RENDERED: APRIL 23, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0949-MR
KIMBERLY STEWART APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 17-CI-002575
CARDIOVASCULAR SPECIALISTS,
P.S.C.; AND CARDIOVASCULAR
SURGICAL CARE, PLLC APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES.
DIXON, JUDGE: Kimberly Stewart appeals the order dismissing her complaint
against Cardiovascular Specialists, P.S.C., and Cardiovascular Surgical Care,
PLLC, for improper venue entered by the Jefferson Circuit Court on July 24, 2020.
After careful review of the briefs, record, and the law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
This is Stewart’s second appeal in this case. Another panel of our
Court discussed the underlying facts in Stewart v. Kentuckiana Medical Center,
LLC, 604 S.W.3d 264 (Ky. App. 2019), disc. rev. denied (May 20, 2020):
The relevant facts of this action are as follows:
Stewart is a resident of Indiana. [Kentuckiana Medical
Center, LLC, (KMC)] is a Florida corporation that
operated a hospital in Clarksville, Indiana. Dr. Chalhoub
and Dr. Rumisek are both licensed to practice medicine
in Indiana and Kentucky. Their practice groups,
Cardiovascular Surgical Care, PLLC and Cardiovascular
Specialists, PSC, are located in Louisville, Kentucky.
On May 30, 2014, Stewart presented herself to the
emergency room at KMC, complaining of a headache
and a single fainting episode. The admitting physician
called in Dr. Chalhoub for a cardiology consult. He
diagnosed Stewart with bradycardia and sick sinus
syndrome. Based upon this diagnosis, Dr. Chalhoub
recommended that Stewart have a pacemaker installed.
Dr. Chalhoub called in Dr. Rumisek for an additional
consult and to perform the procedure.
On June 2, 2014, Dr. Rumisek implanted a
pacemaker in Stewart’s heart. The following day, Dr.
Rumisek performed a second surgery to adjust the lead
placement. Subsequently, Stewart developed an
infection at the surgical site. On June 18, 2014, Dr.
Rumisek performed a surgical debridement to treat the
infection. After each of the surgeries, Stewart followed
up with both doctors at their Louisville offices. Stewart’s
last follow-up visit with Dr. Chalhoub was in September
2014, and her last follow-up visit with Dr. Rumisek was
in August 2014.
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On July 1, 2016, Stewart began treating with a new
cardiologist, who advised her that she never had sick
sinus syndrome and that the pacemaker was not
medically necessary. Based on this information, Stewart
filed the current complaint in Jefferson Circuit Court,
naming KMC, Dr. Chalhoub, Dr. Rumisek, and their
respective practice groups. In lieu of an answer, all of
the defendants filed motions to dismiss pursuant to CR1
12.02. They argued that Stewart’s action was barred due
to her failure to comply with the medical review panel
requirements of the Indiana Medical Malpractice Act.
I.C.2 § 34-18-8-4. As additional grounds for dismissal,
KMC separately argued that Kentucky could not exercise
personal jurisdiction over it.
After reviewing the briefs and arguments of
counsel, the trial court granted the motions. The court
found that it lacked subject-matter jurisdiction over
Stewart’s claims against Drs. [sic] Chalhoub and Dr.
Rumisek until she complied with the medical-review
panel provisions of the Indiana Medical Malpractice Act.
Consequently, the court dismissed those claims without
prejudice. The court also found that it lacked personal
jurisdiction over KMC.
Id. at 267. That panel ultimately upheld the trial court’s dismissal of Stewart’s
complaint against KMC and the doctors. That decision did not affect Appellees
herein, as the trial court set aside its dismissal of Appellees while that appeal was
pending.3 Subsequently, Cardiovascular Specialists, P.S.C., and Cardiovascular
1
Kentucky Rules of Civil Procedure.
2
Indiana Code.
3
The portions of the orders dismissing Cardiovascular Specialists, P.S.C., and Cardiovascular
Surgical Care, PLLC, were set aside while the prior appeal was held in abatement. Thus, the
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Surgical Care, PLLC, moved for summary judgment, which was granted by the
trial court. This appeal followed.
STANDARD OF REVIEW
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” CR 56.03. An
appellate court’s role in reviewing a summary judgment is to determine whether
the trial court erred in finding no genuine issue of material fact exists and the
moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de
novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.
Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006).
ANALYSIS
On appeal, Stewart argues the trial court erred in its dismissal of her
remaining claims based on improper venue. Venue relates to the proper place for a
claim to be heard. Matters of venue are left to the trial court’s discretion and must
be upheld absent an abuse of discretion. Williams v. Williams, 611 S.W.2d 807
prior panel did not review the trial court’s dismissal of Stewart’s complaint as to those two
entities.
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(Ky. App. 1981). “The test for abuse of discretion is whether the trial [court’s]
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations
omitted).
We first note, as alluded to by the prior panel of our Court, the
“doctrine of forum non conveniens recognizes that there are certain instances in
which a court properly vested with jurisdiction and venue may, nonetheless,
dismiss an action if it determines that it is more convenient for the litigants and
witnesses that the action be tried in a different forum.” Beaven v. McAnulty, 980
S.W.2d 284, 287 (Ky. 1998) (citation omitted), superseded by statute as stated in
Seymour Charter Buslines, Inc. v. Hopper, 111 S.W.3d 387 (Ky. 2003).
“Although the court ha[s or may have] jurisdiction of the case, it not only ha[s] a
right, but also a duty to consider the doctrine [of forum non conveniens] and to
decline jurisdiction, if appropriate.” Id.
However, with the “enactment of KRS[4] 452.105, the General
Assembly made it clear that venue should be transferred in a proper case, and that
the action should not be dismissed.” Dollar Gen. Stores, Ltd. v. Smith, 237 S.W.3d
162, 167 (Ky. 2007) (footnote added). Even so, it is well-established that a “court
lacks power to transfer a case to the courts of another state. For this reason, a
4
Kentucky Revised Statutes.
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court which finds itself to be an inappropriate forum under this section must
dismiss the action outright, or do so conditionally . . . or else stay the action
pending institution of suit and service of process upon the defendant in a more
convenient forum.” Beaven, 980 S.W.2d at 287 (emphasis in original) (citation
omitted). Here, because an action against the same parties based on the same facts
is now pending in Indiana, where Stewart resides and where the alleged wrongful
conduct occurred, the Jefferson Circuit Court acted within its authority and
discretion when it declined jurisdiction and dismissed the action.
Furthermore, the previous panel of our Court specifically noted:
We find no significant contacts in this case supporting
application of Kentucky law. Stewart is an Indiana
resident, and she was treated in an Indiana hospital. The
only contact with Kentucky arises from her follow-up
visits with Dr. Chalhoub and Dr. Rumisek at their
Louisville offices. However, Stewart does not allege any
independent negligence arising from those contacts in
Kentucky. Based upon the lack of significant contacts
with Kentucky, we conclude that Indiana substantive law
applies to her claim.
Stewart, 604 S.W.3d at 269 (emphasis added). It also explicitly stated, “To the
extent that these claims remain pending against the practice groups, they may also
be stayed or dismissed without prejudice under the doctrine of forum non
conveniens.” Id. at 270 n.5.
Nevertheless, Stewart contends Appellees waived their ability to raise
lack of jurisdiction as a defense since they failed to specifically raise it in their first
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motion to dismiss. Kentucky’s highest court addressed this issue in Martin v.
Cornett-Lewis Coal Company, 287 S.W.2d 164 (Ky. 1956), stating:
On her appeal to this Court, Mrs. Martin contends that
the Cornett-Lewis Coal Company waived its right to
raise the question of improper venue by filing an answer
in which affirmative relief was sought. The fallacy of
this contention is apparent in the light of CR 12.02,
which, in effect, provides that the defense of improper
venue may, at the option of the pleader, be raised either
by motion or by answer. CR 12.02 also permits several
defenses to be raised and affirmative relief to be asserted
by the answer. If we concede that the answer in this case
sought affirmative relief, it would not preclude the
defendant from relying on the defense of improper venue
when it was timely made. See, Clay, CR 12.02; author’s
comments, 2 and 3.
Id. at 165. Here, Appellees note that no answer in this matter has yet been filed.
Lack of jurisdiction may be raised as an affirmative defense in a motion to dismiss
or an answer. Because an answer has not yet been filed in this matter, we agree
with Appellees; they have not waived their ability to raise lack of jurisdiction as an
affirmative defense.
We likewise find Stewart’s reliance on Underwood v. Underwood,
999 S.W.2d 716 (Ky. App. 1999), misplaced. That panel of our Court held while
“failure to specifically plead the defense may constitute a waiver of the defense,
we do not conclude that the trial court’s consideration of the issue was error.” Id.
at 720. Waiver need not be found where the affirmative defense is raised by timely
motion that does not prejudice the plaintiff. Id. at 716; Camarillo v. McCarthy,
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998 F.2d 638 (9th Cir. 1993) (defense not waived when raised in timely motion for
summary judgment). The same principle applies to the case herein. Accordingly,
we do not find the trial court’s consideration of this issue erroneous.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Jefferson
Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE
CARDIOVASCULAR
Hans G. Poppe SPECIALISTS, P.S.C.:
Scarlette Burton Kelty
Louisville, Kentucky Tracy S. Prewitt
Rachel A. Stratton
Louisville, Kentucky
BRIEF FOR APPELLEE
CARDIOVASCULAR SURGICAL
CARE, PLLC:
Donald K. Brown, Jr.
Mark E. Hammond
Rachel K. Dalton
Louisville, Kentucky
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