Kentucky Congress of Parents and Teachers, Inc. D/B/A Kentucky Pta v. Jefferson County Public Schools ( 2020 )

RENDERED: AUGUST 21, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-001374-MR
KENTUCKY CONGRESS OF PARENTS AND
TEACHERS, INC. D/B/A KENTUCKY PTA APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT,
v. HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 19-CI-004860
JEFFERSON COUNTY PUBLIC SCHOOLS;
JEFFERSON COUNTY BOARD OF EDUCATION;
AND GAY ADELMANN APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND KRAMER, JUDGES.
KRAMER, JUDGE: Kentucky Congress of Parents and Teachers, Inc. d/b/a
Kentucky PTA (“Kentucky PTA”) appeals from an order of the Jefferson Circuit
Court requiring Jefferson County Public Schools (“JCPS”) and the Jefferson
County Board of Education (“the Board”) to turn over the financial records of
Kentucky PTA on file with the Board pursuant to Kentucky’s Open Records Act
(“KORA”; KRS1 61.870 et seq.). Because appellate review on the merits of
Kentucky PTA’s argument has been thwarted by the lack of an adequate record on
appeal, we affirm.
The record before us indicates that on or about June 26, 2019, Gay
Adelmann submitted a request to JCPS for the financial records of Kentucky PTA
pursuant to KORA. On August 9, 2019, Kentucky PTA filed the instant action in
Jefferson Circuit Court, seeking injunctive relief to prevent either the Board or
JCPS from turning over the financial records to Adelmann. The complaint alleged
that the financial records of Kentucky PTA were excluded from the provisions of
KORA because the records were “confidential and proprietary” pursuant to KRS
61.878(1)(c). Kentucky PTA also filed a “motion for ex parte restraining order”
on the same date the complaint was filed. The motion was not noticed for a
hearing before the circuit court.
The circuit court held a hearing on August 15, 2019. The circuit court
subsequently entered an order on August 27, 2019, which required the Board to
turn over Kentucky PTA’s financial records to Adelmann pursuant to KORA. This
appeal followed.
1
Kentucky Revised Statute.
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We must first note that Kentucky PTA has not filed a designation of
record pursuant to CR2 75.01. While we acknowledge that it is the appellant’s
responsibility to designate the appellate record,3 both Kentucky PTA and
Adelmann point to arguments made during the hearing conducted by the family
court on August 15, 2019, in their briefs to this Court.4 That hearing is not in the
record before us. Without it, the scant record before us provides nothing to review
with regard to how the circuit court arrived at its order. Kentucky PTA
characterizes the hearing as a “temporary injunction hearing,”5 but points to
nothing in the record in support of that assertion. Indeed, there is no scheduling
order contained in the record, nor is there a motion noticed for that date.
Conversely, Adelmann asserts that, as a result of the hearing, “the [circuit] court
was sufficiently advised and needed no further information.”6
There is controlling precedent when the record before this Court is
incomplete. To wit,
if appellant’s position is that the evidence does not
support the trial court’s finding and judgment, there is no
2
Kentucky Rule of Civil Procedure.
3
See Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
4
We note, however, that neither party cites specifically to the video recording of the hearing,
which is a violation of CR 76.12(4)(c)(v).
5
See page 3 of Kentucky PTA’s brief.
6
See page 3 of Adelmann’s brief.
-3-
[video recording or] transcript of it against which we can
measure the soundness of the findings. On appeal, the
trial court’s findings of fact will not be disturbed unless
they are clearly erroneous. CR 52.01. When the
evidence is not presented for review, this court is
confined to a determination as to whether the pleadings
support the judgment and on all issues of fact in dispute
we are required to assume that the evidence supports the
findings of the lower court.
McDaniel v. Garrett, 661 S.W.2d 789, 791 (Ky. App. 1983) (citation omitted).
Thus, without the recorded hearing, we must assume the content of
the hearing supported the circuit court’s order. Id. Further, an attorney practicing
before this Court must not assume that the circuit court clerk will certify all
recorded hearings as part of the record pursuant to CR 98 without a specific
designation.7 Gambrel v. Gambrel, 501 S.W.3d 900, 902 (Ky. App. 2016) (citing
King v. Commonwealth, 384 S.W.3d 193, 194-95 (Ky. App. 2012)).
7
See CR 98(3) which states, in relevant part
Unless otherwise ordered by the court, no transcript of court
proceedings shall be made a part of the record on appeal except as
provided in Paragraph 4 of this rule. The official video recordings,
together with the clerk’s written record, shall constitute the entire
original record on appeal. To facilitate the timely preparation and
certification of the record as set out in this rule, appellant or
counsel for appellant, if any, shall provide the clerk with a list
setting out the dates on which video recordings were made for all
pre-trial and post-trial proceedings necessary for inclusion in the
record on appeal. Designation of the video recordings shall be
filed within the ten (10) day time limitation and in the manner
described in Rule 75.01(1). Supplemental designation by other
-4-
As in Gambrel, we acknowledge that this result may seem harsh to
parties practicing before this Court. However, “each time we do not strictly apply
the rules we erode them. We certainly hope this case serves as a warning to
practitioners to carefully read and follow CR 98 to avoid missteps on behalf of
their clients and to ensure a complete record—containing all relevant videos, CDs
and DVDs—is certified to the appellate court.” Id. “We will not reiterate all that
has been said too many times before on [the subject of compliance with procedural
rules]. If a lawyer is curious about the importance of these procedural rules or the
practical reasons for following them, we recommend reading these opinions in
chronological order: Commonwealth v. Roth, 567 S.W.3d 591 (Ky. 2019); Koester
v. Koester, 569 S.W.3d 412 (Ky. App. 2019); Hallis v. Hallis, 328 S.W.3d 694
(Ky. App. 2010); Elwell v. Stone, 799 S.W.2d 46 (Ky. App. 1990).” Clark v.
Workman, ____ S.W.3d ___, No. 2019-CA-000805-ME, 2020 WL 3582597, at *2
(Ky. App. June 26, 2020) (designated to be published).
In light of the foregoing, we AFFIRM the judgment of the Jefferson
Circuit Court.
ALL CONCUR.
parties shall likewise conform with the requirements of Rule
75.01(1).
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
GAY ADLEMANN:
S. Coy Travis
Hillview, Kentucky Anna Stewart Whites
Frankfort, Kentucky
BRIEF FOR APPELLEE
JEFFERSON COUNTY BOARD OF
EDUCATION:
C. Tyson Gorman
Louisville, Kentucky
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