Hollins v. Joe Guy Hagan Realtors Co.
Hollins v. Joe Guy Hagan Realtors Co.
Opinion of the Court
OPINION AND ORDER
This matter is before the Court on ap-pellees’ motion to dismiss this appeal, to which appellant responded. The issue presented to us is whether the appeal was timely filed.
The notice of appeal, which was filed on January 24, 2005, designates an Opinion and Order entered by the Jefferson Circuit Court on November 17, 2004, granting ap-pellees’ motion for summary judgment, and an order entered on December 28, 2004, denying appellant’s motion to amend, alter or vacate pursuant to CR
Appellees argue that the appeal is untimely because appellant failed to notice her motion for a hearing,
Appellant responds that, although Car-nahan is factually distinguishable, it does stand for the principle that a party may obtain a hearing date on a motion after it has been served. In addition, she relies on other case law which rejected the argument that an appeal was not timely filed because appeal time had not been tolled by a post-judgment motion which failed to
We agree that better practice dictates the scheduling of a hearing date when a motion is filed. However, we are unwilling to say that the failure to schedule such a hearing date is to be regarded as equivalent to failing to file the motion at all.... In such instances, the trial court may properly put the movant on reasonable terms as to a hearing date, but under the existing Civil Rules may not treat the motion as a nullity.5
Having considered the parties’ arguments, and being sufficiently advised, the Court has determined that appellees’ motion is not well taken. While we agree that Carnahan controls the resolution of this matter, we disagree with appellees’ interpretation of its holding. Therefore, the motion is hereby DENIED.
First, we note that the Carnahan case emphasizes that a notice of hearing of a motion is intended to facilitate the prompt disposition of a case and that, therefore, the better practice is to include that notice within the motion. The Carnahan Court opined that “the movant must exhibit his good faith by seeking to bring the motion on for an early hearing and ruling.”
In Carnahan, however, at issue was the fact that defendant Robert Carnahan had not assigned a date for the hearing of his motion to dismiss the appeal of the Special Fund either at the time of filing of the motion or at any time afterwards before the trial court disposed of the Special Fund’s motion for default judgment. While the Court expressed doubt “if there could be a hard and fast rule to the effect that a motion without a notice is no motion at all”, it concluded that “a motion of the character filed here is, in effect, ‘no motion at all.’ ”
We construe Carnahan to articulate a concept not specifically defined in the older cases cited by appellant
In the instant case, appellant served her motion to set a hearing on her previously filed CR 59.05 motion 16 days following service of that motion. It is not clear whether appellees challenged the reasonableness of her delayed compliance when the trial court heard that motion or whether the trial court made any determination in that regard.
We now decide (and appellees have not come forward with any reason to compel us to hold differently) that appellant corrected the initial failure to serve notice of the hearing on her CR 59.05 motion within a reasonable time, thus preserving the effectiveness of that motion in accordance with the principle articulated in Carnahan.
ALL CONCUR.
. Kentucky Rules of Civil Procedure.
. Appellees also argued that the motion was untimely because it was served on November 29, 2004, which was twelve days after entry of judgment. However, as appellant correctly states in her response, the motion was timely served on the twelfth day because the tenth and eleventh days, November 27 and 28, 2004, were a Saturday and a Sunday, respectively. CR6.01.
. Appellees refer to JRP 301, 302, 304, 305 and 401.
. Appellees rely on Carnahan v. Yocom, 526 S.W.2d 301 (Ky. 1975).
. Commonwealth, Dept. of Highways v. Congleton, 436 S.W.2d 507, 509-10 (Ky. 1969). See also Commonwealth, Dept. of Highways v. Baldwin, 445 S.W.2d 427, 428 (Ky. 1969).
. Id. See also CR 6.04(1).
. Id.
. Congleton, 436 S.W.2d at 509-10; Baldwin, 445 S.W.2d at 428.
. CR 73.02(l)(e).
. CR 73.02(l)(a).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.