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Nave v. Feinberg

Court of Appeals of Kentucky

July 28, 2017



          BRIEFS FOR APPELLANT: Patricia Nave, Pro Se Lexington, Kentucky

          BRIEF FOR APPELLEES, DR. DAVID FEINBERG AND AMY ROUSE: Matthew T. Lockaby Lexington, Kentucky

          BRIEF FOR APPELLEE, ROSS STINETORF: Thomas D. Bullock Lexington, Kentucky



          LAMBERT, J., JUDGE.

         Patricia Nave, proceeding pro se, [1] has appealed from three orders of the Fayette Circuit Court dismissing her claims related to a custodial evaluation performed in a dissolution case. The circuit court held that her claims were time-barred and that the appellees had immunity from suit. Having reviewed the record and the parties' respective arguments, we affirm the orders on appeal.

         The underlying matter began with the filing of a 91-page petition for damages by Nave against David Feinberg, Amy Rouse, Ross Stinetorf, and William F. Patten on March 21, 2014.[2] Dr. Feinberg is a licensed psychologist who practices at Feinberg & Associates, Rouse is a Licensed Clinical Social Worker who was employed by Feinberg & Associates, Stinetorf is a licensed attorney in Kentucky, and Patten is both a licensed attorney and certified public accountant in the states of Oklahoma and Missouri. Patten is Nave's former husband. Patten hired Stinetorf to represent him in other actions, including a pending dissolution action in the Fayette Family Court, Patten v. Patten, Case No. 10-CI-04382, where custody of his and Nave's minor children was at issue. Dr. Feinberg and Rouse were ordered by the family court to conduct a custodial evaluation for the dissolution action.

         In short, Nave alleged that Dr. Feinberg and Rouse received reports of child abuse during an interview with one of the children during the course of the custody evaluation but failed to disclose the abuse reports to her or to the Cabinet for Health and Family Services (the Cabinet) pursuant to Kentucky Revised Statutes (KRS) 620.030. Nave also disputed the contents of the custody report provided to the Cabinet, alleging that it concealed information related to abuse and to her and Patten's psychological testing results.

         Nave alleged several causes of action against the four named defendants. Against Dr. Feinberg and Rouse, Nave alleged breach of contract related to the performance of the custody evaluation, professional malpractice, and negligence. Against Dr. Feinberg, Rouse, and Stinetorf, Nave alleged a cause of action for disclosure of her confidential information. Against all four defendants, Nave alleged defamation, conspiracy to defame, fraud based upon their material misrepresentations, conspiracy to commit fraud, intentional infliction of emotional distress, conspiracy to intentionally inflict emotional distress, obstruction of a child abuse investigation, and conspiracy to obstruct a child abuse investigation. As a result, Nave sought compensatory damages, actual damages, consequential damages, and a trial by jury.

         In lieu of filing an answer to the complaint, Dr. Feinberg and Rouse filed a motion to dismiss pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f), in which they argued that they were entitled to quasi-judicial immunity as court-appointed custody evaluators and that if not immune, Nave's claims should be dismissed as barred by the applicable one-year statute of limitations or for failure to state a claim upon which relief could be granted. In the attached memorandum, Dr. Feinberg and Rouse explained that in an order entered March 4, 2011, in the course of the dissolution proceeding, the family court directed the parties to submit to a custody evaluation by Feinberg & Associates. This evaluation was conducted, and Dr. Feinberg issued a report. The custody conference was held on August 2, 2011. Nave and Patten reached a settlement, and Nave was awarded primary custody of their children. More than two years later, Nave attacked the custody evaluation and report. Dr. Feinberg and Rouse cited to Stone v. Glass, 35 S.W.3d 827 (Ky. App. 2000), in support of their argument that they were entitled to quasi-judicial immunity for all of Nave's claims. As to the individual claims, they argued that there was no contract between either of them and Nave so that there could not be a breach, that her unlawful disclosure claims must fail because HIPAA does not create a private cause of action for a violation of its provisions, and that the remaining claims were filed outside of the one-year statute of limitations period, which began to run on August 2, 2011, when the custody report was issued and discussed during the dissolution proceedings. Nave did not file her complaint until March 21, 2014.

         Stinetorf joined the motion to dismiss filed by Dr. Feinberg and Rouse. In addition, Stinetorf argued that any allegations of wrongdoing by him should have been raised in the dissolution case and that he had absolute immunity for any statement made or pleading filed as a part of a judicial proceeding pursuant to Morgan & Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d 599 (Ky. 2011).

         Nave objected to both motions, and in reply, Dr. Feinberg and Rouse stated that Nave admitted that the suspected child abuse - about which she was complaining had not been reported - had in reality already been reported and had been the subject of two Cabinet investigations.

         The circuit court held a hearing on the defendants' motions on May 28, 2014. The court first held that there could not be a cause of action against Stinetorf due to lack of duty because he represented Patten, not her, in the family court action and therefore dismissed him from the lawsuit. After noting that Nave received primary custody of the children and that Patten had not seen the children since April 2011 and considering the merits of their motion, the circuit court granted Dr. Feinberg and Rouse's motion to dismiss. Written rulings were not entered until the next year.

         On January 7, 2015, the circuit court entered an order dismissing Nave's claims against Stinetorf with prejudice. Nave moved the court to modify its January 7, 2015, order, stating that the basis and rationale for the ruling was not set forth in the order, its broad reference to the record was not sufficient to apprise a reviewing court of the basis of the ruling, and it did not include finality language. Dr. Feinberg and Rouse responded to Nave's motion, noting that the court had granted their motion to dismiss at the May 28, 2014, hearing, and had requested that they tender a proposed order, which they did on January 13, 2015. Stinetorf also objected to Nave's motion, stating that findings of fact and conclusions of law are not necessary in orders ruling on CR 12 or CR 56 motions pursuant to CR 52.01.

         On January 20, 2015, the circuit court entered an order granting Dr. Feinberg and Rouse's motion to dismiss. In the order, the court concluded that they were entitled to quasi-judicial immunity and that Nave ...

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