In a recent (April 4) blog post we noted that new CR 23.06 has created a right of interlocutory appeal from a trial court’s order on a motion to certify a class action. Kentucky trial lawyers should be aware of other specific situations in which Kentucky statutes or case law provide such a right, as well as the fact there is a common law test for the right of interlocutory appeal, in order to know when an interlocutory order may be taken up on appeal and when an appellate court will decline to entertain a petition for an extraordinary writ on the basis that the party seeking the writ has a right of interlocutory appeal and thus an adequate appellate remedy.
In addition to class certification orders, the right to take an interlocutory appeal arises in certain other limited situations under Kentucky law, including the following:
— a party whose motion to compel arbitration under KRS 417.060 is denied may take an interlocutory appeal under KRS 417.220.
— an interlocutory order upholding a contemnor’s right to take property is subject to appeal. Ratliff v. Fiscal Court of Caldwell County, Kentucky, 617 S.W.2d 36 (Ky. 1981).
— an interlocutory order directing the sale of property may be appealed. Security Federal Sav. & Loan Ass’n of Mayfield v. Nesler, 697 S.W.2d 136 (Ky. 1985).
— a party whose motion to intervene as a matter of right is denied under CR 24.01 may pursue appellate review on an interlocutory basis.
— since absolute immunity entitles its possessor to be free from the burdens of defending an action, not merely from liability, an order denying a substantial claim of absolute immunity is immediately appealable on an interlocutory basis. Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 249 Ed. Law Rep. 468 (Ky. 2009). But see Hyden-Leslie Water Dist. v. Jessie Hoskins and Perry Const., Inc., 2011 WL 919818 (Ky. App. 2011) (unpublished opinion).
— CR 65.07 permits an interlocutory appeal from an order granting, denying, modifying, or dissolving a temporary injunction.
— an order setting aside a judgment more than a year old pursuant to the “reason of an extraordinary nature” provision of CR 60.02(f) is subject to immediate appellate review to ensure that CR 60.02(f) has not been invoked to, in effect, evade the one-year limitations period CR 60.02 imposes on claims appropriately regarded as falling under CR 60.02(a), (b), or (c). Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329, 334–35 (Ky. 2007).
Though statutes and the Civil Rules define most such instances in which an interlocutory appeal may be taken, the Kentucky Supreme Court has adopted by common law a general (albeit restrictively applied) test to determine whether an interlocutory judgment is appealable. Ratliff v. Fiscal Court of Caldwell County, Kentucky, 617 S.W.2d 36 (Ky. 1981). See generally 5 Keats Kentucky Practice, “Methods of Practice” § 37:6 (4th ed. 2007). Under that test, an interlocutory order may be deemed final and appealable if the order will result in significant harm to the appellant for which he or she cannot be made whole. A litigant may also move the trial court to make a ruling final and appealable under CR 54.02(1) based on a finding that there is no just reason for delay. See, e.g., UPS Capital Business Credit v. C.R. Cable Const., Inc., 181 S.W.3d 44 (Ky. App. 2005).
The foregoing post includes commentary reprinted from the forthcoming 2011 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2011 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
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