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Jeremy Stanley, D/B/A Apc v. C & R Asphalt

February 1, 2013

JEREMY STANLEY, D/B/A APC AND APC, LLC
APPELLANTS
v.
C & R ASPHALT, LLC
APPELLEE



APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE ERNESTO SCORSONE, JUDGE ACTION NO. 10-CI-03954

The opinion of the court was delivered by: Acree, Chief Judge:

RENDERED: FEBRUARY 1, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION AND ORDER

DISMISSING

BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND THOMPSON, JUDGES.

We are asked to consider whether Jeremy Stanley's appealmust be dismissed for want of jurisdiction because it was filed more than thirty days after entry of the circuit court's judgment and following a pro forma CR*fn1 59.05 motion. In accordance with Matthews v. Viking Energy Holdings, LLC, we sustain the appellee's motion. 341 S.W.3d 594 (Ky. App. 2011).

Judgment was entered in favor of C & R Asphalt, LLC on March 7, 2012. On March 16, 2012, Stanley filed a motion entitled, "Motion to Alter, Amend[,] or Vacate" the judgment. The motion identified no grounds for disturbing the judgment and was not accompanied by a supportive memorandum; instead, the motion provided in its entirety as follows: "Comes now [Stanley], by and through counsel, and respectfully requests the Court set aside its Order entered March 7, 2012." The motion was denied on May 11, 2012, and Stanley filed his notice of appeal on June 8, 2012.

C & R Asphalt has asked us to dismiss this appeal on the basis of Matthews. In that opinion, we determined CR 7.02 requires that a motion to alter, amend, or vacate "state with particularity the grounds therefor[;]" otherwise, "the motion [is] incomplete and therefore invalid . [.]" Matthews, 341 S.W.3d at 598-99. An invalid CR 59.05 motion does not "toll the thirty-day period within which [the parties may] file [an] appeal." Id. Consequently, this Court lacks jurisdiction to entertain an appeal filed after thirty days of the judgment's entry.*fn2 Id., citing CR 73.02(2).

There is no meaningful distinction between Matthews and the matter now before us. Stanley's "Motion to Alter, Amend[,] or Vacate" failed to state any grounds whatsoever. It was therefore invalid and did not toll the running of time to file an appeal. Stanley failed to file his notice of appeal within thirty days of entry of the circuit court's final judgment, and so we lack jurisdiction to entertain the appeal. As in Matthews, dismissal is now required.

The Court, having considered the motion of the appellee C & R Asphalt, LLC to dismiss the appeal and the response thereto, and having been otherwise sufficiently advised, ORDERS that the motion be GRANTED and that this appeal be DISMISSED for failing to timely file the notice of appeal. Matthews, 341 S.W.3d 594.

CAPERTON, JUDGE, CONCURS AND FILES SEPARATE OPINION.

CAPERTON, JUDGE, CONCURRING. I concur in Chief Judge Acree's opinion and order because we are bound by the precedent of Matthews. He is correct in articulating the holding of that opinion and concluding we are now obligated to follow it.

However, I write separately to voice my disagreement with Matthews because that case places an undue burden on litigants and their counsel. CR 59.05 requires that a motion to alter, amend, or vacate be filed within ten days of entry of the judgment. Under Matthews' articulation of CR 59.05 and the accompanying obligations of CR 7.02, litigants are required not only to file the motion, but also to identify and articulate the reasons which merit disturbing the judgment within this short time.While these tasks may be relatively easy to accomplish when the matter is resolved prior to trial or extensive pretrial litigation, such tasks become insurmountable following a more complex procedural history and, most certainly, a lengthy trial. Themembers of the Kentucky Bar are far too harried ...


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