Tax Ease Lein Investments 1, LLC v. Brown
340 S.W.3d 99
Ky. Ct. App.2011Background
- Brown acquired subject property after its 2002 sale by a master commissioner following foreclosure, with the Karrs as immediate predecessors.
- The 2002 sale order required past due Laurel County real property taxes to be paid from the proceeds, but the distribution order did not mention such payment.
- In May 2004 the Karrs sold the property to Brown.
- In summer 2007 Tax Ease purchased from Laurel County an assignment of the 2002 tax delinquency certificate for $1,050.55 and recorded a tax lien on August 16, 2007.
- Brown filed four counts alleging Tax Ease’s lien was illegal; Tax Ease answered and pursued a third-party claim against Laurel County but did not counterclaim Brown for the tax amount.
- After cross-motions for partial summary judgment, the circuit court on March 17, 2009 held the lien invalid and left damages for later, then on August 19 denied Tax Ease’s CR 59.05 motion; Tax Ease appealed both orders, which this Court dismissed for lack of finality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the March 17 order is final and appealable | Tax Ease contends the order is final with damages reserved. | Brown argues the order is interlocutory and not final. | Interlocutory; not final or appealable. |
| Whether the August 19 order can be reviewed as final | Tax Ease seeks finality language to render it appealable. | Brown maintains it remained interlocutory and non-appealable. | Interlocutory; cannot be made final by CR 54.02 recitations. |
| Whether this Court has jurisdiction to review either order | Tax Ease asserts appellate jurisdiction despite lack of finality. | Brown asserts lack of finality bars review. | No jurisdiction; orders are interlocutory and non-appealable. |
| Whether CR 54.02 finality language could cure non-finality | Tax Ease sought to graft finality language onto the March 17 order. | Finality language cannot be added to an interlocutory order to create finality. | CR 54.02 recitations cannot convert an interlocutory order into a final judgment. |
Key Cases Cited
- Cumberland Lumber Co. v. First and Farmers Bank of Somerset, 838 S.W.2d 403 (Ky.App.1992) (reliance on statutory breach and lien validity in appeals)
- Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 (U.S. 1976) (partial summary judgments on liability are interlocutory)
- Watson v. Best Financial Services, Inc., 245 S.W.3d 722 (Ky. 2008) (liberal joinder of claims does not destroy finality when appealing)
- Chittum v. Abell, 485 S.W.2d 231 (Ky.1972) (liability on part of a claim reserve affects finality)
- First Nat. Bank of Mayfield v. Gardner, 330 S.W.2d 409 (Ky.1959) (CR 54.02 recitations cannot be supplied extraneously)
- Beasley v. Trontz, 677 S.W.2d 891 (Ky.App.1984) (subsequent order must explicitly recite finality to effect final judgment)
- Embry v. Turner, 185 S.W.3d 209 (Ky.App.2006) (CR 59.05 applicability to final judgments only)
- Mingey v. Cline Leasing Service, Inc., 707 S.W.2d 794 (Ky.App.1986) (CR 59.05 concerns reviewed for abuse after final judgment)
- Diaz v. Barker, 254 S.W.3d 835 (Ky.App.2008) (interlocutory orders not final unless proper disposition)