APPEAL FROM WHITLEY CIRCUIT COURT HONORABLE RODERICK MESSER,  JUDGE ACTION NO. 98-CI-00610
BRIEFS FOR APPELLANTS: Larry E. Conley
BRIEF FOR APPELLEES: Marcia A. Smith, David O. Smith
BEFORE: ACREE, CHIEF JUDGE; LAMBERT AND MOORE, JUDGES.
Glenn E. Acree JUDGE,
The appellants, Eugene Walters, Jeff Walters, and Kathy Walters, appeal the Whitley Circuit Court's March 30, 2011 order that they pay to appellees, Edith Lanham, Michael Santos, and Deborah Santos, the sum of $5, 000.00 in attorney's fees for previously having filed a frivolous appeal of that court's October 13, 2008 judgment. In lieu of filing a supersedeas bond, the appellants paid the attorney's fees to the appellees. We reverse and remand with instructions.
As indicated, this is the second appeal in this action, the first being Walters v. Lanham, 2010 WL 4296630 (Ky. App. 2010)(2008-CA-002130-MR). No factual exposition of that appeal or the underlying case is necessary. The only necessary information regarding the prior appeal is that:
(1)the first appeal was brought as a matter of right pursuant to KRS22A.020(1);
(2)the appellants and appellees are the same in this appeal as they were in the first appeal;
(3)in the first appeal, the appellees moved this Court to dismiss, but not on grounds that the appeal was frivolous, neither did they ask this Court to "award just damages and single or double costs to the appellee" as authorized by CR 73.04;
(4) in the first appeal, we affirmed the circuit court in an opinion rendered October 29, 2010 – the case was not remanded to the circuit court; and
(5)the prior opinion became final on January 18, 2011.
The genesis of this second appeal was the appellees' motion in the circuit court "for an award of a $5, 000.00 attorney fee for the frivolous appeal which they claimed was 'devoid of any merit and baseless as to the law.'" (Appellees' brief, p. 16). That motion was filed in the circuit court on December 2, 2010, after this Court's opinion in the first appeal was rendered, but before the opinion became final. The motion was granted and the order was entered on March 30, 2011, after the opinion became final.
The circuit court's order must be vacated as void ab initio, the circuit court having lacked jurisdiction and authority to so rule, and the appellees having waived the right to have the ...