National Gypsum Co. v. Corns

736 S.W.2d 325, 1987 Ky. LEXIS 244
CourtKentucky Supreme Court
DecidedSeptember 24, 1987
Docket87-SC-353-MR
StatusPublished
Cited by36 cases

This text of 736 S.W.2d 325 (National Gypsum Co. v. Corns) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Gypsum Co. v. Corns, 736 S.W.2d 325, 1987 Ky. LEXIS 244 (Ky. 1987).

Opinions

LAMBERT, Justice.

Petitioners appeal to this Court from the final order of the Court of Appeals which [326]*326denied their petition for writ of mandamus. In the court below, petitioners sought reversal of an interlocutory order of the Franklin Circuit Court which determined that KRS 413.160, a statute imposing a ten-year period of limitation, applied to the Commonwealth’s claims against petitioners.

On December 30, 1985, an action was commenced in the Franklin Circuit Court styled Commonwealth of Kentucky, ex. rel. David L. Armstrong, Attorney General v. United States Gypsum Co., et al. Named as defendants were twenty-three corporations alleged to have produced and marketed asbestos-containing products which were used in the construction of approximately 4,000 public buildings in Kentucky. The Commonwealth predicated its claim for relief upon strict liability, negligence, restitution, and fraud and misrepresentation. It also alleged concert of action and market share liability. Judgment was demanded for compensatory damages in excess of 68 million dollars, punitive damages, injunctive relief, and indemnity.

In their answers, defendants pled, inter alia, KRS 413.120, a five-year statute of limitation, as a bar to the Commonwealth’s claims. They sought a stay of discovery and a ruling from the trial court that the five-year statute was controlling. In response, the trial court stayed discovery and established a schedule for the filing of memoranda as to the applicable statute of limitations. Thereafter, the trial court heard oral argument and in due course, issued its ruling that the ten-year statute applied.

Aggrieved by the trial court’s order, defendants brought an original action for writ of mandamus in the Court of Appeals. In a 2-1 decision, that court denied the petition. This appeal followed.

We are urged by petitioners to reverse the Court of Appeals and direct the trial court to apply the five-year statute of limitation. They contend that the trial court was “clearly erroneous” and that such error, coupled with the complexity and anticipated expense of the litigation, justifies the extraordinary remedy sought. Petitioners also contend that a decision as to which statute controls is needed to clarify the law and serve judicial economy. Finally, they make an argument based on denial of due process and equal protection of the law.

The Commonwealth responds that petitioners have failed to show that they lack an adequate remedy by appeal or that they will suffer irreparable injury. The Commonwealth also argues that the trial court’s ruling is not clearly erroneous and that action by this Court at this time would be premature.

At the outset, we must determine whether the Court of Appeals was required 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.

It is beyond dispute that mandamus may not be used as a substitute for appeal. Merrick v. Smith, Ky., 347 S.W.2d 537 (1961). So long as the trial court is acting within its jurisdiction, error or probable error, standing alone, does not provide a basis for the issuance of a writ of mandamus. In Allen v. Walter, Ky., 534 S.W.2d 453, 454 (1976), we said:

[I]f what he (the trial court) does is wrong it can be undone in due course and in the same manner applicable to any other case.... [I]f every action taken or about to be taken by a trial judge were made subject to day-to-day supervision by an appellate court the result would be chaos.

To obtain relief by writ of mandamus, a petitioner must show that great injustice or irreparable injury will result and that appeal does not provide an adequate remedy. Barker v. Breslin, Ky., 329 S.W.2d 578 (1959). The foregoing principles are easily enough stated, but their application to a particular case is more difficult. For guidance in this respect, we turn to Bender v. Eaton, Ky., 343 S.W.2d 799 (1961).

Bender was decided about eight years after Kentucky adopted the Rules of Civil Procedure. Commissioner Clay, writing for this Court, undertook to review the law [327]*327of prohibition and mandamus as it might apply to restrictions upon discovery. In this proceeding, petitioners and respondent place heavy reliance upon Bender and the Court of Appeals cited it as controlling authority.

. In Bender, plaintiff sought recovery for personal injuries. By deposition, she disclosed the names of several physicians with whom she had consulted. Defendants moved the court for an order requiring plaintiff to produce all medical reports by the doctors whose names had been disclosed. Plaintiff objected to this request in reliance upon CR 37.02

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Cite This Page — Counsel Stack

Bluebook (online)
736 S.W.2d 325, 1987 Ky. LEXIS 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-gypsum-co-v-corns-ky-1987.