Commonwealth Of Kentucky Court of Appeals

Transcription

1 RENDERED: March 5, 2004; 10:00 a.m. NOT TO BE PUBLISHED Commonwealth Of Kentucky Court of Appeals NO CA MR AND NO CA MR KAMAL K. GARG, M.D. APPELLANT APPEALS FROM JOHNSON CIRCUIT COURT v. HONORABLE DANIEL R. SPARKS, JUDGE HONORABLE JAMES A. KNIGHT, JUDGE HONORABLE HAROLD S. BURKS, SPECIAL JUDGE ACTION NO. 98-CI JANE DOE, A/K/A KELLY PRICE APPELLEE OPINION AFFIRMING IN NO CA MR AND REVERSING IN NO CA MR ** ** ** ** ** BEFORE: JUDGE. 1 DYCHE AND KNOPF, JUDGES; AND JOHN D. MILLER, SPECIAL 1 Senior Status Judge John D. Miller sitting as Special Judge by Assignment of the Chief Justice pursuant to Section 110 (5)(b) of the Kentucky Constitution.

2 DYCHE, JUDGE. Kamal K. Garg, M.D., brings appeals from a judgment of the Johnson Circuit Court awarding money damages to Kelly Price to compensate her for a sexual assault at the hands of Dr. Garg, and from an order of the same court finding him to be in contempt and ordering his arrest. Although the two matters arise from the same action in the circuit court, we will consider them separately. Following an automobile accident, Ms. Price was brought, for examination and treatment, to the emergency department of a hospital where Dr. Garg was working. She alleged in her complaint in this action that during the examination, and more than once, Dr. Garg fondled her breasts and buttocks in a sexual manner, completely unrelated to her injuries or treatment of the injuries. In addition, she claimed that he made suggestive comments to her, including inviting her to a tryst in Lexington; to facilitate this, he gave her his pager number. The matter proceeded in fits and starts, but was ultimately set for trial. In the meantime, Garg and his counsel had parted ways, and Garg had been strictly admonished in the order discharging counsel that he had sufficient time to engage other counsel, and that failure to do so was no excuse to fail -2-

3 to appear for trial. That is nevertheless what he did, and the circuit court entered a default judgment against him, assessing damages totaling $100, Garg appealed, and a panel of this Court reversed, holding that Garg should have had notice of the proposed default, and the opportunity to explain his failure to appear. The matter was remanded to the circuit court, and, after more delays at the request of Garg and his counsel, a hearing was held to determine if Garg had a valid excuse for his default. The court found no valid reason, and judgment on the issue of liability was again entered by the court. was scheduled for trial on the issue of damages. The matter Garg again failed to appear, and a non-jury trial was held, resulting in a judgment in favor of Ms. Price in the amount of $75, ($25, compensatory damages, and $50, punitive damages). Appeal No CA followed. Garg first argues that it was error for the trial court to have denied his motion to have Ms. Price submit to an Independent Medical Examination pursuant to CR 35.01, as, he claims, her physical or mental condition was in issue. She claimed in her complaint that she had suffered great humiliation and pain and suffering.... We agree with appellee that her claim was for past injuries, not her condition -3-

4 at the time the examination was sought. It was not error or abuse of discretion for the trial court to deny the motion. Garg next argues that it was error for the trial on damages to be without the intervention of a jury. He admits that this error was not preserved. He never demanded a jury trial, and Ms. Price consented to the bench trial. There was no error. He maintains that the verdict was not supported by the evidence, again admitting that the alleged error was not preserved. We disagree. We have read the transcript of the trial, and the judgment was well within reason for the damages inflicted upon Ms. Price, and the conduct of Garg. He abused the trust of a patient, and used his position in order to gratify his own lustful desires. The final argument pertains to the admission of evidence on liability during the damages portion of the trial. The error, if any, was harmless. CR Appeal No CA is taken from an order of the circuit court finding Garg to be in contempt, and ordering his arrest. On Ms. Price s motion, the trial court had issued an Order Granting Pretrial Attachment forbidding Garg from conveying or in any way encumbering an upscale house and lot in Lexington which counsel for Price had discovered listed for sale or rent by Garg after Garg had represented to the court -4-

5 that he had no property whatsoever. The day after the order was entered, Garg sold the house for $328, On motion of Price, the trial court held Garg in contempt, and ordered his arrest, following which a hearing would be held. Garg asserts that the contempt citation was barred by the statute of limitations, and that he did not receive due process in the contempt procedure. Contempt is the willful disobedience of -or open disrespect for -the rules or orders of a court. Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1996). Contempt may be either civil or criminal. Civil contempt involves the failure of one to do something under order of court -generally for the benefit of a party litigant. Burge, supra. The purpose of civil contempt is to coerce rather than to punish -to compel obedience to and respect for an order of the court. The primary characteristic of civil contempt is the fact that the contemnors carry the keys of their prison in their own pocket. Blakeman v. Schneider, Ky., 864 S.W.2d 903 (1993). Criminal contempt is conduct which amounts to an obstruction of justice and which tends to bring the court into disrepute. Gordon v. Commonwealth, 141 Ky. 461, 463, 133 S.W. 206, 208 (1911). It seeks to punish conduct which has already occurred rather than to compel a course of action. It is the purpose of the punishment (rather than the fact of punishment per se) that distinguishes civil from criminal contempt. Blakeman, supra. If the court s purpose is to punish, the sanction is criminal contempt. If the court s purpose is to goad one into action or to compel a course of conduct, the sanction is civil contempt. -5-

6 Com. ex rel. Bailey v. Bailey, Ky. App., 970 S.W.2d 818, 820 (1998). Criminal contempt is a misdemeanor. As commitment to the Department of Corrections is not available as punishment for criminal contempt, it is generally considered to be a misdemeanor. KRS ; Gordon v. Commonwealth, supra. Prosecution for a misdemeanor must be commenced within one year of its commission. KRS (2). The alleged contempt in this case occurred on September 27, 2001; the motion for contempt was filed November 8, The action was not commenced within one year, and is therefore barred. Accordingly, the order of contempt and arrest in No CA is reversed. The judgment in No CA is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: Robert C. Bishop Elizabethtown, Kentucky BRIEF FOR APPELLEE: Ned Pillersdorf Pillersdorf, Derossett & Lane Prestonsburg, Kentucky -6-