Norwest Bank Minnesota, N.A. v. Hurley

Concurring opinion by

Chief Justice LAMBERT.

I concur with the majority but express the view that the only distinction between our decisions in Excel Energy, Inc. v. Commonwealth Institutional Securities, Inc.1 and Foxworthy v. Norstam Veneers, Inc.2 is the response of the clerk to the flawed tender of the notice of appeal and filing fee. The Court of Appeals summed it up as follows:

The Foxworthy approach to the filing fee problem leaves compliance with CR 73.02 entirely to the whim of the circuit clerk. Placing in the hands of clerks such discretionary power over the timeliness of an appeal creates the anomalous situation in which an appellant lucky enough to file with a clerk who does not follow the rule is rewarded with a timely filed notice of appeal.3

This case does nothing to resolve the conflict. It merely perpetuates a system in which parties who obtain a filing stamp get one result, and those who do not get another result despite overwhelming similarity of circumstances.

The circumstances presented in all three cases (.Foxworthy, Excel, and the present case) are the same. The appealing party timely tendered a notice of appeal but failed to attach proper payment of the fifing fee. It is well-settled that payment of the fifing fee is not jurisdictional,4 and the failure of a party to attach proper payment should not be fatal due to the doctrine of substantial compliance.

The doctrine of substantial compliance was instituted to prevent parties from forfeiting their constitutional right of appeal for insubstantial reasons. As stated in Foxworthy automatic dismissal of an appeal because the fifing fee was not properly attached to the notice “qualifies as a Draconian measure.”5 There is a clear and substantial reason to require strict compliance with rules requiring a timely notice of appeal.

*25I concurred with the unanimous Court in Foxworthy and dissented in Excel on the view that timely tender of the notice of appeal is sufficient, and that failure to pay the filing fee is a remedial defect. We should overrule Excel and return to the sound principles contained in Foxworthy.

GRAVES, J., joins this concurring opinion.

. Ky., 37 S.W.3d 713 (2001).

. Ky., 816 S.W.2d 907 (1991).

. Slip op. at 7.

. Manly v. Manly, Ky., 669 S.W.2d 537 at 539-40 (1984).

. 816 S.W.2d at 909.