Dill v. Flowers

Decision Date12 July 2019
Docket NumberNO. 2017-CA-001440-MR,2017-CA-001440-MR
CourtKentucky Court of Appeals




ACTION NO. 16-CI-00333



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CLAYTON, CHIEF JUDGE: Jennifer Dill, individually and as the administratrix of the estate of Joseph Dominic Dill, and Joseph Dill, individually, ("the Dills") appeal from the Barren Circuit Court's denial of their Kentucky Rules of Civil Procedure (CR) 60.02 motion, which sought to set aside a summary judgment granted in a medical malpractice suit. Because the Dills failed to show they are entitled to the extraordinary relief afforded by CR 60.02(e), we affirm.

On July 14, 2016, the Dills filed suit against Kevin Flowers, M.D.; his practice group, Southeastern Emergency Physicians (SEP); T.J. Samson Community Hospital (Hospital); and unknown defendants. Their complaint alleged medical malpractice in connection with the death of their minor son, Joseph Dominic Dill (Dominic). Dominic was referred to the Hospital emergency room after complaining of hip pain. Dr. Flowers diagnosed him with a closed nondisplaced fracture of the head of his left femur, prescribed pain medications, and discharged him with instructions to follow up with an orthopedic physician. Three days later, Dominic passed away from an overdose of hydrocodone. The Dills alleged that Dominic had an undiagnosed infection with impaired kidney function which prevented him from metabolizing the hydrocodone.

After filing an answer to the complaint, Dr. Flowers served interrogatories, requests for production and requests for admissions on the Dills onAugust 16, 2016. The requests for admissions sought information regarding experts who would support the malpractice claims; they stated as follows:

1. Please admit or deny that the Plaintiff did not consult with any qualified health care professional, prior to the filing of the instant action, to determine if the care provided by Defendant deviated from the accepted standard of care.
2. Please admit or deny that no qualified health care professional has criticized the care rendered by Defendant as having deviated from the accepted standard of care.
3. Please admit or deny that Plaintiff is unable to state through expert testimony that the care rendered by Defendant, to a reasonable degree of medical probability, caused the Plaintiff's or Decedent's claimed injuries.
4. Please admit or deny that the Plaintiff is unable to state through expert testimony that the care rendered by Defendant deviated from the accepted standard of care.

The Dills did not respond to any of the discovery requests nor ask for additional time to do so.

On October 12, 2016, Dr. Flowers moved to deem the requests for admissions admitted, relying on CR 36.01(2), which provides for automatic admission. As the Rule states, "[t]he matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requestingthe admission a written answer or objection addressed to the matter[.]" CR 36.01(2). The Dills did not file a response to this motion.

Ms. Dill appeared at motion hour on October 31, 2016, accompanied by her attorney. According to a notation on the DVD in the trial court record, this motion hour was not recorded because the "system was down." "[W]hen the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). According to the trial court's order and the appellees' statements of facts, Ms. Dill's attorney made an oral motion for leave to withdraw. He also requested additional time for the Dills to obtain new counsel and an extension of time to file responses to the requests for admissions. The trial court granted the motions and set the matter for motion hour on December 19, 2016. The trial court explained to Ms. Dill that she was being granted an extension of time to hire new counsel and respond to the requests for admissions and that if she failed to do so, the requests would be deemed admitted. The trial court also warned her that, if admitted, the admissions would likely provide a basis for dismissal of the case. The trial court entered an order reflecting its rulings, giving the Dills until December 19, 2016, fifty days, within which to obtain new counsel, have new counsel file an entry of appearance and to respond ingood faith to outstanding requests for admissions. The order also stated that the requests would be deemed admitted if the Dills did not comply by that date.

The Dills did not comply with any part of the order.

At motion hour on December 19, 2016, Ms. Dill claimed that she had spoken with a law firm on the phone and requested another extension of time. When the trial court asked her to explain the delay, she stated that she and her husband had been arrested on criminal assault charges relating to their son's death. The trial court explained to Ms. Dill that it had made an exception to the rules at the hearing of October 31 to provide her with more time to respond, but that now it had to enforce its order. The court cautioned that any summary judgment or dismissal had not yet been ruled on and would have to come as the result of a motion. The trial court ruled the admissions were now admitted by operation of law and entered an order to that effect.

On December 21, 2016, Dr. Flowers filed a motion for summary judgment. SEP and the Hospital also moved for summary judgment. As the basis for their motions, the defendants relied in part on the admissions that the Dills would not be able to produce expert proof that Dr. Flowers or the Hospital deviated from the applicable standard of care in treating Dominic.

A hearing on the motions was held on January 9, 2017. Ms. Dill was present at the hearing, without counsel. She informed the trial court that althoughshe had hired an attorney he could not be present due to a scheduling conflict. She explained that he had to attend court in Jamestown and "he said that as soon as that's over he's going to fly here, but it's probably an hour." She asked the court for an extension of time and to pass the hearing. No entry of appearance had been filed in the trial court record prior to the hearing, nor had the court received any communication from any attorney on the Dills' behalf. The trial court granted the defendants' motions for summary judgment and entered an order dismissing the Dills' claims with prejudice. The trial court also explained to the Dills they could retain counsel to assist with post-judgment proceedings.

No motion to vacate the judgment pursuant to CR 59.05 was filed.

Almost a month later, on February 8, 2017, an attorney representing Jennifer Dill filed an entry of appearance, a response, an objection to the defendants' motions for summary judgment and a motion to set aside the summary judgment and admissions pursuant to CR 60.02. Counsel also filed a notice of appeal. The appeal was subsequently dismissed by the appellants.

On February 27, 2017, the trial court held a hearing on the motion to set aside the judgment and admissions and entered an order allowing the parties additional time to file supplemental arguments and responses. A telephonic conference was held regarding the CR 60.02 motion. The trial court issued a second briefing schedule. On August 2, 2017, the trial court issued an orderdenying the motion to set aside summary judgment pursuant to CR 60.02 (e) or (f). This appeal by the Dills followed.

On November 21, 2017, this Court entered an order limiting the scope of this appeal to the issues presented by the trial court's order of August 2, 2017, denying CR 60.02 relief. We will not consider the merits of the grant of summary judgment and dismissal, except insofar as they are pertinent to the denial of the CR 60.02 motion.

We review the denial of a CR 60.02 motion for an abuse of discretion. Partin v. Commonwealth, 337 S.W.3d 639, 640 (Ky. App. 2010), overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008). 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). Absent a "flagrant miscarriage of justice," we will affirm the trial court. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).

"CR 60.02 is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings." McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). CR 60.02 was enacted as a statutory codification of the common law writ of coram nobis which was intended to address errors which "(1) had not beenheard or litigated, (2) were not known or could not have been known by the party through the exercise of due diligence, or (3) the party was prevented from presenting due to duress, fear, or some other sufficient cause." Baze v. Commonwealth, 276 S.W.3d 761, 765-66 (Ky. 2008) (citing Gross, 648 S.W.2d at 856).

Of particular significance for this case, we emphasize that CR 60.02 "is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal[.]" McQueen, 948 S.W.2d at 416 (internal quotation marks and citations omitted). Similarly, the failure to file a motion...

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