Opinion
NO. 2013-CA-001045-MR
06-27-2014
TONY HODGE APPELLANT v. STEVE HANEY; STEVE TAYLOR; TRACY NEITZEL; AND DAVID CONLEY APPELLEES
BRIEF FOR APPELLANT: Tony Hodge, pro se Eddyville, Kentucky BRIEF FOR APPELLEES: Allison R. Brown Department of Corrections Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 12-CI-00371
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND STUMBO, JUDGES. COMBS, JUDGE: Tony Hodge appeals an order of the Boyle Circuit Court which denied his motion "to have an appeal considered." After our review, we affirm.
On August 15, 2012, Hodge filed a petition for declaratory judgment in Boyle Circuit Court. The court denied the petition on October 19, 2012. Hodge then filed a motion to alter, amend, or vacate the judgment on October 29, 2012. That motion was denied on November 13, 2012. The record shows that the next procedural action occurred on February 11, 2013, when Hodge sent an inquiry regarding a motion to proceed in forma pauperis in an appeal. There is a notation by the clerk's office that it never received a motion regarding a notice of appeal, and no such notice of appeal is contained in the record.
Acknowledging that he was acting after the procedural deadline, Hodge filed a motion for the court to consider an appeal on February 22, 2013, invoking the mailbox rule. Although he alleged that he had submitted a timely notice of appeal on November 30, 2012, he did not provide a copy of it. Nor did he provide any prison records to corroborate his claim.
On April 8, 2013, the court denied the motion because it found no evidence to support Hodge's claim of submission of a timely notice of appeal. Therefore, Hodge had no basis to proceed with the matter now before this court
As a threshold matter, we note that Hodge's brief is primarily concerned with substantive issues. The Department of Corrections only addressed the procedural issues, omitting any substantive arguments. It also included an anomalous footnote requesting additional time to submit a supplemental brief on the substantive issues if our Court so desired. Because we are deciding this case on the procedural issue of the timeliness of the notice of appeal, we will not address any substantive issues. Nonetheless, we note for the future reference of the Department that a footnote in a brief is not a substitute for the filing of a motion.
Hodge argues that the trial court should have granted his motion because the doctrine of substantial compliance governs application of the rules of procedure. He also urges us to apply the prison mailbox rule.
Hodge is correct that Kentucky courts have adopted a standard of substantial compliance regarding many of the rules of appellate procedure. Ready v. Jamison, 705 S.W.2d 479, 481 (Ky. 1986). However, "[t]he substantial compliance doctrine simply does not apply to notices of appeal." Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918, 921 (Ky. App. 1998). Therefore, the trial court correctly denied Hodge's motion to proceed with an appeal.
Furthermore, the prison mailbox rule allows for legal documents to be considered filed upon their entry into the prison's mail system - but only in criminal cases. Willis v. Willis, 361 S.W.3d 341, 343 (Ky. App. 2012). That provision is not extended to civil cases. Id. A petition for declaratory judgment is a civil action. See Million v. Raymer, 139 S.W.3d 914 (Ky. 2004). Thus, the trial court did not err by not applying the rule.
We affirm the order of the Boyle Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Tony Hodge, pro se
Eddyville, Kentucky
BRIEF FOR APPELLEES: Allison R. Brown
Department of Corrections
Frankfort, Kentucky