JEFF'S AUTO SERVICE, INC. v. FARM BUREAU INSURANCE COMPANY OF INDIANA, ASO JOHN LAWSON
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RENDERED: MARCH 30, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001504-D
JEFF'S AUTO SERVICE, INC.
v.
MOVANT
ON MOTION FOR DISCRETIONARY REVIEW
FROM JEFFERSON CIRCUIT COURT
ACTION NO. 05-XX-000054
FARM BUREAU INSURANCE
COMPANY OF INDIANA,
ASO JOHN LAWSON
RESPONDENT
OPINION AND ORDER
DENYING MOTION TO FILE
MOTION FOR DISCRETIONARY REVIEW
OUT OF TIME
** ** ** ** **
BEFORE: ACREE, JUDGE; KNOPF AND PAISLEY, SENIOR JUDGES.1
ACREE, JUDGE: Movant, Jeff’s Auto Service, Inc. (Movant), appealed a Default
Judgment entered by the Jefferson District Court. The Jefferson Circuit Court affirmed
the Default Judgment on June 13, 2006. That ended Movant’s appeal as a matter of right.
1
Senior Judges William L. Knopf and Lewis G. Paisley sitting as Special Judges by assignment
of the Chief Justice pursuant to Section 110(5) (b) of the Kentucky Constitution and KRS
21.580.
KRS 22A.020(1). Any further appeal would be at the discretion of this Court. KRS
22A.020(5).
The Kentucky Rules of Civil Procedure (CR) govern the time within which
Movant was required to file its motion:
A motion for discretionary review by the Court of Appeals of
a circuit court judgment in a case appealed from the district
court shall be filed within 30 days after the date on which the
judgment of the circuit court was entered . . . .
CR 76.20(2)(a). If Movant had complied with this Rule, the Motion for Discretionary
Review would have been filed on or before July 13, 2006. Movant did not comply with
the Rule and the motion was not filed in time.
Movant asks us to remedy this failing. Unfortunately, we have no authority
to grant its “Motion to File Out of Time” for two related, but not interdependent, reasons.
First, “CR 73.02(2) expressly places timely . . . ‘motions for discretionary review’ in the
same category as a ‘notice of appeal,’” Foxworthy v. Norstam Veneers, Inc., 816 S.W.2d
907, 909 fn.2 (Ky. 1991), making the filing of a motion for discretionary review no less a
jurisdictional requirement than the filing of a notice of appeal. See also, Beard v.
Commonwealth, ex rel. Shaw, 891 S.W.2d 382, 382-83 (Ky. 1994). Second, whether or
not the timely filing of a motion for discretionary review is jurisdictional, it remains
mandatory in that the Civil Rules require automatic dismissal of tardy appeals. Johnson
v. Smith, 885 S.W.2d 944, 950 (Ky. 1994).2 As explained in Johnson:
2
In state courts nationwide, “the time limit for filing an appeal is generally considered to be
mandatory and jurisdictional in both civil and criminal cases.” 5 Am. Jur. 2d Appellate Review §
291 (1995 & 2006 Supp.)(Footnotes omitted). “[E]ven in jurisdictions where substantial
compliance is sufficient with respect to some procedural steps for appeal, the timely filing of a
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A rule requiring automatic dismissal for a tardy appeal in
civil cases is necessary to provide finality to the trial court’s
judgment so that the litigant prevailing at the trial level can
then execute on the judgment or otherwise enforce the terms
of the final order.
Id.
Movant should not presume that this Court is empowered with
plenary authority to extend deadlines contained in our Rules. Such a presumption
would be incorrect. We are no less bound by the Rules of Civil Procedure than the
parties who come before us. Electric Plant Bd. of City of Hopkinsville v. Stephens,
273 S.W.2d 817, 818 (Ky. 1954).
CR 6.02 states in pertinent part:
When . . . by these Rules . . . an act is required . . . to be done
at or within a specified time, the court for cause shown may,
. . . upon motion made after the expiration of the specified
period permit the act to be done where the failure to act was
the result of excusable neglect; but it may not extend the time
for taking any action under Rules 50.02, 52.02, 59.02, 59.04,
59.05, 60.02, 72.02, 73.02 and 74 except to the extent and
under the conditions stated in them.
We are mindful that CR 6.02 does not include CR 76.20 within the group of
Rules that are excluded from its provisions, but we also note that it does include CR
73.02. That Rule governs initiating procedures in all appeals whether as of right or on the
basis of the Court’s discretion. It says, in pertinent part:
notice of appeal remains mandatory, and failure to timely file is fatal to the action.” Id. citing
Workers’ Compensation Board v. Siler, 840 S.W.2d 812 (Ky. 1992). This rule applies
“regardless of whether the appeal is taken as of right [footnote omitted] or by permission.” Id.
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The failure of a party to file timely a notice of appeal, crossappeal, or motion for discretionary review shall result in a
dismissal or denial.
CR 73.02(2). By the plain terms of CR 6.02, we cannot suspend that penalty by
extending the time for Movant to file its motion for discretionary review, “except to the
extent and under the conditions stated in” that Rule. CR 73.02 does contain such an
exception. However, that exception will not help this movant. As recently noted by the
Supreme Court:
. . . CR 73.02(1)(d) provides the only basis for enlarging the
period for taking an appeal [either as a matter of right or by
the court's discretion] after the time for doing so expires.
That basis is the failure of the appellant to learn of the entry of
the judgment that triggered the time for taking an appeal.
AK Steel Corp. v. Carico, 122 S.W.3d 585, 587 (Ky. 2003)(emphasis added).
As to the timeliness of the filing of a notice of appeal or motion for
discretionary review, it remains as strict as it always has been.
A policy of strict compliance governs the time within which
an appellant must invoke the court's jurisdiction . . . . CR
73.02, embodies a policy choice that a tardy petition for
review is subject to automatic dismissal and cannot be saved
through application of the doctrine of substantial compliance.
Hutchins v. General Elec. Co., 190 S.W.3d 333, 337 (Ky. 2006); see also, Harris v.
Jackson, 192 S.W.3d 297, 301 (Ky. 2006) (“[W]e demand strict adherence to our
jurisdictional rules regarding ‘timeliness’ . . . .”).
The same policy of strict compliance is also articulated in CR 76.20(2) (c)
which provides that
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[t]he failure of a party to file a Motion for Discretionary
Review within the time specified in this Rule, or as extended
by a previous order, shall result in a dismissal of the Motion
for Discretionary Review. 3
Although it appears as dictum within the context of AK Steel, supra, we
note with interest the statement made therein that “the time for invoking the Court’s
jurisdiction by filing a motion for discretionary review may be extended before it expires,
but the time may not be enlarged after it expires.” AK Steel, 122 S.W.3d at 587.
We do not disregard the seriousness of Movant’s underlying claim and we
regret, somewhat, that we will not be able to address it. That underlying claim is that
Respondent’s counsel lulled Movant’s counsel into inaction by misrepresenting his
intended course of conducting the litigation. This resulted, Movant alleges, in his
refraining from filing a responsive pleading to the original District Court complaint. The
charge was not supported by affidavit nor was it refuted by Respondent. Nevertheless,
whether this claim rises to the level of the type of fraud described in Noel v. City of
Madisonville Municipal Housing Com'n, 279 S.W.2d 790, 793 (Ky. 1955), or constitutes
professional misconduct, or is merely an excuse for failing to respond to the complaint,
the issue is not within the jurisdiction of this Court.
Furthermore, no matter how compelling the issues framed by this or any
motion for discretionary review may be, we cannot ignore, nor can we escape the
conclusion, that this Court has no authority to cure the jurisdictional defect occasioned by
3
See 5 William B. Bardenwerper, et al, Kentucky Practice, § 63.56 (3d ed. 1991 & 2007 Supp.)
(“Pursuant to CR 76.20(2), failure to file a timely motion for discretionary review results in a
mandatory dismissal of the appeal.”).
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Movant’s failure to timely file the motion for discretionary review. Foremost Ins. Co. v.
Shepard, 588 S.W.2d 468, 469 (Ky. 1979) quoting Brown v. Commonwealth, 551 S.W.2d
557, 559 (Ky. 1977)(“Substantive rights, even of constitutional magnitude, do not
transcend procedural rules[.]”).
For the foregoing reasons, the Movant's “Motion to File Out of Time” is
DENIED.
ALL CONCUR.
ENTERED: March 30, 2007
/s/ Glenn E. Acree
JUDGE, COURT OF APPEALS
COUNSEL FOR MOVANT:
COUNSEL FOR RESPONDENT:
Kristi Carver
Burkesville, Kentucky
Franklin S. Yudkin
Louisville, Kentucky
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