Opinion
NO. 2013-CA-000279-MR
06-13-2014
DEBRA K. PEARMAN APPELLANT v. HARDIN COUNTY, KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kurt A. Scharfenberger Louisville, Kentucky BRIEF FOR APPELLEE: Greg N. Stivers Scott D. Laufenberg Bowling Green, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 08-CI-02397
OPINION AND ORDER
DISMISSING
BEFORE: ACREE, CHIEF JUDGE; JONES AND VANMETER, JUDGES. VANMETER, JUDGE: Debra Pearman appeals from the Hardin Circuit Court order which granted Hardin County Memorial Hospital ("HMH")'s motion for summary judgment with regard to Pearman's allegations of sexual harassment/hostile work environment and retaliation under the Kentucky Civil Rights Act, KRS 344.010 et seq. Due to Pearman's failure to comply with the appellate rules of civil procedure, specifically CR 76.03, we hereby dismiss this appeal.
Kentucky Revised Statutes.
Kentucky Rules of Civil Procedure.
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CR 76.03(4)(h) provides that within twenty days of filing a notice of appeal, an appellant must file a prehearing statement setting out a "brief statement of the facts and issues proposed to be raised on appeal, including jurisdictional challenges[.]" CR 76.03(8) specifically provides that a "party shall be limited on appeal to issues in the prehearing statement except that when good cause is shown the appellate court may permit additional issues to be submitted upon timely motion."
In accordance with CR 76.03(8), "the Court of Appeals will not consider arguments to reverse a judgment that have not been raised in the prehearing statement or on timely motion. After all, the issues on appeal are the issues used to challenge the trial court's judgment." Am. Gen. Home Equity, Inc. v. Kestel, 253 S.W.3d 543, 549 (Ky. 2008). Sanctions for a party's failure to comply with the provisions of CR 76.03 include dismissal of the appeal. CR 76.03(14). In deciding the appropriate sanction, we bear in mind that substantial compliance with the rules of appellate procedure, rather than strict compliance, is required. Crossley v. Anheuser-Busch, Inc., 747 S.W.2d 600, 601 (Ky. 1988) (adopting "substantial compliance" rule articulated in Ready v. Jamison, 705 S.W.2d 479 (Ky. 1986)). To that end, the appellate court is to "decide the appropriate sanction on a case-by-case basis and exercise its discretion only after considering the seriousness of the defect." Crossley, 747 S.W.2d at 601. In doing so, "[t]he Court must attempt to balance the harm caused against the objectives sought to be promoted to arrive at an appropriate sanction." Id.
Pearman's prehearing statement failed to provide any substantive information about the appeal. In addition to omitting basic information like the nature of the appeal and any prior appeals, Pearman specifically failed to provide any information on the facts of this lawsuit and failed to list any proposed issues to be raised on appeal, as required by CR 76.03(8). This is not a case in which the appellant identified in her prehearing statement a broad issue to be raised, and thereafter briefed a related sub-issue of the identified broader issue. See, e.g., Self v. Self, 2006 WL 3691059 at *2 (Ky. App. 2006) (appellate court will consider issue of redemption checks since appellant substantially complied with CR 76.03(8) by identifying in the prehearing statement the issue of the inequitable nature of the settlement distribution, of which the checks form an integral part). Rather, Pearman failed to list in her prehearing statement any issues proposed to be raised on appeal. Nor did she identify the type of litigation, any prior appellate court history, the circuit court disposition, the relief, or the facts and issues of the case.
HMH raised Pearman's failure to comply with CR 76.03 in its brief and asserted that dismissal was the appropriate sanction. Pursuant to CR 76.12(1), the appellant is permitted to file a reply brief with the Court. Pearman elected not to do so, and therefore, has not offered any explanation for her failure to file the required statement or advanced an argument for our imposing a sanction less severe than dismissal.
If we proceeded to review the merits of her appeal, and disregarded HMH's argument concerning the inadequacy of Pearman's prehearing statement, we would obviate the objectives of CR 76.03 and encourage parties not to comply with its provisions. We decline to do so. Pearman failed to even substantially comply with CR 76.03 and, as a result, we find dismissal of her appeal to be the appropriate sanction.
Appeal No. 2013-CA-000279-MR is hereby dismissed.
ALL CONCUR.
Laurance B. VanMeter
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Kurt A. Scharfenberger
Louisville, Kentucky
BRIEF FOR APPELLEE: Greg N. Stivers
Scott D. Laufenberg
Bowling Green, Kentucky