Deer Run Estates, LLC v. Hon Darren W. Peckler Judge, Mercer Circuit Court

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: SEPTEMBER 22, 2016
NOT TO BE PUBLISHED
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2015-SC-000390-MR
DEER RUN ESTATES, LLC APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2015-CA-000324
MERCER CIRCUIT COURT NO. 09-CI-00438
HON. DARREN W. PECKLER APPELLEE
(JUDGE, MERCER CIRCUIT COURT)
AND
RONNIE LEE ROBERTSON; REAL PARTIES IN INTEREST
SUSAN K. ROBERTSON;
CHRISTOPHER C. DUNBAR;
PATRICIA ANN DUNBAR; DAVID RASKIN;
CAROL RASKIN; BERNARD G. BATES;
DEBORAH BATES; WILLARD COLEMAN;
REBECCA CONLEY; MICHAEL INMAN;
AND LINDA P. INMAN
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Deer Run Estates, LLC, sought a writ of prohibition in the
Court of Appeals to restrain the Mercer Circuit Court from enforcing a
discovery order. The Court of Appeals denied the writ. For reasons stated
below, we affirm.
Deer Run Estates, LLC, is a residential real estate development.
Pursuant to its restrictive covenants, those who purchase lots in the
development are required to pay an annual maintenance fee. The Real Parties
in Interest ("Homeowners") in this action are homeowners in the Deer Run
Estates who filed suit against Appellant demanding an accounting and alleging
that Appellant had misapplied the maintenance fees. In the course of the
lawsuit, the Homeowners served upon Appellant interrogatories and requests
for production of documents seeking discovery of Appellant's financial records.
The circuit court denied Appellant's objection to the Homeowners' request for
production and ordered Appellant to produce certain tax returns and bank
statements.
Appellant then petitioned the Court of Appeals for a writ of prohibition to
enjoin enforcement of the discovery order. The Court of Appeals denied the
petition. This appeal followed pursuant to CR 76.36(7).
A writ of prohibition is an extraordinary remedy. Bender v. Eaton, 343
S.W.2d 799, 800 (Ky. 1961). It may be issued when "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." PremierTox 2.0 v. Miniard, 407
S.W.3d 542, 546 (Ky. 2013) (quoting 3M Co. v. Engle, 328 S.W.3d 184, 187 (Ky.
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2010)). 1 We review the Court of Appeals' findings of fact relating to the
conditions precedent for issuance of a writ for clear error, Grange Mutual
Insurance Company v. Trude, 151 S.W.3d 803, 810 (Ky. 2004), determining
from the record if there is substantial evidence to support its findings, Miller v.
Eldridge, 146 S.W.3d 909, 917 (Ky. 2004). If the conditions necessary for
issuing the writ are present, the decision to deny the petition is reviewed for an
abuse of discretion. Id.
The Court of Appeals denied the writ because Appellant failed to
establish either of the first two conditions required for its issuance—that the
trial court acted erroneously (or was about to do so), and that Appellant had no
adequate remedy by appeal or otherwise. The Court of Appeals found that the
requested financial documents were relevant to the issue of the alleged misuse
of funds and the Homeowners' demand for an accounting. Accordingly, it
concluded that the circuit court had not acted erroneously when it entered its
discovery order. The Court of Appeals also concluded that since the record does
not reveal that Appellant requested a protective order to address potential
disclosure of confidential financial information, Appellant failed to demonstrate
lack of an adequate alternative remedy.
Appellant asserts the Court of Appeals made factual errors and abused
its discretion. Appellant contends that the relevance of the requested
1 Not at issue here, the other type of case in which a writ may issue is when the lower
court is proceeding or is about to proceed outside of its jurisdiction. PremierTox 2.0,
407 S.W.3d at 546.
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documents cannot be established until after the circuit court determines if the
Homeowners are entitled to an accounting and, therefore, the Court of Appeals
erred by finding that the requested documents were relevant and discoverable.
As to the Court of Appeals' finding that Appellant failed to show that it
requested a protective order and otherwise had no adequate alternative
remedy, Appellant asserts that it requested the circuit court to enter an
appropriate protective order when it resisted the Homeowners' discovery
request.
Upon review of the record before us, we are not persuaded that the
Courts of Appeals erred in determining that the requested financial documents
are discoverable under CR 26.02. We also see no error in the Court of Appeals'
determination that Appellant had an alternative form of relief by way of a
protective order to prevent the disclosure of confidential portions of the
requested documents.
Since the case before us originated with Appellant's petition in the Court
of Appeals, the circuit court record of the underlying action is not before us.
Nothing has been presented to refute the Court of Appeals' finding that
Appellant failed to seek a protective order. Nevertheless, even if Appellant had
requested a protective order, it appears that it did not pursue and receive a
ruling on the request, and so the conclusion that Appellant failed to
demonstrate a lack of an available alternate adequate remedy remains
supported by the record.
With no clear error in the Court of Appeals' factual findings, either of its
legal conclusions — that the circuit court did not act erroneously or that
Appellant failed to demonstrate a lack of an adequate remedy by appeal or
otherwise — stands and justifies its refusal to issue a writ of prohibition.
Consequently, we affirm the Court of Appeals' denial of Appellant's writ
petition.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Noel Mark Botts
COUNSEL FOR APPELLEES:
Honorable Darren Peckler
Circuit Judge
Charles E. Jones
Mcnamara 8s Jones
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