DONALD STANKOWSKI APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES APPELLEE (2011)
Court of Appeals of Kentucky.
DONALD STANKOWSKI APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES APPELLEE
Decided: July 29, 2011
BEFORE: ACREE, STUMBO, AND WINE, JUDGES.
NOT TO BE PUBLISHED
OPINION AND ORDERDISMISSING
This matter is before the Court on the appellee's motion to dismiss for failure to timely file the notice of appeal.
The circuit court clerk noted on the docket sheet that the final judgment was served on the parties on August 6, 2010; therefore, the notice of appeal was due to be filed by Tuesday, September 7, 2010. See Kentucky Rules of Civil Procedure (CR) 77.04(2), CR 73.02(1)(a), and CR 6.01. Civil Rule 73.02(1)(d) provides the sole exception for extending the time for filing a notice of appeal. AK Steel Corp. v. Carico, 122 S.W.3d 585 (Ky.2003). This rule states that upon a showing of excusable neglect for failing to learn of the entry of the final judgment or order, the trial court may extend the time for filing the notice for a period not exceeding 10 days from the original due date of the notice. The motion seeking the additional time must be filed with the circuit court clerk within 10 days of the initial due date of the notice along with a tendered notice of appeal. Rodgers v. Henderson, 612 S.W.2d 743 (Ky.App.1980), overruled on other grounds by James v. James, 313 S.W.3d 17 (Ky.2010).
In the case at bar, the circuit court granted the appellant additional time to file his notice on the basis that the appellant mailed his notice of appeal to the wrong address.1 The circuit court was without authority to extend the time for filing the notice of appeal on grounds other than for failing to learn of the entry of the judgment or order.
Dismissal is mandated for the failure to timely file the notice of appeal. Lassiter v. American Express Travel Related Services Co., Inc., 308 S.W.3d 714 (Ky.2010); Johnson v. Smith, 885 S.W.2d 944 (Ky.1994). Having considered the motion to dismiss and the response, and having been otherwise sufficiently advised, the Court ORDERS that the motion be GRANTED and that this appeal be DISMISSED. The documents filed by the appellant on March 14, 2011, are ORDERED STRICKEN.
ENTERED: July 29, 2011 /s/ Glenn E. Acree
JUDGE, COURT OF APPEALS
APPELLANT: ATTORNEY FOR APPELLEE:
Donald Stankowski, Pro Se John Marcus Jones
Louisville, Kentucky Cabinet for Health & Family Services
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