Foremost Insurance Co. v. Shepard , 1979 Ky. LEXIS 291 ( 1979 )

STEPHENSON, Justice,

dissenting.

I recognize that since 1962 this court has enforced a policy of strict compliance with CR 73.03 in accordance with Hawks. The opinion in Hawks represented a policy decision that rejected the alternative of substantial compliance in the absence of prejudice to the opposing party. In 1962 this court faced problems with an enormous and ever growing docket. The 1962 court apparently concluded that it could not afford the luxury of taking the time to decide substantial compliance and lack of prejudice on a case-by-case basis. This situation no longer exists, and it is my opinion that we should abandon the rigid policy of strict compliance, as announced in the majority opinion, in favor of a policy of substantial compliance where the defect does not mislead or prejudice the opposing party. This is in accordance with policy in the Federal courts. In Foman v. Davis, Executrix, 371 U.S. 178, 181-82, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962), presented with the same situation as here, the court said:

“ ‘The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’ ”

See also Jones v. Chaney & James Construction Company, 399 F.2d 84 (1968), where the United States Court of Appeals for the Fifth Circuit said:

“This court has consistently said that an appeal will be entertained where an ‘overriding intent to appeal’ may be reasonably inferred from the text of the notice and the defect has not materially misled the appellee.”

It is apparent that the problem presented here is universal. The terms of CR 73.03 are clear, but on occasion otherwise careful practitioners fall into the trap of designating an interlocutory order in the notice of appeal rather than the final judgment. I would examine each case to determine if the opposing party was misled or prejudiced and if not permit “substantial compliance.”

This would be no more onerous on this court than making a determination of “excusable neglect,” in CR 6.02 and CR 60.02, on a case-by-case basis which is analogous to the problem here.

In none of the cases here is there any pretense that the respondents were misled or prejudiced at all by the defective notice of appeal. It is apparent that in each of the cases the movants had in mind appealing from the judgment.

I would reverse the decision of the Court of Appeals and reinstate the appeals.

REED, J., joins in this dissent.