LYNN PEERS WELCH V. THOMAS L. VELTEN
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RENDERED : FEBRUARY 23, 2006
TO BE PUBLISHED
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2003-SC-001000-DG
LYNN PEERS WELCH
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2003-CA-002019-MR
JEFFERSON FAMILY COURT NO. 00-FC-008395
THOMAS L. VELTEN
APPELLEE
OPINION OF THE COURT
VACATING AND REMANDING
This appellate-procedure case presents the issue of whether a party's
motion to dismiss her opponent's appeal pursuant to Kentucky Rules of Civil
Procedure (CR) 76 .34(6) suspends the running of time within which that party may
file a notice of cross-appeal, pending a ruling on the motion to dismiss .
The Jefferson Family Court entered its final judgment in this
marriage-dissolution proceeding on August 1, 2002 . Both parties -- Welch and
Velten -- filed timely motions to alter, amend or vacate the judgment pursuant to CR
59.05 . Without expressly granting or denying either of those motions, the family
court, on December 3, 2002, entered an opinion and order addressing their
respective arguments and modifying or clarifying the original judgment .
Velten promptly filed a motion pursuant to CR 59 to alter, amend or
vacate the opinion and order entered on December 3. The court denied that
motion on June 27, 2003, and Velten filed his notice of appeal on July 18, 2003 .
On July 28, 2003, Welch moved the Court of Appeals to dismiss
Velten's appeal as untimely filed, arguing that Velten's time expired thirty days after
entry of the opinion and order of December 3, 2002, which disposed of the CR 59
issues . Velten responded that the opinion and order of December 3 was essentially
a new final judgment, and that his second CR 59 motion was therefore legitimate
and served to terminate the running of time for appeal, which began anew when his
motion was denied on June 27, 2003.
The Court of Appeals agreed with Velten and denied Welch's motion
to dismiss the appeal on September 10, 2003 . Welch filed her notice of
cross-appeal on September 19. The Court of Appeals, sua sponte , ordered Welch
to show cause why her cross-appeal should not be dismissed on grounds that the
notice was filed out of time and, upon consideration of her response, dismissed the
cross-appeal . We granted discretionary review to decide whether Welch's time for
filing a notice of cross-appeal was suspended until the Court of Appeals ruled on
her motion to dismiss the direct appeal. We do not decide whether Velten's notice
of appeal was timely.
CR 73 .02(2) mandates that, "The failure of a party to file timely a
notice of appeal, cross-appeal, or motion for discretionary review shall result in a
dismissal or denial ." CR 74.01 provides for cross-appeals, and subsection (1)
states, in part:
Any party properly named as an appellee or crossappellee may take a cross-appeal from a judgment of
the trial court . A cross-appeal shall be denominated as
such and shall be prosecuted like a regular appeal and
governed by the Rules applicable thereto, except that
the notice of cross-appeal shall be filed not later than 10
days after the last day allowed for the filing of a notice of
appeal .
Assuming for purposes of the issue at hand that Velton did have the right to appeal
within thirty days after entry of the June 27, 2003, order denying his second CR 59
motion, as the Court of Appeals ruled in its interlocutory order denying Welch's
motion to dismiss, then the last day allowed for the filing of a notice of appeal would
have been Monday, July 28. Welch's time for filing a notice of cross-appeal would
have expired ten days later, on August 7, by our count. (Welch and the Court of
Appeals arrived at August 6, but the difference is immaterial in this case .) Her filing
on September 19 was far too late unless some agent outside of CR 74.01(1)
paused the clock.
That agent, Welch contends, was her motion to dismiss the appeal
pursuant to CR 76 .34(6). That Rule, headed "Motion to dismiss appeal or
cross-appeal," provides :
(a) In addition to any other relief provided by these
Rules, an adversary party may move to dismiss an
appeal or cross-appeal because it is not within the
jurisdiction of the appellate court or because it has not
been prosecuted in conformity with the Rules ; and
(b) Timely filing of a motion to dismiss shall suspend the
running of time for procedural steps otherwise required
with regard to the appeal and any cross-appeal in the
same proceeding, and the time will continue to run as
provided by Rule 76 .12(2) after the date an order is
entered, denying the motion or passing it to the merits .
Welch argues that her motion to dismiss, filed on July 28, ten days before the
August 7 deadline, stopped the running of time for the filing of a notice of
cross-appeal, which filing she perceives to lie among those "procedural steps
otherwise required with regard to the appeal and any cross-appeal in the same
proceeding ." When the Court of Appeals denied her motion to dismiss on
September 10, Welch concludes, the clock resumed with ten days remaining, so
that her filing on September 19 was timely.
The Court of Appeals concluded that CR 76.34(6)(b) applies to
procedural steps such as the filing of a prehearing statement or a brief, but not to a
notice of cross-appeal, which, although it is a "procedural device," requires strict
compliance with time limits for invoking appellate jurisdiction . Indeed, as the court
observed, CR 73.02(2) mandates dismissal of an appeal which was untimely filed,
but that observation begs the question, as it assumes Welch's filing to have been
untimely . Time limits for invoking jurisdiction are established by the rules of
procedure, and there is no reason to believe that the rules may not also provide for
conditional suspension of the running of time. There is little in CR 76 .34(6) to
advise litigants of any crucial distinction between a "procedural step" and a
"procedural device."
We recognize that CR 76 .34(6)'s only reference to the resumption of
the march of time, after a motion to dismiss appeal has been denied or passed to
the merits, is that "time will continue to run as provided by Rule 76.12(2)," which
rule deals only with the filing of briefs. If the suspension clause in CR 76 .34(6) was
intended to be limited to the filing of briefs, however, it would hardly be necessary
or desirable to provide broadly for suspension "for procedural steps otherwise
required ." (We cannot rule out, but do not anticipate, a future case in which a party
argues that procedural steps other than the filing of briefs are suspended
indefinitely since the time-resumption clause is limited to CR 76 .12(2) .)
If there is an ambiguity in CR 76 .34(6), we believe it is best resolved
in favor of having appeals and cross-appeals decided on their merits. We perceive
no prejudice to any party, and nothing inimical to the rules, in holding that Welch's
notice of cross-appeal was timely filed.
The order dismissing Welch's cross-appeal is vacated, and this matter
is remanded to the Court of Appeals with directions to consider the notice of
cross-appeal to have been timely filed.
All concur .
COUNSEL FOR APPELLANT :
Diana L. Skaggs
Sandra Ragland
Melinda Abney Whitton
Diana L . Skaggs & Associates
623 West Main Street
Louisville, KY 40202
COUNSEL FOR APPELLEE :
J . Fox DeMoisey
DeMoisey Law Office
The Starks Building, Suite 1210
455 South Fourth Avenue
Louisville, KY 40202
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