TERRY LYNN WHITE (NOW DANIELS) v. TERRANCE LEE WHITE, SR.
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RENDERED:
November 21, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001730-MR
TERRY LYNN WHITE (NOW DANIELS)
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOHN WOODS POTTER, JUDGE
ACTION NO. 95-FC-002879
v.
TERRANCE LEE WHITE, SR.
APPELLEE
OPINION AND ORDER DISMISSING APPEAL
** ** ** ** **
BEFORE:
GUIDUGLI, MILLER AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Terry Lynn White (now Daniels) (hereinafter
“Daniels”) filed her notice of appeal on July 12, 2000, following
the Jefferson Circuit Court’s denial of her motion to add a
finality endorsement to the court’s order entered on December 3,
1999.
The trial court’s denial of said motion, following a
hearing, was entered on June 22, 2000.
For the reasons stated
hereafter, we are constrained to dismiss this appeal because it
was untimely filed.
This dissolution of marriage action has had a long and
tortured history.
The original action was filed in 1995 and the
decree of dissolution was entered on February 4, 1997.
Since
1995, there has been over ten (10) pages of entries in the court
docket sheet.
The entire record is not included in this appeal
as a previous order was on appeal when this issue arose.
(That
appeal was eventually dismissed for failure to perfect the
appeal).
Although the record on appeal is devoid of significant
portions of the record, the report of the Domestic Relations
Commissioner (DRC) filed August 24, 1999, indicates that
post-decree issues were referred to him by order of the trial
judge on September 8, 1998.
The DRC held three hearings on the
issues presented to him and filed his report, as stated, on
August 24, 1999.
Each party filed exceptions thereto.
After
another hearing before the trial court, the court entered its
order on November 7, 1999.
The trial court order, in relevant
part, stated:
Mr. White has been his own worst enemy.
He has tried to practice the case Pro Se, he
has tried to utilize an attorney (changing
attorney’s frequently) and has done both
simultaneously. The confusion created by his
actions have made it difficult at time for
both parties to prove their case. This was
true for Mr. White before the Commissioner
where he bore the burden of proof.
After reviewing the Commissioner’s
Report, reviewing the Memorandum, and hearing
oral argument, IT IS HEREBY ORDERED:
(1) The Report of the Commissioner is
CONFIRMED except that Mr. White may have
Judgment against Ms. White for the
educational expenses he overpaid to LeNisha.
(2) Mr. White shall have Judgment
against Ms. White in the amount of $2,200.00
together with interest at the rate of 12%
from the date hereof until paid.
(3) This is a final Order, there being
no just cause for delay.
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In keeping with the adversary nature of this action,
both parties filed exceptions to this order.
Daniels filed a
motion pursuant to CR 59.05 and CR 60.02, to modify and set aside
the court order on November 10, 1999.
Following another hearing
the trial court entered an order denying Daniels’ motion on
December 3, 1999.
No further action was taken in this case until
several unrelated motions were filed in April and May of 2000.
Thereafter, on June 14, 2000, Daniels filed her motion to add
finality endorsement to the court’s order of December 3, 1999.
Therein Daniels alleged that her attorney “never received a copy
of the Order denying [her] motion for reconsideration or other
relief.”
She attached an affidavit of her attorney’s paralegal
who swore that the affiant had searched the “office’s case file
and [was] unable to locate a copy of the aforementioned order.”
Following another hearing on this motion and several others filed
before and after the motion, the trial court denied Daniels’
motions by order entered on June 20, 2000.
This appeal followed.
On appeal, Daniels contends that she is appealing the
series of orders entered November 11, 1999, December 3, 1999, and
June 20, 2000.
Her argument focuses on the November 11, 1999
order, which granted White judgment in the sum of $2,200 plus
interest.
brief.
It should be noted that White has filed no appellate
Despite this fact and the fact that Daniels may be
correct that the trial court may have committed a clear abuse of
discretion in this case, we are constrained to dismiss this
appeal as untimely.
-3-
We believe this case is similar to Stewart v. Kentucky
Lottery Corp., Ky. App., 986 S.W.2d 918 (1998), and that we are
bound by its holding.
In Stewart, the issue was also whether or
not the appeal was timely filed.
In Stewart, this Court held:
Appellant concedes that entry of the
order denying the motion to reconsider was
noted in the clerk’s docket on April 11, and
hence, that the time for taking an appeal
from the summary judgment began to run on
that date. He urges instead that since
neither party received notice of entry of the
order denying the motion to reconsider, his
appeal should not be dismissed. Moreover, he
argues that the clerk’s electronic docket
sheet does not comply with the requirements
of the civil rules. We are constrained to
disagree with both contentions.
True enough, apparently neither party
received notice of entry of the order denying
the motion to reconsider. Nevertheless, CR
77.04(4) plainly states that the clerk’s
failure to serve notice or a party’s failure
to receive notice does not affect the time
for taking an appeal. The rule further
provides that a trial court is not authorized
to grant an extension of time for filing a
notice of appeal for any period beyond ten
days past the expiration for the time for
taking an appeal. Brown v. Harris, Ky., 321
S.W.2d 781 (1959). Our courts have
consistently enforced the harsh dictates of
CR 77.04(4). See, e.g., Demos v.
Commonwealth, Ky. App., 765 S.W.2d 30 (1989);
Arnett v. Kennard, Ky., 580 S.W.2d 495
(1979); Electric Plant Board of City of
Hickman v. Hickman-Fulton Counties Rural
Electric Cooperative Corp., Ky. App., 564
S.W.2d 845 (1978). The reason for the rule
is well stated in 7 Kurt A. Phillips, Jr.,
Kentucky Practice, CR 77.04 (5th ed.1995) as
follows:
This Rule is somewhat unusual in
that, after carefully providing
methods for the giving of notice of
judgments and orders, it denies a
party the right to rely on the
actual giving or receiving of this
notice insofar as it affects either
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(1) the validity of the judgment or
order, or (2) the running of the
time within which an appeal may be
taken. This simply recognizes that
otherwise endless problems would
continually arise concerning the
giving or receipt of notice which
might impair the effectiveness or
cloud the finality of judgments and
orders. (Footnote omitted).
We are not unsympathetic to appellant’s
plight stemming from his not receiving notice
of entry of the order which triggered the
running of the time for taking an appeal or
to the inherent unfairness of the rule in
such a situation. Nevertheless, CR 77.04(4)
permits but one interpretation and has been
consistently applied in conformity with that
interpretation both by this court and by the
Supreme Court. To refuse to apply the rule
in the instant action, therefore, would
ignore the plain meaning of the rule and
existing precedent which we are required to
follow. This we decline to do because
adopting an interpretation of the rule
inconsistent with its plain meaning and
existing precedent is a matter which
addresses itself to the supreme court and not
this court.
The timely filing of a notice of appeal
is not jurisdictional, but rather is a matter
of procedure. Johnson v. Smith, Ky., 885
S.W.2d 944 (1994). Nevertheless, the supreme
court squarely held in Johnson that the
timely filing of a notice of appeal in
compliance with CR 73.02 is the method by
which the jurisdiction of the appellate court
is invoked and that automatic dismissal of an
appeal is the penalty for late filing of such
a notice. 885 S.W.2d at 950. The
substantial compliance doctrine simply does
not apply to notices of appeal. Therefore,
we are powerless to somehow excuse
appellant’s failure to comply with the rule
regardless of whether he received notice of
entry of the order denying his motion for
reconsideration. It follows that the circuit
court did not err by denying appellant’s CR
60.01 and CR 60.02 motion seeking to correct
the record by changing the controlling dates
noted in the clerk’s docket. See United
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Bonding Ins. Co. Don Rigazio, Agent v.
Commonwealth, Ky., 461 S.W.2d 535 (1970).
Stewart, Id. at 920, 921.
See also, Milby v. Wright, Ky., 952
S.W.2d 202 (1977); Fox (Simmons) v. House, Ky. App., 912 S.W.2d
450 (1995).
Despite Daniels’ allegations of not receiving a copy of
the order denying her motion to reconsider, the trial court’s
failure to make additional findings as requested, appellee’s
failure to filed an appellate brief, and the merits of her
allegations on appeal, we are constrained to dismiss her appeal
because it was not filed within 30 days after entry of the final
and appealable order.
CR 73.02.
For the foregoing reasons, it is HEREBY ORDERED that
this appeal be DISMISSED.
ALL CONCUR.
ENTERED:
November 21, 2001
/s/ Daniel T. Guidugli
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
NO BRIEF FILED FOR APPELLEE
Thomas Clay
Louisville, KY
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