Darren C. Wilson v. Honorable Jay B. Delaney

• Court: Kentucky Supreme Court
• Decided: February 23, 2022
• Docket: 2021 SC 0273
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 24, 2022 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2021-SC-0273-MR

DARREN C. WILSON APPELLANT

ON APPEAL FROM COURT OF APPEALS V. NO. 2021-CA-0030 HARRISON CIRCUIT COURT NO. 20-CI-00055

HONORABLE JAY B. DELANEY, APPELLEE HARRISON COUNTY CIRCUIT JUDGE

AND

CYNTHIANA-HARRISON COUNTY- REAL PARTY IN INTEREST BERRY JOINT PLANNING COMMISSION

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Darren Wilson appeals as a matter of right from the Court of Appeals’

order granting in part and denying in part his CR1 76.36 petition for a writ of

prohibition, in which Wilson sought to prevent enforcement of the Harrison

Circuit Court’s order granting the Cynthiana-Harrison County-Berry Joint

Planning Commission’s motion to compel inspection of his real property. The

Court of Appeals determined that Wilson had met the threshold showing for the

1 Kentucky Rules of Civil Procedure. issuance of a writ but declined to issue one to prevent enforcement of the

circuit court’s order allowing the property inspection. However, the Court of

Appeals granted Wilson’s request for a writ to prohibit enforcement of the

portion of the circuit court’s order which authorized a non-party,

administrative agency (WEDCO)2 to accompany the Commission on the

inspection. Since the Commission has not appealed the Court of Appeals’

decision that WEDCO should be excluded from the inspection, the only issue

before us is whether the circumstances in question support granting a writ to

prevent inspection of Wilson’s property by the Commission. We conclude they

do not and therefore affirm the Court of Appeals.

I. Factual and Procedural Background

Wilson’s writ petition arose from a declaration of rights action he filed

against the Commission in Harrison Circuit Court in March 2020, wherein he

sought a declaration, pursuant to KRS3 418.040, that his property located at

470 W. Pleasant Street in Cynthiana, KY (“the property”) was entitled to be

used as a “junk yard” due to the Commission’s failure to enforce a zoning

ordinance for a period of more than 10 years.4 Wilson does not dispute that he

2 WEDCO is a statutory, public health district, supported by taxes levied by the district’s counties Bourbon, Harrison, Nicholas and Scott, and under the supervision of the Cabinet for Health and Family Services. WEDCO acts as the local health department for Harrison County. 3 Kentucky Revised Statutes. 4 The Commission notes that this action was filed after Wilson had been convicted in Harrison District Court (18-M-00310) of 245 counts of violating Harrison County Ordinance Series No. 283, Series 2014. On August 4, 2014, Wilson also pled guilty to one count of local ordinance violation in Harrison District Court (13-M- 00547) associated with the property located at 470 W. Pleasant Street, Cynthiana, KY.

2 is unlawfully using his property as a “junk yard,” as that phrase is defined in

the Commission’s zoning ordinances, but rather claims that the Commission’s

lack of enforcement establishes his use of the property as nonconforming in

accordance with KRS 100.243. The Commission counterclaimed for injunctive

relief seeking to enjoin Wilson’s continued use of his property for the storage of

inoperative motor vehicles, in violation of Harrison County Ordinance No. 283,

Series 2014 (the “Nuisance Ordinance”), as Wilson’s property is not zoned for

use as a “junk yard.”

As part of the discovery process, the Commission filed a motion to

compel inspection pursuant to CR 34, stating that the purpose of the

inspection was to determine Wilson’s compliance with local ordinances. The

Commission also asked that a representative from WEDCO be permitted to be

present during the inspection. Wilson objected on grounds that the inspection

was not relevant and that WEDCO’s presence violated his Fourth Amendment

rights.

The circuit court heard arguments from counsel and thereafter granted

the Commission’s motion to compel inspection. Wilson filed a petition for a

writ of prohibition in the Court of Appeals, which was granted insofar as the

Commission could not have WEDCO join in the CR 34 inspection but denied

the writ to prohibit the Commission from conducting the inspection. This

appeal followed.

3 II. Standard of Review

“The Court of Appeals shall have appellate jurisdiction only, except that

it may . . . issue all writs necessary in aid of its appellate jurisdiction[.]” KY.

CONST. § 111(2). “Thus, whether to grant or deny a petition for a writ is not a

question of jurisdiction, but of discretion.” Hoskins v. Maricle, 150 S.W.3d 1, 5

(Ky. 2004) (citing Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)). This

Court reviews the Court of Appeals’ decision to grant the writ for abuse of

discretion. Appalachian Racing, LLC v. Commonwealth, 504 S.W.3d 1, 3 (Ky.

2016). “That is, we will not reverse the lower court’s ruling absent a finding

that the determination was ‘arbitrary, unreasonable, unfair, or unsupported by

sound legal principles.’” Id. (quoting Commonwealth v. English, 993 S.W.2d

941, 945 (Ky. 1999)).

III. Analysis

“Because writs interfere with both the orderly, even if erroneous,

proceedings of a trial court and the efficient dispatch of our appellate duties,

the courts of this Commonwealth have periodically attempted to formulate a

rule governing the discretionary choice between issuing a writ and relegating a

petitioner to the right to appeal.”5 Hoskins, 150 S.W.3d at 5-6. As writs are

extraordinary remedies,

[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

5 See 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[.]”)

4 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.

Id. at 10.

Wilson seeks a writ of the second class, his position being that the circuit

court acted within its jurisdiction, but erroneously, when it ordered the

inspection. Consequently, Wilson must show he lacked an adequate remedy by

appeal or otherwise and that great injustice and irreparable injury will result

from the inspection.

In the writ context, “‘[n]o adequate remedy by appeal’ means that any

injury to [the petitioner] could not thereafter be rectified in subsequent

proceedings in the case.” Newell Enters., Inc. v. Bowling, 158 S.W.3d 750, 754

(Ky. 2005), overruled on other grounds by Interactive Media Entm’t and Gaming

Ass’n, Inc. v. Wingate, 320 S.W.3d 692 (Ky. 2010) (footnotes omitted). In

Wilson’s case, the inspection of his property, once completed, could not be

undone by the Court of Appeals. Consequently, the Court of Appeals correctly

concluded that Wilson lacked an adequate remedy on appeal. See Grange Mut.

Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004) (holding that an adequate

remedy by appeal rarely exists if the alleged error is an order allowing

discovery); Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796, 800 (Ky. 2000)

(“As a practical matter, whenever a discovery violation occurs that allegedly

allows discovery in error, a party will not have an adequate remedy by appeal

because ‘once the information is furnished, it cannot be recalled.’” (citation

omitted)).

5 “[G]reat and irreparable injury . . . means something of a ruinous

nature.” Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). In other words,

some “incalculable damage to the applicant was involved, either to the liberty of

his person, or to his property rights, or other far-reaching and conjectural

consequences.” Litteral v. Woods, 223 Ky. 582, 4 S.W.2d 395, 397 (1928). As

to the requirement of great injustice and irreparable injury, “[t]his Court has

consistently recognized an exception to the irreparable harm requirement in

‘certain special cases.’” Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415

S.W.3d 635, 639–40 (Ky. 2013) (citation omitted). In such cases, “a writ may

issue in the absence of a showing of specific great and irreparable injury . . .

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.” Id. at 640

(quotations and citations omitted). However, even when those requirements

are met, the issuance of a writ is not mandatory, but rather lies within the

Court’s discretion. Id.

The Court of Appeals held that Wilson met the prerequisites to issue a

writ, finding that the “certain special cases” exception was implicated by his

allegation that authorizing WEDCO to enter onto his property raised Fourth

Amendment constitutional concerns. Again, as that issue is not appealed, we

will not disturb it. Notably, the Court of Appeals did not find this exception

implicated by the circuit court’s authorization of an inspection by the

Commission alone.

6 On appeal, Wilson has failed to identify any great and irreparable harm

that would result from the property inspection. He simply claims that the

circuit court acted erroneously, and its order was arbitrary and unfair. Wilson

maintains the circuit court’s order was arbitrary because the requisite “nexus”

between the premises to be inspected and the underlying cause of action did

not “appear on the face of the order.” See Dickinson, 29 S.W.3d at 802 (holding

that before an inspection of premises can be ordered pursuant to CR 34.01, the

existence of a nexus between the property to be inspected and the underlying

cause of action must be established and “this nexus must appear on the face of

the order[]”). He further asserts that the circuit court’s order was unfair and

categorizes the Commission’s request for an inspection as a “fishing

expedition.”

However, the Commission’s motion to compel was a routine discovery

tool, as contemplated by CR 34.01, which provides in relevant part:

Any party may serve on any other party a request . . . (b) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26.02.

In its motion to compel, the Commission informed the circuit court that

it sought to inspect the premises:

1. To inventory the vehicles, machinery, and the nature of the junk material that is on the property; 2. To photograph and video document the condition of the property and the vehicles, machinery, and junk material on the property;

7 3. To inspect the property for release petroleum products or other hazardous substances from the deteriorating vehicles, machinery, and junk.6

Here, the Commission’s motion to compel was sufficiently specific to

defeat Wilson’s characterization of the Commission’s request as a “fishing

expedition” and its stated purpose appears relevant to the Commission’s

counterclaim as to the lawfulness of Wilson’s use of his property. CR 26.02

provides that a party “may obtain discovery regarding any matter, not

privileged, which is relevant to the subject matter involved in the pending

action[.]” As the Court of Appeals aptly observed, while Wilson maintains that

since he concedes his land use is unlawful, and thus nothing can be gleaned

from an inspection of the property, the scope of the Commission’s counterclaim

and its contemporaneous request for injunctive relief makes any information

obtained from an inspection relevant to contested issues. Furthermore, as with

all pre-trial discovery matters, the circuit court is in the best position to make

relevancy determinations and we defer to them absent an abuse of discretion.

See Webb v. Commonwealth, 387 S.W.3d 319, 325 (Ky. 2012) (“We recognize

that trial courts are in a better position to make relevancy decisions and for

that reason give them substantial deference[]”).

Lastly, the nexus between the property to be inspected and the

underlying cause of action is obvious: the property Wilson identified in his

Complaint in the underlying declaration of rights action is the same property

6 The Commission did not request, and the circuit court did not grant,

permission to inspect the inside of any dwelling, workshop, or outbuildings.

8 the circuit court authorized to be inspected. As far as Wilson’s assertion that

the “nexus” must “appear on the face of the order,” the circuit court’s order

specifically granted the Commission’s request to inspect the property located at

470 W. Pleasant Street, Cynthiana, KY, within the proposed scope of the

Commission’s request. The circuit court was not required to make any

additional finding to prove a “nexus,” as the record clearly reflects that the

property is the subject matter of this litigation. Because Wilson has not

established any great and irreparable injury that will result from the property

inspection, the Court of Appeals correctly concluded that a writ was not

warranted.

IV. Conclusion

For the foregoing reasons, we affirm the Court of Appeals.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Patrick Henry Watson Watson Law Firm, PLLC

APPELLEE:

Honorable Jay B. Delaney

COUNSEL FOR REAL PARTY IN INTEREST:

Brian T. Canupp