Opinion
NO. 2012-CA-002134-MR
02-21-2014
FORCHT BANK, NA APPELLANT v. RENEE GRIBBINS APPELLEE
BRIEF FOR APPELLANT: Emmett Daniel Clifford Corbin, Kentucky BRIEF FOR APPELLEE: Theodore H. Lavit Cameron C. Griffith Lebanon, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DAN KELLY, JUDGE
ACTION NO. 10-CI-00484
OPINION AND ORDER
DISMISSING
BEFORE: CAPERTON, MOORE, AND STUMBO, JUDGES. MOORE, JUDGE: Renee Gribbins filed a negligence and breach of contract action in Taylor Circuit Court against Appellant, Forcht Bank, alleging that Forcht Bank had wrongfully honored and improperly paid eight forged checks drawn on her account. Forcht Bank, in turn, filed a third-party complaint against the alleged forger, Andy Shane Akers, seeking contribution and asserting a claim of fraud. Following a period of motion practice and discovery, the circuit court granted summary judgment in favor of Gribbins regarding her claims against Forcht Bank. But, it made no ruling upon any of Forcht Bank's claims against Akers.
Forcht Bank now appeals. As a general matter, however, "this court is required to raise a jurisdictional issue on its own motion if the underlying order lacks finality." Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 101 (Ky. App. 2011) (citing Huff v. Wood-Mosaic Corp., 454 S.W.2d 705, 706 (Ky. 1970)). Here, the circuit court had the authority to render its decision regarding Gribbins' claims against Forcht Bank immediately appealable without also resolving Forcht Bank's separate claims for indemnity and fraud against Akers— provided that it did so by following the requirements of Kentucky Rules of Civil Procedure (CR) 54.02. See Preferred Risk Mut. Ins. Co. v. Kentucky Farm Bureau Mut. Ins. Co., 872 S.W.2d 469, 470 (Ky. 1994).
However, CR 54.02 required the circuit court's order to recite not only that it was final, but that there was "no just reason for delay." Watson v. Best Financial Services, Inc., 245 S.W.3d 722 (Ky. 2008). "Absent those certifications, the rule is not invoked." Spencer v. Estate of Spencer, 313 S.W.3d 534, 540 (Ky. 2010). In the case at bar, the circuit court's order omits that there was "no just reason for delay." As a consequence the circuit court's order, which did not resolve all of the claims presented in this matter, is merely interlocutory and unripe for review. Watson, 245 S.W.3d 722. Accordingly, this Court has no option other than to DISMISS this appeal.
STUMBO, JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS AND FILES SEPARATE OPINION.
CAPERTON, JUDGE, CONCURRING: I concur with the analysis and result of the majority opinion. I write separately only to express that there do appear to be factual issues that would preclude summary judgment. It is regrettable that if such is ultimately found to be the case, then reversible error will likely be a cloud upon any judgment entered.
Joy A. Moore
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Emmett Daniel Clifford
Corbin, Kentucky
BRIEF FOR APPELLEE: Theodore H. Lavit
Cameron C. Griffith
Lebanon, Kentucky