The Kentucky Supreme Court recently held that a CR 59.05 motion to alter, amend or vacate a judgment that fails to state any grounds, in apparent violation of CR 7.02, nevertheless substantially complied with the civil rules and tolled the filing of a notice of appeal under CR 73.02(1)(e). In Ky. Farm Bureau Ins. Co. v. Conley, 456 S.W.3d 814 (Ky. 2015), the Court, in an opinion by Justice Lisabeth Abramson, overruled by name one prior opinion of the Kentucky Court of Appeals, Matthews v. Viking Energy Holdings, LLC, 341 S.W.3d 594 (Ky. App. 2011), and overruled sub silentio at least one more Court of Appeals case, Stanley v. C&R Asphalt, LLC, 396 S.W.3d 924 (Ky. App. 2013), that had held a deficient CR 59.05 motion did not toll the time for appeal. In those two cases, the Court of Appeals dismissed the appeals as untimely.
The Supreme Court in KFB v. Conley noted that Kentucky appeals have long followed a rule of substantial compliance, under which the only deficiencies that are automatically fatal to an appeal are the failure to file a notice of appeal in a timely manner and the failure to name an indispensable party in the notice of appeal. The Court held the more lenient rule should be applied to post-judgment motions that may toll the time for taking an appeal.
Interestingly, the Supreme Court’s decision in KFB v. Conley aligned with the dissent by Court of Appeals Judge Kelly Thompson in Stanley v. C&R Asphalt, in which the majority followed Matthews and dismissed the appeal where the appellant’s CR 59.05 motion was deemed not to comply with CR 7.02. Judge Thompson advocated for application of the doctrine of substantial compliance to post-judgment motions. Former Judge Michael Caperton likewise advocated for the substantial-compliance approach but concurred with Chief Judge Glenn Acree’s opinion dismissing the appeal as a matter of stare decisis.
Note: The foregoing post includes commentary reprinted from the forthcoming 2016 supplement to 7 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2015 Thomson Reuters. For more information about this publication click here.
David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle psc, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.
