Wayne Michael Putnam v. Hon Ernesto Scorsone Judge, Fayette Circuit Court ( 2017 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY.COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONS_IDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: MARCH 23, 2017
NOT TO BE PUBLISHED
~up~o~!~3!Mfeu{FlfliM ~ l
WAYNE MICHAEL PUTNAM
[Q)~lf [Eglfqhz!2014 WL 97393 (Ky. App. Jan. 10, 2014) (unpublished) .
. In 2003, Phelps entered into an agreement with Appellants, and
some of their companies, under which he agreed to release the remaining debt
on the promissory note (which at that time was still almost $3,000,000) and to
release Appellants from all their guarantees, both as to the direct loans
from Phelps and the loan from U.S. Bank. In exchange, Phelps received
2,000,000 shares of OBA Pharma, Inc. common stock.
As it turned out, Phelps was not well and had begun having symptoms of
dementia. He was diagnosed as having Lewy body dementia, a degenerative
neurological disease similar to Alzheimer's disease and Parkinson's disease. In
light of this diagnosis and after discovering apparently unusual dealings in
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Phelps's finances, in 2004, Phelps's family contacted a lawyer to examine
Phelps's relationship with Appellants and their companies.
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In April 2005, the digital camera companies defaulted on the u·.s. Bank
loan, and U.S. Bank initiated the underlying litigation. Phelps, Appellants,
Whitman, and the digital camera companies were named as defendants.
Phelps filed an answer and cross-claim against the other defendants alleging
fraud and that he had lacked capacity to enter into the 2003 release
agreement. Phelps also moved the circuit court for leave to file· a third-party ·
complaint against the pharmaceutical companies, but that was denied .. The
motion was made and denied at least one more time in the course of the
litigation.
Phelps died in October 2005, and his estate was substituted as a party.
Eventually, U.S. Bank also brought suit against Phelps's wife, Mary Margaret
Phelps; his daughter, Melanie McCool; and his son, William Phelps, Jr.,
claiming they had participated in fraud in obtaining an extension of the
substantial loan from U.S. Bank. They counterclaimed for abuse of process.
Eventually, U.S. Bank settled with the estate and the named members of
the Phelps family. The bank assigned its interest in its loan to the Phelps
family. In exchange, the bank was paid $675,000, and the family dropped
their counterclaims. The settlement agreement also provided that 20% of any
:inoney recovered based on the bank's assigned rights would be paid to the
bank. This, in effect, made the estate and the Phelps family the plaintiffs in
the underlying action, leaving Appellants, Whi~an, and the digital camera
companies as the defendants .
. The case went to trial on the Phelps family's fraud and incapacity claims
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~d for collection of amounts owed on the promissory note and the U.S. Bank
loan. The trial court granted a.directed verdict in the family's favor as to the
enforceability. of the loans, reserving the question of damages. The jury found
that Phelps lacked capacity to enter into the 2003 rele.ase agreement and did
not reach the fraud claim. The circuit court entered a judgment against
Appellants, Stephen Whitman, and the digital camera companies in an amount
exceeding $12,000,000. This judgment, except for $675,000, was affirmed by
the Court of Appeals, Sci.enti.f!.c Imaging Technology Enterprises, Inc. v. Phelps,
2011-CA-002119-MR, 2014 WL 97393, at* (Ky. App. Jan. 10, 2014)
(unpublished), and this Court declined discretionary review.
The Phelps family then began trying to collect from the judgment
debtors. As part of this effort, they served a series of post-judgment discovery
requests. Eventually, in 2014, the circuit court entered a discovery order
commanding
that the Judgment Debtors shall produce to the Judgment
Creditors within ten ... days of the date of entry of this Order the
following information and documents.: The-name, address, type of
account, name of account and account number of any bank or
other institution at which any business in which the Judgment
Debtors Michael Putnam and Beth Diane Gudeman have an
interest maintains any type of account; and the production of bank
statements and accounts receivable and payable _ledgers for such
businesses for the years 2001-2005 and the past year.
Such documents may be produced subject to the Agreed
Protective Order and Confidentiality Agreement submitted by the
parties.
Concerned that this order would lead to the production of irrelevant
information about the pharmaceutical companies, particularly CBA Pharma,
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Inc. (and, apparently, sensitive information about the company that could help
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its competitors), Appellants filed a petition for a writ of prohibition with the .
'
Court of Appeals seeking to bar enforcement of the order. The Court of Appeals
did not address whetl;J.er the remedy of a writ was available under the
procedural test laid out in Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004), nor did
it address the substantive question whether the lower court was acting_
erroneously. In_stead, the court denied the petition on the ground that
Appellants lacked standing because they were named only in their individual
capacities, the pharmaceutical companies were not named parties, and thus
Appe,llants "ha(d] not demonstrated a personal and concrete. interest in the
records of Cl;3A Pharma." As noted above, this Court vacated the order and
remanded for the appellate court to address the petition on the merits.
On remand, the Court of Appeals acknowledged that claims of irrelevant
discovery may be reviewed under the "certain special cases" exemption to the
writ standard. On review, the appellate court found that the requested
discovery was relevant; that the protective order addressed confidentiality
concerns; and that there was no evidence of a substantial miscarriage of justice
justifying a writ. Appellants' motion for reconsideration was denied, and this
appeal followed.
II. Analysis
As this Court has frequently stated
(a] writ of prohibition may be granted upon a showing that (1) the
lower court is proceeding or is about to proceed 0utside 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
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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. The second class of writ, ·where a lower court is
acting within its jurisdiction but erroneously, is invoked in cases such as this
one where an order compelling discovery is disputed. In Grange Mut. Ins. Co. v.
Trude, 151 S.W.3d 803, 808 (Ky. 2004), this Court noted that the great and
irreparable harm element can be "put aside in 'certain special cases . .. · [where]
a substantial miscarriage of justice will result if the lower court is proceeding
erroneously, and correction of the error is necessary and appropriate in the
interest of orderly judicial administration.'" . (citing Bender v. Eaton, 343
S.W.2d 799 (Ky. 1961), emphasis added). After concluding there would be no
adequate remedy on appeal if irrelevant discovery was ordered, the Grange Mut.
Court turned to Kentucky Rule of Civil Procedure (CR) 26.02 and the definition
of relevancy, noting the parties "may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the pending
action." Mm:eover, "[i]t is not ground for objection that,the information sought
will be inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence." CR 26.02. The
Court concluded that a writ was not available for the majority of the disputed
discovery requests in that case because they were sufficiently relevant to the
plaintiffs bad faith claim against the insurance company. Certain information
in personnel records, regarding advertising and showing the amounts paid to
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settle previous bad faith claims was deemed irrelevant and writ worthy. Id. at
818. Finally, the Grange Mut. Court noted that the insurance company had
totally failed to support its claim regarding trade secrets, having only made
conclusory statements without ever providing the documents themselves for in
camera review or even a detailed privilege log. Id. at 817-18.
Applying these standards in this case, the Court of Appeals concluded
that Appellants direct and control CBA Pharma, a company that was involved
in the circumstances underlying the judgment if for no other reason than the
fact Appellants transferred ~,000,000 shares of CBA Pharma stock to Phelps in
exchange for the release of their debts; Appellants dispute that CBA Pharma
was involved in the underlying circumstances that led to the $12 million
judgment, emphasizing that the CBA Companies2 were not borrowers or
guarantors on the underlying indebtedness. They insist that the CBA
Companies are in no different position than would be General Motors if
Appellants had transferred or pledged GM stock to Phelps. This analogy to a
leading Fortune 500 company is entirely inapt. Although extremely
complicated, the facts leave little doubt that Appellants are intimately involved
with the various CBA Companies, their founding and their operations, past and
present. Indeed, the Phelps family, as Judgment Creditors, currently garnish
Appellants' wages from CEA Pharma, which was formed in 2013. According to
the Phelps family, there is also evidence of funds shifting from the digital
2Appellants use "CBA Companies" to refer to CBA Pharma, Inc., and its
predecessors.
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camera companies (to which Phelps loaned money and for which he guaranteed
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the bank loan) to a CBA entity. Given the substantial judgment and the
Judgment Creditors' interest in identifying Appellants'. avail~ble assets,
including any funds that may be derived from or reside in a company or
companies in which they have substantial ownership and· controlling interest3,
we cannot say that the trial court abused its discretion in concluding that the
requested discovery was relevant to the Judgmen( Creditors' collection efforts.
Even if we were less than assured about the relevancy of the requested
documents, a writ would still be unavailable in the absence of evidence that
production of the documents would result in "a substanj:ial miscarriage of
justice." Grange.Mut., 151 S.W.3d at 808. Appellants profess concerns about
confidential records that could benefit competitors but, as in
Grange Mut., they have not taken the steps to establish.that fact through in
camera production or even a detailed "privilege" log. Id. at 818. Moreover,
given the trial court's order requiring production "subject to the Agreed
Protective Order and Confidentiality Agreement submitted by the parties" we
find Appellants' concerns about the risk of disclosure particularly unavailing.
Recognizing the efficacy of a negotiated protective order/ confidentiality
agreement in no way "read[s] out" the relevance requirement in CR 26 as
a As usual, we have a limited record in this writ action but Appellants readily
aclmowledge that while CBA Pharma has over 800 shareholders "[t]he majority of the
company's common stock is held in voting trusts whose trustees are Mr. Putnam, Ms.
Gudeman.and Stephen Whitm~."
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Appellants' hyperbolically suggest. There is no prospect of a "substantial
miscarriage of justice" under the circumstances presented.
For the foregoing reasons; the Court of Appeals' Order Denying Petition
for Writ of Prohibition is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Derise DuaneI Cook ·
John Milton Sosbe
Duane Cook & Associates, PLC
COUNSEL FOR APPELLEE:
Ernesto Scorsone, pro se
COUNSEL FOR REAL PARTIES IN INTEREST:
Sam Preston Burchett
William Joseph Walsh, IV
Buchenberger Walsh, PLLC
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