RENDERED: JANUARY 22, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1409-MR

BRIGHTMORE HOME CARE OF KENTUCKY LLC; 

JOHN FALLS; CHAD SHUMWAY; AND 

TRAVIS SHUMWAY APPELLANTS

APPEAL FROM FRANKLIN CIRCUIT COURT

v. HONORABLE PHILLIP J. SHEPHERD, JUDGE

ACTION NO. 18-CI-00100

COMMONWEALTH OF KENTUCKY, CABINET 

FOR HEALTH AND FAMILY SERVICES, OFFICE 

OF INSPECTOR GENERAL, DIVISION OF 

CERTIFICATE OF NEED; COMMONWEALTH 

OF KENTUCKY, CABINET FOR HEALTH AND 

FAMILY SERVICES, DIVISION OF ADMINISTRATIVE 

HEARINGS, HEALTH SERVICES ADMINISTRATIVE 

HEARINGS BRANCH; AND PROFESSIONAL CASE 

MANAGEMENT OF KENTUCKY, LLC D/B/A 

PROFESSIONAL CASE MANAGEMENT APPELLEES

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
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THOMPSON, L., JUDGE: Brightmore Home Care of Kentucky LLC, John Falls, 

Chad Shumway, and Travis Shumway appeal from an order of the Franklin Circuit 

Court which denied a petition for writ of prohibition seeking to prohibit an 

administrative law judge from the Cabinet for Health and Family Services from 

issuing subpoenas to out-of-state, nonresident witnesses. Appellants argue that the 

Cabinet does not have the authority to issue subpoenas to out-of-state witnesses 

and compel them to testify in person during an administrative hearing in Kentucky. 

We believe that the circuit court erred in denying the writ. We agree with 

Appellants that the Cabinet does not have the authority to subpoena out-of-state 

witnesses; therefore, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On January 25, 2017, Brightmore and Professional Case Management 

of Kentucky, LLC d/b/a Professional Case Management (hereinafter referred to as 

PCM) filed certificate of need (hereinafter referred to as CON) applications to 

provide private duty nursing services in some of the same Western Kentucky 

counties. The Cabinet scheduled a comparative administrative CON hearing to 

determine which LLC would be granted the CON. In anticipation of the hearing, 

PCM requested that the administrative law judge (hereinafter referred to as ALJ) 

assigned to the case issue subpoenas to Mr. Falls and Messrs. Shumway. These 
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gentlemen are all member/owners of Brightmore. Mr. Falls lives in Wyoming, and 

Messrs. Shumway live in Utah.

On April 28, 2017, the ALJ issued the subpoenas. On May 1, 2017, 

Brightmore moved to quash the subpoenas. Brightmore argued that the Cabinet 

did not possess the legal authority to subpoena these individuals because they lived 

out-of-state and were outside the jurisdiction of the Cabinet. On May 3, 2017, 

PCM asked that the Cabinet reissue the subpoenas but serve them on Brightmore’s 

registered agent in Kentucky. Once again, the ALJ approved the subpoenas and 

issued them upon Brightmore’s registered agent in Kentucky.

Brightmore and PCM then briefed the issues raised in the motion to 

quash. Without formally ruling on the motion, the ALJ notified the parties that it 

expected Mr. Falls and Messrs. Shumway to comply with the subpoenas and 

appear at the CON hearing. The ALJ further stated that if these individuals did not 

appear, she would grant PCM’s request for an adverse inference against 

Brightmore. Brightmore then moved the ALJ to formally rule on the motion to 

quash. The ALJ eventually summarily denied Brightmore’s motion.

On February 1, 2018, Appellants sought declaratory relief, a writ of 

prohibition, and permanent injunctive relief from the Franklin Circuit Court. 

Again, Appellants argued that the Cabinet was acting outside the scope of its 

jurisdiction by attempting to subpoena out-of-state witnesses and require them to 
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testify at the hearing. Appellants also argued it would be erroneous for the ALJ to 

apply an adverse inference if Mr. Falls and Messrs. Shumway did not testify. PCM 

argued that the ALJ was acting within the scope of her authority. The Cabinet also 

filed a brief in the circuit court and agreed with Appellants that the ALJ was 

without authority to subpoena out-of-state witnesses or apply an adverse inference 

against Brightmore.1

On September 5, 2019, the circuit court entered an order denying 

Appellants’ petition and affirming the issuance of the subpoenas. The court held 

that Kentucky’s long-arm statute, Kentucky Revised Statutes (KRS) 454.210, 

authorized the ALJ to issue the subpoenas. The court also held that KRS 454.210 

allowed PCM to issue the subpoenas to Brightmore’s Kentucky agent. This appeal 

followed.

ANALYSIS

Appellant argues on appeal that the Cabinet and ALJ did not have the 

authority to issue the subpoenas and that the Cabinet was acting outside of its 

jurisdiction; therefore, the circuit court should have granted the writ of prohibition. 

We agree. 

 

1

In CON proceedings, the ALJ is the final arbiter of the issue. There is no appeal to or review 

by a higher administrative authority, like the Secretary of the Cabinet for Health and Family 

Services. The first appeal goes directly to the circuit court. This explains why the Cabinet filed 

a brief in the circuit court which agreed with Appellants, but it was unable to stop the subpoenas 

at the administrative level.
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A writ of prohibition may be granted upon a showing that 

(1) the lower court is proceeding or is about to proceed 

outside of its jurisdiction and there is no remedy through 

an application to an intermediate court; or (2) that the 

lower court is acting or is about to act erroneously, 

although within its jurisdiction, and there exists no 

adequate remedy by appeal or otherwise and great 

injustice and irreparable injury will result if the petition is 

not granted.

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Here, the circuit court held that 

the ALJ was acting within her jurisdiction by issuing the subpoenas because 

Kentucky’s long-arm statute, KRS 454.210, allowed it. The court held that 

because Mr. Falls and Messrs. Shumway are members of Brightmore and the 

subpoenas were served upon Brightmore’s registered agent in Kentucky, the longarm statute providing for the service of process upon a registered agent, namely 

KRS 454.210(3), applies. The circuit court also held that it would not be a great 

injustice to require Mr. Falls and Messrs. Shumway to appear because they are 

member/owners of Brightmore. Finally, the circuit court held that Appellants had 

an adequate remedy by appeal, which would preclude the granting of a writ.

We believe the circuit court was incorrect in its conclusion that the 

ALJ was acting within her jurisdiction. “It is fundamental that administrative 

agencies are creatures of statute and must find within the statute warrant for the 

exercise of any authority which they claim.” Dep’t for Nat. Resources and

Environmental Protection v. Stearns Coal & Lumber Co., 563 S.W.2d 471, 473 
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(Ky. 1978) (citation omitted). Here, KRS 454.210 states that a “court may 

exercise personal jurisdiction over a person” who transacts business in the 

Commonwealth. KRS 454.210(2)(a) (emphasis added). Kentucky’s long-arm 

statute only refers to courts and does not mention administrative bodies; therefore, 

it would seem it does not apply to this case. “We must interpret statutes as written, 

without adding any language to the statute[.]” Commonwealth v. Chestnut, 250 

S.W.3d 655, 661 (Ky. 2008) (citation omitted). In addition, the wording of KRS 

454.210 indicates it only applies to the issuance of a summons to a defendant upon 

the filing of a complaint. Nothing in this statute discusses subpoenas or witnesses. 

Finally, serving a subpoena on an LLC, or its agent, is not the same as serving a 

subpoena on a member of that LLC. LLCs and their members are separate and 

distinct entities. Turner v. Andrew, 413 S.W.3d 272, 275-76 (Ky. 2013).

Finally, PCM argues the Cabinet has jurisdiction over the witnesses 

because of their ownership of Brightmore, relying on KRS 275.335(6) and 

International Union of Operating Eng’rs v. Bryan, 255 S.W.2d 471, 474 (Ky. 

1953). However, PCM’s argument is misplaced. As stated above, serving a 

subpoena on an LLC, or its agent, is not the same as serving a subpoena on a 

member of that LLC. LLCs and their members are separate and distinct entities. 

Turner, 413 S.W.3d at 275-76.
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To discover the power the Cabinet has in issuing summonses, we must 

look to KRS 216B.040. KRS 216B.040(3)(b) states, in pertinent part, that the 

Cabinet may “[a]dminister oaths, issue subpoenas, subpoenas duces tecum, and all 

necessary process in proceedings brought before or initiated by the cabinet, and the 

process shall extend to all parts of the Commonwealth.” (Emphasis added.) 

Another statute to consider is KRS 216B.085(1), which states that a Cabinet 

hearing officer or ALJ “shall be authorized to administer oaths, issue subpoenas, 

subpoenas duces tecum, and all necessary process in the proceedings.” Like KRS 

216B.040, this statute allows for the issuance of subpoenas, but it does not have 

any limiting language. 

It is a basic rule of construction that “[w]here there is an 

apparent conflict between statutes or sections thereof, it 

is the duty of the court to try to harmonize the 

interpretation of the law so as to give effect to both 

sections or statutes if possible.” In the same vein, “[i]t is 

well settled that two or more acts dealing with the same 

subject matter must be construed in pari materia, and any 

apparent conflict between them must be reconciled, if 

possible, so as to give effect to both.”

Galloway v. Fletcher, 241 S.W.3d 819, 823 (Ky. App. 2007) (citations omitted).

In order to harmonize these two statutes, we must rely on the language 

found in KRS 216B.040 that limits subpoena power to the borders of the 

Commonwealth. To do otherwise would require us to hold the limiting language 

meaningless. This interpretation is supported by case law which states that “[t]he 
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Commonwealth has no power to subpoena witnesses over which it has no 

jurisdiction.” Dillingham v. Commonwealth, 995 S.W.2d 377, 382 (Ky. 1999)

(citing Hey v. Emerson, 142 Ky. 767, 135 S.W. 294 (1911)). Here, Mr. Falls and 

Messrs. Shumway are not located within the Commonwealth; therefore, the 

Cabinet does not have the power to subpoena them. 

Since the circuit court erred in holding that the ALJ was acting within 

her jurisdiction, we must analyze this case to determine whether a writ of 

prohibition is required due to the ALJ acting outside her jurisdiction. “Relief by 

way of prohibition or mandamus is an extraordinary remedy and we have always 

been cautious and conservative both in entertaining petitions for and in granting 

such relief.” Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). We believe that 

this case requires the issuance of the writ of prohibition requested by Appellants. 

As previously stated, the Cabinet only has powers as authorized by 

statute. Stearns Coal & Lumber Co., 563 S.W.2d at 473. As discussed supra, 

there is no mechanism that allows for the Cabinet to subpoena a witness who is not 

within the borders of the Commonwealth. Furthermore, it is Brightmore’s 

responsibility to prove to the ALJ that it should receive a CON. If Mr. Falls and 

Messrs. Shumway would be the best witnesses to provide evidence but are not 

utilized, any negative outcome would be the fault of Brightmore. Forcing them to 

testify and then applying a negative inference when they do not testify could be 
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seen as an arbitrary and unreasonable outcome in CON proceedings. In order to 

obtain a CON, an applicant must meet certain requirements set forth in the 

Cabinet’s State Health Plan, which is incorporated into the Kentucky 

Administrative Regulations (KAR) pursuant to 900 KAR 5:020. Additional 

criteria are found in KRS 216B.040(2)(a)2. If Brightmore were to meet all 

requirements to receive a CON, but were still denied one because of a negative 

inference, this could be seen as an arbitrary outcome.

Additionally, the Cabinet agrees with Appellants. During the circuit

court’s hearing on this issue, counsel for the Cabinet indicated that it could not

make a good-faith argument that it had subpoena powers over out-of-state 

individuals based on the wording of the statutes discussed above. Counsel also 

indicated the Cabinet was concerned about the use of a negative inference when it 

cannot be reviewed by the Secretary of the Cabinet before a final CON decision is 

made.

Finally, case law supports our decision. “[I]t would be a most inept 

ruling to deny the writ, require a trial on the merits, and then on an appeal be 

forced to reverse the case on the very question which is now before us.” Chamblee

v. Rose, 249 S.W.2d 775, 777 (Ky. 1952). Additionally, “[i]t has been held that the 

remedy by way of appeal is not the controlling consideration where the inferior 

court is without jurisdiction.” Id. As discussed above, the ALJ does not have the 
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authority to force out-of-state witnesses to come to Kentucky to testify. If 

Brightmore’s CON application were to be denied due to Mr. Falls and Messrs. 

Shumway not testifying and the ALJ using an adverse inference, it would invite an 

appeal to the circuit court and be reversed.

CONCLUSION

While the issuing of subpoenas may seem like a simple evidentiary 

issue, it is not. It goes to the jurisdiction of the Cabinet and whether this Court 

should allow it to exercise powers it does not have. Based on the foregoing, we 

conclude that the circuit court erred in not granting Appellants’ petition for a writ 

of prohibition. 

Even though a writ of prohibition is an 

extraordinary remedy, not to be substituted for appeal, 

we hold that such a remedy is appropriate in a proper 

case to prevent a lower court [or administrative agency]

from exceeding the lawful power or authority with which 

it is invested or from assuming some power not 

authorized by law even though the case before it may be 

one over which the court [or agency] has general 

jurisdiction. . . . Under such circumstances a proper, 

though extraordinary, remedy is a writ of prohibition. In 

these instances, the injustice being restrained is the 

arrogation of . . . power.

Corns v. Transportation Cabinet, Dep’t of Highways, Commonwealth of Ky., 814 

S.W.2d 574, 578 (Ky. 1991) (citation omitted). The Cabinet does not have the 

authority to subpoena out-of-state witnesses; therefore, we must reverse and 

remand. On remand, the circuit court shall issue the writ requested by Appellants.
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GOODWINE, JUDGE, CONCURS.

 K. THOMPSON, JUDGE, CONCURS IN RESULT ONLY AND 

FILES SEPARATE OPINION. 

THOMPSON, K., JUDGE, CONCURRING IN RESULT ONLY: I 

agree with the majority opinion that Kentucky’s long-arm statute does not permit 

subpoenas to be issued against individual members of an LLC for service through 

the LLC’s registered agent in Kentucky. The subpoenas for the Messrs. Shumway 

and Mr. Falls which required them to appear to give testimony in Kentucky should 

have been quashed as Brightmore Home Care of Kentucky, LLC, requested. It 

would be inappropriate for the Commonwealth of Kentucky, Cabinet for Health 

and Family Services (Cabinet) to draw an adverse inference based on the absence 

of witnesses who were not properly compelled failing to appear before it. 

Therefore, I agree that reversing for the circuit court to grant the writ of prohibition 

is appropriate.

However, I write separately to express my opinion that the Cabinet 

could have properly secured the testimony of the witnesses through deposition in 

their home states. While Kentucky Revised Statutes (KRS) 216B.040(3)(b) does 

not authorize compelling out-of-state witnesses to appear before the Cabinet in

Kentucky, this does not mean that the Cabinet cannot issue subpoenas which could 

then provide the basis for courts in the witnesses’ home states, who have 
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jurisdiction over them, to issue their own subpoenas in reliance upon Cabinet 

subpoenas. 

As to the Messrs. Shumway, who live in Utah, this could be done by 

using the Uniform Interstate Depositions and Discovery Act (UIDDA). Uniform 

Law Commission, Interstate Depositions and Discovery Act (2007), 

https://www.uniformlaws.org/viewdocument/final-act2007?CommunityKey=181202a2-172d-46a1-8dcc-cdb495621d35 (last visited 

Dec. 17, 2020). 

The UIDDA allows for domestication of subpoenas so that a witness 

may be deposed where the witness lives. The UIDDA provides a procedure for 

out-of-state parties to come into a state and submit a foreign subpoena to the 

relevant court to issue its own subpoena allowing for depositions and inspection of 

documents, without having to enter an appearance in court. Our codification of the 

UIDDA is in KRS 421.360. 

Utah has adopted the UIDDA, and it appears in Title 78b of its 

Judicial Code. Pursuant to the UIDDA, in Utah “[t]o request issuance of a 

subpoena under [the UIDDA], a party must submit a foreign subpoena to a court in 

the judicial district in which discovery is sought to be conducted in Utah.” Utah 

Code Ann. § 78B-17-201(1)(a).
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The UIDDA definitions of a “foreign subpoena” and “subpoena[,]” 

which appear in both Utah’s Code and the KRS, state that it is a document “issued 

under authority of a court of record[.]” Utah Code Ann. § 78B-17-102(2), (5); 

KRS 421.360(2)(b), (e). Under the section three of the UIDDA, which concerns 

issuance of a subpoena, the comments state, “A ‘Court of Record’ includes anyone 

who is authorized to issue a subpoena under the laws of that state, which usually 

includes an attorney of record for a party in the proceeding.” Uniform Law 

Commission, Interstate Depositions and Discovery Act. As the Cabinet was 

permitted under KRS 216B.040(3)(b) to issue subpoenas, I believe it qualifies as a 

court of record and subpoenas it issued that were valid in Kentucky could certainly 

be the basis for obtaining subpoenas in Utah through the UIDDA.

As for Mr. Falls, who lives in Wyoming, a state that has not adopted 

the UIDDA and is still governed under the 1920 Uniform Foreign Depositions Act 

(UFDA), the Cabinet would have to proceed under that law:

Whenever any mandate, writ or commission is issued 

from any court of record in any foreign jurisdiction, or 

whenever upon notice or agreement it is required to take 

the testimony of a witness in this state, the witness may 

be compelled to appear and testify in the same manner 

and by the same process as employed for taking 

testimony in matters pending in the courts of this state.

Wyo. Stat. Ann. § 1-12-115. See generally Victoria Bushnell, How to Take an 

Out-of-State Deposition, 14-FEB Utah B.J. 28 (2001) (explaining the different 
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systems in place for taking out-of-state depositions before the adoption of the 

UIDDA).

Other possible solutions to obtain needed testimony could include 

negotiating for the witnesses to consent to give virtual testimony over the internet 

using a platform such as Facetime, Zoom, Skype, Microsoft Teams or similar 

options, the old fashioned telephonic testimony, or providing transportation and 

other reasonable, necessary expenses to facilitate travel for in-person testimony in 

Kentucky. 

While the Cabinet could not compel the witnesses to appear before it, 

the Cabinet could have properly obtained the needed information through 

deposition testimony taken from the witnesses in their home states. 

Accordingly, I concur.
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BRIEFS AND ORAL ARGUMENT 

FOR APPELLANTS:

Holly Turner Curry

Frankfort, Kentucky

BRIEF FOR APPELLEE

PROFESSIONAL CASE 

MANAGEMENT OF KENTUCKY, 

LLC:

Peter L. Thurman

Brent R. Baughman

Kyle W. Miller

Louisville, Kentucky

ORAL ARGUMENT FOR 

APPELLEE PROFESSIONAL CASE 

MANAGEMENT OF KENTUCKY, 

LLC:

Brent R. Baughman

Peter L. Thurman

Louisville, Kentucky

NO BRIEF FILED FOR APPELLEE 

CABINET FOR HEALTH AND 

FAMILY SERVICES.

ORAL ARGUMENT FOR 

APPELLEE CABINET FOR 

HEALTH AND FAMILY SERVICES 

APPELLEES:

Olivia Peterson

Frankfort, Kentucky