Opinion
NO. 2016-CA-000956-MR
06-16-2017
PERRY COUNTY AMBULANCE AUTHORITY, INC.; SCOTT ALEXANDER; CARLOS COMBS; and DERRICK HALL APPELLANTS v. WANDA NOBLE APPELLEE
BRIEF FOR APPELLANTS: Jonathan C. Shaw Paintsville, Kentucky BRIEF FOR APPELLEE: Daniel F. Dotson Whitesburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PERRY CIRCUIT COURT
HONORABLE ALISON C. WELLS, JUDGE
ACTION NO. 15-CI-00205 OPINION & ORDER
DISMISSING
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BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND NICKELL, JUDGES. KRAMER, CHIEF JUDGE: Wanda Noble filed a declaratory action in Perry Circuit Court and asserted claims against the above-captioned appellants (collectively referred to hereinafter as "Perry") for breach of contract. Thereafter, Noble and Perry both filed cross-motions for summary judgment, both of which the circuit court denied because, in the court's view, "there are genuine issues of material fact."
Perry now appeals. Upon review, we sua sponte dismiss its appeal.
The matter of our appellate jurisdiction is an issue we are required to raise sua sponte, "as it cannot be acquired by waiver, consent, or estoppel." Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 270 (Ky. App. 2005) (footnotes omitted).
An order denying a motion for summary judgment is interlocutory in nature. It is not a final order, and it is therefore generally not appealable. See Battoe v. Beyer, 285 S.W.2d 172 (Ky. 1955) (citations omitted). There are some exceptions to this rule. For example, a circuit court's denial of a claim of immunity, to the extent that it turns on an issue of law, is an appealable "final decision" notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (adopted by Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 886-87 (Ky. 2009)). However, in the context of any such exception, the decision embodied in the interlocutory order must, to be subject to our review, "conclusively determine the disputed question," and that question must involve a "claim of right separable from, and collateral to, rights asserted in the action." Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816.
With that said, a circuit court does not conclusively determine any disputed question, resolve any right, or otherwise provide this Court with anything to review where its interlocutory order denies a claim of immunity, or any other kind of claim, on the basis that in its view further discovery is needed, or genuine facts remain. Here, the circuit court did not make a finding as a matter of law on the issue of qualified immunity, which we could review. Rather, the circuit court found that there are genuine issues of material fact, making this appealed order interlocutory, which we cannot review. We have repeatedly held that such interlocutory orders are not appealable under any exception, and thus not subject to the jurisdiction of this Court. See Farris v. Columbia, No. 2015-CA-000448-MR, 2017 WL 464798, at *2 (Ky. App. Feb. 3, 2017); Hyden-Leslie Water Dist. v. Jessie Hoskins & Perry Const., Inc., No. 2010-CA-000599-MR, 2011 WL 919818, at *2 (Ky. App. Mar. 18, 2011); Adair Cty. v. Stearman, No. 2010-CA-001953-MR, 2011 WL 4103137, at *2 (Ky. App. Sept. 16, 2011).
For this proposition of law, we find these non-published cases persuasive and proper to cite pursuant to Kentucky Rule of Civil Procedure (CR) 76.28(4)(c). --------
Based on the foregoing, this appeal is DISMISSED.
ALL CONCUR. ENTERED: JUNE 16, 2017
/s/ Joy A. Kramer
CHIEF JUDGE, COURT OF
APPEALS BRIEF FOR APPELLANTS: Jonathan C. Shaw
Paintsville, Kentucky BRIEF FOR APPELLEE: Daniel F. Dotson
Whitesburg, Kentucky