Traps for Even the Wary: a Review of Recent Appellate Procedural Decisions

TRAPS FOR EVEN THE WARY: A REVIEW OF RECENT APPELLATE PROCEDURAL DECISIONS

Sponsor: Appellate Advocacy Section CLE Credit: 1.0 Friday, June 19, 2015 10:10 a.m. - 11:10 a.m. Thoroughbred 4 Lexington Convention Center Lexington, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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Kentucky Bar Association TABLE OF CONTENTS

The Presenters ...... i

Traps for Even the Wary: A Review of Recent Appellate Procedural Decisions ...... 1

Post-judgment Motions ...... 1

Judgment ...... 2

Notice of Appeal ...... 2

Jurisdiction, if any, Retained by Trial Court ...... 3

Cross-appeal or Cross-motion for Discretionary Review ...... 4

Prehearing Statement ...... 4

Record on Appeal/Designation of Record ...... 5

Death of a Party ...... 8

Briefs ...... 8

Unpublished Opinions ...... 9

Oral Argument ...... 9

Petition for Rehearing/Motion for Reconsideration ...... 10

THE PRESENTERS

Timothy G. Arnold Department of Public Advocacy 200 Fair Oaks Lane, Suite 500 Frankfort, Kentucky 40601 (502) 564-8006 [email protected]

TIMOTHY G. ARNOLD serves as the Director of the Post-Trial Division of the Kentucky Department of Advocacy. He began his legal career as an attorney in the Juvenile Post- Disposition Branch, eventually becoming the manager of that branch. Mr. Arnold received his B.A. from Knox College and his J.D. from the University of Kentucky College of Law. He is admitted to practice before the United States District Court for the Eastern and Western Districts of Kentucky, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court. Mr. Arnold is a member of the Appellate Advocacy Section of the Kentucky Bar Association.

Bethany A. Breetz Stites & Harbison, PLLC 400 West Market Street, Suite 1800 Louisville, Kentucky 40202 (502) 681-0634 [email protected]

BETHANY A. BREETZ is an attorney with Stites & Harbison, PLLC in Louisville where she serves as co-chair of the firm's appellate advocacy group and practices in the areas of appellate advocacy and complex commercial litigation. Ms. Breetz received her B.A., with Honors, from the University of Chicago and her J.D., cum laude, from the University of Michigan Law School. After law school, she served as law clerk to Kentucky Supreme Court Justices Charles Leibson and Nicholas King. Ms. Breetz is admitted to practice before the United States Court of Appeals for the Sixth, Seventh, Ninth, and Eleventh Circuits and the United States Supreme Court. She is a member of the Louisville and Kentucky Bar Associations. In addition, she is a member of the Kentucky Supreme Court Civil Rules Committee and serves as the chair of the Appellate Rules Subcommittee.

i Susan Stokley Clary Supreme Court of Kentucky State Capitol Building, Room 235 700 Capitol Avenue Frankfort, Kentucky 40601 (502) 564-5444 [email protected]

SUSAN STOKLEY CLARY serves as the Clerk of the Supreme Court of Kentucky. She received her B.A., magna cum laude, from the University of Kentucky and her J.D. from the University of Kentucky College of Law. In addition to her duties as Clerk of the Supreme Court, Ms. Clary also serves as general counsel and court administrator. Prior to her employment with the court, she served as legal intern for U.S. Magistrate James F. Cook. Ms. Clary is admitted to practice before the United States District Court for the Eastern District of Kentucky, United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court. She is a member of the Fayette County, State Government, and Kentucky Bar Associations. Ms. Clary is also a member of the Kentucky Crime Commission where she serves as vice-chair of the Subcommittee on Juvenile Justice, the Kentucky Public Advocacy Commission, National Conference of Appellate Court Clerks, National Association of Reporters of Judicial Decisions, National Association for Court Management, and the Henry Clay Inn of Court.

Samuel P. Givens Kentucky Court of Appeals 360 Democrat Drive Frankfort, Kentucky 40601 (502) 573-7920 [email protected]

SAMUEL P. GIVENS serves as Clerk of the Kentucky Court of Appeals, and has also served as staff attorney and Chief Deputy Clerk. Prior to joining the Court of Appeals, he had a private practice in Lexington and served as law clerk for Circuit Judge Robert Jackson of the 13th Judicial Circuit. Mr. Givens received his B.A. from Centre College and his J.D. from Salmon P. Chase College of Law.

ii Bryan D. Morrow Office of the Attorney General 1024 Capital Center Drive Frankfort, Kentucky 40601 (502) 696-5342 [email protected]

BRYAN D. MORROW serves as Assistant Attorney General and practices in the area of criminal appellate law. He received his B.A. from Morehead State University and his J.D. from the Louisiana State University Paul M. Hebert Law Center. Mr. Morrow is a member of the Kentucky Bar Association and its Appellate Advocacy Section.

iii

iv TRAPS FOR ATTORNEYS IN APPEALS Bethany Breetz

Appellate Trap Summary Case Citation or Step Authority Post-judgment Failure to file Error in amount of Ky. R. CR 59.01. Motions motion for new trial damages or excessive or or motion to alter, inadequate damages, Ky. R. CR 59.05. amend, or vacate insufficiency of evidence judgment to sustain verdict, issues relating to pre-judgment or post-judgment interest, or other issues trial court has not had opportunity to consider in light of all the evidence, must be raised in post- judgment motion to be preserved for appeal. NO additional time Post-judgment motions Ky. R. CR 59.05. for service by mail must be served within ten days of date of entry Ky. R. CR 6.05. of final judgment; NO additional three days for Commonwealth v. service by mail. Beware Steadman, 411 of deadlines running S.W.3d 717, 726-27 from date of entry v. date (Ky. 2013). of service. Untimely Post- Timely post-judgment Ky. R. CR 73.02. judgment Motion motion tolls time to file notice of appeal, but Kentucky Farm post-judgment motion Bureau v. Conley, served more than ten 2013-SC-000252-DG, days after entry of 2015 WL 1544299 judgment does NOT toll (Ky. Apr. 2, 2015). time to file notice of appeal. Cain v. Elsmere, 440 S.W.2d 259 (Ky. 1969). Skeletal CR 59.05 Remedy for insufficiently Kentucky Farm motion that fails to particular CR 59.05 Bureau v. Conley, No. "state with motion "may be loss of 2013-SC-000252-DG, particularity the that motion or 2015 WL 1544299 grounds" sanctions," but not loss (Ky. Apr. 2, 2015). supporting the of right to appeal. motion Ky. R. CR 59.05.

Ky. R. CR 7.02.

1 Appellate Trap Summary Case Citation or Step Authority

Judgment Failure to receive Options upon belatedly Ky. R. CR notice of judgment learning of judgment: 73.02(1)(d). may result in untimely notice of (1) If attorney fails to James v. James, 313 appeal and learn of the entry of a S.W.3d 17 (Ky. dismissal of judgment due to 2010). belated appeal excusable neglect, the trial court may extend Kurtsinger v. Board of the time for appeal by Trustees of Ky. ten days. Retirement Sys., 90 S.W.3d 454 (Ky. (2) If attorney fails to 2002). learn of entry of the judgment until more than ten days after its entry, the attorney may file a CR 60.02 motion to vacate the previous order. Notice of Use of "et al." or Never use "et al." or Ky. R. CR 73.03. Appeal "etc." in the party "etc." in the notice of names. appeal; such terms do Flick v. Estate of not properly name Wittich, 396 S.W.3d parties to the appeal 816 (Ky. 2013).

Indispensable Failure to specify a party Nelson County Bd. of parties on appeal whose absence prevents Educ. v. Forte, 337 the appellate court from S.W.3d 617 (Ky. granting relief among 2011). those who are parties to the appeal is a fatal jurisdictional defect that cannot be remedied by the doctrine of substantial compliance or by amendment of the notice after the time to appeal has run.

2 Appellate Trap Summary Case Citation or Step Authority

When and where to Notice of appeal filed in Ky. R. CR 73.02. file court in which the judgment or order Ky. R. CR 76.20. appealed from was entered.

(Motion for discretionary review filed in the court you are going to.)

Filing Fee Payment of the filing fee Excel Energy. Inc. v. is required to file a notice Commonwealth of appeal. If the filing fee Institutional is not tendered with a Securities. Inc., 37 timely notice of appeal S.W.3d 713 (Ky. and, due to the lack of 2001). the fee, the clerk does not file the notice of Norwest Bank appeal within the Minnesota v. Hurley, deadline, then the 103 S.W.3d 21 (Ky. appeal will be dismissed 2003). as untimely. If the filing fee is not tendered with a timely notice of appeal but the clerk files the notice of appeal anyway, the appeal will be allowed to proceed.

Jurisdiction, If Partial summary When trial court makes a Comm., Finance and Any, Retained judgment partial grant of summary Admin. Cabinet v. by Trial Court judgment final and Wingate, No. 2014- appealable under CR SC-000355-MR, 2015 54.02, the trial court WL 730052 (Ky. Feb. retains jurisdiction over 19, 2015). the claims that were not made final and appealable.

3 Appellate Trap Summary Case Citation or Step Authority

Cross-appeal When cross-appeal Cross-appeals and Dixon v. Daymar or Cross- or cross-motion for cross-motions for Colleges Group, No. motion for discretionary discretionary review are 2012-SC-000687- Discretionary review is required required where the party DG, 2015 WL Review is aggrieved by the lower 1544450 (Ky. Apr. 2, court. If an issue 2015). supporting the prevailing party was raised but, for Fischer v. Fischer, whatever reason, not 348 S.W.3d 582 (Ky. decided below, the 2011). prevailing party is not required to file a cross- appeal or cross-motion regarding that issue. If the lower court addressed an issue and held against the prevailing party on that issue, if the prevailing party below was not aggrieved in any way then a cross-appeal or cross-motion is not necessary when, given the resolution of the case by the lower court, the appellee "had little reason for further appeal."

In its responsive brief, the prevailing party/appellee must raise any other grounds argued to the lower court but not addressed in the judgment upon which the party wishes to rely. Prehearing Listing issues in Court of Appeals may Ky. R. CR 76.03(8). Statement prehearing not reverse on any statement. issues not raised in the Wright v. House of prehearing statement Imports, 381 S.W.3d except under a palpable 209 (Ky. 2012). error review.

4 Appellate Trap Summary Case Citation or Step Authority

Record on Designation of "All The Court of Appeals Seale v. Riley, 602 Appeal/Desig- the Record" or and the Supreme Court S.W.2d 441 (Ky. App. nation of "Entire Record" is have held that using the 1980). Record not acceptable. catch phrase that the "entire" record is Oldfield v. Oldfield, designated on appeal is 663 S.W.2d 211 (Ky. neither useful nor 1984). effective. Written record CR 75.01(1) was Ky. R. CR 75.01(1). (excluding changed in 1981 to depositions) require appellant to Ky. R. CR 75.07. designate un-transcribed portions of Ky. R. CR 98(3)(a). stenographically or electronically recorded proceedings as should be included in the record on appeal and to list depositions that were filed but not read into evidence. It says nothing about designating anything in the clerk's pleadings file. Under CR 75.07(1) and CR 98(3)(a), the trial court clerk "shall prepare and certify the entire original record on file," meaning that the entire written record is automatically included in the record on appeal. A party should, however, still double check the certification and index of the record to make sure that they are accurate and nothing is missing.

Depositions Designate depositions to Ky. R. CR 75.01. be excluded. Richman v. First Sec. Nat'l Bank & Trust Co., 652 S.W.2d 671 (Ky. App. 1983).

5 Appellate Trap Summary Case Citation or Step Authority

Electronic Record CR 98(2)(a) provides that Smith v. Smith, 450 of Trial and "one of the two video S.W.3d 729 (Ky. Hearings recordings, or a court- App. 2014). certified copy of that portion thereof recording Mifflin v. Mifflin, 170 the court proceeding S.W.3d 387 (Ky. being appealed shall be 2005). filed with the clerk and certified by the clerk as CR 75.01(1). part of the appeal." This means that the video of CR 98(2)(a), (3). any trial is usually automatically included in Pettingill v. Pettingill, the record on appeal. No. 2014-SC-000456, 2014 WL 2159389 When, however, a (orally argued May 6, hearing other than a 2015, opinion not yet typical trial is at issue on rendered) concerns appeal, it may not be the omission from the automatically included in appellate record of a the appellate record. To video of a hearing be safe (see Mifflin v. resulting in a Mifflin and Smith v. domestic violence Smith), a record order. designation should also state that the recordings of the trial/dispositive hearings be included in the record on appeal and should give the clerk the trial dates to make sure all the trial recordings are included.

Submission by court clerk of video recordings of hearings other than a trial is not automatic. Appellant "shall provide the clerk with a list setting out the dates on which video recordings were made for all pre- trial and post-trial proceedings necessary for inclusion in the record on appeal. Designation of the video recordings

6 shall be filed" as described in Rule 75.01(1). CR 98(3). In other words, appellant's record designation must provide the court clerk with a list of the dates of any hearings for which the appellant wants the electronic recording to be included in the record on appeal.

Failure to designate When the complete Smith v. Smith, 450 necessary hearings record is not before the S.W.3d 729 (Ky. App. appellate court (appellant 2014). failed to designate any hearings for inclusion in the appellate record), that court assumes that the omitted record supports the decision of the trial court.

Designation of only When an appellant has Mifflin v. Mifflin, 170 portions of designated a portion of S.W.3d 387 (Ky. electronically the record for appeal that 2005). recorded trial is sufficient to support a record/failure to conclusion of error by the counter-designate trial court (only twenty- eight seconds of the video record in Mifflin), the appellee must counter-designate portions of the record in support of her position. Appellate courts do not assume that undesignated parts of the record support the findings of the lower court in light of evidence presented by an appellant that is adequate to support a conclusion to the contrary.

7 Appellate Trap Summary Case Citation or Step Authority

Lost written or Missing documents from KL & JL Investments, video record record may be remedied Inc. v. Lynch, No. by stipulation of parties 2012-CA-001652, or by trial or appellate 2015 WL 1451025 court; missing video (Ky. App. Apr. 17, record may be remedied 2015). by narrative statement. If recording of trial is lost, Ky. R. CR 75.08. and appellant doesn't provide narrative Ky. R. CR 75.13. statement, then appellate court presumes portions of record not produced would support the court's decision.

Death of a Need to revive When a party to pending Koenig v. Public Party action litigation (including Protection Cabinet, appeal) dies, action is No. 2013-CA-001404, abated unless and until 2015 WL 1746241 action is revived by (Ky. App. Apr. 17, substituting decedent's 2015). representative within one year. Notice of KRS 395.278. substitution filed in appellate court is Ky. R. CR 25.01. insufficient.

Briefs Formatting (1.5 Standardization of Ky. R. CR 76.12. inch left margin, number of pages, size of etc.) paper, margins, font and Hallis v. Hallis, 328 space between lines S.W.3d 694, 696 n.4 assures that no party (Ky. App. 2010). obtains an advantage over the other in terms of Craig v. Kulka, 380 the length of the S.W.3d 546 (Ky. App. argument. 2012).

8 Appellate Trap Summary Case Citation or Step Authority Preservation & CR 76.12 mandates that Ky. R. CR 76.12. Citations to the a party indicate how and Record where in the record an Hallis v. Hallis, 328 issue is properly S.W.3d 694 (Ky. App. preserved for review by 2010). an appellate court, and requires that the Craig v. Kulka, 380 statement of the case S.W.3d 546 (Ky. App. cite to specific pages of 2012).

the record. Failure to Krugman v. CMI, 437 comply may result in the S.W.3d 167 (Ky. App. brief being stricken, 2014). dismissal of the appeal,

imposition of fines, or Oster v. Oster, 444 review of the record for S.W.3d 460 (Ky. App. manifest injustice. 2014).

Buridi v. Leasing Group Pool II, 447 S.W.3d 157 (Ky. App. 2014). Unpublished Kentucky courts are not Ky. R. CR Opinions bound by Kentucky 76.28(4)(c). unpublished opinions, which may have some Beaumont v. Zeru, persuasive value but no No. 2013-SC- precedential value. 000489-DG, 2015 WL 1544241, at *4 (Ky. Apr. 2, 2015). Oral Notice of issues to Notice of issues to be Ky. R. CR Argument be orally argued orally argued must be 76.16(5)(b). filed no later than ten days before an oral argument in the Supreme Court of Kentucky. Citation to Under the current Court 19 Ky. Prac., additional authority of Appeals orders setting Appellate Prac. oral argument, an §15:6. attorney is only allowed to give notice of addi- Court of Appeals tional citation for cases orders setting oral that became final after argument the party's brief was filed (with proof of service to opposing counsel at least seven days before oral argument).

9 Appellate Trap Summary Case Citation or Step Authority

Petition for Petition for Twenty days for Petition Ky. R. CR 76.32. Rehearing/ Rehearing v. for Rehearing of an Motion for Motion to Opinion; Ky. R. CR 76.38. Reconsidera- Reconsider. tion Ten days for Motion for Reconsideration of an Order;

An Opinion and Order is considered an Order

10 NOTES