Last week, the Kentucky Court of Appeals published an interesting opinion and order. In Stanley v. C&R Asphalt, LLC (rendered Feb. 1, 2013, and designated “To Be Published”), the Court ruled that a notice of appeal was untimely, and as a result, the appeal was dismissed. The appellant had filed the notice beyond the 30-day time limit from entry of judgment for filing an appeal, but but less than 30 days after the court denied his motion under CR 59.05 to alter, amend, or vacate the judgment. The Rule 59 motion read in its entirety: “Comes now [Stanley], by and through counsel, and respectfully requests the Court set aside its Order entered March 7, 2012.” Relying upon recent Court of Appeals precedent in Matthews v. Viking Energy Holdings, LLC, 341 S.W.3d 594 (Ky. App. 2011), the Court held that a bare-bones motion such as this was insufficiently detailed to toll the 30-day time for filing an appeal because CR 7.02(1) requires a motion to “state with particularity the grounds therefor.” The Court of Appeals therefore lacked jurisdiction over the appeal, and dismissed it.
Chief Judge Acree authored the opinion and order in Stanley. In a concurring opinion, Judge Caperton acknowledged that the majority opinion was technically correct because Matthews is entitled to stare decisis effect. However, he voiced opposition to the result because the case places an undue burden on litigants and counsel. Judge Thompson dissented, and urged the Supreme Court to overrule the Matthews rule. For Kentucky lawyers with an active trial and appellate practice, it will be interesting to see if the Supreme Court takes up Judge Thompson’s suggestion.
As a final note, it is even more interesting to note is that Chief Judge Acree wrote the opinion in Matthews (before being elected Chief Judge), and that Judge Caperton (along with Judge Clayton) both was on the panel that decided that case and concurred fully in the opinion at that time. Thus, Judge Caperton perhaps now has a case of buyer’s remorse after seeing the holding’s downstream effects. The only other Kentucky appellate case in which Matthews was cited, and in which it also had a dispositive effect on the outcome of an appeal, was Barnes v. Barnes (rendered Jul. 20, 2012, and designated “Not To Be Published”). Chief Judge Acree also wrote that opinion; Judge Keller concurred fully and Judge Combs concurred in result only.