REDRAFTING KENTUCKY'S APPELLATE RULES: A ROUNDTABLE DISCUSSION
CLE Credit: 1.5 Friday, June 21, 2013 10:10 a.m. - 11:25 p.m. Combs-Chandler Room Galt House Hotel Louisville, 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
Draft Kentucky Appellate Rules of Procedure (KAP) ...... 1
Proposed Structure of Appellate Rules ...... 5
Kentucky Appellate Rules of Procedure ...... 7
THE PRESENTERS
Justice Lisabeth Hughes Abramson Supreme Court of Kentucky Jefferson County Judicial Center 800 West Jefferson Street, Suite 1000 Louisville, Kentucky 40202-4737 [email protected]
JUSTICE LISABETH HUGHES ABRAMSON was sworn in as a Justice for the Supreme Court of Kentucky on Sept. 10, 2007, after being appointed to fill the vacancy created by the retirement of the late Justice William E. McAnulty, Jr. She was subsequently elected to the office in November 2008. She has served on the Kentucky Court of Appeals twice in her career – she was appointed on June 30, 2006, to fill a vacancy in Division 2 of the 4th Appellate District and was subsequently elected to that position in November 2006. She first served as a Court of Appeals judge from 1997 to 1998. From January 1999 until her 2006 appointment to the Court of Appeals, Justice Abramson served as a circuit judge in Jefferson County. She earned a bachelor’s degree, with highest honors, from the University of Louisville and graduated magna cum laude from the Brandeis School of Law at the University of Louisville and was named the Outstanding Graduate of her law school class. Before serving as a judge, she practiced law for fifteen years, concentrating on business and commercial litigation. In addition, she is a past president of the University of Louisville School of Law Alumni Council and is a Master and incoming President of the Louis D. Brandeis Inn of Court. Justice Abramson also served as a trustee for the Kentucky Judicial Form Retirement System Board, is the Supreme Court representative on the Kentucky IOLTA Board, Chairs the Civil Rules Committee, is a frequent lecturer for the Kentucky Circuit Judges Judicial College, and a 2007 graduate of Leadership Louisville.
Jeanne D. Anderson 1613 Gardiner Lane Louisville, Kentucky 40205 (502) 696-5342 [email protected]
JEANNE D. ANDERSON is the Executive Director of the Office of Criminal Appeals for the Office of the Attorney General in Frankfort. She received her B.A. from the University of Minnesota and J.D. from Louis D. Brandeis School of Law at the University of Louisville. Ms. Anderson is the 2012-2013 Chair of the Kentucky Bar Association Appellate Advocacy Section.
i Bethany A. Breetz Stites & Harbison, PLLC 400 West Market Street, Suite 1800 Louisville, Kentucky 40202-3352 (502) 587-3400 [email protected]
BETHANY A. BREETZ is an attorney with the Louisville office of Stites & Harbison, PLLC, where she focuses her practice on both federal and state appellate advocacy, complex commercial litigation, including financial institutions, real estate, and trust and estate litigation. She received her B.A. from the University of Chicago and J.D., cum laude, from the University of Michigan Law School. Ms. Breetz was the first Chair of the Kentucky Bar Association’s Appellate Advocacy Section when it was established by the Kentucky Supreme Court in 2007. She is the past Chair of the Louisville Bar Association’s Appellate Section. Ms. Breetz was recently appointed to the Kentucky Supreme Court Civil Rules Committee and was named Chair of the Appellate Rules Subcommittee. She is listed in The Best Lawyers in America® (2009-2013) in the category of Appellate Practice and in Louisville Magazine’s Top Lawyers for 2013 in the categories of Appellate Law and Media Law.
Kenneth L. Sales Bubalo Goode Sales & Bliss, PLC 9300 Shelbyville Road, Suite 215 Louisville, Kentucky 40222 (502) 753-1560 [email protected]
KENNETH L. SALES is Of Counsel with the firm Bubalo Goode Sales & Bliss, PLC, where he is widely recognized as one of the nation’s premier mesothelioma and products liability lawyers. He received his undergraduate degree from the University of Kentucky and J.D. from the University of Louisville Louis D. Brandeis School of Law. Mr. Sales is a member of the American Association for Justice and serves on the Board of Governors for the Kentucky Justice Association. He received the Peter Perlman Outstanding Trial Lawyer Award in 2006 from the Kentucky Academy of Trial Attorneys (now known as Kentucky Justice Association) and is rated as one of the Top 100 Trial Lawyers in the nation by the American Trial Lawyers Association.
ii Kathleen K. Schmidt Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601 (502) 564-8006 [email protected]
KATHLEEN K. SCHMIDT is the Appellate Branch Manager for the Department of Public Advocacy’s Post Trial Division. She received her B.S. from Vanderbilt University and her J.D. from the University of Kentucky College of Law. Ms. Schmidt is admitted to practice before the United States Court of Appeals for the Sixth Circuit and the United States District Court for the Western District of Kentucky. She is a member of the Bullitt County and Kentucky Bar Associations.
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iv DRAFT KENTUCKY APPELLATE RULES OF PROCEDURE (KAP)
Attached is a working draft of the Kentucky Appellate Rules of Procedure (also known as KAP). The Appellate Rules Subcommittee of the Kentucky Supreme Court’s Civil Rules Committee has been working on these rules for a year and a half. They are not yet completed. For example, a number of rules relating to the record on appeal are omitted as "Under Construction." The Subcommittee is attempting to reach consensus on revisions to those rules before submitting them for more extensive review by the bench and bar. Other rules, while ready for review by persons outside the Subcommittee, may still be subject to further revision.
After the Subcommittee has completed the draft rules, they will go to the Civil Rules Committee for that committee’s review and recommendation to the Supreme Court. The rules will then, likely, be discussed at the rules hearing at the 2014 KBA Convention before the Supreme Court votes on adopting revised appellate rules.
The Subcommittee would like general feedback on the structure and content of the rules, including potential unintended consequences of any changes or recommendations for further revisions. While comments regarding the exact phrasing or punctuation of the rules would be appreciated as well, keep in mind that these rules are not yet in final form for recommendation to the Civil Rules Committee, let alone recommendation to the Supreme Court.
History
In 2007, the Appellate Advocacy Section began as a new section of the Kentucky Bar Association. Among the purposes of the section were to assist in improving the level of practice by attorneys who do not regularly practice in the appellate area. To that end, the first order of the section was to create and present at District Bar meetings throughout the state on the nuts and bolts of appeals, providing both verbal and written guidelines for non-appellate practitioners to handle the occasional appeal.
Among other purposes of the Appellate Advocacy Section were to "promote discussion within the KBA of concerns of lawyers engaged in appellate advocacy" and to "research and recommend new procedures" that will improve the practice of appellate advocacy in Kentucky. Those discussions quickly led to the realization that Kentucky’s appellate rules of practice needed to be revised, preferably as stand-alone rules of appellate practice.
The then-chair of the Appellate Advocacy Section discussed the rules issue with Justices Noble and Abramson (the former and current chairs of the Kentucky Supreme Court’s Civil Rules Committee). It was suggested that the Appellate Advocacy Section begin the process of drafting stand-alone appellate rules that could be used as a starting point for any subsequent official committee action on revising the appellate rules.
Accordingly, from 2008 through 2010 all the then current and former officers of the Appellate Advocacy Section, along with the Clerk and the Chief Staff Attorney of the Kentucky Court of Appeals, worked on creating a working draft of stand-alone appellate rules.
1 While the original plan had been to pattern the appellate rules on the Federal Rules of Appellate Procedure, it quickly became apparent that, due to the differences in the federal and state court systems, closely following the Federal Rules of Appellate Procedure would not work. At the same time, the goal was, like FRAP, to put the appellate rules in the basic order in which they are used in the appellate process. Also, because the committee was not an official Supreme Court committee, its goal was to make the appellate rules clearer, without changing their substance.
Appellate Rules Subcommittee of the Civil Rules Committee
After the working draft of the stand-alone rules was completed, in 2011 Justice Abramson, the chair of the Kentucky Supreme Court’s Civil Rules Committee, created an Appellate Rules Subcommittee. The Subcommittee includes lawyers who routinely handle appeals in both civil and criminal cases and who are from both the private sector (small and large firms) and public sector (the Clerk of the Supreme Court, Chief Staff Attorney for the Court of Appeals, Attorney General’s Office and Department of Public Advocacy). In addition, two Circuit Court Clerks are members of the Subcommittee.
Given the length of time since any major overhaul of Kentucky’s appellate rules, the Subcommittee’s marching orders were to take a careful look at all the appellate rules. While we were not to change any rules simply for the sake of change, if rules were no longer used or were no longer sufficiently clear, or if appellate practice has changed or should change in some way, then the Subcommittee was directed to suggest changes to the appellate rules.
The Appellate Rules Subcommittee has been working on proposed revisions to the appellate rules since September 2011. While the work of the Subcommittee is not yet complete, and the rules are still a working draft, the work has progressed to the point where the revised, stand-alone Kentucky Appellate Rules of Procedure are ready to reviewed and discussed.
Need for Stand-Alone Appellate Rules
Practice and procedure in the appellate courts and the trial courts are not the same. Appeals require a different skill set than do trials (and vice versa). These are among the reasons that the Appellate Advocacy Section of the KBA was created. Having separate rules for trial court and appellate practice acknowledges these differences.
Appellate practitioners need a single source for appellate rules. Currently rules applicable to appeals are scattered throughout the Kentucky Rules of Civil Procedure. Having stand-alone rules will make finding the appropriate appellate rules easier for regular appellate practitioners as well as for attorneys who rarely handle appeals. KAP will be the property of the Kentucky Supreme Court and a searchable version of the rules will be available on the websites for both the Supreme Court and Court of Appeals.
Although the Kentucky Rules of Civil Procedure were originally created and ordered in a way that was generally understandable and tended to follow the steps of a case as it went through the trial and appellate courts, over time the rules have become less well- organized and orderly. For example, the rules regarding the video record need to be integrated into the other rules regarding the record. Also, over time, some rules have grown obsolete or the method of practice has changed. Accordingly, the rules will need
2 to be changed and reorganized, regardless of whether stand-alone appellate rules are created. Starting over with a new numbering system (and with charts cross-referencing the new and old rules), will be cleaner than reworking the numbering system of the current rules.
Changes to the Appellate Rules
The Subcommittee has various goals in revising the appellate rules. One of those goals is to eliminate traps for the unwary. One such trap is the difference in time (twenty days v. ten days) to file a petition for rehearing of an opinion or to file a motion for reconsideration of an order or "Opinion and Order." To reduce the likelihood that such a trap will ensnare an unwitting practitioner, the Subcommittee has combined the rules regarding petitions for rehearing and motions for reconsideration into one rule and the difference between opinions and orders or "Opinions and Orders" has been made clearer.
The Subcommittee is also considering adding rules to clarify the procedure in certain situations. For example, the Subcommittee has drafted a rule for election appeals and is working on rules for habeas and in forma pauperis appeals to refer practitioners to the appropriate statutes and clarify the procedures in such matter.
Another goal is to make clearer how some things are handled in the appellate courts. For example, seeking interlocutory or intermediate relief in the Court of Appeals and Supreme Court can be confusing for the practitioner who does not routinely handle such matters (and even for those who do). The Subcommittee is working on clarifying the rules regarding interlocutory and intermediate relief. Thus, the current draft combines Civil Rules 65.07, 65.08, and 65.09 into one rule to assist practitioners in understanding the similarities and differences in seeking relief from orders granting or denying temporary or permanent injunctions. The Subcommittee has also tried to add more headings and subheadings to KAP to make it easier for practitioners to find specific portions of the rules.
The Subcommittee is also considering suggesting changes to the rules. The most notable possible change is suggesting that the notice of appeal no longer be required to name the parties against whom the appeal is taken. This rule change would eliminate a trap for the unwary (mirroring the federal rules and the rules of most other states). It would also eliminate motion practice regarding indispensable parties and dismissal of appeals for failure to name a party the appellate courts consider indispensable.
If you have any questions or comments, please let the members of the Appellate Rules Subcommittee know.
Beth Breetz, Chair, [email protected] Jeanne Anderson, [email protected] Susan Clary George Fowler David Niehaus Ken Sales, [email protected] Kathleen Schmidt, [email protected] Kevin Smalley Ann Swain Kirk Tolle
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4 PROPOSED STRUCTURE OF APPELLATE RULES
Article Subject Sections Current Civil Rules
1 – Scope & Title 1, 87
1 Commencement 2 – How Taken 73.01, 73.02(1)(b) and (c), 73.02(2), (3), and (4), 73.03
3 – When Taken 73.02(1)(a), (d), and (e) 4 – Cross-Appeals 74.01 2 General 5 – Filing & Service 5.01, 5.02, 5.03, 5.05, 76.40(2) 6 – Time 6.01, 6.02, 6.05,
76.40(1) 7 – Motions 7.02, 76.34
8 – Substitution 76.24
10 – Failure to Comply 73.02(2)
11 – Frivolous Appeal/ 11, 73.02(4)
Obligation of Counsel
3 Preliminary 15 – Transfer 74.02 16 – Certification 76.37 18 – Relief from Order re 65.07, 65.08, 65.09, Injunction
19– Intermediate Relief 76.33, 76.44 21 – Prehearing Procedure 76.03
4 Record on 25 – Record on Appeal 75.01, 75.06, 75.07, Appeal 75.08, 75.10, 75.11,
75.13, 75.14, 75.15, 98(2), (3), and (5) 27 – Forwarding Record 73.08, 75.01, 75.02, 75.07, 98(3)
29 – Clerk’s Duties 79.06, 76.46 30 – Access to Record
5 5 Briefs 33 - Briefs 76.12, 98(4)
6 Disposition 35 - Submission 76.26 36 – Oral Argument 76.16 37 – Opinions 76.28, 76.30
38 – Stay Pending U.S. S.Ct. 76.44 Review 7 Reconsideration 40 – Rehearing/ 76.32, 76.38 Reconsideration 41 – Discretionary Review 76.20, 76.21
8 District Court 42 – Appeals from District 72.02, 72.04, 72.06, Court 72.08, 72.10, 72.12, 72.13, 73.02(1)(c)
9 Special Appeals 44 – Family Court Reserved 46 – Workers Comp 76.25 48 - Elections Statutes re elections 50 – Bail Appeal RCr 4.43, 12.78, 12.82 52 – Habeas Appeal Practice and KRS 419.130 54 – Proceeding In Forma Based on statutes Pauperis 55 – Appeal of Denial of In 73.02(1) and Forma Pauperis statutes 10 Original Actions 60 – Original Proceedings 76.36, 81
11 Costs and Fees 65 – Costs and Fees 76.42
66 - Bonds 62.03, 73.04, 73.06, 73.07, 81A 12 Copies 68 – Number of Documents 76.43
6 KENTUCKY APPELLATE RULES OF PROCEDURE
KAP 1 Scope of Rules; Title {CR 1, 87}
Scope of Rules.
These rules govern appellate procedure in all Kentucky courts.
Title.
These rules are to be known as the Kentucky Appellate Rules of Procedure. These rules may be cited as such or by the abbreviation "KAP."
Amendment.
Suggestions for amendment of these rules may be submitted directly to the Supreme Court of Kentucky for its consideration by letter to the Clerk of the Supreme Court of Kentucky.
ARTICLE 1. COMMENCEMENT
KAP 2 Appeal as of Right – How Taken {CR 73.01, 73.02(1)(b) and (c), 73.02(2), (3), and (4), 73.03}
1. Filing the Notice of Appeal.
All appeals shall be taken to the next highest court by filing a notice of appeal in the court from which the appeal is taken no later than 30 days from the date of notation of service of the judgment or order under KAP 3(2) [or CR 77.04(2)]. Appeals from family courts that are established pursuant to Ky. Const. §110(5)(b) or Ky. Const. §112(6) shall be taken to the Court of Appeals. After the filing of the notice of appeal, if the appeal is from a circuit court, any party may file a motion for transfer of the case to the Supreme Court as provided in KAP 15. A motion for discretionary review by the Supreme Court of a decision of the Court of Appeals, or by the Court of Appeals of an appellate decision of the circuit court, shall be made as provided in KAP 41.
The failure of a party to file timely a notice of appeal, cross-appeal, or motion for discretionary review shall result in a dismissal or denial.
Where a statute or another court rule grants a right of appeal to the Court of Appeals, the Kentucky Appellate Rules of Procedure shall govern the taking of the appeal, unless in conflict with the statute or other court rule. In all cases in which a statute or another court rule limits the taking of the appeal to a specific time, the appeal shall be taken within the time provided in the statute or rule.
Contents of the Notice of Appeal. The notice of appeal shall specify by name all appellants and appellees OR the party or parties taking the appeal ("et. al" and "etc." are not proper party designations) and shall identify and specify the date of notice of entry of the judgment, order, or part thereof appealed from. It shall contain a certificate that a
7 copy of the notice has been served upon each party other than the appellant, or, if unrepresented, upon the party at the party's last known address. It is recommended that the party appealing attach a copy of the judgment or order appealed from to the notice of appeal.
Clerk's Service of the Notice of Appeal.
When the notice of appeal is filed, the clerk shall serve notice of its filing by mailing a copy showing the date filed, a copy of the official docket sheet, and a copy of the check receipt for the filing fee, or order granting in forma pauperis status to the clerk of the appellate court and to the attorney of record of each party or to the party, if unrepresented. The clerk shall also mail a copy of the judgment(s) or order(s) named in the notice of appeal to the clerk of the appellate court.
The clerk shall note in the docket the names of the parties served, the date of service, and the means of service. The clerk's failure to serve notice does not affect the validity of the appeal.
Certain Appeals Shall Not Constitute an Entry of Appearance. The taking of an appeal from a final order or judgment in any action in which the trial court has denied a defense asserted under Civil Rule 12.02 based upon (a) lack of jurisdiction over the person, (b) improper venue, (c) insufficiency of process, or (d) insufficiency of service of process, shall not constitute an entry of appearance by the appellant in any court.
Joint or Consolidated Appeals.
Joinder. Two or more persons entitled to appeal may file a joint notice of appeal and they shall thereafter proceed on appeal as a single appellant. Upon motion of parties that have filed separate timely notices of appeal, the appellate court may join the appeals, and the joined parties shall thereafter proceed on appeal as a single appellant.
Consolidation. Upon motion of a party or upon the court's own motion, separate appeals may be consolidated by the appellate court for purposes of briefing, oral argument, and rendering an opinion. Consolidation is within the discretion of the appellate court and will generally be granted only if the separate appeals are taken from the same circuit court action or if the appeals involve substantially identical issues. The appellate clerk shall relate the consolidated appeals and all documents filed in the appellate court shall be noted on the docket as if filed in each of the consolidated appeals. Parties to consolidated appeals shall be treated as separate parties but may, upon motion, be permitted to file a consolidated brief or to adopt a brief filed by another party.
Appeals to Be Heard Together. Two or more appeals involving the same parties or similar issues may, upon notice, be designated to be heard together by the appellate court. If the appellate court designates the appeals to be heard together, the appellate clerk shall relate the appeals on the docket. The appellate court may in its discretion issue a single opinion or multiple opinions in appeals designated to be heard together.
Payment of Fees. At the time the notice of appeal is tendered, the appellant shall pay all required fees to the clerk of the court from which appeal is taken, and the notice shall not be docketed or noted as filed until such payment is made. If the appellant is a
8 pauper and unable to pay the filing fee, a motion to proceed in forma pauperis supported by affidavit shall be tendered with the notice of appeal as provided in KAP 54, which governs proceedings to proceed in forma pauperis. In criminal cases, no filing fee is required from the Commonwealth.
Entry of Appearance. Within 10 days of the date of filing the prehearing statement for the appellant, each party who is not an appellant shall file, with service on all other parties, an entry of appearance in the appeal or a statement that the party does not intend to participate in the appeal. In criminal appeals, the entry of appearance shall be filed with the clerk of the appropriate appellate court within 10 days of service of the notice of appeal. {Something like this section, plus more, to be added if the appellees do not have to be named in the notice of appeal.}
KAP 3 Appeal as of Right – When Taken {CR 73.02(1)(a), (d), and (e), 77.04(2)}
1. Time for Filing Notice of Appeal. The notice of appeal required by KAP 2 shall be filed with the clerk of the court from which the appeal is taken no later than 30 days from the date of notation of service of the judgment or order. If the notice of appeal is timely tendered and accompanied by a motion to proceed in forma pauperis as provided in KAP 54, the notice of appeal or cross-appeal shall be considered timely, but shall not be filed until the motion is granted or, if denied, the filing fee is paid.
2. Clerk's Duties Regarding Entry of Judgment
Immediately upon entry of a judgment, a final order, an order which affects the running of time for taking an appeal, or an order which by its terms is required to be served, the clerk shall serve a notice of the entry in the manner provided in CR 5 upon every party who is not in default for failure to appear.
The clerk shall make a note in the case docket of the service required in paragraph (b)(1) of this rule and the notation shall show the date of service. The date of this notation on the docket shall be the date of entry for the purpose of fixing the running of the time for appeal under this rule.
Failure of the trial court to require service of notice of entry of any judgment or order under this rule or the failure of the clerk to serve such notice, or the failure of a party to receive notice, shall not affect the validity of the judgment or order.
3. Pro se Inmate Appeals. If a pro se inmate files a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is officially marked as having been deposited in the institution's internal mail system on or before the last day for filing with sufficient First Class postage prepaid.
4. Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order, but before the entry of the judgment or order, is treated as filed on the date of entry.
5. Extension of Time for Appeal. Upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment or an order which affects the running of the time for taking an appeal, the trial court may extend the time for appeal, not exceeding 10 days from the expiration of the original time.
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6. Failure to Receive Notice of Judgment. In the event a party fails to receive a final and appealable judgment or order, the party may file a timely motion pursuant to CR 60.02 seeking to set aside such judgment or order.
7. Effect of a Motion on a Notice of Appeal.
(a) If a party timely files in the trial court any of the following motions under the Kentucky Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: CR 50.02; CR 52.02; or CR 59, except when a new trial is granted under CR 59. Any additional motions, including motions to reconsider, shall not toll the running of time to file a notice of appeal.
(b) If a party files a notice of appeal after the date of the docket notation of service of judgment required by KAP 3(2), but before disposition of any of the motions listed in this rule, the notice of appeal becomes effective when the order disposing of the last such remaining motion is entered.
(c) A party intending to challenge an order disposing of any motion listed in this rule, or a judgment altered or amended upon such a motion, shall file a notice of appeal, or an amended notice of appeal – in compliance with KAP 2 – within the time prescribed by this rule measured from the date of the KAP 3(2) docket notation regarding service of the order disposing of the last such remaining motion.
(d) No additional fee is required to file an amended notice of appeal.
KAP 4 Cross-Appeals {CR 74.01}
1. Who may take. Any party properly named as an appellee or cross-appellee may take a cross-appeal from a judgment of the trial court. A cross-appeal shall be denominated as such and shall be prosecuted like a regular appeal. The failure of a party taking an appeal to prosecute the appeal, or that party's dismissal of it shall not prevent any party taking a cross-appeal from prosecuting the cross-appeal.
2. Timing. The notice of cross-appeal shall be filed no later than 10 days from the last day allowed for the filing of a notice of appeal.
3. Parties. A cross-appellant may name as cross-appellee any party to the circuit court action against whom relief is sought on the cross-appeal.
4. Contents of the Notice of Cross-Appeal. The notice of cross-appeal shall specify by name all cross-appellants and cross-appellees ("et. Al" and "etc." are not proper designation of parties) and shall identify and specify the date of notice of entry of the judgment, order, or part thereof appealed from. It shall contain a certificate that a copy of the notice has been served upon all opposing counsel, or parties, if unrepresented, at their last known address. It is recommended that the party appealing attach a copy of the judgment or order appealed from to the notice of appeal.
10 5. Additional Cross-Appeal. Any cross-appellee, who has not previously filed a notice of appeal or cross-appeal from the judgment to be reviewed, may file an additional cross-appeal no later than 10 days from the filing of the notice of cross-appeal which first names that cross-appellee as a party to the appellate action seeking review of this particular judgment.
6. Payment of Fees. At the time a cross-appeal is tendered, the appellant shall pay all required fees to the clerk of the court from which the cross-appeal is taken, and the cross-appeal shall not be docketed or noted as filed until such payment is made. If the party cross appealing is a pauper and unable to pay the filing fee, a motion to proceed in forma pauperis shall be tendered with the notice of cross-appeal as provided in KAP 54.
7. Clerk's duty. When the notice of cross appeal is filed, the clerk shall serve notice of its filing in accordance with KAP 2(3).
ARTICLE 2. GENERAL
KAP 5 Filing and Service {CR 5.01, 5.02, 5.03, 5.05, 76.40(2)}
1. Filing with the Clerk. All notices of appeal or cross-appeal, designations of the record, in forma pauperis motions, motions for supersedeas bonds, and motions for bond on appeal in criminal proceedings shall be filed in the court from which the appeal is taken. All other pleadings and other papers required or permitted by these rules shall be timely filed with the clerk of the court in which the appeal is pending.
2. Clerk's Duties Regarding Filing and Service. The clerk shall endorse upon every pleading and other paper filed in an action the date of its filing. Such endorsement shall constitute the filing of the pleading or other paper and no order of court shall be required.
3. Filing.
(a) Method and Timeliness. To be timely filed, a document shall be received by the clerk of the court in which the appeal is pending within the time specified for filing. Any document filed with the Clerk of the Supreme Court of Kentucky or Kentucky Court of Appeals shall be deemed timely filed if it has been transmitted by United States registered (not certified) or express mail, or by other recognized mail carriers, with the date the transmitting agency received said document from the sender noted by the transmitting agency on the outside of the container used for transmitting, within the time allowed for filing.
(b) Drop Box. To ensure that the Supreme Court of Kentucky and Kentucky Court of Appeals remain open and accessible, upon opening for business, documents collected by the clerks of those courts from their designated after hours drop box shall be considered received the prior day.
11 4. Deficiency. If the Supreme Court of Kentucky or the Kentucky Court of Appeals issues a deficiency notice regarding any document filed in that court, a party receiving such a notice shall file a corrected document within ten days of the date of the notice.
5. Service. Civil Rules 5.01, 5.02, 5.03, and 6.05 apply to all papers filed under these Kentucky Appellate Rules of Procedure.
KAP 6 Computing and Extending Time {CR 6.01, 6.02, 6.05, 76.40(1)}
1. Computing Time. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.
2. Extensions Before a Specified Time Expires. The court for cause shown may, at any time in its discretion, with or without motion or notice, extend the time for an act that is required or allowed to be done within a specified time if the request is made before the expiration of the period originally prescribed or as extended by a previous order, but it may not extend the time for taking any action under KAP 3, 4, 15, or 41.
3. Enlargement After a Specified Time Expires. A motion for enlargement of time for an act that is required or allowed to be done within a specified time can be made after that time has expired if the party requesting the enlargement failed to act because of excusable neglect. The court may, in its discretion, enlarge the time for such an act, but it may not enlarge the time for taking any action under KAP 3, 4, 15, or 41.
4. Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a motion or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.
KAP 7 Motions {CR 7.02, 76.34}
1. In General. An application to the court for an order or other relief shall be by motion which shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.
2. Form. Except for exhibits, or as otherwise provided in these Rules, all motions filed in the appellate courts shall be clearly readable, in black type no smaller than 12 point, single sided, and on unglazed white paper 8 ½ by 11 inches in dimension with at least a double space between lines and 1-inch margins.
3. Response. The opposing party may file a response, accompanied by a certificate of service, no later than 10 days from the date the motion was served or within the time otherwise designated by the court.
4. Number of Copies. Five copies (1 unbound original and 4 bound copies) of motions and responses shall be filed in the Court of Appeals. Except as otherwise
12 directed by KAP 40 or 41, 5 copies (1 unbound original and 4 bound copies) of motions and responses shall be filed in the Supreme Court, unless the Court directs otherwise.
5. Hearing and Disposition. Except for motions that call for final disposition of an appeal or original action in the appellate court, any member of the court designated by the Chief Justice or Chief Judge may hear and dispose of any motion.
6. Oral Arguments. No motion will be heard on oral argument except by order of the court.
7. Motion to Dismiss Appeal or Cross-Appeal.
(a) In addition to any other relief provided by these rules, an adversary party may move to dismiss an appeal or cross-appeal because it is not within the jurisdiction of the appellate court or because it has not been prosecuted in conformity with KAP; and
(b) The filing of a motion to dismiss shall suspend the running of time for procedural steps otherwise required with regard to the appeal and any cross-appeal in the same proceeding. The time will continue to run as otherwise provided by these rules after the date an order is entered denying the motion or passing it to the merits.
KAP 8 Substitution of Parties {CR 76.24}
1. Death of a Party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the appellate court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the appellate court. The motion of a party shall be served upon the representative in accordance with the provisions of CR 25. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate court may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the trial court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed, substitution shall be effected in the appellate court in accordance with this subdivision. If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by his personal representative, or, if he has no personal representative, by his attorney of record within the time prescribed by these rules. After the notice of appeal is filed substitution shall be effected in the appellate court in accordance with this substitution. Any statutorily required application to revive an action shall be filed in the trial court.
2. Death of Defendant in a Criminal Appeal. No notice of appeal may be filed if the defendant in a criminal case has died. Upon notice of the defendant's death, the appeal shall be dismissed.
3. Public Officer's Death or Separation from Office. When a public officer is a party in the officer's official capacity to an appeal or other proceeding in the appellate court and dies during its pendency, resigns, or otherwise ceases to hold office, the action does not abate, and the successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An
13 order of substitution may be entered at any time, but the failure to enter such an order shall not affect the substitution.
4. Substitution for Other Causes. If substitution of a party in the appellate court is necessary for any reason other than as set forth above, substitution shall be effected by motion filed in the appellate court in which the matter is then pending.
KAP 10 Failure to Timely Appeal or Comply With Other Rules {CR 73.02(2)}
The failure of a party to timely file a notice of appeal, cross-appeal, or motion for discretionary review shall result in a dismissal or denial. Failure to comply with other rules relating to appeals or motions for discretionary review does not affect the validity of the appeal or motion, but is ground for such action as the appellate court deems appropriate, which may include:
1. A dismissal of the appeal or denial of the motion for discretionary review,
2. Striking of pleadings, briefs, record or portions thereof,
3. Imposition of fines on counsel for failing to comply with these rules of not more than $1,000, and
4. Such further remedies as are specified in any applicable Rule.
KAP 11 Obligation of Counsel and Unrepresented Party {CR 11, 73.02(4)}
1. Obligation of Counsel
(a) Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(b) If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper.
2. Frivolous Pleadings. An appeal or motion is frivolous if the court finds that it is so totally lacking in merit that it appears to have been taken in bad faith. If an appellate court determines that an appeal or appellate pleading is frivolous, it may impose an appropriate sanction, including but not limited to:
14 (a) Awarding just damages;
(b) Awarding single or double costs to the appellee or respondent;
(c) A dismissal of the appeal or denial of the motion;
(d) Striking of pleadings, briefs, record or portions thereof;
(e) Imposition of fines on counsel of not more than $1,000; and
(f) Such further remedies as are specified in any applicable Rule.
ARTICLE 3. PRELIMINARY
KAP 15 Transfer of Appeal from Court of Appeals to Supreme Court {CR 74.02}
1. General. No later than 10 days from the date on which a notice of appeal to the Court of Appeals has been filed, any party may serve and file a motion in the Supreme Court for transfer of the case to that Court. A copy of the notice of appeal shall accompany a motion for transfer filed in the Supreme Court. The requirements of KAP 41, excepting paragraphs (1)(a), (1)(b), (1)(i)(1), and (1)(i)(2), and shall apply to such motions.
2. Considerations Governing Transfer. Such transfer is within the discretion of the Supreme Court and will be granted only upon a showing that the case is of great and immediate public importance, except that if separate appeals in a criminal case to the Supreme Court and to the Court of Appeals arise from the same trial, the Supreme Court in its discretion, on motion of the appellant whose appeal lies to the Court of Appeals, may transfer the latter appeal to the Supreme Court. The filing of a notice of appeal in a case in which a death penalty has been imposed will automatically serve to transfer the appeal to the Supreme Court.
3. Running of Time. Filing of the motion shall suspend the running of time for further steps in the appeal, and the full time for such steps shall be computed from the date of the order granting or denying the transfer.
4. Granting of Motion. If the motion is granted, the appeal shall be perfected and prosecuted as in the instance of appeals taken as a matter of right unless otherwise directed by the Supreme Court.
5. Recommendation by Court of Appeals. The Supreme Court may at any time, upon recommendation of the Court of Appeals, transfer to the Supreme Court any case pending before the Court of Appeals that falls within the criteria set forth in paragraph (b) above. The entry of a recommendation for transfer by the Court of Appeals shall suspend the running of time for any further steps in the appeal, and the full time for such steps shall be computed from the date of the order of the Supreme Court granting or denying the transfer.
6. Automatic Transfer. If the Supreme Court or Court of Appeals determines that an appeal pending before it is within the exclusive appellate jurisdiction of the other appellate court, the court in which the appeal is pending may enter an order
15 recommending transfer of the case to the Court with jurisdiction. Upon docketing of the appeal in the appropriate court, the appeal shall proceed as if it had been originally filed in the court with jurisdiction.
7. Costs. Payment of the filing fee specified in KAP 65 shall be required with the motion.
KAP 16 Certification of Question of Law to the Supreme Court {CR 76.37}
1. Power to Answer. If there are involved in any proceeding before the Supreme Court of the United States, any Court of Appeals of the United States, any District Court of the United States, the highest appellate court of any other state, or the District of Columbia, questions of law of this state that may be determinative of the cause then pending before the originating court and as to which it appears to the party or the originating court that there is no controlling precedent in the decisions of the Supreme Court and the Court of Appeals of this state, the Kentucky Supreme Court may answer those questions of law when certified to it by the originating court or, after judgment in the District Court, upon petition of any party to the proceeding.
2. Method of Invoking. This Rule may be invoked by an order of any of the courts referred to in paragraph (1) of this Rule upon the court's own motion or upon the motion of any party to the cause.
3. Contents of Certification Order. A certification order shall set forth:
(a) the questions of law to be answered;
(b) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose;
(c) the names of each appellant and appellee; and
(d) the names and addresses of counsel for each appellant and appellee.
4. Preparation of Certification Order. The certification order shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to the Supreme Court by the clerk of the certifying court under its official seal. The Supreme Court may require the original or copies of all or such portion of the record before the certifying court as it deems necessary to a determination of the questions certified to it.
5. Costs of Certification. Fees and costs shall be the same as in civil appeals docketed before the Supreme Court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification and each party shall pay its share of the filing fee within the 30-day period allowed by paragraph (6) of this Rule for filing of briefs.
6. Briefs and Argument. Within 30 days after the date of the order of the Kentucky Supreme Court accepting certification, each of the parties desiring to be heard shall file with the clerk of the Supreme Court 10 copies of a brief setting forth the party's arguments. Oral arguments will not be required or permitted unless so ordered by the Supreme Court.
16 7. Opinion. The written opinion of the Supreme Court stating the law governing the questions certified shall be sent by the clerk under the seal of the Supreme Court to the certifying court and to the parties.
8. Power to Certify. The Supreme Court on its own motion or the motion of any party may order certification of questions of law to the highest court of any state or the District of Columbia when it appears to the certifying court that there are involved in any proceeding before the court questions of law of the receiving state or district which may be determinative of the cause then pending in the certifying court and it appears to the certifying court that there are no controlling precedents in the decisions of the highest court or intermediate appellate courts of the receiving state.
9. Procedure on Certifying. The procedures for certification from this state to the receiving state shall be those provided in the laws of the receiving state or district.
10. Certification of Law by the Commonwealth. A request by the Commonwealth of Kentucky pursuant to Section 115 of the Constitution of Kentucky for a certification of law shall be initiated in the Supreme Court. The request shall be initiated within 30 days of a final order adverse to the Commonwealth. The Commonwealth shall initiate the certification procedure by motion requesting the Supreme Court to accept the question(s) for review. The motion shall contain the same elements as provided in this rule, section (e), for a certification order. The motion shall be served and response permitted in conformity with the rules applicable to motion practice in the Supreme Court. If the motion is sustained, thereafter the case shall proceed in the same manner as any other appeal.
11. Number of Copies. Ten copies of the certification order from another court or the request for certification by the Commonwealth, and the response, if any, shall be filed with the Clerk of the Supreme Court.
KAP 18 Motion for Relief From an Order Granting or Denying a Temporary or Permanent Injunction. {CR 65.07, 65.08, and 65.09}
1. When Authorized.
(a) Relief Regarding Temporary Injunction. When a circuit court by interlocutory order has granted, denied, modified, or dissolved a temporary injunction, a party adversely affected may, no later than 20 days from the entry thereof, move the Court of Appeals for relief from such order. If the order dissolves a temporary injunction previously granted, the circuit court may in its discretion suspend the operation of the order for a period not exceeding 20 days to permit such party to proceed under this rule.
(b) Relief Regarding Permanent Injunction. After a notice of appeal has been filed from a final judgment granting or denying an injunction, any party may move the circuit court to grant, suspend, or modify injunctive relief during the pendency of the appeal. The circuit court, in its discretion, may provide in the order ruling on the motion that the status existing immediately before entry of the final judgment shall be maintained for a specified limited time to allow an adversely affected party to seek relief in the Court of Appeals. A party adversely affected by such a ruling from the circuit court, may move the Court of Appeals for relief.
17 2. Requirements. Relief shall be sought in the Court of Appeals by filing 5 copies (1 unbound original and 4 bound copies) of the motion for relief in the office of the appellate court clerk. The movant shall pay the filing fee required by KAP 65(2). The format of the motion shall be the same as for other motions filed in the appellate court under KAP 7. The motion shall state clearly the procedural history of the case, the factual history of the dispute, and the grounds on which movant's claim for relief is based. In addition, if no request was made to the trial court under paragraph (1)(b) above, a motion seeking relief regarding a permanent injunction shall state why such request was impractical.
3. Record. The movant shall file with the motion copies of such portions of the record as may be necessary to a proper consideration and disposition of the motion. This shall include, at a minimum, the motion for an injunction, the response to the motion, and the order disposing of that motion.
4. Service. The motion and all attachments shall be served on all other parties to the appeal, and the date and method of service shall be certified on the motion.
5. Response. Any respondent may file 5 copies (1 unbound original and 4 bound copies) of a response no later than 10 days from the date on which the motion is served.
6. Submission. Upon the running of response time provided in paragraph €, the motion and any responses shall be submitted to a panel for decision. Oral argument will not be held unless ordered by the Court on its own motion or on the motion of a party.
7. Basis for Affirmative Relief Regarding Temporary Injunction. The basis of affirmative relief from an order denying, modifying, or dissolving a temporary injunction shall be the grounds specified in CR 65.04(1), and if such relief is granted, a bond may be required to be executed in the circuit court as provided by CR 65.05.
8. Emergency Relief. If a movant will suffer irreparable injury before the motion will be considered by a panel, the movant may request emergency relief. The request may be by separate motion or by a clearly defined section of the underlying motion for relief. The emergency request shall clearly set out the nature of the irreparable injury that will occur unless emergency relief is granted. The emergency request shall be assigned to a judge of the Court of Appeals in accordance with the normal practice of the Court. The judge may deny the request without response or may provide for written or oral responses by telephone if necessary. Relief may not be granted ex parte unless the movant has clearly stated why it is impossible for opposing parties to be notified and heard and the ruling judge finds such action to be necessary and appropriate.
9. Order.
(a) Regarding Temporary Injunction. A signed copy of the order entered on a motion made pursuant to paragraph (1)(a) above shall be sent forthwith to the clerk of the circuit court where the action is pending, and when filed in the clerk's office shall have the same effect as an order entered by such circuit court.
(b) Regarding Permanent Injunction. Any order entered on a motion made pursuant to paragraph (1)(b) above may fix such terms as are proper to secure the rights
18 of the parties, including the execution of an injunction bond subject to the provisions of CR 65.05.
10. No Reconsideration. A ruling granting or denying interlocutory relief under this Rule will not be reconsidered.
11. No Appellate Review of Restraining Order. There is no appellate review of a Restraining Order entered by a circuit court under CR 65.03.
12. Review by Supreme Court
(a) When Authorized. Any party adversely affected by an order of the Court of Appeals in a proceeding under this KAP 18 may, no later than 5 days from the date on which such order was entered, move the Supreme Court to vacate or modify it.
(b) Requirements. The decision whether to review such order shall be discretionary with the Supreme Court. Such a motion will be entertained only for extraordinary cause shown in the motion. Ten copies of the motion (1 unbound original and 9 bound copies) and the response, if any, shall be filed.
(c) Record. The movant shall attach to each copy of the motion copies of the order or orders of the Court of Appeals and all other portions of the record submitted to the Court of Appeals pursuant to paragraph (3) above.
(d) Emergency Relief in Supreme Court. If a Court of Appeals judge has granted or denied emergency relief under paragraph (8) above, any party adversely affected by that order may move the Supreme Court for relief in the same manner as provided in paragraph (12)(a) of this rule.
If the Supreme Court declines to exercise its discretion to immediately review the ruling, the motion for relief in the Court of Appeals will be assigned to a panel of that Court for decision.
If the Supreme Court decides to exercise its discretion to immediately review the ruling, the Supreme Court review shall encompass both the emergency motion and the motion for relief under KAP 19.
Failure of a party to seek Supreme Court emergency review under this paragraph (d) shall not affect the party's right to seek review under section (12) of a decision of a Court of Appeals panel disposing of the motion for relief under KAP 19.
KAP 19 Motion for Intermediate Relief Pending Appeal {CR 76.33 (expanded), CR 76.44}
1. Scope. An appellant adversely affected by enforcement of an order contained in a final, appealable judgment may seek a stay of enforcement of the judgment under this KAP 19. Nothing in this rule relieves an appellant of the necessity of posting a proper supersedeas bond to stay enforcement of a money judgment.
2. Initial Motion in Court from which Appeal is Taken. A party must ordinarily move the court from which the appeal is taken for relief in the nature of:
19 (a) A stay of the judgment or order of the circuit court pending appeal or
(b) Approval, sufficiency, or conditions of a supersedeas bond.
3. When Authorized.
(a) Time. At any time after a notice of appeal or a motion for discretionary review under KAP 41 has been filed, a party to the appeal or motion may move the appellate court for intermediate relief upon a satisfactory showing that otherwise the movant will suffer immediate and irreparable injury before the appeal can be decided on the merits.
(b) Requirements. Five copies of the motion (1 unbound original and 4 bound copies) shall be filed with the appellate court clerk. The format of the motion shall be the same as for other motions filed in the appellate court under KAP 7. The motion shall state the procedural history of the case, the factual history of the dispute, and the grounds on which the movant's claim for relief is based. The movant must also demonstrate either: (1) the lower court denied the requested intermediate relief and, if so, the movant must state the reasons for the denial by the lower court; or (2) application for relief from the lower court under paragraph (b) above would be impractical.
(c) Service. The movant shall serve copies of the motion and all attachments on all other parties to the appeal. The motion shall contain certification of the service showing the date and method of service.
Record Required. The movant shall attach to each copy of the motion copies of the final judgment, the motion for stay filed in the circuit court, and the circuit court order disposing of the motion for stay. The movant shall also attach copies of any other portions of the record necessary for disposition of the motion.
Response. Any opposing party may file a response to the motion for intermediate relief no later than 10 days from the date on which the motion is served. Five copies of the response (1 unbound original and 4 bound copies) shall be filed and copies served on all other parties to the appeal. The response shall show certification of service as required by paragraph (3)€ above.
Hearing and Disposition. Upon the filing of the response, or the expiration of the time for a response as provided in paragraph € of this rule, the motion shall be submitted for decision. Oral argument shall not be conducted except by order of the appellate court.
Issuance and Filing of Order on Motion. A signed copy of the order entered on the motion shall be forthwith transmitted to the clerk of the circuit court from which the appeal or motion for discretionary review has been taken. When filed with the clerk of the circuit court, the order of the appellate court shall have the same effect as an order entered by the circuit court. An order granting or denying intermediate relief in the appellate court will not be reconsidered.
Supreme Court Review. If the motion for intermediate relief was granted or denied by the Court of Appeals, review of the order may be sought in the Supreme Court only under extraordinary circumstances under the procedures of KAP 18(12) for review of injunctions.
20
4. Emergency Relief in the Appellate Courts.
(a) In General. If a party will suffer immediate and irreparable injury prior to the resolution of a properly filed motion for stay, that party may file a motion for emergency relief. The motion may be filed with, or as part of, the motion for stay. A party may request emergency relief only under extreme and exigent circumstances.
(b) Contents of the Emergency Motion. A motion for emergency relief must concisely state the harm that will occur unless emergency relief is granted, the date on which the injury will occur, and the precise nature of the emergency relief requested.
(c) Record Required. A motion for emergency relief must be supported by attaching affidavits or sworn statements and copies of such portion of the record, including all relevant orders of the lower court or video recordings of any pertinent hearings, as may be necessary to a proper consideration and disposition of the motion.
(d) Filing. The motion for emergency relief shall be filed with the clerk of the appellate court and shall be served on all parties. Prior to filing an emergency motion, counsel shall contact the clerk as to the parties' arrangements for serving the motion and supporting documentation on opposing parties by either hand-delivery, facsimile, or electronic means. No emergency motion shall be considered absent compliance with the service requirements of this rule.
(e) Response. The Court may deny an emergency motion without a response being filed. Relief will be granted ex parte only under the most unusual of circumstances. If such relief is sought ex parte, the motion shall state why it is impractical to notify opposing counsel so that counsel may appear in person or by phone before the judge to whom the request for emergency relief is presented. If the Court concludes that a response will aid the Court in its deliberations, the Court will set a response time. The Court may direct that the response be transmitted to the Court and served on opposing parties by facsimile or electronic means. Five copies of the response (1 unbound original and 4 bound copies) will then be filed with the Clerk of the Court of Appeals as soon as possible. If a written response is impractical, the Court may allow opposing parties to respond by telephone or in person. If circumstances do not permit a response by opposing parties, the order granting emergency relief shall explain the circumstances which precluded the filing of a response.
(f) Review. Review of an order of the Court of Appeals granting or denying relief under this rule may be sought under the same procedure as that provided for review of injunctions under KAP 18(12)(d). Further proceedings in the Court of Appeals shall not be stayed unless ordered by the Supreme Court.
KAP 21 Prehearing Procedure in the Court of Appeals {CR 76.03}
1. Application.
(a) In all civil cases appealed to the Court of Appeals, except those specified in paragraph (a)(2) below, each appellant and cross-appellant shall file a prehearing statement no later than 20 days from the filing of its respective notice of appeal or cross- appeal. The prehearing statement shall be filed with the Court of Appeals.
21
(b) This rule does not apply to criminal cases or to civil cases involving prisoner applications seeking relief relating to confinement or conditions of confinement, appeals of findings of contempt, appeals relating to extraordinary writs, and appeals from Circuit Court orders determining paternity, dependency, abuse, neglect, domestic violence, or juvenile status offense. This rule also does not apply to cases appealed to or transferred to the Supreme Court.
2. Running of Time.
(a) The running of time for further steps under these appellate rules, in cases where this rule applies, shall not begin until so ordered by the Court of Appeals except for:
The filing of a Notice of Cross-Appeal under KAP 4;
The filing of a motion to transfer under KAP 15; or
The filing of a prehearing statement under paragraph (3) below.
(b) Unless otherwise ordered by the Court of Appeals, the full time for such further steps shall be computed:
(1) From the date of entry of the order stating that no prehearing conference will be held pursuant to this rule, or
(2) From the date of the entry of the order reciting the actions taken and the agreements reached by the parties during a conference held pursuant to this rule.
3. Prehearing Statement.
(a) The prehearing statement shall be submitted on a form which is available from each circuit court or from the Court of Justice website. The prehearing statement shall include the following information:
(1) The style of the case and circuit court docket number;
(2) The name, mailing address, and telephone number of each attorney whose appearance is entered in the case, together with the name and address of the party represented by the attorney who is filing the prehearing statement;
(3) The name of the judge who presided over the matter being appealed;
(4) The date on which the notice of appeal and any notice of cross- appeal was filed;
(5) A statement as to whether the matter has previously been before the Court of Appeals;
22 (6) The type of litigation;
(7) A brief description of the claims, defenses and issues litigated;
(8) A brief statement of the facts, issues, and jurisdictional challenges to be raised on appeal;
(9) A statement, based on counsel's present knowledge, as to whether the appeal involves a question of first impression;
(10) A statement as to whether the determination of the appeal will turn on the interpretation or application of a particular case or statute and, if so, the name of the case or the number of the statute;
(11) A statement, based on counsel's present knowledge, as to whether there is another case arising from substantially the same case or controversy or involving an issue which is substantially the same, similar or related to an issue in this appeal currently pending in the Court of Appeals or the Supreme Court.
(12) A copy of the complaint or other initiating document, the judgment or order sought to be reviewed, and any opinion or findings of the circuit court or administrative agency.
(b) A party shall be limited on appeal to issues identified in the prehearing statement, except that upon a timely motion demonstrating good cause, the Court of Appeals may permit additional issues to be raised.
(c) No later than 10 days from the filing of a prehearing statement, each appellee or cross-appellee may file with the Court of Appeals a supplemental statement containing any other information needed to clarify the issues on appeal and on cross- appeal.
(d) A copy of each prehearing statement and supplemental statement shall be served on all parties to the appeal. If the constitutionality of a statute is challenged by any party as an issue in the appeal, a copy of the prehearing statement or supplemental statement shall be served upon the Attorney General. If the Attorney General does not file an entry of appearance within 10 days of the filing of the prehearing statement or supplemental statement, then no further filings or briefs shall be served on the Attorney General.
(e) For any failure to comply with the provisions of this rule, the Court of Appeals may assess reasonable expenses caused by the failure, including attorney's fees, assess all or a portion of the appellate costs, or dismiss the appeal.
(f) In addition to listing a request for a prehearing conference on the prehearing statement or supplemental statement, any party may also file a motion expressly requesting a prehearing conference to be held.
(g) After the filing of prehearing statement and any supplemental statements, no further steps are required until so ordered by the Court of Appeals, except the following:
23
(1) The filing of a notice of cross-appeal under KAP 4; or
(2) The filing of a motion to transfer under KAP 15.
4. Prehearing Conference
(a) In all cases requiring a prehearing statement under paragraph (1)(a), the Court of Appeals will determine whether a prehearing conference would assist the Court or the parties. The determination shall be made by the designee of the Chief Judge of the Court of Appeals. Such designee shall be a judge of the Court of Appeals or a staff attorney of the Court known as a conference attorney.
(b) If a case is selected for a prehearing conference, the designee shall issue an order directing attorneys for all parties to attend a prehearing conference, in person or by telephone, and setting the date and location for the conference.
(1) The purpose of the conference shall be to consider the possibility of settlement, the simplification of issues, the contents of the record, the time for filing the record and briefs, and any other matters which may aid in the handling or disposition of the proceedings.
(2) The prehearing conference discussions are confidential, except to the extent disclosed by the prehearing order and shall not be disclosed by the Court's designee or by the parties or counsel in briefs or argument.
(c) If a case is not selected for a prehearing conference, the designee shall issue an order informing the parties. The entry of this Order shall commence time running for further steps under these appellate rules.
(d) If a case is selected for a prehearing conference, following the conclusion of the prehearing conference procedure, the Court of Appeals' designee shall issue an order reciting the actions taken and the agreements reached.
(e) In the event of default by any party in any action required by a prehearing conference order, the Clerk of the Court of Appeals shall issue a notice to the party in default providing a 10-day period within which to file an affidavit showing good cause for the default and including when the required action will be taken.
(f) For any failure to comply with the provisions of this rule or the provisions of a prehearing conference order, the Court of Appeals may assess reasonable expenses caused by the failure, including attorneys’ fees; assess all or a portion of the appellate costs; or dismiss the appeal.
(g) A judge who participates in a prehearing conference or becomes involved in settlement discussions pursuant to this rule shall not sit as a member of the panel assigned to hear the appeal.
24 ARTICLE 4. RECORD ON APPEAL
KAP 25 Contents and Designation of Record on Appeal {CR 75.01, 75.06 - 75.08, 75.10, 75.11, 75.13, 75.14, 75.15, 98(2), (3), and (5)}
UNDER CONSTRUCTION
KAP 27 Maintaining, Certifying, and Forwarding the Record {CR 73.08, 75.01, 75.02, 75.07, 98(3)}
UNDER CONSTRUCTION
KAP 29 Appellate Clerk's Duties {CR 79.06, 76.46}
UNDER CONSTRUCTION
KAP 30 Access to Record on Appeal
A record on appeal is open to public inspection except for papers, recordings, transcripts, exhibits, and other items sealed by court order or designated as confidential in the trial court. Counsel of record on appeal shall have the same access to sealed and confidential material in the record on appeal as the attorneys in the trial court without leave of the appellate court. If a party to the appeal did not have access to sealed and confidential material in the trial court, counsel for that party shall move the appellate court for access to any such material.
ARTICLE 5. BRIEFS
KAP 33 Briefs {CR 76.12, 98(4)}
1. When Required. Unless otherwise directed by the appellate court, before any appeal is taken under submission for final disposition on the merits, briefs shall be filed by the respective parties. An appellant or cross-appellant may file a reply brief. No further briefs will be considered except on order of the court. The combining of arguments on an appeal and cross-appeal into one brief is both permitted and encouraged.
2. Time for Filing.
(a) Appellant's Opening Brief – Timing
(1) Civil Cases. An appellant must file a brief no later than 60 days from the date that the clerk certifies the record pursuant to KAP __. When the Supreme Court has granted a motion for discretionary review, the movant becomes an appellant whose brief must be filed no later than 60 days from the date of entry of the order granting review.
25 (2) Criminal Cases.
If counsel for the appellant is someone other than the Public Advocate or the Attorney General, the time in which the appellant's brief is to be filed is the same as in civil cases.
If counsel for the appellant is the Public Advocate, the Attorney General, or a designee of either, the appellant's brief must be filed no later than 60 days from the date on which the record on appeal was made available by the clerk of the appellate court (notice of which shall be sent).
(b) Appellee's Response Brief – Timing
(1) Civil Cases. Appellee's brief, or combined brief if the appellee is also a cross-appellant, must be filed no later than 60 days after the date on which the appellant's brief is filed.
(2) Criminal Cases.
(A) If counsel for the appellant is the Public Advocate, the Attorney General, or the designee of either, the time in which the appellee's brief is to be filed is the same as in civil cases.
(B) If counsel for the appellant is someone other than the Public Advocate, the Attorney General, or a designee of either, the appellee's brief must be filed no later than 60 days after the date on which the appellant's brief was filed or the date on which the record on appeal was made available by the clerk of the appellate court, whichever is the later.
(c) Appellant's Reply Brief – Timing
(1) Appellant or cross-appellant's reply brief or briefs must be filed no later than 15 days after the date on which the appellee's response brief is filed. If the appellant or cross-appellant's reply brief is responsive to more than one appellee's response brief, the reply brief must be filed no later than 15 days after the date on which the last appellee's response brief was due.
(2) If the appellant is also a cross-appellee, a combined cross- appellee's brief and appellant's reply brief must be filed no later than 60 days after the date the last appellee's brief is filed or due to be filed.
(d) Amicus Curiae Brief – Timing. A motion to file an amicus curiae brief must be filed no later than 15 days from the date on which the appellant's brief is filed, regardless of whether the amicus curiae advocates the position of the appellant or appellee.
26 3. Form.
(a) Text.
(1) Unglazed white paper, 8½ by 11 inches in dimension.
(2) Single sided, double spaced, and clearly readable.
(3) Text, black type no smaller than 12 point set at standard width.
(4) Footnotes no smaller than 10 point set at standard width.
(5) 1½ inch margin on the left side and 1 inch margin on all other sides.
(6) Briefs must be securely bound at left side.
(7) If an appendix to a brief exceeds 50 pages, it must be separately bound.
(b) Covers
(1) Color - Briefs must be enclosed front and back in covers colored as follows: Appellant's Opening Brief – Red
Appellee's Response Brief – Blue
Combined Appellee's Response and Cross-Appellant's Opening Brief – Blue
Appellant's Reply Brief – Yellow
Combined Appellant's Reply and Cross-Appellee's Response Brief – Yellow
Amicus Curiae – Brown
Other -- White
(2) Content of Cover. The front cover must show the case number of the appeal, the case number of the action from which the appeal was taken, a caption identifying the lead appellant and appellee, and the name of the party on whose behalf the brief is submitted. Every cover must also contain a signed statement, in accordance with CR 5.03, that service has been made and that identifies by name the persons served. Except for briefs on appeal from the Court of Appeals to the Supreme Court, the statement shall further certify that the record on appeal has been returned to the clerk of the court from which it was withdrawn or that it was not withdrawn by the party filing the brief.
27 (c) Service of Briefs. Upon filing any brief, a party shall serve a copy of it on each adverse party to the appeal and on the judge whose decision is under review. In criminal cases, the defendant and the Attorney General shall also serve copies of their briefs on the Commonwealth's Attorney of the district in which the case was tried. Service shall comply with KAP 5.
(d) References to Parties. In briefs and at oral argument, counsel should minimize use of the terms "appellant" and "appellee." To make briefs clear, it is recommended that briefs use the parties' actual names, or the designations used in the lower court or agency proceedings, or descriptive terms, such as "the employee" or "the driver."
(e) Citation Form.
(1) Authorities. Parties shall cite Kentucky statutes from the official edition of the Kentucky Revised Statutes and may be abbreviated "KRS." Parties shall cite Kentucky cases reported after January 1, 1951, from the Supreme Court and its predecessor court: Doe v. Roe, ___ S.W.2d or S.W.3d ____ (Ky. [date]); or from the present Court of Appeals (beginning in 1976), Doe v. Roe, ___ S.W.2d or S.W.3d ___ (Ky. App. [date]). For cases reported before 1951, parties shall provide both Kentucky Reports and Southwestern citations. Case names may be italicized or underlined. Final unpublished opinions cited for consideration by the court shall be identified as an unpublished decision in the filed document, and a copy of the entire decision shall be included in the appendix to the brief.
(2) Certified Written Record. Parties shall cite the certified record by referring to pages as numbered by the clerk, such as "TR __" or, if not possible, to any other point of reference that will enable the Court easily to find the material.
(3) Official Recording. Each reference in a brief to a segment of the designated official recording shall set forth the letters "OR" and the month, day, year, hour, minute, and second at which the reference begins as recorded. For example: OR 10/27/06; 14:24:05.
(4) Transcript. If the record contains a transcript of oral proceedings, parties shall identify the speaker and cite the volume and page, such as "Smith, Vol. 1, p. 10." If the record contains both a video record and a transcript, the parties may cite to either or both.
(f) Number of Copies of Briefs.
(1) Court of Appeals – 1 unbound original and 4 bound copies.
(2) Supreme Court – 1 unbound original and 9 bound copies.
(g) Page Limits, excluding the introduction, statement concerning oral argument, statement of points and authorities, and appendices.
28 (1) Court of Appeals.
(A) Opening and Response Briefs. An appellant or appellee brief cannot exceed 25 pages.
(B) Combined Appellee's Response and Cross-Appellant's Opening Brief. A brief combining arguments as an appellee and cross-appellant cannot exceed 40 pages.
(C) Reply. An appellant cannot exceed 5 pages, except that when an appellant is called upon to respond to more than one appellee brief, then appellant is permitted up to 5 additional pages per each additional appellee brief.
(D) Combined Appellant's Reply and Cross-Appellee's Response. A brief combining an appellant's reply and a cross-appellee's response brief cannot exceed 30 pages.
(2) Supreme Court.
(A) Opening and Response Briefs. An appellant or appellee brief cannot exceed 50 pages.
(B) Combined Appellee's Response and Cross-Appellant's Opening Brief. A brief combining arguments as an appellee and cross-appellant cannot exceed 65 pages.
(C) Reply. An appellant cannot exceed 10 pages, except that when an appellant is called upon to respond to more than one appellee brief, then appellant is permitted up to 5 additional pages per each additional appellee brief.
(D) Combined Appellant's Reply and Cross-Appellee's Response. A brief combining an appellant's reply and a cross-appellee's response brief cannot exceed 25 pages.
(3) Death Penalty Cases. In cases where the death penalty has been imposed, the appellant's brief and the appellee's brief cannot exceed 150 pages, excluding the introduction, statement concerning oral argument, statement of points and authorities and appendices. A reply brief cannot exceed 25 pages.
(h) Electronic Briefs on CD/DVD. A party may file an electronic brief on CD/DVD with the paper brief.
(1) All electronic briefs shall be on a CD/DVD that can be read via Microsoft Windows and shall contain in a single file all information contained in the paper brief, including the cover, the table of contents, and the certifications, in the same order as the paper brief. The electronic briefs may also contain hypertext links or bookmarks to cases, statutes, and other reference materials available on the Internet or appended to the brief.
29 (2) An electronic brief must be formatted in a searchable PDF document.
(3) An electronic brief shall contain a label indicating the style and docket number of the case and the name of the document contained on the CD/DVD.
(4) By filing a brief on CD/DVD, the party certifies that all information contained on the CD/DVD is an exact replica of the paper brief filed with the court.
4. Organization and Content.
(a) Appellant's Opening Brief. An appellant's opening brief must contain the following sections.
(1) A brief "Introduction" indicating the nature of the case, and not exceeding two simple sentences. For example, "This is a murder case in which the defendant appeals from a judgment convicting him of 1st-degree manslaughter and sentencing him to 20 years in prison," or "This is a case in which an insurance company appeals from a judgment construing its policy as applicable, and a co-defendant's policy as not applicable, to the plaintiff's accident claim. Plaintiff also appeals against the co- defendant."
(2) A Statement Concerning Oral Argument indicating whether the appellant desires oral argument and why appellant believes that oral argument would or would not be helpful to the Court in deciding the issues presented. This Statement should be no longer than one brief paragraph.
(3) A Statement of Points and Authorities, which shall set forth, succinctly and in the order in which they are discussed in the body of the argument, the appellant's contentions with respect to each issue of law relied upon for a reversal, listing under each the authorities cited on that point and the respective pages of the brief on which the argument appears and on which the authorities are cited.
(4) A Statement of the Case consisting of a summary of the facts and procedural events relevant and necessary to an understanding of the issues presented by the appeal, with ample references to the specific location in the record supporting each of the statements narrated in the summary.
(5) An Argument conforming to the Statement of Points and Authorities, with ample references to the specific location in the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.
(6) A Conclusion setting forth the specific relief sought from the appellate court.
(7) A Signature by an attorney of record for the party submitting the brief or, for a party proceeding pro se, by the party.
(8) An Appendix that conforms with this Rule, as set forth below.
30
(b) Appellee's Response Brief. An appellee's response brief must contain the following sections:
(1) A Statement Concerning Oral Argument responsive to appellant's statement indicating why appellee believes that oral argument would or would not assist the Court in deciding the issues presented.
(2) A Counterstatement of Points and Authorities in the same format required for Appellant's Statement of Authorities.
(3) A Counterstatement of the Case stating whether the appellee accepts the appellant's Statement of the Case and, if not, setting forth the matters the appellee considers essential to a fair and adequate statement of the case in accordance with the requirements for Appellant's Statement of the Case.
(4) An Argument conforming to appellee's Counterstatement of Points and Authorities and to the requirements for Appellant's Argument.
(5) A Signature by an attorney of record for the party submitting the brief or, for a party proceeding pro se, by the party.
(c) Reply Brief. Reply briefs must be confined to points raised in the briefs to which they are addressed and must not reiterate arguments already presented.
(d) Amicus Curiae Briefs.
(1) A brief for an amicus curiae shall not be filed except upon order of the appellate court, pursuant to motion filed simultaneously with the tendered brief that specifies with particularity the nature of the movant's interest, the points to be presented, and their relevance to the disposition of the case. A motion to file an amicus curiae brief must be filed no later than 15 days from the date on which the appellant's brief is filed.
(2) Payment of the filing fee specified in KAP 65 shall be required with a motion for leave to file an amicus curiae brief.
(3) An amicus curiae brief shall not exceed 15 pages and shall not contain appendices or copies of unpublished opinions as set forth in KAP 37(4).
5. Requirements for the Appendix to a Brief.
(a) Record Appendix.
(1) An appellant must attach an Appendix to its brief. The first item of the appendix shall be a listing or index of all documents included in the appendix. The appellant shall place the judgment, opinion, or order under review immediately after the appendix list so that it is most readily available to the court. The appendix shall contain copies of the findings of fact, conclusions of law, and judgment of the trial court, any written opinions filed by the trial court in support of the judgment, the opinion or opinions of the court from which the appeal is taken, and may contain copies of any pleadings or
31 exhibits to which ready reference may be considered by the appellant as helpful to the appellate court. The index shall set forth where the documents may be found in the record. In workers' compensation cases the appendix shall include the opinions of the Administrative Law Judge, the Workers' Compensation Board, and the Court of Appeals. The items in the appendix shall be separated by appropriate extruding tabs.
(2) An appellee may attach an Appendix to its brief. The appendix may contain copies of any papers or exhibits not included in the appellant's brief to which ready reference may be considered by the appellee as helpful to the appellate court. The first item of the appendix shall be a listing or index of all documents included in the appendix. The index shall set forth where each document may be found in the record.
(3) Except for matters of which the appellate court may take judicial notice, materials and documents not included in the record shall not be introduced or used as exhibits in support of briefs.
(b) Evidentiary Appendix. Appellants and appellees may attach to their briefs an appendix of the evidence that consists of a transcription of video recorded evidence or other court proceeding. The purpose of an evidentiary appendix is to facilitate the efforts of each appellate judge in studying the briefs in a meaningful way.
(1) Improper Use. Inclusion of transcript unnecessary to the disposition of the case imposes a burden on both the parties and the court and may subject counsel to sanctions.
(2) Length. The filing of an evidentiary appendix and index attached to a brief shall not exceed 50 pages if filed in the Supreme Court, nor 25 pages if filed in the Court of Appeals, except that an evidentiary appendix and index attached to a reply brief shall not exceed 15 pages.
(3) Content. An evidentiary appendix shall contain transcriptions of only those parts of the video recording that support the specific issues or contentions raised in a brief on appeal, or that relate to a question of whether an alleged error was properly preserved for appellate review.
(4) Organization. At the top of each page of an evidentiary appendix, there shall be a video recording reference that corresponds to the transcription on each page of the appendix. Each evidentiary appendix shall include an index setting forth: (a) a list of video recording references cross-indexed to pages of the appendix; (b) an alphabetical list of witnesses whose testimony is transcribed in the appendix, listing the video recording references with the pages of the appendix where each witness’s testimony begins; and (c) the name of each witness at the place in the appendix where the testimony of that witness begins.
6. Penalties.
(a) A brief may be stricken for failure to comply with any substantial requirement of this Rule.
32 (b) If the appellant's brief has not been filed within the time allowed, the Court may dismiss the appeal.
(c) If the appellee's brief has not been filed within the time allowed, the court may: (1) accept the appellant's statement of the facts and issues as correct; (2) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (3) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.
ARTICLE 6. DISPOSITION
KAP 35 Submission {CR 76.26}
Appeals will be submitted for consideration on the merits by the appellate court when all briefs have been filed or when the time for such filing has expired, whichever is sooner. No document filed or tendered after submission will be considered unless filed pursuant to these rules or with leave of court.
KAP 36 Oral Argument {CR 76.16}
1. When Heard. Oral arguments on the merits will be heard in cases designated by the appellate court. KAP 33 provides for the parties to include in their brief statements concerning the need for oral argument in the appeal.
2. Procedure. In an oral argument, the party upon whom the burden rests shall have the right to open and close. Unless otherwise directed, each side will be allowed 15 minutes. Visual aids based on the record may be used at oral argument with leave of the court.
3. Amicus Curiae. Counsel representing an amicus curiae shall not participate in the oral argument.
4. Non Attorneys. A person who is not an attorney at law will be permitted to make an oral argument only with special leave of the court.
5. Death Penalty Cases – Notice of Issues. In death penalty cases, appellant shall file and serve upon appellee not later than 14 days before oral argument a notice of issues that appellant intends to argue orally, with specific reference to the argument number and page numbers of each issue in appellant's brief. If appellant fails to do so, without good cause, appellant's oral argument shall be limited to answering questions from the Court.
6. Death Penalty Cases – Supplemental Authority. In death penalty cases, appellant shall file any motion for leave to cite supplemental authority for oral argument not later than 14 days before oral argument, unless good cause is shown for a later filing. Appellee shall file any motion for leave to cite supplemental authority for oral argument not later than 10 days before oral argument or 10 days after service of appellant's designation of issues for oral argument, whichever is earlier, unless good cause is shown for later filing.
33 KAP 37 Opinions and Orders – Issuance and Effective Date {CR 76.28, 76.30, 76.38(1)}
1. Written Opinions and Orders.
(a) Appellate court opinions and orders shall be reduced to writing and, except for unanimous actions of the Supreme Court, shall list the names of the members concurring or dissenting and indicate the name of any member who did not participate in the decision.
(b) Opinions and orders finally deciding a case on the merits shall include an explanation of the legal reasoning underlying the decision.
2. Time of Announcement. Unless otherwise determined by the Supreme Court, opinions of the Supreme Court will be released for publication on Thursdays. Unless otherwise determined by the Court of Appeals, opinions of the Court of Appeals shall be released on Fridays.
3. Distribution of Copies. Promptly after an opinion is handed down the clerk shall send a copy to the trial judge, to any intermediate court which made a decision in the case, and to each attorney in the case.
4. Publication.
(a) When a motion for discretionary review under KAP 41 is filed with the Supreme Court, the opinion of the Court of Appeals in the case under review shall not be published until the Supreme Court rules on the motion for discretionary review or until the Court permits the motion to be withdrawn. Unless otherwise ordered by the Supreme Court, upon entry of an order denying the motion for discretionary review or granting withdrawal of the motion, the opinion of the Court of Appeals shall be published if the opinion was designated "To be Published" by the Court of Appeals. Upon entry of an order of the Supreme Court granting a motion for discretionary review the opinion of the Court of Appeals shall not be published, unless otherwise ordered by the Supreme Court. All other opinions of the appellate courts will be published as directed by the court issuing the opinion. Every opinion shall show on its face whether it is "To be Published" or "Not To Be Published."
(b) Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state. Unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action. If an opinion of the Court of Appeals is ordered de-published by the Supreme Court, it shall not be cited for consideration in any court of this state.
5. Withdrawal of Opinions. Parties to an appeal may not by agreement dismiss an appeal and have an opinion withdrawn after it has been issued.
34 6. Finality of Opinions. This section, KAP 37(6), applies to any final decision of an appellate court styled as an "Opinion." Orders, including decisions styled "Opinion and Order," are governed by KAP 37(7).
(a) An opinion of the Supreme Court becomes final on the 21st day after the date of its rendition unless a petition under KAP 40 has been timely filed or an extension of time has been granted for that purpose. An opinion of the Court of Appeals becomes final on the 31st day after the date of its rendition unless a petition under KAP 40 or a motion for discretionary review under KAP 41 has been timely filed or an extension of time has been granted for one of those purposes.
(b) In the event of a timely motion for discretionary review under KAP 41, the opinion becomes final immediately upon denial of the motion.
(c) In the event of a timely petition for rehearing under KAP 40,
(1) if it is in the Supreme Court and is denied, the opinion becomes final immediately upon such denial,
(2) if it is in the Supreme Court and is granted and a new or revised opinion is rendered, the new or revised opinion becomes final on the 21st day after the date of its rendition unless otherwise ordered, or unless a further petition under KAP 40 has been timely filed or an extension of time has been granted for that purpose;
(3) if it is in the Court of Appeals and is denied, the opinion becomes final on the 31st day after the date the petition was denied unless a motion for discretionary review under KAP 41 has been timely filed;
(4) if it is in the Court of Appeals and is granted, and a new or revised opinion rendered, the new or revised opinion becomes final on the 31st day after the date of its rendition unless otherwise ordered, or unless a further petition under KAP 40 or a motion for discretionary review under KAP 41 has been timely filed or an extension of time has been granted for one of those purposes.
(d) Unless otherwise ordered, (1) in no event shall an opinion become final pending final disposition of a timely petition under KAP 40 or a timely motion for discretionary review under KAP 41; and (1) in every case it shall become final when no such motion or petition has been filed within the time allowed for that purpose.
(e) When an opinion has become final, the clerk of the appellate court that rendered it shall forthwith send to the clerk of the trial court and, if the opinion results from a review of the decision of another appellate court, to the clerk of that court also, a copy of the opinion with an endorsement stamped thereon showing the date upon which it became final, whereupon the clerk of the trial court shall forthwith file the opinion as enclosed in the original record and note the filing on the proper docket. In the event a final opinion directs that an administrative agency, board, or commission conduct further proceedings with respect to such action, the clerk of the trial court shall forthwith remand the action to the administrative agency, board, or commission before which said action originated without further order of the trial court.
35 (f) No mandate shall be required to effectuate the final decision of an appellate court, whether entered by order or by opinion.
7. Effective Date of Orders and "Opinions and Orders." Unless otherwise directed, all orders of an appellate court, including those in original proceedings under KAP 60, are effective upon entry and filing with the clerk. A decision or ruling styled an "Opinion and Order" is an order. As set forth in KAP 40(c), the court may suspend the effectiveness of certain orders.
8. Clerical Corrections. The Supreme Court may, on the court's own motion, make clerical corrections to an opinion that do not change its substance until the opinion becomes final. The Court of Appeals may, on the court's own motion, make clerical corrections to an opinion that do not change its substance until the 21st day after the opinion is rendered, unless a petition for rehearing has filed and may make clerical corrections to an order or opinion and order that do not change its substance until the 11th day after the order or opinion and order is rendered, unless a petition for reconsideration has been filed. Clerical corrections under this rule do not affect the finality of the opinion, order, or opinion and order, and do not affect the deadlines for filing a petition for rehearing or reconsideration under KAP 40 or a motion for discretionary review under KAP 41.
KAP 38 Stay Pending Review by United States Supreme Court. {CR 76.44}
The taking of an appeal to the Supreme Court of the United States or the filing in that court of a petition for review on a writ of certiorari does not affect the finality of an opinion or final order. An order staying execution or enforcement of an opinion or final order may be entered upon motion under the following conditions and circumstances and for the periods designated:
1. When an appeal is taken to the Supreme Court of the United States by the filing of a notice of appeal with the clerk of an appellate court as required by Rule 10 of the Rules of the Supreme Court of the United States and otherwise in accordance with Part IV of the Rules of that court, a stay during the pendency of the appeal may be granted on motion by any judge of the appellate court from which the appeal is taken, and shall be granted in appeals involving a sentence of death. The stay may be conditioned upon the giving of security to be fixed and approved by the judge that the appeal will be duly perfected and prosecuted as required by the Rules of the Supreme Court of the United States. If the stay is to act as a supersedeas, a supersedeas bond shall be required in accordance with Rule 18 of the Rules of the Supreme Court of the United States. (Supreme Court Rules may be found in 28 U.S.C.A. Rules, Supreme Court); and
2. When a party desires to make application for a writ of certiorari, a stay may be granted by any judge of the appellate court for such specified number of days not exceeding 90 from the date of finality of the decision, and may be conditioned upon the giving of adequate security as specified in Title 28, Section 2101(f), U.S. Code.
36 ARTICLE 7. REHEARING OR RECONSIDERATION
KAP 40 Petition for Rehearing of Opinion or Motion for Reconsideration of "Opinion and Order" or Order {CR 76.32, 76.38}
1. Scope of Rule. Any decision of an appellate court styled an "Opinion" is governed by Section (2) of this rule. Any decision or ruling styled "Opinion and Order' or "Order' is an order governed by section (3) of this rule.
2. Petition for Rehearing of Opinion.
(a) When Authorized.
(1) A party adversely affected by an opinion of the Supreme Court or Court of Appeals in an appealed case may petition the Court for (A) a rehearing or (B) a modification or extension of the opinion, or both, and the opposing party may file a response. When final disposition of an appeal is made by an order, or an "opinion and order," the party adversely affected may move for a reconsideration as provided by section (3) of this rule, but a petition for rehearing is not authorized.
(2) Except in extraordinary cases when justice demands it, a petition for rehearing shall be limited to a consideration of the issues argued on the appeal and will be granted only when it appears that the court has overlooked a material fact in the record, or a controlling statute or decision, or has misconceived the issues presented on the appeal or the law applicable thereto.
(3) When it is desired to point out and have corrected any inaccuracies in statements of law or fact contained in an opinion of the court, or to extend the opinion to cover matters in issue not discussed therein, and the result reached in the opinion is not questioned, a party may request a modification or extension.
(4) In the event a petition for rehearing is granted, a party adversely affected by the new opinion may petition for a rehearing, modification or extension under the same rules governing the original petition for rehearing, modification or extension.
(b) Time for Filing. A petition for rehearing, modification, or extension shall be filed not later than 20 days from the date on which the opinion was issued, and any response thereto shall be filed no later than 20 days from the date on which the petition was filed. Unless a timely motion for discretionary review of an opinion of the Court of the Appeals is filed pursuant to KAP 41, the failure of a party to timely file a petition shall result in the appeal becoming final.
3. Motion for Reconsideration of Order or "Opinions and Order."
(a) Time for Filing. Unless otherwise provided by these Rules or ordered by the court, a party adversely affected by a decision rendered by order may no later than 10 days from the date of its entry move the court to reconsider it. On ex parte motion, the court may suspend the effectiveness of such order pending disposition of the motion to reconsider.
37 (b) Motion to Reconsider Order on Motion to Dismiss. The timely filing of a motion to reconsider an order granting or denying a motion to dismiss shall suspend the running of time to the same extent as provided by KAP 7(g) with respect to the filing of a motion to dismiss.
(c) No Reconsideration of Certain Orders. Paragraph (3)(a) of this rule shall not apply to orders granting or denying transfer under KAP 15, to orders granting or denying interlocutory relief under KAP 18 or 19, or to orders granting or denying discretionary review under KAP 41. Orders granting or denying a petition for rehearing or a motion for reconsideration under this Rule will not be reconsidered.
4. Form.
(a) All petitions for rehearing of opinions and responses under section (2) above shall be in the form prescribed by KAP 33(3), but with covers colored as follows: Petition – Green; Response – Gray. All motions for reconsideration of orders or "opinions and orders" shall be in the form prescribed by KAP 7.
(b) Every petition shall bear the style of the court's opinion, shall indicate in the caption whether it is presented by the appellant or appellee, and shall include a copy of the opinion of which complaint is made.
(c) Petitions for rehearing, motions for reconsideration, and responses shall be limited to 10 pages each, exclusive of copies of the opinion.
5. Number of Copies. In the Supreme Court 10 copies (1 unbound original and 9 bound copies) shall be filed. In the Court of Appeals 5 copies (1 unbound original and 4 bound copies) shall be filed.
6. Service and Certification. Every petition for rehearing, motion for reconsideration, and response shall be served as required by KAP 33 for briefs and shall bear on the front cover a signed statement, in accordance with KAP 5, by the attorney or party that service has been made as required by this rule, which statement shall identify by name the persons so served. The name or names of the attorneys submitting a petition for rehearing, extension, modification, or reconsideration or response thereto, and responsible for its contents, shall appear at its conclusion.
7. Disposition.
(a) In the Supreme Court. A petition for rehearing or motion for reconsideration will be assigned to a justice other than the one who prepared the opinion.
(b) In the Court of Appeals. A petition for rehearing of an opinion will be assigned to a member of the panel that decided the case, other than the member who prepared the opinion.
Costs. Payment of the filing fee specified in KAP 65(2) shall be required with a petition for rehearing or modification or extension of an opinion and shall be required with a motion for reconsideration of a final order or "Opinion and Order."
38 Interplay with Motion for Discretionary Review. A motion for discretionary review will not be ruled on during the pendency of a petition for rehearing or motion for reconsideration. A party who has moved for discretionary review under KAP 41 may not file a petition for rehearing or motion for reconsideration of the same case in the court that rendered the opinion or order for which review is sought, unless the opinion or order sought to be reviewed is revised or set aside pursuant to another party's petition for rehearing or motion for reconsideration. If the order or opinion sought to be reviewed is set aside, the pending motion for discretionary review shall be dismissed without prejudice, and any party may file a subsequent motion for discretionary review of the order or opinion finally disposing of the case. The filing of a subsequent motion for discretionary review following a dismissal without prejudice under this paragraph shall not require payment of another filing fee.
KAP 41 Motion for Discretionary Review/Cross-Motion for Discretionary Review {CR 76.20, 76.21}
1. Motion for Discretionary Review
General. A motion for discretionary review by the Supreme Court of a decision of the Court of Appeals, and a motion for such review by the Court of Appeals of a judgment of the circuit court in a case appealed to it from the district court, shall be prosecuted as provided by this Rule and in accordance with the Rules generally applicable to other motions. Such review is a matter of judicial discretion and will be granted only when there are special reasons for it.
Time for Motion.
A motion for discretionary review by the Court of Appeals of a circuit court judgment in a case appealed from the district court shall be filed within 30 days after the date on which the judgment of the circuit court was entered, subject to the provisions of CR 58 and Criminal Rule 12.06(2).
A motion for discretionary review by the Supreme Court of a Court of Appeals decision shall be filed within 30 days after the date of the order or opinion sought to be reviewed unless a timely petition or motion under KAP 40 has been filed or an extension of time has been granted for that purpose, in which event a motion for discretionary review shall be filed within 30 days after the date of the order denying the petition or motion for reconsideration or, if it was granted, within 30 days after the date of the opinion or order finally disposing of the case in the Court of Appeals.
The failure of a party to file a Motion for Discretionary Review within the time specified in this rule, or as extended by a previous order, shall result in a dismissal of the Motion for Discretionary Review.
The Motion. The motion shall designate the parties as movant(s) and respondent(s), shall not exceed 15 pages in length, unless otherwise authorized by the Court, and shall contain the following:
The name of each movant and each respondent and the names and addresses of their counsel,
39 The date of entry of the judgment sought to be reviewed, or the date of final disposition by the Court of Appeals, as the case may be,
A statement of whether a supersedeas bond, or bail on appeal, has been executed,
A clear and concise statement of (A) the material facts, (B) the questions of law involved, and (iii) the specific reason or reasons why the judgment should be reviewed; and
If the motion is addressed to the Supreme Court, a statement that the movant does not have a petition for rehearing or motion for reconsideration pending in the Court of Appeals and a statement showing whether any other party to the proceeding has a petition for rehearing or motion for reconsideration pending in the Court of Appeals.
Response to Motion. Each respondent may file a response to the motion within 30 days after the motion is filed. Said response shall not exceed 15 pages in length, unless otherwise authorized by the Court. No reply to a response shall be filed.
Record on Motion. The movant shall file with each motion photocopies of the final order or judgment, any findings of fact, conclusions of law and opinion of the trial court, and any opinion or final order of the appellate court, including any decision on any petition for rehearing or motion for reconsideration. In administrative agency cases, copies of the findings of fact, conclusions of law and award or order of the administrative agency shall be filed. While no other record on the motion shall be required unless the court to which the motion is addressed so orders, the parties may attach copies of portions of the record that will assist the Court in considering the motion or response.
Form, Signing, and Number of Copies Required. The motion and the response shall be clearly readable, in black type no smaller than 12 point, single sided, and on unglazed white paper 8 ½ by 11 inches in dimension with at least a double space between lines and 1-inch margins. The motion and response shall be signed by each party or its counsel in that person's individual name, which signature shall constitute a certification that the statements of fact therein are true. Ten copies (1 unbound original and 9 bound copies) shall be filed for a motion in the Supreme Court and 5 (1 unbound original and 4 bound copies) in the Court of Appeals.
Service of Motion and Response. Upon filing, the motion and the response shall be served on the other parties and on the clerk of the court whose decision is sought to be reviewed, and such service shall be shown as provided in KAP 5.
Submission. The motion shall be submitted to the court for consideration when the response is filed or when the time for filing such response has expired, whichever is sooner.
Disposition of Motion. The denial of a motion for discretionary review does not indicate approval of the opinion or order sought to be reviewed and shall not be cited as connoting such approval.
If the motion is in the Supreme Court and is granted, the times prescribed in KAP 33 for the filing of briefs shall be computed from the date of the entry of the order granting the motion, the movant being regarded as the appellant and the respondent as the appellee.
40 If the motion is in the Court of Appeals and is granted, the appeal shall be perfected in the same time and manner as if it were an appeal as a matter of right, unless otherwise directed by the court.
A motion for discretionary review in the Supreme Court will not be ruled upon during the pendency of a petition for rehearing or motion for reconsideration in the Court of Appeals. If a party files a timely petition for rehearing or motion for reconsideration in the Court of Appeals after another party has filed a motion for discretionary review in the Supreme Court, the clerk shall withhold submission of the latter pending final disposition of the case in the Court of Appeals.
A ruling by the Court of Appeals granting or denying a motion for discretionary review will not be reconsidered by the Court of Appeals. A ruling by the Supreme Court granting or denying a motion for discretionary review will not be reconsidered by the Supreme Court. A motion for reconsideration, however styled, shall not be accepted for filing by the clerk of the Supreme Court or Court of Appeals.
Copies of the order shall be sent forthwith by the clerk of the appellate court to counsel for each party and to the clerk of the court whose decision is sought to be reviewed.
Costs. Payment of the filing fee specified in KAP 65(2) shall be required with the motion.
2. Cross Motion for Discretionary Review.
(a) Time for Motion. If a motion for discretionary review is granted, the respondent shall then be permitted 10 days thereafter in which to file a cross motion for discretionary review designating issues raised in the original appeal which are not included in the motion for discretionary review but which should be considered in reviewing the appeal in order to properly dispose of the case.
(b) Form and Response. A cross motion for discretionary review will be practiced in conformity with KAP 7, motion practice in appellate courts. Each cross respondent may file a response to the cross motion within 10 days after the cross motion is filed. No reply to a cross response shall be filed. Ten copies (1 unbound original and 9 bound copies) of any cross motion or cross response shall be filed in the Supreme Court and 5 (1 unbound original and 4 copies) in the Court of Appeals.
(c) Record on Motion. The cross-movant shall file with each motion photocopies of the final order or judgment, any findings of fact, conclusions of law and opinion of the trial court, and any opinion or final order of the appellate court, including any decision on any petition for rehearing or motion for reconsideration. In administrative agency cases, copies of the findings of fact, conclusions of law and award or order of the administrative agency shall be filed. While no other record on the motion shall be required unless the court to which the motion is addressed so orders, the parties may attach copies of portions of the record that will assist the Court in considering the motion or response.
(d) Suspension of Time. The filing of a cross motion for discretionary review shall suspend the running of time for briefing discretionary review as heretofore
41 granted, and the full time for briefing shall be computed from the date of the order granting or denying the cross motion for discretionary review.
(e) Briefing if Cross-Motion Granted. If the cross motion for discretionary review is granted, the moving party shall brief the new issues thus raised in this brief responding to the brief on behalf of the original movant, and the original movant shall then be permitted to reply to these further issues in the reply brief permitted by KAP 33.
ARTICLE 8. APPEALS FROM DISTRICT COURT
KAP 42 From District Court {CR 72.02, 72.04, 72.06, 72.08, 72.10, 72.12, 72.13, 73.02(1)(c)}
1. When and How Taken
(a) Appeals from the district court to the circuit court in civil cases shall be taken by filing a notice of appeal in the district court and paying the required filing fee. The filing fee required by KRS 23A.210 or 23A.205(1) shall be paid to the clerk of the district court at the time the notice of appeal or cross-appeal is filed, and the notice shall not be docketed or noted as filed until such payment is made.
(b) Two or more persons entitled to appeal may file a joint notice of appeal, or may later join in appeal, if practicable, after filing separate notices of appeal and they shall thereafter proceed as a single appellant.
(c) KAP 3, 4, 5, and 55 apply to appeals from the district court to the circuit court except when otherwise provided in statutes creating special remedies, including but not limited to:
Remedy Statute Time to File Notice of Appeal
Small Claims Statute KRS 24A.340 10 days; Paternity Statute KRS 406.051 60 days; Forcible Entry and Detainer KRS 383.255 7 days.
2. Record on Appeal from District Court. The record on appeal to the circuit court shall consist of the entire original record of proceedings in the district court, including untranscribed electronic recordings made under the supervision and remaining in the custody of the district court or clerk. It need not be certified unless and until the Court of Appeals grants a motion for review of the final action of the circuit court disposing of the appeal.
42 3. Perfecting Appeals and Cross-Appeals from District Court
(a) To perfect an appeal from the district court the appellant shall file with the clerk of the circuit court the statement of appeal required by paragraph (5).
(b) To perfect a cross-appeal from the district court the party taking it shall file with the clerk of the circuit court the counterstatement required by paragraph (6).
4. Time to Perfect Appeal from District Court. An appeal from the district court must be perfected no later than 30 days from the date of filing the first notice of appeal.
5. Statement of Appeal from District Court
(a) A party or parties appealing from the judgment or a final order of the district court shall file with the clerk of the circuit court and serve on the appellee or appellees a statement of appeal signed by counsel for the appellant and setting forth:
The style of the case and the district court docket number;
The name, mailing address, and telephone number of each attorney whose appearance is entered in the case, together with the name of the party represented by the attorney;
The name of the district judge who presided over the matter being appealed;
The date on which the notice of appeal was filed and the date on which any notice of cross-appeal was filed;
A statement as to whether the matter has been before the circuit court on any previous occasion and whether reference to the record of the prior appeal is necessary;
The type of litigation;
A statement as to whether the appellant wants an oral argument;
A fair and accurate summary of the evidence heard by the district court, or a statement that the appeal does not require consideration of the evidence;
A concise statement of the legal questions and propositions on which the appellant relies for a reversal of the judgment, with citations of pertinent authority;
A concise statement of the relief to which the appellant contends he/she is entitled.
b) In a criminal case appealed from district court to circuit court, a statement of appeal shall be served upon both the county attorney and the Commonwealth's attorney.
6. Appellee's counterstatement. No later than 30 days from the date on which the appellant's statement of appeal from the district court was filed the appellee shall file and serve a counterstatement, not exceeding 10 pages, signed by counsel for the appellee and setting forth:
43 (a) A statement of whether the appellee or cross-appellant wants an oral argument;
(b) A statement of whether the appellant's summary of the evidence is accepted and, if not, a fair and accurate counterstatement of the evidence in question; and
(c) A response to the appellant's statement of legal points and propositions.
7. Costs. Costs on appeal shall be borne by the unsuccessful party or parties, except, however, that in criminal cases no reimbursement shall be required of the Commonwealth or a municipality. Liability for reimbursement of costs may be enforced on motion without the necessity of an independent action.
ARTICLE 9. SPECIAL APPEALS
KAP 44 Family Court Appeals –
RESERVED
KAP 46 Appeals from Workers' Compensation Board {CR 76.25}
1. General. Pursuant to Section 111(2) of the Kentucky Constitution and SCR 1.030(3), decisions of the Workers' Compensation Board shall be subject to direct review by the Court of Appeals in accordance with the procedures set out in this Rule.
2. Time for Petition. No later than 30 days from the date upon which the Board enters its final decision pursuant to KRS 342.285(3), any party aggrieved by that decision may file a petition for review with the Clerk of the Court of Appeals and pay the filing fee required by KAP 65(2). Failure to file the petition and pay the filing fee within the time allowed shall require dismissal of the petition.
3. Format. Five copies (1 unbound original and 4 bound copies) of the petition shall be filed with the Clerk of the Court of Appeals. All petitions and responses shall be in the form prescribed by KAP 33(3), but with covers colored as follows: Petition – Red; Response – Blue.
4. Contents of Petition. The petition shall designate the parties as appellant(s) and appellee(s) and shall contain the following:
(a) The name and address of each appellant and each appellee and the names and addresses of their respective counsel. The appellant shall specifically designate as appellees all adverse parties and the Workers' Compensation Board.
(b) The petition shall state the date of the entry of the decision by the administrative law judge and the date of entry of the final decision of the Workers' Compensation Board.
(c) Each petition shall begin with a table of points and authorities stating the issues to be raised. The petition shall contain a clear and concise statement of (1) the
44 material facts, (2) the questions of law involved, and (3) the specific reason(s) why relief from the Board's decision should be granted by the Court of Appeals. The petition shall be prepared with the expectation that it will be the only pleading filed by the petitioner in the appeal and shall be limited to 25 pages, excluding cover, table of points and authorities, and attachments.
(d) Copies of the following documents shall be attached to each copy of the petition filed in the Court of Appeals: (1) the decision of the administrative law judge, (2) the final decision of the Workers' Compensation Board, and (3) a set of the briefs filed with the Board by the appellant and each appellee. If review is sought of a decision on a motion to reopen, copies of the motion, any responses thereto, and decisions on that motion by the administrative law judge and the Board shall be attached. The petition shall clearly state whether there is or is not any other action concerning the injury pending before any other state or federal court or administrative body.
5. Record. Upon receipt of the petition, the Clerk of the Court of Appeals will request that the original record of the Workers' Compensation Board be prepared by the board in conformity with KAP 25 and 27, certified no later than 30 days from the date of the request, and transported forthwith to the office of the Clerk of the Court of Appeals.
6. Response to Petition. Each appellee may file 5 copies (1 unbound original and 4 bound copies) of a response to the petition no later than 30 days from the date on which the petition was filed with the Court of Appeals. A response shall not exceed 25 pages. No reply to the response shall be filed.
7. Certification and Service.
(a) The petition and the response shall be signed by each party or his counsel and that signature shall constitute a certification that the statements therein are true and made in good faith.
(b) Upon filing, a copy of the petition and any response shall be served on counsel of record, or on any party not represented by counsel, and on the Workers' Compensation Board. Such service shall be certified on the petition or response pursuant to KAP 5. In any case in which the constitutionality of a statute is questioned, a copy of the petition and response shall be served on the Attorney General by the party challenging the validity of the statute. The Attorney General may file an entry of appearance no later than 10 days from the date of such service. If no entry of appearance is filed, no further pleadings need be served on the Attorney General.
8. Cross-Petition and Response.
(a) Any party designated as an appellee may file a cross-petition no later than 30 days from filing of the petition. The cross-petition shall state the name of each cross-appellant and each cross-appellee and the names and addresses of their respective counsel. The cross-petition shall contain a clear and concise statement of the issues that the cross-appellant seeks to raise and any material facts relevant to those issues not presented in the petition.
(b) Any cross-appellee may file a response to the cross-petition no later than 30 days from the filing of the cross-petition.
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(c) Five copies (1 unbound original and 4 bound copies) of the cross-petition and response shall be filed with the Clerk of the Court of Appeals. A combined cross- petition and response shall not exceed 40 pages.
(d) Cross-petitions and responses shall be signed and served in accordance with paragraph (6) of this rule, with colored covers and binding in accordance with paragraph (3) of this Rule.
9. Submission. The petition, any responses, cross-petitions, and the record shall be submitted to the Court of Appeals for review, and the matter shall proceed further as directed by order of the Court of Appeals. The court may order the filing of briefs under KAP 33 or direct that the appeal be submitted for decision based only upon the petition and response.
10. Disposition. After the Court of Appeals issues a decision, the Clerk shall send a copy of the decision to counsel for each party and to the Workers' Compensation Board.
11. Procedure for Further Review. Further review may be sought in the Supreme Court of a final decision or final order of the Court of Appeals in a Workers' Compensation matter, and shall be prosecuted in accordance with the rules generally applicable to other appeals pursuant to KAP 60.
KAP 48 Election Appeal
Orders of the circuit court in challenges to the bona fides of candidates for election, in primary election contests, and in contests concerning the results of general elections are subject to appellate review as provided in KRS 118.175(4), KRS 120.075, and KRS 120.175, respectively.
KAP 50 Review of Circuit Court Decisions Concerning Bail {RCr 4.43, 12.78, 12.82}
1. Appellate Review of Bail Pending Trial.
(a) Any defendant aggrieved by a decision of the circuit court on a motion to change the conditions of bail pending trial may appeal that decision to the Court of Appeals under the procedures provided by RCr 4.43(1).
(b) As provided by RCr 4.43 (2), the writ of habeas corpus remains the proper method for seeking circuit court review of the action of a district court respecting bail.
2. Appellate Review of Bail on Appeal. An appellant aggrieved by a circuit court decision under RCr 12.78, may seek review in the appellate court by motion for intermediate relief in the appeal of the conviction pursuant to RCr 12.82.
KAP 52 Habeas Appeal
UNDER CONSTRUCTION
46 KAP 54 Proceeding In Forma Pauperis and Requesting Counsel on Appeal
UNDER CONSTRUCTION
KAP 55 Appeal of the Denial of In Forma Pauperis
UNDER CONSTRUCTION
ARTICLE 10. ORIGINAL ACTIONS
KAP 60 Original Proceedings in Appellate Court {CR 76.36, 81}
1. Scope. Original proceedings in an appellate court may be prosecuted only against a judge or agency whose decisions may be reviewed as a matter of right by that appellate court. All other actions must be prosecuted in accordance with applicable law.
2. Petition and Filing Fee. An original proceeding in an appellate court may be prosecuted upon the payment of the filing fee required by KAP 65(2) and the filing of a petition setting forth:
(a) The name of each respondent against whom relief is sought;
(b) The name of each real party in interest and that party's counsel. The real party in interest is any party in the circuit court action from which the original action arises who may be adversely affected by the relief sought;
(c) The style and the file number of the underlying action before the respondent(s);
(d) The relief sought;
(e) A clear and concise statement of (1) the material facts, (2) the questions of law involved with citations of authority pertinent to each issue of law, and (3) the specific reason(s) why relief should be granted. The petition shall be prepared with the expectation that it will be the only pleading filed by the petitioner in the original action;
(f) A copy of any order or opinion, parts of the record, and any recorded hearings necessary for a decision; and
(g) Proof of service as required by KAP 5.
3. Response. The party against whom relief is sought and real party in interest as defined in this rule, section (2)(b) above, may within 20 days after the date of filing of the petition file a response bearing proof of service as required by KAP 5.
4. Form. All petitions and responses under section (2) above shall be in the form prescribed by KAP 33(3) for briefs, but with white covers.
5. Evidence. Evidence in support of or against the petition, other than that which may be attached to the petition and response in the form of exhibits, affidavits, and counter-affidavits, will be permitted only by order of the court, and it shall be in the form
47 of affidavits or depositions taken in accordance with the Rules of Civil Procedure applicable to proceedings in trial courts. Oral testimony will not be heard in the appellate court.
6. Relief Previously Available by Common Law Writs. Relief previously available by the remedies of mandamus, prohibition, scire facias, quo warranto, or of an information in nature of quo warranto, may be obtained by original action in the appropriate court.
7. Appeals to the Supreme Court.
(a) An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals.
(b) The notice of appeal and the filing fee required by KAP 60 shall be filed with the Clerk of the Court of Appeals within 30 days after the date the judgment or order appealed from was entered and shall conform to the requirements of KAP 2 and 3. A cross-appeal may be taken in the time and manner specified by KAP 4 except that the notice of cross-appeal and filing fee shall be timely filed with the Clerk of the Court of Appeals.
(c) To perfect the appeal the appellant shall, within 30 days after filing a notice of appeal, file with the Clerk of the Supreme Court a brief setting forth argument for reversal or modification of the judgment or order from which the appeal is taken. In workers' compensation cases, briefing shall proceed according to KAP 46.
(d) The brief shall be signed by counsel for the appellant, shall be served on all other parties to the appeal, and upon the clerk of the Court of Appeals, and shall set forth the following information:
(1) The names and addresses of each appellant, appellee, counsel for each appellant and appellee, and the trial judge.
(2) The date the judgment or order appealed from was entered;
(3) The date the notice of appeal was filed;
(4) Whether a notice of cross-appeal has been filed; and
(5) Any exigent reasons that necessitate immediate consideration of the appeal. (e) When the appeal has been perfected and entered in the docket book, the clerk of the Supreme Court shall forthwith mail notice of the date of such entry to the attorneys for the parties as shown on the statement of appeal.
(f) To perfect a cross-appeal, within 30 days after the mailing of the clerk's notice mentioned in the preceding subparagraph (e) of this Rule, or within 30 days after expiration of the time allowed for the appellant to perfect the appeal, whichever is the sooner, the party taking the cross-appeal shall file with the clerk of the Supreme Court a brief setting forth the arguments for reversal or modification of the judgment or order from which the cross-appeal is taken and against the relief sought by the appellant.
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(g) The statement of cross-appeal shall be signed by counsel for the cross- appellant, shall be served on all other parties to the appeal and upon the clerk of the Court of Appeals, and shall set forth the following information:
(1) The names and addresses of each cross-appellant and cross- appellee and counsel for each cross-appellant and cross-appellee; and
(2) The date the notice of cross-appeal was filed.
(h) Briefs in response to an appeal or cross-appeal shall be required. Such briefs shall be filed in accord with the provisions of KAP 33. Where an appeal is taken against a judge in the Court of Justice and concerns performance of an official act, the party appealing shall serve notice on the real party in interest as defined in this Rule, who shall then be required to file a brief on behalf of the judge against whom the appeal or cross-appeal is taken; provided, however, no attorney shall be required or permitted to file such a brief where to do so would conflict with the interest of his client.
(i) The clerk of the Court of Appeals shall transmit all or any portion of the original record of the proceedings to the Supreme Court when so requested by the clerk of that court.
8. Intermediate or Emergency Relief in the Appellate Courts.
(a) Intermediate Relief in the Court of Appeals. If the petitioner requires any relief within 20 days of the date of filing the petition, the petitioner may move the Court of Appeals for a temporary order on the ground that the petition will suffer immediate and irreparable injury before a ruling may be had on the petition. Appellate review of an order granting or denying intermediate relief under this paragraph may be sought under the same procedure as that provided under KAP 18 concerning review of orders regarding injunctions. Further proceedings in the Court of Appeals shall not be stayed unless ordered by the Supreme Court.
(b) Emergency Relief in the Court of Appeals. If a party will suffer immediate and irreparable injury before a motion for intermediate relief will be heard by a panel, that party may file a motion for emergency relief under KAP 19(4).
(c) Review by Supreme Court. Appellate review of an order granting or denying intermediate or emergency relief under paragraphs (8)(a) or (b) may be sought under the same procedure as that provided under KAP 18(12)(d) concerning review of orders regarding injunctions. Further proceedings in the Court of Appeals shall not be stayed unless ordered by the Supreme Court.
ARTICLE 11. COSTS AND FEES
KAP 65 Costs and Filing Fees {CR 76.42}
1. Costs Taxable. Except for a filing fee, no costs shall be taxed in proceedings in the Supreme Court and Court of Appeals unless otherwise ordered by the Court.
49 2. Filing Fees.
(a) Filing fees for docketing the following in the Court of Appeals or in the Supreme Court shall be:
(1) Appeal, cross appeal or certification of law $150
(2) Appeals or cross appeals from Circuit Court, Family $75 Division, to the Court of Appeals, from orders determining:
(A) Paternity
(B) Dependency, neglect or abuse
(C) Domestic violence
(D) Juvenile status offense
(3) Motion for transfer $150
(4) Motion or cross-motion for discretionary review $150
(5) Petition for rehearing, modification or extension of $150 opinion
(6) Motion for leave to file amicus curiae brief $150
(7) Motion for relief under Rules 65.07 or 65.09 $150
(8) Original proceeding $150
(9) Motion for reconsideration of a final order or $150 "Opinion and Order" under Rule 76.38
(10) Petition or cross-petition for review of a decision by $150 the Workers' Compensation Board
(b) No filing fee shall be payable in a criminal proceeding in which the appellant or appellants are represented by the Public Advocate. No filing fee shall be payable by the Commonwealth in criminal proceedings, but in civil actions it shall be liable for reimbursement of costs as provided by paragraph (3) of this Rule to the same extent as any other unsuccessful party. Judicial officers of the Court of Justice who are litigants in their official capacities shall not be liable for reimbursement or for the payment of filing fees except as may be required by the Supreme Court in actions arising under Rule 4 (Judicial Retirement and Removal Commission).
3. Collection. The costs of each appeal or original action shall be borne by the unsuccessful party or parties. Liability for reimbursement of costs may be enforced on motion without necessity of an independent proceeding.
50 KAP 66 Bonds in Civil Appeals {CR 62.03, 73.04, 73.06, 73.07, 81A}
1. Stay Pending Appeal of Judgment Other than Injunction Judgment.
(a) When an appeal is taken the appellant may stay enforcement of the judgment by giving a supersedeas bond as provided in this rule. The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court or the clerk, and the clerk shall give prompt notice of such approval to the party or parties in whose favor the judgment was rendered.
(b) If the appellant is a governmental unit exempted from the execution of a bond under the provisions of paragraph (5) of this rule, the filing of a notice of appeal by such party shall stay enforcement of the judgment as to it in all cases where the giving of the supersedeas bond would effect such a stay.
2. Supersedeas Bond.
(a) Whenever an appellant entitled to a stay desires a stay on appeal, the appellant may present to the clerk or the court for approval an executed supersedeas bond with good and sufficient surety. The address of the surety shall be shown on the bond. The bond shall be in a fixed amount and conditioned for the satisfaction of the judgment in full together with costs, interest, and damages for delay, if the appeal is dismissed or if the judgment is affirmed, and to satisfy in full such modification of the judgment and such costs, including costs on the appeal and interest as the appellate court may adjudge.
(b) When the judgment is for the recovery of money not otherwise secured, the amount of the bond shall be fixed at such sum as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay, unless the trial court after notice and hearing and for good cause shown fixes a different amount or orders security other than the bond.
(c) When the judgment determines the disposition of the property in controversy as in real actions or replevin, or when such property is in the custody of the sheriff, or when the proceeds of such property or a bond for its value is in the custody or control of the court, the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay. A supersedeas bond may be given to stay proceedings on a part of a judgment, and in such case the bond need only secure the part superseded.
3. Failure to File or Insufficiency of Supersedeas Bond.
(a) The sufficiency of the bond or the surety may be determined by the trial court upon motion and hearing.
(b) During an appeal, the trial court shall retain original jurisdiction to determine all matters relating to the right to file a supersedeas bond, the amount and sufficiency thereof and the surety thereon.
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4. Judgment Against Surety. By entering into a supersedeas bond, the surety submits to the jurisdiction of the court with which the bond is filed and liability may be enforced on motion without the necessity of an independent action. The motion shall be served on the surety as provided by CR 5 at least 20 days prior to the date of the hearing.
5. Exemption of Governmental Units from Giving Bond. Whenever a bond is or may be required by these rules in order to take any proceeding, to indemnify any party, or to stay proceedings under or the enforcement of a judgment, such requirement shall not apply to the United States, the commonwealth or any of its municipal corporations or political subdivisions, or any of their agencies or officers acting for or on their behalf. Unless otherwise exempted by law such governmental unit shall be obligated to the same extent as if it had given the bond required.
ARTICLE 12. COPIES
KAP 68 Number of Documents Required For Docketing
1. Number of Documents Required for Docketing. The required number of documents for docketing in the Court of Appeals and Supreme Court shall be:
Supreme Court of Rule Court Appeals References
(a) Motion to transfer 10 N/A KAP 15
(b) Certification of Law 10 N/A KAP 16
(c) Motion for relief from order re 10 5 KAP 18 injunction
(d) Prehearing Conference Statement N/A 1 KAP 21
(e) Briefs 10 5 KAP 33
(f) Petition for rehearing 10 5 KAP 40
(g) Motion for reconsideration 10 5 KAP 40
(f) Motions and cross-motions for 10 5 KAP 41 discretionary review
(g) Petition for review workers' N/A 5 KAP 46 compensation proceedings
(i) Original proceedings 10 5 KAP 60
52 2. Untabbed Original. One copy shall be left untabbed and unbound and considered the original.
53
54
55
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