RAYMOND SCHLAGEL AND KORLISS SCHLAGEL V. HON. ANTHONY W. FROHLICH, JUDGE, BOONE CIRCUIT COURT AND BERLING DEVELOPMENT ENTERPRISES/BERLING CONSTRUCTION COMPANY, , ET AL.
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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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 : NOVEMBER 1, 2007
NOT TO BE PUBLISHED
RAYMOND SCHLAGEL AND
KORLISS SCHLAGEL
V
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
CASE NUMBER 2005-CA-002561
BOONE CIRCUIT COURT NO . 90-CI-000425
HON . ANTHONY W. FROHLICH, JUDGE,
BOONE CIRCUIT COURT, AND
BERLING DEVELOPMENT ENTERPRISES/
BERLING CONSTRUCTION COMPANY,
REAL PARTY IN INTEREST, ET AL
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This is a matter of right appeal from an original action in the Court of Appeals. In
that action, the Appellants, Raymond and Korliss Schlagel (hereinafter, "the Schlagels")
sought relief from an order of the Boone Circuit Court denying their motion to compel
the Boone Circuit Clerk to produce a copy of a supersedeas bond allegedly filed in a
prior matter. The Court of Appeals denied the Schlagels' petition for a writ of
mandamus. Upon review, we affirm the decision of the Court of Appeals.
In May of 1990, the Schlagels filed suit against the real party in interest herein,
Berling Development Enterprises (formerly Berling Construction Company and
hereinafter, "Berling") . The suit alleged, inter alia, breach of warranty,
misrepresentation, and violations of the Kentucky Consumer Protection Act arising out
of Berling's construction of a private residence for the Schlagels . Following a jury trial,
the Schlagels were awarded both compensatory and punitive damages for a total final
judgment of $1,140,000 .' The Court of Appeals affirmed the judgment in an
unpublished opinion .
According to the Schlagels, Berling posted a supersedeas bond to cover the
judgment during the pendency of the direct appeal to the Court of Appeals. Since the
conclusion of the appeal of the original action, the Schlagels claim that they have
sought unsuccessfully to obtain a copy of the supersedeas bond and a certified copy of
the case history. While they did receive a certified letter from the Boone Circuit Court
Clerk's office purporting to contain a certified copy of the case history, the Schlagels
claim that such letter contained neither a certified copy of the case history nor a copy of
the bond .
Thereafter, the Schlagels moved the Boone Circuit Court to compel production of
the supersedeas bond . In an order entered June 1, 2005, the Appellee herein, Judge
Anthony W. Frohlich, found that Berling had never posted a supersedeas bond. In the
order, Judge Frohlich noted that an order of non-wage garnishment and a writ of
execution were obtained by the Schlagels against Berling in an attempt to collect on the
judgment while Berling appealed the original judgment. Judge Frohlich correctly
explained that the Schlagels were permitted to "engage in these efforts because
[Berling] did not supersede the judgment by posting a bond ."
The judgment of the Boone Circuit Court was dated August 9, 1996 .
2 See Berling Construction Company v. Schlaget , 1996-CA-003222-MR . Berling later
sued its attorney in that litigation, James Woltermann, for legal malpractice . In a series of partial
summary judgments, all claims were resolved in favor of Woltermann . The Court of Appeals
later affirmed that judgment in an unpublished opinion. See Berling Development Enterprises,,
Inc. v. Woltermann, 2004 WL 1175749.
As further evidence that a supersedeas bond was not posted, Judge Frohlich
referred to a pleading filed by the Schlagels in the Boone Circuit Court in April of 1997,
a year after the original judgment. In that pleading, counsel for the Schlagels asserted
that "[Berling] has never put up a supersedeas bond in this action and it is the
[Schlagels] intention to begin levying and foreclosing on the property of Berling
Construction's successor company ." By subsequent order dated June 6, 1997, the
Boone Circuit Court allowed such execution by stating that "execution may now issue
forthwith against Berling Development Enterprises, Inc."
Though finding no evidence of a bond, Judge Frohlich, out of an abundance of
caution, sua s onte ordered a hearing on this issue . Berling's counsel, Stephen
Wolnitzek, appeared and acknowledged in open court that his client had never posted a
supersedeas bond .
Finally, Judge Frohlich noted that "the Court has examined the Court files and
Court Calendar and finds no evidence that [Berling] ever filed a supersedeas bond. In
fact, the [Schlagels] efforts throughout this case in using the processes of this Court to
obtain payment of their Judgment indicate that [their] collection efforts were not ever
superseded." Accordingly, having found no evidence of a bond, the Schlagels' motion
to compel the Boone Circuit Court to produce such bond was denied.
Thereafter, the Schlagels petitioned the Court of Appeals for a writ of mandamus
directing Judge Frohlich to provide them with a copy of the supersedeas bond and the
case history. In that petition, the Schlagels asserted that the bond is known to exist, but
that it has been withheld from them. Furthermore, they argue that, by denying them a
certified copy of the case history, they are being deprived of the record they need for
their appeal .
The petition was denied . Explaining that a writ of mandamus is an appropriate
remedy only when a trial court is refusing or neglecting to carry out its duties, the Court
of Appeals determined that Judge Frohlich had fully adjudicated the matter by his June
1, 2005 order. Furthermore, the Court of Appeals noted that the Schlagels presented
no additional evidence that would demonstrate that Judge Frohlich's findings or order
was in error.
The Schlagels appealed the denial of the writ to this Court . Upon review, we
agree with the Court of Appeals that a writ of mandamus is not warranted in this
instance .
A writ is an extraordinary remedy that is granted conservatively, and only in
exceptional cases. See Haight v. Williamson , 833 S .W.2d 821, 823 (Ky. 1992).
Accordingly, it is granted for only two reasons : (1) where the lower court is acting
beyond its jurisdiction ; and (2) where 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 or irreparable injury will result if the petition is
not granted . Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005). The
requirements that no adequate remedy exists by appeal and that irreparable injury will
result are absolute prerequisites to the issuance of a writ . Bender v. Eaton, 343 S .W.2d
799, 801 (Ky. 1961). On appeal, the basic standard of review is for an abuse of
discretion, though questions of law are reviewed de novo . Newell, 158 S .W.3d at 754.
Here, the Schlagels have failed to demonstrate that the lower court has acted
beyond its jurisdiction . Furthermore, Judge Frohlich's June 1, 2005 order is a final and
appealable order . Furthermore, the Schlagels have failed to demonstrate that no
adequate remedy exists by direct appeal of that order . Accordingly, the requirements of
the extraordinary remedy of a writ of mandamus have not been met in this case .
For the foregoing reasons, the decision of the Court of Appeals denying the
petition for a writ of mandamus is hereby affirmed .
All concur except Schroder, J ., not sitting .
APPELLANTS :
Raymond Schlagel
64 W. Cobblestone Ct.
Florence, KY 41042
Korliss Schlagel
64 W. Cobblestone Ct.
Florence, KY 41042
COUNSEL FOR APPELLEES :
Stuart W. Cobb
Assistant Attorney General
Civil & Environmental Law Division
Office of the Attorney General
P. O. Box 2000
Frankfort, KY 40602-2000
Hon . Anthony W. Frohlich
Boone County Justice Center
6025 Rogers Lane
Suite 444
Burlington, KY 41005
Joseph F. Bamberger
1598 Shady Cove
Florence, KY 41042
COUNSEL FOR REAL PARTY IN INTEREST,
BERLING DEVELOPMENT ENTERPRISES :
Stephen D . Wolnitzek
Matthew Beatty Demarcus
WOLNITZEK & ROWEKAMP, PSC
502 Greenup Street
P. O. Box 352
Covington, KY 41012-0352
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