MAMMOTH MEDICAL, INC. V. HON. KIMBERLY BUNNELL (JUDGE, FAYETTE CIRCUIT COURT), ET AL.
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MODIFIED : SEPTEMBER 26, 2008
RENDERED : SEPTEMBER 18, 2008
TO BE PUBLISHED
ssixyremE alaurf of
2008-SC-000048-MR
MAMMOTH MEDICAL, INC.
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NUMBER 2007-CA-001342
FAYETTE CIRCUIT COURT NO. 06-CI-004796
HON. KIMBERLY BUNNELL
(JUDGE, FAYETTE CIRCUIT COURT),
ET AL
APPELLEES
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
The Court of Appeals denied CR 76 .36 relief to Mammoth Medical, Inc.
"Mammoth"), a medical supply distributor who petitioned for a writ of prohibition,
seeking dismissal of a declaratory judgment action brought against it by the law
firm Stoll Keenon Ogden PLLC ("SKO"). The writ was filed after SKO took
preemptive action by seeking a declaration of non-liability for Mammoth's
potential legal malpractice claim, asserting lack of causation as a defense.
Mammoth appeals the denial of the writ as a matter of right pursuant to CR
76.36(7) .
The principal issue before us is whether a Kentucky circuit court can
adjudicate in a declaratory judgment action a potential tort defendant's defenses
to an allegedly injured party's prospective negligence claim . We hold that the
circuit court had jurisdiction but, under these circumstances, declaratory
judgment is nonetheless not a proper procedure to seek a determination of nonliability for past conduct . Therefore, we conclude that the Fayette Circuit Court,
although having jurisdiction, acted erroneously in allowing the declaratory
judgment action to proceed, and that the Court of Appeals erred when it denied
the writ.
1. Facts
Joe Alexander, a former Mammoth salesman, voluntarily resigned his
employment in February 2005 and shortly thereafter, allegedly sold information
about Mammoth to at least one medical equipment manufacturer . Mammoth
subsequently retained an attorney, who was not associated with SKO, to
represent it against Alexander. After receiving a letter accusing him of misusing
confidential information, Alexander contacted an attorney at SKO in May 2005.
Unbeknownst to that attorney, other attorneys at SKO had been
performing legal services for Mammoth on unrelated business matters since
2004. The SKO attorney performed a conflicts check, which failed to reveal that
his law firm represented Mammoth. He then agreed to represent Alexander in
his dispute with Mammoth .
Thereafter, from May 2005 until February 2006, SKO performed legal
services for Alexander on certain matters, including his dispute with Mammoth .
Included among those services were multiple letters from the SKO attorney on
SKO firm letterhead to attorneys representing Mammoth in its claims against
Alexander .
Mammoth learned of the conflicting representations in early 2006 . SKO
received, from a law firm representing Mammoth, a letter advising SKO of
Mammoth's position that SKO should cease representing Alexander due to its
representation of Mammoth on other matters . SKO ceased its representation of
both Mammoth and Alexander by February 2006, when an investigation
confirmed the conflicting representations.
ll. Procedural History
On February 10, 2006, Mammoth brought an action for injunctive relief
and damages in the Barren Circuit Court against Alexander. Alexander filed a
bankruptcy petition two months later. Mammoth successfully moved to dismiss
or convert the bankruptcy action into an adversary proceeding . In response,
Alexander asserted as a defense the legal advice he received from SKO.
Mammoth did not join SKO as a defendant when it sued Alexander .
Mammoth nonetheless demanded that SKO reimburse it for the financial losses
allegedly suffered as a result of Alexander's conduct.
On May 1, 2006, Mammoth and SKO entered into a tolling agreement .
The agreement gave the parties time to pursue negotiations about SKO's
potential liability to Mammoth for advising Alexander . Tolling applied only to
Mammoth's alleged claims; it did not bar SKO from taking steps to protect its
interests.
The parties' communications in the following months progressed to
scheduling a formal mediation on November 13, 2006 . On November 3, 2006,
however, SKO informed Mammoth that it would not participate in the mediation
and, that same day, filed a complaint for declaratory relief in the Fayette Circuit
Court. SKO's complaint was a preemptive action seeking summary adjudication
of liability and damages in a potential legal malpractice lawsuit by Mammoth.
On November 20, 2006, Mammoth filed a motion to dismiss, arguing that
declaratory judgment is not the proper method for resolving a legal malpractice
claim, and the Fayette Circuit Court is not the correct forum for adjudicating the
parties' dispute . The circuit court initially granted the motion to dismiss, but later,
in response to SKO's motion to reconsider, vacated the dismissal order and
reinstated SKO's action . The circuit court subsequently denied Mammoth's
motion to reconsider and motion to dismiss for improper venue and lack of
personal jurisdiction .
On July 2, 2007, Mammoth filed an original proceeding in the Court of
Appeals pursuant to CR 76.36 requesting a writ of prohibition to direct the
dismissal of the Fayette Circuit Court action filed by SKO . The Court of Appeals,
in a 2-1 decision, denied the writ on December 23, 2007.
111. Analysis
The issue in this case, as framed by this Court, is as follows : Can the
Fayette Circuit Court adjudicate in a declaratory judgment action SKO's defenses
to Mammoth's prospective legal malpractice claim? Mammoth argues that the
circuit court is acting without subject matter jurisdiction because actions for
declaratory relief are designed to determine prospective rights and duties, not
liability for past conduct. Mammoth further contends that venue is improper in
Fayette County and that the circuit court does not have personal jurisdiction over
it.
Mammoth asserts that a writ should issue because it has no adequate
remedy by appeal if SKO is permitted to go forward with its declaratory judgment
action in circuit court, as Mammoth has more claims against SKO than those
outlined in SKO's complaint for declaratory relief. In the alternative, Mammoth
asserts this is a special case where allowing the declaratory judgment action to
proceed would be detrimental to the orderly administration of justice .
SKO responds that the practical outcome of the writ proceeding will only
determine whether venue lies in Fayette County or Barren County. SKO asserts
that a writ should not issue because Mammoth has an adequate remedy by
appeal . See Fritsch v. Caudill, 146 S .W.3d 926, 928 (Ky. 2004). SKO believes
that Mammoth has not shown irreparable harm because it has the same rights in
the Fayette County action as it enjoys in its Barren County action .
SKO further contends that the circuit court acted properly within its
jurisdiction pursuant to KRS 418.045 . SKO asserts that the Kentucky
Declaratory Judgment Act ("DJA") is unique and not an adoption of either the
Uniform DJA or the Federal DJA. SKO points out that, unlike the Federal DJA or
any other state law, the Kentucky DJA does not preclude it from seeking
declaratory relief under these circumstances .
A. Standard of Review
Relief by way of 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) (uotin
Bender v. Eaton , 343 S.W.2d 799, 800 (Ky. 1961)). This
Court has divided writ cases into two classes, which are distinguished by
"whether the inferior court allegedly is (1) acting without jurisdiction (which
includes `beyond its jurisdiction'), or (2) acting erroneously within its jurisdiction ."
Id. The second class of writs includes a subclass for "certain special cases."
independent Order of Foresters v. Chauvin, 175 S .W.3d 6-10, 616 .(Ky. 2005).
Mammoth claims that the Fayette Circuit Court either is acting outside its
jurisdiction or, alternatively, that this is a special case involving misuse of the
Kentucky DJA.
The proper standard of review of a decision to deny a writ of prohibition
depends on the class of writ case. Grange Mut. Ins. Co . , 151 S .W.3d at 810 . De
novo review is generally the proper standard, where the lower court is alleged to
be acting outside itsjurisdiction, because jurisdiction is generally only a question
of law, where the alleged error invokes the "certain special cases" exception, or
where the error involves a question of law. Id . (emphasis added .) Thus, we
review the denial of the writ de novo, giving no deference to the judgment below.
B. The Kentucky Declaratory Judgment Act
The Kentucky. DJA is codified in KRS Chapter 418. The Kentucky DJA is
intended to be remedial in nature, and its purpose is to make courts more
serviceable to the people by way of settling controversies and affording relief
from uncertainty and insecurity with respect to rights, duties and relations. KRS
418 .080. We liberally interpret and administer the Kentucky DJA to accomplish
its broad purpose . Id.
KRS 418.040 provides that in any action in a court of record wherein it is
made to appear that an actual controversy exists, the plaintiff may ask for a
declaration of rights, either alone or with other relief, and the court may make a
binding judgment. As a rule, the court has broad discretion to grant declaratory
relief. The party seeking relief must show that an actual, justiciable controversy
exists ; proceedings for a declaratory judgment must not merely seek advisory
answers to abstract questions . Axton v. Goodman, 205 Ky., 382, 265 S .W . 806
(1924) .
In general, the scope of matters to which a declaratory judgment may be
rendered is broad. KRS 418 .045 contains an extensive list of claims for which
declaratory relief is available. Any person interested under a deed, will or other
instrument of writing, or in a contract, written or parol; or whose rights are
affected by statute, municipal ordinance, or other government regulation ; or who
is concerned with any title to property, office, status or relation ; or who as
fiduciary or beneficiary is interested in any estate, provided always that an actual
controversy exists with respect thereto, may apply for and secure a declaration of
his rights or duties, even though no consequential or other relief be asked. KRS
418.045 bears the title "Persons who may obtain declaration of rights;
enumeration not exclusive". In other words, this section of the Kentucky DJA,
enumerating certain specific situations, is not exclusive as to other situations .
Although the scope of the Kentucky DJA is liberal and wide, there are,
however, limits . Declaratory judgment does not fit every occasion and does not
replace the existing system of remedies and actions . For example, an action for
a declaratory judgment cannot be instituted to secure a determination of
substantive rights involved in a pending suit. Gibbs v. Tyree , 287 Ky. 656, 154
S .W .2d 732, 733 (1941).
Moreover, the Court may refuse to exercise the power to declare rights,
duties or other legal relations in any case where a decision under it would not
terminate the uncertainty or controversy which gave rise to the action, or in any
case where the declaration or construction is not necessary or proper at the time
under all the circumstances . KRS 418.065 . Similar discretion can be found in
the Federal DJA, 28 U.S .C.A. § 2201(a), and in the Uniform DJA: "The court may
refuse to render or enter a declaratory judgment or decree where such judgment
or decree, if rendered or entered, would not terminate the uncertainty or
controversy giving rise to the proceeding ." Unif. Declaratory Judgments Act § 6
(1922).
The phrase "enumeration not exclusive" in the title of KRS 418 .045 also
appears in Section 5 of the Uniform DJA. The Kentucky DJA contains an
additional sentence that does not appear in the Uniform DJA : "The enumeration
herein contained does not exclude other instances wherein a declaratory
judgment may be prayed and granted under KRS 418.040, whether such other
instance be of a similar or different character to those so enumerated ." KRS
418.045. The sentence merely clarifies the principle, as found in the title of KRS
418 .045, that this section of the Kentucky DJA, enumerating certain specific
situations, is not exclusive as to other situations. It, however, by itself, does not
expand the scope of the Kentucky DJA beyond that of other states that have
adopted the Uniform DJA.
C. Negligence Cases
In many states, including ours, although there appears to be no Kentucky
case directly on point, "[d]eclaratory relief is not ordinarily available in respect of
allegations of past negligence and damage, nor will an action for declaratory
relief generally be available to a prospective defendant in a negligence action
seeking to obtain a declaration of nonliability as to the prospective plaintiff." 22A
-Am. Jur. 2d Declarato!y Judgments g 56 . It has been observed that:
To reverse the roles of the parties to a negligence action would
jeopardize those procedures the law has traditionally provided to
injured parties seeking judicial relief. An injured party has a right to
choose the forum and time, if at all, to assert a claim . To permit a
prospective defendant to attempt to obtain a declaration of nonliability would force an injured party to litigate a claim that party may
not have wanted to litigate at a time which might be inconvenient or
which might precede the party's determination of the full extent of
damages .
Nonetheless, in allowing the declaratory judgment action to proceed, the
circuit court relied on two Kentucky cases: American Continental Ins. Co. v.
Weber & Rose, P .S.C . , 997 S.W.2d 12 (Ky. App. 1998), and Bank One,
Kentucky, N .A. v. Murphy, 52 S .W .3d 540 (Ky. 2001). Although we acknowledge
that these cases weigh in favor of allowing the declaratory judgment action,
neither case is on point and they appear to be the exception rather than the rule .
Weber & Rose involved an insurance coverage dispute . 997 S.W .2d at
12. There, a jury awarded $2 .9 million in damages to the plaintiff, Gordon,
against the insured, NKC, in a negligence action . Id . The law firm, Weber &
Rose, represented the insured . Id. at 13. The verdict amount dipped into excess
coverage limits . Id. After the trial in the underlying action, the excess carrier,
ACIC, denied liability and filed a declaratory judgment action against the insured,
seeking a ruling that it was not liable on the excess policy for the judgment
rendered against the insured . Id .
Thereafter, the law firm intervened in the action, seeking declaratory relief
adjudicating that it could not be found liable to the excess insurer for malpractice
in connection with its representation of the insured . Id . The circuit court granted
the law firm a summary .judgment on the ground that it could not be adjudged
liable to the excess insurer for malpractice, and the Court of Appeals affirmed .
Id . at 14.
In Bank One, this Court considered whether an employer commits an
impermissible retaliatory act under the Kentucky Civil Rights Act by filing a
declaratory judgment action seeking a determination that it is entitled to prevail
on its affirmative defenses before a potential plaintiff files a lawsuit and while
settlement negotiations are ostensibly ongoing. 52 S.W.3d at 541 . The
employee contended that filing a suit while settlement negotiations were ongoing
amounted to a violation of KRS 344.280 and was retaliatory in nature . Id. at 543.
We disagreed . In holding that the action was not retaliatory, we stated that "[i]t
would be unwise for this Court to introduce limitations upon the rights of parties
to seek declaratory relief." Id . at 546 .
It is not surprising that, besides Weber & Rose and Bank One, which are
not directly on point, there is little precedent for declaratory relief under the
present circumstances. However, a Texas case, Averitt v.
PriceWaterhouseCoopers L .L.P . , 89 S .W.3d 330 (Tex. App. 2002), appears to
address essentially the same issue we are faced with here. The issue in Averitt
was whether an accounting firm could use a declaratory judgment action to
obtain a declaration of non-liability for an alleged breach of oral contract for
accounting services pertaining to the formation of a trust. Id . at 331 . The client
10
moved for summary judgment on the ground that the accounting firm was
improperly using the Texas DJA to determine potential tort liability. Id. at 333.
The trial court denied the client's motion for summary judgment, but the Texas
Court of Appeals reversed and held that the accounting firm was improperly
using its suit for declaratory judgment to determine potential tort liability . Id . at
336.
In addition to Averitt , Mammoth cites to decisions by appellate courts in
Arkansas, California, Idaho, Illinois, Indiana, Kansas, Maryland, Minnesota,
Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Oklahoma,
Pennsylvania, Tennessee, and Wisconsin recognizing that declaratory relief is
not intended as a vehicle for adjudicating allegations of past negligence or
damage. Bankers & Shippers Ins. Co. of New York v. Kildow, 654 S .W.2d 600
(Ark. Ct. App. 1983) ; Watson v. Sansone, 96 Cal. Rptr. 387 (Cal . Ct. App. 1971) ;
Ennis v.-Case y, 238 P.2d 435 (Idaho 1951) ; Howlett v. Scott, 370 N.E.2d 1036
(III. 1977) ; Volkswagenwerk, A. G. v. Watson , 390 N .E.2d 1082 (Ind. Ct. App.
1979); State Farm Fire and Cas. Co . v. Finney, 770 P .2d 460 (Kan. 1989);
Polakoff v. Hampton, 810 A.2d 1029 (Md . Ct. Spec. App . 2002); Ditzler v. Spee ,
180 N .W.2d 178 (Minn. 1970); Campbell 66 Exp., Inc. v. Thermo King of
Springfield, Inc. , 563 S .W.2d 776 (Mo . Ct. App. 1978) ; Ryder Truck Rental, Inc.
v. Rollins , 518 N.W.2d 124 (Neb. 1994); Donadio v. Cunningham , 277 A.2d 375
(N .J . 1971) ; Salomon Bros., Inc. v. West Virginia State Bd. of Investments , 575
N .Y.S .2d 993 (N .Y. Sup. Ct. 1990); Coca-Cola Bottling Co. Consol . v. Durham
Coca-Cola Bottling Co. , 541 S .E.2d 157 (N .C. Ct. App. 2000); Baker v. Miller,
294 N .E.2d 901 (Ohio Ct. App. 1972); Hyman-Michaels Co. v. Hampton , 471
P .2d 463 (Okla . 1970); Osram Sylvania Products, Inc. v. Comsup Commodities,
Inc. , 845 A.2d 846 (Pa . Super. Ct. 2004); Tennessee Farmers Mut. Ins . Co. v.
Hammond , 290 S.W.2d 860 (Tenn . 1956); Roberts v. Badger State Auto Auction ,
604 N.W.2d 33 -(Wis. Ct . App. 1999) . Federal law is consistent with this position .
See, e.g . , Cunningham Bros., Inc. v. Bail , 407 F.2d 1165 (7th Cir. 1969) (the
Federal DJA was not intended to enable a prospective defendant in a negligence
action to obtain a declaration of non-liability). We find these authorities
persuasive.
D. Writ of Prohibition
Mammoth claims that it is entitled to a writ under either the no jurisdiction
class or the "certain special cases" exception . We point out that the circuit court
has jurisdiction over declaratory judgment actions generally, thus making the first
class of writ cases inapplicable here . We believe, however, that the issue raised
in this case concerning the limitations of the Kentucky DJA is sufficiently
important that we may address the merits under the special cases exception .
Therefore, under these facts, the requirements for a writ are as follows:
A writ of prohibition may be granted upon a showing . . . 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 v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). In certain special cases this
Court will entertain a petition for prohibition on a claim that the lower court was
acting erroneously within its jurisdiction in the absence of a showing of
irreparable injury, provided a substantial miscarriage of justice will result if the
lower court is proceeding erroneously, and correction of the error is necessary
12
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IV. Conclusion
For the foregoing . reasons, we reverse the Court of Appeals' Aenial of the
writ of prohibition and remand for entry of a writ ordering that the declaratory
judgment action in the Fayette Circuit Court be dismissed. In so holding, we
express our disapproval of potential defendants initiating declaratory judgment
actions for the purpose of establishing their non-liability with respect to unsued
claims, except under narrow circumstances . However, our holding today in no
way precludes liability carriers from litigating by declaratory judgment questions
of coverage .
Minton, CJ ; Cunningham, Schroder and Scott, JJ ., concur . Abramson,
J., concurs by separate opinion, with Venters, J ., joining that opinion . Noble, J.,
not sitting .
COUNSEL FOR APPELLANT :
Charles A. Goodman, III
Garmon & Goodman
139 North Public Square
P .O. Box 663
Glasgow, KY 42142-0663
Joe B. Campbell
Campbell Law Office
1011 Lehman Avenue, Suite 105
Bowling Green, KY 42103-6515
John Lewis Tate
Stites & Harbison, PLLC
400 W . Market Street, Ste. 1800
Louisville, KY 40202-3352
COUNSEL FOR APPELLEE:
James E . Keller
Gess Mattingly & Atchison, PSC
201 West Short Street
Lexington, KY 40507
Kenneth Gregory Haynes
Wyatt, Tarrant & Combs, LLP
500 W. Jefferson Street, Suite 2800
Louisville, KY 40202-2898
Rania Marie Basha
Wyatt, Tarrant & Combs, LLP
500 W. Jefferson Street, Suite 2800
Louisville, KY 40202-2898
Sara Christine Veeneman
Wyatt, Tarrant & Combs, LLP
500 W. Jefferson Street, Suite 2800
Louisville, KY 40202-2898
Virginia Hamilton Snell
Wyatt, Tarrant & Combs, LLP
500 W. Jefferson Street, Suite 2800
Louisville, KY 40202-2898
Kimberly Nell Bunnell
Fayette County Circuit Court Judge
521 Robert F. Stephens Courthouse
120 North Limestone Street
Lexington, KY 40507
ANIICUS CURIAE:
Richard Wayne Hay
203 West Columbia Street
P .O. Box 1124
Somerset, KY 42502-1124
Sarah Hay Knight
203 West Columbia Street
P.O . Box 1124
Somerset, KY 42502-1124
MODIFIED ;
RENDERED :
:PTEMBER 26, 20013
PTEMBER 18, 2008
TO BE PUBLISHED
,-,vuyrtwt vwurf of ~Gufurhg
2008-SC-000048-MR
MAMMOTH MEDICAL, INC.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NUMBER 2007-CA-001342
FAYETTE CIRCUIT COURT NO. 06-C1-004796
V.
HON. KIMBERLY BUNNELL
(JUDGE, FAYETTE CIRCUIT COURT),
ET AL.
APPELLEES
CONCURRING OPINION 13YJUSTICE ABRAMSON
I agree with the majority but write separately to emphasize that neither American
Continental Ins. Co . v. Weber & Rose P.S .C., 997 S .W.2d 12 (Ky. App. 1998) nor Bank
One, Kentucky, N .A. v. Murphy, 52 S.W.3d 540 (Ky. 2001) really addresses the issue
before this Court. Consequently, we are confronted with an issue of first impression,
the disposition of which has far-reaching consequences for the conduct of litigation in
the Commonwealth .
In Weber & Rose, an excess insurance carrier filed a declaratory judgment
action against its insured, seeking to avoid coverage of a jury verdict on the grounds
that the particular .event was not covered and the insured had failed to give timely
notice . When the insurance carrier suggested that the law firm which had defended the
insured in the underlying litigation had mishandled the case, the law firm intervened
seeking a declaration that, as a matter of law, it owed no duty to the excess insurance
carrier . At least two factors distinguish that case from the one before this Court. First,
the case began as a declaratory judgment action filed by a carrier for purposes of
determining coverage, a common basis for declaratory relief. Second, when the law
firm intervened to. assert its own declaratory judgment claim, it was proceeding in the
forum that had already been chosen by the party who would be seeking affirmative
relief against it in the form of damages for past conduct.
A federal declaratory judgment action was at issue in Bank- One, supra. In
dismissing a request for a declaration that Bank One was not liable to an employee for
sexual harassment, the federal district court criticized the bank for rushing to the federal
courthouse to preempt the employee from choosing when and where to file her lawsuit .
The Kentucky Supreme Court did not address the propriety of the preemptive filing but
simply considered whether initiating the federal declaratory judgment action constituted
retaliatory conduct by the bank in violation of KRS 344 .280 .
Murphy contends that filing a suit while settlement
negotiations were ongoing amounts to a violation of KRS
344.280 and is retaliatory in nature . We disagree . While it
may amount to bad manners or may appear to some to be
unprofessional, such conduct does not constitute a violation
of the statute nor is it tortious. Declaratory judgment actions
are widely utilized to establish certain fundamental rights in
ongoing disputes . KRS 418 .045 contains an extensive list of
subjects and transactions upon which declaratory relief is
available . It would be unwise for this Court to introduce
limitations upon the rights of parties to seek declaratory
relief. Accordingly, the trial court's denial of Murphy's motion
to amend her complaint to add a retaliation claim was
proper.
52 S .W.3d at 546. The language employed by the Court, while indicative of a generally
expansive approach to the availability of declaratory judgment relief, is clearly dicta for
any issue beyond the one that was immediately before the Court, i.e. whether the
federal action constituted retaliation under KRS 344.280 .
The issue of the availability of the Kentucky declaratory judgment statute as a
vehicle-for~asserting non-liability for allegedly negligent conduct is squarely before us for
the first time in this case . Neither the remedial nature of KRS Chapter 418 nor the last
sentence of KRS 418.045 regarding the use of declaratory judgments in "other
instances" not specifically enumerated renders our declaratory judgment statute
fundamentally different from its federal counterpart or from other states' statutes .
Accordingly, I concur with the majority's conclusion that a declaratory judgment action is
unavailable in these circumstances and the orderly administration of justice supports
issuance of the requested writ.
Venters, J., joins .
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2008-SC-000048-MR
MAMMOTH MEDICAL, INC.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NUMBER 2007-CA-00'1342
FAYETTE CIRCUIT COURT NO. 06-C1-004796
HON. KIMBERLY BUNNELL
(JUDGE, FAYETTE CIRCUIT COURT),
ET AL
APPELLEES
ORDER OF MODIFICATION
The Memorandum Opinion of the Court entered September 18, 2008, is
hereby modified on its face by substitution of attached page 1 in lieu of the
original page 1 of the opinion.
The Concurring Opinion entered September 18, 2008, is hereby modified
on its face by substitution of the attached page 1 in lieu of the original page 1 of
the concurring opinion .
The purpose of this Order of Modification is to reflect that this opinion is
TO BE PUBLISHED and does not affect the holding of the original Opinion of the
Court.
ENTERED: September 26, 2008.
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