Opinion
2023-CA-1274-MR
10-25-2024
DAVID M. SMITH APPELLANT v. LIGHTSTORM PROPERTIES, LLC AND BECKETT PROPERTIES, LLC APPELLEES
BRIEF FOR APPELLANT: Jason G. Howell Murray, Kentucky BRIEF FOR APPELLEE BECKETT PROPERTIES, LLC: David L. Kelley Paducah, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CALLOWAY CIRCUIT COURT HONORABLE ANDREA L. MOORE, JUDGE ACTION NO. 21-CI-00122
BRIEF FOR APPELLANT: Jason G. Howell Murray, Kentucky
BRIEF FOR APPELLEE BECKETT PROPERTIES, LLC: David L. Kelley Paducah, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
OPINION
THOMPSON, CHIEF JUDGE:
David M. Smith ("Appellant") appeals from an order of the Calloway Circuit Court denying his motion for an extension of time to file a notice of appeal from an order entered by the circuit court on August 11, 2023. Appellant argues that the circuit court erred in failing to find that Appellant's excusable neglect warranted a 10-day extension to file an appeal in the underlying action. After careful review, we conclude that the Calloway Circuit Court properly determined that Appellant failed to demonstrate excusable neglect sufficient to justify an extension of time to file a notice of appeal.
FACTS AND PROCEDURAL HISTORY
In 2022, Lightstorm Properties, LLC filed a foreclosure action against property owned by Appellant and located in Calloway County, Kentucky. Beckett Properties, LLC ("Appellee") purchased the property at the foreclosure sale. The sale occurred on December 2, 2022.
A judgment and order confirming the sale was entered on March 7, 2023. It directed the Master Commissioner to deliver a deed conveying the property to Appellee. The funds remaining after satisfying all costs, liens, and encumbrances were disbursed to Appellant by Order entered on May 26 2023, in the amount of $45,521.01.
Kentucky Revised Statutes (KRS) 426.530 grants to the former property owner, in this case Appellant, the right to redeem the property within six months of the sale if the property was not sold for more than two-thirds of its appraised value. Prior to sale, the parcel was appraised at $190,000, and sold to Appellee at a properly advertised courthouse auction for $105,000. Because the purchase price was less than two-thirds of the appraised value, Appellant had the right to redeem the property within six months by tendering to the clerk the full amount required by statute, including taxes and interest.
According to Appellant, he tendered to the clerk the redemption amount of $109,371.06 on July 17, 2023, some two days before the expiration of the six-month redemption period. On July 19, 2023, the Master Commissioner motioned the circuit court requesting a ruling on whether Appellant complied with the redemption requirements of KRS 426.530. The circuit court conducted a hearing on the motion on August 7, 2023. The court determined that Appellant did not fully redeem the property within six months because he failed to tender to the clerk the full redemption amount including taxes and interest. The order was entered on August 11, 2023, with Appellant having 30 days to appeal the ruling.
Appellant was working out of town on a construction project from August 7, 2023, to August 21, 2023. Appellant would later state that upon his return, he contacted several attorneys to prosecute an appeal, and the only attorney who agreed required a $10,000 retainer which Appellant could not afford.
On September 17, 2023, which was about one week after the closing of the 30-day period, Appellant retained counsel who filed a notice of appeal and a motion for an extension of time to file the notice of appeal. A hearing on Appellant's motion to extend the filing period was conducted on September 22, 2023. Appellant argued therein that his absence from town and subsequent inability to retain counsel constituted excusable neglect sufficient to support the extension under Kentucky Rules of Appellate Procedure (RAP) 3(D).
On September 29, 2023, the circuit court entered an order denying Appellant's motion seeking an extension of time to file the appeal. The court noted that Appellant was present when the circuit court stated when the order would be entered; that Appellant failed to keep a watchful eye on the proceedings and to act in a reasonably prudent manner; that Appellant knew how long he would be out of town evinced by his car rental agreement; and, that Appellant had 20 days after returning to town during which he could have retained counsel and filed the notice of appeal. Based on these findings, the court determined that Appellant had not demonstrated excusable neglect per RAP 3(D), and it denied his motion for an extension of time. This appeal followed.
At about the same time, Appellant's Notice of Appeal filed on September 20, 2023, was pending before this Court in No. 2023-CA-1119-MR. After Appellant failed to respond to a show cause order, this Court dismissed No. 2023-CA-1119-MR by way of an order entered on December 14, 2023. Appellee Beckett Properties, LLC intervened in the instant appeal on June 27, 2024.
STANDARD OF REVIEW
[Kentucky Rules of Civil Procedure (CR)] 73.02 does not require the trial court to extend the time for appeal upon a showing of excusable neglect. Under the plain meaning of the rule, if the litigant shows excusable neglect occurred, "the trial court may extend the time for appeal[.]" CR 73.02(1)(d). "May" is discretionary, rather than mandatory, language.Estate of Reeder v. Ashland Police Department, 588 S.W.3d 160, 167 (Ky. App. 2019). Discretionary issues are reviewed for abuse of discretion. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
CR 73.02(1)(d) was the previous version of RAP 3(D). As both rules use the same language, case law referring to CR 73.02(1)(d) will also apply to RAP 3(D).
ARGUMENT AND ANALYSIS
Appellant argues that the Calloway Circuit Court committed reversible error when it failed to find Appellant had excusable neglect sufficient to warrant a 10-day extension of time to file an appeal. While acknowledging that the circuit court correctly defined excusable neglect in the context of an "act of a reasonably prudent person under the same circumstances[,]" St. Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727, 731 (Ky. 2014), Appellant contends that the circuit court improperly applied this standard to the facts before it. He asserts that a reasonably prudent, pro se construction worker, who was out of town for much of the 30-day period and who raised a large sum of money to redeem the subject parcel, would have taken the same action under similar circumstances. Appellant points out that while the plaintiff in Edwards had counsel at the time the alleged neglect occurred, Appellant herein was out of town for much of the 30-day period and was not able to obtain counsel until after the period closed. Appellant also argues that the circuit court's findings as to his phone records are erroneous and not supported by the record. He seeks an opinion reversing the order on appeal and remanding the matter to the circuit court.
"All appeals shall be taken by filing a notice of appeal[.]" RAP 2(A)(1). The notice of appeal shall be filed within 30 days from the date of service of the judgment or order being appealed from. RAP 3(A)(1).
Upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment or an order which affects the running of the time for taking an appeal, the trial court may extend the time for appeal, not exceeding 10 days from the expiration of the original time.RAP 3(D). The failure to timely file a notice of appeal "shall result in a dismissal or denial" of the appeal. RAP 10(A).
Appellant does not argue that he was unaware of the circuit court's ruling that he failed to redeem the property in a timely manner, nor that he did not receive proper notice that he had 30 days to appeal that ruling. Rather, the focus of his argument is that, 1) he was out of town for about the first 10 days of the 30-day period; 2) upon his return, he was unable to assemble the funds necessary to retain counsel during the 30-day period; and, 3) his actions were reasonable for a pro se construction worker who had already assembled $109,371 in six months to redeem his property.
Appellant has cited no case law, nor has our research revealed any, holding that the failure to retain counsel in a timely manner constitutes excusable neglect for purposes of RAP (3)(D) or its predecessor rule set out in CR 73.02(1)(d). A number of extra-jurisdictional cases, however, have held that the failure to retain counsel does not constitute excusable neglect. See generally Goldome v. Davis, 567 So.2d 909, 910 (Fla. Dist. Ct. App. 1990), holding that a "defendant's failure to retain counsel . . . is not excusable neglect." Those cases are persuasive, but not controlling in the Commonwealth.
The express language of RAP 3(D) provides that a showing of excusable neglect must be based on a party's failure to learn of the entry of judgment or final order. "Upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment or an order which affects the running of the time for taking an appeal, the trial court may extend the time for appeal, not exceeding 10 days[.]" RAP 3(D) (emphasis added). See also Stankowski v. Cabinet for Health and Family Services, No. 2011-CA-000171-MR, 2011 WL 3208154 (Ky. App. Jul. 29, 2011). Appellant acknowledges having received notice of the August 11, 2023 order on August 21, 2023, when he returned home and checked his mail. As such, the sole basis for finding excusable neglect is not present in the matter before us.
In addition, it merits noting that while the filing of the notice of appeal within 30 days is mandatory ("[t]he notice of appeal . . . shall be filed . . . no later than 30 days from the date of . . . service of the judgment or order appealed from"), RAP 3(A)(1) (emphasis added), a 10-day extension for excusable neglect is discretionary ("the trial court may extend the time for appeal, not exceeding 10 days from the expiration of the original time"). RAP 3(D) (emphasis added). Thus, even if Appellant had proved excusable neglect, the Calloway Circuit Court could have denied the 10-day extension in the exercise of its discretion.
Appellant also argues that the circuit court erred in ruling that he failed to comply with the redemption requirements set forth in KRS 426.530. This argument is not properly before us, as it was raised and dismissed in No. 2023-CA-1119-MR and was not set out in the instant notice of appeal.
CONCLUSION
Appellant acknowledges having failed to file a notice of appeal within 30 days of the order ruling that he did not redeem the property within the time provided by statute. He neither argued nor proved the sole basis for finding excusable neglect, to wit, a lack of notice, and has shown no abuse of discretion. His argument that the circuit court erred in ruling that he failed to comply with the redemption requirements is not properly before us. For these reasons, we affirm the order of the Calloway Circuit Court denying Appellant's motion for an extension of time to file a notice of appeal in the underlying matter.
ALL CONCUR.