Bill Hardy v. Hon Pamela Goodwine Judge, Fayette 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NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
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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NOT TO BE PUBLISHED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