Opinion
NO. 2018-CA-001139-MR
01-24-2020
WILL MCGINNIS APPELLANT v. ZEFF MALONEY APPELLEE
BRIEFS FOR APPELLANT: Will McGinnis, Pro Se Lexington, Kentucky BRIEF FOR APPELLEE: Gregory E.J. Coulson Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 18-CI-01135 OPINION AND ORDER
DISMISSING
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BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Will McGinnis, pro se, brings this appeal from a June 22, 2018, Opinion and Order of the Fayette Circuit Court. We dismiss.
By Opinion and Order entered June 22, 2018, the circuit court rendered a summary judgment dismissing McGinnis's claims against Zeff Maloney. McGinnis then filed a Motion to Reconsider on July 12, 2018, and the circuit court denied the Motion to Reconsider by Order entered July 25, 2018. On July 30, 2018, McGinnis filed a Notice of Appeal from the June 22, 2018, Opinion and Order.
A notice of appeal must be filed within thirty days from the date of notation of service of the judgment appealed. Kentucky Rules of Civil Procedure (CR) 73.02(1)(a). Under CR 73.02(1)(e), the "running of the time for appeal is terminated by a timely motion . . . under Rules 50.02, 52.02 or 59[.]" To be considered timely, a CR 59.05 motion must be served no later than ten days after entry of judgment.
In this case, the Opinion and Order was entered and notation of service was made on June 22, 2018. McGinnis served the Motion to Reconsider on July 12, 2018, twenty days after entry of the Opinion and Order. Even if we consider this motion as being made under CR 59.05, it is clear that the motion was not served within ten days of entry of the Opinion and Order. Thus, the Motion to Reconsider is untimely and did not operate to suspend the running of time for an appeal. See Marrs Elec. Co., Inc. v. Rubloff Bashford, LLC, 190 S.W.3d 363, 366-67 (Ky. App. 2006). As a result, the notice of appeal should have been filed no later than July 23, 2018. However, McGinnis filed the Notice of Appeal on July 30, 2018. The failure to timely file a notice of appeal results in dismissal of the appeal. Anglin v. Justice & Public Safety Cabinet, 480 S.W.3d 291, 293 (Ky. App. 2015).
Now, therefore, be it ORDERED that Appeal No. 2018-CA-001139-MR is DISMISSED as untimely.
ALL CONCUR. ENTERED: January 24, 2020
/s/ Jeff S. Taylor
JUDGE, COURT OF APPEALS BRIEFS FOR APPELLANT: Will McGinnis, Pro Se
Lexington, Kentucky BRIEF FOR APPELLEE: Gregory E.J. Coulson
Lexington, Kentucky