Ready v. Jamison
| Decision Date | 27 February 1986 |
| Docket Number | Nos. 85-SC-438-D,85-SC-439-D,85-SC-459-DG,s. 85-SC-438-D |
| Parties | Steve READY and Michael Stephens, Appellants, v. Tom JAMISON, Appellee. Randy HUDSON, Appellant, v. Sterman ADAMS, d/b/a Adams' Market, Appellee. John HAMMONS, Appellant, v. Revellia Frances Bishop HAMMONS, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Choya G. Oliver, Lexington, for appellants, Ready and Stephens.
Grover S. Cox, Louisville, for appellant, Hudson.
David L. Drake, Covington, for appellant, John Hammons.
Paul T. Allen, Jr., C.B. Creech, M.J. Curtis, Ashland, for appellee, Jamison.
Scott Plain, Owensboro, for appellee, Adam's Market.
Kendall Robinson, Booneville, for appellee, Revellia Hammons.
These three appeals were ordered heard together because they involve what is essentially one issue. In each case there was a defect in the Notice of Appeal in that the notice failed to properly designate a final judgment as specified in CR 73.03 and as defined by CR 54.01. In each the Notice of Appeal was timely filed as required by CR 73.02(1)(a), but the Notice of Appeal erroneously stated that the appeal was being taken from an order of court overruling a post judgment motion instead of specifying that the appeal was taken from the judgment itself.
CR 54.01 states that "[a] final or appealable judgment is a final order adjudicating all the rights of all the parties."
In Ready and Stephens v. Jamison, the Notice of Appeal specified that the appeal was from the Opinion and Order overruling the appellants' motion for a judgment notwithstanding the verdict of the jury. Properly stated, the appeal was from the judgment on the verdict.
In Hudson v. Adams' Market, the Notice of Appeal specified that the appeal was from the court's order overruling the appellant's motion to reconsider the summary judgment previously granted. Properly stated, the appeal was from the summary judgment.
In Hammons v. Hammons, the Notice of Appeal specified that the appeal was from the court's order overruling the appellant's motion for reconsideration of the terms of a decree of dissolution of marriage. Properly stated, the appeal was from the decree.
All three of these cases were filed subsequent to the changes in the Civil Rules effected January 1, 1985. These changed both CR 73.02(2), which specifies the penalties for failure to comply with rules relating to appeals, and CR 76.14, which requires a prehearing statement in civil actions appealed to the Court of Appeals.
The change in CR 76.14 provides for a prehearing statement which affords prompt notification to one's opponent of the "claims, defenses and issues [to be] litigated." CR 76.14(3)(g). This greatly diminishes the possibility of harm or prejudice to one's opponent in present circumstances.
The change in CR 73.02(2) is critical to the decision in the cases before us. CR 73.02(2), as amended effective January 1, 1985, provides in pertinent part:
(c) Imposition of fines on counsel for failing to comply with these rules of not less than $250 nor more than $500, and
(d) Such further remedies as are specified in the applicable Rule." (Emphasis added.)
Before this change in CR 73.02(2), commencing with Hawks v. Wilbert, Ky., 355 S.W.2d 655 (1962) and concluding with Foremost Insurance Co. v. Shepard, Ky., 588 S.W.2d 468 (1979), this court interpreted the portion of CR 73.03 which specifies the contents of a Notice of Appeal as requiring dismissal where the judgment appealed from was inappropriately designated. This was an automatic dismissal regardless of whether any harm or prejudice resulted to the opponent from the defect in the notice. Continued adherence to this policy of automatic dismissal regardless of prejudice is in conflict with the policy of substantial compliance which is now followed in the federal courts and the vast majority of our sister states who have considered the matter. Recently, in Manly v. Manly, Ky., 669 S.W.2d 537 (1984), while sticking to our policy of strict compliance and automatic dismissal, 1 we stated:
"If relief is to be provided, however, it should come by way of a change in the Rule, not from a failure to enforce it." 669 S.W.2d at 540.
Since Manly, with the enthusiastic endorsement of the members of the Kentucky Bar Association voiced in a public hearing on proposed rule changes at the 1984 KBA Convention, relief has been provided by way of a change in the rules. New CR 73.02(2) is that change. Thus, we utilized the door to change left open in Manly.
The time has come to recognize the change from the "policy of strict compliance with rules of procedure regarding appeals" (Foremost, supra at 469), to a new policy of substantial compliance as set out in CR 73.02(2).
It remains for us to specify how this new policy applies in present circumstances.
With reference to the defects in the...
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