Harper Sub Club, LLC v. Honorable James R. Schrand, Judge, Boone Circuit Court

• Court: Kentucky Supreme Court
• Decided: August 23, 2021
• Docket: 2020 SC 0372
• 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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: AUGUST 26, 2021 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2020-SC-0372-MR

HARPER SUB CLUB, LLC AND APPELLANTS PAIGE MCKEE

ON APPEAL FROM COURT OF APPEALS NO. 2020-CA-0211 V. BOONE CIRCUIT COURT NO. 17-CI-00662

HONORABLE JAMES R. SCHRAND, APPELLEE JUDGE, BOONE CIRCUIT COURT

AND

MARKUS RESING REAL PARTY IN INTEREST

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Alleging failures by both the trial and appellate courts to properly

interpret our Civil Rules1, Rules of Evidence2, as well as the Kentucky Uniform

Commercial Code, Petitioners Harper Sub Club, LLC and Paige McKee request

a writ of prohibition and/or mandamus under both the first and second class

of writs as well as the “certain special circumstances” exception. Finding the

petition without merit, we affirm the Court of Appeals’ decision.

1 Kentucky Rules of Civil Procedure. 2 Kentucky Rules of Evidence. I. Factual and Procedural Background

The factual premise of the appeal is founded on the terms of a loan

between Markus Resing and Paige McKee, the sole owner of Harper Sub Club,

LLC. In 2010, Resing loaned Sub Club $50,000 at 8% interest. The loan was

to mature in 2012. McKee, a licensed attorney, drafted the note, which

included an option for Sub Club to convert the outstanding debt into an

ownership interest for Resing.

McKee made no payments on the debt, but allegedly made continual

assurances to Resing that the LLC would repay the loan. However, in 2017,

McKee liquidated Sub Club’s assets without notifying Resing. McKee utilized

the proceeds of her sale in part to pay off her student loan debt. Consequently,

Resing filed a complaint in Boone Circuit Court against Sub Club and McKee

seeking repayment of the loan. Following discovery, Resing filed a motion for

summary judgment, which was granted in part and denied in part.

Sub Club moved for the trial court to make its partial summary

judgment final and appealable.3 The trial court denied the motion. Thereafter,

the attorney representing Sub Club withdrew. Resing renewed his motion for

summary judgment in January 2020, but before the trial court could rule,

McKee, on behalf of Sub Club, filed the writs at issue with the Court of

3 We note, that although irrelevant to this appeal, McKee has filed numerous

other motions, often tardy and with flimsy legal or procedural support.

2 Appeals.4 The Court of Appeals denied the petitions for Prohibition and/or

Mandamus. This appeal followed.

II. Standard of Review

Because writs, definitionally, depart from our regular process, they are

always accompanied with a “specter of injustice[.]” S. Fin. Life Ins. Co. v.

Combs, 413 S.W.3d 921, 925 (Ky. 2013) (quoting Cox v. Braden, 266 S.W.3d

792, 795 (Ky. 2008)). Consequently, writs are only appropriate in the most

exacting and extraordinary circumstances, with the application of an

exceedingly strict standard to determine the availability of the remedy being

sought. Combs, 413 S.W.3d at 925.

Since granting a writ is a discretionary act, we generally review the Court

of Appeals decision for abuse of discretion; reserving clear error review for any

factual findings made. Id. at 926. However, for questions of law, such as

jurisdictional matters in writs of the first class, our standard of review remains

de novo. Id.

III. Analysis

A. A writ of the first class is not appropriate.

Petitioners’ claim to the first class of writs may be dealt with summarily.

Writs of the first class invoke subject matter jurisdiction; whether a court may

hear a “kind of case[.]” Davis v. Wingate, 437 S.W.3d 720, 725 (Ky. 2014)

(citations omitted). A court acts outside of its jurisdiction only when no

4 During the pendency of the Court of Appeals action, McKee also filed for, and

was denied, intermediary relief.

3 “constitutional provision or statute[]” grants authority for the court to hear the

case. Id. The Boone Circuit Court, as a court of general jurisdiction, has

“original jurisdiction of all justiciable causes not vested in some other court.”

Ky. Const. § 112(5); see also KRS5 23A.010(1) (“[The Circuit Court] has original

jurisdiction of all justiciable causes not exclusively vested in some other

court[]”). Since the underlying claim to this petition is a contract dispute

involving more than $5,000, the Boone Circuit Court enjoys the necessary

jurisdiction to hear the claim. See KRS 24A.120(1) (granting the District Court

exclusive jurisdiction to hear civil matters involving $5,000 or less; with

enumerated exceptions). Petitioners’ argument regarding Resing’s standing to

bring the case is entirely inapposite because it simply does not implicate the

court’s ability to hear the case.6

B. No writ of the second class is appropriate.

When a party seeks a writ of the second class, the petition may be

granted if the party can demonstrate that (1) “no adequate remedy by appeal or

otherwise” exists and (2) that it would suffer a “great injustice and irreparable

injury” if we fail to grant its petition. Hoskins v. Maricle, 150 S.W.3d 1, 6 (Ky.

2004) (internal citation omitted). In “certain special cases” we may waive a

petitioner’s requirement to show great injustice and irreparable harm if it can

demonstrate that correcting the error is “necessary and appropriate in the

5 Kentucky Revised Statutes. 6 Petitioners’ claims amount to questioning Resing’s legal entitlement to bring the suit, when in fact, the Boone Circuit Court is the appropriate judicial forum to hear any arguments regarding Resing’s standing in the first place.

4 interest of orderly judicial administration.” Marcum v. Scorsone, 457 S.W.3d

710, 715-16 (Ky. 2015) (citations omitted). In such cases, the Court recognizes

that by failing to grant the writ, the system itself will be the victim of “great and

irreparable injury.” Id.

The functional result of our two-part test and “certain special cases”

exception is that petitioners are always required to show that they have no

“adequate remedy by appeal or otherwise.” Contextually, this requires

petitioners to prove that injurious conduct of the lower court “could not

thereafter be rectified in subsequent proceedings in the case.” Newell Enters.,

Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005) (citation omitted), overruled on

other grounds by Interactive Media Entm’t & Gaming Ass’n., Inc. v. Wingate, 320

S.W.3d 692 (Ky. 2010). Consequently, if any avenue for a remedy exists, a writ

of the second class is inappropriate. 158 S.W.3d at 754; see also Cox, 266

S.W.3d at 797 (affirming the rule that petitioners must always show they lack

an adequate remedy).

Petitioners fail to prove they lack an adequate remedy because, as the

Court of Appeals correctly analyzed, each assignment of error they raise now

may also be raised through direct appeal under CR 73.02, following the circuit

court’s entry of a final judgment. Indeed, all the harm Petitioners allege has

either not occurred yet, because the trial has not been held; or involves

questions of law, for which the traditional appeals process is well suited.

Neither circumstance is extraordinary in the slightest.

5 IV. Conclusion

For the reasons stated above, we affirm the Court of Appeals’ denial of a

writ of prohibition and/or mandamus.

All sitting. Minton, C.J.; Conley, Hughes, Lambert, Nickell, and

VanMeter, JJ., concur. Keller, J., concurs in result only.

COUNSEL FOR APPELLANTS:

Paige Anne McKee

COUNSEL FOR APPELLEE:

Honorable James R. Schrand

COUNSEL FOR MARKUS RESING, REAL PARTY IN INTEREST:

Douglas Scott Williams Arnzen Storm & Turner PSC