Zachary Amos Lamb v. Hon Ken M. Howard Judge, Hardin Circuit Court

• Court: Kentucky Supreme Court
• Decided: May 2, 2016
• Docket: 2015 SC 000300
• 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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MAY 5, 2016 NOT TO BE PUBLISHED

Suprrittr taint of rnfurltv 2015-SC-000300-MR

ZACHARY AMOS LAMB APPELLANT

ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2014-CA-002008-OA HARDIN CIRCUIT COURT NO. 13-CI-00096

HON. KEN M. HOWARD, JUDGE APPELLEE HARDIN CIRCUIT COURT

DOUG'S TOWING REAL PARTY IN INTEREST

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Zachary Lamb appeals as a matter of right from an order of the Court of

Appeals denying his petition for a writ of mandamus. Kentucky Rule of Civil

Procedure (CR) 76.36(7)(a), Ky. Const. § 115. Lamb seeks the writ to obtain the

following: (1) to require the Hardin Circuit Court to enter an order changing

venue of the circuit court action to Calloway Circuit Court; (2) to remove the

respondent judge from presiding over the litigation; (3) to compel certain

individuals to answer his interrogatories; and (4) to obtain the return of his

automobile. As such use of a writ of mandamus is improper, we affirm the

Court of Appeals' denial of Lamb's petition. FACTS AND PROCEDURAL HISTORY

In January 2013, Lamb filed a civil complaint against Doug Estes, Kevin

Estes, Cathy Mathews, and Doug's Towing due to a dispute concerning Lamb's

towed vehicle. At a January 21, 2014, hearing in the case, Lamb alleges that

the respondent judge granted his motion to compel Mathews along with Doug

and Kevin Estes to answer the tendered interrogatories. 1 According to Lamb

the respondent judge also failed to reduce his January 21, 2014, order to

writing as was promised.

On July 23, 2014, the respondent judge issued an order denying Lamb's

motion for recusal. Lamb's motion was based in part upon the fact that he had

sued the respondent judge in federal court. In denying the motion, the

respondent judge noted that Lamb's federal action was dismissed on June 17,

2014. Subsequently, in December 2014, Lamb filed a petition for a writ of

mandamus with the Court of Appeals. The Court of Appeals denied the

petition after determining that Lamb had failed to meet the requisite criteria for

the issuance of a writ. Lamb then appealed to this Court as a matter of right.

ANALYSIS

Lamb argues that the Court of Appeals erred in denying his petition for a

writ of mandamus. A writ of mandamus is an "extraordinary remedy which

1 Lamb's claims as to what occurred during the January 21, 2014, hearing

engender skepticism. First, Lamb failed to include a copy of the video of the hearing in the appellate record, precluding this Court from confirming Lamb's assertion. Further, while Lamb's case was before the Court of Appeals, the respondent judge noted that Lamb had failed to properly serve the real parties in interest. As the respondent judge had determined that service was improper, it is highly unlikely that he would have ordered an answer to Lamb's interrogatories.

2 compels the performance of a ministerial act or mandatory duty where there is

a clear legal right or no adequate remedy at law." Cty. of Harlan v. Appalachian

Reg'l Healthcare, Inc., 85 S.W.3d 607, 613 (Ky. 2002). "[C]ourts of this

Commonwealth are—and should be—loath to grant the extraordinary writs

unless absolutely necessary." Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008).

A writ of mandamus may only be granted unde'r two circumstances. The

first circumstance is where it is shown that "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." Mahoney v. McDonald Burkman, 320 -

S.W.3d 75, 77 (Ky. 2010) (citing Goldstein v. Feeley, 299 S.W.3d 549, 552 (Ky.

2009). The second, and more common, circumstance justifying the writ is

where it is shown "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." Id. (citation omitted). We review the decisions of the Court of

Appeals in such cases under the abuse of discretion standard. Grange Mut.

Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004), as modified (Dec. 1, 2004).

In the case at bar, the Hardin Circuit Court has subject matter

jurisdiction over Lamb's action, rendering the first category of writ inapplicable.

As such, Lamb must demonstrate that the circuit court is acting or about to

act erroneously, that there is no adequate remedy by appeal or otherwise, and

that irreparable injury will occur if the petition is denied.

3 For each of Lamb's requests there are other possible remedies precluding

the issuance of a writ of mandamus. First, Lamb seeks a writ to provide him

with a change in venue to the Calloway Circuit Court. A venue determination

does not warrant extraordinary relief due to the availability of a remedy by

appeal and a lack of irreparable injury. Fritsch v. Caudill, 146 S.W.3d 926, 930

(Ky. 2004) (citing Ison v. Bradley, 333 S.W.2d 784 (Ky. 1960)) (if venue is

improper the trial court or an appellate court will recognize that in due course

and remedy it; inconvenience and expense of litigation are not irreparable

injury.)

Second, Lamb requests a writ to remove the respondent judge from

presiding over the litigation. Kentucky Revised Statutes (KRS) 26A.020(1) is

Kentucky's statutory mechanism for trial-judge disqualification. Under KRS

26A.020(1) a party who believes "that the judge will not afford him a fair and

impartial trial, or will not impartially decide an application for a change of

venue" may file an affidavit with the circuit clerk stating the factual basis for

that belief. That affidavit is forwarded to the Chief Justice for his review to

determine whether disqualification is appropriate. Through this process Lamb

possesses an adequate remedy to permit review of the respondent judge's

decision to not recuse himself. Further, Lamb is entitled to a right of appeal

from any adverse result in the trial court. Ky. Const. § 115. As such, if the

respondent judge was not disqualified and there was an adverse decision

reached in his case, Lamb could raise the issue on appeal from the final

judgment.

4 Third, Lamb's remaining requests -- to compel the real parties in interest

to answer his interrogatones and to obtain his vehicle -- also do not warrant

the issuance of a writ. "No adequate remedy by appeal' means that any injury to

[Lamb] 'could not thereafter be rectified in subsequent proceedings in the case."

Indep. Order of Foresters v. Chauvin, 175 S.W.3d 610, 614 15 (Ky. 2005) -

(quoting Bender v. Eaton, 343 S.W.2d 799, 802 (Ky. 1961)). As Lamb's case is

still pending, both of these issues can be addressed in subsequent proceedings

before the circuit court. Further, if there is an adverse decision regarding

either of these issues, Lamb still has the option of an appeal after the case is

adjudicated.

As Lamb has failed to meet the criteria for the issuance of a writ of

mandamus, we affirm the order of the Court of Appeals.

All sitting. All concur.

APPELLANT:

Zachary Amos Lamb

APPELLEE:

Hon. Ken M. Howard, Judge Hardin Circuit Court

ATTORNEY FOR DOUG'S TOWING, REAL PARTY IN INTEREST:

Doug Estes, Company Representative