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NOT TO BE PUBLISHED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 The Daniels do not cite to the record where such evidence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.
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Here is extract of CR 76.12(4)(c) ----
