RENDERED: APRIL 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1502-MR
LOUISVILLE/JEFFERSON COUNTY APPELLANT
METRO GOVERNMENT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 17-CI-004975
DEZMON MOORE AND KENTUCKY APPELLEES
UNEMPLOYMENT INSURANCE
COMMISSION
OPINION AND ORDER
DISMISSING
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BEFORE: ACREE, MCNEILL, AND L. THOMPSON, JUDGES.
ACREE, JUDGE: On October 28, 2019, this Court ordered Appellant
Louisville/Jefferson County Metro Government to show cause why its appeal
should not be dismissed as untimely. Having reviewed its response, the Court
concludes Appellant failed to show good cause and dismisses the appeal.
As stated in the show cause order, Appellant pursued this appeal from
a final order of the Jefferson Circuit Court entered August 27, 2019. Appellate
review is procedurally initiated by compliance with Kentucky Rules of Civil
Procedure (CR) 73.02(1)(a). Appellant was required by that rule to file a notice of
appeal with the circuit clerk, accompanied by the proper filing fee, no later than
September 27, 2019. Appellant tendered its notice of appeal on September 25,
2019 but failed to pay the requisite filing fee until October 4, 2019. According to
CR 73.02(1)(b), a notice of appeal “shall not be docketed or noted as filed until
such payment is made.” In compliance with that rule, the clerk did not file, docket,
or otherwise enter Appellant’s notice of appeal, waiting until receipt of the filing
fee. Hill v. Kentucky Parole Bd., 250 S.W.3d 314, 315 (Ky. 2008) (“CR
73.02(1)(b) requires the filing fee required by 76.42(2)(a)(i) accompany the notice
of appeal, and the notice is not to be filed without said fee for an appeal.”).
Appellant did not pay the filing fee, and the notice of appeal was not filed, until
October 4, 2019, date well outside the applicable timeframe.
In response to this Court’s show cause order, Appellant claims its
failure to timely pay the filing fee was the result of counsel’s ignorance of the law.
Counsel believed he did not have to pay a filing fee because Louisville/Jefferson
County Metro Government is a political subdivision of the Commonwealth and
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therefore exempt from paying a filing fee. This is not correct. The express
language of the rule is that “No filing fee shall be payable by the Commonwealth
. . . .” CR 76.42(2)(b). This Court lacks the authority to extend the rule beyond
the sovereign to its subdivisions.
This case is analogous to Excel Energy, Inc. v. Commonwealth
Institutional Securities, Inc., 37 S.W.3d 713 (Ky. 2000), as modified on denial of
reh’g (Ky. 2001). In Excel, the appellant tendered a notice of appeal utilizing a
procedure of file stamping items and then depositing them in an in-basket at the
Clerk’s office, commonly known as “clock and drop.” Id. at 715. The appellant
failed to tender the required filing fee. As in the instant case, the 30-day window
for filing a notice of appeal closed before the clerk informed counsel of his failure
to pay the fee. As here, counsel in Excel reacted quickly and, very soon after the
clerk’s call, paid the filing fee. Id. But even one day late was not soon enough.
In both the instant case and in Excel, the notice of appeal was filed on
the day the fee was received. Id. at 716 (“the Jefferson Circuit Court Clerk refused
to file [the] notice of appeal, i.e., note it on the docket sheet as filed, until it
received the filing fee. This is exactly what the Clerk should do . . . .”). In both
cases, because the clerk did “exactly what the Clerk should do pursuant to CR
73.02(1)(b),” id., the filing of the notice of appeal occurred after the expiration of
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the 30-day window for doing so. Consequently, we are compelled to reach the
same result as in Excel, where the Kentucky Supreme Court said:
a tardy notice of appeal is subject to automatic dismissal
and cannot be saved through application of the doctrine of
substantial compliance, . . . a policy decision that is
reflected in CR 73.02. This policy choice is necessary to
preserve the finality of judgments.
Id. at 716-17 (citing Johnson v. Smith, 885 S.W.2d 944, 950 (1994)).
Appellant argues that electronic filing rules were nonexistent when
Excel was rendered and that distinguishes this case. Appellant’s counsel argues
that the Notice of Electronic Filing (NEF) which he received on the twenty-eighth
day after the judgment shows he timely filed the notice of appeal and, under
modern electronic filing rules, this should be legally sufficient under CR
73.02(1)(a). We disagree.
In Bruner v. Sullivan University System, Inc., the appellant failed to
pay the filing fee because of an alleged eFiling technical difficulty. 544 S.W.3d
669 (Ky. App. 2018). This Court concluded that the additional eFiling factor made
no difference and applied the analysis from Excel. Id. at 671-72. Although the
Supreme Court has approved some minor modifications in the eFiling system since
Bruner, those changes have no bearing on the analysis. We follow that analysis
here but cite to the current eFiling rules.
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In essence, Appellant argues the NEF he received is tantamount to the
clerk’s admission that the notice of appeal was received, accepted, and filed on
September 25, 2019, notwithstanding the failure to pay the fee. However, the NEF
is merely “a notice automatically generated by the electronic filing system at the
time a document is filed with the system, containing the date and time of filing in
Eastern Time and an electronic hyperlink to the document filed.” Kentucky
Supreme Court Amended Order 2018-11, Section 5(17).
Conversely, the system’s “Notification of Court Processing (NCP)”
would have indicated whether the clerk accepted Appellant’s notice of appeal
because the NCP is “a notice automatically generated by the electronic filing
system indicating that an eFiled document has been processed by the clerk. The
NCP will indicate whether the filing has been accepted or rejected.” Id. at Section
5(16). No NCP appears of record prior to the expiration of the 30-day window for
filing a notice of appeal.
The only conclusion this Court can reach is that the notice of appeal in
this case was not timely filed, and the appeal must be, and hereby is, DISMISSED.
ALL CONCUR.
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ENTERED: _April 9, 2021___ _________________________________
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE DEZMON
MOORE:
Mitchel Denham
Louisville, Kentucky David Leightty
Louisville, Kentucky
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