Fred Clements Heating and Air Cond. v. Janes

Full title: FRED CLEMENTS HEATING AND AIR CONDITIONING COMPANY, Fred Clements…

Court: Court of Appeals of Kentucky

Date published: Jan 12, 1979

576 S.W.2d 280 (Ky. Ct. App. 1979)

Opinion

January 12, 1979.

Appeal from the Fayette Circuit Court, L. T. Grant, J.

J. Patrick Sullivan, Lexington, for appellants.

Glen S. Bagby, Lexington, for appellees.

Before MARTIN, C. J., and HOWERTON and LESTER, JJ.

OPINION AND ORDER

MARTIN, Chief Judge.

Appellees move this Court to award them damages for delay pursuant to CR 76.20(9)(a) and K.R.S. 26A.300. Appellees were successful litigants in a lawsuit against appellants. Appellants filed a supersedeas bond in the Fayette Circuit Court and appealed the lower court's judgment to this Court. This Court affirmed on March 10, 1978, and denied appellants' petition for rehearing on May 5, 1978. Appellants filed a motion for discretionary review in the Supreme Court of Kentucky on May 23, 1978. This motion was denied by the Supreme Court on October 3, 1978.

Appellees contend they are entitled to damages for the delay engendered by the filing of the petition for rehearing in this Court and the denial of the motion for discretionary review. Damages on affirmance are not payable where this Court denies a petition for rehearing under circumstances constituting a first appeal. Ash v. Security National Insurance, Ky.App., 574 S.W.2d 346 (1978). However, damages under K.R.S. 26A.300 are properly awarded when a motion for discretionary review is denied. CR 76.20(9)(a). Moreover, it appears to this Court, by virtue of a directive from the Chief Justice of the Supreme Court to the clerk of that court, that the correct procedure is that the imposition of such damages will be stated in the mandate of the appropriate court. Where the Supreme Court denies a motion for discretionary review, the mandate will issue from this Court. CR 76.30. Under the previous damage statute, K.R.S. 21.130, the award of damages on affirmance appeared in the mandate of the former Court of Appeals. Rice v. Conley, Ky., 419 S.W.2d 769 (1967).

The motion for damages under K.R.S. 26A.300 is GRANTED. It is further ORDERED that the mandate issued in this action state that appellee be awarded the damages allowed under K.R.S. 26A.300.

All concur.