341 S.W.3d 594
Ky. Ct. App.2011Background
- Judgment quieting title to Viking pipeline easement entered November 2, 2009 in Warren Circuit Court.
- Matthews filed a pro forma CR 59.05 motion on November 12, 2009, without stating grounds.
- Viking moved to strike the motion as noncompliant with CR 7.02(1); circuit court denied both motion to strike and pro forma motion on December 28, 2009.
- Matthews filed a notice of appeal on January 5, 2010, within 30 days of the December 28 decision but more than 60 days after the November 2 judgment.
- The issue is whether the untimely but purportedly tolling CR 59.05 motion validly extended the appeal period; the court adopts the majority rule that a deficient motion cannot toll the time for filing an appeal.
- Court grants Viking’s motion to dismiss for lack of jurisdiction and DISMISSES the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a CR 59.05 motion tolls the appeal period if it fails to state grounds. | Matthews argues the motion tolls time. | Viking contends the motion is invalid for lack of particularity and cannot toll time. | The motion tolls no time; appeal untimely. |
Key Cases Cited
- Camp v. Camp, 689 S.E.2d 634 (S.C. 2010) (majority rule tolls time when motion is reconsideration, despite lack of stated grounds)
- Ligon Specialized Hauler, Inc. v. Smith, 691 S.W.2d 902 (Ky.App. 1985) (CR 59.02 timing concerns analogous to tolling rules)
- Newdigate v. Walker, 384 S.W.2d 312 (Ky. 1964) (policy supports not tolling for dilatory, undocumented motions)
- Sho-Deen, Inc. v. Michel, 263 Ill.App.3d 288, 200 Ill. Dec. 729, 635 N.E.2d 1068 (Ill. App. 1994) (pro forma post-trial motions require grounds to toll time)
- Intera Corp. v. Henderson, 428 F.3d 605 (6th Cir. 2005) (’particularity’ means reasonable specification of grounds for relief)