CAVALIER HOMES OF ALABAMA V. HON. EDDY COLEMAN, JUDGE, PIKE CIRCUIT COURT, DIVISION I
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RENDERED : DECEMBER 22, 2005
TO BE PUBLISHED
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CAVALIER HOMES OF ALABAMA
V.
APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
2004-CA-002331
PIKE CIRCUIT COURT NO. 02-CI-00938
HON . EDDY COLEMAN, JUDGE, PIKE
CIRCUIT COURT, DIVISION I
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
The Appellant, Cavalier Homes of Alabama, appeals from the Court of
Appeals' dismissal of its petition for extraordinary relief.' The underlying action involves
a mobile home that Appellee, Cynthia Adkins Damron, purchased from Appellant .
Damron filed suit against the Appellant, under various theories
of
recovery, for
damages allegedly sustained to the mobile home during its delivery .
Appellant pled as an affirmative defense the arbitration clause in the
parties' written purchase agreement . Appellant moved the trial court to stay
proceedings and order arbitration of the matter. After a hearing, the trial court denied
Appellant's motion, finding that Appellee did not have actual knowledge
of
the policy
with respect to arbitration. Appellant then sought extraordinary relief in the Court of
Appeals . The Court of Appeals held that the Appellant could not obtain relief via an
'CR 81 .
original action in the Court of Appeals because Appellant had a statutory remedy
allowing for an immediate appeal .
As the foregoing facts reveal, Appellant sought review of an interlocutory
order by means of an extraordinary writ pursuant to CR 81 . This Court has long held
that appeals are allowed only from final judgments . We have been presented with
many appealing arguments and invited to depart from our strict application of the final
judgment rule . Nevertheless, we have firmly adhered, even in the face of arguments
predicated on extreme expense, delay, etc., to our rule. There are certain rare
instances, however, in which an interlocutory appeal is allowed by statutory enactment .
One such circumstance is that the Commonwealth is allowed to appeal from an
interlocutory order of a trial court whereby evidence is suppressed . The rationale for
this, of course, is that unless an appeal is allowed, jeopardy will attach and the
Commonwealth will be without a remedy by appeal as it is forbidden from appealing
from a judgment of acquittal . Another such circumstance presents here . In 1984, the
General Assembly adopted the Uniform Arbitration Act. A provision of that Act, KRS
417.220, expressly provides that "An appeal may be taken from [a]n order denying an
application to compel arbitration made under KRS 417.060 . . . . The appeal shall be
taken in the manner and to the same extent as from orders or judgments in a civil
action ." Thus, the General Assembly has, by the foregoing enactment, created a
statutory interlocutory right of appeal where no such right would otherwise exist. We
need not explore the rationale or the wisdom of this enactment . We will take it at face
value.
2CR 54 .01 ; National Gypsum Company v. Corns, 736 S.W.2d 325 (Ky. 1987) .
3See. e .g_, Corns , 736 S .W .2d 325 .
Despite the right of appeal described and acknowledged hereinabove,
Appellant in the instant case brought its claim to the Court of Appeals by means of an
extraordinary writ application . In the petition for extraordinary relief, Appellant asserted
that,without relief, it would suffer immediate and irreparable harm and would be without
a remedy by appeal . Thus, the grounds asserted amount to a proper statement for
extraordinary relief, but the form of relief sought is inconsistent with the statutory
remedy allowed . The Court of Appeals recognized this and dismissed the claim as
being improper .
Appellant argues that it is entitled to seek whatever form of relief it
chooses and that argument is not unappealing . Thus, it would be possible to treat the
petition for extraordinary relief as such and hold the Appellant to the required standard .
Of course, on that basis, Appellant would surely lose as the statute allowing for an
interlocutory appeal defeats the contention that there is no adequate remedy by appeal.
In our view, however, better practice is to treat this as the Court of Appeals treated it.
Appellant sought appellate review of an interlocutory order and KRS 417.220 gives
express directions as to the means to pursue such review. We need not torture the
rules relating to extraordinary writs to permit Appellant to stay in court and immediately
thereafter, determine that it loses because the statute provides it with an appellate
remedy .
Accordingly, we affirm the Court of Appeals' dismissal of Appellant's
petition for extraordinary relief .
All concur.
4KRS 22A.020(4). See e .g ., Linehan v. Commonwealth , 878 S.W .2d 8 (Ky. 1994) ;
Eaton v. Commonwealth , 562 S .W.2d 637 (Ky. 1978) .
COUNSEL FOR APPELLANT :
Jeffrey M. Baldwin
PORTER, SCHMITT, JONES &BANKS
327 Main Street, P. O . Drawer 1767
Paintsville, KY 41240-1767
James B . Ratliff
BAIRD, BAIRD, BAIRD & JONES, P .S .C
P . O . Box 351
415 Second Street
Pikeville, KY 41502-0351
COUNSEL FOR APPELLEES :
Hon. Eddy Coleman
Judge, Pike Circuit Court
Pike County Hall of Justice
172 Division Street, #435
Pikeville, KY 41501
Lawrence R. Webster
P . O . Drawer 712
Pikeville, KY 41502
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