COA 2011 Minutes for June 3, 2011 — Nos. 539-557 (19 decisios)

COA 2011 Minutes for June 3, 2011 –       Nos. 539-557 (19 decisios)

539.  FREEDOM OF RELIGION, HIGHWAY REGULATIONS
GINGERICH (JACOB), ET AL
VS.
COMMONWEALTH OF KENTUCKY
AND
ZOOK (MENNO), ET AL
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2008-CA-001493-MR
2009-CA-001046-MR
TO BE PUBLISHED
GRAVES

SHAKE, SENIOR JUDGE: Multiple parties bring these appeals as a result of their convictions2 of violating KRS 189.820, which requires that a slow-moving vehicle (SMV) emblem, a fluorescent yellow-orange triangle with a dark red reflective border, be displayed on their horse-drawn buggies. Appellants are members of the Old Order Swartzentruber Amish religion, and argue that KRS 189.820 is unconstitutional because it interferes with their ability to freely exercise their religion.

Given the evidence presented to the trial court, and the weight given by the trial court, the Appellants were not successful in establishing a prima facie showing of discriminatory effect and discriminatory purpose. Accordingly, the trial court’s dismissal of that claim was proper.
For the foregoing reasons, the July 10, 2008, and May 14, 2009, judgments of the Graves Circuit Court are affirmed.

541. REAL PROPERTY, FORECLOSURES, JURISDICTION
YOUNG (JOHNNY), ET AL.
VS.
U.S. BANK, INC.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001759-MR
TO BE PUBLISHED
JEFFERSON

ACREE, JUDGE: George Young and Johnny Young appeal from a Jefferson Circuit Court order denying sua sponte relief from a foreclosure judgment and order of sale as not satisfying the requirements of Kentucky Rule of Civil Procedure (CR) 60.02. They also appeal that portion of the same order denying their motion to stay a writ of possession relative to their foreclosed property. We dismiss this appeal having determined: (1) that the circuit court did not have jurisdiction to alter its own judgment absent the filing of a CR 60.02 motion by a party; and (2) that the appeal of the order denying a stay of the writ of possession presents a moot issue over which this Court has no jurisdiction.

543.  CRIMINAL LAW. CONFINEMENT. GOOD TIME CREDIT.
PREWITT (CRYSTAL DENISE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002308-MR
TO BE PUBLISHED
FAYETTE

STUMBO, JUDGE: John M. Price, Jr. appeals from an Order of the Franklin Circuit Court dismissing his petition seeking a Writ of Mandamus. Price, who is incarcerated at the Northpoint Training Center, argues that the Department of Corrections violated his Due Process and Equal Protection rights by improperly depriving him of good time credit. He appears to maintain that he is entitled to good time credit earned while on parole for 1,995 days. We find no error in the dismissal of his petition, and accordingly affirm.

552. REGULATORY LAW. MEDICAID. SPLITTING CAUSE OF ACTIONS. UNJUST ENRICHMENT.
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES
VS.
EPI HEALTHCARE, LLC
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
DIXON (CONCURS) AND KELLER (CONCURS)
2010-CA-001333-MR
TO BE PUBLISHED
FRANKLIN

VANMETER, JUDGE: The Commonwealth of Kentucky, Cabinet for Health and Family Services Department for Medicaid Services (“Cabinet”), appeals from an order of the Franklin Circuit Court which granted summary judgment in favor of EPI Healthcare, LLC. (“EPI”). For the following reasons, we affirm.

Upon auditing EPI’s cost reporting periods from 1988- 1996, the Cabinet discovered $6,866,881 in overpayments and informed EPI of the Cabinet’s intent to recoup that amount.
EPI pursued an administrative appeal under KRS3 Chapter 13B, disputing the amount of overpayments and argued that because the amount was calculated by regulation, recoupment was barred by the 5-year statute of limitations for actions based “upon a liability created by statute, when no other time is fixed by the statute creating the liability.” KRS 413.120(2). The administrative hearing officer confirmed the amount of overpayments and determined that the Cabinet’s recoupment rights were exclusively found in the provider agreement between EPI and the Cabinet, which stated that EPI was required to refund any overpayment resulting from inappropriate or inaccurate claims as calculated by federal and state law, including Medicaid regulations. The hearing officer applied the 15-year statute of limitations for actions based on contract per KRS 413.090(2), and found in favor of the Cabinet. EPI appealed to the Anderson Circuit Court, which granted EPI’s motion for partial summary judgment on the basis that recoupment was barred by the 5-year statute of limitations per KRS 413.120.

The Cabinet then filed the present action, which deals with the same overpayments that were the subject of the prior litigation. The Cabinet seeks reimbursement for the overpayments based not only on alleged violations of state and federal law (as in the previous suit), but also on contractual and quasi- contractual theories, such as unjust enrichment. The Franklin Circuit Court granted summary judgment in favor of EPI, finding that the doctrine of res judicata barred the Cabinet’s claims. This appeal followed.

entucky courts recognize the doctrine of res judicata and the rule against splitting causes of action, “both of which are intended to prevent multiplicity of suits.” Moorhead v. Dodd, 265 S.W.3d 201, 203 (Ky. 2008). In Moorhead, the Court stated,
Res judicata consists of two concepts, claim preclusion and issue preclusion (also called collateral estoppel). Claim preclusion bars subsequent litigation between the same parties or their privies, on a previously adjudicated cause of action. Issue preclusion, on the other hand, precludes the relitigation of an issue that was actually litigated and decided in a prior proceeding. Finally, the rule against splitting causes of action precludes successive actions arising from one transaction.Id. (internal citations omitted). In this case, the trial court found that any argument the Cabinet could have made in support of recoupment of the overpayments should have been raised during the administrative appeal, which clearly arose from the same transaction. The Cabinet argued that it could not have brought its current claims against EPI in the context of an administrative appeal; however, the trial court noted that in light of KRS 23A.010(4), though Kentucky circuit courts are vested with jurisdiction to review decisions of administrative agencies, such review constitutes an original action, rather than an appeal. Accordingly, the trial court held that EPI’s appeal to the Anderson Circuit Court in the previous litigation constituted an original action in which the Cabinet was obligated to assert all claims it had regarding the recoupment dispute which arose from the same transaction, including the arguments it now asserts for the first time.
With respect to any contract claim, the trial court also noted that the Cabinet is precluded from bringing a contract claim for recoupment separate and apart from a claim under the relevant Medicaid statutes and regulations, since the provider agreements are expressly subject to those laws. In fact, the Cabinet asserted before the Kentucky Supreme Court in the prior litigation that no right to reimbursement or recoupment existed without the provider agreements. Since the provider agreements are subject to applicable Medicaid laws, the trial court held that the Cabinet cannot pursue a recoupment claim against EPI that goes beyond allegations based on violations of Medicaid statute and regulations. Thus, the Kentucky Supreme Court’s decision that the applicable statute of limitations for such claims was the 21-month period prescribed in 907 KAR 1:110 for 1988-1995 bars the present action.
With regard to the Cabinet’s claim under a quasi-contractual theory, i.e. unjust enrichment, the trial court found that any claim the Cabinet could assert would necessarily arise from the same nucleus of operative facts as the original administrative appeal brought by EPI, which was already litigated to conclusion. CR 13.01 requires a counterclaim to be asserted if it arises out of the transaction or occurrence that is the subject matter or foundation of the opposing party’s claim. Therefore, any quasi-contractual claim against EPI regarding recovery of the overpayments was a compulsory counterclaim that the Cabinet was required to assert at the outset of the prior litigation. The trial court thus dismissed the Cabinet’s present claims with prejudice, in light of the Supreme Court’s decision that the claims for recoupment are time-barred, and held that the Cabinet cannot now attempt to obtain the same remedy that it sought in the administrative action simply by filing a separate lawsuit with slightly different legal theories.

TORT REPORT ON UNPUBLISHED CASES – NONE.