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Shaw v. Handy

Court of Appeals of Kentucky

October 25, 2019

SHEMAEKA SHAW APPELLANT
v.
MARK HANDY APPELLEE

          APPEAL FROM JEFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 18-CI-001106

          BRIEF FOR APPELLANT: Sam Aguiar Lonita Baker Louisville, Kentucky

          BRIEF FOR APPELLEE: Robert T. Watson Chris J. Gadansky Louisville, Kentucky

          BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES.

          OPINION

          LAMBERT, JUDGE

         Shemaeka Shaw appeals from the Jefferson Circuit Court's order granting Mark Handy's motion to dismiss Shaw's complaint pursuant to Kentucky Rule of Civil Procedure (CR) 12.02(f). We affirm.

         Shaw's complaint, filed on February 22, 2018, was based on an incident that occurred April 20, 2016, when Handy and others entered Shaw's apartment to serve an eviction notice. The situation quickly grew into a confrontation, with Shaw resisting the process because she had allegedly reached an agreement with her landlord, and Handy becoming physical and abusive, and ultimately having Shaw arrested. Shaw was eventually acquitted of all charges. Her grievance against Handy, filed with Louisville Metro's internal affairs division, was dismissed on August 20, 2017.

         On February 22, 2018, Shaw filed suit against Handy (individually and as Metro's employee and agent) and against Metro, d/b/a Jefferson County Sheriff's Office.[1] Shaw alleged the following tortious activity by Handy: intentional and negligent infliction of emotional distress; excessive force in violation of Kentucky Revised Statute (KRS) 503.090; assault and battery; negligence; gross negligence; and negligence per se. She sought compensatory and punitive damages, pre-judgment and post-judgment interest, and attorney fees and costs.

         Handy filed his motion to dismiss on March 27, 2018, arguing that Shaw had failed to state a claim of action upon which relief can be granted (CR 12.02(f)) and that she had filed her action outside the one-year statute of limitations enunciated in KRS 413.140(1)(a). Shaw filed her response, and the matter was set for hearings on May 7 and July 12, 2018. The circuit court took the matter under submission and entered its order dismissing with prejudice on August 16 of that year. Shaw filed her timely notice of appeal five days later.[2]

         We begin by stating the standard of review:

We review dismissals under CR 12.02(f) de novo. Morgan & Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d 599, 601 (Ky. 2011). CR 12.02(f) is designed to test the sufficiency of a complaint. Pike v. George, 434 S.W.2d 626, 627 (Ky. 1968). It is proper to grant a CR 12.02(f) dismissal motion if:
it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. . . . [T]he question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?
James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002) (internal quotation marks and citation omitted). For purposes of a CR 12.02(f) motion, this Court, like the circuit court, must accept as true the plaintiff's factual allegations and draw all reasonable inferences ...

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