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

• Court: Kentucky Supreme Court
• Decided: October 25, 2021
• Docket: 2020 SC 0506
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: OCTOBER 28, 2021 NOT TO BE PUBLISHED

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.

12 care, 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.

19 Jensen, 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.

20 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.

21 roles 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.

22 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.”).

23 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