Bill Hardy v. Hon Pamela Goodwine Judge, Fayette Circuit Court ( 2009 )


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  •          IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION
    THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
    PURSUANT TO THE RULES OF CIVIL PROCEDURE
    PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
    THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
    CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
    CASE IN ANY COURT OF THIS STATE; HOWEVER,
    UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
    RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
    CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
    OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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    BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
    DECISION IN THE FILED DOCUMENT AND A COPY OF THE
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    RENDERED : JUNE 25, 2009
    NOT TO BE PUBLISHED
    'Suprrme (~Vurf of
    2007-SC-000284-MR
    Alu-0-9-
    BILL HARDY                                                        APPELLANT
    V.                 ON APPEAL FROM COURT OF APPEALS
    CASE NO . 2006-CA-002603-OA
    FAYETTE CIRCUIT COURT NO . 05-CI-03390-OA
    HON . PAMELA GOODWINE
    (JUDGE, FAYETTE CIRCUIT COURT)
    ET AL                                                             APPELLEES
    MEMORANDUM OPINION OF THE COURT
    AFFIRMING
    Appellant, Bill Hardy, appeals as a matter of right from the Court
    of Appeals' denial of his petition for a writ of prohibition. In his petition,
    Appellant argues that Appellee, Fayette Circuit Court Judge Pamela R.
    Goodwine, was without jurisdiction over claims asserted by the real
    parties in interest, Dermot Halpin and Hilary Halpin (the Halpins) . The
    Court of Appeals denied the petition on grounds that the circuit court
    had jurisdiction . This appeal followed.
    Appellant argues that the circuit court lacks subject matter
    jurisdiction because the Halpins' claims are unripe, and that the Court of
    Appeals abused its discretion in denying his petition for a writ of
    prohibition. For the reasons set forth herein, we affirm.
    I. FACTS
    This matter involves a discussion of two cases brought in the
    Fayette Circuit Court. In the first case, the Halpins alleged that
    Appellant and others violated the Kentucky Consumer Protection Act
    during the sale and installation of home electronics equipment. The
    Halpins prevailed and were awarded a money judgment, which was
    appealed. On appeal, the Court of Appeals reversed and remanded for a
    new trial.
    Prior to reversal of the first case, the Halpins were unsuccessful in
    their attempts to collect on the judgment . Accordingly, they brought a
    second action against Appellant, Susan Hardy (his wife), and E . David
    Marshall (his attorney), again alleging fraud. This time, the Halpins
    claimed that Appellant fraudulently shielded his assets to hinder
    attempts to collect on the judgment awarded in the first case .
    Appellant moved to dismiss the second case for lack of subject
    matter jurisdiction . According to Appellant, the Halpins' claims are
    unripe because they relate to the first case that remains pending on
    appeal and subject to reversal. The circuit court initially granted
    Appellant's motion to dismiss, but later vacated the decision.
    Appellant's petition for a writ of prohibition followed. The Court of
    Appeals denied the petition on grounds that the circuit court had
    jurisdiction and that Appellant has an adequate remedy by appeal.
    Appellant then appealed to this Court as a matter of right.
    II. ANALYSI S
    Appellant argues that Appellee acted outside of her jurisdiction in
    denying his motion to dismiss the second case. According to Appellant,
    the Halpins' claims have not accrued and are therefore unripe because
    they relate to the first case which has been reversed . Accordingly,
    Appellant contends he is entitled to a writ of prohibition pursuant to CR
    76.36, on the basis that the circuit court is without jurisdiction . We
    disagree.
    "A writ of prohibition is an extraordinary remedy and should only
    be granted in exceptional circumstances ." James v. Shadoan, 58 S.W .3d
    884, 885 (Ky. 2001) (citing Bender v. Eaton, 343 S .W.2d 799, 800 (Ky.
    1961)) . The standard for issuing a writ of prohibition is as follows :
    A writ of prohibition may be granted upon a showing that (1)
    the lower court is proceeding or is about to proceed outside
    of its jurisdiction and there is no remedy through an
    application to an intermediate court; or (2) that the lower
    court is acting or is about to act erroneously, although
    within its jurisdiction, and there exists no adequate remedy
    by appeal or otherwise and great injustice and irreparable
    injury will result if the petition is not granted.
    Hoskins v. Maricle 150, S .W.3d 1, 10 (Ky. 2004) . We review the Court of
    Appeals' decision to deny the writ for abuse of discretion . 
    Id. at 5
    ("whether to grant or deny a petition for a writ is not a question of
    jurisdiction, but of discretion") .
    In support of his argument that the circuit court lacks subject
    matter jurisdiction, Appellant cites Doe v. Golden 8s Walters, PLLC, 
    173 S.W.3d 260
    (Ky. App. 2005), for the proposition that tort claims
    purporting to relate to a judgment that remains pending on appeal are
    not ripe for adjudication . Doe involved a series of federal civil rights
    class actions against the Lexington- Fayette Urban County Government .
    Claims of the latter-filed class actions were dismissed as time-barred .
    Members of the class actions which were dismissed filed a class action in
    state court against the plaintiffs of the earlier-filed, non-time-barred
    class actions, their attorneys, and the attorneys' law firms, alleging legal
    malpractice, breach of fiduciary duty, and fraudulent misrepresentation .
    The Court of Appeals held that the circuit court lacked subject matter
    jurisdiction over the claims.
    We agree with the Court of Appeals that Doe is not controlling
    here . Doe primarily addressed ripeness as it relates to legal malpractice .
    At issue in that case was when the damages for legal malpractice become
    fixed and non-speculative . When an attorney is alleged to have
    committed litigation malpractice, "whether the attorney's negligence has
    caused any injury or damages necessarily is contingent on the final
    outcome of the underlying case" and "[a]ny alleged injury is merely
    speculative until the result of the appeal of the underlying litigation is
    final and the trial court's judgment becomes ``the unalterable law of the
    case.' Id . at 271 . Thus, we conclude that the Doe holding is limited to
    prematurely-filed claims . In the present case, the injury was not
    speculative because any damages caused to the Halpins occurred when
    Appellant's alleged fraudulent conduct rendered them unable to collect
    on the judgment.
    Kentucky law makes it clear that an appellant who fails to file a
    supersedeas bond does so at his own risk and that execution may
    proceed. CR 60.03(1), Fidelity & Deposit Co. of Marvland v. Helm, 
    217 Ky. 384
    , 
    289 S.W. 280
    (1926) . Since Kentucky law makes it clear that
    the holder of a judgment on appeal is entitled to seek enforcement of that
    judgment if no supersedeas bond has been filed, efforts to enforce such
    judgments are "ripe" and constitute a "justiciable controversy ."
    Therefore, the Halpins' claims are ripe for adjudication and within
    the circuit court's general jurisdiction . See Ky. Const. § 112(5) ; KRS
    23A .010(1) . Appellant is not entitled to a writ of prohibition because he
    has failed to show that the circuit court is without jurisdiction or that he
    will be irreparably injured by denial of the relief. See Hoskins, 150
    S .W.3d at 10. Accordingly, we conclude that the Court of Appeals did
    not abuse its discretion in denying his petition .
    III. Conclusion
    For the foregoing reasons, we affirm the Court of Appeals' denial of
    Appellant's petition for a writ of prohibition .
    Minton, C .J. ; Cunningham, Schroder, Scott, Venters, JJ., and
    Special Justice Douglas H . Morris and Special Justice William Graham,
    concur. Abramson and Noble, JJ ., not sitting.
    COUNSEL FOR APPELLANT:
    Robert Lee Abell
    271 W. Short Street, Suite 500
    P.O . Box 983
    Lexington, KY 40588-0983
    COUNSEL FOR APPELLEE:
    Pamela R. Goodwine
    Fayette District Court
    150 N . Limstone St, 5th Fl.
    Lexington, KY 40507
    COUNSEL FOR REAL PARTIES IN INTEREST:
    Thomas Dulaney Bullock
    Bullock & Coffman, LLP
    234 N. Limestone Street
    Lexington, KY 40507-1027
    

Document Info

Docket Number: 2007 SC 000284

Filed Date: 6/25/2009

Precedential Status: Precedential

Modified Date: 10/8/2015