Two recent Kentucky appellate decisions, one by the Kentucky Supreme Court, the other by the Court of Appeals, address important issues of appellate procedure.
1. SUPERSEDEAS BOND
In The Dreamers, LLC v. Don’s Lumber & Hardware, Inc., 2010-SC-000227-DG (9/22/2011), the Supreme Court in an opinion by Justice Noble held that a judgment debtor need not post a supersedeas bond in order to prosecute an appeal of the judgment. In doing so the Court reversed a holding of the Court of Appeals that payment of the judgment had rendered the appeal moot. The Supreme Court noted that rather than posting a bond the appellant has the option of paying the judgment, prosecuting the appeal, then seeking reimbursement if the judgment is reversed on appeal.
The reasons to pay the judgment in such a situation would be both to save the cost of the bond and avoid the running of post-judgment interest at the statutory judgment rate (still at a punitive rate of 12%, though on motion the trial court may set a lower rate).
If a bond is not obtained and the judgment is not paid, the creditor may execute on the judgment to collect it, but must repay the money collected if the judgment is reversed.
Of course, in any case a judgment debtor who wishes to appeal without posting a bond should be sure of the creditor’s ability to repay the judgment in the event of reversal on appeal.
The Dreamers opinion is consistent with prior case law, particularly Elk Horn Coal Corp. v. Cheyenne Resources, Inc., 163 S.W.3d 408 (Ky. 2005).
2. INTERLOCUTORY APPEAL
In a June 1 blog post we discussed situations in which the right of interlocutory appeal exists. The Court of Appeals (Judge Van Meter presiding) issued an opinion on September 23 involving among other issues the question of a right of interlocutory appeal of an order denying a claim of governmental immunity. South Woodford Water District v. Byrd, 2009-CA-000854 (9/23/2011). The Court analyzed the issue in light of federal case law applying the “collateral order doctrine,” which permits an appellate court to entertain an appeal from an interlocutory order that is collateral to the merits of the action and is too important to be denied immediate review.
Again, prior Kentucky case law permitted the interlocutory appeal of an order denying a substantial claim of immunity. SeeBreathitt County Board of Education v. Prater, 292 S.W.3d 883, 886 (Ky. 2009).
NOTE: Both opinions referenced in this post were designated for publication but are not yet final. Nonfinal opinions should not be cited as authority. However, both opinions are consistent with prior authority cited in them.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.
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