text:
    Debbie MEDLEY, Appellant, v. BOARD OF EDUCATION of SHELBY COUNTY; and Dr. Leon Mooneyhan, in His Official Capacity as Custodian of Records for the Shelby County Public Schools, Appellees.
    No. 2003-CA-001515-MR.
    Court of Appeals of Kentucky.
    Oct. 22, 2004.
    Discretionary Review Denied by Supreme Court Aug. 17, 2005.

      John Frith Stewart, Stephen C. Emery, Louisville, KY, for appellant.
    Robert L. Chenoweth, John C. Fogle, III, Frankfort, KY, for appellee.
    Before MINTON, SCHRODER, and TAYLOR, Judges.
   OPINION

MINTON, Judge.

The Family Educational Rights and Privacy Act (“FERPA”) and the Kentucky Family Educational Rights and Privacy Act (“KFERPA”) permit education records otherwise shielded from open records disclosure to be made available to teachers with a legitimate educational interest in them. Debbie Medley is a classroom teacher who made an open records request to view videotape recordings of her own classroom. Her request was denied, assumedly on the basis that Medley did not have a legitimate educational interest in viewing the videotapes. On appeal, we hold there was not substantial evidence to support the circuit court’s findings regarding the legitimacy of Medley’s interest. Therefore, we are compelled to reverse and remand for a hearing to determine whether Medley had a legitimate educational interest as defined by FERPA and KFERPA.

Medley is a certified, tenured teacher with the Shelby County Public School system. She teaches special education students in classroom 120 at Shelby County High School. After students in Medley’s classroom complained she had treated them inappropriately, cameras were installed in classroom 120 to monitor her performance. The installation of the cameras was not challenged by Medley.

On April 16, 2002, Medley made an open records request to the principal of Shelby County High School to view “any and all video tapes that have been made of classroom 120 of Shelby County High School.” Medley’s stated basis for the request was her belief the tapes would be a valuable resource “to use to evaluate [her] performance, as a teacher, as well as the management of [her] classroom.”

Medley’s letter was forwarded to Dr. Leon Mooneyhan, Superintendent of Shelby County Public Schools. In a letter sent through counsel, Mooneyhan denied Medley’s request. The letter stated the tapes constituted “education records,” and were, therefore, exempted from release pursuant to KRS 61.878(1)00 and 61.878(1)0). Mooneyhan’s denial claimed FERPA and KFERPA prohibited the release of the videotapes to Medley.

Medley requested the Attorney General review Mooneyhan’s decision. The Attorney General affirmed the decision, and Medley appealed to the Shelby Circuit Court. In its review, the court agreed the disputed tapes were education records within the scope of FERPA and KFERPA. The court also agreed with the Attorney General that the application of the Open Records Act in this ease “turns not upon the identity of the requesting party or her stated interest in the records, but rather on the nature of the records at issue.” The court disregarded Medley’s status as a teacher and her purported interest in viewing the videotapes and held that since the tapes were “education records” as defined by federal and state law, they were exempt from disclosure under the Open Records Act. Therefore, the court affirmed the Attorney General’s decision, and held the Shelby County Public Schools could not be compelled to release the videotapes to Medley. This appeal follows.

Medley first argues her request is not exempted by the Open Records Act. Specifically, Medley argues she fits within an exception that permits teachers to inspect education records.

We note at the outset that the circuit court’s review of an Attorney General’s opinion is de novo. As such, we review the circuit court’s opinion as we would the decision of a trial court. Questions of law are reviewed anew by this Court. When there are questions of fact, or mixed questions of law and fact, we review the circuit court’s decision pursuant to the clearly erroneous standard. Under this standard, this Court will only set aside the findings of fact of the circuit court if those findings are clearly erroneous. The dispositive question is whether the findings are supported by “substantial evidence.” “Substantial evidence” is evidence “that a reasonable mind would accept as adequate to support a conclusion,” and evidence that, when “taken alone or in the light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men.”

We also note that although this Court is not bound by the opinions of the Attorney General, “they have been considered ‘highly persuasive.’ ” This Court will “give great weight to the reasoning and opinion expressed [by the Attorney General].”

The Open Records Act states, “[u]pon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878.” The “basic policy” of the Act is that “free and open examination of public records is in the public interest....” The burden is on the public agency opposing disclosure to establish that a record is exempt from release.

In affirming the Attorney General’s denial of Medley’s request, the court specifically cited to KRS 61.878(l)(k) and 61.878(1X0. KRS 61.878(l)(k) states records are excluded from an open records request when federal law or regulation prohibits disclosure of the record. Similarly, KRS 61.878(1)(Z) states records need not be disclosed when such disclosure is prohibited, restricted, or made confidential by an act of the General Assembly. With regards to the exemptions listed in KRS 61.878, the General Assembly has specifically dictated that they “shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.”

Both the Attorney General and the circuit court cited to FERPA and KFERPA in support of the opinion that disclosure of the videotapes was prohibited. FERPA generally states that funds will not be made available to educational institutions that deny or prevent parents of students in attendance at the school access to the student’s education records. FERPA further states funds will not be made available to educational institutions that release the education records of students to third parties without the express written consent of that student’s parents. Certain third parties are exempt from this rule, such as:

other school officials, including teachers within the educational institution ... who have been determined by such agency or institution to have legitimate educational interests, including the educational interests of the child for whom consent would otherwise be required;

And the pertinent section of KFERPA likewise states:

Educational institutions shall not permit the release or disclosure of records, reports, or identifiable information on students to third parties ... without parental or eligible student consent except to:
(a) Other school officials, including teachers, with legitimate education interests and purposes.

The term “education records” is defined by FERPA as “those records that are (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution.” For purposes of KFERPA, the term is defined as “data and information directly relating to a student that is collected or maintained by educational institutions or by a person acting for an institution....”

Although both FERPA and KFERPA contain an exception to the rule against disclosure of education records when a teacher with a legitimate educational interest requests the record, neither the Attorney General nor the circuit court found that Medley fell within this exception. Rather, both opinions cited to Zink v. Com., Dept. of Workers’ Claims, Labor Cabinet for the proposition that the analysis should turn not on Medley’s status as a teacher but, rather, “on the nature of the records requested.”

In Zink, an attorney was denied access to records of the Department of Workers’ Claims. The requested records, employer injury reports, included detailed personal information concerning injured employees. The Court affirmed the decision to deny Zink access to the records, holding that to do so would violate the privacy interests of the employees. The Court stated the decision was not based upon Zink’s position as an attorney but, rather, that the outcome would have been the same regardless of who had made the request.

Citing to the Court’s rationale in Zink, the Attorney General in this case stated, “[u]nder an Open Records Act analysis, Ms. Medley is treated as a member of the public whose access to the disputed records is foreclosed by state and federal law.” Therefore, both the Attorney General and the circuit court held that Medley should be treated as “a member of the public,” rather than as a teacher. Since members of the public are generally prohibited by FERPA and KFERPA from viewing education records, Medley was denied access to the videotapes.

The Attorney General and the circuit court also cited to the Attorney General’s opinion in 99-ORD-217 in support of the decision to prohibit Medley from viewing the tapes. In that case, a parent made a request to the Bell County School System to view videotapes used to monitor student activities aboard a school bus. The request was denied. The Attorney General held videotapes used to record conduct on a school bus were “education records” within the meaning of FERPA and KFER-PA. Accordingly, the parent was prohibited from viewing the videotapes since the recording would necessarily reveal the identities of students other than the parent’s own child. The Attorney General stated that allowing the parent to view the videotapes would violate the confidentiality rights of other students aboard the bus, thereby, contravening the express provisions of FERPA and KFERPA. The school bus scenario was likened to the present case in that both involved videotapes used for monitoring that would reveal the identities of students.

We believe the rationale of the Attorney General and the circuit court in denying Medley’s request is flawed. Although we agree the videotapes in question are, in fact, “education records,” we do not believe Medley’s request should be considered as made by “a member of the public.” Rather, Medley’s request should be judged in light of her position as a teacher.

First, both the Zink case and the school bus example are clearly distinguishable from the facts of this case. In Zink, the person requesting to view the documents was an attorney attempting to gain access to personal employee information from the Department of Workers’ Claims, assumedly in order to solicit clients. In the school bus scenario, a parent who was never present on the bus in question requested access to videotapes monitoring activities on the bus to prove other children were bullying his son.

Medley, on the other hand, is a teacher who was present in the classroom when the videotapes were recorded. She was aware of the installation and use of the videotapes to monitor her performance. Since Medley was present when the videotapes were made, there is no confidentiality issue. Medley would obviously have knowledge of the students in her classroom. Therefore, reliance on Zink and the school bus example are mistaken.

Second, we are, frankly, puzzled by the circuit court’s explanation for why Medley was denied access to the videotapes. The circuit court states Medley was prohibited from viewing the videotapes because of the exemptions listed in KRS 61.878(l)(k) and KRS 61.878(1)(Z). The KRS sections cited exempt documents from disclosure if disclosure would violate state law, federal law, or acts of the General Assembly. As-sumedly, the circuit court was asserting that disclosure of the videotapes would violate FERPA and KFERPA.

Yet, in the very same paragraph, the court acknowledges, “Medley might be granted permissive access [to the videotapes] as an educator under FERPA and KFERPA.” We do not comprehend how Medley “might be granted” access pursuant to FERPA and KFERPA, while simultaneously being foreclosed from viewing the tapes under these same laws.

Under our interpretation of the statutes in question, the only provision of FERPA or KFERPA that would prevent Medley from viewing the videotapes would be a determination that her purpose for requesting the videotapes was not “a legitimate educational interest.” As a teacher, Medley is expressly permitted by FERPA and KFERPA to view education records, so long as a legitimate educational interest is established. The court identified Medley as an educator, yet, nonetheless, found she was precluded from viewing the videotapes. Thus, the circuit court impliedly found Medley’s request was not made pursuant to a legitimate educational interest.

Viewing the record as a whole, there is not substantial evidence to support this finding. The record is, in fact, void of any discussion of Medley’s educational interest in the videotapes, other than the statement made in her initial request that the videotapes would be beneficial to improve her teaching performance and manage her classroom. Moreover, Mooneyhan and the Board did not fulfill their burden of proof by establishing that Medley’s interest was not legitimate. Since the circuit court’s decision regarding the legitimacy of Medley’s educational interest was not supported by substantial evidence, we hold that the finding was clearly erroneous. As such, we must reverse and remand for a hearing on the issue of whether Medley had a legitimate educational interest. If the court finds her interest to indeed be legitimate, Medley must be afforded the opportunity to view the videotapes pursuant to the requirements of the Open Records Act.

Medley’s second argument is that the circuit court erroneously denied her request to be present during an in camera review of the videotapes in question. We disagree.

KRS 61.882 states, “[t]he court on its own motion, or on motion of either of the parties, may view the records in controversy in camera before reaching a decision.” The term “in camera” is defined by Black’s Law Dictionary as, “[i]n the judge’s private chambers. 2. In the courtroom with all spectators excluded. 3. (Of a judicial action) taken when court is not in session.”

The judge in this case chose to view the videotapes in camera, in his chambers, without counsel or parties present. Such a choice is purely discretionary and clearly within the province of the judge. This Court mil not second-guess the discretionary decisions of a circuit court unless those decisions amount to an abuse of discretion. In this case, permitting Medley to view the videotapes in camera would have rendered the entire controversy void. If the videotapes were, in fact, exempt from disclosure, Medley would have had access to records which otherwise would have been confidential. Therefore, we hold that the decision of the circuit court denying Medley’s motion to be present for the in camera viewing of the videotapes was proper.

Finally, Medley contends the Board of Education’s argument regarding a potential separation of powers issue is without merit. We agree.

The Board argues, “Medley’s efforts to convert the permissive educator access provisions of FERPA and KFER-PA into mandatory Open Records Act access does indeed raise the prospect of the undermining of the executive authority of the school administration by way of judicial override of such authority.” We note that a school superintendent has the power to exercise general supervision over the schools in his district. However, the outcome of this case does not turn on the superintendent’s authority. It is instead a matter of statutory interpretation, a task clearly within the province of this Court. Our elucidation of the statute in question in no way usurps the authority of Mooney-han or the Shelby County Board of Education. Therefore, the Board’s argument is flawed.

For the foregoing reasons, the opinion of the Shelby Circuit Court is affirmed with respect to the denial of Medley’s request to view the videotapes in camera. The opinion is reversed and remanded for a hearing to determine whether Medley’s open records request was made pursuant to a legitimate educational interest as defined by FERPA and KFERPA.

ALL CONCUR.

      . 20 U.S.C.A. § 1232g.

      . Kentucky Revised Statute (KRS) 160.700, et seq.

      . Kentucky Open Records Act, KRS 61.870— 61.884.

      . Letter from Debbie Medley to Mr. Jim Flynn, Principal, Shelby County Public Schools (Apr. 16, 2002).

      . Id.

      . KRS 61.878.

      . KRS 61.882.

      . Hardin County Schools v. Foster, Ky., 40 S.W.3d 865, 868 (2001).

      . Moore v. Asente, Ky., 110 S.W.3d 336, 354 (2003).

      . Id.

      . Id.

      . Palmer v. Driggers, Ky.App., 60 S.W.3d 591, 596 (2001), quoting, York v. Commonwealth, Ky.App., 815 S.W.2d 415 (1991).

      . York, 815 S.W.2d at 417.

      . KRS 61.874.

      . KRS 61.871.

      . University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373, 377 (1992).

      . KRS 61.871.

      . 20 U.S.C.A. 1232g(l).

      . 20 U.S.C.A. 1232g(6)(l)(A).

      . KRS 160.720(2).

      . 34 C.F.R. § 99.3(a)(1) and (2); see also, 20 U.S.C.A. 1232g(4)(A)(i) and (ii), (5).

      . KRS 160.700(3).

      . Ky.App., 902 S.W.2d 825 (1994).

      . Opinion of the Attorney General, 02-ORD-132, July 17, 2002, at page 7.

      . Zink at 827.

      . Id. at 828.

      .Opinion of the Attorney General, 02-ORD-132, July 17, 2002, at page 7.

      . Black's Law Dictionary (8th ed.2004).

      . KRS 160.390; KRS 160.370


source: Caselaw Access Project

author: TAYLOR, Judge.

license: Public Domain

text:
    Lynn MEERS, as Guardian for Leslie Meers, Appellant, v. Debbie MEDLEY; Jim Flynn, Mary Comer; and Leon Mooneyhan, Appellees and Joey Rogers, Appellant, v. Debbie Medley; Jim Flynn, Mary Comer; and Leon Mooneyhan, Appellees.
    Nos. 2003-CA-001003-MR, 2003-CA-001008-MR.
    Court of Appeals of Kentucky.
    Oct. 29, 2004.
    Rehearing Denied Dec. 22, 2004.
    Discretionary Review Denied by Supreme Court Aug. 17, 2005.

      F. Larkin Fore, Sarah M. Fore, Fore, Miller & Schwartz, Louisville, KY, for appellants.
    John Frith Stewart, Stephen C. Emery, Segal, Stewart, Cutler, Lindsay, Janes & Berry, PLLC, Louisville, KY, for appellee, Debbie Medley.
    John C. Fogle, III, Chenoweth Law Office, Frankfort, KY, for appellees, Jim Flynn, Mary Comer and Leon Mooneyhan.
    Before MINTON, SCHRODER, and TAYLOR, Judges.
   OPINION

TAYLOR, Judge.

Lynn Meers brings Appeal No.2003CA-001003-MR from an April 25, 2003, Order of the Shelby Circuit Court. Joey Rogers brings Appeal No.2003-CA-001008-MR from an April 25, 2003, Order of the Shelby Circuit Court. We reverse and remand both appeals.

Meers and Rogers were students at Shelby County High School. Both suffer from severe disabilities and were placed into the special education program at the high school. On February 7, 2002, Meers and Rogers filed complaints in the Shelby Circuit Court, alleging that their teacher, Debbie Medley, physically and mentally abused them. Specifically, it was further alleged that both Meers and Rogers were “berated, harassed, embarrassed, abused physically and mentally by Medley.”

Meers and Rogers also claimed that Jim Flynn (Principal of Shelby County High School), Mary Comer (Special Education Coordinator), and Leon Mooneyhan (Superintendent) (collectively referred to as appellees) “acted negligently, recklessly and/or grossly negligently” by failing to remove Medley as a teacher, by failing to monitor Medley, by failing to act on complaints about Medley, and by failing to enforce school policies. Each defendant/appellee was named in his/her individual capacity only.

Meers and Rogers claimed relief under 42 U.S.C.A. § 1983 (West 2003 & Supp. 2004), Kentucky Revised Statutes Chapter 344 (the Civil Rights Act), the torts of intentional infliction of emotional distress, assault, battery, negligence, and defamation. There are no claims asserted in the complaints under the Individuals With Disabilities Education Act (IDEA) (20 U.S.C.A. § 1400-1491o (West 2003 & Supp.2004)).

Appellees filed motions to dismiss in each case for lack of subject matter jurisdiction (Ky. R. Civ. P. (CR) 12.02), claiming Meers and Rogers failed to exhaust administrative remedies as required by the IDEA. The court dismissed the actions. These appeals follow.

In dismissing Meers’ and Rogers’ actions, the circuit court merely stated “[u]pon motion being made, and the Court being sufficiently advised, IT IS HEREBY ORDERED that this action be DISMISSED with prejudice.” No grounds are stated for dismissal nor can we determine what part of the record, if any, was considered by the court in this ruling. As there exists interrogatory answers, verified responses, and other documents filed in the record, we assume the circuit court considered same and, thus, view the orders dismissing the actions as summary judgments. See Ferguson v. Oates, Ky., 314 S.W.2d 518 (1958).

Summary judgment is proper where there exists no issue of material fact and movant is entitled to judgment as a matter of law. CR 56; Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).

Resolution of both appeals centers upon a singular issue — whether Meers and Rogers were required to exhaust administrative remedies under the IDEA. For the reasons hereinafter stated, we are of the opinion the IDEA is inapplicable; thus, the circuit court improperly dismissed the actions.

The specified stated purposes of the IDEA are:

(1)(A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living;
(B) to ensure that the rights of children with disabilities and parents of such children are protected; and
(C) to assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities;
(2) to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families;
(3) to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting systemic-change activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services; and
(4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities.

20 U.S.C.A. § 1400(d) (West 2000 & Supp. 2004).

At issue in these appeals is the exhaustion of administrative remedies provision found in the IDEA, which reads as follows:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], title Y of the Rehabilitation Act of 1973 [29 U.S.C. 791 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchap-ter.

20 U.S.C.A. § 1415(0 (West 2000 & Supp. 2004). Under the above exhaustion provision, an individual is required to exhaust administrative remedies before bringing a judicial action to obtain relief under the IDEA or before bringing a judicial action to obtain relief that is also available under the IDEA. The Courts have not been consistent in interpreting the exhaustion of remedies provision of the IDEA. In Cov-ington v. Knox County School System, 205 F.3d 912, 915-916 (6th Cir.2000), it was specifically observed that courts have given the provision varied interpretations:

We note that some courts have interpreted 1415 to require the exhaustion of administrative remedies even when the plaintiffs do not rely exclusively on the IDEA as the source of their claims. For example, several courts have held that exhaustion is required when plaintiffs bring 1983 suits based on violations of the IDEA. See, e.g., N.B. v. Alachua County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir.1996), cert. denied, 519 U.S. 1092, 117 S.Ct. 769, 136 L.Ed.2d 715 (1997); Mrs. W. v. Tirozzi, 832 F.2d 748, 756 (2d Cir.1987); W.L.G. v. Houston County Bd. of Educ., 975 F.Supp. 1317, 1328 (M.D.Ala.1997). Additionally, some courts have held that whenever a claim falls within the purview of the IDEA— that is, whenever it relates to the provision of a free appropriate public education to a disabled child exhaustion is required, whether or not the plaintiff characterizes the claim as one arising under the IDEA.

In the case sub judice, we are persuaded by the reasoning contained in Stutts v. Eastern Kentucky University, 307 F.Supp.2d 853, 857-858 (E.D.Ky.2004) and adopt its interpretation of the exhaustion of remedies provision:

In determining whether relief is available under the IDEA where claims are brought pursuant to other statutes, courts have looked to the nature of the wrongs alleged. Complaints concerning the general disciplinary practices of a school district have been understood to relate to the way that the district provides education and thus necessarily come within the scope of the IDEA. Covington, 205 F.3d at 916 (citing Hayes, 877 F.2d at 812-13; Moore v. Hamman City Schools, 16 F.3d 1220, No. 92-5572, 1994 WL 18021, at 1 (6th Cir.Jan.21, 1994); Waterman, 739 F.Supp. at 365; Pullen v. Botetourt County Sch. Bd., No. 94-686-R 1995 WL 738983, at 4 (W.D.Va. Feb. 13, 1995)). By contrast, allegations of physical assault or sexual abuse of a student by a school staff member or administrator would fall outside of the scope of the IDEA since they are not related to the way that a school provides education, (footnote omitted).

Under this interpretation of the exhaustion provision, allegations relating to school discipline are deemed as claims available under the IDEA and are subject to the exhaustion of administrative remedies requirement of the IDEA. By contrast, allegations relating to physical assault or abuse are deemed as claims outside the scope of the IDEA and are not subject to the exhaustion of administrative remedies requirement.

In the case at hand, Meers and Rogers specifically claim:

Medley verbally threatened and harassed Joey throughout the school year. She humiliated him by telling his [sic] he ate like an animal. Medley repeatedly and abusively berated Joey for his inability to stop drooling. She threatened him with a balled fist if he could not or did not do what she told him to do. Medley also physically abused him and treated him roughly under the guise of assisting him. Joey was also greatly distress [sic] as he witnessed Medley physically and mentally abuse other students in the FMD [Functional Mental Disabilities] class on a daily basis and he was forced to withstand the hostile classroom environment....
Leslie was also subject to Medley’s daily verbal and physical abuse at least as far back as August 2000 and until March 2001 when Medley was (temporarily) removed from the classroom. Leslie was harassed, verbally assaulted and humiliated by Medley. Medley also repeatedly used abusive and unnecessary physical restraint with Leslie, stepping on Leslie’s hair, pinching her buttocks and bending her fingers back among other things. Leslie has also come home from school with scratches and red marks on her after her mother and guardian, Lynn Meers, complained to the school of Leslie’s treatment at the High School.

Appellant’s Brief at 9-10.

We do not view Meers’ and Rogers’ allegations as encompassing “general disciplinary practices.” Rather, we think the allegations asserted by Meers and Rogers are best described as allegations of physical and mental assault and/or abuse, which are not within the scope of the IDEA. Our decision is further supported by the report of the Cabinet for Families and Children. This report substantiated that adult “abuse” had occurred by Medley against students in her classroom.

Accordingly, we are of the opinion that Meers’ and Rogers’ claims are not within the scope of the IDEA and, thus, exhaustion of administrative remedies under the IDEA is not required. As such, we conclude the circuit court erroneously entered summary judgments dismissing Meers’ and Rogers’ actions.

For the foregoing reasons, the orders of the Shelby Circuit Court are reversed and these causes are remanded for proceedings not inconsistent with this opinion.

ALL CONCUR.

      . Additionally, even if the Individuals With Disabilities Education Act (IDEA) (20 U.S.C.A. § 1400-149lo (West 2003 & Supp. 2004)) were applicable, we harbor grave doubt as to whether Meers' and Rogers' civil rights claims under Kentucky Revised Statutes Chapter 344 would be subject to the exhaustion of remedies requirement of the IDEA.


author: SCHRODER, Judge.

text:
    W. Howell CARR, Graves County Property Valuation Administrator; Graves County Board of Assessment Appeals; and Revenue Cabinet, Commonwealth of Kentucky, Appellants, v. CONTINENTAL GENERAL TIRE, INC., Appellee.
    No. 2003-CA-001880-MR.
    Court of Appeals of Kentucky.
    Nov. 24, 2004.
    As Modified Dec. 3, 2004.
    Discretionary Review Denied by Supreme Court Aug. 17, 2005.
    Susan F. Stivers, Finance & Administration Cabinet, Division of Collections, Frankfort, KY, for appellant.
    Michele M. "Whittington, Frankfort, KY, for appellee.
    Before BUCKINGHAM, DYCHE, and SCHRODER, Judges.
   OPINION

SCHRODER, Judge.

This case presents the following question: if the value for taxation purposes of a parcel of real property has been determined in a contested proceeding, does a local taxing authority have to show a material change in the value of that property in order to justify a higher assessment in the following year? Section 172 of the Kentucky Constitution and KRS 132.690(1) require that property be assessed annually at its fair cash value. However, when property tax values have been determined in a contested proceeding, the burden is on the party opposing a value different than the value determined in the proceeding. That party must very clearly show the property or conditions in succeeding years have materially changed before another value may be established. Hence we affirm.

Continental General Tire, Inc. (General Tire) owns a tire manufacturing plant on approximately 22.1 acres it leases from the City of Mayfield, Kentucky. The Graves County Property Valuation Administrator (PVA) assessed the value of the property for tax purposes at $19 million in 1999, $19 million in 2000, $12 million in 2001, and $12 million in 2002. General Tire appealed each one of these assessments to the Graves County Board of Assessment Appeals (County Board). The County Board lowered the 1999 and 2000 assessments to $14 million and confirmed the amounts of the 2001 and 2002 assessments. General Tire subsequently appealed each decision of the County Board to the Kentucky Board of Tax Appeals (KBTA). The PVA appealed only the 1999 decision of the County Board.

In February 2001, the KBTA issued an order in the appeal of the 1999 assessment of $19 million that had been reduced by the County Board to $14 million. The KBTA determined that the fair cash value of the General Tire property was $8,539,339.00. While the appeals of the 2000 and 2001 assessments were still pending at the KBTA, General Tire filed a motion in limine with the KBTA, arguing that the KBTA’s determination that the property was worth $8,539,339.00 for purposes of the 1999 assessment precluded the PVA from increasing the assessments for the following years without making a showing of a change in circumstances. General Tire further maintained that the evidence presented by the PVA on appeal should be limited only to evidence that demonstrated a change in circumstances, and a change in value attributable to that change in circumstances, from the 1999 value.

The KBTA issued an order on May 29, 2002, agreeing with General Tire. It based its ruling on the doctrines of issue preclusion, stare decisis, and “fundamental principles of fairness and judicial economy.” The KBTA ordered the PVA to show cause why the KBTA should not enter an order also valuing the property at $8,539,339.00 for the 2000 tax year. The PVA, unaware that the KBTA had issued such an order, filed a response to the motion in limine. General Tire in turn filed a reply brief, reiterating its earlier arguments. General Tire also filed an appeal of the 2002 assessment, and a motion to consolidate the 2000, 2001, and 2002 property tax assessment appeals. The motion to consolidate was granted.

The KBTA issued a final order resolving the consolidated appeals on October 11, 2002. It stated that:

when property tax values have been determined in a contested proceeding, the burden is on the party proposing a value different than the value determined in the proceeding. The party must very clearly show the property or conditions in succeeding years have materially changed before another value may be established.

The KBTA cited as the authority for its decision an early Kentucky case, Kentucky River Coal Corp. v. Knott County, 245 Ky. 822, 54 S.W.2d 377 (1932), in which Kentucky’s highest court was confronted with an appeal of tax valuations by parties who had appealed the very same issue the year before. See Kentucky River Coal Corp. v. Knott County, 239 Ky. 18, 39 S.W.2d 190 (1931). The Court stated that “[w]henever tax values have been judicially determined by the court of last resort, it ought to be made very clear that the property or conditions in the next succeeding years have materially changed before other values are placed upon the same property.” Kentucky River Coal, 54 S.W.2d at 382. The KBTA extended the precedential value Kentucky River Coal attached to determinations by a “court of last resort,” to include determinations made in any “contested proceeding.”

The KBTA found that the PVA had failed to show any material change in the property or conditions to justify an increase in the assessed value of the General Tire plant from the amount the KBTA had established as correct for 1999. The KBTA consequently ordered the property assessed at $8,539,339.00 (the value determined in the 1999 appeal), for the tax years 2000, 2001, and 2002.

The PVA appealed the KBTA’s decision to the Graves Circuit Court. The circuit court affirmed the KBTA’s decision, but on different grounds. The circuit court agreed that the KBTA’s 1999 assessment had significant precedential value; however, it held sua sponte that this value stemmed not from the principle of res judicata as the KBTA had inferred, but from due process considerations. The circuit court stated as follows:

[T]his Court finds that under due process of law, when the fair cash value of a parcel of real property has been determined by a court of competent jurisdiction, it then becomes incumbent upon the state taxing authority to show a material change in the value of that property in subsequent years, which would then allow an increase in the value of that property for tax assessment purposes. (emphasis added.)

Based on this due process analysis, the circuit court dismissed the PVA’s appeal of the KBTA’s ruling.

In this appeal, the PVA maintains that the circuit court erred because its judgment places a burden on the PVA to show a material change in value from prior assessments that is confrary to the mandates of the Kentucky Constitution and the applicable taxation statutes.

Because the outcome of this case turns on an issue of law, our review is de novo. Western Kentucky Coca-Cola Bottling Co., Inc. v. Revenue Cabinet, Ky. App., 80 S.W.3d 787, 790 (2001).

The Kentucky Constitution and KRS 132.690 require that non-exempt property be assessed annually at its fair cash value. Section 172 of the Kentucky Constitution states that:

[a]ll property, not exempted from taxation by this Constitution, shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale; ... (emphasis added.)
KRS 132.690(1) similarly provides that: [ejach parcel of taxable real property or interest therein subject to assessment by the property valuation administrator shall be revalued during each year of each term of office by the property valuation administrator at its fair cash value....
(emphasis added.)

It is clear that the Constitution and the statute require “that all property shall be assessed at its fair cash value, by adopting a general level of proportionate values, everybody must have been treated alike. When it was shown that the property involved in a case had not been assessed at that uniform level, this court has required an adjustment.” McCracken Fiscal Court v. McFadden, 275 Ky. 819, 122 S.W.2d 761, 764 (1938). In our case, the KBTA said the PVA was not following the Constitution and the statute in 1999, and corrected the assessment. The circuit court agreed. It appears that PVA was again blindly following the wrong path by erring in the 2000 assessment by merely reverting to its 1999 incorrect assessment. Kentucky River Coal Corporation v. Knott County, 245 Ky. 822, 54 S.W.2d 377 (1932), involved a similar situation where the next year the PVA said it was a new year and could start over. The Court recognized each year was a new year and the Constitution and statute both required yearly appraisals. However, where the PVA was shown to be incorrectly assessing the property, the Court applied this equitable remedy:

This court determined upon review, as is shown by the opinion cited above, that the valuations for 1928 taxes of the property of the appellant Kentucky River Coal Corporation adjudged by the trial court were fair. Whenever tax values have been judicially determined by the court of last resort, it ought to be made very clear that the property or conditions in the next succeeding years have materially changed before other values are placed upon the same property. The evidence in this case shows conclusively that the conditions did not warrant an increased assessment in either year.

Id. at 382.

In McCracken Fiscal Court v. McFadden, 275 Ky. 819, 122 S.W.2d 761, 764 (1938), the Court had a similar situation where the appeal ended at the quarterly court. The Court said “There is no distinction drawn by the statute between appeals first to the Quarterly Court, thence to those superior courts.” The Court applied the McFadden rule to “a court of competent jurisdiction” that made the decision that was binding on all parties. The Court recognized the matter was a contested proceeding with all parties being given an opportunity to be represented, and a decision was made. The important part is the decision that the PVA decision was wrong and had to be adjusted on appeal. The Court was not ignoring the Constitution and statute, but recognizing that when the PVA was incorrectly assessing, the PVA should show a “material change” before changing the value so as to not repeat its mistake. See also City of Harlan v. Eversole, Ky.App., 305 S.W.2d 523 (1957), in which the first appeal ended with a quarterly court decision. Inasmuch as the Graves Circuit Court upheld the KBTA assessment for 1999, the PVA needed to show a “material change” in the property or conditions in succeeding years before another value could be established.

For the foregoing reasons, the judgment of the Graves Circuit Court is affirmed.

ALL CONCUR.


author: GUIDUGLI, Judge.

text:
    ROMAN CATHOLIC BISHOP OF LOUISVILLE, Appellant, v. Kyle BURDEN, Appellee.
    No. 2004-CA-000086-MR.
    Court of Appeals of Kentucky.
    Dec. 10, 2004.
    Reconsider Denied Jan. 26, 2005.
    Discretionary Review Denied by Supreme Court Aug. 17, 2005.

      Edward H. Stopher, Raymond G. Smith, Boehl Stopher & Graves, LLP, P. Kevin Ford, Ford Klapheke & Meyer, Louisville, KY, for appellant.
    Wallace N. Rogers, Mulhall, Turner, Coombs & Malone, PLLC, Louisville, KY, for appellee.
    Before COMBS, Chief Judge; GUIDUGLI and SCHRODER, Judges.
   OPINION AND ORDER

GUIDUGLI, Judge.

In 2002, Kyle Burden filed suit against the Roman Catholic Bishop of Louisville (hereinafter “the Archdiocese”) seeking damages for its actions, or lack of action, concerning sexual abuse by Father Daniel Clark, a priest who worked for the Archdiocese in the early 1980s. The Archdiocese has appealed from the Jefferson Circuit Court’s November 13, 2003, Opinion and Order denying its motion for summary judgment and from the December 6, 2003, order denying its motion to alter, amend or vacate the previous ruling. Because we have determined that this appeal was taken from a non-final, non-appealable order, we are constrained to dismiss the appeal.

In 1982, Burden claims to have been sexually molested by Father Clark after being injured in a church-sponsored softball game. Years later, Burden learned that the Archdiocese had failed to report Father Clark’s abuse of various children or to inform students and parents, and otherwise concealed the sexual abuse. Burden filed suit against the Archdiocese in 2002, alleging negligence or gross negligence in the hiring of Father Clark as a priest/administrator at St. Rita’s and in failing to take any disciplinary action against him, to inform the students and parents, and to report the incidents to state authorities. As a result of the Archdiocese’s conduct, Burden claims to have suffered serious mental distress as well as physical and mental pain and suffering, and will incur expenses for psychological care and treatment. He requested both compensatory and punitive damages. The Archdiocese filed an answer, in which it raised several affirmative defenses.

Prior to filing its answer, the Archdiocese filed a motion to seal the record, citing KRS 413.249(3) and attaching the affidavit of Senator Tom Buford, who introduced the Senate Bill that was the predecessor to KRS 413.249. The Courier-Journal moved to intervene in order to oppose the motion to seal, arguing that KRS 413.249 was unconstitutional on its face and that it did not apply to this type of case. By this time, many similar cases arising from the alleged cover-up of sexual abuse by priests or employees of the Archdiocese had been filed in Jefferson Circuit Court, which cases were assigned to several different divisions. The Jefferson Circuit Court created a Master File in Division 2, and consolidated all pending and subsequently filed suits in Division 2 for purposes of adjudicating the constitutionality of KRS 413.249 and of overseeing general discovery. Also in the Master File, the Courier-Journal's motion to intervene was granted, a briefing schedule was instituted, and oral arguments were scheduled. The record in Burden’s suit, which was assigned to Division 10, contains all of the relevant motions, responses and orders. On July 11, 2002, Division 2 issued an Opinion and Order denying the motions to seal that had been filed in the various lawsuits. The Opinion and Order provided, in relevant part, as follows:

I. APPLICABILITY OF KRS 413.249
It is the position of the Plaintiffs, Intervening Plaintiff and the Office of the Attorney General that the statute is inapplicable to the Archdiocese. They contend that the language of the Kentucky statute differentiates it from other states[’] statutes, in that it specifically refers to “the ... defendant,” and sets forth the crimes for which such a perpetrator may be prosecuted. They argue that the Church, as a body, cannot commit any of these acts and be deemed a perpetrator.
While the Defendant argues that Illinois, Connecticut and Vermont have similar statutes that have been applied to third parties, the Plaintiffs and Intervening Plaintiff[ ] contend that those statutes and the cases interpreting them are different from those adopted in this Commonwealth. It is their position that the language employed herein is more similar to that used in Rhode Island, California, and Colorado, where courts have declined to apply such statutes to third parties.
In Hobert v. Covenant Children’s Home, 309 Ill.App.3d 640, 723 N.E.2d 384 (2000), the Illinois Court extended the application of the statute of limitations in actions, “for damages for personal injury based on childhood sexual abuse,” to third parties, holding that an extended limitations period is necessary in such cases due to the problem of repressed memory. In Nutt v. Norwich Roman Catholic Diocese, 921 F.Supp. 66 (D.Conn.1995), the Court also applied the limitations period to actions against third parties. Similarly, in Sabia v. Vermont, 164 Vt. 293, 669 A.2d 1187 (1995), the Court also held that the extended limitations period could be extended to suits against a third party. However, the Court therein did not address the issue of sealing the records, although there is a similar provision in Vermont’s statute.
In Kelly v. Marcantonio, 678 A.2d 873 (1996), the Supreme Court of Rhode Island examined that state’s statute regarding childhood sexual abuse and held that the statute in question does not apply to non-perpetrators. The Court reasoned that since only a perpetrator could have been convicted of the offenses set forth in the statute, the legislative intent expressed therein was to extend the applicable limitations period against such an individual. The Court concluded that if the legislature had wished to include causes of action against a third party, it could have drafted the statute to clearly reflect that intention. Similarly, in Sandoval v. Archdiocese of Denver, 8 P.3d 598 (2000), the Court held that the references to criminal statutes in the limitations statute, “... are highly significant and indicate that the General Assembly intended that the act upon which claims must be based is that of a perpetrator and not the negligence of a non-complici-tous third party.” Id. at 602. Also in Debbie Reynolds Professional Rehearsal Studios v. The Superior Court of Los Angeles County, 25 Cal.App.4th 222, 30 Cal.Rptr.2d 514 (1994), the Court held that, “... the Legislature, in defining what constitutes sexual abuse, referred to the criminal statutes to make clear that childhood sexual abuse is an intentional rather than a negligent act.” Id. at 232.
This Court has reviewed the statutes involved in the above-cited competing cases. The distinction in the various interpretations of the courts appears to lie in the amount of specificity utilized in drafting the statutes. Kentucky’s statute details the offenses which constitute “childhood sexual assault” and “childhood sexual abuse.” Colorado and California also set out specific statutes from their respective criminal codes. Rhode Island merely sets forth the chapters of its code in which statutes constituting such offenses may be located. Illinois’s definition totally lacks specificity. It states that childhood sexual abuse, “... includes but is not limited to sexual conduct and sexual penetration as defined in Section 12-2 of the Criminal Code of 1961.” Thus, while the statutory offenses are included, it implies that other conduct may constitute abuse as well. Such language leaves the question of against whom a civil action may be brought in doubt. Therefore, the Illinois Court’s conclusion that third parties are excluded from the application of the statute is well-founded based upon the vagary (sic) of the legislature’s drafting. Similarly, Vermont's statute is lacking in specificity in that it defines childhood sexual abuse as conduct which, “... would have constituted a violation of a statute
The Court held in Commonwealth v. Allen, Ky., 980 S.W.2d 278 (1998)[,] that a statute may not be interpreted contrary to the stated language and that legislative intent must be interpreted from the language employed. Affidavits such as those of Senator Tom Buford, setting forth his individual opinions, rather than the language adopted by the group as a whole are of little value. The Court noted in Commonwealth, Revenue Cabinet v. Cope, Ky., 875 S.W.2d 87 (1994), “This Court is often without benefit of a substantial legislative history as we undertake to construe statutes or test their constitutionality,” id. at 90; see also St. Luke Hospital v. Health Policy Bd., Ky.App., 913 S.W.2d 1 (1996). Section 2 of the original Senate Bill 53 states that the statute is to be given retroactive effect, “... to provide uniform justice to the victims of sexual offenses who were children when the offenses occurred.” Thus, it is clear that the focus of the General Assembly was on “victims” rather than those whom the “victims” might attempt to hold liable for abuse. However, the language of KRS 413.249, just as that used by the legislatures of Rhode Island, Colorado and California, appears to be directed at perpetrators and not third parties since it sets forth sexual ■ offenses which a third party, such as a church or a school would be incapable of committing. Based on the foregoing, it is the Opinion of this Court that KRS 413.249 does not apply to the cases currently before the Court.[]

Although the circuit court in the Master File specifically did not order consolidation on all of the motions to seal, we must assume that this Opinion and Order applied to Burden’s suit because there is no other ruling in the record and the record is not sealed.

In 2003, Burden moved the circuit court in Division 2 to transfer his ease back to Division 10 where it was originally assigned because he no longer needed to be involved in the consolidated discovery process and wished to obtain a trial date. This motion was denied, but the circuit court granted him leave to refile after August 1, 2003. Burden then moved the circuit court in Division 2 to enter an order allowing him to opt out of the class action settlement and proceed with his ease outside of the class action activities. This motion was granted, and Burden’s suit was later transferred back to Division 10 for further proceedings on the Archdiocese’s motion.

Shortly after the transfer, the Archdiocese filed a motion for summary judgment, arguing that the statute of limitations barred Burden’s claim under either KRS 413.249 or KRS 413.140. Following the filing of a response and two replies, the circuit court entered an Opinion and Order denying the Archdiocese’s motion for summary judgment. Regarding the application of KRS 413.249, the circuit court stated as follows: “It has already been established that KRS 413.249 applies to the Archdiocese according to the original complaint. Thus, since Burden did not file his claim until 2002, pursuant to KRS 413.249, the statute had run.” The circuit court then went on to address the general one-year statute of limitations in KRS 413.140, this Court’s opinion in Roman Catholic Diocese v. Seder, as well as the tolling provision contained in KRS 413.190. After determining that the one-year statute of limitations was tolled under Seder, the circuit court held that there was a question of fact as to when Burden was put on notice that he had a claim against the Archdiocese. Although the motion for summary judgment was denied, the Opinion and Order contained CR 54.02 finality language. The Archdiocese then filed a motion to alter, amend or vacate, which the circuit court denied in an Opinion and Order that focused on the tolling provision. This appeal followed.

In its brief, the Archdiocese raises two issues as to why it was entitled to a summary judgment. First, the Archdiocese argues that the tolling provisions of KRS 413.190 do not apply to KRS 413.249, and second, that even if KRS 413.140 were to apply, the one-year limitations period began to run in 1988 and thus Burden’s claim was time barred. On the other hand, Burden argues that the appeal was taken from a non-final order because the order denying the motion to alter, amend or vacate did not itself contain any finality language. Burden also argues that KRS 413.249 does not operate as a statute of limitations in the present case and that the general statute of limitations of KRS 413.140 does not bar his claim. In its reply brief, the Archdiocese responded to Burden’s arguments concerning finality and the application of KRS 413.249.

The only issue we need to address in this case is the finality issue raised in Burden’s brief, although we shall do so from a different perspective. In this case, the Archdiocese has appealed from the denial of its motion for summary judgment. It is well settled in this Commonwealth that the denial of a motion for summary judgment is interlocutory and is not appealable. In Leneave, this Court held: “The general rule under CR 56.03 is that a denial of a motion for summary judgment is, first, not appealable because of its interlocutory nature and, second, is not reviewable on appeal from a final judgment where the question is whether there exists a genuine issue of material fact.” There is, however, an exception to this general rule, which was also addressed in Leneave: “The exception applies where: (1) the facts are not in dispute, (2) the only basis of the ruling is a matter of law, (3) there is a denial of the motion, and (4) there is an entry of a final judgment with an appeal therefrom.” Because there has not yet been a final judgment entered in this case from which an appeal was taken, this exception has no application here.

By its very nature, the denial of the motion for summary judgment is interlocutory. Furthermore, the inclusion of the CR 54.02 finality language is meaningless here because that rule is limited to actions involving multiple parties or multiple claims, which is not the case here. Even if we were to hold that CR 54.02 applied and could operate to make this interlocutory judgment final and appealable, “there must be a final adjudication upon one or more of the claims in litigation. The judgment must conclusively determine the rights of the parties in regard to that particular phase of the proceeding.” In this case, there has been no conclusive determination of the rights of any party.

Because we have determined that the Opinion and Order denying the motion for summary judgment is interlocutory and non-appealable at this time, we must dismiss the appeal. However, this does not mean that that circuit court’s ruling regarding the applicable statute of limitations cannot be appealed once a final judgment has been entered, as that is a question of law.

For the foregoing reasons, the above-styled appeal is ORDERED DISMISSED this date.

ALL CONCUR.

      . We believe this to be a proper interpretation of the applicable law.

      . Ky.App., 966 S.W.2d 286 (1998).

      . Ford. Motor Credit Co. v. Hall, Ky.App., 879 S.W.2d 487 (1994); Transportation Cabinet, Bureau of Highways, Com. of Ky. v. Leneave, Ky.App., 751 S.W.2d 36 (1988); Gumm v. Combs, Ky., 302 S.W.2d 616 (1957); Battoe v. Beyer, Ky., 285 S.W.2d 172 (1955); Bell v. Harmon, Ky., 284 S.W.2d 812 (1955).

      . 751 S.W.2d at 37.

      . Id.

      . Hook v. Hook, Ky., 563 S.W.2d 716 (1978).

      . Hale v. Deaton, Ky., 528 S.W.2d 719 (1975).


author: MILLER, Senior Judge.

text:
    Bobbie Jean JONES, Individually and as Administratrix of the Estate of Richard Wayne Jones, Deceased, Appellant, v. James STERN, M.D.; Gopal Rastogi, M.D., Appellees.
    No. 2004-CA-000192-MR.
    Court of Appeals of Kentucky.
    Jan. 28, 2005.
    Discretionary Review Denied by Supreme Court Aug. 17, 2005.

      Gary N. Hudson, Zoellers, Hudson & Bently, London, KY, for Appellant.
    Joe L. Travis, Travis, Pruitt, Somerset, KY, for Appellee.
    Before COMBS, Chief Judge; MINTON, Judge; MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes 21.580.

   OPINION

MILLER, Senior Judge.

This is a medical malpractice case in which Bobbie Jean Jones, individually and as Administratrix of the estate of Richard Wayne Jones, deceased, appeals from a judgment entered upon a jury verdict adjudging Gopal Rastogi, M.D., not hable in the death of Richard, and adjudging James Stern, M.D., 5% liable in same. As against Dr. Stern the judgment awarded the appellant $4,750.25 plus 5% of costs expended in the litigation. The appellant contends that the trial court erred by permitting an apportionment of fault to a non-settling nonparty; by failing to include an instruction for loss of future income; by permitting Dr. Alan Graham to testify as an expert witness on behalf of the appel-lees; and in its allocation of costs. Because the trial court erred by including the nonsettling nonparty Jefferson County physicians in the apportionment instruction, we reverse and remand for a new trial.

On December 17, 1998, bariatric weight reduction surgery was performed on Richard by Gerald Larson, M.D., at Norton Hospital in Louisville, Kentucky, in Jefferson County. The procedure used was the vertical banded gastroplasty method. Richard weighed approximately 500 pounds and underwent the surgery due to his obesity. It appears that during the procedure Dr. Larson perforated Richard’s stomach along the staple line.

Richard was discharged from Norton Hospital on December 24, 1998, and returned to his home in London, Kentucky, in Laurel County. On December 26, 1998, Richard was taken by ambulance to Mar-ymount Hospital in London complaining of severe abdominal pain. He was admitted to the hospital by Dr. Rastogi and, among other things, given IV fluids. Dr. Stern was consulted regarding treatment.

On December 27, 1998, Dr. Stern contacted Dr. Larson, and Richard was transferred to Norton twenty-seven hours after his presentation at Marymount. Norton Hospital doctors attempted to stabilize Richard and surgery was performed, at which time they discovered a stomach perforation and massive amounts of purulent fluid in the body cavity, with infection. Approximately five liters of pus was drained from Richard’s stomach cavity and the perforation was repaired. Richard lived a few more hours and was pronounced dead at 6:82 a.m. on December 30, 1998.

The appellant filed a medical malpractice suit against Dr. Larson, John Kuhn, M.D., and Norton’s Hospital in Jefferson County, and against Dr. Stern, Dr. Rasto-gi, and Marymount in Laurel County.

The Jefferson County trial was held first, and commenced on September 23, 2003. Though not defendants in the Jefferson County case by reason of venue, Dr. Stern and Dr. Rastogi were included in the apportionment of fault instructions in that case. The Jefferson County jury exonerated Dr. Larson and Dr. Kuhn in Richard’s death. Having exonerated the Jefferson County doctors, the jury proceeded to make no apportionment of blame against Dr. Stern and Dr. Rastogi.

The Laurel County trial commenced on January 7, 2004. Similar to the situation in the Jefferson County trial, though Dr. Larson and Dr. Kuhn were not defendants to the action, they were included in the apportionment instruction. The jury returned a verdict determining, as to Richard’s death, that Dr. Stern was 5% at fault, that Dr. Rastogi was not at fault, that Dr. Larson was 85% at fault, and that Richard was 10% at fault. The appellant was awarded a judgment against Dr. Stern of $4,750.25 (5% of $95,005.00) plus 5% of costs expended in the litigation. This appeal followed.

The appellant’s principal argument is that the trial court erred by giving an apportionment of fault instruction which included Dr. Larson and Dr. Kuhn. She argues that because the Jefferson County doctors were non-settling, non-parties to the action, it was error to include them in the apportionment instruction. We agree.

The tort claim against Dr. Larson and Dr. Kuhn arose in Jefferson County, and thus the appellant was required to sue them either in Jefferson County or the county where the physicians reside. Kentucky Revised Statutes (KRS) 452.460. As neither Dr. Larson nor Dr. Kuhn resided in Laurel County, Laurel County was not a proper venue for bringing suit against the Jefferson County doctors. The Jefferson County doctors accordingly were not parties to the Laurel County suit. Instead, the Jefferson County doctors were sued in Jefferson Circuit Court and the trial in that case was held prior to the Laurel County trial. In the Jefferson County trial, both Dr. Larson and Dr. Kuhn were adjudged not liable in Richard’s death. As the Jefferson County doctors pursued the case through trial, it follows that they were nonsettling parties in the case.

In summary, Dr. Larson and Dr. Kuhn were nonsettling nonparties to the Laurel County lawsuit. KRS 411.182 provides as follows:

(1) In all tort actions, including products Lability actions, involving fault of more than one (1) party to the action, including third-party defendants and persons who have been released under subsection (4) of this section, the court, unless otherwise agreed by all parties, shall instruct the jury to answer interrogatories or, if there is no jury, shall make findings indicating:
(a) The amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and
(b) The percentage of the total fault of all the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under subsection (4) of this section.
(2) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
(3) The court shall determine the award of damages to each claimant in accordance with the findings, subject to any reduction under subsection (4) of this section, and shall determine and state in the judgment each party’s equitable share of the obligation to each claimant in accordance with the respective percentages of fault.
(4) A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable, shall discharge that person from all liability for contribution, but it shall not be considered to discharge any other persons ha-ble upon the same claim unless it so provides. However, the claim of the releasing person against other persons shah be reduced by the amount of the released persons’ equitable share of the obligation, determined in accordance with the provisions of this section.

In Baker v. Webb, 883 S.W.2d 898 (Ky.App.1994) this court interpreted KRS 411.182 in addressing the precise issue raised in this case, i.e., whether a non-settling non-party could be included in the apportionment instruction, and concluded as follows:

[T]he thrust of KRS ill. 182, considered in its entirety, limits allocation of fault to those who actively assert claims, offensively or defensively, as parties in the litigation or who have settled by release or agreement. When the statute states that the trier-of-fact shall consider the conduct of “each party at fault,” such phrase means those parties complying with the statute as named parties to the litigation and those who have settled prior to litigation, not the world at large (Emphasis added).

Id. at 900.

Dr. Larson and Dr. Kuhn were not parties to the Laurel County litigation, nor were they parties who settled prior to the litigation by release or agreement. It follows that they should not have been included in the apportionment instruction. Id.; see also Floyd v. Carlisle Construction Company, Inc., 758 S.W.2d 430 (Ky.1988); Bass v. Williams, 839 S.W.2d 559 (Ky.App.1992); Copass v. Monroe County Medical Foundation, Inc., 900 S.W.2d 617 (Ky.App.1995).

The jury allocated 85% of the fault to Dr. Larson. The appellant was plainly prejudiced by the allocation of fault. We accordingly reverse the judgment and remand for a new trial. Upon retrial, Dr. Larson and Dr. Kuhn shall not be included in the apportionment of fault instruction.

Because they may recur upon retrial of this case, we also address the issues of whether the appellant was entitled to an impairment of future earnings instruction and whether it was proper for Dr. Alan Graham to testify as an expert witness on behalf of the appellees.

The appellant sought an instruction on loss of future income, which was denied by the trial court. At the time of his death Richard was receiving a Social Security Disability check in the amount of $920.00 per month. Though Richard was severely overweight and suffered from insulin-dependent diabetes with a history of heart problems, kidney problems, and circulatory problems, the appellant alleges that Richard was expected to make a recovery following the surgery after which he planned on returning to gainful employment.

A party plaintiff is entitled to have his theory of the case submitted to the jury if there is any evidence to sustain it. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 250 (Ky.1995). Even if it was not Richard’s intention to ever return to work, it is to be noted that the criterion for a recovery for loss of future earnings is the reduction of earning power. Spurlock, v. Spurlock, 349 S.W.2d 696, 699 (Ky.1961). This permits recovery of the fair equivalent in money for the impairment of capacity or lessening of ability to render service worth money as the proximate result of injuries sustained. Id.

It seems plain that wrongful interference with any capacity or function of a human being should be compensated for, aside from any existing need for the exercise of such capacity or function. The vicissitudes of life may call upon any person to put forth every effort to serve himself or those who are dependent upon him. In many if not all cases of serious personal injury the public may have an interest, and its welfare may require that the injured person be compensated for the wrong done him, thus in a measure lessening the demand which may be made upon the public. Impaired ability to work is in itself an injury and deprivation of a substantial right of everybody, distinct from any loss of earnings it entails and the sufferer is entitled to compensation for it. It may be treated as part of the mental suffering resulting from the injury and as due to the consciousness of impaired power to care for one’s self. In the nature of the case the sum which will compensate for such damage is not ascertainable by mathematical computation; it must be fixed by the jury with respect to the evidence and the probabilities, and should be sufficient to compensate therefor.

Id. (quoting Sutherland on Damages, § 1244, p. 4727; see also Heil v. Seidel, 249 Ky. 314, 60 S.W.2d 626 (1933), which collects previous cases; and Ralston v. Dossey, 289 Ky. 40, 157 S.W.2d 739 (1941)).

The jury may be presumed to be reasonably familiar with the value of labor and services which the plaintiff was capable of rendering. Id. (citing Bessire & Co. v. Day’s Adm’x., 268 Ky. 87, 103 S.W.2d 644 (1937) and Sutherland on Damages, §§ 1248, 1249, p. 4727). Direct proof of any specific pecuniary loss is not indispensable to recovery. Id.

Upon retrial, and upon proper request by the appellant, an impairment for future earning instruction should be given.

Dr. Graham was permitted to testify on behalf of the appellees as an expert witness. The appellants contend that Dr. Graham was not qualified to testify as an expert witness on behalf of the appellees on the basis that at the time of Richard’s treatment he was a business partner of Dr. Stern’s; because he is a good friend of Dr. Stern’s; and because he had never before testified as an expert witness.

The trial court is vested with wide discretion in determining to admit or exclude expert testimony. Video Village v. Commonwealth, 825 S.W.2d 288, 289 (Ky.App.1992).

The trial judge “has wide discretion in (the) determination to admit and exclude evidence, and this is particularly true in the case of expert testimony.” Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 2903, 41 L.Ed.2d 590, 615 (1974); Keene v. Commonwealth, 516 S.W.2d 852, 855 (Ky.1974).

Dr. Graham testified that he is a general surgeon practicing in London, Kentucky. He went to undergraduate school at Michigan State University, medical school at Thomas Jefferson University, and completed his five-year surgical training residency at The University of Tennessee at Memphis.

Dr. Graham’s medical training and experience were of sufficient gravity to qualify him as an expert witness. As to his past association and friendship with Dr. Stern, the appellant was free to impeach him on same, and we do not believe that this relationship required his disqualification as a witness. We conclude that the appellant’s challenge to Dr. Graham’s qualifications goes more toward the weight of his testimony rather than the admissibility, that the trial court did not abuse its discretion in permitting Dr. Graham to testify as an expert, and if the appellant so chooses Dr. Graham may testify as an expert upon retrial.

The appellants also contend that the trial court erred in its assessment of costs in this case; however, as the case is being remanded for retrial and for a reapportionment of fault, we consider this issue to be moot, and we will not consider the trial court’s assessment of costs on the merits.

For the foregoing reasons the judgment of the Laurel Circuit Court is reversed and remanded for proceedings consistent with this opinion.

ALL CONCUR.

      . It appears that no appeal was taken from the judgment in the Jefferson County proceeding.

      . This appeal highlights the dilemma caused by what some might think are antiquated venue statutes. Cf., Copass v. Monroe County Medical Foundation, Inc., 900 S.W.2d 617 (Ky.APP. 1995).


author: McANULTY, Judge.

text:
    Michael MAGGARD, Appellant, v. CONAGRA FOODS, INC. d/b/a Cook Family Foods, Appellee.
    No. 2004-CA-000224-MR.
    Court of Appeals of Kentucky.
    Feb. 11, 2005.
    Discretionary Review Denied by Supreme Court Aug. 17, 2005.

      Albert B. McQueen, Jr., Wilson, Polites & McQueen, Lexington, KY, for appellant.
    Roger W. Hall, Williams, Hall & Lather-ow, Ashland, KY, for appellee.
    Before BUCKINGHAM, McANULTY, and VANMETER, Judges.
   OPINION

McANULTY, Judge.

Michael Maggard is an emergency medical technician employed by the Carter County Ambulance Service. On July 5, 2001, Maggard and his partner responded to an emergency call concerning an employee complaining of chest pain at the business premises of Cook Family Foods. Upon arriving, Maggard and his partner were taken to the human resources office on the third floor where the patient was seated. After assessing the patient, Mag-gard and his partner proceeded to take the patient on a stretcher down the stairs to an ambulance. There was no elevator. After wheeling the patient down the hallway to the stairwell, Maggard and his partner requested assistance in carrying the patient down the stairs from some men who were standing in the area. Abdul Razak, an employee who worked in human resources, and another Conagra employee volunteered to assist in carrying the patient down the stairs along with Maggard and his partner.

The four men proceeded to carry the patient down the stairs, with Maggard and Razak on the lower end of the stretcher. Upon reaching a second flight of stairs, Razak grew tired, swayed and fell against the wall. He called for someone to come and help him. When this occurred, Mag-gard moved to catch the patient and twisted as he did so. The stretcher partially dropped but did not fall. Maggard alleges he injured his back in the incident, which led to his having lumbar disc surgery and having to work on restricted duty. Mag-gard sought to recover damages from Con-agra Foods d/b/a Cook Family Foods (hereinafter Conagra Foods) for personal injury sustained as a result of negligence during the course of moving one of its employees by stretcher.

The trial court granted summary judgment to Conagra Foods. Summary judgment is appropriate when it appears impossible for the non-moving party to produce evidence at trial warranting judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). The court determined that Maggard put forth no evidence to show that Conagra Foods owed a duty to assist Maggard or that there was any deviation from the standard of care owed to him, or that Maggard was injured as a direct result of any failure on the part of Conagra Foods to perform. The existence of a duty is a question of law for the court because it is essentially a policy determination. Os-tendorf v. Clark Equipment Co., 122 S.W.3d 530, 533 (Ky.2003).

In addition, the court found that Conagra Foods was protected by the public policy considerations of the Firefighter’s Rule adopted in Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky.1964). The Firefighter’s Rule was stated in that case as follows:

as a general rule the owner or occupant is not liable for having negligently created the condition necessitating the fireman’s presence (that is, the fire itself), but may be liable for failure to warn of unusual or hidden hazards, for actively negligent conduct and, in some jurisdictions, for statutory violations “creating undue risks of injury beyond those inevitably involved in fire fighting.”

Id. at 97-98. Because public policy requires firefighters to assume the ordinary risks of their employment to the extent necessary to serve the public purpose of fire control, the Firefighter’s Rule acts as a defense for the owners or occupiers of the property the firefighter is employed to protect. Hawkins v. Sunmark Industries, Inc., 727 S.W.2d 397, 400 (Ky.1986).

Maggard challenges the grant of summary judgment since he alleges that he could establish that Conagra Foods breached a duty of ordinary care. He further argues that the Firefighter’s Rule was inapplicable to him as an emergency medical technician, and even if it was appropriate, the trial court incorrectly applied it in this case. We agree that Mag-gard showed no breach of a duty owed him by Conagra Foods, and so we affirm the motion for summary judgment.

We first agree with the trial court that this case was suitable for application of the Firefighter’s Rule. The Kentucky Supreme Court succinctly stated that the purpose of the policy was to encourage owners, occupiers, and others similarly situated, in a situation where it is important to call a public protection agency to do so free of any concern that they may encounter legal liability based on their negligence in creating the risk. Sallee v. GTE South, Inc., 839 S.W.2d 277, 279 (Ky.1992). We find this particularly apt under the facts of this case. An employer or premises owner should not be deterred from calling for medical assistance for fear that they may be held hable for any injury occurring in the process of transporting the patient.

In Kentucky, the Firefighter’s Rule has been applied to other professionals besides firefighters. In Fletcher v. Illinois Central Gulf Railroad Co., 679 S.W.2d 240 (Ky.App.1984), this Court extended the rule to a police officer. This Court stated that the public policy considerations which motivated adoption of the Firefighter’s Rule also applied to police officers. Id. at 242. In Sallee, 839 S.W.2d at 279, the Supreme Court applied the rule to a fire department paramedic. The Court explained that one of the prongs of the Firefighter’s Rule is the involvement of “public employees (firefighters, police officers, and the like) who, as an incident of their occupation, come to a given location to engage a specific risk[.]” Id. at 279 (emphasis added.)

We do not agree with Maggard that his case may be distinguished from Sallee because in that case the paramedic was actually employed by the fire department. The rule is not concerned with the job title so much as it is with the work performed. Thus, we find no basis for excluding Mag-gard from the class of persons covered by the Firefighter’s Rule, as a public employee employed to engage risks involved in emergency situations.

We further observe that, despite Maggard’s opposition to application of the Firefighter’s Rule, what he is really arguing is that his case fits within an exception to the rule. The exception to the rule, contained in the definition in the Burén case, is that liability may exist on the basis of an unusual hidden hazard or continuing active negligence. Sallee, 839 S.W.2d at 279, fn. 2. Maggard asserts in his brief that he should be able to recover for “active negligence after the fact” of the risk he was called to address. Maggard maintains that Razak’s actions constituted continuing active negligence for which he may recover. Maggard’s position was that Ra-zak was negligent in volunteering to carry the stretcher while sending away two other workers who had also offered to help who were “larger and stronger — appearing” than Razak. Maggard cites the rule that a duty voluntarily assumed cannot be carelessly undertaken without incurring liability therefore. Estep v. B.F. Saul Real Estate Inv. Trust, 843 S.W.2d 911, 914 (Ky.App.1992).

We find no indication of carelessness on the part of Razak. There was no evidence that Razak was careless in his carrying of the stretcher, only that he tired while doing so. Maggard has not shown that it was unreasonable for Razak to believe that he could carry the stretcher, particularly in light of the fact that as a non-professional Razak had no way of knowing what the task would demand. Moreover, the professionals, Maggard and his partner, did not question his fitness to perform the task. We find no negligence in the fact that Razak’s assistance may have precluded others from carrying the stretcher without tiring, since Razak could not know what the others were capable of and Mag-gard and his partner chose to proceed with the persons available. Razak had no duty to choose the people who would carry the stretcher. Thus, we do not perceive any active negligence by Razak or Conagra Foods.

The duties associated with transporting the patient were Maggard’s. He testified in a deposition that his duties included transporting patients to the hospital. Maggard had been to the Cook Family Foods facility before. He testified that it was up to the individual emergency crew to decide whether to get help in carrying a stretcher up and down stairs. He said that if the crew felt that there was insufficient manpower at a site, they would have the fire department help them. Thus, it was for Maggard and his partner to decide how to transport the patient and whether to rely on non-professional assistance, which they did in this case.

The trial court correctly determined that Maggard’s proof did not show Conagra Foods owed him a duty of care or that a duty of care was breached by Conagra Foods. For the foregoing reasons, we affirm the order of the Carter Circuit Court which granted the motion for summary judgment.

ALL CONCUR.


author: COMBS, Chief Judge.

text:
    Jerod SOWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-CA-000348-MR.
    Court of Appeals of Kentucky.
    April 1, 2005.
    Discretionary Review Denied by Supreme court Aug. 17, 2005.
    Frank W. Heft, Jr., Louisville, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Clint Watson, Assistant Attorney General, Frankfort, KY, for appellee.
    Before COMBS, Chief Judge; DYCHE and KNOPF, Judges.
   OPINION

COMBS, Chief Judge.

Jerod Sowell appeals from the judgment of the Jefferson Circuit Court of January 20, 2004, convicting him of possession of a controlled substance, resisting arrest, and third-degree criminal mischief. The judgment was based upon Sowell’s conditional guilty plea to the offenses pursuant to RCr 8.09. Sowell reserved the right to appeal the court’s denial of his suppression motion. On appeal, he argues that the Commonwealth failed to establish the existence of a reasonable suspicion for stopping the vehicle in which he was riding at the time of his arrest. As we find no error in the ruling of the trial court, we affirm.

On March 7, 2002, several police officers, including Detectives Steve Boughey and Joe Seeley, were conducting surveillance of a known crack house near the vicinity of National Turnpike and the Outer Loop in Louisville. The officers observed a red Toyota stop at the house. A man got out of the car and went inside the house. He then returned to his car. Detective Boughey recognized him from a photograph that he had recently seen in a warrant pack.

Detectives Boughey and Seeley followed the car and left other officers to continue the surveillance of the crack house. Based on their belief that there were several arrest warrants outstanding for the car’s passenger, they pulled the car over to arrest him.

Detective Boughey approached the driver, Curtis Hamby, and asked him for his driver’s license. The officer smelled marijuana and asked Hamby if he had any drugs or weapons in the car. Hamby acknowledged that he had smoked marijuana earlier in the day but that he had no drugs otherwise. He consented to a search of his person and got out of the car for that purpose. As the officer and Hamby walked to the rear of the car, Detective Seeley attempted to make an arrest of the passenger, the appellant, Jerod Sowell. Sowell attempted to flee, but he was quickly apprehended with the help of back-up officers who had arrived at the scene.

A search of Sowell and Hamby revealed that both men possessed plastic bags containing small amounts of crack cocaine. They were arrested and indicted on charges of first-degree trafficking in a controlled substance (cocaine). Sowell was also charged with resisting arrest and criminal mischief.

Hamby as co-defendant first challenged the legitimacy of the traffic stop and sought to suppress the drugs seized. Pri- or to trial, Hamby moved to suppress the drug evidence on the basis that he was subjected to a strip search in a public area. On May 22, 2003, an evidentiary hearing was conducted as required by RCr 9.78.

Detective Boughey testified that while watching the crack house, he recognized Sowell from a photograph that he had previously seen in a warrant pack. He testified that he and Detective Seeley decided to follow the car to arrest Sowell. After stopping the car, he approached Hamby, the driver, while Detective Seeley approached Sowell. Detective Boughey testified that after he was taken to the back of the car, Hamby voluntarily pulled a plastic bag containing drugs from the back of his pants and threw it on the ground.

Hamby presented a different version of the event. He abandoned his claim that he was disrobed in public; but he testified that he was coerced into revealing the drugs on his person. He related that one of the officers (and he could not remember which one) retrieved a pair of latex gloves from the police cruiser and threatened to subject him to an anal cavity search. In order to avoid such an intrusive search, Hamby stated that he managed to maneuver the plastic bag containing cocaine from between his buttocks, causing it to fall out of his trousers.

The trial court did not find Hamby’s testimony credible. Following the hearing, the court held that the police had conducted a lawful investigative stop of the vehicle based on their awareness of So-well’s outstanding arrest warrants. The court did not believe Hamby’s argument that he was coerced , or threatened by the officers and instead found that he had relinquished the drugs voluntarily.

On June 5, 2003, Sowell filed a motion seeking discovery of the warrant pack upon which Detective Boughey relied in identifying him. The motion was granted. The Commonwealth responded that it was not in possession of the warrant pack used by the police at the time of Sowell’s arrest in March 2002. Accordingly, on August 7, 2003, Sowell moved to suppress the evidence seized during his arrest based on the Commonwealth’s failure or inability to produce the warrant pack. He alleged that the cocaine was seized in violation of the Fourth Amendment of the United States Constitution and the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He argued that without the production of the warrant pack, he could not adequately challenge the detective’s allegation of probable cause as to the basis for his arrest and the search that followed. Hamby joined in Sowell’s arguments and renewed his motion to suppress.

The Commonwealth argued that Sowell and Hamby misperceived the nature of the warrant pack. It explained that the pack was comprised of loose papers containing mug shots and other identifying information about criminals at large. The Commonwealth contended that it was unable to produce the sheets applicable to Sowell because they had been discarded after he was taken into custody. The Commonwealth asserted that it had no duty to preserve this information following So-well’s arrest.

In denying the motion to suppress, the trial court observed that “ideally” the information in the warrant pack should have been preserved. Nevertheless, the court emphasized the fact that there were four outstanding warrants for Sowell at the time of his arrest to serve as corroboration of the officer’s testimony. Thus, the court concluded that the Commonwealth’s failure to produce the warrant pack did not require suppression of the drug evidence seized from Sowell.

On December 2, 2003, Sowell entered his conditional plea of guilty. He received various sentences on the charges, all of which were ordered to run concurrently for a total of two years. This appeal followed.

Our standard of review on a motion to suppress is bifurcated. We accept those findings of fact which are supported by substantial evidence. Simpson v. Commonwealth, 834 S.W.2d 686, 687 (Ky.App.1992). We review de novo the legal application of pertinent constitutional principles to the facts as found. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky.2001), citing Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996). At a suppression hearing, the ability to assess the credibility of witnesses and to draw reasonable inferences from the testimony is vested in the discretion of the trial court. Commonwealth v. Whit-more, 92 S.W.3d 76, 79 (Ky.2002).

If he had reason to believe that Sowell was wanted on outstanding warrants (regardless of whether the warrants were issued for felony or misdemeanor offenses), Detective Boughey was undoubtedly authorized to stop the vehicle in which Sowell was riding. KRS 431.005; Baltimore v. Commonwealth, 119 S.W.3d 532 (Ky.App.2003). Detective Boughey testified that he and Detective Seeley followed Sowell and stopped the vehicle for that very purpose. The trial court found that Detective Boughey was a credible witness and that he had the requisite reasonable suspicion to satisfy any Fourth Amendment concerns.

After our review of the tape of the suppression hearing, we conclude that there was substantial evidence to support the court’s findings. Detective Boughey testified that he and his fellow officers reviewed the warrant pack on a regular basis. He was quite definite in his testimony that he was aware of the outstanding warrants for Sowell’s arrest at the time that he stopped the car. We may not second-guess the decision of the trial court as to the officer’s credibility.

Sowell now argues that the issue cannot be resolved merely on the basis of the officer’s credibility. He contends that the Commonwealth had the burden of producing documentary evidence — the warrant pack — in order to meet its burden of establishing the existence of a reasonable suspicion to stop the vehicle.

[T]he accuracy and reliability of Bough-ey’s identification of appellant could never be determined because the Commonwealth failed to produce the photograph which, by Boughey’s own admission, was the sole basis of the stop. Thus, it cannot be ascertained whether the stop was based on Boughey’s photographic identification or whether he simply played a hunch — two persons coming out of a suspected crack house might have some drugs — and got lucky.

(Appellant’s reply brief, pp. 1-2.)

In making this argument, Sowell relies on United States v. Antuna, 186 F.Supp.2d 138 (D.Conn.2002), which is distinguishable in several respects. Unlike the suspect in Antuna, Sowell attempted to flee from the police to avoid arrest. The Antuna court noted several discrepancies between the officers’ testimony and their written report of the incident preceding the arrest. So-well has cited no such discrepancies between Detective Boughey s report and his testimony.

Antuna is also distinguishable from the case before us because of the nature of the information concerning the suspects prior to their arrest. Neither Sowell nor Ham-by cross-examined Detective Boughey about what specific information in the warrant pack might have enabled him to identify Sowell. In contrast, the arresting officer in Antuna was thoroughly questioned about the poster that allegedly caused him to suspect that Antuna was a wanted fugitive from justice. After analyzing that evidence, the court determined that the officer’s testimony “demonstrated that he was merely speculating about whether An-tuna was wanted[ ]” and “had only an ‘inchoate suspicion or mere hunch’ that there was a warrant out for Antuna’s arrest.” Id. at 144, citing Terry, 392 U.S. at 27, 88 S.Ct. 1868. Since he failed to cross-examine Detective Boughey about the contents of the warrant pack, Sowell cannot point to any testimony to contradict the court’s finding that the officer had correctly identified Sowell from the warrant pack.

Thus, we find no error in the determination of the trial court that the officers had a reasonable suspicion to stop the car because of their awareness of the warrants for Sowell. Therefore, the judgment of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Rules of Criminal Procedure.

      . Kentucky Revised Statutes.