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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
RENDERED: SEPTEMBER 22, 2016 

NOT TO BE PUBLISHED 

$511jarrittr Gurf of 4 rnfUritV 

2015-SC-000390-MR 

DEER RUN ESTATES, LLC APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NO. 2015-CA-000324 

MERCER CIRCUIT COURT NO. 09-CI-00438 

HON. DARREN W. PECKLER APPELLEE 

(JUDGE, MERCER CIRCUIT COURT) 

AND 

RONNIE LEE ROBERTSON; 

SUSAN K. ROBERTSON; 

CHRISTOPHER C. DUNBAR; 

PATRICIA ANN DUNBAR; DAVID RASKIN; 

CAROL RASKIN; BERNARD G. BATES; 

DEBORAH BATES; WILLARD COLEMAN; 

REBECCA CONLEY; MICHAEL INMAN; 

AND LINDA P. INMAN 

REAL PARTIES IN INTEREST 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Appellant, Deer Run Estates, LLC, sought a writ of prohibition in the 

Court of Appeals to restrain the Mercer Circuit Court from enforcing a 

discovery order. The Court of Appeals denied the writ. For reasons stated 

below, we affirm. 
Deer Run Estates, LLC, is a residential real estate development. 

Pursuant to its restrictive covenants, those who purchase lots in the 

development are required to pay an annual maintenance fee. The Real Parties 

in Interest ("Homeowners") in this action are homeowners in the Deer Run 

Estates who filed suit against Appellant demanding an accounting and alleging 

that Appellant had misapplied the maintenance fees. In the course of the 

lawsuit, the Homeowners served upon Appellant interrogatories and requests 

for production of documents seeking discovery of Appellant's financial records. 

The circuit court denied Appellant's objection to the Homeowners' request for 

production and ordered Appellant to produce certain tax returns and bank 

statements. 

Appellant then petitioned the Court of Appeals for a writ of prohibition to 

enjoin enforcement of the discovery order. The Court of Appeals denied the 

petition. This appeal followed pursuant to CR 76.36(7). 

A writ of prohibition is an extraordinary remedy. Bender v. Eaton, 343 

S.W.2d 799, 800 (Ky. 1961). It may be issued when "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 and irreparable 

injury will result if the petition is not granted." PremierTox 2.0 v. Miniard, 407 

S.W.3d 542, 546 (Ky. 2013) (quoting 3M Co. v. Engle, 328 S.W.3d 184, 187 (Ky. 

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2010)). 1We review the Court of Appeals' findings of fact relating to the 

conditions precedent for issuance of a writ for clear error, Grange Mutual 

Insurance Company v. Trude, 151 S.W.3d 803, 810 (Ky. 2004), determining 

from the record if there is substantial evidence to support its findings, Miller v. 

Eldridge, 146 S.W.3d 909, 917 (Ky. 2004). If the conditions necessary for 

issuing the writ are present, the decision to deny the petition is reviewed for an 

abuse of discretion. Id. 

The Court of Appeals denied the writ because Appellant failed to 

establish either of the first two conditions required for its issuance—that the 

trial court acted erroneously (or was about to do so), and that Appellant had no 

adequate remedy by appeal or otherwise. The Court of Appeals found that the 

requested financial documents were relevant to the issue of the alleged misuse 

of funds and the Homeowners' demand for an accounting. Accordingly, it 

concluded that the circuit court had not acted erroneously when it entered its 

discovery order. The Court of Appeals also concluded that since the record does 

not reveal that Appellant requested a protective order to address potential 

disclosure of confidential financial information, Appellant failed to demonstrate 

lack of an adequate alternative remedy. 

Appellant asserts the Court of Appeals made factual errors and abused 

its discretion. Appellant contends that the relevance of the requested 

1Not at issue here, the other type of case in which a writ may issue is when the lower 

court is proceeding or is about to proceed outside of its jurisdiction. PremierTox 2.0, 

407 S.W.3d at 546. 

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documents cannot be established until after the circuit court determines if the 

Homeowners are entitled to an accounting and, therefore, the Court of Appeals 

erred by finding that the requested documents were relevant and discoverable. 

As to the Court of Appeals' finding that Appellant failed to show that it 

requested a protective order and otherwise had no adequate alternative 

remedy, Appellant asserts that it requested the circuit court to enter an 

appropriate protective order when it resisted the Homeowners' discovery 

request. 

Upon review of the record before us, we are not persuaded that the 

Courts of Appeals erred in determining that the requested financial documents 

are discoverable under CR 26.02. We also see no error in the Court of Appeals' 

determination that Appellant had an alternative form of relief by way of a 

protective order to prevent the disclosure of confidential portions of the 

requested documents. 

Since the case before us originated with Appellant's petition in the Court 

of Appeals, the circuit court record of the underlying action is not before us. 

Nothing has been presented to refute the Court of Appeals' finding that 

Appellant failed to seek a protective order. Nevertheless, even if Appellant had 

requested a protective order, it appears that it did not pursue and receive a 

ruling on the request, and so the conclusion that Appellant failed to 

demonstrate a lack of an available alternate adequate remedy remains 

supported by the record. 
With no clear error in the Court of Appeals' factual findings, either of its 

legal conclusions — that the circuit court did not act erroneously or that 

Appellant failed to demonstrate a lack of an adequate remedy by appeal or 

otherwise — stands and justifies its refusal to issue a writ of prohibition. 

Consequently, we affirm the Court of Appeals' denial of Appellant's writ 

petition. 

All sitting. All concur. 

COUNSEL FOR APPELLANT: 

Noel Mark Botts 

COUNSEL FOR APPELLEES: 

Honorable Darren Peckler 

Circuit Judge 

Charles E. Jones 

Mcnamara 8s Jones 

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