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Patricia Mcpherson v. John G. Felker

February 15, 2013



The opinion of the court was delivered by: Stumbo, Judge:

RENDERED: FEBRUARY 15, 2013; 10:00 A.M.





This appeal addresses the following procedural question: Is a signed order granting summary judgment, which was faxed to the clerk and entered in the docket, a final judgment for purposes of calculating the timeliness of a subsequent motion to alter, amend or vacate? The Montgomery Circuit Court held that the faxed order was the final judgment, and on that basis ruled that Patricia McPherson's motion to vacate was untimely filed. We agree and affirm.

In 2006, McPherson filed a medical malpractice suit in the Montgomery Circuit Court against John G. Felker, M.D. Felker filed a motion for summary judgment on December 23, 2008. McPherson filed a response to the motion on December 31, 2008. On the same day, the circuit court signed an order granting the motion and faxed it to the Montgomery Circuit Clerk, who date-stamped it, entered it into the record, and mailed copies to the counsel of record. On January 6, 2009, the clerk received the actual order. It was also date-stamped, entered into the record, and mailed to counsel.

On January 16, 2009, McPherson filed a motion pursuant to Kentucky Rules of Civil Procedure (CR) 59.05 to vacate the summary judgment. The rule provides that such motion "shall be served no later than 10 days after entry of the final judgment." Felker filed a motion to strike McPherson's motion as untimely, arguing that the facsimile copy of the order entered by the clerk on December 31, 2008, constituted the final judgment. The trial court granted the motion.

McPherson then moved the court under CR 60.02(a), (e), and (f) to set aside the faxed order, to correct the record to reflect that the January 6, 2009 order was final and appealable, and to set aside the order striking her motion to vacate. Felker filed his response arguing that the December order was the final and appealable order. The trial court ultimately ruled in Felker's favor, holding that the facsimile copy of the order entered in December was the final judgment and that McPherson's motion to vacate was properly struck from the record as untimely filed. This appeal followed.

The rule at issue in this case, CR 58(1), provides in pertinent part that "[b]efore a judgment or order may be entered in a trial court it shall be signed by the judge. The clerk, forthwith upon receipt of the signed judgment or order, shall note it in the civil docket as provided by CR 79.01." McPherson argues that the rule contemplates that the entry by the court clerk be the original signed judgment or order and not a photocopy, facsimile, or other duplicate. In essence, he argues, only the original January, 2009 order was "signed" for the purposes of the rule. Felker argues that the December, 2008 order was the order that began the running of the CR 59.05 clock because it was entered into the record and mailed to counsel of record. He also argues that although the December order was sent to the clerk via fax, the order was in fact signed by the trial judge and entered.

There is no Kentucky case law on point in regard to this issue. Both parties have cited opinions from other jurisdictions. We find the case of In re Wal-Mart Stores, Inc., 20 S.W.3d 734 (Tex. App. 2000), persuasive. In that case, the Texas Court of Appeals held that unless the facsimile signature*fn1 is argued to be invalid, the order will stand. In Texas, as long as the stamped signature is done by someone under the direct authority of the judge, such as a court clerk, or is directed by the judge to affix the signature, then the signature is valid. Here there is no issue of authenticity in regard to the faxed signature.

Approached from a different direction, we can look to Staton v Poly Weave Bag Co., Incorporated/Poly Weave Packaging, Inc., 930 S.W.2d 397 (Ky. 1996), wherein our Supreme Court recognized the rule that the "entry" of a judgment or order occurs when the clerk makes a notation in the record, irrespective of when the judgment was signed. It stated that, [i]t has long been established that, regardless of when a judgment or order is rendered, it is the notation of the judgment or order in the docket by the clerk which constitutes "entry" of the document, and the document is ...

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