Civil Procedure (SOL): NANNY V. SMITH (COA 10/13/2006)

NANNY V. SMITH
CIVIL PROCEDURE:  Commencement of action and Statute of Limitations (failure to issue summons timely)
2005-CA-002083
PUBLISHED:  AFFIRMING (DIXON)
DATE RENDERED:  10/13/2006

Although the complaint was timely filed, the clerk of the court did not prepare and issue the summons until after the statute of limitations had expired.  Kentucky Rule of Civil Procedure 3 provides that “[a] civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.” (Emphasis added). Kentucky case law dictates that the requirements of CR 3.01 be strictly enforced. Asher v. Bishop, 482 S.W.2d 769 (Ky. 1972); Osborne v. Kenacre Land Corp., 65 S.W.3d 534 (Ky. App. 2001); Gibson v. E.P.I. Corp., 940 S.W.2d 912 (Ky. App. 1997); DeLong v. DeLong, 335 S.W.2d 895 (Ky. 1960)

If the complaint is filed prior to the expiration of the period of limitations but the summons is not issued until the period of limitations has expired, the action is barred. 

Because Kentucky CR 3 measures commencement from the date of the filing of the complaint and the issuance of a summons in good faith,
Appellant’s action cannot be deemed to have commenced within the two-year statute of limitations period set forth in KRS 304.39-230(6).

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