The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/546018
23 B&B; • 7.15 CR 58 – Entry of Judgments Every judgment or order en- tered in a state court proceed- ing must be signed by the judge. FRCP 58 directs the clerk of the court to enter judg- ment "without awaiting the court's direction" when the jury returns a general verdict, or the court awards only costs or a sum certain, or when the court denies all relief. CR 59 – Post-judg- ment Motions Kentucky's rule lists specif- ic grounds for a new trial, and a motion seeking one must be made within 10 days of entry of the judgment. The federal rule allows 28 days, and as grounds refers to "any reason for which a new trial has been heretofore grant- ed in an action at law in federal court." FRCP 59(a)(1)(A). Both courts allow a court to grant a new trial on its own initiative or for grounds not stated in a motion, and both allow a court to take addition- al evidence and other action if the case was not tried by a jury. CR 62 – Stay The Kentucky rule does not contain the provision of FRCP 62 forbidding execution on a judgment "until 14 days have passed after its entry." CR 69.03 provides, instead, that Kentucky's statutes control. KRS 426.030 forbids any execu- tion to issue until 10 days after entry of judgment. If a party moves for post-judg- ment relief in state court under CR 50, 52.02, or 59, the motion serves as an automatic stay of the judgment in Kentucky (and the Kentucky court has discretion to stay pro- ceedings while a CR 60 motion is pending). Un- der FRCP 62(b), a stay pending resolution of a motion made under any of the parallel rules (FRCP 50, 52(b), 59, or 60) is discretionary. This means a movant in federal court must affirmatively seek a stay when filing such a motion and should do so within 14 days (instead of waiting 28 days). Both versions of Rule 62 allow for a stay pending appeal to be obtained by posting a bond. Injunction cas- es, however, are treated differently; CR 62.02 and CR 65.08 allow the cir- cuit court to main- tain the status quo long enough for the movant to seek further relief from the appel- late court, while FRCP 62(c) al- lows the district court to stay the case pend- ing appeal. If a federal ap- peal has al- ready been docketed, however, FRCP 62.1 may constrain the district court's au- thority to act. CR 63 – Disability of Judge Kentucky's rule allows a succes- sor judge to grant a new trial if disability occurs after a trial and the successor cannot perform the post-trial duties. This is dif- ferent from FRCP 62 which al- lows the successor to proceed upon certifying familiarity with the record and lack of preju- dice. In such a case, however, if there was no jury, the federal judge "must recall any witness whose testimony is material and disputed" if a party makes that request and the witness is available. CR 65 – Injunctions While injunction practice is con- ceptually the same in both courts (seeking urgent relief, needed immediately) the lan- guage and procedure are dif- ferent and care should be taken to follow the applicable rules and case law for the specific court. For example, CR 65 talks about a "restraining order" and a "temporary injunction" whereas FRCP 65 refers to a "preliminary injunction" and a "temporary restraining order." The duration of temporary relief is also different under CR 65.03 and FRCP 65. The federal rule also expressly contemplates advancing a trial on the merits of the case so that evidence taken on the motion for injunc- tive relief becomes the actual trial. 27 Because of the immediacy and urgency inherent in injunction practice, this is one place where litigants must go straight to the applicable rule and stay fo- cused on what that rule re- quires. While federal case law might be persuasive by analogy in assessing irreparable harm, for example, confusion in prac- tice and standards could easily lead to reversible error by the next higher court. CR 67 – Deposits Into Court Kentucky's rule provides for court-ordered deposits into court, for which there is no fed- eral counterpart in FRCP 67. If a party seeks to be dismissed from an action by making a de- posit into court and relinquish- ing any claim to those funds, in- terpleader is also provided for by rule 22 in both systems, and by federal statute. 28 CR 68 – Offers of Judgment Kentucky's rule on making an offer of judgment contains a provision that is not found in FRCP 68 nor explained by case law: "The offer may be condi- tioned upon the party's failure in his defense." Because the state rule contemplates that an offer of judgment must be ac- cepted within 10 days after it is served, and that it must be made "more than 10 days be- fore the trial begins," this con- dition (which may be a remnant of code practice predating the civil rules) would not seem ap- plicable to a failure of defense at trial and it is unclear how, if ever, it could apply in modern practice. The federal rule allows 14 days for acceptance. CR 71 – Enforcement For and Against Non-parties These rules are substantively the same, except the federal rule contains an entire subpart, FRCP 71.1, on condemnation of property. Kentucky's proce- dure is governed by the Emi- nent Domain Act, KRS Chapter 416. CR 72-76 – Appellate Practice A comparison of appellate practice is beyond the scope of this article, as federal practice is governed not by the civil rules of procedure, but rather by the Federal Rules of Appellate Pro- cedure (and, for Kentucky prac- titioners, by the Sixth Circuit's own rules and internal operat- ing procedures). FRCP 72-73,