RENDERED: DECEMBER 16, 2021

TO BE PUBLISHED



# Supreme Court of Kentucky

2019

- SC

- 0226

- DG

LINDSEY CHILDERS, AS ADMINISTRATRIX

OF THE ESTATE OF CAMERON PEARSON;

LINDSEY CHILDERS, AS NEXT FRIEND AND

GUARDIAN OF A.P., C.P., AND E.P.,

MINORS; AND AMANDA WAITS APPELLANTS

V. ON REVIEW FROM COURT OF APPEALS

NOS. 2017

- CA

- 0669 & 2017

- CA

- 0670

JEFFERSON CIRCUIT COURT NO. 16

- CI

- 003155

WILLIAM S. ALBRIGHT; BASU PROPERTIES,

LLC; AND HARDSHELL TACTICAL, LLC APPELLEES

OPINION OF THE COURT BY SPECIAL JUSTICE TENNYSON

VACATING AND REMANDING

This case presents a n ovel issue for consideration by this Court : whether

the Court of Appeals had jurisdiction to review an appeal from an interlocutory

order in a civil action denying immunity under Kentucky Revised Statute ( KRS )

503.085

, Kentucky’s “Stand Your Ground” law

. We hold that it did not because

an order denying KRS 503.085 immunity in a civil case does not satisfy the

required elements for interlocutory review under the collateral order doctrine.2

Accordingly, we vacate the opinion of the Court of Appeals for lack of

jurisdiction and remand the case to the Jefferson Circuit Court.

I. BACKGROUND

William Albright co

- owned and worked at Hardshell Tactical, LLC

— a gun

shop

— in Louisville. The store was in a s hopping center owned by BASU

Properties, LLC. On July 8, 2015, while Albright was working at Hardshell, he

heard a gu nshot outside of the store

. Albright

, arm ed with two guns

, decided to

investigate. In the parking lot of the shopping center

, he encountered Kyle

Pearson wielding a handgun. Other witnesses to the incident observed Kyle

waving the gun around and pointing it at his own head. Kyle’s brother,

Cameron Pearson, unarmed, and also in the parking lot

, began wrestling with

Kyle for control of the handgun

. As the brothers fought, Albright ordered Kyle

to drop the gun but the fight continued

, resulting in several errant shots being

discharged from Kyle’s gun

. Albright, ultimately

, fired several shots at the

brothers. Kyle was injured. Cameron was killed.

A Jefferson County Grand Jury indicted Albright on charges of murder

and first

- degree assault in September 2015. After his indictment, in June

2016, Albright moved t he trial court in his criminal case to find him immune

from prosecution citing KRS 503.085

, Kentucky’s “Stand Your Ground” law. 1

1 KRS 503.085 provides:

(1) A person who uses force as permitted in KRS 503.050,

503.055, 503.070, and 503.080 is justified in using such force and is

immune from criminal prosecution and civil action for the use of such

force, unless the person against whom the force was used is a peace3

The next month, Lin d sey Childers, as administratrix of Cameron’s estate, and

as guardian of Cameron’s three minor children, A.P., C.P., and E.P.; Cameron’s

sister, Amanda Waits (who was also present in the parking lot at the time of

the shooting) ; and Kyle (collectively “ the Pearson family ”)

, filed a civil suit in the

Jefferson Circuit Court against Albright, Hardshell

, and BASU Properties

alleging negligence and wrongful death claims

. On August 11, 2016, the

Jefferson Circuit Court judge presiding over Albright’s criminal case granted

his motion for immunity and order ed that the indictments against him be

dismissed with prejudice.

Following the grant of KRS 503.085 immunity in the criminal action,

Albright and Hardshell each filed CR 2 12.03 motions for judgment on the

pleadings in the civil case filed by the Pearson family

, arguing that collateral

offi cer, as defined in KRS 446.010, who was acting in the performance of

his or her official duties and the officer identified himself or herself in

accordance with any applicable law, or the person using force knew or

reasonably should have known that the per son was a peace officer. As

used in this subsection, the term “criminal prosecution” includes

arresting, detaining in custody, and charging or prosecuting the

defendant.

(2) A law enforcement agency may use standard procedures for

investigating the use of force as described in subsection (1) of this

section, but the agency may not arrest the person for using force unless

it determines that there is probable cause that the force that was used

was unlawful.

(3) The court shall award reasonable attorney's fe es, court costs,

compensation for loss of income, and all expenses incurred by the

defendant in defense of any civil action brought by a plaintiff, if the court

finds that the defendant is immune from prosecution as provided in

subsection (1) of this secti on.

2 Kentucky Rule s of Civil Procedure.4

estoppel and KRS 503.085(1) required that Albright be “immune from

. . . civil

action.” The trial court denied the motions

. Albright and Hardshell appealed

from the order denying their CR 12.03 motions

, asserting that an order den ying

a substantial claim of immunity is immediately appealable even in the absence

of a final judgment

.

The Court of Appeals

, without addressing jurisdiction, reversed the civil

circuit court

, finding that collateral estoppel applied and that the grant of self

defense immunity in Albright’s criminal case barred continued litigation of the

civil action. This Court granted discretionary review

, and specifically directed

that the parties’ briefs “address the question of whether the Court of Appeals

had jurisdi ction to consider an appeal from an interlocutory order denying self

defense immunity in a civil action.” Because we hold that the Court of Appeals

lacked jurisdiction to consider the appeal

, we need not consider other issues

addressed in its opinion

.

III. ANALYSIS

Jurisdiction is a threshold issue ; “ a court must have [it] before it has

authority to decide a case.” Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005).

It cannot be waived or conferred by agreement of the parties. Id

. A “c ourt must

determine for itself whether it has jurisdiction.” Hubbard v. Hubbard

, 303 Ky.

411, 412, 197 S.W.2d 923

, 923 (1946). This Court is not excepted from that

statement.

Appellate review is generally limited to final order s that “ adjudicate[] all

the rights of all the parties in an action or proceeding, or a judgment made5

final under Rule 54.02 [after a determination that no just reason f or delay

exists ] .” CR 54.01; CR 54.02 (1)

. But in certain instances, interlocutory appeals

are expressly permitted by statute

, civil rule, or common law. See, e.g.

,

Breathitt C nty. B d. of Edu c

. v. Prater

, 292 S.W.3d 883, 886 (Ky. 2009)

(identifying circumstances in which interlocutory appeal is permitted) ; see also

KRS 22A.020 ; Commonwealth v. Farmer

, 423 S.W.3d 690, 693 (Ky. 2014)

(interpreting KRS 22A.020 to mean “ t he Court of Appeals has appellate

jurisdiction in those civil matters determined by this Court”)

. In 2009, in

Prater

, this Court recognized for the first time, though not explicitly by name, a

new exception to the general rule that appeals may be taken only from final

orders known as the collateral order doctrine. 292 S.W.3d at 886

- 87.

The collateral order doctrine originates from the U.S. Supreme Court ’s

decision in Cohen v. Beneficial Indus

. Loan Corp

. , 337 U.S. 541 (1949), which

held that interlocutory appeal s, not otherwise permitted under federal

procedural rules or by statute

, were permitted “in a small class of cases which

finally determine claims of right separable from, and collateral to, rights

asserted in the action, too important to be denied review and too independent

of the cause itself to require appellate consideration be deferred u ntil the whole

case is adjudicated.” Id. at 545

. I n Cohen

, the Supreme Court reasoned that the

interlocutory order appealed from in that case was “appealable because it was

a final disposition of a claimed right ” and “ not an ingredient of the cause of

action ” requiring “ consideration with it.” Id

. at 546

- 47.6

Applying the doctrine i n Prater

, th is Court held an immediate appeal

from an interlocutory order denying immunity to a school board from tort

claims made outside of the Kentucky Board of Claims was permissible

, 292

S.W.3d at 886

- 87, because the school board’s claim to immunity could not be

vindicated following entry of a final judgment. Id. After Prater

, the scope of

permissible interlocutory appeals in Kentucky expanded to include “order[s]

denying a substantial claim of absolute immunity

. . . even in the absence of a

final judgment.” Id

. at 887.

T h is Court has honed its application of the collateral order doctrine since

its decision in Prater

, beginning with Commonwealth v. Farmer

, 423 S.W.3d

690 (Ky. 2014)

. In that case, Farmer, a criminal defendant

, argued he was

immune from prosecution for murder because he had been legally justified to

act in self

- defense. Id. at 691

- 92. After the trial court denied Farmer’s motion

to dismiss the indictment

, he pursued an interlocutory appeal. Id. The Court of

Appeals held that it had jurisdiction to consider the appeal

, analogizing

Farmer’s claim for immunity to the civil circumstances presented in Prater

. Id.

at 6 92. This Court reversed

, find ing that the Court of Appeals lacked

jurisdiction because the collateral order doctrine did not apply in the

circumstances presented in that case

. Id. at 691.

In its analysis, the Farmer Court

, drawing upon the Supreme Court’s

decisions in Mitchell v. Forsyth

, 472 U.S. 511 (1985), and Nixon v. Fitzgerald

,

457 U.S. 731 (1982)

, adopted a three

- element test to determine when the

collateral order doctrine applies. Farmer

, 423 S.W.3d at 696

- 97. As stated in7

Farmer

, the elements of the test were : (1) the order must conclusively

determine the disputed question; (2) the order must “ resolve an important

issue completely separate from the merits of the action”; and (3) the order must

be effectively unreviewable on appeal from final judgment. Farmer, 423 S.W.3d

at 696 (citing Nixon

, 457 U.S. at 742). As to the final element of the test

, this

Court noted “ ‘ it is not mere avoidance of a trial, but avoidance of a trial that

would imperil a substantial public interest, that counts when asking whether

an order is ‘ effectively ’ unreviewable if review is to be left until later. ’ ” Id

. at 697

(quoting Will v

. Hallock

, 546 U.S. 345, 352

- 53 (2006)).

Applying the test in Farmer

, t he Court held that the first element of the

doctrine was satisfied because the order de nying the motion to dismiss the

indictment conclusively decided the disputed question

— whether Farmer was

legally imm une fr om prosecution. 423 S.W.3d at 697. The se cond element of

the doctrine

, however, was not present because whether a person justifiably

act s in self

- defense “is inextricably part of the merits of the case.” Id. at 697

.

Finally, the Court held that the third element of the doctrine was “simply

absent ” because Farmer’s immunity claim did not present a risk to “ a

substantial public interest.” Id. Rather, “Farmer's interest in asserting

immunity and avoiding prosecution

. . . is purely personal in nature

. ” Id.

In the years following Farmer

, the Court continued to refine the contours

of Kentucky’s collateral order doctrine, applying it to various interlocutory

appeals. See, e.g.

, Maggard v. Kinney

, 576 S.W.3d 559 (Ky. 2019) ( dismissing

appeal regarding application of judicial statements privilege betwee n two8

physicians in litigation); Hampton v. Intech Contracting, LLC

, 581 S.W.3d 27

(Ky. 2019) ( holding Court of Appeals properly dismissed appeal in workers’

compensation case because it was without jurisdiction to consider

interlocutory order granting mot ion for partial summary judgment ). I n Maggard

in 2019, the Court emphasized that interlocutory appeals are “rare” and that

“Kentucky courts have in some instances allowed the collateral order doctrine

to expand beyond ‘ its logic and

. . . the [ Cohen ] criteria. ’ ” 576 S.W.3d at 566

(quoting Ashcroft v. Iqbal

, 556 U.S. 662, 672 (2009)).

Most recently, in Sheets v. Ford Motor Company

, 626 S.W.3d 594 (Ky.

2021)

, the Court held that Ford Motor Company did not have a right to take an

interlocutory appeal from an order denying up

- the

- ladder immunity under the

Workers’ Compensation Act. Id. at 596

. In its analysis, the Court also took the

opportunity to review “the progression of our jurisprudence” concerning the

collateral order doctrine

. I d. at 599. First, it reiterated that all three elements of

the doctrine must be met before an appellate court has jurisdiction to review

an interlocutory order. Id. Second, the Court succinctly recited and clarified the

three elements of the doctrine

, stating that the chal lenged interlocutory order

“ must (1) conclusively decide an important issue separate from the merits of

the case; (2) be effectively unreviewable following final judgment; and (3) involve

a substantial public interest that would be imperiled absent an immediate

appeal. ” Id. (citing Farmer

, 423 S.W.3d at 696

- 97). Significantly

, the Court

noted the increased emphasis on the third element of the test

, i.e., that the9

interlocutory order involves a substantial public

— not personal

— interest that

would be imper iled without an immediate appeal. Id.

This Court’s decision in Sheets recognized that not all denials of

immunity satisfy the third element of the collateral order doctrine

. “ In fact, in

instances when no governmental entity or official is a party to the case and

there is no concern with ‘preserving the efficiency of government,’ it is unlikely

that a denial of a party's claim of immunity will meet this final element. ” Id. at

599 (citing Maggard

, 576 S.W.3d at 566 ; Will

, 546 U.S. at 352

- 53 )

.

Applying the Court’s jurisprudence to the present appeal, we hold that

the trial court’s order denying Albright and Hardshell’s CR 12.03 motions do es

not satisfy the collateral order doctrine

, and accordingly, does not merit

interlocutory review

. While the first element

— that the order must conclusively

decide an important issue separate from the merits of the case

— arguably may

be met, 3 the other two elements are not. The order denying the motions do es

not involve a substantial public interest that would be imperil ed absent an

immediate appeal. N either Albright n or Hardshell is a governmental entity or

official, nor do Albright’s immunity claims raise any concern implicating

governmental efficiency

. In the circumstances presented, the Appellees’ interest

in asserting immunity is best characterized as being “purely personal in

nature.” Farmer

, 423 S.W.3d at 697. Albright and Hardshell’s right to appeal

3 We need not decide whether a claim of self

- defense made pursuant to KRS

503.085 in a civil action is “inextricably part of the merits of the case,” Farmer

, 423

S.W.3d at 697, because we have determined that the other elements of the collateral

order doctrine are not met.10

the trial court’s rulings following a final judgment is not disturbed by the

Court’s holdings. B e cause the interlocutory orders at issue do not meet all

elements of the collateral order doctrine, the Court of Appeals and this Court

lack jurisdiction to hear Albright and Hardshell ’s interlocutory appeal on the

merits

.

III. CONCLUSION

For the foregoing reasons, we vacate the opinion of the Court of Appeals

and remand this matter to the trial court for further proceedings.

Minton, C.J.; Conley, Hughes, Keller, and Vanmeter, JJ.; and Special

Justice Cheryl U. Lewis and Special Justice Julie A. Tennyson sitting. All

concur. Lambert and Nickell, JJ., not sitting.

COUNSEL FOR APPELLANTS:

Kevin C. Burke

Jamie K. Neal

Burke Neal PLLC

Martin Pohl

Rick Hessig

Hessig & Pohl, PLLC

COUNSEL FOR APPEL LEE

, WILLIAM S. ALBRIGHT:

Gregg E. Thorn ton

Maxwell D. Smith

Betsy R. Catron

Ward, Hocker & Thor n ton

, PLLC11

COUNSEL FOR APPELL EE

, BASU PROPERTIES, LLC:

Charles H. Cassis

Aida Almasalkhi

Goldberg Simpson, LLC

COUNSEL FOR APPELL EE

, HARDSHELL TACTICAL, LLC:

Melissa Thompson Richardson

Ashley L. Daily

Walters Richardson, PLLC

COUNSEL FOR AMICUS CURIAE,

KENTUCKY DEFENSE COUNSEL

, INC. :

Jeffrey C. Mando

Olivia F. Amlung

Adams, Stepner, Woltermann & Dusing, PLLC

COUNSEL FOR AMICUS CURIAE,

KENTUCKY LEAGUE OF CITIES:

Derrick T. Wrigh t

Charles D. Cole

Sturgill, Turner, Barker & Moloney, PLLC