Hammers v. Plunk, 374 S.W.3d 324 (Ky. App., 2012) September 12, 2012
Discretionary Review Denied by Supreme Court Sept. 12, 2012.
Before the Court Sitting En Banc.

As the clerk’s office could not accept a faxed complaint, counsel contacted a local attorney whose legal assistant agreed to file the complaint on his behalf. The legal assistant called the clerk’s office, knowing they typically closed by four o’clock, to let them know to expect her around four o’clock. The assistant’s sworn statement attests that the clerk stated “if that is the faxed complaint from Bowling Green, we are not going to accept it,” apparently under the misapprehension that the assistant could not sign the complaint and initial it with permission of counsel for filing. The assistant arrived a few minutes before four o’clock with the complaint and a check for the fees in hand, only to find that the doors had already been locked before the close of the business day. The assistant left and returned in the morning, on February 10, 2009, when the complaint was accepted and filed by the clerk’s office.

In such a situation, it is within the court’s power to find that a statute has been equitably tolled. Nanny v. Smith, 260 S.W.3d 815, 817 (Ky.2008) (Plaintiff should not be punished for clerk’s failure to perform duties mandated by statute and court rule.); Ward v. Howard, 177 Ky. 38, 197 S.W. 506, 510 (1917) (Clerk cannot deliberately absent himself or close his office to thwart procedure.); Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954, 958–59 (1933) (Clerk cannot deliberately absent himself or close his office to thwart procedure.); Hagy v. Allen, 153 F.Supp. 302 (E.D.Ky.1957) (Good faith should be considered, especially when paired with circumstances plaintiff could not control). Further, the clerk’s doors are said to “be deemed always open,” although here the doors were closed— literally. …. (“CR”) 77.01.

Accordingly, we do not disturb the trial court’s prior ruling, and Hammers, et al., may proceed with their case at trial.

We need not address the issues raised by Hammers, et al., concerning the propriety of a retroactive application of Wagoner as these are now moot.

Accordingly, we reverse and remand in both cases for further proceedings consistent with this opinion.

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