SHARON KULKA INDIVIDUALLY AND SHARON KULKA TESTATRIX OF THE ESTATE OF STEPHEN KULKA v. KISHOR VORA OWENSBORO MEDICAL HEALTH SYSTEM INC OWENSBORO MEDICAL PRACTICE LLC OWENSBORO HEART AND VASCULAR OWENSBORO MEDICAL PRACTICE IMMEDIATE CARE CENTER

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Court of Appeals of Kentucky.

SHARON KULKA, INDIVIDUALLY;  AND SHARON KULKA, TESTATRIX OF THE ESTATE OF STEPHEN M. KULKA S v. KISHOR N. VORA, M.D.;  OWENSBORO MEDICAL HEALTH SYSTEM, INC.;  OWENSBORO MEDICAL PRACTICE, LLC, D/B/A OWENSBORO HEART AND VASCULAR;  OWENSBORO MEDICAL PRACTICE, D/B/A IMMEDIATE CARE CENTER S

NO. 2009-CA-000027-MR

Decided: March 18, 2011

BEFORE:  CAPERTON, LAMBERT, AND THOMPSON, JUDGES.  Double Double Double BRIEFS FOR APPELLANT:  Sandra Spurgeon Lexington, Kentucky Max S. Hartz Owensboro, Kentucky BRIEF FOR APPELLEE, KISHOR N. VORA, M.D.;   OWENSBORO MEDICAL PRACTICE, LLC D/B/A OWENSBORO HEART AND VASCULAR;  AND OWENSBORO MEDICAL PRACTICE, D/B/A IMMEDIATE CARE CENTER:  Charles G. Franklin Madisonville, Kentucky BRIEF FOR APPELLEE, OWENSBORO MEDICAL HEALTH SYSTEM, INC.:  Ronald G. Sheffer Phillip Monhollen Louisville, Kentucky

The Appellant Sharon Kulka, individually and as testatrix of the estate of Stephen M. Kulka, appeals from the denial of her CR  Double 60.02 motion to set aside an agreed order of dismissal against the Appellees, Kishor N. Vora, M.D.;   Owensboro Medical Practice, LLC D/B/A Owensboro Heart and Vascular;  Owensboro Medical Practice D/B/A Immediate Care Center;  and Owensboro Medical Health System, Inc.Double On appeal, Kulka argues that the trial court erred in not granting her CR 60.02 Double motion because the Appellees had filed false and misleading discovery responses prior to the settlement of the case, which merited the agreed order of dismissal to be set aside.   After a thorough review of the parties' arguments, the record, and the applicable law, we affirm the trial court's denial of Kulka's CR 60.02 motion for the reasons set forth herein.

Kulka filed a complaint on May 3, 2005, against the Appellees for medical negligence after the death of Stephen M. Kulka. Double In addition, Kulka filed a claim for negligent credentialing against OMHS for granting staff privileges to Vora. Discovery in the case ensued.   Kulka contends that in relying upon the results of discovery provided by the Appellees, she filed a motion to dismiss the negligent credentialing claim against OMHS. The trial court granted the motion to dismiss on October 5, 2006.   Thereafter, the parties entered into mediation on April 27, 2007.   The parties agreed to a settlement and an agreed order of dismissal was entered on July 13, 2007, in which all claims Double against the Appellees were dismissed with prejudice.

Subsequently, counsel for Kulka filed a civil action against Vora and OMHS on behalf of a different plaintiff.   According to counsel for Kulka, during the course of discovery for that second case, (“Peppers” ), counsel discovered that OMHS and Vora, in their responses to discovery to Kulka, had withheld significant material information about past issues concerning Vora:  specifically, records concerning peer reviews of Vora and committee minutes wherein Vora was discussed.   Kulka contends that if the documents that were provided in Peppers had been provided in response to discovery in their case, then the negligent credentialing claim against OMHS would have been pursued.

In light of the documents provided in Peppers, Kulka filed a motion pursuant to CR 60.02 on July 9, 2008 to set aside the agreed order of dismissal.

The Appellees argued that the discovery sought in Peppers was substantially different then the discovery requests made by Kulka and, thus, they did not submit materially false, incomplete, or misleading responses to Kulka's discovery requests.   After briefing by the parties and a hearing, the trial court issued an order on December 4, 2008, denying Kulka's motion to set aside the agreed order of dismissal pursuant to CR 60.02.   It is from this order that Kulka now appeals.

On appeal Kulka presents six Double arguments, which we have summarized into one dispositive issue:  namely, whether the trial court erred in denying Kulka's motion under CR 60.02 in which she alleged that the Appellees submitted materially false, incomplete, and misleading discovery responses, i.e., fraud.   The Appellees argue that the trial court properly denied Kulka's motion under CR 60.02. Double With this issue in mind, we now turn to the applicable law.

As an appellate court we review the denial of Kulka's CR 60.02 motion under an abuse of discretion standard, and will only overturn the trial court's exercise of discretion in the event of a miscarriage of justice.  Fortney v. Mahan, 302 S.W.2d 842, 843 (Ky.1957), and Richardson v. Bruner, 327 S.W.2d 572, 873 (Ky.1959).   Absent a showing of abuse of discretion, the trial court's decision in this matter should be affirmed.  Bethlehem Minerals Co. v. Church and Mullins Corp., 887 S.W.2d 327, 329 (Ky.1994).   The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).   Additionally, “[t]wo of the factors to be considered by the trial court in exercising its discretion are whether the movant had a fair opportunity to present his claim at the trial on the merits and whether the granting of the relief sought would be inequitable to other parties.”   Fortney at 843.   The purpose of CR 60.02 is “to provide relief where the reasons for the relief are of an extraordinary nature.”  Ray v. Commonwealth, 633 S.W.2d 71, 73 (Ky.App.1982).

In the case sub judice Kulka has argued that the Appellees' alleged discovery violations fit within multiple provisions of CR 60.02.   Specifically, Kulka presented to this Court through the Appellants' brief that the Appellees' behavior fit within CR 60.02(c) (perjury or falsified evidence), (d) (fraud affecting the proceedings, other than perjury or falsified evidence), and (f) (any other reason of an extraordinary nature justifying relief).   At oral arguments, counsel for Kulka supplemented their arguments with CR 60.02(b) (newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under CR 59.02). Double Additionally, at oral argument, counsel for Kulka acknowledged that only CR 60.02(c) and (d) had been argued to the trial court, and that CR 60.02(f) had not been argued. Double

The law in this Commonwealth is clear.   An appellate court will not consider an argument unless it has been raised before the trial court, and that court has been given an opportunity to consider the merits of the argument.   Shelton v. Commonwealth, 992 S.W.2d 849, 852 (Ky.App.1998).   Further, as our Supreme Court stated in Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976) overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky.2010), an appellant “will not be permitted to feed one can of worms to the trial judge and another to the appellate court.”   Thus, the arguments concerning CR 60.02(b)(argued to our Court but not argued in Appellant's brief)  DoubleDouble and (f)(not argued to the trial court)  DoubleDouble are not properly before this Court and we shall only address the arguments concerning CR 60.02(c) and (d).

In addressing Appellant's argument under CR 60.02(c) (perjury or falsified evidence) we find that, pursuant to CR 60.02, such a motion must be filed within one year of the date of the order.   Kulka's CR 60.02(c) motion was filed more than one year after the entry of the order, thus Kulka's CR 60.02(c) motion is untimely and we will not further address it on appeal.   We now turn to Appellant's last argument, that of fraud under CR 60.02(d).  In addressing Appellant's argument

under CR 60.02(d) (fraud affecting the proceedings, other than perjury or falsified evidence), we find that Kulka's alleged fraud concerning discovery does not amount to “fraud affecting the proceedings” under CR 60.02(d).  As held in McMurry, supra:

The type of “fraud affecting the proceedings” necessary to justify reopening under CR 60.02(d) generally relates to extrinsic fraud.   W. Bertelsman and K. Phillipps, Kentucky Practice CR 60.02, cmt. 6, at 426 (4th ed.1984).   Extrinsic fraud covers “fraudulent conduct outside of the trial which is practiced upon the court, or upon the defeated party, in such a manner that he is prevented from appearing or presenting fully and fairly his side of the case.”  Id. Furthermore, “perjury by a witness or nondisclosure of discovery material is not the type of fraud to outweigh the preference for finality.”   Id. at 425.

In the case sub judice, Mary has failed to establish “fraud affecting the proceedings” as the term is used in CR 60.02(d).  The record does not support her contention that Gordon attempted to or concealed and misrepresented any information relating to the medical practice or the couple's finances.   This information was discoverable and could have been obtained through formal discovery if Mary had elected to do so in lieu of entering into the property settlement agreement without conducting an independent inquiry of her own.   There is no evidence in the record-nor is any offered by the appellant-to indicate that Gordon acted in a fraudulent manner.   Bare allegations will not suffice to establish “fraud affecting the proceedings.”   In the case sub judice, Mary has not met her burden of proving that Gordon's actions rise to the level of fraud.

McMurry at 733.

Recently our Court in Goldsmith, supra addressed CR 60.02(d) and noted:

Fraud upon the court is “that species of fraud which does or attempts to subvert the integrity of the court itself.”   Such fraud has been construed to include only the most egregious conduct, such as bribery of a judge or a member of the jury, evidence fabrication, and improper attempts to influence the court by counsel.   Generally, fraud between the parties, without more, does not rise to the level of fraud upon the court.  [Rasnick v. Rasnick, 982 S.W.2d 218, 219-220 (Ky.App.1998) ] quoting Wise v. Nirider, 261 Mont. 310, 862 P.2d 1128 (1993) (Internal citations omitted).

Goldsmith at 904.   In light of McMurry and Goldsmith we must conclude that the alleged fraud by the Appellees based on the facts sub judice is not “fraud upon the court” as required by CR 60.02(d). Double Thus, the trial court did not err in denying Kulka's motion.

The parties additionally argue exhaustively concerning the propriety of reopening the negligent credentialing claim against OMHS if the provisions of CR 60.02 were met.   Given that we find no error in the trial court's denial of Kulka's CR 60.02 motion and that a negligent credentialing cause of action has not been recognized in Kentucky, we decline to address the parties' arguments concerning negligent credentialing.

In light of the aforementioned reasons, we find no error in the trial court's denial of Kulka's CR 60.02 motion and, accordingly, affirm.

ALL CONCUR.

CAPERTON, JUDGE:   Double Double Double