Dawn Spalding-Mccauley v. Hon Samuel Todd Spalding Taylor Circuit Court Judge ( 2017 )

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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO JHE RULES OF CIVIL PROCEDURE
PROMULGATED BY THESUPREME COURT, CR 76;28(4)(C),
THIS OPINION IS NOTr,:O 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, UNPUBLISHED KENTUCKY APPELLATE DECISIONS,·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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
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RENDERED: JUNE 15, 2017
· ~uptttttt 203 S.W.3d 697 (Ky. 2006). Breen filed a motion to reconsider which
was denied by the trial court.
The parties filed cross petitions, each seeking a writ of prohibition. The
Court of Appeals denied the· writ requests and the parties appealed to this
Court. Case Nos. 2016-SC-000462-MR and 2016-SC-000463-MR. Having
reviewed the facts and the law, we affirm the Court of Appeals' denial of the
petitions.
Procedural Issues
Dameron and Breen have filed motions for oral argument. Having
considered the motions, the responses, and being otherwise sufficiently
advised, the parties' motions for oral argument are hereby DENIED. On its
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own motion, the Court orders that Case Nos. 2016-SC-000462-MR and 2016-
SC~000463-MR are hereby CONSOLIDATED.
Standard of Review
An appellate court has discretion to grant a writ where a trial court is
proceeding within its jurisdiction upon a showing that the court is: 1) acting or
is about to act erroneously; 2) there exists no adequate· remedy by appeal or
otherwise, and 3) great injustice and irreparable injury will result if the petition
is not granted. Hoskins
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v. Maricle,, 150 S.W.3d 1, io (Ky. 2004). We review the
Court of Appeals' determination under an abuse of discretion standard.
Sowders v. Lewis, 241 S.W.3d 319, 322 (Ky. 2007) ..
Case No. 2016-SC~463-MR
Breen and Dameron seek a writ "prohibiting the trial court from
enforcing ~y orders 'requiring Dameron or Breen to testify about or disclose
the confidential communications, and prohibiting him from enforcing any
orders requiring Mr. Breen to withhold his fee." They argue that the
compulsion of this information violates the attorney-client privilege. We have
previously held that "v:iolation of a privilege satisfies both the requirement of no
adequate remedy by appeal, 'because privileged information cannot be recalled
once it has ·been disclosed,' and the substitute requirement in 'special cases'
that the administration of justice would suffer." Collins v. Braden, 384 S.W.3d
154, 158 (Ky. 2012j (citing St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d
771, 775 (Ky. 2005)). Because the present case alleges a violation of the
attorney-client privilege, it is proper for writ review.
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We begin by noting that the trial court specifically ordered the production
of "all written correspondence, including emails, between (Breen] and Betty
Dameron as it pertained to any alleged breach of attorney McCauley's ethical
duty to Betty Dameron." The order continued as follows: "the Court concludes
that attorney McCauley should have the ability to cross-examine attorney
Breen concerning the dismissal [of the defendant Bush Hog] bc::cause such
questions will be relevant and fundamental fairness requires same." Therefore,
Breen and Dameron's_ broad assertion that the court ordered them "to testify"
about the confidential communications at issue here is unfounded.
KRE 503 provides: "A client has a privilege to refuse to disclose and to
prevent any other person from disclosing a confidential communication made
foi: the purpose of facilitating the rendition of professional legal services to the
client(.]" However, KRE 503 (d)(3) states that there is no privilege for "a
communication relevant to an issue of breach of duty by a lawyer to the client
or by a client to the lawyer[.]" In 3Mv. Engle, we observed that "a client 'waives
the privilege if he ... voluntarily discloses or consents to disclosure· of any
significant part of the privilege matter.' This waiver may be explicit, but it may
also be implied." 328 S.W.3d 184, 188 (Ky. 2010) (Internal footnotes omitted).
The Court of Appeals applied our ruling in Engle in its analysis of the present
case:
As the trial court noted, Breen did not purport to represent
Dameron in the KBA complaint proceeding. The KBA complaint
was written and signed by Dameron and not by Breen. Therefore,
we conclude that any communications between Dameron and
Breen regarding the KBA complaint were not for the purpose of
"facilitating the rendition of professional legal services." Further,
the communications at issue concerned the breach of a duty by
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McCauley to Dameron. Therefore, there is no privilege under KRE
503(d)(3). Moreover, even if the privilege applied, such privilege
was waived because Dameron had placed the communications at'
issue by asserting that McCauley was terminated for cause in
defense to the quantum meruit claim. We cannot conclude that
the. trial court abused its discretion by rejecting the claim of
privilege.
We agree with the Court of Appeals' reasoning and conclusion.
Breen and Dameron also request a writ prohibiting the trial court from
enforcing its order withholding Breen's attorney fees pursuant to KRS 425.011.
They argue that the court's order cqnstitutes an unconstitutional taking of
property resulting in irreparable injury. As correctly.noted by the Court of
Appeals, however, "the validity of prejudgment attachments may be adequately
remedied upon direct appeal." Therefore, Dameron and Breen have failed to
demonstrate the lack of an adequate remedy by appeal. This issue also fails to
satisfy our "special case" exception.
Case No. 2016-SC-462-MR
Attorney McCauley argues the trial court acted outside its jurisdiction
when it ordered a jury trial on her quantum meruit claim. She alternatively
argues that the trial court acted erroneously within its-jurisdiction by ordering
a jury trial. McCauley specifically alleges that quantum meruit seeks· an
equitable remedy for which there is no right to a jury trial.
We agree with the Court of Appeals' conclusion that "the circuit court
clearly has subject-matter jurisdiction over cases involving a claim of quantum
meruit;" Therefore, we must determine whether relief is available under the .
second class of writ actions-where the trial court was acting within its
jurisdiction.
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It is well-established that "[t]he right to trial byjury has occupied a
central place in our jurisprudence .." B.F.M. Bldg., Inc. v. Trice, 464 S,W.2d 617,
619 (Ky. 1971). In civil cases, however, "Kentucky law recognizes exceptions to
the right to a jury, including causes of action at common law that would have
been regarded as arising in equity rather than law." Daniels v. CDB Bell, LLC,
300 S.W.3d 204, 210 (Ky. App. 2009) (citing Reese's Administrator v.
Youtsey,113 Ky. 839, 69 S.W. 708 (Ky. 1902)); and Steelvest, Inc. v. Scansteel
Service Center, Inc., 908 S.W.2d 104, 108 (Ky. 1995). Therefore, "[i]fthe nature
of the issues presented is essentially equitable, no jury trial is available. Id.
(citing Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814 (Ky. 1992)).
Although the underlying issue in Daniels was a claim seeking. to pierce
the corporate veil, it provides an apt analogy to the present case. Quantum
meruit is a common law action in equity. And although .we have never
addressed this issue directly, we have previously embraced the .Court of
Appeals' decision in Daniels and adopted much of its language verbatim. See
Schultz v. General Electric Healthcare Financial Services Inc., 360 S.W.3d 171,
174-76 (Ky. 2012).
Furthermore, we stated in Baker v. Shapero that "when an attorney
employed under a contingency fee contract is discharged·without cause before
completion of the contract, he or she is entitled to fee recovery on a quantum
meruit basis only, and not on the terms of the contract." 203 S.W.3d at 699.
Several Kentucky cases indicate that this determination is most appropriately
decided by the trial court. See id.; and e.g., Lofton v. Fairmont Specialty
Insurance Managers, Inc., 367 S.W.3d 593 (Ky. 2012).
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, Therefore, we agree that the trial court committed clear error here by
ordering this case tried before a jury. However,
. in. order to prevail on her writ
petition, McCauley must demonstrate that there exists no adequate ,remedy by
appeal or otherwise, and that a great injustice and irreparable injury will result
if the petition is not granted. McCauley asserts that there is no adequate
remedy by appeal here because the bar complaint against her would be
admitted as evidence in the jury trial and that attorney discipline matters are
confidential unless public sanction is imposed. Supreme Court Rule (SCR)
3.150.
We·have previously defined "no adequate remedy by appeal or otherwise"
to mean· that the injury to be suffered "could not therefore be rectified in
subsequent pro':eedings in the case." Bender v. Eaton, 343 S.W.2d 799, 802
(Ky. 1961). According to McCauley, her reputation in the community would be
diminished if this information was made public. McCauley also argues that
jurors are not qualified to make equitable determinations.
As correctly noted by the Court of Appeals, "Li]uries are routinely
expected to adjudge the conduct of attorneys il'.l complex situations such as
legal malpractice cases_.". We do not believe the mere evidence that a bar
complaint has been filed against McCauley is sufficient to cause irreparable
harm which justifies a writ. We also note that the trial court entered an agreed
order sealing any documents referring to the KBA file and reserving the right to
rule on the admissibility of any information pertaining to the KBA file prior to
the jury trial. What is critical to our analysis here, however, is that McCauley
may appeal the trial court's jury trial order and, if successful, she may retry
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the case before the trial court without a jury. Therefore, there is a clear and
adequate remedy by appeal here. Compare Commonwealth·v. Green, 194
S.W.3d 277, 280 (Ky. 2006) ("If the district court proceeds with a bench trial,
as has been ordered, jeopardy will attach and retrial by a jury will be
prohibited under KRS 505.030. This alone is sufficient to demonstrate the lack
of an adequate remedy by appeal.").
Moreover, there is no great injustice and irreparable injury here. We
have defined "great and irreparable" injury as "something of a ruinous
nature." Bender, 343 S.W.2d at 801. Similar. to the previous issue, we cannot
conclude that the potential for publicity here would be "ruinous" to McCauley.
McCauley also insists that tgis case satisfies the "special case" exception
to our writ standard. However, "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." Ridgeway Nursing & Rehabilitation_
Facility, LLC v. Lane, 415 S.W.3d 635, 641-42 (Ky. 2013) (citing Bender, 343
S.W.2d at 801). As previously discussed, McCauley has failed to demonstrate
the absence of an adequate remedy on appeal. Accordingly, the Court of
Appeals did not abuse. its discretion in denying McCauley's petition.
Although our writ standard )1as not been satisfied here, we are compelled
to repeat our strong admonition that the trial judge is committing "clear error"
ifhe proceeds with ajury trial ona quantum meruit claim. The only role a jury
could possibly have in this action in equity would be as an advisory jury on
issues of fact pursuant to Kentucky Rule of Civil Procedure 39.03 .. See Barrier
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v. Brewster, 349 S.W.3d 823 (Ky. 1961) (the "issues" that can be tried by an
advisory jury are only issues of fact and thejudge cannot delegate his
discretion or.equitable function).
Conclusion
For_ the foregoing reasons; we affirm the Court of Appeals' denial of the
petitions seeking a writ of prohibition filed in Case Nos. 2016-SC-000462-MR
and 2016-SC-000463-MR.
All sitting. All concur.
COUNSEL FOR APPELLANT/REAL PARTY IN INTEREST, DAWN SPALDING-
MCCAULEY:
David A. Nunery
Steven Casey Call
NUNERY & CALL, PLLC
APPELLEE:
· Hon. Samuel Todd Spalding
Judge, Taylor Circuit Court
COUNSEL FOR APPELLANT/REAL PARTY IN INTEREST, BETTY DAMERON,
INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF PAUL DAMERON:
Michael Anthony Breen
Michael Anthony Breen, Attorney at Law, PSC
COUNSEL FOR APPELLANTS/REAL PARTIES IN INTEREST, MIKE BREEN
AND MIKE BREEN, ATTORNEY AT LAW, P.S.C.:
Michael Anthony Breen
Attorney at Law
James Hadden Dean
Sheehan, Barnett, Dean, Pennington, Little & Dexter, PSC
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