Manly v. Manly

OPINION OF THE COURT The question on review is whether the payment of the fee required by CR 76.-42(2)(a)(i) is a prerequisite to the filing of a Notice of Appeal. The movant deposited in the circuit court clerk’s office a Notice of Appeal from a judgment of the Jefferson Circuit Court on the last day permitted by CR 73.02(l)(a). In accordance with a practice available in the Jefferson Circuit Court, movant did not deliver the Notice of Appeal to the clerk or to a deputy, but merely placed in it a machine which stamped it as follows: [[Image here]] Movant then left the Notice in a box in the clerk’s office but did not pay the filing fee. Two days later the filing fee was paid. The Court of Appeals dismissed the appeal for the reason that the Notice of Appeal could not be considered to be filed until the filing fee was paid, and therefore the Notice of Appeal was not actually filed within the 30-day period required by the Rules. Because this presents a significant question in the interpretation of the Rules of practice which affects the entire bar, we granted discretionary review. Prior to 1981, a filing fee for appeals was required to be paid to the clerk of the appellate court as a step in perfecting an appeal. CR 76.42(2)(a). On July 1, 1981, the Rules of practice were amended in such a manner that the filing fee was required to be paid, not as a step in perfecting an appeal previously commenced, but as a condition of commencing an appeal. [539] Effective July 1,1981, CR 73.02(l)(b) was amended to read as follows: “If an appeal or cross-appeal is from an order or judgment of the circuit court, the filing fee required by Rule 76.-42(2)(a)(i) or (ii) shall be paid to the clerk of the circuit court at the time the notice of appeal or cross-appeal is filed, and the notice shall not be docketed or noted as filed until such payment is made.” Movant contends that the filing of the notice of appeal within 30 days of the judgment appealed from is mandatory and jurisdictional, but the payment of the filing fee is only procedural, and consequently the failure to pay the fee at the time of filing the notice does not deprive the appellate court of jurisdiction of the appeal. Movant contends that if the Supreme Court really intended the payment of the filing fee to be a jurisdictional prerequisite to the taking of an appeal, it would have amended CR 73.01 to provide that an appeal may be taken by filing a Notice of Appeal and by paying the fee required by CR 76.42(2)(a), and would have amended CR 73.02(l)(b) to read that no Notice of Appeal can be filed or accepted for filing by the clerk until the filing fee has been paid. The language suggested by movant would certainly have foreclosed the argument advanced in this case, but we are not convinced that the language of the Rule is ambiguous nor that it constitutes a trap for the unwary practitioner. All of the Civil Rules of practice are, in a sense, procedural in that they outline methods of practice and procedure. In appellate practice, Section 115 of the Kentucky Constitution provides for one appeal as a matter of right. It does not, however, guarantee a right of appeal practiced outside the Rules governing appellate practice. Foremost Ins. Co. v. Shepard, Ky., 588 S.W.2d 468 (1979). CR 73.01 provides that an appeal may be taken by filing a Notice of Appeal. CR 73.02(l)(a) provides the time limit within which the Notice may be filed. Although these rules are Rules of Procedure, failure to comply with them is fatal to an attempted appeal. CR 73.02(l)(b) not only provides that the filing fee shall be paid to the clerk of the circuit court at the time the Notice of Appeal is filed, but further provides that the Notice of Appeal shall not be docketed or noted as filed until such payment is made. Movant asserts that the plain language of the Rule, by stating that the Notice shall not be noted as filed until such payment is made, anticipates situations where the fee may be paid at some time after the Notice is deposited with the clerk. This may be true in instances where the Notice is tendered before the last day for filing and the fee is subsequently paid before the expiration of the 30 days, but here the fee was not paid within the 30 days, and consequently the Notice of Appeal was not filed timely. When a Notice of Appeal is delivered to the clerk, it is presented or tendered for filing. The clerk files the Notice by noting thereon the time and date thereof. CR 5.05. CR 73.02(l)(b) now prohibits the clerk from noting the document as filed until the fee is paid. The act of a clerk in endorsing upon a Notice of Appeal that it is filed and the time and date of filing is a nullity where he is precluded from doing so until he has collected a filing fee which he has not, in fact, collected. The filing of a Notice of Appeal is jurisdictional in the sense that it is the method by which the jurisdiction of an appellate court is invoked. The time limitation upon the filing of the Notice is necessary in order that judgments may become final and not subject to appeal after the expiration of the time allowed for the filing of a Notice of Appeal. This court has consistently required strict compliance with the time limitation for filing the Notice. It is not the payment of the filing fee, but rather the filing of the Notice of Appeal which invokes the jurisdiction of the [540] appellate court. Because the notice cannot be filed until the fee has been paid, the failure to timely pay the fee is fatal to the timely filing of the Notice of Appeal. The filing of the Notice of Appeal in this case was not timely because, under the Rules, it could not be filed until the filing fee was paid. The Notice was not filed on the 30th day as indicated by the stamp placed on the Notice by the clerk’s office. The stamp indicating it was filed on that date is nullity because the clerk had no authority to file the notice, pursuant to CR 73.02(l)(a) until he had collected the filing fee. The filing fee was paid on the 32nd day after entry of Judgment, and the Notice of Appeal was actually filed on that date. It was not timely filed. The result reached here may seem harsh to some. If relief is to be provided, however, it should come about by way of a change in the Rule, not from a failure to enforce it. It is the holding of this court that the payment of the filing fee for appeals is no longer simply a procedural step in perfecting an appeal. The payment of the filing fee is a condition precedent to the filing of a Notice of Appeal, and until the filing fee has been paid, the Notice of Appeal cannot be filed. There are now pending before this court a number of appeals involving this very issue. Because of an apparent widespread misunderstanding of the import of CR 73.02(l)(b) and the customary, albeit unauthorized, practice in some circuits, we have decided to give this opinion prospective effect only. This decision shall become effective and shall govern the filing of Notices of Appeal on and after the 1st day of June, 1984. The dismissal of this appeal is reversed, and the case is remanded to the Court of Appeals for further proceedings. STEPHENS, C.J., and AKER, GANT, STEPHENSON and VANCE, JJ., concur. LEIBSON and WINTERSHEIMER, JJ., each dissent by separate opinions.