Bill Hardy v. Hon Pamela Goodwine Judge, Fayette Circuit Court ( 2009 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
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BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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RENDERED : JUNE 25, 2009
NOT TO BE PUBLISHED
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BILL HARDY APPELLANT
V. ON APPEAL FROM COURT OF APPEALS
CASE NO . 2006-CA-002603-OA
FAYETTE CIRCUIT COURT NO . 05-CI-03390-OA
HON . PAMELA GOODWINE
(JUDGE, FAYETTE CIRCUIT COURT)
ET AL APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Bill Hardy, appeals as a matter of right from the Court
of Appeals' denial of his petition for a writ of prohibition. In his petition,
Appellant argues that Appellee, Fayette Circuit Court Judge Pamela R.
Goodwine, was without jurisdiction over claims asserted by the real
parties in interest, Dermot Halpin and Hilary Halpin (the Halpins) . The
Court of Appeals denied the petition on grounds that the circuit court
had jurisdiction . This appeal followed.
Appellant argues that the circuit court lacks subject matter
jurisdiction because the Halpins' claims are unripe, and that the Court of
Appeals abused its discretion in denying his petition for a writ of
prohibition. For the reasons set forth herein, we affirm.
I. FACTS
This matter involves a discussion of two cases brought in the
Fayette Circuit Court. In the first case, the Halpins alleged that
Appellant and others violated the Kentucky Consumer Protection Act
during the sale and installation of home electronics equipment. The
Halpins prevailed and were awarded a money judgment, which was
appealed. On appeal, the Court of Appeals reversed and remanded for a
new trial.
Prior to reversal of the first case, the Halpins were unsuccessful in
their attempts to collect on the judgment . Accordingly, they brought a
second action against Appellant, Susan Hardy (his wife), and E . David
Marshall (his attorney), again alleging fraud. This time, the Halpins
claimed that Appellant fraudulently shielded his assets to hinder
attempts to collect on the judgment awarded in the first case .
Appellant moved to dismiss the second case for lack of subject
matter jurisdiction . According to Appellant, the Halpins' claims are
unripe because they relate to the first case that remains pending on
appeal and subject to reversal. The circuit court initially granted
Appellant's motion to dismiss, but later vacated the decision.
Appellant's petition for a writ of prohibition followed. The Court of
Appeals denied the petition on grounds that the circuit court had
jurisdiction and that Appellant has an adequate remedy by appeal.
Appellant then appealed to this Court as a matter of right.
II. ANALYSI S
Appellant argues that Appellee acted outside of her jurisdiction in
denying his motion to dismiss the second case. According to Appellant,
the Halpins' claims have not accrued and are therefore unripe because
they relate to the first case which has been reversed . Accordingly,
Appellant contends he is entitled to a writ of prohibition pursuant to CR
76.36, on the basis that the circuit court is without jurisdiction . We
disagree.
"A writ of prohibition is an extraordinary remedy and should only
be granted in exceptional circumstances ." James v. Shadoan, 58 S.W .3d
884, 885 (Ky. 2001) (citing Bender v. Eaton, 343 S .W.2d 799, 800 (Ky.
1961)) . The standard for issuing a writ of prohibition is as follows :
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) . We review the Court of
Appeals' decision to deny the writ for abuse of discretion . Id. at 5
("whether to grant or deny a petition for a writ is not a question of
jurisdiction, but of discretion") .
In support of his argument that the circuit court lacks subject
matter jurisdiction, Appellant cites Doe v. Golden 8s Walters, PLLC, 173
S.W.3d 260 (Ky. App. 2005), for the proposition that tort claims
purporting to relate to a judgment that remains pending on appeal are
not ripe for adjudication . Doe involved a series of federal civil rights
class actions against the Lexington- Fayette Urban County Government .
Claims of the latter-filed class actions were dismissed as time-barred .
Members of the class actions which were dismissed filed a class action in
state court against the plaintiffs of the earlier-filed, non-time-barred
class actions, their attorneys, and the attorneys' law firms, alleging legal
malpractice, breach of fiduciary duty, and fraudulent misrepresentation .
The Court of Appeals held that the circuit court lacked subject matter
jurisdiction over the claims.
We agree with the Court of Appeals that Doe is not controlling
here . Doe primarily addressed ripeness as it relates to legal malpractice .
At issue in that case was when the damages for legal malpractice become
fixed and non-speculative . When an attorney is alleged to have
committed litigation malpractice, "whether the attorney's negligence has
caused any injury or damages necessarily is contingent on the final
outcome of the underlying case" and "[a]ny alleged injury is merely
speculative until the result of the appeal of the underlying litigation is
final and the trial court's judgment becomes `the unalterable law of the
case.' Id . at 271 . Thus, we conclude that the Doe holding is limited to
prematurely-filed claims . In the present case, the injury was not
speculative because any damages caused to the Halpins occurred when
Appellant's alleged fraudulent conduct rendered them unable to collect
on the judgment.
Kentucky law makes it clear that an appellant who fails to file a
supersedeas bond does so at his own risk and that execution may
proceed. CR 60.03(1), Fidelity & Deposit Co. of Marvland v. Helm, 217
Ky. 384, 289 S.W. 280 (1926) . Since Kentucky law makes it clear that
the holder of a judgment on appeal is entitled to seek enforcement of that
judgment if no supersedeas bond has been filed, efforts to enforce such
judgments are "ripe" and constitute a "justiciable controversy ."
Therefore, the Halpins' claims are ripe for adjudication and within
the circuit court's general jurisdiction . See Ky. Const. § 112(5) ; KRS
23A .010(1) . Appellant is not entitled to a writ of prohibition because he
has failed to show that the circuit court is without jurisdiction or that he
will be irreparably injured by denial of the relief. See Hoskins, 150
S .W.3d at 10. Accordingly, we conclude that the Court of Appeals did
not abuse its discretion in denying his petition .
III. Conclusion
For the foregoing reasons, we affirm the Court of Appeals' denial of
Appellant's petition for a writ of prohibition .
Minton, C .J. ; Cunningham, Schroder, Scott, Venters, JJ., and
Special Justice Douglas H . Morris and Special Justice William Graham,
concur. Abramson and Noble, JJ ., not sitting.
COUNSEL FOR APPELLANT:
Robert Lee Abell
271 W. Short Street, Suite 500
P.O . Box 983
Lexington, KY 40588-0983
COUNSEL FOR APPELLEE:
Pamela R. Goodwine
Fayette District Court
150 N . Limstone St, 5th Fl.
Lexington, KY 40507
COUNSEL FOR REAL PARTIES IN INTEREST:
Thomas Dulaney Bullock
Bullock & Coffman, LLP
234 N. Limestone Street
Lexington, KY 40507-1027