LEWIS LP GAS, INC ; AILEEN B . LEWIS ; AND JAMES RANDOLPH LEWIS V. DEBRA H . LAMBERT, SPECIAL JUDGE FOR THE FAMILY COURT OF THE 27 th JUDICIAL CIRCUIT AND JANIE GREER LEWIS
Annotate this Case
Download PDF
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
Courf of
2002-SC-0582-MR
LEWIS LP GAS, INC;
AILEEN B . LEWIS; AND
JAMES RANDOLPH LEWIS
APPELLANTS
APPEAL FROM COURT OF APPEALS
2002-CA-0787-OA
LAUREL CIRCUIT COURT NO. 2001-CI-0783
V.
DEBRA H. LAMBERT, SPECIAL
JUDGE FOR THE FAMILY COURT OF
THE 27th JUDICIAL CIRCUIT
APPELLEE
AND
JANIE GREER LEWIS
REAL PARTY IN INTEREST
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING AND REMANDING
I. INTRODUCTION
In a dissolution proceeding between Janie Greer Lewis ("Janie Lewis") and
James Randolph Lewis ("Randy Lewis"), the trial court entered an order restraining
Lewis LP Gas, Inc. ("Lewis LP Gas") from selling its primary asset, an interest in
Ferrellgas LP ("Ferrellgas"). Lewis LP Gas is a family corporation in which Randy Lewis
is the majority stockholder and Aileen B . Lewis ("Aileen Lewis"), Randy Lewis's mother,
is the minority stockholder . Neither Lewis LP Gas nor Aileen Lewis is a party to the
dissolution action .' Seeking relief from the trial court's order, Appellants filed a petition
for a writ of prohibition from the Court of Appeals . After being denied relief by the Court
of Appeals, Appellants appealed to this Court as a matter-of-right .2 After a review of
the record, we conclude : (1) that Appellants have standing to seek a writ of prohibition
against the trial court, and (2) that Appellants have demonstrated their entitlement to a
writ of prohibition against the trial court because it was acting without jurisdiction in
restraining Lewis LP Gas, and it has no adequate remedy by appeal . Accordingly, we
reverse the Court of Appeals's order and remand this case for entry of an order
granting the writ sought.
II. BACKGROUND
The underlying case in the present appeal is a dissolution action filed in Laurel
Circuit Court between Janie Lewis and Randy Lewis . Randy Lewis is president of
Lewis LP Gas, a family corporation formerly engaged in the sale of bottled propane
gas . Together, Randy Lewis and Aileen Lewis, his mother, are the sole shareholders of
Lewis LP Gas (holding, respectfully, 85.88% and 14.12% of the shares) . In October
1997, Lewis LP Gas sold its assets to Ferrellgas in exchange for a limited partnership
interest in that company. This transaction resulted in the shares of Ferrellgas becoming
the primary asset of Lewis LP Gas.
' In a dissolution proceeding, the trial court may join additional persons as
parties. KRS 403 .150(6) ("The court may join additional parties proper for the exercise
of its authority to implement this chapter ."). See also CR 19.01 .
2 KY. CONST. § 110(2)(a) ; CR 76.36(7)(a).
On September 10, 2001, the trial court entered a Status Quo Orde3 in the
dissolution action . The order required the court's permission before the parties could
alienate their property . The order provides in pertinent part:
[T]he Court orders that except as may be necessary to pay
reasonable living expenses, neither party shall sell,
encumber, gift, bequeath, or in any manner transfer, convey,
or dissipate any property, cash, stocks or other assets
currently in their possession or control to another person,
company, legal entity or family member without first
obtaining an order from this court giving them permission to
do so or filing with the court an agreed order signed by both
parties or their attorneys .
Janie Lewis subsequently moved the trial court to hold Randy Lewis in contempt
for violating the status quo order by attempting to sell some of Lewis LP Gas's shares of
Ferrellgas, and she asked the trial court to order that neither Lewis LP Gas nor Randy
Lewis individually be permitted to transfer stock pursuant to the terms of the previously
entered order. Randy Lewis responded by arguing that the status quo order did not
apply to the stock shares in question because they were his non-marital property .
After a March 1, 2002 hearing on the issue, the trial court entered an order
restraining the sale of Lewis LP Gas' shares of Ferrellgas :
It is ordered, as to the Motion for a Restraining Order
against Respondent, James Randolph Lewis, that he is
restrained from conducting any further stock sales in the
matter and any involvement in a sale of the shares of stock
in Ferrellgas owned by Lewis LP Gas, Inc., and that he is not
to sell or convert the Ferreilgas stock in any way or
3 Apparently, the trial court routinely enters this order sua sponte in every
dissolution action . We assume that the order is entered under KRS 403 .160(3) ("As
part of a motion for temporary maintenance or support or by independent motion
accompanied by affidavit, either party may request the court to issue a temporary
injunction or restraining order pursuant to the Rules of Civil Procedure.") . We would
caution the trial court against issuing this order sua sponte, and we would further note
that any such order must fully comply with the Kentucky Rules of Procedure concerning
the issuance of a restraining order or temporary injunction . See infra Part III .
Appellants, however, do not object to the status quo order since it does not, in their
opinion, restrain Lewis LP Gas .
encumber them in any way without obtaining permission of
the Court.
Appellants' request for an injunction bond was denied by the trial court.
Because the trial court's order restricts Lewis LP Gas's ability to manage its
business, Appellants sought a writ in the Court of Appeals to prohibit the trial court from
enforcing its order against Lewis LP Gas . After the Court of Appeals denied them the
relief sought, Appellants appealed to this Court .
III. ANALYSIS
A. STANDING
Before addressing the merits of Appellants' arguments regarding the writ,
however, we must first resolve whether Appellants have standing to seek such relief. In
Courier-Journal v. McDonald,5 this Court's predecessor stated :
The relief sought is that the order in the wrongful-death
suit be vacated, as void . The petitioners herein were not
parties to that suit, so they could not have moved directly in
the circuit court to have the order vacated . Since they could
not have had the order vacated by proceeding directly in the
circuit court, obviously they have no standing to ask this
court to direct that the order be vacated . The general rule is
stated to be that mandamus will not lie to courts or judges at
the instance of strangers to the proceedings . 55 C .J .S.
Mandamus, § 49, p. 84. 6
The McDonald Court relied upon the general rule as then stated in Corpus Juris
Secundum that the writ of mandamus remedy is unavailable to "strangers to the
proceedings ." Lewis LP Gas and Aileen Lewis can hardly be characterized as
"strangers" to these proceedings, however, because the trial court's order directly and
4 The trial court interprets this order as not only restraining Randy Lewis but
Lewis LP Gas as well . Additionally, Randy Lewis does not have any independent
ownership interest in Ferrellgas .
5 Ky ., 524 S .W .2d 633 (1974) (overruled on other grounds by Courier-Journal
and Louisville Times Co . v. Peers, Ky., 747 S .W .2d 125,130 (Ky. 1988) .
6 Id . at 635 (citations at end of first sentence omitted) .
substantially affects them by involving Lewis LP Gas. Additionally, the current version
of Corpus Juris Secundum now incorporates at Mandamus § 42 the principle of law that
"[o]rdinarily any person having an interest in the subject matter of the petition is entitled
to institute mandamus proceedings . ,7 And, the commentary to § 42 explains :
A petitioner for mandamus relief must have standing just
as any other litigant must, and must meet statutory standing
requirements . Ordinarily any person having an interest in
the subject matter of the petition is entitled to institute
mandamus proceedings, but an officious intermeddler may
not seek mandamus in a matter with which he is not
concerned .'
While neither Lewis LP Gas nor Aileen Lewis is an actual party to the underlying
dissolution action, they are clearly not "officious intermeddler[s] ." The subject matter of
the trial court's order sub judice is the shares of Ferrellgas owned by Lewis LP Gas.
Thus, Lewis LP Gas has a legitimate interest in the subject matter of these
proceedings . Aileen Lewis has an interest in seeing that her investment as a
shareholder of Lewis LP Gas is protected . Appellants argue forcefully that the trial
court's order has shackled the corporation's ability to engage in prudent business
decisions concerning the sale of its principal asset. Moreover, we observe that the
failure to recognize Lewis LP Gas's standing to pursue such relief may also implicate
rights of due process that uphold the premise that "a person should not be bound by an
injunction decree unless she has had her day in court."9 Accordingly, we find that Lewis
LP Gas and Aileen Lewis have standing to seek a writ of prohibition against the trial
court .
55 C .J .S . Mandamus, § 42, p. 63.
8 Id . (footnotes omitted) .
9 Richard A. Bales & Ryan A. Allison, Enioining Nonparties , 26 AM. J . TRIAL
ADVOC. 79, 80 (2002) ("On the one hand is the principle, rooted in due process, that a
person should not be bound by an injunction decree unless she has had her day in
court ." (footnote omitted)).
B . WANT OF JURISDICTION AND INADEQUATE REMEDY BY APPEAL
Due to the extraordinary nature of its relief - interlocutory intervention by an
appellate court,' ° the writ of prohibition remedy is reserved for exceptional
circumstances" and therefore should be granted only upon a showing that "(1) the
lower court is proceeding or is about to proceed outside its jurisdiction and there is no
adequate remedy by appeal, or (2) the lower court is about to act incorrectly, although
within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and
great injustice and irreparable injury would result . ,12
Appellants argue that a writ of prohibition is appropriate in this case under the
first criterion because (1) the trial court acted outside its jurisdiction by restraining a
non-party, Lewis LP Gas, from engaging in normal business decisions with regard to
the purchase and sale of its assets, and (2) the corporation has no adequate remedy by
appeal . Appellants also stress that irreparable injury may occur if it is prohibited from
selling its Ferrellgas shares, which are volatile in value.
Appellee responds that the trial court has jurisdiction over Lewis LP Gas
because the corporation is Randy's "alter ego ." 13 Thus, Appellee asserts that the trial
'° Southeastern United Medigroup, Inc. v. Hughes, Ky., 952 S.W .2d 195, 199
(1997); CR 76.36 .
' James v. Shadoan, Ky., 58 S .W .3d 884, (2001) (holding that a writ of
prohibition should only be granted in exceptional circumstances) ; Walmart Stores v.
Dickinson ,Ky., 29 S .W .3d 796,800 (2000) (explaining that a writ of prohibition is an
extraordinary remedy) (citing Bender v. Eaton , Ky., 343 S.W.2d 799, 800 (1961)) .
12
Southeastern United Medigroup, Inc. v. Hughes, Ky., 952 S .W .2d 195, 199
(1997) quoted with approval Tipton v. Com . , Ky.App ., 770 S .W .2d 239, 241 (1989);
Kentucky Labor Cabinet v. Graham, Ky., 43 S .W .3d 247 (2001).
'3
"[A]Iter ego" means "[a] corporation used by an individual in conducting
personal business, the result being that a court may impose liability on the individual by
piercing the corporate veil when fraud has been perpetrated on someone dealing with
the corporation . BLACK's LAw DICTIONARY 78 (7th ed . 1999) .
court could pierce the corporate veil to obtain jurisdiction over Lewis LP Gas. 14
Although we agree that the alter-ego rule may confer jurisdiction over a corporation
under certain circumstances, we disagree that it is applicable here . The alter-ego
doctrine is reserved for situations in which incorporation is accomplished to invoke
fraudulent protection against personal liability . 15 "[T]he elements thereof have been
defined as follows: (1) that the corporation is not only influenced by the owners, but also
that there is such unity of ownership and interest that their separateness has ceased;
and (2) that the facts are such that an adherence to the normal attributes, viz[.],
treatment as a separate entity, of separate corporate existence would sanction a fraud
or promote injustice . "16 In sum, under the alter-ego theory, assets "owned" by the
corporation are inseparable from those controlled by its owner. 17 That is not the case
here . Lewis LP Gas was incorporated as a family business and continues as such .
Although the nature of its business has changed, with Randy Lewis and his mother at
the helm, it continues as a separate business from its owners . Its major holding,
Ferrellgas stock, is an independent asset of the corporation . Although Randy Lewis
14
Dare To Be Great, Inc . v. Com . ex rel . Hancock , Ky., 511 S .W .2d 224, 227
(1974) ("Generally a corporation will be looked upon as a separate legal entity but when
the idea of separate legal entity is used to justify wrong, protect fraud or defend crime
the law will regard the corporation as an association of persons."); see also White v.
Winchester Land Development Corp. , Ky. App ., 584 S .W .2d 56, 61 (1979).
15
Southeastern Greyhound Lines v. Harden's Adm'x, Ky., 136 S.W .2d 42, 44,
281 Ky. 345 (1940) ("We have often held that where one corporation was but the alter
ego of another, or but a conduit through which one operated as by way of pretense or
deceit, or in the perpetration of a fraud, the courts will look through the fiction and place
responsibility where it belongs ."); Com . Natural Res. & Envrion . Prot. v. Neace, Ky., 14
S .W. 3d 15 (2000); Black's Law Dictionary 78 (7 ed . 1999) ("alter-ego rule" is "[t]he
doctrine that shareholders will be treated as the owners of a corporation's property, or
as the parties in interest, whenever it is necessary to do so to prevent fraud or to do
justice .").
W hite v. Winchester Land Development Corp. , Ky.App ., 584 S.W .2d 56, 61-62
(1979) (citations omitted) .
16
17 American Collector's Exchange, Inc . v. Kentucky State Dem . Central Exec.
Committee , Ky.App ., 566 S.W .2d 759, 761 (1978) .
owns the majority of the Lewis LP Gas's stock, he does not own all of its stock and the
corporation's separateness still exists. Thus, the alter-ego doctrine is inapplicable in the
present case and may not be used as a jurisdictional hook for the trial court to exert
control over Lewis LP Gas.
Because Lewis LP Gas and Aileen Lewis are not parties to the underlying
dissolution action, they cannot appeal the trial court's order restraining the sale by
Lewis LP Gas of its Ferreligas' shares . 18 Consequently, Lewis LP Gas and Aileen
Lewis do not have an adequate remedy by appeal.
C. THE BOND REQUIREMENT
In the March 15, 2002 order enjoining the sale of Ferreligas stock, the trial court
concluded that a bond was not required to provide for its enforcement.'9 We disagree .
CR 65.05(1) provides :
No restraining order or temporary injunction shall be
granted except upon the giving of a bond by the applicant,
with surety, in such sum as the court or the officer to whom
application is made deems proper, for the payment of such
costs and damages as may be incurred or suffered by any
person who is found to have been wrongfully restrained or
enjoined . The address of the surety shall be shown on the
bond.
8
" CR 65 .07(1) ("When a circuit court by interlocutory order has granted, denied,
modified, or dissolved a temporary injunction, a party adversely affected may within 20
days after the entry thereof move the Court of Appeals for relief from such order."
(emphasis added)) ; CR 65 .08 ("(1) After an appeal is taken from a final judgment
granting or denying an injunction any party may move the circuit court to grant, suspend
or modify injunctive relief during the pendency of the appeal . (2) A party adversely
affected by a ruling by the circuit court under paragraph (1) of this rule, may move the
Court of Appeals for relief." (emphasis added)); see generally CR 73, 74, 75 and 76.
19
Specifically, the order states: "As to the matter of a bond, the court does not
require a specific bond of Ms. Lewis in this matter but the court will enforce the Status
Quo Order entered previously."
The rule unquestionably requires that a bond accompany an order granting temporary
injunction relief,2° and the trial court erred when it enjoined the stock sales without
requiring Janie Lewis to post a bond sufficient in amount to protect Appellants .
D. MOOTNESS
During these proceedings, the trial court entered an order allowing Randy
Lewis to sell Ferrellgas stock:
The court having considered Respondent's motion to
permit the sale of certain assets, and the Court having read
extensive testimony taken in this case, SUSTAINS the
motion in part. The Respondent is authorized to sell any or
all of the Ferrell Gas stock, provided that all the proceeds
derived from the sale be deposited with the Laurel Circuit
Court Clerk for disbursement pursuant to subsequent orders
of this Court. The Respondent shall furnish to the Court a
detailed statement of the entire stock transferred, including
number of shares sold and amount received .
Janie Lewis contends that since this order permits stock sales, the controversy
presented for our decision no longer exists . We disagree . The mootness doctrine
operates to vitiate a case or controversy, and thus render court opinions advisory, when
the issue at hand ceases to exist prior to judicial resolution .21 It is a well-settled
principle that judicial intervention is viable only in circumstances setting forth an
ongoing disagreement .22 While the plain language of the order grants Lewis LP Gas
permission to sell Ferrellgas stock, it also requires that the proceeds of any stock sale
be deposited with the court for later distribution as directed by the trial court. As a
result, the order continues to restrain Lewis LP Gas's ability to make legitimate
2°
National Collegiate Athletic Ass'n v. Lasege, Ky., 53 S .W .3d 77, 88 (2001).
21
BLACK'S LAW DICTIONARY (6 th
22
Ed . 1998) .
Associated Industries of Kentucky v. Com, Ky., 912 S.W .2d 947, 951 (1995)
(noting that Article III of the Federal Constitution requires that a prerequisite to
adjudication is an actual case or controversy) ; Philpot v . Patton , Ky., 837 S .W .2d 491,
493 (1992) (explaining that the mootness doctrine operates to prevent courts from
giving advisory opinions) .
business decisions with regard to its assets. Instead of a prior restraint on stock sales,
the trial court's order now requires Lewis LP Gas to deposit with the trial court any
proceeds from a sale of its Ferrellgas stock. And thus, Appellants argue that the trial
court's previous order still operates to Lewis LP Gas's detriment as it prevents the
corporation from seeking to maximize the interests of its stockholders through additional
purchases and sales of stock or other business ventures . Accordingly, we hold that this
matter was not mooted by the trial court's subsequent order.
IV. CONCLUSION
We conclude that the trial court was without jurisdiction to enjoin Lewis LP Gas
and that it has no adequate remedy by appeal . Accordingly, we hold that the Court of
Appeals abused its discretion when it denied Appellant's petition for a writ of prohibition .
We remand to the Court of Appeals for the entry of a writ of prohibition against the trial
court .
All concur. Lambert, C .J ., not sitting.
COUNSEL FOR APPELLANTS, LEWIS LP GAS, INC. AND AILEEN B. LEWIS :
James T. Gilbert
Coy, Gilbert & Gilbert
212 North Second Street
Richmond, Kentucky 40475
COUNSEL FOR APPELLANT, JAMES RANDOLPH LEWIS :
Franklin Stivers
PO Box 326
London, Kentucky 40743-0326
APPELLEE :
Debra H. Lambert
Special Judge for the Family Court of the 27th Judicial Circuit
PO Box 1094
Mt. Vernon, Kentucky 40456
COUNSEL FOR REAL PART IN INTEREST, JANIE GREER LEWIS:
David F. Broderick
Broderick & Thornton
921 College Street - Phoenix Place
PO Box 3100
Bowling Green, Kentucky 42102-3100
Steven O. Thornton
Broderick & Thornton
921 College Street - Phoenix Place
PO Box 3100
Bowling Green, Kentucky 42102-3100
Paul Kevin Hackworth
Broderick & Thornton
921 College Street - Phoenix Place
PO Box 3100
Bowling Green, Kentucky 42102-3100
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.