Commonwealth of Kentucky, Finance and Administration Cabinet v. Hon Thomas D. Wingate Judge, Franklin Circuit Court ( 2015 )

MODIFIED: MAY 14, 2015
RENDERED: FEBRUARY 19, 2015
TO BE PUBLISHED
S51tprrmr Conti of TArttfurkg
2014-SC-000355-MR
COMMONWEALTH OF KENTUCKY, APPELLANTS
FINANCE AND ADMINISTRATION CABINET;
LORI FLANERY, IN HER OFFICIAL
CAPACITY AS SECRETARY OF THE
FINANCE AND ADMINISTRATION CABINET;
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
SERVICES; AUDREY HAYNES, IN HER
OFFICIAL CAPACITY AS SECRETARY OF
THE CABINET FOR HEALTH AND FAMILY
SERVICES; COMMONWEALTH OF
KENTUCKY, DEPARTMENT OF MEDICAID
SERVICES; AND LAWRENCE KISSNER, IN
HIS OFFICIAL CAPACITY AS
COMMISSIONER OF THE DEPARTMENT
FOR MEDICAID SERVICES
ON APPEAL FROM COURT OF APPEALS
V. NO. 2014-CA-000429-OA
FRANKLIN CIRCUIT COURT NO. 12-CI-01373
HONORABLE THOMAS D. WINGATE, APPELLEES
JUDGE, FRANKLIN CIRCUIT COURT; AND
KENTUCKY SPIRIT HEALTH PLAN, INC.
OPINION OF THE COURT BY JUSTICE VENTERS
VACATING AND REMANDING
Appellants, Commonwealth of Kentucky, Finance and Administration
Cabinet, et al. (collectively, Cabinet), appeal from an order of the Court of
Appeals granting the petition of Kentucky Spirit Health Care Plan, Inc., for a
writ of prohibition against Franklin Circuit Court Judge Thomas Wingate. The
writ prohibited Judge Wingate from enforcing an order imposing a stay of
discovery in the underlying declaratory judgment litigation.
Kentucky Spirit brought a declaratory judgment action seeking a ruling
that it had a right to terminate its Medicaid managed care contract with the
Cabinet, without penalty, prior to the expiration of the contract. Following a
partial summary judgment in favor of the Cabinet, Kentucky Spirit appealed
and the Cabinet cross-appealed. While those appeals are pending, Kentucky
Spirit intended to pursue pre-trial discovery measures relating to its rights
under the Medicaid contract. The circuit court, however, stayed those
discovery efforts until the resolution of the partial summary judgment appeals.'
In concluding that Kentucky Spirit should have the right to proceed with
discovery, pending the appeal, the Court of Appeals determined that the trial
court's suspension of discovery amounted to an indefinite stay on discovery
without a pressing need to do so in violation of Estate of Cline v. Weddle, 250
S.W.3d 330 (Ky. 2008) and Rehm v. Clayton, 132 S.W.3d 864 (Ky. 2004).
As grounds for relief from the writ, the Cabinet argues that: (1) the trial
court's stay of discovery was proper because upon Kentucky Spirit's appeal of
the partial summary judgment order, the Franklin Circuit Court lost "subject
matter jurisdiction" over the proceeding and, therefore, there was no ongoing
circuit court jurisdiction under which discovery could proceed; and (2) even if
1 On February 6, 2015, the Court of Appeals affirmed the trial court's partial
summary judgment. See Kentucky Spirit Health Plan, Inc. v. Commonwealth Finance
and Administration Cabinet, 2013-CA-001050-MR and 2013-CA-001201-MR, 2015 WL
510852, (Ky. App. Feb. 6, 2015). The Court of Appeals opinion had not attained
finality as of the rendition date of this opinion.
2
the circuit court was not divested of subject matter jurisdiction by the appeal
from the partial summary judgment, a stay of discovery was appropriate
pending resolution of the threshold issues currently on appeal.
Because the circuit court did not abuse its discretion by temporarily
staying discovery, we vacate the writ issued by the Court of Appeals and
remand for entry of an order denying Kentucky Spirit's petition for a writ of
prohibition.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2011, Kentucky Spirit entered into a three-year contract with the
Cabinet to provide Medicaid services in Kentucky. In October 2012, Kentucky
Spirit filed a petition for declaratory judgment (Case No. 12-CI-1373) in
Franklin Circuit Court seeking a determination that it had the right to an early
termination of the contract, without liability for damages, effective July 5,
2013, one year prior to the scheduled conclusion of the initial term under the
provisions of the contract. The complaint further alleged that in the event that
Kentucky Spirit was subject to damages, then those damages should be
calculated pursuant to the liquidated damages provision of the contract. In
April 2013, Kentucky Spirit brought a second lawsuit in Franklin Circuit Court
(Case No. 13-CI-458) in which it alleged various damage claims against the
Cabinet based upon the Cabinet's alleged breach of contract; the Cabinet
responded with its own counterclaim for damages. The two lawsuits were
subsequently consolidated.
3
On May 31, 2013, the circuit court entered an order rejecting Kentucky
Spirit's claim that it was entitled to an early termination of the contract,
holding instead that the company did not have that right. The order further
stated that if Kentucky Spirit did not perform its obligations under the
contract, it would be in breach of the contract and would consequently be
subject to liability under the liquidated damages section of the contract.
Because the order did not resolve all of the issues between the parties (more
specifically, Count III in Case No. 12-CI-1373 and Counts I-VIII in Case No. 13-
CI-458 remained unresolved) the trial court's order was a "partial summary
judgment" with additional matters remaining to be decided. 2
Kentucky Spirit appealed the partial summary judgment order, and the
Cabinet filed a cross-appeal challenging the ruling insofar as it determined that
damages would be calculated exclusively under the liquidated damages clause
of the contract. The issue of the circuit court's continuing "jurisdiction" over
the case during the pendency of the appeal was first introduced as an issue by
the circuit court itself in connection with a motion for injunctive relief filed by
the Cabinet seeking to compel Kentucky Spirit to continue to perform under
the contract beyond its announced termination date of July 5, 2013. In its
order denying that motion, the circuit court stated that the appeal of its partial
summary judgment order "had divested this court of jurisdiction"; the circuit
2 Recognizing that its partial summary judgment ruling did not dispose of all of
the claims pending before it and therefore would otherwise be a non-final order, the
circuit court included the language of CR 54.02 in the order by stating "[t]his order is
final and appealable and there is no just cause for delay."
4
court further stated that it "decline[d] to invoke any residual discretionary
jurisdiction it may retain" so as to address the motion for injunctive relief.
While the appeal of the partial summary judgment awaited adjudication
in the Court of Appeals, Kentucky Spirit served a fifty-item request for
production of documents on the Cabinet; the Cabinet responded with a motion
to stay discovery. 3 In its order granting the Cabinet's motion for a stay the
circuit court stated as follows:
Plaintiff desires to proceed with discovery in this matter,
particularly regarding damages and reformation claims. However,
this Court is without jurisdiction as this matter has been fully
adjudicated at this level. An Opinion and Order was entered on
May 31, 2013 granting summary judgment in favor of the
Defendants. Of importance in the abovementioned Opinion and
Order was the discussion pertaining to the ambiguity of the
contract. The Court stated "[w]hile Section 39.13 is arguably
poorly drafted, the terms of the Contract as a whole are not
ambiguous," and therefore held reformation of the Contract would
not occur. Furthermore, the Court's instruction in an Order
entered on June 25, 2013, stated "[s]hould Defendants seek
redress of the claims for monetary damages, the Court suggests
filing an independent original action for breach of contract at the
appropriate time." The Court directs the parties to the Court of
Appeals. The Court relies upon the abovementioned Orders while
addressing the instant Motion and holds again that jurisdiction
does not remain in the Franklin Circuit Court.
(emphasis added). In response to Kentucky Spirit's motion for reconsideration
of this order the circuit court corrected its erroneous reference to the cases
having been "fully adjudicated," stating "[t]he Court's February 6, 2014 Order
did not dispose of either Count III of Plaintiff's declaratory judgment complaint
3 Kentucky Spirit alleges that this document request applied only to issues
relating to the second lawsuit (the one relating to damages) and did not apply to the
issues relating to the now appealed declaratory judgment action.
5
in 12 CI 1373 or Counts I-VIII of Plaintiff's complaint in 13-CI-458, as those
- -
counts have not been adjudicated. However, the Court maintains that a stay of
discovery in this matter is appropriate."
Following the circuit court's stay of discovery, Kentucky Spirit filed a
petition for a writ of prohibition in the Court of Appeals seeking a writ that
would permit it to proceed with discovery on the remaining issues while the
partial summary judgment was addressed in the appellate courts. The Court of
Appeals concluded that the stay of discovery amounted to an impermissible
indefinite stay on discovery without a pressing need to do so in violation of
Weddle and Rehm. This appeal followed.
II. STANDARD OF REVIEW
We set forth the standard for granting a writ of prohibition in Hoskins v.
Maricle: "A writ ... may be granted upon a showing that (1) the lower court is
proceeding or is about to proceed outside of its jurisdiction and there is no
remedy through an application to an intermediate court; or (2) 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." 150 S.W.3d 1, 10
(Ky. 2004); see also CR 81. Further, it is well established that a writ of
prohibition "is an 'extraordinary remedy' that Kentucky courts 'have always
been cautious and conservative both in entertaining petitions for and in
4We frequently refer to the first mentioned basis for writ relief as Hoskins's
"first class" writ, and the basis for writ relief mentioned second as Hoskins's "second
class" writ.
6
granting such relief."' Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754
(Ky. 2005) 5 (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)).
Typically, a Court of Appeals decision to grant or deny a writ is reviewed
for an abuse of discretion. Southern Financial Life Ins. Co. v. Combs, 413
S.W.3d 921, 926 (Ky. 2013). "But when the issue presented involves a
question of law, we review the question of law de novo." Id. Because there are
no issues of law predominating in this proceeding, our review is pursuant to
the abuse of discretion standard.
III. ANALYSIS
A. The Appeal of the Partial Summary Judgment did not Divest the
Circuit Court of Subject Matter Jurisdiction and thus May not be
Relied Upon by the Cabinet as an Alternative Grounds for Relief.
The Cabinet's first argument is that the circuit court properly entered a
stay on discovery because, with the appeal of the partial summary judgment
pending, the circuit court was divested "of all jurisdiction over the case," and
therefore, further discovery was improper.
We first note that Kentucky Spirit itself did not seek relief in its petition
to the Court of Appeals under the first class of the Hoskins writ standard, and
does not argue that the circuit court lost jurisdiction following the partial
summary judgment. Rather, as an alternative grounds for upholding the
circuit court's ruling, the Cabinet argues that, upon the appeal of the partial
summary judgment, the circuit court lost "subject matter jurisdiction" to
5 Overruled on other grounds by Interactive Media Entertainment and Gaming
Ass'n, Inc. v. Wingate, 320 S.W.3d 692 (Ky. 2010).
7
further preside over the case, including the power to oversee discovery. 6 The
Cabinet, however, misperceives the concept of "subject matter jurisdiction" as
that terminology has been defined in our relevant precedents. "In Kentucky,
circuit courts are courts of 'general jurisdiction,' which means that circuit
courts 'shall have original jurisdiction of all justiciable causes not vested in
some other court."' Davis v. Wingate, 437 S.W.3d 720, 725 (Ky. 2014) (citing
Ky. Const. § 112(5)). Thus "subject-matter jurisdiction" refers to a circuit
court's authority not simply to hear this case, but rather, to hear "this kind of
case." Id.; see also Lee v. George, 369 S.W.3d 29, 33 (Ky. 2012) ("In the context
of the extraordinary writs, 'jurisdiction' refers not to mere legal errors but to
subject-matter jurisdiction . . . which goes to the court's core authority to even
hear cases" (citations omitted)); Daugherty v. Telek, 366 S.W.3d 463, 467 (Ky.
2012) ("Once filed, a court has subject matter jurisdiction of the case so long as
the pleadings reveal it is the kind of case assigned to that court by a statute or
constitutional provision.").
Here, the underlying claims relate to Kentucky Spirit's action for
ascertaining its right to an early termination of the Medicaid contract and
associated issues concerning the measure of damages. Circuit Courts, as
courts of general jurisdiction, KRS 23A.010(1), 7 have subject matter
6 See Commonwealth, Corrections Cabinet v. Vester, 956 S.W.2d 204, 205-06
(Ky. 1997) ("[w]here the prevailing party seeks only to have the judgment affirmed, it is
entitled to argue without filing a cross-appeal that the trial court reached the correct
result for the reasons it expressed and for any other reasons appropriately brought to
its attention.").
7 "The Circuit Court is a court of general jurisdiction; it has original jurisdiction
of all justiciable causes not exclusively vested in some other court." KRS 23A.010(1).
8
jurisdiction over declaratory judgments and contract disputes of the type at
issue. See KRS 418.040 (declaratory judgment statute); Bank One Kentucky
NA v. Woodfield Financial Consortium LP, 957 S.W.2d 276, 280 (Ky. App. 1997)
N
(a claim for declaratory relief seeking the construction and interpretation of a
contract is valid under KRS 418.040). Thus the Cabinet's argument that the
circuit court lacks "subject matter jurisdiction" because of the order granting
partial summary judgment and subsequent appeal is inaccurate. The award of
partial summary judgment and the associated appeal does not implicate the
relevant inquiry: whether the Franklin Circuit Court has the authority to hear
"this kind of case."
In summary, we are unpersuaded by the Cabinet's argument that the
circuit court's holding may be upheld upon the basis that it had lost "subject
matter jurisdiction" over the underlying litigation, and so may not further
preside over the case in any manner.
B. The Court of Appeals Abused its Discretion in Granting the Writ.
The Cabinet argues that even if the circuit court was not divested of
subject matter jurisdiction by the appeal from the partial summary judgment,
a stay of discovery was appropriate pending resolution of the threshold issues
currently under litigation on appeal. We address this argument under the
second class of the Hoskins test. For a writ to succeed under the second class
of Hoskins Kentucky Spirit must demonstrate that: (1) Franklin Circuit Court
is acting, or is about to act, erroneously, although within its jurisdiction; (2)
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there exists no adequate remedy by appeal or otherwise; and (3) great injustice
and irreparable injury will result if the petition is not granted.
As discussed above, under the circumstances before us, the circuit court
was not acting outside of its subject matter jurisdiction when it chose to abate
discovery pending resolution of the appeal. However, we have previously held
that the filing of a notice of appeal under CR 73.01(2) divests the circuit court
of particular casejurisdiction and transfers that authority to the appellate
court. City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990); see also
Johnson v. Commonwealth, 17 S.W.3d 109, 113 (Ky. 2000) ("As a general rule,
except with respect to issues of custody and child support in a domestic
relations case, the filing of a notice of appeal divests the trial court of
jurisdiction to rule on any issues while the appeal is pending.") (citations
omitted). Hence, upon the filing of a notice of appeal, while a circuit court
retains subject matter jurisdiction over that type of case, it will typically lose
particular case jurisdiction over the specific lawsuit owing to the transfer of
that jurisdiction to the appellate courts. In declining jurisdiction over the case,
the circuit court specifically cited to Stallings, and the Cabinet relies upon that
same principle in supporting its argument that the circuit court was deprived
of jurisdiction over the case such that ongoing discovery proceedings would be
improper. However, in Garnett v. Oliver, our predecessor court held that "if the
appeal from the particular order or judgment does not bring the entire cause
into the appellate court . . . further proceedings in the conduct of the cause
may properly be had in the lower court." 45 S.W.2d 815, 817 (Ky. 1931). See
10
also Commonwealth v. Bailey, 71 S.W.3d 73, 84 (Ky. 2002) ("An interlocutory
appeal, however, generally only deprives the trial court of the authority to act
further in the matter that is subject of the appeal, and the trial court is not
divested of the authority to act in matters unrelated to the appeal.").
Thus, pursuant to Garnett and Bailey, because Kentucky Spirit's appeal
and the Cabinet's cross-appeal of the partial summary judgment, did not "bring
the entire cause into the appellate court . . . further proceedings in the conduct
of the cause may properly be had in the lower court." Garnett, 45 S.W.2d at
817. As such, we are unpersuaded that Stallings is dispositive of the issue.
Kentucky Spirit claims that its document request applied exclusively to
the damages action and was totally unrelated to the matter pending on appeal,
and "is based upon different facts, asserts different claims, and seeks different
relief than the Declaratory Judgment Action." The Cabinet disputes that claim
and offers examples of how the issues remaining in the circuit court overlap
with the matter on appeal. We conclude that Garnett is the controlling
authority. The circuit court retained jurisdiction over pending claims not being
appealed. Ancillary to that jurisdiction is the authority to allow ongoing
discovery pertaining to claims that remained with that court, subject of course,
to the circuit court's exercise of its broad discretion over the scope of such
discovery matters.
Even though the trial court was authorized to permit ongoing discovery,
nevertheless, it is clear that the trial court's abatement of discovery pending
the appeal will not result in a "great injustice and irreparable injury . . . if the
11
petition is not granted." Trial courts are conferred with broad discretion in
managing discovery in light of the unique factors present in any particular
case. Sexton v. Bates, 41 S.W.3d 452 (Ky. App. 2001) ("It is a well established
principle that a trial court has broad discretion over disputes involving the
discovery process."). Under these circumstances the circuit court acted well
within its discretion in deciding to hold further discovery in abeyance pending
the resolution of the appeal. There was no great injustice associated with the
stay.
Nor is there an irreparable injury connected with the stay. There is no
indication that if the stay is not lifted the documents requested in Kentucky
Spirit's discovery effort will not be readily available for disclosure upon
resolution of the pending appeals. Kentucky Spirit has failed to explain how it
will be prejudiced if discovery is abated until resolution of the appeals. A writ
of prohibition "is an extraordinary remedy," that Kentucky courts "have always
been cautious and conservative both in entertaining petitions for and in
granting such relief." Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). The
trial court's order temporarily abating discovery does not implicate the need for
an extraordinary remedy; nor will it result in a great injustice or an irreparable
injury.
And finally, we believe that the Court of Appeals and Kentucky Spirit
have misplaced their reliance upon Weddle and Rehm to strike down the circuit
court's order as an indefinite stay on discovery without a pressing need. In
Rehm, an asbestos exposure case involving multiple defendants, the circuit
12
court stayed discovery following summary judgment as to some of the
defendants; the plaintiffs sought to continue discovery as to the remaining
defendants. In holding that the plaintiffs were entitled to a writ allowing them
to continue with discovery, we held that lallthough Appellants cannot identify
specific persons' testimony that will be lost or the evidence that will disappear,
they are not required to do so. Information and evidence now available may be
lost as a result of the discovery stay, and that is sufficient." Rehm, 132 S.W.3d
at 868 (internal quotes omitted).
Similarly, Weddle holds that the Court of Appeals erred in declining to
issue a writ of mandamus to compel the trial court to vacate a stay order,
reasoning that the trial court had acted without articulating any urgency for
abating the case, and because the issuance of the stay order resulted in
irreparable injury with no adequate remedy by appeal. Also in this vein, in
Volvo Car Corp. v. Hopkins, 860 S.W.2d 777 (Ky. 1993), we held that in the
context of a sudden acceleration lawsuit that the petitioner was entitled to a
writ because the delay involved in awaiting final disposition of the case before
addressing the erroneous discovery ruling would likely result in losing
discoverable information from witnesses who may have died, or moved, or
whose memories might be dimmed by time.
As we recently explained in Inverultra, S.A. v. Wilson, --- S.W.3d ---, 2014
WL 7238373, *5-*6 (Ky. 2014), Volvo and Rehm both purport to rely on
Meredith v. Wilson, 423 S.W.2d 519 (Ky. 1968), a case in which our predecessor
Court granted mandamus and reversed a discovery stay. The analysis in
13
Meredith, however, was not based on a generalized concern that information
could conceivably be lost. Id. It was based upon the determination that
because "in the circumstances of this case" there was an apparently real risk
that "information and evidence now available may be lost in the event of the
death of either of the witnesses sought to be interrogated." 423 S.W.2d at 520.
Thus, Meredith reflects the sensible holding that a genuine exigency might well
call into question the adequacy of an appeal. Inverultra at *5-*6. Cf. Texaco,
Inc. v. Borda, 383 F.2d 607, 609 (3rd Cir. 1967) (denying mandamus relief from
a discovery stay except allowing the deposition of the seventy-one year old
plaintiff). See also, Landis v. North American Co., 299 U.S. 248, 255 (1936)
(Cardozo, J.) ("the suppliant for a stay must make out a clear case of hardship
or inequity in being required to go forward, if there is even a fair possibility that
the stay for which he prays will work damage to someone else, [and] . . . [o]nly
in rare circumstances will a litigant in one cause be compelled to stand aside
while a litigant in another settles the rule of law that will define the rights of
both.").
In each of these cases where mandamus relief was granted, however, the
potential evidence at risk exceeded a mere request for pre-existing documents
housed at a known and secure location. Rather, in those cases the discovery
requests implicated information realistically subject to loss or destruction, and
to witnesses' fading memories, the dispersal of witnesses, and perhaps even
their deaths. None of these concerns are alleged in Kentucky Spirit's document
14
request dispute; as noted above, there is simply no realistic danger of the loss
of the subject governmental documents.
Obviously, some orders abating discovery may cause irreparable injury
and some may not. Any reading of Rehm, Weddle, and Volvo that there is a
presumption of irreparable damage is misguided. Rehm, Weddle, and Volvo,
therefore, represent a very narrow exception restricting a circuit court's
discretion to abate discovery which is applicable only when there is a realistic
chance of a party losing crucial evidence possessed by witnesses whose
accounts may otherwise be lost if discovery is unduly delayed pending
appellate procedures. As explained, that is simply not the case here. As such,
we conclude that the Court of Appeals', and Kentucky Spirit's, reliance on this
line of cases is misplaced under the facts of this case. See Inverultra, at *5-*6.
IV. CONCLUSION
Because the circuit court did not abuse its discretion by temporarily
staying discovery pending the resolution of matters pertaining to the partial
summary judgment in the appellate courts, we therefore vacate the writ of
prohibition issued by the Court of Appeals and remand the proceeding for entry
of an order denying Kentucky Spirit's petition for a writ of prohibition.
Minton, C.J., Abramson, Cunningham, Keller, Noble and Venters, JJ.,
sitting. All concur.
15
COUNSEL FOR APPELLANTS:
Kenneth Allen Bohnert
Richard M. Sullivan
Scott Alan Johnson
Conliffe, Sandmann 86 Sullivan
COUNSEL FOR APPELLEE HON. THOMAS D. WINGATE, JUDGE, FRANKLIN
CIRCUIT COURT:
Hon. Thomas Dawson Wingate
COUNSEL FOR APPELLEE KENTUCKY SPIRIT HEALTH PLAN, INC.:
Philip Wallace Collier
Bethany A. Breetz
Stites 86 Harbison, PLLC
Christopher Flynn
Crowell 86 Moring, LLP
16
oi5uprrtut Gurt of fT rnfuritv
2014-SC-000355-MR
COMMONWEALTH OF KENTUCKY, APPELLANTS
FINANCE AND ADMINISTRATION CABINET;
LORI FLANERY, IN HER OFFICIAL
CAPACITY AS SECRETARY OF THE
FINANCE AND ADMINISTRATION CABINET;
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
SERVICES; AUDREY HAYNES, IN HER
OFFICIAL CAPACITY AS SECRETARY OF
THE CABINET FOR HEALTH AND FAMILY
SERVICES; COMMONWEALTH OF
KENTUCKY, DEPARTMENT OF MEDICAID
SERVICES; AND LAWRENCE KISSNER, IN
HIS OFFICIAL CAPACITY AS
COMMISSIONER OF THE DEPARTMENT
FOR MEDICAID SERVICES
ON APPEAL FROM COURT OF APPEALS
V. NO. 2014-CA-000429-OA
FRANKLIN CIRCUIT COURT NO. 12-CI-01373
HONORABLE THOMAS D. WINGATE, APPELLEES
JUDGE, FRANKLIN CIRCUIT COURT; AND
KENTUCKY SPIRIT HEALTH PLAN, INC.
ORDER
This matter is before the Court on the Appellant's petition to modify the
Opinion of the Court by Justice Venters, rendered February 19, 2015. The
Court having reviewed the record and being otherwise fully and sufficiently
advised, ORDERS:
1) The Appellant's petition to modify the Opinion of the Court by
Justice Venters is GRANTED; and
2) The opinion is MODIFIED on its face by substitution of the
attached opinion in lieu of the original opinion rendered February 19, 2015.
Said modification does not affect the holding.
All sitting. All concur.
ENTERED: May 14, 2015.
CHIEF JUSTICE
2