Friday, May 23, 2014

Punked by the Court of Appeals

In Smith (now Milby) v. Smith, 2011-CA-002306-MR, May 23, 2014, there was no video recording included with the record on appeal. Appellant argued, quite reasonably in my estimation, that Civil Rule 98 requires a copy of the video recording automatically to be included in the record on appeal..
 "Upon the filing of a notice of appeal, one of the two video recordings, or a court-certified copy of that portion thereof recording the court proceeding being appealed shall be filed with the clerk and certified by the clerk as part of the record on appeal. " CR 98(2)(a)
Kentucky's Circuit Court Clerk's Manual provides, "The “B” tape of any court trial or jury trial held in the case being appealed shall be included in the original record on appeal."

The Court of Appeals disagreed and held that the Appellant was required to specifically designate the video recording to be included in the record on appeal.


The trick is the entire proceeding being appealed from was a post-dissolution proceeding. The divorce was finalized in 2003. The court relied on Civil Rule 98(3)(c), which reads in part:
"To facilitate the timely preparation and certification of the record as set out in this rule, appellant or counsel for appellant, if any, shall provide the clerk with a list setting out the dates on which video recordings were made for all pre-trial and post-trial proceedings necessary for inclusion in the record on appeal. "  
Again, from the Kentucky's Circuit Court Clerk's Manual:
"Pre-Trial/Post-Trial Hearing Tapes. CR 98(3). The “B” Tape of any pre-trial or post-trial hearing, or any portion thereof, should not be sent to the appellate court unless:(a) listed and identified by date on the designation of record filed by a party; or * * * * "
Let's just say that the Court of Appeals did not make the distinction clear enough to suit me, and it took me a while to get up to speed.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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This is not legal advice and I am not a lawyer.

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