JAMES V. GAY; ELLIS C. GAY; and EARL GAY v. TONY TIPTON
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RENDERED:
February 6, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-1067-MR
JAMES V. GAY;
ELLIS C. GAY; and
EARL GAY
v.
APPELLANTS
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
CIVIL ACTION NO. 94-CI-090077
TONY TIPTON
APPELLEES
OPINION AND ORDER DISMISSING APPEAL
* * * * *
BEFORE:
GUDGEL, CHIEF JUDGE; ABRAMSON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Appellants, James V. Gay, Ellis C. Gay, and
Earl Gay (collectively Gay), appeal from an order entered by the
Montgomery Circuit Court on April 8, 1996, dismissing an amended
complaint filed by Gay as to appellee, Tony Tipton (Tipton).
For
reasons set forth below, we must dismiss Gay's appeal.
Gay filed a petition for declaration of rights with the
trial court on October 18, 1994, seeking a judgment declaring the
three plaintiffs to be the true and lawful owners of a certain
tract of land in Montgomery County and awarding damages against
the defendant, Jerry Miller, for loss of timber and damage to the
land.
On January 25, 1996, Gay filed an amended complaint
seeking to add several additional defendants, including Tipton,
to the action.
Tipton filed a motion to dismiss the amended complaint
against him with the trial court on February 14, 1996, alleging
that the amended complaint failed to state a claim against him
for which relief could be granted.
The trial court entered a
motion dismissing the amended complaint against Tipton only on
April 8, 1996.
The order did not recite that it was final and
appealable or that there was no just reason for delay.
We have
searched the record provided to us in this case and can find no
order(s) entered by the trial court disposing of the balance of
Gay's complaint.
Under Kentucky Rules of Civil Procedure (CR) 54.01, a
judgment is not final unless it adjudicates all rights of all
parties to the action.
Under CR 54.02, the trial court "may
grant a final judgment upon one or more but less than all of the
claims or parties only upon a determination that there is no just
reason for delay."
CR 54.02(1).
The judgment must set forth
that there is no just cause for delay and state that it is final,
and if it fails to do so, it will be deemed to be interlocutory.
Id.
Because the record does not reveal the outcome of the
remaining claims asserted by Gay against the remaining
defendants, we must assume that they have yet to be litigated.
Marr v. Falls City Stone Co., Ky., 329 S.W.2d 71, 71-72 (1959).
Furthermore, because the trial court's order did not dispose of
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all claims and all parties, did not recite that it was final, and
did not state that there was no just cause for delay as required
by CR 54.02(1), it is interlocutory.
Marr, 329 S.W.2d at 72.
Thus, we lack jurisdiction to address the issues raised by Gay on
appeal.
ALL CONCUR.
/s/ Daniel T. Guidugli
JUDGE, COURT OF APPEALS
ENTERED:
February 6, 1998
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James A. Crumlin
Louisville, KY
Alan B. Peck
Mt. Sterling, KY
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