Ky. Ct. App. Basic Appellate Practice Handbook (introduction)

Kentucky Court of Appeals

360 Democrat Drive

Frankfort, Kentucky 40601

Phone 502-573-7920

www.kycourts.gov

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

Basic Appellate Practice Handbook, Fifth Edition

Chief Judge Larry E. Thompson

Kentucky Court of Appeals

The Kentucky Court of Appeals is pleased to present a revision of

the Basic Appellate Practice Handbook.

The Handbook is designed to explain basic procedures and

concepts for the lay litigant, as well as to succinctly summarize

the numerous rules governing appellate practice for attorneys

embarking into what may be a new area of expertise. It is our

hope that this will continue to assist many in facilitating their

access to the Court of Appeals.

Table of Contents

Introduction & Cautionary Notes

The Court of Appeals Basic Appellate Practice Handbook is an

introductory guide to completing the steps in the appellate

process as it pertains to the Kentucky Court of Appeals. The

Handbook provides citations to the rules and explains how to use

the rules. It is not designed to be a complete practice manual and

is not a substitute for carefully reviewing the current Kentucky

Rules of Appellate Procedure (RAP) regarding appeals.

Note: It is the responsibility of a person practicing an appeal to

have access to a current set of the rules and to follow those rules.

In any apparent conflict between the rules and this Handbook, the

rules will control.

The 2023 revision of this Handbook includes references to rules

current as of January 1, 2023.

Copies of the current version of the rules are available in most

county law libraries and in some larger public libraries. To access

West’s Compilation of Court Rules & Procedures online, visit

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

click on “Rules & Procedures” in the “Resources” section of the

Supreme Court or Court of Appeals page.

This Handbook deals only with the procedures for practicing

an appeal to the Court of Appeals from a judgment in a case

originally filed in circuit court. Various types of cases have

special procedures for appellate review that will preempt the

general procedures set out in this guide. A partial list of such

special procedures is detailed in the section titled, “What May

Be Appealed.” It is the responsibility of the person practicing the

appeal to be knowledgeable about any special procedures that

might govern the type of action involved in that appeal.

While the staff of the Court of Appeals will always attempt to be

helpful and to assist all parties to the extent possible, members of

the staff are not allowed to give legal advice or to make decisions

for a party concerning how an appeal should be practiced.

Members of the staff should not be asked for legal advice or for

advice about what a party should do in a given situation. Parties

practicing an appeal should research questions in the statutes and

the court rules.

This Handbook is available on the Kentucky Court of Justice

website at www.kycourts.gov. Click on “Court of Appeals,” then on

“Basic Appellate Practice Handbook” in the “Resources” section of

the page.

Any comments concerning the contents, clarity, or usefulness of

this Handbook should be addressed by letter to:

Chief Staff Attorney

Kentucky Court of Appeals

669 Chamberlin Ave., Suite B

Frankfort, Kentucky 40601

The Kentucky Court of Appeals

In 1975, a group of amendments to the Kentucky Constitution

(commonly known as the Judicial Article, Sections 109 through

124) created a new intermediate appellate court called the

Kentucky Court of Appeals. Prior to that time, the Court of

Appeals designation applied to Kentucky’s highest court. When

the Judicial Article went into effect on January 1, 1976, Kentucky’s

highest court became known as the Supreme Court of Kentucky

and the Court of Appeals commenced operations.

Creation of an intermediate appellate court was necessitated

by increased litigation, which had imposed a heavy workload on

the Commonwealth’s highest court, resulting in long delays for

litigants. Section 115 of the Kentucky Constitution affords litigants

a constitutional right to one appeal in each action. The new

intermediate appellate court not only helped effectuate this right

of appeal, but also decreased the time in which appellate review

could be obtained.

The intermediate Court of Appeals consists of 14 judges elected

by the citizens of the seven Supreme Court districts defined by

Kentucky Revised Statute (KRS) 21A.010. The two judges from

each district maintain offices within the district from which they

were elected. The judges are elected for eight-year terms. The

current members of the Court can be found at www.kycourts.gov

under Court of Appeals.

The members of the Court of Appeals exercise statewide

authority and sit in panels of three in various locations across the

Commonwealth. The chief judge is elected by his or her fellow

judges and is responsible for assigning judges to hear appeals.

The central office of the Court, including the office of the Clerk

of the Court, is located in Frankfort. You can contact the Clerk of

Court at the following address and phone number:

Kentucky Court of Appeals

669 Chamberlin Ave., Suite B

Frankfort, Kentucky 40601

502-573-7920

Motion Practice & Formatting and Filing Documents

Parties present their arguments on the merits of an appeal

through formal briefs. However, during an appeal it may be

necessary to request rulings from the Court on procedural

or substantive issues. These may include simple requests for

additional time to file a document required by the rules, complex

requests for a stay of enforcement of the judgment, or even

dismissal of the appeal. These requests are handled through the

Court’s motion practice.

Motion Practice

Motion practice before the Court of Appeals is different from

similar practice before the circuit court in that the parties do not

appear at a set motion hour. It is therefore extremely important

that the written motion and objections be carefully prepared to

present the parties’ positions.

Any party is permitted to file a response to a motion within 10

days of the date of service of the motion. RAP 7(C). The motion

is held in the Clerk’s office for the running of the response time.

If the motion was served on a party by mail or electronic service,

three additional days are added to the response time for that

party. Kentucky Rules of Civil Procedure (CR) 6.05.

Note: Motions are the only documents filed in the Court of

Appeals for which the response time runs from the date of

service. Therefore, this is the only instance in appellate practice

where CR 6.05 applies.

After the response time has run or after all responses have been

filed, the motion is screened to determine proper handling.

Motions requesting any type of substantive relief are assigned

to three-judge panels of the Court. Procedural motions requiring

any application of judicial discretion are assigned to the Chief

Judge or a member of the Court chosen by the Chief Judge. Purely

procedural motions requesting a type of relief that the Court has

already determined should be granted as a matter of course are

assigned to the administrative ruling docket.

Procedural motions that do not completely meet the criteria for

administrative rulings are submitted to the Chief Judge or a judge

designated by the Chief Judge on a weekly basis. Orders signed

by the Chief Judge are entered by the Clerk’s office as quickly as

possible after signing. Such orders are generally entered within

two to three weeks following the running of the response time.

All substantive motions are assigned to three-judge panels for

ruling. Such panels meet monthly in Frankfort and may consider

up to 100 items at a sitting. Orders are signed by the presiding

judge. Rulings can be expected five to eight weeks after the

response time has run. In appropriate cases, a party can move for

oral argument before the panel on a substantive motion, although

such requests are rarely granted. RAP 7(F).

Formatting Documents

Special rules govern the form and content of briefs filed in

the Court of Appeals. All other documents are formatted in

accordance with the general rules governing documents to be

filed in court.

All documents filed in the Court of Appeals must be properly

captioned to the Court of Appeals. RAP 5. The caption includes the

Court of Appeals case number, the parties in the case, and basic

circuit court information. The document’s title should reflect what

is being asked in the motion. For example: “Motion to Dismiss”;

“Motion for Additional Time to File a Brief”; or “Response to

Appellee’s Motion to Dismiss and Motion for Additional Time to

File Appellant’s Brief.”

Documents should be typed. If typing is not possible and

handwritten documents must be submitted, the documents must

be clearly readable and conform to the formatting requirements in

RAP 5(B)(4). Documents must be on 8.5 x 11-inch paper. The type

must be at least 12-point and must be double-spaced. A margin

of 1.5 inches must appear on the left side of the page. The text

of the document should clearly state the relief requested and the

reasons justifying the relief.

The document must be signed by the attorney or party submitting

the document and state the signing attorney or party’s address.

RAP 11.

If ruling on a motion requires the examination of any documents

from the record, copies of those documents (or the relevant

portions if the documents are very long) should be attached to

each copy of the motion.

Because the Court of Appeals prepares its own orders, draft orders

should not be submitted with a motion.

Service & Certification of Service

Any document submitted to the Court of Appeals must be served

on all other parties to the appeal. RAP 5. If a party is represented

by counsel, service is completed by delivery to the party’s counsel.

For all documents filed in the Court of Appeals, service may be

done by hand delivery or by mail.

An attorney (or unrepresented party) may also elect to use

electronic service. Electronic service includes email and fax.

Sending electronic documents between the attorneys significantly

reduces the amount of paper being mailed. Attorneys may elect

electronic service by filing a notice of election with the Clerk

of the Court of Appeals and serving the notice of election on

opposing attorneys by hand delivery or mail. The attorneys will

then exchange preferences for where the electronic documents

should be sent. Unrepresented parties may continue to serve

attorneys by hand delivery or mail, even though an attorney has

elected electronic service. See CR 5.02(2) for the specifics on how

to accomplish electronic service.

Note: Even though you may send copies of documents to a party

or attorney by email or fax as outlined above, paper copies must

be sent to the Clerk of the Court of Appeals unless the attorney

has elected to submit the document through the Court of Justice

e-filing system The Clerk of the Court of Appeals does not accept

filings through email or fax.

Each document must contain a certificate stating how service

was done and listing the individuals served. The certificate must

be signed by the person responsible for the service. RAP 5(A);

CR 5.03. An example of a certificate of service is included in the

Appendix.

Numbers of Copies

In general, five copies – four bound and 1 unbound - are required

for documents filed in the Court of Appeals. The major exception

is that only one copy of the prehearing statement is required. The

number of copies required is set out in the rule governing the

particular document and is in the list found at RAP 7(D).

Filing Documents

The notice of appeal, any supersedeas bond under RAP 63, and

the designation of record are filed with the circuit court clerk.

All other documents must be filed in person, by mail, or through

e-filing if available, in the office of the Clerk of the Court of

Appeals at the following address:

Office of the Clerk

Kentucky Court of Appeals

669 Chamberlin Ave., Suite B

Frankfort, Kentucky 40601

Timely Filing Documents

Documents that are subject to a deadline must be received in the

office of the Clerk of the Court of Appeals on or before the due

date. Documents that arrive after the deadline will be returned

late

If a person is running short on time, RAP 5(E) provides a method

that relies on the date the mail carrier received the document

to determine if the document was timely filed. For example, if

a document is due on Thursday, a party may mail a document

by U.S. Express Mail on Wednesday. The Clerk’s office will use

Wednesday to determine if the document is late, even if the

document does not arrive until Friday. Under RAP 5(E), the

document may be sent by U.S. Registered Mail, U.S. Express Mail,

or by a recognized carrier – such as UPS or FedEx - where the

carrier marks the outside of the envelope or box with the date

the carrier received the mailing from the customer. Certified Mail

does not qualify under the rule.

A party attempting to use this method of transmittal must

carefully comply with the rule and make sure that the date the

mail carrier received the document is prominent on the outside

of the envelope or box. Documents properly mailed under the

rule are deemed timely based on the date that the mail carrier

received the document.

What May Be Appealed

Finality Rule

In general, a party may only appeal from a judgment that is final.

A judgment is considered final and appealable if that judgment

disposes of all the claims presented in a circuit court lawsuit. A

judgment or an order that does not dispose of all claims and that

leaves some claims pending is considered interlocutory and may

not be immediately appealed. CR 54.01. Any claims disposed of in

an interlocutory order may be raised in the Court of Appeals when

a final judgment has been entered.

However, a circuit judge may make an interlocutory judgment that

disposes of at least one claim final and immediately appealable

by including certain findings under CR 54.02. The circuit judge

must find that the decision is the judge’s final decision on that

claim, meaning that the judge has heard evidence and arguments

needed to resolve the claim and the judge will not change the

ruling on the claim.

The circuit judge must also find that there is no just reason

to delay enforcement of the judgment. This means that the

successful party is entitled to enforcement of the judgment and

that enforcement will not affect the resolution of the remaining

claims.

Both findings, (1) that the decision is final, and (2) that there is no

just cause for delay, are required to make the judgment final. The

failure to adequately recite both findings will prevent the Court of

Appeals from acquiring jurisdiction. Peters v. Board of Education of

Hardin County, 378 S.W.2d 638 (Ky. 1964).

The Court of Appeals must review appeals to determine whether

the judgment is final and properly appealable. The Court must

dismiss an interlocutory appeal even if neither party raises the

issue. Attorneys and parties should also be aware that where

an order is by its very nature interlocutory, even the inclusion

of the recitals set forth in CR 54.02 will not necessarily make it

appealable. Hook v. Hook, 563 S.W.2d 716 (Ky. 1978).

Exceptions to the Finality Rule

There are some exceptions to the finality rule that allow

immediate appeals of judgments that would otherwise be

considered interlocutory. Some of these exceptions have been

established by statute and some by court decision. The common

factor in the exceptions is that delaying the appeal of the

judgment would permit events to proceed that would prevent the

Court of Appeals from granting meaningful relief.

The following list is not exhaustive of the exceptions to the finality

rule that may be available: