KRISTIAN BROCK, ET AL. V. COLTON T. HINKEL, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF CHARLES L. HINKLE, III — OPINION OF THE COURT BY JUSTICE GOODWINE VACATING AND REMANDING

RENDERED: OCTOBER 22, 2026 TO BE PUBLISHED Supreme Court of Kentucky 2024-SC-0154-DG KRISTIAN BROCK; AND CHRISTOPHER STONE APPELLANTS V. ON REVIEW FROM THE COURT OF APPEALS NO. 2022-CA-1330 HENRY CIRCUIT COURT NO. 18-CI-00164 COLTON T. HINKEL; AND COLTON T. HINKEL, AS ADMINISTRATOR OF THE ESTATE OF CHARLES L. HINKEL, III APPELLEES OPINION OF THE COURT BY JUSTICE GOODWINE VACATING AND REMANDING Appellants moved for summary judgment, arguing they were entitled to qualified official immunity, but the Henry Circuit Court denied that motion. Instead of immediately filing an interlocutory appeal, Appellants proceeded to trial. After a mistrial, Appellants filed a notice of interlocutory appeal within thirty days of the denial of immunity. The Court of Appeals affirmed. For the reasons below, we vacate and remand. BACKGROUND When Charles L. Hinkel, III (“Hinkel”) experienced chest pain, he called his son and ex-wife to come to his home. About thirty minutes after Hinkel’s chest pain began, his son called 911 to report that he was experiencing heart

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2 attack symptoms and had a history of heart attacks. Henry County Emergency Medical Service (Henry County EMS) dispatched EMT Kristian Brock (“Brock”) and Paramedic Christopher Stone (“Stone”) to Hinkel’s home on Elm Street in Eminence at approximately 2:13 a.m. Stone drove because he knew Elm Street. Brock and Stone had several navigation tools, including a map book, a GPS system in the ambulance, and a phone application called “Active 911” provided by Henry County EMS. Active 911 coordinates with dispatch, so the dispatcher entered Hinkel’s address directly into the app, which guided Brock and Stone there. It was dark and rainy, and Hinkel’s house was poorly lit. Even with Active 911, Brock and Stone had trouble locating Hinkel’s house number and initially drove past his house. They arrived sixteen minutes after leaving the ambulance bay in New Castle, and Stone estimated the delay to be about four minutes. When they arrived, Hinkel was lying on the floor, clutching his chest. Brock and Stone walked Hinkel to the ambulance waiting at the back of his home. Once in the ambulance, Hinkel went into full cardiac arrest and was unresponsive before they left for the hospital. Brock and Stone attempted to defibrillate Hinkel, but the defibrillator failed despite several attempts to restart it. On the way to the hospital, Brock and Stone stopped at a fellow paramedic’s home to obtain a working defibrillator. The paramedic provided a functional defibrillator and helped with resuscitation efforts. Stone defibrillated

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3 Hinkel five times on the way to the hospital. Brock and Stone then transferred care to the Baptist LaGrange Emergency Department. Resuscitation attempts in the emergency department were unsuccessful, and Hinkel was pronounced dead. The total run time from dispatch to transfer was one hour and five minutes. On September 14, 2018, Colton Hinkel, individually and as administrator of Hinkel’s estate, filed suit in the Henry Circuit Court against Brock and Stone in their official and individual capacities and Henry County EMS. On January 13, 2021, the trial court granted motions to dismiss Henry County EMS and Brock and Stone in their official capacities under the doctrines of sovereign immunity and governmental immunity. Brock and Stone did not move to dismiss them in their individual capacities, so those claims remained pending. On August 25, 2022, Brock and Stone moved for summary judgment, arguing they were entitled to qualified official immunity. Hinkel opposed the motion. On October 11, 2022, the trial court granted in part and denied in part Brock and Stone’s motion for summary judgment. The trial court found that their decision to use Active 911 instead of the paper map, in violation of Henry County EMS’s written policy, and their failure to check the defibrillator were ministerial tasks not protected by qualified official immunity. Instead of filing an interlocutory appeal, Brock and Stone chose to proceed to trial. The trial began on October 24, 2022. At the close of Hinkel’s evidence and again after the close of all evidence, Brock and Stone moved for a

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4 directed verdict on the grounds of qualified official immunity and causation. The trial court denied both motions. On November 1, 2022, the jury announced a deadlock. The trial court declared a mistrial by order entered November 4, 2022. On November 2, 2022, Brock and Stone filed an interlocutory appeal in the Court of Appeals arguing they were entitled to qualified official immunity. The Court of Appeals heard oral arguments and affirmed the trial court. This Court granted discretionary review and heard oral arguments. ANALYSIS On appeal, Brock and Stone argue the Court of Appeals erred in (1) affirming the trial court’s finding that they were not entitled to qualified official immunity and (2) declining to address substantive issues regarding negligence. For the reasons below, we decline appellate jurisdiction and do not reach the merits of Brock’s and Stone’s arguments. We vacate the Court of Appeals' opinion and remand to the Henry Circuit Court. A. Waiver “[T]he appealability of orders denying absolute and qualified immunity is governed by the same temporal limitations and subject to the same rules as other appeals, whether interlocutory or final.” Long v. Dep’t of Revenue, 718 S.W.3d 868, 880 (Ky. 2025) (quoting Kennedy v. City of Cleveland, 797 F.2d 297, 304 (6th Cir. 1986)). RAP 3(A)(1) requires that a notice of appeal be filed “no later than 30 days” from the judgment or order appealed from. Brock and

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5 Stone filed within this time frame, but that alone does not determine whether they are entitled to appellate review. The “same rules” that govern other appeals include the rule that a right to appeal may be lost by conduct. “[A] litigant may, by express agreement or stipulation, waive a right to appeal . . . or he may by a course of conduct subsequent to the entry of a judgment impliedly waive a right to have the judgment reviewed on appeal.” Deaton v. Fifth Third Union Tr. Co., 65 S.W.2d 979, 980 (Ky. 1933). “Any act or conduct upon the part of such litigant by which he impliedly acquiesces in, ratifies, or recognizes the validity of the judgment may operate as a waiver of a right to ask reversal on appeal.” Id. As previously noted, timeliness is necessary but, on its own, insufficient as a basis for an interlocutory appeal. “Defendants may waive […] their right not to be tried. If they wait too long after the denial of summary judgment, or if they use claims of immunity in a manipulative fashion, they surrender any entitlement to obtain an appellate decision before trial.” Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989) (citing Kennedy at 300-301). “This is not to say that they lose the right to contend on appeal from the final judgment that they enjoy immunity from damages; the right not to pay damages and the right to avoid trial are distinct aspects of immunity, and the former may be raised on appeal at the end of the case even if defendants bypass their right to appeal” before trial. Id. “Such a waiver, however, need not waive the defense for all purposes but would

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6 generally only waive the defense for the stage at which the defense should have been asserted.” English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994). Here, although Brock and Stone did reassert their right to immunity in two directed verdict motions, they failed to timely assert their entitlement to appellate review before trial. A party’s failure to exercise a procedural option does not necessarily affect this Court’s power to hear the case, but it does undermine the party’s entitlement to invoke it. Said differently, Brock and Stone waived their entitlement. Proceeding to trial waives the pre-trial appeal because of the nature of the right the appeal protects. This Court permits interlocutory review of immunity denials because “immunity entitles its possessor to be free ‘from the burdens of defending the action, not merely ... from liability’ and ‘such an entitlement cannot be vindicated following a final judgment for by then the party claiming immunity has already borne the costs and burdens of defending the action.’” Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 886 (Ky. 2009) (citing Rowan Cnty. v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006)). The interlocutory appeal is an exception to the final judgment rule and is “limited in scope.” Maggard v. Kinney, 576 S.W.3d 559, 566 (Ky. 2019). A defendant who is denied immunity on summary judgment has a choice. They may interrupt the proceedings and obtain review of the order or submit the question to trial. Brock and Stone chose trial. Having done so, they bore the very burden the interlocutory appeal exists to spare them. Moreover, the summary judgment order lost the character that made it appealable before

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7 trial. The immunity defense survives because “even when a defendant has lost his right not to stand trial, the law is clear the [defendant] can ‘reassert [his] qualified immunity claims at and after trial when the factual disputes have been resolved.’” Maestas v. Lujan, 351 F.3d 1001, 1009 (10th Cir. 2003) (citing Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991)). The trial court is the place to reassert them. We held recently in Long that a party’s failure to file a notice of appeal within thirty days of a denial of sovereign immunity does not preclude raising the issue in a later timely interlocutory appeal. That is, “because sovereign immunity is waivable only by the General Assembly” and “it may be raised for the first time on appeal.” Long at 718 S.W.3d at 880. In contrast, qualified official immunity “is an affirmative defense that must be specifically pled.” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). Accordingly, it is subject to the ordinary rules of waiver and forfeiture that do not apply to sovereign immunity. The dissent invokes a 5th Circuit case to argue that “a public official does not waive [an immunity defense] when he fails to take an interlocutory appeal and, instead, subjects himself to the burdens of discovery and trial.” Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993). In Spann, the 5 th Circuit also held that neither “the defense—or the concomitant right to an interlocutory appeal from its denial” is waived by the failure to seek dismissal prior to trial. Spann, 987 F.2d at 1114. However, the order under review in Spann denied a motion filed after the first trial, and the court decided it on a record that

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8 “included […] the transcript from the 1991 trial.” Id. Moreover, none of the cases the dissent cites as examples of federal courts reviewing post-mistrial summary judgment immunity denials blessed ignoring the trial record.1 Instead, they establish that a defendant who goes to trial and faces retrial may obtain interlocutory review of a post-trial immunity ruling made on the trial record. Nothing in our disposition prevents Brock and Stone from renewing their immunity motion in the trial court on the record as it now exists and, if it is denied, from appealing that ruling. B. No appellate jurisdiction Even if Brock and Stone did not waive their procedural option of an interlocutory appeal, we lack appellate jurisdiction. “Jurisdiction is a question of law, and our review is de novo.” Commonwealth v. B.H., 548 S.W.3d 238, 242 (Ky. 2018). “It is fundamental that a court must have jurisdiction before it may decide a case or issue.... Thus, jurisdiction is a threshold question and, where 1 See also Carroll v. Ellington, 800 F.3d 154 (5th Cir. 2015) (“[F]ederal appellate courts have limited jurisdiction to review pure questions of law arising from the denial of motions to dismiss and motions for summary judgment in which public officials asserted qualified immunity as a defense. […] We express no opinion on whether interlocutory appeal may be taken except in these specific circumstances: officers moving for judgment as a matter of law after a mistrial is declared.); Dean v. Cnty. of Gage, Neb., 807 F.3d 931, 936 (8th Cir. 2015) ("Since this court previously denied qualified immunity for the officers as a matter of law, the district court should not consider a Rule 50 motion on qualified immunity unless substantially different evidence was produced at trial.”); Cassady v. Goering, 567 F.3d 628, 634 (10th Cir. 2009) (“Here, Mr. Goering is facing a retrial and we see no reason why he should be prohibited from appealing the post-trial order rejecting his qualified immunity claim.”); Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013) (where defendant “timely appealed the denial of his Rule 50(b) motion.”); Britt v. Garcia, 457 F.3d 264, 271 (2d Cir. 2006) (“[A]ppellants appeal from a post- verdict denial of their claim of qualified immunity."); Wilson v. City of Boston, 421 F.3d 45, 53 (1st Cir. 2005) (citing Iacobucci v. Boulter, 193 F.3d 14, 23 (1 st Cir. 1999) (‘In the present circumstance,’ ‘[w]hen a qualified immunity defense is pressed after a jury verdict, the evidence must be construed in the light most hospitable to the party that prevailed at trial.’”); Johnson v. Breeden, 280 F.3d 1308, 1313 (11th Cir. 2002) (where appellant "appealed the judgment against them and the denial of their motion for new trial").

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9 the question presents itself, a trial or appellate court must determine for itself whether it has jurisdiction to proceed.” Long, 718 S.W.3d at 878. Generally, “only the final orders of the trial court are appealable”, but one exception is that a party may appeal “a trial court’s interlocutory order denying a claim of sovereign immunity.” Id. (citations omitted). An interlocutory appeal must meet “all three elements” of the collateral order doctrine before an appellate court has jurisdiction. Sheets v. Ford Motor Co., 626 S.W.3d 594, 599 (Ky. 2021). The order must “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. “[A] trial court's order is not immediately appealable simply because immunity is at issue. If the trial court's decision leaves the immunity question unresolved, that order is not immediately appealable.” Upper Pond Creek Volunteer Fire Dep’t Inc. v. Kinser, 617 S.W.3d 328, 333 (Ky. 2020). The first element of the collateral order doctrine asks whether the order “conclusively decide[s]” the immunity question. Here, before trial, the trial court “conclusively decided” the immunity question on the record in its October 11 order. Brock and Stone moved for immunity by directed verdict twice on the trial record, and the trial court denied it twice. Those rulings now constitute the trial court’s adjudication of immunity, yet Brock and Stone did not appeal them. In Ortiz, the United States Supreme Court notes that,

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10 [o]nce the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary-judgment motion. A qualified immunity defense, of course, does not vanish when a court declines to rule on the plea summarily. The plea remains available to the defending officials at trial; but at that stage, the defense must be evaluated in light of the character and quality of the evidence received in court. Ortiz v. Jordan, 562 U.S. 180, 184 (2011). ‘[O]nce trial has been had,’ however, ‘the availability of official immunity should be determined by the trial record, not the pleadings nor the summary judgment record.’” Id. (quoting 15A C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 3914.10, p. 684 (2d ed.1992 and Supp.2010)). After trial, “a district court's factual rulings based on the obsolete summary-judgment record are useless.” Dupree v. Younger, 598 U.S. 729, 736 (2023). The dissent argues that “[t]he legal effect of a mistrial is the equivalent of there having been no trial at all.” 88 C.J.S. Trial § 101 (2026) (footnotes omitted). Therefore, Brock and Stone “returned to the status quo ante.” This is not Kentucky law. CR2 50.02 provides that “if a verdict was not returned, such party within 10 days after the jury has been discharged may move for judgment in accordance with his motion for a directed verdict.” This rule presupposes that the evidence heard by a jury that failed to reach a verdict remains the record on which the trial court rules. Moreover, it counsels that 2 Kentucky Rules of Civil Procedure.

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11 the proper course for a defendant in Brock’s and Stone’s position is a CR 50.02 motion in the trial court on the trial record. A mistrial does not unhear evidence. Ortiz holds that supersession occurs “[o]nce the case proceeds to trial" Ortiz, 562 U.S. at 184 (2011). And because an order adjudicating fewer than all claims “is interlocutory and subject to revision at any time before the entry of judgment,” the trial court is free to revisit the immunity ruling at Brock’s and Stone’s urging. CR 54.02. In Kennedy v. City of Cleveland, the 6 th Circuit held that a post-mistrial renewal of an immunity motion is “a matter best left to the sound discretion of the trial judge.” 797 F.2d 297 (6th Cir. 1986). This is especially true because this Court “is without authority to review issues not raised in or decided by the trial court.” Reg’l Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). The second and third elements of the collateral order doctrine fail for the same reason. An interlocutory appeal is meant to protect immune litigants from the "costs and inconveniences of trial.” Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883, 885 (Ky. 2009). Because the trial has already occurred, this Court cannot restore that interest. The dissent, citing Britt, argues that “although it is too late to protect the appellants from standing trial, it is not too late to vindicate their right, if they are entitled to immunity, not to undergo a second one.” Britt v. Garcia, 457 F.3d 264, 272 (2d Cir. 2006). That is correct. But the right not to undergo a second trial is fully protected by a renewed motion in the trial court and an appeal from its denial. This is how the defendants in Carroll, Dean, Cassady, and Britt (the cases cited by the dissent)

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12 proceeded. Brock and Stone have not lost their interest in qualified official immunity; they’ve just lost the opportunity to have the summary judgment denial reviewed before the trial that has already occurred. C. Factual disputes and causation Though we decline to resolve the factual disputes and the issue of causation, a brief discussion here illuminates why this record is not suitable for appellate review. Dupree v. Younger holds that “[t]rials wholly supplant pretrial factual rulings, but they leave pretrial legal rulings undisturbed.” 598 U.S. 729 (2023). Therefore, a “district court's purely legal conclusions at summary judgment are not ‘supersede[d]’ by later developments in the litigation.” Id. To the extent the trial court’s ministerial characterization of the navigation duty was a purely legal ruling on undisputed facts, supersession does not preclude an interlocutory appeal. Whether a duty is ministerial or discretionary is a question of law. However, it arises “once the material facts are resolved.” Sloas, 201 S.W.3d at 474. A ministerial duty is "absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Yanero, 65 S.W.3d at 522. In contrast, a discretionary duty “may be performed in one or two or more ways, either of which would be lawful,” and “it is left to the will or judgment of the performer to determine in which way it shall be performed.” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010), as corrected (May 7, 2010) (citing Upchurch v. Clinton Cnty., 330 S.W.2d 428, 430 (Ky. 1959)). The

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13 characterization depends on what the directive says because a rule “must, at least, be sufficiently specific to restrict significant discretion in its enforcement” before its enforcement becomes ministerial. Id. The legal characterization turns on the directive's content as a factual predicate. The summary judgment record presented a genuine conflict about that predicate. The written Map Utilization policy directed crews to “become familiar with, and be able to use the maps, response directions, and GPS systems located in all units.” It also required that “the non-driving crewmember shall look up the location on the map before going in route, or shortly thereafter.” However, in their deposition, the EMS director testified that employees could use whatever navigation method “they felt most comfortable with,” that the ambulance GPS units “did not all work,” and that some employees preferred the “GPS feature on the Active 911 that we used.” If the written policy governs, the duty to consult the map is arguably ministerial. If the agency’s actual directive was to use whichever tool the crew preferred, the choice among tools might be discretionary. The trial court did not resolve that conflict. It declared that “the essential facts for the purpose of the motion for summary judgment are not in dispute.” It then relied on the defendant’s deposition admissions about the standard operating procedures and found they “required the use of maps, response directions, and GPS units located in the vehicles,” and that the defendants “utilized a cellphone app called Active 911 instead” without addressing the context provided by the director.

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14 The Court of Appeals then observed that “questions of fact remain, however, about their choice of a navigational tool. The written operating procedure dictates the use of the paper maps and GPS located in the ambulance, whereas the testimony of their supervisor suggests that they were encouraged to use the Active 911 app in conjunction with the paper maps.” It characterized the dispute as one for the jury and affirmed the trial court. However, a dispute about which directive governed is a dispute about the content of the duty and is therefore antecedent to the legal characterization the trial court purported to make. An order in this posture is not an appealable collateral order. In Kinser we held that where the trial court concludes “that additional factual development” is necessary regarding the defendant’s entitlement to qualified immunity, “the order denying his motion to dismiss is not immediately appealable.” Kinser, 617 S.W.3d at 334. That is because an appellate court should "not overstep its bounds by attempting to make findings of fact on those issues so we can determine an immunity question that the circuit court has not yet fully addressed." Id. The collateral order doctrine also requires that the order be “completely separate from the merits of the action.” Commonwealth v. Farmer, 423 S.W.3d 690, 696 (Ky. 2014). An immunity ruling that turns on the same factual dispute the jury must decide is not separate from the merits. On the other hand, this Court in Meinhart v. Louisville Metro Government rejected an argument that qualified immunity cases are unsuited to interlocutory appeal because they “ involve[e] fact-based exceptions” and stated

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15 “the question of immunity is one of law that involves no disputed facts. Thus, examining the pertinent rule, policy, or regulation governing the challenged conduct is all that is necessary to make the characterization. Compliance with the rule, policy, or regulation simply is not relevant in that calculus.” 627 S.W.3d 824, 830 (Ky. 2021). However, Meinhart says the court should examine “the pertinent rule,” and the dispute here is about which rule was pertinent. Id. at 830. Moreover, Meinhart itself requires trial court findings “be complete enough to enable adequate appellate review.” Id. Finally, Meinhart was an appeal taken before trial and says nothing about the proper appellate review procedure for a pre-trial order after the record has been superseded at trial. Relatedly, Brock and Stone did not challenge the trial court’s characterization of the Life Pak requirements as ministerial in the Court of Appeals. Here, they assert that plaintiffs introduced insufficient evidence to support the finding of negligence. We need not address this argument because an interlocutory appeal of a qualified official immunity denial is “limited to the specific issue of whether immunity was properly denied, nothing more.” Baker v. Fields, 543 S.W.3d 575, 578 (Ky. 2018). The second question, whether a causally related violation is a predicate to the ministerial-discretionary analysis, is closer to the sort of pure question of law open to interlocutory appeal. However, as the Court of Appeals stated, “[d]etermining causation is beyond the scope of our review, which is strictly limited ‘to the issue of whether immunity was properly denied.’” Deciding whether Brock’s and Stone’s alleged breaches caused Mr. Hinkel’s death

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16 “would conclusively determine the Estate’s substantive claim of negligence.” In Morales v. City of Georgetown, this Court held that whether a person “in fact breached any ministerial duty […] and was therefore negligent, is not relevant to the question of qualified official immunity and is, rather, a question left to the finder of fact.” 709 S.W.3d 146, 158 (Ky. 2024). Thus, as the Court of Appeals did, we decline to address causation. CONCLUSION For the foregoing reasons, we hold that Brock and Stone forfeited their right to an interlocutory appeal, but even if they did not, we lack jurisdiction to decide the merits of this appeal. Thus, we vacate the Court of Appeals’ opinion and remand the case to the Henry Circuit Court for further proceedings consistent with this opinion. All sitting. Lambert, C.J.; Conley, and Thompson, JJ., concur. Nickell, J., dissents by separate opinion which Bisig and Keller, JJ., join. NICKELL, J., DISSENTING: Because I am convinced this Court may properly exercise appellate jurisdiction over this interlocutory appeal from the denial of qualified immunity pursuant to Breathitt Cnty. Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009), I would address the merits of the claims presented.3 From my review of the record and applicable precedents, I cannot 3 As this matter is being remanded for further trial court proceedings, I limit this dissent to the threshold jurisdictional issue and express no opinion on the ultimate outcome of the qualified immunity question.

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17 conclude the mere act of proceeding to trial amounts to a waiver of the right to immediate review. Therefore, I respectfully dissent. A. Procedural History To fully contextualize my position on the disputed appeal waiver issue, it is necessary to restate the procedural history of this matter. The Appellees filed their complaint on September 14, 2018. In response, Brock and Stone promptly raised the defense of qualified immunity in a motion to dismiss on October 8, 2018, which was litigated alongside preliminary discovery and various extensions of time until the trial court entered an order of partial dismissal on January 13, 2021. The scope and content of this order relative to the assertion of qualified immunity remained in dispute throughout the litigation. Shortly thereafter, on February 2, 2021, Brock and Stone filed their answer and renewed the qualified immunity defense. In the meantime, the parties unsuccessfully attempted to mediate. On August 16, 2021, the trial court entered a scheduling order and set a trial date for October 24, 2022. The scheduling order further stated: Motions for Summary Judgment shall be filed no later than 60 days prior to trial. Responses shall be due 20 days thereafter; Replies shall be due 10 days thereafter; and Surreply shall be due 7 days thereafter. . . . Any of the above time frames may be changed by written agreement of Counsel with notice to the Court. Brock and Stone filed their motion for summary judgment on August 25, 2022, in compliance with the scheduling order. The Appellees responded on

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18 September 14, 2022. On September 15, 2022, Brock and Stone re-noticed their motion for a hearing. In an order entered on October 11, 2022, the trial court granted in part and denied in part the motion for summary judgment. Importantly, the trial court clarified its prior order of partial dismissal and stated that it had allowed the suit to proceed on the claims of qualified immunity “because the Court did not believe a motion to dismiss had been presented to dismiss Defendants in their individual capacities and because the ‘Plaintiff has raised valid questions with regard to certain duties[.]’” The trial court further explained, “the true nature of the Order was only to address . . . the application of sovereign and governmental immunity” and “[a]ny suggestion that the Order addressed the issues now presented to this Court by the motion for summary judgment is a mischaracterization of the language and intent of the Order.” The parties then proceeded to trial on the previously scheduled date of October 24, 2022. On November 1, 2022, the jury announced it was hopelessly deadlocked, and the trial court orally granted Brock and Stone’s motion for a mistrial on the record without objection. They filed their notice of appeal from the denial of summary judgment the next day, November 2, 2022. On November 4, 2022, the trial court memorialized its declaration of a mistrial in a written order. B. Availability and Purpose of Interlocutory Appeals From Denial of Qualified Immunity This Court has long recognized “that orders denying claims of immunity . . . should be subject to prompt appellate review.” Prater, 292 S.W.3d at 886.

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19 This exception to the final judgment rule is based on the notion that “immunity entitles its possessor to be free ‘from the burdens of defending the action, not merely . . . from liability.’” Id. (quoting Rowan Cnty. v. Sloas, 201 S.W.3d 469 (Ky. 2006)). Moreover, “such an entitlement cannot be vindicated following a final judgment for by then the party claiming immunity has already borne the costs and burdens of defending the action.” Id. (Emphasis added). Notably, the protection of qualified “[i]mmunity from suit exists not for the benefit of the possessor ‘but for the benefit of the public.’” Lexington- Fayette Urb. Cnty. Gov’t v. Smolcic, 142 S.W.3d 128, 135 (Ky. 2004) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)); see also Wyatt v. Cole, 504 U.S. 158, 168 (1992) (“[Q]ualified immunity . . . acts to safeguard government, and thereby to protect the public at large, not to benefit its agents.”). To support the provision of interlocutory relief in this context, we applied the reasoning of the Supreme Court of the United States in Mitchell v. Forsyth, 472 U.S. 511, 525 (1985), wherein “the Court reiterated its position that ‘the denial of a substantial claim of absolute immunity is an order appealable before final judgment.’” Prater, 292 S.W.3d at 887. “Although Prater specifically addressed claims of absolute immunity, its logic is equally applicable in cases involving qualified official immunity and it has been so interpreted by this Court.” Meinhart v. Louisville Metro Gov’t, 627 S.W.3d 824, 830 (Ky. 2021). On the other hand, qualified immunity differs from sovereign immunity insofar as “[q]ualified official immunity is an affirmative defense that must be specifically pled[,]” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001) (citing

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20 Gomez v. Toledo, 446 U.S. 635 (1980)), while sovereign immunity “can be waived only by the General Assembly and applies regardless of any formal plea[.]” Wells v. Com., Dep’t of Highways, 384 S.W.2d 308, 308 (Ky. 1964). However, once a defendant has properly raised the issue of qualified immunity, Supreme Court precedent “clearly contemplate[s] that he [or she] [can] raise the defense at successive stages” of litigation. Behrens v. Pelletier, 516 U.S. 299, 306 (1996) (citing Mitchell, 472 U.S. at 526). Although an interlocutory appeal from the denial of qualified immunity typically arises well in advance of trial, an appellate court may, in the appropriate circumstance, entertain such an appeal after a mistrial or other “completed trial that fails to yield a final judgment.” Edward H. Cooper, 15A Fed. Prac. & Proc. (Wright & Miller) Juris. § 3914.10.5 (3d ed. 2026) (emphasis added); Wilson v. City of Boston, 421 F.3d 45, 53 (1st Cir. 2005); Britt, 457 F.3d at 272; Hill v. Crum, 727 F.3d 312, 317 (4th Cir. 2013); Carroll v. Ellington, 800 F.3d 154, 167 (5th Cir. 2015); Dean v. Cnty. of Gage, Neb., 807 F.3d 931, 936- 37 (8th Cir. 2015); Cassady v. Goering, 567 F.3d 628, 634 (10th Cir. 2009); Johnson v. Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002), abrogated on other grounds by Kingsley v. Hendrickson, 576 U.S. 389 (2015).4 4 The majority attempts to distinguish federal case law permitting an interlocutory appeal on qualified immunity to prevent a second trial, arguing the proper procedure entails the filing of a renewed motion for immunity and the appeal of any denial thereafter as occurred in Carroll, Dean, Cassady, and Britt. However, I cannot conclude the filing of a renewed motion in the trial court is necessary here because, unlike the defendants in the federal cases, Brock and Stone timely filed their interlocutory appeal within the time limitation relative to the original order denying immunity. Under these facts, to require a party to renew a motion while the time for

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21 Pertinent to the present appeal, “[t]he legal effect of a mistrial is the equivalent of there having been no trial at all, there being no verdict, no decision or finding made by the jury, and no definitive answer given by the jury concerning matters of fact. 88 C.J.S. Trial § 101 (2026) (footnotes omitted); 75B Am. Jur. 2d Trial § 1412 (2026) (“A mistrial is a proceeding that has miscarried, and the consequence is not a trial.”). In such a circumstance, it may be “too late to protect the [public officials] from standing trial[,]” however, “it is not too late to vindicate their right, if they are entitled to immunity, not to undergo a second one[.]” Britt, 457 F.3d at 272. Thus, the interests underlying qualified immunity “are still served . . . even if in a more limited fashion, by assertion of the defense at some later stage.” Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993) (allowing interlocutory qualified immunity appeal following mistrial). The logic and reasoning of the foregoing authorities apply with equal force to the instant appeal. I am further convinced the “the costs and burdens of defending [an] action” compound at any stage of litigation which persists in the absence of a final judgment. Prater, 292 S.W.3d at 887. Certainly, the public and the holder of qualified immunity both retain an interest in avoiding a second trial, although the official did not attempt to avoid the first. Britt, 457 F.3d at 272. appealing the denial of the original motion is still running would result in needless duplication.

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22 C. Appellate Jurisdiction Was Properly Invoked And Waiver Doctrine Is Inapplicable Interlocutory appeals from the denial of immunity are subject to “the temporal limitations set forth in RAP 3(A)(1) for the filing of a notice of appeal.” Long v. Dept. of Revenue, 718 S.W.3d 868, 880 (Ky. 2025). RAP 2(A)(1) provides “[a]ll appeals shall be taken by filing a notice of appeal in the court from which the appeal is taken within the time allowed by RAP 3.” (Emphasis added). “Unless a statute or court rule provides a different time, the notice of appeal required by RAP 2 shall be filed with the clerk of the court from which the appeal is taken no later than 30 days from the date of notation of service of the judgment or order appealed from.” RAP 3(A)(1). “Thus, as with an appeal from a final order, an interlocutory appeal generally must be timely filed before it may be considered by the appellate court.” Long, 718 S.W.3d at 880. “Without the properly filed notice of appeal, the appellate court lacks jurisdiction[.]” Cabinet for Health & Fam. Servs. v. H.C., 581 S.W.3d 580, 583 (Ky. 2019). Here, it is undisputed that Brock and Stone timely filed a notice of appeal from an appealable order and there has been no allegation of any other procedural defect. In addition, contrary to the majority, I do not perceive any indication of gamesmanship, abuse, manipulation, delay, or undue prejudice such as would amount to a waiver of Brock and Stone’s right to interlocutory review under Prater. To be clear, I am cognizant that courts have applied the doctrine of waiver by conduct to interlocutory qualified immunity appeals. English v. Dyke,

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23 23 F.3d 1086, 1089 (6th Cir. 1994); see generally Deaton v. Fifth Third Union Tr. Co., 65 S.W.2d 979, 980 (Ky. 1933) (“[A] litigant may, by express agreement or stipulation, waive a right to appeal . . . or he may by a course of conduct subsequent to the entry of a judgment impliedly waive right to have the judgment reviewed on appeal.”). Specifically, “[t]he potential for abusive delays or manipulative uses of qualified immunity claims is clear, as a defendant can raise the defense at various stages of litigation and a denial of the defense at any of these stages generally entitles a defendant to an immediate appeal.” Skritch v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2022) (citing English, 23 F.3d at 1089), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009)). However, “if and when abuse does occur,” trial and appellate courts alike may properly utilize their respective supervisory and sanctioning powers to “weed out frivolous claims.” Behrens, 516 U.S. at 310 (quoting Abney v. United States, 431 U.S. 651, 662 n.8 (1977)). For instance, a waiver of the right to immediate appeal, as opposed to the waiver of the defense on the merits, may be presumed “if a defendant fails to assert the defense within the time limits set by the court or if the court otherwise finds that a defendant has failed to exercise due diligence or has asserted the defense for dilatory purposes.” English, 23 F.3d at 1090. Additionally, “courts are encouraged to enter scheduling orders to prevent dilatory tactics on the part of defendants with qualified immunity defenses.” Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664, 668 (1st Cir. 1996).

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24 In my estimation, the unusual procedural posture of this appeal neither “affect[s] the viability of the qualified immunity defense” nor the legitimate possibility of immediate review from the denial of same. Britt v. Garcia, 457 F.3d 264, 271 (2d Cir. 2006). From my review of the record, I discern no indication Brock and Stone failed to comply with, or otherwise manipulated, the orderly process of litigation. Brock and Stone’s motion for summary judgment complied with the deadlines set by the trial court, and the court itself indicated it had not previously resolved the immunity issue on their prior motion to dismiss. At the time the summary judgment motion was denied, Brock and Stone were faced with the option of immediately filing an interlocutory appeal or proceeding to trial within approximately fourteen days. Confronted with a choice between the inherent delay and uncertainty of appeal, and the prospect of prevailing forthwith at trial, I cannot fault them for choosing to proceed with trial. Even so, I am likewise unconvinced that their decision amounted to a waiver of the right to immediate review because the legal effect of a mistrial is as if there was no trial. 88 C.J.S. Trial at § 10.5 Having thus returned to the status quo ante, Brock and Stone were still well within the original time for appeal from the denial of their claim of qualified immunity. Without more, I simply do not perceive a waiver by conduct on these facts. 5 The majority’s citation to CR 50.02 is inapposite. This rule does not speak to the legal effect of a mistrial. Rather, by its plain terms, it simply affords either party to the opportunity to renew a motion for directed verdict in the event no verdict is rendered.

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25 For the foregoing reasons, I would exercise jurisdiction over the present appeal and address the merits of the claims presented. Therefore, I respectfully dissent. Bisig and Keller, JJ., join. COUNSEL FOR APPELLANTS: Charles Edward Monarch William G. Carroll Robert Thomas Watson McBrayer PLLC COUNSEL FOR APPELLEE: Hans G. Poppe The Poppe Law Firm COUNSEL FOR AMICUS CURIAE, KENTUCKY JUSTICE ASSOCIATION: Kevin C. Burke Jamie K. Neal Burke Neal PLLC

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