PAUL RICHMOND, AS ADMINISTRATOR OF THE ESTATE OF MYRTLE RICHMOND, AND PAUL RICHMOND, INDIVIDUALLY AND AS HEIR TO THE ESTATE OF MYRTLE RICHMOND v. SALLY ANN PATTON AND DONALD G. PATTON
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RENDERED:
DECEMBER 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000562-MR
PAUL RICHMOND, AS ADMINISTRATOR
OF THE ESTATE OF MYRTLE RICHMOND, AND
PAUL RICHMOND, INDIVIDUALLY AND AS
HEIR TO THE ESTATE OF MYRTLE RICHMOND
APPELLANTS
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE DANIEL R. SPARKS, JUDGE
ACTION NO. 98-CI-00051
v.
SALLY ANN PATTON AND
DONALD G. PATTON
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND MILLER, JUDGES.
MILLER, JUDGE:
Appellants, Paul Richmond, as administrator of
the Estate of Myrtle Richmond, and Paul Richmond, individually
and as an heir to the estate of Myrtle Richmond,1 bring this
1
The notice of appeal states that “[t]he name of the
Appellant is PAUL RICHMOND, AS ADMINISTRATOR OF THE ESTATE OF
MYRTLE RICHMOND and PAUL RICHMOND, INDIVIDUALLY and AS HEIR TO
THE ESTATE OF MYRTLE RICHMOND” (hereinafter “Richmond”). In the
circuit court, Richmond initiated this action only in his
capacity as administrator of the estate of Myrtle Richmond.
Thereafter, Richmond attempted to amend the complaint to be named
in his capacity as heir to the estate of Myrtle Richmond. The
circuit court never ruled upon same; nevertheless, Richmond
(continued...)
appeal from a December 22, 1999, summary judgment of the Johnson
Circuit Court.
On February 4, 1998, Richmond, in his capacity as
administrator of the estate of Myrtle Richmond, filed a complaint
in the Johnson Circuit Court against appellees, Sally Ann Patton
and Donald G. Patton (hereinafter referred to as “the Pattons”).
It appears that the decedent, Myrtle Richmond, conveyed a certain
tract of real property to the Pattons on or about April 12, 1997.
Richmond claimed that the deed should be set aside based upon
decedent's mental incapacity and the Pattons' undue influence.
On November 9, 1999, the Pattons filed a motion for
summary judgment.
Ky. R. Civ. P. (CR) 56.
On December 16, 1999,
Richmond filed a motion to amend the complaint.
Richmond wished
to also assert the action in his individual capacity as
beneficiary and sole devisee of the land under Myrtle's last will
and testament.
On December 17, 1999, Richmond filed a response
to the motion for summary judgment.
An order and amended order
granting summary judgment was entered on December 21 and 22,
1999, respectively.
They are in substance the same except the
latter contains the language that it is “final and appealable.”2
In the December 22 amended order granting summary judgment, the
1
(...continued)
brought this appeal in his capacity as heir to the estate of
Myrtle Richmond. Although we harbor grave doubt as to whether
such is proper, we shall not address this issue as it has no
bearing upon our resolution of this appeal.
2
We do not understand the inclusion of Ky. R. Civ. P. 54.02
language as the December 21st order dismissed the entire case.
We think this, however, is of no moment inasmuch as if the appeal
time expired from December 22nd, it a fortiori expired from
December 21st.
-2-
court determined that there was no material issue of fact
presented in the case and that:
“[t]he plaintiff [appellant] has failed to
establish a single act which would suggest
that Myrtle Richmond lacked sufficient
capacity to enter into the subject deed, in
fact testimony was made to the Court that the
plaintiff [appellant] knew of Myrtle
Richmond's plans regarding the conveyance of
the property.”
On December 29, 1999, Richmond filed a motion to alter,
amend, or vacate the December 22 amended order pursuant to CR
60.02.
Therein, Richmond argued that material issues of fact
exist and thus summary judgment was improper.
On February 15,
2000, the circuit court denied Richmond's “Motion to Reconsider
the Summary Judgment Order,” thus precipitating this appeal.
Richmond filed the notice of appeal with this Court on
March 2, 2000.
Therein, Richmond states that he was filing the
notice of appeal from an order of the Johnson Circuit Court
entered February 15, 2000.
The February 15, 2000, order of the
Johnson Circuit Court merely denied Richmond's CR 60.02 motion to
alter, amend, or vacate the December 22 amended order.
We do not
believe the February 15, 2000, order was an appealable order;
rather we view the December 22 amended order granting summary
judgment as the final and appealable order in this case.
CR 73.02(1)(a) requires the notice of appeal be filed
within thirty days after the date of notation of service of the
final judgment or order.
The notation of the December 22 amended
order was, in fact, December 22, 1999.
As a CR 60.02 motion will
not toll the running of time for bringing a direct appeal, we
must conclude that Richmond was required to file a notice of
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appeal thirty days after the December 22 amended order.3
See CR
73.02(e); United Tobacco Warehouse, Inc. v. Southern States
Frankfort Cooperative, Inc., Ky. App., 737 S.W.2d 708 (1987).
The record clearly reflects that Richmond's notice of appeal was
not filed until March 2, 2000.
As such, we are of the opinion
that Richmond's notice of appeal was untimely filed, thus
depriving this Court of jurisdiction over the matter.
See
Electric Plant Board of the City of Hopkinsville v. Stephens,
Ky., 273 S.W.2d 817 (1954).
For the foregoing reasons, the appeal is hereby ORDERED
DISMISSED.
ALL CONCUR.
ENTERED: December 22, 2000
/s/ John D. Miller
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
William W. Tinker, III
Paintsville, Kentucky
Mitchell D. Kinner
Prestonsburg, Kentucky
3
Ky. R. Civ. P. 60.02 specifically states: “A motion under
this rule does not affect the finality of a judgment or suspend
its operation.”
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