JAMES A. DOLL and M. BRIGID DOLL V. THOUSAND ADVENTURES OF KENTUCKY, INC.
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RENDERED: September 18, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000148-MR
JAMES A. DOLL and M. BRIGID
DOLL
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE EDWIN A. SCHROERING, JR.,JUDGE
ACTION NO. 96-CI-0255
V.
THOUSAND ADVENTURES OF
KENTUCKY, INC.
APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; ABRAMSON and COMBS, Judges.
COMBS, JUDGE:
The appellants, James A. Doll and M. Brigid Doll
(the Dolls), appeal from the judgment of the Jefferson Circuit
Court.
They contend that the court erred by failing to award
late charges and interest in their counterclaim against the
appellee, Thousand Adventures of Kentucky, Inc. (Thousand
Adventures).
Due to the fact that it was not filed in a timely
fashion, we must dismiss the Dolls' appeal.
This appeal arises from an action filed by the appellee
seeking specific performance of a lease into which it had entered
with the Dolls regarding real estate referred to as "The Resort."
"The Resort" property was located in Meade County, Kentucky; the
Dolls had developed this real estate into a vacation and resort
area, including cabins, camp sites, and other recreational
facilities; they leased this resort to Thousand Adventures.
In
its complaint, Thousand Adventures contended that it had
attempted to exercise a purchase option contained in the lease
and that the Dolls had refused to convey the property.
In
response, the Dolls filed a counterclaim alleging that Thousand
Adventures had breached the lease.
On October 2, 1996, the Jefferson Circuit Court entered
an order compelling the Dolls to convey the subject property to
Thousand Adventures within forty-eight (48) hours.
On November
15, 1996, the court entered findings of fact and conclusions of
law following the Dolls' motion to vacate and amend the order of
October 2, 1996.
The court again ordered the Dolls to transfer a
deed and a title policy to Thousand Adventures within forty-eight
(48) hours.
On December 19, 1996, the court denied the Dolls'
second motion to modify and vacate the judgment.
On January 13,
1997, a hearing was held on the Dolls' third motion to modify and
vacate the original judgment of October 2, 1996 (amended November
15, 1996).
The Dolls filed a notice of appeal on January 15, 1997,
requesting interest and late charges for the subject property.
On January 27, 1997, the Jefferson Circuit Court entered
"Additional Findings of Fact, Conclusions of Law and Order"
denying the Dolls' request for interest and late charges.
appeal followed.
-2-
This
After a thorough examination of the record, it is clear
that the Dolls' notice of appeal filed on January 15, 1997, is
procedurally defective.
RCr 59.05 provides: "A motion to alter
or amend a judgment, or to vacate a judgment and enter a new one,
shall be served not later than 10 days after entry of the final
judgment."
According to Cloverleaf Dairy v. Michels, Ky. App.
636 S.W.2d 896 (1982), there is no authority in the Civil Rules
for a party to make more than one motion for reconsideration of a
judgment.
Consistent with Cloverleaf Dairy v. Michels, supra,
the time for appeal began to run on November 15, 1996, when the
Jefferson Circuit Court denied the Dolls' first motion under RCr
59.05 to vacate the judgment and order of October 2, 1996.
The
dates of the filing of the second and third motions to vacate the
judgment are irrelevant.
Clearly, the filing of the notice
of
appeal on January 15, 1997 (two months later) is not timely.
Therefore, this appeal must be dismissed.
For the foregoing reasons, it is hereby ORDERED that
this appeal be dismissed.
ALL CONCUR.
ENTERED: September 18, 1998
/s/
Sara Combs
JUDGE, KENTUCKY COURT OF APPEALS
-3-
BRIEF FOR APPELLANT:
Bert M. Edwards
Louisville, KY
-4-
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