Notice of appeal SHALL be filed within 30 days. DIAZ V. BARKER AND ALLSTATE INS. CO. (COA 5/9/2008)

DIAZ V. BARKER AND ALLSTATE INS. CO.
APPEALS:  Notice SHALL be filed within 30 days

2006-CA-001198

PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING; TAYLOR, KELLER CONCUR
JEFFERSON COUNTY
DATE RENDERED: 5/9/2008

Basic civil procedure here: CR 73.02(1)(a) mandates that a notice of appeal SHALL be filed within 30 days after the date of notation of service of the judgment. COA disagreed with Plaintiff’s argument that she had the option to wait to appeal until the resolution of claims against all parties, citing CR 54.02, which states that in actions involving more than one claim or multiple parties, a court may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay. The CAs held that the trial court’s orders of summary judgment conclusively determined the rights of the parties as to each other, making the orders appealable at their time of entry.

The Plaintiff had moved to recuse the trial court and argued he lacked jurisdiction over the case once she made these motions pursuant to KRS 26A.015(2). The CAs noted that there are two alternative remedies to seek removal of a judge: a motion can be filed with the judge under KRS 26A.015(2), or an affidavit can be filed via KRS 26A.020(1) seeking relief from the Chief Justice. Here, the Plaintiff sought relief under .015(2) and is limited to the procedure set out therein. CAs held that on the face of the record the trial court was under no obligation to step aside, and as for any allegations that trial court made improper comments, the record was silent. And a silent record, friends, is presumed to support the decision of the trial court.

Cherry Henault Guarnieri

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