Ky. Ct. App. Basic Appellate Practice Handbook 14

RAP 49.

Notice of Appeal

The notice of appeal is the document used to begin an appeal

taken as a matter of right. The requirements for filing the notice

of an appeal to the Kentucky Court of Appeals are generally

contained in RAP 2 and RAP 3.

The notice of appeal notifies other parties, the circuit court, and

the Court of Appeals that the appellant wishes to exercise their

constitutional right to review the circuit court’s judgment. Care

must be taken in the preparation and filing of the notice because

it will define the appeal. Some mistakes may not be correctable

later and may limit the relief the appellant can obtain.

Time

The notice of appeal must be filed on time. If the notice is not

timely filed, the only sanction provided for in the procedural rules

is dismissal of the appeal. RAP 2(A)(2).

Following final judgment, the circuit court clerk is required to send

out copies of the judgment when entered. The time for filing the

notice of appeal begins from the date on which the circuit court

clerk notes on the circuit court docket sheet that he or she served

the judgment on counsel or the litigant if pro se. RAP 3(A)(1); CR

77.04(2); Kentucky Rules of Criminal Procedure (RCr) 12.06.

The time for filing the notice of appeal is delayed if certain post-judgment motions are filed in the circuit court. This delay permits

all circuit court decisions to be completed before an appeal is

initiated. The full 30-day period runs from the date that the circuit

court clerk notes on the docket that he or she has sent out notice

of ruling on the post-judgment motions. RAP 3(E).

A party may file a notice of appeal before disposition of a post-judgment motion. RAP 3(E). The appellant shall promptly move

the appellate court to hold the appeal in abeyance pending

a decision on such motion. The notice of appeal becomes

effective when the trial court enters an order disposing of the last

remaining post-judgment motion. RAP 3(E)(3). A party intending

to file a challenge to the post-judgment order must file a notice of

appeal or an amended notice of appeal to include that order. RAP

3(E)(4).

There is one narrow situation in which an extension of time

can be obtained for the filing of the notice of appeal. If a party

does not learn of the entry of the judgment or order through

excusable neglect, that party can obtain an extension of 10 days

by filing a motion in the circuit court. RAP 3(D). The rule has been

interpreted to require that the motion, and the notice of appeal,

be filed with the circuit court within 10 days of the running of

time as originally calculated. If the motion for a 10-day extension

is granted, the notice of appeal becomes effective as of the date it

was filed. James v. James, 313 S.W.3d 17 (Ky. 2010).

Where to File

The notice of appeal must be timely filed in the office of the

circuit court clerk. The filing fee must also be paid. While there is

no prohibition against filing by mail, the notice and the fee must

be actually received in the circuit court clerk’s office on or before

the date due. The rule that allows for filing by mail in the office of

the Clerk of the Court of Appeals (RAP 5(E)) does not apply to the

notice of appeal and other documents specifically required to be

filed in the circuit court. Hand delivery to the circuit court clerk’s

office is the most certain way to ensure that the notice is timely

received and that the full amount of the filing fee is paid.

Payment of the Filing Fee

The required filing fee for the appeal must be paid to the circuit

court clerk at the time the notice of appeal is tendered (given) to

the circuit court clerk. The notice of appeal cannot be filed until

the fee is paid. RAP 2(H).

If a litigant has insufficient resources to pay the required fees, a

motion to proceed in forma pauperis must be filed in the circuit

court when the notice of appeal is tendered to the circuit court

clerk. The motion must be supported by an affidavit indicating

that the person’s poverty requires the waiver of the filing fee. The

issue of whether filing fees should be waived is initially addressed

to the circuit court. If the circuit court denies relief, a separate

appeal on that issue alone may be taken to the Court of Appeals. If

the circuit court denies in forma pauperis status, the party has 30

days to pay the filing fee or to file a notice of appeal to the Court

of Appeals on that issue alone. RAP 3(A)(3); RAP 54; RAP 55.

Designation of Parties

All parties to the appeal should be identified by name. This should

be done in the body of the notice of appeal in separate paragraphs

that list the appellants and appellees. After the filing of the

complaint, many circuit court documents will not list all parties

but instead will list only a lead party followed by the phrase “et al”

(which means “and others”) to avoid long lists of people. The term

“etc.” also is sometimes used to shorten the description of a party

to an appeal. The notice of appeal should identify all parties by

name. If a person or entity is involved in the litigation in a limited

capacity (as executor or guardian, for example), that capacity

should be included with the name.

Appellants. The notice of appeal must list all appellants

responsible for the filing of that particular notice. It must contain

a certificate of service demonstrating service of the notice 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. RAP 3(B)(1). It is important to remember that

only one appellant brief may be filed in each appeal. RAP 2(F). If

appellants or groups of appellants have separate interests that will

make it desirable to file separate briefs, separate notices of appeal

must be filed.

Appellees. In preparing a listing of appellees, the appellant must

include all parties who would be affected by the reversal of the

judgment. All such parties should be named and served. RAP 3(B)

(1)(c); RAP 3(B)(2).

Designation of Judgment

The notice of appeal must identify the circuit court judgment

the appellant wishes to have reviewed. RAP 3(B)(1)(b). This will

normally be the final judgment in the case. Because the Supreme

Court of Kentucky has adopted the standard of substantial

compliance, a mistake in designating the judgment will not result

in dismissal of the appeal if the judgment to be reviewed can be

determined with reasonable certainty from a review of the record

as a whole. Ready v. Jamison, 705 S.W.2d 479 (Ky. 1986). However,

careful and precise identification of the judgment will make it

easier for the clerks of the circuit court and Court of Appeals to set

up the records and assist the appellant in going forward with the

appeal. A copy of the judgment should be attached to the notice

of appeal. RAP 3(B)(2)(a).

Stay of the Judgment Pending Appeal

In the absence of a specific statute or rule, the filing of a notice of

appeal does not stay the enforcement of a judgment. Taustine v.

Fleig, 374 S.W.2d 508 (Ky. 1964); Hale v. Cundari Gas Transmission

Company, 454 S.W.2d 679 (Ky. 1969). Stay of the grant or denial

of a permanent injunction must be sought under the provisions

of RAP 20(C). Stay of a money judgment or of a judgment

determining the ownership of property must be obtained through

the filing of a supersedeas bond under RAP 63. In all other cases,

a stay must be sought by the filing of a motion for intermediate

relief under RAP 21.

Family Court Appeals Expedited by Rule

The Courts have established special time deadlines for cases

involving the most vulnerable. These types of cases include

appeals arising from actions concerning paternity, dependency,

abuse, neglect, domestic violence, juvenile status offense, or

involuntary termination of parental rights. Please note that

the rules impose time deadlines that are strictly enforced and

requests for additional time should be made only for extraordinary

reasons.

1. Prehearing conference procedure does not apply pursuant to

RAP 22(A)(2).

2. Reduced time for the circuit court clerk to certify the record

pursuant to RAP 26(B)(4).

3. Reduced briefing time pursuant to RAP 30(E)(1):

Unless otherwise directed by court

order, an appellant shall file a brief

with the clerk of the appellate court

no later than 30 days after the date

of the notation on the docket of the

notification required by RAP 26(B)

(5). The appellee’s response brief

shall be filed within 30 days after the

date of filing of the appellant’s brief.

An appellant may file a reply brief

within 10 days after the date of filing

of the appellee’s brief.

Prehearing Conference Procedure

The prehearing conference program was enacted to allow the

Court of Appeals to bring parties represented by counsel to a

discussion for the purpose of settling appeals.

The prehearing conference process requires the appellant to

file a statement of the case on a standard form and gives the

appellee the opportunity to file a responsive statement. A party

represented by counsel desiring a prehearing conference must

also file a motion requesting a conference along with their

statement. If no objection to the motion is filed within 10 days,

the Court will schedule a prehearing conference with the parties.

If the case cannot be settled at conference, the appeal will be

restored to the regular docket of the Court. Besides settlement, a

prehearing conference may also address certain elements of the

case to assist with disposition of the appeal. NOTE: Pro se litigants

do not qualify for a prehearing conference.

Appeals Covered by the Prehearing Conference Process

RAP 22 sets out the prehearing conference process. RAP 22(A)

(1) applies to all civil actions except appeals from prisoner

applications for relief relating to confinement or conditions of

confinement and appeals from circuit court orders determining

class action certification, appeals from findings of contempt,

paternity, dependency, abuse, neglect, domestic violence, juvenile

status offense, or involuntary termination of parental rights.

The prehearing conference process applies to cross-appeals as

well as to direct appeals. RAP 22(A)(1).

If an appellant has questions concerning the application of the

rule to a particular case, those questions may be addressed to the

Clerk of the Court of Appeals at 502-573-7920.

Timely Filing

In a case to which RAP 22 is applicable, the appellant or cross-appellant must file a prehearing statement within 20 days of

the date of the filing of the notice of appeal or cross-appeal.

RAP 22(A); RAP 22(C). Appellees and cross-appellees may file a

responsive pleading called a supplemental statement within 10

days of the filing of the prehearing statement. RAP 22(C)(4).

The time for other steps in the appeal, except the filing of a notice

of cross-appeal, the filing of a motion to transfer, and the filing

of a prehearing statement, is stayed until the Court removes the

case from the prehearing process by an order directing that no

conference will be held or by an order reciting the results of the

conference and returning the appeal to the regular appellate

process. RAP 22(B)(1)-(2).

Prehearing Statement

The prehearing statement must be filed in a form that formats

necessary information in a way that can be quickly reviewed by

Court staff. The circuit court clerk will provide the appellant or

appellant’s counsel with the form at the time the notice of appeal

is filed. RAP 22(C)(1). The form is also available online so that it

can be completed electronically and then printed for filing. Visit

www.kycourts.gov and click on “Resources” at the top of the

page. Click on “Legal Self-Help,” then on “Legal Forms.” Click on

AOC Form 070, entitled, “Kentucky Court of Appeals Civil Appeal

Hearing Statement.” One copy of the statement is filed in the

office of the Clerk of the Court of Appeals. The statement also

must be served on opposing counsel. RAP 22(C)(3).

The subsections of RAP 22(C)(1)(a)-(l) set out the information

required to be submitted on the form. Supplemental pages may

be attached if the space provided on the form is insufficient for

the information to be stated. Additionally, the form requires that

copies of the following documents be attached to the statement:

(1) the judgment from which the appeal is taken, (2) the complaint

or other pleading that began the current action, and (3) any

opinion or findings of the circuit court or administrative agency.

In preparing the statement, the appellant must be aware that

under RAP 22(C)(2), the appellant is thereafter limited to the

issues raised in the prehearing statement. Therefore, the appellant

should carefully list all issues that are expected to be raised.

Failure to do so may result in the necessity of requesting special

permission from the Court of Appeals to raise additional issues

and may prevent the appellant from raising an issue for review.

American General Home Equity, Inc. v. Kestel, 253 S.W.3d 543 (Ky.

2008).

Appellee’s Supplemental Statement

There is no form for the preparation of the appellee’s

supplemental statement under RAP 22(C)(4). The appellee should

prepare a statement in the form of a regular response, numbering

the sections of the appellant’s statement to which the appellee

is responding. One copy of the supplemental statement must be

filed with the Clerk of the Court of Appeals and the supplemental

statement must be served on opposing counsel.

Conferences & Conference Orders

Conference attorneys employed by the Court review the

prehearing statements and supplemental statements to select

appeals for which conferences will be held. In preparing their

statements, litigants represented by counsel desiring a prehearing

conference must file a motion for a prehearing conference to

consider settlement, simplification of issues, contents of the

record, the time for filing the record and briefs, and/or other

matters that may aid in the handling or disposition of the appeal.

RAP 22(D). Opposing parties may file an objection or response to

the motion within 10 days. If an objection to a conference is filed,

then the motion will be denied and the appeal will be restored

to the regular docket of the Court. If no objection is filed, then a

case manager for the Court will contact counsel for the parties to

arrange a conference date. An order formalizing the scheduling

will follow. A conference attorney employed by the Court will

conduct the conference by telephone, by video, or in person.

Conference attorneys invest considerable time to help litigants

reach a mutually agreement settlement. All statements made at a

prehearing conference are confidential and may not be disclosed

by the conference attorney, by counsel, or by the parties. RAP

22(D)(4)(b).

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, and that order shall

govern the subsequent courts of the proceedings. RAP 22(D)(4)

(c). If the case is settled, the parties should file a joint motion to

dismiss the appeal. If the case is not settled, it will be returned to

the Court’s active docket.

Record on Appeal

Introduction

The record on appeal collects the pleadings and other papers filed

in circuit court, together with the evidence introduced at trial, for

presentation to the Court of Appeals.

The Circuit Court Clerk’s Record

Kentucky appellate rules require the circuit court clerk to prepare

the record using the original papers filed in the circuit court clerk’s

case file. RAP 24(A)(1) and RAP 26(B)(1). This spans the filing

of the complaint to the certification of the record. The circuit

court clerk orders the documents, adds page numbers, binds the

documents, and prepares an index. The circuit court clerk must

certify the record within 30 days after the date of filing the first

notice of appeal; however, if RAP 22 applies to the appeal, the

circuit court clerk shall prepare and certify the record within 30

days of the order ending the prehearing procedure. RAP 26(B)(4).

Designation of the Record

The appellant must file a designation of record complying with

RAP 24(B)(1) if there is any material, such as transcripts of

proceedings recorded by a court reporter or electronic recordings

other than a trial (see RAP 98)), that needs to be added to the

materials that the circuit court clerk automatically includes in

the record. The designation of record must be filed within 10

days of either: (a) the filing of the notice of appeal if RAP 22, the

prehearing conference rule, does not apply, or (b) the entry of the

order of the Court of Appeals removing the case from prehearing

under RAP 22(B)(2). RAP 24(B)(1)(b). The designation must be filed

in the circuit court clerk’s office and must be served on all other

parties, the court reporter (if any), and the Clerk of the Court of

Appeals. The designation must specifically list those portions of

any recorded proceedings that are to be included in the record on

appeal. RAP 24(B)(1) and (2).

If an appellant fails to designate material that the appellee

believes is necessary to present the appellee’s position on appeal,

the appellee may file a counter-designation within 10 days of the

date of service and filing of appellant’s designation, or no later

than 10 days from the time on which the appellant’s designation

was due to be filed. RAP 24(B)(2).

Electronic Recordings

Most Kentucky circuit courts are equipped to record proceedings

electronically. When such a recording system has been installed

in a circuit court, the electronic recording is used as the official

record of the proceedings for purposes of appeal. RAP 24(A)(3).

No transcript of the proceedings is prepared. The circuit court

clerk is required to include the electronic recording of any trial.

However, if any pre-trial or post-trial hearings are needed, the

appellant must file a designation listing the dates of any such

hearings to be added to the record on appeal. Failure to designate

necessary hearings limits the Court’s ability to review appeals on

their merits and may result in affirmation of the circuit court’s

decision. Gambrel v. Gambrel, 501 S.W.3d 900 (Ky. App. 2016).

Depositions

The parties may designate as part of the record on appeal

depositions that were filed in the circuit court.

Missing Record of Proceedings

If the transcript or electronic recording of a portion of the

proceedings is missing or cannot be made a part of the record

on appeal for any reason, the appellant may prepare a narrative

statement to replace the missing material. RAP 25(A); Cardine v.

Commonwealth, 623 S.W.2d 895 (Ky. 1981). Failure to replace the

missing material may inhibit the appellate court’s ability to review

the issue that the appellant wishes to raise. Porter v. Harper, 477

S.W.2d 778 (Ky. 1972).

Certification of the Record

When the record has been properly assembled, the circuit court

clerk certifies the record and sends out a notice of certification to

the litigants and to the Clerk of the Court of Appeals. RAP 26(B)(5).

Custody of the Record

After certification, the record on appeal is retained in the custody

of the circuit court clerk so that it is available to the parties for

the preparation of their briefs. If counsel is allowed to check out

the record, the record must be returned to the circuit court clerk

before the filing of counsel’s brief. RAP 26(D)(2)(a)-(e). The parties’

briefs must certify that the record has been returned to the circuit

court clerk or that it was not checked out from the circuit court

clerk. RAP 31(C)(1)(c).

The Brief: Written Argument

The brief contains a party’s written argument on the merits of the

appeal. It is the principal way to present the party’s position on

appeal. Because the Court of Appeals hears oral argument in only

about 10 percent of the appeals submitted on the merits, the brief

may be a party’s only opportunity to persuade the Court.

The technical requirements for preparing the brief are designed

to expedite the handling of the brief in the appellate clerk’s office

and in the judges’ chambers.

Beyond the technical requirements, careful presentation of the

arguments and thoughtful assembly of an appendix will assist the

judges in evaluating the parties’ positions on the issues presented

in the appeal.

Time for Filing Briefs

Special Cases Involving Protection of Vulnerable Victims. RAP

30(E) establishes shortened briefing times in appeals from

circuit court orders determining paternity, dependency, abuse,

neglect, domestic violence, juvenile status offense, or involuntary

termination of parental rights. In such cases, the standard

deadlines for filing briefs are shortened to allow the appellant

30 days, the appellee 30 days, and the appellant 10 days for a

reply brief. Counsel practicing such cases need to be aware of

the shortened deadlines and that extensions of time may be

requested only under extraordinary changes.

Civil Cases. RAP 30(C) requires that the appellant’s brief be filed

within 60 days of the date that the circuit court clerk notes on the

docket that the certification of the record has been sent out. The

appellee’s brief is due 60 days from the date of the filing of the

appellant’s brief. The appellant’s reply brief is due 15 days from

the date of the filing of the appellee’s brief. If there is more than

one appellee, the appellant may file a reply brief to each within 15

days of the filing of the brief or may file a single reply brief to all

appellee’s briefs within 15 days of the date the last appellee’s brief

was filed.

If there are multiple appellees and one or more of the appellees

chooses not to file a brief, then the appellant would only know

with hindsight when the last appellee’s brief was filed. In that

situation, the rule allows the reply brief to be filed 15 days from

the date the appellee’s brief was due to be filed. If the appellant

is also a cross-appellee, the appellee’s brief shall combine the

appellee’s initial brief as a cross-appellant and its response to

appellant’s brief and shall be filed no later than 60 days after the

date on which the appellant’s brief is filed. RAP 30(C)(2)(b). Then,

the appellant shall file a single brief that combines its response

brief as cross-appellee and appellant’s reply arguments within 60

days of the date of the appellee’s brief. RAP 30(C)(2)(c).

Criminal Cases. RAP 30(D). The appellant’s brief is due within

60 days of the certification of the record (subject to the entry

of service of notice) unless the appellant is represented by

the Department of Public Advocacy, the Office of the Attorney

General, or a designee of either. In the latter cases, the brief is

due 60 days from the date the appellate clerk makes the record

available to the public advocate, the attorney general, or the

designee. The appellee’s brief is due 60 days from the date of the

filing of the appellant’s brief. An appellant’s reply brief may be

filed within 15 days of the date of the filing of the appellee’s brief.

Filing of Briefs

To be timely filed, a brief must be received in the office of the

Clerk of the Court of Appeals within the time allowed for filing.

RAP 5(E). In computing deadlines, the rules provide that the time

for filing briefs runs from either the date of the circuit court clerk’s

notice of certification or the filing of another brief. The additional

time allowed if the deadline runs from service by mail set forth

in CR 6.05 does not apply to the filing of briefs. If a party requires

additional time, a motion should be filed as soon as the need

becomes apparent.

If filing the brief by mail, RAP 5(E) permits a brief to be filed by

mail on the due date if a party uses U.S. Registered Mail, U.S.

Express Mail, or some other recognized carrier, such as UPS or

FedEx Certified Mail does not qualify under the rule. The rule

requires the carrier to place the date it receives the package

from its customer on the outside of the envelope or box. A party

must carefully comply with this rule when using the mail or a

messenger service to file briefs in the Court of Appeals. See

“Timely Filing Documents” earlier in this handbook for a full

discussion of RAP 5(E).

The Court of Appeals also has a “drop box” inside the main

entrance of its central office in Frankfort. Briefs that are due

on a specific day may be deposited in the box after the office

has closed for that day. The briefs are considered timely filed if

deposited before the office reopens the following morning.

Format of the Brief

The rules for formatting a brief are contained in RAP 31.

Paper: 8.5 x 11-inch unglazed white paper.

Type: Black type, no smaller than 12-point (standard width), text

double spaced, and clearly readable.

Margins: 1.5-inch on the left margin; 1-inch on all other margins.

Binding: Briefs are to be securely bound on the left side. If staples

are used, the party should ensure that all sharp edges are tucked

in.

Covers: Briefs must be enclosed (front and back) with colored

covers indicating the nature of the brief:

• Appellant – Red

• Appellee – Blue

• Appellant reply – Yellow

• Combined Appellee response brief/initial brief as Cross-Appellant – blue

• Combined Appellant reply brief/response brief as Cross-Appellee – Yellow

• Amicus Curiae – Brown

• Other – White

• Petition for Rehearing – Green

• Response to Petition for Rehearing – Gray

Length: RAP 30(G) sets strict limits for the length of briefs. RAP

31(G)(1). Unless a party’s motion to exceed the page limit is

granted, the page limits are:

Appellant – 8,750 words or 20 pages if computer generated (a

brief printed on a computer printer is computer generated); or 25

pages if handwritten or typewritten

Appellee – 8,750 words or 20 pages if computer generated (a

brief printed on a computer printer is computer generated); or 25

pages if handwritten or typewritten

Appellee/Cross-Appellant Combined – 14,000 words or 30 pages if

computer generated; or 40 pages if handwritten or typewritten

Cross-Appellee/Appellant Reply Combined – 10,500 words or

25 pages if computer generated; or 30 pages if handwritten or

typewritten

Appellant Reply – 1,750 words or 4 pages if computer-generated;

if handwritten or typewritten, 5 pages; except that if appellant

is called upon to respond to more than one appellee brief, then

appellant is permitted up to 1,750 additional words or 4 additional

pages per each additional appellee brief if computer generated

or up to 5 additional pages per each additional appellee brief if

handwritten or typewritten

Word-Count Certificate: The brief may need to contain a word-count certificate in conformity with RAP 15. If a computer-generated document fits within the page limits for computer-generated documents, then a word-count certificate is not

necessary. A computer-generated document that exceeds the

page limits for a computer-generated document, but is within

the relevant word limit, must include a certificate by the attorney

or an unrepresented party that the brief falls within the relevant

word limit. The brief’s cover, caption, introduction, statement

concerning oral argument, statement of points and authorities,

signature block, certificate of service, word-count certificate,

exhibits, and appendices are excluded from any page or word-count limits in these rules. A word-count certificate is not required

if the brief is handwritten or typewritten.

Number of Copies: 1 unbound and 4 bound copies of each brief

must be filed with the Clerk of the Court of Appeals. RAP 31(F).

Organization of the Appellant’s Brief

RAP 32(A) provides guidelines for the organization and contents of

the appellant’s brief. The organizational rules allow the appellate

judges to efficiently review the brief.

The Introduction lets the judges know what area of law is involved

in the appeal. The introduction should be very short.

The Statement Concerning Oral Argument should be one brief

paragraph indicating whether the appellant desires oral argument

on the appeal and supplying any reason to support the value of an

oral argument in resolving the appeal.

The Introduction and Statement Concerning Oral Argument

together shall not exceed one page.

The Statement of Points and Authorities lists the issues the party

will discuss in the “Argument” section of the brief. The statement

of each issue should be simple and direct. Under each issue the

appellant must list the legal authorities cited in the argument

together with the page of the brief on which the authority is cited.

This gives the appellate judge a quick listing of material that may

need to be read in conjunction with the brief.

The Statement of the Case is the “story” of the case. It sets

out the facts of the case and the procedural events the judges

need to know to understand the case. The statement should be

sufficiently complete for a comprehensive understanding of the

case but should not contain unnecessary material. The statement

should be as objective as possible and without personal attacks.

Each statement narrated should be supported by a reference to

the specific page number or recording reference number to show

where the fact appears in the record. CR 98 provides a form for

citing to electronic recordings.

The Argument tracks the “Statement of Points and Authorities”

and presents the issues that the appellant believes require a

different result than that reached by the circuit court. All facts

stated must be supported by references to the record, and

statements concerning the law must be supported by citations

of authority, either statute or published appellate decision.

RAP 32(A)(4). RAP 31(E) provides a specific format for citing to

Kentucky statutes and opinions.

At the beginning of the discussion of each issue, the appellant

must include a statement (with a reference to the record) showing

how and when the issue was preserved for appeal. It is helpful to

also set out the standard of review the appellate court must use in

reviewing the issue.

The Conclusion states the relief the appellant seeks in the Court of

Appeals. The request should be as specific as possible.

The brief must include a Signature by an attorney of record for the

party submitting the brief or, for a party proceeding pro se, by the

party. RAP 32(A)(7). The signature may appear on the front cover

or after the conclusion.

The Record Appendix contains material from the record that the

appellant wishes to make easily available to the reading judges.

RAP 32(E)(1). The appellant must include a copy of the judgment

appealed and any opinion of the circuit court as the first item in

the appendix. In deciding what other documents to include in the

appendix, the appellant should consider that only the presiding

judge of the panel will have the record on appeal immediately

available in the judge’s office. The associate judges will each have

a set of the briefs, including the appendix. If there are essential

documents from the record that the judges should closely

examine, copies should be included in the appendix. A list of the

items included in the appendix must be placed at the beginning

of the appendix. The items in the appendix must be separated by

tabs. Material not in the record on appeal may not be included in

the appendix.

An Evidentiary Appendix consisting of a transcription of video

recorded evidence or other court proceeding may be attached

after the Record Appendix. RAP 32(E)(2).

If the appendices are large, they may be bound separately from

the brief in red covers that are appropriately labeled.

Organization of the Appellee’s Brief

RAP 32(B) provides guidelines for the organization and contents

of the brief for the appellee. The requirements are the same as

for the appellant (see previous paragraphs) except that the rules

do not require an introduction or any specific appendix material.

The remarks above concerning the appendix shall be followed by

the appellee as well if the appellee chooses to include a Record

Appendix and/or Evidentiary Appendix. The appellee should not

duplicate documents included in the appellant’s appendix but may

refer to documents included by the appellant.

Organization of the Appellant’s Reply Brief

The appellant’s reply brief is responsive to points raised in the

appellee’s brief and may not repeat arguments already made in

the appellant’s initial brief. If the reply brief is five pages or less, a

“Statement of Points and Authorities” is not required. RAP 32(C)-

(D).

Service of the Brief

Copies of each brief must be served on all adverse parties (by

service on their counsel if a party is represented by counsel) and

on the circuit court judge whose decision is under review. In a

criminal case, both the defendant and the attorney general must

serve the Commonwealth’s attorney of the district from which the

appeal comes. RAP 30(B).

Certifications Required

The cover of each brief must contain a signed statement

identifying by name the individuals served with copies of the brief.

The certification must also contain a statement that the record

on appeal has been returned to the circuit court clerk or that the

record was not withdrawn. RAP 21(C)(1)(b)-(c).

Sanctions for Failure to File a Brief

If an appellant fails to file a brief within the time allowed by the

rules or by an order of the Court, the appeal may be dismissed.

RAP 31(H).

If no appellee files a brief, the Court may either:

1. Accept the appellant’s statement of the facts and issues as

correct;

2. Reverse the judgment if the appellant’s brief reasonably

appears to sustain such action; or

3. Treat the failure to file a brief as a confession of error and

reverse the judgment without consideration of the merits. RAP

31(H)(2)-(3).

Further, any brief may be stricken for failure to substantially

comply with the requirements of the Rules of Appellate

Procedure. RAP 31(H)(1).

Submission & Consideration of Appeals

Transmittal of the Record to the Appellate Court

The circuit court clerk sends the record on appeal to the Court

of Appeals when transmittal is requested by the appellate

court clerk. RAP 26(D)(3). In a civil case, this will occur after an

appellant’s reply brief is filed or the time for filing such a brief has

run. RAP 27(G). In a criminal case, the time for transmittal of the

record will occur:

1. After the certification of the record if a criminal defendant is

represented by the Department of Public Advocacy;

2. After filing of the appellant’s brief if a criminal defendant is

represented by someone other than the Department of Public

Advocacy; or

3. After certification if the Commonwealth is the appellant.

Ready to Be Assigned on the Merits

After the record is received and all briefs are filed, the appeal is

ready to be assigned to the Court for consideration and decision.

Once the appeal has been submitted, no additional materials

related to the merits of the case may be filed unless permission to

do so is requested by motion.

Assignment to a Panel

The 14 judges of the Court of Appeals sit in panels of three judges.

The Chief Judge of the Court assigns judges to sit on panels and

those panel assignments are changed monthly. Rules of the

Supreme Court of Kentucky (SCR) 1.030(7). The Chief Judge is also

responsible for assigning cases to the panels and designating the

presiding judge on each case. The presiding judge will ordinarily

author the opinion of the panel and is responsible for ensuring

that the appeal moves without unnecessary delay.

Cases are assigned to panels after submission. While any delay will

be dependent upon the Court’s workload, such assignment will

usually occur within two to six weeks after submission. Normally,

the panel will be scheduled to meet about four months after the

assignment. For example, cases delivered to the judges in early

September will be for their December panels. The early delivery of

cases to the judges allows them to screen cases and schedule oral

arguments.

Once a panel has been assigned, the membership of the panel

becomes a matter of public record. The Clerk of the Court of

Appeals sends a notice to counsel and any unrepresented parties

identifying the members of the panel. However, counsel and

litigants must be aware that judges cannot receive any contact

about a case from the parties except through a proper filing in the

office of the Clerk of the Court of Appeals. Any attempt to make

such contact may require the judge to disqualify himself from the

case and may subject the offending party to sanctions.

Oral Argument and Non-oral Cases

The Court of Appeals traditionally has scheduled oral argument in

less than 10 percent of the appeals assigned to panels for decision

on the merits.

Appeals are initially selected for oral argument by the presiding

judge. In general, the Court favors oral argument on questions

of law rather than fact. Because a layperson would be at a

considerable disadvantage in arguing against trained counsel, oral

argument is not scheduled unless both sides are represented by

counsel. However, a person without counsel may ask for special

leave to orally argue. RAP 28. When all three members of the

panel have selected cases for oral argument in any assignment

month, arguments are scheduled at a reasonably convenient

location. Panels are scheduled across the Commonwealth, taking

into account the location of counsel’s offices.

Orders are entered informing counsel of the scheduled time and

place for oral argument as soon as practical after assignment.

Normally, counsel will receive a scheduling order at least two

months before the date of oral argument. If counsel has an

irreconcilable conflict with the scheduled date, a motion to

reschedule must be promptly filed. Rescheduling of oral argument

is granted only for compelling reasons.

The time allowed for oral argument will be set out in the order

scheduling oral argument. Normally, 30 minutes will be allowed

for each oral argument with the time being equally divided

between the appellant and the appellee.

The oral argument schedule of the Court of Appeals is available on

the Kentucky Court of Justice website at www.kycourts.gov. Click

on “Court of Appeals” and then on “Oral Arguments Calendar.”.

Counsel wishing to submit supplemental authority must carefully

comply with the provisions of RAP 35. RAP 38(E).

If the Court determines that oral argument will not be heard on

an appeal, an order dispensing with oral argument is entered. If

counsel can advance good reasons for holding oral argument, a

motion to reconsider must be filed within 10 days of the entry

of the non-oral notice. In cases in which no oral argument is

scheduled, the panel reviewing the appeal may elect to render an

opinion prior to the designated assignment month.

Decisions of the Court

Procedural matters may be handled by a single judge whose

signature appears on an order disposing of the issue.

All opinions on the substantive merits of an appeal and all

dispositional orders must be approved by a panel of three

judges. The members of the panel who voted on the opinion or

disposition order are listed on the “BEFORE” line of the document.

At the end of the document, there is a statement concerning

whether all of the panel members concurred (agreed with the

decision). If any member of the panel dissents from (disagrees

with) the majority decision, that fact is stated at the end of the

majority opinion. A concurring or dissenting judge may write a

separate opinion stating that judge’s reasoning. A decision by a

majority of the panel is the decision of the Court of Appeals. SCR

1.030(7)(d).

The Court of Appeals may dispose of a case by affirming or

reversing the entirety of the judgment or it may affirm in part as

to some issues and reverse in part as to others. The Court may

vacate the circuit court decision if the circuit court omitted some

essential step in reaching its decision, if it lacked jurisdiction, or

if it exceeded its jurisdiction. The Court also may remand the

case to the circuit court for further proceedings if necessary. If

a case is remanded to circuit court, a party adversely affected

by the decision of the circuit court on remand is entitled to take

a new appeal of that decision. However, the “law of the case”

doctrine may prevent the Court of Appeals from reviewing issues

conclusively decided in the first appeal.

Decisions of the Court of Appeals are announced in one of three

types of documents: an opinion, an order, or an opinion and order.

Opinions: RAP 40

An opinion is titled as such in the caption of the document – for

example, “Opinion Affirming.” An opinion lists the panel deciding

the case, as well as the authoring judge, but does not have an

actual signature. The Court announces most decisions on the

merits of appeals in opinions.

Opinions are rendered each Friday at 10:00 a.m. No information

can be released about an opinion until the release time. Opinions

are mailed to counsel or unrepresented litigants on Friday after

the release time. Opinions are available at the release time at

www.kycourts.gov through “Searchable Opinions” section of the

Court of Appeals page. The “Court of Appeals Minutes” section of

the page lists all the decisions for a given week. The file number

for each opinion listed in the Minutes is a link that connects to the

text of the opinion itself.

The opinion shows on its face the date of release and whether it is

designated for publication. The designation indicates whether the

Court intends the opinion to be cited as precedent. Even though

the Court may not have designated an opinion for publication,

RAP 41(A) allows unpublished opinions rendered after January 1,

2003, to be cited “for consideration” only “if there is no published

opinion. . . that would adequately address the point of law

argued by the party.” Additionally, a party may request that an

unpublished opinion be designated published by filing a motion to

publish in conformity with RAP 43(H).

All opinions of the Court of Appeals, “unpublished” and “to be

published,” are matters of public record.

If a decision is announced in an opinion, further review in the

Court of Appeals must be sought by a petition for rehearing under

RAP 43(B).

An opinion is not effective until it becomes final under RAP 40(G).

Orders

The Court of Appeals uses orders to announce all procedural

rulings, most dismissals of appeals, and the substantive disposition

of original actions and other expedited actions. Orders contain the

signature of the judge making the ruling or of the presiding judge

of the panel making the ruling. If the order announces a panel

decision, the panel is listed on the “BEFORE” line of the order.

Orders show the date of entry near the signature of the judge

and are effective immediately upon entry. RAP 40(F). Orders are

entered as soon as possible after being received in the office of

the Clerk of the Court of Appeals.

Orders are rarely designated for publication.

If a decision is announced by an order, further review in the Court

of Appeals must be sought by a motion to reconsider under RAP

43(D) within 20 days from the date of entry of the order.

Opinion and Orders

The opinion and order is generally used when the Court of

Appeals wishes to provide a more detailed explanation than usual

in an order or when the Court wishes to issue a published decision

that must be effective immediately.

An opinion and order lists the panel making the decision, lists the

author of the document, and is signed by the author. Opinions and

orders are normally rendered on Fridays at 10:00AM EST

A decision announced in an opinion and order is subject to further

review in the Court of Appeals by a petition for rehearing under

RAP 43(B).

Petitions for Rehearing & Motions to Reconsider

Once a decision is made in the Court of Appeals, either party can

request that the Court of Appeals review the decision. However,

as previously noted, there are two different methods of requesting

such review and the choice of how to proceed depends upon the

type of document the Court uses to announce its decision. If the

Court decided the case by opinion, or opinion and order, a petition

for rehearing under RAP 43(B) is appropriate. If an order is used, a

motion to reconsider under RAP 43(D) is appropriate. These filings

are not interchangeable.

Note: There is no requirement that a petition for rehearing or

motion to reconsider be filed as a prerequisite for seeking review

in the Supreme Court of Kentucky.

Petitions for Rehearing

A party adversely affected by an opinion of the Court of Appeals

may file a petition for rehearing or a petition for modification or

extension of the opinion under RAP 43(B). The relief available in

a petition for rehearing is very limited. RAP 43(B)(1)(a) provides

that relief will be granted only when a petitioner can show 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.” If a party

does not wish to challenge the result of the opinion but wishes to

correct factual inaccuracies or to request that the Court address

issues not covered in the opinion, the appropriate filing is a

petition for modification or extension. RAP 43(B)(1)(b)-(c). A party

may request rehearing and modification or extension in a single

petition. A party may also move the Court to publish an opinion

or opinion and order that was originally designated not to be

published. RAP 43(H).

The petition must be filed in the Court of Appeals within 20 days

of the date on which the opinion or opinion and order was issued.

RAP 43(B)(3). If a party requires more time to prepare the petition,

a motion requesting additional time must be filed on or before the

date the petition is due. The petition must be accompanied by the

$150 filing fee required by RAP 13(B), except that no filing fee is

required for a motion to publish.

In general, the petition must conform to the formatting prescribed

for briefs under RAP 31 (excluding an introduction and statement

of oral argument and statement of points and authorities)

except that the petition has green covers and is limited to 3,500

words or 8 pages if computer generated and limited to 10 pages

if handwritten or typewritten. A copy of the opinion must be

attached to each copy of the petition. In preparing the petition,

a party should be aware that the members of the panel already

have copies of the briefs previously filed and that the arguments

of the petition should be directed to the opinion as rendered.

Opposing parties may file responses to the petition within 20

days of the date on which the petition was filed. RAP 43(B)(3).

The responses must have gray covers and are limited 3,500 words

or 8 pages if computer generated and limited to 10 pages if

handwritten or typewritten.

A petition under RAP 43 is assigned to the same panel that

considered the appeal. However, a different judge is designated

as the presiding judge. RAP 43(B)(6). A petition under this rule

is normally ruled on by order. If a petition is granted, a party

adversely affected may file its own petition under RAP 43(B)(7). If

a petition is denied, no request for reconsideration of that ruling is

permitted. RAP 43(D)(5).

Motions to Reconsider

When a ruling of the Court of Appeals is announced by order, a

party adversely affected may file a motion to reconsider under

RAP 43(D). A decision announced in a document headed as

an opinion and order is treated as an opinion for purposes of

rehearing. RAP 43(A). The procedure of RAP 43(D) applies to both

procedural and substantive orders of the Court of Appeals except

for certain rulings specifically listed in RAP 43(D)(5). The rulings

that are not subject to reconsideration by the Court of Appeals

include:

1. Orders granting or denying interlocutory relief under RAP 20 or

21;

2. Orders granting or denying transfer under RAP 17;

3. Orders granting or denying discretionary review under RAP 44;

4. Orders granting or denying petitions for rehearing under RAP

43; and

5. Orders granting or denying reconsideration.

If the order to be reconsidered was a final order in an appeal, the

$150 filing fee required by RAP 13 must be paid. RAP 43(F).

In general, a motion to reconsider is assigned to the panel that

made the initial decision.

Further Review in the Supreme Court

Final decisions of the Court of Appeals may be reviewed by

the Supreme Court of Kentucky. In most cases, review must be

sought by a motion for discretionary review. RAP 44. In workers’

compensation cases under RAP 49 and in original actions under

RAP 60, review in the Supreme Court is by a matter-of-right

appeal.

Motions for Discretionary Review

In any case appealed as a matter of right from a circuit or

family court to the Court of Appeals and in any case in which

discretionary review was granted or denied in the Court of

Appeals, a party may seek review in the Supreme Court by the

filing of a motion for discretionary review. The motion must be

filed in the office of the Clerk of the Supreme Court within 30

days of the rendition of an opinion by the Court of Appeals, the

entry of an order disposing of a petition for rehearing, the entry

of an order denying discretionary review by the Court of Appeals,

or the entry of some other order finally disposing of an appeal.

The motion must be in the form provided by RAP 44 and must be

accompanied by the $150 filing fee specified in RAP 13. Questions

concerning the motion should be addressed to the office of the

Clerk of the Supreme Court.

Notice of Appeal to the Supreme Court

In an appeal of a workers’ compensation case under RAP 49 or an

original action filed in the Court of Appeals under RAP 60, review

in the Supreme Court is by a matter of right appeal.

The notice of appeal must be filed in the office of the Clerk of the

Court of Appeals within 30 days of the date of the rendition of the

Court of Appeals opinion, or of the entry of the order disposing

of the petition for rehearing, or of the entry of any other order

making final disposition of the action. The notice must be served

on all opposing counsel and the $150 filing fee required by RAP

13(1)(d) must be paid.

Final Disposition of Appeals

Effective Date of Opinions

If a decision of the Court is announced by an opinion, the opinion

is not effective until it becomes final under RAP 40(G). Such a

decision may not be enforced until it is final.

A decision of the Court of Appeals becomes final on the 31st day

after the rendition of the opinion unless a petition for rehearing or

motion for discretionary review has been timely filed. RAP 40(G).

If a petition for rehearing has been filed, the opinion becomes

final on the 31st day after the entry of an order disposing of the

petition for rehearing unless a motion for discretionary review is

timely filed.

If a motion for discretionary review is filed in the Supreme

Court of Kentucky, a Court of Appeals’ opinion becomes final

immediately upon denial of the motion by the Supreme Court.

RAP 40(G)(2). If the motion for discretionary review is granted,

the Court of Appeals opinion never becomes effective, but is

replaced with the decision of the Supreme Court.

When the opinion becomes final, the Clerk of the Court of Appeals

stamps an endorsement on the face of the opinion and sends

copies of the endorsed opinion to the circuit court clerk. RAP

40(G)(5). At the time that opinion is made final, the Clerk of the

Court of Appeals also returns the original record to the circuit

court clerk for further action or for storage and eventual archiving.

The Clerk of the Court of Appeals retains a permanent record only

of the documents filed in the appellate court, as well as any orders

and the opinion of the Court of Appeals.

Kentucky no longer uses a mandate (an order from the Clerk of

the Court of Appeals) to make appellate opinions effective. RAP

40(G)(4).

Effective Date of Orders

Unless an order states otherwise, an order is effective upon entry

in the office of the Clerk of the Court of Appeals and must be

obeyed.

If an order disposes of an appeal, the Clerk of the Court of Appeals

closes out the appellate record (including the return of any

original circuit court record) on the 31st day after the entry of the

order unless a motion to reconsider or a motion for discretionary

review has been filed. If a motion to reconsider is denied, closure

will occur on the 31st day after the entry of the order denying the

motion to reconsider. If a motion for discretionary review is filed

in the Supreme Court, the record is not closed until the Supreme

Court disposes of the motion.

Decisions Designated for Publication

If a decision has been designated for publication, the Clerk of

the Court of Appeals sends a notice to West Publishing Company

allowing the opinion to be printed in the Southwestern Reporter.

Until the Clerk releases the opinion as final, it may not be relied

upon as authority.

Storage of Records

The Clerk of the Court of Appeals stores appellate court records

in the Court’s central office for approximately four years. The

records are eventually removed to the custody of the Kentucky

Department for Libraries and Archives.

Abbreviations

RAP Kentucky Rules of Appellate Procedure

CR Kentucky Rules of Civil Procedure

FCRPP Kentucky Family Court Rules of Procedure and Practice

KRS Kentucky Revised Statutes

RCr Kentucky Rules of Criminal Procedure

SCR Rules of the Supreme Court of Kentucky

Glossary

Affirm. To confirm a judgment on appeal; declaration used when

the appellate court finds no reversible error.

Appeal. A legal procedure in which a party who is dissatisfied with

a judgment of a lower court may seek review of that judgment in a

court with higher authority.

Appellant. A party to a legal proceeding who seeks relief in the

appellate court from a lower court judgment.

Appellee. A party who opposes an appeal and who usually seeks

to have the judgment affirmed.

Concur. To agree with a decision.

Dissent. To disagree with a decision.

In forma pauperis. A procedure allowing a person who cannot

pay court fees because of poverty to proceed without payment of

those fees.

Litigant. Any party to a lawsuit.

Motion. A document filed with the court seeking some relief short

of a decision on the merits of an appeal, such as an extension of

time or dismissal of an appeal.

Opinion. A document rendered by a court announcing a decision

on the merits of an appeal and setting out the reasons for that

decision.

Order. A document from a court granting or denying a motion or

directing that some action be taken.

Pro se. A person who is representing himself or herself in litigation

and who is proceeding without an attorney.

Remand. To send a case back to a lower court with directions to

take some further action.

Response. A document filed with the court by a party opposing

a motion; a response may, in some instances, express a lack of

opposition to the relief sought or even join in the request for

relief.

Reverse. To declare that a judgment is wrong due to some

significant error and that the judgment may not be enforced.

Vacate. To set aside a judgment because the circuit court failed to

take a required step in deciding a lawsuit.

Kentucky Court of Appeals

669 Chamberlin Ave., Suite B

Frankfort, Kentucky 40601

Phone 502-573-7920

www.kycourts.gov

P-56 Printed With State Funds, 5th Edition, Revised July 2023