MURDLE RISNER v. FAIRMONT HOMES, INC. AND SHOWPLACE HOMES, INC.
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RENDERED:
DECEMBER 8, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001531-MR
MURDLE RISNER
APPELLANT
APPEAL FROM WOLFE CIRCUIT COURT
HONORABLE JOHN D. CAUDILL, JUDGE
ACTION NO. 95-CI-00071
v.
FAIRMONT HOMES, INC. AND
SHOWPLACE HOMES, INC.
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND MILLER, JUDGES.
MILLER, JUDGE:
Murdle Risner brings this appeal from a June 15,
1999, order of the Wolfe Circuit Court.
On June 1, 1995, Risner filed an action in the Wolfe
Circuit Court against Fairmont Homes, Inc. (Fairmont) and
Showplace Homes, Inc. (Showplace).
Apparently, Risner purchased
a mobile home from Showplace which was manufactured by Fairmont.
In the complaint, Risner alleged that the mobile home was
defective and that Fairmont and Showplace failed to remedy same.
On June 15, 1999, the circuit court entered an order which
sustained Fairmont's motion for summary judgment.
The effect of
this order was to dispose of all pending claims against Fairmont.
Risner's claims against Showplace remain before the circuit
court.
This appeal follows.
In the notice of appeal, Risner names as appellees both
Fairmont and Showplace.
As the summary judgment only affected
the claims against Fairmont, we are unsure as to why Showplace
was named as appellee.
Again, Risner's claims against Showplace
are still pending in the circuit court.
In any event, the order sustaining Fairmont's motion
for summary judgment stated, in relevant part, as follows:
Because this Order granting Summary Judgment
to Fairmont disposes of all claims asserted
by Plaintiff against Fairmont, this is a
final and appealable Order. (Emphasis
added.)
Ky. R. Civ. P. (CR) 54.02(1) requires, in relevant part, that:
When more than one claim for relief is
presented in an action, . . . 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 of 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. . . . (Emphasis
added.)
Under the above rule, the dismissal of an action as to one of
several defendants is not appealable unless the order or judgment
specifically states that there is no just reason for delay and
that such order or judgment is final and appealable.
-2-
In the case
sub judice, the June 15, 1999, order dismissing the claims
against Fairmont failed to recite the language “that there is no
just reason for delay.”
Under CR 54.02(1), we are constrained to
hold that the June 15, 1999, order is interlocutory as it failed
to include the required recitation of finality.
See Derby Road
Building Company v. Louisville Gas & Electric Company, Ky., 299
S.W.2d 122 (1957), and Turner Construction Company v. Smith
Brothers, Ky., 295 S.W.2d 569 (1956).
We note that this Court
may, sua sponte, raise the issue of want of jurisdiction if the
order appealed from lacks finality.
See Huff v. Wood-Mosaic
Corporation, Ky., 454 S.W.2d 705 (1970).
For the foregoing reasons, the appeal is hereby ORDERED
DISMISSED.
ALL CONCUR.
ENTERED: December 8, 2000
/s/ John D. Miller
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE, FAIRMONT
HOMES, INC.:
Sam H. Whitehead
Lexington, Kentucky
Michael H. Baker
Lexington, Kentucky
-3-
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