ERIKSEN (WILLIAM) VS. ELKINS (MICHAEL)Annotate this Case
RENDERED: NOVEMBER 14, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
DR. WILLIAM ERIKSEN, P.S.C.
APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
ACTION NO. 04-CI-00160
DR. MICHAEL ELKINS, D.C.
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.
COMBS, CHIEF JUDGE: Dr. William Eriksen, P.S.C. (Eriksen), appeals from an
order entered in Simpson Circuit Court denying its post-trial motion for relief. We
On May 7, 2004, Eriksen initiated a civil action against Dr. Michael
Elkins, a chiropractor who had been employed by Eriksen beginning in June 1999.
Eriksen alleged that Dr. Elkins was indebted to the corporation for certain
advances, payment of expenses, and an overpayment of compensation. In his
answer and counterclaim, Dr. Elkins denied that he owed the corporation any
monies and alleged that the corporation had fraudulently withheld from him
compensation earned under a written profit-sharing agreement.
Following a period of discovery, the case went to trial in late August
of 2006. The jury found that neither party was entitled to recover from the other,
and judgment was entered accordingly on September 11, 2006.
Nearly one year later, on September 10, 2007, Eriksen filed a motion
requesting the trial court to vacate the judgment. Eriksen invoked the provisions of
Kentucky Rules of Civil Procedure (CR) 60.02(b), (c), and (e). In support of the
motion, Eriksen contended that it had discovered a copy of Dr. Elkins’s 2002
federal tax return in the public record of Elkins’s divorce. Eriksen scrutinized and
analyzed this newly discovered tax return in light of the forensic accounting
reports and examinations of the corporation’s books that had been made in
preparation for trial. Eriksen concluded that Dr. Elkins’s federal tax return
indicated that Elkins must have been aware throughout the litigation that he had
been properly compensated in accordance with the parties’ written agreement. “It
is [Eriksen’s] position that at the time of trial, [Dr. Elkins] well knew that
[Eriksen’s] positions as asserted in Court were both truthful and correct.”
Memorandum in Support of Motion to Vacate Judgment at 5.
Eriksen argued that the trial court has both the duty and the authority
to see that its judgments are “correct and accurately reflect the truth in all
respects.” Id. Therefore, Eriksen asked that the corporation be permitted to
complete a thorough post-trial investigation into its allegation so that it “would be
in an appropriate position to present its arguments to the Court on its CR 60.02
[m]otion . . . .” Eriksen sought to depose Dr. Elkins in order to confront him with
the tax returns and the documents prepared by Eriksen’s accounting experts.
Eriksen believed that he could prove that Dr. Elkins had perjured himself and that
if indeed he had, the judgment should be set aside.
Dr. Elkins filed a response on October 9, 2007. Elkins observed that
during discovery, Eriksen had repeatedly refused to produce relevant financial
documents. Finally, and only in compliance with a direct court order, Eriksen
relented and granted access to the corporation’s computer to Dr. Elkin’s expert.
That expert almost immediately found credible evidence to support Elkins’s claim
that he had been underpaid. Dr. Elkins contended that Eriksen’s motion for
extraordinary relief under these circumstances lacked any foundation in fact.
The trial court entered an order denying Eriksen’s motion for relief on
October 11, 2007. In particular, the court denied Eriksen’s request for leave to
conduct discovery. The court concluded that although the contents of Dr. Elkins’s
2002 federal tax return arguably might have been used to impeach his testimony,
that document had been readily available prior to trial. Thus, the court was not
persuaded that Eriksen was entitled to the extraordinary relief that it sought. This
Eriksen argues now that the trial court misinterpreted the provisions of
CR 60.02 and that it abused its discretion by denying the corporation an
opportunity to take discovery and to present its arguments at an evidentiary
hearing. We disagree.
The pertinent provisions of CR 60.02 provide as follows:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceedings upon the following
grounds: . . . (b) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule; (c) perjury or falsified
evidence; . . . (e) the judgment is void, or has been
satisfied, released, or discharged, or a prior judgment
upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment
should have prospective application. . . .
CR 60.02 was intended to codify the common law writ of coram
nobis. CR 60.05. Its purpose was – and remains – to bring before the court errors
which: (1) had not been put into issue or ruled upon and (2) were unknown and
could not have been known to the moving party by the exercise of reasonable
diligence in time to have been presented to the court. Young v. Edward
Technology Group, Inc., 918 S.W.2d 229 (Ky.App. 1995). The decision to grant
relief under CR 60.02 is addressed to the broad discretion of the trial court.
Kurtsinger v. Board of Trustees, 90 S.W.3d 458 (2002). This discretion will not be
disturbed on appeal absent a showing of abuse. Fortney v. Mahan, 302 S.W.2d
842 (Ky.1957). Moreover, a party may be relieved from the court’s final judgment
only upon such terms as are just. In exercising its discretion, a trial court must
consider whether the movant had a fair opportunity to present his claim at the trial
on the merits.
Eriksen received a full and fair opportunity to present its case.
Eriksen was able to challenge Dr. Elkins’s evidence, to undermine his
credibility, and to defend against the contentions set out in his counterclaim.
Eriksen had superior access to the information concerning its business
accounts, and there is no reason to believe or to assume that it could not
have discovered Dr. Elkins’s 2002 federal tax return prior to trial. Eriksen
was not prejudiced or deprived of any means of pursuing or protecting its
interest in this matter.
While courts cannot tolerate perjured testimony, the provisions of
CR 60.02 are not intended to be used as a mechanism to correct outcomes
that may be incorrect factually. Rather, its provisions are intended to
protect against a party’s prevailing by unfair means. Recourse to CR 60.02
cannot in and of itself be presumed to imply that perjury has occurred.
Eriksen has failed to produce convincing evidence in support of its charge of
perjury. In the alternative, Eriksen has not demonstrated that even if
perjured testimony had occurred, Eriksen was deprived of its ability to
present its case to the jury. We conclude that the trial court did not abuse
its discretion by denying Eriksen’s motion for extraordinary relief.
We affirm the judgment of the Simpson Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Fox DeMoisey
David F. Broderick
Christopher T. Davenport
Bowling Green, Kentucky