Harper Sub Club, LLC v. Honorable James R. Schrand, Judge, Boone Circuit Court ( 2021 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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RENDERED: AUGUST 26, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0372-MR
HARPER SUB CLUB, LLC AND APPELLANTS
PAIGE MCKEE
ON APPEAL FROM COURT OF APPEALS
NO. 2020-CA-0211
V. BOONE CIRCUIT COURT NO. 17-CI-00662
HONORABLE JAMES R. SCHRAND, APPELLEE
JUDGE, BOONE CIRCUIT COURT
AND
MARKUS RESING REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Alleging failures by both the trial and appellate courts to properly
interpret our Civil Rules1, Rules of Evidence2, as well as the Kentucky Uniform
Commercial Code, Petitioners Harper Sub Club, LLC and Paige McKee request
a writ of prohibition and/or mandamus under both the first and second class
of writs as well as the “certain special circumstances” exception. Finding the
petition without merit, we affirm the Court of Appeals’ decision.
1 Kentucky Rules of Civil Procedure.
2 Kentucky Rules of Evidence.
I. Factual and Procedural Background
The factual premise of the appeal is founded on the terms of a loan
between Markus Resing and Paige McKee, the sole owner of Harper Sub Club,
LLC. In 2010, Resing loaned Sub Club $50,000 at 8% interest. The loan was
to mature in 2012. McKee, a licensed attorney, drafted the note, which
included an option for Sub Club to convert the outstanding debt into an
ownership interest for Resing.
McKee made no payments on the debt, but allegedly made continual
assurances to Resing that the LLC would repay the loan. However, in 2017,
McKee liquidated Sub Club’s assets without notifying Resing. McKee utilized
the proceeds of her sale in part to pay off her student loan debt. Consequently,
Resing filed a complaint in Boone Circuit Court against Sub Club and McKee
seeking repayment of the loan. Following discovery, Resing filed a motion for
summary judgment, which was granted in part and denied in part.
Sub Club moved for the trial court to make its partial summary
judgment final and appealable.3 The trial court denied the motion. Thereafter,
the attorney representing Sub Club withdrew. Resing renewed his motion for
summary judgment in January 2020, but before the trial court could rule,
McKee, on behalf of Sub Club, filed the writs at issue with the Court of
3 We note, that although irrelevant to this appeal, McKee has filed numerous
other motions, often tardy and with flimsy legal or procedural support.
2
Appeals.4 The Court of Appeals denied the petitions for Prohibition and/or
Mandamus. This appeal followed.
II. Standard of Review
Because writs, definitionally, depart from our regular process, they are
always accompanied with a “specter of injustice[.]” S. Fin. Life Ins. Co. v.
Combs, 413 S.W.3d 921, 925 (Ky. 2013) (quoting Cox v. Braden, 266 S.W.3d
792, 795 (Ky. 2008)). Consequently, writs are only appropriate in the most
exacting and extraordinary circumstances, with the application of an
exceedingly strict standard to determine the availability of the remedy being
sought. Combs, 413 S.W.3d at 925.
Since granting a writ is a discretionary act, we generally review the Court
of Appeals decision for abuse of discretion; reserving clear error review for any
factual findings made. Id. at 926. However, for questions of law, such as
jurisdictional matters in writs of the first class, our standard of review remains
de novo. Id.
III. Analysis
A. A writ of the first class is not appropriate.
Petitioners’ claim to the first class of writs may be dealt with summarily.
Writs of the first class invoke subject matter jurisdiction; whether a court may
hear a “kind of case[.]” Davis v. Wingate, 437 S.W.3d 720, 725 (Ky. 2014)
(citations omitted). A court acts outside of its jurisdiction only when no
4 During the pendency of the Court of Appeals action, McKee also filed for, and
was denied, intermediary relief.
3
“constitutional provision or statute[]” grants authority for the court to hear the
case. Id. The Boone Circuit Court, as a court of general jurisdiction, has
“original jurisdiction of all justiciable causes not vested in some other court.”
Ky. Const. § 112(5); see also KRS5 23A.010(1) (“[The Circuit Court] has original
jurisdiction of all justiciable causes not exclusively vested in some other
court[]”). Since the underlying claim to this petition is a contract dispute
involving more than $5,000, the Boone Circuit Court enjoys the necessary
jurisdiction to hear the claim. See KRS 24A.120(1) (granting the District Court
exclusive jurisdiction to hear civil matters involving $5,000 or less; with
enumerated exceptions). Petitioners’ argument regarding Resing’s standing to
bring the case is entirely inapposite because it simply does not implicate the
court’s ability to hear the case.6
B. No writ of the second class is appropriate.
When a party seeks a writ of the second class, the petition may be
granted if the party can demonstrate that (1) “no adequate remedy by appeal or
otherwise” exists and (2) that it would suffer a “great injustice and irreparable
injury” if we fail to grant its petition. Hoskins v. Maricle, 150 S.W.3d 1, 6 (Ky.
2004) (internal citation omitted). In “certain special cases” we may waive a
petitioner’s requirement to show great injustice and irreparable harm if it can
demonstrate that correcting the error is “necessary and appropriate in the
5 Kentucky Revised Statutes.
6 Petitioners’ claims amount to questioning Resing’s legal entitlement to bring
the suit, when in fact, the Boone Circuit Court is the appropriate judicial forum to
hear any arguments regarding Resing’s standing in the first place.
4
interest of orderly judicial administration.” Marcum v. Scorsone, 457 S.W.3d
710, 715-16 (Ky. 2015) (citations omitted). In such cases, the Court recognizes
that by failing to grant the writ, the system itself will be the victim of “great and
irreparable injury.” Id.The functional result of our two-part test and “certain special cases”
exception is that petitioners are always required to show that they have no
“adequate remedy by appeal or otherwise.” Contextually, this requires
petitioners to prove that injurious conduct of the lower court “could not
thereafter be rectified in subsequent proceedings in the case.” Newell Enters.,
Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005) (citation omitted), overruled on
other grounds by Interactive Media Entm’t & Gaming Ass’n., Inc. v. Wingate, 320
S.W.3d 692 (Ky. 2010). Consequently, if any avenue for a remedy exists, a writ
of the second class is inappropriate. 158 S.W.3d at 754; see also Cox, 266
S.W.3d at 797 (affirming the rule that petitioners must always show they lack
an adequate remedy).
Petitioners fail to prove they lack an adequate remedy because, as the
Court of Appeals correctly analyzed, each assignment of error they raise now
may also be raised through direct appeal under CR 73.02, following the circuit
court’s entry of a final judgment. Indeed, all the harm Petitioners allege has
either not occurred yet, because the trial has not been held; or involves
questions of law, for which the traditional appeals process is well suited.
Neither circumstance is extraordinary in the slightest.
5
IV. Conclusion
For the reasons stated above, we affirm the Court of Appeals’ denial of a
writ of prohibition and/or mandamus.
All sitting. Minton, C.J.; Conley, Hughes, Lambert, Nickell, and
VanMeter, JJ., concur. Keller, J., concurs in result only.
COUNSEL FOR APPELLANTS:
Paige Anne McKee
COUNSEL FOR APPELLEE:
Honorable James R. Schrand
COUNSEL FOR MARKUS RESING,
REAL PARTY IN INTEREST:
Douglas Scott Williams
Arnzen Storm & Turner PSC
6