TIMOTHY THORSEN v. RONALD PENNINGTON
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RENDERED:
SEPTEMBER 14, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000424-MR
TIMOTHY THORSEN
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, JUDGE
ACTION NO. 98-CI-00961
v.
RONALD PENNINGTON
APPELLEE
OPINION AND ORDER
STRIKING APPELLANT'S BRIEF AND DISMISSING APPEAL
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE.
Timothy Thorsen (Thorsen) appeals from an
order of the Boone Circuit Court entered February 13, 2001, which
granted summary judgment in favor of Ronald Pennington
(Pennington).
Because Thorsen’s brief does not comply with CR
76.12, we order that his appellate brief be stricken and this
appeal dismissed.
On March 17, 1997, Thorsen was struck by
by Leslie Lawson.
a car driven
Thorsen filed suit against Lawson and
Pennington in which he alleged that Pennington was the owner of
the car and that he negligently entrusted the car to Lawson.
August 26, 1999, the trial court granted summary judgment in
On
favor of Pennington.
Thorsen appealed the grant of summary
judgment to this Court, and the appeal was assigned case number
1999-CA-2730-MR.
Thorsen’s appellate brief was filed on January 13,
2000.
In his statement of the case, Thorsen completely neglected
to provide “ample references to the specific pages of the record
. . . supporting each of the statements narrated in the summary.”
CR 76.12(4)(iv).
In his brief, Pennington noted that Thorsen’s
factual statement “is totally lacking in any factual citation or
support in the Record before this Court[.]”
Despite the fact
that Pennington called Thorsen’s non-compliance to his attention,
Thorsen took no steps to remedy his non-compliance.
On January
19, 2001, this Court entered an opinion and order dismissing
Thorsen’s appeal on the ground that the order granting summary
judgment in favor of Pennington did not recite that “there is no
just reason for delay” as required by CR 54.02(1).
On February 13, 2001, the trial court entered an order
once again granting summary judgment in favor of Pennington.
This order contained the language required by CR 54.02(1).
Thorsen once again appealed the trial court’s entry of summary
judgment, and this appeal was assigned case number 2001-CA-0424MR.
On March 16, 2001, Thorsen and Pennington filed a joint
motion with this Court asking us to “process the case based on
the Record of pleadings and deposition of [Thorsen], and the
Briefs filed previously by these same parties in the earlier
appeal[.]”
The motion was granted by order entered March 21,
-2-
2001, which instructed the Court Clerk “to FILE the prehearing
statement, notice of certification of the record, and the
parties’ briefs filed in appeal No. 1999-CA-002730-MR in the
above-styled appeal[.]”
Unfortunately for Thorsen, no steps were taken to cure
his previous non-compliance with CR 76.12(4)(iv).
Furthermore, a
copy of the trial court’s order of February 13, 2001, was not
appended to Thorsen’s brief as required by CR 76.12(4)(vii).
Pursuant to CR 76.12(8)(a), “[a] brief may be stricken
for failure to comply with any substantial requirement of this
Rule 76.12.”
Thorsen’s brief failed to comply with CR
76.12(4)(iv) when originally filed and no steps were taken to
correct the noncompliance after Pennington called the deficiency
to Thorsen’s attention.
The deficiency continued unabated when
the same brief was filed in this appeal.
Finally, the trial
court’s February 2001 order was not attached to Thorsen’s brief.
Due to Thorsen’s failure to comply with CR 76.12, we order that
his brief be stricken and his appeal dismissed.
ALL CONCUR.
ENTERED: September 14, 2001
/s/ Daniel T. Guidugli
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Daniel R. Braun
Covington, KY
Robert C. Cetrulo
Covington, KY
-3-
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