Consol Energy, Inc. v. Hon Kimberly C. Childers Judge, Knott Circuit Court ( 2015 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
t150 S.W.3d 1, 10 (Ky. 2004).
Consol agrees that "oversee[ing] discovery issues" in a pending case is
within the subject matter jurisdiction of the trial court, so Consol is invoking
the second class of writs identified in Hoskins: the trial court is acting or is
about to act erroneously, and great injustice and irreparable injury will occur if
the writ is not issued.
The fundamental problem with Consol's request for writ relief is that the
trial court has not ordered Consol, or its CFO, to do anything and there is no
indication in the record that the trial court is about to order Consol or the CFO
to do anything. The trial court is not "acting or [] about to act erroneously"
because the only ruling the trial court has made with respect to the noticed
deposition is to deny a protective order. The notice of deposition given by the
Plaintiffs in this case is not a court order, and since he was not subpoenaed,
the power of the court has not been invoked to compel his appearance.
The trial court's denial of the protective order is not an order compelling
Consol to produce the CFO for a deposition in Kentucky. The trial court's
protective order does not compel or direct Consol to do anything; and the
pending notice of deposition, unaccompanied by the service of a subpoena,
cannot force the non-resident witness into Kentucky for a deposition. The
Knott Circuit Court has not commanded the proposed deponent to appear in
Kentucky for a deposition, and it is not about to impose sanctions upon him for
not appearing. Unless and until it does, it is not acting or about to act in a
3
manner that exposes Consol or the witness to any harm at all, much less "great
injustice and irreparable harm."
Consol Energy cites to Bender v. Eaton, 343 S.W.2d 799 (Ky. 1961), in
support of its argument that the writ of prohibition should be granted because
this is a "special case." Consol cites the following passage:
Thus we find that in 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, 343 S.W.2d at 801. (emphasis added)
No substantial miscarriage of justice will result from the trial court's
refusal to issue a protective order in this instance. If the witness declines to
appear for the proposed deposition, the burden then falls upon the Plaintiffs to
ask the trial court for whatever relief they deem appropriate. Depending upon
what the trial court then decides with respect to the Plaintiffs' request, it may
then be said that the trial court is "acting or about to act." Until then, any
request for writ relief is premature. We find no basis for the issuance of a writ
of prohibition based upon either class of writ found in Hoskins, and no basis
for the issuance of a "special case" writ as provided by Bender.
III. CONCLUSION
For the foregoing reasons, the opinion of the Court of Appeals denying
Consol Energy's petition for a writ of prohibition is affirmed.
All sitting. All concur.
4
COUNSEL FOR APPELLANT:
Billy Ray Shelton
Joseph Daniel Halbert
Jones, Walters, Turner 86 Shelton, PLLC
COUNSEL FOR REAL PARTIES IN INTEREST:
Adam Peter Collins
Collins 86 Collins, PSC
5