llV|PORTANTV NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

- TH|S OPlNlON lS DES|GNATED ”NOT TO BE PUBL|SHED."
PU.RSUANT TO THE RULES OF ClVIL PROCEDURE
PROMULGATED BY THE SUPRE|VIE COURT, CR 76.28(4)(€),
TH|S OPlNlON IS NOT TO BE PUBL|SHED AND SHALL NOT BE
C|TED OR_USED AS BlND|NG PRECEDENT lN ANV OTHER
CASE lN ANY_COURT OF TH|S STATE; HOWEVER,
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,
RENDERED AFTER JANUARY 1, 2003, IVlAY BE CITED FOR
CONS|DERATION BY THE COURT lF THERE |S NO PUBL|SHED
OP|N|ON THAT ’WOULD ADEQUATELY~ADDRESS THE lSSUE
BEFORE THE' COURT. OP|NlONS C|TED FOR CONS‘|DERAT|ON
B¥ THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED '
DEC|S|ON lN THE FlLED DOCUMENT AND A COPY OF THE
ENT|RE DEClSlON SHALL BE TEND__ERED ALO`NG WlTH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE . -
ACTION.

RENDERED: MARCI-I 23, 2017
NOLI`O BE PUBLISHED

Snpren’te Tnurf of Ben.[.

2016~SC-000369-MR '

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PELLANTS

 

 

 

 

 

WAYNE MICHAEL PUTNAM
AND
BETH DIANE GUDEMAN

ON APPEAL FROM COURT OF APPEALS
V. ' CASE NO. 2014~.CA~001635-OA '
FAYETTE CIRCUIT COURT NO. _OS-CI-O 17 17

HON. ERNESTO SCORSONE _" APPELLEE

JUDGE, FAYETTE CIRCUIT COURT

' AND
ESTATE OF JOSEPH WILLIAM PHELPS, REAL PARTIES IN INTEREST
MARY MARGARET PHELPS,

MELANIE MCCOOL, AND
WILLIAM PHELPS, JR.
MEMORANDUM OPINION OF THE ¢OURT
AFFIRMING-

'This writ action, arising from a post-judgment discovery dispute, is
before the Court for the second time. Slightly over a year ago, the matter Was
before us on the issue of standing, the Court of Appeals having erroneously
concluded that Appellants Wayne Michael Putnam and Beth Diane Gudeman
had no` concrete, personal interest in the documents they had been ordered to
produce from a company in which they have a substantial interest and Which
they control. This Court unanimously concluded that Appellants had the

requisite standing and remanded the matter for the Court of Appeals to

address the merits of the writ petition. Putnam, v. _Scorsone, 2015~SC-000125- "
-MR (Ky. Dec. 17, 2'015)l (unpublish'ed). On remand, the appellate court denied
the Writ, a decision we now affirm. We begin with a statement of the
background facts drawn~from our earlier opinion. -
I. Background

Appellants, Wayne Michael Putnam and Beth Diane Gudeman, and a
third person, Stephen L. Whitman,'l‘ were officers and part-owners of two sets of
lcorporations One set of corporations consisted of a series of pharmaceutical
companies that were dedicated to developing a potentially lucrative cancer drug
that appears to.be undergoing FDA approval These companies appear to have
been consolidated into CBA Pharma, Inc. The only asset owned by the
company is the cancer drug. Appellants are not the only owners of `ClBA
Pharma, Inc., which has approximately 800 shareholders, though they are
trustees of a voting trust holding approximately 90% of the company's stock.

The other set of companies, consisting at present of Scientific Imaging
Technology Enterprises, Inc., Pixelvisio`n of Oregon, Inc., and PixelVision, Inc.,
manufacture digital cameras and parts for digital cameras. These companies
were allegedly profitable through the late 1990s. The profits are alleged to have
_ been used to fund the pharmaceutical companies, Which had no-revenue

because they were in the development phase.

Joseph William Phelps became involved in a series of "business

 

1 Whitman is not part -of the litigation at this time.

`2

transactions with hppellants beginning in 2001, when the digital camera
companies became less profitablel Speciiically, Phelps provided a series of
substantial loans to the companies, which Appellants personally
guaranteed and which were consolidated into a promissory note in 2002.
Phelps also agreed to guarantee a substantial loan from U.S. Bank, N.A. to the
digital camera companies, and, in turn, Appellants agreed to a secondary
guarantee under which they would repay any amount that Phelps had to pay to
lJ.S. Bank. The details of these transactions are immaterial, but they are
recounted in Scientijic Imaging Technol'ogy Enterpn'ses, Inc. v. Phelps, 2011-CA-
002l19-MR, 2014 WL 97393 (Ky. App. Jan. 10, 2014) (unpublished).

. In 2003, Phelps entered into an agreement with Appellants, and
some of their companies, under which he agreed to release the remaining debt
on the promissory note (which at that time was still almost $3,000,000) and to n
release Appellants from all their .guarantees, both as to the direct loans
from Phelps and the loan from U.S. Bank. In exchange, Phelps received
2,000,000 Shares cf CBA Pharma, Inc. common stock.

As it turned out, Phelps was not well and had begun having symptoms of
dementia. He was diagnosed as having Lewy body dementia, a degenerative
neurological disease similar to Alzheimer's disease and Parkinson's disease. In
light of this diagnosis and after discovering apparently unusual dealings in
Phelps's iinances, in 2004, Phelps's family contacted a lawyer to enamine

Phelps's relationship with Appella.nts and their companies

In April 2005, the digital-camera companies defaulted on the U-.S. Bank
loan, and U.S. Bank initiated the underlying litigation. Phelps, Appellants, l
Whitman, and the digital camera companies were named as defendants
Phelps filed an answerr and cross-claim against the other defendants alleging
fraud and that he had lacked capacity to enter into the 2003 release
_ agreement. Phelps also moved the circuit court for leave to file a third-party '
complaint against the pharmaceutical companies, but that was denied.. The
motion was made and denied at least one more time in the course of the
litigation.

Phelps died in October 2005, and his estate was substituted as a party.
Eventually, U.S. Bankl also brought suit against Phelps's wife, Mary Margaret
Phelps; his daughter, lvleienie lvieceel; end his sen, willienn Phelps, Jn,
claiming they had participated in send in ebieining en extension er the
substantial loan from U.S. Bank. They counterclaimed for abuse of process

Eventually, U.S. Bank settled with the estate and the named members of
the Phelps family. The bank assigned its interest in its loan to the Phelps
fam`ily. In exchange, the bank was paid $675,000, and the family dropped
their counterclaims The settlement agreement also provided that 20% of any
money recovered based on the bank's assigned rights would be paid to the
bank'. This, in effect, made the estate and the Phelps family the plaintiffs in
the underlying action, leaving Appellants, Whitrrian, and the digital camera
companies as the defendants

, The case went to trial on the Phelps family's fraud and incapacity claims

4

and for collection of amounts owed on the promissory note and the U.S. Bank
loan. The trial court granted a_directed verdict in the family's favor as to the
enforceability'o`f the loans, reserving the question of damages The jury found
that Phelps lacked capacity to enter into the 2003 release agreement and did
not reach the fraud claim. The circuit court entered a judgment against
Appellants, Stephen Whitman, and the digital camera companies in an amount
exceeding $12,000,000. This judgment, except for $675,000, was affirmed by
the Court of Appeals, Sciennfc Imaging Technology Entelprises, Inc. v. Phelps,
201 1-CA-002119-MR, 2014 WL 9"739_3, at * (Ky. App. Jan. 10, 2014)
(unpublished), and this Court declined discretionary review.

The Phelps family then began trying to collect from the judgment
debtors As part of this effort, they served a series of post-judgment discovery

requests Eventually, in 20 14, the circuit court entered a discovery order

commanding

that the Judgment Debtors shall produce to the Judgment
Creditors within ten days of the date of entry of this Order the
following information and documents_: The-name, address, type of
account, name of account and account number of any bank or
other institution at which any business in which the Judgment
Debtors Michael Putnam and Beth Diane Gu_deman have an
interest maintains any type of account; and the production of bank
statements and accounts receivable and payable ledgers for such
businesses for -the years 2001-2005 and the past year.

Such documents may be produced subject to the Agreed
Protective Order and Confidentiality Agreement submitted by the
parties .

Concerned that this order would lead .to the production of irrelevant

information about the pharmaceutical companies,' particularly CBA Pha`rma,

Inc. (and, apparently, sensitive information about the company that could help
its competitors), Appellants filed a petition for a writ of prohibition with the
Court of Appeals seeking to bar enforcement of the order. The Court of Appeals
did not address whether the remedy of a writ was available under the
procedural test laid out in Hoskins v. Marc'cle, 150 S.W.Sd 1 (Ky. 2004), nor did
it address the substantive question whether the lower court was acting _
erroneously Instead, the court denied the petition on the ground that
Appellants lacked standing because they were named only in their individual
capacities, the pharmaceutical companies were not named parties, and thus
Appellants "ha[d] not demonstrated a personal and concrete interest in the
records of CBA Pharma." As noted above, this Court vacated the order and
remanded for the appellate court to address the petition on the merits

On remand, the Court of Appeals acknowledged that claims of irrelevant
discovery may be reviewed under the “certain special cases” exemption to the
writ standard. On review, the appellate court found that the requested
discovery was relevant; that the protective order addressed confidentiality
concerns; and that there was no evidence of a substantial miscarriage of justice
justifying a writ. Appellants’ motion for reconsideration was denied, and this
appeal followed.
n II. Analysis

As this Court has frequently stated

[a] writ of prohibition may be granted upon a showing that (l] 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) that the lower court is acting or is about

6

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.
Hoskl'ns, 150 S.W.3d at lO. The second class of writ, where a lower court is
acting within its jurisdiction but erroneously, is invoked in cases such as this
one where an order compelling discovery is disputed In Grange Mut. Ins. Co. v.
dee, 151 S.W.3d 803, 808 (Ky. 2004], this Court noted that the great and
irreparable harm element can be “put aside in ‘certal'n special cases . . .' [where]
- a substantial miscarriage of justice will'result if the lower court is proceeding
erroneously, and correction of the error is necessary and appropriate in the
interest of orderly judicial administration.”’ _lciting Bender v. Eaton, 343
S.W.2d 799 (Ky. 1961), emphasis added). After concluding there would be no
adequate remedy On appeal if irrelevant discovery was ordered, the Grange Mut.
Court turned to Kentucky Rule of Civil Procedure (CR) 26.02 and the definition
of relevancy, noting the parties “may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the pending
action.” Moreover, “[i]t is not ground for objection that,the information sought
will be inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.” CR 26.02. The
Court concluded that a writ was not available for the majority of the disputed
discovery requests in that case because they were sufficiently relevant to the
plaintiff’s bad faith claim against the insurance company. Certain information

in.personnel reeords, regarding advertising and showing the amounts paid to

settle previous bad faith claims was deemed irrelevant and writ worthy. Id. at
818. Finally, the Grange Mut. Court noted that the insurance company had
totally failed to support its claim regarding trade secrets, having only made in
conclusory_statements without ever providing the documents themselves for in
camera review or even a detailed privilege log. Id. at 817-18.

Applying these standards in this case, the Court of Appeals concluded
that Appellants direct and control CBA Pharma, a company that was involved
in the circumstances underlying the judgment if for no other reason than the
fact Appellants transferred 2_,000,000 shares of CBA Pharma stock to Phelps in
exchange for the release of their debts ;. Appellants dispute that CBA Pharma
was involved in the underlying circumstances that led to the $12 million
judgment, emphasizing that the CBA Companies2 were not borrowers or.
guarantors on the underlying indebtedness They insist that the CBA
Companies are in no different position than would be General Motors if
Appellants had transferred or pledged GM stock to Phelps This analogy to a
leading Fortune.500 company is entirely inapt. 'Although extremely
complicated, the facts leave little doubt that Appellants are intimately involved
with the various CBA Companies, their founding and their operations past and ~
present. lndeed, the Phelps family, as Judgment .Creditors, currently garnish
Appellants’ Wages from CBA.Pharma, which was formed in 2013. According to

the Phelps family, there is also evidence of funds shifting from the digital

l

 

2 Appe]lants use “CBA Companies” to refer to CBA Pharma, Inc., and its
predecessors

camera companies (to which Phelps loaned money and for which he guaranteed
the bank loan) to a CBA entity. Given the substantial ljudgment and the
Judgment Creditors’ interest in identifying Appellantsfl available assets,
including any funds that may be derived from or reside in a company or
companies in which they have substantial ownership and- controlling interest3,
we cannot say thatthe trial court abused its discretion in concluding that the
requested discovery was relevant to the Judgment\Creditors’ collection efforts
Even if we were less than assured about the relevancy of the requested
documents, a writ would still be unavailable in the absence of evidence that
production of the documents would result in “a substantial miscarriage of
justice.” Grange.Mut., 151 8.W_.3d at 808. Appellants profess concerns about
confidential records that could benefit competitors but, as in
Grange Mut'., they have not taken the steps to establish.that fact through in
camera production or even a detailed “privilege” llog. Id. at 818. Moreover,
given the trial court’s order requiring production “subject to the Agreed
Protective Order and Confidentiality Agreement submitted by the parties” we
find Appellants’ concerns about the risk of disclosure particularly unavailing
' Recognizing the efficacy of a negotiated protective order/ confidentiality

agreement in no way “read[s] out” the relevance requirement in CR 26 as

 

3 As usual, we have a limited record in this writ action but Appe]lants readily
acknowledge that while CBA Pharma has over 800 shareholders “[t]he majority of the
company’s common stock is held in voting trusts whose trustees are Mr. Putnarn, Ms.
Gudeman_ and Stephen Whitman.”

Appellants’ hyperbolically suggest There is no prospect of a “substantial
miscarriage ofjustice” under the circumstances presented

For the foregoing reasons the Court of Appeals’ Order Denying Petition
for Writ of Prohibition is affirmed

All sitting-. All concur.

COUNSEL FOR APPELLANTS:

Derise Duanel Cook `
John Milton .Sosbe
Duane Cook & Associates, PLC

coiJNsEL FoR APPELLEE;

Ernesto Scorsone, pro se

COUNSEL FOR REAL PARTIES IN lNTEREST:
Sarn Preston Burchett

William Joseph Walsh, IV
Buchenberger Walsh, PLLC

10

