KAREN CLARK GREEN, AS NEXT FRIEND OF WILMA CLARK, AN INCAPACITATED PERSON v. BEVERLY HEALTH AND REHABILITATION SERVICES, INC. D/B/A CAMELOT HEALTHCARE SPECIALTY CENTER, BEVERLY ENTERPRISES, INC. AND EVERETT BEN BAYS, ADMINISTRATOR, CAMELOT HEALTHCARE SPECIALTY CENTER
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RENDERED: APRIL 7, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000368-MR
KAREN CLARK GREEN, AS NEXT
FRIEND OF WILMA CLARK, AN
INCAPACITATED PERSON
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 04-CI-009047
v.
BEVERLY HEALTH AND REHABILITATION
SERVICES, INC. D/B/A CAMELOT
HEALTHCARE SPECIALTY CENTER,
BEVERLY ENTERPRISES, INC. AND
EVERETT BEN BAYS, ADMINISTRATOR,
CAMELOT HEALTHCARE SPECIALTY CENTER
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
TACKETT AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
TAYLOR, JUDGE:
Karen Clark Green, as Next Friend of Wilma
Clark, an Incapacitated Person, (Green) appeals from a January
18, 2005, order of the Jefferson Circuit Court dismissing claims
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes 21.580.
for personal and psychological injury against Beverly Health and
Rehabilitation Services, Inc. d/b/a Camelot Healthcare Specialty
Center, Beverly Enterprises, Inc. and Everett Ben Bays.
We
dismiss.
The judgment appealed from was entered January 18,
2005.
Green thereafter filed a Ky. R. Civ. P. (CR) 59.05 motion
to alter, amend or vacate the judgment.
The certificate of
service indicated that the CR 59.05 motion was served on January
28, 2005.
On February 17, 2005, Green filed a notice of appeal
in this Court from the January 18, 2005, judgment (Appeal No.
2005-CA-000368-MR).
The record on appeal does not contain an
order disposing of the CR 59.05 motion.
It is well-established that a timely filed CR 59.05
motion suspends the finality of the judgment.
v. Heck, 725 S.W.2d 13 (Ky.App. 1986).
Personnel Board
Generally, the filing of
a notice of appeal before a ruling upon a timely filed CR 59
motion renders the notice premature and results in dismissal of
the appeal.
See Johnson v. Commonwealth, 17 S.W.3d 109 (Ky.
2000); Cf. Johnson v. Smith, 885 S.W.2d 944 (Ky. 1994)
(recognizing an exception in an action involving multiple
parties where a CR 59 motion was filed by only some parties.)
In this appeal, Green filed a timely CR 59 motion that
effectively suspended the finality of the January 18, 2005,
judgment.
Green then filed the notice of appeal on February 17,
-2-
2005.
According to the record on appeal, the CR 59 motion was
not ruled upon before the filing of the notice of appeal.
In
fact, the record on appeal does not include an order disposing
of the CR 59 motion.
Accordingly, we believe Green’s notice of
appeal is premature, thus requiring dismissal of this appeal.
NOW THEREFORE be it ORDERED that Appeal No. 2005-CA000368-MR be and it is hereby DISMISSED.
ALL CONCUR.
ENTERED:
April 7, 2006
/s/ Jeff S. Taylor
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Brian G. Brooks
Little Rock, Arkansas
A. Courtney Guild, Jr.
Edward L. Schoenbaechler
HALL, RENDER, KILLIAN, HEATH
& LYMAN, P.S.C.
Louisville, Kentucky
-3-
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