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Kimberly Stewart v. Cardiovascular Specialists, P.S.C.

Court: Court of Appeals of Kentucky
Date filed: 2021-04-22
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                   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                        NOT TO BE PUBLISHED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.

                                             -5-
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

                                            -6-
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,

                                         -7-
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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