Logan Coons, a Minor, by and Through Jennifer Coons, Guardian of the Estate of Logan Coons, a Minor v. Honorable Judith McDonald-burkman ( 2021 )

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RENDERED: OCTOBER 28, 2021
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Supreme Court of Kentucky
2020-SC-0506-MR
LOGAN COONS, A MINOR, APPELLANTS
BY AND THROUGH JENNIFER COONS,
GUARDIAN OF THE ESTATE OF LOGAN
COONS, A MINOR
ON APPEAL FROM COURT OF APPEALS
V. NO. 2020-CA-0574
JEFFERSON CIRCUIT COURT NO. 15-CI-006392
HONORABLE JUDITH MCDONALD- APPELLEE
BURKMAN, JUDGE, JEFFERSON CIRCUIT
COURT, DIV. NINE
AND
NORTON HEALTHCARE, INC.; APPELLEES/
NORTON HOSPITALS, INC. REAL PARTIES IN INTEREST
D/B/A NORTON SUBURBAN HOSPITAL;
COMMUNITY MEDICAL ASSOCIATES, INC.
D/B/A ASSOCIATES IN OBSTETRICS &
GYNECOLOGY; WILLIAM L. KOONTZ, M.D.; AND
ASSOCIATES IN OBSTETRICS AND
GYNECOLOGY OF LOUISVILLE, PLLC
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Pending in the circuit court is this medical-negligence suit filed by
Jennifer Coons on behalf of the estate of her minor son, Logan Coons, against
Real Parties Norton Healthcare, Inc., and Norton Hospitals, Inc. (collectively,
“Norton Defendants” or “Norton”), for injuries Logan sustained during his
delivery at birth. Norton argues it reached a binding settlement with Coons
during pre-trial mediation. Other defendants, gynecology-department
defendant-subsidiaries, namely Community Medical Associates, Inc. (“CMA”),
and Associates in Obstetrics & Gynecology of Louisville, PLLC (“AOG”), moved
to dismiss the claims against them under the purported agreement. The trial
court ordered Coons to submit the agreement as memorialized in a signed
document.
Reacting to the trial court’s orders, Coons filed an original action in the
Court of Appeals for a writ to prohibit the trial court from enforcing this
settlement agreement, which Coons alleges to be unenforceable for a variety of
reasons, primarily under statutory-guardianship provisions and contracts
theories. The Court of Appeals declined to issue a writ, finding Coons to have
an adequate remedy by appeal and circumstances that did not otherwise justify
extraordinary relief by writ.
Coons now seeks this Court’s review as a matter of right under Kentucky
Rules of Civil Procedure (CR) 76.36 and 81. Coons maintains the Court of
Appeals failed to recognize the deficiencies in the settlement agreement and
argues failure to issue a writ results in serious and irreparable harm. We
affirm the Court of Appeals’ decision to decline the writ.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying suit is a medical-negligence suit filed by Jennifer Coons,
on behalf of the estate of her minor son, Logan Coons, who suffered irreversible
2
and debilitating physical and mental injuries during his delivery at birth in
October 2011. As next friend and the guardian of Logan’s estate, Jennifer
alleges the defendants’ negligence caused these injuries.
After filing and amending the claims against the defendants, Coons
engaged Norton in pre-trial mediation for settlement. Coons allegedly settled
Logan’s claims for a confidential sum of money, signing a document titled
“Settlement Agreement,” dated December 18, 2019.
As the Court of Appeals indicated, the mediation agreement provides that
defense counsel is to “prepare the Settlement Agreement with terms and
conditions as noted below,” that Coons was “to obtain court approval of
settlement,” and that “[t]here are no other material terms and conditions.” The
agreement specifically and expressly excluded the release of any claims Logan
might have against Dr. Koontz or AOG. The “Mediator’s Report” provides:
“[T]he plaintiffs’ claims as against North [sic] Hospital, Inc., were resolved. All
claims as it relates [sic] to William Koontz, MD, were not settled and shall
remain on the active docket of the Court. An Agreed Order of Partial Dismissal
will be submitted.”
Over a month following the mediation, Coons attempted to repudiate as
“null and void” the settlement document for several asserted reasons, including
(1) that Jennifer lacked the authority contractually to settle claims on Logan’s
behalf under KRS 387.125, even as his next friend and guardian in the
litigation, absent approval by the circuit court per KRS 387.125(6); (2) that
Jennifer could repudiate the agreement at any time before court approval, and
3
that she was so repudiating the agreement in light of Norton’s purported
breach of the terms of confidentiality, allegedly by sharing the settlement terms
with William Koontz, M.D., and AOG; (3) that two new material terms were
added to the agreement without Jennifer’s knowledge or understanding; and (4)
that the agreement could not be approved because the terms were not in
Logan’s best interests. As to assertion (3), Jennifer asserts two terms were
added to the agreement, namely that the agreement released Jennifer’s
potential claims against Norton, although she intended only to release Logan’s
claims, and that the agreement released Norton’s insurers, although there was
no intention to do so.
Norton moved the trial court to enforce the agreement and to dismiss the
claims against it. Following an in-camera hearing on February 24, 2020, the
trial court granted that motion, ordering Coons to submit the settlement
agreement on Logan’s behalf for approval within 30 days. The trial court
denied the motion to reconsider on March 12, 2020, granting Coons an
additional 30 days to comply with the original submission order.
Coons then applied for a writ in the Court of Appeals to block the trial
court’s enforcement of the settlement agreement. The Court of Appeals
declined to issue a writ, finding Coons has an adequate remedy on appeal.
4
II. STANDARD OF REVIEW
The issuance of a writ is an extraordinary remedy disfavored under
Kentucky law.1 Further, “the issuance of a writ is inherently discretionary.
Even if the requirements are met and error found, the grant of a writ remains
within the sole discretion of the Court.”2 Our reluctance to entertain writ
applications, much less grant them, is clear from our precedent,3 and this
reluctance is due to the potential for writs of prohibition or mandamus to upset
the normal progression of trial and appeal.4 In all but the most exceptional
cases, the party seeking a writ must demonstrate the lack of adequate remedy
by appeal or otherwise and great injustice and irreparable injury will result if
the writ is not issued.5 Even in special cases where correction of an error is
necessary to prevent a serious miscarriage of justice and to maintain orderly
judicial administration,6 the lack of an appellate remedy remains a strict and
absolute prerequisite.7 In the context of a writ of this second class, “no
1 Caldwell v. Chauvin, 464 S.W.3d 139, 144 (citing Ridgeway Nursing & Rehab.
Facility, LLC v. Lane, 415 S.W.3d 635, 639 (Ky. 2013)).
2Commonwealth v. Shaw, 600 S.W.3d 233, 237 (Ky. 2020) (citing Caldwell, 464
S.W.3d at 145–46) (internal quotations omitted). See also Graham v. Mills, 694 S.W.2d
698, 699–700 (Ky. 1985).
3 Caldwell, 464 S.W.3d at 144–45 (citing Bender v. Eaton, 343 S.W.2d 799, 800
(Ky. 1961)).
4 See Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008).
5 See id.
6 See Bender, 343 S.W.2d at 801.
7 See Indep. Ord. of Foresters v. Chauvin, 175 S.W.3d 610, 617 (Ky. 2005);
Gilbert v. McDonald-Burkman, 320 S.W.3d 79, 85 (Ky. 2010).
5
adequate remedy by appeal” means that the alleged injury cannot be rectified
in any sort of subsequent proceedings in the case.8
III. ANALYSIS
The trial court’s jurisdiction over this case is undisputed. Coons asserts
an entitlement under the second class of writs, and more specifically under the
special-cases subcategory. So Coons must demonstrate a lack of appellate
remedy and severe and irreparable harm or that an error otherwise portends a
miscarriage of justice or a disruption of orderly judicial administration.9 The
Court of Appeals properly analyzed Coons’s petition and correctly concluded
that Coons qualifies for neither type of writ because she has an adequate
remedy by appeal.
Coons asserts that if she is forced to submit the settlement agreement for
trial court approval, irreparable injury will result with no recourse by appeal
because a binding settlement would result in dismissal of some claims against
those defendants against whom she may still have claims. In other words, the
potential claims against several defendants would be severely and irreversibly
precluded and appeal estopped were Coons to assent to the terms of the trial
court’s order enforcing the agreement. Coons maintains that she did not and
does not truly assent to the terms of settlement, or, alternately, that she lacked
the authority to assent at all. Distilled to its essence, Coons’s position is that
8 Newell Enters., Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005), overruled on
other grounds by Interactive Media Entm't and Gaming Ass'n, Inc. v. Wingate, 320
S.W.3d 692 (Ky. 2010).
9 Gilbert, 320 S.W.3d at 83.
6
the trial court’s order to submit the agreement for approval presents her with a
Hobson’s choice: either “(1) obey the order and thereby waive [her] right to
appeal the existence of a settlement agreement or (2) disobey the order and face
the imposition of sanctions or an order of contempt.”
To support this claim, Coons cites a single case out of the Missouri Court
of Appeals, State ex rel. American Bouvier Des Flanders Club, Inc. v. Jamison.10
Jamison presents circumstances similar to the case at bar, yet it is
distinguishable. Similar to the facts in the present case, the parties in Jamison
engaged in a private mediation.11 Following mediation, one side filed a motion
with exhibits to enforce a settlement purportedly reached in mediation, to
which the other side filed an opposing motion with exhibits asserting
settlement had not been reached.12 The trial court heard oral arguments and
granted the movant’s request to enforce the settlement.13 The nonmovant
asked the trial court to reconsider, a request which was denied.14 The
nonmovant then sought a writ, which the Missouri Court of Appeals issued.15
Aside from the fact that the Missouri decision is not binding on this
Court, it is otherwise readily distinguishable from the present case. In
Jamison, the trial court signed an order entitled “Judgment,” requiring the
10 413 S.W.3d 359 (Mo. App. 2013).
11 Id. at 360.
12 Id. at 360–61.
13 Id. at 361.
14 Id.
15 Id. at 362.
7
parties to execute, i.e., to sign, a final settlement agreement within thirty days,
and designated that order as a final appealable order.16 Here, we have before
us a signed document that purports to be a “Settlement Agreement,” vouched
for by the mediator, with Jennifer’s signature on it. The trial court has not, as
the trial court did in Jamison, forced Jennifer to enter into a settlement
agreement or otherwise to face contempt. The trial court here has ordered
Jennifer to submit what would appear to be an existing document containing
the settlement terms. If defenses exist affecting enforcement of the agreement,
Jennifer had the opportunity to raise them to the trial court in opposition to
the motion to enforce. If the trial court errs in enforcing an unenforceable
settlement agreement, any dismissal premised on such an agreement can be
appealed.
The Court of Appeals cited several cases that were both applicable and
informative, contrary to Jennifer’s contention that they were inapt. Jones ex
rel. Jones v. Cowan demonstrates that even if the trial court ends up enforcing
a settlement agreement in violation of the rights and procedure of statutory
guardianship provisions, that error can be determined and remedied by
appeal.17 Parkview Healthcare, LLC v. Combs demonstrates that if Jennifer
believes the Agreement may have been breached, that breach can also
theoretically be remedied in a separate action for breach of contract.18 And in
16 Id. at 361.
17 729 S.W.2d 188, 190 (Ky. App. 1987).
18 No. 2010-SC-000335-MR, 2010 WL 4683529, at *4 (Ky. Nov. 18, 2010).
8
Anderson v. Bates, a trial judge set aside a partial settlement agreement based
on a finding that one party gave false information in a deposition, and then set
a date for trial.19 This Court affirmed the Court of Appeals’ denial of a writ to
enforce the settlement and thereby avoid trial in that case, finding that an
interlocutory order pertaining to a settlement agreement is appealable following
final judgment and that the cost and delay of trial was not so severe as to
warrant the extraordinary remedy of a writ of prohibition.20
The principles in these three cases clearly apply. Contrary to the
dissent’s position, compliance with the trial court’s order to produce the
settlement agreement for approval would not prevent Coons from appealing the
trial court’s order with which she complied. “Waiver is commonly defined as a
voluntary and intentional surrender or relinquishment of a known right[,]”21
and therefore does not apply to these circumstances. It would be inequitable to
hold that Coons’s coerced compliance with the trial court’s order would waive
her right to appeal that order. We find, in this specific case, Jennifer’s motions
for reconsideration of the trial court’s order to submit the agreement and this
writ petition itself preserved the issues raised for appeal. If Jennifer is correct
that some fatal defect lurks in the terms or formation of the settlement
agreement, whether under principles of guardianship per KRS 387.125(6) or
under principles of contract, and that such defects form an improper basis for
19 No. 2003-SC-0085-MR, 2003 WL 22161582, at *1 (Ky. Sept. 18, 2003).
20 Id. at *2.
21 Greathouse v. Shreve, 891 S.W.2d 387, 390 (Ky. 1995) (quoting Barker v.
Stearns Coal & Lumber Co., 163 S.W.2d 466, 470 (Ky. 1942)).
9
the trial court’s prospective dismissal, any such dismissal can face appellate
review. Because these issues can be appealed, no writ may issue. We decline
to pass on the validity or enforceability of the apparent settlement agreement,
or on the application of KRS 387.125(6). Additionally, a potentially erroneous
disposal of Jennifer’s claims does not present so dire and irreparable a harm as
to warrant a writ. While this result may pose some costs and delay, having to
appeal a dismissal or to proceed to trial is not so exceptional or extraordinary a
situation as to warrant a special-case writ of prohibition.
IV. CONCLUSION
We affirm the decision of the Court of Appeals to decline issuance of a
writ.
All sitting. Minton, C.J.; Hughes, Keller, Nickell, and VanMeter, JJ.,
concur. Lambert, J., dissents by separate opinion, in which Conley, J., joins.
LAMBERT, J., DISSENTING: Respectfully, I must dissent. Today we
release two cases where litigants mediated their civil disputes privately and, in
each case, a party later asserted that the final documents failed to accurately
reflect their agreement.22
Ms. Coons, the mother of Logan Coons, acting as the court-appointed
guardian for Logan, her severely brain injured child, entered into a mediation
with the hospital where her child was born and signed a post-mediation written
agreement listing various terms. The parties agreed that counsel for the
22 Adamson v. Adamson, No. 2020-SC-000175-DG (Ky. Oct. 28, 2021).
10
Appellees (Norton Defendants) would draft a final agreement reflecting the
mediated agreement. Having subsequently discovered an issue with the terms
of the agreement, Ms. Coons repudiated it. By the trial court’s order, Ms.
Coons is now presented with a court-forced choice, which is really no choice at
all. She can either: 1) face contempt of court if she opts to refuse to submit to
the court a motion to approve a mediated agreement that she has long since
repudiated; or 2) submit a motion to approve the settlement agreement, in
which she must falsely assert that she believes that the settlement is in the
best interest of her minor child, thereafter sign a release, and again affirm the
terms she finds contrary to her child’s best interest.
While the Court of Appeals panel and the majority here today have held
that Ms. Coons and Logan have a right to appeal this topsy-turvy, double-bind
of an involuntary “agreement,” I know of no clear path to do so under our
current rules of procedure. How can Ms. Coons both sign the release of the
Norton Defendants, then appeal by disputing the validity of that release?
Would the majority have Ms. Coons present the settlement agreement and
falsely aver that it is in the best interest of her child? If she is truthful to the
court, may the court unilaterally approve such an agreement? Having
thoroughly contemplated her options, I see no viable path forward once she
submits the agreement to the Jefferson Circuit Court. Effectively, Ms. Coons
and Logan are denied their constitutional right of appeal and the protection of
the guardianship statute.
11
Denial of the writ leaves Ms. Coons and Logan in a legal quagmire and
without remedy. The right of appeal found by the Court of Appeals and
majority is more illusory than real. This imaginary right to appeal is not
adequate to protect the interests of Ms. Coons or Logan under the
circumstances. I do not share the majority’s reluctance to grant the writ for
fear of “upsetting the normal progression of trial and appeal.” Justice demands
that we quiet that fear, and prevent the irreparable harm bound to happen in
the case at bar if we deny it. Of course, “the specter of injustice always hovers
over writ proceedings, which explains why courts of this Commonwealth are—
and should be—loath to grant the extraordinary writs unless absolutely
necessary.”23 In the instant case, the “specter of injustice” looms larger over
Ms. Coons and Logan, and granting the writ is, in no uncertain terms,
“absolutely necessary.”24
A. The characteristics of settlement of a minor’s claims are unique.
The relationship between guardian and ward imparts unique duties upon
the guardian, who must act in the ward’s best interests in protecting the ward’s
estate. Guardians have an immense amount of responsibility in overseeing the
financial, emotional, and physical wellbeing of their wards. This Court
discussed these responsibilities in the context of a guardian seeking to dissolve
a ward’s marriage in Brooks by Elderserve, Inc. v. Hagerty, stating:
[a] guardian's specific duties include seeing to the
ward's financial well-being, providing for the ward's
23 Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008).
24 Id.
12care, comfort, and maintenance, and consenting to
necessary medical care. […] In a full guardianship,
where the guardian is also serving as the conservator,
he or she is responsible for ensuring the protection
and preservation of the ward's estate and prosecuting
or defending actions and claims in any jurisdiction for
the protection of the estate's assets.25
The Commonwealth’s current statutory scheme regarding guardians,
thus, imputes a duty of the greatest of care upon guardians when acting on
behalf of their ward. Therefore, the guardian must first act in the best interest
of her ward, and the actions of the guardian are entitled to deference unless it
is determined that she is acting against her ward’s best interest by substantial
evidence.26 Ms. Coons, following her reasoned judgment, the advice of counsel,
and with the care of a mother closely guarding the interests of her minor and
disabled child, has attempted to fulfill those duties assigned to her as Logan’s
25 614 S.W.3d 903, 913 (Ky. 2021) (internal citations and quotations marks
omitted).
26 See, e.g., KRS 387.032 (“The District Court shall appoint any person or entity
whose appointment would be in the best interest of the minor . . . .”) (emphasis
added); KRS 387.090(1)(b) (providing for removal of guardian if deemed in the minor's
“best interest” by the District Court) (emphasis added); Branham v. Stewart, 307
S.W.3d 94, 101 (Ky. 2010) (discussing the legislature enacting a comprehensive
scheme “concerning appointing guardians to further the ‘best interest’ of minors . . .”
(citing KRS 387.032; KRS 387.090(1)(b))) (emphasis added); Riehle v. Riehle, 504
S.W.3d 7, 10 (Ky. 2016) (Wright, J., concurring) (“The guardian must carefully weight
[(sic.)] [their ward’s] personal dignity and the unique nature of the dispute in making
the best interests determination. Disabled persons are still, first and foremost,
persons. They deserve the same basic human dignity and respect the rest of us
enjoy.”) (emphasis added); Brooks by Elderserve, Inc., 614 S.W.3d at 914 (“[A] guardian
may seek permission from the district court overseeing the guardianship to initiate a
dissolution of marriage action on behalf of his or her ward. The district court shall
hold a hearing to determine if such an action is in the ward's best interest and if so
satisfied may authorize the guardian to file such an action with the family court
consistent with its authority and responsibility under KRS 387.670(3).”) (emphasis
added).
13
statutory guardian by repudiating an agreement materially altered after it was
reached but before it was approved by the court.
B. A writ is Ms. Coons’ only option for remedy of the trial court’s error.
The heart of the issue in the instant case is whether a guardian has the
authority to repudiate a contract before it is approved by the court. If she does
have that authority and exercises it, and the trial court requires her to enter a
settlement agreement that dismisses the suit despite that exercise of authority,
she is compelled to engage in a catch-22-style paradox, wherein she must
submit a settlement agreement for approval that she had already repudiated,
and then appeal as error that which she requested the trial court do by her
submission. A predicate issue is, therefore, whether a contract not approved
by a court is binding and enforceable. If not binding and enforceable, then Ms.
Coons is free to repudiate.
1. The settlement agreement is voidable by the guardian until it is
approved by the court, therefore, it was error for the court to prematurely
bind Ms. Coons to it.
In 1987, the Court of Appeals considered Jones ex rel. Jones v. Cowan,
and held that, when a next friend objects to a settlement agreement entered
into on behalf of a minor child, the trial court may not enter it over the next
friends’ objection.27 The Jones Court reasoned that, because the next friend
was merely a nominal party, he did not have the same unilateral statutory or
other authority to settle the minor's claim as would a statutory guardian under
27 729 S.W.2d 188, 189 (Ky. App. 1987).
14
KRS 387.130.28 Thus, Jones stands for the proposition that, when a next
friend does not have the ability to enter into a settlement agreement without
the approval of the court, and the next friend repudiates the agreement before
receiving the approval of the Court, then the court cannot subsequently
approve the settlement agreement in spite of the repudiation.
Of course, the statutory scheme concerning guardianship has changed
dramatically since Jones was decided. At that time, a settlement agreement
entered into by a statutory guardian was not subject to the approval of the
court according to KRS 387.180, unless it concerned debt or real property.
KRS 387.130 stated in relevant part that a guardian
[s]hall also receive and sue for the debts and demands
owing to the ward, defend actions against him, and
with leave of court, may compound debt or demand,
or settle or compromise any controversy concerning
the lands of his ward when the interest of the ward
will be subserved thereby.29
That statute was repealed in 1990—just three years after Jones was decided.
In its place, the Kentucky Legislature adopted KRS 387.125, which has
effectively abrogated the Jones holding in regard to the statutory authority of
guardians. Indeed, to that extent, Jones is contrary to the explicit strictures of
KRS 387.125(6), which states in pertinent part: “[s]ubject to the approval of
the court in which the action, claim, or proceeding has been filed, a guardian
28 Id. at 189–90 (quoting Ambrose v. Graziani, 247 S.W. 953, 954 (1923)).
29 Emphasis added.
15
may settle or compromise the action, claim, or proceeding on behalf of the
ward.”
Under the now controlling statutory scheme, Ms. Coons is a guardian
and Logan is her minor ward as defined by KRS 387.010, et seq. Whether
settled prior to a formal complaint for damages is filed or after, KRS 387.125(6)
requires that any settlement for claims be approved by the court.30 This
creates a statutory condition precedent to the effectuation of a mediation
contract that the guardian enters into on behalf of her ward.
Further, KRS 387.125(6) does not grant standing to anyone else to seek
approval of such a claim. Here, a party with opposing financial interests to the
minor (i.e. the Norton Defendants) has sought to require the guardian to seek
approval of the settlement agreement, which the guardian now believes is
contrary to the child’s interest. In essence, this makes Ms. Coons no more
than a straw-man in the process, and disempowers her to make decisions on
behalf of Logan. By ignoring this fact, we have fallen down the rabbit hole and
circumvented the protective purposes of KRS 387.125(6). Instead, I would have
this Court hold that a settlement agreement involving a minor party is voidable
at the election of a minor ward through their guardian unless and until it has
been presented by the guardian and approved by the trial court as required by
KRS 387.125(6). When the guardian determines that the settlement agreement
30 KRS 387.125(6) states in relevant part: “Subject to the approval of the
court in which the action, claim, or proceeding has been filed, a guardian may settle
or compromise the action, claim, or proceeding on behalf of the ward.” (Emphasis
added).
16
is not in the best interest of her ward, no other party has standing to proceed
under the statute. Such a holding would be consistent with the purpose of the
statute.
In the instant case, secondary concerns developed post-mediation as to
whether the settlement agreement was in Logan’s best interest. Of course, a
plain reading of the terms of the mediation agreement and the purported
settlement agreement offered by the Norton Defendants had varying, material
terms. These varying terms created potential for future dismissal of the other
non-settling parties as an unintended consequence of the mediation agreement
and that is why she repudiated it and did not seek court approval of it. In fact,
Dr. Koontz has already asserted that he is entitled to dismissal based on the
release of the Hospital, alerting Ms. Coons of the issue. Courts must defer to
the guardian’s initial determination in assessing the merit of whether a
settlement agreement is in the best interest of her ward, and should only
disregard that determination if it is shown by substantial evidence that her
repudiation is, in fact, not in the best interests of her ward.
In effect, the settlement agreement tendered by the Norton Defendants
forces Ms. Coons to release them and their insurers from liability as to her own
potential claims as well as Logan’s. The mediation agreement contained no
such terms. Had the Norton Defendants wished for these varying, material
terms to be binding, then they should have negotiated them during mediation
and included them in that agreement. They undertook no such negotiation
during mediation, and no agreement was made regarding those terms after
17
mediation, as evidenced by the subsequent communications between the
parties. As a result, Ms. Coons repudiated the mediation agreement, which, as
discussed above, was within her statutory right and which was for the
protection of her ward’s interests.
The foregoing discussion reflects, simply put, that there could be no
settlement until Ms. Coons submitted it for approval by the court and the court
approved it. It was error for the court, therefore, to find that an enforceable
contract had been reached before it had approved it. The question remains,
however, whether Ms. Coons would have any alternative and adequate remedy
by appeal in light of this error.
2. There is no adequate remedy by appeal and great injustice and
irreparable injury will result by denial of the writ.
Adopting the majority’s approach to the issues at bar results in manifest
injustice, whereby neither Ms. Coons nor Logan have an adequate remedy on
appeal.
The majority and the Court of Appeals both found that Ms. Coons has an
available alternative and adequate remedy by looking to previous cases wherein
this Court considered the issuance of writs. I take issue with their reading of
each, namely because the procedural complications of the case at bar simply
were not present in each case upon which they rely.
18
The Court of Appeals’ misreading of Spot-A-Pot v. State Resources Corp.31
plague both this case and the Adamson case rendered today.32
In the case at bar, the Court of Appeals asserted that Spot-A-Pot shows
that Ms. Coons does, in fact, have an adequate remedy on appeal. In Spot-A-
Pot, State Resources Corp. (SRC) had filed a complaint against Spot–A–Pot and
Shelly Massa (Massa) alleging that Spot–A–Pot had defaulted on loans.33 Spot–
A–Pot filed a third-party complaint against U.S. Bank.34 Mediation resulted in
a bullet point list labeled “partial settlement” between Spot-A-Pot, Massa, and
SRC, but the dispute between Spot–A–Pot, Massa, and U.S. Bank was not
resolved in part or whole. 35 The remaining terms of a settlement between
Spot-A-Pot, Massa, and SRC were disputed and negotiations occurred.36
Dueling motions to enforce the settlement agreement were filed by Spot-A-Pot
and SRC.37 Spot-A-Pot sought to have the bullet point list enforced, and SRC
sought to have additional terms enforced as established through
correspondence between the parties’ counsel concerning the terms of the
settlement and affidavits submitted by Steven Brehm, SRC’s counsel, and Eric
31 278 S.W.3d 158 (Ky. App. 2009).
32 No. 2020-SC-000175-DG (Ky. Oct. 28, 2021).
33 Spot-A-Pot, 278 S.W.3d at 159 (Ky. App. 2009).
34 Id.
35 Id. at 160.
36 Id.
37 Id.
19Jensen, U.S. Bank’s counsel.38 The trial court enforced SRC’s proposed
agreement over the protestations of Spot-A-Pot.39
This situation is obviously inapplicable in the present case. Here, by
asking the trial court to enter the settlement agreement, as she is statutorily
required to do under KRS 387.125(6), Ms. Coons would effectively be
consenting to it. I do not see how Ms. Coons would be procedurally allowed to,
on the one hand, submit the purported settlement agreement to the trial court,
while on the other, argue on appeal that the order entering the settlement
agreement she offered was erroneous. This scenario, which will be the result of
a denial of a writ, causes her to declare to the trial court (against her obviously
sincere belief) that the settlement agreement is in the best interest of her ward,
and then disaffirm that same settlement agreement on appeal. Such a
contrived argument would preclude meaningful appellate review, and result in
manifest injustice.
The other cases cited by the Court of Appeals and the majority suffer
from the same defect.
In Jones v. Cowan, discussed supra, the next of friend father (Mr. Jones)
did not submit the settlement agreement to the trial court.40 The settlement
agreement was entered over his objection.41 As a result, Mr. Jones did not
38 Id.
39 Id. at 160–61.
40 729 S.W.2d at 189.
41 Id. at 188.
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have to affirm it to the trial court and then turn around and disaffirm it to the
Court of Appeals, as Ms. Coons would have to do with the majority’s denial of
her writ.
In Parkview Healthcare, LLC v. Combs, there was a purported settlement
agreement which Parkview Healthcare sought to enforce.42 The trial court
refused to enforce it. 43 Parkview unsuccessfully argued that the cost to litigate
warranted the issuance of a writ. 44 The Parkview Court determined that
Parkview Healthcare had available an adequate, alternative remedy to the
issuance of a writ: suing for breach of contract.45 In the present case, Ms.
Coons does not believe that there was an enforceable agreement, because it
had not been approved by the trial court. She merely argues in the alternative
that, if enforceable, it had been breached or repudiated. It is nonsensical to
believe that Ms. Coons would be entitled to seek damages for a breach of
contract upon a contract that, without action of the court, she contends does
not exist. Of course, the inverse is true: if the Norton Defendants believe that a
settlement was in fact reached, and the contract was binding, then they may
seek remedy post judgment by filing a breach of contract claim. The roles of
the parties and the remedies available to them in Parkview are opposite to the
42 No. 2010-SC-000335-MR, 2010 WL 4683529, at *4 (Ky. Nov. 18, 2010).
43 Id. at *1.
44 Id. at *4.
45 Id.
21roles and remedies of the parties in this case. For those reasons, therefore,
Parkview is neither instructive or applicable.
Anderson v. Bates46 suffers the same defect as Spot-A-Pot, Jones, and
Parkview. In that case, the trial court refused to enforce a settlement
agreement and no writ was issued.47 The Anderson Court determined that the
interlocutory order invalidating a proposed settlement agreement was
appealable once final judgment was rendered.48 However, Anderson—the party
objecting to the trial court’s interlocutory order—was not required by statute to
acquiesce to the trial court’s denial of a proposed settlement, and then turn
around and argue that the denial he agreed to was erroneous on appeal.
Instead, Anderson could maintain his objection to the order and then re-raise
the issue on appeal.49 Ms. Coons would have no such opportunity.
The majority states that Ms. Coons has preserved her right to appeal via
her motions for reconsideration and the filing of a petition for a writ. Frankly,
it confounds me how the majority can find that motions to reconsider and the
petition for a writ that are, on remand, followed by Ms. Coons submitting the
settlement agreement to the trial court do not constitute waiver. I am aware of
no procedural rule that would permit Ms. Coons to offer a settlement
agreement to the trial court, the terms of which she protests and never agreed
46 No. 2003-SC-0085-MR, 2003 WL 22161582, at *1 (Ky. Sept. 18, 2003).
47 Id. at *2.
48 Id.
49 Id. at *1.
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to, ask the trial court to enter it, and then argue to a higher court that the trial
court erred by doing what she asked of it.50 The doctrine of waiver or doctrine
of estoppel by acquiescence would likely preclude such an argument.
Therefore, Ms. Coons faces, contrary to the majority’s opinion, an
impossible dilemma: comply with the order, lose her right to appeal, and
potentially have the suit against all alleged tortfeasors dismissed; or refuse to
comply with the order and face contempt. If this represents no great injustice
and irreparable injury, I am hard pressed to see what could be.
With the foregoing in mind, the result of the denial of Ms. Coons’ writ is
clear: she and Logan will have no adequate remedy on appeal, and manifest
injustice will result. KRS 387.125(6) requires all settlement agreements be
approved by the court after the guardian who believes it to be in the best
interest of her ward presents it. The current statutory scheme, which requires
the guardian to initially act on behalf of the ward and then seek court
approval, creates a statutory condition precedent to the finalization of any such
settlement. Until approved by the court, any such settlement is neither
binding nor enforceable. The trial court’s order requiring her to submit the
settlement agreement, presumably so the court will stamp it “approved,” is, on
50 Deaton v. Fifth Third Union Tr. Co., 65 S.W.2d 979, 980 (1933) (holding “[a]ny
act or conduct upon the part of such litigant by which he impliedly acquiesces in,
ratifies, or recognizes the validity of the judgment may operate as a waiver of a right to
ask reversal on appeal.”).
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its face, erroneous. Because I would grant the writ and prohibit the trial court
from enforcing its order, I dissent.
Conley, J., joins.
COUNSEL FOR APPELLANT:
Paul A. Casi, II
Jeff W. Adamson
Paul A. Casi, II, PSC
APPELLEE:
Honorable Judith McDonald-Burkman
Judge, Jefferson Circuit Court
COUNSEL FOR APPELLEES/REAL PARTIES IN INTEREST:
Beth H. McMasters
Amy L. Cooper
McMasters Keith Butler, Inc.
Donald Kenneth Brown, Jr.
Michael Brian Dailey
Rachel Ann Stratton
O’Bryan, Brown & Toner PLLC
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