FROM JEFFERSON CIRCUIT COURT HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 14-CI-001776
FOR APPELLANT/CROSS- APPELLANTS: Felicia J N Nu'man,
FOR APPELLEES/CROSS-APPELLANT: Kimberly Van Der Heiden,
BEFORE: COMBS, MAZE, AND STUMBO, JUDGES.
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.
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.
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.
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
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.
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.
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.
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."
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 ...