Opinion
2013-SC-000271-MR
04-17-2014
SHELLEY NETHERWOOD APPELLANT v. HON. JAMES M. SHAKE, JUDGE, JEFFERSON CIRCUIT COURT APPELLEE ELAINE KENNEDY AND EKM REAL ESTATE REAL PARTIES IN INTEREST
APPELLANT: Shelley Netherwood APPELLEE: Hon. James M. Shake, Judge COUNSEL FOR REAL PARTIES IN INTEREST: Laura Elizabeth Landenwich Clay Daniel Walton & Adams PLC
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2012-CA-000062-OA
JEFFERSON CIRCUIT COURT NO. 05-CI-010493
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Shelly Netherwood appeals, pro se, from an Order of the Court of Appeals denying her petition for a writ of mandamus. Netherwood is the defendant in a contract, action brought against her in the Jefferson Circuit Court by Elaine Kennedy, the real party in interest. Kennedy is, or at least was, a realtor, and she claims that Netherwood owes her a commission under a listing contract on a 2005 sale of real property in Jefferson County. Netherwood sought, but the Court of Appeals denied, an order compelling the trial court to dismiss Kennedy's complaint. We affirm.
DISCUSSION
After lengthy pre-trial proceedings, which included a prior visit to the Court of Appeals, Netherwood v. Kennedy, 2010 WL 5018154 (Ky. App. Dec. 10, 2010), discretionary review denied, 2011-SC-000014-D (Oct. 19, 2011), Kennedy's suit against Netherwood was set for trial in January 2012. Netherwood, who resided at the time in Florida, but who nevertheless represented herself, was not present at the motion hour when the trial date was scheduled. When, a few days later, she received notice, she filed a motion seeking to have the trial rescheduled, and she reiterated a prior motion to have the complaint dismissed. The motion to reschedule was based on claims that the scheduled trial date conflicted with family commitments Netherwood had already made. The dismissal motion was based on Netherwood's contention that the unenforceability of the listing contract's arbitration provision (one of the matters decided earlier in the litigation) rendered the entire contract unenforceable.
In December 2011, with the trial pending and the trial court not having yet ruled on her motions, Netherwood brought her mandamus petition to the Court of Appeals. She sought an order requiring the trial court to rule on, and to grant, her motion to dismiss, and, if dismissal were denied, an order requiring the trial court to reschedule the trial for a time when she could attend. Because as scheduled the trial would take place before the Court of Appeals could address her petition, Netherwood also filed a motion for intermediate relief pursuant to CR 76.34(4). The Court of Appeals denied the motion for intermediate relief, and Netherwood appealed. This Court affirmed that denial, Netherwood v. Shake, 2012 WL 5289532 (Ky. Oct. 25, 2012), and denied Netherwood's petition for rehearing. Netherwood v. Shake, 2012-SC-000040-MR (Feb. 21, 2013).
The matter was thereupon resumed in the Court of Appeals, which, by Order entered April 15, 2013, denied Netherwood's petition on the merits. Netherwood v. Shake, 2012-CA-000062-OA (April 15, 2013). By that point, as the Court of Appeals panel noted, the matter had gone forward in the trial court. The trial court had denied Netherwood's motions to dismiss the complaint and to reschedule the trial, a default judgment had been entered against Netherwood, and she had appealed from that judgment to the Court of Appeals. The panel reiterated this Court's holding that the trial court had jurisdiction to consider the enforceability of the listing contract, and it held that Netherwood's appeal was an adequate remedy for the trial court's alleged misconstruction of the contract as well as its refusal to reschedule the trial. We agree.
As we explained in Netherwood's earlier appeal from the denial of her motion for intermediate relief, the remedies available under CR 81 are not provided as alternatives to an appeal. A writ, rather, is an extraordinary remedy available only when the trial court is proceeding outside its jurisdiction or is proceeding erroneously within its jurisdiction and an appeal would not provide relief. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
Netherwood's assertions to the contrary notwithstanding, the trial court's ordinary subject matter jurisdiction over contract disputes extends here to Netherwood's contention that her contract with Kennedy was rendered unenforceable by the failure of the contract's arbitration clause. As we noted before, the trial court's assessment of that contention is subject to review by way of appeal, and the availability of appellate relief precludes Netherwood's resort to CR 81. Netherwood v. Shake, 2012 WL 5289532 p. 2 ("The trial court had the right to pass upon the issue presented in the underlying action, any error it committed in doing so would not destroy its jurisdiction. . . . To the extent that the trial court may have erred, Netherwood had an adequate remedy on appeal."). Netherwood's contention that the trial court abused its discretion by refusing to reschedule the trial is also, as we explained before, subject to review on appeal. Id.
CONCLUSION
The Court of Appeals panel thus correctly ruled that mandamus is not an available remedy under these circumstances. Netherwood's appeal, rather, will afford her an adequate opportunity to have reviewed the errors she alleges. Accordingly, we hereby affirm the Order of the Court of Appeals denying Netherwood's petition for CR 81 relief.
All sitting. All concur. APPELLANT: Shelley Netherwood APPELLEE: Hon. James M. Shake, Judge COUNSEL FOR REAL
PARTIES IN INTEREST:
Laura Elizabeth Landenwich
Clay Daniel Walton & Adams PLC