Procedure for Seeking CR 73.02(4) Damages for Frivolous Appeal

By David Kramer |

More Sharing ServicesShare|Share on facebookShare on twitterShare on emailShare on printIn Walters v. Smith, 2011-CA-1026 (7/5/13), the Kentucky Court of Appeals held that the trial court does not have authority to award “just damages and single or double costs” as provided for in CR 73.02(4) for an allegedly frivolous appeal of the trial court’s judgment. Rather, the Court (by Chief Judge Glenn Acree, joined by Judges James Lambert and Joy Moore) held that such remedies must be sought from the appellate court to which the appeal is taken.

In the underlying case, the parties had entered an agreed judgment dismissing the appellants’ claims and terminating a trial that was in progress. One of the parties (acting pro se) appealed, asserting judicial bias and other errors. In an unpublished opinion, the Court of Appeals affirmed the agreed judgment. Walters v. Lanham, 2010 WL 4296630 (Ky. App. 2010). However, the appellees in that appeal did not file a CR 76.34 motion for recovery of attorney’s fees under CR 73.02(4). Rather, the appellees subsequently filed a motion in the trial court for recovery of damages, claiming the appeal was frivolous. The trial court awarded them $5,000 in attorney’s fees.

The appellants paid the judgment rather than superseding it by posting a bond but appealed the award of attorney’s fees to the Court of Appeals. The Court found that the trial court generally lost jurisdiction over the case ten days after entry of the judgment, and that the failure of the appellees to seek fees and costs from the Court of Appeals during the original appeal resulted in a waiver of their right to do so. The Court remanded with instructions to the trial court to enter a judgment directing the return of the $5,000 at issue plus pre- and post-judgment interest to the appellants.

In conclusion, the proper procedure to claim damages, attorney’s fees and costs for a frivolous appeal under CR 73.02(4) is to file a CR 76.34 motion with the appellate court that is considering the appeal. Failure to do so will result in a waiver of the right to make such a claim.

Walters v. Smith is not yet final but was designated for publication in the South Western Reporter. Non-final decisions of Kentucky appellate courts should not be cited as authority.

(It is interesting to note that the second appeal named as an appellee one of the appellees’ attorneys who was awarded fees. That is necessary in some cases because an attorney for a party who is awarded attorney’s fees can be an indispensable party to the appeal depending on how the underlying judgment for fees is worded. See, e.g., Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001), and Knott v. Crown Colony Farm, Inc., 865 S.W.2d 326 (Ky. 1993).)

Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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