This week's Minutes from the Kentucky Court of Appeals dismissed an appeal for appellants' counsel's failure to comply with CR 76.12(4)(c). " After our review of the parties’ arguments, we decline to review the merits of said arguments, as the Appellants’ brief does not comply with CR 76.12(4)(c). Accordingly, we affirm the Magoffin Circuit Court."
Serious decision, serious result, serious consequences. Take note. Read the rules!
Here is a short squib from that opinion:
752. Appeal dismissed for failure of brief to comply with CR 76.12(4)(c). Not a pro se brief!
Civil Procedure. Dismissal for lack of prosecution.
DANIEL (LAQUATA GASPARAC), ET AL.
VS.
GREEN (THOMAS), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
VANMETER (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2009-CA-000663-MR
NOT TO BE PUBLISHED
MAGOFFIN
CAPERTON, JUDGE: Laquata Gasparac Daniel and Roy Daniel (hereinafter
“the Daniels”) appeal from the March 30, 2009, order of the Magoffin
Circuit Court which dismissed the Daniels’ cause of action with
prejudice for a lack of prosecution and adopted the recommended findings
of fact and conclusions of law submitted by the special commissioner.
After our review of the parties’ arguments, we decline to review the
merits of said arguments, as the Appellants’ brief does not comply with
CR 76.12(4)(c). Accordingly, we affirm the Magoffin Circuit Court. * * *
After our review of the parties’ arguments, we decline to review the
merits of said arguments, as the Appellants’ brief does not comply with
CR 76.12(4)(c).
First, the Daniels do not inform this Court as to whether the claimed
evidence or theory which supports their case was ever presented to the
trial court. The Daniels do not cite to the record where such evidence
or theory was presented, nor do they address whether the claimed error
was preserved for appeal.
It is the responsibility of the Appellants to provide this Court with
citation to the record supporting their arguments and to present to this
Court how the claimed error was preserved for appeal. CR
76.12(4)(c)(v). It is not the function of this Court to scour the vast
record on appeal in order to plead the Appellants’ case for them.1
See Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). See
also CR 76.12(4)(c)(iv) and (v). It is also the responsibility of an
appellant to ensure the record on appeal is complete and contains all of
the evidence needed to facilitate appellate review, and in the absence
of a complete record, we must assume the omitted portions of the record
support the rulings of the trial court. Commonwealth v. Thompson, 697
S.W.2d 143, 145 (Ky. 1985).
Accordingly, we decline to address these arguments as we are unclear if
these arguments or the evidence were presented to the trial court or
preserved for appellate review. See Jewell v. City of Bardstown, 260
S.W.3d 348, 350-351 (Ky.App.2008)(“The circuit court did not address any
of these issues in reaching its decision. We only review decisions of
the lower courts for prejudicial error, consequently, without a ruling
of the lower court on the record regarding a matter, appellate review of
that matter is virtually impossible.”) and Shelton v. Commonwealth, 992
S.W.2d 849, 852 (Ky.App.1998)(“[A]n appellate court will not consider a
theory unless it has been raised before the trial court and that court
has been given an opportunity to consider the merits of the theory.”).
In light of the foregoing, we affirm the Magoffin Circuit Court.
=======================================
Here is extract of CR 76.12(4)(c) ----
(c) Organization and contents-Appellant's brief. The organization and contents of the appellant's brief shall be as follows:
(i) A brief "INTRODUCTION" indicating the nature of the case, and not exceeding two simple sentences, such as, "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."
(ii) 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. The appellant's statement is not binding on the Court and does not preclude a party's right to file a motion to reconsider the Court's ruling that oral argument will be dispensed with. Failure to include a statement concerning oral argument will be treated as indicating that appellant does not desire oral argument in the appeal.
(iii) 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 the respective pages of the brief on which the argument appears and on which the authorities are cited.
(iv) A "STATEMENT OF THE CASE" consisting of a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary.
(v) An "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to 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.
(vi) A "CONCLUSION" setting forth the specific relief sought from the appellate court.
(vii) An "APPENDIX" with appropriate extruding tabs containing 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 any pleadings or exhibits to which ready reference may be considered by the appellant 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 the documents may be found in the record. 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. 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. In workers' compensation cases the appendix shall include the opinions of the Administrative Law Judge, the Workers' Compensation Board and the Court of Appeals.
(viii) Any "INDEX" the appellant may wish to provide.
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