WHEN DOES A POST-JUDGMENT MOTION NOT TOLL THE TIME FOR APPEAL? / By Dave Kramer

By David Kramer | dkramer@dbllaw.com

 

The failure to meet the time deadline to file a notice of civil appeal after entry of a final judgment is one of the very few procedural mistakes a Kentucky civil litigator can commit that is uniformly fatal to the client’s case. Appellate lawyers know that the running of the 30-day time period within which a notice of appeal must be filed is automatically terminated by the timely filing of certain post-judgment motions and is restarted once the trial court enters an order ruling on such motions. Specifically, under CR 73.02(1)(e), a timely motion under CR 50.02 (motion for JNOV), CR 52.02 (motion to amend factual findings), CR 59.01 (motion for new trial), or CR 59.05 (motion to alter, amend or vacate a judgment) terminates the running of the 30-day time period.

 

However, a recent decision by the Kentucky Court of Appeals has put Kentucky litigators on notice that a motion made under one of those rules will not be treated as suspending the running of the appeal deadline if the motion lacks a statement of a legal basis containing some substance and specificity. In Matthews v. Viking Energy Holdings, LLC, 341 S.W.3d 594 (Ky. App. 2011), the Court of Appeals held that extending the time for filing a notice of appeal on the basis of a perfunctory, pro forma post-judgment motion would enable a party to unilaterally give itself an extension of time to file a notice of appeal. Relying on CR 7.02(1), which requires that a motion “state with particularity the grounds” on which relief is requested, the Court determined that a post-judgment motion lacking a statement of particular legal grounds is defective and incomplete and does not afford the trial court a meaningful basis or opportunity to review its decision. For these reasons the Court concluded that such a motion may not be used as a pretext for delaying the appeal deadline.

 

In light of this decision, counsel should be careful to state particular grounds for a post-judgment motion in order to suspend the running of the time limit to file a notice of appeal. Also, since some post-judgment motions (e.g., a CR 60.01 motion to correct a clerical mistake, or a CR 60.02 motion for relief from a judgment based on mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, or other reasons of an extraordinary nature) do not suspend the time for filing a notice of appeal, counsel should be careful to specify under which rule a post-judgment motion is made.

 

NOTE: The foregoing post includes commentary reprinted from the forthcoming 2012 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2012 Thomson Reuters.

 

For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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