WADE (JASON) VS. BRADSHAW (MILLIE), ET AL.
Annotate this Case
Download PDF
RENDERED: AUGUST 26, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002030-MR
JASON WADE
v.
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 06-CI-00149
MILLIE BRADSHAW; SHARRON
WADE; AND GEORGE WADE
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: ACREE, DIXON AND KELLER, JUDGES.
ACREE, JUDGE: Jason Wade has taken an appeal from a partial summary
judgment entered in favor of appellees. Because the partial summary judgment is
interlocutory, we lack appellate jurisdiction of the case. Therefore, we dismiss the
appeal.
This court is required to raise a jurisdictional issue on its own motion if the
underlying order lacks finality. Huff v. Wood-Mosaic Corp., 454 S.W.2d 705, 706
(Ky. 1970). The partial summary judgment from which this appeal is taken lacks
finality. Specifically, the judgment states, in pertinent part,
1. That Plaintiff’s [Appellant’s] Motion for Summary
Judgment be and same is hereby DENIED.
2. That Defendants’ [Appellees’] Motion for Summary
Judgment be and same is hereby PARTIALLY
SUSTAINED.
3. That Defendants’ Motion for Summary Judgment
regarding the damages to Defendants’ property be and
same is hereby reserved for determination at a later date.
....
THIS IS A FINAL AND APPEALABLE ORDER.
(Summary Judgment, September 29, 2009, p. 4).
By definition, the September 29, 2009 Summary Judgment, granting “partial
summary judgment” and reserving the issue of damages for later adjudication, was
not a final and appealable judgment because it did not “adjudicat[e] all the rights of
all the parties” and it was not “made final under Rule 54.02.” CR 54.01 (defining
“final or appealable judgment”).
Furthermore, the partial summary judgment could not be made final by
including CR 54.02 recitations. As our Supreme Court held in Chittum v. Abell,
the judgment to the extent it adjudged [appellant] liable
to [appellees], reserving the determination of damages
for a later trial, was not a final judgment, notwithstanding
the trial court’s CR 54.02 recitations, because it did not
fully adjudicate the damage claim. . . . [A] determination
that adjudicates only part of a claim cannot be made
final.
485 S.W.2d 231, 237 (Ky. 1972); see Tax Ease Lein Investments 1, LLC v. Brown,
340 S.W.3d 99, 101-03 (Ky. App. 2011) (for a more thorough discussion of
finality in this context).
This Court does not have jurisdiction to review the September 29, 2009
summary judgment because it is interlocutory and incapable of being made final by
including finality recitations from CR 54.02.1
Accordingly, we dismiss this appeal.
ALL CONCUR.
ENTERED: August 26, 2011
/s/ Glenn E. Acree
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
David B. Mour
Zachary L. Taylor
Louisville, Kentucky
Elmer J. George
Lebanon, Kentucky
1
Even if the judgment under review could have been made final, the circuit court failed to
comply with the finality recitation requirements of CR 54.02 because it does not include the
statement that “there is no just reason for delay.” CR 54.02(1).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
