             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        NOT TO BE PUBLISHED OPINION          :




THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: DECEMBER 18, 2014
                                                    NOT TO BE PUBLISHED

                                 (Courf of eT rufurkv
                              2014-SC-000012-MR

CONSOL ENERGY, INC.                                                   APPELLANT


                    ON APPEAL FROM COURT OF APPEALS
V                        NO. 2013-CA-001236 -MR
                   KNOTT CIRCUIT COURT NO. 11-CI-00321


HON. KIMBERLEY C. CHILDERS, JUDGE,                                     APPELLEE
KNOTT CIRCUIT COURT

ANCEL SMITH, SIDNEY WATTS, BETTY                    REAL PARTIES IN INTEREST
WATTS, DANNY HALL, BONNIE HALL,
BOBBY R. SMITH, GERALDINE SMITH,
ESTATE OF AMOS SMITH AND ESTATE
OF ROXIE SMITH


                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Consol Energy, Inc., filed in the Court of Appeals a petition for

a writ of prohibition to prevent Knott Circuit Court from compelling a non-

resident to appear in Kentucky for a discovery deposition. The Court of

Appeals issued an order denying the petition and we now affirm the decision of

the Court of Appeals.


                                 I. BACKGROUND

      The controversy underlying this action originates from a mineral trespass

claim against Consol Energy, Inc. (Consol) by the Real Parties in Interest, Ancel

Smith, Sidney Watts, Betty Watts, Danny Hall, Bonnie Hall, Bobby R. Smith,

Geraldine Smith, Estate of Amos Smith, and Estate of Roxie Smith (collectively
referred to as "Plaintiffs"). Consol conducts mining operations in Knott County,

Kentucky, although its main offices are located in Pennsylvania.

      In 2011, Plaintiffs brought suit against Consol in the Knott Circuit Court

alleging trespass upon their lands by Consol's coal mining operations. During

the course of discovery, Plaintiffs noticed the deposition of Consol's Chief

Financial Officer (CFO) to be held in Knott County, Kentucky. The CFO

apparently resides in Pennsylvania and has very few connections with

Kentucky. Consol objected to the notice of deposition and asked the trial court

for a protective order based upon the fact that the proposed deponent lived and

worked in Pennsylvania, and that he had not been subpoenaed to appear for

the taking of the deposition.

      Knott Circuit Judge Kimberly Childers overruled Appellants' motion for a

protective order. In response, Consol Energy petitioned the Court of Appeals

for a writ of prohibition to prevent Judge Childers ordering the non-resident

witness to appear for a deposition in Kentucky. The Court of Appeals denied

Consol's writ petition, and this appeal followed. We now affirm the decision of

the Court of Appeals.


                                    II. ANALYSIS

      A writ may be granted upon a showing that: (1) "the lower court is

proceeding or is about to proceed outside of its jurisdiction and there is no

remedy through an application to an intermediate court," or (2) "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




                                         2
and irreparable injury will result if the petition is not granted."   Hoskins v.

Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

      Consol agrees that "oversee[ing] discovery issues" in a pending case is

within the subject matter jurisdiction of the trial court, so Consol is invoking

the second class of writs identified in Hoskins: the trial court is acting or is

about to act erroneously, and great injustice and irreparable injury will occur if

the writ is not issued.

      The fundamental problem with Consol's request for writ relief is that the

trial court has not ordered Consol, or its CFO, to do anything and there is no

indication in the record that the trial court is about to order Consol or the CFO

to do anything. The trial court is not "acting or [] about to act erroneously"

because the only ruling the trial court has made with respect to the noticed

deposition is to deny a protective order. The notice of deposition given by the

Plaintiffs in this case is not a court order, and since he was not subpoenaed,

the power of the court has not been invoked to compel his appearance.

      The trial court's denial of the protective order is not an order compelling

Consol to produce the CFO for a deposition in Kentucky. The trial court's

protective order does not compel or direct Consol to do anything; and the

pending notice of deposition, unaccompanied by the service of a subpoena,

cannot force the non-resident witness into Kentucky for a deposition. The

Knott Circuit Court has not commanded the proposed deponent to appear in

Kentucky for a deposition, and it is not about to impose sanctions upon him for

not appearing. Unless and until it does, it is not acting or about to act in a




                                           3
manner that exposes Consol or the witness to any harm at all, much less "great

injustice and irreparable harm."

      Consol Energy cites to Bender v. Eaton, 343 S.W.2d 799 (Ky. 1961), in

support of its argument that the writ of prohibition should be granted because

this is a "special case." Consol cites the following passage:

      Thus we find that in certain special cases this Court will entertain
      a petition for prohibition in the absence of a showing of specific
      great and irreparable injury to the petitioner, provided a
      substantial miscarriage of justice will result if the lower court is
      proceeding erroneously, and correction of the error is necessary and
      appropriate in the interest of orderly judicial administration. It may
      be observed that in such a situation the court is recognizing that if
      it fails to act the administration of justice generally will suffer the
      great and irreparable injury.

      Bender, 343 S.W.2d at 801. (emphasis added)

      No substantial miscarriage of justice will result from the trial court's

refusal to issue a protective order in this instance. If the witness declines to

appear for the proposed deposition, the burden then falls upon the Plaintiffs to

ask the trial court for whatever relief they deem appropriate. Depending upon

what the trial court then decides with respect to the Plaintiffs' request, it may

then be said that the trial court is "acting or about to act." Until then, any

request for writ relief is premature. We find no basis for the issuance of a writ

of prohibition based upon either class of writ found in Hoskins, and no basis

for the issuance of a "special case" writ as provided by Bender.


                                 III. CONCLUSION

      For the foregoing reasons, the opinion of the Court of Appeals denying

Consol Energy's petition for a writ of prohibition is affirmed.

      All sitting. All concur.

                                         4
COUNSEL FOR APPELLANT:

Billy Ray Shelton
Joseph Daniel Halbert
Jones, Walters, Turner & Shelton, PLLC


COUNSEL FOR REAL PARTIES IN INTEREST:

Adam Peter Collins
Collins & Collins, PSC




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