Kurtsinger v. Board of Trustees, 2001-SC-0261-DG.

• Court: United States State Supreme Court (Kentucky)
• Writing for the Court: Lambert
• Citation: 90 S.W.3d 454
• Parties: Michael KURTSINGER, et al., Appellants, v. BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS, et al., Appellees.
• Docket Number: No. 2001-SC-0261-DG.,2001-SC-0261-DG.
• Decision Date: 21 November 2002

Page 454

90 S.W.3d 454 Michael KURTSINGER, et al., Appellants,
v.
BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS, et al., Appellees. No. 2001-SC-0261-DG. Supreme Court of Kentucky. November 21, 2002.

Page 455

Herbert L. Segal, Everett C. Hoffman, Segal Stewart Cutler Lindsay Janes & Berry, PLLC, Louisville, Counsel for Appellants.

Robert W. Kellerman, Lee A. Webb, Stoll, Keenon & Park, LLP, J. Eric Wampler, James Dodrill, Kentucky Retirement Systems, Frankfort, Todd S. Page, Stoll, Keenon & Park, LLP, Lexington, Counsel for Appellees.

LAMBERT, Chief Justice.

The trial court entered an order denying Appellants' CR 59.05 motion, but Appellants and Intervening Appellees did not receive notice of entry of that order. Pursuant to CR 60.02, the trial court vacated the order and thereafter entered a new order. Appellants appealed to the Court of Appeals based on time computation from the last order. The Court of Appeals held that the trial court abused its discretion under CR 60.02 when it vacated the previous order. The question here is whether a trial court may vacate a CR 59.05 order under CR 60.02 upon a finding that a party did not receive notice of entry of the order.

Thirteen weeks following oral argument on the motion, the trial court entered summary judgment in favor of Appellees. Appellants timely filed a motion to alter, amend or vacate the summary judgment pursuant to CR 59.05. This motion was denied on June 29, 2000 and notice of entry of the order was sent to Appellees but not to Appellants. Appellants became aware of the June 29 order on August 15, 2000 when a telephone call was made by counsel to check the status of the CR 59.05 motion. On learning of the June 29 order Appellants immediately filed a motion pursuant to CR 60.02 requesting the trial court to vacate the June 29 order and enter a new order ruling on their CR 59.05 motion.

On August 23, 2000, the trial court held a hearing on Appellants' motion pursuant to CR 60.02 and granted the motion. The trial judge stated that his office had made a mistake by not including the Appellants or the Intervening Appellees on the distribution list of the June 29 order.¹ The motion was granted on grounds of "mistake, inadvertence, excusable neglect and reasons of an extraordinary nature justifying relief" and upon a finding that Appellants "acted with due diligence and acted promptly." The trial court vacated the June 29, 2000 order. The trial court then entered a new order denying the CR 59.05 motion. On August 29, 2000, Appellants filed a notice of appeal from the summary judgment that had become final by virtue of the order denying the CR 59.05 motion.²

On January 19, 2001, the Court of Appeals granted Appellees' motion to dismiss the appeal. The Court of Appeals dismissed

Page 456

on grounds that the trial court abused its discretion by granting the Appellants' motion pursuant to CR 60.02 and that Appellants failed to demonstrate "excusable neglect" as required by CR 60.02. The Court of Appeals also concluded that the language of CR 77.04(4)³ mandated dismissal of the appeal based upon CR 73.02(1)(a).

The rule upon which the trial court acted, CR 60.02, is a safety valve, error correcting device for trial courts. It applies in six enumerated situations: "(a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence ...; (c) perjury or falsified evidence; (d) fraud affecting the proceedings ...; (e) the judgment is void ...; or (f) any other reason of an extraordinary nature justifying relief."⁴ The rule is designed to allow trial courts a measure of flexibility to achieve just results and thereby "provides the trial court with extensive power to correct a judgment."⁵ Accordingly, CR 60.02 addresses itself to the broad discretion of the trial court and for that reason, decisions rendered thereon are not disturbed unless the trial judge abused his/ her discretion.⁶ As to the applicability of CR 60.02 to the facts presented here we discern no abuse of trial court discretion. The trial judge clearly believed himself or his office staff (not Appellants) to have been culpable in the error that prevented Appellants from learning of entry of the June 29 order, and in our view, CR 60.02 was adopted for such circumstances.

This case need not turn on appellate rights or CR 77.04. Instead, this is nothing more than a trial court vacating an order on the basis of mistake, inadvertence, or excusable neglect and there is no doubt that a trial court has authority pursuant to CR 60.02 to grant such relief. In the order granting relief under CR 60.02 the trial court did not extend the time for appeal contrary to CR 77.04, rather the trial court merely vacated its previous order. By vacating the order the trial court returned the case to the status quo prior to the ruling on the CR 59.05 motion. We could end this opinion here but the parties have debated the interplay between CR 60.02 and CR 77.04 and we deem it expedient to address their contentions.

This case reveals a latent conflict between CR 60.02 and CR 77.04. If CR 77.04 is applied literally, where appellate rights are implicated CR 60.02 is unavailable to trial courts. This would be so despite the absence of an express CR 60.02 exclusion in CR 77.04. CR 60.02 is a mistake correcting rule that allows the trial court broad discretion. We should not apply one rule in a...