DONALD CARSON, PRESIDENT; DONALD L. CARSON, A/K/A DONALD CARSON, A/K/A PETE CARSON, INDIVIDUALLY, AND AS A STOCKHOLDER OF HORIZON-421 COAL COMPANY, INC.; AND DONALD CARSON, D/B/A HORIZON COAL, INC., 421 COAL, INC., HORIZON COAL CORPORATION; AND HORIZON/421 COAL COMPANY, INC. v. RAYMOND R. BURGESS, SR.; GEORGE C. DESERN; AND LAWRENCE L. FREEMAN, INDIVIDUALLY AND AS STOCKHOLDERS IN THE HORIZON-421 COAL COMPANY, INC., A KENTUCKY CORPORATION
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RENDERED: June 11, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000555-MR
DONALD CARSON, PRESIDENT;
DONALD L. CARSON, A/K/A
DONALD CARSON, A/K/A PETE CARSON,
INDIVIDUALLY, AND AS A
STOCKHOLDER OF HORIZON-421 COAL
COMPANY, INC.; AND DONALD CARSON,
D/B/A HORIZON COAL, INC., 421 COAL,
INC., HORIZON COAL CORPORATION; AND
HORIZON/421 COAL COMPANY, INC.
APPELLANTS
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
ACTION NO. 79-CI-0594
v.
RAYMOND R. BURGESS, SR.;
GEORGE C. DESERN; AND
LAWRENCE L. FREEMAN,
INDIVIDUALLY AND AS
STOCKHOLDERS IN THE
HORIZON-421 COAL COMPANY, INC.,
A KENTUCKY CORPORATION
APPELLEES
OPINION AND ORDER DISMISSING
** ** ** ** **
BEFORE:
GARDNER, MILLER, AND SCHRODER, JUDGES.
MILLER, JUDGE.
Appellants filed the Notice of Appeal herein on
February 27, 1997.
Therein, appellants stated that the appeal
was taken from an order of the Madison Circuit Court signed on
February 6, 1997, and entered on February 10, 1997.
A copy of
the circuit court's order accompanied the Notice of Appeal.
Upon
review of that order, it appears the appellants had two motions
pending before the circuit court: (1) Ky. R. Civ. Proc. (CR)
60.01 and 60.02 motion and (2) CR 59.05 motion to alter, amend,
or vacate.
Appellants apparently view the February 10 order as
overruling both motions.
They thus seek our review of the
alleged denial of their CR 60.01 and 60.02 motion and the
underlying circuit court order of dismissal, which spawned the
motion to alter, amend, or vacate.
The February 10 order clearly stated that the “Motion
to Alter, Amend or Vacate is OVERRULED.”
However, the circuit
court, in that order, never specifically ruled upon appellants'
motion under CR 60.01 and 60.02.
We are aware that a motion
panel of the Court of Appeals, by order entered April 16, 1997,
denied appellees' motion to dismiss the above appeal and
concluded that “[t]his appeal was timely taken from the denial of
a motion pursuant to CR 60.02.”
We, however, sua sponte
reconsider said order and conclude that the order appealed from,
entered February 10, did not, in fact, dispose of appellants'
pending CR 60.01 and 60.02 motion.
Cf. Knott v. Crown Colony
Farm, Inc., Ky., 865 S.W.2d 326 (1993) (observing that an
interlocutory order is subject to further review, either upon
motion or sua sponte, until a final decision is entered).
Hence,
we consider appellants' appeal based upon denial of CR 60.01 and
60.02 relief as premature.
We additionally believe appellants' motion to alter,
amend, or vacate was untimely made in the Madison Circuit Court.
-2-
The motion sought relief from the circuit court's order of
dismissal, which was entered upon and which notation of service
was made upon December 2, 1996.
Kentucky Rule of Civil Procedure
59.05 requires that a motion to alter, amend, or vacate “be
served not later than 10 days after entry of the final judgment.”
In the case at hand, appellants' motion to alter, amend, or
vacate was filed and certified on December 13, 1996, some eleven
(11) days after entry of and notation of the order of dismissal.
As appellants' motion to alter, amend, or vacate was untimely,
the running of time for an appeal from the December 2 dismissal
order was not terminated.
As such, appellants' Notice of Appeal
filed February 27, 1997, was untimely to attack the December 2
dismissal order.
CR 76.02.
Being sufficiently advised, this court sua sponte
ORDERS that this appeal be hereby DISMISSED.
ALL CONCUR.
____________________________
JUDGE, COURT OF APPEALS
ENTERED:
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Joe T. Roberts
London, KY
Guy K. Duerson
Berea, KY
-3-
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