Opinion
2023-CA-0832-MR
10-25-2024
LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT APPELLANT v. BRIAN GATES APPELLEE
BRIEFS FOR APPELLANT: John F. Parker, Jr. Nicholas Hart Louisville, Kentucky BRIEF FOR APPELLEE: Damon Willis Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 22-CI-001709
BRIEFS FOR APPELLANT: John F. Parker, Jr. Nicholas Hart Louisville, Kentucky
BRIEF FOR APPELLEE: Damon Willis Louisville, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
OPINION
ACREE, JUDGE:
The Louisville and Jefferson County Metropolitan Sewer District (MSD) appeals the Jefferson Circuit Court's denial of summary judgment. We dismiss this appeal as interlocutory.
BACKGROUND
Appellee, Brian Gates, is a resident of Louisville, and his home is serviced by MSD's sewer lines. Gates came home one day to find his basement flooded with sewage. He alleges that, as he was attempting to deal with the flooding, he slipped in the sewage and fell, injuring his wrist. Gates further alleges he incurred significant medical expenses as a result, as well as lost wages.
Gates sued MSD. Discovery ensued. The circuit court conducted a pre-trial conference in November 2022 and scheduled trial for July 3, 2023.
On May 4, 2023, MSD moved to remand the trial date and order a briefing schedule for motions for summary judgment. The court denied that motion and, two days later, MSD filed a motion for summary judgment arguing Gates could not satisfy the elements of his tort claim and that MSD was entitled to immunity pursuant to Kentucky's Claims Against Local Governments Act (CALGA), KRS 65.200 et seq. The court found neither argument persuasive and denied MSD's motion for summary judgment. This appeal followed.
Kentucky Revised Statutes.
The circuit court is holding the litigation in abeyance while we review this interlocutory appeal. MSD makes the same arguments here that it made before the circuit court.
ANALYSIS
With few exceptions, CR 54.01 limits appellate review to final judgments. Denial of summary judgment is not a final judgment; it is "considered interlocutory and not appealable. In the absence of an exception to the general rule, this Court lacks jurisdiction over an interlocutory appeal." Recbar, LLC v. Drake, 579 S.W.3d 198, 199 (Ky. App. 2019) (citations omitted). "[A] ruling on an immunity defense" is such an exception. Baker v. Fields, 543 S.W.3d 575, 577 (Ky. 2018). However, there are limitations even to the exception.
Kentucky Rules of Civil Procedure.
"[T]he scope of interlocutory appellate review should be limited to the issue of immunity[.]" Id. at 578. That means issues unrelated to immunity will not be addressed even if argued. That limitation is relevant here, as discussed below.
A second limitation is that interlocutory review cannot be undertaken when the claim is immunity from liability. Baker v. Fields also limits review to "a trial court's determination of a defendant's immunity from suit[.]" Id. (emphasis added). See Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009) (emphasis added) ("an order denying a substantial claim of absolute immunity is immediately appealable").
Regarding the first limitation, we have no jurisdiction to engage in interlocutory review of the circuit court's denial of summary judgment based on MSD's arguments Gates cannot prove foreseeability, notice, or knowledge of a sewer line obstruction. These arguments relate to the issue of negligence, not immunity. We therefore turn to MSD's remaining claim - "CALGA immunity."
We first note even this argument is tainted by repeated references to an absence of evidence "that MSD was negligent." (Appellant's Br. 14.) Again, these arguments do not relate to the immunity claim. Ignoring those references, however, we are left with MSD's argument that KRS 65.2003(3) "affords protection from liability to MSD for its inspection and maintenance of its sewer lines prior to the October 2021 incident." (Id.) (emphasis added).
MSD mistakenly cites KRS 65.200(3) which simply defines "local government."
Limiting review to this argument, we have no choice but to dismiss the appeal as asserting an interlocutory claim for immunity from liability and not immunity from suit. "[T]he Claims Against Local Governments Act simply says 'a local government shall not be liable for injuries or losses' except as provided by therein. KRS 65.2003 (emphasis added). As a statutory defense to liability only, its denial can be vindicated following a final judgment as with any other liability defense." S. Woodford Water Dist. v. Byrd, 352 S.W.3d 340, 343 (Ky. App. 2011), overruled on other grounds by N. Ky. Water Dist. v. Carucci, 600 S.W.3d 240 (Ky. 2019). See Commonwealth v. Farmer, 423 S.W.3d 690, 698 (Ky. 2014) (interlocutory jurisdiction requires constitutional or statutory authorization).
On the other hand, a successful claim of "governmental immunity frees the government agency from the burdens of litigation, not just liability." Id. Unfortunately for MSD, even if we could interpret its immunity-from-liability-under-CALGA argument as a claim for governmental immunity from suit, we could not review it because MSD never made that argument before the circuit court. "[A]n appellant preserves for appellate review only those issues fairly brought to the attention of the trial court." Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012).
MSD has not presented any argument over which this Court has interlocutory jurisdiction.
CONCLUSION
Appeal No. 2023-CA-0832-MR is ORDERED DISMISSED for want of jurisdiction.
ALL CONCUR.