Ky. Sup. Ct. Order 2022-49 art. II

RAP 2 Appeal as of Right—How Taken

(A) Filing the Notice of Appeal.

(1) All appeals shall be taken by filing a notice of appeal in the

court from which the appeal is taken within the time allowed by RAP 3.

Appeals in civil proceedings shall be taken to the next higher court.

Appeals in criminal proceedings shall be taken to the next higher court,

except that an appeal from a judgment imposing a sentence of death, life

imprisonment, or imprisonment for 20 years or more shall be taken

directly to the Supreme Court. 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, an appellee or cross-appellee may file a notice of cross-appeal as

allowed by RAP 4. 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

RAP 17. 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 RAP

44.

(2) Upon timely filing of the notice of appeal from a final and

appealable order on all claims in an action, all parties to the proceedings

from which the appeal is taken, except those who have been dismissed in

an earlier final and appealable order, shall be parties before the appellate

court. Upon timely filing of the notice of appeal from a final judgment or

order on less than all claims or parties as permitted by CR 54.02(1), all

parties against whom that judgment or order has been made final and

appealable shall be parties before the appellate court. The timely filing of

a notice of appeal is jurisdictional. The failure to comply with any other

rules of appellate procedure, or any order of court, does not affect the

validity of the appeal, but is ground for such action as the appellate

court deems appropriate as set forth in RAP 10.

(3) 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.

(4) Where a statute or another court rule grants a right of

appeal to the Court of Appeals, the Kentucky Rules of Appellate

Procedure shall govern the taking of the appeal, unless in conflict with

the statute or other court rule.

(B) Contents of the Notice of Appeal.

(1) The notice of appeal shall: (a) specify the party or parties

taking the appeal; (b) identify, including specifying the date of, the

judgment, order, or part thereof appealed from; and (c) contain a

certificate that a copy of the notice has been served upon counsel for all

parties to the proceedings from which the appeal is taken, or, if a party is

unrepresented, upon the party at the party’s last known address.

(2) The notice of appeal should also: (a) attach a copy of the

judgment or order appealed from to the notice of appeal; (b) identify the

court to which the appeal is taken; (c) specify all parties to the

proceedings from which the appeal is taken, other than the appellant,

and counsel representing them; and (d) specify the date of entry of and

attach a copy of any orders on post-trial motions under CR 50.02, CR

52.02, or CR 59 that tolled the running of time for filing the appeal.

(C) Clerk’s Service of the Notice of Appeal.

(1) When the notice of appeal is filed, the clerk shall serve notice

of its filing by delivering 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 counsel of record of each party to the proceedings from which

the appeal is taken or to the party, if unrepresented.

(2) 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.

(D) Criminal Appeals. An appeal from a judgment imposing a

sentence of death, life imprisonment, or imprisonment for 20 years or

more shall be taken directly to the Supreme Court.

(E) 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 (1) lack of jurisdiction over the person, (2) improper

venue, (3) insufficiency of process, or (4) insufficiency of service of

process, shall not constitute an entry of appearance by the appellant in

any court.

(F) Joint or Consolidated Appeals.

(1) 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.

All parties to the joint notice of appeal, or the party’s attorney, must sign

the notice of appeal pursuant to RAP 11.

(2) 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.

(G) 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 order or multiple opinions or orders in appeals

designated to be heard together. If the appellate court issues a single

opinion or order, the parties may proceed as if the several appeals are a

single appeal or may proceed as if they are several appeals.

(H) 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 pauper and unable to

pay the filing fee, a motion to proceed in forma pauperis shall be tendered

with the notice of appeal as provided in RAP 54, which governs motions

to proceed in forma pauperis. No filing fee is required from the

Commonwealth or from a public defender representing a person as set

forth in RAP 54(B).

RAP 3 Appeal as of Right—When Taken

(A) Time for Filing Notice of Appeal.

(1) 30 days to appeal, unless another time applies. Unless a

statute or court rule provides a different time, the notice of appeal

required by RAP 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 appealed from.

(2) Date from which time to appeal begins to run. The date

of notation of service of the judgment or order under CR 77.04(2) or RCr

12.06 shall be the date for the purpose of fixing the running of the time

for appeal under this rule.

(3) Effect of motion to proceed in forma pauperis. If the

notice of appeal is timely tendered and accompanied by a motion to

proceed in forma pauperis as provided in RAP 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. If the motion is

denied, the party shall have 30 days within which to pay the filing fee or

to appeal the denial to the appropriate appellate court.

(B) 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.

(C) Failure to Serve or Receive Notice of Judgment. Failure of the

trial court to require service of notice of entry of any judgment or order

under this rule, failure of the clerk to serve such notice, or failure of a

party to receive notice shall not affect the validity of the judgment or

order, and does not affect the time to appeal or relieve or authorize the

court to relieve a party for failure to appeal within the time allowed,

except as permitted in section (E) of this rule.

(D) Extension of Time for Appeal and Other Remedies. 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. This is in

addition to any other remedies that may be available, including but not

limited to, relief available pursuant to CR 60.02, and any relief

recognized by case law or other rule.

(E) Effect of a Motion on a Notice of Appeal.

(1) In a criminal case, if a timely motion has been made for a

new trial, an appeal from a judgment of conviction may be taken within

30 days after the date of entry of the order denying the motion. If,

however, a motion for new trial was made more than 5 days after return

of the verdict, the appeal must be from the order overruling or denying

the motion, and the review on appeal shall be limited to the grounds

timely raised by the motion as provided by RCr 10.06.

(2) 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. No motions filed under any other

civil rule will toll the time to file a notice of appeal.

(3) If a party files a notice of appeal after the date of the docket

notation of service of judgment in paragraph (A)(2) above, but before

disposition of any timely motions under CR 50.02, CR 52.02, or CR 59,

the trial court retains jurisdiction to rule on the motion. The appellant

shall promptly move the appellate court to hold the appeal in abeyance

pending a decision on such motion. When the trial court has entered an

order disposing of the motion, the appellant shall promptly file a copy

with the clerk of the appellate court.

(4) A party intending to challenge an order disposing of any

motion listed in paragraphs (E)(1) or (2) of 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 RAP 2, within the time

prescribed by this rule measured from the date of the RAP 3(A)(2) docket

notation regarding service of the order disposing of the last such

remaining motion.

(5) No additional fee is required to file an amended notice of

appeal.

RAP 4 Cross-Appeals

(A) Who may take. Any party that is a party to the appeal pursuant

to RAP 2(A)(2) may take a cross-appeal from a judgment of the trial court.

A cross-appeal shall be denominated as such. 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.

(B) 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.

(C) Parties. A cross-appellant may identify as cross-appellee any

party to the circuit court action against whom relief is sought on the

cross-appeal. Absent the filing of a cross-appeal, a party may not attack

a judgment or order with a view either to enlarging that party’s rights or

of lessening the rights of that party’s adversary.

(D) Contents of the Notice of Cross-Appeal. The notice of cross-appeal shall conform to RAP 5, shall contain the information identified in

RAP 2(B)(1), and should contain the information identified in RAP 2(B)(2).

(E) Additional Cross-Appeal. Any party that is a party to the appeal

pursuant to RAP(A)(2) 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 seeks to impact that party’s rights.

(F) Payment of Fees. At the time a cross-appeal is tendered, the

cross-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 as provided in RAP 54 shall be tendered with

the notice of cross-appeal.

(G) Clerk’s duty. When the notice of cross-appeal is filed, the clerk

shall serve notice of its filing in accordance with RAP 2(C).