Thomas Summers v. Louisville Jefferson County Metro Government

• Court: Court of Appeals of Kentucky
• Decided: October 8, 2020
• Docket: 2018 CA 001479
• Status: Unknown

Opinion

RENDERED: OCTOBER 9, 2020; 10:00 A.M. NOT TO BE PUBLISHED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

-2- 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.

-3- 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.

-4- 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.

-5- 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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