MOBLEY, JOHNSON & ERVIN, PLLC v. SHEA & GARDNER, A PARTNERSHIP
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RENDERED: September 10, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000857-MR
MOBLEY, JOHNSON & ERVIN, PLLC
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELLEN EWING, JUDGE
ACTION NO. 97-CI-05312
v.
SHEA & GARDNER,
A PARTNERSHIP
APPELLEE
OPINION AND ORDER
DISMISSING AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Mobley, Johnson & Ervin, PLLC (Mobley)
appeals from several orders of the Jefferson Circuit Court which
dismissed its claims against Shea & Gardner, a Partnership
(Shea).
Having reviewed the record on appeal, we find that the
orders appealed from are not final and appealable, hence
dismissal is in order.
On September 16, 1997, Mobley filed a complaint against
Shea and Jeffrey Wigand (Wigand) seeking to collect $21,341.39 in
attorney’s fees it alleged entitlement to.
Mobley sought a
judgment against Shea and Wigand jointly and severally for the
amount claimed.
While the record shows that Shea was served with
a copy of the complaint it appears that service on Wigand was not
obtained.
On October 24, 1997, Shea filed a motion to dismiss
Mobley’s complaint.
Among the grounds raised for relief, Shea
argued that “[t]he suit against a partnership in the partnership
name, and the absence of any retention of the named Plaintiff as
counsel, are fatal procedural flaws.”
In its response to Shea’s
motion, Mobley indicated that it intended to amend its complaint
to name all of Shea’s partners individually.
On December 12,
1997, Mobley filed a motion seeking permission to file an amended
complaint against “Shea & Gardner, John D. Aldcock, Partner and
all other unknown or unidentified partners of the Shea & Gardner
Partnership and Jeffery S. Wigand.”
On February 18, 1998, the trial court entered an order
granting permission to Mobley to file its amended complaint.
On
the same date, the trial court entered a separate order
dismissing Mobley’s complaint as to Shea & Gardner, a Partnership
only.
18.
There was no finality notation on the order of February
Mobley’s motion to vacate the order of February 18 was
denied by the trial court on March 10, 1998.
That order
indicated that it was a final and appealable order with no just
cause for delay.
On April 3, 1998, Mobley appealed both orders
to this Court.
On June 2, 1999, this Court filed an order directing
Mobley to show cause as to why its appeal should not be dismissed
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on the ground that it was taken from an interlocutory order.
Although our order focused primarily on Wigand’s continued
presence in the action, in its response to the show cause order
Mobley pointed out that both Wigand and the individual partners
of Shea were still parties to the action and agreed that the
orders it sought relief from were interlocutory in nature.
Mobley requested that its appeal be dismissed and that the matter
be remanded to allow the suit against the remaining parties to
proceed on the merits.
On June 23, 1999, Shea filed a motion with this Court
seeking leave to reply to Mobley’s response to the show cause
order.
Shea based its motion on two grounds: (1) Mobley’s
assertions that it did not intend to proceed against Wigand; and
(2) the propriety of Mobley’s attempt to proceed against Shea’s
individual partners.
The jurisdiction of this Court is limited to appeals
from final orders and judgments only.
S.W.2d 873 (1964).
Lebus v. Lebus, Ky., 382
Under CR 54.01, “[a] final or appealable
judgment is a final order adjudicating all the rights of all the
parties in an action or proceeding, or a judgment made final
under Rule 54.02.”
The dismissal of Shea in its capacity as a partnership
cannot be deemed to be a final and appealable order under CR
54.01.
Although the effect of the order does adjudicate the
rights of Shea in its capacity as a partnership as Mobley points
out, its causes of action still exist against Shea’s individual
partners and Wigand under the terms of the amended complaint.
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Because there was no final adjudication of all the rights of all
the parties by the dismissal of the Shea partnership, there is no
finality.
As to Shea’s allegation that the orders are final by
application of CR 54.02, that argument is also without merit.
Under CR 54.02(1):
When more than one claim for relief
is presented in an action, whether as a
claim, counterclaim, cross-claim, or thirdparty claim, or when multiple parties are
involved, the 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. The judgment shall recite such
determination and shall recite that the
judgment is final. In the absence of such
recital, any order or other form of decision,
however designated, which adjudicates less
than all the claims or the rights and
liabilities of less than all the parties
shall not terminate the action as to any of
the claims or parties, and the order or other
form of decision is interlocutory and subject
to revision at any time before the entry of
judgment adjudicating all the claims and the
right and liabilities of all the parties.
However, “mere recitation of the ‘final and appealable’ provision
of CR 54.02 is not determinative of the matter.”
Preferred Risk
Mutual Ins. Co. v. Kentucky Farm Bureau, Ky., 872 S.W.2d 469, 470
(1994).
“Where an order is by its very nature interlocutory,
even the inclusion of the recitals provided for in CR 54.02 will
not make it appealable.”
(1978).
Hook v. Hook, Ky., 563 S.W.2d 716, 717
Our review of the record shows that the dismissal of
Shea was carried out in light of Mobley’s acknowledgment that it
could not proceed against Shea in its capacity as a partnership
and its subsequent amendment of the complaint to replace Shea
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with its individual partners.
As there was no adjudication of
the actual claims asserted by Mobley against Shea, its partners,
or Wigand by the dismissal of Shea, the trial court’s order is
not final and appealable and the tacking on of the CR 54.02
language does not make it so.
As to Shea’s motion to respond, it appears that any
response on behalf of Shea will be an attempt to argue the
propriety of allowing the case to continue against the individual
partners.1
First, dismissal of Mobley’s appeal in favor of
allowing its claims to proceed is not and should not be taken as
some kind of endorsement of this Court as to the validity of
Mobley’s claims.
Instead, it is merely a recognition that there
are outstanding issues which are in need of resolution before
this matter is ripe for appeal.
Secondly, as there is no ruling
from the trial court regarding the propriety of Mobley’s claims
against Shea’s individual partners, there is nothing for this
Court to review.
Based on the foregoing, Mobley’s appeal is dismissed on
the above-stated grounds and this matter is remanded to the
Jefferson Circuit Court for further proceedings on Mobley’s
outstanding claims.
Shea’s motion to respond to Mobley’s
response to this Court’s show cause order of June 2, 1999, is
denied.
1
Shea’s motion reads in part: “Appellant’s Response is a
preview of the tortured arguments that will be made to any trial
court if this appeal is dismissed. Clearly, Appellant intends to
use any dismissal of this appeal as ratification of its intent to
pursue a cause of action against the individual partners of
[Shea], not Wigand.” (emphasis omitted).
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ALL CONCUR.
/s/ Daniel T. Guidugli
JUDGE, COURT OF APPEALS
ENTERED: September 10, 1999
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Peter F. Ervin
Louisville, KY
Ann B. Oldfather
Louisville, KY
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