Complaint timely filed upon delivery to clerk even tho summons issues after time period: NANNY V. SMITH (SC 8/21/2008)

CIVIL PROCEDURE:  Complaint timely filed when delivered to the clerk within statute of limitations even though clerk delayed filing case and issuing summons after the time period (under the circumstances of this case)
PUBLISHED: Reversing
Opinion of the Court by Scott; Minton dissenting; Venters not sitting
From Graves County
DATE RENDERED: 8/21/2008; 9/17/2008

The issue in this case is whether an action is commenced within the limitations period when the complaint is delivered timely to the circuit court clerk, but summons is not issued by the clerk until after the limitations period has expired . SC held that under the circumstances presented, that the suit was timely filed and not barred by the statute of limitation.

Donna Nanny timely (per date stamping) filed her complaint with the clerk’s office for personal injuries from a car accident, but the clerk did not file the case and issue the summons until after the statute had expired.

The Circuit Court dismissed Nanny’s personal injury action on the basis that the summons was issued and the complaint was stamped as filed on the day after the period of limitations expired . The Court of Appeals affirmed 2-1 .

SC granted discretionary review and now reverse the dismissal of the suit.

Kentucky Rule of Civil Procedure (CR) 3 .01 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." KRS 413 .250 provides that "[a]n action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action."

Once Nanny delivered the complaint, she could reasonably expect that the summons would be issued within the statutory period. At that point, Nanny had no further duty to ensure that the clerk issued the summons within the limitations period.  CR 4 .01 provides that "[u]pon the filing of the complaint . . . the clerk shall forthwith issue the required summons. . . ."

It is the official duty of the clerk to issue the summons in accordance with law, and it is not incumbent upon the plaintiff to see that he issues it in accordance with law. Because Nanny had neither the power nor the duty to ensure that the clerk performed his or her official duties, she was prevented by circumstances beyond her control from having the summons issued in time.  Under these facts, Nanny should not be held responsible for such circumstances. Thus Nanny complied with the spirit of the law and should not be punished for the clerk’s failure to promptly perform official duties mandated by statute and court rule.

Abramson, Cunningham, Noble, and Schroder, JJ., concur. Minton, C .J ., dissents for the reason that although the majority reaches an equitable result, it must ignore the express language of KRS 413.250 to get there. Venters, J ., not sitting,.

Editor’s Note:  This result is significant in its interpretation of KRCP 3 regarding the commencement of a lawsuit.  Federal Rule 3 is different from the Kentucky equivalent and provides "A civil action is commenced by filing a complaint with the court" which is a bright-line test on timely filing – no additional requirement of a summons which may well be delayed due to administrative and clerical contingencies.  Kentucky’s Rule 3 requires filing of the complaint AND the issuance of the summons.  Until now, attorneys often provided the clerk with a completed summons and complaint in sufficient number to be served as directed.  When this Court qualifies this decision to under the circumstances of this case, then arguably the timely filing of the complaint will not suffice if the party filing failed to pay the required fees, submitted an incomplete or incorrect summons, or even took the summons and complaint from the clerk and dropped it in the mailbox late (which is why the safest way is to prepare the complaint and summons, pay all the fees, leave it with the clerk, and direct the clerk serve by way of sheriff AND keep your fingerprints off of it once filed!).

In light of these decision, the state might wish to consider the ease of application that comes with the federal rule and amend the statute and the rule; there are enough traps for the unwary in these rules as it is and cases such as these reflect such a waste or time, energy and resources over procedural and not substantive matters.

Digested by Michael Stevens


Appellant’s Brief

Appellee’s Brief

COA DECISION: 2005CA002083

Digested by Michael Stevens

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