Stanley v. C & R Asphalt, LLC

OPINION AND ORDER DISMISSING ACREE, Chief Judge: We are asked to consider whether Jeremy Stanley’s appeal must be dismissed for want of jurisdiction because it was filed more than thirty days after entry of the circuit court’s judgment and following a pro forma CR1 59.05 motion. In accordance with Matthews v. Viking Energy Holdings, LLC, we sustain the appellee’s motion. 341 S.W.3d 594 (Ky.App.2011). Judgment was entered in favor of C & R Asphalt, LLC on March 7, 2012. On March 16, 2012, Stanley filed a motion entitled, “Motion to Alter, Amend[,] or Vacate” the judgment. The motion identified no grounds for disturbing the judgment and was not accompanied by a supportive memorandum; instead, the motion provided in its entirety as follows: “Comes now [Stanley], by and through counsel, and respectfully requests the Court set aside its Order entered March 7, 2012.” The motion was denied on May 11, 2012, and Stanley filed his notice of appeal on June 8, 2012. C & R Asphalt has asked us to dismiss this appeal on the basis of Matthews. In that opinion, we determined CR 7.02 requires that a motion to alter, amend, or vacate “state with particularity the grounds therefor[;]” otherwise, “the motion [is] incomplete and therefore invalid ... [.]” Matthews, 341 S.W.3d at 598-99. An invalid CR 59.05 motion does not “toll the thirty-day period within which [the parties may] file [an] appeal.” Id. Consequently, this Court lacks jurisdiction to entertain an appeal filed after thirty days of the judgment’s entry. Id., citing CR 73.02(2). [926] There is no meaningful distinction between Matthews and the matter now before us. Stanley’s “Motion to Alter, Amend[,] or Vacate” failed to state any grounds whatsoever. It was therefore invalid and did not toll the running of time to file an appeal. Stanley failed to file his notice of appeal within thirty days of entry of the circuit court’s final judgment, and so we lack subject matter jurisdiction to entertain the appeal. “[T]he issue of subject matter jurisdiction can be raised at any time, even sua sponte, as it cannot be acquired by waiver, consent, or estoppel.” Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 270 (Ky.App.2005) (footnotes omitted). As in Matthews, dismissal is now required. The Court, having considered the motion of the appellee C & R Asphalt, LLC to dismiss the appeal and the response thereto, and having been otherwise sufficiently advised, ORDERS that the motion be GRANTED and that this appeal be DISMISSED for failing to timely file the notice of appeal. Matthews, 341 S.W.3d 594. CAPERTON, Judge, Concurs and Files Separate Opinion. Footnotes [1] Kentucky Rules of Civil Procedure.