Brightmore Home Care of Kentucky, LLC v. Commonwealth of Kentucky Cabinet for Health and Family Services

RENDERED: JANUARY 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1409-MR

BRIGHTMORE HOME CARE OF KENTUCKY LLC;
JOHN FALLS; CHAD SHUMWAY; AND
TRAVIS SHUMWAY APPELLANTS

APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 18-CI-00100

COMMONWEALTH OF KENTUCKY, CABINET
FOR HEALTH AND FAMILY SERVICES, OFFICE
OF INSPECTOR GENERAL, DIVISION OF
CERTIFICATE OF NEED; COMMONWEALTH
OF KENTUCKY, CABINET FOR HEALTH AND
FAMILY SERVICES, DIVISION OF ADMINISTRATIVE
HEARINGS, HEALTH SERVICES ADMINISTRATIVE
HEARINGS BRANCH; AND PROFESSIONAL CASE
MANAGEMENT OF KENTUCKY, LLC D/B/A
PROFESSIONAL CASE MANAGEMENT APPELLEES

OPINION
REVERSING AND REMANDING

** ** ** ** **

BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Brightmore Home Care of Kentucky LLC, John Falls,

Chad Shumway, and Travis Shumway appeal from an order of the Franklin Circuit

Court which denied a petition for writ of prohibition seeking to prohibit an

administrative law judge from the Cabinet for Health and Family Services from

issuing subpoenas to out-of-state, nonresident witnesses. Appellants argue that the

Cabinet does not have the authority to issue subpoenas to out-of-state witnesses

and compel them to testify in person during an administrative hearing in Kentucky.

We believe that the circuit court erred in denying the writ. We agree with

Appellants that the Cabinet does not have the authority to subpoena out-of-state

witnesses; therefore, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On January 25, 2017, Brightmore and Professional Case Management

of Kentucky, LLC d/b/a Professional Case Management (hereinafter referred to as

PCM) filed certificate of need (hereinafter referred to as CON) applications to

provide private duty nursing services in some of the same Western Kentucky

counties. The Cabinet scheduled a comparative administrative CON hearing to

determine which LLC would be granted the CON. In anticipation of the hearing,

PCM requested that the administrative law judge (hereinafter referred to as ALJ)

assigned to the case issue subpoenas to Mr. Falls and Messrs. Shumway. These

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gentlemen are all member/owners of Brightmore. Mr. Falls lives in Wyoming, and

Messrs. Shumway live in Utah.

On April 28, 2017, the ALJ issued the subpoenas. On May 1, 2017,

Brightmore moved to quash the subpoenas. Brightmore argued that the Cabinet

did not possess the legal authority to subpoena these individuals because they lived

out-of-state and were outside the jurisdiction of the Cabinet. On May 3, 2017,

PCM asked that the Cabinet reissue the subpoenas but serve them on Brightmore’s

registered agent in Kentucky. Once again, the ALJ approved the subpoenas and

issued them upon Brightmore’s registered agent in Kentucky.

Brightmore and PCM then briefed the issues raised in the motion to

quash. Without formally ruling on the motion, the ALJ notified the parties that it

expected Mr. Falls and Messrs. Shumway to comply with the subpoenas and

appear at the CON hearing. The ALJ further stated that if these individuals did not

appear, she would grant PCM’s request for an adverse inference against

Brightmore. Brightmore then moved the ALJ to formally rule on the motion to

quash. The ALJ eventually summarily denied Brightmore’s motion.

On February 1, 2018, Appellants sought declaratory relief, a writ of

prohibition, and permanent injunctive relief from the Franklin Circuit Court.

Again, Appellants argued that the Cabinet was acting outside the scope of its

jurisdiction by attempting to subpoena out-of-state witnesses and require them to

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testify at the hearing. Appellants also argued it would be erroneous for the ALJ to

apply an adverse inference if Mr. Falls and Messrs. Shumway did not testify. PCM

argued that the ALJ was acting within the scope of her authority. The Cabinet also

filed a brief in the circuit court and agreed with Appellants that the ALJ was

without authority to subpoena out-of-state witnesses or apply an adverse inference

against Brightmore.1

On September 5, 2019, the circuit court entered an order denying

Appellants’ petition and affirming the issuance of the subpoenas. The court held

that Kentucky’s long-arm statute, Kentucky Revised Statutes (KRS) 454.210,

authorized the ALJ to issue the subpoenas. The court also held that KRS 454.210

allowed PCM to issue the subpoenas to Brightmore’s Kentucky agent. This appeal

followed.

ANALYSIS

Appellant argues on appeal that the Cabinet and ALJ did not have the

authority to issue the subpoenas and that the Cabinet was acting outside of its

jurisdiction; therefore, the circuit court should have granted the writ of prohibition.

We agree.

1
In CON proceedings, the ALJ is the final arbiter of the issue. There is no appeal to or review
by a higher administrative authority, like the Secretary of the Cabinet for Health and Family
Services. The first appeal goes directly to the circuit court. This explains why the Cabinet filed
a brief in the circuit court which agreed with Appellants, but it was unable to stop the subpoenas
at the administrative level.

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 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). Here, the circuit court held that

the ALJ was acting within her jurisdiction by issuing the subpoenas because

Kentucky’s long-arm statute, KRS 454.210, allowed it. The court held that

because Mr. Falls and Messrs. Shumway are members of Brightmore and the

subpoenas were served upon Brightmore’s registered agent in Kentucky, the long-

arm statute providing for the service of process upon a registered agent, namely

KRS 454.210(3), applies. The circuit court also held that it would not be a great

injustice to require Mr. Falls and Messrs. Shumway to appear because they are

member/owners of Brightmore. Finally, the circuit court held that Appellants had

an adequate remedy by appeal, which would preclude the granting of a writ.

We believe the circuit court was incorrect in its conclusion that the

ALJ was acting within her jurisdiction. “It is fundamental that administrative

agencies are creatures of statute and must find within the statute warrant for the

exercise of any authority which they claim.” Dep’t for Nat. Resources and

Environmental Protection v. Stearns Coal & Lumber Co., 563 S.W.2d 471, 473

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(Ky. 1978) (citation omitted). Here, KRS 454.210 states that a “court may

exercise personal jurisdiction over a person” who transacts business in the

Commonwealth. KRS 454.210(2)(a) (emphasis added). Kentucky’s long-arm

statute only refers to courts and does not mention administrative bodies; therefore,

it would seem it does not apply to this case. “We must interpret statutes as written,

without adding any language to the statute[.]” Commonwealth v. Chestnut, 250

S.W.3d 655, 661 (Ky. 2008) (citation omitted). In addition, the wording of KRS

454.210 indicates it only applies to the issuance of a summons to a defendant upon

the filing of a complaint. Nothing in this statute discusses subpoenas or witnesses.

Finally, serving a subpoena on an LLC, or its agent, is not the same as serving a

subpoena on a member of that LLC. LLCs and their members are separate and

distinct entities. Turner v. Andrew, 413 S.W.3d 272, 275-76 (Ky. 2013).

Finally, PCM argues the Cabinet has jurisdiction over the witnesses

because of their ownership of Brightmore, relying on KRS 275.335(6) and

International Union of Operating Eng’rs v. Bryan, 255 S.W.2d 471, 474 (Ky.

1953). However, PCM’s argument is misplaced. As stated above, serving a

subpoena on an LLC, or its agent, is not the same as serving a subpoena on a

member of that LLC. LLCs and their members are separate and distinct entities.

Turner, 413 S.W.3d at 275-76.

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 To discover the power the Cabinet has in issuing summonses, we must

look to KRS 216B.040. KRS 216B.040(3)(b) states, in pertinent part, that the

Cabinet may “[a]dminister oaths, issue subpoenas, subpoenas duces tecum, and all

necessary process in proceedings brought before or initiated by the cabinet, and the

process shall extend to all parts of the Commonwealth.” (Emphasis added.)

Another statute to consider is KRS 216B.085(1), which states that a Cabinet

hearing officer or ALJ “shall be authorized to administer oaths, issue subpoenas,

subpoenas duces tecum, and all necessary process in the proceedings.” Like KRS

216B.040, this statute allows for the issuance of subpoenas, but it does not have

any limiting language.

It is a basic rule of construction that “[w]here there is an
apparent conflict between statutes or sections thereof, it
is the duty of the court to try to harmonize the
interpretation of the law so as to give effect to both
sections or statutes if possible.” In the same vein, “[i]t is
well settled that two or more acts dealing with the same
subject matter must be construed in pari materia, and any
apparent conflict between them must be reconciled, if
possible, so as to give effect to both.”

Galloway v. Fletcher, 241 S.W.3d 819, 823 (Ky. App. 2007) (citations omitted).

In order to harmonize these two statutes, we must rely on the language

found in KRS 216B.040 that limits subpoena power to the borders of the

Commonwealth. To do otherwise would require us to hold the limiting language

meaningless. This interpretation is supported by case law which states that “[t]he

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Commonwealth has no power to subpoena witnesses over which it has no

jurisdiction.” Dillingham v. Commonwealth, 995 S.W.2d 377, 382 (Ky. 1999)

(citing Hey v. Emerson, 142 Ky. 767, 135 S.W. 294 (1911)). Here, Mr. Falls and

Messrs. Shumway are not located within the Commonwealth; therefore, the

Cabinet does not have the power to subpoena them.

Since the circuit court erred in holding that the ALJ was acting within

her jurisdiction, we must analyze this case to determine whether a writ of

prohibition is required due to the ALJ acting outside her jurisdiction. “Relief by

way of prohibition or mandamus is an extraordinary remedy and we 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). We believe that

this case requires the issuance of the writ of prohibition requested by Appellants.

As previously stated, the Cabinet only has powers as authorized by

statute. Stearns Coal & Lumber Co., 563 S.W.2d at 473. As discussed supra,

there is no mechanism that allows for the Cabinet to subpoena a witness who is not

within the borders of the Commonwealth. Furthermore, it is Brightmore’s

responsibility to prove to the ALJ that it should receive a CON. If Mr. Falls and

Messrs. Shumway would be the best witnesses to provide evidence but are not

utilized, any negative outcome would be the fault of Brightmore. Forcing them to

testify and then applying a negative inference when they do not testify could be

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seen as an arbitrary and unreasonable outcome in CON proceedings. In order to

obtain a CON, an applicant must meet certain requirements set forth in the

Cabinet’s State Health Plan, which is incorporated into the Kentucky

Administrative Regulations (KAR) pursuant to 900 KAR 5:020. Additional

criteria are found in KRS 216B.040(2)(a)2. If Brightmore were to meet all

requirements to receive a CON, but were still denied one because of a negative

inference, this could be seen as an arbitrary outcome.

Additionally, the Cabinet agrees with Appellants. During the circuit

court’s hearing on this issue, counsel for the Cabinet indicated that it could not

make a good-faith argument that it had subpoena powers over out-of-state

individuals based on the wording of the statutes discussed above. Counsel also

indicated the Cabinet was concerned about the use of a negative inference when it

cannot be reviewed by the Secretary of the Cabinet before a final CON decision is

made.

Finally, case law supports our decision. “[I]t would be a most inept

ruling to deny the writ, require a trial on the merits, and then on an appeal be

forced to reverse the case on the very question which is now before us.” Chamblee

v. Rose, 249 S.W.2d 775, 777 (Ky. 1952). Additionally, “[i]t has been held that the

remedy by way of appeal is not the controlling consideration where the inferior

court is without jurisdiction.” Id. As discussed above, the ALJ does not have the

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authority to force out-of-state witnesses to come to Kentucky to testify. If

Brightmore’s CON application were to be denied due to Mr. Falls and Messrs.

Shumway not testifying and the ALJ using an adverse inference, it would invite an

appeal to the circuit court and be reversed.

CONCLUSION

While the issuing of subpoenas may seem like a simple evidentiary

issue, it is not. It goes to the jurisdiction of the Cabinet and whether this Court

should allow it to exercise powers it does not have. Based on the foregoing, we

conclude that the circuit court erred in not granting Appellants’ petition for a writ

of prohibition.

Even though a writ of prohibition is an
extraordinary remedy, not to be substituted for appeal,
we hold that such a remedy is appropriate in a proper
case to prevent a lower court [or administrative agency]
from exceeding the lawful power or authority with which
it is invested or from assuming some power not
authorized by law even though the case before it may be
one over which the court [or agency] has general
jurisdiction. . . . Under such circumstances a proper,
though extraordinary, remedy is a writ of prohibition. In
these instances, the injustice being restrained is the
arrogation of . . . power.

Corns v. Transportation Cabinet, Dep’t of Highways, Commonwealth of Ky., 814

S.W.2d 574, 578 (Ky. 1991) (citation omitted). The Cabinet does not have the

authority to subpoena out-of-state witnesses; therefore, we must reverse and

remand. On remand, the circuit court shall issue the writ requested by Appellants.

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 GOODWINE, JUDGE, CONCURS.

K. THOMPSON, JUDGE, CONCURS IN RESULT ONLY AND

FILES SEPARATE OPINION.

THOMPSON, K., JUDGE, CONCURRING IN RESULT ONLY: I

agree with the majority opinion that Kentucky’s long-arm statute does not permit

subpoenas to be issued against individual members of an LLC for service through

the LLC’s registered agent in Kentucky. The subpoenas for the Messrs. Shumway

and Mr. Falls which required them to appear to give testimony in Kentucky should

have been quashed as Brightmore Home Care of Kentucky, LLC, requested. It

would be inappropriate for the Commonwealth of Kentucky, Cabinet for Health

and Family Services (Cabinet) to draw an adverse inference based on the absence

of witnesses who were not properly compelled failing to appear before it.

Therefore, I agree that reversing for the circuit court to grant the writ of prohibition

is appropriate.

However, I write separately to express my opinion that the Cabinet

could have properly secured the testimony of the witnesses through deposition in

their home states. While Kentucky Revised Statutes (KRS) 216B.040(3)(b) does

not authorize compelling out-of-state witnesses to appear before the Cabinet in

Kentucky, this does not mean that the Cabinet cannot issue subpoenas which could

then provide the basis for courts in the witnesses’ home states, who have

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jurisdiction over them, to issue their own subpoenas in reliance upon Cabinet

subpoenas.

As to the Messrs. Shumway, who live in Utah, this could be done by

using the Uniform Interstate Depositions and Discovery Act (UIDDA). Uniform

Law Commission, Interstate Depositions and Discovery Act (2007),

https://www.uniformlaws.org/viewdocument/final-act-

2007?CommunityKey=181202a2-172d-46a1-8dcc-cdb495621d35 (last visited

Dec. 17, 2020).

The UIDDA allows for domestication of subpoenas so that a witness

may be deposed where the witness lives. The UIDDA provides a procedure for

out-of-state parties to come into a state and submit a foreign subpoena to the

relevant court to issue its own subpoena allowing for depositions and inspection of

documents, without having to enter an appearance in court. Our codification of the

UIDDA is in KRS 421.360.

Utah has adopted the UIDDA, and it appears in Title 78b of its

Judicial Code. Pursuant to the UIDDA, in Utah “[t]o request issuance of a

subpoena under [the UIDDA], a party must submit a foreign subpoena to a court in

the judicial district in which discovery is sought to be conducted in Utah.” Utah

Code Ann. § 78B-17-201(1)(a).

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 The UIDDA definitions of a “foreign subpoena” and “subpoena[,]”

which appear in both Utah’s Code and the KRS, state that it is a document “issued

under authority of a court of record[.]” Utah Code Ann. § 78B-17-102(2), (5);

KRS 421.360(2)(b), (e). Under the section three of the UIDDA, which concerns

issuance of a subpoena, the comments state, “A ‘Court of Record’ includes anyone

who is authorized to issue a subpoena under the laws of that state, which usually

includes an attorney of record for a party in the proceeding.” Uniform Law

Commission, Interstate Depositions and Discovery Act. As the Cabinet was

permitted under KRS 216B.040(3)(b) to issue subpoenas, I believe it qualifies as a

court of record and subpoenas it issued that were valid in Kentucky could certainly

be the basis for obtaining subpoenas in Utah through the UIDDA.

As for Mr. Falls, who lives in Wyoming, a state that has not adopted

the UIDDA and is still governed under the 1920 Uniform Foreign Depositions Act

(UFDA), the Cabinet would have to proceed under that law:

Whenever any mandate, writ or commission is issued
from any court of record in any foreign jurisdiction, or
whenever upon notice or agreement it is required to take
the testimony of a witness in this state, the witness may
be compelled to appear and testify in the same manner
and by the same process as employed for taking
testimony in matters pending in the courts of this state.

Wyo. Stat. Ann. § 1-12-115. See generally Victoria Bushnell, How to Take an

Out-of-State Deposition, 14-FEB Utah B.J. 28 (2001) (explaining the different

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systems in place for taking out-of-state depositions before the adoption of the

UIDDA).

Other possible solutions to obtain needed testimony could include

negotiating for the witnesses to consent to give virtual testimony over the internet

using a platform such as Facetime, Zoom, Skype, Microsoft Teams or similar

options, the old fashioned telephonic testimony, or providing transportation and

other reasonable, necessary expenses to facilitate travel for in-person testimony in

Kentucky.

While the Cabinet could not compel the witnesses to appear before it,

the Cabinet could have properly obtained the needed information through

deposition testimony taken from the witnesses in their home states.

Accordingly, I concur.

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BRIEFS AND ORAL ARGUMENT BRIEF FOR APPELLEE
FOR APPELLANTS: PROFESSIONAL CASE
MANAGEMENT OF KENTUCKY,
Holly Turner Curry LLC:
Frankfort, Kentucky
Peter L. Thurman
Brent R. Baughman
Kyle W. Miller
Louisville, Kentucky

ORAL ARGUMENT FOR
APPELLEE PROFESSIONAL CASE
MANAGEMENT OF KENTUCKY,
LLC:

Brent R. Baughman
Peter L. Thurman
Louisville, Kentucky

NO BRIEF FILED FOR APPELLEE
CABINET FOR HEALTH AND
FAMILY SERVICES.

ORAL ARGUMENT FOR
APPELLEE CABINET FOR
HEALTH AND FAMILY SERVICES
APPELLEES:

Olivia Peterson
Frankfort, Kentucky

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