THOMAS WEIRD V. ERIC EMBERTON
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THOMAS WEIRD
V.
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2007-CA-000938-MR
JEFFERSON CIRCUIT COURT NO. OS-CI-004102
ERIC EMBERTON
APPELLEE
OPINION OF THE COURT
REVERSING
In this appeal, we must answer whether the early closing of a public
office in observance of a local event operates to extend the time for filing a
legal document where the filing deadline otherwise falls on the day of the
early closure. Because KRS 446 .030 grants an extension in just such
circumstances, we answer in the affirmative. Accordingly, the Court of
Appeals erred in dismissing the instant appeal as untimely.
A judgment was entered against Appellant, Thomas Weird, by the
Jefferson Circuit Court on April 3, 2007, making May 3, 2007, the deadline
for filing a notice of appeal from the judgment . On the afternoon of May 3,
2007, Appellant attempted to file a notice of appeal in the Jefferson County
Circuit Clerk's Office. However, the office had closed early that afternoon in
observance of the Kentucky Derby Parade. Appellant returned the next day
and filed the notice of appeal .
Appellee, Eric Emberton, sought to have the appeal dismissed as
untimely. Appellant responded to the motion, attaching the affidavit of his
counsel's secretary, stating that she had attempted to file the notice of
appeal at approximately 3 :10 p .m. on May 3, 2007, but the Jefferson
County Circuit Clerk's Office was closed . Also attached to the response was
the affidavit of a deputy clerk, stating that although the office's normal
business hours were 8:30 a.m. to 4 :30 p.m., the office had closed at 3:00
p.m. on May 3, 2007. Upon these submissions, the Court of Appeals
declined to dismiss the appeal as untimely.
Nevertheless, more than three months after the Court of Appeals'
ruling and after Appellant had filed his brief in the Court of Appeals,
Appellee filed a renewed motion to dismiss the appeal . Attached to the
motion was another affidavit by the deputy clerk, stating that signs
announcing the early closure of the office had been posted at the desk and
in the window for about a week prior to May 3, 2007, and that "Appellant's
Notice of Appeal could have been filed at any time across the street at the
Jefferson District Court Criminal Traffic office. . . . This desk is open for
filing all pleadings and notices of appeal twenty-four hours a day and 365
days a year." In light of this submission, a second Court of Appeals panel
granted Appellee's renewed motion to dismiss the appeal, opining that the
first panel's decision had been based on limited information.
This Court granted discretionary review and we now reverse the Court
of Appeals decision . We recently examined the relevant statute, KRS
446 .030, in the context of a factual scenario converse to that presented
here . In Wilkins v. Kentucky Retirement Systems Board of Trustees, 276
S.W.3d 812 (Ky. 2009), the deadline for filing the notice of appeal fell on
Columbus Day. Although the local clerk's office had been open all that day,
we held that the petitioner was entitled to an additional day to file his notice
of appeal because KRS 2.1 10(l) deems Columbus Day a legal holiday, and
KRS 446 .030 provides in pertinent part :
In computing any period of time prescribed or allowed by order
of court, or by any applicable statute or regulation, the day of
the act, event or default after which the designated period of
time begins to run is not to be included. The last day of the
period so computed is to be included, unless it is a Saturday, a
Sunday, a legal holiday or a day on which the public office in
which a document is required to be filed is actually and legally
closed, in which event the period runs until the end of the next
day which is not one (1) of the days just mentioned .
In Wilkins, we explained that the decision to keep the Court of Justice
Offices open on Columbus Day did not affect the date's status as a legal
holiday, which was statutorily established by KRS 2 .1 10(l) . Accordingly,
KRS 446 .030, to which this Court has long given comity, as well as the
similarly worded Rule of Procedure established by this Court, CR 6.01,
allowed the petitioner an additional day to file .
KRS 446 .030 also ensures that the legally prescribed filing period is
not reduced by such external circumstances as those presented here . The
statute grants an additional day to file when the filing deadline falls on a
"day on which the public office in which a document is required to be filed is
actually and legally closed ." It is undisputed that the Jefferson County
Circuit Clerk's Office closed early on May 3, 2007, Appellant's filing
deadline . The fact that notices of the closure had been posted at the desk
during the previous week does not deprive Appellant of the additional day
granted by KRS 446 .030 . Likewise, the fact that the district court criminal
traffic office was open and would have accepted the filing does not
supersede the extra day granted by the statute. There is no contention that
the notices posted at the circuit clerk's desk included information
concerning the alternate filing location across the street or that any statute
or local rule provided notice of the alternate filing location .
Moreover, the additional day granted by KRS 446.030 applies when
the "public office in which a document is required to be filed" is closed . CR
73 .02(b) provides that where an appeal is sought from an order or judgment
of the circuit court, the filing fee shall be paid to the clerk of the circuit
court at the time the notice of appeal is tendered. Thus, pursuant to CR
73 .02(b), the "public office in which [this] document [was] required to be
filed" was the circuit court clerk's office .
As the Jefferson County Circuit Clerk's Office closed early on the last
day of the legally prescribed filing period, KRS 446 .030 extended the filing
deadline, rendering the notice of appeal timely. Accordingly, the Court of
Appeals decision is hereby reversed and this cause is remanded for further
consistent proceedings.
Minton, CJ; Cunningham, Noble, Schroder, Scott, and Venters, JJ .,
concur. Abramson, J., not sitting.
COUNSEL FOR APPELLANT:
Kyle Anthony Burden
Mulhall, Turner, Coombs 8, Malone, P.L.L.C .
440 South Seventh Street, Suite 300
Louisville, Kentucky 40203
COUNSEL FOR APPELLEE :
Andrew King Gailor
The Gailor Law Office, P.L.L.C.
100 Professional Arts Building
730 West Market Street
Louisville, Kentucky 40202
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