author: Justice VENTERS.

text:
    Ricky N. FRANCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000249-MR.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Kathleen Kallaher Schmidt, Appeals Branch Manager, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, James Coleman Shackelford, Assistant Attorney General, Office of Criminal Appeals, Attorney General’s Office, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice VENTERS.

Appellant, Ricky France, appeals as a matter of right from a judgment entered upon a jury verdict by the Warren Circuit Court convicting him of failure to register as a sex offender and of being a first-degree persistent felony offender (PFO). France received an underlying sentence of three years on the failure to register charge, enhanced to twenty years upon the PFO conviction.

In his appeal, France raises three arguments: (1) that the first-degree PFO conviction was impermissibly based, in part, upon the same 1997 rape conviction (for a 1995 rape) which required him to be a sexual offender registrant; (2) that subjecting France to a statutory revision of the registration statute which occurred following the 1995 rape reclassifying failure to register from a misdemeanor to a felony violates ex post facto principles; and (3) that three African-American jurors were impermissibly struck by the Commonwealth in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the reasons set forth below, we reverse the PFO conviction, and remand for a new PFO trial phase.

I. FACTUAL AND PROCEDURAL BACKGROUND

In September 1980, France committed a rape by forcible compulsion in violation of KRS 510.040. He was convicted of the crime, and on February 27, 1981, final judgment was entered sentencing him to fifteen years in prison.

Following his release on the 1981 conviction, on June 13, 1995, France again committed a rape. On August 7, 1995, he was indicted for the rape, and, among other things, one count of first-degree burglary and two counts of second-degree burglary. Following a trial, France was convicted of the charges, and final judgment was entered on May 28, 1997. France was sentenced to fifteen years on the rape conviction, ten years on the first-degree burglary conviction, and eight years on each of the two second-degree burglary convictions, with all sentences to run concurrently for a total of fifteen years’ imprisonment. France served out the fifteen year sentence on these charges on April 29, 2005, slightly less than ten years after he was originally incarcerated for the charges.

After his release from prison, as a result of the 1997 rape conviction, France was required to register as a sexual offender pursuant to KRS 17.510. France initially registered in Warren County, and reported various subsequent changes in his address. He also complied with required periodic reporting requirements. In June 2008, France’s latest registered address was his sister’s residence in Bowling Green.

On June 10, 2008, France’s then girlfriend, C.B., reported that France had raped and sexually abused her. In the course of their investigation, police determined that France had not been residing at his sister’s residence per his sexual offender registration address, but was instead residing with C.B.

On August 6, 2006, France was indicted by the Warren Grand Jury for first-degree rape, first-degree sexual abuse, first-degree failure to comply with the sexual offender registry, and first-degree PFO. As noted, the predicate offense requiring sexual offender registration was the 1997 rape conviction. The predicate offenses supporting the PFO charge were (1) the 1981 rape conviction and (2) the 1997 rape conviction and the three 1997 burglary convictions, collectively considered as one prior offense for PFO purposes.

The trial court granted France’s motion to sever the failure to register count from the rape and sexual abuse counts. The failure to register count proceeded to trial first. Following a jury trial France was convicted of failing to register and first-degree PFO. The jury recommended an underlying sentence of three years on the failure to register charge, enhanced to twenty years on the PFO conviction. On April 22, 2007, the trial court entered final judgment in accordance with the jury’s verdict and sentencing recommendation. This appeal followed.

II. THE 1997 RAPE CONVICTION WAS IMPERMISSIBLY USED AS BOTH THE PREDICATE CRIME REQUIRING FRANCE TO REGISTER AS A SEX OFFENDER, AND AS A PREDICATE FOR THE FIRST-DEGREE PFO CONVICTION

France’s first argument is that his 1997 rape conviction was impermissibly used as both the predicate offense requiring him to register as a sex offender pursuant to KRS 17.510, and as one of the predicate offenses supporting the first-degree PFO conviction. He argues that this is an impermissible double-enhancement based upon a single conviction. For the reasons discussed below, we agree.

In support of his argument, France cites us to Boulder v. Commonwealth, 610 S.W.2d 615 (Ky.1980) (overruled on other grounds by Dale v. Commonwealth, 715 S.W.2d 227 (Ky.1986)). In Boulder, the defendant was convicted of first-degree assault, possession of a handgun by a convicted felon, and of being a second-degree persistent felony offender. Boulder’s classification as a convicted felon was based solely upon a 1976 conviction for first-degree assault. Similarly, the sole felony supporting the second-degree PFO enhancement was the 1976 assault.

In finding that the 1976 conviction could not serve as the predicate offense for both the possession of a handgun charge and the second-degree PFO charge, we stated:

First, KRS 527.020 takes into account the fact of a previous conviction in fixing a penalty for a felon in possession of a handgun. See State v. Ware, 201 Kan. 563, 442 P.2d 9 (1968). This statute converts non-criminal activity into a criminal offense solely on the basis of a person’s status as a felon. Similarly, KRS 532.080 (PFO sentencing) purports to punish a person because of his status as a felon. The utilization of a prior felony to establish an essential element of a crime and then to enhance its punishment is just as illogical as using it to raise a misdemeanor to a felony and then using it to increase punishment by way of KRS 532.080 as disapproved in Heady v. Commonwealth, Ky., 597 S.W.2d 613 (1980). Consequently, [Boulder’s] status as a felon which establishes the substantive offense of possession of a handgun by a convicted felon may not be used to trigger enhanced punishment via the persistent felony offender statute.

Id. at 618.

We are unable to distinguish the double-use of the 1976 assault conviction in Boul der from the double-use of the 1997 rape conviction in the present case. The underlying rationale is the same. The 1976 assault conviction in Boulder was the sole basis triggering the defendant’s classification as a convicted felon prohibiting him from possessing a handgun; similarly, the 1997 rape conviction was the sole basis triggering France’s classification as a sex offender requiring him to register pursuant to KRS 17.510. In both situations an initial crime triggered a legal classification which required the defendant to comply with certain obligations, the violation of which would be a felony.

As the excerpt demonstrates, Boulder held that the same underlying felony creating a legal classification subject to specified conditions could not also be used for PFO enhancement purposes in a subsequent felony prosecution for violating a specified condition imposed by the classification. Application of that principle to the present case compels the result that France’s 1997 rape conviction, which triggered his sex offender classification and his corresponding obligation to register as a sex offender, may not also be used for PFO enhancement purposes in a prosecution for violation of his obligation to register. The Commonwealth maintains, however, that even if the 1997 rape conviction was impermissibly used for PFO purposes, then, nevertheless, the error was harmless.

As previously noted, in 1997, France received a fifteen-year sentence on the rape conviction, a ten-year sentence on the first-degree burglary conviction, and two eight-year sentences on the second-degree burglary convictions, with all sentences to run concurrently. He served-out the total concurrent fifteen-year sentence on April 29, 2005. For one of the 1997 felony convictions (besides the rape) to be used for PFO enhancement, the serve-out on that felony must have occurred within five years of the commission of the present felony. KRS 532.080(3)(c)(l). France committed his present crime on June 10, 2008, and thus for one of the other 1997 felony convictions to be used against him for PFO purposes, the serve-out of that felony must have been after June 10, 2003. April 29, 2005 falls well within this range.

The Commonwealth argues that even if the rape conviction is factored out, nevertheless, at minimum, the 1997 first-degree burglary conviction would still support a PFO conviction, because it was served concurrently with the rape conviction, and, “as a matter of law,” the serve-out date on that conviction was April 29, 2005, the same as the rape. The Commonwealth contends, therefore, that inclusion of the rape conviction was harmless, because the jury could have found that the serve-out on the burglary was within five years of the failure to register charge. For the reasons stated below, we are not persuaded by the Commonwealth’s position.

Pursuant to KRS 532.080(3)(c)(l), to convict France of first-degree PFO the Commonwealth was required to prove that he “[cjompleted service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted.” It is only required that completion of service of sentence or discharge from probation or parole on any, not each, of the prior convictions shall have occurred within five years of the instant offense. Howard v. Commonwealth, 608 S.W.2d 62, 64 (Ky. App.1980).

While reasonable inferences such as performing simple subtraction to calculate defendant’s age at the time he committed a prior offense is not prohibited when a jury must decide whether a defendant is a persistent felony offender, Maxie v. Commonwealth, 82 S.W.3d 860, 864 (Ky.2002), here, because there was no specific testimony upon the issue, the jury would be left to speculate on when the serve-out on any of the three other 1997 burglary convictions occurred. See Lienhart v. Commonwealth, 953 S.W.2d 70, 71 (Ky.1997) (“We cannot conclude, given the applicable statutes and case law, that the date of final discharge determines either the date of [the] commencement or completion of a concurrent sentence which is for a shorter period of time than the original sentence.”) We are unpersuaded by the Commonwealth’s argument that KRS 5S2.120(l)(a) compels the result that the sentences on the other three felonies were completed at the same time as the completion of the rape sentence. There is no testimony in the record to support that claim, and France did not have the opportunity to defend against it at trial.

“[A]n erroneous jury instruction is presumed to be prejudicial; and a party claiming such an error to be harmless bears the heavy burden of showing that no prejudice resulted from it.” Sanders v. Commonwealth, 301 S.W.3d 497, 499 (Ky.2010) (Use of defendant’s prior conviction for possession of drug paraphernalia, second offense, as predicate offense to convict him of being a first-degree persistent felony offender was reversible error, even though there was also evidence of other, usable prior felony convictions). In this instance, the Commonwealth has failed to meet its heavy burden. As in Sanders, here, “we cannot presume that the inclusion of the [rape] in the [PFO] instruction made no difference to the jury.” Id. at 500. We accordingly cannot say with “fair assurance” that the error did not “substantially sway” the jury’s PFO verdict. Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky.2009). As such, the error was not harmless.

We therefore vacate the PFO conviction and the corresponding sentencing enhancement, and remand for a new PFO sentencing phase.

III. NO EX POST FACTO VIOLATION OCCURRED

France next contends that he was improperly subjected to a felony prosecution for failure to register as a sex offender even though when he committed the rape that subjected him to registration (in 1995), failure to register was classified as a misdemeanor. He argues that prosecuting him under the version of the statute in effect when he committed the failure to register offense in 2005, rather than the version in effect when he committed the 1995 rape, violates ex post facto principles. We disagree.

The General Assembly first passed the Sex Offender Registration Act (Act), which is codified at KRS 17.500 et seq., in 1994. See 1994 Ky. Acts, Ch. 392, § 6. As originally passed, failure to register or timely report a change of address was classified as a Class A misdemeanor. This was the classification in effect at the time France committed the 1995 rape. In 2000, KRS 17.510 was amended to make failure to register or timely report a change of address a Class D felony. 2000 Ky. Acts Ch. 401, § 16(11) and (12). This was the classification in effect at the time France violated the statute in June 2008 by failing to properly register his address.

In Hyatt v. Commonwealth, 72 S.W.3d 566 (Ky.2002) we first addressed the ex post facto ramifications of the Sex Offender Registration Act. We noted that Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), sets out a two-pronged test to establish whether a criminal or penal law is ex post facto: “it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Hyatt, 72 S.W.3d at 571.

The 2000 amendment that reclassified failure to register as a Class D felony applied only prospectively, that is, to incidents of failure to register occurring after its effective date. The amendment had no retrospective effect, and, accordingly, the first prong of the Weaver test is not met. When France committed his failure to register offense in June 2008, the amended penalty had been in effect for almost eight years. As such, there was no ex post facto violation.

This reasoning was more recently clarified in Buck v. Commonwealth, 308 S.W.3d 661 (Ky.2010), which reiterated the holding in Hyatt:

In addition, Buck argues that the 2000 amendment, which increased failure to register (first offense) from a Class A misdemeanor to a Class D felony, constitutes ex post facto punishment when applied to him. We cannot agree. “Any potential punishment arising from the violation of [SORA] is totally prospective and is not punishment for past criminal behavior.” Hyatt, 72 S.W.3d at 572. See also [Smith v. Doe, 538 U.S. 84, 101-02, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (“A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense.”).] While a sex offender’s past conduct is the reason he or she is required to register, the failure to register occurs in the present. An increase in the degree of the offense for failing to register would only present an ex post facto issue if the act of failing to register occurred prior to the effective date of the amendment.

Id. at 667; Cf. Commonwealth v. Baker, 295 S.W.3d 437, 442 (Ky.2009) (retroactive application of the 2006 sex offender residency restrictions violated the Ex Post Facto Clause of the United States Constitution and the Kentucky Constitution).

In summary, application of the 2000 amendments to the Sex Offender Registration Act to France’s 2008 violation of its registration requirements does not violate ex post facto principles.

IV. NO BATSON VIOLATION OCCURRED

France next contends that the trial court erred in overruling his objection pursuant to Batson, 476 U.S. 79, 106 S.Ct. 1712, to three of the Commonwealth’s peremptory challenges. In using its peremptory strikes, the Commonwealth struck the remaining three African-American members of the venire. France is African-American. Following arguments, the trial court held that the strikes were for a race-neutral reason.

In Batson, the United States Supreme Court prohibited deliberate racial discrimination during jury selection. Under Bat-son, we have explained,

[a] three-prong inquiry aids in determining whether a prosecutor’s use of peremptory strikes violated the equal protection clause. Initially, discrimination may be inferred from the totality of the relevant facts associated with a prosecutor’s conduct during a defendant’s trial. The second prong requires a prosecutor to offer a neutral explanation for challenging those jurors in the protected class. Finally, the trial court must assess the plausibility of the prosecutor’s explanations in light of all relevant evidence and determine whether the proffered reasons are legitimate or simply pretextual for discrimination against the targeted class.

McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky.2005) (citations and footnotes omitted).

The trial court’s ultimate decision on a Batson challenge “is akin to a finding of fact, which must be afforded great deference by an appellate court.” Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky.2007) (citation omitted). “Deference,” of course, does not mean that the appellate court is powerless to provide independent review, Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (holding that the trial court’s finding of non-discrimination was erroneous in light of clear and convincing evidence to the contrary), but the ultimate burden of showing unlawful discrimination rests with the challenger. Rodgers v. Commonwealth, 285 S.W.3d 740, 757-758 (Ky.2009). “A trial court’s ruling on a Batson challenge will not be disturbed unless clearly erroneous.” Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky.2000).

We identify the three stricken venire persons were Juror A, Juror B, and Juror C. We consider the Batson challenges tó these venire persons in order.

Juror A. The prosecutor gave as his reasons for striking Juror A as being: (1) that on her juror qualification form she failed to answer a question concerning whether she or a family member had ever been a defendant, witness, or complainant in a civil or criminal case; and (2) the prosecutor ran a check on Juror A and found that she had been a defendant in seven civil suits and had four separate police contacts. The prosecutor stated that he attempted to strike everyone who had multiple police and/or court contacts.

The trial court asked the prosecutor if he had struck any non-African-Americans for the same reason, and he responded that he had struck two others for this reason — one who had a disorderly conduct charge and another who had a driving under the influence and an alcohol intoxication charge.

The trial court determined that there was no Batson violation because the prosecutor had used the same rationale to strike non-African-American venire members.

In Berry v. Commonwealth, 84 S.W.3d 82, 88-89 (Ky.App.2001), the Court of Appeals held that an African-American potential juror’s statement that a family member had been a defendant in a criminal case, and that she had been party to a discrimination lawsuit, was a valid, race-neutral reason for the Commonwealth’s peremptory challenge. Here, the venire person herself had been involved in four criminal cases and seven civil lawsuits — far more than at issue in Berry. Accordingly, the strike in this case is supported by Berry.

France contends that, nevertheless, the prosecutor should have followed-up on his concerns by asking Juror A additional questions. However, we have previously held under similar circumstances that failure to ask such follow-up questions was not error. Chatman, 241 S.W.3d at 804 (“the fact that the Commonwealth did not directly engage in a colloquy with [juror] regarding [a police officer’s earlier arrest of someone sharing juror’s surname or juror’s] failure to respond to a question posed by the Commonwealth before exercising a peremptory challenge upon him in no way negates the facially race-neutral reason given by the Commonwealth for exercising its peremptory challenge.”). Because the prosecutor identified a sound race-neutral reason to strike Juror A and, further, struck two white venire members for the same reason, we cannot conclude that the trial court’s decision that there was no Batson violation was erroneous.

Juror B. The prosecutor stated that he struck Juror B because she had worked the third-shift the previous night and so had been up all night. He stated that he was concerned that she would be tired and unable to pay attention. He further stated that he did not remember her race when he struck her, and that he struck a non-African-American venire person for the same reason. Because the same rationale had been used to strike a non-African-American member of the ve-nire, the trial court determined that no Batson violation had occurred. France contends that there should have been additional follow-up questioning by the prosecutor to address Juror B’s level of fatigue and attentiveness after being up all night; however, “[France] cannot fault the trial court for failing to find pretext when [France] himself stood mute instead of attempting to show the alleged pretext underlying the Commonwealth’s facially neutral reasons for exercising a peremptory strike” by himself questioning the effects of Chapman’s all-night shift. Chatman, 241 S.W.3d at 805.

Thus, for reasons similar to those just stated in our discussion concerning venire person Juror A, we cannot conclude that the trial court erred in sustaining the Commonwealth’s peremptory strike of Juror B.

Juror C. During voir dire questioning it.was determined that Juror C went to school with France’s sister, Waver France, and currently attended church with her. The prosecutor asked Juror C if she would give more weight to Waver’s testimony as a result of their relationship, and she appears to have responded “no.”

During the voir dire proceedings, Waver told the bailiff “that someone on the jury panel knows her brother and knows all about the case” but would not identify the venire person. France’s counsel stated that he asked Waver about this, and she said that she had posed a hypothetical question to the bailiff and would rather not say why she posed the question.

The prosecutor gave the following reasons for striking Juror C: (1) that she knew Waver, (2) that she had gone to school with her, (3) that she currently went to church with her, and (4) that she suspected that Waver may have been referring to Juror C in her comment to the bailiff. The prosecutor stated that he did not know if the strike was good or bad for the Commonwealth because Juror C had given statements favorable to the Commonwealth, but that he did not want to take a chance on the situation.

In Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky.1992), we held that there is no due process or equal protection violation by a prosecutor in peremptorily striking an African-American juror who lived nearby or in the same neighborhood as the defendant, and whose family knew the defendant’s family. Id. at 178-179. As prior classmates and fellow church 'members, there was a close relationship between Juror C and Waver. As such, the trial court did not err in overruling the challenge as a proper race-neutral reason. Id.

Though not argued to the trial court, France now for the first time points out that two other venire panelists were acquainted with persons on the witness list. Thus, our review is pursuant to the palpable error standard contained in RCr 10.26.

The first venire panelist stated that she was acquainted with the listed probation and parole officer — a non-fact witness. The other said that her husband was a retired police officer and, through his work, she knew listed witness Officer Mike Lemons. Neither had a continuing acquaintanceship with the potential witnesses.

Aside from the fact that France failed to make this disparate treatment argument to the trial court, which, as explained, was disapproved in Chatman, the scope and quality of the relationships are distinguishable. Juror C had a long-term and continuing relationship with Waver, who was a crucial fact witness in the case. France had registered as living at his sister’s residence, and thus her testimony was central to the proceeding. On the other hand, the two other venire persons’ relationships were more remote and the witnesses far less central to the case. Thus, even if the issue had been raised, Juror C was not similarly situated with the other two veni-re persons, and the trial court’s sustaining of the strike would have been proper. As such, we conclude that palpable error did not occur. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006) (palpable error is that which creates the “probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.”).

In summary, the trial court properly upheld the Commonwealth’s strikes, and there was no Batson violation.

V CONCLUSION

For the foregoing reasons, the judgment of the Jefferson Circuit Court as it relates to PFO sentencing is reversed, and the case is remanded for additional proceedings consistent with this opinion. All other aspects of the case are affirmed.

All sitting. All concur.

      . Ky. Const. § 110(2)(b).

      . France does not challenge the sufficiency of the evidence to convict him of failure to register.

      .It appears that France was incarcerated while he was awaiting trial, and thus received credit for time served of approximately two years prior to entry of the final judgment.

      . See also Jackson v. Commonwealth, 650 S.W.2d 250, 251 (Ky.1983) (when a single prior felony is utilized to create an offense or enhance a punishment at the trial of the second crime so created or enhanced, it may not be used at that trial to prosecute the defendant under KRS 532.080); Eary v. Commonwealth, 659 S.W.2d 198 (Ky.1983).

      . In addition to the rape, the 1997 first-degree burglary conviction (ten-year sentence) and two second-degree burglary convictions (eight-year sentences) were also included in the PFO instruction.

      . In response, France cites us to KRS 197.045(1), which provides that "[a]ny person convicted and sentenced to a state penal institution may receive a credit on his sentence of not exceeding ten (10) days for each month served, except as otherwise provided in this section, to be determined by the department from the conduct of the prisoner.” Because of the effect of good-time credits on the serve-out of a sentence, France contends that it cannot be determined upon the present record when the serve-out on the burglary convictions occurred.


source: Caselaw Access Project

author: Justice CUNNINGHAM.

license: Public Domain

text:
    Brandon Jamor BALLARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000314-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Daniel T. Goyette, Louisville Metro Public Defender, James David Niehaus, Deputy Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Doris-lee J. Gilbert, Special Assistant Attorney General, Teresa Ann Young, Assistant Commonwealth Attorney, Louisville, KY, Counsel for Appellee.
   Opinion of the Court by

Justice CUNNINGHAM.

On January 13, 2005, Appellant, Brandon Jamor Ballard, pled guilty to illegal possession of a controlled substance; failure to be in possession of an operator’s license; third-degree criminal trespass; and loitering. In exchange for his plea, he was sentenced to the felony pretrial diversion program, with a one-year prison sentence diverted for three years. One of the conditions of Appellant’s diversion directed that he “shall not commit another offense during the pendency of pre-trial diversion.”

On December 21, 2006, during the diversion period, Appellant was arrested for various misdemeanor offenses. On March 22, 2007, he pled guilty to possession of marijuana. He was sentenced to imprisonment for a term of ninety days, which was conditionally discharged.

Five months later, on August 28, 2007, Appellant was arrested for various misdemeanor offenses, including possession of marijuana. These charges have not been resolved. He was again arrested on November 10, 2007, and pled guilty to theft by unlawful taking under $300. He was sentenced to imprisonment for a term of ninety days, which was conditionally discharged.

In light of Appellant’s repeated arrests and convictions during the diversion period, the Commonwealth moved to remove him from pretrial diversion on January 3, 2008. Though the diversion period ended on January 14, 2008, the hearing on the motion was not scheduled until February 14, 2008. At the hearing, the trial court dismissed the motion, stating that it lacked jurisdiction because the diversion period had ended.

The Commonwealth appealed. The Court of Appeals reversed, first determining that it had jurisdiction to consider the appeal because the trial court’s order was a final and appealable order. Turning to the issue of the trial court’s jurisdiction, the Court of Appeals noted that the trial court retains jurisdiction over a diversion agreement until the underlying charges are finally disposed of, whether by dismissal or removal from diversion. Because neither had occurred in Appellant’s case, the trial court retained jurisdiction, notwithstanding that the hearing occurred after the diversion period ended.

Appellant sought discretionary review in this Court, which was granted.

Court of Appeals’ Jurisdiction

Appellant first contends that the Court of Appeals lacked jurisdiction to consider the Commonwealth’s appeal from the order denying revocation of the diversion agreement. Appellant primarily rests this argument on a belief that the Court of Appeals erred in characterizing the trial court’s order as “final and appealable.” We agree.

“A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding. ...” CR 54.01. The trial court’s order denied the motion to remove Appellant from diversion because the trial court believed it lacked jurisdiction to do so. It did not purport to finally adjudicate the underlying charges.

RCr 8.04(5) states: “In the event that there may be a pending motion by the Commonwealth to terminate the agreement, if the Court shall rule that the motion be denied, then upon entry of said order the indictment, complaint or charges shall be dismissed with prejudice.” KRS 533.258(1) likewise requires that the charges be listed as “dismissed-diverted” upon successful completion of diversion. No such language can be found in the trial court’s order, which focused solely on its jurisdiction to consider the Commonwealth’s motion to remove Appellant from diversion. It, therefore, remains for the trial court to dismiss Appellant’s underlying charges. As such, the order cannot be a final and appealable order within the meaning of CR 54.01.

However, the Commonwealth’s appeal is from an interlocutory order. The Commonwealth’s right to appeal from an interlocutory order is established by KRS 22A.020(4). In response, Appellant argues that KRS 22A.020 is unconstitutional because it is arbitrary and violates the separation of powers doctrine.

Constitutionality of KRS 22A.020(4)

Section 2 of the Kentucky Constitution prohibits “[ajbsolute and arbitrary power over the lives, liberty and property of free men.” “Unequal enforcement of the law, if it rises to the level of conscious violation of the principle of uniformity, is prohibited by this Section.” Kentucky Milk Mktg. & Antimonopoly Com’n v. Kroger Co., 691 S.W.2d 893, 899 (Ky.1985). “The question of constitutionality ... requires us to examine the reasonableness of the regulation.... ” Boyle County Stockyards Co. v. Commonwealth, Dept. of Agriculture, 570 S.W.2d 650, 653 (Ky.App.1978). Appellant claims the statute is arbitrary because it confers on the Commonwealth a right of appeal that the accused does not enjoy.

Indeed, KRS 22A.020(4) is “uniquely for the benefit of the Commonwealth.” Commonwealth v. Nichols, 280 S.W.3d 39, 42 (Ky.2009). Nonetheless, the provision is reasonable because it furthers the Commonwealth’s legitimate interest in the orderly administration of justice. “The wisdom of allowing the Commonwealth to appeal from interlocutory orders has been recognized in this jurisdiction for more than a century.” Commonwealth v. Bailey, 71 S.W.3d 73, 79 (Ky.2002). As our predecessor Court explained:

If a defendant be tried and acquitted, he cannot, of course, be again tried, although his release may free a guilty man, and be the result of erroneous decisions of legal questions by the trial court. The injury to the state and the public is then beyond cure as to that particular case. Owing to this fact, doubtless, the legislature saw proper to give to the commonwealth the right to an appeal from a decision of the trial court, although not final in character.... It is, indeed, only fair to the public, and proper for its protection, because otherwise the guilty might escape by an acquittal resulting from legal errors[.]

Commonwealth v. Matthews, 89 Ky. 287, 12 S.W. 333, 333-34 (1889).

We find this rationale still sound. The Commonwealth’s right to appeal from interlocutory orders, pursuant to KRS 22A.020(4), is not in violation of Section 2 of the Kentucky Constitution. Cf. Hummeldorf v. Hummeldorf 616 S.W.2d 794, 797 (Ky.App.1981) (“The sex-based distinction which limits the venue of a divorce action to the resident wife’s home county is arbitrary and therefore unconstitutional under the Kentucky Constitution.”).

Appellant also claims that KRS 22A.020(4) is unconstitutional because it violates the separation of powers doctrine. According to Appellant, Section 110(2) of the Kentucky Constitution vests this Court with exclusive authority to supervise the lower courts through the “all writs” language of that provision. Appellant argues that, by creating the right to appeal pursuant to KRS 22A.020(4), the legislature has improperly infringed upon the discretion otherwise afforded by Section 110(2) and SCR 1.030(3), in violation of the separation of powers provisions of Section 28 of the Kentucky Constitution. We reject this argument.

Section 110(2) concerns the authority of this Court. The Judicial Amendment to the Kentucky Constitution, however, “authorize[s] the General Assembly to prescribe the appellate jurisdiction of the ... Court of Appeals.” Moore v. Commonwealth, 199 S.W.3d 132, 138 (Ky.2006) (citing Bailey, 71 S.W.3d at 77). Section 111(2) of the Constitution states, in part: “In all other cases, [the Court of Appeals] shall exercise appellate jurisdiction as provided by law.” (Emphasis added.) By its enactment of KRS 22A.020(4), the General Assembly has exercised the authority granted by Section 111(2) and created a statutory matter-of-right appeal from interlocutory orders. There is no intrusion on this Court’s authority pursuant to Section 110.

The arguments advanced by Appellant have previously been considered and rejected by this Court in Commonwealth v. Littrell, 677 S.W.2d 881 (Ky.1984) (overruled on other grounds by Bailey, id.). In response to the assertion that the General Assembly had “no right nor authority to establish rules of appellate procedure,” we stated:

[T]he legislative enactment of tHe Commonwealth’s right to appeal is a mere new codification of the law of this Commonwealth as it has existed, in principal part, for over one hundred years. Until the adoption of our present Judicial Article, appeals were not constitutionally guaranteed and came more as a matter of legislative grace. The then granting of the right of appeal was substantive, not procedural. The fact that this Court has not attempted to preempt [KRS 22A.020] by the adoption of pertinent Criminal Rules to parallel the old Criminal Code provisions is in itself tacit approval of the propriety and efficacy of the statute. History, tradition, acceptance and long use mandate that this statutory procedure is constitutionally acceptable.

Id. at 885.

Accordingly, we reaffirm the constitutionality of KRS 22A.020(4) and the Commonwealth’s right to appeal from interlocutory orders created therein. Because, in this case, the trial court’s order was an interlocutory order, the Commonwealth was entitled to directly appeal the ruling. As such, the Court of Appeals had jurisdiction to consider the appeal.

Trial Court’s Jurisdiction

Appellant next argues that the Court of Appeals erred in concluding that the trial court retained jurisdiction to consider the Commonwealth’s motion. He contends that he is entitled to an order dismissing the underlying charges. We disagree.

An order of diversion — here, the January 13, 2005 order — does not fully dispose of any criminal charges. Rather, it simply memorializes an agreement that exists between the Commonwealth and the defendant and halts prosecution between admission of guilt and imposition of sentence. Accordingly, the trial court’s jurisdiction over the diverted case is extinguished in two circumstances: (1) upon the imposition of sentence in an unsuccessful diversion; or (2) upon entry of an order listing the charges as “dismissed-diverted” as required by KRS 533.258(1) after successful completion of the diversion agreement. Neither has occurred in this case.

Accordingly, the trial court retains jurisdiction over Appellant’s underlying criminal charges, including authority to consider the Commonwealth’s motion to revoke the diversion agreement. KRS 533.256(1) governs the means by which the Commonwealth may seek to remove a defendant from pretrial diversion:

If the defendant fails to complete the provisions of the pretrial diversion agreement within the time specified ... the attorney for the Commonwealth may apply to the court for a hearing to determine whether or not the pretrial diversion agreement should be voided and the court should proceed on the defendant’s plea of guilty in accordance with the law.

Unlike probation, there is no language in the statute to suggest that a trial court may only revoke the diversion agreement during the diversion period itself. See KRS 533.020(1) (when a defendant fails to obey the conditions of probation, the trial court may revoke the sentence “at any time prior to the expiration or termination of the period of probation”). Rather, the trial court has authority to void the diversion agreement, even after the period of diversion has ended, so long as the Commonwealth has entered a timely motion to void prior to expiration of the diversion period. See RCr 8.04. See also Tucker v. Commonwealth, 295 S.W.3d 455, 458 (Ky.App.2009) (motion by Commonwealth to void diversion agreement is “required to be made before expiration of the pretrial diversion period”). That is precisely what occurred in this case.

Furthermore, Appellant is incorrect that he is entitled to an order listing his charges as “dismissed-diverted.” RCr 8.04(5) sets forth the circumstances that must exist before a defendant is entitled to a dismissal of the underlying charges:

Upon the expiration of the period of suspension of prosecution and upon the completion of the agreement and where there is no motion by the Attorney for the Commonwealth to terminate the agreement upon any grounds permitted under this Rule, the indictment, complaint or charges which are the subject matter of the agreement shall be dismissed with prejudice.

Thus, Appellant would have been entitled to dismissal of the underlying charges had the period of diversion expired, and had he completed the diversion agreement, and had there been no pending motion to revoke. However, Appellant did not complete the diversion agreement because he was convicted of additional criminal offenses. Also, the Commonwealth moved to revoke the agreement prior to the expiration of the diversion period. An order listing the charges as dismissed-diverted is not warranted.

Conclusion

The trial court’s order did not fully adjudicate the underlying charges and, as such, was interlocutory in nature. However, the Commonwealth was entitled to appeal and the Court of Appeals had jurisdiction to consider the matter because KRS 22A.020(4), granting the Commonwealth the right to appeal from interlocutory orders, is constitutional.

Further, the trial court erred in dismissing the Commonwealth’s motion for lack of jurisdiction. Because the Commonwealth filed the motion to revoke diversion within the period of diversion, the trial court retained jurisdiction to consider the motion and order whatever disposition it deemed appropriate, including allowing the Commonwealth to reinstate prosecution of the charges. This is the case, notwithstanding that the hearing occurred after the diversion period ended.

Accordingly, the opinion of the Court of Appeals is affirmed in part and reversed in part. The trial court’s order dismissing the Commonwealth’s motion is reversed, and the matter is remanded for further action consistent with this opinion.

All sitting. All concur.


text:
    Geneva MAHONEY, as Executrix of the Estate of Louise Roberts, Deceased, Appellant, v. Hon. Judith McDONALD-BURKMAN, Judge Jefferson Circuit Court, Division 9, Appellee and Sandeep Kapoor, M.D., Caritas Physicians Group, Inc., John S. Harris, M.D. and Cardiovascular Associates, P.S.C., Real Parties In Interest.
    No. 2009-SC-000578-MR.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Grover Simpson Cox, Theodore L. Mus-sler, Jr., Mussler & Associates, Louisville, KY, Counsel for Appellant.
    Judith McDonald-Burkman, Judge Jefferson Circuit Court, Division 9, Louisville, KY, for Appellee.
    Daniel Garland Brown, David Bryan Ga-zak, Darby and Gazak, PSC, Louisville, KY, Counsel for Sandeep Kapoor, M.D. and Caritas Physicians Group, Ine./Real Parties in Interest.
    Douglass Farnsley, Sites & Harbison, Louisville, KY, Counsel for John S. Harris, M.D. and Cardiovascular Associates, PSC/ Real Parties in Interest.
   Opinion of the Court by

Justice VENTERS.

Appellant, Geneva Mahoney, Executrix of the Estate of Louise Roberts, appeals from an Order of the Court of Appeals denying her Petition for a Writ of Mandamus. Appellant seeks to compel the Respondent, Judge Judith McDonald-Burk-man, to disqualify three witnesses in order to bar their depositions from being read at trial. For the reasons set forth below, we affirm the Court of Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

The petition for a writ of mandamus arises out of an action pending before Respondent in the Jefferson Circuit Court. Appellant’s decedent initiated the case when she brought a medical malpractice claim against Jewish Hospital & St. Mary’s Healthcare, Inc. (the Hospital) and San-deep Kapoor, M.D., Caritas Physicians Group, Inc., John S. Harris, M.D., and Cardiovascular Associates, P.S.C. (referred to collectively as the Real Parties In Interest). The claim against the Hospital was based on the alleged negligence of the nurses who treated Louise Roberts. Prior to filing the suit, counsel for Appellant secured expert opinions and advice from three experts on nursing care. At the appropriate time during pretrial discovery, Appellant disclosed pursuant to CR 26.02(4)(a) the identities of the three nursing experts that she expected to use as witnesses at trial, along with the substance of the facts and opinions to which they were expected to testify. That information detailed the witnesses’ opinions that the Hospital’s nurses rendered substandard care which caused or contributed to Roberts’s injuries.

Several weeks prior to the trial date, Appellant settled her claim against the Hospital. She then filed a pleading entitled “Redaction of Plaintiffs Witness List” in which she withdrew from her list of trial witnesses the three nursing experts that she had previously disclosed. She also filed a pleading purporting to designate the three experts as being “used only for trial preparation on behalf of [Appellant].” Shortly thereafter, counsel for Appellant rejected the Real Parties In Interest’s request to take pretrial depositions of the three experts. The Real Parties In Interest then moved the trial court for an order under CR 26.02(4)(a)(ii) to allow the taking of the experts’ depositions.

Appellant argued without success that CR 26.02(4)(a)(ii) allows discovery depositions only of adverse experts who will be called as trial witnesses, and that once it became known that Appellant would not present trial testimony from her three nursing experts, there was simply nothing for the Real Parties In Interest to discover. Appellant argued further that the three experts, now serving only as consulting experts for Appellant’s counsel, were cloaked by the attorney’s work-product privilege with immunity from further discovery. The trial judge granted the Real Parties In Interest’s motion based upon a literal reading of CR 26.02(4)(a)(i) and (ii). Although CR 26.02(4)(a)(i) enables a party to discover the identity of experts “whom the other party expects to call as an expert witness at trial,” CR 26.02(4)(a)(ii) provides that “[ajfter a party has identified an expert witness in accordance with [CR 26.02(4)(a)(i) ] any other party may obtain further discovery of the expert witness by deposition ... pursuant to Rules 30 and 31.” The trial court reasoned that, notwithstanding Appellant’s subsequent withdrawal of the experts from her list of trial witnesses, further discovery by deposition was allowable under CR 26.02(4)(a)(ii) because they were at one time identified as witnesses. Significantly for the issues before this Court, the depositions were taken.

Armed with the depositions of the three nursing experts who placed blame for Appellant’s injuries on the Hospital, the Real Parties In Interest disclosed their intention to call the three experts as witnesses by reading their depositions, or portions thereof, at trial. Appellant then moved the trial court to disqualify the three from being used as witnesses for the Real Parties In Interest. When her motion was denied, Appellant filed in the Court of Appeals a Petition for a Writ of Mandamus to compel the Respondent to disqualify the witnesses. The Court of Appeals determined that the issue of whether the depositions could be used as evidence at trial was an evidentiary issue for which Appellant had an adequate remedy, and that Appellant was not faced with great and irreparable injury that could not be remediated by appeal. It therefore declined to issue the writ. We agree.

ANALYSIS

A writ of mandamus or prohibition 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) that 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. Goldstein v. Feeley, 299 S.W.3d 549, 552 (Ky.2009) (quoting Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004)). Absent extraordinary circumstances, we review the decisions of the Court of Appeals in such cases under the abuse of discretion standard. Grange Mutual Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004).

In denying Appellant’s motion, the trial court clearly acted within her jurisdiction. The only avenue for writ relief is in Appellant’s claim that the trial court acted or was about to act erroneously in a way that would cause Appellant great and irreparable injury for which appeal would not be an adequate remedy. The error Appellant alleges was the trial court’s order to allow the depositions of the three nursing experts to be taken. Appellant points out that this Court has not addressed the question of whether CR 26.02 allows a party to depose the other side’s expert after the expert has been withdrawn from the list of trial witnesses, and discovery from that expert is no longer needed. In Sowders v. Lewis, 241 S.W.3d 319, 322 (Ky.2007), we held that the attorney-client privilege attached to prevent discovery of communications of a consulting expert under CR 26. Citing Trude, 151 S.W.3d at 810, we pointed out in Sowders that when the alleged error is an order allowing discovery of privileged matters, rarely will appeal provide an adequate remedy. Sowders, 241 S.W.3d at 322. Appellant thus argues that her initial decision to use the consulting experts as her witnesses, and then her reversal of that decision, does not alter the fact that they remained consulting experts, protected by the work product privilege. However, the allure of Appellant’s argument is lost because whatever degree of protection Sowders afforded against the disclosure of a consulting expert’s opinions, and whatever urgency it placed upon preventing the disclosure of an attorney’s work product by deposing a consulting expert, the fact remains that the depositions in this matter have already been taken. Whatever damage to the work product privilege or attorney-client privilege that application of Sowders might have prevented, has already occurred. A writ of mandamus or prohibition serves only to prevent injury, not to remedy it.

Notwithstanding any possible disclosures of privileged information in the depositions of her three experts, Appellant argues that the Court of Appeals erred in failing to recognize that substantial injustice will result from the use of the depositions at trial by the Real Parties In Interest. Appellant argues that allowing the use of the depositions at trial unfairly allows the Real Parties In Interest the financial advantage of gaining favorable trial testimony at the expense of her time, money, and effort, and her counsel’s effort in obtaining the witnesses and securing their opinions. Appellant further notes that she will be prejudiced at trial by the insinuations of the Real Parties In Interest that those experts are due more credence because Appellant’s counsel initially hired them.

Whether the trial court erred in allowing the depositions to be taken is an interesting question, but one which we decline to address in this procedural context. Nor do we express an opinion on whether it is error to allow the use of the depositions at trial. We agree that the Court of Appeals correctly determined that such matters fall squarely within the realm of trial errors which are remediable on appeal, and we conclude that the Court of Appeals did not abuse its discretion when it denied Appellant’s petition for a writ of mandamus.

Appellant argues that she will suffer irreparable harm if she must proceed through a long and costly trial, tainted with erroneous trial court rulings, before obtaining appellate review of these perceived errors. She reminds us that medical negligence cases are “extremely expensive to practice” and asks that as we consider what falls within the description of “great and irreparable injury”, we should take into account the inefficiency of trying a case twice, the tangible costs of preparing a complex case for trial, and the intangible costs of justice delayed. Her argument suggests that the burden on all of the parties by holding a trial before these issues are resolved would justify a relaxation of our view of what constitutes “great and irreparable injury” so as to enable us to rule on the evidentiary questions that her petition poses. The members of this Court are well aware of those concerns and are sympathetic to them. However, our jurisprudence on this point is sound and was settled long ago. “[Mandamus] is a proper remedy to compel an inferior Court to adjudicate upon a subject within their jurisdiction, where they neglect or refuse to do so; but where they have adjudicated, the mandamus will not lie for the purpose of revising or correcting their decision.” See Warren County Court v. Daniel, 5 Ky. (2 Bibb) 578, 1812 WL 628 (1812). The same principle was upheld in Futrell v. Shadoan, 828 S.W.2d 649, 651 (Ky.1992) (holding that erroneous evidentiary disputes and rulings may be remedied by appeal) and noted in Hoskins, 150 S.W.3d at 19. Here, the use of the depositions at trial is purely an evidentiary issue. There is no longer a question about whether privileged or protected material will be disclosed because the depositions were taken. While mandamus may lie as a remedy to compel a trial court to decide such questions, it is not a means for reviewing the correctness of the trial court’s decision once it is made.

From the perspective of a single ease, a rule allowing for immediate interlocutory appellate review of an evidentiary issue may seem efficient and expedient. But from a larger perspective, it can be seen that the moderation of our rule to allow such appeals would impede the ability of the court system to move all cases toward an efficient resolution. Without the stringent writ standards, the resources of the appellate courts could easily be consumed with piecemeal appellate review of pretrial matters. The overall effect would be less efficiency and more costly delay in getting cases to trial. We therefore decline Appellant’s invitation to deviate from the established rule.

CONCLUSION

For the reasons set forth above, we affirm the order of the Court of Appeals denying the Appellant’s Petition for a Writ of Mandamus.

All sitting. All concur.

      . Upon Louise Roberts’s death, the action was revived in the name of Appellant as Executrix of Roberts's Estate.

      . Petitioner styled this original action as a writ of mandamus, and we have structured our review accordingly. However, it may be argued that petitioner is seeking to prohibit the court from enforcing its ruling that the depositions be admitted, which would fall more within a writ of prohibition (to prevent the trial court from acting erroneously). However, we need not elaborate upon the difference between the two types of writs and which writ best applies to these facts. Treating petitioner's argument as one for a writ of prohibition would produce the same result as the standard for issuance of either type of writ is the same. Martin v. Administrative Office of Courts, 107 S.W.3d 212, 214 (Ky.2003).

      . Having settled her claims against the Hospital, Appellant would logically adopt a trial strategy of placing as much fault as she can on the Real Parties In Interest, who in turn would have a corresponding incentive to place as much blame as possible on the Hospital, using the help of the three expert opinions that Appellant had obtained.


author: Justice NOBLE.

text:
    Jesse C. GILBERT, Appellant, v. Honorable Judith E. McDONALD-BURKMAN, Judge, Jefferson Circuit Court and Commonwealth of Kentucky; and Cecil E. New, II (Real Parties in Interest), Appellees.
    No. 2010-SC-000035-MR.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Charles E. Ricketts, Jr., Jonathan S. Ricketts, Ricketts Law Offices, PLLC, Louisville, KY, for appellant.
    Judith E. McDonald-Burkman, Jefferson Circuit Judge, Louisville, KY, appellee.
    Jack Conway, Attorney General, Raymond David Stengel, Commonwealth Attorney, Jonathan R. Heck, Assistant Commonwealth Attorney, Louisville, KY, for Real Party in Interest, Commonwealth of Kentucky.
    Brian Jay Lambert, James David Nie-haus, Deputy Appellate Defender, Office of the Louisville Metro Public Defender, Angela Marie Rea, Louisville Metro Public Defender, Louisville, KY, for Real Party in Interest, Cecil E. New, II.
   Opinion of the Court by

Justice NOBLE.

Appellant, Jesse C. Gilbert, appeals a decision of the Court of Appeals denying his petition for a writ of mandamus. Appellant sought the writ to force a circuit court judge to allow him access to a sealed discovery file in another criminal case. The Court of Appeals denied the writ because Appellant had failed to show why he was entitled to the material. The Court of Appeals is affirmed.

I. Background

In September 2007, Appellant was indicted for murder, complicity to first-degree robbery, complicity to first-degree burglary, and several other charges. The charges all stem from a series of events on July 1, 2007, that led to the death of Dennis Kellems. The Commonwealth is seeking the death penalty against Appellant. The case was assigned to Judge Frederick Cowan’s division of the Jefferson Circuit Court.

In December 2007, another man, Cecil New, was indicted on several offenses, including murder and kidnapping, for events that led to the death of a four-year-old child. His case was assigned to Judge Judith McDonald-Burkman’s division of the Jefferson Circuit Court. The allegations against New are seemingly unrelated to those against Appellant. As the case against New proceeded, the Commonwealth filed approximately 3,000 pages of written discovery in the trial court record, as required by Jefferson Circuit Court Local Rule 803(6).

In January 2008, New moved the trial court to seal all discovery that had been filed in the record. He argued that the public release of the discovery would taint potential jurors and thus deprive him of a fair trial. The Louisville Courier-Journal, a local newspaper, intervened to oppose New’s motion. The circuit court ultimately ordered that the discovery be sealed until further order of the court.

In March 2008, the Courier-Journal sought a writ of prohibition or mandamus to unseal the discovery file, arguing that its First Amendment rights would be harmed otherwise. The Court of Appeals denied the writ, and this Court affirmed that decision. See Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846 (Ky.2009).

As it turned out, Appellant and New were acquainted with one another, having been neighbors. As revealed in the discovery in Appellant’s case, the two men had intermittent contact with each other while living in the same apartment building. And according to Appellant, the pp-lice questioned him regarding the murder with which New was charged. He also claims that the police threatened to charge him with that crime.

In July 2008, while the Courier-Journal’s writ action proceeded at the Court of Appeals, one of the prosecutors in New’s case approached Appellant’s counsel about the connection between the two men. According to Appellant’s counsel, the prosecutor was interested in talking to Appellant again and suggested that just as New’s name showed up in the discovery in Appellant’s case, Appellant’s name might be mentioned in New’s discovery file. The prosecutor did not indicate how or why Appellant’s name might appear in the file in New’s case.

At this point, it is still unclear what, if any, information related to Appellant is in New’s file. However, based on Appellant’s claims to Judge McDonald-Burkman, the information appears to relate to the police’s questioning of him about the disappearance of New’s alleged child victim. Appellant claimed that this questioning showed he had direct information about the case against New and that the discovery would show he was not responsible for the murder of Dennis Kellems.

Appellant’s counsel sought access to the discovery in New’s case by way of an agreed order, but New’s counsel objected. In a letter to Appellant’s counsel, New’s counsel stated that “only a few of the nearly three-thousand (3000) pages of material ... has any relevance at all to Mr. Gilbert’s statement.” He wrote that the material in question related to “an alleged statement” by Appellant and thus “[i]t would seem that if Mr. Gilbert had any knowledge of the events he would not need to review Mr. New’s entire case file in order to recall what it is he knows.”

Appellant, as a real party in interest in New’s case, then moved the circuit court for access to the entire sealed discovery record. New’s counsel objected, arguing that Appellant sought to review the discovery only so that he could then make a statement, based on the contents of the discovery, that would incriminate New in the murder for which Appellant is charged. The clear implication from New’s counsel is that Appellant seeks to manufacture claims about New, but that he cannot do so convincingly and without obvious contradiction until he can be sure of what evidence the Commonwealth already possesses. Judge McDonald-Burkman denied Appellant’s motion, stating in her order:

The Commonwealth has filed discovery in Gilbert’s case and has an obligation to provide any and all exculpatory evidence. The Commonwealth has indicated that there is no information in New’s case which is discoverable by Gilbert or which provides exculpation. RCr 7.24 requires Gilbert [to] show that the items he seeks to review may be material to the preparation of his defense and that the request is reasonable. Gilbert has not made such a showing to this Court; he can only speculate that there is some information which may assist his own defense in his own case. Further the request is not reasonable. The Commonwealth in Gilbert’s case has the same discovery obligation as it does in this matter.

Rather than pursuing discovery in his own case before Judge Cowan — such as by making a showing that the Commonwealth actually had any exculpatory evidence— Appellant sought a writ of mandamus against Judge McDonald-Burkman related to New’s case. Specifically, Appellant asked the Court of Appeals to require Judge McDonald-Burkman to grant him access to the entire sealed discovery in the circuit court’s file.

The Court of Appeals denied the writ, holding that Appellant had not shown that Judge McDonald-Burkman was acting erroneously. The court noted that nothing in RCr 7.24 would entitle a defendant to inspect everything the Commonwealth has relating to a criminal case; rather, it entitled him only to information that is material to the preparation of his defense. As for the possibility that the file contained exculpatory evidence, the court noted that the prosecution had a continuing duty to provide Appellant with such evidence and that the circuit court had found that New’s file contained nothing exculpatory. Finally, the court noted that Appellant’s claims about the contents of the sealed record were mere speculation, which was insufficient to justify relief by writ.

Appellant appeals to this Court as a matter of right. Ky. Const. § 115.

II. Analysis

Appellant asks this Court to reverse the Court of Appeals and order that a writ of mandamus be issued against the circuit court. He also complains that the Court of Appeals improperly disregarded his motion to stay the writ proceedings.

A. Writ of Mandamus Standard

As is usually the case when dealing with one of the extraordinary writs, the best place to begin is with the test for availability of a writ. The writs of prohibition and mandamus are extraordinary in nature, and the courts of this Commonwealth “have always been cautious and conservative both in entertaining petitions for and in granting such relief.” Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961). Because of these concerns, this Court allows such writs only in limited and extreme circumstances.

To this end, the Court has articulated a strict standard to determine whether the remedy of a writ is even available to a petitioner, before examining the merits of the underlying claim. That standard, which essentially breaks writs down into two distinct classes, is as follows:

A writ of prohibition 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) that 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.

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004). In Hoskins, the Court returned to the more stringent writ standard applied in older cases, specifically Bender v. Eaton and Chamblee v. Rose, 249 S.W.2d 775 (Ky.1952), from which it had departed in the preceding two decades. Hoskins was an express attempt to reset the law of writs by removing the inconsistencies that had crept into various cases. The Hoskins test applies both to writs of prohibition and mandamus. See Cox v. Braden, 266 S.W.3d 792, 795 (Ky.2008); Hodge v. Coleman, 244 S.W.3d 102, 109 (Ky.2008); Sowders v. Lewis, 241 S.W.3d 319, 322 (Ky.2007).

B. The Standard Applied

Appellant does not dispute that the lower court has jurisdiction, but instead argues that it is acting erroneously. To this extent, he proceeds under the second class of writs articulated in Hoskins. Thus, in order for the writ to be available, Appellant must show both that “there exists no adequate remedy by appeal or otherwise” and that “great injustice and irreparable injury will result if the petition is not granted.” Hoskins, 150 S.W.3d at 10. He has failed to show either of these requirements.

1. Appellant’s Misinterpretation of Hoskins

Appellant first argues, as though implicitly recognizing that he cannot meet either requirement, that Hoskins was an attempt to increase a court’s discretion as to whether to grant a writ and that judicial economy, especially where constitutional rights are involved, is a sufficient reason to grant a writ. Under this approach, he argues, he is entitled to the writ because it would be more efficient to vindicate his constitutional rights to exculpatory evidence, to make a defense, and to due process by immediately giving him access to the sealed court record through a writ.

Appellant’s reading of Hoskins, however, is incorrect because that decision did not remove any requirements from the second class of writs. That decision did depart from the standard laid out in Southeastern United Medigroup, Inc. v. Hughes, 952 S.W.2d 195 (Ky.1997), to remove the requirement of no adequate remedy by appeal in the no-jurisdiction class of writs and, in so doing, worked to expand an appellate court’s discretion to grant the first class of writs. But that expansion of discretion was very limited and did not apply to the second class of writs. To the contrary, this Court expressly retained the requirement of no adequate remedy by appeal or otherwise in the second class. More importantly, this Court reaffirmed Bender v. Eaton, which made the requirements of the second class of writs a prerequisite for the mere availability of a writ. Hoskins, 150 S.W.3d at 10. This test requires a substantial showing, and it is specifically intended to be a hurdle to consideration of the merits of any alleged error. Cox, 266 S.W.3d at 795. As this Court explained,

The writ of mandamus, like the writ of prohibition, is extraordinary in nature. Such a writ bypasses the regular appellate process and requires significant interference with the lower courts’ administration of justice. The expedited nature of writ proceedings necessitates an abbreviated record. This magnifies the chance of incorrect rulings that would prematurely and improperly cut off the rights of litigants, if the process were not strictly scrutinized for appropriateness. As such, the specter of injustice always hovers over writ proceedings, which explains why courts of this Commonwealth are — and should be — loath to grant the extraordinary writs unless absolutely necessary. Because they fall outside the regular appellate process, especially when they are used as de facto interlocutory appeals (an increasing, undesired trend), writ petitions also consume valuable judicial resources, slow down the administration of justice (even when correctly entertained), and impose potentially unnecessary costs on litigants.

Id. Thus, Appellant is simply wrong to assert that Hoskins allows the second class of writs to be granted for reasons of judicial economy.

2. The Court of Appeals’ Consideration of the Merits

Appellant also complains that “[t]he Court of Appeals made no effort to consider whether the petition had any merit; that is, whether [the lower court] had made any error.” This too is incorrect.

In fact, the Court of Appeals skipped over the initial steps required by Hoskins and directly considered the merits. Immediately after describing the Hoskins test, the Court of Appeals wrote:

In this matter, Gilbert has failed to demonstrate that he is entitled to relief by means of a writ of mandamus because he cannot demonstrate that the Jefferson Circuit Court has acted erroneously in denying his motion to grant him access to all of the sealed discovery in the criminal prosecution of Cecil New.

(Emphasis added.) The court went on to state that RCr 7.24 entitles a criminal defendant to inspect only those materials that “may be material to the preparation of a defense,” including material exculpatory evidence. The court then noted, as the circuit court had, that the Commonwealth had filed discovery in Appellant’s own case and had a continuing duty “to provide any and all material exculpatory evidence to Gilbert.” The court then concluded that Appellant had failed to show that his request to review the entire discovery filed in New’s case was reasonable and that he could only speculate that some of the information would assist him in his defense.

Basically, the Court of Appeals did exactly what Appellant claims it did not: it addressed the merits of his claim that the circuit court erred, holding that he had not demonstrated an entitlement to the discovery material in question. In fact, it prematurely addressed the merits by failing to first analyze whether the writ was even available. Assuming that Appellant could not show that the writ was available under Hoskins, he actually received a more in-depth review than he was entitled to.

3. The Hoskins Prerequisites

This Court concludes that Appellant was not entitled to the writ because he has not satisfied either of the Hoskins prerequisites.

Appellant has failed the first requirement of showing that “there exists no adequate remedy by appeal or otherwise.” Hoskins, 150 S.W.3d at 10. He argues that if the writ does not issue and the evidence turns out to be exculpatory, any conviction he might receive would be reversed on appeal, which would require retrial. Forcing this retrial on him, he argues, would produce the “inept” outcome criticized in Chamblee, 249 S.W.2d at 777, and Hoskins, 150 S.W.3d at 11. This argument, however, is based on an incorrect reading of both Chamblee and Hoskins. Avoiding the “inept” outcome was only used as a rationale for removing the no-remedy-by-appeal requirement from the class of jurisdictional writs. However, that requirement was kept for the second, or “mere error,” class of writs. See Appalachian Regional Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53 (Ky.2007) (explaining in detail the distinction between the two classes and the test used for each).

In fact, such allegedly inept outcomes are expressly allowed under the second class of writs because the lack of an adequate remedy by appeal is the one requirement that is set in stone and unavoidable. See Bender, 343 S.W.2d at 801 (“Our cases involving controversies in this second class, where it is alleged the lower court is acting or proceeding erroneously within its jurisdiction, have consistently (apparently without exception) required the petitioner to pass the first test; i.e., he must show he has no adequate remedy by appeal or otherwise.” (emphasis added)); id. (implying that requirement is an “absolute prerequisite”).

Appellant argues that he nevertheless satisfies this requirement because an appeal would be inadequate to resolve his claim if the information he seeks would be merely helpful to his defense (and thus discoverable under RCr 7.24), rather than exculpatory. He argues that if he were forced to go to trial without this information and an appellate court found error in the trial court’s failure to allow the discovery, it would likely be considered harmless. Thus, he claims, an appeal would be an inadequate tool to vindicate his right to the information. Yet, “[w]e have consistently found the right of appeal to be an adequate remedy when the petition of a criminal defendant seeks only to correct procedural or trial errors.” Hoskins, 150 S.W.3d at 19. If the information is merely helpful but not exculpatory, then the error would be exactly that: a procedural or trial error. That such an error might be found harmless does not render an appeal an inadequate remedy and is not grounds for granting a writ. And should the information actually turn out to be exculpatory, an appeal would adequately vindicate his constitutional right to the information.

That Appellant has an adequate remedy by appeal is alone sufficient grounds to deny him the writ he seeks. However, this Court notes that he has also failed to show the second requirement that “great injustice and irreparable injury will result if the petition is not granted.” Id. at 10. Appellant argues that being forced to go through a trial without all of the available evidence is itself a great injustice. This might be the case if he could affirmatively show that the Commonwealth is withholding exculpatory evidence from him, but as the circuit court and Court of Appeals have explained, Appellant has not made such a showing. At most, he makes conclusory claims that the information might be useful to his defense or might be exculpatory without any explanation of how. This sort of raw speculation is woefully insufficient to show ruinous injury.

Indeed, the lack of ruinous injury is clear because Appellant has other, more direct ways to get the information. Appellant does not have to get the information directly from New’s sealed file or even through an order from the circuit judge in New’s case. Instead, the information — if it is exculpatory or even material to his defense — can come directly from the Commonwealth, which has presumably retained copies (or perhaps the originals) of everything that was filed in New’s case. The circuit court’s seal order applies only to the court’s file, not to the information or evidence (or copies of information or evidence) actually in the Commonwealth’s possession.

If any of that information is exculpatory, the Commonwealth, as noted by the trial court and the Court of Appeals, has a continuing duty to turn it over to Appellant. No court order is necessary. At this point, however, Appellant has not made a showing that the information might be exculpatory.

Even if the information is merely “material to the preparation of the defense,” RCr 7.24(2), rather than exculpatory, Appellant can still get it directly from the Commonwealth. All he has to do is show the materiality of the information and that his request is reasonable. The first showing, materiality, should be relatively easy since the information in question appears to relate to a statement that Appellant himself made to police. Surely he has some knowledge of the contents of any such statement. The second showing, reasonableness of the request, should be similarly easy. A more targeted request would likely be considered reasonable. All Appellant has to do is make the necessary showings to the circuit judge in his case, rather than the one in New’s case, and he would be entitled to the information he seeks. Consequently, denying Appellant’s writ would not create “great injustice and irreparable injury” because he has other, more direct ways of getting any information that could be material to his defense.

C. The Motion to Stay Proceedings

Appellant last complains that the Court of Appeals improperly ignored his unopposed motion to stay the writ proceedings. Originally, Appellant moved the Court of Appeals to expedite its decision on his petition because his trial date was approaching. Some time after filing this motion, the prosecutor informed Appellant’s counsel that he would not oppose a continuance of Appellant’s trial until after the trial of Cecil New if Appellant would withdraw or seek to stay his writ petition. Acting on this agreement, Appellant asked the Court of Appeals to stay his petition and his trial was rescheduled. When the Court of Appeals entered its order denying the writ petition, it also denied the motion to stay as moot.

Appellant claims this was improper but offers no explanation for why. He does explain that granting the stay would be to his advantage because if his trial is held after New’s, then the discovery will no longer be under seal, thus making the writ proceedings unnecessary. If anything, this shows further that the Court of Appeals properly denied the writ since any harm that Appellant might suffer is still speculative given that, even without the writ, Appellant’s trial might still occur after New’s discovery file becomes unsealed. More importantly, this Court can discern no error in the Court of Appeals’ treatment of Appellant’s motion. The court was clearly aware of the motion and did not ignore it, having dismissed it as moot rather than leaving it in limbo. That the Court did not resolve the motion in the way most beneficial to Appellant is not “ignoring” his motion and is not error.

III. Conclusion

For the foregoing reasons, the order of the Court of Appeals is affirmed.

All sitting. All concur.

      . Appellant does not claim that he meets the "certain special cases” exception to the injury requirement discussed in Bender and Hoskins. However, even if he could show that he meets the exception, the fact that he has an adequate remedy by appeal or otherwise would still prevent him from obtaining a writ, as that requirement is an absolute prerequisite.


text:
    Tim DAVIS and Tim Davis & Associates, Inc., Appellants/Cross-Appellees, v. John J. SCOTT and Whitlow & Scott, Appellees/Cross-Appellants.
    Nos. 2009-SC-000159-DG, 2009-SC-000391-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Hans George Poppe, Jr., Warner Thomas Wheat, The Poppe Law Firm, Louisville, KY, Counsel for Appellants/Cross-Appellees.
    Bethany A. Breetz, Matthew W. Breetz, Demetrius 0. Holloway, Stites & Harbi-son, PLLC, Louisville, KY, Counsel for Appellees/Cross-Appellants.
   Opinion of the Court by

Justice CUNNINGHAM.

Appellant, Tim Davis, is the founder and president of Tim Davis & Associates, Inc. (collectively, “Davis”), a third-party health care benefits administrator. In 2002, Davis negotiated to purchase PICA Group Services, Inc., also a third-party administrator. The parties executed a binding letter of intent and a supplemental “non-solicitation” agreement. The non-solicitation agreement prohibited Davis from communicating with or soliciting PICA customers for a period of fifteen months in the event that the purchase did not occur.

Indeed, Davis’s purchase of PICA did fall through. Shortly thereafter, PICA was purchased by Global Risk Management. Davis learned of Global’s purchase in February 2003, when he received a letter from Coal Exclusive, a former client of PICA. In the letter, Coal Exclusive expressed an interest in becoming a client of Davis.

Because the fifteen-month period of the non-solicitation letter was still in effect, Davis contacted his attorney, John Scott, to discuss the enforceability of the agreement in light of Global’s purchase of PICA. There is disagreement among Global, Davis, and Scott as to the exact nature of Scott’s advice during the phone call, though all agree that Scott did not expressly advise Davis to cease communications with PICA’s former clients. Eventually, Davis successfully solicited three former PICA clients.

In April of 2003, PICA notified Davis that he was in violation of the non-solicitation agreement. Davis forwarded the letter to Scott and later had a conversation about it, though neither remembers exactly what was discussed. Several months later, Global and PICA filed suit against Davis in the U.S. District Court for the Middle District of Tennessee, alleging a violation of the non-solicitation agreement.

The following year, as that case continued to proceed towards trial, Daws agreed to settle with Global. He met with Lee Henningsen, Global’s president, to discuss the terms. According to Davis, Henning-sen opined that Scott had given Daws incorrect advice and suggested Scott had violated the standard of care. Davis testified that he never thought Scott had been negligent prior to his conversation with Henningsen.

Eventually, a settlement was reached whereby Davis would pay Global $300,000. In addition, the agreement required Davis to pursue a legal malpractice claim against Scott and to assign 80% of the proceeds of that claim to Global. The pertinent provisions of the settlement agreement state:

d) TDA and/or Davis has provided written notice to Attorney John Scott (“Mr. Scott”) of TDA and/or Davis’s legal malpractice claims against Mr. Scott based on the advice that he gave TDA and/or Davis regarding the non-solicitation, non-communication and confidentiality agreement that TDA and Davis entered into with PICA Group Services, Inc. and/ or PICA, and which was an issue in the lawsuit. By execution of this Agreement, [Global] acknowledges receipt of a copy of the written notice provided by TDA and/or Davis;
e) In its discretion, [Global] will secure the services of an attorney (“Malpractice Counsel”), on behalf of TDA and/or Davis, to pursue TDA’s and /or Davis’s legal malpractice claim (“Malpractice Claim”) against Mr. Scott. TDA and Davis agree that they will act in good faith to cooperate with and use their best efforts to assist Malpractice Counsel to successfully pursue the Malpractice Claim, and TDA and Davis agree that they will not settle the Malpractice Claim without the express written consent of [Global]. TDA and/or Davis further agree that they will enter into a common interest agreement, or other appropriate agreement under Kentucky Law, with [Global] and Malpractice Counsel that allows Malpractice Counsel to communicate with [Global] about the Malpractice Claim, including the sharing of attorney-client privileged information. Any money recovered from the Malpractice Claim will, after payment of attorney’s fee and any litigation costs, be divided between [Global] and TDA and/or Davis, with 80% distributed to [Global] and 20% distributed to TDA and/or Davis. TDA’s and Davis’s commitment to use their best efforts to assist in the Malpractice Claim does not include any obligation to provide any financial assistance for the prosecution of the malpractice claim. Should [Global], for any reason, not secure the services of an attorney to pursue the Malpractice Claim, TDA and [Global] will be considered to have fulfilled their obligations under this Paragraph 1(e) of the Agreement.

The settlement agreement was executed in June of 2004 and approved by the U.S. District Court in Tennessee. In accordance with the agreement, the present action was initiated against Scott, in which Davis alleged malpractice and emotional distress. He sought to recover the $300,000 he paid to Global, attorneys’ fees and costs of both the federal litigation and the malpractice claim, and emotional distress damages. Discovery in the case was conducted for nearly two years.

In 2007, the trial court conducted oral arguments on Scott’s motion for summary judgment and numerous motions in li-mine. Ultimately, the trial court determined that the settlement agreement constituted an improper assignment of a legal malpractice claim and was void as against public policy. It dismissed Davis’s legal malpractice claim with prejudice on this basis. However, recognizing the novelty of the issue, the trial court ruled on several remaining issues, including motions to exclude expert witness testimony. Both parties appealed.

The Court of Appeals affirmed, agreeing that an improper assignment of a legal malpractice claim had occurred. The panel observed that “neither a legal malpractice claim nor the proceeds from such claim can be assigned to an adversary in the same litigation that gave rise to the alleged malpractice.” Concerning the viability of Davis’s malpractice claim, the Court of Appeals determined that the trial court is without jurisdiction to invalidate the settlement agreement and allow Davis to proceed because the settlement agreement is “a product of the federal litigation.” As such, the Court of Appeals concluded that summary judgment and dismissal with prejudice was proper in this case, rendering all other issues discussed in the summary judgment order moot.

Both parties again appealed and discretionary review was granted by this Court. For the reasons set forth herein, we affirm in part and reverse in part.

Standard of Review

On appeal from the granting of a motion for summary judgment, the appellate court must determine “whether the trial court correctly found that there were no genuine issues of any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996); CR 56.03. In considering a motion for summary judgment, the trial court must consider the evidence in a light most favorable to the non-moving party. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). Summary judgment is proper where the movant shows that the adverse party could not prevail under any circumstances. Id. Because summary judgment involves no fact finding, this Court will review the trial court’s decision de novo. 3D Enterprises Contracting Corp. v. Louisville and Jefferson County Metropolitan Sewer Dist., 174 S.W.3d 440, 445 (Ky.2005).

Assignment of Legal Malpractice Claim and its Proceeds

The primary issue in this matter is the purported assignment contained in the settlement agreement. Both parties acknowledge that Kentucky law prohibits the assignment of a legal malpractice claim. Coffey v. Jefferson County Bd. of Educ., 756 S.W.2d 155 (Ky.App.1988). This rule is predicated upon the unique and highly personal nature of the attorney-client relationship. See Associated Ins. Service, Inc. v. Garcia, 307 S.W.3d 58, 63 (Ky.2010). Scott argues that such an assignment occurred here, and that the settlement agreement is therefore void as against public policy. Davis urges, however, that no such prohibited assignment occurred, and that, in fact, merely the proceeds of the malpractice claim were assigned.

“An assignment is made when the assignor intends to assign a present right, identifies the subject matter assigned, and divests itself of control over the subject matter assigned.” 6 Am.Jur.2d Assign ments § 82 (2010). Here, the settlement agreement is clear that 80% of the proceeds of the malpractice claim against Scott are assigned to Global. The more complicated question is whether a de facto assignment of the entire malpractice claim itself has occurred.

“The creation and existence of an assignment is to be determined according to the intention of the parties, which is to be discerned not only from the instruments executed by them, if any, but from the surrounding circumstances.” 6A C.J.S. Assignments § 57 (2010). Courts will look to substance, not form, to determine whether an assignment has occurred. 6 Am.Jur.2d Assignments § 83 (2010). See also Power Grocery Co. v. Hinton, 187 Ky. 171, 218 S.W. 1013, 1018 (1920). “No particular form is necessary to constitute an assignment....” Napier v. Duff, 281 Ky. 779, 136 S.W.2d 1083, 1085 (1939). See also Patterson v. Miracle, 253 Ky. 347, 69 S.W.2d 708, 710 (1934).

Both Davis and Global contend that it was their intention to assign merely the proceeds of the malpractice claim against Scott. The surrounding circumstances, however, belie this assertion. By the terms of the settlement agreement, Global selected and retained Davis’s counsel in the malpractice action and bore the financial responsibility for the cost of suing Scott. Because Davis is obligated to bring the action, he may not withdraw the suit. Davis is not permitted to settle the malpractice claim without Global’s express written consent. Davis agreed to share privileged, attorney-client information with Global. Global retained control over the initiation, continuation and/or dismissal of the malpractice claim.

The allocation of the proceeds of the malpractice suit is also troublesome. Because Global receives the lion’s share of any judgment — 80%—its interest far outweighs Davis’s and renders Davis merely a nominal plaintiff. Also, under the assignment, Global receives a percentage of the damages awarded as opposed to a specified dollar amount. Therefore, its interest is not only in a successful claim, but a claim with the largest judgment possible. This is further indication of Global’s ownership of the lawsuit.

This level of control over a lawsuit is consistent with an assignment of the entire cause of action, not merely the proceeds of the litigation. See Greene v. Leasing Associates, Inc., 935 So.2d 21, 25 (Fla.Dist.Ct.App.2006) (noting that assignor “was not free to control the conduct of the litigation and to accept or reject any settlement offers,” in determining that prohibited assignment of legal malpractice claim occurred). See also Kim v. O’Sullivan, 133 Wash.App. 557, 137 P.3d 61 (2006) (prohibited assignment of entire legal malpractice claim occurred where assignee retained complete control over litigation and potential settlement, in addition to entire proceeds of the malpractice claim). The terms of this settlement agreement essentially placed the control of the malpractice suit in Global’s hands and rendered Davis’s interest merely nominal. Though Global and Davis assert otherwise, what has occurred is an assignment not merely of the proceeds of the claim against Scott, but of the entire claim itself. Kentucky law does not permit an assignment of a legal malpractice claim.

Effect of Improper Assignment

We now turn to the more difficult question in this case: what is the proper remedy? As both parties acknowledge, the general rule is that an invalid assignment has no effect on the validity of the underlying action. “[I]f an assignment is invalid or incomplete, the assignor may still maintain a suit in his or her name.” 6 Am. Jur.2d Assignments § 122 (2010). Thus, it would follow that Davis can pursue his malpractice claim as the real party in interest, as opposed to simply a nominal plaintiff. Indeed, several other jurisdictions considering similar circumstances have acknowledged that the underlying legal malpractice claim survives an invalid assignment. See Weiss v. Leatherberry, 863 So.2d 368, 373 (Fla.Dist.Ct.App.2003) (remanding matter to trial court because “invalidity of the agreement [to assign] has no effect on the underlying cause of action for legal malpractice”). See also Botma v. Huser, 202 Ariz. 14, 39 P.3d 538, 542 (2002); Weston v. Dowty, 163 Mich.App. 238, 414 N.W.2d 165, 167 (1987); Tate v. Goins, et al., 24 S.W.3d 627, 635 (Tex.App.2000).

However, while we agree that Davis has not forfeited his claim, we also cannot ignore the fact that the present suit was born of the invalid assignment and is, therefore, tainted in some respect. As stated by the Court of Appeals of Arizona, to allow Davis to proceed on the present claim would be “to wink at the rule against assignment of legal malpractice claims.” Botma, 39 P.3d at 543. Moreover, this matter is complicated by the fact that the invalid assignment was made pursuant to a settlement agreement that has been approved by a federal district court.

The parties dispute the effect the settlement agreement has on the viability of the malpractice claim. Scott argues that the trial court is without jurisdiction to alter the agreement because it was approved by the federal district court and, therefore, may only be modified by that court. Davis argues that the agreement is void ab initio because the assignment is prohibited by Kentucky law.

We reject Davis’s claim that the agreement is void. The assignment reflects only a portion of the overall agreement between Global and Davis. The invalidity of the assignment provision does not automatically void the entire agreement.

We cannot necessarily, however, accept Scott’s assertion that the agreement may only be modified by the federal district court. It is unclear from the record before this Court whether the settlement agreement was made a part of the federal district court judgment, therefore, making it subject to that court’s continued jurisdiction. At any rate, by its own terms, the agreement may only be modified with the approval of both Global and Davis.

We believe the most appropriate solution under these circumstances is to remand the matter to the circuit court with directions to dismiss Davis’s complaint without prejudice. As stated above, though Davis has not forfeited his malpractice claim, the current suit, born of the improper assignment, cannot be permitted to continue. Should Davis wish to reassert his claim against Scott, he will be able to do so only upon a showing that the attempted assignment is no longer in place and that he is the real party in interest.

For the foregoing reasons, the opinion of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the Hardin Circuit Court for proceedings consistent with this opinion.

All sitting. All concur.