Dissenting.
I respectfully dissent. I admit that Matthews v. Viking Energy Holdings, LLC, 341 S.W.3d 594 (Ky.App.2011), supports the view taken by the majority. However, I believe that its holding should be revisited and this Court’s strict adherence to technical rules be replaced with our modern substantial compliance approach to our procedural rules.
In Ready v. Jamison, 705 S.W.2d 479 (Ky.1986), our Supreme Court recognized the injustice of strict application of our appellate rules of procedure and established the doctrine of substantial compli-*927anee in this jurisdiction. In doing so, it explained:
With this new policy we seek to recognize, to reconcile and to further three significant objectives of appellate practice: achieving an orderly appellate process, deciding cases on the merits, and seeing to it that litigants do not needlessly suffer the loss of their constitutional right to appeal.
Id. at 482. In City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky.1990), the Court further explained its landmark holding.
We held that these nonjurisdictional defects in the notice of appeal should not result in automatic dismissal; rather, the Court should consider any harm or prejudice resulting from the defect in deciding the appropriate sanction. We concluded that since no substantial harm resulted to the parties, dismissal of the appeal was an inappropriate remedy.
In this case, a timely CR 59.05 motion and a timely notice of appeal were filed. The majority’s decision that the motion was insufficient is not jurisdictional. Therefore, we must follow the substantial compliance rule and its corresponding consideration of whether any harm resulted from the lack of specificity in the motion. Lassiter v. American Exp. Travel Related Services Co. Inc., 808 S.W.3d 714, 718 (Ky. 2010). As our Supreme Court has pointed out, our emphasis is not on technicalities but on promoting justice by deciding cases on their merits. Id.
Although, in Matthews, this Court rejected the view expressed by the South Carolina Court in Camp v. Camp, 386 S.C. 571, 689 S.E.2d 634 (S.C.2010), I believe that Court’s reasoning is consistent with the current approach taken by Kentucky regarding our procedural rules. The South Carolina Court applied a prejudice analysis and framed the issue as follows:
The particularity requirement “is to be read flexibly in ‘recognition of the peculiar circumstances of the case.’ ” Cambridge Plating Co., Inc. v. Napco, Inc., 85 F.3d 752, 760 (1st Cir.1996) (quoting Registration Control Sys., Inc. v. Compusystems, Inc., 922 F.2d 805, 808 (Fed. Cir.1990)). “By requiring notice to the court and the opposing party of the basis for the motion, rule 7(b)(1) advances the policies of reducing prejudice to either party and assuring that ‘the court can comprehend the basis of the motion and deal with it fairly.’” Calderon v. Kansas Dept. of Soc. and Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir.1999) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1192, at 42 (2nd Ed.1990)). Therefore, when a motion is challenged for a lack of particularity, the court .should ask “whether any party is prejudiced by a lack of particularity or ‘whether the court can comprehend the basis for the motion and deal with it fairly.’ ” Registration Control, 922 F.2d at 807-08 (quoting 5 Wright & Miller, Federal Practice and Procedure § 1192, at 42). “The particularity requirement should not be applied in an overly technical fashion when the purpose behind the rule is not jeopardized.” Andreas v. Volkswagen of Am., Inc., 336 F.3d 789, 793 (8th Cir.2003) (citations omitted).
Id. at 575, 689 S.E.2d at 636 (footnote omitted).
In this case, there is no indication that the opposing party was prejudiced by the lack of particularity in the CR 59.05 motion. To the contrary, the court heard the arguments of counsel and decided the case on its merits. Moreover, even though this issue was included in the written response to the motion for new trial, this issue was not argued before the trial court at the hearing on the motion for new trial and is *928now argued on appeal. Under the circumstances, any objection was waived and the notice of appeal was properly filed. The trial court retained jurisdiction over the case and, when it accepted the CR 59.05 motion and ruled on its merits, the time for appeal began. I believe the majority has usurped the trial court’s discretionary powers to either accept or reject the motion, or to grant an extension of time to file a memorandum with proper citations to the trial record.
Finally, I point out the practical dilemma resulting from the application of CR 7.02(1) to CR 59.05 motions. Although, perhaps not the case here, when litigation is complex and lengthy, the preparation of a CR 59.05 motion stating all grounds with particularity within ten days of a judgment is an onerous burden. Essentially, the majority requires counsel to prepare and file a motion and supporting memorandum within a time period shortened by weekends and perhaps holidays, and maintain an ongoing practice. I do not believe that fairness or justice is served by such a rule. For this reason, I do not believe the rigid requirements imposed by the majority are appropriate in the context of a CR 59.05 motion.
For the reasons stated, I would not dismiss this appeal, and I urge our Supreme Court to overrule our Court’s opinion in Matthews v. Viking Energy Holdings, LLC, 341 S.W.3d 594 (Ky.App.2011).