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Hearn v. Family Dollar Holdings, Inc.

Court of Appeals of Kentucky

May 5, 2017

EARLETTA HEARN APPELLANT
v.
FAMILY DOLLAR HOLDINGS, INC., FAMILY DOLLAR STORES OF KENTUCKY, LTD., FAMILY DOLLAR, INC. APPELLEES AND FAMILY DOLLAR HOLDINGS, INC., FAMILY DOLLAR STORES OF KENTUCKY, LTD., FAMILY DOLLAR, INC. CROSS-APPELLANTS
v.
EARLETTA HEARN CROSS-APPELLEE

         APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MARY M. SHAW, JUDGE ACTION NO. 14-CI-001776

          BRIEF FOR APPELLANT/CROSS- APPELLANTS: Felicia J N Nu'man, Louisville, Kentucky

          BRIEF FOR APPELLEES/CROSS-APPELLANT: Kimberly Van Der Heiden, Carlisle, Kentucky

          BEFORE: COMBS, MAZE, AND STUMBO, JUDGES.

          OPINION

          COMBS, JUDGE

         Earletta Hearn appeals from an order of the Jefferson Circuit Court dismissing her personal injury action against Family Dollar Holdings, Inc.; Family Dollar Stores of Kentucky, Ltd.; and Family Dollar, Inc. The appellees jointly filed a protective cross-appeal. After our review, we affirm.

         On March 28, 2014, Hearn, through counsel, filed a complaint against Family Dollar Holdings, Inc.; Family Dollar Stores of Kentucky, Ltd.; and Family Dollar, Inc. (North Carolina business entities referred to, collectively, as Family Dollar). She identified CT Corporation System in Frankfort as Family Dollar's registered agent.

         In her complaint, Hearn alleged that she had suffered personal injuries on March 30, 2013, while shopping at the Family Dollar Store located on Portland Avenue in Louisville. She claimed that she had been hurt as a result of Family Dollar's negligence. Hearn also sued the James Trust, owner of the real property. Although summonses were issued, service of process was never attempted.

         On March 23, 2015, Family Dollar filed a motion asserting the defense of insufficiency of service of process. By way of special appearance, Family Dollar contested the court's jurisdiction. On that basis, it sought the dismissal of Hearn's claims.

         On April 13, 2015, Hearn's counsel responded and argued that the action had been timely filed and should not be dismissed despite the lack of service of process. Counsel told the court that the defendants had not been served because the parties had been negotiating a settlement. She also indicated that she "has reissued the summons to all parties and the matter is now ready to move forward in the litigation process." In its reply, Family Dollar vehemently denied that any negotiations had occurred. Notably, despite the clear representation to the court, it does not appear that summonses were ever re-issued.

         In an order tendered by Hearn's counsel, the Jefferson Circuit Court denied Family Dollar's "Motion to Dismiss pursuant to Civil Rule 41.02." Hearn was "ordered to have summons re issued (sic) and properly served upon the Defendant within 10 days of the entry of this order." (Emphasis added). The date stamped upon the clerk's entry of the order appears illegible. However, the parties agree that the order was entered in the record by the clerk on May 6, 2015.

         On May 18, 2015, summonses were again issued. On May 26 and May 27, return receipts were filed in the record. These receipts show a delivery to Family Dollar's agent on May 21 and May 22, 2015. The James Trust was served with a summons and a copy of the complaint on June 1, 2015.

         On June 5, 2015 Family Dollar filed its answer denying any negligence and asserting "all affirmative defenses in accordance with Civil Rule 8.03, " "improper jurisdiction, " and "failure of proper service."

         On June 9, 2015, the James Trust filed its answer to the complaint. The James Trust denied any negligence, asserted insufficiency of service of process, and claimed that ...


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