RENDERED: SEPTEMBER 30, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1393-MR

VINCENT MOCK APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT

v. HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 19-CI-03647

PANERA BREAD COMPANY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.

MAZE, JUDGE: Vincent Mock (Mock) has appealed from the Fayette Circuit 

Court’s order granting Panera Bread Company’s (Panera) motion to dismiss and/or 

motion for summary judgment. After careful consideration, we affirm the trial 

court’s order.
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BACKGROUND

On October 11, 2019, Mock tendered a pro se complaint alleging that 

Panera “Violated KRS[1] 413.140 towards the Plaintiff” and that it “committed 

defamation, False light, intentional inflection [sic] and acted with negligence 

reckless disregard for the truth, accused to the Plaintiff.” He also attached a 

motion and affidavit seeking to proceed without the payment of court costs. That 

motion was denied on October 17, 2019. No further action took place in the case

until January 5, 2021, when the court sent out its regular notice to dismiss for lack 

of prosecution. Mock appeared for the court’s show cause and the case was 

allowed to remain active. No additional steps were taken until July 20, 2021, when

summons was issued and the complaint was designated filed. Service was then 

made upon Panera in St. Louis, Missouri.

On September 7, 2021, Panera filed its motion to dismiss and/or 

motion for summary judgment asserting that Mock’s claims were barred by the 

statute of limitations and were improperly stated. Mock filed his objection, 

arguing that he had one year from October 11, 2018, the date of the “event”

2 which 

resulted in his complaint, plus thirty days from the date on which he learned that 

1 Kentucky Revised Statutes.

2 Mock filed an amended complaint, containing details explaining the factual basis for his claims

and adding a claim for intentional infliction of emotional distress. However, he later withdrew 

that amendment.
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his motion to proceed in forma pauperis had been denied. The court granted 

Panera’s motion, dismissing all his claims. Mock’s subsequent motion to vacate 

was denied and this appeal followed.

On appeal, Mock argues the trial court erred by denying his motion to 

waive court costs, that it erred in failing to send out a form AOC-026 informing 

him that he had thirty days in which to appeal or pay the fees, and that it erred in 

denying his claim for intentional infliction of emotional distress.

Panera argues the trial court’s denial of Mock’s motion to proceed in 

forma pauperis was not the basis for its order of dismissal. Panera asserts that 

Mock’s claims were barred by the statute of limitations and therefore properly 

dismissed. Further, specifically as to Mock’s claim for intentional infliction of 

emotional distress, Panera argues that such a claim may not be asserted merely for 

purposes of saving a complaint from dismissal on limitations grounds, where it is 

not otherwise warranted. 

STANDARD OF REVIEW

A motion to dismiss under CR3 12.02(f) for failure to state a claim 

upon which relief may be granted is reviewed de novo. Carruthers v. Edwards, 

395 S.W.3d 488, 491 (Ky. App. 2012). Summary judgment is also reviewed de

3 Kentucky Rules of Civil Procedure. 
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novo. Isaacs v. Sentinel Insurance Company Limited, 607 S.W.3d 678, 681 (Ky. 

2020).

ANALYSIS

Statute of Limitations: 

Pursuant to CR 77.04(1) and CR 5.05(4) Mock had every right to 

expect that he would receive notice of the court’s denial of his motion to proceed 

in forma pauperis so that he could take the necessary steps within the limitations 

period. However, CR 77.04(4) specifically provides that failure of the clerk to 

send notice or of a party to receive it “shall not affect the validity of the judgment 

or order, and does not affect the time to appeal or relieve or authorize the court to 

relieve a party for failure to appeal within the time allowed, except as permitted in 

Rule 73.02(1).” Thus, the burden remained on Mock to contest the trial court’s 

order denying his motion to proceed in forma pauperis by appeal at the appropriate 

time in the appropriate manner. Such a burden implies a duty to periodically 

examine the court record to ascertain the status of any pending motions. Failure to 

do so cannot be asserted to seek relief from the statute of limitations.

The statute of limitations for a defamation claim is one year. Caslin v. 

Gen. Elec. Co., 608 S.W.2d 69, 70 (Ky. App. 1980) (citing KRS 413.140(1)(d)). It 

begins to run from the date of “publication.” Id. The Court notes that the date of 
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publication is not stated in Mock’s original complaint.

4

 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.” In this case, while 

the complaint was apparently tendered within the limitation period, it was not 

accepted as filed until July 20, 2021. 

Further, the summons to be associated with that complaint was not 

issued until July 30, 2021. For purposes of interrupting the statute of limitations, 

an action is not commenced until a summons is issued in good faith. Ideal Sav., 

Loan & Bldg. Ass’n of Newport v. Town of Park Hills, 281 Ky. 571, 574, 136 

S.W.2d 748, 749-50 (Ky. 1940). Clearly, the trial court did not err in dismissing 

Mock’s claim for defamation on the grounds that the statute of limitations had run.

KRS 413.120(6) sets forth a five-year statute of limitations for injuries 

arising out of miscellaneous claims of a non-specific, non-contractual nature. 

Claims for the intentional infliction of emotional distress have been held to fall into 

this category. However, a claim for a more traditional tort, such as defamation, 

cannot be saved from the application of the one-year statute of limitations by the 

addition of a claim for intentional infliction of emotional distress, where that claim 

4

In the amended complaint tendered to the trial court but not accepted, Mock asserted that the 

publication date was October 11, 2018.
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is based upon the same facts. Shaw v. Handy, 588 S.W.3d 459, 461-62 (Ky. App. 

2019) (citing Childers v. Geile, 367 S.W.3d 576, 582-83 (Ky. 2012)). 

Failure to State a Claim: 

Based upon the language of the trial court’s order of October 10, 

2021, Mock’s claims were not only dismissed based on the statute of limitations 

but upon his failure to properly state a claim. As a result, the court held that all his 

claims were dismissed. The same language was employed when the matter was 

reconsidered in the court’s order of November 8, 2021.

The elements of a defamation claim are: 1) defamatory language 2) 

about the plaintiff 3) publication and 4) injury to reputation. Columbia Sussex 

Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1981). Mock’s original 

complaint alleges that he was defamed but fails to state the manner in which this 

defamation occurred. While his amended complaint appears to establish these 

minimal requirements, it was not filed until long after the statute of limitations had 

run.5 Therefore, the trial court did not err in dismissing Mock’s defamation claim.

Similarly, Mock’s failure to properly plead a claim for false light

properly resulted in its dismissal. A plaintiff must plead that “(1) the false light in 

5 Futility is one factor for the trial court to consider when determining whether to allow an 

amended pleading. Kenney v. Hanger Prosthetics & Orthotics, Inc., 269 S.W.3d 866, 869 (Ky.

App. 2007) (citing First National Bank of Cincinnati v. Hartman, 747 S.W.2d 614, 616 (Ky. 

App. 1988)). 
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which the other was placed would be highly offensive to a reasonable person, and 

(2) the publisher had knowledge of, or acted in reckless disregard as to the falsity 

of the publicized matter and the false light in which the other was placed.” 

Cromity v. Meiners, 494 S.W.3d 499, 505 (Ky. App. 2015) (quoting McCall v. 

Courier Journal & Louisville Times Co., 623 S.W.2d 882, 888 (Ky. 1981)). Once 

again, the basic requisites for a false light claim were not placed before the court 

prior to the expiration of the statute of limitations.

CONCLUSION

For the foregoing reasons, we affirm the Fayette Circuit Court’s order

dismissing.

ALL CONCUR. 

BRIEFS FOR APPELLANT:

Vincent Mock, pro se

Lexington, Kentucky

BRIEF FOR APPELLEE:

Licha H. Farah, Jr.

James P. Freel

Lexington, Kentucky