Opinion
NO. 2019-CA-000409-MR
05-08-2020
DAVID MCCRACKEN APPELLANT v. MASON MOTORSPORTS, LLC and PADUCAH MOTORSPORTS, LLC APPELLEES
BRIEF FOR APPELLANT: Joseph B. Roark Paducah, Kentucky BRIEF FOR APPELLEES: B. Scott Jones Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE WILLIAM A. KITCHEN III, JUDGE
ACTION NO. 17-CI-00432 OPINION AND ORDER
DISMISSING
Parties should take note that this decision is designated an "opinion and order" and, therefore, falls under Kentucky Rules of Civil Procedure ("CR") 76.38. Thus, petitions for rehearing are not authorized under CR 76.32(1)(a).
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BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES. GOODWINE, JUDGE: Appellant, David McCracken ("McCracken"), appeals from the February 14, 2019 McCracken Circuit Court order granting summary judgment in favor of Appellees, Mason Motorsports, LLC ("Mason") and Paducah Motorsports, LLC (collectively "Appellees"). After a careful review, we dismiss McCracken's appeal for non-compliance with briefing requirements.
BACKGROUND
McCracken, an auto mechanic, had volunteered as a flagman at the Paducah International Speedway ("Speedway") for approximately two years prior to the subject accident. In that time, McCracken estimated that he volunteered in approximately 30-35 individual races at the Speedway. As a volunteer flagman, McCracken was required to sign a waiver of liability each night he volunteered before he was allowed access to the infield.
On the night in question, McCracken signed the one-page waiver titled "Release and Waiver of Liability, Assumption of Risk, and Indemnity Agreement" ("Waiver"). McCracken testified he never read the waiver or took a copy home to examine its contents, nor had he ever asked a Speedway employee about the Waiver's contents.
After signing the Waiver, McCracken proceeded to the pit area entry where he passed through security and then proceeded into the pit area itself. McCracken did not control who else was permitted into the pit area or who participated as a driver in the races that evening. Those decisions were solely within the control and authority of Mason.
Jason Wallace ("Wallace") was a driver of one of the vehicles participating in the first race that evening. Wallace was required to go through the same entry and screening process as McCracken. He checked in at the pit shack. A Mason employee placed his arm band on and he proceeded past the security guard. He was required to attend a pre-race driver's meeting conducted by Mason approximately 15 minutes prior to the first race. The Mason employee testified she could not recall if Wallace was at the driver's meeting that evening. During these multiple encounters with Wallace, no one detected the odor of alcohol or any other indication that Wallace had been drinking at that time.
When the races began that evening, McCracken took his position as a flagman and Wallace participated in the first race as a driver. During the first lap of the first race, Wallace collided with another vehicle in the race which required McCracken to flag that vehicle into the pit area. McCracken flagged the vehicle from an area adjacent to the racetrack.
As McCracken flagged the damaged vehicle into the pit area, Wallace completed the lap. When he reached the point where McCracken was standing, he struck McCracken causing his injuries. Wallace subsequently pled guilty to 1st offense operating a motor vehicle under the influence of drugs or alcohol with aggravator, McCracken District Court Case No. 16-F-00327. McCracken sustained life-threatening injuries.
McCracken filed suit against Appellees and Wallace on May 12, 2017, alleging gross and/or ordinary negligence against Appellees. Specifically, McCracken alleged Appellees "had in place no procedures to inspect, insure, or otherwise determine that the individuals operating vehicles . . . were in a position to do so safely[,]" and further that Appellees through gross or ordinary negligence "permitted Defendant Wallace to operate a motor vehicle on their track while under the influence of alcohol[.]" Record at *1-6.
Appellees filed their motion for summary judgment on May 4, 2018. McCracken filed his response in opposition to summary judgment on June 1, 2018, and Appellees replied on June 11, 2018. McCracken filed a sur-reply in opposition on June 15, 2018. The trial court held a hearing on August 9, 2018, at which time McCracken filed a motion for leave to take the deposition of a fact witness in support of his contention that the Waiver should be held invalid.
On November 26, 2018, following the deposition of Dana Ricks Willis, Appellees filed their supplemental memorandum in support of summary judgment. McCracken responded on December 12, 2018. The trial court held oral arguments on February 5, 2019, and on February 14, 2019, the trial court granted summary judgment in favor of Appellees on all of McCracken's claims. The trial court made specific findings of fact and conclusions of law. This appeal followed.
ANALYSIS
Unfortunately, we must begin with a recitation of the civil rules and guidelines for filing appellate briefs. See CR 76.12. Appellants must follow these rules and guidelines, or risk their brief being stricken, and appeal dismissed, by the appellate court. CR 76.12(8)(a) ("A brief may be stricken for failure to comply with any substantial requirement of this Rule 76.12.").
Our Supreme Court recently reiterated "[i]t 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.'" Commonwealth v. Roth, 567 S.W.3d 591, 593 (Ky. 2019) (citation omitted). "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.'" Id. (citation omitted).
Here, McCracken's brief deviates significantly from the format mandated by CR 76.12(4)(c). It does not meet the requirements set out in parts (iv), (v), and (vii) of the rule. First, Matthew's brief does not comply with CR 76.12(4)(c)(iv):
A "STATEMENT OF THE CASE" consisting of a chronological summary of the facts and procedural
events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary.CR 76.12(4)(c)(iv) (emphasis added); Roth, 567 S.W.3d at 593.
McCracken's "Statement of the Case" fails to cite or reference "specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary." Id. Herein, McCracken writes approximately two pages of his version of the facts but makes no attempt to catalog these facts through citation to the record.
Second, and most egregiously, McCracken's brief does not comply with CR 76.12(4)(c)(v):
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.CR 76.12(4)(c)(v) (emphasis added). His "Argument" does not contain "ample supportive references to the record," nor "a statement with reference to the record showing whether the issue was properly preserved for review." Id.
McCracken engages in nearly seven pages of argument, without any reference to the record. In this, we will not undergo an expedition into this case's voluminous record to ensure McCracken's argument corresponds with it. On the contrary, our procedural rules "are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination." Roth, 567 S.W.3d at 593 (citation and internal quotation marks omitted).
An appellant's compliance with this rule allows us to undergo "meaningful and efficient review by directing the reviewing court to the most important aspects of the appeal[,] [such as] what facts are important and where they can be found in the record . . . ." Koester v. Koester, 569 S.W.3d 412, 414 (Ky. App. 2019) (quoting Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010)). Koester further reiterates:
It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court. It is not the function or responsibility of this court to scour the record on appeal to ensure that an issue has been preserved. But rather, the Kentucky Rules of Civil Procedure require an attorney to cite to the record where the claimed assignment of error was properly objected to or brought to the attention of the trial judge. This amendment is designed to save the appellate court the time of
canvassing the record in order to determine if the claimed error was properly preserved for appeal.Koester, 569 S.W.3d at 414-15 (citations and internal quotation marks omitted).
Finally, McCracken fails to comply with CR 76.12(4)(c)(vii), which governs the contents of a brief's appendix.
An "APPENDIX" with appropriate extruding tabs containing copies of the findings of fact, conclusions of law, and judgment of the trial court, any written opinions filed by the trial court in support of the judgment, the opinion or opinions of the court from which the appeal is taken, and any pleadings or exhibits to which ready reference may be considered by the appellant as helpful to the appellate court. The first item of the appendix shall be a listing or index of all documents included in the appendix. The index shall set forth where the documents may be found in the record. The 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.CR 76.12(4)(c)(vii) (emphasis added). McCracken failed to index his appendix and failed to attach the February 14, 2019 order granting summary judgment.
McCracken's appendix only contains 10 cases dating as far back as 1940. --------
"As long as a good faith effort is made, this Court will consider the arguments presented to it, as it often has done [with other litigants]." Roth, 567 S.W.3d at 596 (citation omitted). "Unfortunately for all concerned with this case, there is nothing to indicate a good faith effort on the part of [McCracken] to comply with the requirements of CR 76.12[.]" Id.
ORDER
Because McCracken failed to comply with CR 76.12(4)(c)(iv), (v), and (vii), we exercise our discretion under CR 76.12(8)(a) and order McCracken's brief stricken and this appeal dismissed.
DIXON, JUDGE, CONCURS IN RESULT ONLY.
TAYLOR, JUDGE, DISSENTS WITHOUT OPINION. May 8, 2020
ENTERED
/s/ Pamela R. Goodwine
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Joseph B. Roark
Paducah, Kentucky BRIEF FOR APPELLEES: B. Scott Jones
Louisville, Kentucky