Kentucky denies license renewal for doctor

COA 2011 Minutes for March 25, 2011 -- Nos. 290 - 312

JEFFERSON

LAMBERT, SENIOR JUDGE: Wrenda B. Gallien, M.D., appeals from an order of the Jefferson Circuit Court dismissing her petition for judicial review of an adverse determination of the Kentucky Board of Medical Licensure. The single issue before us is whether the trial court correctly dismissed Appellant’s petition because it had not been filed within the 30 days prescribed by statute. After our review, we hold that the court did not err in this respect. Thus, we affirm.

In this case, the Order of Suspension was mailed to Appellant on April 25, 2007. However, she did not file her petition for judicial review until August 18, 2008 – nearly 18 months later. This delay is fatal to Appellant’s appeal. Our precedent holds that “[w]here an appeal is filed in the circuit court by grant of a statute, as in this case, the parties must strictly comply with the dictates of that statute.” Spencer County Preservation, Inc. v. Beacon Hill, LLC, 214 S.W.3d 327, 329 (Ky. App. 2007). This is because “[a]n appeal from an administrative decision is a matter of legislative grace and not a right, and thus the failure to strictly follow statutory guidelines for the appeal is fatal.” Id.; see also Bd. of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978); Ky. Unemployment Ins. Comm’n v. Providian Agency Group, Inc., 981 S.W.2d 138, 139-40 (Ky. App. 1998); Taylor v. Duke, 896 S.W.2d 618, 621 (Ky. App. 1995). The circuit court concluded that it lacked jurisdiction to consider Appellant’s petition for judicial review because the petition had not been timely filed within the statutory 30-day period; thus, dismissal was merited. This conclusion was the correct one.

295.  BUSINESS LAW.  SURETY. FORECLOSURE. BANKRUPTCY. improvidently granted to DCR Mortgage because it did not establish the commercial reasonableness of the sale of the collateral; and 2) DCR Mortgage did not show the sale of the three parcels of land was reasonable under the UCC since the offer for the collateral exceeded the claimed debt.

We hold the trial court’s award of summary judgment to DCR Mortgage was correct for the following reasons. The record shows Kimberly and Jeffrey Owen personally guaranteed the note and mortgages; and, but for Clarkson’s and Cox’s filing late claims, and Jeffrey Owen’s urging recognition of the late claims, the sales proceeds would have satisfied the debt owed to DCR Mortgage. The absence of the Owens’ names from the list of creditors is directly attributable to Jeffrey Owen, for it is the duty of the debtor to file a list of creditors with the bankruptcy court. 11 U.S.C.A. § 521(a)(1)(A). It is undisputed that Jeffrey Owen was at the helm of O.M. Enterprises when bankruptcy was filed, and we will not shift the blame to someone else for his failure to list himself and his wife as creditors. Moreover, we are confident the Owens were apprised of all events in the bankruptcy proceedings by their attorney, O.M. Enterprises, and the Owen Family Trust - all of which were part of the mailing matrix and directly linked to Kimberly and Jeffrey Owen. The collateral was sold with approval of and pursuant to order of the bankruptcy court. Thus, any objection to the sale should have occurred in the federal bankruptcy proceeding, not in the state court action to recoup the deficiency, since the bankruptcy court had jurisdiction “with respect to all matters involved in the scope of the proceeding.” Smith v. Decker, 374 S.W.2d 487, 489 (Ky. 1964) (citing Moore v. Waltman’s Adm’x, 288 Ky. 258, 156 S.W.2d 100 (1941).    However, no party questioned the reasonableness of the sale of the collateral at the appropriate moment and it is now too late and in the wrong forum for the Owens to mount such a challenge.

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