Std of Review: When failed to preserve error for appeal (palpable error, manifest injustice)

In Elwell, this Court traced the history and purpose of the civil rule relating to the preservation and identification of error for review. The rule

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. . . . It goes without saying that errors to be considered for appellate review must be precisely preserved and identified . . . .

Id. (citations omitted; emphasis supplied). Failure to comply with CR 76.12(4)(c)(v) by identifying where in the record error was preserved is treated the same as if the error was not sufficiently preserved. Compare CR 61.02 with Elwell, 799 S.W.2d at 47-48.6    “It is only to avert a manifest injustice that this court will entertain an argument . . . not presented in accordance with CR 76.12(4)(c)(iv)[, recodified as CR 76.12(4)(c)(v).]” Elwell, 799 S.W.2d at 48.

5 CR 61.02 states, in pertinent part: “A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.”
6 In Elwell, the appellant alleged six separate errors. The appellee pointed out that “three of the alleged six errors assigned by appellants were not preserved[,]” thereby implying that the remaining three claims of error were preserved before the trial court. Elwell, 799 S.W.2d at 48. All six claims of error, however, were reviewed under the same manifest injustice standard. This Court “f[ou]nd no manifest injustice and decline[d] further to address any issues not presented in accordance with CR 76.12(4)(c)(iv)[.]” Id.

“On the other hand, a palpable error affecting the substantial rights of a party, even if insufficiently raised or preserved, is reviewable, and, upon a determination that it has resulted in manifest injustice, reversible. CR 61.02.” Deemer v. Finger, 817 S.W.2d 435, 437 (Ky. 1990). Unfortunately, Mother has not asked that we review her case pursuant to CR 61.02. Under such circumstances, we generally decline any further review at all for even when a party does seek review under CR 61.02, it is applied sparingly and only to exceptional situations affecting the fairness, integrity or public reputation of judicial proceedings. See id.



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