WAAJID SABREE v. YVONNE EMBRY AND GLENDALE EMBRY
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RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000748-MR
WAAJID SABREE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 99-CI-005316
v.
YVONNE EMBRY AND GLENDALE EMBRY
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
Waajid Sabree brings this pro se appeal from a
March 1, 2004, judgment of the Jefferson Circuit Court.
We
dismiss.
On March 1, 2004, a final judgment was entered in
favor of appellees which awarded damages of $102,734.00 against
appellant.
Thereafter, appellant filed a Ky. R. Civ. P. (CR)
59.05 motion to alter, amend, or vacate the judgment on March
15, 2004.
The certificate of service indicates that the CR
59.05 motion was also served on March 15.
The motion was denied
by order entered March 16.
Subsequently, appellant filed a
notice of appeal on April 15.
A notice of appeal must be filed within 30 days from
the date of notation of service of the judgment appealed.
73.02(1)(a).
CR
CR 73.02(1)(e) provides that the “running of the
time for appeal is terminated by a timely motion . . . under
Rules 50.02, 52.02, or 59 . . . .”
To be considered timely, a
CR 59.05 motion must be served no later than 10 days after entry
of the judgment.
In the instant case, the judgment was entered on March
1, 2004, and appellant’s CR 59.05 motion was served on March 15,
2004.
Thus, the CR 59.05 motion was untimely served and did not
operate to suspend the running of time for appeal.
The notice
of appeal should have been filed no later than March 31, 2004;
however, appellant filed the notice of appeal on April 15.
The
failure to timely file a notice of appeal deprives this Court of
jurisdiction and results in dismissal of the appeal.
See City
of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990).
NOW THEREFORE be it ORDERED that Appeal No. 2004-CA000748-MR is DISMISSED.
ALL CONCUR.
ENTERED:
April 22, 2005
/s/ Jeff S. Taylor
JUDGE, COURT OF APPEALS
-2-
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Waajid Sabree, Pro Se
Louisville, Kentucky
R. Dale Warren
Louisville, Kentucky
-3-
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