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Roman Catholic Bishop of Louisville v. Burden12/10/2004
or vacate, which the circuit court denied in an Opinion and Order that focused on the tolling provision. This appeal followed.
In its brief, the Archdiocese raises two issues as to why it was entitled to a summary judgment. First, the Archdiocese argues that the tolling provisions of KRS 413.190 do not apply to KRS 413.249, and second, that even if KRS 413.140 were to apply, the one-year limitations period began to run in 1988 and thus Burden's claim was time barred. On the other hand, Burden argues that the appeal was taken from a non-final order because the order denying the motion to alter, amend or vacate did not itself contain any finality language. Burden also argues that KRS 413.249 does not operate as a statute of limitations in the present case and that the general statute of limitations of KRS 413.140 does not bar his claim. In its reply brief, the Archdiocese responded to Burden's arguments concerning finality and the application of KRS 413.249.
The only issue we need to address in this case is the finality issue raised in Burden's brief, although we shall do so from a different perspective. In this case, the Archdiocese has appealed from the denial of its motion for summary judgment. It is well settled in this Commonwealth that the denial of a motion for summary judgment is interlocutory and is not appealable. In Leneave, this Court held: "The general rule under CR 56.03 is that a denial of a motion for summary judgment is, first, not appealable because of its interlocutory nature and, second, is not reviewable on appeal from a final judgment where the question is whether there exists a genuine issue of material fact." There is, however, an exception to this general rule, which was also addressed in Leneave: "The exception applies where: (1) the facts are not in dispute, (2) the only basis of the ruling is a matter of law, (3) there is a denial of the motion, and (4) there is an entry of a final judgment with an appeal therefrom." Because there has not yet been a final judgment entered in this case from which an appeal was taken, this exception has no application here.
By its very nature, the denial of the motion for summary judgment is interlocutory. Furthermore, the inclusion of the CR 54.02 finality language is meaningless here because that rule is limited to actions involving multiple parties or multiple claims, which is not the case here. Even if we were to hold that CR 54.02 applied and could operate to make this interlocutory judgment final and appealable, "there must be a final adjudication upon one or more of the claims in litigation. The judgment must conclusively determine the rights of the parties in regard to that particular phase of the proceeding." In this case, there has been no conclusive determination of the rights of any party.
Because we have determined that the Opinion and Order denying the motion for summary judgment is interlocutory and non-appealable at this time, we must dismiss the appeal.
However, this does not mean that that circuit court's ruling regarding the applicable statute of limitations cannot be appealed once a final judgment has been entered, as that is a question of law.
For the foregoing reasons, the above-styled appeal is ORDERED DISMISSED this date.
ALL CONCUR.
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