STANKOWSKI (DONALD) VS. CABINET FOR HEALTH AND FAMILY SERVICES
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RENDERED: JULY 29, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2011-CA-000171-MR
DONALD STANKOWSKI
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 09-CI-011612
CABINET
FOR
FAMILY SERVICES
HEALTH
AND
APPELLEE
OPINION AND ORDER
DISMISSING
* * * * * *
BEFORE: ACREE, STUMBO, AND WINE, JUDGES.
ACREE, JUDGE: This matter is before the Court on the appellee’s motion to
dismiss for failure to timely file the notice of appeal.
The circuit court clerk noted on the docket sheet that the final
judgment was served on the parties on August 6, 2010; therefore, the notice of
appeal was due to be filed by Tuesday, September 7, 2010. See Kentucky Rules of
Civil Procedure (CR) 77.04(2), CR 73.02(1)(a), and CR 6.01. Civil Rule
73.02(1)(d) provides the sole exception for extending the time for filing a notice of
appeal. AK Steel Corp. v. Carico, 122 S.W.3d 585 (Ky. 2003). This rule states
that upon a showing of excusable neglect for failing to learn of the entry of the
final judgment or order, the trial court may extend the time for filing the notice for
a period not exceeding 10 days from the original due date of the notice. The
motion seeking the additional time must be filed with the circuit court clerk within
10 days of the initial due date of the notice along with a tendered notice of appeal.
Rodgers v. Henderson, 612 S.W.2d 743 (Ky. App. 1980), overruled on other
grounds by James v. James, 313 S.W.3d 17 (Ky. 2010).
In the case at bar, the circuit court granted the appellant additional
time to file his notice on the basis that the appellant mailed his notice of appeal to
the wrong address.1 The circuit court was without authority to extend the time for
filing the notice of appeal on grounds other than for failing to learn of the entry of
the judgment or order.
Dismissal is mandated for the failure to timely file the notice of
1
The circuit court stated in its January 14, 2011, order in pertinent part as follows:
[T]he plaintiff attempted to file a timely notice of appeal of this
Court’s Opinion and Order of August 6, 2010. However, through
excusable neglect, the notice [of appeal] was directed to the wrong
address and was therefore not docketed. . . . [W]ithin ten (10) days
of the expiration of the running of the original time for filing
notice, the Plaintiff filed proper notice of appeal with the Jefferson
County Circuit Court Clerk. Pursuant to CR 73.02(1)(d), the Court
hereby extends the time for filing Plaintiff’s instant notice of
appeal.
2
appeal. Lassiter v. American Express Travel Related Services Co., Inc., 308
S.W.3d 714 (Ky. 2010); Johnson v. Smith, 885 S.W.2d 944 (Ky. 1994). Having
considered the motion to dismiss and the response, and having been otherwise
sufficiently advised, the Court ORDERS that the motion be GRANTED and that
this appeal be DISMISSED. The documents filed by the appellant on March 14,
2011, are ORDERED STRICKEN.
ALL CONCUR.
ENTERED: July 29, 2011
/s/ Glenn E. Acree
JUDGE, COURT OF APPEALS
APPELLANT:
ATTORNEY FOR APPELLEE:
Donald Stankowski, Pro Se
Louisville, Kentucky
John Marcus Jones
Cabinet for Health & Family Services
Frankfort, Kentucky
3
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