Hamburger v. Plemmons

• Citation: 654 S.W.3d 99
• Decision Date: 14 October 2022
• Docket Number: 2021-CA-0337-MR
• Parties: Elmis HAMBURGER, Appellant v. Michael S. PLEMMONS, Appellee
• Court: Kentucky Court of Appeals

654 S.W.3d 99

Elmis HAMBURGER, Appellant

v.Michael S. PLEMMONS, Appellee

NO. 2021-CA-0337-MR

Court of Appeals of Kentucky.

October 14, 2022; 10:00 A.M.

BRIEF FOR APPELLANT: Patrick T. Flaherty, Owensboro, Kentucky.

BRIEF FOR APPELLEE: Candy Yarbray Englebert, Owensboro, Kentucky.

BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

OPINION AND ORDER

ACREE, JUDGE:

Appellant, Elmis Hamburger, appeals the Daviess Family Court's February 23, 2021 post-decree order. After reviewing the briefs, we strike both parties’ briefs and dismiss this appeal pursuant to CR ¹ 76.12(8)(a).

The parties divorced in early 2020. The Daviess Family Court issued the final Findings of Fact, Conclusions of Law, and Decree of Dissolution and Contempt order on March 26, 2020. Both parties filed motions to alter, amend, or vacate the divorce decree, and after considering these motions, the court issued the final divorce decree on July 2, 2020. Both parties agree this order was final and appealable. Neither party filed a timely notice of appeal or a motion to alter, amend, or vacate the amended decree pursuant to CR 59.05.

Appellate counsel dispute what happened after entry of the decree and take aim at each other in their respective briefs. Their discord is obvious, but neither brief illuminates the issue or issues. Even a less-than-coherent explanation of the basis for seeking reversal or affirmance can be illuminated if the briefs cite the record and pertinent legal authority. However, neither brief complies with our procedural rules requiring advocates to do that. For this Court to understand the arguments, we would have to do the parties’ work of research and advocacy.

Specifically, Appellant's brief includes no citations to the certified record – none at all – violating CR 76.12(4)(c)(iv) and (4)(c)(v), and Appellee's brief similarly includes no citation to the certified record – none at all – violating CR 76.12(4)(d)(iv). "Supporting factual assertions with pinpoint citations may, in fact, be the most substantial requirement of CR 76.12." Commonwealth v. Roth , 567 S.W.3d 591, 595 (Ky. 2019) (citation omitted). "Without pinpoint citations to the record, a court ‘must sift through a record to [find] the basis for a claim for relief.’ " Id. (citation omitted).

The briefs also hardly comply with the requirement of ample citation to authority. Both briefs combined cite a total of only five procedural rules that seem to have little bearing on what this Court struggles to perceive might be the substance of the dispute.² CR 76.12(4)(c)(v), (4)(d)(iv). Neither brief cites statute or case law.

Each brief has an "appendix" attached but neither complies with the rule for appendices found at CR 76.12(4)(c)(vii) for appellants and CR 76.12(4)(d)(v) for appellees. That is to say neither appendix includes an "index ... set[ting] forth where the documents may be found in the record." CR 76.12(4)(c)(vii), (4)(d)(v). Appellant's index does not even conform to the sequence of documents in the appendix.

Furthermore, CR 76.12(4)(c)(vii) requires that "[t]he appellant shall place the judgment, opinion, or order under review immediately after the appendix list so that it is most readily available to the court." According to the seventh page of Appellant's brief (the pages are not numbered), Appellant seeks relief from the "Order of the Daviess Circuit Court entered on February 23, 2021[,]" but that order is not included in the appendix at all. Not any of the pages making up the parties’ respective appendices are marked with page numbers that the circuit court clerk places there in the certification process.

Significantly, CR 76.12(4)(c)(v) requires that the appellant's brief "shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Appellant violates this rule. "If a party fails to inform the appellate court of where in the record his issue is preserved, the appellate court can treat that issue as unpreserved." Ford v. Commonwealth , 628 S.W.3d 147, 155 (Ky. 2021).

Other less substantial failings of Appellant's brief include violations of CR 76.12(4)(a)(ii) (margins), CR 76.12(4)(c)(i) (introduction not to exceed "two simple sentences"), CR 76.12(4)(c)(iii) (page number references), and CR 76.12(4)(c)(vii) (extruding tabs in appendix). To the list of Appellee's shortcomings, we can add violations of CR 76.12(4)(a)(iii) (requiring blue cover on both front and back), CR 76.12(4)(d) (proper sequencing of the sections of the appellee's brief), and CR 76.12(4)(d)(v) (extruding tabs in appendix).

Pursuant to CR 76.12(8), appellate courts may impose sanctions when a party files a brief failing to conform to the rules of appellate procedure. CR 76.12(8) ; Ford , 628 S.W.3d at 155. Subsection (8)(a) of CR 76.12 states: "A brief may be stricken for failure to comply with any substantial requirement of this Rule 76.12."

Furthermore, failing to comply with the appellate rules "is ground for such action as the appellate court deems appropriate, which may include: (a) A dismissal of the appeal ..., (b) Striking of ... briefs, ... (c) Imposition of fines on counsel for failing to comply with these rules of not more than $500, and (d) Such further remedies as are specified in any applicable Rule." CR 73.02(2).

We expect a greater degree of competency from appellate advocates than has been shown in this case. As we have said too often, rules of appellate procedure exist for a reason. They are not mere decorations but "lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated." Martin v. Wallace , 651 S.W.3d 753, 756 (Ky. Aug. 18, 2022) (quoting Hallis v. Hallis , 328 S.W.3d 694, 696 (Ky. App. 2010) (quoting Louisville & Jefferson Cnty. Metro. Sewer Dist. v. Bischoff , 248 S.W.3d 533, 536 (Ky. 2007) (quoting Brown v. Commonwealth , 551 S.W.2d 557, 559 (Ky. 1977) ))).

We decline on this occasion to fine counsel. However, we do exercise our authority to strike both briefs for substantial noncompliance with our rules of appellate advocacy and to dismiss the appeal without addressing its merits, if any.

With all due respect, the dissent's failure to share the majority's perception of the quality of briefing in this case is misguided and misleading. To begin, the selective quoting of French v. French leaves out its essence. 581 S.W.3d 45 (Ky. App. 2019). Representing that part of French only as an ellipsis, the dissent ignores its critique of reflexive application of the doctrine of substantial compliance the dissent urges. The portion of French excised by the dissent says:

Other potential for harm caused by the routine application of substantial compliance is rarely addressed in our opinions.

For example, we have never considered any possible harm to the image of bench and bar caused by making "close enough" the standard when it comes to rules for lawyers. We seem to treat a professional advocate's actual failure to follow appellate rules as no more harmful than his Constitutionally-protected right to "criticize [such rules] and published court decisions [which we conclude] does not ... undermine the public's confidence and respect for the judiciary." J.C.J.D. v. R.J.C.R. , 803 S.W.2d 953, 957 (Ky. 1991).

Nor have we expressed concern about potential harm to the quality of appellate advocacy. We trust that substantial compliance will not invite mediocrity as acceptable practice in our appellate courts. We hope that trust is not misplaced.

And, our opinions do not express concern that accepting substantial compliance will erode the bar's respect for process and procedure. After all, why should we presume lawyers will be less likely to obey our rules as written, simply because the courts have become less likely to enforce them as written?

We are optimistic that by accepting substantial compliance we are not discouraging strict, or at least stricter, compliance with our rules. However, some suspect that we are. At least in the case before us, our embrace of substantial compliance appears to have discouraged counsel from reading, or at least following, the basic requirements of CR 76.12.

581 S.W.3d at 49. The same can be said of this appeal.

Furthermore, French predates the Supreme Court's opinion in Ford v. Commonwealth , which reaffirms the appropriateness of the very sanctions imposed here, and more.³ 628 S.W.3d at 153-54. And in Commonwealth v. Roth , the Supreme Court struck the appellant's brief and dismissed that appeal for lesser violations than those justifying striking this appellant's brief and dismissing. 567 S.W.3d at 596 ("Because the Commonwealth failed to comply with CR 76.12(4)(c)(iv) and (v), we exercise our discretion under CR 76.12(8)(a) and order the Commonwealth's brief stricken and this appeal dismissed."). Are Ford and Roth not sending a message we should heed? Are these not messages appellate advocates should heed?

Substantial compliance is not a brief-writing standard; it is a judicial doctrine that allows a reviewing court to ignore its own rules when a party violates them, provided a good faith effort to comply can be shown. In this case, "there is nothing to indicate a good faith effort ... to comply with the requirements of CR 76.12(4)(c)(iv) and (v) [,]" Roth , 567 S.W.3d at 596, nor can the inference reasonably be drawn that counsel seriously reviewed CR 76.12 before briefing.

There are limits. We cannot apply the doctrine of substantial compliance to excuse substantial noncompliance any more than we can apply it to forgive the filing of a notice of appeal out of time. Courts do not possess the power of royal prerogative, a concept we reject because it is not "in accord with the spirit of a republican form of government. There is no royal prerogative ...." Cochran v. Beckham , 28 Ky. L. Rptr. 370, 89 S.W. 262, 263 (1905). The people...