Opinion
NO. 2011-CA-000754-MR
07-06-2012
JA-RON S. TEAGUE APPELLANT v. LADONNA THOMPSON, KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEE
BRIEF FOR APPELLANT: Ja-ron S. Teague Louisville, Kentucky BRIEF FOR APPELLEE: J. Todd Henning Justice & Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 10-CI-01031
OPINION
AFFIRMING
BEFORE: KELLER, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Ja-ron S. Teague appeals from a November 23, 2010, order dismissing his petition for a writ of mandamus. Because his notice of appeal was only effective as to a March 23, 2011, order denying his motion to amend, we cannot review the November 23rd order. Finding no error in the March 23rd order, we affirm.
A September 28, 2010, motion to dismiss was pending before the circuit court when Teague properly filed a notice of change of address on November 2, 2010, listing his new address following his release from the Marion County Jail. On November 23, 2010, the circuit court entered an order dismissing the case. The circuit court found that Teague failed to exhaust administrative remedies, failed to state a claim upon which relief could be granted and added the handwritten language, "the controversy is moot because Petitioner is no longer incarcerated at the Marion County Jail."
The circuit court clerk mailed the order to Teague's former jail address. The envelope containing the order was returned to the clerk marked "RETURN TO SENDER INMATE NO LONGER HERE!" and filed in the record on November 30, 2010. The record does not indicate any additional attempt to deliver the order.
On January 31, 2011, Teague filed a motion to amend his petition to respond to deficits pointed out by the motion to dismiss. In an order entered on March 23, 2011, the circuit court denied the motion, finding that:
the Court Dismissed this action in [a] final and appealable order on November 23, 2010. Ten days after that, pursuant to Kentucky Rule of Civil Procedure 59.05 (motion to alter, amend or vacate), this Court lost jurisdiction over the matter.
On April 15, 2011, Teague brought his motion nunc pro tunc, motion notice of appeal and or belated appeal before the circuit court explaining that he had not received notice of the previous dismissal of his case and requesting the opportunity to appeal. The circuit court treated this as a notice of appeal but could have considered it as a CR 60.02 motion. Both parties have briefed the merits of the dismissal under the November 23, 2010, order. However, we conclude that only an appeal from the March 23, 2011, order was timely.
Under CR 60.02, the circuit court had the ability to grant Teague relief from the November 23, 2010, order due to the mistake of the clerk not properly serving the order and could have then reentered the order allowing Teague to timely appeal it consistent with Kurtsinger v. Bd. of Trustees of Kentucky Ret. Sys., 90 S.W.3d 454, 457-458 (Ky. 2002), and its progeny. See Younger v. Evergreen Group, Inc., 363 S.W.3d 337, 339-340 (Ky. 2012); Cadleway Properties, Inc. v. Bayview Loan Servicing, LLC, 338 S.W.3d 280, 285-86 (Ky.App. 2006). In Kurtsinger, the Kentucky Supreme Court determined that a trial court did not lose its jurisdiction to properly vacate a final order pursuant to CR 60.02 on the grounds of "mistake, inadvertence, surprise or excusable neglect." By acting under CR 60.02 the court was not extending the time to appeal as prohibited by CR 77.04(4), because by vacating the original final order it was no longer a final order, and the new final order reset the time limit for filing an appeal. Id. (distinguishing Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918, 920 (Ky.App. 1998)). A trial court does not abuse its discretion by granting a CR 60.02 motion upon a finding that a final order was not mailed to a party due to the court's error. Younger, 367 S.W.3d at 339-40.
If there appeared to be any merit to a potential appeal of the November 23, 2010 order, we would consider remanding this case to the circuit court to rule upon Teague's April 15, 2011, motion pursuant to CR 60.02. However, even if an appeal from the November 23, 2010 order was timely, Teague's petition for writ of mandamus is deficient because he failed to exhaust his administrative remedies as required by KRS 454.415 where he did not demonstrate the completion of the grievance process. See Houston v. Fletcher, 193 S.W.3d 276, 278 (Ky.App. 2006), finding no entitlement to appellate review of claims where inmate did not establish exhaustion of administrative remedies under the same language in a previous version of KRS 454.415. See also Hensley v. Commonwealth, 355 S.W.3d 473, 475 (Ky.App. 2011).
The circuit court's March 23, 2011, order denying the motion to amend must be affirmed because the court lost jurisdiction to consider that motion after entering a final judgment. See Harris v. Camp Taylor Fire Prot. Dist., 303 S.W.3d 479, 482 (Ky.App. 2009). Therefore the denial of Teague's motion on this ground was correct.
For the foregoing reasons, we affirm the Franklin Circuit Court's order denying the motion to amend.
ALL CONCUR. BRIEF FOR APPELLANT: Ja-ron S. Teague
Louisville, Kentucky
BRIEF FOR APPELLEE: J. Todd Henning
Justice & Public Safety Cabinet
Frankfort, Kentucky