Troy Gardner v. Officer Bray

• Court: Court of Appeals of Kentucky
• Decided: July 3, 2025
• Docket: 2024-CA-0417
• Status: Unpublished

Opinion

RENDERED: JULY 3, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0417-MR

TROY GARDNER APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 23-CI-00365

OFFICER BRAY AND OFFICER A APPELLEES

OPINION AFFIRMING

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BEFORE: A. JONES, L. JONES, AND KAREM, JUDGES.

KAREM, JUDGE: Troy Gardner (“Gardner”) appeals from the Fayette Circuit

Court’s order denying his motion for default judgment in a suit he filed against

Officer Bray and Officer A (hereinafter, collectively the “Appellees”). The circuit

court also granted the Appellees’ motion to dismiss the suit and dismissed

Gardner’s claims against the Appellees without prejudice. Finding no error, we

affirm. FACTUAL AND PROCEDURAL BACKGROUND

On February 1, 2023, Gardner filed a complaint in Fayette Circuit

Court. The complaint named “Officer A” and “Officer B” as the defendants and

alleged three counts of 42 United States Code (“U.S.C.”) § 1983 violations against

both officers and two § 1983 violations against “Officer B.” The Appellees were

not identified further in Gardner’s complaint.

The Fayette Circuit Clerk generated a civil summons and United

States Postal Service certified mail receipts for “Officer Bray” and “A., Officer.”1

The record contains a return receipt filed on February 6, 2023, for the certified

mail addressed to “Officer Bray.” The delivery date was February 3, 2023. Kelli

Brewer (“Brewer”), an employee of the Lexington-Fayette Urban County

Government (“LFUCG”) Division of Police (“LDP”), signed the certified mail

receipt. Additionally, the record contains a return receipt filed on February 7,

2023, for the certified mail addressed to “A. Officer.” The delivery date was

February 6, 2023. Brewer also signed this certified mail receipt.

On January 29, 2024, Gardner filed a motion for default judgment. In

his motion, Gardner claimed that Officer Bray and Officer A were both served,

neither provided a written defense, and that the circuit court should enter judgment

against them.

1 It is unclear from the record how “Officer B” became “Officer Bray.”

-2- On February 15, 2024, LFUCG’s counsel entered a limited

appearance and filed a motion to dismiss. The motion asserted that neither officer

received sufficient service of process. Specifically, the motion stated that Brewer

– the individual who signed the certified mail receipts and accepted service of

process for both officers – performed clerical work in the police department’s

Central Records office and was only authorized to accept service of process for the

LDP, not for individual officers.

On February 27, 2024, LFUCG’s counsel filed an amended motion to

dismiss. The two motions to dismiss were similar; however, the first motion

requested that the circuit court deny Gardner’s motion for default judgment, and

the second motion requested that the circuit court dismiss all claims against the

Appellees.

The circuit court held a hearing on March 22, 2024, and on March 28,

2024. The circuit court subsequently entered an order denying Gardner’s motion

for default judgment, granting the motion to dismiss, and dismissing Gardner’s

claims without prejudice. Gardner thereafter filed a pro se motion to vacate on

March 29, 2024. The circuit court denied the motion to vacate by order entered on

April 2, 2024. This appeal followed.

-3- ANALYSIS

Gardner alleges on appeal that the circuit court erred in dismissing his

claims against the Appellees based on insufficient service of process. Under

Kentucky Rule of Civil Procedure (“CR”) 4.04(2), “[s]ervice shall be made upon

an individual . . . by delivering a copy of the summons and of the complaint . . . to

him personally . . . or by delivering a copy of the summons and of the complaint

. . . to an agent authorized by appointment or by law to receive service of process

for such individual.” CR 4.04(2) (emphasis added).

Indeed, “Kentucky has long followed a strict adherence to the rule of

‘In-hand Service of Process.’” R.F. Burton & Burton Tower Co. v. Dowell

Division of Dow Chemical Co., 471 S.W.2d 708, 710 (Ky. 1971). A party’s “mere

knowledge of the pendency of an action is not sufficient to give the court

jurisdiction,” as actual service of process is required. Id. at 710-11. Insufficient

service of process is a basis for dismissal. CR 12.02(e).

In this case, Gardner initially filed his complaint with the Fayette

Circuit Court Clerk and attempted service on the Appellees via certified mail

through the office of the circuit clerk, as outlined in CR 4.01(1)(a). The certified

mail was delivered to LFUCG but not directly to the Appellees. Upon arrival, the

mailing was signed for by Brewer, who the LFUCG stated worked in the police

department’s Central Records office and was only authorized to accept service of

-4- process for the LDP, not for individual officers. LFUCG asserted that Brewer was

never appointed or designated to accept service of process on individual officers.

We find the case of Mitchell v. Money, 602 S.W.2d 687 (Ky. App.

1980), to be illustrative of the issue at hand. In that case, this court held that

service of process through certified mail was insufficient to bind a decedent’s

estate when a copy of the summons and complaint was sent to the decedent’s

address and signed for by his wife. The court reasoned that Money, the decedent,

never became a party to the action because the trial court failed to obtain

jurisdiction over him or his estate. Similarly, although Gardner presumably sent

the certified mail to the Appellees’ correct place of business in this case, it was

nevertheless an incomplete delivery, as the mail reached neither the intended

addressee nor an authorized agent of the same.

Gardner has not contested the fact that Brewer signed the certified

mail receipt. Gardner has offered no proof or case law to counter the Appellees’

assertion that Brewer was not authorized to accept service of process on behalf of

individual officers. When an organization has a policy that prohibits one employee

from accepting service on behalf of another employee, service is not sufficient if

an employee accepts service without authorization on behalf of the other

employee. Thus, the Fayette Circuit Court properly dismissed all claims when it

found that Gardner had not properly served the officers.

-5- CONCLUSION

For the reasons outlined above, we affirm the Fayette Circuit Court’s

order denying Gardner’s motion for default judgment, granting the Appellees’

motion to dismiss, and dismissing all of Gardner’s claims without prejudice.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE OFFICER BRAY: Troy Gardner, pro se Hickman, Kentucky William D. Razor Lexington, Kentucky

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