NICKELL, Judge:
James W. Oakley seeks to appeal a verbal order made by the Family Court Division of the Laurel Circuit Court during an evidentiary hearing on August 2, 2011. We strike James's brief for noncompliance with the Kentucky Rules of Civil Procedure (CR) and dismiss the appeal for lack of jurisdiction.
On August 8, 2011, James filed a Notice of Appeal stating:
Circuit courts speak "only through written orders entered upon the official record." Kindred Nursing Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App.2010). It was error for James to file his Notice from the verbal order entered by the trial court during the hearing. He should have filed his Notice on or after August 9, 2011, when the written order reciting the outcome of the August 2, 2011, hearing was entered, or amended his original Notice to include the written order.
Additionally, CR 76.12 sets forth the requirements for appellate briefs. We may strike a brief "for failure to comply with any substantial requirement of" the rule. CR 76.12(8)(a); Elwell v. Stone, 799 S.W.2d 46 (Ky.App.1990).
James's counsel has run afoul of CR 76.12 multiple times during the pendency of this case.
After requesting and receiving additional time, James's second brief, received by this Court on February 21, 2012, was only slightly better than his first effort in that it did give page numbers for documents in the written record, but still gave no pinpoint citations to the video record and was devoid of any statement of preservation. Thus, we are faced with another motion to strike James's brief due to the uncorrected errors, and this time the motion to strike is coupled with a request that we dismiss the appeal.
In his response and objection to the second motion to strike, James wrote in part:
While appending items to the brief enables each member of this Court to quickly review certain documents, it does not obviate the specific language of the rule. Furthermore, an appellate court cannot consider items that were not first presented to the trial court. By citing us to the specific location of the item in the record, we can confirm the document was presented to the trial court and is properly before us. Substantial compliance with CR 76.12 is essential and mandatory.
While the second brief corrected one of three highlighted deficiencies, it left two other flaws untouched. Importantly, James's first brief contained no statement of preservation for any of the three allegations of error — nor did his second. CR 76.12(4)(c)(v) requires:
(Emphasis added). James appears to misunderstand the purpose of this requirement. It 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. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted. Thus, in asking us to enforce the rules, opposing counsel is not simply playing hardball or, as James has stated, lodging "procedural objections" that are "nothing more than an extension of the Appellee mother's attempt at continuing to deny him time with his children."
Finally, the other deficiency James failed to correct was the absence of pinpoint citations to the video recordings. Counsel for James states pinpoint citations are unnecessary because the hearings were short. We disagree. First, the record in this appeal is not small. It consists of nine volumes of written record, two
In the Motion for Extension of Time to File Appellant's Brief that James filed in this Court on November 14, 2011, in which he confessed error to his calendaring omission, counsel wrote, "appeals are not common in many offices compared to trial court deadlines and that expedited appeals are even less common." His words ring true, but if counsel is unfamiliar with appellate practice he must school himself or pass the client to someone who is better versed. Reading and applying the Kentucky Rules of Civil Procedure is an excellent starting point.
As in most cases, here it is the client who suffers by counsel's failure to substantially comply with the Rules. Even if we were inclined to give counsel another opportunity to file a corrected brief, it would not make a difference because we lack jurisdiction due to the flawed Notice of Appeal.
For the foregoing reasons, the Brief for Appellant is ORDERED STRICKEN and the APPEAL is DISMISSED for lack of jurisdiction.
DIXON, Judge, Concurs.
MAZE, Judge, Concurs in Result Only.
MAZE, Judge, Concurring in Result Only:
While I agree with the majority's decision to dismiss the appeal, I disagree with its reasoning finding that this Court lacks jurisdiction to hear the appeal. The majority correctly notes that James prematurely filed his notice of appeal from the trial court August 2, 2012, oral ruling from the bench. Such oral orders are generally not appealable, since the trial court can only speak through its written orders. However, the trial court reduced its oral judgment to writing on August 9, 2012, only one day after James filed his notice of appeal. Under James v. James, 313 S.W.3d 17 (Ky.2010) and N.L. v. W.F., 368 S.W.3d 136 (Ky.App.2012), a premature filing of a notice of appeal does not require dismissal of the appeal for lack of jurisdiction. Rather, a prematurely filed notice of appeal will relate forward to the time when the trial court's interlocutory judgment became final. James, 313 S.W.3d at 23-24, N.L., 368 S.W.3d at 144-45.
The majority agrees that this relation-forward rule applies to an interlocutory order which is subsequently made final without modification. However, the majority concludes that this rule does not apply to an oral ruling which is reduced to a final written order without modification. Under the particular circumstances of this case, I cannot find any meaningful distinction between these two types of orders. Therefore, I would conclude that this Court has jurisdiction to hear James's appeal.
Nevertheless, I fully agree with the majority's excellent analysis detailing the deficiencies in James's brief. This Court has given James's counsel several chances to bring the Appellant's brief into compliance