IMPORTANTNOTICE
NOT TO BE PUBLISHE&OPINION
THIS OPINION ISDESIGNATED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIC PROCEDURE PROMULGATED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTUORITY INANY OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : MAY 18, 2006
NOT TO BE PUBLISHED
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2005-SC-0837-MR
KINDRED HEALTHCARE, INC. ; APPELLANTS
KINDRED HEALTHCARE OPERATING,
INC. ; AND KINDRED NURSING
CENTERS LIMITED PARTNERSHIP
D/B/A DANVILLE CENTRE FOR HEALTH
AND REHABILITATION
APPEAL FROM ORIGINAL ACTION IN COURT OF APPEALS
V 2005-CA-1502
HONORABLE DARREN W. PECKLER, APPELLEE
JUDGE, BOYLE CIRCUIT COURT
AND
NONA SUE YOUNG, AS POWER OF APPELLEE
ATTORNEY OF LUCILLE DEAN
(REAL PARTY IN INTEREST)
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On December 15, 2003, Lucille Dean was admitted to the Danville Centre for
Health and Rehabilitation ("Danville Centre") by Nona Sue Young, her attorney-in-fact
and daughter . The Danville Centre is a nursing home facility in Danville, Kentucky,
operated by Appellant, Kindred Healthcare, Inc . ("Kindred") .' As a part of the admission
procedure, Young, on behalf of Dean, signed several admissions documents, among
them an alternative dispute resolution ("ADR") agreement that provided for the
resolution of all disputes through arbitration .
On March 9, 2005, Young filed suit in the Boyle Circuit Court against Appellant
for its alleged negligence in providing medical and nursing care for Dean and for willful
violations of Dean's statutory rights, KRS 216.515, arising from Dean's residence in the
Danville Centre . On April 5, 2005, Kindred moved the trial court to dismiss Dean's suit
and order arbitration, KRS 417.060(1), or, in the alternative, to stay proceedings
pending arbitration of the issues for which Dean sued Kindred, KRS 417.060(4) . On
May 23, 2005, the trial judge ordered limited discovery on the sole issue of whether the
arbitration agreement in the contract executed by Young on behalf of Dean was void .
KRS 417 .050.
On June 13, 2005, Kindred filed a motion in the same court for emergency
protection from the discovery order, CR 26.03(1)(a) & (d), alleging that the requested
discovery was irrelevant and beyond the permissible scope of the May 23 discovery
order. In its CR 26.03 motion, Kindred objected to three "inappropriate" categories of
discovery requests by Dean : (1) "Requests directed toward ADR agreements between
[Kindred] and residents other than Lucille Dean ;" (2) "Requests directed toward the
relationship between [Kindred] and the service that administers the ADR program ;" and
' The Appellants in this suit are actually three related business associations : Kindred
Healthcare, Inc. ; Kindred Healthcare Operating, Inc . ; and Kindred Nursing Centers
Limited Partnership d/b/a Danville Centre for Health and Rehabilitation . Each has the
same agent for service of process .
2 Kindred's motion was not sustained or overruled ; the order stated that "Defendants
may . . . renew their motion regarding enforcement of the Alternative Dispute Resolution
Agreement" following the ordered discovery .
- 2-
(3) "Requests that seek information regarding [Kindred's] internal development of and
training for their ADR program ." On July 11, 2005, the Boyle Circuit Court denied
Kindred's motion .
On July 18, 2005, Kindred petitioned the Court of Appeals for a writ to prohibit
Boyle Circuit Judge Peckler from presiding over the challenge to the ADR agreement or
from enforcing his discovery order, CR 76 .36, arguing that the court lacked jurisdiction
to refuse to order the parties to submit to arbitration and to order discovery on the issue ;
and alternatively that it acted erroneously, albeit with jurisdiction, in ordering "broad
nationwide discovery" that is "not rationally related to the existence of an ADR
agreement ." Kindred alleged further that it would suffer great and irreparable harm and
that a miscarriage of justice would result if the Court of Appeals did not issue the writ.
On October 11, 2005, the Court of Appeals denied Appellant's petition. Appellant
appeals to*this Court as a matter of right, Ky. Const . § 115 ; CR 76 .36(7)(a), arguing that
the Court of Appeals abused its discretion. Finding no error, we affirm.
1 . WRIT OF PROHIBITION .
"A writ of prohibition is an 'extraordinary remedy and we have always been
cautious and conservative both in entertaining petitions for and in granting such relief."'
Grange Mut. Ins. Co. v. Trude , 151 S.W.3d 803, 808 (Ky. 2004) (quoting Bender v.
Eaton , 343 S.W.2d 799, 800 (Ky. 1961)) . When sought against a circuit court judge, a
writ of prohibition is an original action filed in the Court of Appeals . CR 76 .36 & 81 ;
SCR 1 .030(3) ; Trude , 151 S.W.3d at 809. Whether to grant a writ of prohibition rests
within the sound discretion of the court of original jurisdiction, and the standard of
3 A circuit court may hear an original action for a writ of prohibition against a district
court judge. SCR 1 .040(6); Trude, 151 S.W .3d at 809 n.14.
- 3-
review is abuse of discretion, Trude , 151 S .W.3d at 809-10 ; Hoskins v. Maricle , 150
S.W.3d 1, 9 (Ky. 2004); Lexington Pub . Library v. Clark, 90 S.W .3d 53, 62-63 (Ky.
2002), i.e. , "whether the [inferior court] judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v.
Thompson , 11 S.W .3d 575, 581 (Ky. 2000). Writ cases are divided into two classes:
(1) those where the inferior court is allegedly acting without jurisdiction; and (2) those
where it is allegedly acting erroneously, but within its jurisdiction . Hoskins , 150 S.W.3d
at 6 ; Bender, 343 S .W .2d at 800-01 . In either class of case, the court of original
jurisdiction may issue an extraordinary writ
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 , 150 S.W.3d at 10; see also Trude , 151 S .W .3d at 808; Bender , 343 S.W.2d at
800-01 .
Although we review the decision to grant or deny a writ for an abuse of
discretion, the applicable standard of review in such cases is multifaceted and warrants
further explanation .
De novo review will occur most often under the first class of writ cases,
i.e. , where the lower court is alleged to be acting outside its jurisdiction,
because jurisdiction is generally only a question of law. . . . But in most of
the cases under the second class of writ casesJ43 i .e . , where the lower
court is acting within its jurisdiction but in error, the court with which the
petition for a writ is filed only reaches the decision as to issuance of the
writ once it finds the existence of the conditions precedent, i.e. , no
adequate remedy on appeal, and great and irreparable harm . If these
4 Some writ cases under the second class of cases concern matters of privilege, which
are issues of law and are thus reviewed de novo. Trude, 151 S .W .3d at 808; Clark, 90
S.W .3d at 62.
procedural prerequisites for a writ are satisfied, whether to grant or deny a
petition for a writ is within the lower court's discretion .
But the requirement that the court must make a factual finding of
great and irreparable harm before exercising discretion as to whether to
grant the writ then requires a third standard of review, i.e. , clear error, in
some cases. This is supported by the fact that the petition for a writ is an
original action in which the court that hears the petition, in this case the
Court of Appeals, acts as a trial court. And findings of fact by a trial court
are reviewed for clear error. Therefore, if on appeal the error is alleged to
lie in the findings of fact, then the appellate court must review the findings
of fact for clear error before reviewing the decision to grant or deny the
petition.
Trude, 151 S .W.3d at 810 (citations and footnotes omitted) . Thus, we review the Court
of Appeals' jurisdictional determination de novo and its factual findings regarding the
"conditions precedent" to the issuance of a writ for clear error; only then, if the
conditions have been met, do we review its decision to deny the writ for an abuse of
discretion .
Because Appellant claims that the Boyle Circuit Court is acting without
jurisdiction and, alternatively, that it is acting erroneously within its proper jurisdiction,
we analyze each claim independently .
A. Scope of Circuit Court Jurisdiction .
Appellant asserts that KRS Chapter 417, Kentucky's analogue to the Uniform
Arbitration Act, see KRS 417.045, deprives the trial court of jurisdiction when a valid
arbitration agreement exists between parties, reserving for the trial court jurisdiction only
to determine the validity of an arbitration agreement when contested . Appellant argues
further that because Dean cannot establish fraud in the inducement or unconscionability
for the arbitration agreement, the signature by Dean's attorney-in-fact binds her to its
terms; ergo, the Boyle Circuit Court lacks jurisdiction to order discovery of any materials
pertaining to anything other than the arbitration agreement signed by Dean and the
factual context in which it was presented and signed.
KRS 417.050 reads in pertinent part:
A written agreement to submit any existing controversy to arbitration or a
provision in written contract to submit to arbitration any controversy
thereafter arising between the parties is valid, enforceable and
irrevocable, save upon such grounds as exist at law for the revocation of
any contract .
(Emphasis added.) KRS 417.060 states, inter alia:
(1) On application of a party showing an agreement described in KRS
417.050, and the opposing party's refusal to arbitrate, the court
shall order the parties to proceed with arbitration. If the opposing
party denies the existence of the agreement to arbitrate, the court
shall proceed summarily to the determination of the issue so raised .
The court shall order arbitration if found for the moving party;
otherwise, the application shall be denied.
(Emphasis added.) The emphasized language in KRS 417 .060(1) is a saving clause,
reserving from the grant of jurisdiction to an arbitration forum issues as to the existence
or validity of the ADR agreement . See EEOC v. Waffle House, Inc., 534 U.S . 279, 294,
122 S.Ct. 754, 764,151 L.Ed.2d 755 (2002) (applying Federal Arbitration Act)
;
Louisville Peterbilt . Inc. v. Cox, 132 S .W.3d 850, 854 (Ky . 2004) ; Conseco Fin.
Servicing Corp. v. Wilder, 47 S.W.3d 335, 339-40 (Ky. App. 2001); Beyt, Rish, Robbins
Group v. Appalachian Reg'I Healthcare, Inc . , 854 S.W .2d 784, 786 (Ky. App. 1993) ; but
see Saneii v. Robards , 187 F. Supp. 2d 710, 713-14 (W.D. Ky. 2001) (when entire
contract, rather than arbitration agreement specifically, is challenged on basis of fraud,
and when arbitration agreement includes claims of fraud within its scope, trial court
lacks jurisdiction and must order arbitration) ; Cox, 132 S.W.3d at 855.
Although "any doubts concerning the scope of arbitrable issues should be
resolved in favor of arbitration," Moses H. Cone Mem'I Hosp. v. Mercury Constr. Corp . ,
5 Kentucky courts interpret the Kentucky Uniform Arbitration Act consistently with the
Federal Arbitration Act. Louisville Peterbilt . Inc. v. Cox, 132 S.W .3d 850, 855-56 (Ky .
2004) .
460 U.S . 1, 24-25,103 S .Ct. 927, 941, 74 L.Ed.2d 765 (1983) (emphasis added), the
existence of a valid arbitration agreement as a threshold matter must first be resolved .
First Options of Chicago, Inc . v. Kaplan , 514 U .S . 938, 944,115 S.Ct. 1920, 1924, 131
L .Ed .2d 985 (1995). "The [Kentucky Arbitration] Act is a straightforward expression of
public policy in favor of enforcement of arbitration agreements, save upon such grounds
as exist at law for the revocation of any contract . KRS 417 .050." Beyt, Rish, Robbins
Group, 854 S.W .2d at 786 (quotation omitted) .
A contract may be rescinded or voided on the basis of, inter alia, fraud,
unconscionability, mutual mistake, or illegality. See , ea, Wilder, 47 S .W .3d at 341-42 ;
Jones v. White Sulphur Springs Farm, Inc. , 605 S.W.2d 38, 42 (Ky. App. 1980) .
Although an arbitration agreement is not unconscionable merely because the arbitral
rights of the parties are imbalanced, Wilder, 47 S.W.3d at 343, an arbitration agreement
may be unconscionable, and therefore unenforceable, if the arbitral forum is biased or
the terms of the arbitration are so one-sided that no reasonable person would willingly
enter into such an agreement . Id. at 342; see generally Floss v. Ryan's Family Stea
Houses, Inc. , 211 F .3d 306 (6th Cir. 2000) . Thus, the Boyle Circuit Court has
jurisdiction under KRS 417.050 to entertain Dean's claim that the ADR agreement is
void .
"Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action . . . ." CR 26.02(1) .
Although the court has a duty to keep the inquiry within reasonable grounds, Carpenter
v. Wells, 358 S.W.2d 524, 526 (Ky. 1962), relevancy is more broadly construed for
purposes of discovery than admissibility at trial. Ewing v. May, 705 S.W.2d 910, 912
(Ky. 1986) . "It is not necessary that the information sought be admissible as competent
evidence at trial ." Id. A trial court has broad discretion in ordering discovery . Metro .
Prop . & Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31, 36 (Ky. 2003); Berry v.
Commonwealth , 782 S.W.2d 625, 627-28 (Ky. 1990) ; Sexton v. Bates, 41 S .W.3d 452,
455 (Ky. App. 2001).
Clearly, the Boyle Circuit Court has jurisdiction over this limited issue, and an
exercise of discretion regarding discovery with respect to this issue does not deprive it
of such. Therefore, Appellant's claim that the Boyle Circuit Court lacks jurisdiction is
without merit.
B . Erroneous Action within Jurisdiction .
When an extraordinary writ is sought against a court for allegedly acting
erroneously, albeit with proper jurisdiction, a proponent must first make a factual
showing that (a) no other adequate remedy exists, and (b) great and irreparable harm
will result from the alleged error if the writ is denied. Bender, 343 S.W.2d at 800-01 ;
Chamblee v. Rose, 249 S.W .2d 775, 776-77 (Ky. 1952) . These factual showings are
conditions precedent to the grant of a writ of prohibition, without which relief is ordinarily
denied . Hoskins , 150 S .W .3d at 9 ("[O]nly after determining that the prerequisites exist
will the court decide whether an error occurred for which a writ should issue."); Bender ,
343 S .W.2d at 801 ; Chamblee , 249 S.W.2d at 776-77 . Under this rule, although a court
of original jurisdiction has broad discretion regarding whether to entertain a writ of
prohibition, its findings relating to these criteria are accepted as true unless shown to be
clearly erroneous. CR 52.01 ; Trude, 151 S .W.3d at 810; Miller v. Eldridge , 146 S .W.3d
909, 915 (Ky. 2004) ; Stidham v. Clark, 74 S.W.3d 719, 722 (Ky. 2002) . Because the
Court of Appeals is the court of original jurisdiction over Appellant's writ of prohibition,
the requisite factual findings made by it under KRE 104(a) and CR 26.02 are
"conclusive if supported by substantial evidence ." Talbott v. Commonwealth , 968
S.W.2d 76, 82 (Ky. 1998) (citing RCr 9.78 & Diehl v. Commonwealth , 673 S.W.2d 711
(Ky. 1984)) .
In its October 11, 2005, order denying Kindred's petition for a writ of prohibition,
the Court of Appeals stated :
When the argument is that the trial court is acting erroneously within its
jurisdiction, a petitioner must first demonstrate great and irreparable injury
and the lack of an adequate remedy by appeal. We believe that Kindred
failed to make such a showing . Its claim . . . is factually unsubstantiated .
As to irrelevancy . . . . it has been held not a method of proving great and
irreparable injury.
Kindred Healthcare, Inc ., et al . v. Peckler , No. 2005-CA-001502-OA, slip op. at 3 (Ky.
App. Oct. 11, 2005) (footnotes and citations omitted) . We agree with the conclusion of
the Court of Appeals .
Ironically, while Kindred asserts the delayed resolution of the underlying dispute
with Dean as one aspect of irreparable harm, its own motion for a protective order, filed
June 13, 2005, then petition for a writ of prohibition, then appeal of the denial of the writ,
have delayed the proceedings for almost a year ; Kindred has primarily caused the delay
which it now calls "irreparable injury ." Beyond this inadequate articulation of the alleged
irreparable injury, Kindred makes only unsustained, conclusory allegations of imminent
and substantial harm .
This Court has characterized "irreparable injury" as "something of a ruinous
nature," Bender, 343 S .W.2d at 801, and " incalculable damage to the applicant . . .
either to the liberty of his person, or to his property rights, or other far-reaching and
conjectural consequences ." Litteral v. Woods, 223 Ky. 582, 4 S.W.2d 395, 397 (1928)
(emphasis added) . Moreover:
An impression has arisen that the mere loss of valuable rights or property
through an error of the court constitutes great and irreparable injury
entitling the loser automatically to relief from the error. However, a careful
analysis of the cases dealing with the supervisory power of the Court . . .
under Section 110 of the Kentucky Constitution will disclose that in
addition to the element of great and irreparable injury there must be some
aspect of injustice . There must be something in the nature of usurpation
or abuse of power by the lower court, such as to demand that the Court
. . . step in to maintain a proper control over the lower court. The object of
the supervisory power of the Court . . . is to prevent miscarriage of justice .
Schaetzley v. Wright, 271 S.W.2d 885, 886-87 (Ky. 1954) (emphasis added) (citations
omitted) ; see also Powell v. Graham , 185 S.W.3d 624, 629 (Ky. 2006) ; Newell Enters.,
Inc . v. Bowling , 158 S.W.3d 750, 754 (Ky. 2005). "Ordinarily if this cannot be shown,
the petition will be dismissed ." Bowling, 158 S.W.3d at 754; see also Bender, 343
S.W.2d at 801 . Far from showing an "irreparable" or even "great" injury, Kindred has
failed to present any evidence that any injury might occur at all. The record is devoid of
even a modest attempt by Kindred to quantify the harm it claims to confront . Even so,
the mere loss of valuable property does not constitute irreparable injury . Schaetzlgy ,
271 S.W.2d at 886. Kindred asserts no basis of loss other than a financial one, i .e . , the
expense of producing the discoverable materials. For this reason, Kindred has failed to
establish the conditions precedent to considering a writ of prohibition, and we need not
reach the question of whether any error was committed by the Boyle Circuit Court .
The issuance of an extraordinary writ "is inappropriate to tell a lower court how to
act or to interfere with its exercise of discretion." Stallard v. McDonald , 826 S .W.2d 840,
842 (Ky. App. 1992) ; see also Humana of Ky., Inc. v. NKC Hosps . Inc . , 751 S.W.2d 369,
374 (Ky. 1988). The finding by the Court of Appeals that Appellant will not suffer great
and irreparable injury is supported by substantial evidence and, thus, is not clearly
erroneous. Trude, 151 S .W.3d at 810 . As such, its denial of Kindred's petition was fair
and supported by sound legal principles . Goodyear Tire & Rubber Co. v. Thompson , 11
-10-
S .W .3d 575, 581 (Ky. 2000) . The Court of Appeals did not abuse its discretion in
denying Appellant's motion for a writ of prohibition .
Accordingly, the judgment of the Court of Appeals is AFFIRMED.
All concur.
COUNSEL FOR APPELLANTS :
Donald L. Miller, II
Marcia L. Pearson
Frost, Brown, Todd, LLC
32nd Floor
400 West Market Street
Louisville, KY 40202-3363
W. Bruce Baird
Brown, Todd & Heyburn
3200 Capital Holding Center
Louisville, KY 40202-3363
COUNSEL FOR APPELLEE HONORABLE DARREN W. PECKLER, JUDGE, BOYLE
CIRCUIT COURT :
Honorable Darren Peckler
Circuit Judge
321 Main Street
Danville, KY 40422
COUNSEL FOR APPELLEE NONA SUE YOUNG, AS POWER OF ATTORNEY OF
LUCILLE DEAN (REAL PARTY IN INTEREST) :
Stephen M. O'Brien, III
Garmer & O'Brien, LLP
141 North Broadway
Lexington, KY 40507
Richard Eric Circeo
Wilkes & McHugh PA
Suite 670
2100 West End Avenue
Nashville, TN 37203