FROM JEFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 18-CI-001106
FOR APPELLANT: Sam Aguiar Lonita Baker Louisville, Kentucky
FOR APPELLEE: Robert T. Watson Chris J. Gadansky Louisville,
BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES.
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.
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.
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. 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.
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
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 ...