John Humphress v. Commonwealth of Kentucky ( 2022 )

RENDERED: DECEMBER 9, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1376-MR
JOHN HUMPHRESS APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
v. HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 21-XX-00002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, GOODWINE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: John Humphress (“Appellant”), pro se, appeals from
an order of the Taylor Circuit Court denying his motion for Kentucky Rules of
Civil Procedure (“CR”) 60.02 relief. Appellant argues that the circuit court erred
in concluding that the Taylor District Court’s finding of probable cause to send the
matter to the grand jury was interlocutory and not reviewable. He also contends
that the circuit court should have vacated the district court’s order that horses under
his control should be removed from the real property he managed. After careful
review, we find no error and affirm the order on appeal.
FACTS AND PROCEDURE
In May, 2021, Don Fuller filed a criminal complaint in Taylor County,
Kentucky, alleging that Appellant repeatedly allowed horses owned or maintained
by Appellant to escape from Appellant’s control causing damage to Mr. Fuller’s
alfalfa field. Appellant was subsequently charged with one count of criminal
mischief in the first degree.1 He was arraigned on July 19, 2021, in Taylor District
Court and bonded out. As a condition of his bond, Appellant was ordered to
prevent the horses at issue from escaping from his property.
A preliminary hearing was conducted on August 18, 2021, and the
matter was bound over to the grand jury. Appellant failed to appear at the hearing,
though it appears that his counsel was present. As horses apparently continued to
escape from Appellant’s property, the district court ordered that all horses would
be removed based on his noncompliance with the conditions of his bond. On
August 30, 2021, Appellant filed a pro se CR 59.05 motion to alter, amend, or
vacate. The district court dismissed the motion on September 1, 2021, upon
finding that it was not properly before the court.
1
Kentucky Revised Statutes (“KRS”) 512.020.
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On September 7, 2021, Appellant filed a pro se notice of appeal in
Taylor Circuit Court, with a handwritten notation stating that he was seeking a writ
of mandamus or prohibition. Appellant retained counsel. The matter was treated
as a petition for writ of mandamus, with Appellant arguing that the district court’s
order confiscating the horses was essentially an improper finding of contempt
entered without proper notice and procedural due process.
The circuit court conducted a hearing on October 5, 2021. Evidence
was adduced that the matter involved 11 horses; that 6 of the horses were secured
on Mr. Fuller’s property and were being fed by the county; and, that about 40% of
Mr. Fuller’s alfalfa field had been destroyed by the escaped horses. Mr. Fuller did
not seek compensation from Appellant. Rather, he simply wanted Appellant to
control the horses in the future to prevent further damage to his alfalfa field.
Though not contained in the appellate record, it appears that the
Commonwealth argued that a pending motion to enforce the bond in district court
would adequately address the issues raised by Appellant in his petition for a writ,
and render the petition moot. The Commonwealth also argued that Appellant
waived his arguments based on his failure to appear, and that the contempt
argument raised by Appellant was improperly raised because the subject horses
were now secured on Mr. Fuller’s property.
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On October 19, 2021, the circuit court conducted a hearing on the
petition for the writ. The court was informed that subsequent to the filing of the
petition, the district court held a hearing on the bond condition in which it again
found that seizure of the horses by the county was warranted. Noting that the bond
hearing issue was the only one before the circuit court, defense counsel
acknowledged that the writ proceeding was probably moot.
The circuit court rendered an order stating that the only issue before
the court was whether a writ should be issued preventing county authorities from
detaining the horses that were found on Mr. Fuller’s property. Since the district
court at that time had already conducted a hearing attended by Appellant and
defense counsel addressing the detention of the horses, the circuit court denied the
petition for a writ. It also found that to the extent Appellant had raised other
issues, if any, those issues were interlocutory and not ripe for review.
In response, Appellant, again proceeding pro se, filed a CR 60.02
motion to reconsider the circuit court’s denial of the petition for a writ. The
motion asserted that the district court’s action was inadequate and left several
matters for resolution. The circuit court denied the CR 60.02 motion.
Lastly, on November 16, 2021, Appellant filed a motion for additional
findings of fact. The circuit court issued an order in response, noting that
Appellant’s counsel acknowledged at the October 19, 2021 hearing that the only
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pending issue was the district court’s alleged failure to conduct a bond hearing
after providing proper notice. Since the district court had already conducted a
bond hearing with notice to Appellant, the circuit court again denied the petition
for a writ, and also the motion for a more definitive statement. This appeal
followed.
STANDARDS OF REVIEW
We review the disposition of a petition for a writ of mandamus or
prohibition for abuse of discretion, unless the matter involves the trial court acting
outside its jurisdiction or implicates a question of law in which case the matter is
reviewed de novo. Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 809-
810 (Ky. 2004).
ARGUMENTS AND ANALYSIS
Appellant, pro se, argues that the Taylor Circuit Court erred in
concluding that the district court’s finding of probable cause to send the matter to
the grand jury was interlocutory and not reviewable. He contends that he failed to
appear at the August 18, 2021 preliminary hearing due to medical issues, but upon
learning that the district court found probable cause to send the matter to the grand
jury, Appellant immediately filed a CR 59.05 motion with affidavit. He also
asserts that the horses at issue are owned by his son or a third party, and that he
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does not own the property in question.2 Appellant argues that the circuit court
erred in failing to conclude that the district court improperly ordered that the horses
be removed from the subject parcel. He seeks an opinion vacating the Taylor
Circuit Court’s order denying his request for a writ of mandamus or prohibition,
and remanding the matter to the district court for dismissal of the underlying
criminal action.
Appellant appeals from the circuit court’s November 5, 2021 order
denying his CR 60.02 motion to reconsider the October 19, 2021 order. The
October 19, 2021 order made two substantive rulings. First, the court determined
that the only issue before it was whether it should enter a writ of mandamus
preventing the district court from requiring county authorities to detain the horses
at issue prior to having a hearing. Second, the court found that none of the other
issues raised by Appellant were appealable at that time, as such matters were
interlocutory because no final order or decree had been rendered by the district
court.
On the first issue, the circuit court found that subsequent to
Appellant’s filing of his petition seeking a writ, the district court conducted a
hearing on the matter with proper notice to Appellant. The court determined that
2
The Commonwealth asserts that Appellant is a shareholder in the entity which owns or operates
the property.
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this rendered the petition moot. The question for our consideration is whether the
Taylor Circuit Court properly denied the writ.
A writ is an extraordinary remedy. The standard for a writ is well-
settled:
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) (emphasis in original).
Our jurisprudence recognizes a sub-category under the second class of
writs in certain special cases:
[I]n certain special cases this Court will entertain a
petition for prohibition in the absence of a showing of
specific great and irreparable injury to the petitioner,
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. It may be observed that
in such a situation the court is recognizing that if it fails
to act the administration of justice generally will suffer
the great and irreparable injury.
Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961) (emphasis in original). Under
the certain special cases exception, the petitioner need not show he will suffer great
injustice and irreparable harm. Caldwell v. Chauvin, 464 S.W.3d 139, 145 (Ky.
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2015). “But these ‘certain special cases’ are exactly that – they are rare exceptions
and tend to be limited to situations where the action for which the writ is sought
would violate the law, e.g. by breaching a tightly guarded privilege or by
contradicting the requirements of a civil rule.” Trude, 151 S.W.3d at 808
(footnotes and citations omitted). “[W]hether to issue a writ is always
discretionary, even when the trial court was acting outside its jurisdiction.” Cox v.
Braden, 266 S.W.3d 792, 797 (Ky. 2008) (internal quotation marks and citation
omitted).
In Appellant’s “Statement of Appeal from District Court for Writ of
Prohibition and Writ of Mandamus” filed on September 24, 2021, Appellant’s
counsel styled the issue as whether the writ should be entered directing the district
court to give Appellant notice that a hearing will be conducted on the issue of his
violation of the July 19, 2021 calendar order directing Appellant to keep the horses
properly confined on his property. The underlying order resulted after evidence
was adduced that horses under Appellant’s control continued to escape from the
subject parcel even after the district court’s initial order, and damaged Mr. Fuller’s
alfalfa field resulting in a 30 to 40% loss. Evidence was also given that county
animal control had been called to the property approximately 50 times to deal with
the escaped horses.
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In addressing this issue, the circuit court determined that subsequent
to the filing of Appellant’s petition, the district court conducted another hearing on
the matter with proper notice to Appellant, said hearing being attended by
Appellant and his counsel. The circuit court concluded therefrom that the petition
was moot. This finding is supported by the record and the law. The wrong alleged
by Appellant, i.e., the district court’s action without proper notice directing county
authorities to take possession of the runaway horses, was rendered moot by the
subsequent hearing which Appellant and counsel attended.3 The circuit court
properly so found. Further, at the October 19, 2021 hearing on the petition,
Appellant’s counsel acknowledged that the writ was “probably moot” as a result of
the hearing on the bond condition which again reached the conclusion that the
horses should be seized by the county.
Appellant argues in the instant appeal that the writ was required to
prohibit the district court from finding probable cause to hand the matter over to
the grand jury. This argument was not raised in the petition seeking the writ,
however, and was not addressed in the circuit court’s order denying the writ.
Further, we find no error in the circuit court’s conclusion that all
remaining issues raised by Appellant concurrently with his petition for a writ were
3
We note that Appellant was given notice of the first hearing which he did not attend, evinced
by his counsel’s presence and participation at the hearing.
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unappealable, as there was no final order or judgment entered by the district court.
Those issues, if any, remained interlocutory until made final and appealable by the
district court.
CONCLUSION
Having reviewed the matter de novo, Trude, supra, we find no error in
the Taylor Circuit Court’s order denying Appellant’s CR 60.02 motion to
reconsider the court’s October 19, 2021 denial of Appellant’s petition for a writ of
mandamus or prohibition. The remaining issues were not properly raised via the
petition for a writ and were not ripe for review by the circuit court. For these
reasons, we affirm the order of the Taylor Circuit Court denying Appellant’s
motion for reconsideration.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
John Humphress, pro se Daniel Cameron
Campbellsville, Kentucky Attorney General of Kentucky
Matthew G. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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