James v. James

• Decision Date: 20 May 2010
• Docket Number: No. 2008-SC-000163-DG.,2008-SC-000163-DG.
• Parties: Donald E. JAMES, Appellant, v. Thomas L. JAMES, Appellee.
• Court: United States State Supreme Court — District of Kentucky

313 S.W.3d 17

Donald E. JAMES, Appellant, v. Thomas L. JAMES, Appellee.

No. 2008-SC-000163-DG.

Supreme Court of Kentucky.

May 20, 2010.

Charles Thomas Hectus, Hectus & Strause PLLC, Louisville, KY, Counsel for Appellant.

Scott P. Zoppoth, Jennifer Lynn Hulse, The Zoppoth Law Firm, Louisville, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

We granted discretionary review of an opinion and order of the Court of Appeals dismissing Appellant's appeal as untimely to again address the means by which a party may properly implement his or her right to appeal due to "excusable neglect based on a failure of a party to learn of the entry of the judgment or an order which affects the running of time for taking an appeal." CR 73.02(1)(d); CR 60.02. Having reviewed the matter, we agree with the opinion of the Court of Appeals in part, but also disagree in part and thus vacate the order dismissing the appeal and reinstate it for consideration of the appeal.

We do so because we disagree with the opinion of the Court of Appeals that the filing of the notice of appeal under CR 73.02, under these circumstances, divested the trial court of its right to extend the time for appeal (not exceeding ten days from the expiration of the original time) as the trial court's right to do this is specifically recognized by CR 73.02(1)(d), not withstanding the premature filing of the notice of appeal. Once extended, the notice of appeal filed within the forty-day window recognized by CR 73.02(1)(d) was effective to acquire jurisdiction for the appeal.

We agree, however, with the opinion of the Court of Appeals that the CR 60.02 relief granted "in the alternative" would have been otherwise ineffective to establish jurisdiction in the Court of Appeals. No "notice of appeal" was properly filed thereafter, and the attempt by the trial court to establish such a filing by ordering the date of its filing changed to a date concurrent with the CR 60.02 order granting relief was invalid and, therefore, void. However, it was also invalid because the attempted CR 60.02 relief "in the alternative" was inconsistent with the original CR 73.02(1)(d) relief, as its effect would have been to invalidate it by changing the dates upon which the CR 73.02(1)(d) relief depended. Moreover, as such a "moving shell game" would unduly burden the appellate process, it constitutes an invalid usurpation of appellate powers.

I. Facts

Insofar as pertinent, Appellant, Donald E. James, the sole trust beneficiary, filed the underlying action against Appellee, Thomas L. James, as trustee, alleging a breach of fiduciary duty which resulted in a loss to the trust res, and, in the end, Appellant. Following trial, the jury returned a verdict in favor of Appellee and final judgment was entered thereon on April 24, 2007. Thereafter, Appellant filed a motion for a new trial, or in the alternative, for Judgment Notwithstanding the Verdict (JNOV).

Affidavits filed of record allege that subsequent to the submission of this motion, Appellant's counsel directed his law clerk to check CourtNet to determine the status of the motion and he was thereafter advised that the case was not on CourtNet. Counsel then directed the law clerk to periodically check with the Circuit Court Clerk's office to monitor the status of the motion and the eventual order. Subsequent to the filing, the law clerk advised Appellant's counsel several times that she had contacted the Circuit Court Clerk's office by phone and that the motion had yet to be ruled upon. Appellant's counsel also made several calls to the clerk to determine the status. Ultimately, a Notice of Submission was filed with respect to the motion.

Affidavits also indicate that Appellant's counsel called the Circuit Court Clerk's office on September 6, 2007, and, for the first time, was advised that the court had signed the order denying the motion for a new trial and JNOV on July 31, 2007 and the order was entered of record on August 1, 2007.¹ A copy of the order was immediately requested and received by counsel on Friday, September 7, 2007. Counsel for Appellant asserted, his belief is that, "for whatever reason, the service copy from the clerk was probably misdelivered, or lost in the United States mail, and through no fault of appellant in particular or his counsel, we did not receive notice of denial of the motion or notice of entry of the final order." An affidavit filed by counsel's office manager, responsible for the mail, also asserts that Appellant's counsel's office did not receive notice of, or a copy of, the order until September 7, 2007; nor were any billing records created prior to this time billing for "review of the order."

Thereafter, on Monday, September 10, 2007, Appellant's counsel filed a notice of appeal with the Taylor Circuit Court Clerk's office and a motion requesting the court "to enter an Order pursuant to CR 73.02(1)(d) extending Plaintiff's time to appeal from the final Order entered herein on August 1, 2007."² The affidavits aforementioned were filed with the CR 73.02(1)(d) motion.

In the motion, counsel submitted that the "court should exercise its discretion, pursuant to CR 73.02(1)(d) ... to extend Plaintiff's time to appeal from the final order entered herein on August 1, 2007, so that Plaintiff can appeal from the final judgment," having noted previously in the motion that: "the final order was entered on August 1, 2007. The original time to appeal would have run on August 31st. An extension of ten days will suffice to extend the appeal time." The motion also noted:

10. The failure to receive notice can be deemed "excusable neglect." CR. 60.02 states:

On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise, or excusable neglect ... The motion shall be made within a reasonable time ... not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.

(Emphasis in original).

Counsel also tendered a draft order with the motion as follows:

IT IS HEREBY ORDERED that Plaintiffs Motion to Extend the Time to Appeal from the Final Order previously entered herein on August 1, 2007, be, and it hereby is, GRANTED. The court specifically finds that Plaintiff has shown excusable neglect for failure to learn of the entry of judgment. The time to appeal is hereby extended, not exceeding ten (10) days from the date of the original time.

(Emphasis in original).

On October 22, 2007, the trial court granted the motion, but entered an order, as follows:

IT IS HEREBY ORDERED (emphasis in original) that Plaintiffs Motion to Extend the Time to Appeal from the Final Order previously entered herein on August 1, 2007, be, and it hereby is, GRANTED. The court specifically finds that Plaintiff has shown excusable neglect for failure to learn of the entry of judgment. The time to appeal is hereby extended, not exceeding ten (10) days from the date of the original time. In the alternative, (emphasis added) the Order entered on August 1, 2007, is vacated, and re-entered as of the date of this Order, and further, the Plaintiffs Notice of Appeal, previously tendered on September 10, 2007, is hereby ordered filed as of this date.

This order tracked the draft order tendered by Appellant except for the alternative relief portion. Appellant did not re-file a new notice of appeal following entry of this order.

Thereafter, on appeal, the Court of Appeals, issued a "show cause order" directing Appellant to show cause "why the above-styled appeal should not be dismissed for failure to timely file a notice of appeal." The appeal was thereafter dismissed by order of the Court of Appeals on February 4, 2008, concluding that:

On September 10, 2007, Appellant did not merely tender a notice of appeal with his motion to extend time. Rather, he filed the notice of appeal. At that point, the trial court became divested of the jurisdiction to rule on the motion. As stated in City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky.1990), `a notice of appeal, when filed, transfers jurisdiction of the case from the circuit court to the appellate court.' Therefore, we have determined that the notice of appeal was filed in an untimely manner without any leave to do so.

In addition, while the trial court had the jurisdiction to dispose of the motion pursuant to CR 60.02, and while it had the authority, pursuant to Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454 (Ky. 2002), to vacate the order of August 1, 2007, and to re-issue a new order based upon a finding of mistake or excusable neglect, we do not believe that the court also had the authority to modify the circuit clerk's record as it did by altering the previously recorded date of filing of the notice of appeal. Rather, we are of the opinion that Appellant was required to file a new notice of appeal within thirty days following entry of the order of October 22, 2007.

(Footnote omitted).

Appellant now contends that his appeal was proper under either the relief granted by the trial court pursuant to CR 73.02(1)(d) or CR 60.02, as his premature notice of appeal properly related forward under either rule. He also argues substantial compliance and that the order of the Court of Appeals violates his guarantee of one appeal as a matter of right pursuant to Section 115 of the Kentucky Constitution. Appellee, on the other hand, argues the premature filing of the notice of appeal vested jurisdiction in the Court of Appeals and therefore deprived the trial court of its jurisdiction to order the extension of time under CR 73.02(1)(d), that the "relation forward" doctrine does not apply to save a prematurely filed notice of appeal, and that a trial court has no authority to modify a circuit...