REDRAFTING KENTUCKY'S APPELLATE RULES: A ROUNDTABLE DISCUSSION

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1 REDRAFTING KENTUCKY'S APPELLATE RULES: A ROUNDTABLE DISCUSSION CLE Credit: 1.5 Friday, June 21, :10 a.m. - 11:25 p.m. Combs-Chandler Room Galt House Hotel Louisville, Kentucky

2 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. Printed by: Kanet Pol & Bridges 7107 Shona Drive Cincinnati, Ohio Kentucky Bar Association

3 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

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5 THE PRESENTERS Justice Lisabeth Hughes Abramson Supreme Court of Kentucky Jefferson County Judicial Center 800 West Jefferson Street, Suite 1000 Louisville, Kentucky 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 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 She first served as a Court of Appeals judge from 1997 to 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 (502) jeannedanderson@yahoo.com 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 Chair of the Kentucky Bar Association Appellate Advocacy Section. i

6 Bethany A. Breetz Stites & Harbison, PLLC 400 West Market Street, Suite 1800 Louisville, Kentucky (502) 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 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 ( ) 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 (502) ksales@bubalolaw.com 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

7 Kathleen K. Schmidt Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky (502) 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. iii

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9 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

10 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 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 wellorganized 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

11 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 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, bbreetz@stites.com Jeanne Anderson, jeanne.anderson@ag.ky.gov Susan Clary George Fowler David Niehaus Ken Sales, ksales@bubalolaw.com Kathleen Schmidt, kathleen.schmidt@ky.gov Kevin Smalley Ann Swain Kirk Tolle 3

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13 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), When Taken 73.02(1)(a), (d), and (e) 4 Cross-Appeals 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, Substitution Failure to Comply 73.02(2) 11 Frivolous Appeal/ Obligation of Counsel 11, 73.02(4) 3 Preliminary 15 Transfer Certification Relief from Order re Injunction 19 Intermediate Relief 21 Prehearing Procedure , 65.08, 65.09, 76.33, Record on Appeal 25 Record on Appeal 75.01, 75.06, 75.07, 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, Access to Record 5

14 5 Briefs 33 - Briefs 76.12, 98(4) 6 Disposition 35 - Submission Oral Argument Opinions 76.28, Stay Pending U.S. S.Ct. Review 7 Reconsideration 40 Rehearing/ Reconsideration , Discretionary Review 76.20, District Court 42 Appeals from District Court 72.02, 72.04, 72.06, 72.08, 72.10, 72.12, 72.13, 73.02(1)(c) 9 Special Appeals 44 Family Court Reserved 46 Workers Comp Elections Statutes re elections 50 Bail Appeal RCr 4.43, 12.78, Habeas Appeal Practice and KRS Proceeding In Forma Pauperis 55 Appeal of Denial of In Forma Pauperis Based on statutes 73.02(1) and statutes 10 Original Actions 60 Original Proceedings 76.36, Costs and Fees 65 Costs and Fees Bonds 62.03, 73.04, 73.06, 73.07, 81A 12 Copies 68 Number of Documents

15 KENTUCKY APPELLATE RULES OF PROCEDURE KAP 1 Scope of Rules; Title {CR 1, 87} Scope of Rules. Title. These rules govern appellate procedure in all Kentucky courts. 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

16 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 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

17 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. 9

18 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 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

19 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 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

20 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 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 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

21 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

22 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

23 (a) (b) (c) (d) (e) (f) Awarding just damages; Awarding single or double costs to the appellee or respondent; A dismissal of the appeal or denial of the motion; Striking of pleadings, briefs, record or portions thereof; Imposition of fines on counsel of not more than $1,000; and 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

24 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) (d) the names of each appellant and appellee; and 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

25 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

26 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 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