Issue mooted on appeal: THE MEDICAL VISION GROUP, PSC V. HON. TIMOTHY N. PHILPOT (SC 8/21/2008)

CIVIL:  Issue was mooted pending appeal and thus no actual case or controversy; COA engaged in improper fact-finding
      DATE RENDERED: 8/21/2008
This appeal involved two business asking the  Kentucky Court of Appeals for a writ prohibiting circuit court judge from appointing a receiver to oversee both business entities and from asserting external judicial control over the businesses’ accounts and assets. 

The Supreme Court addressed two issues.  Although it eventually ruled that the issue of the writ was
     now moot and there was no case or controversy before it, it first noted that the Court of Appeals in deny the writ from the circuit court had engaged in improper fact finding.
The businesses sought the writ because the businesses were in receivership, and the COA denied the writ of prohibition in four sentences
finding that since the "petitioners fall under the `alter ego’ rule," the trial court had jurisdiction over the corporations and could appoint a receiver to manage them.

The Court of Appeals denied the writ, finding that because the businesses are alter-ego corporations of Dr. Jitander Dudee, the trial court had jurisdiction over MVG’s business assets and could direct that they be used to pay the doctor’s personal marital debts.

However, even in a writ case the COA is prohibited from infringing upon the trial court’s fact-finding role and stated the trial court made no  mention of the "alter ego" theory in its 40 page opinion, but
      rather the trial court referenced the testimony involving Dr. Dudee’s co-mingling of his corporate assets only in the context of assigning a monetary value to
the two business as part of the doctor’s marital estate. Thus, the Court of Appeals engaged in improper fact-finding when it determined that MVG and Schatzie were Dr. Dudee’s alter-ego .

Turning to the issue of mootness, unless there is "an actual case or controversy," the appellate court has no jurisdiction to hear an issue and is prohibited from producing mere advisory opinions. Commonwealth v. Hughes , 873 S.W.2d 828, 829 (Ky. 1994); Ky. Const. § 110.
Because the trial court has discharged the receiver of the two businesses, Dr. Dudee is now in sole control of MVG. With Dr. Dudee again in control of
MVG, this Court would not be able to grant meaningful relief to either party  and granting the writ would be futile because the receiver no longer exists and the trial court is not imposing any judicial control over Dr. Dudee’s business entities and denying the writ would be meaningless because again, the trial court has already discharged the receiver.
Therefore, the question of whether the trial court had jurisdiction to appoint a receiver to oversee the two business is moot and this Court does not have jurisdiction to consider it.

Editor’s Note:  A family court appeal to the Court of Appeals involving the doctor’s divorce in this
      matter was dismissed as moot on Aug. 8, 2008 regarding the receivership.  See 2007-CA-1331.

COA: No decision on line.


Appellee’s  Brief

Reply Brief

Digested by Michael Stevens

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