dissenting.
Respectfully, I dissent.
The Majority Opinion holds that failure to name certain intervening parties, to wit: Jefferson County Fiscal Court and the City of Louisville, in the Notice of Appeal was a “jurisdictional defect that cannot be remedied”; this without regard to whether these parties, or any parties, would suffer any prejudice whatsoever if the appellants were permitted to subsequently amend their notice to include such parties. The underly*958ing premise for taking this position is thus stated on p. 957 of the Opinion:
“The plain language of CR 73 supports this view.”
The Majority Opinion quotes nothing in CR 73 that “supports this view,” let alone any “plain language” stated therein.
CR 73.02(2) was amended, effective January 1, 1985, to overrule the former policy requiring strict compliance with the requirements of a notice of appeal, and to replace this policy with “a new policy of substantial compliance.” Ready v. Jamison, Ky., 705 S.W.2d 479, 481 (1986). New CR 73.02(2) specifies that the only defect in the notice of appeal which is automatically fatal to the appeal is “the failure of a party to file notice of appeal within the time specified.” This is not the defect in the notice of appeal now under consideration.
The rest of CR 73.02(2) specifies that “failure of any party to comply with other rules relating to appeals ... does not affect the validity of the appeal ... but is ground only for such action as the appellate court deems appropriate,” which depends on whether such “failure ... to comply” has in fact prejudiced other parties to the appeal.
In the present case the appeal was dismissed without consideration of prejudice to other parties if the motion to amend the notice of appeal was granted, and without consideration of alternative sanctions as provided for in CR 73.02(2). Thus, contrary to the statement in the Majority Opinion that the “plain language of CR 73 supports this [the Majority’s] view,” the fact is that the “plain language of CR 73” supports the opposite view.
CR 73.02(2) and Ready v. Jamison, supra, effectively, and by its terms, overrules Manly v. Manly, Ky., 669 S.W.2d 537 (1984). The present case purports to follow Ready, and not to overrule it, but in fact it constitutes an aberration.
I would reverse and remand this case back to the Court of Appeals for further consideration to decide whether any party can prove prejudice would result from permitting the Notice of Appeal to be amended. If no such proof is forthcoming, the mandate of CR 73.02(2) is that the Court of Appeals should permit the Notice of Appeal to be amended and utilize other less drastic sanctions provided for by the Rule. Our policy is to decide appeals on the merits and not on insubstantial technicalities, and we should be consistent with our policy. The present case presents circumstances where the parties named as appellees in the Notice of Appeal are permitted to benefit from a technicality, failing to name inter-venors, City of Louisville and Jefferson County, who may technically be indispensable, but who probably are not affected by the outcome of the appeal one way or the other. There is no reason why in such situations a named appellee, the party truly interested in the outcome of the lawsuit, should be able to prevent the appellant from reaching the merits of the controversy.
GANT, J., joins this dissent.