heard
in the context of sua sponte dismissals. See, e.g., Storer Communications of Jefferson Cnty., Inc.
v. Oldham Cnty. Bd. of Educ., 850 S.W.2d 340 (Ky. App. 1993); Gall v. Scroggy, 725 S.W.2d
867 (Ky. App. 1987).
5
The exact basis of our Court’s holding in Sosa is somewhat unclear. In affirming the trial
court’s dismissal, we noted “Sosa has not cited any authority to support his argument that this
early entry of a final order amounted to deprivation of due process.” Sosa, 2006 WL 2191131, at
*2. We also held that even if Sosa had been allowed to respond, “there are no legal or factual
grounds which he could have presented that could have changed the outcome in his favor.” Id.Thus, it is unclear if Sosa went so far as to find no error, or simply harmless error.
6
The Fourteenth Amendment to the United States Constitution provides that “[n]o State shall . . .
deprive any person of life, liberty, or property, without due process of law.” Section 2 of the
Kentucky Constitution provides that “[a]bsolute and arbitrary power over the lives, liberty and
property of freemen exists nowhere in a republic, not even in the largest majority.”
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opportunity to respond are among the “minimal procedures” that ensure due
process. Storer Communications of Jefferson Cnty., Inc. v. Oldham Cnty. Bd. of
Educ., 850 S.W.2d 340, 341 (Ky. App. 1993). These constitutional requirements
are embodied in our civil rules as well. Under CR 12 and CR 56, motions to
dismiss and motions for summary judgment “must be served on non-moving
parties, who are given time to respond, and a hearing is required.” Storer, 850
S.W.2d at 342.
Further, CR 12.02 provides in pertinent part:
If, on a motion asserting the defense that the pleading
fails to state a claim upon which relief can be granted,
matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to
such a motion by Rule 56.
(Emphasis added.) Here, KLC tendered an affidavit and Kimble’s resignation
letter in support of its motion to dismiss, and the circuit court relied upon them,
effectively converting the motion into one for summary judgment. Under CR
12.02, Kimble should have been “given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.”
Similarly, JRP 401 provides that “[a]n opposing party shall have
twenty (20) days from the certification date on the motion [to dismiss or for
summary judgment] to respond.” In an unpublished case, Gaines v. Nichols, No.
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2011-CA-000413-MR, 2011 WL 6260365, *3 (Ky. App. Dec. 16, 2011), this
Court held “JRP 401 carries the force of a Kentucky Rule of Civil Procedure, and
that [plaintiffs] were not availed of the full 20 day period to respond to the motions
to dismiss.” We reversed the circuit court’s order dismissing the plaintiffs’ claims
and remanded for further proceedings.7 Here, KLC filed its motion to dismiss, and
the circuit court granted it three days later. As with our civil rules, Kimble should
have been afforded the protections of JRP 401 and allowed to respond to the
motion to dismiss.
We pass no judgment on whether Kimble’s claims will ultimately be
barred by the statute of limitations, only that she must be afforded the chance to
respond to KLC’s legal arguments and raise any factual dispute bearing on the
question.
CONCLUSION
Accordingly, we vacate the Jefferson Circuit Court’s order and
remand with instructions to allow Kimble to respond to the motion and comply
with the provisions of CR 56 and JRP 401.
ALL CONCUR.
7
We cite this unpublished opinion, not as binding authority, but for consideration of the
underlying point of law. See Kentucky Rule of Appellate Procedure 41(A).
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robyn Smith Jan M. West
Preston J. Spicer Prospect, Kentucky
Louisville, Kentucky
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