Zachary Amos Lamb v. Hon Ken M. Howard Judge, Hardin Circuit Court

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NOT TO BE PUBLISHED OPINION
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RENDERED: MAY 5, 2016
NOT TO BE PUBLISHED
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2015-SC-000300-MR
ZACHARY AMOS LAMB APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-002008-OA
HARDIN CIRCUIT COURT NO. 13-CI-00096
HON. KEN M. HOWARD, JUDGE APPELLEE
HARDIN CIRCUIT COURT
DOUG'S TOWING REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Zachary Lamb appeals as a matter of right from an order of the Court of
Appeals denying his petition for a writ of mandamus. Kentucky Rule of Civil
Procedure (CR) 76.36(7)(a), Ky. Const. § 115. Lamb seeks the writ to obtain the
following: (1) to require the Hardin Circuit Court to enter an order changing
venue of the circuit court action to Calloway Circuit Court; (2) to remove the
respondent judge from presiding over the litigation; (3) to compel certain
individuals to answer his interrogatories; and (4) to obtain the return of his
automobile. As such use of a writ of mandamus is improper, we affirm the
Court of Appeals' denial of Lamb's petition.
FACTS AND PROCEDURAL HISTORY
In January 2013, Lamb filed a civil complaint against Doug Estes, Kevin
Estes, Cathy Mathews, and Doug's Towing due to a dispute concerning Lamb's
towed vehicle. At a January 21, 2014, hearing in the case, Lamb alleges that
the respondent judge granted his motion to compel Mathews along with Doug
and Kevin Estes to answer the tendered interrogatories. 1 According to Lamb
the respondent judge also failed to reduce his January 21, 2014, order to
writing as was promised.
On July 23, 2014, the respondent judge issued an order denying Lamb's
motion for recusal. Lamb's motion was based in part upon the fact that he had
sued the respondent judge in federal court. In denying the motion, the
respondent judge noted that Lamb's federal action was dismissed on June 17,
2014. Subsequently, in December 2014, Lamb filed a petition for a writ of
mandamus with the Court of Appeals. The Court of Appeals denied the
petition after determining that Lamb had failed to meet the requisite criteria for
the issuance of a writ. Lamb then appealed to this Court as a matter of right.
ANALYSIS
Lamb argues that the Court of Appeals erred in denying his petition for a
writ of mandamus. A writ of mandamus is an "extraordinary remedy which
1 Lamb's claims as to what occurred during the January 21, 2014, hearing
engender skepticism. First, Lamb failed to include a copy of the video of the hearing
in the appellate record, precluding this Court from confirming Lamb's assertion.
Further, while Lamb's case was before the Court of Appeals, the respondent judge
noted that Lamb had failed to properly serve the real parties in interest. As the
respondent judge had determined that service was improper, it is highly unlikely that
he would have ordered an answer to Lamb's interrogatories.
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compels the performance of a ministerial act or mandatory duty where there is
a clear legal right or no adequate remedy at law." Cty. of Harlan v. Appalachian
Reg'l Healthcare, Inc., 85 S.W.3d 607, 613 (Ky. 2002). "[C]ourts of this
Commonwealth are—and should be—loath to grant the extraordinary writs
unless absolutely necessary." Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008).
A writ of mandamus may only be granted unde'r two circumstances. The
first circumstance is where it is shown that "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." Mahoney v. McDonald Burkman, 320
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S.W.3d 75, 77 (Ky. 2010) (citing Goldstein v. Feeley, 299 S.W.3d 549, 552 (Ky.
2009). The second, and more common, circumstance justifying the writ is
where it is shown "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." Id. (citation omitted). We review the decisions of the Court of
Appeals in such cases under the abuse of discretion standard. Grange Mut.
Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004), as modified (Dec. 1, 2004).
In the case at bar, the Hardin Circuit Court has subject matter
jurisdiction over Lamb's action, rendering the first category of writ inapplicable.
As such, Lamb must demonstrate that the circuit court is acting or about to
act erroneously, that there is no adequate remedy by appeal or otherwise, and
that irreparable injury will occur if the petition is denied.
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For each of Lamb's requests there are other possible remedies precluding
the issuance of a writ of mandamus. First, Lamb seeks a writ to provide him
with a change in venue to the Calloway Circuit Court. A venue determination
does not warrant extraordinary relief due to the availability of a remedy by
appeal and a lack of irreparable injury. Fritsch v. Caudill, 146 S.W.3d 926, 930
(Ky. 2004) (citing Ison v. Bradley, 333 S.W.2d 784 (Ky. 1960)) (if venue is
improper the trial court or an appellate court will recognize that in due course
and remedy it; inconvenience and expense of litigation are not irreparable
injury.)
Second, Lamb requests a writ to remove the respondent judge from
presiding over the litigation. Kentucky Revised Statutes (KRS) 26A.020(1) is
Kentucky's statutory mechanism for trial-judge disqualification. Under KRS
26A.020(1) a party who believes "that the judge will not afford him a fair and
impartial trial, or will not impartially decide an application for a change of
venue" may file an affidavit with the circuit clerk stating the factual basis for
that belief. That affidavit is forwarded to the Chief Justice for his review to
determine whether disqualification is appropriate. Through this process Lamb
possesses an adequate remedy to permit review of the respondent judge's
decision to not recuse himself. Further, Lamb is entitled to a right of appeal
from any adverse result in the trial court. Ky. Const. § 115. As such, if the
respondent judge was not disqualified and there was an adverse decision
reached in his case, Lamb could raise the issue on appeal from the final
judgment.
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Third, Lamb's remaining requests -- to compel the real parties in interest
to answer his interrogatones and to obtain his vehicle -- also do not warrant
the issuance of a writ. "No adequate remedy by appeal' means that any injury to
[Lamb] 'could not thereafter be rectified in subsequent proceedings in the case."
Indep. Order of Foresters v. Chauvin, 175 S.W.3d 610, 614 15 (Ky. 2005)
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(quoting Bender v. Eaton, 343 S.W.2d 799, 802 (Ky. 1961)). As Lamb's case is
still pending, both of these issues can be addressed in subsequent proceedings
before the circuit court. Further, if there is an adverse decision regarding
either of these issues, Lamb still has the option of an appeal after the case is
adjudicated.
As Lamb has failed to meet the criteria for the issuance of a writ of
mandamus, we affirm the order of the Court of Appeals.
All sitting. All concur.
APPELLANT:
Zachary Amos Lamb
APPELLEE:
Hon. Ken M. Howard, Judge
Hardin Circuit Court
ATTORNEY FOR DOUG'S TOWING,
REAL PARTY IN INTEREST:
Doug Estes, Company Representative
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