Berger Family Real Estate, LLC v. City of Covington , 2015 Ky. App. LEXIS 80 ( 2015 )

COMBS, JUDGE,

CONCURRING:

I write separately solely to address the nature of the prehearing statement as discussed in the majority opinion. In the cape upon which it relies, Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 197 (Ky.1994), the Supreme Court held that “failure to observe strict compliance with CR 76.03 is not jurisdictional.” However, that statement bolstering substantial compliance has been brought into question by a subsequent case, Sallee v. Sallee, 142 S.W.3d 697 (Ky.App.2004). In Sallee, this Court declined to review an issue that had not been raised either in the prehearing statement or by timely motion seeking permission to raise it late — clearly implying that the rule had jurisdictional implications.

I raise this point simply to note that Sallee essentially treated the failure to recite an issue in the prehearing statement as a jurisdictional bar to its consideration on appeal. The conflict between Capital Holding and Sallee, of course, would require deference to the Supreme Court decision in Capital Holding. However, the very existence of inconsistency as to the jurisdictional impact of CR 76.03(8) is a matter of concern for the practicing Bar to alert it to proceed with caution on this issue.