Opinion
NO. 2013-CA-000989-MR
02-19-2016
ROBERT R. SETREE, II AND BEVERLY SETREE APPELLANT v. RIVER CITY BANK APPELLEE
BRIEFS FOR APPELLANT: Robert Frederick Smith Louisville, Kentucky BRIEF FOR APPELLEE: Harold W. Thomas Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO. 11-CI-403400 OPINION AND ORDER
DISMISSING BEFORE: ACREE, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. ACREE, CHIEF JUDGE: The timeliness of this appeal has been previously considered for dismissal by this Court. The panel determined that these facts were sufficiently similar to those in James v. James, 313 S.W.3d 17 (Ky. 2010) and allowed the appeal to continue. However, the prior panel did not consider the timeliness of the Notice of Appeal in light of a tardy CR 59.05 motion. As a result, on May 21, 2015, this Court ordered the Setrees to show cause why this appeal should not be dismissed for failure to timely file a Notice of Appeal due to an untimely CR 59.05 motion. For the following reasons, we are compelled to dismiss this appeal.
Kentucky Rule of Civil Procedure.
On January 15, 2013, the Jefferson Circuit Court entered a judgment ordering the sale of the Setree's property. On January 27, 2013, the Setrees served on opposing counsel a "Motion To Alter, Amend And Vacate The Judgment Entered on 15 January, 2013." However, a CR 59.05 motion is to be served no later than ten days from the entry of the trial court's final judgment. See CR 59.05. The Setrees failed to do this. In the Setrees' response to the show cause order, they contend their CR 59.05 motion was timely because they were provided three additional days to serve their motion pursuant to CR 6.05. This assertion is incorrect.
The rule states: "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or electronic service, 3 days shall be added to the prescribed period. This provision shall not apply to the service of summons by mail under Rule 4.01(1)(a)." CR 6.05. --------
It has been binding precedent in Kentucky for more than 30 years that CR 6.05 does not extend the time frame in CR 59.05. Arnett v. Kennard, 580 S.W.2d 495, 496 (Ky. 1979); Commonwealth v. Steadman, 411 S.W.3d 717, 727 (Ky. 2013). The ten-day time period in CR 59.05 is measured from the date of the "entry of the final judgment"; CR 6.05 applies only to periods measured from the date of service. Arnett, 580 S.W.2d at 496.
Because the Setrees' CR 59.05 motion was served more than ten days from the entry of the trial court's final judgment, it was untimely and did not toll the time for filing an appeal. See CR 73.02(1)(e). Accordingly, the Setrees were required to, but did not, file their notice of appeal within 30 days of January 15, 2013, the date the final judgment was entered.
For these reasons, this appeal is hereby ordered dismissed.
ALL CONCUR. ENTERED: February 19, 2016
/s/ Glenn E. Acree
CHIEF JUDGE, COURT OF APPEALS BRIEFS FOR APPELLANT: Robert Frederick Smith
Louisville, Kentucky BRIEF FOR APPELLEE: Harold W. Thomas
Louisville, Kentucky