llv\PoRTANT NOTlcE
NoT To BE PuBLlsHED 0PlNloN

THls 0PlNloN ls DEslGNATED “NoT To BE PuBLlsHED."
PuRsuANT To ;rHE RuLEs oF clvlL PRochuRE
PRoMuLGATED BY THE suPREME couRT, cR 76. 28(4)(€),
THls 0PIN10N ls NoT To BE PuBLlsHED AND sHALL NoT BE
clTED 0R usED As BlNDlNG PREcEDENT IN ANY oTHER
cAsE lN ANv~couRT oF THls sTATE; HoWEvER,
uNPuBLlsHED KENTucKY APPELLATE DEclsloNs,~
RENDERED AFTER JANuARv 1, 2003, MAY BE clTED FoR
coNleERATloN Bv THE couRT lF THERE ls No Pu.BLlsHED
oPlNION THAT wouLD ADEQuATELY ADDREss THE lssuE _
BEFoRE THE couRT. 0PlNloNs clTED FoR coNleERATloN
BY THE couRT sHALL BE sET ouT As AN uNPuBLlsHED
DEclsloN lN THE FlLED DocuMENT AND A coPY oF THE
ENTIRE nEclsloN sHALL BE TENDERED ALoNG wlTH THE
DoculleNT To THE couRT AND ALL PARTlEs To THE
AchoN,

RENDERED: JUNE 15, 2017
_ NOT To BE PUBLISHED

" - S#Preme T_“‘¥‘~'* “f_ 'Y#;:'§P’NAL '

DAT E'?/dl?Pl-;,:L%JN»;@,DC

 

 

 

DAWN SPALDING-MCCAULEY

. oN APPEAL FROM COURT 0F APPEALS “
v. -- cASE No_. 2016-CA-_000421
TAYLOR cIRcUIT cOURT N0. 14-01-00047

HON. SAMUEL TODD~ SPALDING, JUDGE ' ' . AP?ELLEE
TAYLOR _cIRCUIT COURT - f `
AND _

BETTY DAMERoN, INDIVIDUALLY REAL PA-RTIES IN INTEREST

AND AS EXECUTRIX OF THE ES_TATE
OF PAUL DAMERON; MIK.E_ BREEN;
AND MIKE BREEN, ATTORNEY AT LAW, P.S.C.

AND ' , ` _2016-30-000463-MR

_BETTY DAME_RON,-`INDI_vIDUALLY_ , ` 1 APPELLANTS ,
AND AS ExEcUTRIx 0F THE_ ESTATE ‘ ' '

0F'P'AUL DAMERON; MIKE BREEN;

_ AND MIKE BREEN, ATTORNEY-AT LAW, P_.s.'c_

` ON APPEAL FROM coURT OF APPEALS
v. _ cA_SE NO. 2016-cA-000_308
' TAYLOR CIRCUIT coURT NO. 14-cI-00047

HON. SAMUEL TODD SPALDING, JUDGE ` APPELLEES
TAYLOR CIRCUIT COURT?

AND
DAWN SPALDING-MCCAULEY REAL PART\; IN INTEREST

MElVIORANDUM OPINION OF THE COURT
AFFIRMING

On July 24, 2013, Paul Allen Dameron died as a result of injuries he
sustained while driving his vehicle in 'Taylor County, Kentucky. The injuries 1
were caused by a rock that was propelled through Mr. Dameron’s windshield.
The rock was thrown from a Bush Hog mower operated by Terry Mattirigly.

Betty Dameron (“Dameron”) is Mr. Dameron’s surviving spouse and the
Executrix of his Estate. She entered into am'ittenagreement with attorney
Dawn Spalding-McClauley (“McCauley”) to represent her and the Estate. On
February 8, 20 14, McCauley filed a wrongful death suit on-behalf` of her clients
in Taylor Circuit Court. Dameron subsequently terminated McCauley`"s
representation and hired attorney Mike Breen (“Breen”) to handle the case
moving forward. Breen entered his appearance in the case and the court
issued an order permitting McCauley to withdraw as counsel of record.

During the summer of 2`014, Breen entered into a settlement agreement
with Mattingly’s insurance carrier for $1,000,000.00 and also entered into an
agreement with Paul Dameron’s insurance provider for $100,000.00. Breen
received $385,000.00 in attorney fees plus additional expenses

On September 3, 2014, Breen filed a motion to apportion the proceeds of
the wrongful death claim because Dameron and her step-daughter could not
agree on the appropriate dispensation of the proceeds McCauley, Dameron’s
first attorney, also filed a motion to intervene under the theory of dquantum

meruit and to attach the attorney fees paid to Breen. The trial court entered an

2

order allowing McC_auley to intervene. McCauley- also filed a notice.of an
attorney lien. The_ court ordered that the proceeds of the wrongful death action
and attorney fees be held by the court pending further orders.

Dameron subsequently fileda‘KBA complaint against McCauley.
Discovery revealed that Breen’s office assisted in the preparation of the KBA
complaint As a result, McCauley filed a motion to compel the production of all
written correspondence between Breen and Dameron regarding the alleged
breach of McCauley’s ethical duties.

The trial court granted the motion to compel and concluded that the
attorney~olient privilege was waived because Breen and Dameron had made the
communications,an issue 'by alleging that McCauley had been discharged for
cause as a defense to McCauley’s quantum meruit claim. See Baker v.
Shapero, 203 S.W.Sd 697 (Ky. 2006). Breen filed a motion to reconsider which
was denied by the trial court.

The parties filed cross petitions, each seeking a writ of prohibition. The
Court of Appeals denied the'writ requests and the parties appealed to this
Court. Case Nos. 2016-SC-000462-'MR and 2016-SC-000463-MR.- Having
reviewed the facts and the law, we affirm the Court of Appeals’ denial of the
petitions. ,

Procedural Issues

Dameron and Breen have filed motions for oral argument Having

considered the motions, the responses, and being otherwise sufficiently

advised, the parties’ motions for oral argument a_re hereby DENIED. On its -

own motion, the Court orders that Case Nos. 20-16-8€-000462-MR and 2016-
_SCjOOO463-MR are hereby CONSOLIDATED. ` _ _ »\

n Standard.of Review _

An appellate court has discretion to' grant la writ where a trial court is
proceeding within its jurisdiction upon a showing that the court 'i`s: 1) acting or
is about to act erroneously; 2) there exists no adequate»remedy by appeal or
otherwise, and 3) great injustice and irreparable injury will result if the petition
' is not granted. Hoskins v. Maricle: 150 S.W.Sd‘ l, iO (Ky. 2004). We review the n
Court of Appeals’ determination under an abuse of discretion standard.
sowders q.- Letais, 241 s.w.3d 3.19;l 322 (Ky. 2007). -

case ivo. 2016-sc-'463‘-MR

Breen and Dameron seek a writ “prohibiting the trial court from
enforcing any orders requiring Dameron or Breen to testify about or disclose '
the confidential com-munications, and prohibiting him from enforcing any
orders requiring Mr. Breen to withhold his fee.” They argue that the
compulsion of this information violates the attorney-client privilege. We have
previously held that “v_iolation of a privilege satisfies both the requirement of no
adequate remedy by =appeal, ‘because privileged information cannot be recalled
once it has 'been disclosed,’ and the substitute requirement in ‘special cases’
that the administration of justice would suffer.” Collins v.~Braden, 384 'S.W.3d
- 154, 1581(Ky. 2012j (citing St.-Luke Hospitals, Inc. v. Kopowslci, 160 S.W.3d
771, 775 (Ky. 2005]). Because the present case alleges a violation of the

attorney-client privilege, it is proper for writ review. ' '

Vlie begin by noting that the trial court specifically ordered the production
of “all written correspondence, including emails, between [Breen] and Betty
Dameron as it pertained to any alleged breach of attorney McCauley’s ethical
duty to Betty Dameron.” The order continued as follows: “the Court concludes ,
that attorney iVicCauley should have'the ability to cross-examine attorney
Breen concerning the dismissal [of the defendant Bush Hog] because such
questions will be relevant and fundamental fairness requires same.” Therefore,
Breen and Darneron’s broad assertion that the court ordered them “to testify”
about the confidential communications at issue here is unfounded. d

KRE 503 provides: “A client has a privilege to‘refuse to disclose and to
prevent any other person from disclosing a confidential communication made
fo`r’ the purpose of facilitating the rendition of professional legal services to the
client[.]” However, KRE- 503 (d)(3) states that there is no privilege for “a
communication relevant to an issue of breach of duty by a lawyer lto the client
or by a client to the lawyer[.]” In 3M v. Engle, we observed that “a client ‘waives
the privilege if he . . . voluntarily discloses or consents to disclosure of any'
significant part of the privilege matter.’o This waiver may be explicit, but it may
also be implied.” 323 S.W.3d 134, 188 (Ky. 2013) (Internal footnotes omitted).
The lCourt of Appeals applied our ruling in Engle in its analysis of the present

CaS€l

As the trial court noted, Breen did not purport to represent
Dameron in the KBA complaint proceeding The KBA complaint -
was written and signed by Dameron and not by Breen. Therefore,
we conclude that any communications between Dameron and
Breen regarding the`KBA complaint were not for the purpose of
“f`acilitating the rendition of professional legal services.” Further,
the communications at issue concerned the breach of a duty by

5

McCauley to Dameron. Therefore, there is no privilege under KRE

503(d)(3). More'over, even if the privilege applied, such privilege

was waived because Dameron had placed the communications at'

issue by asserting that McCauley was terminated for cause in

defense to the quantum meruit claim. We cannot conclude that

the_ trial court abused its discretion by rejecting the claim of

privilege.
We agree with the Court of Appeals’ reasoning and conclusions

Breen and Dameron also request a writ prohibiting the trial court from
enforcing its_ order withholding Breen’s attorney fees pursuant to KRS 425.01 1.
They argue that the court’s order constitutes an unconstitutional taking of
property resulting in irreparable injury. As correctly 'noted by the Court of
Appeals, however, “the validity of prejudgment attachments may be adequately
remedied upon direct appeal.” Therefore, Dameron and Breen have failed to
demonstrate the lack of an adequate remedy by appeal. This issue also fails to
satisfy our “special case” exception.

Case _1§0.12016-80-462-MR

Attorney McCauley argues the trial court acted outside its jurisdiction
when it ordered a jury trial on her quantum meruit claim. She alternatively
- argues that the trial court acted erroneously within its- jurisdiction by ordering
a jury trial. Mc¢auley specifically alleges that quantum meruit seeks an
equitable remedy for which there is no right to a jury trial. -

We agree with the Court of Appeals’ conclusion that “the circuit court
clearly has subject-matter jurisdiction over cases involving a claim of quantum
meruit;‘” Therefore, we must determine whether relief is available under the `

second class of writ actions_where the trial court was acting within its

jurisdiction.

- It_ is well-established that .“[t]he right to trial by jury has occupied a
central place in our jurisprudence.” B.F.M. Bldg., Inc. v. Trice, 464 S,W.Zd 617,
619 (Ky. 1971). In civil cases, however, “Kentucky law recognizes exceptions to
the right to a jury, including causes of action at common law that would have
been regarded as arising i-n equity rather than law.”} Daniels v. CDB Bell, LLC,
300 S.W.3d 204, 210 '(Ky. App. 2009)_ fciting Reese's Administrator v.

Youtsey,l 13 Ky. 839, 69 S.W.-'i' 08 (Ky. 1902]]; and Steelvest, Inc. v. Scansteel
service center, rne., 903 s.w.2d 104, 103 (Ky. 1995). Therefore, “[i]f the nature
of the issues presented is essentially equitable, no jury trial is available Id.
(citing Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814 (Ky. 1992)).
Although the underlying issue in Daniels was a claim seeking to pierce
the corporate veil, it provides an apt analogy to the present case. Quantum
meruit is a common law action in equity. And although .we have never
addressed this issue directly, we have previously embraced the_Court of
Appeals’ decision in Daniels and adopted much of its language verbatim. See
Schultz v. General Electric Healthc'are Financial Seri)ices Inc., 360 S.W.3d 171,
174-76 (Ky. 2012).
Furthermore, we stated in Baker v. Shaperothat “when an attorney
employed under a contingency fee contract is discharged'without cause before
completion of the contract, he or she is entitled to fee recovery on a quantum .
meruit basis only, and not on the terms of the contract.” 203 S.W.3d at 699.
Several Kentucky cases indicate that this determination is most appropriately
decided by the trial court. See id.; and e.g., Lofton v. Fairmont Specialty

In.surance Managers, Inc., 367 S.W.3d 593 (Ky. 2012).
7

Therefore, we agree that the trial court committed clear error here by
ordering this case tried before a jury. H_owever, in order to prevail on her writ
petition, McCauley must demonstrate that there exists no adequate,remedy by
appeal or otherwise, and that a great injustice and irreparable injury will result
if the petition is not granted. McCauley asserts that there is no adequate
remedy by appeal here because the bar complaint against her would be
admitted as evidence in the jury trial and that attorney discipline matters are
confidential unless public sanction is imposed. Supreme Court 'Rule (SCR)_
3.150.

iNe‘have previously defined “no adequate remedy by appeal or otherwise”
to mean that the injury to be suffered “could not therefore be rectified in
subsequent proceedings in the case.” Bender v. Eaton, 343 S.W.2d 799, 802
(Ky. 1961). According to McCauley, her reputation in the community would be
diminished if this information was made public. McCauley also argues that
jurors are not qualified to make equitable determinations .

As correctly noted by the Court of Appeals, “[j]uries are routinely
expected to adjudge the conduct of attorneys in complex situations Such as
legal malpractice cases.” We do not believe the mere evidence that a bar
complaint has been filed against McCauley is sufficient to cause irreparable
. harm which justifies a writ. We also note that the trial court-entered an agreed
order sealing any documents referring to the KBA file and reserving the right to
rule on the admissibility of any information pertaining to the KBA file prior to.
the jury trial. What is critical to our analysis here, however, is that McCauley

may appeal the trial court’s jury trial order and, if successful, she may retry
. s

the case before the trial court without a jury. Therefore, there is a clear and
adequate remedy by appeal here. Compare Commonwealth'v. Green, 194
S.W.3d 277, 280 (Ky. 2006) (“If the district court proceeds with a bench trial,
as has been ordered, jeopardy will attach and retrial by a jury will be
prohibited under KRS 505.030. This alone is sufficient to demonstrate the lack
of an adequate remedy by appeal.”). l

Mo'reoverj there is no great injustice and irreparable injury here. We
have defined “great' and irreparable” injury as ~“something of a ruinous
nature.” Bender, 343 S.W.2d at 801. Similar_ to the previous issue, `we cannot
conclude that the potential for publicity here would be “ruinous” to McCauley.

McCauley also insists that this case satisfies the “special case” exception
to our writ standard. However, “our case law is clear that the certain-special-
cases exception only .supplants the requirement that a petitioner prove l
irreparable harm in the absence of a writ, not the requirement that there be no
adequate remedy by appeal or otherwise.” Ridgetuay Nursing & Rehabilitation_
Facility, LLC v. Lane, 415 S.W.3d 635, 641-42 (Ky. 2013) (citing Bender, 343
S.W.2d at 801). As previously discussed, McCauley has failed to demonstrate
the absence of an adequate remedy on appeal. nccordingly, the Court of
Appeals did not abuse its discretion in denying McCauley’s petition.

Although our writ standard has not been satisfied here, we are compelled
to repeat our strong admonition that the trial judge is committing “clear error”
if he proceeds with a jury trial on -a quantum merl.iit claim. The only role a jury '
could possibly have in this action in equity would be as an advisory jury on

issues of fact pursuant to Kentucky Rule of Civil Procedure 39.03. _See Barrier
9

v. Brewster, 349 S.W.3d 823 (Ky. 1961) (the “issues” that can be tried by an
advisory jury are only issues of fact and the judge cannot delegate his
discretion or_equitable function). n

4 Conclusion n

For_ the foregoing reasons,' we affirm the Court of f\ppeals’ denial of the
petitions seeking a .writ of prohibition filed in Case Nos. 20 16-SC-000462-MR
and 2016-sc-000463~MR.

lAll sitting. All concur.

COU_NSEL FOR APPELLANT/REAL PARTY IN INTEREST, DAWN SPALDING-
MCCAULEY:

David A. Nunery
Steven Casey Call
. NUNERY 85 CALL, PLLC

` APPELLE:E;

' Hon. Samuel To.dd Spalding
Judge, Taylor Circuit Court

COUl\fSEL FOR APPELLA'NT/REAL PARTY IN INTEREST, BETTY DAMERON,
INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF PAUL DAMERON:

Michael Anthony Breen _
Michael Anthony Breen, Attorney at Law, PSC

'COUNSEL FOR APPELLANTS/ REAL PARTIES IN INTEREST, MIKE BREEN
AND MIKE BREEN, ATTORNEY AT LAW, P. S. C.:

Michael Anthony Breen
Attorney at Law

James Hadden Dean
Sh_eehan, Barnett, Dean, Pennington, Little 85 Dexter, PSC

19

