Barry A. Saturday v. Tyler Murphy, in His Official Capacity as Chair of the Fayette County Board of Education

• Court: Court of Appeals of Kentucky
• Decided: August 29, 2025
• Docket: 2024-CA-1244
• Status: Published

Opinion

RENDERED: AUGUST 29, 2025; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1244-MR

BARRY A. SATURDAY AND BARRY A. SATURDAY, ON BEHALF OF HIS MINOR CHILDREN, AURORA SATURDAY AND ATHENA SATURDAY APPELLANTS

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE JULIE M. GOODMAN, JUDGE ACTION NO. 23-CI-01210

FAYETTE COUNTY BOARD OF EDUCATION; TYLER MURPHY, IN HIS OFFICIAL CAPACITY AS CHAIR OF THE FAYETTE COUNTY BOARD OF EDUCATION, AND INDIVIDUALLY; AMY GREEN, IN HER OFFICIAL CAPACITY AS VICE- CHAIR OF THE FAYETTE COUNTY BOARD OF EDUCATION, AND INDIVIDUALLY; DEMETRUS LIGGINS, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE FAYETTE COUNTY PUBLIC SCHOOLS; AND JULIE GANN, IN HER OFFICIAL CAPACITY AS COORDINATOR OF GIFTED EDUCATION, AND INDIVIDUALLY APPELLEES OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, EASTON, AND LAMBERT, JUDGES.

EASTON, JUDGE: Barry A. Saturday (“Saturday”), pro se, appeals the denial of

his CR1 60.02 motion. Saturday argues the circuit court abused its discretion in

failing to apply equitable tolling to his untimely CR 59.05 motion. Having

reviewed the record and the applicable law, we2 affirm.

FACTUAL AND PROCEDURAL HISTORY

Saturday has two minor daughters, who attend school in the Fayette

County Public Schools (“FCPS”). Both children receive gifted and talented

education services through the school district. In April 2023, Saturday filed this

lawsuit in which he alleged the gifted services his daughters receive in the FCPS

are inadequate. He specifically claimed the assessments FCPS applied in deciding

whether to allow his younger daughter to skip a grade were improper. Saturday

asserted several negligence per se claims, as well as other tort claims in his

1 Kentucky Rules of Civil Procedure. 2 Saturday filed a Motion Requesting Voluntary Recusal on August 11, 2025. Saturday does not identify any specific disqualification of any judge, but he does give “fair notice” making clear his consideration of suing judges, including appellate judges, in the future. None of the judges on this panel is from the judicial district including Fayette County. None of these judges served on the panel which unanimously entered the prior order in this case on January 29, 2025. We find no legitimate basis to recuse and will not be influenced by any implicit threat. We will simply apply the law to this appeal as both sides should expect.

-2- complaint, including Intentional Infliction of Emotional Distress (“IIED”) and

False Imprisonment by FCPS because his daughter was not permitted to skip first

grade. Saturday filed the complaint pro se, representing both himself and his

minor children without the assistance of a licensed attorney.

The Appellees filed a motion to dismiss. They argued that Saturday

lacked standing to pursue any claim in his own right, that he was unable to legally

represent his minor children pro se, that the Appellees had governmental

immunity, and that the complaint failed to state a claim upon which relief could be

granted. The circuit court indicated to Saturday that he needed to obtain counsel to

represent his minor children, as a non-attorney does not have the legal right to

represent others, even his own minor children. The circuit court entered an order

on May 9, 2023, which denied Saturday’s motion for leave to file an amended

complaint, ruled that Saturday could not represent his minor children pro se, and

held the matter in abeyance for thirty days to allow Saturday to obtain counsel.

Instead of hiring counsel, Saturday filed his first appeal, challenging

the May 9 order. This Court properly dismissed the appeal as interlocutory in

August 2023. The case then proceeded again in circuit court. The circuit court

scheduled a hearing in April 2024 to hear all pending motions. This included the

Appellees’ motion to dismiss, as well as Saturday’s motion to reconsider, which

again requested that the circuit court allow him to represent his minor children;

-3- Saturday’s motion to disqualify the circuit court judge; Saturday’s motion to

amend complaint; and Saturday’s motion for temporary injunction.

The circuit court held a hearing on April 10, 2024. The Appellees

argued that all claims should be dismissed, as Saturday has no standing to assert

any of the claims on his own behalf. They also claimed the Board of Education

and all the individuals named in their official capacities had governmental

immunity. Further, there were no specific allegations against the named

individuals that would allow a claim to go forward against them in their individual

capacities. Appellees additionally argued Saturday’s claims of IIED and False

Imprisonment should be dismissed as the alleged stated facts do not support such

claims.

The circuit court generally agreed with the Appellees. The circuit

court ruled from the bench, stating its reasoning for the conclusion that all claims

would be dismissed. The court determined Saturday did not have standing to bring

a case in his own right because the harms alleged were to the children, and

therefore his claims would be dismissed with prejudice. As for the children’s

claims, the circuit court reiterated that Saturday does not have a right under the law

to represent his children pro se. The children’s claims were dismissed without

prejudice. Further, the circuit court determined the individual Appellees all had

governmental immunity.

-4- While the circuit court stated its ruling and its reasoning on the record

in April, a written order was not entered until June 4, 2024. The written order

confirmed the oral statements made by the circuit court at the April hearing.

Despite the order being entered on June 4, Saturday did not receive his copy of the

order in the mail until Saturday, June 15, 2024. But an email from Appellees’

counsel, with a copy of the order attached, was sent to Saturday on Thursday, June

13.

The reason for the delay in entry of the order by the Clerk is explained

by when the judge signed the order, which was on May 31, 2024. We do not know

if this delay represents the circuit court again giving Saturday an opportunity to

obtain counsel, was the result of the circuit court’s again reviewing the merits of

the various motions before entering a written order, was due to workload issues, or

oversight in submitting the file to the Clerk for entry of the order.

Regardless, the record contains no dispute as to the date of June 4,

2024, as the date when the Clerk entered the order and served the parties with their

copy of the order by mail. We do not know precisely when the Appellees’ counsel

received their copy because the email responding to an earlier email from Saturday

does not indicate this, but Saturday does not dispute receipt of the order through

the courtesy email from the Appellees’ counsel on the night of June 13, 2024.

-5- Saturday filed his CR 59.05 Motion to Vacate on June 17, 2024.

Saturday conceded that his motion was untimely. Under CR 59.05, the motion had

to be served no later than June 14, 2024. By only one business day, Saturday’s

motion was filed after this ten-day deadline. The circuit court conducted a hearing

on July 19, 2024, and denied Saturday’s motion.

Undeterred, Saturday told the circuit court he would file a different

motion. Saturday then filed a CR 60.02 Motion for Relief from Order Denying CR

59.05 Motion. He asked the circuit court to find “excusable neglect” and requested

equitable tolling. The circuit court denied this motion and entered a written order

on September 20, 2024. Saturday then filed his timely Notice of Appeal for the

present appeal on October 15, 2024.

This Court issued a Show Cause Order for Saturday to show cause

why the claims on behalf of his minor children should not be excluded from the

issues to be addressed in this appeal. Saturday filed his response in November

2024, making the same arguments previously made to—and rejected by—the

circuit court. On January 29, 2025, this Court entered an Order limiting the issues

for this appeal to the claims Saturday made on his own behalf. This Court

determined, just as the circuit court did, that parents are unable to represent their

children in a pro se capacity. This Order also limited the issue on appeal to the

circuit court’s denial of Saturday’s CR 60.02 motion. Saturday had included both

-6- the June 4 and July 25 orders in his Notice of Appeal, but the time to file an appeal

from either of those orders had expired.

STANDARD OF REVIEW

“The standard of review of an appeal involving a CR 60.02 motion is

whether the trial court abused its discretion.” White v. Commonwealth, 32 S.W.3d

83, 86 (Ky. App. 2000). “The test for abuse of discretion is whether the trial

judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations

omitted).

ANALYSIS

Pursuant to the prior Order of this Court on January 29, 2025, our

analysis is limited to the question of whether the circuit court abused its discretion

in failing to grant Saturday’s CR 60.02 motion and applying equitable tolling to his

CR 59.05 motion with respect to his own claims. For the reasons which follow, we

hold the circuit court did not abuse its discretion.

“On motion a court may, upon such terms as are just, relieve a party

or his legal representative from its final judgment, order, or proceeding upon the

following grounds: (a) mistake, inadvertence, surprise or excusable neglect[.]”

CR 60.02. Saturday argues “excusable neglect” as the reason he should be relieved

from the circuit court’s denial of his CR 59.05 motion.

-7- CR 59.05 states: “A motion to alter or amend a judgment, or to vacate

a judgment and enter a new one, shall be served not later than 10 days after entry

of the final judgment.” Saturday argues the circuit court should apply the doctrine

of equitable tolling and allow his CR 59.05 motion to proceed, despite being

untimely. “Equitable tolling pauses a limitations period and does not require any

wrongdoing, but rather applies when a plaintiff, despite all due diligence . . . is

unable to obtain vital information bearing on the existence of his claim.” Williams

v. Hawkins, 594 S.W.3d 189, 193 (Ky. 2020) (internal quotation marks and citation

omitted). Saturday cites several cases that lend support to his argument.

First in Nanny v. Smith, 260 S.W.3d 815 (Ky. 2008), our Supreme

Court determined that equitable tolling should apply when a personal injury

complaint was filed within the statute of limitations, but because the clerk did not

act promptly, the summons was issued outside the limitations period. The

Supreme Court held similarly in Kurtsinger v. Board of Trustees of Kentucky

Retirement Systems, 90 S.W.3d 454 (Ky. 2002), in which Appellants were

inadvertently omitted from the distribution list of an order. “The trial judge clearly

believed himself or his office staff (not Appellants) to have been culpable in the

error that prevented Appellants from learning of entry of the June 29 order, and in

our view, CR 60.02 was adopted for such circumstances.” Id. at 456.

-8- The circuit court determined that Saturday was unable to show

excusable neglect under these circumstances. The facts herein are distinguishable

from the cases cited by Saturday. While no one disputes that Saturday did not

receive his mailed copy of the order until after the ten-day deadline of CR 59.05

had passed, he did have notice of the order prior to the deadline. As pointed out by

the Appellees, nothing prevented Saturday from signing up to receive electronic

notifications of when an order was entered by the circuit clerk, even if Saturday, as

a non-attorney, could not use the electronic system to file documents.

Saturday was aware of the substance of the order, as the circuit court

outlined its rulings and reasonings from the bench at the hearing in April. He had

at least some time to prepare and file a CR 59.05 motion and thus preserve his

opportunity to seek reconsideration before filing an appeal.

But we will not limit ourselves to this observation. One could

reasonably argue that the delay between the mailing of the order and its receipt is

problematic and that one day was not enough time for the preparation of a proper

CR 59.05 motion. Even so, the CR 60.02 motion was still properly denied for the

following reasons.

As a parent, Saturday could act as “next friend” or the adult agent to

initiate a case for his children under CR 17.03(1). The law uses this next friend

process to allow a parent to stand as the party for the child in a case. This avoids

-9- the appointment of a legal guardian to handle funds received from litigation until

funds might be received. Except for settlements of a small amount, a guardian

appointment is required by law to make sure there is oversight of how a child’s

financial recovery is spent before the child reaches majority. KRS3 387.278. See

Jones by and through Jones v. Cowan, 729 S.W.2d 188 (Ky. App. 1987).

This process provides limited authority. It does not permit Saturday to

act as the attorney for the children by proceeding with the prosecution of the case

on his own. “[A] ‘next friend’ cannot provide pro se representation to the real

party in interest.” Azmat as Next Friend of Azmat v. Bauer, 588 S.W.3d 441, 452

(Ky. 2018). The real parties in interest for claims belonging to the children are the

children.

The justification for this rule is well-illustrated by this case. Saturday

made significant mistakes which we would expect a properly trained and

experienced attorney not to make. Among these are appealing an interlocutory

order and a failure to file an appeal after admittedly missing the deadline for a CR

59.05 motion.

A circuit court loses jurisdiction of a case if a CR 59.05 motion is not

filed within the allotted ten days. See, e.g., Goldsmith v. Fifth Third Bank, 297

S.W.3d 898, 904 (Ky. App. 2009). A CR 59.05 motion does not have to be

3 Kentucky Revised Statutes.

-10- perfect, but it does have to be filed within the ten days allowed. An untimely CR

59.05 motion does not toll the time within which an appeal may be filed. Marrs

Elec. Co., Inc. v. Rubloff Bashford, LLC, 190 S.W.3d 363, 367 (Ky. App. 2006).

Realizing the CR 59.05 motion was untimely would not have prevented review of

the circuit court’s decision. An appeal could have been filed. Saturday had until

July 5, 2024 (because of the July 4th holiday) to file an appeal of the circuit court’s

decision. He did not do so, instead proceeding with his untimely CR 59.05 motion.

While CR 60.02 allows a circuit court to reopen a case over which it

has lost original jurisdiction, the rule may not be used for arguments which could

have been made on appeal. See McQueen v. Commonwealth, 948 S.W.2d 415, 416

(Ky. 1997). Regardless of these procedural issues, and as we have briefly

illustrated, Saturday’s arguments, whether on a direct appeal or under CR 60.02,

do not merit relief.

We see from Saturday’s actions in this case primarily a desire to

protect the rights of his children rather than assert a claim of his own. Yet it

remains contrary to law for Saturday instead of an attorney to prosecute the case

for his children in court. Fortunately, the circuit court did not harm the children’s

rights because the dismissal was without prejudice to a proper suit being filed.

That proper suit must state actionable claims, something an attorney versed in

education law would be trained and have the experience to do.

-11- As presently alleged, the children’s claims have issues which must be

addressed if a new suit is filed. IIED can be established only if the claims for

extreme emotional distress are not recoverable as damages under another tort

theory. See Childers v. Geile, 367 S.W.3d 576, 581-82 (Ky. 2012). Problematic

also is the assertion that false imprisonment occurred because a child did not get to

skip a grade. “Our cases define an imprisonment as being any deprivation of the

liberty of one person by another or detention for however short a time without such

person’s consent and against his will, whether done by actual violence, threats or

otherwise.” Grayson Variety Store, Inc. v. Shaffer, 402 S.W.2d 424, 425 (Ky.

1966). We find no authority for the proposition that the circumstances of being

assigned to a specific grade at school is an imprisonment to satisfy the elements of

the tort of false imprisonment as contemplated by Kentucky law. Even so, the

children’s rights have been preserved if a valid claim may be asserted.

CONCLUSION

For the reasons stated, we conclude that the circuit court did not abuse

its discretion in denying Saturday’s CR 60.02 motion. We AFFIRM the Order of

the Fayette Circuit Court.

ALL CONCUR.

-12- BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

Barry A. Saturday, pro se Joshua M. Salsburey Lexington, Kentucky James T. McSweeney Lexington, Kentucky

-13-