Gregory Estes v. Hon. Angela McCormick Bisig, Judge, Jefferson Circuit Court ( 2020 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: OCTOBER 29, 2020
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0335-MR
GREGORY ESTES APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2019-CA-0509
JEFFERSON CIRCUIT COURT
NOS. 14-CI-002288 AND 18-CI-007474
HONORABLE ANGELA MCCORMICK BISIG, APPELLEE
JUDGE, JEFFERSON CIRCUIT COURT
AND
JAMES ESTES, CLARA ESTES, REAL PARTIES IN INTEREST
AND E.M.E.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
I. BACKGROUND
In 2010, James Estes entered into a plea deal under the terms of which
he pleaded guilty to one count of first-degree sexual abuse. James’s
granddaughter, E.M.E., was under the age of twelve when she endured the
abuse. Then-Jefferson Circuit Court Judge Shake accepted the terms of
James’s plea agreement and sentenced James to five years’ imprisonment, with
the entirety of the sentence probated. James eventually served sixty days in
jail for a probation violation. Following the criminal case, E.M.E.’s mother
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filed a civil suit on E.M.E.’s behalf against James and his wife, Clara, for
damages related to the sexual abuse. During the pendency of the litigation,
E.M.E. attained the age of majority and was substituted as a party. The claims
against Clara were settled and she was dismissed as a party. Judgment was
entered in E.M.E.’s favor against James for $9.9 million. E.M.E. later filed
notice of a judgment lien.
Later, E.M.E. discovered that approximately two months prior to trial,
Clara created a revocable trust agreement titled the “Clara Estes Trust
Agreement.” Clara and James’s son, Gregory (E.M.E.’s uncle), was named as
trustee. James and Clara transferred their marital home to the trust. In
November 2018, the trust sold the home. That same month, E.M.E. filed an ex
parte motion in the 2014 case seeking a restraining order under Kentucky Rule
of Civil Procedure (CR) 65.03 restraining James and his “agents,
representatives, and relatives” from “encumbering, disposing, spending or
otherwise transferring any proceeds” from the sale. The trial court entered the
restraining order on November 16, 2018. Gregory filed a motion to dissolve the
restraining ordering on December 12, 2018.
On December 28, 2018, E.M.E. filed a complaint in Jefferson Circuit
Court naming James, Clara, and Gregory as defendants. In the 2018 case,
E.M.E. alleged James transferred the real property to the trust without
consideration and with the intent to hinder, delay, or defraud her as James’s
judgment creditor. The trial court consolidated the 2018 action with the 2014
action.
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In March 2019, the trial court entered an order denying Gregory’s motion
to dissolve the restraining order on a variety of grounds, including claims that
the trial court lacked jurisdiction to enter the order. In the same March 2019
order, the trial court granted E.M.E.’s motion for injunctive relief. However,
E.M.E. failed to post a bond as required by CR 65.05(1). Gregory filed no
motion for relief from the March 2019 order pursuant to CR 65.07. Instead, he
filed an original action in the Court of Appeals, petitioning that court for a writ
of mandamus and/or prohibition. That court denied Gregory’s writ petition
and he appealed that denial to this Court as a matter of right. For the
following reasons, we affirm the Court of Appeals.
II. ANALYSIS
The issuance of a writ is an extraordinary remedy, and we have always
been cautious and conservative in granting such relief. Grange Mut. Ins. v.
Trude, 151 S.W.3d 803, 808 (Ky. 2004). The standard for granting petitions for
writs of prohibition and mandamus is the same. Mahoney v. McDonald-
Burkman, 320 S.W.3d 75, 77 n.2 (Ky. 2010) (citing Martin v. Admin. Office of
Courts, 107 S.W.3d 212, 214 (Ky. 2003)). This Court set forth that standard in
Hoskins v. Maricle:
A writ . . . 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.
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150 S.W.3d 1, 10 (Ky. 2004). Here, Gregory claims the trial court lacked
jurisdiction, therefore, his writ is of the first class. Pursuant to Hoskins, in
order to grant a first-class writ, a court must find that (1) the trial court was
“proceeding or [was] about to proceed outside of its jurisdiction” and (2) that
“there [was] no remedy through an application to an intermediate court.” Id.
Gregory argues “‘jurisdiction,’ in the writ-of-prohibition context, must
mean something more than a restricted notion of traditional ‘subject-matter’
jurisdiction—authority to hear a class or type of case.” However, contrary to
Gregory’s assertion, that is exactly what jurisdiction in the writ context means.
We have explained:
We feel it prudent to begin our review with a proper understanding
of jurisdiction and what it means for a court to act outside its
jurisdiction. Unfortunately, the term jurisdiction is often more
easily used than understood. In Kentucky, circuit courts are courts
of general jurisdiction, which means that circuit courts shall have
original jurisdiction of all justiciable causes not vested in some
other court. Jurisdiction, when used here, refers to subject-matter
jurisdiction: the authority not simply to hear this case, but this
kind of case. . . . A court acts outside its jurisdiction, accordingly,
only where it has not been given, by constitutional provision or
statute, the power to do anything at all.
Davis v. Wingate, 437 S.W.3d 720, 725 (Ky. 2014) (internal quotation marks
and citations omitted). It is clear, then, that the type of “jurisdiction” we look
to in our writ analysis is subject matter jurisdiction—a court’s authority to
hear this kind of case.
Gregory poses a litany of purported jurisdictional arguments. He argues
the trial court acted without jurisdiction to either impose the restraining order
against him in the first place (as he was not a party to the case) or to keep in
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place “indefinitely”; lacked jurisdiction to impose a restraining order as a
judgment collection tool; and lacked jurisdiction to keep the restraining order
in place after granting E.M.E.’s motion for an injunction (for which she never
paid the requisite bond). However, none of these arguments addresses the trial
court’s subject-matter jurisdictions over this kind of case. Rather, they
amount only to a collection of allegations that the trial court erred in various
ways. Presented with such an argument in another case, we have held:
Appellant's argument is essentially that the trial court was acting
contrary to law and therefore was acting outside its jurisdiction.
Such an understanding of jurisdiction would effectively gut our
procedures for appellate review because, under such an approach,
the lower court would be proceeding outside its jurisdiction every
time it made an erroneous decision, and so an extraordinary writ
would be available for every alleged error. In the context of the
extraordinary writs, “jurisdiction” refers not to mere legal errors
but to subject-matter jurisdiction . . . which goes to the court’s core
authority to even hear cases.
Lee v. George, 369 S.W.3d 29, 33 (Ky. 2012).
Because Gregory makes no arguments based upon the trial court’s
subject matter jurisdiction, we need not address each of his arguments that
the trial court erred. Those purported errors are the proper subject of
appeals—not extraordinary writs.
In addition to arguing the trial court lacked jurisdiction, Gregory also
claims his writ petition falls into an exception to our general writ
jurisprudence. “This Court has consistently recognized an exception to the
irreparable harm requirement in ‘certain special cases.’” Ridgeway Nursing &
Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 639–40 (Ky. 2013). In such
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cases, this Court will entertain the petition “provided a substantial miscarriage
of justice will result if the lower court is proceeding erroneously, and correction
of the error is necessary and appropriate in the interest of orderly judicial
administration.” Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961).
As we held in Ridgeway, 415 S.W.3d at 641-42:
our case law is clear that the certain-special-cases exception only
supplants the requirement that a petitioner prove irreparable harm
in the absence of a writ, not the requirement that there be no
adequate remedy by appeal or otherwise. Because we have decided
that Ridgeway has an adequate remedy by appeal or otherwise,
Ridgeway cannot avail itself of the certain-special-cases exception.
(Footnote omitted.) With this precedent in mind, we begin our analysis of this
issue by determining whether Gregory has an adequate remedy by appeal. If
he does, our analysis ends there, as he cannot avail himself of the certain-
special-cases exception.
Pursuant to CR 65.07(1), “[w]hen a circuit court by interlocutory order
has granted, denied, modified, or dissolved a temporary injunction, a party
adversely affected may within 20 days after the entry thereof move the Court of
Appeals for relief from such order.” In Wyatt, Tarrant & Combs v. Williams, 892
S.W.2d 584 (Ky. 1995), this Court considered whether a party who had not
appealed an interlocutory order within the twenty-day period given by the court
rule had an adequate remedy by appeal. In that case, Wyatt, Tarrant, and
Combs moved for a restraining order and then a temporary injunction, just as
E.M.E. did in the case at bar. Also, in that case Williams, like Gregory in the
present case, failed to file a motion for relief under CR 65.07(1). Instead, both
Williams and Gregory sought relief under CR 76.36 by the filing of original
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actions in the Court of Appeals seeking the issuance of extraordinary writs. We
held:
The failure of Williams to file pursuant to [CR 65.07(1)] is fatal to
his later claim that no adequate remedy by appeal existed. This
Court cannot approve of exercises of original jurisdiction in cases
where no remedy by appeal exists at the time of the request solely
as a result of actions taken, or not taken, by the petitioner.
Id. at 586. We will not depart from this sound precedent today. Therefore,
because Gregory presently has no remedy by appeal “solely as a result of [his]
actions taken, or not taken” his appeal fails to meet this prerequisite to further
review.
III. CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals’ well-written
opinion denying Gregory’s writ petition.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Jeremy Stuart Rogers
Dinsmore & Shohl LLP
COUNSEL FOR APPELLEE ANGELA MCCORMICK BISIG, JUDGE,
JEFFERSON COUNTY CIRCUIT COURT:
Angela Theresa McCormick
COUNSEL FOR REAL PARTY IN INTEREST JAMES ESTES:
H. Kevin Eddins
Eddins Domine Law Group, PLLC
COUNSEL FOR REAL PARTY IN INTEREST CLARA ESTES:
Paul Roman Schurman
Avery & Schurman, PLC
COUNSEL FOR REAL PARTY IN INTEREST E.M.E.:
Franklin Todd Lewis
Lewis Law PLLC
Charles David Yates
David Yates Law
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