JOE JAMES; JUDY JAMES, HIS WIFE; CHUCK HADLEY; GWEN HADLEY, HIS WIFE; WAYNE STEGER; SABRINE STEGER, HIS WIFE V. WILLIAM L. SHADOAN, SPECIAL JUDGE, McCRACKEN CIRCUIT COURT AND MARK D. PIERCE, GUARDIAN AD LITEM FOR MICHAEL CARNEAL
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RENDERED: OCTOBER 252001
TO BE PUBLISHED
JOE JAMES; JUDY JAMES, HIS WIFE;
CHUCK HADLEY; GWEN HADLEY,
HIS WIFE; WAYNE STEGER; SABRINE
STEGER, HIS WIFE
V.
APPELLANTS
APPEAL FROM COURT OF APPEALS
2000-CA-2881-OA
MCCRACKEN CIRCUIT COURT NO. 98-Cl-1154
WILLIAM L. SHADOAN, SPECIAL JUDGE,
MCCRACKEN CIRCUIT COURT
APPELLEE
AND
MARK D. PIERCE, GUARDIAN AD LITEM
FOR MICHAEL CARNEAL
REAL PARTY IN INTEREST
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
Appellants appeal from an order of the Court of Appeals denying their petition for
a writ of prohibition. Appellants seek to prohibit the McCracken Circuit Court from
enforcing its order allowing Mark Pierce a fee for his service as guardian ad litem for
Michael Carneal. We conclude that Appellants have an adequate remedy by appeal.
Therefore, we affirm.
On December 1, 1997, Michael Carneal shot and killed three girls at a Paducah,
Kentucky high school. He was fourteen years old at the time. Appellants -- the parents
of the slain girls -- filed a civil action against Carneal and others in the McCracken
Circuit Court. As required by applicable statutes and civil rules, the trial judge
appointed a guardian ad litem (Pierce) for Carneal.
Except for Carneal, all defendants in the suit were eventually dismissed. The
trial court entered a Forty-two Million Dollar judgment against Carneal on August 4,
2000. Twelve days later, on August 16, 2000, Pierce filed a motion for allowance of a
guardian ad litem fee. On September 5, 2000, the trial court entered an order granting
Pierce a fee of over Twenty-eight Thousand Dollars. On December 8, 2000, the trial
court issued an order requiring Appellants to show cause why they should not be held
in contempt and punished for failing to pay the guardian ad litem fee to Pierce as
previously ordered. Appellants then filed a petition in the Court of Appeals to prohibit
the trial court from enforcing its show cause order. The Court of Appeals denied the
petition and this appeal followed as a matter of right.
A writ of prohibition is an extraordinary remedy and should only be granted in
exceptional circumstances. Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (1961). As a
general rule, in order to be entitled to such relief a petitioner must show that he or she
has no adequate remedy by appeal or otherwise, and either: (1) the court below is
acting without or beyond its jurisdiction; or (2) he or she will suffer great and irreparable
injury if the court below is acting in error and relief is not granted. See id. at 800-01;
Kentucky Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 251 (2001).
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ADEQUATE REMEDY BY APPEAL
The trial court did not hold a hearing on the issue of Pierce’s guardian ad litem
fee. Rather, it simply entered an order granting the fee. Appellants allege that this was
in error. They claim that failure to hold a hearing denied them the opportunity to
challenge the reasonableness of the fee. Further, they argue that this summary
procedure denied them the opportunity to build a sufficient record from which to appeal.
Thus, Appellants argue that they do not have an adequate remedy by appeal because
the failure to hold a hearing denied them the ability to present an appellate court with a
complete record from which it could fairly and accurately review the trial courts ruling.
But this argument incorrectly presupposes that Appellants do not have the right to
allege on appeal that the trial court erred by failing to hold a hearing on the question of
Pierce’s fee for his services rendered as Carneal’s guardian ad litem.
An appeal can be taken from the award of a guardian ad litem fee in order to
review the amount and reasonableness of the fee. See. e.g., Black v. Wiedman, Ky.,
254 S.W.2d 344 (1952); Goldfuss v. Goldfuss, Ky. App., 609 S.W.2d 696 (1980).
While these cases were appealed by the guardian ad litem who challenged the amount
of the fee, an appeal also can be brought by the underlying plaintiff against whom a
guardian ad litem fee was assessed as a court cost. See Delehantv v. Kahn, Ky., 446
S.W.2d 553 (1969). We see no reason why Appellants’ allegation of error -- that the
trial court erred by not holding a hearing on the calculation and assessment of a
guardian ad litem fee’ -- cannot be raised on direct appeal. Nor do we see any reason
‘This appears to be an issue of first impression, though there is authority
indicating that such a hearing is required if reauested bv the underlvina plaintiff aaainst
whom the fee is assessed. See Lacev’s Ex’x v. Lacey, 170 Ky. 625, 186 S.W. 501, 502
(1916); Pope v. Lyttle, 157 Ky. 659, 163 S.W. 1121, 1122 (1914).
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why an appellate court could not fashion an adequate remedy, m, a remand for a
hearing, if it concludes that the trial court erred in not conducting a hearing. Therefore,
we hold that Appellants have an adequate remedy on appeal.
As Appellants fail to show that they do not have an adequate remedy by appeal,
we need not reach the merits of Appellants’ assignment of error. Nor do we need
consider Appellants’ arguments that the trial court was acting outside its jurisdiction and
its alleged erroneous action will cause them irreparable harm if relief is not granted.
SANCTIONS
Finally, we address Pierce’s motion for a reasonable fee and CR 11 sanctions.
Apparently, Pierce’s motion for a reasonable fee is based on his service as guardian ad
litem. But Pierce’s participation in this case is solely to protect his own rights and
interests, and not Carneal’s. Further, a motion for a guardian ad litem fee “must be
made by the court wherein he was appointed.” Lacey’s Ex’x v. Lacey, 170 Ky. 625, 186
S.W. 501, 502 (1916), quoting Staaaenbora v. Bailey, 118 Ky. 304, 80 S.W. 1109
(1904). Thus, we deny Pierce’s motion for a fee. Next, Pierce asks us to consider
imposing CR 11 sanctions. We have considered the request and conclude that
sanctions are not appropriate in this case.
For the reasons set forth above, we affirm the Court of Appeals and deny
Pierce’s motions for fees and CR 11 sanctions.
All concur.
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COUNSEL FOR APPELLANTS:
Mike Breen
Kerry Sigler Morgan
Mike Breen, P.S.C.
1700 Destiny Lane
Bowling Green, KY 42104
COUNSEL FOR APPELLEE:
William L. Shadoan
Judge, Ballard Circuit Court
Courthouse
Wickliffe, KY 42087
COUNSEL FOR REAL PARTY IN INTEREST
Mark D. Pierce
535 Broadway
P. 0. Box 472
Paduca h, KY 42002-0472
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