Opinion
NO. 2018-CA-001899-MR
03-20-2020
STEVE CHANDLER APPELLANT v. WILLIAM ROBINSON, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF HAROLD KEITH CHANDLER; RANDY FISH, INDIVIDUALLY, AS TRUSTEE, AND NEXT OF KIN OF PAYETON FISH, MINOR; BRUCIE MOORE, INDIVIDUALLY AND OF MOORE & WALLACE; AND STEVEN DOWNEY, INDIVIDUALLY AND OF LAW OFFICE OF STEVEN D. DOWNEY APPELLEES
BRIEF FOR APPELLANT: Kayce R. Powell Hopkinsville, Kentucky BRIEF FOR APPELLEES: Leslie P. Vose Erin C. Sammons Gregory A. Jackson Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CRITTENDEN CIRCUIT COURT
HONORABLE C. RENÉ WILLIAMS, JUDGE
ACTION NO. 15-CI-00033 OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES. LAMBERT, JUDGE: Steve Chandler ("Steve") appeals from the Crittenden Circuit Court's order, entered November 21, 2018, which dismissed with prejudice his complaint against the appellees. Despite the assistance of licensed counsel, the appellant's brief fails to comply substantially with CR 76.12 in multiple aspects, including a failure to cite to the record and a failure to support arguments with relevant legal authority. Consequently, we order Steve's brief to be struck and this appeal to be dismissed.
Kentucky Rules of Civil Procedure.
I. BACKGROUND
The events in this case stem from a will contest brought by Steve against the estate of his brother, Harold Keith Chandler ("Keith"), and some background is necessary to understand the origin of this litigation. Steve and Keith's last surviving parent, their mother, died testate on December 13, 2007, in Crittenden County, Kentucky. She named Keith as her executor and left everything to Steve and Keith. On August 15, 2008, Steve executed a consent and waiver of final settlement for his mother's estate. About two months later, the probate division of Crittenden District Court approved the final settlement and discharged Keith from his duties as executor. Steve did not appeal from the order approving the final settlement. After his mother's death, Keith himself died in July 2011. Keith's will, which he had previously executed in 2006, designated Payeton Fish, the minor son of Keith's friend, Randy Fish, as his primary beneficiary.
This name is alternatively spelled "Payton" elsewhere in the record. We have used "Payeton" because that is how the name is spelled in the body of the notice of appeal.
Steve subsequently filed suit in Crittenden Circuit Court to challenge the validity of Keith's will. Steve's attempt to contest the will relied on two alternate grounds, asserting either that Keith lacked testamentary capacity or that his will was the product of undue influence. The matter went to trial, and on May 15, 2014, the jury found in favor of William Robinson, the executor of Keith's estate; Randy Fish; and Payeton Fish. The trial court entered judgment in accord with the jury verdict. Steve appealed from the judgment, and we affirmed the trial court in an unpublished opinion.
Chandler v. Robinson, No. 2014-CA-000963-MR, 2017 WL 652145 (Ky. App. Feb. 17, 2017), disc. rev. denied (Ky. Apr. 18, 2018).
During the pendency of the will contest litigation, Steve filed a petition in 2014 in Crittenden District Court to reopen his mother's estate, alleging he was entitled to personalty in Keith's home which had not been distributed to him. The district court denied Steve's petition, stating (1) Steve had executed a valid consent and waiver of final settlement of the estate; (2) Steve participated in the final settlement, had notice of the final settlement, and subsequently failed to appeal from the district court's order approving the final settlement; and (3) Steve's petition was barred by laches. The Crittenden Circuit Court, sitting in its appellate capacity, affirmed the district court, and we denied Steve's motion for discretionary review in 2016.
Crittenden District Court No. 07-P-00090.
Crittenden Circuit Court No. 15-XX-00005.
Chandler v. Robinson, No. 2015-CA-001182-DR (Ky. App. June 16, 2016).
While both of the foregoing matters were on appeal, Steve filed this suit in March 2015. This current action comprises an extensive list of allegations against one or more of the appellees, most of which are predicated on Steve's persistent claim to Keith's estate. The complaint alleges abuse of process, malicious prosecution, conversion, breach of fiduciary duties, civil conspiracy, misappropriation of funds, fraudulent conveyance, and intentional infliction of emotional distress. After the will contest and probate suits reached finality and were resolved against Steve, the appellees moved the trial court to dismiss this current action, arguing Steve no longer had standing to maintain the suit. The trial court agreed and entered an order of dismissal on November 21, 2018, finding Steve no longer had "a judicially recognizable interest in the subject matter of this lawsuit[.]" This appeal followed.
II. ANALYSIS
We cannot reach the merits of Steve's argument because the appellant's brief fails to comply with CR 76.12 in several important respects, many of which are significant enough to prevent a meaningful review of his arguments. Leaving aside the numerous spelling and grammatical errors scattered throughout, we begin with CR 76.12(4)(c)(i), which requires an appellant's brief to contain "[a] brief 'INTRODUCTION' indicating the nature of the case, and not exceeding two simple sentences[.]" Here, the appellant's brief contains two paragraphs, the first of which contains a block quotation from a federal case out of the First Circuit describing the nature of fraud upon the court. This is a relatively minor violation of the civil rules. Unfortunately, it is not the only one.
By way of example, we note here that the top of the cover page of the appellant's brief reads "Connonwealth [sic] of Kentucky." On page 17 of the brief, "conversion" is spelled both as "converstion" and "conversation" within two adjacent lines. Other examples abound. Given the other, more substantial problems with the brief, we need not consider this matter further.
Secondly, CR 76.12(4)(c)(iii) requires the appellant's brief to contain the following:
A "STATEMENT OF POINTS AND AUTHORITIES," which shall set forth, succinctly and in the order in which they are discussed in the body of the argument, the appellant's contentions with respect to each issue of law relied upon for a reversal, listing under each the authorities cited on that point and the respective pages of the brief on which the argument appears and on which the authorities are cited.The appellant's brief entirely omits the Statement of Points and Authorities. In Pierson v. Coffey, 706 S.W.2d 409 (Ky. App. 1985), this Court penalized omission of legal authority in some portions of the Statement of Points and Authorities by refusing to consider those issues. Id. at 413. Using Pierson's rationale, a brief which completely omits the Statement of Points and Authorities cannot expect an appellate court to consider any of its issues.
Third, under CR 76.12(4)(c)(iv), the appellant's brief must contain a Statement of the Case with "ample references to the specific pages of the record . . . supporting each of the statements narrated in the summary." The appellant's Statement of the Case makes no reference to specific pages in the record whatsoever.
It is fundamental that it is an Appellant's duty and obligation to provide citations to the record regarding the location of the evidence and testimony upon which he relies to support his position, and if an appellant fails to do so, we will accordingly not address it on the merits.Commonwealth v. Roth, 567 S.W.3d 591, 594 (Ky. 2019) (citation and internal quotation marks omitted).
Fourth, and finally, CR 76.12(4)(c)(v) requires the appellant's brief to contain:
An "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which 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.The Argument in the appellant's brief consists of a rambling tirade against the appellees, the trial court, and this Court's previous decision on appeal. More importantly, from a procedural point of view, the Argument disregards every facet of CR 76.12(4)(c)(v). Initially, the Argument cannot conform to the Statement of Points and Authorities because, as previously discussed, the appellant omitted that section of the brief.
Next, similarly to its treatment of the Statement of the Case, the brief's Argument contains no references to the record. As previously stated, failure to cite to the record will result in an appellate court declining to entertain the merits of the appellant's argument. Roth, 567 S.W.3d at 594.
Additionally, citation to authority is almost nonexistent in the brief's Argument. Most of the appellant's few extant citations are general references to the trial court's order and not in service of the appellant's asserted claims. "Assertions of error devoid of any controlling authority do not merit relief." Koester v. Koester, 569 S.W.3d 412, 414 (Ky. App. 2019).
Lastly, the appellant's Argument contains no preservation statements. The purpose of the preservation statement "is not so much to ensure that opposing counsel can find the point at which the argument is preserved, it is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration." Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
"A brief may be stricken for failure to comply with any substantial requirement of this Rule 76.12." CR 76.12(8)(a). "We have wide latitude to determine the proper remedy for a litigant's failure to follow the rules of appellate procedure[, and] dismissing an appeal for non-compliance with CR 76.12 is a matter within our discretion." Craig v. Kulka, 380 S.W.3d 546, 548 (Ky. App. 2012) (citations omitted).
It is a dangerous precedent to permit appellate advocates to ignore procedural rules. Procedural rules do not exist for the mere sake of form and style. They are 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. Enforcement of procedural rules is a judicial responsibility of the highest order because without such rules [s]ubstantive rights, even of constitutional magnitude . . . would smother in chaos and could not survive.Roth, 567 S.W.3d at 593 (internal quotation marks omitted) (quoting Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010)).
The numerous violations of CR 76.12 in the appellant's brief allow for no other penalty than that of striking the brief. A lesser sanction, even reviewing for manifest injustice only, see Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990), would require us to find our own supporting references in the record, research appropriate citations to legal authority, and construct a coherent argument, all on the appellant's behalf. We decline to undertake such a task.
"It is not our function as an appellate court to research and construct a party's legal arguments." Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). We will not search the record to construct [the appellant's] argument for him, nor will we go on a fishing expedition to find support for his underdeveloped arguments.Prescott v. Commonwealth, 572 S.W.3d 913, 923 (Ky. App. 2019). "Under CR 76.12(8)(a), we exercise our discretion to strike the [appellant's] brief, which necessarily requires that we also dismiss the . . . appeal." Roth, 567 S.W.3d at 593 (footnote omitted).
III. ORDER
Parties should take note that this decision is designated an "opinion and order" and therefore falls under CR 76.38. Petitions for rehearing are thus not authorized under CR 76.32(1)(a).
Based on the foregoing, it is hereby ORDERED that the appellant's brief is STRUCK, and this appeal is DISMISSED.
ALL CONCUR. ENTERED: __________
/s/ _________
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Kayce R. Powell
Hopkinsville, Kentucky BRIEF FOR APPELLEES: Leslie P. Vose
Erin C. Sammons
Gregory A. Jackson
Lexington, Kentucky