GEORGE STEWART V. KENTUCKY LOTTERY CORPORATION
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RENDERED: May 29, 1998; 2:00 p.m.
ORDERED PUBLISHED BY SUPREME COURT: January 13, 1999
NO. 1996-CA-002032-MR
GEORGE STEWART
V.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NO. 93-CI-5685
KENTUCKY LOTTERY CORPORATION
APPELLEE
OPINION AND ORDER DISMISSING APPEAL
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; GARDNER and SCHRODER, Judges.
GUDGEL, CHIEF JUDGE:
This is a single appeal from two final and
appealable orders entered by the Jefferson Circuit Court which
granted a summary judgment and dismissed the complaint of
appellant, George Stewart, against appellee, Kentucky Lottery
Corporation, and denied CR 60.01 and CR 60.02 motions.
Appellant
contends that the court erred by granting appellee a summary
judgment on the ground that his action is barred by limitations
and by denying his CR 60.01 and CR 60.02 motion to enter a Nunc
pro tunc order correcting the record as regards the date upon
which he received notice of entry of the order denying his motion
to reconsider the order granting summary judgment.
For the
reasons stated hereafter, we are constrained to grant appellee's
pending motion to dismiss this appeal as untimely which was
passed to this panel for a ruling.
Appellant filed this action for damages against
appellee alleging that he was wrongfully discharged from
employment.
Appellee filed a motion for summary judgment
claiming that the action was barred by the ninety-day limitations
period set forth in KRS 61.103(2), the whistle-blower protection
statute.
The circuit court granted appellee's motion and ordered
the action dismissed.
Appellant filed a timely "Motion for
Reconsideration" within ten days of the entry of the summary
judgment.1
The court apparently denied the motion without a
hearing on April 9.
On April 11, 1996, the clerk noted entry of
the order in the docket and pursuant to CR 77.04(1) stated that
notice of the entry of the order was served by mail.
It is
uncontroverted, however, that neither party received a copy of
the order denying the motion to reconsider even though the entry
of that order served to trigger the running of the time for
taking an appeal from the summary judgment.
On May 29, 1996, appellant notified the Administrative
Office of the Courts, pursuant to RCR 1.050(8), that a motion for
reconsideration had been submitted for decision in April.
1
Upon
Although the civil rules do not provide for the filing of a
motion to reconsider an order granting a summary judgment,
appellant's motion was essentially a CR 59 motion to alter,
amend, or vacate the summary judgment and has been treated as
such. Because the motion was timely filed, it served to stay the
time for filing a notice of appeal respecting the summary
judgment, CR 73.02(1)(2), until the date the clerk noted service
of notice of entry of the order denying the motion in the docket
sheet. CR 77.04(2); CR 77.04(3).
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receipt of the form, the court initialed it and indicated that
the motion for reconsideration was ruled upon on April 9.
On
July 2, 1996, appellant filed a CR 60.01 and CR 60.02 motion
seeking entry of a Nunc pro tun order reflecting a new date of
entry regarding the order denying the motion to reconsider.
Appellant claimed that the clerk had failed to mail counsel
notice of entry of the order denying the motion to reconsider and
that the first notice received occurred after the AOC notice of
submission form was filed.
Appellant also urged that the clerk's
"electronic" docket sheet in which the entries were made was not
a docket sheet which meets the requirements of CR 79.01.
court denied appellant's motion.
The
This single appeal from both
the summary judgment and the order denying the CR 60.01 and CR
60.02 motion followed.
Appellee filed a motion to dismiss this appeal on the
ground that appellant's notice of appeal was untimely filed.
A
panel of this court passed the motion to the panel assigned to
consider the merits of the appeal.
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
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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.
Harris, Ky., 321 S.W.2d 781 (1959).
Brown v.
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); Barnett v. Lennard,
Ky., 580 S.W.2d 495 (1979); Electric Plant Board of City of
Hackman v. Hackman-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 (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.)
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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.
Likewise, we find no merit in appellant's contention
that the docket notation in the clerk's electronic "Case History"
does not comply with the requirements of CR 79.01 and CR
77.04(2).
CR 79.01(1) requires the clerk to maintain a "docket,"
and does not specify that the docket be in hard copy paper form
as distinguished from an electronic form.
Moreover, CR 1(2)
provides that regulations and manuals published by the
Administrative Office of the Courts (AOC) with the approval of
the supreme court relating to matters of internal policy and
administration shall have the same effect as if they were
incorporated into the civil rules.
Thus, for all purposes
relating to the methods of preparing and maintaining clerks'
docket sheets as required by CR 79.01, the AOC manual governing
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the preparation of clerks' docket sheets through the use of the
computerized "sustain" system is considered part of the civil
rules because such procedures clearly pertain to internal policy
and administration in the clerks' offices.
We hold, therefore,
that the clerk's electronic computerized "Case History" or docket
sheet satisfies the requirements of CR 79.01 and the docket
notations were sufficient under CR 77.04 to trigger the running
of time for filing a notice of appeal.
Next, appellant contends that his constitutional right
to appeal should not be taken away since both parties were
unaware of the entry of the order denying the motion to
reconsider.
We disagree.
The timely filing of a notice of appeal is not
jurisdictional, but rather is a matter of procedure.
Smith, Ky., 885 S.W.2d 944 (1994).
Johnson v.
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
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controlling dates noted in the clerk's docket.
See United
Bonding Ins. Co., Don Ragas, Agent v. Commonwealth, Ky., 461
S.W.2d 535 (1970).
Finally, appellant contends for the first time in his
reply brief that the summary judgment was not final and
appealable because his claim for severance pay was not
adjudicated therein.
We disagree.
Appellant's complaint clearly included a claim for
severance pay and the summary judgment unquestionably dismissed
appellant's complaint in its entirety.
Moreover, no argument was
made in the trial court that a summary judgment was inappropriate
as regards the severance pay claim in either the motion for
reconsideration or in the CR 60.01 and CR 60.02 motions.
Thus,
we conclude, contrary to appellant's contention, that the summary
judgment adjudicated all of appellant's claims and was final and
appealable.
For the reasons stated, this single appeal from two
separate, final and appealable orders is hereby ORDERED
dismissed.
ALL CONCUR.
ENTERED:
May 29, 1998
/s/
Paul D. Gudgel
CHIEF JUDGE, COURT OF APPEALS
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ann B. Old father
James O. Barrett
Louisville, KY
Richard M. Sullivan
Richard B. Taylor
Louisville, KY
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