RENDERED: JULY 11, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0409-MR
TROY GARDNER APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 23-CI-01573
DETECTIVE JASON WALLACE AND APPELLEES MIRCEA ENCIU1
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, A. JONES, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Troy Gardner, pro se, appeals an order of the Fayette Circuit
Court which dismissed his claims against Detective Jason Wallace of the
Lexington Police Department. After careful review, we affirm.
1 Based on the record before us, Mircea Enciu was never served with the initial or amended complaints filed by Gardner, and never appeared before the circuit court. He appears in the case caption only to maintain consistency with the Notice of Appeal. Factual and Procedural Background
Based on a criminal complaint from the Fayette District Court
contained in the record before us, Mircea Enciu purchased a cellular telephone for
$640.00 from Gardner through Facebook Marketplace in August 2021. However,
after Enciu returned home with the telephone and attempted to set it up, he
discovered it was not working properly. Enciu called his cellular service provider
and, upon providing the serial number of the telephone, was told by the service
provider that the telephone had been reported stolen from Spectrum. Enciu called
the police and Detective Jason Wallace was dispatched to take a report. Enciu
showed Detective Wallace Facebook photographs of Gardner and confirmed he
was the individual who sold him the telephone. Detective Wallace further
confirmed Gardner’s identity by reviewing his Kentucky identification. A district
court judge issued an arrest warrant for Gardner based on the complaint filed by
Detective Wallace. Gardner was arrested and charged with theft by deception, less
than $1000.00 (a misdemeanor). For reasons that are not revealed by the record
before us, the charges were dismissed without prejudice on March 18, 2022.
On July 5, 2023, Gardner, acting pro se, filed the underlying
complaint in Fayette Circuit Court naming Enciu and Detective Wallace as
defendants. Gardner presented two claims of malicious prosecution as well as a
claim for trade libel. It does not appear from the record before us that either
-2- defendant was served with the initial complaint. On January 25, 2024, Gardner
filed an amended complaint against Enciu and Detective Wallace. Gardner alleged
malicious prosecution, false imprisonment, defamation, abuse of process, and
intentional infliction of extreme emotional distress (IIED). The certified mail
receipt returned to the circuit clerk showed that it was signed by a “K. Brewer”
rather than Detective Wallace.
Detective Wallace filed a motion to dismiss on February 9, 2024,
arguing insufficient service of process and failure to state a claim upon which relief
can be granted pursuant to Kentucky Rule of Civil Procedure (CR) 12.02(e) and
(f). Detective Wallace argued that the complaint was filed outside the one-year
statute of limitations for all claims. On February 16, 2024, Gardner filed a motion
to amend his complaint to include only fraud and outrage – both of which have a
five-year statute of limitations – and dismiss all other claims. The circuit court
held a hearing on March 22, 2024. Although the court allowed Gardner to file his
amended complaint, it dismissed the claim of outrage, reasoning that it was the
same claim as IIED and also filed outside the statute of limitations. The claim for
fraud was dismissed for failure to state a claim upon which relief could be granted.
The circuit court found the fraud claim was aimed at Enciu, not Detective
-3- Wallace.2 Gardner filed a motion to vacate the judgment which was denied. This
appeal followed.
Standard of Review
The standard of review of a ruling on a motion for judgment on the
pleadings is well established:
“[CR] 12.03 provides that any party to a lawsuit may move for a judgment on the pleadings.” City of Pioneer Village v. Bullitt Cty., 104 S.W.3d 757, 759 (Ky. 2003). A judgment on the pleadings “should be granted if it appears beyond doubt that the nonmoving party cannot prove any set of facts that would entitle him/her to relief.” Id. “[T]he circuit court is not required to make any factual determination; rather, the question is purely a matter of law.” James v. Wilson, 95 S.W.3d 875, 884 (Ky. App. 2002) . . . . We review a judgment on the pleadings de novo. [Schultz v. Gen. Elec. Healthcare Fin. Servs., Inc., 360 S.W.3d 171, 177 (Ky. 2012).]
Scott v. Forcht Bank, NA, 521 S.W.3d 591, 594 (Ky. App. 2017).
Analysis
On appeal, Gardner’s arguments are very brief and undeveloped. He
first contends that that the circuit court should have allowed his claim of outrage to
move forward because it was not a new claim and related back to the general
factual situation that was the basis of the original controversy. We disagree.
2 In its order, the circuit court incorporated its oral findings made at the hearing by reference. The hearing was very brief and the findings were readily apparent to this Court upon review of the record. See Smith v. McCoy, 635 S.W.3d 811, 817 (Ky. 2021).
-4- We begin by noting that, at the hearing, Gardner agreed the claims in
his initial and first amended complaint, including IIED, were void due to the
various statutes of limitations. However, Gardner’s attempt to rebrand IIED as
outrage in his second amended complaint must also fail. The torts of IIED and
outrage are the same. Burgess v. Taylor, 44 S.W.3d 806, 811 (Ky. App. 2001).
Further, “the tort of intentional infliction of emotional distress is a gap filler tort,
and that if an action can lie in a traditional tort, the tort of outrage will not lie.”
Childers v. Geile, 367 S.W.3d 576, 581 (Ky. 2012) (internal quotation marks and
citation omitted). Finally,
there can be only one recovery on a given set of facts. And while there is a much longer statute of limitations than for traditional torts, as Rigazio [v. Archdiocese of Louisville, 853 S.W.2d 295 (Ky. App. 1993),] demonstrates, a complaint cannot be saved from limitations by pleading intentional infliction of emotional distress to reach the longer statute when the facts support a claim for a more traditional personal injury tort with mental pain and suffering as part of the damages rather than severe emotional distress caused by outrageous conduct. There can be only one recovery for emotional distress on the same acts. It will either be caused as a result of an injury done to the plaintiff physically or it will be caused by outrageous conduct the purpose of which is to inflict emotional distress.
Childers, 367 S.W.3d at 582-83 (emphasis added).
-5- In other words, Gardner cannot save his complaint from dismissal
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RENDERED: JULY 11, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0409-MR
TROY GARDNER APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 23-CI-01573
DETECTIVE JASON WALLACE AND APPELLEES MIRCEA ENCIU1
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, A. JONES, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Troy Gardner, pro se, appeals an order of the Fayette Circuit
Court which dismissed his claims against Detective Jason Wallace of the
Lexington Police Department. After careful review, we affirm.
1 Based on the record before us, Mircea Enciu was never served with the initial or amended complaints filed by Gardner, and never appeared before the circuit court. He appears in the case caption only to maintain consistency with the Notice of Appeal. Factual and Procedural Background
Based on a criminal complaint from the Fayette District Court
contained in the record before us, Mircea Enciu purchased a cellular telephone for
$640.00 from Gardner through Facebook Marketplace in August 2021. However,
after Enciu returned home with the telephone and attempted to set it up, he
discovered it was not working properly. Enciu called his cellular service provider
and, upon providing the serial number of the telephone, was told by the service
provider that the telephone had been reported stolen from Spectrum. Enciu called
the police and Detective Jason Wallace was dispatched to take a report. Enciu
showed Detective Wallace Facebook photographs of Gardner and confirmed he
was the individual who sold him the telephone. Detective Wallace further
confirmed Gardner’s identity by reviewing his Kentucky identification. A district
court judge issued an arrest warrant for Gardner based on the complaint filed by
Detective Wallace. Gardner was arrested and charged with theft by deception, less
than $1000.00 (a misdemeanor). For reasons that are not revealed by the record
before us, the charges were dismissed without prejudice on March 18, 2022.
On July 5, 2023, Gardner, acting pro se, filed the underlying
complaint in Fayette Circuit Court naming Enciu and Detective Wallace as
defendants. Gardner presented two claims of malicious prosecution as well as a
claim for trade libel. It does not appear from the record before us that either
-2- defendant was served with the initial complaint. On January 25, 2024, Gardner
filed an amended complaint against Enciu and Detective Wallace. Gardner alleged
malicious prosecution, false imprisonment, defamation, abuse of process, and
intentional infliction of extreme emotional distress (IIED). The certified mail
receipt returned to the circuit clerk showed that it was signed by a “K. Brewer”
rather than Detective Wallace.
Detective Wallace filed a motion to dismiss on February 9, 2024,
arguing insufficient service of process and failure to state a claim upon which relief
can be granted pursuant to Kentucky Rule of Civil Procedure (CR) 12.02(e) and
(f). Detective Wallace argued that the complaint was filed outside the one-year
statute of limitations for all claims. On February 16, 2024, Gardner filed a motion
to amend his complaint to include only fraud and outrage – both of which have a
five-year statute of limitations – and dismiss all other claims. The circuit court
held a hearing on March 22, 2024. Although the court allowed Gardner to file his
amended complaint, it dismissed the claim of outrage, reasoning that it was the
same claim as IIED and also filed outside the statute of limitations. The claim for
fraud was dismissed for failure to state a claim upon which relief could be granted.
The circuit court found the fraud claim was aimed at Enciu, not Detective
-3- Wallace.2 Gardner filed a motion to vacate the judgment which was denied. This
appeal followed.
Standard of Review
The standard of review of a ruling on a motion for judgment on the
pleadings is well established:
“[CR] 12.03 provides that any party to a lawsuit may move for a judgment on the pleadings.” City of Pioneer Village v. Bullitt Cty., 104 S.W.3d 757, 759 (Ky. 2003). A judgment on the pleadings “should be granted if it appears beyond doubt that the nonmoving party cannot prove any set of facts that would entitle him/her to relief.” Id. “[T]he circuit court is not required to make any factual determination; rather, the question is purely a matter of law.” James v. Wilson, 95 S.W.3d 875, 884 (Ky. App. 2002) . . . . We review a judgment on the pleadings de novo. [Schultz v. Gen. Elec. Healthcare Fin. Servs., Inc., 360 S.W.3d 171, 177 (Ky. 2012).]
Scott v. Forcht Bank, NA, 521 S.W.3d 591, 594 (Ky. App. 2017).
Analysis
On appeal, Gardner’s arguments are very brief and undeveloped. He
first contends that that the circuit court should have allowed his claim of outrage to
move forward because it was not a new claim and related back to the general
factual situation that was the basis of the original controversy. We disagree.
2 In its order, the circuit court incorporated its oral findings made at the hearing by reference. The hearing was very brief and the findings were readily apparent to this Court upon review of the record. See Smith v. McCoy, 635 S.W.3d 811, 817 (Ky. 2021).
-4- We begin by noting that, at the hearing, Gardner agreed the claims in
his initial and first amended complaint, including IIED, were void due to the
various statutes of limitations. However, Gardner’s attempt to rebrand IIED as
outrage in his second amended complaint must also fail. The torts of IIED and
outrage are the same. Burgess v. Taylor, 44 S.W.3d 806, 811 (Ky. App. 2001).
Further, “the tort of intentional infliction of emotional distress is a gap filler tort,
and that if an action can lie in a traditional tort, the tort of outrage will not lie.”
Childers v. Geile, 367 S.W.3d 576, 581 (Ky. 2012) (internal quotation marks and
citation omitted). Finally,
there can be only one recovery on a given set of facts. And while there is a much longer statute of limitations than for traditional torts, as Rigazio [v. Archdiocese of Louisville, 853 S.W.2d 295 (Ky. App. 1993),] demonstrates, a complaint cannot be saved from limitations by pleading intentional infliction of emotional distress to reach the longer statute when the facts support a claim for a more traditional personal injury tort with mental pain and suffering as part of the damages rather than severe emotional distress caused by outrageous conduct. There can be only one recovery for emotional distress on the same acts. It will either be caused as a result of an injury done to the plaintiff physically or it will be caused by outrageous conduct the purpose of which is to inflict emotional distress.
Childers, 367 S.W.3d at 582-83 (emphasis added).
-5- In other words, Gardner cannot save his complaint from dismissal
through multiple attempts at stating claims with a longer statute of limitations
under the same set of facts.
Turning to Gardner’s fraud claim, we agree with the circuit court that
he failed to state a claim upon which relief could be granted. Gardner’s claim for
fraud in his second amended complaint reads
1. . . . the general factual situation which is the basis of the original controversy . . . [Roach v. Commonwealth, 384 S.W.3d 131, 134 (Ky. 2012)] is [Detective] Wallace used Mircea Enciu’s “ . . . false statements . . .” (see civil complaint filed July 5, 2023 [counts 1-3]) as probable cause to obtain the arrest warrant against plaintiff. Pursuant to CR 9.02, “the circumstances constituting fraud or mistake
shall be stated with particularity.” A claim for fraud must demonstrate by clear
and convincing evidence “a) material representation b) which is false c) known to
be false or made recklessly d) made with inducement to be acted upon e) acted in
reliance thereon and f) causing injury.” United Parcel Service Co. v. Rickert, 996
S.W.2d 464, 468 (Ky. 1999) (citation omitted). Further, a litigant need not plead
every element of fraud, but “an allegation of fraud in a pleading must set forth the
time, place, and substance of the allegedly fraudulent statements.” Keeton v.
Lexington Truck Sales, Inc., 275 S.W.3d 723, 726 (Ky. App. 2008) (citation
omitted). We agree with the circuit court that Gardner’s complaint failed to meet
this standard with regard to Detective Wallace.
-6- Conclusion
For the foregoing reasons, the judgment of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE DETECTIVE JASON WALLACE: Troy Gardner, pro se Lexington, Kentucky J. Jason Rothrock Lexington, Kentucky
-7-