MICHAEL HADDIX AND RHONDA HADDIX v. CHRISTOPHER S. NORDLOH
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RENDERED: JUNE 27, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001210-MR
MICHAEL HADDIX AND
RHONDA HADDIX
APPELLANTS
APPEAL FROM GALLATIN CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, JUDGE
ACTION NO. 99-CI-00014
v.
CHRISTOPHER S. NORDLOH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER and KNOPF, JUDGES; and JOHN D. MILLER, Special
Judge.1
BAKER, JUDGE.
Michael and Rhonda Haddix (appellants) bring this
appeal from a May 2, 2002, order of the Gallatin Circuit Court.
We affirm.
1
Senior Status Judge John D. Miller sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Appellee is an attorney licensed to practice law in
the Commonwealth of Kentucky.
He shared office space with F.
Scott Cammack and Meredith Lawrence, also attorneys licensed to
practice law in this Commonwealth.
Lawrence and Cammack were
representing Michael Haddix in a personal injury action against
Kubota Tractor Corporation.
The action was filed in the Kenton
Circuit Court and was assigned to Special Judge Gregory
Bartlett.
Before trial, Cammack communicated to appellee that
he believed the action had been knowingly filed outside the one
year statute of limitations but that a false date of injury was
given to avoid dismissal.
Thereupon, appellee went to Judge
Bartlett’s chambers in Kenton County, Kentucky, and repeated to
Judge Bartlett what Cammack had told him concerning the alleged
false date of injury.
Judge Bartlett then temporarily stayed
the lawsuit pending investigation.
Appellants filed a complaint in the Gallatin Circuit
Court against appellee.
Therein, appellants sought to recover
damages under a theory of defamation for appellee’s statement to
Judge Bartlett:
6.
Upon information and belief, the
Defendant communicated to the
Judge a false and fabricated story
suggesting the Plaintiff’s [sic]
had participated in organizing,
perpetrating or otherwise filed or
caused to be filed a cause of
action(s) with a fictitious date
of injury(s).
2
. . .
9.
Plaintiff’s [sic] state the
Defendant has caused them to
suffer a defamation of character
by slandering their name in the
false and fabricated story
improperly communicated directly
to the Judge in their civil
action(s) about false or incorrect
dates.
Complaint at 2-3.
Appellee filed a motion for summary judgment claiming
entitlement to absolute immunity.
The circuit court ultimately
denied the motion for summary judgment.
Appellee subsequently pursued an appeal to the Court
of Appeals and filed a petition for a writ of “mandamus” seeking
to prohibit the judge from proceeding with the action.
The
Court of Appeals entered an order dismissing the appeal as
interlocutory (Appeal No. 1999-CA-001714-MR).2
The Court also
entered an order denying the writ (Appeal No. 1999-CA-001695MR).
An appeal as a matter of right was taken to the Supreme
Court of Kentucky from the order denying the writ, and appellee
sought discretionary review from the order dismissing the appeal
as interlocutory.
In Appeal No. 1999-SC-0832-MR, the Supreme
Court affirmed the Court of Appeals dismissal of the appeal as
interlocutory and the denial of the writ.
2
The Supreme Court
The Court of Appeals’ order addressed two appeals brought by appellee. In
1999-CA-001714-MR, appellants were appellees. The other appeal, 1999-CA001713-MR, is irrelevant to disposition of this appeal.
3
noted that the appeal was properly dismissed as interlocutory
and that the writ was properly denied because appellee had an
adequate remedy by appeal.
Appellee then moved the circuit court to dismiss the
action based upon improper venue.
On May 2, 2002, the circuit
court entered an order dismissing the action and finding that
proper venue “resides in Kenton County.”
This appeal follows.
Appellants initially contend that appellee is barred
from raising the issue of improper venue by the law of the case
doctrine.
Specifically, appellants argue:
This matter has been the subject of a
Motion for Summary Judgment. That Motion
was overruled. The Appellee had appealed
that decision. That appeal was decided by
the Court of Appeals [sic] and then
presented to the Supreme Court.
Additionally, Appellee filed a Petition
for Writ of Prohibition. They lost and
appealed to the Supreme Court. They lost
that appeal. The case was remanded for
trial, and set for trial. Discovery took
place, and on the eve of trial, Appellee
raised improper venue for the first time.
Appellee’s attempt to interject this defense
at this late date is barred by the “law of
the case doctrine.” (Citations omitted).
Appellants’ Brief at 2.
We reject appellants’ argument.
The direct appeal to our Court was dismissed as
interlocutory, and the petition for writ of mandamus was denied
as there was an adequate remedy by appeal.
Under the law of the
case doctrine, an actual decision of an issue by an appellate
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court may have a preclusive effect as to that issue in a later
proceeding.
Here, the only issue decided by the earlier appeal
was that the circuit court’s order denying summary judgment was
interlocutory, and the only issue decided from denial of the
writ was that appellee had an adequate remedy by appeal; thus,
we think the law of the case doctrine only would bar
relitigation of those issues.
Simply put, we do not believe
that the law of the case doctrine would bar the issue of whether
venue properly lies in the Gallatin Circuit Court.
As such, we
view this contention to be without merit.
Appellants next assert that the circuit court
committed error by concluding that proper venue lies in Kenton
County.
Relying upon Kentucky Revised Statute (KRS) 452.460,
appellants maintain that venue is proper in the county where
“the injury was done.”
Specifically, appellants argues:
Here the injury was done to a case
pending in Gallatin County and the claims of
Gallatin County residents and their
reputations. The injury was done when the
orders of the Special Judges were entered in
the Gallatin Circuit Clerk’s office,
delaying the trial, appointing and then
reappointing special judges, and the
consequences of these defamatory statements
eating away like a cancer at a case pending
in Gallatin County.
Appellants’ Brief at 3-4.
KRS 452.460(1) reads in pertinent part:
5
Every other action for an injury to the
person or property of the plaintiff, and
every action for an injury to the character
of the plaintiff, against a defendant
residing in this state, must be brought in
the county in which the defendant resides,
or in which the injury is done.
Under the above statute, an action for defamation may be brought
in the county in which the defendant resides or in which the
injury was done.
Appellants contend that the injury was done in
Gallatin County and, thus, venue is proper there.
reject this interpretation of the statute.
We, however,
We believe that the
injury was done for purposes of KRS 452.460 in the county in
which the utterances were made.
Caldwell v. Story, 107 Ky. 10,
52 S.W. 850 (1899).
In the case at hand, the facts are undisputed.
Appellee was a resident of Kenton County, Kentucky, and the
alleged defamatory statement took place in Judge Bartlett’s
office in Kenton County.
As such, we are of the opinion that
venue properly lies in Kenton County under KRS 452.460.
Appellants further argue that “a serious and genuine
issue of fact exists regarding the nature and extent of damage
caused to appellants, precluding summary judgment.”
We consider
this issue moot as the action was properly dismissed based upon
improper venue.
For the foregoing reasons, the order of the Gallatin
Circuit Court is affirmed.
6
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Marcus S. Carey
Marcus S. Carey & Associate
Erlanger, Kentucky
Raymond G. Smith
Boehl Stopher & Graves LLP
Louisville, KY
7
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