IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: MARCH 25, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0495-MR
HAYNES TRUCKING, LLC; AND L-M APPELLANTS
ASPHALT PARTNERS, LTD. D/B/A ATS
CONSTRUCTION
ON APPEAL FROM COURT OF APPEALS
V. NO. 2020-CA-0762
FAYETTE CIRCUIT COURT NO. 10-CI-03986
HONORABLE ERNESTO M. SCORSONE, APPELLEE
FAYETTE CIRCUIT COURT JUDGE
AND
WILLIAM E. ABNEY, CHARLES BUSSELL, REAL PARTIES IN INTEREST
JAMES D. FETTERS, HARTFORD FIRE
INSURANCE COMPANY, JAMES MELVIN
HENSLEY, DANNY LAINHART, AND
TONY MITCHELL
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal arises out of a pending class-action lawsuit in which the
plaintiffs seek recovery for back pay and damages from Haynes Trucking, LLC
and L-M Asphalt Partners, Ltd. d/b/a ATS Construction (together called
Haynes Trucking”) under the Kentucky Prevailing Wage Act (KPWA)1 in
connection with work on certain public works projects.2
The trial court issued partial summary judgment that held invalid and
unenforceable 803 KAR3 1:055, the administrative regulation that limited the
ambit of the KWPA’s prevailing-wage to the “site of the project.” Instead, the
trial court ruled the KPWA’s plain language required the prevailing wage to be
paid for any work “under the contract” regardless of where it was performed.
The trial court did not designate its order as final and appealable, so
Haynes Trucking sought review via an original action in the Court of Appeals,
requesting a writ to prohibit the trial court from “invalidating the regulation . . .
as to past work, wages, and contracts.” In a well-reasoned opinion, the Court
of Appeals declined to issue a writ, and Haynes Trucking has appealed to this
Court as a matter of right.4 We agree with the Court of Appeals’ decision and
affirm.
I. PROCEDURAL HISTORY AND BACKGROUND
In support of its application, Haynes Trucking argued that the trial
court acted outside its subject-matter jurisdiction by granting the
1 Kentucky Revised Statutes (KRS) 337.505–337.550.
2The facts of the underlying action are set out in Hensley v. Haynes Trucking,
LLC, 549 S.W.3d 430 (Ky. 2018).
3 Kentucky Administrative Regulation.
4 Ky. Const. § 115 (“In all cases, civil and criminal, there shall be allowed as a
matter of right at least one appeal to another court . . . .”); Kentucky Rule of Civil
Procedure (CR) 76.36(7)(a) (“An appeal may be taken to the Supreme Court as a matter
of right from a judgment or final order in any proceeding originating in the Court of
Appeals.”).
2
partial summary judgment invalidating 803 KAR 1:055 when it (1) issued an ex
post facto decision, lacking an actual and justiciable controversy after the
repeal of the organic statute and the lapse of the administrative regulation
while the underlying action pended, and (2) violated the doctrine of separation
of powers and the contracts clause of the state and federal constitutions.
Alternatively, or additionally, Haynes Trucking argues that even if the trial
court was acting within its jurisdiction a writ lies because a direct appeal from
a final judgment is an inadequate remedy.
II. STANDARD OF REVIEW
A writ of prohibition is an extraordinary remedy.5 Courts are “decidedly
loath to grant writs because a ‘specter of injustice always hovers over writ
proceedings.’”6 Our jurisprudence establishes a high bar for determining the
availability of relief by way of a writ.7
Writ cases we “divide into two classes, which are distinguished by
whether the inferior court allegedly is (1) acting without jurisdiction (which
includes beyond its jurisdiction), or (2) acting erroneously within its
jurisdiction.”8 “Under the second class of cases, a writ ‘may be granted upon a
showing . . . that the lower court is acting or is about to act erroneously,
although within its jurisdiction, and there exists no adequate remedy by appeal
5 See, e.g., Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961).
6 Southern Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 925 (Ky. 2013) (citing
Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008)).
7 Hoskins v. Maricle, 150 S.W.3d 1, 4 (Ky. 2004) (holding that the older, stricter
standard applied in Bender, 343 S.W.2d at 800, and Chamblee v. Rose, 249 S.W.2d
775 (Ky. 1952), should govern writ proceedings).
8 Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005) (citing
Bender, 343 S.W.2d at 800) (internal quotation marks omitted)).
3
or otherwise and great injustice and irreparable injury will result if the petition
is not granted.’”9 Haynes Trucking sought relief under both classes, and the
Court of Appeals held that it failed to meet the requirements of either as a
matter of law. So our review in this appeal is de novo.10
III. ANALYSIS
A. The circuit court acted within its jurisdiction, so a writ of the first
class does not lie.
Haynes Trucking seeks a writ of the first class by arguing the trial court
lacked subject-matter jurisdiction to hold 803 KAR 1:055 invalid and
unenforceable. It argues that the trial court proceeded without an actual
controversy between the parties because the KWPA was repealed effective
January 9, 2017, and 803 KAR 1:055 expired under a sunset provision on
March 1, 2020, before the entry of the partial summary judgment on April 30,
2020, nullifying the regulation. We agree with the Court of Appeals that the
trial court did not act outside its general subject-matter jurisdiction when it
invalidated the regulation.
The Court of Appeals observed that general jurisdiction courts, like the
trial court in the present case, have general subject-matter jurisdiction over the
type of case presented in the underlying complaint herein—a claim for payment
of past wages owed for the period 1995 to 2010 under statutes in existence at
the relevant time. At the time the case was filed in 2010, there unquestionably
9 Id. at 754 (citing Hoskins, 150 S.W.2d at 10.).
10 Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004) (quoting
Bender, 343 S.W.2d at 800).
4
was an actual controversy between the parties over whether the plaintiffs and
putative class members were entitled to additional wages and other damages
under the KWPA for work previously performed.
Haynes Trucking argues to us that the Court of Appeals’ rationale
misconstrued its argument. It is not arguing that “there was not a controversy
when this matter was filed, but that there was no controversy as to the validity
of the regulation when this matter was filed.” But “[w]hether a court has
subject-matter jurisdiction is determined at the beginning of a case, based on
the type of case presented . . . . [A] court will retain jurisdiction over such a
case so long as jurisdiction was proper in the first place . . . .”11 Therefore, the
circuit court had subject-matter jurisdiction over the case and the issues
presented as they were raised. And once vested with subject-matter
jurisdiction over a case, a court does not suddenly lose subject-matter
jurisdiction by misconstruing or erroneously overlooking a statute or rule
governing the litigation.12
Appellant cites Jarvis v. National City,13 for the proposition that once a
statute is repealed it no longer has any operative effect, and thus cannot create
a controversy.14 But petitioner fails to address a critical factor, which is that
11 Kelly v. Commonwealth, 554 S.W.3d 854, 860 (Ky. 2018).
12 Daugherty v. Telek, 366 S.W.3d 463, 467 (Ky. 2012).
13 410 S W 3d 148 (Ky. 2013).
14 Id. at 154 (“Generally speaking, ‘without a reenactment of the repealed law in
substantially the same terms, and [with] no savings clause or general statute limiting
the effect of the repeal, the repealed statute in regard to its operative effect, is
considered as if it had never existed.’”).
5
the operative law at the time the claim was filed governed the action. And if the
regulation was inapplicable because it had been repealed, Haynes Trucking
would not have filed a motion of summary judgment arguing its application
geographically limited their potential prevailing-wage obligation. The trial
court’s action did not exceed its subject-matter jurisdiction by addressing the
repealed regulation at issue in a matter before it. Because the circuit court
had subject-matter jurisdiction to interpret a statute and its regulations at
issue before them, petitioner’s remaining arguments that the lower court
exceeded its authority fail.
Haynes Trucking argues the trial court’s invalidation of the regulation
could have only been proper if the plaintiffs had sought relief below under the
Declaratory Judgment Act.15 Like the Court of Appeals, we disagree. The
Declaratory Judgment Act allows a court to invalidate statutes when there is
no actual case or controversy over it.16 Haynes Trucking is correct that an
action under the Declaratory Judgment Act would have vested the trial court
with jurisdiction to invalidate the statute, but the Act was not the only means
of doing so. As previously discussed, irrespective of the absence of citation to
the Declaratory Judgment Act, the efficacy of the regulation and its relation to
15 KRS 418.040.
16 Id. (“In any action in a court of record of this Commonwealth having general
jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff
may ask for a declaration of rights, either alone or with other relief; and the court may
make a binding declaration of rights, whether or not consequential relief is or could be
asked.”).
6
the KWA was an issue before the trial court.17 A court may properly rule on
the validity of a statute when its meaning is at issue in a case in which the
court’s subject-matter jurisdiction has been invoked.18 Therefore, the circuit
court had authority to invalidate the regulation regardless of the DJA.
Further, because a circuit court may properly interpret statutes at issue
before it, the trial court’s partial summary judgment did not infringe on the
separation of powers doctrine. Haynes Trucking contends that the trial court’s
invalidation of the regulation encroached on the powers of the executive and
legislative branches of government because it was both an act of enforcement
and an enactment of new law. But invalidating a regulation through statutory
interpretation is not an act of enforcement or outside the judiciary’s power, but
is one squarely within it.19 Additionally, as we said in Harilson v. Shepherd,20
“interpretation of a statute . . . is in no way an encroachment on the legislative
17 This is noted by the trial court’s order: “All citations in this Order are to the
Act as it existed at the time the Plaintiffs’ complaint was filed.” Additionally, the
defendants do not argue that the law at the time the complaint was filed is not the
controlling law, as their motion for partial summary judgment argued the regulation
applied, even though it has since been repealed.
18Baptist
Convalescent Ctr, Inc. v. Boonespring Transitional Care Ctr, LLC, 405 S.
W.3d 498, 502–03 (Ky. App. 2012).
In the case at hand, Boonespring's certificate of need was disapproved by
the Cabinet because it determined that 900 KAR 6:075 was invalid as
conflicting with KRS 216B.095(4). And, the validity of 900 KAR
6:075 was strenuously argued by the parties in both the administrative
proceedings and the circuit court action. Thus, this legal issue was
squarely presented to the circuit court for adjudication. As a result,
the validity of 900 KAR 6:075 constituted a legal issue that was both
essential to resolution of the administrative appeals and ripe for
adjudication by the circuit court.
19 Harilson v. Shepherd, 585 S.W.3d 748, 757 (Ky. 2019).
20 Id.
7
function, it is a quintessentially judicial function.”21 While the statute has been
repealed since litigation in this matter began, the statute was operative at the
time the underlying claims were filed.22 The trial court acted properly in
interpreting the statute, although it no longer exists, because the issues raised
by the parties’ motions centered on its meaning.
Haynes Trucking lastly argues that the circuit court exceeded its
authority because the order violated the Contracts Clause, but this argument
fails for the same reason as above. Violations of the Contracts Clause only
arise when the legislature creates a statute that impairs already existing
contracts.23 In invalidating the regulation, the circuit court did not enact
legislation, but interpreted a statute, a classically judicial function. While the
trial court’s interpretation of the regulation certainly affects the claims in the
case at hand, its authority to do so was properly exercised. Because the
invalidation of the regulation did not make new law, it did not infringe on the
Contracts Clause.
In sum, we find that the trial court had the authority to hold 803 KAR
1:055 invalid. The regulation was at issue in a case, and the judiciary may
interpret statutes that are determinative of the matters before it. We find the
21 Id.
22 Baptist Convalescent Center, at 502–03.
23 U.S. Const. Art. 1 § 10; Ky. Const. § 19; Maze v. Board of Dirs. for
Commonwealth Postsecondary Educ. Prepaid Tuition Trust Fund, 559 S.W.3d 354 (Ky.
2018) (discussing at length the Contracts Clause and when it is infringed upon).
8
trial court did not exceed its jurisdiction and that Petitioner has failed to meet
the requirements for the first class of writ of prohibition.
B. Haynes Trucking has an adequate remedy on appeal, so a second-
class writ is not available.
Haynes Trucking has failed to show the trial court acted without
jurisdiction, so for this Court to consider the merits of its petition for the
second class of writ, it must show the lower court’s error will result in great
injustice or irreparable harm that cannot be adequately rectified by appeal or
otherwise.24 The alleged harm must be of “ruinous nature,”25 not merely costly
or an inconvenience.26 This Court may also find the remedy by appeal or
otherwise to be inadequate because the lower court’s error will result in a
substantial miscarriage of the administration of justice, but we seldomly find
such circumstances.27 In sum, for this Court to issue a writ of prohibition of
the second class, Haynes Trucking must show that the order is a substantial
miscarriage of the administration of justice or that it will suffer irreparable
injury. We find it has failed to demonstrate either, as it may obtain an
adequate remedy through appeal and no irreparable harm or substantial
disruption to justice will occur.
24 Hoskins,150 S.W.3d at 10.
25 Bender, at 801.
26 See Robertson v. Burdette, 397 S.W.3d 886, 891 (Ky. 2013) (citing Fritsch v.
Caudill, 146 S.W.3d 926, 930 (Ky. 2004)).
27 Grange Mut. Ins. Co. v. Trude, 151 S W 3d 803, 808 (Ky. 2004) (refusing to
issue a writ of prohibition except for where a special discovery standard applied, which
replaced the usual irreparable harm standard).
9
Haynes Trucking has a clear remedy by way of appeal after the litigation
concludes. It argues the remedy is inadequate because of the irreparable harm
that will occur because 1) the trial court retroactively invalidated a regulation
relied on by thousands of businesses, which is a substantial miscarriage of the
administration of justice; 2) the time between its judgment and an eventual
appeal leaves Kentuckians unable to rely on express regulations, causing a
similar harm; 3) the order will cause Haynes Trucking’s employees to not trust
them, a form of reputational damage; 4) the passage of time cannot be
remedied by appeal; and 5) because this case might settle, direct appeal will
not likely be pursued.
We find this list of potential harms insufficient for the issuance of a writ.
The remedy by direct appeal is adequate for the alleged injuries because they
are potential consequences of the normal litigation process and because they
are speculative. The passage of time is a matter of concern in any litigation.
Other than those parties who are afforded the issuance of a writ, litigants are
generally required to wait until litigation concludes before bringing an appeal.28
Additionally, foregoing the opportunity to appeal because of settlement is
another ordinary result of litigation.29 As this Court has repeatedly held, a writ
28 Lee v. George, 369 S.W.3d 29, 34 (Ky. 2012) (“This Court has repeatedly held
that the delay and expense of appeals does not constitute irreparable injury or render
remedy by appeal inadequate”); See Buckley v. Wilson, 177 S.W.3d 778, 781 (Ky.
2005) (holding that the delays inherent in every lawsuit and appeal do not constitute
inadequate remedy by appeal).
29 Fayette Cty Farm Bureau Fed'n v. Martin, 758 S.W.2d 713, 714 (Ky.
App.1988) (“That a party will be exposed to the inconvenience and cost of litigation
does not alone justify immediate review of an otherwise nonfinal order.”).
10
of prohibition is “not a substitute for the appellate process” and can be
“assessed in the ordinary course of trial and appeal.”30
Overall, the harms alleged are largely consequences of the normal
litigation process and do not amount to irreparable injury necessitating the
issuance of a writ. While some harms alleged by Haynes are unique to the
case, such as the potential reputational damage they may suffer because of the
order, all this is speculative, and a writ will not be issued to address
speculative harms.31
IV. CONCLUSION
We affirm the Court of Appeals’ decision to deny the writ.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Robert Edwin Maclin, III
Scott Alexander Schuette
Jon Allen Woodall
Brendan Reynolds Yates
Katherine Kilkeary Yunker
McBrayer, PLLC
Honorable Ernesto M. Scorsone, Judge
Fayette Circuit Court
COUNSEL FOR REAL PARTIES IN INTEREST: WILLIAM E. ABNEY, CHARLES
BUSSELL JAMES D. FETTERS, JAMES MELVIN HENSLEY, DANNY LAINHART,
AND TONY MITCHELL:
30Com. v. Shepherd, 366 S.W. 3d 1, 9 (Ky. 2012); Green Valley Envt’l Corp. v.
Clay, 798 S W 2d 141, 144 (Ky. 1990).
31 Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 641 (Ky.
2013) (holding allegations of harm to the defendant from arguably impermissible
interviews of its employees conducted by the plaintiff's investigator were too
speculative to support issuance of a writ).
11
Brent L. Caldwell
Noel Embry Caldwell
Caldwell Law Firm, PLLC
Bryce Lowry Caldwell
Attorney-at-Law, PLLC
William R. Garmer
Jerome Park Prather
Garmer and Prather, PLLC
David Michael Stout
Stout Law Office, PSC
COUNSEL FOR REAL PARTIES IN INTEREST: HARTFORD FIRE INSURANCE
COMPANY:
J. Andrew Inman
LaToi D. Mayo
Littler Mendelson, PSC.
12