James v. James

MINTON, C.J.,

dissenting:

Because I believe the trial court lost jurisdiction over this case once Appellant filed his notice of appeal, I respectfully dissent. To rescue the Appellant from himself, the majority opinion errs by sacrificing longstanding precedent that was clear and easily applied. I fear that the result we reach today will muddy the waters for courts and practitioners going forward.

Over fifty years ago, our predecessor Court held that a trial court loses jurisdiction over a case when a notice of appeal has been filed: “Since the Court of Appeals alone can determine whether an attempted appeal is effective ... when a notice of appeal has been filed ... the circuit court is deprived of jurisdiction of the case to the same extent as when a valid appeal is pending.” Monsour v. Humphrey, 324 S.W.2d 813, 814-15 (Ky.1959). More recently, we have held that “[a] notice of appeal, when filed, transfers jurisdiction of the case from the circuit court to the appellate court. It places the named parties in the jurisdiction of the appellate court.” City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky.1990). Accord Johnson v. Commonwealth, 17 S.W.3d 109, 113 (Ky.2000) (“As a general rule, except with respect to issues of custody and child support in a domestic relations case, the filing of a notice of appeal divests the trial court of jurisdiction to rule on any issues while the appeal is pending.”); Young v. Richardson, 267 S.W.3d *29690, 695 (Ky.App.2008) (“it is the law in Kentucky that, with certain narrowly circumscribed exceptions, the circuit court is divested of jurisdiction over a case when a notice of appeal is filed_”).

The majority cites some of this precedent, but then somehow engages in a reverse-plain meaning analysis to conclude that those opinions were “not intended to deprive” a trial court of jurisdiction over a case onee a notice of appeal is filed, ostensibly because of other civil rules.

I readily agree with the majority that our civil rules are meant to function in harmony with each other and that some rules may permit a trial court sometimes to reacquire jurisdiction over a case that is on appeal. For example, CR 60.04 permits a party to move an appellate court to abate an appeal when a motion for relief is filed under CR 60.02 or 60.03. But the majority does not suggest that Appellant filed a motion to abate his appeal under CR 60.04.

In the absence of a timely CR 60.04 motion, the Court of Appeals acted properly in this case by relying upon a half-century of precedent that unmistakably holds that filing a notice of appeal transferred jurisdiction of the case to the appellate court, which, in turn, meant that the trial court lacked jurisdiction to enlarge the time within which to file an appeal. City of Devondale, 795 S.W.2d at 957. Such a conclusion is completely logical and broadly useful. After all, why would a party need an extension of time to file a document that has already been filed? Unlike the majority, I am unwilling to bend — if not break — our Rules of Civil Procedure and precedent to rectify a clear procedural error made by Appellant’s counsel.

Frankly, the proper course of action for someone in Appellant’s unfortunate position, who has failed to receive timely the trial court’s order denying a motion for a new trial, should not have been baffling. The proper steps to take in those situations are laid out concisely and clearly in Rodgers v. Henderson, 612 S.W.2d 743 (Ky.App.1980). As the Court of Appeals held in Rodgers:

The workload of the circuit courts and practical considerations dictate that the [motion for an extension of time under CR 73.02(l)(d) ] cannot always be heard within the 10-day period of time. As long as the appellant moves to file the notice of appeal within 10 days from the date that it was originally due pursuant to CR 73.02(l)(a), and tenders a copy of that notice, the circuit court may grant such an extension upon a proper showing of excusable neglect. If the motion cannot be ruled upon until after the 10-day period has passed, a nunc pro tunc order should be issued.

Id. at 745 (emphasis added). So Appellant clearly could have extricated himself from his procedural predicament had he followed Rodgers and: (1) timely filed a motion for extension of time and (2) tendered — not filed — his notice of appeal.

I also do not believe CR 60.02 affords Appellant any relief. Although Appellant did apparently seek relief based upon CR 60.02, the mere filing of a CR 60.02 motion does not extend the thirty-day time in which a notice of appeal must be filed. See 7 the late Kurt A. Phillips, ⅞,, David V. Kramer & David W. Burleigh, Kentucky Practice Series Rules of Civil Procedure, Rule 73:02 (6th ed. 2007) (“A motion pursuant to CR 60.02 does not toll the 30-day time requirement for filing a notice of appeal. CR 73.02 does not specify 60.02; thus, a party should be cautious when filing a post-judgment motion to specify the Rule on which the motion is predicated to insure that the time for filing the notice of appeal is held in abeyance.”) (internal foot*30note omitted). In fact, the trial court’s order purporting to extend the time for Appellant to appeal is nonsensical on its face since Appellant had already filed a notice of appeal, and the order makes no mention of CR 60.02. And, even if it did, I agree with the majority that any attempted relief based upon CR 60.02 under these facts “would have been ... ineffective to establish jurisdiction in the Court of Appeals. No ‘notice of appeal’ was properly filed thereafter ... and the attempt by the trial court to establish such a finding ... was invalid ...” In other words, even if the trial court had somehow granted Appellant relief under CR 60.02, Appellant failed to take advantage of that relief when he inexplicably failed to file a new and timely notice of appeal.

I believe that once Appellant filed his notice of appeal — instead of merely tendering it along with his CR 73.02(l)(d) motion, as precedent required — the circuit court was divested of jurisdiction. Therefore, consistent with our clear precedent, I would affirm the decision of the Court of Appeals to dismiss Appellant’s appeal. Because the majority regrettably comes to a different conclusion, I respectfully dissent.