Kurtsinger v. Board of Trustees of Kentucky Retirement Systems
Kurtsinger v. Board of Trustees of Kentucky Retirement Systems
Dissenting Opinion
dissents stating, “While the result reached by the Court of Appeals may be too harsh, CR 73.02 is very clear and contemplates what occurred in that court. Granting CR 60.02 relief would render CR 73.02 meaningless. Rather than changing the interpretation of the rule, we should consider changing the rule to prevent such a result in the future.”
Opinion of the Court
The trial court entered an order denying Appellants’ CR 59.05 motion, but Appellants and Intervening Appellees did not receive notice of entry of that order. Pursuant to CR 60.02, the trial court vacated the order and thereafter entered a new order. Appellants appealed to the Court of Appeals based on time computation from the last order. The Court of Appeals held that the trial court abused its discretion under CR 60.02 when it vacated the previous order. The question here is whether a trial court may vacate a CR 59.05 order under CR 60.02 upon a finding that a party did not receive notice of entry of the order.
Thirteen weeks following oral argument on the motion, the trial court entered summary judgment in favor of Appellees. Appellants timely filed a motion to alter, amend or vacate the summary judgment pursuant to CR 59.05. This motion was denied on June 29, 2000 and notice of entry of the order was sent to Appellees but not to Appellants. Appellants became aware of the June 29 order on August 15, 2000 when a telephone call was made by counsel to check the status of the CR 59.05 motion. On learning of the June 29 order Appellants immediately filed a motion pursuant to CR 60.02 requesting the trial court to vacate the June 29 order and enter a new order ruling on them CR 59.05 motion.
On August 23, 2000, the trial court held a hearing on Appellants’ motion pursuant to CR 60.02 and granted the motion. The trial judge stated that his office had made a mistake by not including the Appellants or the Intervening Appellees on the distribution list of the June 29 order.
On January 19, 2001, the Court of Appeals granted Appellees’ motion to dismiss the appeal. The Court of Appeals dis
The rule upon which the trial court acted, CR 60.02, is a safety valve, error correcting device for trial courts. It applies in six enumerated situations: “(a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence ...; (c) perjury or falsified evidence; (d) fraud affecting the proceedings ...; (e) the judgment is void ...; or (f) any other reason of an extraordinary nature justifying relief.”
This case need not turn on appellate rights or CR 77.04. Instead, this is nothing more than a trial court vacating an order on the basis of mistake, inadvertence, or excusable neglect and there is no doubt that a trial court has authority pursuant to CR 60.02 to grant such relief. In the order granting relief under CR 60.02 the trial court did not extend the time for appeal contrary to CR 77.04, rather the trial court merely vacated its previous order. By vacating the order the trial court returned the case to the status quo prior to the ruling on the CR 59.05 motion. We could end this opinion here but the parties have debated the interplay between CR 60.02 and CR 77.04 and we deem it expedient to address their contentions.
This case reveals a latent conflict between CR 60.02 and CR 77.04. If CR 77.04 is applied literally, where appellate rights are implicated CR 60.02 is unavailable to trial courts. This would be so despite the absence of an express CR 60.02 exclusion in CR 77.04. CR 60.02 is a mistake correcting rule that allows the trial court broad discretion. We should not apply one rule in a mannér that destroys another and eliminates its essential purpose. While this case arose out of a simple mistake, one could imagine outright fraud occurring in a manner that prevented a party from learning of entry of a judgment. Surely in such a circumstance, CR 77.04 would not be applied to prevent relief on egregious facts, but unless a harmony is possible between CR 77.04 and CR 60.02, such would be the result.
The Court of Appeals relied on Stewart v. Kentucky Lottery Corp.
Appellee has made an argument that CR 60.02 applies only to final judgments. However, the language and purpose of the rule suggests otherwise. CR 60.02 authorizes a court to grant relief from its “final judgment, order, or proceeding.” “Final judgment” is defined in CR 54.01 as “a final order adjudicating all the rights of all the parties in an action or
The June 29 order was not a final judgment.
The trial court determined that a CR 60.02 mistake had occurred whereby Appellants failed to learn of entry of the controlling order. It also found that Appellants “acted with due diligence and acted promptly” and that Appellees would not suffer prejudice. Upon these findings, the trial court acted within its broad discretion and granted Appellants’ motion to vacate the June 29 order. The trial court did not grant a motion to extend the time for appeal. Not until entry of the August 23 order finally overruling the motion to alter, amend or vacate the summary judgment did the time for taking an appeal commence. Accordingly, the appeal to the Court of Appeals was timely.
For these reasons, the opinion of the Court of Appeals is reversed and this cause remanded for further consistent proceedings.
. The trial judge commented as follows:
I am going to grant [the Appellants’ CR 60.02 motion]. It is our mistake. This is not a situation where there’s at least an argument that it went out to them and they are saying that they did not receive it or something like that. I looked at the order after they filed this and this was typed in our office and the distribution was not put on it to them. So I know it did not go to them and I don't think it would be fair to hold them at this point in time. Justice requires a little bit more than that.
. The CR 59.05 motion order that finalized the summary judgment decision was dated August 23, 2000.
.CR 77.04(4) reads in part:
Failure of the trial court to require service of notice of entry of any judgment or order under this rule or the failure of the clerk to serve such notice, or the failure of a parly to receive notice, shall not affect the validity of the judgment or order, and does not affect the time to appeal or relieve or authorize the court to relieve a parly for failure to appeal within the time allowed....
. CR 60.02.
. Fortney et al. v. Mahan, et al., Ky., 302 S.W.2d 842, 843 (1957).
. Id.
. Ky., 926 S.W.2d 449 (1996).
. Id. at 453 (quoting Hazel-Atlas Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944)).
. Ky.App., 986 S.W.2d 918 (1998).
. CR 54.01.
. Id.
. Mingey et al. v. Cline Leasing Service, Inc., Ky., 707 S.W.2d 794 (1986) (citing Cloverleaf Dairy v. Michels, Ky.App., 636 S.W.2d 894 (1982) ([A] ruling on a CR 59.05 motion is not a final or an appealable order.)).
. Bates v. Connelly, Ky., 892 S.W.2d 586 (1995).
Reference
- Full Case Name
- Michael KURTSINGER, Et Al., Appellants, v. BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS, Et Al., Appellees
- Cited By
- 35 cases
- Status
- Published