KENNETH SEWELL v. LINDA FRANK, Chairperson, KENTUCKY PAROLE BOARD
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RENDERED:
August 13, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001509-MR
KENNETH SEWELL
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
CIVIL ACTION NO. 1997-CI-01681
v.
LINDA FRANK, Chairperson,
KENTUCKY PAROLE BOARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge.
Kenneth Sewell appeals from Franklin Circuit
Court orders that directed the Kentucky Parole Board to pay $30.26
as reimbursement for court costs incurred by Sewell in an open
records lawsuit and denied other relief he sought, including the
imposition
of
sanctions
for
failure
of
the
board
to
produce
records reflecting action taken at one of its meetings.
Sewell made a request for certain records to the Kentucky
Parole Board pursuant to the Open Records Act, Ky. Rev. Stat. (KRS)
61.870-884.
The request was directed to Linda Frank, chairperson
of the board. Sometime prior to requesting the records, Sewell was
granted an early parole hearing where he was considered for parole
under the intensive supervision program.
In January 1997, Sewell
was recommended for parole under the program, but in February of
that year the board deferred Sewell's parole for seventy-two months
because further information regarding the extent of his criminal
activity had been brought to the board's attention. The minutes or
tape recording of the second board meeting was the subject of
Sewell's open records request.
After the board failed to respond to Sewell’s request
within three days as required by KRS 61.880(1), Sewell appealed to
the Attorney General, who issued an opinion stating that if the
records requested by Sewell exist, the board had violated KRS
61.880(1) by not producing them.
The Attorney General also noted
that if no records exist, the board was obligated to inform Sewell
of that fact.
When the board failed to appeal the Attorney
General's opinion within the thirty-day period specified in KRS
61.880(5), the opinion had the “force and effect of law” and became
enforceable in the circuit court of the county where the board
maintains its office.
KRS 61.880(5)(b).
Sewell filed suit in Franklin Circuit Court seeking to enforce the
Attorney General's ruling.
He also sought sanctions of $25.00 a
day for each day that he was denied inspection of the requested
records pursuant to KRS 61.882(5).
The board moved for summary
judgment supported by Frank’s affidavit in which she said that
the
requested
provided.
records
did
not
exist
and,
thus,
cannot
be
The circuit court granted the motion, but directed the
board to reimburse Sewell for the $5.00 filing fee he had paid.
-2-
Sewell’s motion to reconsider was denied, but his cost recovery was
increased to $30.26.
Sewell contends on appeal that summary judgment was
premature because he was denied the opportunity to depose the
former chairperson of the board to determine whether the requested
records actually exist, contrary to the representation made by
Frank in her affidavit.
Sewell also faults the circuit court for
declining to impose the maximum $25.00 a day sanction for nonproduction of the records.
Frank responds that Sewell did not preserve the discovery
argument for appeal because his notice of appeal recites that he is
appealing the order entered April 30, 1998, which required the
board to pay Sewell $5.00 as reimbursement for the filing fee
required of inmates.
However, in his brief to this Court, Sewell
states that he is appealing from the May 29, 1998, order denying
his motion to supplement, amend, alter or vacate the judgment.
The designation of the wrong order in the notice of appeal, if, in fact,
the wrong order was designated, is not fatal to Sewell's appeal
of the discovery and sanction issues.
Ky. R. Civ. Proc. (CR)
73.02(2)
policy
establishes
this
state’s
of
permitting
substantial compliance with the Rules of Civil Procedure.
The failure of a party to file timely a notice of
appeal, cross-appeal, or motion for discretionary review
shall result in a dismissal or denial. Failure to comply
with other rules relating to appeals or motions for
discretionary review does not affect the validity of the
-3-
appeal or motion, but is ground for such action as the
appellate court deems appropriate . . . .
CR 73.02(2); see Ready v. Jamison, Ky., 705 S.W.2d 479, 481 (1986).
If
the
defect
is
not
jurisdictional
in
nature,
substantial
compliance with the rule is acceptable as long as “no substantial
harm or prejudice has resulted to the opponent.” Ready, 705 S.W.2d
at 482; see also City of Devondale v. Stallings, Ky., 795 S.W.2d
954 (1990).
The board and Frank were not prejudiced by Sewell's
misidentification in his notice of appeal of the order from which
he appeals.
The board and Frank were aware of Sewell's motion to
supplement, amend, alter or vacate, filed May 28, 1998, in which
Sewell raised the issue of re-opening the case to enable him to
depose
Helen
Howard-Hughes,
the
board’s
chairperson
when
it
deferred consideration of parole for Sewell, and it cannot have
surprised them that he intended to address the issue on appeal.
Hence, Sewell is not precluded from raising the discovery and
sanction issues on appeal.
Sewell, however, makes no viable argument that additional
discovery might have revealed that the requested records actually
exist.
Sewell merely speculates that Howard-Hughes would testify
that the records exist if she were deposed, and he did not file a
counter-affidavit in the circuit court when confronted with Frank’s
affidavit supporting the motion for summary judgment. As a result,
there was no countervailing evidence to challenge the statement by
Frank that the requested records do not exist, nor is there any
reason to believe that Sewell could produce such evidence at trial.
-4-
Summary judgment was, therefore, appropriate.
Steelvest, Inc. v.
Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).
Sewell's second argument is that the board's refusal to supply the
requested records was willful and intentional and thus warrants
imposition
of
production.
the
maximum
Because
the
$25.00
only
a
day
evidence
sanction
of
record
for
non-
(Frank’s
affidavit) establishes that the records do not exist, it would
hardly have been appropriate for the circuit court to sanction
the board for failing to do the impossible.
In any event, the
imposition of sanctions is discretionary with the circuit court,
KRS 61.882(5), and there clearly was no abuse of discretion in
these circumstances.
The orders from which this appeal is prosecuted are
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth Sewell, pro se
Wheelwright, Kentucky
Tamela Biggs
Office of General Counsel
DEPARTMENT OF CORRECTIONS
Frankfort, Kentucky
-5-
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