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RENDERED: APRIL 27, 2017
NOT TO BE PUBLISHED
Supreme Court of Benfuckg
2016-SC-000526-MR
JOI-IN DAVID LEE APPELLANT
ON APPEAL FROM KENTUCKY COURT OF APPEALS
V. CASE NO. 2016-CA-OOO625-OA
JEFFERSON CIRCUIT COURT NO. 15-Dv502354-OO3
HON. PAULA F. SHERLOCK, JUDGE, APPELLEE
JEFFERSON FAMILY COURT,
AND
ANGELA JEAN KING AND REAL PARTIES IN INTEREST
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This is an appeal of the Court of Appeals' denial of John David Lee's
petition for a Writ of mandamus and / or Writ of prohibition.1 In his Writ
petition, Lee asked that the Domestic Violence Order (“DVO”) entered against
him by the family court judge be set aside, and that the judge be required to
1 Depending on how Appellant's requests for relief are framed, either one may
be appropriate Both are “extraordinary writs” that are treated the same for the
purposes of determining Whether a writ is available in a particular case. Mahoney v.
McDonald-Burkman, 320 S.W.3d 75, 77 n.2 (Ky. 2010).
recuse herself from all further proceedings2 The Court of Appeals is affirmed.
I. FACTUAL AND PROCEDURAL HISTORY.
The original action in this case arose from domestic violence proceedings
between Lee and Angela Jean King. In September 2015, King filed an
Emergency Protection Order (“EPO”), which Was denied due to a lack of
relationship. King then filed a second EPO on October 1, 2015, which Was
issued that same day, and a domestic violence hearing was held October 13,
2015. In that hearing, Lee asked that the presiding judge, Judge Sherlock,
recuse herself. Judge Sherlock entered the following order of recusal following
the hearing:
The Court hereby grants Respondent’s motion
and recuses from this case. The presiding judge has
prior knowledge of Respondent’s divorce case, and
recused from that case. Further, respondent is a
subject of controversy in his role as a baseball coach
in a custody and visitation case between other parties
pending in this division.
Therefore, the undersigned judge recuses herself
and directs the court administration office to reassign
this matter.
'I`wo Weeks later, and before the court administrator could reassign the
case, King moved to dismiss the case against Lee. The parties verbally agreed
2 We note Judge Sherlock did not file a brief with this court. Under these
circumstances, the provisions of Kentucky Rules of Civil Procedure (CR) 76.12(8)(c)
permit that we may “(i) accept the appellant's statement of the facts and issues as
correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain
such action; or (iii) regard the appellee's failure as a confession of error and reverse
the judgment without considering the merits of the case.” Because Lee has not made
the requisite showing to grant such a writ, as discussed below, we affirm the Court of
Appeals.
to set aside Judge Sherlock’s recusal so that she could dismiss the EPO.
In January 2016, King filed a third petition for a DVO against Lee, and
the trial court entered an EPO on January 11, 2016. Following a hearing with
Judge Sherlock presiding, the trial court entered a DVO on January 19, 2016.
That order is not included in the present record.3
Lee then filed various motions to set aside the DVO on the basis that the
trial judge had previously recused herself from presiding over the prior
domestic violence petition that King filed against Lee. Lee also filed a direct
appeal of the DVO as well as this petition for a writ of mandamus and /or
prohibition. The Court of Appeals denied his petition for a Writ, and this
appeal follows as a matter of right.
II. ANALYSIS.
As this Court outlined in Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.
2004L
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.
“At the outset, We must determine whether the Court of Appeals was required
3 Because this is a writ action, the record is not complete. Cox v. Braden, 266
S.W.3d 792, 795 (Ky. 2008) (“The expedited nature of writ proceedings necessitates an
abbreviated record.”). The background described in this opinion is based on what can
be gleaned from the briefs and the limited record. _
3
to entertain the petition for writ of mandamus Unless petitioners were able to
demonstrate their entitlement to extraordinary relief, there was no need for the
Court of Appeals to reach the merits of the claim.” Nat’l Gypsum Co. v. Coms,
736 S.W.2d 325, 326 (Ky. 1987).
In this writ petition, Lee requests that the DVO be set aside, and that
Judge Sherlock be barred from presiding over any future cases involving him.
In order for an extraordinary writ to be granted, the petitioner must
demonstrate that the lower court is proceeding outside its jurisdiction, which,
in the case of writ proceedings, refers to subject matter jurisdiction, or that the
court is proceeding within its jurisdiction but erroneously. Goldstein v. Feeley,
299 S.W.3d 549, 553 (Ky. 2009).
Once a judge is properly disqualified and
recused, reentry into the case would be proper only
upon a showing of affirmative evidence that the
conflict no longer exists . . . and that no special judge
has been appointed. On motion of the parties, the
judge could ministerially acknowledge those facts and
only then resume jurisdiction
Appalachian Reg'l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 55 (Ky. 2007).
Lee is incorrect that the trial court did not have jurisdiction; rather, if any
issue of jurisdiction exists, it would apply solely to Judge Sherlock.
However, as discussed by the Court of Appeals, We need not examine the
merits of this jurisdictional argument since the trial court is not proceeding or
about to proceed outside of its jurisdiction; it has already acted to enter a final
and appealable DVO that Lee may directly appeal. In fact, Lee has filed a direct
appeal from the January 19, 2016, DVO, Which is currently pending before the
4
Court of Appeals,4 thus demonstrating not only does an adequate remedy
through an intermediate court exist, but that Lee already exercised that
remedy. As this Court has stated, “[i]t is beyond dispute that mandamus may
not be used as a substitute for appeal.” Nat’l Gypsum Co., 736 S.W.2d at 326.
Since Lee has recourse for direct appeal, we agree with the Court of Appeals
that Lee has failed to demonstrate grounds for the issuance of a writ.
Next, Lee argues that Judge Sherlock should be required to recuse
herself from presiding over any future proceedings in which he is involved. As
discussed by the Court of Appeals, should Lee find himself before Judge
Sherlock again, the remedies provided by the disqualification statutes, KRS5
26A.015 and 26A.020, remain available to him as does future direct appeal.
III. CONCLUSION.
For the foregoing reasons, we affirm the order of the Court of Appeals. In
summary, We do not believe the Court of Appeals erred in deciding that Lee
failed to show sufficient grounds for a writ of mandamus.
All Sitting. All concur.
4 We take note of the Court of Appeals’ decision vacating the DVO and
remanding, Lee v. King, No. 2016-CA-000167-ME, 2017 WL 1102981 (Ky. App. Mar.
24, 2017) (unpublished).
5 Kentucky Revised Statutes.
COUNSEL FOR APPELLANT:
John David Lee, pro se
COUNSEL FOR APPELLEE:
Hon. Paula Sherlock
COUNSEL FOR REAL PARTY IN INTEREST:
Andy Beshear
Attorney General of Kentucky
Steven Romines
Romines, Weis, 85 Young