RENDERED: OCTOBER 3, 2025; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0022-MR
CHERNOR JELLOH AND J. APPELLANTS ANDREW WHITE
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JULIE KAELIN, JUDGE ACTION NO. 24-CI-000758
NICOLE SPIVEY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND EASTON, JUDGES.
COMBS, JUDGE: This case involves a rather unusual procedural issue underlying
a settlement agreement. J. Andrew White, as counsel for Chernor Jelloh and on his
own behalf, challenges an order of the Jefferson Circuit Court dismissing the civil
action filed by Jelloh against Nicole Spivey. After our review of the matter, we
reverse the court’s order and remand for additional proceedings. On January 31, 2024, Jelloh, a native of West Africa, filed a civil
action against Spivey. Jelloh alleged that he had been injured as a result of a motor
vehicle accident caused by Spivey in February 2022. In March 2024, Spivey
answered the complaint and denied the allegations. Nevertheless, within a few
months, the parties agreed to settle the dispute.
Confirmation of the settlement agreement and a written release to be
signed by Jelloh were immediately forwarded to White, Jelloh’s counsel. Over the
following months, opposing counsel exchanged a string of emails in an attempt to
wind up the matter. Eventually, Spivey’s counsel demanded that Jelloh execute
the release in exchange for payment of $7,500.00. In response, White admitted
that he was no longer in contact with Jelloh. White suggested that perhaps Jelloh
had returned to West Africa.
On September 12, 2024, Spivey’s counsel filed a motion to enforce
the terms of the parties’ settlement agreement. Counsel requested the court to
order Jelloh to execute the release that had been forwarded to White on June 6,
2024, in exchange for the agreed sum of $7,500.00. The Jefferson Circuit Court
concluded that the motion was well taken and, on September 24, 2024, it ordered
Jelloh to execute the release within fourteen days.
However, no executed release was forthcoming. As a result, Spivey’s
counsel filed a motion for contempt asking the court to award him the fees incurred
-2- as a result of having been compelled to bring the motion. However, he did not --
as a final remedy -- request the trial court to appoint some other person to execute
the release in Jelloh’s stead as is authorized by our rules of civil procedure. See
Kentucky Rules of Civil Procedure (CR) 70.
In its order entered on November 19, 2024, the trial court set the
matter for a hearing to be conducted on December 2, 2024. In its order, the court
announced that the action would be dismissed if Jelloh failed to appear and failed
to execute the settlement documents in compliance with its prior order.
Jelloh did not sign the release, nor did he appear for the December
hearing. The trial court summarily dismissed the underlying civil action. A
subsequent motion to alter, amend, or vacate was denied. Asserting that he was
entitled to recover his fee, White filed a timely notice of appeal on behalf of the
missing Jelloh and himself.
On appeal, White contends that the trial court erred by dismissing the
action. He describes Jelloh’s disappearance as “an unfortunate circumstance and
an unusual mystery imposed upon the facts of the case.” Jelloh’s disappearance
notwithstanding, White argues that the parties’ settlement is an enforceable
contract because Jelloh’s personal execution of the release of his claims against
Spivey is not required in order to implement the agreement. We agree.
Settlement agreements are contracts governed by contract principles.
-3- Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 105 (Ky. 2003); Ford v. Ratliff,
183 S.W.3d 199 (Ky. App. 2006). “The fundamental elements of a valid contract
are ‘offer and acceptance, full and complete terms, and consideration.’” Energy
Home, Div. of S. Energy Homes, Inc. v. Peay, 406 S.W.3d 828, 834 (Ky. 2013)
(citations omitted). Parties commonly agree to settle an action through verbal
and/or written exchanges. A compromise agreement is no less binding where it is
yet to be reduced to writing. United States Liability Insurance Company v.
Watson, 626 S.W.3d 569, 576 (Ky. 2021).
The essential elements of an enforceable contract between Jelloh and
Spivey were formed just months after the complaint was filed. Their mutual
promises constituted the necessary consideration. All that was required to
implement the agreement was an exchange of $7,500.00 for the signed release.
See United States Liability Insurance Company, supra. Spivey’s counsel filed a
motion to do just that.
No one argued to the trial court that the parties’ settlement agreement
was unenforceable. Nevertheless, execution of the release of Jelloh’s claims was
essential because it was a material term of the contract. Spivey’s counsel
forwarded the prepared release to White’s office the very day that the agreement
was reached, and, over the many months that followed, counsel never voiced an
objection to its contents. Because there is no indication that the release failed to
-4- reflect the agreement reached by the parties during their negotiations, the parties’
agreement was absolutely enforceable even where Jelloh was unable or unwilling
to execute the release. In fact, under the circumstances, where the trial court’s
order directed Jelloh to execute the release and he failed to comply within the time
specified, the court was empowered with specific authority to appoint someone to
execute the release at Jelloh’s expense. CR 70.
Even though both parties sought to implement the agreement, the
trial court nonetheless dismissed the action. In light of its earlier warning and
counsel’s contempt motion, we assume that the trial court concluded that dismissal
was warranted because Jelloh violated its order to appear and execute the release.
A civil contempt occurs where a party fails to comply with a court
order intended to enforce the adjudged right of an adverse party. Nienaber v.
Commonwealth ex rel. Mercer, 594 S.W.3d 232, 235 (Ky. App. 2020). The power
to impose a civil contempt sanction is inherent in the court’s authority. Crowder v.
Rearden, 296 S.W.3d 445, 448 (Ky. App. 2009). A civil contempt sanction is
meant to benefit an adverse party either by coercing compliance with the order or
by compensating for losses occasioned by the noncompliance. Commonwealth,
Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011).
An award of attorney fees -- as was sought in this case -- is ordinarily
within the scope of available civil contempt sanctions since it compensates a party
-5- for an adversary’s recalcitrance. However, the sanction of dismissal that was
actually levied in this case was imposed to punish Jelloh rather than to coerce him
to act.
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RENDERED: OCTOBER 3, 2025; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0022-MR
CHERNOR JELLOH AND J. APPELLANTS ANDREW WHITE
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JULIE KAELIN, JUDGE ACTION NO. 24-CI-000758
NICOLE SPIVEY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND EASTON, JUDGES.
COMBS, JUDGE: This case involves a rather unusual procedural issue underlying
a settlement agreement. J. Andrew White, as counsel for Chernor Jelloh and on his
own behalf, challenges an order of the Jefferson Circuit Court dismissing the civil
action filed by Jelloh against Nicole Spivey. After our review of the matter, we
reverse the court’s order and remand for additional proceedings. On January 31, 2024, Jelloh, a native of West Africa, filed a civil
action against Spivey. Jelloh alleged that he had been injured as a result of a motor
vehicle accident caused by Spivey in February 2022. In March 2024, Spivey
answered the complaint and denied the allegations. Nevertheless, within a few
months, the parties agreed to settle the dispute.
Confirmation of the settlement agreement and a written release to be
signed by Jelloh were immediately forwarded to White, Jelloh’s counsel. Over the
following months, opposing counsel exchanged a string of emails in an attempt to
wind up the matter. Eventually, Spivey’s counsel demanded that Jelloh execute
the release in exchange for payment of $7,500.00. In response, White admitted
that he was no longer in contact with Jelloh. White suggested that perhaps Jelloh
had returned to West Africa.
On September 12, 2024, Spivey’s counsel filed a motion to enforce
the terms of the parties’ settlement agreement. Counsel requested the court to
order Jelloh to execute the release that had been forwarded to White on June 6,
2024, in exchange for the agreed sum of $7,500.00. The Jefferson Circuit Court
concluded that the motion was well taken and, on September 24, 2024, it ordered
Jelloh to execute the release within fourteen days.
However, no executed release was forthcoming. As a result, Spivey’s
counsel filed a motion for contempt asking the court to award him the fees incurred
-2- as a result of having been compelled to bring the motion. However, he did not --
as a final remedy -- request the trial court to appoint some other person to execute
the release in Jelloh’s stead as is authorized by our rules of civil procedure. See
Kentucky Rules of Civil Procedure (CR) 70.
In its order entered on November 19, 2024, the trial court set the
matter for a hearing to be conducted on December 2, 2024. In its order, the court
announced that the action would be dismissed if Jelloh failed to appear and failed
to execute the settlement documents in compliance with its prior order.
Jelloh did not sign the release, nor did he appear for the December
hearing. The trial court summarily dismissed the underlying civil action. A
subsequent motion to alter, amend, or vacate was denied. Asserting that he was
entitled to recover his fee, White filed a timely notice of appeal on behalf of the
missing Jelloh and himself.
On appeal, White contends that the trial court erred by dismissing the
action. He describes Jelloh’s disappearance as “an unfortunate circumstance and
an unusual mystery imposed upon the facts of the case.” Jelloh’s disappearance
notwithstanding, White argues that the parties’ settlement is an enforceable
contract because Jelloh’s personal execution of the release of his claims against
Spivey is not required in order to implement the agreement. We agree.
Settlement agreements are contracts governed by contract principles.
-3- Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 105 (Ky. 2003); Ford v. Ratliff,
183 S.W.3d 199 (Ky. App. 2006). “The fundamental elements of a valid contract
are ‘offer and acceptance, full and complete terms, and consideration.’” Energy
Home, Div. of S. Energy Homes, Inc. v. Peay, 406 S.W.3d 828, 834 (Ky. 2013)
(citations omitted). Parties commonly agree to settle an action through verbal
and/or written exchanges. A compromise agreement is no less binding where it is
yet to be reduced to writing. United States Liability Insurance Company v.
Watson, 626 S.W.3d 569, 576 (Ky. 2021).
The essential elements of an enforceable contract between Jelloh and
Spivey were formed just months after the complaint was filed. Their mutual
promises constituted the necessary consideration. All that was required to
implement the agreement was an exchange of $7,500.00 for the signed release.
See United States Liability Insurance Company, supra. Spivey’s counsel filed a
motion to do just that.
No one argued to the trial court that the parties’ settlement agreement
was unenforceable. Nevertheless, execution of the release of Jelloh’s claims was
essential because it was a material term of the contract. Spivey’s counsel
forwarded the prepared release to White’s office the very day that the agreement
was reached, and, over the many months that followed, counsel never voiced an
objection to its contents. Because there is no indication that the release failed to
-4- reflect the agreement reached by the parties during their negotiations, the parties’
agreement was absolutely enforceable even where Jelloh was unable or unwilling
to execute the release. In fact, under the circumstances, where the trial court’s
order directed Jelloh to execute the release and he failed to comply within the time
specified, the court was empowered with specific authority to appoint someone to
execute the release at Jelloh’s expense. CR 70.
Even though both parties sought to implement the agreement, the
trial court nonetheless dismissed the action. In light of its earlier warning and
counsel’s contempt motion, we assume that the trial court concluded that dismissal
was warranted because Jelloh violated its order to appear and execute the release.
A civil contempt occurs where a party fails to comply with a court
order intended to enforce the adjudged right of an adverse party. Nienaber v.
Commonwealth ex rel. Mercer, 594 S.W.3d 232, 235 (Ky. App. 2020). The power
to impose a civil contempt sanction is inherent in the court’s authority. Crowder v.
Rearden, 296 S.W.3d 445, 448 (Ky. App. 2009). A civil contempt sanction is
meant to benefit an adverse party either by coercing compliance with the order or
by compensating for losses occasioned by the noncompliance. Commonwealth,
Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 332 (Ky. 2011).
An award of attorney fees -- as was sought in this case -- is ordinarily
within the scope of available civil contempt sanctions since it compensates a party
-5- for an adversary’s recalcitrance. However, the sanction of dismissal that was
actually levied in this case was imposed to punish Jelloh rather than to coerce him
to act. And it resulted in no compensation whatsoever. The sanction was not
subject to purgation through compliance with an order; instead, it was apparently
imposed to vindicate the authority of the court. The contempt of court was,
therefore, effectively rendered criminal in nature rather than civil. See Cabinet for
Health and Family v. J.M.G., 475 S.W.3d 600, 608 (Ky. 2015).
Unlike civil contempt, criminal contempt implicates the full panoply
of procedural protections provided by our Constitution. Id. Whereas due process
was not afforded Jelloh in the trial court’s hearing, dismissal of his civil action as a
sanction for his failure to appear and to execute the release was unnecessary and
inappropriate.
Alternatively, pursuant to the provisions of CR 41.02, a defendant
may move for a dismissal of an action based upon the plaintiff’s failure to comply
with an order of the court. The trial court’s consideration of such a motion
requires fact-specific determinations left largely to its sound discretion. Jones v.
Pinter, 642 S.W.3d 698, 701 (Ky. 2022). The court’s discretion is not unfettered,
however, and involuntary dismissal is an extreme remedy. Id.
In this case, there was no motion before the court seeking involuntary
dismissal. The trial court made no fact-specific determinations as required before
-6- an involuntary dismissal may be ordered. Moreover, under the circumstances,
violation of the court’s order directing Jelloh to appear and to execute the release
in order to implement the agreement was insufficient to warrant the extreme
remedy of dismissal with prejudice.
We reverse the order of the Jefferson Circuit Court, and we remand
this matter for additional proceedings in which the court may exercise the authority
available to it pursuant to CR 70.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
J. Andrew White Thomas F. Glassman Louisville, Kentucky Cincinnati, Ohio
-7-