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NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: MARCH 25, 2021

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0495-MR

HAYNES TRUCKING, LLC; AND L-M 

ASPHALT PARTNERS, LTD. D/B/A ATS

CONSTRUCTION

APPELLANTS

ON APPEAL FROM COURT OF APPEALS

V. NO. 2020-CA-0762

FAYETTE CIRCUIT COURT NO. 10-CI-03986

HONORABLE ERNESTO M. SCORSONE, 

FAYETTE CIRCUIT COURT JUDGE

APPELLEE

AND

WILLIAM E. ABNEY, CHARLES BUSSELL, REAL PARTIES IN INTEREST

JAMES D. FETTERS, HARTFORD FIRE 

INSURANCE COMPANY, JAMES MELVIN

HENSLEY, DANNY LAINHART, AND

TONY MITCHELL

MEMORANDUM OPINION OF THE COURT

AFFIRMING

This appeal arises out of a pending class-action lawsuit in which the 

plaintiffs seek recovery for back pay and damages from Haynes Trucking, LLC 

and L-M Asphalt Partners, Ltd. d/b/a ATS Construction (together called
2

Haynes Trucking”) under the Kentucky Prevailing Wage Act (KPWA)1 in 

connection with work on certain public works projects.2

The trial court issued partial summary judgment that held invalid and 

unenforceable 803 KAR3 1:055, the administrative regulation that limited the 

ambit of the KWPA’s prevailing-wage to the “site of the project.” Instead, the 

trial court ruled the KPWA’s plain language required the prevailing wage to be 

paid for any work “under the contract” regardless of where it was performed.

The trial court did not designate its order as final and appealable, so 

Haynes Trucking sought review via an original action in the Court of Appeals, 

requesting a writ to prohibit the trial court from “invalidating the regulation . . . 

as to past work, wages, and contracts.” In a well-reasoned opinion, the Court 

of Appeals declined to issue a writ, and Haynes Trucking has appealed to this 

Court as a matter of right.4 We agree with the Court of Appeals’ decision and 

affirm.

I. PROCEDURAL HISTORY AND BACKGROUND

In support of its application, Haynes Trucking argued that the trial 

court acted outside its subject-matter jurisdiction by granting the 

 

1 Kentucky Revised Statutes (KRS) 337.505–337.550. 

2 The facts of the underlying action are set out in Hensley v. Haynes Trucking, 

LLC, 549 S.W.3d 430 (Ky. 2018).

3 Kentucky Administrative Regulation.

4 Ky. Const. § 115 (“In all cases, civil and criminal, there shall be allowed as a 

matter of right at least one appeal to another court . . . .”); Kentucky Rule of Civil 

Procedure (CR) 76.36(7)(a) (“An appeal may be taken to the Supreme Court as a matter 

of right from a judgment or final order in any proceeding originating in the Court of 

Appeals.”).
3

partial summary judgment invalidating 803 KAR 1:055 when it (1) issued an ex 

post facto decision, lacking an actual and justiciable controversy after the 

repeal of the organic statute and the lapse of the administrative regulation 

while the underlying action pended, and (2) violated the doctrine of separation 

of powers and the contracts clause of the state and federal constitutions.

Alternatively, or additionally, Haynes Trucking argues that even if the trial 

court was acting within its jurisdiction a writ lies because a direct appeal from 

a final judgment is an inadequate remedy. 

II. STANDARD OF REVIEW

A writ of prohibition is an extraordinary remedy.5 Courts are “decidedly 

loath to grant writs because a ‘specter of injustice always hovers over writ 

proceedings.’”6 Our jurisprudence establishes a high bar for determining the 

availability of relief by way of a writ.7 

Writ cases we “divide into two classes, which are distinguished by 

whether the inferior court allegedly is (1) acting without jurisdiction (which 

includes beyond its jurisdiction), or (2) acting erroneously within its 

jurisdiction.”8 “Under the second class of cases, a writ ‘may be granted upon a 

showing . . . that the lower court is acting or is about to act erroneously, 

although within its jurisdiction, and there exists no adequate remedy by appeal 

 

5 See, e.g., Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961).

6 Southern Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 925 (Ky. 2013) (citing 

Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008)).

7 Hoskins v. Maricle, 150 S.W.3d 1, 4 (Ky. 2004) (holding that the older, stricter 

standard applied in Bender, 343 S.W.2d at 800, and Chamblee v. Rose, 249 S.W.2d 

775 (Ky. 1952), should govern writ proceedings).

8 Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005) (citing 

Bender, 343 S.W.2d at 800) (internal quotation marks omitted)).
4

or otherwise and great injustice and irreparable injury will result if the petition 

is not granted.’”9 Haynes Trucking sought relief under both classes, and the 

Court of Appeals held that it failed to meet the requirements of either as a 

matter of law. So our review in this appeal is de novo.10

III. ANALYSIS

A. The circuit court acted within its jurisdiction, so a writ of the first 

class does not lie.

Haynes Trucking seeks a writ of the first class by arguing the trial court

lacked subject-matter jurisdiction to hold 803 KAR 1:055 invalid and 

unenforceable. It argues that the trial court proceeded without an actual 

controversy between the parties because the KWPA was repealed effective 

January 9, 2017, and 803 KAR 1:055 expired under a sunset provision on 

March 1, 2020, before the entry of the partial summary judgment on April 30, 

2020, nullifying the regulation. We agree with the Court of Appeals that the 

trial court did not act outside its general subject-matter jurisdiction when it 

invalidated the regulation.

The Court of Appeals observed that general jurisdiction courts, like the 

trial court in the present case, have general subject-matter jurisdiction over the 

type of case presented in the underlying complaint herein—a claim for payment 

of past wages owed for the period 1995 to 2010 under statutes in existence at 

the relevant time. At the time the case was filed in 2010, there unquestionably 

 

9 Id. at 754 (citing Hoskins, 150 S.W.2d at 10.).

10 Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004) (quoting 

Bender, 343 S.W.2d at 800).
5

was an actual controversy between the parties over whether the plaintiffs and 

putative class members were entitled to additional wages and other damages 

under the KWPA for work previously performed. 

Haynes Trucking argues to us that the Court of Appeals’ rationale 

misconstrued its argument. It is not arguing that “there was not a controversy 

when this matter was filed, but that there was no controversy as to the validity 

of the regulation when this matter was filed.” But “[w]hether a court has 

subject-matter jurisdiction is determined at the beginning of a case, based on 

the type of case presented . . . . [A] court will retain jurisdiction over such a 

case so long as jurisdiction was proper in the first place . . . .”11 Therefore, the 

circuit court had subject-matter jurisdiction over the case and the issues 

presented as they were raised. And once vested with subject-matter 

jurisdiction over a case, a court does not suddenly lose subject-matter 

jurisdiction by misconstruing or erroneously overlooking a statute or rule 

governing the litigation.12 

Appellant cites Jarvis v. National City,

13 for the proposition that once a 

statute is repealed it no longer has any operative effect, and thus cannot create 

a controversy.14 But petitioner fails to address a critical factor, which is that 

 

11 Kelly v. Commonwealth, 554 S.W.3d 854, 860 (Ky. 2018).

12 Daugherty v. Telek, 366 S.W.3d 463, 467 (Ky. 2012).

13 410 S W 3d 148 (Ky. 2013).

14 Id. at 154 (“Generally speaking, ‘without a reenactment of the repealed law in 

substantially the same terms, and [with] no savings clause or general statute limiting 

the effect of the repeal, the repealed statute in regard to its operative effect, is 

considered as if it had never existed.’”).
6

the operative law at the time the claim was filed governed the action. And if the 

regulation was inapplicable because it had been repealed, Haynes Trucking 

would not have filed a motion of summary judgment arguing its application 

geographically limited their potential prevailing-wage obligation. The trial 

court’s action did not exceed its subject-matter jurisdiction by addressing the 

repealed regulation at issue in a matter before it. Because the circuit court 

had subject-matter jurisdiction to interpret a statute and its regulations at 

issue before them, petitioner’s remaining arguments that the lower court 

exceeded its authority fail. 

Haynes Trucking argues the trial court’s invalidation of the regulation 

could have only been proper if the plaintiffs had sought relief below under the 

Declaratory Judgment Act.15 Like the Court of Appeals, we disagree. The 

Declaratory Judgment Act allows a court to invalidate statutes when there is 

no actual case or controversy over it.16 Haynes Trucking is correct that an 

action under the Declaratory Judgment Act would have vested the trial court 

with jurisdiction to invalidate the statute, but the Act was not the only means 

of doing so. As previously discussed, irrespective of the absence of citation to 

the Declaratory Judgment Act, the efficacy of the regulation and its relation to 

 

15 KRS 418.040.

16 Id. (“In any action in a court of record of this Commonwealth having general 

jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff 

may ask for a declaration of rights, either alone or with other relief; and the court may 

make a binding declaration of rights, whether or not consequential relief is or could be 

asked.”).
7

the KWA was an issue before the trial court.17 A court may properly rule on 

the validity of a statute when its meaning is at issue in a case in which the 

court’s subject-matter jurisdiction has been invoked.18 Therefore, the circuit 

court had authority to invalidate the regulation regardless of the DJA. 

Further, because a circuit court may properly interpret statutes at issue 

before it, the trial court’s partial summary judgment did not infringe on the 

separation of powers doctrine. Haynes Trucking contends that the trial court’s 

invalidation of the regulation encroached on the powers of the executive and 

legislative branches of government because it was both an act of enforcement 

and an enactment of new law. But invalidating a regulation through statutory 

interpretation is not an act of enforcement or outside the judiciary’s power, but 

is one squarely within it.19 Additionally, as we said in Harilson v. Shepherd,

20

“interpretation of a statute . . . is in no way an encroachment on the legislative 

 

17 This is noted by the trial court’s order: “All citations in this Order are to the 

Act as it existed at the time the Plaintiffs’ complaint was filed.” Additionally, the 

defendants do not argue that the law at the time the complaint was filed is not the 

controlling law, as their motion for partial summary judgment argued the regulation 

applied, even though it has since been repealed.

18Baptist Convalescent Ctr, Inc. v. Boonespring Transitional Care Ctr, LLC, 405 S.

W.3d 498, 502–03 (Ky. App. 2012).

In the case at hand, Boonespring's certificate of need was disapproved by 

the Cabinet because it determined that 900 KAR 6:075 was invalid as 

conflicting with KRS 216B.095(4). And, the validity of 900 KAR 

6:075 was strenuously argued by the parties in both the administrative 

proceedings and the circuit court action. Thus, this legal issue was 

squarely presented to the circuit court for adjudication. As a result, 

the validity of 900 KAR 6:075 constituted a legal issue that was both 

essential to resolution of the administrative appeals and ripe for 

adjudication by the circuit court.

19 Harilson v. Shepherd, 585 S.W.3d 748, 757 (Ky. 2019).

20 Id.
8

function, it is a quintessentially judicial function.”21 While the statute has been 

repealed since litigation in this matter began, the statute was operative at the 

time the underlying claims were filed.22 The trial court acted properly in 

interpreting the statute, although it no longer exists, because the issues raised 

by the parties’ motions centered on its meaning. 

Haynes Trucking lastly argues that the circuit court exceeded its 

authority because the order violated the Contracts Clause, but this argument 

fails for the same reason as above. Violations of the Contracts Clause only

arise when the legislature creates a statute that impairs already existing 

contracts.23 In invalidating the regulation, the circuit court did not enact 

legislation, but interpreted a statute, a classically judicial function. While the 

trial court’s interpretation of the regulation certainly affects the claims in the 

case at hand, its authority to do so was properly exercised. Because the 

invalidation of the regulation did not make new law, it did not infringe on the 

Contracts Clause. 

In sum, we find that the trial court had the authority to hold 803 KAR

1:055 invalid. The regulation was at issue in a case, and the judiciary may 

interpret statutes that are determinative of the matters before it. We find the 

 

21 Id.

22 Baptist Convalescent Center, at 502–03.

23 U.S. Const. Art. 1 § 10; Ky. Const. § 19; Maze v. Board of Dirs. for 

Commonwealth Postsecondary Educ. Prepaid Tuition Trust Fund, 559 S.W.3d 354 (Ky. 

2018) (discussing at length the Contracts Clause and when it is infringed upon).
9

trial court did not exceed its jurisdiction and that Petitioner has failed to meet 

the requirements for the first class of writ of prohibition. 

B. Haynes Trucking has an adequate remedy on appeal, so a secondclass writ is not available. 

Haynes Trucking has failed to show the trial court acted without 

jurisdiction, so for this Court to consider the merits of its petition for the 

second class of writ, it must show the lower court’s error will result in great 

injustice or irreparable harm that cannot be adequately rectified by appeal or 

otherwise.24 The alleged harm must be of “ruinous nature,”25 not merely costly 

or an inconvenience.26 This Court may also find the remedy by appeal or 

otherwise to be inadequate because the lower court’s error will result in a 

substantial miscarriage of the administration of justice, but we seldomly find 

such circumstances.27 In sum, for this Court to issue a writ of prohibition of 

the second class, Haynes Trucking must show that the order is a substantial 

miscarriage of the administration of justice or that it will suffer irreparable 

injury. We find it has failed to demonstrate either, as it may obtain an 

adequate remedy through appeal and no irreparable harm or substantial 

disruption to justice will occur. 

 

24 Hoskins,150 S.W.3d at 10.

25 Bender, at 801.

26 See Robertson v. Burdette, 397 S.W.3d 886, 891 (Ky. 2013) (citing Fritsch v. 

Caudill, 146 S.W.3d 926, 930 (Ky. 2004)).

27 Grange Mut. Ins. Co. v. Trude, 151 S W 3d 803, 808 (Ky. 2004) (refusing to 

issue a writ of prohibition except for where a special discovery standard applied, which 

replaced the usual irreparable harm standard).
10

Haynes Trucking has a clear remedy by way of appeal after the litigation 

concludes. It argues the remedy is inadequate because of the irreparable harm 

that will occur because 1) the trial court retroactively invalidated a regulation 

relied on by thousands of businesses, which is a substantial miscarriage of the 

administration of justice; 2) the time between its judgment and an eventual 

appeal leaves Kentuckians unable to rely on express regulations, causing a 

similar harm; 3) the order will cause Haynes Trucking’s employees to not trust 

them, a form of reputational damage; 4) the passage of time cannot be 

remedied by appeal; and 5) because this case might settle, direct appeal will 

not likely be pursued. 

We find this list of potential harms insufficient for the issuance of a writ. 

The remedy by direct appeal is adequate for the alleged injuries because they 

are potential consequences of the normal litigation process and because they 

are speculative. The passage of time is a matter of concern in any litigation. 

Other than those parties who are afforded the issuance of a writ, litigants are 

generally required to wait until litigation concludes before bringing an appeal.

28 

Additionally, foregoing the opportunity to appeal because of settlement is 

another ordinary result of litigation.29 As this Court has repeatedly held, a writ 

 

28 Lee v. George, 369 S.W.3d 29, 34 (Ky. 2012) (“This Court has repeatedly held 

that the delay and expense of appeals does not constitute irreparable injury or render 

remedy by appeal inadequate”); See Buckley v. Wilson, 177 S.W.3d 778, 781 (Ky.

2005) (holding that the delays inherent in every lawsuit and appeal do not constitute 

inadequate remedy by appeal).

29 Fayette Cty Farm Bureau Fed'n v. Martin, 758 S.W.2d 713, 714 (Ky.

App.1988) (“That a party will be exposed to the inconvenience and cost of litigation 

does not alone justify immediate review of an otherwise nonfinal order.”).
11

of prohibition is “not a substitute for the appellate process” and can be

“assessed in the ordinary course of trial and appeal.”

30

Overall, the harms alleged are largely consequences of the normal 

litigation process and do not amount to irreparable injury necessitating the 

issuance of a writ. While some harms alleged by Haynes are unique to the 

case, such as the potential reputational damage they may suffer because of the 

order, all this is speculative, and a writ will not be issued to address 

speculative harms.31

IV. CONCLUSION

We affirm the Court of Appeals’ decision to deny the writ.

All sitting. All concur. 

COUNSEL FOR APPELLANTS:

Robert Edwin Maclin, III

Scott Alexander Schuette

Jon Allen Woodall

Brendan Reynolds Yates

Katherine Kilkeary Yunker

McBrayer, PLLC

Honorable Ernesto M. Scorsone, Judge

Fayette Circuit Court

COUNSEL FOR REAL PARTIES IN INTEREST: WILLIAM E. ABNEY, CHARLES 

BUSSELL JAMES D. FETTERS, JAMES MELVIN HENSLEY, DANNY LAINHART, 

AND TONY MITCHELL:

 

30 Com. v. Shepherd, 366 S.W. 3d 1, 9 (Ky. 2012); Green Valley Envt’l Corp. v. 

Clay, 798 S W 2d 141, 144 (Ky. 1990).

31 Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 641 (Ky. 

2013) (holding allegations of harm to the defendant from arguably impermissible 

interviews of its employees conducted by the plaintiff's investigator were too 

speculative to support issuance of a writ).
12

Brent L. Caldwell

Noel Embry Caldwell

Caldwell Law Firm, PLLC

Bryce Lowry Caldwell

Attorney-at-Law, PLLC

William R. Garmer

Jerome Park Prather

Garmer and Prather, PLLC

David Michael Stout

Stout Law Office, PSC

COUNSEL FOR REAL PARTIES IN INTEREST: HARTFORD FIRE INSURANCE

COMPANY:

J. Andrew Inman

LaToi D. Mayo

Littler Mendelson, PSC.