SIMS (TYLER), ET AL. VS. WEYERHAEUSER COMPANY
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RENDERED: DECEMBER 4, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001683-MR
TYLER SIMS, CHARLYNE SIMS
AND AMANDA SIMS, A MINOR
CHILD BY AND THROUGH HER
PARENTS, TYLER SIMS AND
CHARLYNE SIMS
v.
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 06-CI-02033
WEYERHAEUSER COMPANY
AND
NO. 2007-CA-001980-MR
TYLER SIMS, CHARLYNE SIMS
AND AMANDA SIMS, A MINOR
CHILD BY AND THROUGH HER
PARENTS, TYLER SIMS AND
CHARLYNE SIMS
v.
APPELLEE
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 06-CI-02033
WILLIAM F. BOSCHEINEN, JR. AND
CAROL D. BOSCHEINEN
APPELLEES
OPINION DISMISSING CASE NO. 2007-CA-001683-MR AND
AFFIRMING CASE NO. 2007-CA-001980-MR
** ** ** ** **
BEFORE: CLAYTON, CAPERTON AND DIXON, JUDGES.
CLAYTON, JUDGE: These are two consolidated appeals from the Fayette Circuit
Court granting summary judgment to two defendants. Based upon the following,
we will dismiss the appeal of the trial court’s decision in 2007-CA-001683-MR
and will affirm the trial court’s decision in 2007-CA-001980-MR.
BACKGROUND INFORMATION
Appellants, Tyler Sims, Charlyne Sims and Amanda Sims (Sims) (a
married couple and their minor child), brought this action after purchasing a home
from appellees, William and Carol Boscheinen (Boscheinens). After purchasing
the Boscheinens’ home, the Sims began experiencing health issues which they
attributed to the move into their new residence. Specifically, the Sims asserted that
they suffered from nausea, diarrhea, pains throughout the body, long term bruising,
swelling around the heart, heart palpitations, broken and uncontrollable dilation of
blood vessels, hot sensations in their noses and ears, bruising around their eyes,
difficulty focusing, rashes, inner ear damage, damage to their sinus cavity, learning
disabilities, inability to walk unassisted, inability to sleep on one side due to pain,
blindness, difficulty breathing, memory loss, high blood pressure and comas.
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The Sims filed suit in Fayette Circuit Court contending that the wood
used in the home was manufactured by Weyerhaeuser and was defective in that it
contained benzene, heavy metal toxins and chemicals. Their complaint also
asserted that the Boscheinens were aware of the air quality within the home and
that they did not disclose it and, in fact, fraudulently misrepresented it by
concealing the problem. Specifically, the Sims contended that the Boscheinens
were aware of the presence of toxic mold, heavy metal toxins and bacteria.
Weyerhaeuser moved the trial court for summary judgment. The trial
court granted the motion, finding that:
There is sufficient authority to support a finding
that the single piece of identifiable wood and the
Structurewood® manufactured by Weyerhaeuser is not a
product for purposes of Kentucky’s products liability
law.
The trial court also held that the “wood at issue is not a ‘good’” and consequently
did not fall under the purview of the Uniform Commercial Code. Finally, the trial
court held that the claims the Sims brought against Weyerhaeuser failed as there
was no privity of contract between the two parties.
The Boscheinens also filed for summary judgment in the trial court.
They argued that there was no evidence that they concealed or misrepresented the
state of the air quality within the residence. The Sims requested the Boscheinens’
medical records. Their objective was to show that the Boscheinens had suffered ill
effects due to the air quality in the form of illnesses which the family members had
suffered. The Boscheinens eventually tendered their medical records to the trial
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court; however, they were not released to the Sims. The court reviewed these
records in camera. The trial court granted the Boscheinens’ motion for summary
judgment and based its decision partially upon the lack of illnesses in their medical
records which were of a nature where air quality would have been a contributing
factor.
The Sims have appealed the granting of both motions by the trial
court. As to Weyerhaeuser’s motion, they contend that there exists a question of
fact regarding the alleged breach of duty and that summary judgment was granted
prematurely. Specifically, they argue that discovery had not been completed when
the trial court granted the motion.
The Sims contend that the trial court erred in granting summary
judgment to the Boscheinens in that it sealed their medical records and yet a
significant part of the award of summary judgment upon the sealed medical
records. The Sims argue that the records were not privileged and that the trial
court erred in sealing them.
STANDARD OF REVIEW
In reviewing the granting of summary judgment by the trial court, we
must determine whether the trial court correctly found “that there [were] no
genuine issues as to any material fact and that the moving party [was] entitled to
judgment as a matter of law. Kentucky Rules of Civil Procedure (CR) 56.03.
“[A] trial court must view the evidence in the light most favorable to
the nonmoving party, and summary judgment should be granted only [when] it
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appears impossible that the nonmoving party will be able to produce evidence at
trial warranting a judgment in his favor. [While] [t]he moving party bears the
initial burden of [proving] that no genuine issue of material fact exists, . . . the
burden shifts to the party opposing summary judgment to present ‘at least some
affirmative evidence showing that there is a genuine issue of material fact for
trial.’” Community Trust Bancorp v. Mussetter, 242 S.W.3d 690, 692 (Ky. App.
2007).
Since summary judgment deals only with legal questions as there are
no genuine issues of material fact, we need not defer to the trial court’s decision
and must review the issue de novo. Lewis v. B&R Corp., 56 S.W.3d 432, 436 (Ky.
App. 2001).
With this standard in mind, we will examine the issues before us.
DISCUSSION
I. Appeal No. 2007-CA-001980-MR – The Boscheinens
We will begin with the Sims contention that the trial court erred in
refusing to release the Boscheinens’ medical records when it relied upon those
records in making its decision regarding the summary judgment motion. While we
find the trial court’s action to be in error, we find it to be harmless error.
Pursuant to CR 26.02(1) parties are allowed to discover “any matter,
not privileged, which is relevant to the subject matter involved in the pending
action[.]” It is not a defense to the discovery process to contend that the material
would be inadmissible. If the material is not privileged, the only question is
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whether it is relevant or likely to lead to relevant evidence. Grange Mut. Ins. Co.
v. Trude, 151 S.W. 3d 803, 811 (Ky. 2004). “The party seeking to prevent
discovery should bear the burden of showing the nonrelevance of the material.”
Morrow v. Brown, Todd & Heyburn, 957 S.W.2d 722, 727 (Ky. 1997). KRE 401
provides that:
‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more
probable or less probable than it would be without the
evidence.
The Sims contends that the trial court relied on the medical records in
making its decision to grant summary judgment. The Boscheinens, on the other
hand, contend that the trial court based its decision on the fact that the Sims had
inquired about the potential presence of mold and had hired a general inspection
done of the home. Also, the Boscheinens assert they had provided an allowance
for a mold inspection which the Sims had not had performed. Basically, the
Boscheinens contend that instead of relying upon the in camera review to grant the
motion for summary judgment, the trial court simply did not find anything in the
record which would keep it from granting summary judgment. As a result, the
Boscheinens argue that the records were neither relevant nor necessary to the trial
court in its decision and, as such, were properly excluded as having no probative
value.
The Sims cite the case of Stidham v. Clark, 74 S.W.3d 719 (Ky.
2002), in support of their argument that medical records are discoverable and not
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privileged. The Sims contend that medical records are not privileged unless they
are from a psychotherapist. Kentucky Rules of Evidence (KRE) 507(3)(b)
provides that:
. . . A patient, or the patient’s authorized representative,
has a privilege to refuse to disclose and to prevent any
other person from disclosing confidential
communications, made for the purpose of diagnosis or
treatment of the patient’s mental condition, between the
patient, the patient’s psychotherapist, or persons who are
participating in the diagnosis or treatment under the
direction of the psychotherapist, including members of
the patient’s family. While we acknowledge that the
evidence is not privileged, we find that it is not relevant
either and, as such, not subject to discovery.
In Stidham, 74 S.W.3d 719, the medical records sought by the grand
jury were relevant in the case against Stidham. There, the Fayette County grand
jury asked for the records in a proceeding involving charges of obtaining
controlled substances by prescription. Stidham was accused of obtaining the drugs
by withholding information from one physician regarding the prescriptions he had
obtained from other physicians. Clearly, in that action, medical records would be
necessary in proving the scheme in which Stidham had engaged. Such is not the
case in this action. Having made that conclusion however, we believe the medical
records could possibly have led to relevant evidence and, consequently, it was
error for the trial court to refuse to allow the Sims to peruse them. We also find,
however, that the act of excluding the records was harmless as the Sims had not set
forth a negligence claim.
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“[T]he concealment by a seller of a material defect in property being
sold, or the suppression by him of the true conditions respecting the property, so as
to withhold from the buyer information he is entitled to, violates good faith, and
constitutes [a] deception[.]” (citing Hall v. Carter, 324 S.W.2d 410, 412 (Ky.
1959)), Young v. Vista Homes, Inc., 243 S.W.3d 352 (Ky. App. 2007). In this
action, the Sims brought suit against the Boscheinens for fraudulent
misrepresentation and through concealment of the air quality within the residence.
There are six elements a party must set forth to establish fraud by
clear and convincing evidence. They are as follows: “a) material representation,
b) which is false, c) known to be false or made recklessly, d) made with
inducement to be acted upon, e) acted in reliance thereon and, f) causing injury.”
See Young, 243 S.W.3d 352; United Parcel Service Co. v. Rickert, 996 S.W.2d
464, 468 (Ky. 1999), citing Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357,
359 (Ky. App. 1978). The Sims argued that the Boscheinens materially
misrepresented the indoor air quality of the home. That they knew the air quality
was poor and misrepresented this fact to the Sims who relied upon their
misrepresentation and were injured by such reliance. The trial court found that the
act of the Boscheinens in offering to pay for an inspection for mold and the Sims
not having such an inspection performed as well as the Sims’s hiring of an
inspection of the home was sufficient to support the granting of a motion for
summary judgment. We agree. The medical records sought by the Sims would not
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have been indicative of fraud by misrepresentation as the Sims could have had the
mold inspection performed and any issues regarding it would have been resolved.
The Sims also contend that the trial court committed clear error when
it failed to resolve all doubts in their favor in opposition to the motion for summary
judgment. The Sims cite to the Pennsylvania case of Jeffries-Baxter v. Incognito,
76 Pa. D & C. 4th 68, 2005 WL 2509238 (Phila. Ct. Com. Pl. 2005), in support of
their argument. In the Jeffries-Baxter case, the Court found that the short time
period within which the sellers had resided in the home as well as freshly painted
walls created an issue of fact as to whether the sellers misrepresented the mold
contamination of the home. In the Jeffries-Baxter case as in this one, the
purchasers of the home had a general inspection. The case differs from the Sims’s
action, however, in that the sellers did not offer to pay for a mold inspection.
There is also no issue regarding evidence of concealment as in the Jeffries-Baxter
case and, importantly, there is no indication in this action that the Boscheinens
were in a rush to sell the home after having lived in it a short period of time. It is
also important to note that the Jeffries-Baxter case is not an appellate case, but the
decision of a Pennsylvania trial court. Thus, we find the Jeffries-Baxter case to be
distinguishable from the case before us and not appropriate precedent upon which
we would rely.
Next, the Sims contends that summary judgment was granted
prematurely as they were not given ample opportunity to complete discovery. A
party opposing a motion for summary judgment must be granted an adequate
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opportunity to flesh out the relevant facts. Suter v. Mazyck, 226 S.W.3d 837 (Ky.
App. 2007). The Court further held:
Whether a summary judgment was prematurely
granted must be determined within the context of the
individual case. In the absence of a pretrial discovery
order, there are no time limitations within which a party
is required to commence or complete discovery. As a
practical matter, complex factual cases necessarily
require more discovery than those where the facts are
straightforward and readily accessible to all parties.
Id. at 842.
While we agree with the general legal principle set forth by the Sims,
we do not agree that the trial court erred in granting summary judgment. The Sims
have not shown how further discovery would have brought forth relevant evidence.
Instead, they have merely referenced the growth and nature of mold and how
waiting for future results could have bolstered their case. They also contend in this
argument as well that the medical records of the Boscheinens would have been
relevant to their action. As set forth above, we do not find that the medical records
should have been turned over to the Sims. We also do not find that the nature of
mold claims requires more time for discovery. In this action, the trial court based
its decision on sound evidentiary and legal principles.
Finally, the Sims contends that the trial court improperly applied the
merger doctrine to a claim of fraud. They argue this is contrary to the holding in
Yaeger v. McLellan, 177 S.W.3d 807 (Ky. 2005). The Sims assert that the trial
court relied on the fact that the Boscheinens had offered them an allowance to
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inspect the residence for mold contamination and that the Sims’s failure to so
inspect for six months, as being fatal to their claim for misrepresentation. The
contract between the parties was a Uniform Real Estate Sales and Purchase
contract (Contract) and provided that:
The BUYER has carefully examined the premises and
the improvements located thereon, and in making the
decision to buy the property, the BUYER is relying
wholly and completely upon the BUYER’s own
judgment and the judgment of the BUYER’s inspectors.
Within this Contract, was a specific request by the Sims to conduct a mold
inspection. The date in the Contract for the completion of the inspection was
October 28, 2004. If there is no ambiguity within the contract, a court may only
look to the four corners of that contract for the intent of the parties. Abney v.
Nationwide Mut. Ins. Co., 215 S.W.3d 699, 703 (Ky. 2006). The Contract herein is
clear that the Sims agreed to rely on their inspection. There is no indication that
there was a fraudulent misrepresentation by the Boscheinens. Thus, we affirm the
trial court’s granting of summary judgment in favor of the Boscheinens.
II. Appeal No. 2007-CA-001683-MR – Weyerhaeuser Company
As set forth above, this is a consolidated appeal. The second appeal
involves the Weyerhaeuser Company, the manufacturer of some of the wood found
in the Sims’s residence. The trial court granted summary judgment in favor of
Weyerhaeuser, determining that:
There is sufficient authority to support a finding
that the single piece of identifiable wood and the
Structurewood® manufactured by Weyerhaeuser is not a
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product for purposes of Kentucky’s products liability
law. Both the Structurewood® and the lumber identified
as being manufactured by Weyerhaeuser are incorporated
and completely integrated into the structure of the Sims’
house. The lumber and Structurewood®, like the items
in the cited cases, are not a moveable component of a
complete integrated structure. Removing the wood
would completely destroy the skeletal structure of the
house.
Therefore, because the lumber and
Structurewood® manufactured by Weyerhaeuser is an
indivisible component of the house itself, the Court finds
as a matter of law that the wood in question herein is not
a “product” for purposes of Kentucky products liability
law. Thus, Weyerhaeuser is entitled to judgment as a
matter of law. Likewise, the Weyerhaeuser wood at issue
is not a “good” and thus is not controlled by the Uniform
Commercial Code. (Citations omitted).
On appeal, Weyerhaeuser has brought a motion to strike the
appellants’ brief and dismiss the appeal. Weyerhaeuser argues that the issues
raised in the Sims’s brief were not the issues identified in their prehearing
statement and, consequently, were not properly preserved for review and cannot be
considered on appeal.
CR 76.03(8) provides that:
A party shall be limited on appeal to issues in the
prehearing statement except that when good cause is
shown the appellate court may permit additional issues to
be submitted upon timely motion.
In this action, the Sims set forth two issues in their prehearing
statement: 1) whether the Kentucky Products Liability Act applies to
manufactured lumber products; and 2) whether the UCC applies to manufactured
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lumber products. In their brief, however, the Sims contend that the trial court erred
in granting summary judgment given the affidavits they submitted in support of
their negligence claim and that they were not given an opportunity to fully
complete discovery prior to summary judgment being entered. They also
acknowledge, however, that prior counsel set forth issues which lack merit in this
Commonwealth in their motion for enlargement of time.
The Sims filed a motion for enlargement of time to more fully comply
with CR 76.03(8). As set forth above, the rule allows for additional issues upon
timely motion when good cause is shown. The Sims contends that the following
are good cause:
(1)
Their former counsel was inept in preparing their
prehearing statement;
(2)
The issues were preserved in the WROA and were
accurately cited in their brief to the court;
(3)
The acknowledgement in Weyerhauser’s own
prehearing statement of the trial court’s holding on
the issue of negligence; and
(4)
These issues were raised in Plaintiffs’
memorandum contra motion for summary
judgment submitted on April 27, 2007 and were
preserved in the Fayette Circuit Court’s opinion
and order rendered July 18, 2007.
In American General Home Equity, Inc. v. Kestel, 253 S.W.3d 543,
549 (Ky. 2008), the Kentucky Supreme Court opined that “the significance of
[76.03(8)] is that the Court of Appeals will not consider arguments to reverse a
judgment that have not been raised in the prehearing statement or on timely
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motion.” Weyerhaeuser argues that the Sims’s motion to amend their prehearing
statement is not “timely” in that it completely changes the appellate issues more
than a year after the initial appellate statement was filed, after their brief on the
issues was filed and after Weyerhaeuser filed its Motion to Strike. We agree.
The notice of appeal was filed in this case by the Sims on August 17,
2007. They thereafter filed their brief more than a year later (on November 5,
2008) after a request for an enlargement of time. After Weyerhaeuser moved to
strike their brief on December 10, 2008, the Sims asked for an enlargement of time
to amend their prehearing statement on December 23, 2008. We do not find this is
timely nor do we find there was good cause shown by the Sims as to why the
issues set forth in their prehearing statement dealt with unpreserved issues.
Thus, we will dismiss the Sims’s appeal against Weyerhaeuser.
DIXON, JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS IN PART AND DISSENTS IN
PART AND FILES SEPARATE OPINION.
CAPERTON, JUDGE, CONCURRING IN PART AND
DISSENTING IN PART: I concur with the majority opinion dismissing the appeal
of Tyler Sims, et al. v. Weyerhaeuser Company, 2007-CA-001683-MR. However,
I dissent on Tyler Sims, et al. v. William F. Boscheinen, Jr., et ux., 2007-CA001980-MR.
In the latter case, the Simses sought discovery of medical records for
the purpose of disclosing whether or not the Boscheinens suffered from various
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symptoms associated with toxins, either from mold or heavy metals. I believe that
the discovery of such information is relevant to the claims made by the Simses that
the Boscheinens had, by misrepresentation or omission, committed fraud or
negligence by selling a home knowing of the toxins and not disclosing same.
I would reverse and remand to the trial court for further discovery and
other appropriate proceedings.
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BRIEFS FOR APPELLANTS,
TYLER SIMS, CHARLYNE SIMS
AND AMANDA SIMS, A MINOR
CHILD BY AND THROUGH HER
PARENTS, TYLER SIMS AND
CHARLYNE SIMS
BRIEFS FOR APPELLEE,
WEYERHAEUSER COMPANY:
W. Henry Graddy, IV
Elizabeth R. Bennett
Randal A. Strobo
Midway, Kentucky
BRIEFS FOR APPELLEES,
WILLIAM F. BOSCHEINEN, JR.
AND CAROL D. BOSCHEINEN
ORAL ARGUMENT FOR
APPELLANTS:
W. Henry Graddy, IV
Midway, Kentucky
Susan J. Pope
Kathryn B. Kendrick
Lexington, Kentucky
John W. Walters
Drew Byron Meadows
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLEE, WEYERHAEUSER
COMPANY:
Susan J. Pope
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLEES, WILLIAM F.
BOSCHEINEN, JR. AND CAROL D.
BOSCHEINEN:
John W. Walters
Lexington, Kentucky
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